Opinion,
Mb. Justice Clabk:At the trial of this case the facts do not appear to have been in dispute. The effect of the avowry and cognizance was, as it were, to make the defendant in the suit the plaintiff at the trial, and to impose on him the burden of proof. When the defendant’s case rested, the court, assuming, perhaps from the statements of counsel, that the facts were admitted, gave the case to the jury, with peremptory instructions to find in his favor, which the jury did, — finding, also, tfiat the rent in arrear was $233.32, and the value of the goods replevied $300. Whether the plaintiff waived the privilege of producing any testimony in reply, does not appear; but it is reasonable to suppose he did, as there seems to have been no objection taken at the time to the action of the court in this respect. Assuming this to be so, we will consider the case as if the facts exhibited in the defendant’s proofs were not disputed, and determine whether or not the court was right in giving the binding instructions complained of.
It is a reasonable rule of the law, and well settled, we think, that a tenant for a certain term, or for life, who has under-let, has no right to surrender his lease, to the prejudice of the subtenant : 1 Shep. Touch., 301; Tayl., L. & T., § 111; Adams v. Goddard, 48 Me. 212; Eten v. Luyster, 60 N. Y. 262; Brown v. Butler, 4 Phila. 71. If, therefore, Rossiter, on the first day of January, 1886, took a lease of the entire premises at the *178corner of Race and Tenth streets, for a term of 15 months, at the rate of $700 per year rent, payable as in the contract is provided, and at the expiration of the term elected to hold over according to the conditions of his contract, he became a tenant for that year on the same terms, and would have no right during the year to surrender the term to the prejudice of Hessel, who also held over upon the terms of his contract with Rossiter. Hessel was in lawful possession as a sub-tenant, under his contract, and the surrender of the original lease by Rossiter could not affect him. His right could not be disturbed by any act which it was not in his power to prevent: Doe v. Pyke, 5 Maule & S. 146 ; Piggott v. Stratton, 1 De G. F. & J. 38-46. The effect of a surrender is to terminate the relation of landlord and tenant; and it has been said that it will, in like manner, terminate with it all the parties to that relation. Prior to the statute of 4 Geo. II., c. 28, it had been held in England that, although a tenant who has made an under-lease cannot by a surrender prejudice his tenant’s interest, yet he would lose the right to distrain for rent reserved upon the under-lease; for, since the rent is incident to the reversion, the surrenderor cannot collect it in this form, because he has parted with his reversion to the original lessor; nor could the surrenderee have this remedy, because the reversion to which it was incident at the time of the surrender merged in the greater reversion, of which he was already possessed: Thier v. Barton, Moore, 94; Webb v. Russell, 3 Term R. 401; Mellor v. Watkins, L. R. 9 Q. B. 400. By the statute referred to, however, it was provided that if a lease be surrendered, in order to be renewed, and a new lease given, the relation of landlord and tenant between the original lessee and his under-lessee should be preserved; and it placed the chief landlord and his lessee and the under-lessee, in reference to rents, rights, and remedies, exactly in the same situation as if no surrender had been made: See Tayl., L. & T., § 518. Similar provisions have been adopted in New York by statute: 1 Rev. St. N. Y., 744. In 4 Kent Com., 103, it is suggested that, in those states in which this provision has not been adopted, the question may arise how far the under-tenant, whose derivative estate still continues, is by the surrender of his lessor discharged from the rents and covenants annexed to his tenancy.
*179But the doctrine of merger will not, we think, under our cases, ordinarily be held to apply, against the intention of the parties and against the interest of the original lessor: Moore v. Bank, 8 W. 138; Duncan v. Drury, 9 Pa. 332. Assuming that the intention of the parties was not to create a merger, Rossiter’s surrender may be regarded as in the nature of a transfer of the sub-lease to J ohnson, who thereupon was entitled to exercise the rights of the mesne lessor against the sub-tenant. The effect of Rossiter’s surrender, as upon a transfer or assignment, was therefore to attorn the sub-tenant to the original landlord, to whom he was bound to fulfil the conditions of his contract in the payment of the rent; and, failing to pay the rent, his goods upon the demised premises were liable to distress, according to the terms of the lease from Rossiter. But the acceptance of the surrender of Rossiter’s lease dissolved the relations theretofore subsisting, not only between the original lessor and lessee, but between this lessee and the sub-tenant. If Rossiter was no longer Johnson’s tenant, Hessel could not be his sub-tenant. As the matter thus stood, Johnson, as the agent of the owners of the fee, had resumed the possession and control, subject to the rights of Hessel, who will be held to have attorned to him.
Johnson then leased the entire premises, including the storeroom and the cellar, to Fritz for a term of two years from the first day of November, 1887, at the rate of $700 per year,— rent payable as stated in the contract. This lease was also necessarily subject to the rights of Hessel, who was then, and afterwards remained, in the actual possession of a part of the premises; and Fritz must be taken to have accepted the lease, with this incumbrance. Fritz, as between himself and Johnson, under his contract, had the right to insist upon the possession of the entire premises. He was not obliged to accept the possession of a part only; but, if he chose to enter into the possession of a part, he had the right to do so, and either to take, subject to Hessel’s tenancy, to the end of Hessel’s term, or to hold Johnson, his lessor, for the injury sustained in the detention of the possession. But in no event can Hessel be considered a sub-tenant. His goods were liable to be distrained upon for his own rent, either by Johnson or Fritz, as assignee of J ohnson, as the case might be, but in no event were they *180liable to be seized for the rent owing by Fritz; for Fritz was not yet in possession of that portion of the premises under his lease, and Iiessel did not hold, either mediately or immediately, under the lease upon which such a distress would be made. The relation of. landlord and tenant cannot in any proper sense be considered complete until the tenant acquires the possession ; and, to sustain an avowry for rent in arrear, that relation must be shown to exist, as to the very premises upon which the seizure is made, if the goods distrained are the goods of a -stranger: Helser v. Pott, 3 Pa. 179. The case of- Whiting v. Lake, 91 Pa. 349, cited by the court, and greatly relied upon by the defendant in error, is not in point. In that case Henkle & Bros, were lessees of Simpson. Going out of business, they quit the possession, and Whiting & Co. went in under them. Whiting & Co. held over after the termination of Henkle & Bros.’ lease, and it was held that under the provision of the act of March 21,1772,1 Sm. L. 370, the goods of Whiting & Co. were liable to distress for rent due by Henkle & Bros, before as well as after the termination of the lease, unless such possession was continued under the authority of the owner. The cases bear no analogy. Here there was no holding over after the lease was determined. The lease was surrendered by Rossiter, and the surrender was accepted, with knowledge of Hessel’s right to hold to the end of his term.
If we are right in our views of this case, the defendant has not sustained his avowry and cognizance, and it is unnecessary to consider the other questions raised.
The judgment is reversed, and a venire facias de novo is awarded.