Walden v Holman
Reference: Walden v Holman (1704) 6 Mod 115
- Holman v Walden
Court of Queen’s Bench
Hilary Term, 1704
Before (the judges sitting on the bench)
The parties to the case
- Mr Walden (the Plaintiff)
- Mr Benjamin Holman, otherwise John (the Defendant)
There are four reports of the Walden v Holman case, which are all slightly different (although the two reports in Holt’s King’s Bench Reports (Holt. 492, 563) are almost certainly based on Salkeld’s report (1 Salk. 6)). So it’s difficult to fully understand what happened, especially because they sometimes contradict each other, and because of the (now rather archaic) technicalities involved.
However, all four reports agree that —
- Mr Walden (the plaintiff) sued Mr Holman (the defendant).
- The defendant pleaded in abatement that he was baptised in a different name to the name he was sued by, and that he’d always been called and known by this baptismal name, formally denying (“traversing”) that he was ever called or known by the name he was sued by.
- Either the defendant or the plaintiff (the reports don’t agree who it was) eventually demurred.
- The court held, per curiam, that the defendant’s saying he was baptised in a different name, was waived by his own traverse; thus — effectively — his plea was merely that he’d always been called and known by a different name to that which he’d now been sued by, and the matter of the baptism was treated as an “inducement to a traverse”.
- The court was, nevertheless, satisfied that the defendant was baptised in a different name to the name he was sued by.
- It was established, though, that the defendant was indeed called and known by the name he was sued by. (Only Lord Raymond’s report (2 Ld Raym. 1015) mentions how it was established — which was, that by saying “the said …” in his traverse, the defendant inadvertently confessed his name to be the one he was sued by. However the other reports imply the defendant’s counsel knew they’d bungled their plea, seeing as they were urging that the significant (“material”) part of the plea was the name of baptism, and that the traverse was “needless and frivolous” — an argument which was rejected by Chief Justice Holt.)
Mr Justice Powell at first inclined towards counsel’s argument that the defendant could have no other name than his name of baptism (and that therefore the traverse was “immaterial”), but in the end, the court held that a person’s name could have changed since baptism, and that the defendant could indeed be sued by the name he was called and known by, with Chief Justice Holt saying (per Leach’s report, 6 Mod 115) that —
[The defendant’s traverse] is not immaterial, but would be a good plea in abatement; for it is a good plea in abatement for a defendant to say that he was known and called by such a name, though he never was baptized, as many thousands in England never were: nor is it true to say that one baptized by the name of John cannot be known by another name.
- The defendant was therefore ordered to answer over.
Summary of the facts
Mr Holman was sued by the name of Benjamin Holman, and pleaded in abatement, that he was baptized and always known by the name of John; absque hoc that he the said John was ever called or known by the name of Benjamin Holman. The plaintiff replies, that he was known by the name of Benjamin from the time of his baptism. To which the defendant demurs.
Arguments submitted by counsel
It was urged, that the material [i.e. significant] part of the plea was, that he was baptized by the name of John; and if so, the plaintiff ought to answer that; for if the defendant were baptized by the name of John, he could not be known by any other name of baptism, for one can have but one name of baptism; and the absque hoc coming after that, which is a material plea, is frivolous, and therefore not to be regarded.
And to this opinion Mr Justice Powell, strongly inclined, for he thought that to say that he was baptized by another name, without more, was a good plea in abatement, and therefore the rest was nugatory.
Chief Justice Holt, and the rest of the court, contra; for admitting that it might be relied upon for a plea that he was baptized by such a name, yet that is not done here, but it is only made an inducement to a traverse, which matter of traverse is not immaterial, but would be a good plea in abatement; for it is a good plea in abatement for a defendant to say that he was known and called by such a name, though he never was baptized, as many thousands in England never were: nor is it true to say that one baptized by the name of John cannot be known by another name. Sir Francis Gawdy acquired a new name by his confirmation, without, as Holt C.J., said, losing his Christian name; at least he said he was not satisfied that his name of baptism did cease upon his taking a new name of confirmation, as Mr Justice Powell, would have it.
Brotherick at the bar remembered a case wherein he was of counsel, in which it was held, that it is not a good plea in abatement for a defendant to say that he was baptized by another name, without showing likewise that he was always known by it, and not put the plaintiff to show how his name was altered to enable him to sue them.
Darnell Sjt, affirmed the same thing.
And judgment was given to answer over.
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