Williams v Bryant
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1839 |
| Date | 01 January 1839 |
| Court | Exchequer |
English Reports Citation: 151 E.R. 189
EXCH. OF PLEAS.
S. C. 7 Dowl P. C. 502; 9 L. J. Ex. 47; 3 Jur. 632.
[447] vacation sittings after trinity term. williams v. bryant. Exch. of Fleas. 1839.-In debt on bond, the plaintiff, by his declaration, complained against W. F. B., sued by the name of W. B. The defendant pleaded non est factum. At the trial, it appeared that the defendant did in fact execute a bond agreeing with that described in the declaration, by the name of W. B., and that, at the time of the execution, he was known by that name :-Held, 1st, that the proof was sufficient to sustain the issue, and that it was no variance; 2ndly, that even if the objection were valid, it was nut one of which the defendant could avail himself under the plea of non est factum. [S. C. 7 Dowl. P. C. 50-2; 9 L. J. Ex. 47 ; 3 Jar. 033.] Debt on bond for 50001. The plaintiff by his declaration complained against "William Francis Bryant, sued by the name of \Villitim Bryant." The defendant pleaded non est factum, and the cause was tried before Mtuile, B., at the last Assize.s for the county of Somerset. It appeared in evidence 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 : but it was objected that the issue was not maintained, and that the plaintiff ought to be nonsuited. The learned Judge directed a verdict for the plaintirt, but reserved to the defendant's counsel liberty to move to enter a nonsuit. Erie, in Easter term last, obtained a rule nisi accordingly, citing Field v. Winlow (Cm. Eliz. 897), Clark v. Intend (Lutw. 894), and Gould v. Bairns (3 Taunt. 504). Crowder and Jardiue shewed 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 shew that the name of Franc-is, 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. Scans (3 East, 112), it was [448] presumed, where; nothing 190 WILLIAMS V. BRYANT 5 M. & W. 4*9. 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 bis 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, Keg. 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 wayjo! grant, without livery, or any act in pais to be clone 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.(c) And this demonstratio persona! 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...
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