Duncomb against Reeve and Green
| Jurisdiction | England & Wales |
| Date | 1653 |
| Court | Court of the Queen's Bench |
English Reports Citation: 78 E.R. 1013
IN THE QUEEN'S BENCH.
case 21. duncomb against reeve and green. If a defendant justifies distraining a hide upon a prescription for the toll of it, and it is replied that he tanned the hide after the distress, a rejoinder that it was to prevent its rotting, is a departure; and such a prescription is void. Ante, 404. 1 Roll. Ab. 568. 2 Roll. Ab. 562. Dyer, 121. b. Co. Lit. 303. Plowd. 7. 105. Yelv. 96. Cro. Car. 76. 228. 246. 334. Owen, 46. Noy, 911. Cro. Jac. 147. 1 Saund. 117. 1 Vern. 37. 6 Mod. 216. Salk. 221. 248. Ld. Raym. 719. 5 Bac. Ab. 151. 2 Wils. 313. 3 Wils. 20. 1 Term Rep. 12. Trespass, for the taking of certain raw hides. The defendant justifies as bailiff of Ipswich, by custom there, that if any butcher kills any beast within that town, and sells the flesh within the market, he is to pay two-pence for every hide: and that the bailiffs may diatrain the hide for the two-pence, if it be denied; and so justifies for that, &c. The plaintiff replies, that after the distress the defendant tanned the hides, and so converted them to their use, &c. The defendants by rejoinder say, that they tanned them, because otherwise they would have rotted. And thereupon the plaintiff demurred.-The Court held it to be an ill plea: for the custom to distrain doth not enable them to tan; for that is tortious, because thereby the property is quasi altered, and the marks to know them are taken away from the owner, so as he cannot have them again. And although one may in some eases meddle with and use a distress, where it is for the owner's benefit, as Popham said ; as where one distrains armour, he may cause them to be scoured to avoid rust; so if one distrains raw-cloth, he may cause it to be fulled, for it is for the owner's benefit. But here this tanning is not for his benefit; for it takes from him the notice of the thing, and so is a means of taking away tho thing itself; for he cannot have any knowledge thereof to have it again. This prescription also for the payment of two-pence for every hide, where the flesh 1014 MICHAELMAS TEEM, 42 AND 43 ELTZ. IN B. B. CRO. ELIZ. 784. ia sold within the town, cannot be maintained that toll should be paid for that, although the hide itself be sold elsewhere. The rejoinder also is a departure from the Bar. Wherefore it was adjudged for the...
To continue reading
Request your trial