CATHEROL and cowper when a defendant be entitle to Triple cost what be the  proper method of his take advantage of they a action have be bring against the  defendant as collector of the turnpike between Chelsea and Fulham and the  plaintiff have be nonsuit at the trial Mr Abney say that the defendant be  entitle to Triple cost by the statute of g which create this turnpike but he  observe that the action which the plaintiff have bring be a common action not  appear at all upon the face of the record to have be bring upon this statute  and therefore he submit it that it will be error in the court to give Triple  cost without a special entry be first make upon the postea that it appear upon  the trial that the action be bring upon this act and therefore he move that  such entry may be make he do agree that such cost be general Barnardiston king  b lie give upon a certificate of a judge but that be only do in such case when  statute have give power to judge to certify and that he observe be the case  upon the statute of James make perpetual by James upon car W and W but the  very thing which he now pray he say be do in the case of the king and Poland  pasch Geo the defendant be there indict on the statute of Elizabeth for  exercise the trade of a glover without have serve a legal apprenticeship on  evidence it appear that he be a soldier and have serve in the late war by  reason of which he be entitle to set up any trade within the express word of  the statute of W accord he be find not guilty upon that sergeant Cheshire say  that the statute of W give the defendant Triple cost and therefore he pray  that such a entry may be make on the postea as be desire in the present case  and it be grant he he say likewise that sergeant Cheshire in his motion cite  the case of Bateman and Wallis Trin W where the same thing have be allow once  before upon that statute Mr fazakerly on the other side argue and say that he  submit it the Triple cost in this case can only be allow upon a certificate of  the judge that try the cause it be well know that it be the constant practice  of the assize to apply to a judge to certify without at all regard whether any  statute have give the judge such power or not and he apprehend such  certificate be always credit by the court above as be the proper evidence of  what happen upon the trial and do not appear upon the record but he submit it  that the defendant be too late now to take this remedy and consequent too late  to have any remedy at all certificate of this sort he observe be Barnardiston  king b er p constant move for to be make by a judge of assize as soon as the  cause be try in the case of the king and mott mich Geo a application be make  to a judge at his chamber to certify it be argue there by counsel on both side  whether he have a right to do it now or not and upon conference with many of  the judge he at last declare his opinion to be that he have not upon a bill of  exception between wharton and Marriot in the court of exchequer it be  determine that that can not be sign but by the judge in open court as soon as  the cause be try and the same be determine in the case of carve and wright  afterward in this court he say as to the case of the king and Poland which the  other side have rely upon that may very well be allow for law without any way  affect the present case for that be a indictment and therefore it will have be  error to have give any cost without a special entry but here he say in every  common case the defendant be entitle to some cost and whether those cost be  Triple or not need not appear upon the record the court declare that they see  no reason why the master can not ascertain these cost upon affidavit and  therefore make a rule to show cause for that purpose and judge lee say though  in general case a new trial be grant only upon Barnardiston king b the  certificate of a judge yet in the case of Lord chief justice prats die before  such certificate can be make the court grant a new trial upon affidavit vide  post