
    [Pittsburg,
    September 28, 1827.]
    SMITH against MEANOR.
    IN ERROR.
    The landlord’s right to distrain at the end of the year, is not affected by an agreement in the lease that he may re-enter, if the rent be unpaid, at a stipulated period after the expiration of the year.
    It seems, trover cannot be joined with an action on the act of assembly to recover double damages, for distress and sale, where no rent is in arj-ear and due.
    In such action on the act of assembly, it is sufficient if the writ refers to the act of assembly, though it do not conclude against the form and effect of the act of assembly.
    Writ of error to the Court of Common Pleas of Washington county, in which the plaintiff in error was defendant below,, and a verdict, and judgment passed against him. ■ It was a suit brought by Samuel Meanor against John Smith, under the proviso contained in the third section of the act of the 21st of March, 1772, to recover double damages for a distress and sale, where, it was alleged, no rent was in arrear and due. It appeared by articles of agreement, that the plaintiff rented a farm from Judge Redice for seven years from the 1st of Jlpril, 1822, at the annual rent of fifty-six dollars. Before the expiration of the first year, the plaintiff gave notice that he relinquished the farm and would leave the premises. He did so, leaving grain, &c., on the premises which Judge Redice, by warrant directed to the defendant, who was a constable, distrained and sold in satisfaction of the rent. The plaintiff asserted that the rent was not payable, at the time of the distress made. The article on this subject was as follows:
    
      “ Article of agreement made and concluded this 13th day of September, 1822, between John Redick of Beaver county, &c., and Samuel Meanor of, &c., witnesseth, that for and in consideration of the sum of fifty-six dollars for each and every year, he the said Redick hath let to farm unto the said Meanor, that tract or parcel of land whereon J. Wilson now resides, for and during the term of seven years, to commence on the 1st day of ,Rpril next, bounded by lands of E. Crawford; during which term of seven years, in addition to the above rent, the said Meanor agrees to pay all the public taxes, and clear as much adjoining a small patch now clear on the west side of the road, leading to Hunter’s mill as will amount (including said patch) to seven acres, and all the land the said Meanor chooses to clear- on the right bank of the spring run, leading down from the house towards E. Crawford’s, not to exceed fifteen acres. It is agreed he shall have the benefit thereof during four years from the commencement of this lease, as well as that on the west of the road including the patch above mentioned; and for the balance of the seven years, he, the said Meanor, agrees to pay the said Redick at the rate of one dollar per acre, so cleared and fenced, and moreover, to put a good shingled roof on the said house or cabin, wherein the said Wilson now resides. It is, moreover, agreed by the parties, that if the said Meanor shall make default in paying the stipulated rent for three months beyond the 1st day of April in each year, that in that case it shall and may be lawful for said Redick, his heirs or assigns to re-enter, and dispossess the said tenant, and re-possess the said premises; unless for the first year; it is agreed he shall ¡jhave sis months to pay up after the expiration of the first year, but three only thereafter. It is further agreed, that the said Meanor shall not sell his lease without the consent of his landlord; and it is further agreed, that at the end of the term which will be in 1829, he shall deliver up peaceable possession of the premises, leaving the whole in good order.”
    The court below charged the jury that the rent was not in arrear and due, and that the plaintiff was entitled to .recover. 1’he defendant excepted to this charge.
    The declaration contained three counts. The first and second, complained of an unlawful distress by colour of law: the third was in trover.
    
      Ross, for the plaintiff in error.
    1. Notwithstanding the agreement to dispossess the tenant, if the rent were not paid in three months after it was due, the landlord could distrain as soon as the rent was due.
    2. Trover cannot be joined with the other counts. In the 1 at ter doable damages are recoverable, and therefore the same judgment cannot be given on both,
    3. The writ must conclude against the form and effect of the act of assembly. 6 Serg. & Rawle, 286. Reese v. Emerick. This is omitted here.
    
      Kennedy, contra.
    
    
      1. The reasonable construction is, that the rent was not to be due before the period of re-entry. On the second point he cited, 16 Johns. 147. 3 Wils. 348. 2 Saund. 187, note. 2 Burr. 1114. 1 Chitt. Pl. 198, 206.
   The opinion of the court was delivered by

Duncan, J.

Whether an action of trover can be joined with an action founded on the act of assembly for distraining for rent, where there is no rent due or in arrear, and which gives double the value of the goods distrained in damages, is a question raised on this record. Although the two first counts do not conclude against the form of the act, they refer to the act; and it sufficiently appears they are counts on that act, statutory actions, on which, if the tenant recovers, he is to have judgment for double the value of the goods.

It seems to be a rule, that two causes of action may be joined where the process is the same, the plea the same, and the judgment the same. It may be true, that the consideration is, whether the actions are of the same nature; there they may be joined; as, if the foundation of the action is tort, any-other tort may be joined: but trespass vi et armis and trespass on the case cannot be joined, because the actions are of a different species. So actions of contract may be joined where the foundation of the action is a contract of the same species — both simple contracts. But it seems to me a principle, that an action on a statute to enforce a penalty for a transgression, cannot be coupled with a demand for the recovery of damages for a mere conversion of the goods of another. They are diverso intuito. Mere- recompense is generally the measure of damages in the one case; the infliction of a prescribed penalty, double the damages sustained, in the other. If the plaintiff had brought an action of trover, and judgment had been for the defendant, that could not have been pleaded in bar of the action for the penalty; the object of the suit would be very diffeVent: the same evidence would not support both actions. Trover is an equitable action: this cannot be said of an action for a penalty. In trover, the plaintiff receives only an indemnity: in an action on the statute he is doubly indemnified. The true value of property, and compensation from the time of the demand, is the measure of damages: consequential or exemplary damages are never given in trover, unless in very extraordinary cases, as family pictures or plate; on the statute exemplary damages must be given. The jury can exercise no latitude. A count in trover cannot be joined with a .special action on the case for fraud. If a statute gives a remedy in the affirmative for a matter actionable at common law, the party may sue at common law, and waive his remedy by statute. 2 Inst. 200. 4 Burr. 335. This clearly shows that a party cannot join the two different remedies in the same action. He may make his election, but cannot sue separately on each remedy, or join them in the same action.

Case for taking the distress would lie at the common law, with which trover might be joined, because there the judgment would be the same; but the verdict, in an action on- the statute and trover would be different. The doubje damages are in the nature of a penalty imposed by the act on the wrongdoer. The jury find the value of the goods. This is doubled'by the judgment of the court. Double damages is the judgment in an action on the statute; single damages in the action of trover. Whether double damages were actually given, is not matter of inquiry now; they might have been given, they necessarily were given. On these counts, from the charge, we must infer the judgment was for the penalty on the act. The court instructed the jury, that the case was within the penalty of the act; therefore, in this case, there is a misjoinder of action: but, on the merits, the judgment must be reversed. The stipulation, as to protracted time after the rent became due, relates only to the right of re-entry, and forfeiture of the lease. It is a distinct and independent covenant, introduced for the benefit o£ the landlord. The rent became due and was in arrear at the end of the year: the landlord insists that there shall be a covenant enabling him to re-enter for non-payment; to which the tenant assents, on this condition — that there shall be no entry or forfeiture, provided he pays up within six months after the expiration of the first year, and eight months, in the subsequent years; the re-entry and forfeiture could not be enforced, but according to the terms of this stipulation. The payment of the rent, and the landlord’s remedy by distress, is not affected by this. He has two remedies: one to proceed immediately as the rent becomes due, by action or distress; the other by re-entry for the forfeiture, at the end of three months, in the first year, and six months in the subsequent years. These are cumulative rights and remedies. The right of re-entry does not take away the right of distress: the landlord may take either one or the other. If he distrains, he waives the forfeiture. If the tenant pays up within three or six months, the tenant saves the forfeiture; but he is not absolved from payment of the rent as it becomes due: that moment the right of the landlord attaches, and he must take either the one course or the other. A Court of Chancery would relieve from the forfeiture, after the end of six months, on payment of the rent, except where the landlord recovers in ejectment for the forfeiture; but chancery would not interfere with the landlord’s right of distress. On both grounds, judgment is reversed: a venire facias de novo is not awarded, because the plaintiff never could maintain this action, and it would be useless to grant a new trial.

Judgment reversed.  