#### Chipman *against*Martin.

a recovery on a covenant for the payment of rent is not, without actual satisiactiODi an of tb*e rent^and1 nV’fthTtLSg dístratf lo^tiie rent in arrear,

THIS was an action of oh the brought on the 9.th section of the. act concermnff distreskess (1 R. L. 436.,) to , recover double damages for making, a distress when no-rent was P ' o - ^ due. ' The cause was tried before Mr. Justice *Platt,*at the. *Washington circuit, in*June, 1815.

The defendant had, by deed, executed on the 11th of Deem-*241
      *her,*1809, granted certain lands in the town of *Hartford,*in; the county of *Washington,*to *Chauncey Stehart,*in feé, reserving an annual rent of 93 dollars and 6 i cents; the first payment of which was to be made on the 11th *December,*1811', and on that day in each succeeding year, with power to the gran top to distrain in case of nonpayment. The deed was, afterwards, assigned, by *Stewart,*to the plaintiff, who went into possession. Á judgment was recovered in the court of common pleas for the coiihty of, *Washington,*which was docketed on the 17th of *March’,*1813, by the defendant against *Stewart,*in an action of covenant, foP 209 dollars and 74 cents. The breaches assigned" were for the nonpayment of all the rent due before the 11th of *December,*1811.. On or about the 26th óf *June,*1813, *Chaúñoey*Stewart, as bailiff of the defendant, distrained off the premises, atid took property to the value of 250 dollars. *Stewart*was, at the timé, ánd had long been, insolvent.

It was a question on the trial, to which a considerable part of the evidence related, whether the plaintiff had sufficiently connected *Chauncey Stewart*with the defendant, as his agent, to render the one liable for the acts of the other; but the judge was of opinion that it was sufficiently made out; and, also, that the judgment in favour of the defendant, against *Stewart,*was an ex-tinguishment of the rent charge, and that it was hot necessary, in order to produce that effect, that the judgment should be satisfied. The jury, accordingly,’'found a verdict for the plaintiff for double the value of the property distrained;

A- motion was made to set aside the verdict, and for a new trial;

*D. Russell,*for the defendant,

contended, that the judgment against *Chauncey Stewart*was hot an extinguishment of the right tb distrain for the nonpayment of the rent. ' ‘ The lessor has three Remedies, all or either of which he may pursue, until satisfaction is obtained. It is analogous tb the remedies possessed "by a mortgagee. By the law, as it stood at the time judgment was obtained against *Stewart,*the action on the covenant was an inferior remedy tb that by distress. That a subsequent remedy should merge or extinguish a. previous One, it should be of a higher or superior nature.*

Again, even admitting that the security obtained-by the judg *242ment extinguished the remedy by distress, it cannot operate tq extinguish the right* -If the right remains,* that is a sufficient protection against the ^th section of the act, (1 *N. R. L,*436.,) on which this action is brought.' .

In *Drake*v. *Mitchell,*
      ***
      *,*tone of three joint covenantors gave a bill of exchange for part of the debt, on which bill á judgment was recovered'; but the judgment was held to be no bar to an action On the covenant against the three. Lord *Ellenborough*said, “ a judgment recovered in any form of action, Is but a security for the original cause of action, until it be .made productive to the party; and, .therefore, until then, it cannof operate to change any other collateral concurrent remedy which the party may have.” The action of covenant, and the reme-, dy by distress, ;áre concurrentremedies.†

*Skinner,*and *Cowan,*contra,

contended, that,the remedy,by distress, was extinguished.by the judgment in .the. action of covenant for the rent; or that, at least, by that action, the,lessor had. determined his election, and could not proceed, afterwards,' to distrain. The acceptance of a bond for a parol contract will extinguish that contract.‡ So, if rent bje reserved by deed-, though giving a bond by the lessee for the rept will be ho ex-tinguishment of it; yet, a judgment obtained on the bond will be an extinguishment of it. ; This doctrine is to be found in *Iiig-,' gens,s Ca$e,*
      *§*
      **and is laid down by *Buller*
      *ǁ*
      **and *Woodfall*
      ****

So, if the grantee of a rent.charge (and. this is a rent charge^ purchase part of .the land, the rent charge is extinct,†† If he resort* to his personal remedy, by .writ of annuity; he shall be, held to his election,, and Cannot resort to his other remedy, by-distress.‡‡

Suppose the party had taken his remedy by distress, in the first instance, could he, in case the Cattle had escaped, have resorted; to Ms action of covenant for the rent ? The remedies are alternative, hot.cumulative,§§, Analogous to.this-,is the clause of re-entity.for nqnpaymeht.of séát; -''where, if the lessor bring his option of covenant for the nonpayment of the rent, he waives his right of entry for the forfeiture.ǁǁ A party cannot maintain two .actions .Oii the same contract, or instrument, but must make his election, and be bound by it. ' The casé put of a bond and mortgage, is different; there are separate and distinct' remedies, by distinct instruments, arid operating differently.-. *243The point raised here was riot decided in *Bantleon*v. *Smith;*
      * but the opinion of the Ch. J. is in favour of the plaintiff. He says, “ Nothing is plainer than that a man carinot. distrain for rent, where no rent is due.” . Now, the rent being extinguished by the judgment, as rent, none is due ; but the lessbr has his *lien*on the land for the amount of the judgment. Instead of *rent*in arrear, for which he might distrain, he has a judgment debt, which binds the land, and the payment of which may be enforced by execution. He has the land itself for his security, instead of a remedy by distress.

*Ruesell,*in reply,

said, that the lease, in this case, contained á clause of re-entry for the nonpayment of rent, in the usual form. The case of an annuity, cited from Co. *Lilt.,*is distinguishable from the present. That was the grant of an annuity, or yearly rent, to a person, for which the land of the grantor was charged^ with power to the. grantee to distrain. There the grantee had, also, at his election, the personal remedy by writ of annuity; But where land is granted, in.fee, reserving rent, with a clause of distress, he cannot have a writ of annuity,

1 *Roll. Abr.*470, 471. *640*1 Burr. 9. 6 *Co.*44. *Cro. Eliz.*304. 1 *Dall.*413.

3 *East's Rep. 251.*

*Bantleon.*v. *Smith, 2 Binney's Rep.*146.

**3 *Johns.*Cas. 180. 2 *Johns. Rep.*471.

*6 Co. 45.*

*Bull. N. P. 182.*

*Woodf. Tenant's Law, 412. 614.*

*Littleton, s. 222.*

*Co. Litt.*144. *b.*145. *a.*145. *b.*

1 *Chitty's Pl. 214. 1 Salk. 248. 1 Ld. Raym. 719.*

*Runnington on Eject.*30. *Crompton*v. *Munshul, M.*S.

2 Binney, 146.

Thompson, Cb. J.,

delivered the opinion of the court. This action is founded upon the 9th section of the act concerning distresses for rent, (1 *R. L.*436.,) which declares, that if any distress and sale shall be made, for rent pretended to be in arpear and due, when no. pent, is in arrear or due, the party so distraining, or for whom such distress shall be made, shall be liable to an action on the case, by the owner of the goods dis-trained, who shall recover double the valué of such goods.

The lease by which the rent in question is reserved, was giyen by the defendant to *Chauncey Stewart,*and by him assign-' ed to the defendant. A judgment has been obtained, upon the covenant in the lease, against the original lessee, for the same pent for which the distress was made. But no- execution has been issued upon this judgment, or satisfaction in any way ob» .tained, and *Stewart*is insolvent. The principal question in the case is, whether this judgment does, in any manner, take away or impair the remedy by distress ; and I am satisfied it does not. We must bear in mind, that the present action is to recover a penalty^ and, Of course, all the rules applicable to the construction of penal statutes ape to be adopted. Under such *244íulés of construction,'it cannot'be said, that the rent was no ft due and in arrear; nothing ghoit of actual .payment, or satis,faction, will meet the good sense and sound interpretation-of this statute. The doctrine of extinguishment does not apply to this . case. The. particular cause of . action, for which a judgment is pbtaiped, is extinguished:.or .merged in .such.'judgment, No action of. covenant could be-brbu'ght against Síéw^rrfPr ,the samp rentier which.the former judgment was obtained^' If *Stew? art*had still remained in possession, and the .distress be,en made on his goods, the-unsatisfied judgment Would, in;niy: ¿pinion, have' formed no obstacle to the legality of such distress; ..much. less cólPpr is 'there for setting up a judgment against an irísol-. vent, to discharge , the present plaintiff from the rent. ■ The principle which governed the decision of *Drake*v. *Mitchell),*(3 East, 258.,) is very much in .point. It-is there held, that a judgment is but a security for the original cause of action, until it be made productive in satisfaction, and until then it cannot operate to change, any. other collateral ..concurrent remedy •which the party . may have. The judgment; ,if *Stewart*.was solvent, could only be considered as additional, security for* 'and,not as satisfaction of the rent; that still.exists, and-is due and. in arrear. Like the case of a bond and mortgage, a j.udg-: Ment upon, the bond will not preclude the mortgagee from ing his actiPu of ejectment, and recovering possession of the; land. .All fhe principles applicable to the case before Us are noticed, and involved, in', the decision of *Bantleon*v. *Smith,*(2 *Binney,*152.,) which go fully fo establish, that the defend*, ant, in this case, had a double remedy .for his rent ; one upon the covenant: in the. lease.. and one against the land;; and that nothing short of actual satisfaction will discharge either. The direction of the judge to. the jury, that the judgment against *^Stewart*;.wa,si'.>an absolute payment and extinguishment'of thp rent,, was incorrect, ánd a new trial must be granted, with costs to abide the event of the suit, , ' ... . . -

New trial;granted.