Dissenting opinion by
Rice, P. J.,January 18, 1897:
This was an action of replevin for goods distrained for rent. In the plaintiff’s declaration Walter R. Kern is described as landlord, and J. H. Jones as constable. The former avowed and the latter made cognizance, and justified the taking “ because they say that one Charles L. Bandel for a long time, .... held and enjoyed the said dwelling-house in which the said goods and chattels were contained, with the appurtenances, as tenant thereof under the said Walter R. Kern, defendant, by virtue of a certain lease dated the 12th day of September, 1892, wherein the said Walter R. Kern demised to the said Charles L. Bandel the said dwelling-house,” etc. Then follow the usual averments as to the rent reserved in the lease, and the nonpayment of the same for the period above referred to. To the defendants’ avowry and cognizance the plaintiff pleaded, “ payment,” “no rent in arrear,” and “non est factum.” The lease was dated September 14, 1892, and was signed and sealed by W. R. Kern, as lessor, and Charles L. Bandel, as lessee, but in the premises the lessor was described as “ W. R. Kern, agent.” On the trial of the issue the plaintiff called Charles L. Bandei *396as a witness, who testified that he signed the lease, and then the plaintiff offered “to prove that Walter R. Kern was the agent for William H. Kern, who died on April 8,1893, and that the rent for which the levy was made was paid to the Fidelity Trust Company. I desire to show by this witness that the lease dated' September 12,1892, for the premises No. 3835 Hamilton street, made by W. R. Kern, agent to Charles Bandel, was made by Walter R. Kern, as agent for William H. Kern, who was the owner of the property in question, and that the rent for which distress was made was paid in full, after the death of William H. Kern, to Hood Gilpin and the Fidelity Trust Company, trustees under the will of William H. Kern, by the tenant.” Before ruling upon the objection to this offer, the court remarked: “ We will consider the lease now in evidence.” No objection was made to its being so considered; and then, the objection to the offer above quoted was renewed and sustained. The rejection of this evidence is the subject of the first assignment of error. The second assignment of error is to the charge of the court directing a verdict for the defendants.
The first question in the case is, whether the evidence embraced in the plaintiff’s offer was admissible under the pleadings.
Where a lease is specially stated in the avowry, non est factum may be pleaded, but it puts in issue the execution of the lease only: Bloomer v. Juhel, 8 Wend. 448. But this plea was disproved on the trial by the testimony of the tenant. Assuming that “payment” is a permissible plea in such a case, the proof to support it must be confined to matters which were admissible at common law and which constitute technical payment: Lovegrove v. Christman, 164 Pa. 390. “ The plea of payment means common law payment — actual payment. It need not be in money; it may be by the transfer of choses in action, or other property, but it must be something which is accepted as money: ” Steiner v. Erie Dime Savings and Loan Co., 98 Pa. 591, and see cases there cited. “ Payment,” without more, does not put. in issue the tenancy. It is, obviously, not so broad a plea as “ no rent in arrear,” and, if the offered evidence was not admissible under the latter plea, it was not under the former. It is held in Pennsylvania that there is no such thing as a general issue to an avowry; but some special point must be traversed. “ Avowry,” said Chief Justice Gibson, “ like a declaration, sets forth the *397nature and merits of the landlord’s case; and must distinctly state every fact necessary to show that the distress was lawful, and among others, the existence of a lease; the existence of every fact not traversed is admitted. Although, since the act of 1772, which substantially agrees with the 2 Geo. II., ch. 19, nil habuit tenementis, which admits the existence of the lease, cannot be pleaded to avowry, still, the plaintiff may traverse the tenancy: Syllivan v. Stradling, 2 Wils. 208; and that course ought to have been pursued here; for it is clear, as well on principle as from authority, that the plea of ‘ nothing in arrear ’ admits the existence of the tenancy, and puts the defense on matter subsequent: ” Hill v. Miller, 5 S. & R. 354. Hence, it was held that while the tenant might show, that, prior to the accruing of the rent, he purchased the premises with the assent and by the advice of the landlord, yet such evidence could not be given on the issue of “ nothing in arrear.” In Alexander v. Harris, 4 Cranch, 299, a lease for three years certain was alleged in the avowry. On the trial of the issue joined on the plea of “ nothing in arrear ” the avowant gave in evidence a lease for one year certain, and proved a subsequent possession for two years. A verdict was rendered for the avowant. On writ of error the court held, that the lease offered in evidence did not support the avowry, but that the plea dispensed with proof of the demise laid in the avowrj by admitting it. Chief Justice Marshall, who delivered the opinion of the court, after an elaborate consideration of the question, said: “ It is thought important in the inquiry, that, the law appropriates a different plea, which controverts the demise, if the tenant means to contest it — the plea of non demisit.” I am not to be understood as saying, that, where a plea of non tenuit, or non demisit, or a special plea that the landlord’s title has expired subsequently to the lease, and that the plaintiff has been compelled to pay rent to another or the like, and the plea of “ no rent in arrear ” are joined, as undoubtedly they may be, the tenancy is admitted. I am speaking of the latter plea standing alone, in which case the rule seems to be well settled that the title and the tenancy as laid in the avowry are admitted: Williams v. Smith, 10 S. & R. 202; Morris on Replevin, 127; 2 Br. T. & H., Prac. 1754; Wilkinson on Replevin, 6 Law Libr. *83.
Many of the strict rules of pleading have been relaxed, and *398others have been wholly abolished by statute and judicial decision. But after a diligent investigation no case has been found modifying in any degree the rule laid down in the cases above cited as to the effect of a plea of “no rent in arrear.” It has acquired a well understood meaning, and, in view of the liberality with which amendments are allowed, it cannot he said that injustice will be wrought by adhering to the rule. Perhaps a simpler method of bringing such a cause to an issue might be devised, but it is quite as important in this day, when the calendars of the courts are overcrowded, as it was in the days of Chief Justice Marshall and of Chief Justice Gibson, that the system — no matter by what name the allegations of the parties may be called — shall result in narrowing the issue to be tried to the points actually in controversy, and in showing what that issue is, and that the proof shall be confined to matters relevant thereto. The purpose of the plaintiff’s offer was to prove that no rent was in arrear, because, during the period for which the defendant distrained, the tenant did not hold under the defendant. The effect would be —if the evidence was ad missible at all — to disprove the tenancy alleged in the avowry. As this was not put in issue by any of the pleas, the offered evidence was clearly irrelevant. Being so, the court cannot be convicted of error in rejecting it, unless the defendant waived this specific objection by something which he said or did on the trial. Being unable to find anything in the record from which .a waiver may be implied, I feel constrained to record my dissent from the judgment that is about to be entered.