ccciii byne and plain case assumpsit request in a action upon the case by Byne  against plain the plaintiff declare that whereas he himself have recover  against Thomas ware in the court of the queen in Southwark hold before Omesley  steward there for the mayor of London the sum of twenty pound and have obtain  out of the say court a to lift up facias direct to the bailiff to do execution  upon the good of the say Thomas ware which then be in the possession of the  say plaintiff and where the say bailiff by virtue of the say writ be ready to  have do execution of the say good the defendant come to the now plaintiff and  assume to he that in consideration that the say plaintiff will deliver to the  defendant the say good that he will in fourteen day after Michaelmas next pay  to the plaintiff twenty pound or otherwise deliver to he the say good again if  in the mean time no other make title unto they and prove they to be his own  good and further that the plaintiff shall have free ingress and regress to a  chamber in the house of the defendant in the meantime and upon nonassumpsit  plead it be find by the jury that such a recovery be in the say court and that  the defendant do assume c but they further say that before the say recovery  the say Thomas ware be possess of the say good as of his own proper good and  by deed indent sell they to his brother r W in consideration of a certain sum  of money with a proviso that the say though ware notwithstanding the say sale  shall have the possession of they for four year which be not yet expire pay to  the say r ware twenty shilling by the year and if at the end of the say four  year the say Thomas do repay the say sum of money to the say r ware that then  the say sale shall be void and they further say that the say exception be  Robert ware make title to the say good by virtue of the say sale take to the  declaration because it be not show by what authority or title the court be  hold also it show that the bailiff be ready to do execution upon the say good  but do Leonard not show where the say good then be but the exception be not  allow for these matter be but inducement and conveyance to the action and not  the matter or substance of it another exception be take because the request be  not sufficient allege although often require but that exception be not allow  for here the assumpsit be to pay at a certain day and then the request be not  material but where a request be parcel of the assumpsit there a express  request ought to be tax as if the payment shall be upon request as to the  matter in law here be not any consideration for the good be not subject  Leonard er p to execution for Thomas ware have but a special property in they  but the general property be in r ware and so no cause to deliver they back to  the plaintiff and here by the verdict the foreign title be prove for proof  ought to be by verdict which see Perk a r title bar for it appear before the  say recovery Thomas sell the good with promise ut above Owen although it be  find that r ware have the general property yet Thomas have the special and  present property and that against r ware himself so that during the say four  year r ware can not intermeddle with the good and though that no execution can  he have against he who have such a special property yet that be not the case  here for here one who have the possession of certain good deliver they to  another and in consideration thereof he to who the delivery be make promise to  redeliver they unto the bailee or to pay so much money this be a good  consideration when a lawful property or title he have who make the delivery  and of that opinion be all the justice for it appear that the plaintiff have a  possession of the say good and that the say Thomas ware have a special  property and because of such possession be Chargeable to au action of the say  Thomas ware be it that the plaintiff come to the say good by bailment or  trover for by periam if good come to another by trover and be deliver they  over he be answerable to he who have right unto they the delivery of these  good to the defendant be a good consideration and the defendant have benefit  by the use of they and the property of the good be not to be argue in this  case but the delivery to the defendant be the only matter and because the  delivery of the good to the defendant and the assumpsit upon it it be hold  although the good be not liable to execution yet the assumpsit be good and  afterward judgement be give for the plaintiff cro mich Elizabeth in common  banc