Bowdell against Parsons
| Jurisdiction | England & Wales |
| Judgment Date | 24 November 1808 |
| Date | 24 November 1808 |
| Court | Court of the King's Bench |
English Reports Citation: 103 E.R. 811
IN THE COURT OF KING'S BENCH.
Referred to, Frost v. Knight, 1870-72, L. R. 5 Ex. 328; 7 Ex. 111.
bowdell against parsons. Thursday, Nov. 24th, 1808. Where a request to the defendant to do an act is necessary to be alleged in order to give the plaintiff his cause of action; and it is alleged, but without a particular venue, (there being a general venue laid in the preceding part of the declaration;) such omission cannot be taken advantage of in arrest of judgment since the stat. 4 Ann. c. 16, s. 1, being mere matter of form, available only upon special demurrer: and this, though judgment passed by default, on which a writ of inquiry was executed. And where, in consideration of the purchase of hay by the plaintiff of the defendant, the latter promised to deliver to and suffer the plaintiff to take it away as he wanted it, when requested, an allegation that the defendant, after suffering the plaintiff to take away a part', sold and disposed of residue to other persons, supersedes the necessity of alleging a request to deliver, &e. the residue. [Eeferred to, Frost v. Knight, 1870-72, L. E. 5 Ex. 328; 7 Ex. 111.] The first count of the declaration stated, that whereas on the 10th May 1808, at Ware in the county of Hertford, in consideration that the plaintiff at the request of the defendant had purchased of him a stack containing twelve loads of hay, at the rate of 51. 10s. per load, to be therefore paid by the plaintiff to the defendant, and (a) Bex v. St. Mary the Less, Durham, 4 Term Eep. 477. (5) 1 Bos. & Pull. 365. 812 BQWDBLL V. PARSONS 10 EAST, 360. which stack was to be taken away by the plaintiff as he might want it, the defendant undertook and promised the plaintiff that he would deliver to and suffer him to take away the same, as he might want it, when he should be thereunto requested. And the plaintiff averred, that though the defendant did deliver to and suffer the plaintiff to take away one load of the said hay which was then and there paid for by the plaintiff at the rate aforesaid; and although the plaintiff was ready and willing to have taken away the residue and to have paid for the same, &c.; yet the defendant, not regarding his said promise and undertaking, did not nor would deliver to or suffer the plaintiff to take away the residue of the said stack, although he was requested by the plaiptiff so to do; but has always hitherto refused and still refuses ; and on the contrary afterwards sold and disposed of the said residue [360] thereof to other persons, without the consent and against the will of the plaintiff, and the said residue of the hay still is wholly undelivered to the plaintiff; and by means of the premises the plaintiff lost great profits, &c. and was obliged to buy other hay at an advanced price, to wit, at Ware aforesaid. The second...
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