case turbet against DASSIGNEY queen if a person be in execution for a fine on  a conviction for a misdemeanour and be detain on a capias in withernam issue  against he on the return of to remove to a pluries a human being replegiando  whether on receive a pardon of the fine he can be bail on the capias in  withernam SC ray a information have be sue against Dassigney for unlawful  carry the plaintiff turbet to Jamaica in the part beyond sea he be convict and  fine five hundred pound a he be likewise charge with a capias in withernam be  in execution for the say fine by the court of king bench on the return of a to  remove to a pluries a human being replegiando Dassigney apply himself to the  king most excellent majesty for a remission of the say fine and it be refer to  the lord commissioner of the treasury who make a doubt suppose the defendant  pardon his fine if he be bailable and thereupon they by letter desire the Lord  chief justice pemberton opinion who desire the assistance of the other judge  of the king bench and Mr justice Jones dolben and Raymond sir Francis  winnington for Turbett Mr Thompson and myself for Dassigney I argue most of  what I have before prepare in these word they sue a a human being replegiando  in the name of the young Turbett and after a alias and a pluries they get a  elongate be per a certain the battle of Philippi Dassigney infra nominate this  be to the sheriff of London whereas the defendant never live in London but at  Wapping in Middlesex and this the sheriff do without ever demand the body of  Turbett from the defendant Dassigney so that though it may be a true return it  can never be a honest one for it be not true of his own knowledge for the  sheriff of shower KB London can not know but that Dassigney may have have the  body of Turbett so as the sheriff may have replevied he and though the  conviction in London on the information may excuse he from a action for a  false return yet the true and proper return for the sheriff of London to have  make the defendant Dassigney live in Middlesex and now be in the king bench  will have be a non be invention as to Dassigney infra ballivam svan for  suppose a common replevin be sue to the sheriff of York for cattle distrain by  I in London must he have return a withdraw are because he can find neither the  defendant nor the cattle king Henry pi Henry pi l rastal m Edward pl Keilway  Fitzherbert n b a see will c S shower KB er p he ought to have return that  nullus ex part quer go for sale ad ostendend who quot et qualia catalla of his  the defendant have take and as to the bail that it be in the power of this  court to take bail there be no action between subject and subject and but one  between the king and a subject where before verdict conviction or attainder  the defendant be not bailable and in this case you may bail he for first this  be a action for the recovery of damage and second in other action where the  suit be in not common with others mask as it be here the defendant be bailable  Verdon the under sheriff of Norfolk be bail here on a appeal of murder and so  it be do every day on appeal of murder rape and the like this court have the  large power as to bail of any court in England both in civil and criminal  cause three I humble take it for a rule that wheresoever the cause of a man  lie in prison may not be true there he may be bail and that although he be in  execution as one in execution of a judgement on a verdict for which he bring  his attaint one in execution on a judgement for which he have bring his writ  of error one in execution and he complain himself to be aggrieve thereby and  thereon he bring his hearing complaint in all these case the party may be bail  the case of a attaint c be much strong than we for there be verdict judgement  and execution which my Lord coke say be the end of the law and vet there when  he bring his attaint he be bailable because then it become doubtful if his  imprisonment shower KB be on a just cause and in our case here be nothing but  the return of the sheriff which be a return impossible to be true of his own  knowledge the conviction upon the information be no bar in the way of our be  bail for in that case the present plaintiff be no party nor have any thing to  do the return of the sheriff be not conclusive for there be a manifest  difference between a return of a act do by the sheriff himself and a matter he  be not conusant of now as I say before this can be true of his own knowledge  in case a to know facias be bring against terretenants and the sheriff return  a b and c terretenants they may yet come in and plead a special non tenure nor  do this do the defendant any more mischief than the return of a to remove in a  common replevin for in a a human being replegiando there may be a gager of  deliverance b one bring trespass upon the case wherein by his count he suppose  himself free and the defendant claim he as his villain so that he dare not go  abroad c and pray that he may gage deliverance of some of his good which he  have take and that he may find security not to intermeddle with any of his  good or his body pen the suit and there it be hold that he shall gage  deliverance as in a a human being replegiando for the end of both be to try  the liberty of the plaintiff and they all hold that in a a human being  replegiando it shall be and be so now it will be a vain thing to lie in  custody and yet to gage deliverance in this action upon the interpleading as  to the good a release may be plead and so be it in the reign of Henry the  seven c beside which there be a express case in the yearbook d in a a human  being replegiando the defendant appear and allege villeinage in the plaintiff  and the other say he be frank but because it be a pledge for he that the  plaintiff be not yet deliver it be pray for he that he may gage deliverance to  which it be say that the fact may be so that the defendant have not take he  vavasor justice say it be the opinion of all the justice that he shall find  pledge to deliver he if he have seize he and if he have not no one sequitur  pna and a writ shall issue to the sheriff to deliver he if he be detain here  be shower KB no special return of a claim of villeinage for the villeinage be  claim by the defendant after his appearance here be interpleadings before the  party be deliver here be a gager of deliverance which be needless thus to put  in pledge to discharge he if the party must lie by it till he be discharge  this withernam be but process it be no execution it be but a mean to try a  title to liberty it be not as I find in any of the entry award by the court  but a writ sue out of course there be not so much as a fiat breve enter in  most other particular it be as in a common replevin as in that so in this  there must be pledge find for to prosecute with effect e it ought to be before  you have a writ to the b yearbook Henry pl c Henry pl d Edward pl e brook Abr  replevin from the yearbook Henry pl shower KB er p sheriff to deliver c in a  common replevin the sheriff may return a claim of property so here may he  return a claim of the plaintiff as his villain and a imparlance lie in this  action as in a common replevin in the second precedent under this title in  Rastals entry the abbot servant come et per attorney suum claim villeinage in  the plaintiff to their master and the form of their plea show that they be not  in custody in withernam for it be unde non to stretch out aliquan in an unjust  manner in here part mask nest appointed posse c which by implication argue  they have not already sustain punishment in mask nest and this be not on a  special return but upon a withdraw general in the former case f there be a  count before the delivery in dame Spencer case g and as brook have it h there  be pledge and count before the delivery there be a record I where bail be take  and a supersedeas to the capias in withernam upon a surmise of bail put in  here above the tenor whereof follow in these word Inter shower KB think over  domini king richardi favorable in treasure chamber recept scaccarii Himself  sub custodian a master Commissionarior thesaur et camerar ibidem remanent  videlicet inter placita de tempore king richardi favorable inter alian  subcontinetur ut sequitur videlicet rotulus to please in person domini ring at  Winton which must be the court of king bench hold then in fact before the king  as the style remain now at this day wherever tunc to be in England wheresoever  the king then be de boundary consecrated hilarii year royal power king Richard  sextodecimo W thus far de boundary consecrated Hillar cornub sacred scripture  dominus king to put in hand viscount cornub breve suum enclosed space in haec  word Richard God agreeableness king England et France et dominus Scotland  viscount cornub salut cum pluries flute to take beforehand quod just et  without dilation replegiari facias David Tregoyes who Thomas de Bello Campo  come war et Michael Trewynneleck to take in hand et taking tenent ut to say  nisi capacity be per special teaching nostrum well capital crime justice our  men well pro death man well pro forest our men well pro to some place  elsewhere recto quare second experience England non sit replegiabilis well tu  ipse esses in person we in tomorrow air ultime past wherever tunc to eat in  England ostensur quare order our men pillage so often flute ind  perpendicularly funeral procession contempsist tuque ad diem that we retornan  quod pillage David withdraw to be extra ballivam thy per pillage thomam de  Bello Campo et michaelem Trewynneleck ad loca igmota ita quod look pillage  David to have non to be able such nec corpus pillage David replegiari to make  et therefore flute to take beforehand quod corpus pillage michaelis in  withernamio capias et the dawn salvo et secure in prison our men to watch  facias until what time pillage David juxta course one who gives a charge our  praedictor flute pluries ind director replegiari to cause to revolve  praecipimusq etian flute in all respects good et catalla land et tenement  pillage conit in balliua tua in manus our men seisiri to make et she shower KB  salvo et secure custodir until what time pillage David to let pass replegiari  volveri et as teaching our men pillage to be execute to agree facias we a die  consecrated Hillarii in quindecim die wherever tunc to be in England ut beyond  super premise to make to be strong prout de jure et secundum law et experience  royal power our men England before viderim faciend et habeas there tunc hoc  breve testae W Clopton at Ebor the ninth die novembris year royal power  Decimus sexto Indorsamentum the same short catalog sequitur in haec word quoad  capiend michaelis pillage belowwritten et the dawn ad custodiam faciend in  prison our men until what time replegiari volveri David Tregoyes et ad seisiri  faciend in shades of dead your in all respects good et catalla land et  tenement thomae de Bello Campo conit war belowwritten et she salvo et secure  custodiend ind nothing sharply be ad feel or perceive beforehand because  dominus king I to put in hand breve suum de supersedend interim pron   interrog  short catalog de execution this short catalog beyond faciend  supersede et be breve de supersedend huic shorten garment stitched together  quod indeed breve sequitur in haec word Richard God agreeableness king England  et France et dominus Scotland viscount cornub health cum pluries flute to take  beforehand quod just et without dilation replegiari to make David Tregoyes who  Thomas de Bello Campo come war et Michael Trewynneleck to take in hand et  captun tenent ut to say nisi capacity sit per special teaching nostrum well  capital crime justice our men well pro death man well pro forest our men well  pro to some place elsewhere recto quare secundum experience royal power  England non sit replegiabilis well causan we signify quare mandatum our men  alias flute ind direct funeral procession non to be able ac tu we significaver  quod pillage David withdraw to be extra ballivam thy per predict f in the  yearbook Edward pl g Henry pl h bro Abr replevin I Hilary term Richard roll  shower KB er p comrade et michaelem ad loca igmota ita quod look predict David  to have non to be able such nec corpus pillage David replegiari to make super  quo per breve nostrum de judgment flute to take beforehand quod corpus  prediction michaelis si invention to be in balliua tua hegoat in withernamio  ac in all respects land et tenement good et catalla predict conit in balliua  tua in shades of dead nostrum seisiri ac she salvo to watch nor corpus pillage  to hold off to make until what time pillage David secundum law et experience  royal power our men England replegiari poss juxta course one who gives a  charge our flute prius ind direct et as mandat nostrum to be persist in to  know to make we a die consecrated Hillarii in quindecim die proxime future  wherever tunc to be in England per litter you adorned with small figures are  you going so soon Johannes Dantre de come Gloucest clergyman et rogerus shower  KB Ulbaren de come war in person we in cancellar our men personalit agreed  price manuceperunt videlicet uterque the dawn corpus pro corpore ac sub pna  trescentar librar pro say beforehand advance comite et Michael quod Self say  beforehand advance David in curian our men in person we ad quindena predict  wherever tunc to be in England ad faciend et recipiend quod curian our men  consideraveri in haec part teaching to have et a preparation quas indeed  trescentas libras the same manucaptores de terris et catallis he ad opus  nostrum to lift up concesse si idem David in person we ad they predict non to  come in form say in addition to therefore flute to take beforehand quod  caption substantial object predict michaelis ac seisinam terrar et tenementor  bonor et catallor pillage conit in shades of dead our men occasion pillage  faciend interim supersedeas et si Self michaelem she occasion ceper tunc Self  a prison how sit detent si she occasion et non alian detinea in eaden interim  to weigh well ac shades of dead our men e terris et property good et catallis  pillage conit si per ten occasion pillage et non alian captan are in shades of  dead our men interim anoveri facias per manucaptionem say in addition to et  habeas in person we tunc hoc breve testae meipso at Ebor novembris year royal  power ad who they in person lord ring at Winton to come pillage come et  Michael in not common with others mask nest et hic in cur a saying beforehand  David to lead et cur hic to weigh well et pillage David instanter in not  common with others mask svan to express grief quod predict come et Michael  simul cum c die March proxime ante holiday saint nariae maiden year royal  power king Self David at Tregoyes in come pillage to take in hand  imprisonaverunt et Self extra county pillage to lead et in prison detinueru a  predict die March usque ad prefat quindena consecrated Hillarii unde speech  quod deteriorate be et damnum to have ad valencian two mille a balance et ind  to lead forth sectan c et pillage come speech quod pillage David to answer non  debet because to say quod idem David be that has arisen by birth Self conit to  stretch out ad manor suum de Carnaut in county pillage et quod ipse et all men  he that goes before Himself domini manor pillage a tempore quo non extat  memory seisiti to be de predict David et he that goes before nest ut de that  has arisen by birth nest tanquam to stretch out ad manor suum predict et petit  judgment si pillage David in here grammatical case responders to withhold c  shower KB et predict Michael make practice of defending all men in an unjust  manner et whoever c et to say quod predict David be that has arisen by birth  pillage conit to stretch out ad manor suum de Carnaut in come predict et quod  idem come et all men he that goes before Himself domini manor predict a  tempore quo non extat memory to be seized de predict David et he that goes  before nest ut de that has arisen by birth nest tanquam to stretch out ad  manor suum predict et pro eastern quod idem David to be insurgent et see  justiciari not per minister domini conit idem Michael ut to be a servant the  same conit et per teaching domini conit Self David to take in hand et  imprisonavit prout ei bene to be for sale et petit judgment si pillage David  act svan pillage in here grammatical case versus the dawn manutenere to  withhold et idem David to say quod ipse be libre a human being et Proserpine  creating et non that has arisen by birth speech conit prout predict come et  Michael to put below et de hoc to put down see super native land et predict  come et Michael similiter c therefore to come ind to swear falsely in person  lord ring a die Paschae in tres soldiers wherever c et who nec c idem die that  be birth predict c et super hoc to come Johannes Treverlyn Johannes Tremarram  rogerus Inyll et Thomas Polsone all men de come cornub et manuceperunt habend  corpus pillage David in person lord ring ad a saying beforehand boundary et  such de die in they until what time c el quod idem David attendance to  withhold pillage placitum modus et festino without secret understanding fraud  et tardatione quo to be able in not common with others mask svan de die in  they versus dict comrade et michaelem de pillage caption substantial object  Himself until what time placitum inter Self ind to set bounds et si return  substantial object pillage David speech comit adjudice super plea pillage quod  tunc idem David ad possession Self conit see To give back et to set free hic  in cur per pillage manucaptores tanquam that has arisen by birth Self conit  shower KB er p et the same manucaptores recognoveru see haeredes et executor  swine tender to loosen pillage comit et heir suic six hundred Marcus  sterlingor si pillage David et manucaptores Himself pillage in all respects et  one non to make well to make well quod idem David to some degree to make in  contrar some pillage praemissor et pillage go bail et who the dawn per see to  go away quod pillage summa sexcentar marca de terris et catallis nest become  to be able per viscount et a saying beforehand comit heir nest to set free c  et similiter the same manucaptores manuceperunt quod pillage David see bene to  bear about towards owner king et poplar tree suum et especially towards  minister et to hold pillage conit shower KB quod the dawn non to bring in per  see nec per elsewhere his procuramento some malum de substantial object nest  sub pna say in addition to et a b c et d pro pillage comite et Michael quod  Self per see nec per elsewhere per the dawn management non impedient nec some  the dawn to entangle pillage David quin ipse prosecutionem svan pillage fixed  by law modus attendance to be able in whatever way sub pna centum librar c et  encounter ind process inter pillage David et pillage comrade et michaelem per  jurat posit in respect in person lord ring usque a die Paschae in One month  year royal power king richardi favorable Decimus seven wherever c pro  diminution jurat c ad who they in person lord ring at Westminster go for sale  pillage David in not common with others mask svan per manucaptionem svan  pillage et pillage come et Michael in not common with others mask nest  similiter to come et jurat to come who tam de assent pillage David how pillage  conit et michaelis ad hoc dainties triati jurat et to say super sacrament suum  quod pillage David be libre et a human being Proserpine creating et non that  has arisen by birth pillage conit pillage pace David Tregoys superius allegavi  et tribute payer financial loss occasion pillage ad quadragint libras c el  super hoc to look at closely be quod pillage David recupere versus pillage  comrade et michaelem financial loss svan pillage superius per jurat pry ad  libras value et quod pillage come et Michael to take in hand a copy of which  record be produce before the judge it thereby appear that it be in the power  of the court to supersede a capias in withernam upon the give security to  produce the body of the plaintiff and although it be to be at the return of  the pluries capias yet that alter it not for he ought to have be produce at  first and in our case there be a moral impossibility to produce this boy under  six month he be in the plantation of Jamaica and for that we be ready to give  any security then there be another record in mich Henry roll a copy whereof we  then likewise produce which I have here transcribe for the rareness of this  suit and the obscurity of the law herein it be Inter think over domini king  car in treasure chamber recept scacc Himself sub custodian to be lord commiss  ibidem remanent videlicet inter placita de tempore king Henry four inter alian  such to hold together ut sequitur videlicet rotulus shower KB placitor in  person lord ring at Westminster de boundary consecrated michaelis year king  Henry post complaint will Gascoigne thus far de boundary consecrated michaelis  W Gascoigne in back Devon sacred scripture dominus king to put in hand breve  suum enclosed space in haec word Henry God agreeableness king England et  France et dominus Scotland viscount Devon health cum pluries flute to take  beforehand quod just et without dilation replegiari to make William son adae  scutt who Simon Bryt et Johannes thread he to take in hand et taking tenent ut  to say nisi capacity sit per special mandatum nostrum well capital crime  justice our men well pro death man well pro forest our men well pro to some  place elsewhere recto quare second custom England non sit replegiabilis well  tu ipse to be in person we a die saint the number three in quindecim die  ultime preterit wherever tunc to be in England ostensur quare order our men  pillage so often ind flute direct funeral procession tu contempsist tuque ad  they that we retornan quod pillage breve to such a degree tarde flute liberal  to be quod no one performance ind become to be able near time shortness et  quod no one alian short catalog de replegiando pillage William flute to come  ante reception dict short catalog therefore flute to take beforehand quod just  et without dilation replegiari facias pillage William son adae scutt who say  beforehand advance Simon Britt et Johannes thread he to take in hand et taking  tenent ut to say nisi capacity sit per special teaching nostrum well capital  crime justice our men well pro death man well pro forest our men well pro to  some place elsewhere recto quare secundum custom England non sit replegiabilis  well tu ipse sis in person we a die consecrated michaelis in quindecim die  wherever tunc to be in England ostensur quare order our men bring ed so often  flute direct funeral procession contempsist et habeas there hoc breve testae  William Gascoigne at westmonasterium so die June year royal power our men  quarto ad who quindena consecrated michaelis in person lord ring at  westmonasterium vice shower KB er p come Devon return quod pillage William  thread adae scutt amotus be et withdraw extra ballivam svan per pillage Simon  Britt et Johan son he in come Somerset quare de Self William replegiand juxta  form dict short catalog adtunc nothing to make to be able ac ex part pillage  William son adae scutt in curian king in person Self ring sufficient testatum  be quod pace Simon et thread he pillage latitant et discurru in county  Somerset shower KB et therefore teaching be viscount Somerset quod corpora  pillage simonis et son he in withernamio to take in hand et eos salvo et  secure to watch to make until what time the same Simon et Johannes thread he  say beforehand advance William son adae scutt replegiari uolverint et as c to  agree facias c postea squill die January year royal power dom king nunc quarto  in person lord ring at westmonasterium to come William Pawlett et Simon Britt  jun de come Somerset et Johannes halse et Thomas prowse de come Devon to sow  dict viscount Somerset corpus say beforehand advance simonis Britt occasion  pillage cepiss et Self in prison domini king sub custodian the same viscount  before detent et manuceperunt habend substantial object pillage simonis Britt  in person lord ring ad say beforehand advance term et who the dawn sub pna how  quidam top who the dawn manucapt separatin cogn de terris et catallis nest ad  opus domini king become si to touch Self corpus say beforehand advance simonis  Britt in person lord ring ad say beforehand advance boundary readiness non to  have ad faciend quod curian domini king consideraveri in here part et to  strive for breve de supersedeas say beforehand advance viscount direct de non  detinend beyond corpus pillage simonis in prison a domini king occasion  prediction et the dawn to go away c now by this record it be plain in the  power of the court to bail a man take in withernam after a withdraw return and  we will give any security for Dassignes appearance this be a case of great  hardship for either the sheriff can make no other return but this and a  repleuie as the court seem to be of opinion in Wilmores case a last term and  then certain no action will lie against the sheriff though it be false because  he can make no other return and if a action will lie and the party be not  bailable till he have falsify the sheriff return by a action suppose then the  sheriff shall die in what case will the defendant be and what a hardship will  it be on a man who perhaps never take he if there can be no interpleading till  the delivery of the body but sure there may for as it appear the writ be  grantable on the prayer of any procheine any and the testatum man issue into  another county upon the suggestion of such so the count and interpleading may  be by they and so be it in the case of Edward for shower KB the gager of  deliverance be after the count c upon which and Mr Thompson argument which be  much to the purpose as to the last record and gager of deliverance upon which  two point he only insist the judge incline he may be bail and that it be in  the power of the court so to do and the last day of Hilary term after he get  off the fine and on give security to bring home the boy in six month death and  the peril of the sea except he be discharge on bail in Trinity vacation the  boy come home and be bring into court be deliver to the father but they never  proceed but in all this the judge still seem of opinion that the sheriff can  not return a non to take in hand for that will falsify the suggestion of the  writ itself