
    [Lancaster,
    June 6, 1825.]
    O’DONNEL against SEYBERT.
    IN ERROR.
    The right to an action for an excessive distress, does not pass by an assignment under the insolvent debtor’s act.
    The tenant, on whose premises the property of a stranger is seized for rent, is liable over to the stranger.
    The record of the transcript of a justice’s docket entered in the prothonotary’s office, is not evidence of the proceedings before the justice, to show a former recovery.
    A recovery of the surplus money, for which goods seized for rent sold beyond the amount of rent, is no evidence in a suit for an excessive distress.
    Br the return of the writ of error, in this case, to the Court of Common Pleas of Lancaster county, it appeared that this was an action on the case, brought by the plaintiff below, John Jldam Seybert, against the defendant below, Denis O’ Donnel, to recover damages for an excessive distress for rent. The plea was,— Not guilty. The evidence offered and contained in the 2d and 4th bills of exceptions, hereafter stated, was offered by the defendant, to show that a former recovery was had, in an action of trespass, brought before Samuel Carpenter, Esq. a justice of the peace, for the taking of the distress for which this action was brought; which had been referred, and an award made against the defendant, for fifty-five dollars, damages. The question in the first instance was, whether the evidence could be received under the plea of not guilty. It was rejected by the court below, and then the plea of former recovery was added, and after this plea was added, the same evidence was again offered, and rejected by the court. The evidence offered and contained in the 3d bill of exceptions was for the purpose of showing that suit had been brought before George Matter, Esquire, for the balance of the sales of the property distrained after paying the rent; and the evidence contained in the first bill of exceptions was offered to show that the plaintiff, previous to the distress being made, on the 20th of September, 1819, had taken the benefit of the act, for the relief of insolvent debtors, and in his petition returned no property. This petition Was presented on the 26th of Jlugust, 1819.
    The plaintiff gave in evidence that the plaintiff leased a house and lot from the defendant, at twenty-five pounds per annum, payable quarterly, commencing the 1st of Jlpril, 1814. The defendant issued a landlord’s warrant, dated the 8th of November, 1'819, for thirty-three dollars, and thirty-four cents, rent alleged to be due. The defendant gave to the plaintiff a receipt, dated the 6th of November, 1819, for eighteen dollars, as part of one year’s rent. In pursuance of the direction of the warrant, John Hambright, the constable, distrained the property mentioned in a schedule, on the 9th of November, 1819-. That Denis O’Donnel was present when-the schedule was taken. The property distrained was removed into another house, and there remained, until the 29th of March, 1820, when it was sold at vendue. A copy of the aforesaid schedule being produced, in the handwriting of John Morrison, with a valuation of the articles thereip contained, amounting to two hundred and twenty-three dollars, and twenty cents, was proved to be a reasonable valuation, by the said John Morrison. The defendant attended the sales of the said goods, distrained, and carried them out himself to the crier. The constable wanted to stop the sale, supposing there was enough sold to pay the rent due, but the defendant told him to go on. The defendant became the purchaser of a nujnber of the articles himself. The crier and constable requested the defendant to have the goods moved to the Market Square to be sold, stating that they would bring a much better price; but the defendant refused, and said, they must be sold where they were The goods sold at a great sacrifice; they did not bring half price. The plaintiff was at the time of the distress driven out of house and home, and was afterwards supported by the charity of the neighbours. The cradle in which the infant child lay was distrained, when the daughter of the plaintiff begged that the defendant should leave it, the defendant took up a stick of wood and drove her off. It was also proved, that the property dis-trained was never appraised according to law. On the cross-examination of Catharine Seybert, a witness on the part of the plaintiff, and daughter of the plaintiff, it also appeared, that the goods distrained by virtue of the aforesaid warrant, and in the said schedule mentioned, were the property of the plaintiff on the 1st of Jlpril, 1819, when he' moved to the premises of the defendant, and continued in his possession from the said 1st of Jlpril, 1819, until the day of the date of the warrant, and until they were distrained as aforesaid, for rent.
    
      1st Bill of exceptions. The defendant then offered in evidence the petition of the plaintiff, for the benefit of the insolvent laws, and the assignment, and the proceedings thereon, prout the said petition, and proceedings thereon, the trustees never having given bond according to law, nor acted under the same, which being objected to by the counsel for the plaintiff, the court sustained the objection, and overruled the evidence, to which the counsel for the defendant excepted.
    
      2d Bill, The defendant offered in evidence the record of a transcript of a judgment entered in the prothonotary’s office to January 'Verm, 1823, in a suit brought before Samuel Carpenter, Esquire, in which a recovery was had, for the same cause of action, and also to prove, that the same testimony was given to support the said action, which has been given in this cause now trying; which was objected to by the counsel for the plaintiff, and the same was overruled by the court, to which opinion the counsel for the defendant excepted.
    
      
      3d Bill The defendant offered in evidence the record of a suit on the docket of George Matter, Esq. brought by John Ham-bright, the constable, against the defendant, to recover the balance of the amount of the sales of the property alleged to be the plaintiffs, in which judgment was obtained, and a transcript thereof entered in the prothonotary’s office, and that the said judgment was for the use of the plaintiff in this suit, and that the defendant had real property, on which this judgment was binding; which was objected to by the counsel for the plaintiff, and the same was overruled by the court, to which opinion the counsel for the defendant excepted.
    
      4th Bill. The defendant, after having added the plea of the former recovery, and after it was drawn out, and put at issue by the plaintiff, again offered in evidence the record of a transcript of a judgment entered in the prothonotary’s office to January Term, 1823, in a suit brought before Samuel Carpenter, Esq. in which a recovery was had for the same cause of action; and, in connexion, offered to prove, that the same testimony was given to support the said action, that had been given in this cause now trying; which was objected to by the plaintiff’s counsel, and dverruled by the court, and their opinion excepted to by the defendant.
    The errors assigned were the rejection of the testimony contained in the 1st, 2d, 3d, and 4th bills of exceptions.
    The case was argued by
    
      Slaymaker, for the plaintiff in error.
    Buchanan, contra.
   The opinion of the court was delivered by

Duncan, J.

The action for excessive distress has not been a common action in Pennsylvania; indeed the occurrences are rare which would justify it. But, from the evidence returned with the record, this appears to have been a malicious and tyrannical exercise of the power which the law gives the landlord to take the remedy into his own hand. But, while it gives the power, it protects the tenant against its abuse, for this was always punishable at the common law. But the statute of Marlbridge has nearly superseded the common law action. The 10th chapter of the statute proceeds, “that distresses shall be reasonable, and not too great; and that he who takes great and unreasonable distresses shall be grievously amerced, for the excess of such distress.”

The distress in this instance appears to have been malicious and outrageous, and the amercement by no means too grievous. The action is personal, like an action for the malicious suing out and prosecuting a writ without a cause; or malicious holding to excessive bail, where there was no cause of action, or one of greatly inferior amount to the bail demanded. It is not assignable under the insolvent debtors’ act, morilur cum persona; but it is, likewise, an action on a penal statute, which does n'ot survive. It went no more to the assignees of insolvent debtors than an action of slander. It is not an action of contract, or of property. There is no standard ,of value. The amercement is to be grievous; and, therefore, the proceedings under the insolvent debtors’ act were not evidence in bar of the action, nor was it proper to admit it, under colour of lessening the damages. For, if the tenant was not the absolute owner of the property, he might have such a special property as would have enabled him to bring trespass; and, if the property was found on the premises, it would be liable, though it belonged not to the tenant, to the landlord’s distress; and, in that ease, the tenant would be liable over to the stranger, because it had been seized to pay his rent; and this was a sufficient reason for rejecting the evidence.

The 2d and 4lh bills of exceptions relate to the same species- of evidence offered at different times, and under different pleas. It was not the rejection of a record of a judgment in any action. The paper offered was a mere transcript of the justice’s docket, of the judgment entered in the prothonotary’s office, for a single purpose, —that of binding the defendant’s lands. The record remained with the justice. It was not removed into the Court of Common Pleas. Though the transcript was filed, the defendant might have appealed from it, or he might have brought it into the Court of Common Pleas, by certiorari, and had it reversed. The transcript and its entry did not touch the record before the justice, which always remained with him, until brought up by appeal, or reversed by certiorari,. Snyder v. Drum, 1 Binn. 181.

The only evidence of a recovery in the action would have .been the record; and, whatever might have been the case, had the record of the proceedings been offered, the transcript was not evidence for any purpose in this action.

The Sd exception has no foundation in law. I do not decide this on the ground of its being appealed from, but because the judgment was for a different cause of action. It was for the surplus money, arising from the sale of the distress, beyond the rent in arrear; and was in fact money which O’Donnel owed to the plaintiffs, for goods distrained, bought by him, on his own sale; and, whether the action was brought by Seybert or the constable, it was not a penal action, requiring a grievous amercement, but for money of Seybert’s, in the hands of O’Donnel.

It might as well be pretended, that a recovery in an action of assault and battery, accompanied with abusive language, should be given in evidence in an action of slander, for speaking the same words. The actions are of a distinct nature. — Recovery in one would be no bar to the other; nor ought it to go in mitigation of damages. The actions were diverso intuitu. On principles of law and reason, all the rejected evidence was inadmissible, and the judgment is affirmed.

Judgment affirmed.  