1839. PERCIVAL V. Cook. the precedent found, in Derrier v. Arnaud (a). It is clear, from the case of Lewis v. Kerr (6), that the privilege still remains. Lord ABINGER, C. B.-We think that this plea is good, and have the less difficulty in holding it to be so, because, if the allegation that the defendant was an attorney of the Court of Queen's Bench is false, and issue is joined thereon, a verdict on that fact would be final, and the defendant barred thereby. We, at first, thought that the late act, 1 & 2 Vict. c. 45, s. 3, whereby an attorney of any one of the Courts at Westminster is rendered competent to practise in any of the others, had taken away this plea in abatement; but that objection is removed by the words of the statute, which show that until he has signed the roll he is not, for any purpose, considered an attorney of the Court where he has not been admitted; and that is a matter of fact which ought to come by way of replication from the other side. (a) 4 Mod. 405. Judgment for the Defendant. (b) 2 M. & W. 226. In debt on bond, plaintiff declared against defendant as W. F. WILLIAMS v. WILLIAM FRANCIS BRYANT, the Elder, (sued as WILLIAM BRYANT, the Elder). DEBT on bond. 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 proved that the obligatory, sealed with his seal, (profert) acknowledged B., sued as W. B. Plea, non est factum, at the trial it was bond was exe cuted by the defendant, by the name of W. B., by which name he was well known. Held, 1st. That there was no variance, and that the bond was not void. 2nd, That the objection was not available under the plea of non est factum. himself to be held and firmly bound to the plaintiff, &c." Plea, non est factum. 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. 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 (a), Clarke v. Istead (b), and Gould v. Barnes (c). Crowder and Jardine shewed cause. The only point in issue is, whether the defendant executed the bond? And by his appearance he admits that he is the person designated. In this state of the record, every intendment will be made in support of the declaration; as it is not denied that the defendant's christian name is William, it may be inferred that the name of Francis was taken subsequently to the execution of the bond. It is conceded, that the established rule of law requires that in all deeds, which operate without livery, the name of the party should appear on the instrument, in order that there may be a designatio personæ; but it is evident, from the authorities, that the christian name is the material part of the description, for a man may have several surnames, but can have one christian name only. In Co. Lit. 3 a, it is said, that " If a man be baptized by the name of Thomas, and after, at his confirmation by the bishop, he is named John, he may purchase by the name of his confirmation. And this was the case of Sir Francis Gawdy, late Chief Justice of the Court of Common Pleas, whose name of baptism was Thomas, and his name of confirmation Francis, and that name of Francis, by the advice of all the judges, in anno 36 Hen. 8, he did bear, and after used, (a) 2 Cro. Eliz. 897. (b) Lutw. 894. (c) 3 Taunt. 504. 1839. WILLIAMS บ. BRYANT the Elder. in all purchases and grants. And this doth agree with our ancient books, where it is holden, that a man may have divers names at divers times, but not divers christian names." This distinction between christian and surnames is adverted to by Perkins, in his Profitable Book, tit. "Grant," pl. 38, he says, "If John S. grant an annuity by deed, and the surname, scil. S. is in the deed, but not his name of baptism, this grant is not good. And if John S. grant an annuity by a different name of baptism, viz. by the name of Thomas S., some think this grant is not good, because the deed of Thomas cannot be the deed of John; for a man cannot have two names of baptism, and so they conceive the grantor may well deny the deed." So in Rol. Abr. tit. "Faits," (3)—" Si J. S. luy obligé en obligation per le nosme de W. S. il navoidera ceo nes si soit faur en le nosme de baptisme solement auterment est." And in Comyn's Dig. tit. "Fait," (E 3)—" So if a man executes a deed, and his addition be mistaken, this shall not avoid the deed: as if A. B. junior, executes an obligation by the name of A. B. senior. So, if his surname be mistaken, as A. Bosom for A. Bozom." And Bacon, in his Abridgment, tit. " Grants," says, "it seems, by the better opinion of the books, that a mistake of the christian name will vitiate the grant: as where the grant is made without any christian name at all, or where a wrong name is made use of, as Edmund for Edward; neither can the party be declared against by his right name, with an averment that he made the deed by his wrong name, for that would be to set up an averment contrary to the deed, and contrary to that sanction allowed by law to every solemn contract; and therefore, if he be empleaded by the name in the deed, he may plead that he is another person, and that it is not his deed. But a mistake with surname does not vitiate the grant, because there is no repugnancy that a person should have two different surnames, so that he may be empleaded by the name in the deed, and his real name brought in by an alias, and then he cannot deny the name in the deed, because he is es topped to say any thing contrary to his own deed." This rule of law is recognized by Chief Baron Gilbert, in his Treatise on the Common Pleas (a), where, speaking of the jury process, he says, "The nomina jurator, in the venire, are the proper parties to try the action; and if there be a mistake in the christian name, it is incurable, for the statute does not extend to it; but it extends to cure surnames or additions, for there can be but one name of baptism, but there may be various surnames and additions; and therefore, if it can be proved what person the sheriff meant by his surname or addition, it may be amended and set right. The same distinction between a christian and surname will be found in 3 Hen. 6, 25, pl. 6; 33 Hen. 6, 19 b; Fitzh. Abr. tit. Grant, 23, citing M., 9 Ed. 4, 43, Panton v. Chowles (b), Disply v. Sprat (c), Humble v. Glover (d). The reason why less strictness is required with respect to the surname, is stated by the Court in Button v. Wrightman (e), to be this: viz. "that anciently men took most commonly their surnames from their places of habitation, especially men of estate, and artizans often took their names from their arts." All the cases cited on the other side fall within this rule. In Gould v. Barnes, the defendant, Joseph Barnes, entered into a bond by the (a) p. 176. (b) Moor, 897. (c) Cro. Eliz. 57. (d) Cro. Eliz. 328. (e) Poph. 57. 1839. WILLIAMS v. BRYANT the Elder. 1839. WILLIAMS v. BRYANT the Elder. Clarke, became bound; the defendant pleaded non est factum, and on a special verdict judgment was given in the King's Bench for the plaintiff, but it was reversed by the whole Court in the Exchequer Chamber. Hyckman v. Shotbolt (a), and Field v. Winslow, were adjudged in a similar manner. The authorities were fully considered, and the same rule of law recognized in Evans v. King (b). Then, as there is nothing to shew that the name of Francis may not have been an additional name taken at confirmation, as in Sir Francis Gawdy's case, or a surname granted by royal licence, the Court will make every intendment in favour of the instrument. [Parke, B. Since the Reformation, a party cannot take a second christian name at confirmation, that could only be done in Roman Catholic times. In the reformed church, it is true, that the bishop lays hands on the person to be confirmed, but he does not give him any additional name.] But at all events this objection is not available under the plea of non est factum. Since the rule of H. T., 4 Wm. 4, tit. Covenant and Debt (c), that plea only denies the execution in point of fact. Erle and Ball, in support of the rule. It is conceded that a person cannot have two christian names, but in this case the plaintiff should have declared against the defendant, by the name in which he executed the bond; for it is an established rule of law, that if a party executes a deed by any name, he is estopped from denying that it is his true one. Hyckman v. Shotbolt, Panton v. Chowles (d), Watkins v. Oliver (e), Maby v. Shepherd (ƒ), Linch v. Hook (g), Evans v. King (h), Gould v. Barnes (i), (a) Dyer, 279 b. (b) Willis, 554. (c) Ante, Vol. 2, p. 323. (d) Moore, 897. (e) Cro. Jac. 558. (f) Cro. Jac. 640. (h) Willis, 554. (i) 3 Taunt. 504. |