Legal Opinion

Frye v. Hinkley

Supreme Judicial Court of Maine

Decided June 15, 1841Published

Exceptions from the Middle District Court, Redington J. presiding. This was an action of assumpsit, in which the defendant was sued by the name of Lewis Hinkley. At the term at which the action was entered, the defendant filed a plea in abatement, that Lis name was Benjamin Lewis Binkley.

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Exceptions from the Middle District Court, Redington J. presiding. This was an action of assumpsit, in which the defendant was sued by the name of Lewis Hinkley. At the term at which the action was entered, the defendant filed a plea in abatement, that Lis name was Benjamin Lewis Binkley. The plaintiff replied, that the defendant was as well known by the name of Lewis llinkley, as by the name of Benjamin Lends Binkley, and tendered an issue to the country thereon, which was joined. The matter in issue therefore was, whether the defendant was called and known as well by the name of Lewis…

1Opinion of the Court

The opinion of the Court was by

Weston C. J.

On the question of misnomer, we perceive no error in the instructions of the Judge. Where an issue of fact is joined and tried, the authorities very clearly establish the doctrine, that the judgment is to be peremptory. The jury therefore should have assessed the damages. Eichorn v. Le’maitre, 2 Wilson, 367. The judge should not have instructed them, that they had *324nothing to do with the question of damages; but as the counsel for the defendant also contended for this, it does not furnish ground of exception on his part. This omission does not, in our…

2Cases cited1 opinion

  1. J. H. Brown & Co. v. GrinnanCourt of Appeals of Texas · 1884

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