A motion was made by appellee, in this court, to dismiss this appeal, on the ground that the proceeding in the circuit court, and its finding and certificate, are not a judgment, or decree, within the meaning of Sec. 7 of Rev. Stat. 1845, p. 143, and Sec. 47 of practice act, page 420. Appeals are allowed whore the judgment or decree is final, and for twenty dollars or more, above costs, or relates to a franchise or freehold.
Wc are of opinion that the finding and certificate, required by the 6th section of the act in relation to Landlord and Tenant, Chap. 60 of Eev. Stat. 1845, p. 334, do constitute a final .judgment, within the meaning of the practice act above referred to. A distress, under the act, has become a suit, and requires notice by summons, as other suits; and, although the landlord does not obtain a formal judgment for his rent, he does obtain its equivalent in effect, a judicial determination that it is due and’ owing, and the amount. This is entered of record, and upon it a certificate, in the nature of an execution, is issued to the officer making the distress, who sells, and makes return upon the certificate to the court, as upon other final process. This is, essentially, a final judgment, in its effect in barring either party of all other suits properly litigated therein, between them. Still, while the proceeding partakes thus of the nature of a suit, it is not like debt, or assumpsit in general, allowing common set-off, etc., but retains many of the peculiar rights, remedies and characteristics of a common law distress; Sketoe v. Ellis, 14 Ill. E. 75; for replevin will still lie for the distress, and a summary sale be made of perishable goods, immediately, if not replevied. The motion will therefore be overruled.
The only important assignment of error, is the refusal of a continuance. We deem the diligence set forth, sufficient. Affidavits should not be required to be burthensomely minute, in anticipating and negativing every possible contingency.
Witnesses may give their attendance after applications are made; and before ordering a continuance, the court may ascertain the fact of absence by having the witness called, and, if he answer and attend, overrule the application.
The main question is, as to the materiality of the evidence, and this involves the question of the right to sot up, as a defense to the payment of rent, that the party was disturbed in his quiet and peaceable possession, was evicted from part of the premises, and injured, and the value of the rent so diminished.
We are of opinion he has a right' to show such facts in defense, upon this inquiry and assessment, in cas'cs where the lease provided for his protection, express or implied. It is a legitimate inquiry, as well as payment under the general issue, as to the amount of rent due, and could be made and tried in the action of replevin of the distress. For it was one of the peculiarities of a common law distress, that the tenant was forced to his replevin, in order to compel the landlord to prove his demand for rent, and enable the tenant to show payment, eviction, disturbance or injury, from the landlord’s breach of the covenant in the lease; and we do not understand the doctrine of Sketoe v. Ellis, as excluding such a defense in set-off.
Allowing, then, the defense to be proper under such an issue, the question recurs upon the character and tendency of the evidence, to prove either a disturbance or eviction, injurious to the tenant, and for which the landlord was liable to him. We regard the terms, conditions and covenants in the lease, as being adopted by these parties under the assignment and agreement. There are no express covenants in the lease for quiet possession or enjoyment. Btill the law will imply covenants against paramount title, and against such acts of the landlord as destroy the beneficial enjoyment of the lease.
The proofs should be admitted, to show the eviction by the Rock Island Rail Road Company, and as well such other proofs that tend to show their acts to be mere trespasses upon the tenant, as those that show the eviction by paramount title; and whether, if the latter, it was by title acquired subsequent to the lease, and subject to the tenant’s rights ; and whether with or without the consent and act of the landlord. We think the parties entitled to make full proofs of all material facts. When such proofs are made, and the questions of law arising upon them arc presented, wo might bo the better enabled to determine how far such a defense is made out, and sustainable.
The law is well settled, that an eviction, in fact or in effect, which destroys, and renders the premises valueless, may be set up in defense against the recovery of rent; and this extends to such acts of disturbance as effect the same thing. Cohen v. Dupont, 1 Sandf. S. C. R. 260 ; Dyett v. Pendleton, 8 Cow. R. 727.
The doctrine in this last case of disturbance, by bringing lewd women into the premises, is not overruled by Ogilvie v. Hull, 5 Hill R. 52, but limited and explained only. See Lawrence v. French, 25 Wend. R. 443; Lewis et al. v. Payn, 4 Wend. R. 423; Watts v. Coffin, 11 John R. 575; Briggs v. Hall, 4 Leigh R. 484; Bennet v. Bittle, 4 Rawl. R. 343 ; Burn v. Phelps, 1 Stark R. 94; Tomlinson v. Day, 2 Brod. and Bingh. 680, (6 Eng. C. L. R. 327) ; Edwards v. Hetherington, 7 Dowl. and Ryl. R. 117, (16 C. L. R. 271); Conic v. Goodwin, 9 Carr, and Pay. R. 378, (88 C. L. R. 162.)
I have not reviewed authorities upon these points, either of what will amount to an eviction, or what degree of disturbance may be shown, because this record only presents the question of the admissibility of the facts averred, to sustain the alleged grounds of defense. Upon the present state of the record, wo need pass no judgment upon the sufficiency of the proofs. Halligan may, or may not, be responsible for the eviction by the Rock Island Rail Road Company. As to Wade, and his leasehold interests, they may have been mere trespassers.
So with the effects upon the leasehold interests, from the lawful occupations, by other traders and manufacturers, of the basement rooms; they are all facts for a jury. There are lawful trades, which are, nevertheless, treated as nuisances in particular places and localities. There is a compatibility and hármony in certain occupations, and the contrary in certain others, and so it is of human actions and conduct. We must exercise common sense, prudence, and a sound and impartial judgment, in passing upon such transactions, and with an anxious view to protect all parties in their just rights, and the profitable and quiet enjoyment and pursuit of their interests.
The reasonable degree of complaint of injury, from disorderly, indecent, vulgar and obscene conduct, and noises of the drunken, and the noise of manufacturing tin and sheet-iron, or heat, smoke, and danger of fire, from a bake oven, must depend upon the attending and surrounding circumstances, the situation and business of the parties, time, place, and nature of the pursuit, and the actual injurious consequence. Before vre can determine upon it, w.e must have the whole proof. We can readily comprehend a state of things of this nature, that would have that effect; and we think the evidence offered tended to show such, and should have been produced.
We therefore think the court erred in refusing a continuance to the plaintiff, to enable him to produce it.
Judgment reversed, and cause remanded for a new trial.
Judgment reversed.
Skinner, J.I do not think the affidavit of the defendant shows any cause for continuance, and am of opinion that the court below properly overruled the motion.