case BAGSHAWE against goward Hilary term James roll trespass for take away a  gelding price five pound be good on a general demurrer ante post roll Abr roll  ab Yelv lev con ld ray in trespass for take and carry away a gelding if the  defendant justify as for a estray a replication that the defendant use the  gelding be not a departure for he be thereby render a trespasser ab beginning  a stray horse take damage pheasant can be use Owen Yelv salk Com dig vern Mod  Com dig trespass for that on the that of October James he take and carry away  a gelding of the price of five pound the defendant justify as the king bailiff  of the manor of EastLangton within the duchy of Lancaster for that he have  waif and estrays there and take that gelding there come in as a estray and  keep and detain he as a estray until afterward the plaintiff retake and  reseize he who be eaden deception et abduction c the plaintiff reply that the  defendant seize he the that October James and that the defendant postea that  October James and before his reseizure labour the say gelding ride upon he and  draw with he whereby he be much damnified et hoc c the defendant hereupon  demurrer because it be a departure from the declaration for in that he bring  his action for the take away of his gelding of the price of five pound that  import he never have he again and where he have his gelding again the rule in  the register be that he shall not say price say non allocatur for where he  count in trespass price c it be no plea that have his croak throw good again  for that be only to be give in evidence in mitigation of damage and whether he  say price or do not say it be not matter of substance or material vide Henry  pl Henry pl Henry pl second it be allege that this be a departure for now it  appear that the first seizure be lawful and he bring the action for the abuse  which be matter subsequent at another day so he ought to have bring the action  for the tort if he do any for the offence the last day and not for the take c  therefore the replication do not maintain the declaration for the trespass  allege the first day also the use of the estray by way of ride or draw in a  cart be proper service for he be no cause of action because he who have  property may use it so as he do not misuse it and he who have a estray may for  that cause use he but then he must not demand any thing for the meat of such a  estray but a distress may not be use because he have it by law only as a gage  and this case be not like to the abuse of a distress or the exceed of a  authority in law for there trespass lie ab beginning a as Edward pl Henry pl  Henry pl Henry pl Edward pl but he who abuse a authority in fait be not  punishable in trespass but by action on the case for exceed the authority give  he as Edward pl Edward pl Edward pl Edward pl and the abuse of the estray he  have a property be the cause of the action upon the case so this action way et  arms lie not but all the court Popham absent hold that there be not any  difference betwixt this case and the case of a distress for he have it by  authority in law wherefore he be punishable for the abuse by trespass as a  trespasser ab beginning also they all hold that this use of the estray be a  abuse thereof for it be a see Geo c as to a distress for rend and Geo c as to  distress for nonpayment of poor rate croak James er p not lawful for any to  use it in any manner unless in case of necessity and for the benefit of the  owner as to milk milkcows because otherwise they will be spoil and so of the  like but to use a stray horse by ride or draw be tortuous although it be  allege that the common course be to use stray horse with with his about their  neck but the court hold it to be a abuse wherefore they adjudge it for the  plaintiff