absence of fraud, not the value of the bargain but the consideration and necessary expense: Bain vs. Fothergill, L. R., 7 Eng. and Irish App. 158, approving Flureau vs. Thornhill, 2 W. Bl. 1078. Upon a breach of a covenant for seisin, the vendor is not liable to the vendee for either the increased value of the land or improvements put upon the property by the latter. See cases in Rawle on Covenants for Title, 235, et seq., particularly Bender vs. Fromberger, 4 Dall. 442. It has been thought that there is an exception to this rule where the intended improvement forms part of the consideration for the lease, and the recent English cases are to this effect, but they are directly in conflict with the American decisions in most of the States. In Lock vs. Furze, 115 E. C. L. 94, the cases in this country were freely cited and admitted to be against the increased measure of damages, though the court refused to follow them. Their decision was largely based upon a case which was overruled in Bain vs. Fothergill, supra.

Nor does the covenant to erect improvements alter the measure of damages. They were intended only as a security to the lessor, and he could not have recovered in an action for a failure to erect more thau they were worth as a security.

The utmost that could be awarded to the plaintiff would be the value of the improvements detached and removed, because he had no property in them in any other condition. This would be a nominal sum compared with their value as affixed to the realty. To demand more is to demand a far greater sum than the lease provides, for, under its terms, the tenant could only claim the right to sever and carry away the erections. The fact that Kille has used the improvements in his defence against Ege does not strengthen this case, for such an argument would require us to hold that, if Ege had not brought suit for mesue profits, the measure of damages in this suit would be lessened. Or, suppose Ege had sued Lanigan, who might have set off the improvements. Could he then have recovered that amount from Kille? He would have had a right of action for what he had paid for mesne profits, but for nothing more.

Counsel for the plaintiff argued that a lease is an assurance against disturbance consequent upon defective title and a contract for possession, Rawle on Covenants, 125, and the measure of damages, where the contract clearly discloses the object of the parties, and improvements are erected by a lessee in express pursuance of such object, should be the value of the improvements lost by reason of the breach of covenant: Rawle on Covenants, 251-257; Mayne on Damages, 2d ed. 147; R. R. Co. vs. Schmoele, 7 P. F. S. 273; Maule vs. Ashmead, 8 Harris, 482; Kille vs. Ege, 1 Norris, 102; Tull vs. Granger, 4 Selden, 116; Dexter vs. Manley, 4 Cush. 14; Williams vs. Burrell, 50 E. C. L. R. 401; Lock vs. Furze, 115 E. C. L. R. 94.

Where, in an action for mesne profits, the lessee pays them, it is undoubted law that he can recover the amount so paid in an action against his landlord: Kelly vs. Dutch Church, 2 Hill, 116; Mack vs. Patchin, 42 N. Y. 175. In this case the lessee did not, in point of fact, pay the mest profits, but his property was used for that purpose, and it cannot be contended that a landlord can do this and then refuse to make compensation.

The case of vendor and vendee is not analogous to this. There the land is conveyed, but here only a chattel, and the relations of the parties grow entirely out of the contract, having nothing to do with tenures. A title is not necessary to support a lease. Where a stipulation is made for the erection of improvements, they are made not upon the faith of the existence of any title, but upon the faith of the covenant for quiet enjoyment. The measure of damages should follow the general rule relating to contracts, namely, the amount of loss sustained by reason of the breach.

The questions arising under the motion in arrest of judgment were also argued at much length, but the court preferred to rest its decision entirely upon the motion for a new trial, which involved only the measure of damages.

Opinion delivered July 5, 1879, by

MITCHELL, J.—This is an action of covenant by the lessee against the lessor under a sealed lease of certain mining rights in a tract of land thereby demised for a term of fifteen years. The tenant having pat valuable improvements on the land, under a clause of the lease allowing him to do so, and entitling him to remove them at the end of the term, was subsequently evicted under a paramount title. The lease contained no express covenants for title, and the plaintiff therefore brought this action on the implied covenant for quiet enjoyment contained in the words "demise and let," which occurred in the lease.

The facts being undisputed, a verdict was directed for the plaintiff for nominal damages only. We have now before us a rule for a new trial on behalf of plaintiff, on the ground that he was entitled to recover the value of his improvements, and also a rule on behalf of defendant why he should not be allowed to file a motion in arrest of judgment nunc pro tunc.

It is conceded that the general rule in this State is that in an action by a purchaser or lessee of real estate who has been evicted (without fraud on the part of the vendor or lessor), the measure of damages is the consideration paid. In the present case the consideration being a royalty upon the iron mined and rent for the time the plaintiff held possession, there are no damages in fact under the general rule above mentioned, and therefore a verdict was directed for nominal damages only.

It appeared, however, in the offers of evidence that the defendant, the lessor, had been sued by the owner of the paramount title for mesne profits, and that he had in that action set off and been allowed the benefit of the value of the improvements made by the lessee, the present plaintiff: Ege vs. Kille, 3 Norris, 333. And the plaintiff argues that his property having been thus used by defendant in payment of a valid claim against him, the latter should now make compensation to plaintiff to the extent of the benefit thus received.

The argument is not without great force. It appears to come very near if not within the principle of actions for money had and received, and it receives considerable support from some expressions in the opinion of the learned judge of the Supreme Court in delivering the opinion in Kille vs. Ege, 1 Norris, 112.

But we are nevertheless unable to assent to it. Under the general well-established rule it is conceded that the plaintiff could not recover from defendant the value of his improvements. By the eviction, therefore, they were lost to the plaintiff, with no obligation on the part of any one to pay for them. If the paramount owner had sued this plaintiff for mesne profits, the latter might have set off the value of his improvements, but he could not have had a certificate in his favor for any excess of such value. The most that his improvements could have availed him would have been to successfully defend such an action, and he is now none the worse off because the action has been successfully defended through the same means by his lessor, the present defendant. The paramount owner was a common enemy who might have made his attack for mesne profits on either of the present parties. He did make it on the defendant, and in that action the defendant used the plaintiff's shield in the same manner that the latter might have done if the attack had been made on him. We are unable to see that plaintiff is any worse off now than he was before, and it is admitted that before he had no cause of action for anything but nominal damages.

The rule for a new trial must therefore be discharged.

The plaintiff's motion in arrest of judgment is based on the view that an implied covenant for quiet enjoyment extends no further than to protect the estate which the lessor could lawfully grant at the time of the lease, and that as the eviction here was by title paramount, existing at the time of the lease, there has been no breach in fact of the covenant which the law raises. This point, however, was not made within the four days allowed by rule of court, and we have not thought it well, on consideration, to enibarrass the case with it. There is a substantial controversy between these parties on the measure of damages. That question is difficult, and is undetermined in this State certainly, and so far as we are aware in any other. We therefore presume that it will go to the Supreme Court for final adjudication, and we think it best that it should do so on the view taken by the judge at the trial Rules discharged.

S. E. Cavin and F. E. Brewster, Esqs., for plaintiff.

A. Sydney Biddle and George W. Biddle, Esqs., for defendant.

[Leg. Int., Vol. 36, p. 276.]

SLOAN vs. GARREN,

Allowance of attorney's fee stipulated in mortgage.

Rule for judgment for amount admitted to be due.

This was an action of scire facias on a mortgage for $3,600. An affidavit of defence was filed alleging a reduction by payments to $3,190.88, and claiming that the attorney's fee specified in the mortgage, five per cent., was excessive. This rule was taken, in order to have the amount of compensation fixed, according to the ruling of the Supreme Court in the late case of Daly vs. Maitland, 36 Legal Intelligencer, 115. The reduction claimed in the affidavit was allowed by the plaintiff. The court said that, if the defendant had intended to pay the amount when it was adjusted, there might have been reason for a reduction, but

64

that, as a sale must take place, and, perhaps, more than one, the whole commission would be allowed.

Judgment was accordingly entered for plaintiff for $3,345.88.

John S. Powell, Esq., for plaintiff.

Messrs. Warwick and Penrose, for the defendant.

[Leg. Int., Vol. 36, p. 382.]

SAMUEL vs. SCOTT.

Although a lease specifies that the demised premises are to be used as a boardinghouse, and it is stipulated that the tenant shall not repair, no apportionment of rent will be allowed by reason of their becoming partially unfit for the purpose.

A lease contained the word "attorney" appended to the name of the lessor (he being a member of the bar), and was signed by him without such addition. Held, that he was not to be presumed to be acting as agent for another.

Rule for judgment for $116.66, being one month's rent due June 1, 1879, for want of a sufficient affidavit of defence.

This was an action of covenant on a lease under seal, executed by "John Samuel, attorney," and signed by him without any addition to his name. The premises were let for one year to be used as a boardinghouse, and the tenant was not to repair. The affidavit set up that, after the beginning of the term, the drainage became so defective as to render the back buildings uninhabitable, and that the purpose for which the house was taken was defeated by reason of the impossibility of inducing boarders to take the rooms.

Counsel for the defendant argued that, while it is true that a general letting of a dwelling-house imposes upon the tenant the obligation of satisfying himself as to the condition of the premises, and admits no such defence as is claimed here, yet, when the lease specifies the use which is to be made of the house, defects manifesting themselves subsequently to the beginning of the term, which defeat the purpose of the lessee in taking the premises, entitle him to at least an apportionment The insertion of the words "boarding-house" in this lease of the rent. would seem to indicate that the parties contemplated a warranty that the premises were to be kept in a condition to answer the the contract, especially as there was a covenant that the tenant was not to repair, etc.

purposes

of

A person suing on a sealed instrument which he has executed as attorney must show an authority under seal to execute such lease for his principal, which is not done here. The word "attorney" is not descriptive of the party's occupation, but must be held to mean that he was attorney in fact. Beside, the tenant had a right to have a disclosure of plaintiff's principal for his future protection.

The tenancy was ended by the acceptance of the key, etc., on May 22, 1879 (see Dos Santos vs. Hollinshead, 4 Phila. Rep. 57), by which there was only an amount of rent due to that day, viz., the sum of $88.66.

Plaintiff's counsel was not called on.

Rule absolute for $88.66.

Louis C. Massey, Esq., for plaintiff.

George Northrop, Esq., for defendant.

[Leg. Int., Vol. 36, p. 392.]

HENNIG US. BIEDERWOLF.

Attorney's commission for collecting mortgage.

Rule to re-assess damages.

This was an action of scire facias on a mortgage for $3,000; containing a provision for the collection of a fee of five per cent. in the event of suit. The plaintiff, having obtained judgment, assessed this sum as part of the damages, and the above rule was taken.

Counsel for the rule stated that there was a junior mortgagee, who would be obliged to buy at the sale, and who would pay the plaintiff in full, without delay or further litigation. The record showed no unusual proceedings in the case.

Counsel against the rule handed up the case of Sloan vs. Garren, 36 Leg. Int. 276; s. c. ante, 63.

Rule discharged.

John A. Bickel, Esq., for the rule.
William Hopple, Jr., Esq., contra.

[Leg. Int., Vol. 36, p. 434.]

In re SAMUEL DAVIES.

When a member of the bar is guilty of a violation of his professional duty to his client, and a rule is consequently taken to show cause why his name should not be stricken from the roll, the court will not dismiss the case because the attorney has settled with his client, and she has signified a desire that the proceedings against him should be discontinued.

Opinion delivered November 1, 1879, by

HARE, P. J.—This is a rule on Samuel Davies, an attorney of this court, to show cause why his name should not be stricken from the roll for malpractice. The facts as disclosed by the testimony and exhibits are as follows: Some time in the month of March, 1878, the respondent obtained a bond from the Guarantee Trust Company for Cornelia Curtis, who had employed him professionally for that purpose. It should have been delivered to her forthwith, but instead of performing his duty in this regard Davies pledged the bond to one Humphries as a security for money lent, and when Mrs. Curtis and her son-in-law, John N. Spenser, called for the bond they were put off with evasive promises. Davies did not state what he had done with the instrument, but said on each occasion that it should be forthcoming at the next. A correspondence. ensued with Spenser, in the course of which Davies made various promises that were not kept, and he then gave Mrs. Curtis a written assurance on the 1st of April, that if he did not return the bond "on or before Saturday," he would pay her what it was worth. This note was followed on the 6th of the same month by another, in which he promised to call on Monday or Tuesday evening "without fail," and bring the bond. This promise having been broken like the rest, Mrs. Curtis made an affidavit before magistrate List, on the 18th of April, in which she charged Davies with the embezzlement of the bond, and a warrant was issued for his arrest, which took place on the 11th of May, when he was held to bail to appear at the ensuing term of the Court of Quarter