1840. BRANOKER v. trespass which was not committed in the close mentioned in the plea. A new assignment has been said to be exactly like a new count in a declaration. If, in an action for trespass to goods, there had been two MOLYNEUX. counts, the plaintiff might have proved a second trespass to the same goods in support of the second count. So here, it is no answer to say that the bales of cotton mentioned in the plea and in the new assignment, are in fact the same bales. Suppose the defendant had pleaded to the new assignment that there were no other goods than those mentioned in the plea, it would have been sufficient for the plaintiff to prove the existence of a different ground of action from that mentioned in the plea. For this purpose Bolton v. Sherman is directly in point. It would have been no answer to a new assignment of another conversion of bales of cotton, to plead that the bales which formed the subject of the conversion were the same. The words "other and different" merely denote that the bales are different in the circumstances attending them, which is the material question between the parties, and not the identity or non-identity of the cotton seized by the defendant under a claim of title as mortgagee of the ship, with cotton supposed to have been seized under a right to stop in transitu by an unpaid vendor. The plaintiff may never have heard of the transaction detailed in the plea; all that he knows is, that he is seeking to recover the value of certain property which the defendant claimed and seized as the mortgagee of the ship. [Erskine J. My brother Parke made an observation which justifies your view of Bolton v. Sherman. Tindal C. J. In that case there were three newly acquired horses, to which the title set up by the defendant did not apply.] The principle, it is submitted, is the same. If the plaintiff was not bound to assert that there is a second conversion, so he was not bound to shew that the bales were different. [Bosan 1840. BRANCKER ย. quet J. The words of the new assignment are, "and also for that the defendant converted and disposed of the said last-mentioned bales of cotton on other and MOLYNEUX. different occasions and times, and for other and different purposes, &c. Tindal C. J. The defendant might have pleaded not guilty as to such part as relates to other goods, and have set up title, as mortgagee, to the rest. Here, it is put in so uncertain a way that it is difficult to know how to deal with it.] TINDAL C. J. My opinion in this case rests upon the manner in which the words of the new assignment are capable of being construed. I do not say the words "other and different are to be treated as having no meaning; but it seems to me, that the new assignment is capable of being divided into two distinct parts: one part referring to other and different bales of cotton from those mentioned in the plea, the other relating to a different conversion of the same bales as those mentioned in the plea. The first part of the new assignment states that the plaintiffs issued their writ and declared thereon, not for the supposed conversion in the fourth plea mentioned, but for that the defendant converted and disposed of to his own use divers bales of cotton, of which the plaintiffs, as assignees, were lawfully possessed, &c., different to and other than the said bales of cotton in the introductory part of that plea mentioned, to wit, 304 bales of cotton of great value, &c. It then goes on thus; "and also for that the defendant converted and disposed of the last-mentioned bales of cotton on other and different occasions and times, and for other and different purposes, and in another and different manner than in the said plea mentioned in manner and form &c., and which grievances above newly assigned are other and different grievances from and than the said supposed grievances in the said last plea mentioned, and therein attempted to be justified, 1840. BRANCKER V. wherefore, &c." I cannot but understand these words as referring to the bales mentioned in the plea, and as importing, that the plaintiffs are suing for a different conversion of the same cotton as that spoken of in the MOLYNEUX. plea. What the plaintiffs mean by the new assignment appears to be this, "We go, not for the conversion mentioned in the fourth plea, but for a conversion of other and different bales of cotton, and also for a conversion of bales of cotton upon another and a different occasion." What can that mean but that the plaintiffs are going for a different conversion of the same goods? The only difficulty attending this construction is caused by the words "the last-mentioned." But though in strict grammatical construction these words would refer to the 304 bales to which the first branch of the new assignment applies, I think that they may fairly be referred to the 304 bales mentioned in the introductory part of the plea. The cause must go down to a new trial. Perhaps the new assignment might be open to a special demurrer, and therefore the plaintiffs, if they think proper, may amend it on payment of costs; but if they choose to proceed to a new trial upon the present record, they should be allowed to do so. It is probable, if the case is tried again, that the defendant may take such proceedings as will bring it before a court of error; for there is certainly great difficulty in coming to a decision upon it. BOSANQUET J. (after stating the new assignment.) Upon the fourth issue a verdict was directed for the defendant, upon the ground that the bales of cotton, which formed the subject of the new assignment, were not, as in that new assignment is alleged, different from and other than the bales of cotton to which the justification is pleaded. What, then, is the true construction 1840. BRANCKER v. MOLYNEUX. of this new assignment? Upon this point I feel considerable difficulty; but I am inclined to concur in the construction put upon it by my Lord Chief Justice. The first part of the new assignment down to the words "and also," clearly relates to a conversion of other and different bales of cotton. The difficulty arises upon the words, "the last-mentioned," in the clause which follows, which, it is contended, necessarily connects the allegation in the latter part of the new assignment with the 304 bales mentioned in the former part, and that was the view of the question which first presented itself to my mind. But, upon reflection, it appears to me that a more rational construction of the clause would be, that the plaintiffs complain of the conversion of other goods than those mentioned in the plea; and that they also complain of the conversion of the goods mentioned in the plea on the other and different occasions, and that the words, "the last-mentioned bales," are to be considered as referring, not to the bales of cotton mentioned immediately before, but to the bales of cotton mentioned in the introductory part of the plea. It is not necessary to state whether the new assignment would have been good upon special demurrer. I must repeat it is not without difficulty that I have come to the conclusion at which I have arrived upon the construction of this strangely constructed new assignment. COLTMAN J. The new assignment, would, I think, have been clearly bad upon special demurrer. The words "the last-mentioned" would, according to the obvious and plain rule of grammatical construction, refer to the 304 bales which are lastly mentioned in the clause immediately preceding. But such a construction would introduce this inconsistency. The bales mentioned in the first part of the new assignment are there described as other than the bales mentioned in the plea; but in the second branch of the new assignment the bales are stated to have been disposed of on other and different occasions and times than, and in a different manner from, those in the plea mentioned; which imports that the bales thus subjected to another and different conversion, were the same bales as those mentioned in the plea. (a) The last allegation in the new assignment can therefore refer only to the bales to which the justification is pleaded. This inconsistency would have been a good ground of special demurrer (6); but the defendant has pleaded over, and we are at liberty to look at what the parties substantially meant, as to which I agree with my lord and brother in thinking the new assignment is divisible in the (a) Thus, if in trover for a horse, the defendant pleads that the conversion consisted in riding a black horse hired by him from the plaintiff, and the plaintiff new-assigns the conversion of a grey horse, and also the conversion of the grey horse on other occasions, and in a different manner than and from those mentioned in the plea, it might not unreasonably be inferred that the black horse, and not the grey horse, was really meant, inasmuch as the plea had not alleged a conversion of the grey horse on any occasion, or in any manner. (b) The ground of special demurrer would have been, the ambiguity introduced into the new assignment by the words "the last-mentioned." In the view presented to the court by the Solicitor-General, in his argument on moving for the rule (suprà, 718.), this ambiguity would appear to be immaterial; and although no judgment was pronounced by the court upon that argument, yet the statement that the new as- It was not suggested in the 1840. BRANCKER บ. MOLYNEUX. |