Williams v Bryant

Exchequer of Pleas  (Court of Exchequer)
Vacation Sittings After Trinity Term, 1839

Before (the judges sitting on the bench)

• Mr Baron Parke 
• Mr Baron Alderson 

Headnote

In debt on bond, the plaintiff, by his declaration, complained against William Francis Bryant, sued by the name of William Bryant.  The defendant pleaded non est factum .

At the trial, it was proved that the defendant did in fact execute a bond agreeing with that described in the declaration, by the name of William Bryant, and that, at the time of the execution, he was known by that name.

Held, 1^st, that the proof was sufficient to sustain the issue, that there was no variance, and that the bond was not void; 2^ndly, that even if the objection were valid, it was not one of which the defendant could avail himself under the plea of non est factum.

Counsel (the barristers representing the parties)

• Mr Crowder & Mr Jardine on behalf of T. Williams, the Plaintiff
• Mr Erle & Mr Ball on behalf of William Francis Bryant (sued by the name of William Bryant the elder), the Defendant

Summary of the facts

The declaration commenced — “T. Williams, the plaintiff in this suit, complains of William Francis Bryant, the elder, sued as William Bryant, the elder, the defendant in this suit.  For that whereas the defendant heretofore, to wit, on, &c., by his certain writing obligatory, sealed with his seal, (profert) acknowledged himself to be held end firmly bound to the plaintiff, &c.”

At the trial it appeared that the bond was executed by the defendant by the name of William Bryant, and that he had, for some time previously, been known by that name.  It was objected, on the part of the defendant, that that was a fatal variance, and a verdict was found for the plaintiff, with liberty to move to enter a nonsuit.

Erle, in Easter Term, obtained a rule accordingly.  He cited Field v Winlow (2 Cro. Eliz. 897), Clarke v Istead (Lutw. 894), and Gould v Barnes (3 Taunt. 504).

Arguments submitted by counsel

Crowder and Jardine showed cause —

The objection rests entirely upon an assumed variance in the Christian name; but there is nothing in the case, either in the way of averment, proof, or admission on the record, to show that the name of Francis, introduced for the first time in the declaration, is not a surname.  The Court will make every reasonable intendment for the purpose of meeting an objection of this nature; as in Scott v Soans (3 East, 112), it was presumed, where nothing appeared to the contrary, that Jonathan otherwise John, was all one name of baptism.  Here it is quite a reasonable presumption, that ten years ago, when this bond was made, the proper name of the defendant was William Bryant, by which it is proved that he was known at that time, and by which he describes himself in the instrument, and that he has since assumed the surname of Francis, either by license from the crown, or of his own authority: Barlow v Bateman (3 P. Wms. 65).  If so, the declaration is regular in giving him the surname he had assumed, and which is in fact his true name at the time of declaring upon the bond.  By tracing the principle upon which the decision in the case of Gould v Barnes (3 Taunt. 504) is founded, through the earlier authorities, it will be seen that the objection applies to the mistake of a baptismal name only; and it will also appear that, if that principle is applicable at all at the present day, a bond in which the Christian name of the obligor is falsely stated, is wholly void, and consequently that the objection cannot, since the rule of H.T., 4 Will. 4 [the 1834 Hilary Term Rules], reg. 21, be available to the defendant upon the plea of non est factum.

The principle is, that in obligations, as well as in all deeds which operate per se by way of grant, without livery, or any act in pais to be done upon them, there must be a designation of the party to be charged — not by extrinsic averment, or anything beside the deed — but on the face of the instrument itself.  And this demonstratio personæ must be effected by the true statement of the name of baptism, which, in early times, was the real name of designation, and which, for that reason, is, in ancient authorities, usually called the proper name, to distinguish it from a surname.  It is a sensible rule, that the name of the party charged should appear with certainty in all solemn instruments, and especially in those which bind lands; for otherwise heirs and purchasers might, as Lord Stowell  says in Wakefield v Wakefield (1 Hagg. Cons. Rep. 401), “be for years at hide-and-seek about identity;” but it may be reasonably doubted, whether, at the present day, when surnames have been in general use for many centuries, and when Christian names have ceased to designate the person with any degree of certainty, the ancient and rigid rule, respecting the complete accuracy of the latter in bonds and deeds, can be justified.  Lord Coke , treating of the requisites of deeds, says, that “special heed must be taken to the name of baptism;” and, by stating some excepted instances, in which he considers that a grant would be good, though the name of baptism is mistaken, he clearly implies his opinion, that, as a general rule, a grant by a false Christian name would be void (Co. Litt. 3 a.).  Perkins declares this doctrine more distinctly; for, after stating that doubts prevailed as to the validity of an annuity deed, in which the grantor is described by a false name of baptism (Perkins’ Profitable Book , p. 17, pl. 38), he goes on to say — “Such things as passe by liverie, as land &c., notwithstanding the deed of feoffment  be made of that by a contrary name of baptism of the feoffor, and by contrary name of baptism of the feoffee, it is a good feoffment, if liverie of seisin be made by the feoffor unto the feoffee; and it takes effect by the liverie, and not by the deed.  And if a man give me his horse by word, and makes to me a writing of the same by his contrary name of baptism, and by my contrary name of baptism, it was a good gift by word, but not by the writing (pl. 42).”  This distinction between the effect of an error in a baptismal name and in a surname in bonds, is found in very ancient authorities.  In a case in the Year Book, 3 Hen. 6, 25, 6 , it was held that an obligor whose real name was Richard Talbot, should not be charged with a bond in which he was named John Talbot.  The counsel for the plaintiff in that case contended at the bar, that if a bond is made by Watte at Stile by the name of Watte at Gap, and an action of debt is brought against him by the latter name, according to the bond, he cannot object that his real name is Watte at Stile.  But the Court said “that there is a diversity where one is bound by another surname than he has put in the deed, and where he is bound by another proper name than he has put in the deed; for where one is bound by another surname, and the writ is brought according to the deed, there, if he pleads that he hath another surname, the plaintiff shall maintain his writ by special showing — such as that he bound himself by that name, or that the defendant in fact delivered the deed to him.  And this is the reason, for that a man may have divers surnames, and be known by one and by the other; but with the name of baptism the law is different, for a man cannot have two names of baptism.”  So also in a case in the Year Book, 34 Hen. 6, 19 , Chief Justice Prisot  says expressly, “I am of opinion that if Thomas Littleton is bound to me by the name of Robert Littleton, this obligation is void; for if I bring a writ against him by the name of Robert, the writ is bad, and alias dictus cannot be of proper names.”  Another judicial dictum to the same effect will be found in the Year Book, 9 Ed. 4, 43  (abstracted in Fitzherbert’s Abr. tit. “Grant”, pl. 23).  The same principle is also expressly recognised in Panton v Chowles (Moore, 897), Button v Wrightman (Popham, 56), Disply v Sprat (Cro. Eliz. 57), Humble v Glover (Cro. Eliz. 328), and Regina v Bishop of Chester (1 Lord Raym., 292; 12 Mod. 185); and it is adopted without question as the law in Fitzherbert’s Abr. tit. “Grant”, pl. 23; 2 Roll. Abr. 21, “Faits”, B. 3; Com. Dig.  tit. “Fait”, E. 3; Bacon’s Abr.  tit. “Grants”, C.  Chief Baron Gilbert  (History of the Common Pleas, pp. 174, 178) states the law respecting the distinction between the effect of a mistake in the Christian name and that of an error in the surname in grants and obligations, entirely in accordance with the above authorities, and suggests what occurs to him as a reason for the rule, that a mistake of the former cannot be aided by pleading or averment.  Assuming, therefore, this distinction to be undoubted law, and applying it to the present objection, it will be found that in every case which has been, or which can be, cited in support of this application, the mistake held to be fatal has been the mistake of the Christian name only.  Thus in Hyckman v Shotbolt (Dyer, 279 a.), it was John for William; in Field v Winlow (Cro. Eliz. 897), it was John for James; in Watkins v Oliver (Cro. Jac. 558), in Sir Edward Ashfield’s case (Brownlow, 48), and in Maby v Shepherd (Cro. Jac. 640), it was Edmund for Edward; in Clarke v Istead (Lutwyche, 894), it was Robert for John; in Evans v King (Willes, 554), Henry for Henry Vaughan, but the name of Vaughan appeared upon the plea in abatement , and was admitted upon the record, to be a Christian name; and lastly, in Gould v Barnes (3 Taunt. 504), upon which case this rule was obtained, it was Thomas for Joseph.  It is clear, therefore, from the authorities, that the objection, if available at all, applies only to the mistake of a Christian name; it may be doubted whether the altered usages of society in this respect, which have entirely reversed the relative importance of baptismal names and surnames for the purposes of designation, have not rendered the old law upon this subject obsolete; but, at all events, there is nothing in this case to show that Francis is not a surname, adopted since the bond was made, and the Court will not intend that it is a Christian name in order to maintain an objection of this nature.

But a conclusive answer to this objection is afforded by the rule of Hilary Term, 4 Will. 4 [the 1834 Hilary Term Rules], r. 21, which declares that “in debt on specialty the plea of non est factum shall operate as a denial of the deed in point of fact only, and all other defences shall be specially pleaded, including matters which make the deed absolutely void, as well as those which make it voidable.”  Now if the defendant intended to rely upon the ancient doctrine that a bond containing the false baptismal name is void, he was bound under the above rule to plead specially, though such a defence might formerly be available under non est factum.  In like manner, if he relied upon the variance of the name in the declaration from that in the bond, he cannot avail himself of such a defence without a special plea, because there is no question in this case respecting the identity of the person, the defendant having beyond all doubt executed the bond in point of fact; and upon non est factum, since the above rule, the only proof which the plaintiff is bound to produce at Nisi Prius is, that the party did in point of fact execute the instrument set out in the declaration.

Erle and Ball, in support of the rule —

Although a man cannot properly have two Christian names of baptism, yet it is a principle of law, that if a party execute a deed by any name, he will be estopped, in an action upon the instrument, from disputing that his name is different from that which he has adopted; and the authorities show that if a party signs a bond by a wrong name, he must be sued in that name.  It is a principle of law that estoppels must be mutual, and therefore the obligee is bound by the same rule, and the name given in a deed must be taken, as between the parties to that deed, as absolutely conclusive.  They relied upon Hyckman v Shotbolt, Panton v Chowles, Watkins v Oliver, Maby v Shepherd, Evans v King, Gould v Barnes, and Reeves v Slater (7 B. & Cr. 486).  In the case of a Jew, a Pagan, or a Turk, who can have no Christian names, they would be liable to be sued by the name which they had put to a bond or deed.  This defendant ought, therefore, to have been sued by the name by which he signed the bond, viz “William Bryant,” and not “William Francis Bryant.”  Next, as to the point that this objection cannot be taken advantage of under the plea of non est factum.  It was intended that that plea should put in issue the execution of the instrument by the person described in the declaration; but showing the execution of a bond by William Bryant is no proof of the execution of the bond by William Francis Bryant, against whom the action is brought.  The new rules [the 1834 Hilary Term Rules] were intended to apply to cases where an instrument is sought to he vitiated by some informality; but not to cases where the plaintiff’s proof is deficient, in not showing the execution of the instrument by the party sued.  [Mr Baron Alderson : They say it is the same person.]  The question whether Francis ought to be taken as a surname, ought to have been raised at the trial, as that was a question of fact for the jury to determine, and evidence might have been given to show that it was a name of baptism.  Besides, if it is to be presumed that the defendant took that name as a surname since the execution of the bond, that ought to have been suggested, as is done in the case of a party acquiring a change of dignity or title, or where he has changed his name by letters patent from the crown.

Judgment

Mr Baron Parke —

The plaintiff in this case, by his declaration, complained against William Francis Bryant, sued by the name of William Bryant the elder, on a bond.  On an issue on a plea of non est factum, tried before my Brother Maule, it appeared in evidence that the defendant did execute a bond, agreeing with that described in the declaration, by the name of William Bryant; and that at the time of the execution he was well known by that name but it was objected, that the issue was not maintained, and that the plaintiff ought to be nonsuited.  My Brother Maule directed a verdict for the plaintiff; but reserved to Mr Erle the liberty to move to enter a nonsuit.

A rule nisi was obtained, and cause shown, last term.  We have considered the case, and are of opinion that the rule ought to be discharged.

The authorities in support of the rule, were the case of Gould v Barnes (3 Taunt. 504), and others therein referred to.  It appears from these to be a settled point, that if a declaration against a defendant by one Christian name, as, for instance, Joseph, state that he executed a bond by the name of Thomas, and there be no averment to explain the difference, such as that he was known by the latter name at the time of the execution, such a declaration would be bad on demurrer, or in arrest of judgment, even after issue joined on a plea of non est factum.  And the reason appears to be, that in bonds and deeds, the efficacy of which depends on the instrument itself, and not on matter in pais, as feoffments, there must be a certain designatio personæ of the party, which regularly, in the case of ordinary persons, ought to be by the true first name, or name of baptism, and surname (Sheph. Touch.  233); of which the first is the most important.  And there are many cases, in which the court have said, and as recently as in that in Willes, 554, that a man cannot have two Christian names at the same time; nor can he, properly and strictly, have two: but, on the other hand, it is certain that a person may at this time sue, or be sued, not merely by his true name of baptism, but by any first name which he has acquired by usage or reputation; though it was otherwise held in the case in Vin. Abr. “Misnomer”, C. 12, in 7 Will. 3: if a party is called and known by any proper name, by that name he may he sued, and the misnomer could not he pleaded in abatement; and not only is this the established practice, but the doctrine is promulgated in very ancient times.  In Bracton, 188 b., in speaking of pleas in abatement, it is said, “Item, si quis binominis fuerit, sive in nomine proprio sive in cognomine, illud nomen tenendum erit quo solet frequentius appellari, quia ideo imposita sunt, ut demonstrent voluntatem dicentis, et utimur notis in vocis ministerio.”  [And so if a person has two names, whether in his name or in his surname, that name is to be adopted by which he is more frequently accustomed to be called: because they are imposed for that reason, that they may show the intention of the speaker, and we use signs in the employment of the voice.]  And Lord Chief Baron Comyns , in his Digest , “Fait”, E, 3, says, “If a man he baptized by one name and known by another, a grant by the name by which he is known shall be good.”  This is founded on the dicta in the Year Book, 46 Edw. 3, fo. 22.  And if a party may sue, or be sued, by the proper name by which he is known, it must be a sufficient designation of him, if he enter into a bond by that name.  It by no means follows, therefore, that the decisions in the case of Gould v Barnes, and others before referred to, in which the question arose on the record, would have been the same, if there had been an averment on the face of the declaration, that the party was known by the proper name in which the bond was made at the time of making it.  We find no authorities for saying that the declaration would have been bad with such an averment, even if there had been a total variance of the first names, still less where a man having two proper names, or names of baptism, has bound himself by the name of one.  And on a plea of non est factum, where the difference of name does not appear on the record, and there is evidence of the party having been known, at the time of the execution, by the name on the instrument, there is no case cited on the argument, and none that we are aware of, which decides that the instrument is void.  In Hyckman v Shotbolt (Dyer, 279), which was cited as showing that the variance of name was fatal, on non est factum, the wrong name in the bond (John instead of William) is said to have been inscribed by mistake; and therefore, it is to be presumed, was not a name by which he was known.  In the absence, therefore, of any authority to the contrary, and relying upon the law now fully established, as to misnomers in actions, we think a bond is not void which is in the name, whether such name be the first or Christian name, or family name, by which the party is commonly called or known, and, consequently, that the plaintiff in this case was entitled to recover.

We wish to add, that it appears to us, that if the objection were valid, it was not available under this plea of non est factum, since the new rules [the 1834 Hilary Term Rules].

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Orders of the court

Rule discharged.