France and Hill v Joseph White, William Robinson, and Hannah, his Wife, and five Others

JurisdictionEngland & Wales
Judgment Date27 June 1840
Date27 June 1840
CourtCourt of Common Pleas

English Reports Citation: 133 E.R. 526

IN THE COURT OF COMMON PLEAS

France and Hill
and
Joseph White, William Robinson, and Hannah, his Wife, and five Others

S. C. 1 Scott, N. R. 604; 9 L. J. C. P. 337; 4 Jur. 746.

[731] france and hill v. joseph white, william robinson, and hannah, his Wife, and five others. June 27, 1840. [S. G. 1 Scott, N. E. 604; 9 L. J. C..P. 337 ; 4 Jur. 746.] If in assumpsit against A., and B., his wife, the declaration allege that the defendants promised, without stating whether the promises were made before or during the marriage, it is bad on special demurrer, per Maule J.-But where, to 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 (supra, 718), this ambiguity would appear to be immaterial; and although no judgment was pronounced by the court upon th*t argument, yet thje statement that the new assignment would have been bad upon special demurrer, seems to imply that the court did not adopt the view taken by the Solicitor-General. It was not suggested in the course of the argument, that the new assignment was open to any objection on the ground of departure. The declaration speaks of divers, to wit, 400 bales and 400 bags of cotton,-in other wqrds, of a quantity of cotton not exceeding 400 bales and 400 bags. The new assignment, according to the construction put upon it by the majority of the court, speaks of a conversion of two parcels, one, consisting of 304 bales not mentioned in the plea,, the other, consisting of the 304 bales in the plea; but the conversion of both parcels may have taken place at the same time, so as to constitute the one conversion of the declaration, and the quantity of cotton in the declaration seems to be sufficiently large to cover both parcels. (a) Cowling here suggested that he had made the point at the trial; in what stage of the cause, did not appear. (&) It seems not improbable that the two branches of the new assignment may have become accidentally transposed, and that the draft may have originally stated that the plaintiffs sued, not for the conversion mentioned in the plea, but for that the defendant converted and disposed of the last*mentioned bales (i.e. the 304 bales mentioned in the introductory part of the plea) on other and different occasions, &c., and also for that the defendant converted and disposed of, to his own use, divers bales of cotton, of which, &c., different from and other than the bales in the introductory part of the plea mentioned. No alteration was however made in the pleadings, and the cause was tried again before Eolfe B. at Liverpool, at the ensuing Summer assizes, when a verdict was directed and found for the defendant upon the third issue, on the ground that the conversion complained of was the refusal to deliver up the cotton on request, and that at that time the cotton was already in the possession of the defendant, by the seizure of the vessel and cargo, under a claim made ly him as mortgagee of the vessel. In the following term a rule nisi was obtained by Wilde, Solicitor-General, to set aside the verdict for misdirection. This rule appears to have been obtained, not on the ground that the defendant could not get rid of one conversion by setting up possession acquired by a previous conversion, equally tortious, and actionable, and equally within the declaration, but on the ground that the legal possession followed the legal property. Vide post, vol. 2. In a former action between these parties the defendant had obtained judgment as in case of a nonsuit. 4 MAN. & G...

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