
    *Briggs v. Hall.
    May, 1833.
    Landlord and Tenant — Eviction toy Landlord from Pari oí Demised Premises — Effect.— tri assumpsit for the use and occupation of a farm for a. year, it appears, that the landlord entered on a meadow parcel of the premises, within the year, and mowed and carried away the hay. without the consent and against the will of the tenant: who, nevertheless, continued to occupy the farm during the residueof the year: Hnim. thelandlord "by such disturbance of the tenant, lost the benefit of the intire contract, and is not entitled to recover any part of the rent.
    Assumpsit for use and occupation of land, brought by Briggs against Hall, in the county court of Fauqiiier. There were two counts in the declaration; namely, general indebitatus assumpsit for the use and occupation, and quantum meruit for the same. Plea, non assumpsit.
    At the trial, there was a demurrer to evidence, from which it appeared, that the plaintiff adduced evidence, proving that he had let the premises, being a messuage and farm, to the defendant for a year, at a rent of 70 dollars, and that the defendant had occupied the same, accordingly, for the whole year. Then the defendant, on his part, adduced evidence, proving that there were four acres of meadow parcel of the farm let by the plaintiff to him, and that the plaintiff, during the year, entered upon the premises, and mowed the hay growing on the meadow, and carried the same away, the defendant objecting and forbidding him to do so; and this was the only interruption or disturbance given by the landlord to the tenant, who did not, thereupon, quit the premises, but continued, notwithstanding such interruption, to occupy the farm for the year. And such being the evidence on both sides, the plaintiff demurred and said that the evidence was sufficient to maintain the issue on his part, and not sufficient to maintain the same on the defendant’s partj and the defendant joined in the demurrer.
    The jury found a verdict for the plaintiff for 70 dollars with interest &c. subject to the opinion of the court on the demurrer to evidence. The court held that the law on the demurrer was for the defendant, and gave him judgment; *and upon a supersedeas awarded to the plaintiff, the judgment was affirmed by the circuit court; and then, on the petition of the plaintiff, a supersedeas was allowed him by this court.
    Stanard and’ Briggs, for the plaintiff in error.
    Harrison for the defendant.
    
      
      Landlord and Tenant — Eviction of Tenant- Effect.— “The quiet enioyment of the premises, without any molestation on the part of the landlord, is an implied condition, on which the tenant is bound to pay rent." “If. therefore, the tenant be at any time deprived of the premises by the landlord’s agency, tbe obligation to pay rent ceases, because his obligation has force only from the consideration which is the enioyment of the premises. From this principle it also follows, that if the land be recovered by a third person, by a title superior to that of the lessor, the tenant is discharged from the payment of rent, alter eviction by such recovery. If part only of the land is recovered, such an eviction is a discharge of so much of the rent as is in proportion to the value of the land evicted. But if the lessor himself wrongfully deprives the tenant of the whole or any part of the premises, the tenant is discharged from the payment of the whole rent until the possession is restored. And the reason why there should be no apportionment of the rent in the latter case is, that it is done by the wrongful act of the landlord himself, and no man should be encouraged to disturb a tenant in the possession of that which, by the policy of the feudal law, he ought to protect, and defend.” In Tunis v. Grandy, 22 Gratt. 120, Monourh, P„ who delivered the opinion of the court, quotes the above principles of law in regard to the eviction of a tenant from the demised premises ora part thereof, from Taylor’s Landlord and Tenant, § 378, and continues by saying: "These principles, which seem to have had their origin, in part at least, in the feudal law, are well settled, not only in England, but iu many, ifmol most, of the states of this Onion, and have certainly received the emphatic sanction of this court in Briggs v. Hall, 4 Leigh. 484.” See also, monographic note on “Landlord and Tenant” appended to Mason v. Moyers, 2 Rob. 606.
      Same — Actual Eviction — Wlhat Constitutes. —An actual eviction is an actual expulsion of the t enant out of all or some part of the demised premises,— and physical ouster or dispossession from the very thing granted, or some substantia) part thereof. To this point the principal case was cited in Knotts v. McGregor, 47 W. Va. 566, 35 S. E. Rep. 901.
      Appellate Practice — Demurrer to Evidence — Motion for New Trial.- in N. & W. R. Co. v. Dunnaway, 93 Va. 33, 24 S. E. Rep. 698. the principal case was cited as a case in which the appellate court reviewed a iudgment on a demurrer to evidence, though no motion for a new trial was made in the court below.
      For further information on this subject, see mon-ographic note on. "New Trials” appended to Boswell v. Jones, 1 Wash. 322; monographic note, on “Demurrer to the Evidence” appended to Tutt v. Slaughter, 5 Gratt. 364.
      As reaffirming the decision in Humphreys v. West, 3 Raud. 516, the principal case is cited in Newberry v. Williams, 89 Va. 300, 15 S. E. Rep. 865.
    
   CARR, J.

In ad j udging that the evidence was sufficient in law to maintain the defendant’s plea of non assumpsit, the court, no doubt, went upon the ground, that the entry and mowing and carrying away the hay crop, was an eviction as to fhe meadow, and that an eviction of part of the rented premises by the landlord, was an extinguishment of the whole rent. I was- doubtful at first, whether, on the issue, this evidence as to taking away the meadow crop, was admissible; but examination has removed that doubt. I find it laid down in many books, that, in debt for rent, the defendant may, under the plea of nil debet give in evidence an entry and expulsion by the landlord; and the doctrine, I think, applies a fortiori here.

Is’this evidence such as would have authorized a jury to find an eviction? The principal enjoyment and possession of meadow, consists in the taking and using the hay: the man who does this, is to every rational purpose, the possessor. Therefore, the wrongful entry of the landlord into the meadow, and his forcible cutting and carrying away of the hay, might, I think, well have authorized a jury to find an eviction as to the meadow land; and the court on the demurrer must do the same.

But does this eviction of part suspend the whole rent? In the old books of the highest authority, this is explicitly laid down as settled law. Roll, Coke, Bacon, and many others, are express to this point; and thejr give, what seems to me, a sound reason for it. Thus Gilbert in his law of evidence, p. 283, says, “If the lessor enter into part, the whole rent is suspended, for the lessor cannot apportion it *by an act of his own; for, if the party himself, by his own wrong, doth hinder himself from the benefit of his own intire contract, the jury ought not to decide it in his favour, for possibly the lessee would not have contracted for one part without the other. If a stranger evict the lessee of part of the land, the rent must be apportioned, for though part bp taken away, since also some part remains, there is a part of the consideration money remaining due to the lessor, for otherwise the act of the law, in the stranger’s recovery, would do wrong to the lessor.” In 6 Bac. Abr. Rent, M. p. 49, it is said, 1 ‘ Where the lessor takes a lease of part of the land, or enters wrongfully into part, there are variety of opinions whether the intire rent shall not be suspended, during the continuance of such lease, or tortious entry; and in the last case, it seems to be the better opinion, and the settled law at this day, that the tenant is discharged from the payment of the whole rent, till he be restored to the whole possession, that no man may be encouraged to injure or disturb his tenant in his possession, whom by the policy of the feudal law, he is bound to protect.” These are the old books: but Starkie, a late writer of high authority, scates the law in the same way: speaking of the lessee’s defence under the plea of nil debet, he says — “So the lessee may shew an entry, or an expulsion from the premises by the l'essor, or any suspension of rent by him, under this issue; for since the lessor by his own wrongful act deprives the party of the benefit of the intire contract, no apportionment can be made in his favour.” Stark. Law Ev. part 4, vol. 2, p. 465. Chancellor Kent too, in his Commentaries (vol. 3, p. 376,) says, “If the landlord enters upon part of the demised premises by wrong, the better opinion is, that it suspends the payment of the whole rent, until the tenant be restored to the whole possession, for the lessor ought not to be able so to apportion his own wrong, as to oblige the tenant to pay any thing for the residue.” In Cibell v. Hills, 18 Vin. Abr. Rent. I, a. pl. 2, p. 513, citing Leo. 110, the court held the continuing in possession of the landlord, was *not material, for if he does any thing amounting to an entry, though he depart presently, yet the possession is in him, sufficient to suspend the rent, and he shall be said extra tenerethe defendant” &c. In Roll’s Abr. 940, it is said, “If a man lease a rectory, for years, reserving rent, and upon part of the glebe, there is a sheep cot, and the lessor enter and pull it down, and the lessee reenter, and then the rent is in arrear; the rent is suspended, notwithstanding the reentry of the lessee, for part of the profits of the thing leased is taken from the lessee, to wit, his house, and that by the act of the lessor.” So, in the case before us, part of the profits of the thing leased, the hay crop, was taken from the lessee, and that by the act of the lessor. These authorities prove clearly to me, that there was such an expulsion here, as justified the court in its judgment.

It was contended at the bar, that this, though admitted to be the ancient law, has been changed by the modern english decision; and that the rule now established there, is, that if the landlord evict the tenant from parcel of the premises, the tenant, if he quit the residue, is discharged from the whole rent; but if he continue in possession of the remainder, he is liable pro tanto: and for this Stark. Law Ev. part 4, vol. 3, p. 1520, and the cases there cited, are referred to. Starkie certainly lays down the rule, as stated, and cites in support of it Smith v. Raleigh, 3 Campb. 513, and Stokes v. Cooper, Id. 514, in a note. The first of these cases was assumpsit for use and occupation of a house and garden; plea, the general issue; it appeared, that after the defendant had agreed to take the premises, at an intire rent, and possession had been delivered to him, the plaintiff railed off a part of the garden, and built a privy upon it, for the use of a number of his other tenants, and the defendant thereupon returned the keys to him : lord Ellenborough ruled, that this amounted to an eviction from part of the demised premises; which, the taking being single, and the rent intire, he considered a complete answer to the action ; and he nonsuited the plaintiff. Surely, this case does not “'furnish authority for the position, that the tenant continuing to hold the part from which he is not evicted, is liable pro tanto; for no such point was before the court, nor did the judge say a word about it: he simply held, that, in the case before him, the tenant was discharged. In his note to this case, the reporter says, “This case was recognized by Dallas, J., in Stokes v. Cooper, in which the rule was laid down, that after eviction from part, the landlord cannot recover upon the original contract, and the tenant by giving up possession of the residue, is intirely discharged ; but that if the tenant, after the eviction, continues in possession of the residue, he may be liable upon a quantum meruit.” This is a brief and loose note of a decision made on the circuit, and gives us a mere skeleton of the case. I take it that the case before the court was, like that before lord EUenbor-ough, and that the point adjudged was, that after eviction from part, the landlord cannot recover upon the original contract: if so, what is said about the quantum meruit was extrajudicial. And that it was so, seems the clearer from the case cited in support of the judgment; which is Dalston v. Reeve, 1 Ld. Raym. 77, where in covenant upon indenture for nonpayment of rent, the defendant pleaded eviction; the plaintiff demurred; and judgment was given for the defendant because it is rent, and the eviction is a suspension of it, and therefore a good plea. Now, I consider these cases as rather confirming, than going to overrule or change, the doctrine, that an eviction of part of the rented premises by the landlord, is a suspension of the whole rent: In the first, lord EUenborough expressly says, that “an eviction from part of the demised premises, is a complete answer to the action. ’ ’ In the other, Mr. justice Dallas says, “that after eviction from part, the landlord cannot recover upon the original contract. ” In the case before us, the suit was brought upon the original contract; the plaintiff demurred to the defendant’s evidence ; that evidence shews an eviction of part of the premises, by the landlord; and the question of law raised by this demurrqr is, whether, in law, this evidence supports “'the defendant’s plea of non assumpsit? or in lord Kllenbor-ough’s language, whether ‘ ‘eviction of part is a complete answer to the action?” If indeed, these cases could be considered as meant to change the old and well established rule, I should reject their authority: they are, at best, but nisi prius decisions of a single judge; and I should say that the old rule is wise, humane and just, and the new one the contrary. How can the landlord complain of the law which says to him, “be just, and abide by .your contract; if you take from your tenant a part of the premises, you shall receive no rent?” But look at the other side: a man rents a tract of land; it is of a size which suits his capital and his views; he would not rent a part of it; it would be too small; but after he has settled upon it, and made all his arrangements for a crop, his landlord come.s and takes forcible possession of his best fields: he must either at an inclement or inconvenient season, turn himself out of house and home; or if he remains, you make him pay to this oppressive landlord, a portion of the rent. It is not consistent either with the policj' or humanity of the law, thus to arm the strong against the weak.

But how can we, in the existing posture of the case, come at the question, whether the rent should be apportioned? The jur3r has found a verdict for the whole rent, the 70 dollars. No objection was made to this by the defendant; no motion was made to the court, to set aside the verdict for excessive damages: on the contrarjr the parties put themselves intirely upon the law of the case. The plaintiff demurs to the defendant’s evidence, saying it is not sufficient in law, to maintain the issue on his part; the defendant says that the evidence is sufficient. Thus an issue in law is made up, and this is the sole point to be tried by the court. This, which is so clear in itself, has also the sanction of this court. In Humphreys v. West, 3 Rand. 518, judge Coalter said, “The court is of opinion, that the only question for their consideration, on a demurrer to evidence, is, whether the evidence supports the issue or not. After the demurrer is '“'joined, the jury may either be discharged, and (if the judgment be that the evidence does support the issue) a writ of inquiry is awarded; or the jury then impaneled, may go on to assess conditional damages. But, in either case, the question is with the jury, not the court, as to the question of damages; subject, as in all other cases to the superintending control of the court, to grant a new trial in case the damages are excessive. That however rests with the court before whom the trial was had; and that too, upon a motion to that court for a new trial; there being no case in which that court is bound, ex mero motu, and without motion, to grant a new trial, and subject the defendant, without his consent, to greater damages. The appellate court cannot grant,such new trial; for that, would be to reverse the judgment of an inferiour court, on a motion for a new trial here, which was not made to that court, and of course, on a matter in which that court committed no error.” This was the unanimous judgment of a full court, and has never since (that I have heard of) been questioned. 1 am for affirming ihe judgment.

CABELL and BROOKE, J., concurred.

TUCKER, P.

After having very much revolved this case, with which I have been perplexed, not only by the cases upon the subject of suspension of rent, and of use and occupation, but by the extremely awkward and unsatisfactor}' manner in which the demurrer is presented, I am inclined to think, that the whole question depends upon the fact, whether there was, in this case, any regular demise or lease? If there was a regular demise or lease, then it seems clear from the whole current of authorities, from the time of Roll to the passing of the statute of 11 Geo. 2, ch. 19, that general indebitatus assumpsit for use and occupation will not lie, unless upon a collateral promise, or where, as it is said, the promise is to pay a sum in gross. Wherever there was a regular demise, the landlord was supposed to have his remedy *upon the contract itself. Thus, we are told in 1 Roll’s Abr. 7, 8, that if a man leases for years reserving rent, as-sumpsit will not lie, either during the lease or after, because it savours of the realty. And this is perfectly consonant with general principles. Eor, in no case, can a man who has made an express contract abandon that, and recover under a contract implied or raised by law. He may have contracted for terms less favorable than the law would imply, and he must be bound by such contract. He cannot be permitted to abandon it, and recover more than he stipulated for, or on other terms than those stipulated.

Questions, however, often arose, in these cases, whether the engagement was to pay rent, or was a promise to pay a sum in .gross? Whether an express promise to pay the rent reserved, was or was not collateral, or upon a new consideration? and whether there was a regular demise or not? Por, if there was an express promise to pay a sum in gross, the action was maintainable; as where the declaration set forth, that in consideration that the plaintiff promised to make a lease for two years and to repair during the term, the defendant promised to pay twenty shillings per quarter; this was held to be a promise to pay a sum iii gross, and therefore recoverable in assumpsit; 1 Roll’s Abr. 7 O. case 3. And where there was any new consideration (such as forbearance to sue) and a promise to pay after the rent became due, the action was held to be maintainable; 1 Brownl. 14. So also where there was no regular demise, and the defendant nevertheless entered and enjoyed, by permission of the owner, the landlord might maintain an action for use and occupation; since, otherwise, he would have been without remedy. But where there was no such ground of exception to the general rule, that rule prevailed, that in case of an actual lease assumpsit would not lie. Green v. Harrington, 1 Brownl. 14; Mantel v. Brett, Hob. 397.

In consequence of these principles, nothing was more frequent at common law, in actions for use and occupation, than the nonsuit of the plaintiff by evidence on the trial of *a regular demise. It was to remedy this inconvenience, that the stat. 11 Geo. 2, ch. 19, was enacted. See 4 Hen. & Munf. 168. The statute provides, that where the demise is not by deed, the landlord may bring the action for use and occupation, and if on the trial any pa-rol demise or agreement (not being by deed) whereon rent is reserved, shall appear in evidence, the plaintiff shall not therefore be nonsuited, but may use it as evidence of the quantum of damages. This statute never was in force with us, nor have we any similar provision. We stand, therefore, upon the old common law, which permits a recovery in indebitatus assumpsit for use and occupation, either upon an express or implied promise where there has been no regular demise, but denies it where there has been such demise, unless in cases of collateral promises, or promises upon new consideration, or a promise to pay a sum in gross. That the action is sustainable upon an express or implied promise under such circumstances, is clearly established by the case of Eppes v. Cole, 4 Hen. & Munf. 161, and by the cases there cited. The apparent collision between some of these cases and others to be found in the books, may be explained by an attention to the distinctions above mentioned. See Chambers’s Landlord and Tenant 687.

In this view, then, it is essential to determine, whether there was or was not a regular demise in this case; and from a careful examination of the demurrer, I am of opinion there was not. [Here, the judge entered into an examination of the evidence set out in the demurrer, to shew the justness of this conclusion.] If there was no regular demise, then the action for use and occupation will lie; and, in that action, the question of eviction does not arise, but the plaintiff is entitled to recover for that part actually enjoyed, but for that part only. Tomlinson v. Day, 3 Brod. & Bing. 680, 6 Eng. C. L. R. 315, Now, it seems, that, in this case, the promise to pay the 70 dollars was for the whole land including the meadow ; and as the meadow was not enjoyed, the rent should be apportioned. Or, (to consider *it in another light) the tenant having enjoyed the land, without the meadow, should only be compelled to pay for the part enjoyed.

The verdict, however, has found the whole 70 dollars, subject to the opinion of the court on the demurrer. Shall the plaintiff then recover the whole sum, because the court is of opinion the evidence does support an action? By no means. I am of opinion, that the evidence maintains the action, indeed, but only for part of the sum. The verdict, therefore, has not so found the damages as to enable the court to pronounce judgment. Upon the case presented, the jury ought either to have been discharged without inquiring of damages, or they ought to have found the damages with a double aspect; namely, so much if the plaintiff was entitled to the whole rent, and so much if he was not entitled to rent for the meadow. This not being done, the verdict, I think, should be set aside, and a writ of inquiry awarded. But the other judges being of opinion that there is no error in the judgment, it must be affirmed.  