Opinion by
Smith, J.,Aside from the remedy by replevin, the tenant’s redress for a wrongful distress is under the statute of Marlbridge, A. D. 1267 (Roberts’s Digest, 170) ; under our act of assembly of March 21,1772, section 3 (1 Sm. L. 370) ; and at common law.
The statute of Marlbridge provides that “Distresses shall be reasonable, and not too great. And he that taketh great and unreasonable distresses shall be grievously amerced for the excess of such distresses.” The grievous amercement thus provided for corresponds in substance to the exemplary or punitive damages of the present day. At common law an excessive distress was lawful, since it was more likely to induce prompt payment of the rent: McKinney v. Reader, 6 Watts, 34.
The act of March 21,1772, section 3, provides that for a distress and sale when no rent is due, the tenant may recover double the value of the goods distrained and sold. He is not, however, restricted to an action on the statute, with this measure of damages, but may recover at common law for the actual injury sustained; it being 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 waive his remedy by statute: ” Rees v. Emerick et al., 6 S. & R. 286; Richards v. McGrath, 100 Pa. 389. The landlord’s seizure of the tenant’s goods when no rent is due is wholly without authority, and in such case he is a trespasser ab initio: Fretton v. Karcher, 77 Pa. 423. “ Making the distress, when the claim is wholly false, is a mere trespass: ” Richards v. McGrath, supra. If the tenant would recover double damages, he must declare on the statute : Royse v. May, 93 Pa. 454.
An action for an excessive distress may be sustained either when the distress is for more rent than is due, or the goods distrained are, in value, unreasonably in excess of the rent due. Both are excessive distresses, under the statute : the one for an excessive amount, the other of an excessive quantity of *639goods : McKinney v. Reader, supra; McElroy v. Dice, 17 Pa. 163; Richards v. McGrath, supra. In an action on the statute, however, the declaration should set forth distinctly the character of the excessive distress. A declaration for distraining an excessive quantity of goods cannot be amended by adding a count for distraining for more rent than was due, since the causes of action, and the evidence to sustain them, are different: Spencer v. Clinefelter, 101 Pa. 219.
The pleadings in the cases before us are not printed in either paper-book. It is stated, however, in the appellant’s argument, that in the first action the plaintiff declared (1) on a distress for more rent than was due; (2) on an excessive distress : and in the second action (1) on a distress where no rent was due; (2) On. an excessive distress. It does not appear that the count for a distress when no rent was due was upon the statute; and since the goods distrained were not sold, such a count could not be sustained. Hence the gravamen of the plaintiff’s case in the second action is the wrongful seizure of his goods on an unfounded claim for rent.
The verdicts are conclusive of the-facts that the first distress was for more rent than was due, and that no rent was due when the second was made. The only question arising under the assignment of error, is whether the measure of damages in each case was correctly stated by the trial judge.
The two actions are based on different -grounds,. The first is on the statute of Marlbridge, for an excessive distress, both as to the amount claimed and the quantum of the distress. The second is at common law for a wrongful seizure of the plaintiff’s goods on a groundless claim for rent. The trial of the cases together led to confusion, and the failure to discriminate between them resulted in error. The plaintiff’s second point sets forth that “the case is at common law, and not under the statute,” which is correct as to the second case, but not as to the first; and further sets forth the measure of damages, which is correct as to the first case, but not unqualifiedly so as to the second. The answer was correct as to the first case, but should have been modified as to the second. In the first case, the defendant might be “ grievously amerced,” or mulcted in exemplary damages, if an excessive distress was shown; but in the second case his liability to *640exemplary damages, as in all cases of trespass, depended on the circumstances, and was to be determined by the jury, under proper instructions by the court. The defendant’s first point could not properly have been affirmed as to the first case, and required qualification as to the second, while the answer was wholly indefinite, neither affirming or refusing it, nor laying down any measure of damages. As already said, whether, in the second case, the damages should.be compensatory or exemplary, was to be determined by the jury.
As the answers to these points fail to distinguish between the two cases, or show to which they apply, they are as a whole erroneous. Neither the charge, nor the answers to the points, gives the true measure of damages in either case.
The first, third and fourth specifications are sustained, and the judgment is reversed, with a venire de novo.