The Lord Justice-Clerk—Mary Hubburt, you will sign your name.
[The witness signed her name accordingly.]
The Dean of Faculty—My Lord, the witness has subscribed her name “Hibbutt.”
Lord Hailes—The name of Hobart is the name of the very respectable family of Buckinghamshire, in England, and I would have supposed that this woman’s name, since it so nearly resembles it, was the same, and would not have taken her own word to the contrary. Hibbutt, nevertheless, is perfectly different from Hubbart, and, however obscure it might be, still, as it is proved by the parish register to be the name of the person now called, I consider myself obliged to give weight to the misnomer.
The Dean of Faculty—I beg pardon for interrupting the Court, but I am just informed that this point has been decided by Lord Eskgrove and Lord Stonefield at the Glasgow Circuit, where a misnomer of “James Roberton” instead of “James Robertson” was sustained. There, there was only the want of a letter, whereas there is certainly a much greater difference betwixt the names here in question.
Lord Eskgrove—As to the case mentioned by the Dean of Faculty, Robertson and Roberton are two perfectly distinct names. In the case before your Lordships there can be no doubt that if this woman had only been libelled as wife to George Smith, without her maiden name, there could have been no question whatever. It is the universal custom in England that the maiden name sinks into that of the husband’s, but my great difficulty is, in this case, that the public prosecutor, in giving this witness a further description than was necessary, has totally mistaken her name, I do not think that there is any force in her being called Hubbart in the precognition for the same reason given by the Dean.
[Here his Lordship was interrupted by the Lord Advocate.]
The Lord Advocate—My Lords, the circumstances which I meant to prove by the witness are so immaterial that I will give the Court no further trouble with the matter. I agree to pass from this witness.
Lord Eskgrove—I am very happy I am relieved from deciding it, as I was going to deliver an opinion for sustaining the objection.
The Lord Justice-Clerk—Mary Hibbutt, you are at liberty to go where you please.