1840. BRANCKER บ. Here, the plaintiff says, "I go for cotton other than cotton delivered to Toole on board a general ship." Wilde S.G. referred also to Bolton v. Sherman (a). Upon the law MOLYNEUX. as laid down in that case, it was determined, in the present case, to new-assign rather than reply de injuriâ. (b) He also referred to Oakley v. Davis (c), cited (a) 2 M. & W. 395. (b) In actions for wrongs, done to the person, the reputation, or the property of the plaintiff, as in actions of trespass, replevin, and case for malfeasance, if the defendant's plea consist merely of matter of excuse, setting up no authority from the plaintiff, and no command from a third person, and stating no matter of record, the plaintiff may answer by a general denial of the truth of the plea, viz. by replying that the act complained of was done by the defendant of his own wrong, a , and without the cause alleged in the plea. Crogate's Case, 8 Co. Rep. 66., Doctr. Plac. 113.; Jones v. Kitchen, 1 B. & P. 76.; Selby v. Bardons, 3 B. & Ad. 2.; Bardons v. Selby, in error, 3 Tyrwh. 431., 1 C. & M. 500., 9 Bingh. 756.; Carnaby v. Welby, 8 A. & E. 872., 1 P. & D. 98., 1 Wms. Saund. 244. c. (7), 2 Wms. Saund. 295. (1). If The replication de injuriâ suâ propriâ absque tali causâ does not appear to have been allowed in actions on the case for a mere nonfeasance. in an action for not repairing fences, whereby the plaintiff's cattle strayed into the defendant's land, the defendant were to plead matter of excuse, it would seem extraordinary that it should be replied that the defendant, of his own wrong, and without the cause alleged, did not repair the fences; and the inartificial character of the double negative, would be disguised only, and not removed, by altering the wording of the plea by saying that the defendant, of his own wrong, committed the grievances mentioned in the declaration. Still less was the replication de injuriâ allowed in actions of covenant or debt. When the new rules of pleading, made in H. 4. W. 4., came into operation, it was found that the compelling parties, who relied upon a special defence, to state that defence in the form of a special plea, frequently placed the plaintiff in actions of assumpsit in a very difficult position, for which the rules had made no provision, as they are silent as to allowing plaintiffs to reply double, or to reply so as to put in issue the entire plea. To remedy this omission, the courts have of late allowed plaintiffs to reply de injuriâ to such pleas in assumpsit. The change bas been effected without reference to the act of parliament, and therefore without complying with the conditions which must have been observed if the judges (c) 16 East, 82. BRANCKER V. in Bolton v. Sherman and Norman v. Wescombe. (a) 1840. Full effect is given to the plea, to which the plaintiffs have replied by a new assignment, when it is held that the plaintiffs are bound to prove a cause of action perfectly distinct from that which is attempted to be justified by the plea. Whether the cause of action is connected with the same subject-matter or not, is quite had considered it necessary to resort to the provisions of the statute. The permission to reply de injuriâ in an action ex contractu, appears to have been first granted in the court of Exchequer. Vide Noel v. Rich, 2 C. R. & M. 360.; Isaac v. Farrar, Tyrwh. & G. 281., 1 Mees. & Welsb. 65.; Elwell v. Grand Junction Company, 5 Mees. & Welsb.669. The practice has since been recognized in Griffin v. Yates, 2 New Cases, 579., 2 Scott, 845., in this court; and in K.B. in Watson v. Wilks, 5 Adol. & Ell. 237.; Reynolds v. Blackburn, 7 Adol. & Ell. 161. Nor is this course of pleading likely to be disturbed. The only mode of taking the opinion of a higher tribunal upon the question, whether the courts have or have not exceeded their authority, and whether they ought not have resorted to the powers given by 3 & 4 W. 4. c. 42., appears to be by a special demurrer for duplicity; but under the new rules of pleading, H. 4. W. 4., which have a clear legislative sanction, the judges have an unlimited power of setting aside any demurrer, general or special, as frivolous, under which category would probably be included a de to murrer, which should have for its object to call in question a course of pleading which has now for some years been established in practice. It seems, indeed, to be more probable that the rule will be extended to other actions ex contractu, as to covenant and debt, which stand in pari ratione. It is true that in covenant, and in debt on specialty, in which actions there is no general issue, the same difficulty was imposed upon plaintiffs before the new rules, as in assumpsit under those rules, but the inconvenience being of less frequent occurrence, was not equally felt. Perhaps a replication of infregit conventionem, de injuriâ suâ propriâ absque tali causâ would, but for the practice of replying that the defendant broke his promise, de injuriâ, &c., have been considered as equally objectionable with a plea of non infregit conventionem. It may however be observed, that in the plea of non infregit conventionem the two negatives form part of the issue, whereas upon a replication of infregit conventionem, de injuriâ &c. the breach of covenant having been admitted by the plea, the talis causa only is in issue. (a) 2 M. & W. 349. 1840. BRANCKER V. immaterial, provided the goods are other and different goods in respect of all the circumstances, and in espect of cause of action upon which the plaintiffs sue. The MOLYNEUX. statement, which is to be found in some cases, that upon a new assignment the plaintiff is bound to prove two trespasses or grievances, when those cases come to be examined, amounts to no more than this, that a different case must be proved from that which the defendant has attempted to justify. Those cases furnish no ground for saying, that a new assignment does more than give the defendant the benefit of his answer to the supposed cause of action, so as to exclude the plaintiff from afterwards resorting to such cause of action. It is true that in some forms of new assignment, the cause of action newly assigned will, of necessity, amount to an admission of the statements in the plea; as where, to a declaration quare clausum fregit, the defendant sets up a right of way, and the plaintiff replies extra viam, deviation necessarily implying the existence of a way from which the party has deviated. In other cases the defendant may plead matters respecting which the plaintiff may have no knowledge, and which, as they are unconnected with the grievance for which he sues, he ought not to enter upon, either to admit or to deny. A plaintiff, in new-assigning, may state, that he sues, as well for the cause of action to which the plea is intended as a justification, as also upon another and different cause of action, both being included in the declaration, either impliedly or by express words; or he may wholly disclaim the cause of action set forth in the plea, and insist that it forms no part of his declaration, and that his declaration, in truth, applies to a totally different grievance, and to goods dealt with in a totally different manner. A rule nisi was granted in the alternative, for a new trial, or for a new trial on payment of costs with liberty to amend. The rule was, however, drawn up, and served merely for a new trial, leaving it to the court to grant a rule absolute in this general form, or with the conditions above mentioned. (a) Against this rule, Channell Serjt. now shewed cause. The bankrupts had not paid for the cotton: their agent, who bought the cotton for them, had. There was, therefore, a clear right to stop in transitu. The plea accordingly confesses a conversion, and avoids it by a statement of the circumstances which gave the right to stop in transitu, and of the fact of a stoppage in transitu having taken place. It should be borne in mind that the question in this case arises, not upon a replication traversing the plea, but upon a replication by way of new assignment. It was admitted at the trial that there was no transaction between these parties coming within the declaration, except one transaction relating to 304 bales of cotton shipped on board of the Diamond. The cotton, therefore, in the plea and in the replication is the same; the statement as to the circumstances under which that cotton is supposed to have been detained, is different. It has been contended for the plaintiff, that there may be two conversions of the same cotton. This is not disputed; but the question is, whether this replication does set out a different conversion of the same cotton. The object of a new assignment is, to make that clear which was left in doubt by the declaration, or which was made doubtful by the plea, and therefore the statement which it contains should be precise and accurate. The authorities upon this subject, up to a certain time, are collected in the notes to 1 Wms. Saund. 299. b. The principle of new assignments is to be deduced from the (a) The argument in support of the application for a rule nisi is given thus fully because the Solicitor-General was not 1840. BRANCKER v. MOLYNEUX. 1840. BRANCKER บ. cases of new assignment in action for trespass to land. If a right of way be pleaded, and the plaintiff replies that the trespasses were committed in another and a MOLYNEUX. different close, it lies upon the plaintiff to shew that there is another close within the description contained in the declaration. If extra viam is replied, a trespass out of the way stated in the declaration, might be proved by the plaintiff. Unless some difference in this respect can be shewn to exist between land and goods, Bolton v. Sherman (a) is an express authority for the defendant; Norman v. Wescombe (b), Pratt v. Groome (c), Oakley v. Davis (d), Darby v. Smith (e), Hall v. Middleton. (g) [Tindal C. J. Is not the new assignment capable of a double construction? "Last mentioned" may be referred to the bales mentioned in the plea.] The position of the words "last-mentioned" seems to preclude its being so applied. (h) Bompas Serjt. (with whom was Wilde Solicitor-General,) in support of the rule. Upon this new assignment, it is competent to the plaintiffs to shew either a conversion of other bales, or a different conversion of the same bales. If the common bar had been pleaded, the plaintiff would have been bound only to shew a trespass in the place newly assigned. Had the plea of liberum tenementum described the close, the plaintiff, under the new assignment, must have shewn a (a) Suprà, 720. (d) Suprà, 720. (g) 5 N. & M. 410., 4 A. § (h) Not only are the first newly assigned bales the next antecedent to the word "lastmentioned," but those bales are the substantial subject of the first grievance newly assigned. If, therefore, the first branch of the new assignment had even concluded with a reference to the bales mentioned in the introductory part of the plea, so as to make those bales the bales last referred to; the others might still have been considered as coming within the words "last-mentioned." |