the defendant under a good plea of eviction. But there, it will be recollected, an actual entry, and a physical destruction of a portion of the premises are averred; and if an actual ouster can be inferred from circumstances, it surely might in that case; yet Lord Mansfield considers it as matter of doubt.

In the case before us, there was not only no actual entry, but no assertion, either express or implied, of a right of entry on the part of the lessor, or of any other right or control over the demised premises. The disturbance suffered by the lessee was the consequence of conduct on the part of the lessor which partook of the nature of a nuisance, and which he had the power of abating at pleasure. He was not, therefore, constrained by any necessity, either moral or physical, to abandon the premises; and, in judgment of law, so far as this action is concerned, his abandonment must be considered voluntary. The evidence offered was properly rejected by the judge. The motion for a new trial must be denied. New trial refused.1

1 This case was carried to the Court for Correction of Errors (8 Cowen, 727), and judgment was reversed by a vote of sixteen to six. The opinion of SPENCER, Senator, for reversal, was as follows:

SPENCER, Senator. It seems to be conceded that the only plea which could be interposed by the defendant below, to let in the defence which he offered, if any would answer that purpose, was, that the plaintiff had entered in and upon the demised premises, and ejected and put out the defendant. Such a plea was filed; and it is contended on the one side, that it must be literally proved, and an actual entry and expulsion established; while on the other side it is insisted, that a constructive entry and expulsion is sufficient, and that the facts which tended to prove it, should have been left to the jury. It is true, that "pleading is the formal mode of alleging that on the record, which would be the support or defence of the party on evidence," as defined by Buller, J., in 1 Term Rep. 159; and the same learned judge immediately after draws the correct distinction: "whether the evidence in each particular case is a sufficient foundation for that support or defence, is a question that does not arise upon pleading, but upon the trial of the issue afterwards." In pleading, the legal effect of the facts is stated, not the facts themselves. The form of the plea, therefore, does not determine the kind of evidence necessary to establish it. To support a plea that the defendant never promised, he may prove a payment, or a performance of his under taking, or some matters which excused him from its performance. A very familiar case is presented in the action of trover, which has been partly alluded to on the argu ment. The plaintiff alleges, that he casually lost the chattel, which the defendant found and converted to his own use. It is very questionable whether, if this were strictly proved precisely as alleged, it would support any action. The proof, however, to sustain it, is either that the defendant tortiously took the chattel, which is itself evidence of a conversion (and directly contrary to the allegation of finding), or that the defendant came legally into the possession of the article, and subsequently, mand made, refused to restore it to the owner. From this a conversion is implied. But it is plain it is not proved. So in an action against the indorser of a note, the averment of a demand of payment and of notice of non-payment, is supported by evidence of due diligence without actual demand. Again, a promise by the indorser, to pay a note, dispenses with the necessity of proving a demand and notice. There are many similar cases, where the proof of one fact justifies the legal conclusion of another fact. This, then, is a question of principle, whether the evidence offered by the de fendant below tended in any manner to establish a constructive entry and eviction by the plaintiff; for if it did, it should have been left to the jury to decide on its effect. To determine this, it seems only necessary to inquire what are the conditions,

on a de

M'MURPHY v. MINOT.

SUPERIOR COURT OF JUDICATURE OF NEW HAMPSHIRE. 1827.

[Reported 4 N. H. 251.]

THIS was an action of covenant broken on an indenture made the 12th July, 1811, by which the plaintiff demised to Seth Daniels, a certain tract of land to hold during her natural life, and the said Daniels covenanted with the plaintiff to pay her, on the first day of May, annually, a rent of $30.

The action was brought against the defendant, as assignee of

express or implied, on which the defendant was to pay the rent. The agreement set forth in the plea contains a covenant that the defendant shall have "peaceable, quiet, and indisputable possession" of the premises. This is, in its nature, a condition precedent to the payment of rent; and whether the possession was peaceable and quiet, was clearly a question of fact for the jury. Such conduct of the lessor as was offered to be proved in this case, went directly to that point; and without saying at present, whether it was or was not sufficient to establish a legal disturbance, it is enough that it tended to that end, and should have been received, subject to such advice as the judge might give to the jury.

The opinion of the Supreme Court proceeds upon the ground that there must be an actual, physical eviction, to bar the plaintiffs; and in most of the cases cited, such eviction was proved; and all of them show that such is the form of the plea. But the forms of pleading given, and the cases cited, do not establish the principle on which the recovery of rent is refused, but merely furnish illustrations of that principle, and exemplifications of its application. The principle itself is deeper and more extensive than the cases. It is thus stated by Baron Gilbert, in his essay on Rents, p. 145: “A rent is something given by way of retribution to the lessor, for the land demised by him to the tenant, and consequently the lessor's title to the rent is founded upon this: that the land demised, is enjoyed by the tenant during the term included in the contract; for the tenant can make no return for a thing he has not. If therefore the tenant be deprived of the thing letten, the obligation to pay the rent ceases, because such obligation has its force only from the consideration, which was the enjoyment of the thing demised." And from this principle, the inference is drawn, that the lessor is not entitled to recover rent in the following cases: 1st. If the lands demised be recovered by a third person, by a superior title, the tenant is discharged from the payment of rent after eviction by such recovery. 2d. If a part only of the lands be recovered by a third person, such eviction is a discharge only of so much of the rent as is in propor tion to the value of the land evicted. 3d. If the lessor expel the tenant from the premises, the rent ceases. 4th. If the lessor expel the tenant from a part only of the premises, the tenant is discharged from the payment of the whole rent; and the reason for the rule why there shall be no apportionment of the rent in this case as well as in that of an eviction by a stranger, is, that it is the wrongful act of the lessor himself, "that no man may be encouraged to injure or disturb his tenant in his possession, whom, by the policy of the feudal law, he ought to protect and defend.”

This distinction, which is as perfectly well settled as any to be found in our books, establishes the great principle that a tenant shall not be required to pay rent, even for the part of the premises which he retains, if he has been evicted from the other part by the landlord. As to the part retained, this is deemed such a disturbance, such an injury to its beneficial enjoyment, such a diminution of the consideration upon which the contract is founded, that the law refuses its aid to coerce the payment of any rent. Here, then, is a case, where actual entry and physical eviction

Daniels, for the said rent from 1st May, 1817, to the 1st May, 1825, and was submitted to the decision of the court upon the following statement of facts.

The indenture was made as stated in the declaration, and Daniels

are not necessary to exonerate the tenant from the payment of rent; and if the principle be correct as applied to a part of the premises, why should not the same principle equally apply to the whole property demised, where there has been an obstruction to its beneficial enjoyment, and a diminution of the consideration of the contract, by the acts of the landlord, although those acts do not amount to a physical eviction? If physical eviction be not necessary in the one case, to discharge the rent of the part retained, why should it be essential in the other, to discharge the rent of the whole? If I have not deceived myself, the distinction referred to settles and recognizes the principle for which the plaintiff in error contends, that there may be a constructive eviction produced by the acts of the landlord.

An eviction cannot be more than an ouster; and we have the authority of Lord Mansfield for saying that there may be a constructive ouster. In Cowper, 217, he remarks: "Some ambiguity seems to have arisen from the term actual ouster, as if it meant some act accompanied by real force, and as if a turning out by the shoulders were necessary; but that is not so: a man may come in by rightful possession, and yet hold over adversely without a title," &c.

I think the same principle governed an ancient case stated in 1 Rolle's Abridg ment, 454, of which the following is a translation: "If the lessee for years of a house, covenant to repair it and leave it in as good plight as he found it, and afterwards certain sparks of fire come from a chimney in the house of the lessor, not very distant, by which the house of the lessee is burned, that shall excuse the performance of the cove nant; and the lessee is not bound to rebuild, because it came of the act of the lessor himself." The analogy between the covenant to repair and that to pay rent, is sufficiently strong to justify the application of this case to the latter; and if So, it establishes the doctrine that other acts of the landlord going to diminish the enjoyment of the premises, besides an actual expulsion, will exonerate from the payment of rent.

That is precisely the principle contended for by the plaintiff in error in this case. It is a just and equitable doctrine, and has been so applied in analogous cases. In Hearn v. Tomlin, Peake's N. P. Cases, 192, which was an action for use and occupa tion of a wharf (depending on the same principles as an action on a lease for rent), the defendant had agreed to purchase the wharf under a representation of the plaintiff that he had a lease of it for 13 years, and entered into possession; but on discovering that the plaintiff had a lease for only 3 years, he refused to complete the purchase. Lord Kenyon held, that to maintain the action, it must appear that the occupation had been beneficial to the defendant, and that it appearing to have been injurious, the plaintiff

could not recover.

cision;

We regard cases as containing the evidence of the law, as evincing the rule of deand they are consulted to ascertain the principle on which that rule is founded. The review of the cases now made, shows that the principle on which a tenant is required to pay rent, is the beneficial enjoyment of the premises, unmolested in any way by the landlord. It is a universal principle in all cases of contract, that a party who deprives another of the consideration on which his obligation was founded, can never recover damages for its non-fulfilment. The total failure of the consideration, espe cially when produced by the act of the plaintiff, is a valid defence to an action, except in certain cases, where a seal is technically held to conclude the party. This is the great and fundamental principle which led the courts to deny the lessor's right to recover rent where he had deprived the tenant of the consideration of his covenant, by turning him out of the possession of the demised premises. It must be wholly immaterial by what acts that failure of consideration has been produced; the only inquiry being, has it failed by the conduct of the lessor? This is a question of fact, and to

having entered under it, afterwards conveyed all his estate to one Gilman Dudley, who, on the 3d April, 1822, conveyed the land to the defendant in fee and in mortgage. Dudley remained in possession and took the profits until his death in October, 1822, and after his decease his administratrix remained in possession, taking the profits until April, 1824. On the 16th April, 1824, a tenant entered upon part of the land under an agreement with the defendant to pay rent to him in case the land was not redeemed.

establish it, the proof offered in this case was certainly competent. I do not feel called upon to say that those facts would have been alone sufficient. Of that the jury were to judge, at least in the first instance; and the question whether they amounted to a full and complete legal defence, might have been presented in another shape. The only question for our decision is, whether that testimony ought to have been received at all? Believing that it tended to establish a constructive eviction and expulsion against the consent of the tenant; that it tended to prove a disturbance of his quiet possession, and a failure of the consideration on which only the tenant was obliged to pay rent, — I am of opinion that it ought to have been received; and that therefore the judgment of the Supreme Court should be reversed, with directions to issue a venire de novo.

I cannot omit the opportunity presented by this case, of observing, that it appears to me to be one of those within the view of the framers of our Constitution, in the organization of this court. When this court, of last resort, was declared to consist of the senators, with the chancellor and judges, it must have occurred, that the largest proportion of its members would be citizens not belonging to the legal profession. And it must, therefore, have been intended to collect here, a body of sound practical common-sense, which would not overthrow law, but which would apply the principles and reasons of the law according to the justice of each case, without regard to the technical refinements and arbitrary and fictitious rules, which will always grow upon professional

men.

And herein I conceive, is the great excellence of this court, that whenever it perceives a rule established by the inferior courts, pushed to such an extent as to produce positive injustice, it is within its power, as it most certainly will always be its disposition, to rescind or modify such rule. Several signal examples of the exercise of this power might be cited in the decisions of this court. Were this, then, a case in

-

which the law was considered settled by the Supreme Court, that nothing but a physical turning a tenant out of possession would exonerate him from the payment of his rent, it would be precisely such as would require and justify the interposition of this court to correct it, - not by making law, but by applying its familiar and elementary principles to a new case. Suppose the landlord had established a hospital for the smallpox, the plague, or the yellow fever, in the remaining part of this house; suppose he had made a deposit of gunpowder, under the tenant, or had introduced some offensive and pestilential materials of the most dangerous nature; can there be any hesitation in saying that if, by such means, he had driven the tenant from his habitation, he should not recover for the use of that house, of which, by his own wrong, he had deprived his tenant? It would need nothing but common-sense and common justice to decide it. No man shall derive benefit from his own wrong. The idea that the tenant has some other remedy to remove the evil, does not reach the case where the injury is already inflicted. Besides, it has been entirely exploded on the argument of this cause. For, in the very case where it is admitted the tenant would be exonerated from the payment of rent, where there had been an actual eviction and physical expulsion by his landlord, he has an adequate and effectual remedy under the Statute to prevent forcible entries.

But as has been before remarked, even the cases admit that the tenant may be exonerated from rent without a physical expulsion; and there is no necessity to call upon this court to establish the law of a new case. It is already established in conformity with what appears to me the plainest dictates of justice.

On the 23d April, 1825, the administratrix of Gilman Dudley conveyed to the defendant the right in equity to redeem the land mortgaged as aforesaid, and the defendant's said tenant has been in posssession of the whole tract from that time to the commencement of this action, on the 22d March, 1826.

All the interest which the plaintiff ever had in the land was an estate for her own life, and the reversion was in Daniels.

Bell, for the plaintiff.

Upham, for the defendant.

RICHARDSON, C. J. It has been urged in behalf of the defendant in this case that the plaintiff is not entitled to recover anything, because the rent was never demanded of Minot. The law on this point is well settled. When a lessor proceeds for a forfeiture or to enforce a penalty he must show a demand of a rent on the very day it was payable. But in an action of covenant no demand is necessary. 18 Johns. 447, Remson v. Conklin; Com. Dig. Rent, D. 4; 2 N. H. Rep. 163, Coon v. Brickett.

We are therefore of opinion that this objection to the action cannot prevail.

It has also been urged that this action cannot be maintained, because the particular estate and the reversion having become united in the same person, the particular estate is merged and the rent extinguished. Had the rent in this case been incident to the reversion, it is clear that this action could not be maintained. 2 N. H. Rep. 454, York v. Jones. But it is well settled that the rent is not inseparably incident to a reversion. Co. Lit. 143 and 47 a; 2 Bl. Com. 176.

Rent may be reserved upon a grant of a man's whole estate, in which case there can be no reversion.

The case of Webb v. Russell, 7 D. & E. 393, which has been cited by the defendant's counsel does [not] apply in this case. It was there held that where rent is incident to a particular reversion, when that particular reversion is merged, the rent is extinguished. But in this case the rent was never incident to the reversion. The plaintiff granted her whole estate reserving a rent, and she had no reversion to which it could be incident.

In order to maintain this ground it must be shown that when he who has a reversion takes a lease of the particular estate and covenants to pay rent, such rent is extinguished by the union of the particular estate and the reversion. But this proposition cannot be sustained by any reason or authority, and we are of opinion that this ground of defence fails altogether.

But it is further contended on the part of the defendant that being only a mortgagee he cannot in any event be held liable for the rent until he took possession under the mortgage, and the case of Eaton v. Jaques, Doug. 438, is cited as an authority. But that decision has been long questioned, 7 D. & E. 312, and in 1819 the question came before all the judges of England, and a great majority were of opinion