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![handle is hein.slavery/ssactsengr0309 and id is 1 raw text is: TURNER V. MASON
which may be given in evidence under the declaration, but justifies a conversion by
seizure only; and the quw sunt eadem is mere form, and does not cure the objection.
Unthank, in reply. Acranan v. Cooper (10 M. & W. 585), which may be referred
to as an authority against this plea, is distinguishable, because there there was no
admission at all of the conversion complained of, but a sort of denial of a conversion,
by a special statement that the conversion complained of was a demand and refusal,
which is no more than evidence of a conversion. But Morant v. Sign is a direct
authority in favour of this plea. Evidence of the seizing and taking alleged therein
would clearly have been evidence of an actual conversion, under riot guilty. It does
not appear (for this purpose) that the transaction [111] was between two tenants in
common: the colour is to the contrary. [Parke, B. Undoubtedly, Morant v. Sign
is exactly like this case; and according to that decision, the plea is a good answer
prima facie.]
POLLOCK, C. B. It seems to me that the plea is good and the replication bad.
There is little or no doubt what the pleader meant : but, when looked at with the
technical nicety which is requisite on special demurrer, no doubt there is an ambiguity.
The words may mean to refer to all the goods mentioned in the declaration ; and, as
this ambiguity is pointed out as cause of demurrer, we must bold the replication to
be insufficient.
PARKE, B. I am of the same opinion. I have no doubt what the pleader meant,
but he has so expressed his meaning as to lead to an ambiguity, and that is pointed
out by the special demurrer. The replication, being read as Mr. Unthank reads it,
is perfectly intelligible. The replications are, therefore, bad for this ambiguity.
With respect to the plea, it is a good answer, on the authority of Morant v. Sign, which
is precisely the same case. It does riot appear that it is a case of tenancy in common
between the plaintiff and the defendant, but merely that colour is given to the plaintiff.
ALDERSON, B. I am of the same opinion. The plea is good, on the authority of
Morant v. Sign. As to the replication, I think it is bad, for the reason alleged as
cause of demurrer; and I have no doubt, if this objection had been passed over, that
the contest at the trial would have been whether the plaintiff was not entitled to have
the larger issue proved.
ROLFE, B., concurred.
Judgment for the defendant.
[112] TURNER V. MASON. May 6, 1845.-Assumpsit for the wrongful dismissal of a
domestic servant, without a month's notice or payment of a month's wages. Plea,
that the plaintiff requested the defendant to give her leave to absent herself from his
service during the night, that he refused such leave, and forbade her from so
absenting herself, and that against his will she nevertheless absented herself for
the night, and until the following day, whereupon he discharged her. Replication,
that when the plaintiff requested the defendant to give her leave to absent
herself from his service, her mother had been seized with sudden and violent
sickness, and was in imminent danger of death, and believing herself likely to
die, requested the plaintiff to visit her to see her before her death, whereupon
the plaintiff requested the defendant to give her leave to absent herself for that
purpose, she not being likely thereby to cause any injury or hindrance to his
domestic affairs, and not intending to be thereby guilty of any improper omission
or unreasonable delay of her duties; and because the defendant wrongfully and
unjustly forbade her from so absenting herself for the purpose of visiting her
mother, &c., she left his house and service, and absented herself for that purpose
for the time mentioned in the plea, the same being a reasonable time in that
behalf, and she not causing thereby any hindrance to his domestic affairs, nor
being thereby guilty of any improper omission or unreasonable delay of her
duties, as she lawfully might, &c. :-Held, on demurrer, that the plea was good,
as shewing a dismissal for disobedience to a lawful order of the master, and that
the replication was bad, as shewing no sufficient excuse for such disobedience.
[S. C. 2 D. & L. 894; 14 L. J. Ex. 311.]
Assumpsit. The declaration stated, that, in consideration that the plaintiff, at
the request of the defendant, would become the servant of the defendant, to wit, in the
14 M. & W. ill.](ViewImageLocal?handle=hein.slavery/ssactsengr0309&div=1&collection=&method=preview&ext=.png&size=3)