The opinion
By the Court.
The power of the court in the matter of amendments of civil process, under Rev. Sts. c. 100, §§ 21, 22, is very general and comprehensive; and in the correction of circumstantial errors and mistakes seems to be wholly unrestricted, in cases “ where the person and case may be rightly understood *196 by the court.” In the present case, the evidence satisfactorily shows that the misnomer of the plaintiff was a mere clerical error of the attorney who made the writ, and that the suit was intended to be brought in the name of Justus Stark, who actually had the claim against the defendant, set out in the declaration, and ordered the suit to be commenced.
The surname of a party is no more essential to his legal designation and identity than other parts of his name. A mistake in either is fatal to the validity of legal process, where no power of amendment exists. Slasson v. Brown, 20 Pick. 436 . Commonwealth v. Perkins, 1 Pick. 388 . Commonwealth v. Hall, 3 Pick. 262 . Yet no one can doubt the power or the duty of the court to allow amendments by adding to, taking out or correcting the first or Christian names of parties to actions. Such is the constant practice.
It cannot change the principle on which amendments in the names of parties are allowed, that there is a person who happens to bear the same name with that erroneously inserted in a writ. Such a fact may render the question of allowing an amendment more perplexing and difficult to be determined; but if, notwithstanding this, the' person intended to be made a party, but who has been misnamed by mistake, can be “ rightly understood by the court,” the case clearly comes within the express provision of the statute, and the error ought to be corrected by an amendment. A majority of the court are therefore, after a consultation of all the judges, of opinion that the amendment should be allowed,
Nonsuit taken off.