Jennings against Rundall
| Jurisdiction | England & Wales |
| Judgment Date | 12 November 1799 |
| Date | 12 November 1799 |
| Court | Court of the King's Bench |
English Reports Citation: 101 E.R. 1419
IN THE COURT OF KING'S BENCH.
Discussed, Walley v. Holt, 1876, 35 L. T. 631. Referred to, Earle v. Kingscote [1900], 1 Ch. 208; [1900], 2 Ch. 585.
[335] jennings against rundall, Tuesday, Nov. 12th, 1799. 'A plaintiff cannot convert an action founded on a contract into a tort, so as to charge an infant defendant; therefore where the plaintiff declared that at the defendant's request he had delivered a mare to the defendant to be moderately ridde,n, and that the defendant maliciously intending, &e. wrongfully and injuriously rode the mare, so that she was damaged, &c. it. was holden that the defendant might plead his infancy in bar, the action being founded on a contract. [Discussed, Walley v. Holt, 1876, 35 L. T. 631. Referred to, Earle v. Kingscote [1900], 1 Ch. 208; [1900], 2 Ch. 585.] The first count in this declaration stated, that the plaintiff on, &c. at the instance (a) Vid. Snee v. Prescot, 1 Atk. 248, accord. 1420 JENNINGS 17. BUNDALL 8 T. R. 336. and request of the defendant, delivered to the defendant a certain mare of the plaintiff, to be moderately ridden by the defendant; yet that the defendant, contriving and maliciously intending to injure the plaintiff, whilst the mare was in the defendant's custody under such delivery, and before the same was returned to the plaintiff on, &c. wrongfully and injuriously rode, used, and worked the said mare in so immoderate, excessive, and improper a manner, and took so little and such bad care thereof, that, by reason of such immoderate, &c. riding, &c. the said mare became, and was greatly strained, damaged, &c. In the second count it was alleged, that the plaintiff, at the instance and request of the defendant, let to hire, and delivered to the defendant, a certain other mare, to go and perform a certain reasonable and moderate journey, &c. yet that the defendant contriving, &e. wrongfully and injuriously rode and worked the said mare a much longer journey, &c. There was also a count in trover for two mares. The defendant pleaded his infancy to the two first counts; to which plea the plaintiff demurred. Marryat, in support of the demurrer (after observing that it was immaterial whether or not infancy could be pleaded to the second count, because, it being pleaded to both counts, if it were a bad plea as to either count, the whole plea was bad) contended that, as the first count was not founded on a contract but on a tort, the...
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