Bulstrode barton plaintiff against SADOCK defendant enter pasch James b r rot  a action of account against a factor Yelv in a action of account bring by the  plaintiff be a merchant against the defendant his factor for certain jewel  which he have deliver unto he for to merchandise for he beyond sea for his  best profit the defendant by way of plea say and aver that he have sell the  jewel to Mulleshake the king of Barbary for the best profit he can and that he  be to have return the money be the which he have not as yet do to this the  plaintiff demurrer in law the point only be whether this plea and the  justification thereby be in the judgement of law good or not it be urge for  the defendant that the plea and justification be good and so the plaintiff  have no cause to demurrer and to prove this these book be cite e foe if a man  bail good to another to keep as his own good and they be steal from he he  shall be excuse r foe plan in case of a factor and r Fitzherbert title account  plan in account of money receive to merchandise withal where it be say by  Belknap that if a man receive good of another to profit and merchandise withal  as for he the owner of the good in this case shall stand to the good and to  the loss of all as it happen and fall out and so it be urge here that as the  master be to have the profit so he ought likewise to bear the loss and  Bulstrode er p prejudice if any do happen here by his plea be show that have  sell the jewel and this be sufficient and be have also here aver special that  he have sell they for the best profit of his master and more he can say and so  conclude the plea to be good Henry Yelverton for the plaintiff that the plea  of the defendant be not good and so the plaintiff have good cause to demurrer  in law the defendant here by way of plea say that he have sell the jewel to  Mulleshacke the king of Barbary by way of adventure and that he have do this  for the use of the plaintiff his master peradventure this may be so and  peradventure not so that this his plea and allegation be altogether uncertain  answer and so not good for he ought by his plea to have make a certain answer  and to have certain show how he have perform the trust and authority in he by  his master repose the which he have not here do for he ought to have show and  aver in his plea that he have account with his master for the increase of the  money be and that at such a day he have receive the money and so to this  purpose be the book of h foe and the plea here I insufficient and the demurrer  good and pray judgement for the plaintiff William justice clear this plea of  the defendant be not good for the trial of this see the book of e foe plan if  a man do deliver good to another to keep for he in his hand he ought for these  good to render a account Barbary may here he lie to be in ken and so the same  may well be try it appear by the book of e foe plan he which receive money for  to render a account be to account for the pro which he may have make of the  same Yelverton justice if the defendant be appoint to sell these jewel in  Barbary he ought then in his plea to have the same certainty aver to who he  have so sell they and in what place he dwell all the merchant agree the common  practice among they to be that in such a case the factor ought either to  return the good again or else money for they to his master William justice the  case before cite in e where a merchant give a general authority to his factor  to merchandise for he and to trust the which be the usual manner of trade  among they for to trust for a time certain h dyer foe plan in a action of  account the plaintiff count that the defendant receive ring of the plaintiff  for to render a account the defendant for plea say that he sell the ring to  one I S and take a obligation for this money in the name of the Bulstrode  plaintiff the bailor this be there hold no good plea in bar of the account but  it be a good plea before the auditor by way of discharge Yelverton justice it  be set forth in the plea here that he sell the jewel to tl e king of Barbary  what remedy shall he have against the king of Barbary for the money for which  they be sell by the book of e foe the defendant here ought to swear his plea  which he have not do so that the plea as it be here plead be not good William  justice this be no good account make by the defendant for these jewel to he  deliver by the plaintiff to say as be do here by his plea that he sell they to  Mulleschalk king of Barbary this plea do not amount to any account at all  Fleming chief justice the defendant plea here be faulty both for the matter  and also for the manner of it the demurrer here be both to the matter and to  the manner of the plea he ought to sell here for the best profit of the  plaintiff his master and by the intendment of law he ought here to render a  full and plenary account and he ought in performance of the trust in he here  repose by the plaintiff either to return the commodity again to his master  which be deliver to he to merchandise withal for the best profit of his master  or else to bring the money with he for which they be sell and to deliver the  same to his master in case of authority give to one as in this case here to  sell any thing as a factor in the due execution of this authority he ought  present upon the sale thereof to have and receive quid pro quo otherwise he do  not well perform the authority thus to he give neither ought he upon the sale  thereof to give he any further time or day of payment but as he deliver the  one so he ought then present at the same time to receive the money for the  same for which it be sell factor ought to render true just and perfect account  in discharge of the trust in they repose here he say by his plea that be sell  the jewel with which he be entrust to merchandise withal to the king of  Barbary and that he have a bill of he for payment of the money this be no good  plea for the matter of it for that his master can do nothing at all with this  bill for the recovery of his money but that this be a mere fraud and deceit  and for which the defendant be Bulstrode er p to be punish and he ought to  answer for this that which he have here in his plea the same may be true and  it may as well be false he ought to have sell here these jewel thus to he  deliver for the best benefit of his master the which he have not so do by this  his sale as appear by his plea in such a place to such a person and in such a  manner what if he have say in his plea and justification that the king of  Barbary have take these jewel up at such a price and have promise payment of  the money and have not do it this have be all one as if be say that he have be  rob of they this be no colour for he thus to justify if a man command his  baily to sell for he so many fat ox and if afterward he call of he to a  account for the same who answer that he have sell they and be demand to who  they be sell for what and where the money be if be do make this answer that be  have sell then to I S and that be have his bill for payment of the money this  be no good answer for that the party be never the better for it and he have no  such warrant to he give to sell the ox and to take a bill for payment of the  money but his authority to he give be to sell they for ready money and to  bring the money for which they be sell with he also every factor have not such  a power give to he to trust for the commodity by he sell but some factor may  have such a special power give he thus to sell upon a day give for payment as  he shall agree and see cause but such a factor as have only a bare authority  for to sell have not by this a power or authority give he upon sale make to  give day for the payment of the money but he ought to take and receive the  money present upon the sale make so if a man do authorize his bail to sell  anything for he if upon his be call to account say be have sell the same to  such a one and name he but say further that he have give he ten year time of  payment of the money this be no good answer Bulstrode nor any way justifiable  and this will be a very dangerous case and if way shall be give by we for the  allowance of such a plea this will be a very ill precedent and by such a way  if this shall be allow all merchant which do repose such trust and confidence  in their factor may easy be deceive and very much prejudice thereby croak  justice this be a very weighty case and of great consequence this plea here of  the defendant be have and altogether insufficient he have these deliver to he  for to sell ad the pure milk of reason computation ind reddendum whensoever he  shall be thereunto require and this be law a merchant and no survivor to be  between they and the defendant here have these good to he deliver ad  faciendurn adj meliori modus quo to be able and if covin apparent be use by he  as in this case here it be this be not the pure milk of reason computus nor  can so be so that this plea here be clear have and so the court all agree  against the defendant the factor that this plea be every way insufficient and  that the plaintiff have just cause of demurrer and so the rule of the court be  nullo to speak against quod judgment to go into pro to express grief notam  that upon the return of a commission to certify the court of some proceed the  case appear to be this the writ be direct unto eight nominati and seven of  they only do certifier and whether this be good or not be the question Henry  Yelverton except against this return that the same be not good for the writ be  here direct unto eight special and by name all the eight ought for to join in  their answer in this return and this be the reason which move the court to  have the same writ direct unto sir Henry Lynley as the eight man because that  they intend all the shall make the return and the return here make by seven be  not good this be to be take as a principle of speech that here be a  enumeration of person certain and the same so do non exclusive to exclude any  but positive to include all and that this shall be so appear by the book of  Assisar foe plan and e old impression foe plan and brook title attaint plan a  attaint bring upon a verdict which pass before judge of oyer and terminer the  writ mention that the verdict pass before four justice and the record prove  that it be take but before two it be there say that the judge have no warrant  for to take attaint and the court there agree in this that the attaint shall  not be take the like case see termin Hillar e old print foe plan sir Francis  Bacon solicitorgeneral argue to the contrary that the return here by seven of  the eight be good for that this be a principle in reason and that infallible  quod all things Bulstrode er p majus to hold together in see minus and upon  this reason be the case in the book Assisar plan and brook title variance plan  where Thonaas de Westate bring a assize of novel seize against James frank and  make his plaint of a rend the defendant pray in aid of the king the plaint  have a writ of procedendo by which writ it be suppose that the assize be  arraign before Stouse and Birton whereas the same be arraign before share  Stouse and Birton and therefore judgement be demand whether upon such a writ  they will take the assize or not Stouse there say that this writ do suppose no  fauxitie for if it be arraign before we three ergo before two and also we have  the writ si non all men and therefore answer so that this be there rule to be  good for if the same be arraign before three it be then before two and with  this agree the case in Plowdens comment foe a in the county of Leicester case  by manwood where a commission be grant to fifteen to take a indictment  authority by the same give to they and to every of they or more whereof at the  least to be of the quorum to take the indictment and this be take before only  have a sufficient number of the quorum the only point be whether this  indictment thus take be Bulstrode well take or not it be there say and case  put to prove it that time certain to which act be refer be material and so  likewise shall it be in case of place as if one plead letter patent bear date  at Westminster where the same bear date at another place by h foe and by croak  Littleton moil and Prisot for this variance be have fail comment foe diverse  case there put where a thing be refer to a number this be material as in a  redisseizin upon the statute of mert on cap in to put in hand vic quod  assumpsit secun jailer to please Coronee domini king c it be adjudge in e S  lib Assisar plan that the writ shall abate where the sheriff take with he but  one coroner where there be more in the county here in this case the return by  be good for that non presumitur pluaralitas unless the same be show the book  of h foe and have some show of authority to make against I where the case be  this a writ of error be direct to the justice of the c b to remove a record  and the writ be in this manner king John Prisor capital justiciario our men de  banc health because in think over process ac etian in reddition judgment  loquelze who to be in person thou c interwhere it be object that the writ be  not good for that the same shall have be in person thou associate you the  record less roll be all of this form and therefore there be no such record  here and therefore this writ be not sufficient for to remove any record from  thence but he be enforce to sue forth a new writ another case be there cite to  be in the exchequerchamber the which be king thesaur baron scaccarii c because  in think over process ac etian in reddition judgment c who to be in person  thou c and for that the record of the exchequer be in person baron and not  Thesaurariis baron he be award for to sue forth a better writ but in answer to  this there will be a difference to be observe for in the case before cite this  appear to you to be so as judge and vou do know this as judge that this be not  to be so and therefore c but a be not so here in this principal case for that  this be be not a matter that lie in your notice also in the former case  remember the form be so which be to be observe and it will be very dangerous  for to alter this form and the judge be to take notice of this and so not  alike here there be no such usual course nor yet notice and therefore differ  from the former here the execution of this commission may very well To take  back majus minus it may be that some of the commissioner do not sit and  therefore they which do not sit be not to certifier Yelverton justice if a  commission be direct to three may two of they meddle with the execution of it  they can Henry Yelverton the return ought to be as the writ or commission be  which be here direct to they all and so all of they ought to join in the  return and all to certifier Yelverton justice say to sir Francis Bacon  Sollictor if you will have this to be a good return here it will be very  dangerous and you must herein overrule the whole court who be all of we of a  contrary opinion to you William justice here be a special commission direct  unto eight if seven of they only return this this be not good and we be so  here to intend it that they have all of they authority joint and not several  and this case here be not like the case in the commentary in the county of  Leicester case before remember Bulstrode er p where it be with a in person  thou or before as many of they as shall be there present but here in this case  now in question it be not so and therefore all of they ought to join in the  return and because they have not so do the return be not good Bacon solicitor  if a writ be direct crowner and there be four coroner if two of they return  this be not this return good William Justice Where the writ be direct general  to all there all of they ought to join in the return the whole court agree  with he herein and that in this case here they ought to have join in this  return Yelverton and William justice and the whole court agree with they  herein that the power here give to the person name in the writ be a joint  power and not a several and so ought Bulstrode to be pursue by they in their  return and the same be not to be otherwise unless it be so set down and  specify and show in certain their power and authority to be both joint and  several otherwise it shall not be so construe to be joint and several but only  joint and so it be here in this principal case the writ be direct to and of  they only make the return this return be not good and so be the opinion of the  whole court clear Fleming chief justice if a writ of they to shut extremum  direct unto and be execute but by of they unless it be express special in the  writ that the same may be execute by they all or by any of they this be not  good and so it shall be in all such special commission they ought to be  special execute accord to the commission to they direct and they be not to  vary at all from it and so in this principal case the whole court agree clear  that the return here make by the writ be direct unto be no good return but all  the ought to have join in this return quod notam this be the clear opinion of  the wh Le court