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Chipman against Martin
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 244 íulés 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.