bealy versus sampson Lut Videpost before the plaintiff bring a action of  trespass and declare that the defendant Samson simul cum Georgio Francis fever  year James king tertio way arms c quatuor large Italian snake quatuor cow of  the plaintiff take at Starnton in come kc imparcavit to hold off quousq the  plaintiff that which divides eleven a balance pro deliberation earun ind  habend cum prediction Samson the defendant Georgio Francis to make c ad  financial loss c the defendant plead not guilty as to the way arms and as to  the residue of the trespass he plead in bar that before the time in which the  trespass be suppose to be do videlicet the that day of June year say in  addition to there go out a writ of become facias out of this court against the  now plaintiff at the suit of the say defendant Samson direct to the then  sheriff of Lincoln to levy a debt of l which the say Samson have recover in  the say court and S for cost of suit and that he shall have the money in court  in quiden Martini ad reddendo preafato John Samson Ventris er p de deb  financial loss pillage unde intimacy to be which writ of become facias be  deliver to the sheriff of the say county and thereupon the sheriff for the  execute of the say writ make his warrant in write seal with the seal of his  office to one I S and the say George Francis balivis the same viscount she  vice so much direct command they to levy the say debt and cost of the good and  chattel of the now plaintiff that the say sheriff may have the money in court  at the day of the return of the writ to pay the say John Samson which warrant  be deliver to the say George Francis and by virtue of the say warrant the say  George Francis and the say defendant Samson ut he to be a servant per he  mandatum the aforesaid beast in execution for the debt and cost Ventris  aforesaid take and seize and cause they to be appraise and they be appraise at  l beingthe true value of they and detain they quousq pillage W bealy the  aforesaid sum of l to the say George Francis to the use of the say sheriff pro  deliberation averiorum that habend to loosen prout the dawn bene to be for  sale who are idem resid transgress pillage ullde pillage William bealy see  modus to express grief absq hoc quod ipse idem Johannes Samson be culpab de  caption c ad some time ante pra d secundum they Augusti well post pillage  quinden consecrated Martini hoc parat be verify and to this the plaintiff  demurrer this case be speak to the last term and then pollexfen chief justice  and Rokeby be of opinion for the plaintiff and Powell and Ventris for the  defendant and it be again argue at the bar this term and by the opinion of the  chief justice Powell and Rokeby judgement be give for the plaintiff the chief  justice and Rokeby hold the plea to be nought chief because the defendant  plead that be detain the cattle till the plaintiff have pay so much money to  the use of the sheriff whereas it shall have be to the use of the plaintiff at  who suit the execution be the chief justice say that be find no authority in  law that warrant the deliver of the good back to the plaintiff especial upon  payment of part of the money Vid cro stringer versus Stanlack but here the  take of the money to the use of the sheriff make he a trespasser for it can  not be do in pursuance of the execution he also say that one far in the time  of king Charles the second by colour of a writ of execution come into the  house and carry away the good and it be adjudge felony he also say that if  this manner of plead shall be allow admit that the bailiff have agree to take  the money to the sheriff proper use how shall the plaintiff be let in to a  replication in this manner of plead to put the matter in issue Rokeby say  parols font plea and that it must be here take that the money be pay to the  proper use of the sheriff and in plead the matter be to be take most strong a  against he that plead another matter they go upon be that in the justification  the defendant say he detain the cattle till l be pay to Francis whereas the  declaration charge he with detain till l be pay to the defendant and so  Francis answer nothing to the payment allege to himself Ventris note the chief  justice cite the case of Thompson and clarke cro where it be say that the  sheriff can deliver the defendant good to the plaintiff in satisfaction of the  debt neither ought they to be deliver to the defendant against who the  execution be but they ought to be sell and the appraisment be not material for  the good upon a become facias need not to be appraise as they must be upon  elegit cro in palmer case in the case of Goodyers and ince cro upon a elegit  it be hold that the sheriff can not sell a term to the plaintiff himself that  take out the elegit Powell be of opinion that the plea be good in that point  of pay the money to the use of the sheriff for be have a interest or special  property in the thing take in execution cro the sheriff may bring trespass  against one that take good after they be seize in execution Wilbraham and snow  sander resolve that in such case the sheriff may bring trover but be hold the  plea insufficient for the other exception because the declaration be of a  detainer till the money be pay to Francis and the defendant and in the plea  the justification be of the detain till the money be pay to Francis Ventris er  p he take another exception also that the defendant have not show that there  be a return make of the warrant to the sheriff and cite br title trespass but  that be not much insist upon because the warrant be not direct to the  defendant here but to Francis and another and the defendant ought not to be  punish for the omission of the bailiff in not retort the warrant upon a mesne  process the bailiff who act by a warrant from the sheriff be not liable in  trespass if the sheriff do not return the writ Ventris be of opinion for the  defendant as to the first matter the payment to the use of the sheriff he  think ought to be take upon the whole matter set forth in the plea that it be  pay to the particular and special use of the sheriff videlicet that he may  have the money in court as the writ command and the warrant mention and it be  a strain construction to take it to be to the proper use of the sheriff it  will not have be proper to say pay to the bailiff to the use of the plaintiff  because it be not the plaintiff money till it be pay to he in the case of  Benson and flower cro and Jones it be resolve that if the plaintiff become  bankrupt the commissioner can not assign the money that have be levy at the  plaintiff suit upon execution or remain in the sheriff band or in court also a  bar be good to a common intent Ventris the plead of the payment to Francis and  not say to Francis and the defendant though it do not precise answer the  declaration yet he hold it well enough because payment to Francis be a payment  to both because it be set forth that they act joint in pursuance of the  warrant and aver that the matter plead be idem residuum transgression be a  sufficient answer of the allegation in the declaration of payment to both he  put the case one bring trespass against a that be simul cum b take his cattle  and detain they until what time be make a fine with the say a and b for the  delivery of they a the defendant plead that a rend be grant to b with a clause  of distress and that the say b and a as his servant and by his command take  the cattle by way of distress and detain they till the plaintiff pay the  arrear to b how be eaden transgression will it not have be good again if this  payment must be take to be to the proper use of the sheriff and so not in  pursuance to the execution yet he hold that the plaintiff here can not  maintain a action of trespass that in regard that he be sharing in sin the  detain the good be but a nonfeazance if the sheriff upon mesne process refuse  bail this do not make he a trespasser ab beginning though lie be liable to a  action upon the case for such refusal and so be the case of salmon and  Percival Jones and cro so also if the sheriff detain a man take upon mesne  process after a supersedeas and that appear by stringer and Stanlacks case cro  and wither and Renleys case cro there say the detain be a new caption but it  be object that the take of the money be a misfeasance and in   poulter case if  a man distrain and abuse the distress he be a trespasser ab beginning so where  a thing be do by a authority of law and a abuse be commit after answ that be  true if there be a misfeasance in any matter wherein the plaintiff in this  action have not concur if a man shall detain a horse and the owner shall bid  he ride he will this make he a trespasser ab beginning as if he have road he  without such licence the payment be here the act of the plaintiff in this  action and therefore he be of opinion that he can not bring trespass but by  the opinion of the other three judge judgement be give pro quer send minus  just ut credo W b