majority">Woodworth', J.

The principal question'in this cause is, whether a landlord can distrain for rent, without - reserving a 'special power of distress; At the common law, théré Wére ■three kinds of rent; rent service, rérit charge, and rent seek. The first is, where the tenant holds his land by fealty and certain rent, or by rendering services, as ploughing the land, shearing the sheep and the like ; for these the lord might ■ distrain of common right, provided he had in himself -the reversion, and the service be certain,.or capable of being reduced to certainty, so that upon the avowry, he might-' be able to ascertain and recover damages for non-perfórmaneé. (Cok: Litt. 96, a. 2 Cr’ui. 307. tit: 28, ch. 1, seé. 6. 2 Black. 42.' 10 John. 92.) The right of distress was inseparably incident, as. long as the rent was payable to the lord, who was entitled to the fealty; To every tenure, fealty is incident, so long as the tenure remains; (Cok. Lit. 93, a. 2 Cruise, tit.-. 28, ch! 1, see. 6.)'

But a right of distress was not incident tó a rént charge,' because there was no future interest or reversion, and no fealty was annexed to such grant; the land became chargeable by virtue of a clause authorizing a distress'. (2 Cruise, ■ 308. 2 Black. 42.)

In England, the same remedy is extended to all rents' alike, by the statute, 4 Geo. 2, ch. 28, which has, in effect, abolished all material distinction between them. This sta-tute has not been enacted in this state; Our act concerning distresses, (1 R. L. 434,) contains the provisions of a number of British statutes, regulating the proceedings byway of distress, but not expressly defining what shall constitute a • right to distrain; it would, therefore, seem, that where there is not a clause of distress, the landlord’s right to this remedy' cannot be more extensive than that given by the common law, which is limited to rent service. It is contended that-the right to distrain is founded on the right of the- landlord - to demand fealty, and cannot be supported merely by show: ing a reversionary interest. This Was undoubtedly the corn* ■ *657mon law in England, before the statute of 4 Geo. 2, but that statute, in effect, merged all preceding remedies, by allowing a distress to be taken for any kind of rent in arrear. (Woodfall, 305.) It is admitted that fealty is not, in fact, due on any tenure in this state; -it is altogether fictitious. The act concerning tenures (1 R. L. 70) declares, that all tenures-held at any time before the 4th July, 1776, are turned into free and common socag-e, and shall be discharged from certain feudal services, particularly enumerated, and that the tenure upon all grants made by-the-state, shall be allodial, and not feudal, and be discharged of fealty and all other services. The fifth section of this act provides, however, that it shall not be construed to take away,or discharge any rents certain, or other services incident to tenure in common socage, or the fealty or distresses incident thereto. "Independent of this section, I apprehend that the right to distrain would remain upon every demise fora rent-certain, where the reversionary interest was in the landlord. At the common law, if fealty xvás due, and the reversion in the landlord, he might distrain: by the discharge of fealty, it cannot be intended to take away the remedy by distress, but leaves it as the statute found -it, so that, thereafter, it would depend on a rent certain and a reversionary interest. The abolition of a feudal service, in case of the tenant, cannot take away a right previously existing in the landlord. It seems to me, that the plain inference to be drawn from the act is, that fealty xvas no longer necessary to support the right to distrain.

But if this were questionable, the 5th section, in my view, secures the right, by declaring that the fealty or distresses incident to rents or other services, belonging to tenure in common socage, shall not be taken axvay. If fealty be considered necessary to support a distress, the statute intervenes and declares that the non-existence shall not be alleged to defeat the remedy. The act concerning distresses, does not expressly define the cases in which a distress may be laxvful: I think it, however, manifest from its provisions, that the common laxv right was not intended-to be abolished, but preserved in full force. The 6th section declares, that it shall be *658lawful for any person having rent in arrear, upon any de mise, lease or contract, to seize sheaves of corn, hay, &c.; for, and in the nature of a distress. By the 13th section, the landlord is authorized to seize the goods of a lessee for life, or term of years, where the goods are removed from the demised premises, leaving the rent unpaid. By the 17th section, it is declared to be lawful for any person, having any rent in arrear, upon a lease for life, or years, or at will, ended or determined, to distrain for such arrears after the determination of the lease, in the same manner as he might have done if the lease had not been ended. It will be perceived that nothing is said about the clause of distress ; the remedy is absolutely given, if there is rent in arrear. In all these . cases, there was a reversionary interest in the landlord. The statute evidently supposes a right to distrain before the termination of the lease, by allowing it after the lease is determined. The defendant, then, had the power of distress, which was a concurrent remedy. The acceptance of the sealed note was not an extinguishment of the rent, as was decided between these parties. (20 John. 407.) The case states, that the defendant admitted he had distrained for 4 years and 11 months rent due him, at the time of such distress, including the amount specified in the writing sealed. This admission was not objected to • it must be presumed to have been inserted as evidence; and if so, it is proof that the rent was due.

But it is contended, that it does not appear the defendant had the reversionary interest in him. No question of this kind appears to have been raised at the trial; there is no express evidence of a reversionary interest, but it may well be presumed to exist; for it is admitted in the case, that the defendant recovered a judgment in an action for use and occupation, in the Court of Common Pleas, for the rent now sought to be recovered by way of distress. This judgment was affirmed in the Supreme Court. (20 John. 407.) It is settled, that, at the common law, assumpsit would not lie for rent; it was recoverable only by action of debt; the statute gave the action for use and occupation, for the purpose of obviating some of the difficulties that might occur in the re*659covery of rents where the demises are not by deed. The legal presumption is, that the demise, in this ease, was not by deed; had it been, the party would not be entitled to recover. It is also well settled, that no estate of freehold, for life or in tee, can pass by an instrument in writing not under seal. (12 John. 73.) It follows, then, that the defendant, when he distrained, had the reversionary interest, and is, therefore, entitled to judgment.

Savage, Ch'. J.

The main point is, whether the defendant had a right to distrain for the rent due him. If this is not a case in which the landlord had a right to distrain then the sealed note was an extinguishment of the rent, and, of course, the defendant is liable to this action.

At common law, there were three kinds of rent:

1. Rent service, so called, because it had some corporal service incident to it, at least fealty, or the feudal oath of fidelity. Where fealty is due, therefore, witlj a pecuniary rent, and the landlord has the reversionary interest in the demised premises, then the landlord has, by the comm law, a right to distrain without any power in the lease.

2. Rent charge, is a rent reserved where the landlord has no reversionary interest. He would have, for such rent, no right to distrain, unless the power be contained in the lease.

3. Rent seek, is the same as rent charge, except that there is no right to distrain reserved. By statute of 4 Geo. 2, ch. 28, the right of distress is given in the two last kinds of rent; but, independent of that statute, the right of dis-training existed when the landlord was entitled to the reversion and to fealty.

By our old constitution, such parts of the common law and of the statute law of England, and such acts of the colony as together formed the law of the colony, on the 19th day of April, 1775, are declared to be the law of the state. By our statute concerning tenures, (1 R. L. 71,) all tenures of any estate of inheritance at the common law, are declared to be turned into free and common socage ; and by the common law, fealty is incident to this tenure. In all cases, therefore, where the tenure in this state is not allodial, and where *660the,landlord is entitled to the reversion and to a rent, ,he it authorized to distrain for such rent, without any authority for that purpose in the lease or contract.

The defendant having, then, as is fairly.inferrable. the,reversionary interest, he had a right to distrain, and the note was no extinguishment of the rent. In my opinion, therefore, judgment must be rendered for the defendant.

Sutherland, J. concurred in the result of these opinions.

Judgment for the defendant.

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