
    Rees against Emerick and others.
    December 18.
    The act of assembly of 21el March 9 1772^ which declares, that if a distress and sale shall be made when no rent is in arrear, the owner of the goods distrained and sold, may, by action of trespass, or on the case, recover doable the value of the goods, does not prevent the party aggrieved from bringing an action at common law for entering bis close, &c. in which he may recover damages,to a greater amoimt than double the value of the goo s istram
    THIS was an action of trespass quare clausum fregerunt, and bona asportaverunt, brought in this Court. The .defendants pleaded non cul., and justified under a demise to the plaintiff, by Baltus Emerick, one of the defendants, and a distress for rent in arrear. The plaintiff replied, no rent in arrear, and issue was joined. The cause was tried before Judge Duncan, at Nisi Prius, on the 26th September, 1820, when it appeared that before the distress was made, the plaintiff had tendered a sum equal to the rent really due, which Emerick, who claimed a greater amount, refused to receive, but proceeded to distrain, and sold the goods. The jury, under the direction of the judge, found for the plaintiff 120 dollars, double the value of the goods, under the act of assembly of 21st March, 1/72, and found further for the plaintiff^ and assessed damages at 290 dollars, with six cents costs, subject to the opinion of the Court upon the question, whether, by the provisions of the act of assembly, the damages were to be limited to double the value of the goods ; if they were, judgment was to be entered for the former, if not, for the latter sum.
    tf,e third section of the act of assembly abovementioned, (Furd. Dig. 578,) it is enacted, “ That in case any distress and sale shall be made by virtue of this act, for rent pretended to be in arrear and due, when in truth no rent shall appear to be in arrear or due to the person or persons distraining, or to him or them in whose name or names, or right, such distress shall be taken, as aforesaid, that then the owner of such goods and chattels distrained and sold, as aforesaid, his executors or administrators shall and may, by action of trespass, or upon the case, to be brought against the person or persons so distraining, any or either of them, his or their executors or administrators, recover double the value of the goods or chattels so distrained and sold, together with full of costs of suit.”
    
      
      Phillips, for the plaintiff,
    denied-that the j ury were restrained by the act of assembly from giving damages beyond double the value of the goods distrained. - The action, he said, was not founded upon the act, which spoke only of distraining and selling where no rent was due; it was an action at common law for breaking and entering the plaintiff’s close, with respect to which, the act made no provision. The plaintiff, therefore, could not have judgment under the act, for the writ did not conclude against the form of the statute. Morrison v. Gross, 1 Browne’s Rep. 1. The judgment, consequently, must be given without reference to the act of assembly.
    
      J. M. Read for the defendant.
    The question is, whether the act of assembly has taken away the action of trespass at common law. The only dispute was, whether any rent was in arrear and due ; and whether Emerick had a right to enter and distrain. The general rule jis, that where a statute limits a thing to be in one form, it supercedes the common law. 2 Inst. 200. 19 Fin. BiZ.pl. 7. And it is moreover expressly declared by an act of assembly of 21st March, 1806, sect. 13. Purd. Dig. 2. that in all cases where a remedy is provided, or a duty enjoined by an act of assembly, the directions of the act shall be strictly pursued, and no penalty shall be inflicted, or any thing done agreeably to the provisions of the common law, further than shall be necessary for the purpose oí" carrying the act into effect. In the present instance, a remedy was given by act of assembly, and therefore no common law remedy could be pursued. That the plaintiff cannot have judgment under the act of assembly, because his action is not founded upon it, is true ; but it does not follow that his common law suit can be supported ; the consequence of his omission to pursue the remedy indicated by the law is, that he is entitled to no judgment whatever.
   Duncan J.,

delivered the Court’s opinion.

This cause was tried before mé at the sittings in April last. It was trespass for breaking and entering the house of the plaintiff, and taking away her goods. The defendant pleaded, not guilty, and justified the taking as distress for rent.

It appeared on the trial of the cause, that a tender had been made of the rent really due before the distress made; the defendant, however, went on to distrain, claiming a larger sum, and sold the plaintiff’s goods.

This remedy the law has placed in the hands of the landlord ; but an abuse of it subjects him to an action ; and if he distrains after tender, the tenant may make rescous of the goods distrained, and may maintain trespass for the injury done him by the lawless intrusion into his house, seising and carrying away his goods. The plaintiff went for damages beyond the value of the goods distrained and sold, alleging that the conduct of the defendant had been arbitrary and oppressive, and a difficulty was made whether she could recover more than double the value of the goods distrained and sold. A.s the 3d section of the act of 21st March, 1772, provided, that if distress and sale should be made where no rent was due, the owner'might, by trespass, or action on the case, against the distrainer, recover double the value of the goods, with costs of suit ; the same provision, in terms, as is contained in statute 2 W. and M. c. 25. I recommended it to the jury to find first such damages, as under all the evidence they should think proper; and secondly, double the value of the goods sold and distrained. The jury have done so ; and the damages on the second finding exceed double the value of the goods. It was agreed that the Court in Bank should render judgment for the one sum or the other, as they considered the law to be, and we are now to consider what ought to be the judgment on this verdict. It is a general principle, that where a statute gives increased damages, the writ should conclude against the form of the statute. This is very fully considered by the late President Rush in the case in 1 Browne 1.; and the law is clearly and accurately laid down. So it will be found in 8 Johns. 342. Under the statute of W. M. the precedents are all so. 8 Wentworth, 429. 2 Chitty, 289. This, then, is not an action founded on the act. “ The remedy under the act is conclusive, and does' not take away the plaintiff’s common law ac.tion : it would be unreasonable that it should. The outrage committed in making the distress, might be most wanton and grievous, and the property sold but of little value. The Legislature intended this doubling the value of the goods as a punishment: in many instances it might amount to an exemption from punishment. And the law is well settled, that where a statute gives a remedy in affirmation, for a matter actionable at common law, a party may sue at common law, and wave his remedy by statute. 2 Inst. 200. 5 Johns. 175.

It would be stretching the provision of the act of 21st March, 1806, enacting, that where a remedy is provided or duty enjoined, or any thing directed to be done, by any act or acts of assembly, the directions of the said acts shall be strictly pursued ; and no penalty shall be inflicted, or any thing done, agreeably to the provisions of the common law in such case, further than shall be necessary to- carry such act or acts into effect, far beyond the spirit of this act to extend it to this case. I am entirely pursuaded that the Legislature had in view penalties, and actions for penalties, on penal statutes, and cases, where, by the common law, certain acts were indictable, for the punishment of which our acts of assembly had prescribed, or might prescribe, particular penalties, and another course of proceeding;—and such have been the decisions. The same act, the act to regulate arbitrations and proceedings, in Courts of Justice, gives a certain form of writ in actions on contracts, and statements instead of declarations. Yet it was determined that this did not take away the common law action, and that the party might proceed in the ancient form, or adopt the form prescribed by the act. Miles v. O’Hara. But what removes all doubt of the true construction of the act, is that where the Legislature intended to establish the common law action, they do so in .express terms ; they use negative words. In the same act they give a new form of ejectment, and intending to do away the ancient form, they enact, “ that all writs of ejectment shall be in the following form and no otherthus drawing the line of distinction between negative and aflirmative provisions in the same act.

The judgment must, therefore, be entered on the second finding.  