
    James Surget vs. Dominico Arighi.
    A covenant by a lessor with the lessees, “ that they paying the rent reserved, and performing all the covenants and conditions on their part to be observed, shall and may lawfully, quietly and peaceably hold, occupy and enjoy the demised premises and every part thereof, for and during the whole time for which the same are demised, free from all eviction, interruption and molestation, to them (the lessees,) from or by any person,” is nothing more than a covenant for “ quiet enjoyment.”
    The rule, that a general covenant of warranty is not broken by a forcible eviction, applies to covenants for quiet enjoyment in all cases of eviction or disturbance by a stranger; even though the party forcibly evicting or disturbing is induced to the act by feelings of animosity or revenge against the cove-nantor.
    And if, in any case, the covenantor for quiet enjoyment is liable on his covenant for a forcible eviction or disturbance of the covenantee, it is only where the forcible entry or disturbance is by the direct personal act of the covenantor, with a view to that particular result.
    Therefore, in a declaration on a covenant for quiet enjoyment, an assignment as a breach that the injury alleged was done by an assemblage of men, “ moved by exasperation and excitement by them entertained towards the defendant, the covenantor,” would not be good; though it seems that the allegation “ that the mob was moved to do the act by the defendant,” might be sufficient.
    Where to a declaration on a covenant against a lessor, in which the breach of the covenant for quiet enjoyment alleged, was that the lessee had been forcibly evicted by a mob moved to do the act by the defendant, the defendant plead that the mob was composed of persons unknown to him, who, without his consent, knowledge or privity, and against his will, did the act; held, that this plea was a sufficient bar to the action if true, and should have concluded to the country.
    And a replication, that the act was the act of the defendant, and further, that the assemblage who performed it were moved to its commission by exasperation and excitement, by them there entertained towards the said defendant, for and on account of the acts of the said defendant before that time, to wit, &c., at, &c., in dispossessing of divers persons, to wit, &c., of certain lots, houses and tenements by them occupied and possessed under persons holding under said defendants ; held, to be bad on demurrer.
    In error from the circuit court of Adam’s county; Hon. Stan-hope Posey, judge.
    Dominico Arighi sued James Surget, Frances A. Denny, and Abigail Nichols, for the breach of a covenant executed to the former by the latter, and which, dated, June, 1839, after describing the demised premises, proceeds as follows: “ to hold for the time of three years from the date hereof, yielding and paying therefor the yearly rent of six hundred dollars, in quarterly payments of one hundred and fifty dollars quarterly, in advance, in every year, during said time; the first quarterly payment thereof to be made on the first day of June, ensuing. And the said Dominico Arighi covenants and agrees to pay the said rent in manner aforesaid, and to deliver up the premises to the said lessors peaceably and quietly at the end of the said term, in as good condition as the same now are, reasonable use and wear and tear thereof and fire and other casualty excepted, and to pay all taxes and assessments lawfully levied and imposed on the premises demised during the said term; and the said lessees further covenant, that they will not underlet the same, or any part thereof, or permit any other person or persons to occupy the same, or any part thereof, without the consent of the said lessors for that purpose in writing, first had and obtained; and the said lessors warrant and agree, to and with the said lessees, that they, paying the said rent above, hereby reserved, and performing all the covenants and conditions herein contained on their part to be observed, shall, and may lawfully, quietly, and peaceably hold, occupy, and enjoy the hereby demised premises, and every part thereof, for and during the whole time for which the same are hereby demised, free from all eviction, interruption, and molestation to him, the said Dominico Arighi, from or by any person,” &c.
    The declaration, after setting out the covenant, proceeds: “ and the said plaintiff avers that he did, on the said 1st day of June, 1839, at the county aforesaid, pay to the said defendants the sum of one hundred and fifty dollars, being the advance payment of the first quarter’s rent, by him to be paid to the said defendants, in consideration of the use and enjoyment of the said leased premises covenanted by the said defendants, to be quietly and peaceably enjoyed by him, the said= plaintiff; and he, the said plaintiff, did then and there enter into the possession of the aforesaid demised and leased premises, and thereupon make certain needful and necessary improvements upon the same, rendered necessary for the enjoyment and occupation thereof, to wit, one floor, one partition, one counter, papering of one room thereof, whereby he expended of his own proper moneys the further sum of three hundred and seventy dollars; and was from thence, onward, until the 27th day of July, A. D. 1839, at the county .aforesaid, then ready and willing to perform, and did offer to perform, all and every other agreement, covenant and obligation, the performance of which is not hereinbefore averred to have been performed by him, the said plaintiff, covenanted and agreed to be performed by him in the said indenture, and lease, and covenant aforesaid. Nevertheless, the said defendants to keep, &c., have broken the same in this, to wit, that afterwards, to wit, on the 27th day of July, 1839, at the county aforesaid, a certain assemblage of men, composed of persons unknown to the said plaintiff, but moved by exasperation and excitement by them entertained towards the said defendants, and by the said defendants, and without the consent or knowledge of the said plaintiff, and against his‘will and resistance, they, the said unknown persons, with force and arms, entered upon the aforesaid leased and demised premises, and then and there pulled down, removed, and altogether demolished and destroyed the aforesaid tenement, and three rooms in the said indenture and covenant of lease described, and utterly ruined the same, and rendered the same altogether untenantable; and the said plaintiff was thereby evicted, driven, and kept out of said tenements, from thence hitherto until the institution of this suit, in the doing of all which there was then and there destroyed of the moneys, goods, and chattels of the said plaintiff, a large amount of money, and goods, and chattels of great value, to wit, of the value of six hundred dollars; by reason whereof he, the said plaintiff, was obstructed in the quiet and peaceable occupancy and enjoyment of the said demised premises, and every part thereof, from the said 27th day of July hitherto until the institution of this suit, and was evicted disturbed, and molested in his said enjoyment and occupancy of the same in manner aforesaid, and by the persons aforesaid, of all which eviction and disturbance of the quiet enjoyment of the said premises by him, the said plaintiff, they, the said defendants, then had due notice, to wit, on the said 27th day of July, A. D. 1839. And although the said plaintiff hath performed, and ever since been ready and willing to do and perform the aforesaid covenants on his part, the said defendants have altogether failed and refused to keep and perform the aforesaid covenants on their part, and have broken the same in the manner aforesaid, and continued to break the same, by not restoring the said plaintiff to the possession of the said premises, from which he was evicted as aforesaid, and also by failing and refusing to yield or give to the said plaintiff the peaceable occupancy and enjoyment of the said demised premises; and thereby they, the said defendants, altogether fail and refuse to keep and perform their aforesaid covenant, although thereunto often requested; to plaintiff’s damages $2000.”
    To this declaration the defendants filed a general demurrer, which was sustained by the court below; but on an appeal to this court, the judgment was reversed, and the declaration held on general demurrer to be sufficient.
    The defendants plead, after the return of said cause to the circuit court, as follows: “actio non;" “because they say, that the said supposed assemblage of persons on, to wit, the 27th of July, 1S39, at the county aforesaid, was composed of persons unknown to the said defendants, and without the consent, knowledge, or privity of the said defendants, and against their will, they, the said unknown persons, entered upon the said leased premises, and other wrongs in said plaintiffs declaration mentioned, then and there, did to the said plaintiff, without the knowledge, consent, or assistance or procurement of the said defendants; and these defendants aver, that the said plaintiff was not, to wit, on the 27th of July, A. D. 1839, at the county aforesaid, evicted, driven, and kept out of the said tenements, in the said declaration mentioned, by the aid, assistance, procurement, or consent of these defendants.” This plea concluded with a verification.
    To which the plaintiff filed his replication as follows: pre-cludi non, “ because he saith, the assemblage of persons in said plea mentioned, entered upon the said leased and demised premises, and, with force and arms, committed the several wrongs, &c. in plaintiffs - declaration mentioned, being then and there moved thereto by exasperation and excitement by them entertained towards the said defendants, for and on account of the acts and conduct of the said defendants before that time, to wit, on the 26th day of July, in the year of our Lord one thousand eight hundred and thirty-nine, at the city of Natchez, in the county foresaid, in dispossessing of divers persons, to wit, John Brus, Francis Randolph, and others, of certain lots, houses, and tenements, by them occupied and possessed, under persons holding under said defendants; situate, lying, and being adjoining and contiguous to the said leased and demised premises in plaintiffs declaration mentioned, to wit, in the city of Natchez, at the county aforesaid, which said act of dispossession was done with the knowledge, consent, and assistance, or procurement of the said defendants; and the said plaintiff avers, that by-reason of the said conduct of the said defendants, the aforesaid grievances were committed by the aforesaid assemblage of persons, with and by the procurement and conduct of the said defendants; and by reason of which the said plaintiff avers, that he was on the 27th of July, A. D. 1839, at the county aforesaid, evicted, driven, and kept out of the said tenement in the said declaration mentioned, in manner as alleged in said declaration, and by the means aforesaid.” This replication concluded to the country.
    To it the defendants demurred, and for special cause assigned, 1. That said pica is a departure from the original cause of action, as set forth in plaintiff’s declaration. 2. Because said plea is wholly insufficient in law. Upon hearing, the court overruled the defendant’s demurrer to the replication.
    Afterwards, they filed the following rejoinder: “ And the said ' defendants for rejoinder to plaintiff’s replication say, actio non, &c., because the said plaintiff was in possession of the said premises as the tenant of these defendants, at the time when the said lawless mob tore down the building, rented by these defendants to the said plaintiff; and the said plaintiff did not, at the time the said wrong and injury was done by the said mob to the building of these defendants, so rented to the said plaintiff, prevent the said mob from destroying the building of these defendants, while so rented and in the possession of the said plaintiff, but suffered the same to be destroyed by the said mob, to the great injury and damage of these defendants, to wit, the sum of five thousand dollars, which these defendants plead as an offset. This rejoinder concludes with a verification.
    To which the plaintiff filed his surrejoinder, as follows : “ And the said plaintiff, for answer to the defendants’ rejoinder to plaintiff’s replication to defendants’ plea, says, precludi non, because he says, that although he was then and there the tenant of the said defendants, at the time when the said lawless mob tore down the building rented by said defendants to said plaintiff, and was then and there present; and the plaintiff avers, that he, the said plaintiff, did then and there, with all his power and means, oppose and resist the said wrong and injury complained of in his said declaration, but was then and there unable to resist said mob; and he, the said plaintiff, avers, that he did not then and there suffer said tenement to be destroyed by the said mob, but resisted the same as aforesaid; until overcome by said mob, which was influenced by excitement and exasperation by them entertained against the said defendants; ” concluding to the country.
    To this surrejoinder the defendants demurred, and for cause of demurrer assigned, “that the surrejoinder is wholly insufficient in law.”
    The court overruled this demurrer to plaintiff's surrejoinder, but sustained the demurrer to the defendants’ rejoinder, and awarded judgment thereon, with a writ of inquiry. The proceedings upon the writ of inquiry need not be detailed; the jury assessed the plaintiff’s damages to the sum of $343, for which judgment was rendered, and also for costs; and the defendants sued out this writ of error.
    
      J. Winchester, for plaintiff in error.
    1. The.defendant in error had no cause of action, unless it can be said in this case that the covenanters intended, by their covenant, to guarantee to the covenantee the protection of the government against riotous assemblies and unlawful mobs. The covenant in this case is a general one of quiet enjoyment. The writing of it out in full, with the words, “ without the let, suit, hindrance,” &c., makes it no more than a general covenant of quiet enjoyment.
    2. And although the covenant be general and unlimited, and not restricted to the acts of persons claiming lawfully, yet it is now well settled, that such a covenant shall not extend to a tortious eviction, but to evictions by title only. Dudley v. Fol-liott, 3 T. R. 584; Greenly v. Wilcocks, 2 Johns. R. 4; Yun-der karr v. VanderJcarr, 11 J. R. 122; 7 John. R. 258; 2 John. R. 395 ; 4 Mass. 442 ; 2 Mass. 433 ; 2 Wheat. 61; 1 Bay, 254. The reason is obvious: the law itself protects every one against a wrongful entry.
    
      “Lord C. J. Vaughan adduces the four following reasons, why the covenants should not extend to tortious evictions. 1st. It is unreasonable, the vendor cannot prevent the entry; 2d. The vendee has his remedy against the wrong-doer, and therefore ought not to charge an innocent person; 3d. The ven-dee would have a double remedy for the same injury; 4th. It might open a door to fraud, for the vendee might secretly procure a stranger to make a tortious entry, that he might charge the vendor.
    “ But where a vendor covenants to indemnify against a particular person by name, then the covenant shall extend to an entry by that person, be it by droit or tort, for it is presumed that such a person had an interest.” Foster v. Mopes, Cro. Eliz. 212.
    3. “And where the covenantor himself does any act asserting title, it will be a breach of the covenant, although he covenanted against lawful disturbances only, and the act done by him was tortious, and might be the subject of an action of trespass.” Lloyd v. Tomkies, 1 T. R. 671Crosse v. 'Young, 2 Show. 425; 7 John. 376.
    “ It must nevertheless be an act asserting title.” Seddon v. Senate, 13 East, 72; 2 Sugden on Vend. 82, 83; Ellis v. Welch, 6 Mass. 246.
    Here the declaration assigns as a breach of the covenant, a tortious eviction. This is bad, according to all the foregoing authorities. It seems that where the covenantor himself evicts, even by a tortious act, he will be liable. But the act must be one asserting title. The reason given in the cases, is, that the Covenantor shall not be heard to allege his own tortious act in discharge of his liability under his covenant, but the court will presume he entered under claim of title. But it is submitted, that a declaration assigrjing as a breach of covenant a tortious eviction, even by the covenantor himself, would be bad. The action should be trespass, and not covenant. But no cases can be found where the tortious eviction of strangers can be made the foundation of an action for a breach of a general covenant against the covenantor.
    
      
      Sanders and Haggin, for defendant in error.
    1. This court has already determined that the declaration showed a good cause of action. This is not a technical covenant of “ quiet enjoyment; ” it is much broader and more extern sive, and there is no obstacle in reason or law to such extension.
    The reason given in the books, why a covenant “ of quiet enjoyment” will not be broken by a trespasser, is, that the tenant has his action against the trespasser; here the tenant required and obtained a better security, “the lessors.” The materials of which mobs are usually composed, afford no indemity to the injured party, and he would be without redress; hence the propriety of the stipulation.
    2. The only question which remains, is the correctness of the ruling of the court below in regard to the pleadings.
    The plea is bad, because it avoids and fails to answer the gist of the charge in the plaintiff’s declaration, “ moved by exasperation and excitement by them entertained towards the said defendants, and by the said defendants without the consent or knowledge of said plaintiff, and against his will and consent.”
    There is not any traverse of the substantive charge, that the mob was moved by exasperation and excitement by them entertained towards the defendants — no traverse that their conduct excited the mob; the assemblage may have been unknown to defendants, have moved without their consent, knowledge, or privity, assistance or procurement, yet been moved by exasperation and excitement by them entertained towards the defendants; and the averment in the plea, that the said plaintiff was not, to wit, at, ifcc., evicted, driven, and kept out of said tenement in the said declaration mentioned, by the assistance, procurement, or consent of these defendants, does not answer it.
    It is a rule in pleading, that every pleading must be an answer to the whole of what is adversely alleged. . Stephens on Plead. 215, 216, and authorities there cited. If we are correct in this, the replication of the plaintiff to which defendants demurred, whether defective or not, cannot be tested by that demurrer; because the defendants committed the first error in pleading and in acting upon his demurrer, the court will look into the whole pleading.
    
      3. The replication is not in point of fact obnoxious to the demurrer of defendants; because it is not a departure from the declaration, but is in aid and support of it, and makes the matters charged in the declaration actionable.
    4. The defendants’ rejoinder is subject to the same objection with their plea ; it is no answer to the action. And the surrebutter of the plaintiff in the court below, is but in support of the matters set out in his declaration, traversing only what was deemed to a given extent an answer to the previous pleading, and the circuit court was unquestionably correct in overruling the demurrer.
   Mr. Chief Justice Sharkey

delivered the opinion of the court.

The defendant in error brought an action of covenant on a covenant, contained in a lease, in these words: “And the said lessors warrant and agree to, and with, the said lessees, that they, paying the said rent above hereby reserved, and performing all the covenants and conditions herein contained on their part to be observed, shall and may lawfully, quietly, and peaceably hold, occupy, and enjoy the hereby demised premises, and every part thereof, for and during the whole time for which the same are demised, free from all eviction, interruption, and molestation to him, the said Dominico Arighi, from or by any person.” It seems from the pleadings that the injury complained of, resulted from a mob.

A general covenant of warranty is not broken by a forcible eviction ; it must be a lawful eviction. This rule is sometimes said to apply also in covenants for quiet enjoyment. It certainly does apply in all cases of eviction or disturbance by a stranger. In some cases, however, it is said, a covenant for quiet enjoyment is broken by the forcible entry or disturbance of the grantor or lessor,'and this was probably the view taken of this case, when, on a former occasion, the declaration was held to be sufficient. But a forcible and unlawful eviction by strangers, is not a ground for an action on a covenant for quiet enjoyment. If the lessor is to be made liable, the eviction must be by his act. Dudley v. Folliott, 3 Term R. 583; Greenby v. Wilcocks, 2 Johns. 1; 2 Saund. 181, (note 10); Duvall v. Craig, 2 Wheat. 45, (note e.) It will not do that strangers were induced to do the act by feelings of animosity or revenge against the lessor. The lessor must do the act, or excite others to it, not indirectly, but directly. He must be the agent, who acts with a view to that particular result. This is the necessary consequence of the principles stated in the authorities in regard to covenants for quiet enjoyment, and the covenant in this case is nothing more. The language employed in the covenant in Dudley v. Folliott, was even broader than it is in this case, and yet it was held only to be a covenant for quiet enjoyment.

Let us then make an application of these principles to the pleadings in this case. The declaration requires no special comment, as it has been sustained. It is, however, necessary to notice it so far as to draw the distinction between the good and the bad allegations. It alleges the injuries to have been done by an assemblage of men, moved by exasperation and excitement by them entertained towards the defendants.” In this respect it is insufficient, as an injury resulting from such a motive entertained by a mob, is not a breach of the covenant. But the allegation, that the mob was moved to do the act by the defendants, maybe sufficient.

The plea avers, that the assemblage was composed of persons unknown to defendants, and without their consent, knowledge, or privity, and against their will, did the act. This was a full denial of the agency of the defendants. The important inquiry was, did the defendants do the act, either directly or by procurement. It is not sufficient that the mob was actuated by feelings of malice or revenge against the defendants. The only sufficient allegation presented in the declaration was, that the act was moved by the defendants, and therefore their - act, and this plea answers it. On this view of the pleadings, the plea should have concluded to the country, because it was a denial of the important matter alleged in the declaration, to wit, the agency of the defendants in the riot, and presented the negative of the only question to be tried.

The replication, so far as it re-asserts that the trespass and eviction was the act of the defendants, might have been well enough as an answer to the plea. But it does more; it alleges that the assemblage of persons were moved to the commission of the act “by exasperation and excitement by them then entertained towards the said defendants, for and on account of the acts and conduct of the said defendants, before that time, to wit, on the 26th of July, A. D. 1839, at the city of Natchez and county aforesaid, in dispossessing of divers persons, to wit, John Brus, Francis Randolph, and others, of certain lots, houses, and tenements, by them occupied and possessed, under persons holding under said defendants,” &c. We have already said the defendants were not liable for the acts of strangers resulting from such causes, and of course they could not take issue on this replication. The demurrer to it was therefore improperly overruled. This view of the case renders it unnecessary that we should notice the subsequent pleadings.

Judgment reversed and cause remanded.  