
    * Jonathan Smith versus Nicholas Drew.
    Where one convicted of larceny was sentenced to pay to the owner the treble value of the goods stolen, and the owner neglected to sell Mm in service, or to give security to the gaoler for the charge of keeping the prisoner after thirty days had expired, and he was afterwards discharged by order of Court, it was held that the owner could not maintain an action of debt against the convict for the treble damages.
    The declaration in this action was “ in a plea of debt, for that, whereas at the Supreme Judicial Court of this commonwealth begun and holden at Taunton, within and for the county of Bristol aforesaid, on the third Tuesday of October, in the year of our Lord eighteen hundred and three, an indictment was proffered to said Court by the grand jury of said commonwealth, for the body of said county, wherein the said Drew was charged with having taken, stolen, and carried away certain goods of the plaintiff, which indictment being then and there read to the said Drew, he, the said Drew, said that thereof he was guilty, and thereupon, among other things, it was then and there ordered and considered by said Court, that the said Drew forfeit and pay to the plaintiff the sum of forty-one dollars and forty-two cents, being with the goods restored treble the value of the goods stolen, as by the record of the same Court now remaining appears, an authenticated copy whereof is in Court to be produced ; which said order, sentence and judgment aie still in full force, and not reversed, annulled or satisfied; whereby an action hath accrued to the plaintiff to have and recover of the said Drew the aforesaid sum of forty-one dollars and forty-two cents. Yet though requested,” &c.
    The defendant pleads in bar, that being convicted of the crime mentioned in the plaintiff’s declaration, and at the Court therein alleged, he was then and there sentenced by the Court to the corporal punishment in the same sentence mentioned, and also to pay the said sum of 41 dollars, 42 cents, being, with the goods restored, treble the value of the goods stolen; and it was further ordered that, if he was unable to pay the same, he should make satisfaction therefor by service; and the plaintiff was authorized to dispose of him in service to any person whomsoever, for the term of [*515 ] nine months, to * commence from the execution of the former part of the sentence; and the defendant in fact says, that he was committed to prison under the said sentence, that he received all the punishment ordered by the former part of the sentence within three months after the same, that he remained in prison a year, during all which time he was unable to pay the said sum, and was afterwards discharged by this Court upon his petition; that the plaintiff never disposed of him in service, and never offered to become engaged or give security to the prison-keeper to pay his charge in keeping the defendant.
    To this plea in bar the plaintiff demurs generally, and the defendant joins in demurrer.
   The cause was submitted without argument, and being continued nisi, the opinion of the Court was delivered at the following March term, at Boston, by

Parsons, C. J.

By the statute of 1784, c. 66. <§. 1., every person convicted of larceny might be punished by a fine not exceeding one hundred pounds, or by whipping not exceeding thirty-nine stripes. And the third section provided that besides the said punishment, he should be sentenced to forfeit to the owner treble the value of the goods stolen, deducting the value of such of them as might be returned ; and if the offender should be unable to pay the same, he might be further sentenced to make satisfaction by service to the owner, who was empowered to dispose of him in service, for such time as the Court should assign. But it was enacted in the tenth section, that unless the owner shall sell him in service within thirty days, or give to the gaoler security to pay the charges of keeping the convict in prison, the gaoler may set him at .liberty, the prisoner paying him the prison charges.

When a statute creates a new right, without prescribing a remedy, the common law will furnish an adequate remedy to give effect - •. the statute right. But when a statute has created a new right, and has also prescribed *a remedy for the enjoy- [ * 516 ] ment of the right, he who claims the right must pursue the statute remedy.

Wheaton, for the plaintiff.

Tillinghast, for the defendant.

In the case before us, the right claimed by the plaintiff to receive the treble damages is given by the statute, which also prescribes his remedy. Upon the sentence, the defendant was in execution. If able to pay, his body was a pledge to the plaintiff; if unable, the plaintiff might dispose of him in service for nine months. This disposition he was not obliged to make within thirty days, if he would secure the prison charges to the gaoler. On giving security, he might retain the body as a pledge until payment.

But he wholly neglected his remedy. The defendant not being able to pay, the plaintiff did not dispose of him, nor retain the body by giving security. The defendant was afterwards lawfully dis charged, and the plaintiff has now no remedy.

The treble damages were awarded as part of the defendant’s pun ishment; and the award was part of the sentence, on which he was in execution. For if several persons are jointly concerned in stealing the same goods, on conviction, the treble damages are awarded against each. The right of the owner is an incidental part of the sentence, which must be executed agreeably to the provisions of the statute, and not in any other way.

The plea in bar therefore appears to us to be good, and a suffi cient answer to the plaintiff’s declaration.

Had the defendant pleaded nul tiel record, the plaintiff must have failed of his record, for the sentence being entire, there is no such record as that on which the plaintiff has counted.

Defendant’s plea adjudged good.  