7th question of the student

Stud. If a man take distress for debt upon an obligation or upon a contract, or such other thing that he hath right title to have, but that he ought not by the law to distrain for it, and nevertheless he keepeth the same distress in pound till he be paid of his duty, what restitution is he bound to make in this case? Whether shall he repay the money, because he is come to it by an unlawful means, or only restore the party for the wrongful taking of the distress, or for neither? I pray you shew me?

Doct. What is the law in this case?

Stud. That he that is distrained may bring a special action of trespass against him that distrained, for that he took his beasts wrongfully, and kept them till he made a fine; and therefore he shall recover the fine in damages, as he shall do for the residue of trespass; for the taking of the money by such compulsion, is taken in the law but as a fine wrongfully taken, though it be his duty to have it.

Doct. Yet though he may so recover, methinketh that as to the repayment of the money, he is not bound thereto in conscience, so that he take no more than of right he ought to have: for though he came to it by unjust means, yet when the money is paid him, it is his of right, and he is not bound to repay it, unless it be recovered as thou saidst; and then when he hath repayed it, he is, as methinketh, restored to his first action. But to the redelivery of the beasts, with such damages and such hurt as he hath by the distress, I suppose he is bound to make recompence of them in conscience without compulsion or suit in the law for though he might lawfully have sued for his duty in such manner as the law hath ordered; yet I agree well that he may not take upon him to be his own judge, and to come to his duty against the order of the law. And therefore if, any hurt come to the party by the disorder, he is bound to restore it. But I would think it were the more doubt, if a man took such a distress for a trespass done to him, and keepeth the distress till amends be made for the trespass: for in that case the damages be not in certain, but be arbitrable either by the assent of the parties, or by twelve men. And it seemeth that there is no assent of the party in this case, especially no free assent, for that he doth is by compulsion, and to have his distress again, and so his assent is not much to be pondered in that case, for all his assessing of him that took the distress, and so he hath made himself his own judge, and that is prohibited in all laws: but in that case where the distress is taken for debt, he is not his own judge; for the debt was judged in certain before the first contract, and therefore some think great diversity betwixt the cases.

Stud. By that reason it seemeth, that if lie that distrained in the first case for the debt take any thing for his damages, that he is bound in conscience to restore it again; for damages be arbitrable, and not certain, no more than trespass is; and me seemeth that both in the case of trespass and debt, he is bound in conscience to restore that he taketh: for, though he ought in right to have like suns as he receiveth, yet he ought not to have the money that he receiveth, for_ he came to the money by an unjust means wherefore it seemeth he ought to restore it again.

Doct. And if he should be compelled to restore it again, should he not yet (for that lie received it once) be barred of his first action notwithstanding the payment?

Stud. I will not at this time clearly assoil thee that question; but this I will say, That if any hurt come to him thereby, it is through his own default, for that he would do against the law: but nevertheless a little I will say to thy question, that, as me seemeth, when he hath repaid the money, that he is restored to his first action. As if a man condemned in an action of trespass pay the money, and after the defendant reverse the judgment by a writ of error, and have his money repaid, then the plaintiff is restored to his first action. And therefore if he that in this case took the money, restore that he took by the wrongful distress, or that he ordered the matter so liberally that the other murmur not, he complain not at it, me seemeth he did very well to be sure in conscience: and therefore I would advise every man to be well aware how he distraineth in such case against the law.

Doct. Thy counsel is good, and I note much in this case, That the party may have an action of trespass against him that distraineth, so that he is taken in the law but as a wrong-doer; and therefore to pay the money again is the sure way, as thou hast said before. And I pray thee now shew me for what a man may lawfully distrain, as thou thinkest.