Davenport v Davies
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1836 |
| Date | 01 January 1836 |
| Court | Exchequer |
English Reports Citation: 150 E.R. 562
EXCH. OF PLEAS.
S. C. 1 Tyr. & G. 931; 2 Gale, 119; 5 L. J. Ex. 214.
[570] davenport v. davies. Exch. of Pleas. 1836.-The plaintiff's bill of particulars stated the cause of action to be for the amount of stakes deposited in the defendant's hands by the plaintiff and R., and won by the plaintiff of It.:- Held, that he could not recover the amount of his own stake, on proof that he had re-demanded it from the defendant before it was paid over. [S. C. 1 Tyr. & G. 931; 2 Gale, 119; 5 L. J. Ex. 214.] Aasumpsit for money bad and received. Plea, non assumpsit. At the trial before Lord Denman, C. J., at the last Liverpool Assizes, the plaintiff' sought to recover the sum of 131,, which had been deposited in the hands of the defendant, as stakeholder, as the amount of two wagers made by the plaintiff with one Roberts, one of 101. toll., and the other of 11. even, " that the plaintiff' was worth 30001., and he would prove it the next morning;" or, at all events, the sum of 111., which was the stake deposited by the plaintiff', and which, it was alleged, he had re-demanded before it wasipaid over by the defendant. The particulars of demand were as follow :-"This action is brought to recover the sum of 131.; viz., 111. deposited by the plaintiff', and 21. deposited by one Roberts, in the hands of the defendant as a stakeholder, and wot* of the said Roberts by the plaintiff, on or about the 15th of November last." The plaintiff failed to prove that he had won the wagers (on which point there was much coniicting evidence), but proved a demand of his stake of 101. It was objected, for the defendant, that the plaintiff' could not recover the stake so deposited under the abofe particular. The Lord Chief Justice was of that opinion, but left the case to the jury, who found a verdict for the plaintiff, damages 101., leave being reserved to-the defendant to move to enter a nonsuit. In Easter Term, W. H. Watson obtained a rule accordingly,(ffl) against which Wightnian now shewed cause. The variance between the particular and the real claim is quite immaterial: the [571] defendant must have known whether the money wasjn fact demanded, and on what ground, and could not therefore have been misled. [Lord Abinger, C. B. In your particular you claim the wager as won ; hu comes thenefore to shew that you did not win, not that you did not...
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