from the plaintiff himself.' It is not necessary, however, for the declaration to show what title he had. A different rule would impose insuperable difficulties on the plaintiff, a knowledge of the title being only to be acquired by inspection of the deeds, to which he could not have access.' But where the interruption is by the lessor himself,' or by a person against whose acts the covenant has specially provided, it is sufficient to allege an entry by him, without stating under what title or pretence, or whether by right or wrong. Some particular act, however, by which the plaintiff is interrupted must be shown, otherwise the breach will not be well assigned.' In an action on a covenant that the lessor is seized in fee, a breach may be assigned in terms as general as the covenant, viz., that he was not seized in fee, without showing that another was so seized, nor why the defendant was not so seized." So, on a covenant that the lessor has good right to demise, the lessee may assign as a breach that he had not good right, without showing in whom the right was vested." In an action on a covenant for quiet enjoyment, an allegation, as a breach, that the plaintiff (lessee), entered and was evicted by the defendant (lessor), is not supported by proof that he made a demand of possession and was refused, an expulsion, which is a putting out, not having taken place; for a party who comes to claim, but has never entered, cannot be expelled. The breach is not for expelling, but for not letting in. The ordi Kirby v. Hanksaker, Cro. Jac. 315; Wooten v. Hele, 2 Saund. 177; Proctor v. Newton, 1 Vent. 184; Norman v. Foster, 1 Mod. 101; Forte v. Vine, 2 Rol. 21; Skinner v. Kilbys, 1 Show. 70; Anon., 2 Vent. 46; Rashleigh v. Williams, 2 Vent. 61; Buckley v. Williams, 3 Lev. 325; Jordan v. Twells, Ca. temp. Hardw. 171; Foster v. Pierson, 4 T. R. 617; Hodgson v. The East India Company, 8 T. R. 278; Campbell v. Lewis, 3 B. & Ald. 392. And see Noble v. King, 1 H. Bl. 34; Brookes v. Humphreys, 5 Bing. N. C. 55; Fraser v, Skey, 2 Chit, 646. nary covenant, by the lessor, for quiet enjoyment as against any person claiming by, from or under him, is broken by an eviction of the tenant by the lessor's widow entitled under a conveyance taken by the lessor to the use of himself and his wife;' also by an eviction by a person claiming under a prior appointment by the covenantor and another person; but a distress for arrears of land tax due from the lessor at the time of the demise will not operate as a breach. The lessee of a house and garden, forming part of a large area of building ground, is not entitled under this covenant to restrain the lessor or persons claiming under him from building on the adjoining land so as to obstruct the free access of light and air to the garden. When contained in a lease of the exclusive right of shooting and sporting over a farm, this covenant does not hinder the tenant of the farm from 3 using the land in the ordinary way, or from destroying furze and underwood in the reasonable use of the land as a farm; and the lessor will not be liable for wrongful acts committed by such tenant contrary to the reservation of his landlord. Under a covenant in the form above mentioned contained in a lease of a stream of water, excepting so much as should be sufficient for the supply of persons with whom the lessor should have already contracted, diversions occasioned by contracts made previously to the demise will not constitute breaches. Where the covenant provides that the lessee shall quietly hold and enjoy the premises for and during the said term, the last words must be taken to refer to the term which the lessor assumed to grant by the lease, and not to the term which he actually had power to grant.' A general covenant for quiet enjoyment extends only to the acts of persons claiming under a lawful title; for 1 Butler v. Swinnerton, Cro. Jac. 657. Calvert v. Sebright, 15 Beav. 156. As to what constitutes an eviction, see Chapter on Eviction, post. 3 4 Stanley v. Hayes, 3 Q. B. 105. * Potts v. Smith, L. R., 6 Eq. 311. Jeffryes v. Evans, 19 C. B. N. S. 246. See Newton v. Wilmot, 8 M. & W. 711. Blatchford v. Plymouth, 3 Bing. N. C. 691. Evans v. Vaughan, 4 B. & C. 261, 268. 8 Dudley v. Folliott, 3 T. R. 584. the law will never adjudge that a lessor covenants against the wrongful acts of strangers, except his covenant is express to that purpose.' The construction, however, is different where an individual is named; for there the covenantor is presumed to know the person against whose acts he is content to covenant, and may therefore be reasonably expected to stipulate against any disturbance from him, whether by lawful title or otherwise.' Under a general covenant for quiet enjoyment contained in the lease of a coal mine, the working of ironstone lying between the surface and the demised coal in such a manner as to interrupt the lessee in his occupation of the mine, will constitute a breach.' Under a covenant by the lessor, in an underlease, that the lessee shall hold the premises without any lawful eviction, &c., by the lessor, or any persons whomsoever claiming by, from, under or in trust for her, or by or through her acts, means, right, &c., an eviction of the underlessee by the original lessor for a forfeiture incurred by the use of the premises as a shop, contrary to a covenant in the original lease, of which the underlessee had not been informed, is not an eviction by means of the lessor within the meaning of the covenant. Under a covenant that the tenant, paying the rent and performing the covenants, shall quietly enjoy, the payment of rent is not a condition precedent to the performance of the covenant for quiet enjoyment. A clause in a deed, whereby the lessor "for himself, his heirs and assigns, the premises unto the lessee, his executors, administrators and assigns, under the rents, covenants, &c., before expressed, against all persons whatsoever lawfully claiming the same, shall and 1 Wotton v. Hele, 2 Wms. Saund. 178, note (8). 2 LD. ELLENBOROUGH, C. J., in Nash v. Palmer, 5 M. & S. 380; Fowle v. Welsh, 1 B. & C. 29. 3 Shaw v. Stenton, 2 H. & N. 858. Spencer v. Marriott, 1 B. & C. 457. See Woodhouse v. Jenkins, 9 Bing. 431. The landlord is absolved from a covenant to deliver 4 will, during the term, warrant and defend," operates as an express covenant for quiet enjoyment during the whole term granted by the lease.' SEC. 362. Damages for breach of covenant.-Upon the breach of a covenant for quiet enjoyment in a lease, which turns out to be void, and under which the lessee has entered, the lessee is entitled to recover the value of the term and the costs of defending an action of ejectment, and also the sum recovered as mesne profits by the plaintiff in such action. The same rule applies where the lessee has not actually entered, but has only an interesse termini;' and where he has accepted a new lease of the premises from the person entitled to them, the difference in value between the two leases may be used as a list of the amount of damages to which he is entitled.' The rule was formerly to give nominal damages, and such mesne profits as the tenant has been compelled to pay, with costs, and nothing for the market value of the term. But a more just and liberal rule is now adopted, and, especially where the lessor has been guilty of fraud, or negligence in omitting to prevent an ouster when he had the power to do so, it is held that the tenant may recover the difference between the rent he was to pay, and the actual value of the unexpired term," as well as 1 Williams v. Burrell, 1 C. B. 402. 2 Williams v. Burrell, ante. 3 Lock v. Furze, L. R., 1 C. P. 441. 4 Baldwin v. Munn, 2 Wend. (N. Y.) 99; Flureau v. Thornhill, 2 W. Bl. 1078; Conger v. Weaver, 20 N. Y. 140; Trull v. Granger, 8 N. Y. 115. Burnett v. Fromberger, 4 Dall. (Penn.) 441. Dyer v. Wightman, 66 Penn. St. 455; Rickett v. Losteller, 19 Ind. 125; Wilson v. Raybould, 56 Ill. 417; Shaw v. Hoffman, Chatterton v. Fox, 5 Duer (N. Y.) 64. Snodgrass v. Reynolds, 79 Ala. 452, 58 Am. Rep. 601. See upon this question Trull v. Granger, 8 N. Y. 115; Doherty v. Dalan, 68 Me. 87; Walker v. Moore, 10 B. & C. 416; Newborough v. Walker, 8 Gratt. (Va.) 16; Dexter v. Manley, 4 Cush. 4 (Mass.) 14; Dobbins v. Duguid, 68 Ill. 464; Adair v. Bogle, 20 Iowa, 138: Rose v. Wynn, 42 Ark. 257; Messero v. Oestreich, 52 Wis. 684; Nichol v. Alexander, 28 Wis. 118. In some cases the rule is stated to be the difference between the rent reserved and the fair rental value for the term, Dennison v. Ford, 412 Daly (N. Y. C. P.) 412; Fouda ville v. Jourgensen, 52 N. Y. Superior Ct. 403; Coleman v. King, 19 Weekly Dig. (N. Y.) 551; Fitzgibbons v. Freisen, 12 Daly, (N. Y. C. P.) 419; Mack v. Patchin, 42 N. Y. 167. In Papaskey v. Mankivetz, 68 Wis. 322, March 1st, 1887, the court say: "We agree with Mr. Justice PAINE, in Shepard v. Gas-Light Co., 15 Wis. 318; that to ascertain the value of a business an inquiry as to the profits thereof is necessary. Probable value' A such damages and extra expenses in addition thereto as and net profits' are convertible terms as applied to a business. Yet the law in many cases gives damages for breaches of contracts, based on prospective profits, when they are fairly within the contemplation of the parties, are not too remote and conjectural, and are susceptible of being ascertained with reasonable certainty. If the plaintiff shows himself entitled to recover for damages to his business, the character, extent, and value of his established business when the lease was executed, and before, will furnish a guide to the jury in assessing the prospective and probable value thereof had the plaintiff been permitted to transfer it to the store No. 411 Broadway. Carried on in the immediate vicinity of the old stand, and by the same person, presumably the business would have been equally prosperous. This presumption may be rebutted by proof of facts and circumstances tending to show that the business would probably have been less remunerative had it been so continued. "It was said in the argument that no case can be found which gives damages for the loss of anticipated profits, because a landlord fails to give possession at the time agreed upon. This is scarcely a correct statement. The case Wad v. Smith, 11 Price, 19, cited by Mr. Justice PAINE in Shepard v. Gas-light Co., supra, seems to be just such a case. It is conceded that if the plaintiff had not a business already built up and established in the same vicinity, which with its good-will could have been transferred to the store No. 411 Broadway, there would be no basis upon which to estimate the prospective value of the business which the plaintiff would have done there had he obtained possession and carried on the business therein. In such case, profits would probably be too conjectural and uncertain to be the basis of recovery. Some of the cases refer to this distinction. In Chapman v. Kirby, 49 Ill. 211, the court in speaking of the case of Green v. Williams, 45 Ill. 206, says: In the case the lessee had not entered upon the term, had not built In up or established a business, and had not suffered such a loss, there was not in that case any basis upon which to estimate them.' the present case the offer was to prove facts which would have shown a sufficient basis to determine whether there would be profits, and upon which they might be estimated." In Hughes v. Hood, 50 Mo. 350, it was held that in an action of damages for withholding possession of leasehold property, where plaintiff had been a non-resident and had removed to this State for the purpose of occupying the premises, he would not be entitled to recover, on the covenant to deliver possession contained in the lease, the amount of his ex. penses incurred in the removalThe court said: "What connection with this covenant has the plaintiff's place of residence? It so happens that they resided in Indiana and had to remove to Missouri. This did not result from the terms of the contract. It made no kind of a difference where they resided, or how much it cost to remove their families to Missouri. If they had resided in Europe or Asia, or some other remote country, it might have cost them ten times as much to remove here as it did from Indiana. Such considerations are in nowise connected with the contract, and are too remote to be taken by the court or jury as a part of the measure of damages in a case like this. "I know that the courts have differed in regard to this subject of remote damages. Some of them have allowed such damages, while others have rejected them. We think the better rule is to exclude such damages from the consideration of the jury where they are not provided for by the terms of the contract. "The true rule of damages in this case was the difference between the rent as provided for in the lease and rental value of the premises. See Trull v. Granger, 4 Seld. 115. If the rental value was more than the rent reserved, the plaintiffs would be entitled to recover such difference. The rental value is not what it might be worth to the plaintiffs, but what 66 |