#### Lawrence *vs.*French.

Where premises are demised at a fixed rent, and the *tenant*enters, but is prevented from obtaining the *whole*of the premises by a person holding a part under *a prior lease*executed by the *landlord,*the latter has no right to *distrain*for a proportionate part of the rent reserved, by deducting the value of the part held under the prior lease, and demanding the residue; though *it seems,*that in such case the landlord is entitled to sustain an action for the use and occupation of the premises, and recover under a *quantum meruit.*

This was an action of *replevin,*tried at the Albany circuit in June, 1839, before the Hon. John P. Cushman, one of the circuit judges.

The plaintiff, on the 12th December, 1835, took a lease of the defendant of a building in the city of Albany called the *Exchange Goffee-Kouse,*for the term of one year from the first day of May, 1836, at an annual rent of $1,050, payable quarterly. He had since May, 1834, been in possession *339of the whole of the premises demised, *except one room*in the comer of the building, which was occupied by one *Oandy.*On the first day of .May, 1836, Candy, under a prior lease from the defendant, at an annual rent of $400, continued in the occupation of the room; and the plaintiff continued to occupy all the the residue of the building, until 17th January, 1837; when the defendant issued a distress warrant, claiming §487.50 to be due to him from the plaintiff from *three quarters’*rent, estimating the rent by deducting $400 from the *annual rent reserved*in the lease to the plaintiff; thus charging the plaintiff with an *annual rent*of only $650, for *three-fourths*of which sum the warrant was issued. The property of the plaintiff was distrained to the amount of $487.50; and the plaintiff sued out a writ of replevin. It was conceded by the plaintiff that $650 per annum was a fair price for the *use*of *that portion*of the premises occupied by him ; *but he insisted that the defendant, not having put him into [ *444 ] possession of the *whole*of the demised premises, had no authority by law to *distrain*for the rent reserved, or any part thereof; and so requested the judge to charge the jury. The judge refused so to charge; and on the contrary instructed the jury that the defendant had a lawful right to make the distress for the sum demanded, and was entitled to their Verdict. The jury accordingly found a verdict for the defendant, with six cents damages and six cents costs ; found the rent to be $487.50, and the value of the property at the same sum ; and assessed the damages of the defendant at $10, for the detention of the property. The plaintiff having excepted to the charge of the judge, moved for a new trial.

*S. Stevens,*for the plaintiff,

insisted that the defendant was not entitled to *distrain*for any part of the rent reserved in the lease ; that the plaintiff having been prevented by the act of the defendant from enjoying a *part*of the demised premises was tantamount to an *eviction*from such part, 8 *Cowen,*727; 4 *Wendell,*423. Ho rent can be recovered in such case, because it cannot be apportioned; there being no mode by which the proportionate value to the tenant of the different parts of the premises can be ascertained, *Woodfall's Landlord and Tenant,*254; 1 *Salk.*65. By an entry into part of the demised premises by the landlord, the whole rent is suspended, 1 *Cowp.*242; *Woodfall,*412; *Perkins,*§ 825 ; 8 *Cowen,*731, 733. Besides a landlord can distrain only where the services or rent are certain and specific, 1 *R. S.*738, § 18. Here the rent was as uncertain as it would have been under a *quantum meruit,*in an action for use and occupation.

*J. Van Buren,*for the plaintiff.

Here was no *eviction.*In *Etheridge*v. *Osborn,*12 *Wendell,*532, Chief Justice Savage said, “ An eviction con*340sists in taking from the tenant some part of the demised premises of which he was in possession; not in refusing to put him in possession of something which, by the agreement, he ought to have enjoyed. A tenant [ '445 ] *cannot be evicted from that which he never possessed and so here. The tenant entered and has possessed the most valuable part of the premises. It is undeniable that an action may be sustained for the use and occupation, and why is the landlord not entitled to distrain ? Where the tenant is evicted by title paramount, there may be an apportionment. If in that case the rent can be apportioned by deducting the value of the part taken from the part left, so it may be done here. Besides, if the landlord erred in asking a greater sum than he was entitled to, the jury might have found against him, or the tenant would have had his remedy by action.

*By the Court,*

Nelson, C. J.

It is a familiar rule of law, that if the landlord *enter*wrongfully upon, or prevent the tenant from the enjoyment of, *apart*of the demised premises, it suspends the whole rent, until possession is restored. His title is founded upon this, that the land leased is enjoyed by the tenant during the term; if, therefore, he be deprived of it, the obligation to pay ceases. The rule is otherwise where a *part*is recovered by title paramount to the lessor’s ; for, in that case he is not so far considered in fault, as that it should deprive him of a return for the part remaining. The law, therefore, directs an apportionment of the rent, 6 *Bacon’s Abr.*44, *tit. Rent. L. ; Gilbert on Rents,*173 ; *Comyn’s Land. & Ten.*214-219 *; Bradby on Dist.*24-30. But as between lessor and lessee, an eviction from part by the former, or any person claiming through him, will operate a suspension of the whole, *Comyn’s Land, and Ten.*524 ; 2 *Saund. Pl.*& *Ev.*630. There are some cases illustrating this principle to which I will refer.

A mere trespass, by the lessor, will not suspend the rent, as where he entered and destroyed a building, *Cowp.*242 ; but where he railed off a part of the premises, the act had that effect, 3 *Camp.*513. So where he gave notice to an under tenant to quit, and he did accordingly, it was held to amount to an eviction, 1 *Stark. R.*94; also in case of a demise to another after the tenant had left the premises, 5 *Barn. & Cress.*332.

[ *446 3 *The case of *Ludwell v. Newman,*6 *T. R.*458, in principle, comes near the present one. It was an action on a covenant of quiet enjoyment in a lease. The breach was, that the plaintiff could not obtain the possession; that he applied to the tenant to attorn, who refused ; an action of ejectment was brought, and defeated by a previous lease of the defendant, given the month before ; by reason of all which the plaintiff was prevented from enjoying the term, &c. The second count was like the first, except it omittecl the application to attorn, and proceedings in ejectment. *341Defective pleas were put in to each/ count, to which there were demurrers. One objection taken to the pleas was this: they stated the plaintiff might lawfully have enjoyed during the-first half year ; when it appeared by the declaration, that he could not have entered at any time on account of the prior lease. The court held, that the defendant’s covenant of quiet enjoyment meant *a legal entry and enjoyment,*without the permission of any other person ; which could not take place on account of the prior subsisting lease granted to .R. *See Platt, on Cov.*327. The case decides that the lessee is not bognd to test his right of entry by suit, as the only legal evidence of a breach of the covenant; nor need he commit a trespass by an actual entry/ *Platt on Cov.*327 ; *Hob.*12 ; 2 *Bacon,*66, B.

In *Tomlinson*v. *Day,*2 *Brod. & Bing.*680, the defendant took a farm under an agreement, by which the plaintiff stipulated that he should enjoy the exclusive right of sporting over the manor in which the farm lay, and should occupy the glebe land of the parish ; rent £450. The agreement, though acknowledged and recognized by the defendant, had never been signed by 'mm; but he *occupied the farm*for some time. The chief inducement in taking it, was the privilege of sporting ; but it turned out the plaintiff had no power to grant the privilege, and the defendant was in fact warned off by ' the occupiers of the manor. Neither did he get possession of the glebe. In an action for use and occupation, the court held that an eviction of apart of the subject matter of the demise had been proved, and allowed *a recovery for no more than the annual value of the farm. [ *447 ] Though the rule for a time seems to have been inflexible, that in these cases the whole rent should be suspended till possession was restored, the last case referred to shows, that if the tenant occupies part, he may be charged for such occupation upon a *quantum meruit.*

In *Smith*v. *Raleigh,*3 *Camp.*513, 514, *n,*the defendant had agreed to take the premises at an entire rent, and possession was delivered; after which, the plaintiff railed off a part of the garden, and the defendant thereupon returned the key. Lord Ellenborough held, that this amounted to an eviction from part of the demised premises, and a complete answer to the action. This case was afterwards recognized by Dallas, J. in *Stokes*v. *Qooper,*in which the rule was laid down, that after an eviction from part, the lessor cannot recover upon the original contract; and the tenant, by giving up possession of the residue, is entirely discharged; but if after the eviction he continues, he shall be liable on a *quantum meruit. Comyn’s Land. & Ten.*217, 452 ; 15 *Mass. R.*268.

The result of all these cases, I think, shows that the defendant here has deprived himself of the remedy by distress. The eviction from part of the demised premises, by means of his occupation of the residue, the holding is not strictly under the original agreement, but an implied obligation arises *342to pay the worth of them at the time specified therein. No fixed rent is due, and therefore distress is not the appropriate remedy. It would be unjust to allow it here, as the party himself has put it out of the power of the tenant to tender the amount. His rights will be sufficiently protected by allowing the usual redress, where no specific rent has been agreed on. 5 *Barn. & Ald.*322.

New trial granted.