case the king against speed if a conviction before justice of peace on a penal  statute be remove into the court of king bench and affirm the penalty can only  be levy by a writ of to lift up facias out of that court for the record can be  remand to the justice and the offender good must not only be seize but sell by  virtue of such writ although the statute on which he be convict only say that  the forfeiture shall be levy by way of distress S c salk S c Carth S c ld ray  a conviction for deerstealing against he be remove up by certiorari and affirm  here a a to lift up facias issue out to levy the money eyres move to supersede  that process as irregular a see S c ld ray modern report er p first because  this be make a particular offence and punishable in a precise manner and  strict accord to the word of the statute be against great Charta and therefore  not to have the aid of the process of this court to levy the money no more  than they shall have the help of indictment or information original second if  this course shall hold the Act will be more penal than be design for thus his  good in any county in England may be liable whereas the statute only subject  his good in the county where the offence be commit for if there be none in the  county where this process be direct and that be return a known on good  evidence may be and thereupon a to lift up into any other county c three the  statute direct the money shall be levy by warrant which be not pursue fourthly  the prosecutor himself may remove the conviction and entitle himself to this  process and for aught appear to the court it be so here vide hut five at  modern report this rate the offender may be double punish for suppose the  sheriff levy twenty pound still the party shall be liable to a year  imprisonment and pillory beside for the statute ordain it so in case of  failure of distress to the value of thirty pound which inconveniency will not  ensue in case of process to the constable for the constable in case of failure  of distress to the full value shall not sell the good as the sheriff must so  the party after he have undergo the punishment of imprisonment c shall have  his good again and be quote a case in Michaelmas term in the twentythird of  Charles the second keb v Felton if any process may be award out of this court  it must be a distress the word of the statute direct it to be by way of  distress of the good of the offender without say distress and sale of good and  in such case the officer shall not sell for where a Act have a know term in  law it shall be interpret accord to the law acceptation of such term and  distress for rend at commonlaw be not to be sell but to remain in nature of a  pledge and so here it ought only to be in order to enforce a payment dyer in  case of return irreplevisable the avowant shall not sell Henry pl roll ab if  debt be recover in a courtbaron they can only distrain but not sell but only  detain it till payment and it be make a doubt if a certiorari be of a  judgement in a inferior court of record this court shall award execution keb  if distress be give by a penal statute it shall not be sell and therefore it  be that some statute do express put in the word distress and sale of good and  that the statute of Elizabeth have those word Allen that commissioner of sewer  may sell though there be no such word but the statute have word tantamount for  it be that the amerciament shall be levy and the party punish accord to their  discretion and beside that they may proceed accord to the custom of  RumneyMarsh by which the distress may be sell and here they be not without  remedy for the court may send their mandate to a justice of peace to issue a  warrant for levy by distress holt chief justice where one entitle himself to a  duty and remedy by prescription he must set out his remedy whole indeed if you  prescribe to a duty you may have debt for it without prescription but you can  distrain without it and if you prescribe to duty and distress you can by  virtue thereof sell without a prescription for sell too because a prescription  may be to distrain without sell modern report but by your argument Mr eyres  the certiorari will defeat the whole proceed and conviction for though the  conviction be confirm you will have it that the justice can give a warrant the  record be here and if we can award execution there be a end of the matter but  by necessary consequence of law whensoever there be a particular jurisdiction  erect a appeal lie from it to this court if there be no judgement below there  will be no need of a certiorari in this case and if there be one then shall  one go and we you say can award execution sure that will make a failure of  justice and we have a power to confirm as well as to reverse or quash and if  so by necessary consequence we have a power to award execution of what we  confirm for below nothing can be do because the record be here to say that at  this rate the money may be levy in another county be not the case before we  for here the process be into the county where the fact be commit so you come  too soon for that objection but if no one good have be modern report er p  return and a testatum have issue there then have be some colour for your  objection when a statute say money shall be levy by distress this be a  execution raze Entr levy by distress be a special plea and so be nil debet if  a man have rend due to he he have his election to bring debt or to distrain  and if he bring debt after distrain the defendant may plead levy per distress  for by distrain he have determine his election for that time for otherwise he  may have two judgement videlicet return irreplevisable and judgement in debt  to avoid which he may in that case plead levy by distress but qure if he have  distrain and the cattle die in pound per moi but distress in a leet of common  right may be sell because it be a court of record otherwise of distress in  court that be not of record as to commissioner of sewer that be a special  power give they and in consequence of that they may sell and Calais take great  pain to prove that they be a court of record a and though some act that order  thing to be levy by distress have also the word and sale yet no necessary  inference can be make from that for statute very often express matter more  plain than they need for great caution et per curium here the process be  regular and the good may be sell note further per totan curium that if all the  sum be levy to a small matter yet the party for default thereof shall modern  report undergo the corporal punishment too videlicet the pillory and year  imprisonment