Opinion by
Trexler, J.,The Haltzel Furniture Company leased to Thompson a lot of household goods. The latter informed the company that he had abandoned the premises whereon the goods had been placed and that it should come and remove its goods. The company thereupon caused a writ of replevin to issue and upon the execution of the writ regained possession of the leased goods. Linnen, the owner of the premises, when he learned that the goods on the premises were being taken by the sheriff under the writ of replevin, through his agent, Kelly,, informed the sheriff as he was removing the goods thát they were in the legal possession of Buckley a constable, by- virtue of a landlord’s warrant issued by Kelly as Linnen’s agent some days before, that the warrant had been duly executed and the tenant’s goods had been distrainéd before the writ of replevin had issued. The sheriff served Kelly and Buckley and added their names to the return. Linnen subsequently was allowed to intervene and the issue was duly joined upon plaintiff’s statement and the affidavit of defense thereto.
If the landlord’s distress was made prior to the execution of the writ of replevin, his rights were superior to those of the plaintiff. The plaintiff however contended that there had been no warrant issued and no distraint made; that the warrant exhibited in the case was made after the goods had been seized by the sheriff and had been antedated and that the whole matter was a device to circumvent the effect of the replevin writ. There were certain elements in the case which lent color to plaintiff’s claim in this regard. Certain peculiarities about the appearance of the warrant and the flat contradiction of the story of the constable by the sheriff and those who were with him were sufficient to discredit the claim of the defendant. The trial judge very properly left the question, as to whether or not the landlord distraint preceded the replevin, to the jury and they found for the plaintiff.
*174The appellant argues that the above question was not properly in the case since the sheriff’s return showed that the goods were found in possession of the landlord’s agent and the constable, his bailiff, and that the only “way under the pleadings they could have possession is under the landlord’s warrant,” and the case thus being a landlord and tenant case, the only question arising was whether there was any rent in arrear. If the issue were joined solely between Thompson as tenant and Linneu as landlord this might be true. In this case the question of rent in arrear arises only incidentally as part of defendant’s proof. Even if there were rent due, the plaintiff might still maintain his action and if he could prove a title superior to that of the defendant, he would be entitled to the verdict. The jury by its finding settled the question that the plaintiff as owner of the goods in question repossessed himself of them before any landlord’s levy had been placed on them.
The other assignments of error are directed to the admission of testimony as to certain goods of the tenants having been left on the premises at the time the writ of replevin was executed. As the landlord sold these his claim for rent was reduced pro tanto. Had he won the case and a conditional verdict been rendered as providéd by the Act of April 19,1901, Section 6, P. L. 88, he could not have recovered from the plaintiff a greater amount than the rent due him. In this view of the matter, the testimony was competent.
All the assignments of error are overruled and the judgment is affirmed.