cause it was contended on the part of the defendant, that 1840. the plaintiffs, in support of their new assignment, were bound to shew a conversion of bales of cotton beyond BRA

0. the 304 bales, or of bales which had not been shipped MOLYNEUX. on board the Diamond. This, they were, of course, unable to do, and the learned judge being of opinion that the objection was well founded, directed a yerdict for the defendant on the fourth issue. .

Wilde, Solicitor-General, now moved for a new trial on the ground of misdirection. It is submitted that an effect was given to the new assignment, which does not properly belong to it. A good deal of embarrassment and difficulty arises in dealing with the cases in which the effect of a new assignment has been considered. It would certainly appear from many books, and par- . ticularly from 1 Wms. Saund. (a), as if, of necessity, under a new assignment, the plaintiff is bound to prove a different subject-matter, though of the same nature, from that stated in the plea, in respect of which it is supposed that a good justification has been pleaded. It is submitted that the whole effect of a new assignment is, to admit that the defendant in his plea has given a good answer to a supposed cause of action set forth in the plea. The defendant says, “ the grievance complained of in the declaration is of such a description, to which I give such an answer.” The new assignment neither admits nor denies the truth of that answer, but gives the go-by to it. The plaintiff says, “ I do not call you to account for any such grievance as that set forth in your plea, nor shall I investigate the truth of the facts which you set up by way of answer. You may have converted, and converted for the cause alleged, the cotton mentioned in your plea. The grievance which you have




supposed you were sued for, you may answer; but that is not the grievance in respect of which I am suing.” It seems difficult to imagine why the plaintiff should be taken to admit any part of such plea in bar, when his case consists in saying, “ You have not touched the grievance of which I complain ;" or why he should be supposed to know any thing about it. The plaintiff says in effect, “ You have answered correctly, for aught I know, a supposed cause of action, but the defence is not addressed to the cause of action upon which I claim to be entitled to sue.” When a plaintiff has thus given the go-by to the defence set up in the plea, he is obviously precluded from acting afterwards inconsistently with that course, by attacking the defendant on the cause of action stated in the plea. In this particular case the defendant says, “ You are suing me for an alleged conversion of cotton, which cotton I stopped in transitu.To this the plaintiff replies, “ I am suing you for no such conversion. Whether you have ever stopped cotton in transitu or not, is a matter which I do not trouble myself about. I am suing in respect of a conversion of 304 bales of a totally different description.” At the trial the plaintiff says, “ The conversion I charge you with is not that stated in your plea, and which you have attempted to justify; not a detention under the authority of T. B. Molyneur, the American shipper, claiming to stop in transitu ; it was the seizing under an alleged title in yourself as mortgagee, independently of any authority derived from the American shipper, when no such title existed. I, therefore, now claim to recover from you the value, not of any cotton which may have been stopped in transitu, but of cotton which you took possession of on board the Diamond, belonging to the estate of the bankrupts, and which, by your claiming title to, and assuming the dominion and authority over, and taking actual possession of, you con


verted. Thus the plaintiffs allow full effect to the plea; 1840. they leave the defendant perfectly unaffected by any charge of conversion accruing out of an alleged stoppage BRAN in transitu, and only seek to charge him in respect of MOLYNEUX. his conduct in relation to a transaction totally distinct from that stated in the plea. [Tindal C. J. The language of the new assignment is, that the defendant converted “ other and different bales of cotton ” to his own use.] The word “ other” does not there mean, in point of law, “ other bales of cotton,” but “ bales of cotton under circumstances totally different from those referred to in the plea:" Darby v. Smith. (a) In the present case, the delivery of the cotton on board of the Diamond was not a delivery to Toole with a view to a subsequent delivery to H. and F. after the yessel should have reached Liverpool, but an immediate delivery to H. and F. in Charlestown by placing it on board of a vessel sent by them to receive it ; Ogle v. Atkinson. (6) The plea alleges that the cotton was delivered to Toole as a third person, and states a stoppage in transitu before any delivery to H. and F. had taken place. The cotton referred to in the plea, therefore, is cotton delivered to Toole on board a general ship, and before delivery to H. and F. getting into the possession of the defendant; whereas the cotton in respect of which the action is brought, is cotton delivered, not to Toole, but to H. and F. through the hands of Toole, the master of the Diamond appointed by them, into their floating warehouse, and not into a general ship; which allegation is introduced into the plea for the purpose of disconnecting H. and F. with the delivery, the distinction being, between a delivery on board of the purchaser's own ship, which puts an end to the right of stopping in transitu, and shipping on board a general ship, which does not.

(a) 2 Mood. & R. 184.

(b) 5 Taunt. 759.; 1 Marsh. 323.


Here, the plaintiff says, “I go for cotton other than cotton

delivered to Toole on board a general ship.” Wilde S.G. BRANCKER 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. (6) He also referred to Oakley v. Davis (c), cited


(a) 2 M. & W.395.

B) In actions for wrongs, done to the person, the repu. tation, or the property of the plaintiff, as in actions of tres pass, 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, 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).

The replication de injuriâ sud propriâ absque tali causâ does not appear to have been allowed in actions on the case for a mere non feasance. If in an action for not repairing fences, whereby the plaintiff's cattle strayed into the defend ant'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.

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 BRANCKER

0. the plaintiffs are bound to prove a cause of action per- MOLYNEUX, fectly 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 murrer, which should have for resort to the provisions of the its object to call in question statute.

a course of pleading which has The permission to reply de in- now for some years been esta. juriâ in an action ex contractu, blished in practice. It seems, appears to have been first grant- indeed, to be more probable ed in the court of Exchequer. that the rule will be extended Vide Noel v. Rich, 2 C. R. of to other actions ex contractu, M. 360.; Isaac v. Farrar, as to covenant and debt, which Tyrwh. f. G. 281., 1 Mees. of stand in pari ratione. It is Welsb. 65.; Elwell y. Grand true that in covenant, and in Junction Company, 5 Mees. debt on specialty, in which ac

- Welsb. 669. The practice has tions there is no general issue, since been recognized in Grif- the same difficulty was imposed fin v. Yates, 2 New Cases, 579., upon plaintiff's before the new 2 Scott, 845., in this court; rules, as in assumpsit under and in K.B. in Watson v. Wilks, those rules, but the inconve5 Adol. & El. 237.; Reynolds nience being of less frequent V. Blackburn, 7 Adol. of El. occurrence, was not equally 161. Nor is this course of felt. Perhaps a replication pleading likely to be disturbed. of infregit conventionem, de in

The only mode of taking the juriâ sua propriâ absque tali opinion of a higher tribunal causâ would, but for the pracupon the question, whether the tice of replying that the defendcourts have or have not ex- ant broke his promise, de in. ceeded their authority, and juriâ, &c., have been considered whether they ought not to as equally objectionable with a have resorted to the powers plea of non infregit conventionem. given by 3 & 4 W. 4. c. 42.,. It may however be observed, appears to be by a special that in the plea of non infregit demurrer for duplicity; but conventionem the two negatives under the new rules of pleading, form part of the issue, whereas

H. 4. W. 4., which have a clear upon a replication of infregit legislative sanction, the judges conventionem, de injuriâ &c. have an unlimited power of the breach of covenant having setting aside any demurrer, been admitted by the plea, the general or special, as frivolous, talis causa only is in issue. under which category would (a) 2 M. & W. 349. probably be included a de

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