Hopkins v Francis
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1845 |
| Date | 01 January 1845 |
| Court | Exchequer |
English Reports Citation: 153 E.R. 279
IN THE COURTS OF EXCHEQUER AND EXCHEQUER CHAMBER
S. C. 2 D. & L. 664; 14 L. J. Ex. 207; 9 Jur. 259.
[668] hopkins v. francis. Jan. 30, 1845.-Where issue is joined on nul tiel record, and notice of trial given, and the plaintiff moves for judgment on the pro-duetion of the record, no rule for judgment is necessary. Such rule is necessary only where the existence of the record is alleged by the defendant.-Where a declaration stated generally, that the plaintiff, in her Majesty's Court of Exchequer, by the consideration and judgment of the said Court, recovered against the defendant, &c., and the record produced shewed the judgment to have been obtained by default in payment of a debt by instalments, as directed by a judge's order:-Held, that it was no variance.-Semble, also, that, if there had been a variance between the pleadings and the record produced, it might be amended under Lord Tenterden's Act, 9 Geo. 4, c. 15. [S. C. 2 D. & L. 664; 14 L. J. Ex. 207; 9 Jur. 259.] This was an action of debt on a judgment of this Court, to which the defendant pleadefl mil tiel record. The plaintiff joined issue, and gave notice of! trial by the record. (a) The Lord Chief Baron afterwards referred the .Reporters to the case of William* v. Eaat India Company, 3 East, 192, which had not been cited upon the argument. It was there held, that, wherever the not giving notice of a fact would be criminal, the notice would be presumed ; and that, in all cases where the affirmative would be presumed, the party pleading no notice must give some evidence of the negative, and that the best evidence of which the nature of the thing was capable. 280 HOPKINS V. FRANCIS 13 M. &W.669. ' Lush, on behalf of the plaintiff', moved for judgment on the production of tile record. Pearson, for the defendant, took two objections. First, there has been no rule for judgment, which there ought to have been according to the practice of this Court: 2 Tidd's Pr. 743. In 2 Chitty's Arch. Pr. 670, the practice is thus stated :-" When the plaintifl' replies to a plea of mil tiel record, he must, in the Queen's Bench, give a ndtice in writing to the defendant's attorney or agent that he will produce the record on the day therein mentioned. In the Common Pleas and Exchequer1, he obtains a rule for judgment, and serves a copy on the defendant's attorney or agent." Here the plaintiff has followed the practice of the Queen's Bench instead of this...
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Bradley v Gray
...the Queen herself." If there is in this respect a variance, it may, according to the opinion of Alderson, B., in Hopkins v. Francis (13 M. & W. 668, 2 D. & L. 664, 14 Law J., Exch. N. S. 207), be amended under the 9 Gr. 4, c. 15. If it be possible so to do, the court will read the plea in s......