noted his dissent.
Subsequently, counsel for the appellee filed a motion for a re-argument, accompanied by a brief contending as follows:
1. The transaction between Johnson and Fritz, after the latter had become assignee of the Rossiter lease, whereby a new lease was to be substituted therefor from a future date, November 1,1887, at most was but an agreement for surrender, and not a surrender per se. It required to be followed by a surrender of possession, to make it effectual. In Huddlestone v. Johnston, 1 McC. & Y. 143, it was expressly decided that an agreement for surrender, not followed by delivery of possession, does not amount to a surrender. To constitute a surrender, there must be both an agreement by the proper parties to manifest such an intent, and also a yielding up of the possession to him who hath the greater estate.
2. The surrender could not be made to the prejudice of the rights of Hessel as sub-tenant, and he had the option of either affirming or disaffirming it. By holding on to the possession he clearly disaffirmed the surrender and prevented it from becoming effectual; and having thus elected to retain his possession under the Rossiter lease, he is clearly estopped to say the same had been surrendered. Thus, the agreement for surrender, if such it was, came to naught, because the surrenderer or his sub-tenant failed to surrender possession of the premises at the time agreed on. It surely cannot be held that a landlord loses his rights under a lease by reason of an agreement on the part of his tenant to surrender, which agreement the tenant, or one claiming under him, fails to perform by insisting on retaining possession.
3. If, quoad Hessel, the Rossiter lease still existed, Hessel’s goods were certainly liable to be distrained thereunder. This, moreover, is res judicata, by the decision of this court in the appeal taken by Hessel from a judgment in ejectment entered *17in Court of Common Pleas No. 3, on confession and warrant contained in the Eossiter lease, under which judgment Hessel was ousted after the termination of said lease by its terms. Hessel took an appeal, but this court affirmed the judgment of the court below, thus expressly recognizing the lease as subsisting subsequent to the period for which this distraint was made: Hessel v. Johnson, 124 Pa. 233. On the other hand, if Hessel did assent to the surrender he thereby became attorned to Johnson, the paramount landlord, and his goods became liable to distraint by the latter directly for his own rent, as was said in the former opinion by Mr. Justice Clark.
4. When the new lease was made to Fritz, either Hessel came under it or he did not. If he did, his goods of course became liable to be taken for Fritz’s rent. If he did not, and if it can be held that it was possible for him to retain his tenancy under his own lease in hostility to the lease to Fritz, then clearly his goods remained liable to be distrained on by Johnson for his own proper rent. In short, Hessel being in occupation as tenant, he was certainly liable to pay rent to either Johnson or Fritz. This is admitted. If liable to the former, his goods could be taken by Johnson. If liable to the latter, his goods could be taken by Johnson as Fritz’s landlord, for the rent of the entire premises under either the Eossiter lease, of which Fritz was assignee, or under the new lease, the rent being the same under each. In either case, the avowant was entitled to judgment.
On May 18,1891, the motion for a re-argument was refused.