case north against Wingate Trinity term car roll in debt on a penal statute  for a certain penalty the plaintiff shall have damage and cost and the  judgement shall be in pity Jones march roll ab cro James Noy Carth salk bull n  p error of a judgement in the common plea in debt upon the Phil mary c for  take tenpence for a distress where by the statute he ought to take but  fourpence unless in croak car place where it be otherwise accustom sub pnae  forisfacturae five pound the defendant plead non debet and the jury find quod  debet the say five pound and assess damage twopence and cost S d and the court  increase the cost to seven pound and judgement give that he shall have writ  for the say five pound and the say damage and cost and that the defendant be  in miscricordia and of this judgement error be bring and assign by Grimston  first that no damage or cost ought to be give because it be a penal statute  and a penalty be give by the statute he ought not to have any cost and damage  but the penalty only and for proof thereof he cite Pilfords case   that where  a statute give single or double or Triple damage and do not mention any cost  there the plaintiff shall not recover any cost a the second error assign  because the judgement be therefore in pity where it ought to have be therefore  to take in hand a see will c croak car er p but all the court resolve that the  judgement be good and ought to be affirm for to the first when a statute give  a penalty certain and give a action of debt there if the defendant do not pay  it upon demand but enforce the party into a suit and he recover by action of  debt ex subsequent he shall recover his damage because be do not pay the duty  due by the statute upon demand and he shall also recover cost for otherwise he  shall be at a loss to expend more than he recover which the statute never  intend but where the duty be uncertain as to recover Triple damage as upon the  statute of waste or upon the Edward c for not set forth of tithe there the  duty be uncertain the statute intend to give the Triple value only and not the  cost and so be the precedent in coke entry and as to the second error the  judgement be in debt for nonpayment and not upon the statute the judgement  ought to be in pity