pass the reversion of the said parcel of the said demised premises occupied by the said Captain Wynder; and because the said defence is pleaded to the whole of the said first cause of action, although, at best, only an answer to part thereof; and because it does not appear that the said Captain Wynder has, or ever had, any greater estate or interest in the said parcel of the said demised premises than that of tenant from year to year; and because it does not appear that the said defendant ever gave a proper and legal notice to quit to the said Captain Wynder, or otherwise used legal means to determine his tenancy; and because it is not shown by the said defence what estate or interest the said Captain Wynder has or had in the said parcel of the said demised premises; and because it is not alleged by the said defence that the said defendant is not in receipt of the rent payable by the said Captain Wynder in respect of the said parcel of the said demised premises; and because, consistently with the said defence, the said Captain Wynder may have always been, and still be, in occupation of the said parcel of the said demised premises, by the consent or default of the defendant himself.

The grounds of demurrer to the second defence were in similar terms to those of the first defence,' substituting the names of Patrick and Timothy Murray for that of Captain Wynder.

Fetherstone (with him T. Lefroy), for the demurrer.

M. Morris (with him G. Fitzgibbon), contra.

LEFROY, C. J. We are all very clearly of opinion that this defence is not a good answer to the claim for the whole rent. It would certainly be a very strange state of the law if, upon the facts which are here presented to us, we were compelled to hold it to be a legal defence, that because two roods of the demised premises were lawfully in the possession of an under-tenant at the date of the demise, that circumstance is to operate as a suspension of the entire rent of £400 a year, duly reserved and fully secured by sufficient covenants. We were, however, told that such was the law, as settled by the case of Neale v. Mackenzie. But it turns out that the case of Neale v. Mackenzie, instead of being an authority in support of the present defence, is, for the very reasons given by Lord Denman, when delivering the judgment of the Court of Exchequer Chamber, an authority for upholding this demurrer; for the distinction there taken was, that the second lease, made by the defendant in error, was utterly void, inasmuch as, with respect to eight acres, part of the demised premises, no interest at all passed to the lessee, not even a reversion, which can only be granted by deed under seal; whereas the second lease in that case was not

1 The points noted for argument were, first, that the said defence does not disclose any matter whereby the said demise in the plaint mentioned is shown to have been wholly or in part void, or the rent wholly or in part extinguished or suspended; secondly, that the said defence is pleaded to the whole rent, although at best only an answer to part thereof, and the points in the body of the demurrer. The points of demurrer to the second defence were precisely similar. — REP.

rent.

under seal. In the present case, however, it appears that the plaintiffs, who were seised of these lands, and made this lease, were, at the time of this demise, in possession of the great body of the property; but about two roods of it (taking the facts from the pleadings) were then in the possession of some one else, under a former lease. As to these two roods, therefore, the plaintiffs had nothing but a reversion. Under these circumstances, the plaintiff's demise the entire premises by a lease under seal, reserving an entire rent for the whole. The first question then is, What was the operation of that instrument? It was a lease in possession of all the land of which the lessors had the possession at the time of the demise; and, in point of law, it was a lease of the reversion of that part of the lands of which the lessors had not the possession. Where a person has only a reversion expectant on a lease, with a rent incident thereto, he may make a lease by deed of that reversion for any term, and reserve a rent thereout; he may deal with it as if it were an interest in possession, and he cannot be said not to have a title to such He cannot, it is true, recover it by ejectment, and there may be Ja difficulty in the way of his distraining for it; but he can recover it either by an action upon express covenant, or by an action of debt upon the implied contract which arises upon the deed between the parties. Are we to be told then that an action for the entire rent will not lie? I am happy to find that the law, so far back as I have been able to trace it, still continues to be unchanged in this respect, and that the reasons assigned by Lord Denman, in pronouncing the judgment of the Exchequer Chamber, in Neale v. Mackenzie, the case which was said to have interfered with the law as I have stated it, were, on the contrary, in perfect harmony with it, established, as it has been, by the high authority of Chief Baron Gilbert, unaffected by any subsequent case. Upon these grounds, therefore, we feel quite authorized in maintaining that state of the law which is consistent as well with common-sense and justice, as with an uninterrupted current of legal authority down to the present time. We, therefore, allow the demurrer.1

PENDLETON v. DYETT.

SUPREME COURT OF NEW YORK. 1825.

[Reported 4 Cowen, 581.]

COVENANT for rent upon a lease dated October 15th, 1818, given by the plaintiff to the defendant, for the term of two, three, five, or eight years, but not for a less term than two years, of two rooms, or the whole of the second floor, and two rooms chosen by the defendant on

1 Williams v. Hayward, 1 E. & E. 1040 (1859), which comes here in chronological order at the end of the English cases, is printed ante, p. 700. Cf. Blair v. Claxton, 18 N. Y. 529 (1859).

the third floor of a certain house or store in Beaver Street, corner of William Street, in the city of New York, at a rent of $425 per annum, which the defendant covenanted to pay, and entered into possession of the demised premises.

The defendant pleaded, 1st, Non est factum.

2. That before any of the rent became due, to wit, on, &c., the plaintiff entered upon the demised premises, and ejected, expelled, put out, and amoved the defendant, and kept and continued him so ejected, expelled, and amoved from thence hitherto.

Replication, denying the expulsion and issue.

The cause was tried at the New York Circuit, June 19th, 1823, before Edwards, C. Judge.

On the trial, the counsel for the defendant produced receipts for rent to the 1st February, 1820, and offered to prove that about that time the plaintiff introduced into the house demised, lewd women or prostitutes, and continued this practice from time to time and at sundry times, keeping and detaining them in there all night for the purpose of prostitution; that such women would frequently enter the house in the daytime, and, after staying all night, would leave it by day-light in the morning; that the plaintiff sometimes introduced other men into the house, who, together with him, kept company with the lewd women or prostitutes during the night; that on such occasions, the plaintiff and the women, being in company in certain parts of the house not included in the lease, but adjacent and in the plaintiff's occupation, were accustomed to make a great deal of indecent noise and disturbance, the women often screaming extravagantly so as to be heard throughout the house, and by the near neighbors; and frequently using obscene and vulgar language, so loud as to be understood at a considerable distance; that such noise and riotous proceedings being frequently continued all night, greatly disturbed the rest of persons sleeping in other parts of the house, and particularly in the parts demised; that these practices were matter of conversation and reproach in the neighborhood; and were of a nature to draw, and did draw, odium and infamy upon the house as being a place of ill-fame, so that it was no longer reputable for moral or decent persons to dwell or enter there; that all these practices were by the procurement or permission and concurrence of the plaintiff. That the defendant, being a person of good and respectable character, was compelled by the repetition of these practices to leave the house, and did leave it for that cause, about the beginning of March, 1820; and did not return. That a respectable man by the name of Fox, to whom part of the house had been underlet, left it for the same cause. This evidence was objected to, and overruled by the judge as inadmissible upon the issue; and the defendant's counsel excepted. dict for the plaintiff, damages $362.52.

H. W. Warner, for the defendant.

J. A. Dunlap, contra.

Ver

CURIA, PER SUTHERLAND, J. Eviction of the whole or any part

of the demised premises, is a good plea in bar to an action either of debt or covenant for the rent. In this all the authorities agree. Cruise, Dig. tit. 28, Rents, chap. 3, Woodfall, 412-13; 1 Saund. 204, n. 2, and cases there cited. The plea in this case is unexceptionable in point of form. It is according to the established precedents. Salmon v. Smith, 1 Saund. 203, 4, n. (2). It states that the plaintiff (who was the defendant's lessor) entered into and upon the demised premises, and ejected, expelled, put out, and amoved the said defendant from the possession thereof, and kept and continued him so ejected, expelled, &c., from thence hitherto. The only question in the case is, whether the evidence offered by the defendant, and which was rejected by the judge who tried the cause, supported the plea, or was of a character which ought to have been submitted to the jury, for them to decide whether it made out the fact of eviction or not. No actual ouster or turning out of possession is pretended. The proof offered does not show an entry by the lessor upon the premises. It does not make out even a trespass. The acts complained of as amounting to an eviction, were committed in a different part of the same house, with which the demised premises had no connection, except that the approach to each was by a common entrance. They operated not upon the physical safety of the tenant, or the physical condition of the demised premises; but upon the moral sense and feeling of the defendant. The acts were most exceptionable in themselves; and, if they could not be abated, the defendant had not only a moral right, but it was his moral duty, to abandon the scene of riot and prostitution. But they could have been abated. The law afforded a prompt and sufficient remedy. The police of the city, upon the complaint of the defendant, would have instantly taken the plaintiff and his associates into custody, and punished them by fine and imprisonment as often as the offence was repeated. There was no moral necessity, therefore, for abandoning the premises. Suppose the plaintiff had been in the habit of exhibiting himself either in the common passage or in the street opposite the premises in question, in indecent attitudes, or in a state of offensive nakedness, so that the defendant and his family could not leave his house without witnessing the disgusting exhibition: would this cause have supported a plea of eviction? They would both stand upon the footing of nuisances, which the plaintiff or any other citizen might cause to be abated. But if, instead of taking that course, he should abandon his house, it must be considered a voluntary and not a compulsory act.

But I apprehend there can be no eviction, without an actual entry. Such is the form of the plea, and the proof must sustain it. The very definition of the term "eviction" is an expulsion of the lessee out of all or some part of the demised premises; and Serjeant Williams says, that to occasion a suspension of the rent, the plea must state an eviction or expulsion of the lessee by the lessor, and a keeping him out of possession, until after the rent became due; otherwise it will be bad.

1 Saund. 204, n. (2). If a constructive expulsion, without entry, may constitute an eviction, which will operate as a suspension of the rent, why is the averment of an entry contained in all the precedents, and why do all the cases agree, that without such averment the plea would be bad? Thus, in Timbrell v. Bullock, Styles, 446, it is said that, to make a suspension of rent reserved upon a lease for years, the lessor must oust the lessee of part of the thing let, at least, and hold him out until after the day on which the rent is made payable by the lease; and if the lessee re-enters, the rent is revived. A re-entry presupposes an actual ouster or expulsion. So in Page v. Parr, Styles, 432, which was an action of covenant for rent, the defendant pleaded in bar, that the plaintiff entered into a part of the land demised, before the rent became due, and so had suspended his rent. The plaintiff replied that the defendant re-entered and so was possessed as in his former estate. To which replication there was a demurrer. And Rolle, C. J., held the demurrer well taken, on the ground that the replication did not state that the defendant, after re-entry, continued in possession until the rents were due; and judgment was given for the defendant. According to the case of Salmon v. Smith, 1 Saund. 204, and n. (2), the plea would now be held bad for omitting to state that the defendant was kept out of possession until the rent became due. But this case also clearly contemplates an actual entry or ouster by the lessor, as necessary in order to suspend the rent. So in Reynolds v. Buckle, Hob. 326, which was an action of debt for rent, the defendant pleaded that before rent due, the plaintiff entered upon him; but did not say that he did expel him or hold him out; and the plea, on that ground, was declared to be of itself an insufficient bar. But in that case it was cured by the verdict. Bushell v. Lechmore, 1 Lord Ray. 369, also decides that a mere entry or trespass without an eviction will not suspend the rent. Upon this point all the cases concur. Hunt v. Cope, 1 Cowp. 242, is a strong case. There the defendant pleaded that the lessor, with force and arms, entered upon the demised premises and demolished a summer-house (being a part of the premises), by means whereof the tenant had been deprived of the use of the summer-house, &c. This plea was held to be bad, because it did not aver an actual eviction or expulsion of the lessee. The defendant's counsel urged that the facts in the plea amounted to an eviction, on the ground that an actual entry was stated, and a destruction of a portion of the premises; and if an eviction could be constructively pleaded, this would seem to be good. But all the court held it bad, and Aston, J., says, all the cases in the books suppose the lessee to be put out of possession. Therefore, merely saying that he was deprived of the enjoyment of the premises is not sufficient If it is necessary to state, in terms, that the lessee was turned out of possession, in order to make a good plea of eviction, it would seem to follow that the proof in support of the plea must be substantially of the same character. Lord Mansfield, in Hunt v. Cope, says that the facts there stated, might have been sufficient for the jury to have found for