1788. THOROLD against FISHER. tice, who said, "That though the rule for bringing in the body "had expired, yet if the Defendant justifies his bail before the "Plaintiff moves for an attachment, the Sheriff is not liable to "the attachment." Rule absolute with costs. The return day of a clausum fregit and the quarto die post, are both reck oned inclusively. There is no difference whether the return day be on a Sunday or any other day. [ 10 ] THE FANO against Coken. HE Defendant was served with a clausum fregit returnable in four weeks from Easter Day. The return day was Sunday, April 20th. The Defendant not appearing on the Wednesday following, the Plaintiff on the Thursday sued out a distringas. On that day the Defendant entered an appearance. On Friday morning the Plaintiff's attorney levied 40s. under the distringas, on the Defendant's goods. Kerby, Serjt., obtained a rule to shew cause why these issues should not be repaid to the Defendant with costs, on the ground that the return day being Sunday, the Defendant had till Thursday to appear, and as the distringas issued on that day, it was irregular. To this it was answered, that by the uniform practice of the Court, the Defendant was bound to appear within four days of the return of the writ, which are inclusive both of the return day and the quarto die post, and that Sunday was to be considered like any other return day. The Court, after consulting the secondaries as to the practice, were of opinion against the Defendant. Rule discharged. An affidavit K to hold to bail, must shew how the debt COOKE against DOBREE. ERBY, Serjt., moved to discharge the Defendant out of custody, and to deliver up the bail bond, on entering a common arose. The Court will not stay proceedings against the Defendant till the debt and costs recovered by him in a former action against the Plaintiff, be paid (a). (a) [See 3 Bos. & Pul. 23, note(a). Where the Plaintiff in an action of trespass, brought in K. B., to try the validity of a commission of bankruptcy against him, being unprepared with proofs at the trial, was nonsuited, and brought an action for the same cause in C. P., that court staid the proceedings till the costs of the former action should be paid, Crawley v. Impey, 8 Taunt. 407. Tidd's Pr. 584, 8th edit. It should be observed that the application common appearance, there being a defect in the affidavit to hold to bail. The affidavit was, that the Defendant was indebted to the Plaintiff "in the sum of 500l. and upwards"-The objection was, that it did not appear, how the debt arose.-On this the Court granted a rule to shew cause. He then prayed that the proceedings might be staid in this action, till the debt and costs in two other actions for which the Defendant had obtained judgment against the Plaintiff, should be paid-This was prayed upon an affidavit, stating the judgment in those actions, that the Defendant had never since their commencement had any dealings with the Plaintiff, and that the present action was founded on the same circumstances with those others. But The Court refused this, saying that they could not on motion try the merits of the cause. Bond, Serjt., then proposed a supplemental affidavit, on the part of the Plaintiff, which was also refused (a), and afterwards the application in this principal case was to stay proceedings until the debt and costs recovered in the former action should be paid, Doe d. Church v. Barclay, 15 East, 233.] (a) ["The discretion to permit a Plaintiff to file a supplemental affi Rule made absolute. davit ought to be very sparingly exer- 1788. COOKE against DOBREE. D WARD against Snell. EBT for the penalty of the Habeas Corpus act, 31 Car. 2. c. 2. s. 5. against the Defendant who was keeper of Colchester party grieved on the Habeas Corpus act, for refusing a copy of his warrant of commitment, covered the penalty, is entitled to costs (a). (a) [So a party grieved who recovers damages against the Sheriff for not taking bail under 23 H. 6. c. 9. is entitled to costs, Creswell v. Hoghton, 6T.R. 355. The principle upon which this case was decided, is, that where a statute, since the statute of Gloucester, gives a remedy in a case in which damages were recoverable before the statute of Gloucester, the Plaintiff is entitled to costs by the latter statute. See Wilkinson v. Allott, Cowp. 367. So, costs are recoverable in an action on the statute 9 G. 1. c. 22. against gaol, A prisoner suing the gaoler as a having re 1788. gaol, for refusing the Plaintiff (being the party grieved) a copy of his warrant of commitment. WARD against .SNELL. [*11] *Plea nil debet.-Verdict for the penalty 1007. but no damages nor costs. Marshall, Serjt., having obtained a rule to shew cause why the prothonotary should not tax the Plaintiff his costs, and why the associate should not indorse them on the postea, argued in support of it, That the first case which arose on the statute of Gloucester (a) was Pilfold's case (b), which, if it seem to militate against the Plaintiff in this action, has been in great measure contradicted by Lord Coke himself(c), and shaken by modern decisions (d). The present action is not brought for damages, but for a certain penalty given to the party grieved. Now where a statute gives a certain penalty, the party recovering such penalty must also recover costs, because, as the penalty is intended for a recompense to the party grieved for the damage he has received, if he could recover no more, it often would be in vain to sue, since his costs would exceed the penalty. But where a statute gives no certain penalty but only damages, such statute is introductive of a new law, and gives a remedy where there was none at common law, in which case no costs shall be recovered; the reason is, no certain sum being specified, the jury may give a full compensation in damages. It is an established rule of law, that where a penalty is given to a party grieved, he shall have his costs; as appears from North v. Wingate, Cro. Car. 559.--1 Roll. Abr. 574.-Eton v. Barker, Į Ventr. 133.-Corporation of Plymouth v. Collins, Carth. 230. Company of Cutlers v. Ruslin, Skynn. $63.-Bellasis v. Burbriche, 1 Ld. Raym. 172.-Shore v. Madiston, Salk. 206.-Greetham v. Inhabitants of Theale, 3 Burr. 1723. Gynes (qui tam) v. Stephenson, Cooke's Cases of Practice, 87. But even admitting the authority of Pilfold's case, yet the Plaintiff may have his costs, consistently with that case, which says, "That where a statute, since the statute of Gloucester, in a new case gives damages, the Plaintiff shall not recover costs, "this being an act which creates a recompense, where there was "none before." Now the Plaintiff is entitled to damages for the 66 (b) 10 Rep. 116. (c) 2 Inst. 288. (a) 6 Ed. 1. c. 1. (d) Witham v. Hill, 2 Wils. 91.-Jackson v. Inhabitants of Calesworth, Term Rep. of B. R. vol. 1. p. 71. detention detention of the penalty, by common law, Cro. Car. 559. 1 Vent. 133. *before cited, which also shews that he is intitled under the very terms of the statute of Gloucester, which are, "This shall "hold place where the party is to recover damages." He might also have recovered damages at common law on another ground (a). The offence of obstructing bail, is punishable at the suit of the party, as well as by indictment. Now it is necessary for a prisoner to have a copy of his commitment, in order to be more speedily bailed, otherwise the Habeas Corpus act would not have made it so penal to refuse it; the refusal therefore is an obstruction of bail. If a person in a distant part of the kingdom were committed to gaol for a misdemeanor without knowing the cause of his commitment, and forced to sue out a habeas corpus, in such a case he would have been prevented from being bailed; for had he known by a copy of the warrant, that it was for a misdemeanor, any justice of the peace might have bailed him. Bond, Serjt., against the rule, contended, that Pilfold's case ought to be relied on as law. That case distinguishes statutes of addition from statutes of creation, and lays it down, that on those of the latter description costs are not recoverable. That case ought to govern the present. The Habeas Corpus act is a creative not an accumulative statute, giving a new remedy to the party suing, to which he was not entitled at common law. There are no instances of an action at common law having ever been brought, for the injury against which that act provides a remedy. If then no action would lie against the Defendant at common law, the Habeas Corpus act cannot be included amongst those statutes which give costs, according to the description in Pilford's case, viz. "such as increase "the damages and costs given by the common law." Nor does the present case fall within the stat. of Gloucester, which gives costs only where damages were before to be recovered. There is no more reason to consider the Habeas Corpus act as an accumulative statute, than the statutes of waste (b), or of tithes (c); in neither of which cases the party could recover costs, till the legislature expressly interfered for that purpose. Where costs are meant to be given together with a penalty by a statute, they are expressly mentioned, as in the statute 23 H. 6. c. 14. for the regu 1788. WARD against SNELE [*12]. (a) Hawk. P. C. 90. (b) 6 Ed. 1. c. 5. (c) 2 and 3 Ed. 6. c. 13. 1788. WARD against SNELL lation of the return of Members of Parliament, the words of which are, "The said 100l. (the penalty,&c.) with his costs *spent ❝in that case. So in the statute of 7 & 8 W. 3. c. 7. on the same subject, costs are distinctly given, besides the penalty. When [*13] therefore no mention is made of costs in a penal statute, it is to be inferred, that the legislature meant to exclude them. Lord LOUGHBOROUGH saw no reason to doubt the authorities cited in support of the Plaintiff's right to costs. The statute of Gloucester is a remedial act, and ought to have a favourable interpretation. The penalty in the present case accrues to the party grieved before action brought, who having recovered a debt, is entitled to the costs attending such recovery. GOULD, J., of the same opinion-costs are in the nature of a satisfaction. This is not a popular action; it is like an action on a bond to recover a debt already due, a right of action vests in the party grieved as soon as the grievance is committed; but it is otherwise of a common informer, who has no interest till judg ment. HEATH and WILSON, Justices, of the same opinion. Rule absolute. not lie for goods irre under a dis WALLACE against KING and Others. Trover will THIS was an action on the case for selling goods distrained for rent in arrear, before five days had expired next after gularly sold the distress was taken and notice given. The declaration consisted of three counts: the first count was for an excessive disGeo.2.c.19. tress; the second, for an irregular distress; and the third was s. 19. having in trover for the goods distrained. tress, the statute 11 declared that the party selling Plea, general issue-Not guilty. should not be deemed a trespasser ab initio, and having given an action on the case to the party grieved by such sale. The five days allowed before a distress can be sold, are inclusive of the day of sale (a). Q. Whether goods distrained in the parish of A. can be appraised by appraisers sworn before the constable of the parish of B., each parish being in the same Hundred, but in different divisions, and each having different constables? (a) [But trover will lie for goods taken under a wrongful distress, Shipwick v. Blanchard, 6 T. R. 298, that is, under such a distress as since the statute 11 Geo. 2. c. 19. is properly the subject of an action of trespass; as to which see Winterbourne v. Morgan, 11 East, 395. Massing v. Kemble, 2 Campb. N. P. C. 115. Owen v. Legh, 3 B. & A. 470. A party who purchases goods under a distress irregularly conducted, has a sufficient title to maintain trover. Lyon v. Weldon, 2 Bingh. 334.] The |