case William lewson against kirk in the exchequer if a merchant servant take  his master good that be arrive at a port in England and before payment of the  custom land they per quod the good be forfeit to and seize by the king the  master may have a action of trespass or upon the case against the servant SC  roll ab SC lane Henry pl   Molloy side lev keb more skin Mod Com dig Bac ab  Chan Cas Cowp to Rep it be a mistrial if the venire facias be award to two  parish where it ought to be to one only action upon the case whereas the  plaintiff be and for twenty year last pass be a citizen and merchant of London  use traffic into part beyond the sea and the that may Elizabeth take his  journey from London in part beyond sea to merchan croak James er p dise and  the same that April Elizabeth at London in the parish of aldermanbury in ware  of Cripplegate do trust and appoint the defendant as his servant to receive in  his absence and when he shall be in his journey all merchandise of the  plaintiff to the plaintiff own use or what by way of merchandise shall be  bring from beyond sea or consign to he and to pay the custom and subsidy for  they due or Payable and to dispose and convert they to the use of the  plaintiff and that the same day he take his journey accord and that the that  April Elizabeth in his absence twenty piece of velvet of the value of eight  hundred pound be consign by one Martin Billingsley his factor be in saint oad  beyond sea to be deliver in England which by way of merchandise be bring into  England to a port of London in the parish of saint Peter near Paul wharf in  the parish of queenhithe in a ship call the dolphin that the defendant have  notice thereof and know that subsidy be due to the queen for they and if they  be land the subsidy riot pay or agree for that they thereby be forfeit and may  be seize the defendant intend to deceive the queen of her subsidy and  notwithstanding to deduct the allowance from the plaintiff of so much as shall  be due for the subsidy as if it have be pay the say that April Elizabeth in  the say parish of saint Peter and ware of queenhithe cause the say good to be  unladen and put to land the subsidy for they due be not pay nor the collector  agree with c whereby the say good be forfeit to the queen and then and there  seize by one Thomas gardener and a information bring in the exchequer for that  cause and there adjudge that croak throw they shall remain forfeit to the  queen whereupon he lose all the profit of they for which c the defendant plead  not guilty and find against he to his damage of two hundred and fifty pound it  be thereupon move in arrest of judgement that a action upon the case lie not  by reason of the confidence or trust repose in he as his servant because it be  not allege that he have any money leave with he to pay the subsidy and then he  be not bind to pay it but it be thereto answer that in regard he be trust with  all the good to merchandise and dispose of to his master profit therefore by  intendment he have mean sufficient to satisfy the custom c for he may agree  for the custom and afterward take and sell the say good and then pay the  custom for a second reason also the action well lie for he be Chargeable  because he cause the good to be take out of the ship not custom whereupon they  become forfeit and if he have not wherewithal to pay for the custom he may  have let they alone within the ship and not have meddle with they wherefore  although he have be a stranger he have for this cause be Chargeable a much  strong be a servant and do it by colour of authority but it be say that then  this be a mere tort the action lie not but trespass way et arms the baron at  the first incline to that opinion but have consider thereof afterward all the  baron except snigg conceive that the action well lie for the special loss  which the plaintiff have by this malfesance although the defendant have be now  take as a stranger also although it be allege that he do that in his absence  the plaintiff be beyond sea yet the plaintiff may well have a general writ of  trespass or his special action upon the case as here Edward pl naturan narrow  places but then it be move that here be a mistrial for this action be now  maintain against he for his malfesance in take the good out of the ship which  be in the parish of saint Peter in the ware of queenhithe the venire facias  ought to be from that venue and parish only and it be award as well from that  parish and ware as from the parish of aldermanbury and ware of Cripplegate and  be make of two parish and ware where it ought to have be of one only it be as  well a mistrial as when it be of one will where it ought to be of two the  baron be all of opinion that for this cause it be a mistrial wherefore a  venire facias de to make new be award and this issue be try again and damage  find to four hundred pound and judgement for the plaintiff croak James er p