By the Court, Savage, Ch. J.
The first question is, who held the affirmative of the issue joined % In my judgment, the plaintiff did. In his declaration, he asserts affirmatively several facts: the making the lease, the transfer to him by his co-lessor, and the assignment to defendant. The defendant [563] takes issue upon one fact only, viz. the assignment to himself. This averment, then, is denied, and, of course, the others are admitted. But as to this, it seems to me plain that the A plaintiff must prove the fact which he has asserted, and which the defendant has denied to be true. The judge erred, therefore, in refusing to nonsuit the plaintiff. It has often, however, been decided, that although the judge errs in refusing to nonsuit a plaintiff, still, if the evidence which ought to have been given by the plaintiff is given in the course of the trial, a new trial will not be granted for such error. That principle is applicable here. Proof that the defendant is in possession of the demised premises is prima facie evidence that he is assignee. The plaintiff ought to have given that proof, if he did not choose to shew the defendant assignee in any other manner; yet, as the defendant himself proved that fact, a new trial must be denied, unless there was some other error.
The only other question in this case is, whether the eviction of three eighths is a bar to the action ? This precise question has been already decided by this court in this very cause, when the same defence was pleaded and demurred to.* The case upon which we then relied, and which is exactly in point, is Stevenson v. Lombard, (2 East, 576.) That [564] was an action of covenant against the assignee. He plead-e<lan eviction by title paramount of half the premises. To this plea, the plaintiff demurred, and had judgment on the ground that the assignee is answerable by virtue of the privi[565] ty of estate only, and as to him, rent is apportionable. The plea, therefore, if pleaded to one half the plaintiff’s demand, would have been good, but was held bad in bar of the whole action.
The evidence in this case, therefore, is no bar to the action. Under a proper state of pleadings, it would have been a bar [566] to three eighths of the demand. The only point of view in which it could have been received was to shew that the defendant was not assignee, but had some lesser estate as sub-tenon^ The evidence does not shew that the defendant’s interest was any thing less than the whole term. It does shew that the plaintiff ought not to recover but five eighths of his present verdict; but, as the evidence was not |S?operly received to shew that fact, the plaintiff could not be required to controvert it. If the defendant intended to shew an eviction of three eighths, by way of reducing the amount of the plaintiff’s recovery, he should have so pleaded. The evidence does not support the plea, and the plaintiff is entitled to retain his verdict.
Motion for new trial denied.
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By the Court, Savage, Ch. J.
The first question is, who held the affirmative of the issue joined % In my judgment, the plaintiff did. In his declaration, he asserts affirmatively several facts: the making the lease, the transfer to him by his co-lessor, and the assignment to defendant. The defendant [563] takes issue upon one fact only, viz. the assignment to himself. This averment, then, is denied, and, of course, the others are admitted. But as to this, it seems to me plain that the A plaintiff must prove the fact which he has asserted, and which the defendant has denied to be true. The judge erred, therefore, in refusing to nonsuit the plaintiff. It has often, however, been decided, that although the judge errs in refusing to nonsuit a plaintiff, still, if the evidence which ought to have been given by the plaintiff is given in the course of the trial, a new trial will not be granted for such error. That principle is applicable here. Proof that the defendant is in possession of the demised premises is prima facie evidence that he is assignee. The plaintiff ought to have given that proof, if he did not choose to shew the defendant assignee in any other manner; yet, as the defendant himself proved that fact, a new trial must be denied, unless there was some other error.
The only other question in this case is, whether the eviction of three eighths is a bar to the action ? This precise question has been already decided by this court in this very cause, when the same defence was pleaded and demurred to.* The case upon which we then relied, and which is exactly in point, is Stevenson v. Lombard, (2 East, 576.) That [564] was an action of covenant against the assignee. He plead-e<lan eviction by title paramount of half the premises. To this plea, the plaintiff demurred, and had judgment on the ground that the assignee is answerable by virtue of the privi[565] ty of estate only, and as to him, rent is apportionable. The plea, therefore, if pleaded to one half the plaintiff’s demand, would have been good, but was held bad in bar of the whole action.
The evidence in this case, therefore, is no bar to the action. Under a proper state of pleadings, it would have been a bar [566] to three eighths of the demand. The only point of view in which it could have been received was to shew that the defendant was not assignee, but had some lesser estate as sub-tenon^ The evidence does not shew that the defendant’s interest was any thing less than the whole term. It does shew that the plaintiff ought not to recover but five eighths of his present verdict; but, as the evidence was not |S?operly received to shew that fact, the plaintiff could not be required to controvert it. If the defendant intended to shew an eviction of three eighths, by way of reducing the amount of the plaintiff’s recovery, he should have so pleaded. The evidence does not support the plea, and the plaintiff is entitled to retain his verdict.
Motion for new trial denied.
[565] It is well settled that there can be no suspension of the rent without an eviction. (Bul. N. P. 177. 1 Lord Raym. 370.) An eviction by the lessor, or by a paramount title, is a good bar to the payment of rent. (1 Saund. 205, n. Cowp. 243.) In the case of Foster v. Pierson, (4 T. R. 617,) the action was covenant and founded upon a breach of the covenant for quiet enjoyment. It was held to be a good assignment of a breach, to state that J. B. P., at the time of the lease made, and at the time of the eviction, had lawful right and title to the premises, and having such lawful right and title, entered. Another objection taken in that case was, that the eviction was not shewn to have been by due course of law; but this was abandoned as untenable. This is cited and approved by Scijt. Williams, 2 Sound. 181, b.: the contrary was ruled in Mosse v. Archer, (3 Mod. 135.) In Greenby v. Wilcocks, (2 Johns. R. 1,) Spencer, J., who delivered the opinion of the majority of the court, says, “ The eviction stated in the declaration does not appear, nor is it averred to have taken place by process of law: covenants for quiet enjoyment and a general warranty extend only to lawful evictions. Some of the cases admit that the action lies for breach of covenant for quiet enjoyment, if the person to whom the right belongs oust the possessor.” In Waldron v. McCarty, (3 Johns. R. 473,) Spencer, J. again reiterates the doctrine, that in an action on such a covenant there must be an expulsion from the possession, or a disturbance therein. In Cortz v. Carpenter, (5 Johns. R. 121,) the court say, “ The covenant for quiet enjoyment goes to the possession, and not to the title.” It appears to be a technical rule that nothing amounts to a breach oi this covenant but an actual eviction or disturbance of the possession of the covenantee. In Kerry v. Shaw, (13 Johns. R. 238,) the court refer to the above cases, and say that a judgment in ejectment is not sufficient; there must be an actual disturbance of the possession. Taking these cases together, they shew that to constitute an- eviction by a stranger, there must be a disturbance of the possession under a paramount title by due process of law. This must constitute the rule by which to test the sufficiency of the pleas in this case.
The second pica alleges a seisin in fee in IClock, and an expulsion, but not by process of law, and only of three eighths of the premises. It is therefore bad on two grounds: 1. For not shewing process of laie to warrant the expulsion ; and 2. In not shewing title or expulsion only as to a ¡tari. In Stevenson y. Lambard, (2 East, 580,) it is decided that in debt or covenant against the assignee of the lessee, the action is local and the rent is appor[566] iionabZe. That was an action of covenant against the assignee; the defendant pleaded an eviction by ejectment as to one half, to which there was a démurrer, and the court, after an able argument and upon due consideration, gave judgment for the plaintiff, on the principle that between these parties the rent was apportionable ; and they allowed the defendant to amend, and plead it only to one moiety of the rent. Upon the principles here laid down, these pleas are all except the fourth bad, and that is bad for another cause : it states a forcible expulsion by Klock, with the privity and consent of Lansing. Surely Mr. Lansing’s consent amounted to nothing; lie had no authority to consent or dissent. Had the expulsion been by the plaintiff, or by those persons as his servants, or by his direction, a different question would have been pre - sented. In Pendleton v. Dyett, (4 Cowen, 684,) the question is fully discussed ; and it is clearly shewn, Com a review of the authorities, that an ouster by the landlord excuses from the payment of rent; but there must be an actual ouster ftom the whole or part of the demised premises. As the pleas stand, they are all bad. The plaintiff is entitled to judgment upon the demurrer to the 2d, 3d, 4th, 6tli, 6th, 7th and 8th pleas. The defendant has leave to amend on payment of costs.