Opinion,

It was affirmatively proved, and entirely undisputed, on the trial of this case, that Geis and Quigley, on September 17,1889, sold and transferred to the defendant, Knarr, all their “ right, title, and interest ” in their lease of the National Hotel in DuBois, and agreed “ that said Knarr shall have possession thereof at once, with all our rights and title.” This sale and transfer was effected by a written agreement signed by all the parties. The original lease itself, made by Weber, as executor of the owner, Mrs. Paintei’, was a verbal lease, made August 1, 1889, and to continue for two months. It would therefore terminate on October 1st. It was further stipulated in the agreement as follows, viz.: “ By permission of said H. S. Knarr, the said W. C. Quigley and Charles Geis are to run the hotel or boarding-house part thereof, free of charge, to said October 1,1889, but shall contract no bills on his account. The bar shall be under the sole and exclusive rental of said H. S. Knarr.” Knarr agreed to pay, in consideration of the sale and transfer, $175 to Quigley, and the costs in a certain suit. Knarr was the owner of all the furniture in the hotel, which had cost him, as he said and was not contradicted, about $8,000. It will be seen, therefore, that Knarr became the lessee of the entire hotel; that he had, and continued to have, exclusive control over the bar department; that he was the owner of all the furniture in the hotel; and that Geis and Quigley had a permis*45sive occupancy of the boarding-house part of the hotel free of charge until October 1, 1889, but were to contract no bills on Knarr’s account. Quigley left very shortly after, and claimed no further interest or possession. Geis and Knarr, by a friendly arrangement, agreed that Geis should collect from the bar-tender employed by Knarr the receipts at the bar each day, and pay them over to Knarr the next morning. This arrangement was literally carried out, and in a perfectly friendly spirit, not only up to the 1st of October, but continuously on, until the 9th, when the difficulty which gave rise to this proceeding arose between them. The executor of Mrs. Painter had advertised the hotel at public sale to be held on October 8th, and in fact he did sell it on that day to strangers. Quigley testified that he had transferred the license to Knarr, and that, as he understood, they were to have the house until they got their boarding accounts, until the first of the month. Under these facts, which are undisputed, it must be conceded that Knarr became and was the lessee of the whole house; that he had exclusive possession and control of the bar department; and that the occupancy of Geis was by the permission of Knarr.

When the 1st of October came, Geis made no claim to any different possession than he had under the agreement of September 17th. He gave no notice to Knarr that he had or held any other interest in the premises than that. Weber not only did not notify Knarr to quit or to give up possession of the hotel or any part of it, but did not inform him that he had made any lease or other disposition of the property, and so admitted on the witness stand. No objection was made by any one to Knarr’s continued possession, and, in point of fact, he did continue his previous possession without any change of his relation with the landlord. This state of things went on until the 9th of October, Geis continuing to collect and pay over to Knarr the bar receipts up to that day. The hotel property was sold on the 8th, and possession was to be delivered to the purchaser on the 1st of November following. On the 9th, Geis testified he came out of the dining-room in the afternoon, and found Knarr in the office; that Knarr told him to get out; that he then told Knarr he had a lease of the property, and had a right there; that Knarr grabbed him by the throat; *46that they had a fight for about five minutes, which amounted to nothing; that no blows were struck; that each grabbed the other; that when it was over he went to see Weber; that when he came in again Weber was there, and Knarr held up a club, after which he and Weber went to the office of a justice, and had Knarr arrested for forcible entry and detainer; that he then went back, and had another scuffle with Knarr, who told him to get out, and if he didn’t go out he (Knarr) would knock his (Geis’s) brains out. He then had Knarr arrested for assault and battery, and did not go back to the hotel, but left Knarr in possession. Knarr gives a very different account of the matter, but, in the view we take of the case, it is not necessary to repeat it. Geis does not say that he exhibited any lease to Knarr, or that he told him any particulars of it. It appears that Weber had made a lease to Geis, dated September 30th, but really executed on the 28th, to continue for one month. But both Weber and Geis admitted that they had not informed Knarr of it, or made it known to him in any way. The first information Knarr received of it was on the 9th, in the fracas with Geis.

In these circumstances, we are very clear that there was no case of forcible entry, or forcible detainer, under the facts. No notice having been given to Knarr of any change in his position as lessee at the termination of his lease, and he being permitted to continue his possession peaceably and quietly, after the 1st of October, he was not bound to give up the possession on that day, but had a right to expect he would not be called 'upon to leave. The case was peculiar. The property had been sold on October 8th, and was to be delivered to the purchaser on the 1st of November, only twenty-two days later. He could have no reason to expect that an entirely new and different lease would be made to another person for so very short a period, and, having been permitted to hold over after the expiration of his lease, he had a clear legal right to remain until notified to quit. He was in no sense a trespasser. What was the state of the civil rights of the parties as to the right of possession after October 9th, it is not necessary to inquire. There was ample remedy for the landlord to recover possession by civil proceedings for that purpose. But it is clear that no possession existed on the part of Geis on October 9th, such as *47is necessary to make out a case of forcible detainer from the facts in evidence. His possession, such as it was, he held by the permission of Knarr. It was in no sense exclusive of Knarr, who was the lessee, whose furniture filled the house, without any right on the part of Geis to use it except under the written agreement of September 17th with Knarr, and who was in the sole and exclusive possession and control of the bar department. On that very morning Geis had recognized and assented to the relative position and rights of himself and Knarr, just as they were from September 17th up to that day, by paying over to Knarr the receipts of the bar for the previous day, which had been paid over to him by Knarr’s bar-tender. Not the slightest notice had been given to Knarr, either by the landlord or Geis, of any change in the existing state of the possession and use of the hotel. In Burd v. Commonwealth, 6 S. & R. 252, Gibson, J., said: “ The courts at present are far from encouraging prosecutors in having recourse to this mode of proceeding, except where there has been an invasion of a quiet, peaceable, and undisturbed possession, held by virtue of such an estate or interest as is plainly within the protection of these statutes.” It is not possible to say, under the evidence, that Geis had any such possession as against Knarr, or any possession at all, except by the permission of Knarr, and even that permission Knarr was only bound to continue until October 1st.

No estate in Geis was laid in the indictment, and, even if there had been, as it would have expired on November 1,1889, there can be no award of restitution. The only question, therefore, really at stake, is a question of costs, and the payment of a small fine. The difficulty between the prosecutor and the defendant does not seem, under the evidence, to have been anything more than a sudden quarrel, not over the possession of the property, but resulting from an excess of temper, and ending in an assault by each upon the other. This was referred to the Quarter Sessions upon complaints for assault and battery by each. There are no facts in the case which justify a conviction of either forcible entry or detainer, and hence the judgment must be reversed.

The judgment is reversed, and the defendant is discharged from his recognizance, without day.