case bishop against viscountess montague easter term Elizabeth roll either  trover or trespass will lie at the election of the plaintiff for good take by  wrong but in trover damage shall he give for the conversion only Clayt cro  James cro car Mod stram burr hawk Bl Rep term Rep term Rep term Rep c b action  sur trover and conversion of five ox the def endant plead not guilty by  special verdict it be find that one I S as bailiff to the defendant take those  hest as for heriots due to the defendant where there be not any due and  without any command from the say viscountess Montague but that afterward she  agree thereto and convert they and after that the bailiff die and whether this  action lie or that he shall have bring a general action of trespass be the  question Walmsley and Kingsmil hold that this action lie not for when the  bailiff take they tortibusly the property and the possession be divest out of  the plaintiff so that he can suppose that he be possess of they until he lose  they and until they come to the defendant hand and the defendant by assent to  the take be a trespasser ab beginning as assize Edward pl and Edward pl be  therefore where he may have have a general writ of trespass he can have any  other manner of action especial not this action which differ from it in nature  and quality Anderson and Warherton contra they agree that a assent before or  after the take of the good make her trespasser ab beginning and to he punish  as a trespasser but not a assent after to a battery former do or to that which  be a tort and punishable by the statute law as a assent to a riot or forcible  entry after it he do shall not make he punishable but although trespass lie  yet he may have this action if he will for he have his election to bring  either and as he may have detinue or replevin for good take by a trespass  which affirm always property in he at his election so he may have this action  for one man qualify a tort but not increase a tort so he have election to make  it a tortuous prisal or not which be the reason that if good he take by a  trespasser yet if the party from who they be take he attaint of felony he  shall forfeit they for the right and property remain in he and the law shall  adjudge they in he until he make his election to the contrary by bring a writ  if three espass a wherefore here he may maintain the one writ or other at his  election wherefore c