Cocks and Others v Brewer and Wife
| Jurisdiction | England & Wales |
| Judgment Date | 19 January 1843 |
| Date | 19 January 1843 |
| Court | Exchequer |
English Reports Citation: 152 E.R. 711
EXCH. OF PLEAS.
S. C. 2 Dowl. (N. S.) 759; 12 L. J. Ex. 225; 7 Jur. 218.
[51] cocks and others v. brewer and wefe. Exch. of Pleas. Jan. 19, 1843.- In an action of debt on a judgment brought against L. B. and E. his wife, the declaration alleged that the plaintiff, on &c., recovered judgment against the said E. by the name of E. R., in an action on promises, which promises were made by her the said E. whilst she was sole and unmarried. Plea, non tiel record. On the judgment being produced in Court, it appeared to have been recovered against E. E. and others :-Held, this having been objected to on the ground of variance, that such objection was invalid; and that the objection, if any, should have been taken by plea in abatement. [S. C. 2 Dowl. (N. S.) 759; 12 L. J. Ex. 225; 7 Jur. 218.] Debt on a judgment against Llewelyn Brewer and Elizabeth his wife. The deelaration stated that whereas the plaintiffs theretofore, to wit, on the 31st May, 1842, COCKS 1). BREWER 11M.&W.52. had recovered, by the consideration and judgment of the said Court of Exchequer, against the said Elizabeth, by the name of Elizabeth Eogers, in an action on promises, 15.321. 9s. 6d., which said promises were so made by the said Elizabeth when she was sole and unmarried. Plea, mil tiel record, which was traversed by the replication. The plaintiffs having given notice of producing the record and applying for the judgment, and the record being produced accordingly, it appeared that the original action had been brought and the judgment recovered against Elizabeth Rogers and several other persons who were defendants with her. j Whatel^y, on the part of the defendants, contended that they were entitled to judgment, on the ground that, the action having been brought not against Elizabeth Rogers alone, but against her and several other persons, there was a fatal variance between the record declared on and the one produced. The plaintiff's, in pleading this judgment, should have stated it to have been obtained against Elizabeth Rogers and others. The rule is thus laid down in Com. Dig., "Kecord," (C.): "If a man pleads nul tiel record, and there be a material variance between the record itself and the record pleaded, it will be a failure of the record." And these instances are given : " If the name of any party, his abode, or addition varies," " or there are more or fewer persons parties." [Parke, B. The question is whether the defendants ought not to have pleaded in abatement.] The distinction is, where the [52] record is set out as mere matter of inducement, in which case less particularity is required, and...
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