case tempt Hardwicke the king versus inhabitant OF GLASTONBY in proceed upon a  writ of noctanter the court can give cost stram SC but not so full Lord  Hardwicke c j this be a proceed upon the stat Westminster e I c call a  noctanter the proceed herein be first a original writ to the case tempt  Hardwicke er p sheriff to inquire who throw down the hedge of I S in the night  time or at such time as they think it will not be know and then go on as a  original writ in trespass that if I S to make ax c he shall attach the person  guilty to answer as well to the king for the breach of the peace as to the say  I S for the say trespass and hereupon the sheriff return a inquisition which  find that the say hedge be throw down in the night time by person unknown the  next process be a distringa recite the above writ and return and command the  sheriff to distrain the next adjoin village to set up again the say hedge at  their own cost and also command he to inquire what damage the say I S have  sustain in this matter and to restore the same to the say I S the sheriff  return a inquisition find that I S have sustain damage to pound but that the  writ come tarde so that he can not restore the damage to I S hereupon be award  a alias distringa to set up the hedge and restore the damage as before then r  c and in the name of all the inhabitant of Glastonby come in and pray a  imparlance and then plead both to the repair of the fence and to the damage as  to the repair of the say fence that r c be seize of the place where in fee and  that the fence be erect in his soil ad nocumentum suum and therefore be pull  they down and as to the damage they plead that the say I S do not sustain  damage to above S and hereupon issue be join as well by the king coroner as by  the prosecutor and the jury find that the say I S sustain damage to pound S  beside cost for other instance of proceed by this writ see cro car d d roll p  see also I Lutw Str bull n p and upon this a motion be make that the court  will grant cost de increment but we be all of opinion that we can give cost  upon this proceed for we can find no such judgement give upon this statute  ever since it be make the only case where it be ever ask in this case be in  Carthew but the court then give no opinion it have be observe that it be  unnecessary for the court to give any opinion as to cost in that case as the  party have enter into a rule by consent that each of they shall pay their own  cost by which they be hold to be conclude I hull marge in the book of entry  there be no instance of such a judgement and in the entry of a proceed of this  sort which be in Lutw and which appear to have be very well consider by the  able band and where the writ of execution be correct by the Lord chief justice  holt himself there be no case tempt Hardwicke judgement for cost indeed in  that case the traverse be not take upon the damage but upon the writ only but  that will not vary the case ab all for if the prosecutor have be entitle to  cost at all he ought as well to have have his cost upon these traverse as if  the traverse have be upon the damage but it be say that the prosecutor in this  case be entitle to his cost by virtue of the statute of Gloucester c I the  word of which statute be that the demandant shall recover against the tenant  the cost of his writ purchase together with his damage now the construction  upon that statute be that cost shall be recover in such case only where there  be a plaintiff or defendant or a demandant or tenant but this case be entire a  traverse of a inquisition and be so hold I side and Keble it be likewise say  that this proceed be in nature of a action and similar to the action upon the  statute of hue and cry and likewise there be in this case a original writ  purchase but here the original writ be not sue out against the inhabitant of  the villan but against the malefactor only and if the sheriff have return the  malefactor there will be then a form action against they and the plaintiff  will be entitle to his cost but when there be a non invent return as to the  malefactor which be this case and the inhabitant be bring not as party to the  writ but collateral only upon the traverse of the inquisition that distinguish  this from a action upon the statute of hue and cry for there the inhabitant be  proper defendant be party to the original writ it be say indeed in I roll Rep  to be lie down by Lord coke that the party may have a action against the  inhabitant upon this statute as well as upon the statute of hue and cry but be  that as it will the remedy be not in fact take by way of action and no one  have yet try such a action as Lord coke there speak of for the remedy hitherto  take case tempt Hardwicke er p have be always in the manner of this proceed  which have obtain the name of a noctanter a argument be likewise draw from the  stat I geo stat c which enact that if any person malicious cut up tree c the  person damage shall have satisfaction from the parish and damage and cost to  be recover against the parish in like manner as be direct for edge overthrow  be to belevied upon the statute now in question and damage yield from whence  it be infer that the opinion of the legislature then be that cost ought to be  recover upon this statute but the word of the statute show the contrary for  though it direct damage and cost to be recover in the case there provide  against yet when it refer to the statute of Westminster the word cost be drop  therefore if any thing can be infer it be case tempt Hardwicke that cost be  not to be recover by that statute it must be allow it be reasonable the  prosecutor shall have cost but that will not warrant we to do it without the  direction of a Act of parliament and the rule settle and always adhere to be  that statute which give cost be to be take strict and so be I salk cone and  bowl