The opinion of the court was delivered, by
Agnew, J.Every lease implies a covenant for quiet enjoyment. But it extends only to the possession, and its breach, like that of the warranty for title, arises only from eviction by means of title. It does not protect against the entry and ouster of a tort-feasor. Even the entry of the state, by virtue of her right of eminent domain, incurs no breach of the covenant: Maule v. Ashmead, 8 Harris 483; Ross v. Dysart, 9 Casey 452; Frost v. Earnest, 4 Wharton 90; Dobbins v. Brown, 2 Jones 75. This being the law of the relation between landlord and' tenant, it is difficult to perceive how an ejectment, even when followed by a writ of estrepement, can be deemed a breach of the covenant. The rights of a landlord would be almost worthless, if every time a pretender to title may bring an ejectment against his tenant, and issue an estrepement to stay alleged waste, he would find his rent suspended, and his remedies gone until the ejectment should be ended. But an action cannot produce this result, until it has its point in actual or virtual eviction. The tenant has a right to call his landlord into his defence, and if eviction follows, as the result of a failure to defend him, he can then refuse payment of the rent, and fall back upon his covenant for quiet enjoyment to recover his damages. Under the lease between these parties the plaintiffs were bound to pay the rent at the stipulated rate per ton for 120,000 tons per'annum, whether they mined the coal or not. The plaintiffs were allowed until the 1st day of October 1864, to fit up the premises and make the improvements necessary to prepare for mining before the rent should commence running. After this time they were bound to pay the rent according to the minimum number of tons fixed. The sum thus stipulated they were bound to pay at all events, and nothing less than an eviction or a discharge would suspend or release. The clause for forfeiture and re-entry for non-payment of rent could be made effective only by their own default. But it is said to be a great hardship to be prevented from mining by the estrepement, and yet forced to pay the rent. This is so, but it is their misfortune, not that of the lessors. If the ejectment prove to be well founded they have their remedy on their covenant for quiet enjoyment, and if unfounded why shoqld the lessors suffer? If. any remedy lies against the plaintiff in the ejectment for his false plaint, certainly it does not belong to the lessors. This is the whole case of the plaintiffs in this bill as it appears at present, and it affords no ground for a special injunction.
The decree made at Nisi Prius, awarding a special injunction, is therefore reversed, and the special injunction dissolved.