Slade's case John Slade bring a action upon the case in the king bench against  Humphrey Morley which plea begin hill Elizabeth rot and declare that where as  the plaintiff Nov Elizabeth be possess of a close of land in Halberton in the  county of Devon call rack park contain by estimation eight acre for term of  diverse year then and yet to come and so possess the plaintiff the say Nov the  say close beforesaid sow with wheat and rye which wheat and rye maii Elizabeth  be grow into blade the defendant in consideration that the plaintiff at the  special instance request of the say Humphrey bargain and sell to he the say  blade of wheat and rye grow upon the say close the tithe due to the parson c  except do assume and promise to the plaintiff to pay he l at the Feast of S  John the baptist then next to come and for not-payment thereof at the say  Feast of S John baptist the plaintiff bring the action the defendant plead non  assumpsit modus et form and on trial of this issue the juror give a special  verdict sure that the defendant buy of the plaintiff the wheat and rye in  blade grow upon the say close as aforesaid prout in the declaration be allege  and further find that between the plaintiff and defendant there be no other  promise or assumption but only the say bargain and against the maintenance of  this action diverse objection be make by John Doderidge of counsel with the  defendant that the plaintiff upon this bargain may have ordinary remedy by  action of debt which be a action from in the register and therefore he shall  not have a action upon the case which be a extraordinary action and not limit  within any certain from in the register for where be remiss remedy of order  there to run down and out of the common order et never to run down and  out of the common order where valet of order as it appear by all our book et  nullus debet field act de trick where other act eat away below the second  objection be that the maintenance of this action do take away the defendant  benefit of wager of law and so bereave he of the benefit which the law have  give he as his birthright for peradventure the defendant have pay or satisfy  the plaintiff in private betwixt they of which payment or satisfaction he have  not any witness and therefore it shall be mischievous if he shall not wage his  law in such case and that be the cause as be say that debt by simple contract  shall not be forfeit to the king by outlawry or attainder becausethatthen by  the king prerogative the subject will be oust of his wager of law which be his  birthright as it be hold in Edward a ass Edward Elizabeth dyer and if the king  shall lose the forfeiture and the debt in such case and the debtor by  judgement of the law shall be rather discharge of his debt before he shall be  deprive of the benefit which the law have give to he for his discharge  although that in truth the debt be due and Payable a strong in the case at bar  the defendant shall not be charge in a action in which he shall be oust of his  law when he may charge he in a action of debt in which he may have the benefit  thereof and as to these objection the court of king bench and common plea be  divide for the justice of the king bench hold that the action notwithstanding  such objection be maintainable and the court of common plea hold the contrary  and for the honour of the law and the quiet of the subject in the appease of  such diversity of opinion because nil in lege irresistible be the same  remember to visit jure to tax the case be open argue before all the justice of  England and baron of the exchequer sure sir John Popham knight chief justice  of England sir Edmund Anderson knight chief justice of the common plea sir  William Periam chief baron of the exchequer clark gawdy walmesley Fenner  Kingsmill Savile Warberton and Yelverton in the exchequer Chamber by the queen  attorney for the plaintiff and John dodderidge for the defendant and at  another time the case be argue at sergeant inn before all the say justice and  baron by the attorney general for the plaintiff and by Francis Bacon for the  defendant and after many conference between the justice and baron it be  resolve that the action be maintainable and that the plaintiff shall have  judgement and in this case these point be resolve that although a action of  debt lie upon the contract yet the bargainor may have his action of debt or  action upon the case at his election and that for three reason or cause in  respect of infinite precedent which George kempe esquire secondary of the  Prothonotaries of the king bench show to I as well in the court of common plea  as in the court of king bench in the reign of king Henry Edward Henry Henry by  which it appear that the plaintiff declare that the defendant in consideration  of a sale to they make of certain good do promise to pay so much money c in  which case the plaintiff have judgement to which precedent and judgement be of  so great number in so many succession of age and in the several time of so  many reverend judge the justice in this case give great regard and so the  justice in ancient time and from time to time do as well in matter of from as  in decide of doubt and question as well at the commonlaw as in construction of  act of parliament and therefore in Edward formedon it be hold that the ancient  from and manner of precedent be to be maintain and keep and in ass that which  have not be accord to usage shall not be suffer and in Edward the ancient from  and order be to be observe in h the opinion of Prisot et tot Cur be that in a  Writ of mesn the plaintiff ought to surmise the tenure between the lord  paramount and the mesn as well as between the mesn and the tenant and show  there diverse reason and cause of their opinion but when the justice be inform  by the Prothonotaries that the book call less tale contain the from that have  always in such case be use the book say that the justice resolve that they  will not change the usage notwithstanding that their opinion be to the  contrary and accord to the precedent they award the declaration good Edward in  a Writ of error bring by John Paston to reverse a outlawry against he he do  not surmise in the Writ at who suit he be outlaw and all the justice say it be  a strange Writ and no certainty suppose thereby for by the Writ it do not  appear whether he be outlaw at the suit of the party or at the king suit or in  what suit or for what thing and it may be that he be outlaw for felony debt  trespass account or fine to the king but when the court be inform that the  ancient from be such then they change their opinion and award the Writ good  and resolve that common course make a law although that now as there it be say  perhaps reason will the contrary but there the justice say we can change the  law now for that shall be inconvenient and therewith agree l Edward where it  be say that the course of a court make a law vide mich Phil m the statute of  west cap quoth justice in person quib format to be appellum et terminate shall  inquire of damage where the defendant be acquit yet precedent expound the law  against the express letter sure that justice of nisi prius before who the  appeal be not begin shall do it and many other to this effect be in our book  but for as much as precedent be not always Allowable for in our book the judge  reject some precedent see a notable case in l Edward for certain rule and  difference in this matter there it be agree that where a question be of a  return of a assize and two or three precedent be show which agree with the say  return and the justice say that two or three retorns or precedent do not make  a law or custom especial when there be here in court and more precedent to the  contrary but if there be no precedent to the contrary it be another matter if  not that the court do adjudge it against reason and then it shall be amend for  perhaps the precedent pass without challenge of the party or debate of the  justice as then as it be there recite of late it be in a Writ of error for  reverse a outlawry in the county of Lancaster and the error be because the  sheriff return that and under command the head of Lancastriae tent ibis c  where it shall be and under command the head of Lancastriae tent at Lancastr  or other certain place to which this word ibidem shall have relation and  although that there be show precedent accord to the say return yet the  outlawry be reverse so that in diverse case precedent do not make a law and  therefore it be say by the justice to the party that he who will have  advantage of precedent ought to search for they at his peril and for his speed  for the court will not search for they for if none or no usual precedent be  not show the court ought to adjudge accord to law and reason out of which book  it be to be observe that two or three or such small number of precedent do not  make a law against the generality of precedent in such case that the return of  sheriff or entry of clerk without challenge of the party or consideration of  the court be against commonlaw and reason be not Allowable but when the  precedent be Judicial sure where the justice by diverse succession of age have  give in action there bring it shall be intend that some of the counsel with  the defendant or some of the justice before who the action be try and the  record read will have except against it if in their judgement the action be  not maintainable but in case of return of a outlawry or entry of clark the  record pass in silence and without exception of the party and therefore be not  so authentical as judgement upon demurrer or verdict and therefore in such  case multitude flying about non make ready wandering protection if such  retorns or entry of clerk and officer be clear in the opinion of the justice  against law and reason so that in the case at bar it be resolve that the  multitude of the say Judicial precedent in so many succession of age well  prove that in the case at bar the action be maintainable the second cause of  their resolution be diverse judgement and case resolve in our book where such  action upon the case upon assumpsit have be maintainable when the party may  have have a action of debt Henry b Edward Henry Henry b Henry b which case be  adjudge as Fitzherbert James cite it Henry dier b Henry in Tatams case Norwood  and Read's case adjudge Plowdens command it be resolve that every contract  executory import in it self a assumpsit for when one agree to pay money or to  deliver anything thereby he promise to pay or deliver it and therefore when  one sell any good to another and agree to deliver they at a day to come and  the other in consideration thereof promise to pay so much money to the other  in this case both party may have a action of debt or a action upon the case on  assumpsit for the mutual executory agreement of both party import in it self  reciprocal action upon the case as well as action of debt and therewith agree  the judgement in read and Norwoods case blow command it be resolve that the  plaintiff in this action upon the case upon assumpsit shall not recover only  damage for the special loss if any be which he have but also for the whole  debt so that recovery or bar in this action shall be a good bar in a action of  debt bring upon the same contract so vice line a recovery or bar in a action  of debt be a good bar in a action upon the case upon assumpsit vide Edward a  Richard Henry action sur Le case Br in some case it shall be mischievous if a  action of debt shall be only bring and not a action upon the case as in the  case inter Redman and peck Phil mar dyer they bargain together that for a  certain consideration Redman shall deliver to peck quarter of barley yearly  during his life and for not delivery in one year it be adjudge that a action  well lie for otherwise it shall be mischievous to peck for if he shall be  drive to his action of debt then he himself shall never have it but his  executor or administrator for debt do not lie in such case till all the day be  incur and that shall be contrary to the bargain and intent of the party for  peck do provide it yearly for his necessary use so ma Br action sur Le case  that if a sum be give in marriage to be pay at several day a action upon the  case lie for nonpayment at the first day but no action of debt lie in such  case till all the day be pass also it be good in these day in as many case as  may be do by the law to oust the defendant of his law and to try the same by  the country for otherwise it shall be a great occasion of perjury it be say  that a action on the case on assumpsit be as well a from action and contain in  the register as a action of debt for there be its from also it appear in  diverse other case in the register that a action on the case will lie although  the plaintiff may have another from action in the register f n b g register b  if a man have a manor within any honour and have a leet within his manor of  his tenant if he or his tenant be distrain by the lord of the honour to come  to the leet of the honour he who be so distrain may have a general action of  trespass or a special Writ upon his case so if any officer take toll of he who  ought to be quit of toll he shall have a general action of trespass or a  action upon his case as appear by Fitzherbert ibidem and if a prior or other  prelate be ride in his journey and one distrainth his horse upon which he ride  when he may distrain other good he may have a general action of trespass or a  action upon his case as appear in the register b and f n b h if the sheriff  suffer one in execution upon a statute merchant to escape the conusee may have  a action of debt or a action upon the case h as appear by the register b and f  n b b c so if a man put the executor of lessee for year out of their term they  may have a special Writ upon their case as appear f n b g register and yet he  may have ejection strong or trespass and therefore it be conclude that in all  case when the register have two writ for one case it be in the party election  to take which Writ he will but the register have two several action action  upon the case upon assumpsit andalsoan Actionofdebt and therefore the party  may elect the one or the other and as to the objection which have be make that  it shall be mischievous to the defendant that he shall not wage his law  forasmuch as he may pay it in secret to that it be answer that it shall be  account his folly that he take not sufficient witness to prove the payment he  make but the mischief shall be rather on the other part for now experience  prove that man conscience grow so large that the respect of their private  commodity induce man and chief those who have decline estate to perjury for  to swear falsely in not common with others cause as one say be repeatedly hoc  world headforemost devil and detrudend wretched animas and lower regions  and  therefore in debt or any action where wager of law be admit the judge do not  admit he to it without good warning and due examination of the party and as to  the case which be cite that debt or duty due by single contract where the  party may wage his law shall not be forfeit by outlawry because the debtor  thereby shall be oust of his law to that it be answer by the attorney general  that in such case by law debt or duty shall be forfeit to the king and so be  the better opinion of the book sure Edward coroner Edward avowry if the tenant  of a prior alien be amerce for want of suit at a court baron and the king  seize the temporalties of the prior alien yet in a action of debt bring for  the same by the prior alien he shall wage his law as it be adjudge Edward in  sergeant Bendloes report Edward in account and Stamford plea of the crown and  infinite precedent in all age in the exchequer which I have see approve it and  so it be of late resolve in the exchequer and so be hold in this case by  Popham Anderson and all the other justice with who I have confer against the  sudden opinion in Edward ass Edward Elizabeth and so you have a doubt in our  book well resolve and note reader that in every quo minus bring by the king  debtor in the exchequer against one who be indebt to he upon a simple contract  the defendant shall not have his law for the benefit of the king as appear in  Henry lie Edward lie Henry and yet there the king be not party a strong when  such debt or duty be forfeit to the king and the king be the sole and  immediate party and note reader this resolution as to this point with the  Judicial law of God upon which our law be in this point ground for it appear  by the chapter of exodus for si quis to commit for protection friend money c  et for si quis to commit for protection proximo his ass large Italian snake  sheep et all things  mule and custodiam et corpse fuer or weakness or taking  ab enemy  not any hoc to see made him take the same oath to be in medio quoth  non to stretch out shades of dead  and remember nearer Himself to take dominus  juramentum et that reddere non to drive together by which it appear that it be  in the election of the party either to charge the defendant by witness if he  will and to oust he of his law or to refer it to the defendant oath and the  text say Nullusque hoc to see sure if there be no witness so by our law in the  same case put in the text the owner have his election either to bring his  action upon the case in which the defendant can wage his law or a action of  detinue in which he may et made him take the same oath in hoc grammatical case  be Finis for the plaintiff be bind thereby and it be the end of all  controversy and I wonder in these day so little consideration be have of a  oath as I daily observe come to swear falsely per god right of way for cattle  reverence sit quo Deus testis to hold toward tanquam be who sit all a thing  maxim c