Opinion,
Mr. Justice Williams :This case presents an interesting question that lies outside the beaten track of landlord and tenant cases. It was before us two years ago, and is reported in 129 Pa. 173. The material facts are not in controversy, and are as follows:
In 1886, Johnson leased the building at the corner of Tenth and Race streets, Philadelphia, to Rossiter, at an annual rent of seven hundred dollars, with leave to sub-let. Rossiter did soon after sub-let the first floor to Hessel, who went into possession with the knowledge of Johnson, at a rental of twenty-five dollars per month. On the 16th of October, 1887, Rossiter sold his lease to Fritz, and assigned his entire interest therein to him. The term had until April 1, 1888, to run. By his purchase Fritz became, and well understood the fact, the landlord of Hessel, entitled to collect the rent falling due from him. Three days later, Fritz surrendered his lease to J ohnson, who thereupon gave him a new one for the same premises, at the same rental but for a longer term. This arrangement was made without notice to Hessel, and in disregard of his rights, of which both parties had the fullest notice. For some reason Fritz did not pay his rent, and in March, 1888, while Hessel’s term was yet unexpired, Johnson issued a landlord’s warrant on his lease to Fritz for four months’ arrears. Upon this warrant a quantity of Hessel’s goods in his own store were seized as a distress for rent due from Fritz. An action of replevin was brought for the goods, in which Johnson avowed the taking for rent due from Fritz under the lease made in October, 1887. On the trial in the court below, judgment was rendered *13in favor of Johnson, the avowant, and the rent due from Fritz found to be $288. We held that Fritz could not surrender the term of Hessel, and Johnson, by accepting the surrender and making a new lease, could not extinguish it, under the circumstances of this case; that Hessel did not hold under or in subordination to the new lease, but in hostility to it; and that the seizure of his goods could not be justified under an avowry for rent due from Fritz on the new lease.
The case went back for another trial, which has now been had. The judgment entered is again in favor of the defendant, but the rent in arrear is fixed at $100, being the amount of four months’ rent due from Hessel to his landlord under the Eossiter lease. This was probably intended as a compliance with the rule laid down in Hessel v. Johnson, supra, and as bolding Hessel simply for his own rent. It may be that Hessel owes and ought to pay this sum to his landlord, but our question is whether Johnson has the right to seize his goods because he does not pay it. What right has he ?
Hessel went into possession under Eossiter. Johnson was the landlord, Eossiter the tenant, Hessel the sub-tenant, and liable to be distrained upon either by his lessor for his own rent or by his lessor’s landlord for the rent to him on the original lease. When Fritz bought from Eossiter he assumed his obligation to pay Johnson, and acquired his right to collect from Hessel, the sub-tenant. The surrender of the lease may have passed the right of Fritz to collect the rent from Hessel over to Johnson, if the transaction had ended with the surrender. If the rent had not been paid then, it is probable that Johnson could have distrained, not for rent due from Eossiter or Fritz, for as to them the lease was at an end, but for the rent due from Hessel, whose sub-tenancy survived. Neither tbe avowry on which the first trial proceeded, nor the case stated which was substituted for the pleadings at the second trial, suggest that the seizure complained of was made by Johnson as the landlord of Eossiter or of Hessel. On the contrary, the only demise alleged in either is that of November 1, 1887, to Fritz. Our Brother Clakk, in Hessel v. Johnson, supra, pointed out very clearly that as Hessel was not in under the demise so set up, but in hostility to it, the seizure of his goods could not be justified under it.
*14But the transaction between Fritz and Johnson did not end with the surrender of the Rossiter lease, but immediately upon The surrender Johnson made a new lease for the entire building, at an entire rent, to Fritz, who accepted it. Both parties knew, as we have seen, of Hessel’s lease and occupancy of the first floor. It is clear, therefore, that Fritz took the risk of his possession and the collection of the rent from him, and engaged without any reservation or exception on that account to pay Johnson the rent due for the whole building. If, then, the surrender vested in Johnson the right residing in Fritz as the landlord of Hessel to collect the rent from him, the new lease, executed at the same time, operated as a conduit to return the right so acquired to Fritz, who, as between himself and Johnson, acquired an absolute and unqualified leasehold estate in the premises. If, therefore, the right to amend the avowry, or to treat it as amended, notwithstanding the case stated, be conceded as broadly as it is claimed on Johnson’s behalf, the question remains, what right of distraint on the goods of Hessel has Johnson shown himself to have of which we can give him the benefit? He could not distrain for rent due from Rossiter, for that lease, with its undertaking to pay rent, has been surrendered to him. He has accepted the surrender, and has made a new demise of the premises to Fritz. He could not distrain in the right of Rossiter for the rent due from the sub-tenant, for, as we have seen, he does not hold that right since the execution and delivery of the new lease to Fritz.
The mere fact that Hessel owes rent to somebody is not enough to justify the seizure of his goods by anybody except the person who occupies towards him the relation of landlord. This is apparent if we consider on what the right to distrain rests. From the earliest days of the common law it has been regarded as a remedy for the non-payment of rent, to be made use of by the landlord or his bailiff because of a demise at a rent certain of the premises entered for the purpose of making the seizure. If a re-statement of this elementary principle were desirable, it was made in Chicago O. & M. Co. v. Barnes, 62 Pa. 445. The avowry of the seizure must therefore, on all the authorities, English or American, set out a demise; the rent reserved; that rent was in arrears under the demise; and that the seizure was made to compel payment of such arrears. It was formerly *15held that the amount of the arrears must bo stated with certainty, and proved as stated: Waltman v. Allison, 10 Pa. 464. This rule has been relaxed, and it is now enough to state the demise and the rent reserved with certainty, and a variance between the avowry and the proofs as to the rent in arrears is immaterial: Barr v. Hughes, 44 Pa. 516; Phipps v. Boyd, 54 Pa. 342. If the plaintiff in replevin desires to deny the right of seizure set up, he may deny the demise under which it is asserted, or, admitting the demise, he may allege that the title had passed out of the avowant before the seizure was made. In either case, the force of the reply rests in the denial of the existence of the relation of landlord and tenant when the goods were seized. On the facts of this case, that relation did not exist between Johnson and Hessel in March, 1888, and no amendment of the avowry could therefore avail as a justification for the seizure of Hessel’s goods in his own store.
It was distinctly held when this case was hero before that Johnson, having made the new lease with knowledge of Hessel’s position as a sub-tenant, could not seize his goods in his own possession, for the rent due from Fritz under the new lease. That was the only question then presented. We now hold that he sustained no relation to Hessel out of which the right to distrain could arise. His right to distrain against Rossi ter was extinguished by his own act in accepting and acting upon the surrender of the lease to him. His right to distrain upon Hessel, in the right of Rossiter, if that right subsisted in him after the surrender by Fritz, passed out of him by virtue of the new lease, which clothed Fritz with all the rights and remedies which his landlord had at the time the new lease was made, for the recovery of both the rent and the possession from Hessel. If any other right to distrain than those we have now considered could have been alleged by Johnson, it has not been suggested to us by counsel, nor by an examination of the facts presented. Hessel ought to pay his rent, if he has not; but, whether he does so or not, he has a right to object to the seizure of his goods by any person not authorized to make such seizure. If his position is a somewhat anomalous one, there is this to be said in his favor: he did not put himself in it. The acts of Johnson and Fritz, done in disregard of his rights, and appar*16ently in hostility to him, are responsible for whatever uncertainty has arisen in consequence of them.
The judgment is now reversed; and judgment is entered in this court upon the case stated, in favor of the plaintiff.