Page:The New International Encyclopædia 1st ed. v. 07.djvu/362

EVESHAM. 314 EVIDENCE. grammar school founded in 1546 and a free pub lie school. It has manufactures of gloves and hosiery. An abbey was founded here about 700, of which nothing remains but a fine tower and gateway. It was the scene of Simon de Jlont- fort's defeat by the royal troops August 4, 1265, terminating the Barons' War. Population, in 1901, 7100. Consult New, A day at Evesham (Evesham, 1881). EVICTION (Lat. evict io, from evietus, p.p. of evincere, from ex, out + vincere, to conquer). The expulsion or removal of a tenant from the possession of a real property either by his land- lord or by another acting under a paramount title. The term was formerly confined to dis- possession by legal process, but it is now applied to every form of dispossession under a title su- perior to that of the person evicted. Disturb- ance of possession by a stranger, i.e. by one hav- ing no title to the lands in question, is not an eviction, but a trespass, punishable by a tort action. An eviction, on the other hand, whether rightful or wrongful, is not a trespass, and is not punishable as for a wrong. Its effect is confined to the dissolution or modification of the relation of landlord and tenant between the lessor and lessee. An eviction by a landlord of a tenant at will or at sufferance, or of a tenant who has forfeited his estate by the commission of waste, or by the breach of any condition on which the lease de- pended, is the normal and proper mode of ter- minating the relation between the parties. The eviction operates ipso facto to determine the tenancy. A similar act of dispossession of one wrongfully in possession of property by the right- ful owner is not an eviction, but is more prop- erly described as a reentry. (See Entry, Right of.) When, however, the person so in possession claims under a lease from a third person, the process may, from his standpoint and in relation to his landlord, be an eviction. Its effect is to terminate the lease and to set the tenant free from his obligations to his landlord. It is an eviction by paramount title. If the eviction in this ease be only partial, however, i.e. from part and not the whole of the premises, the tenant may still be liable to his landlord for so much of the premises as remains in his possession. On the other hand, if the tenant he unlawfully evicted by his landlord, it is immaterial whether the eviction be total or partial. A lease of land carries with it an implied covenant for the quiet enjoyment of the demised premises (i.e. a cove- nant that the tenant shall not be disturbed by an unlawful eviction by his landlord or by para- mount title), and rests upon the condition thai this covenant shall !><■ observed. Any willful eviction from any part of the premises by the landlord's act is a breach of this condition anil entitles the tenant to avoid the lease and refuse to paj rent, even though his possession of part of the premises is undisturbed. In this ea e, however, if the tenant remain in possession of a pari of the premises, the rent is only suspended, ami lie may become liable under the lease again, if he i> restored to the part from which he has been evicted. Strictly spi iking eviction involves the notion of an actual forcible removal or exclusion from the premises held by a tenant, and at common law nothing less than this would protect him against the claims of his landlord under the lease. This rigid rule has been modified in two particulars in certain of the United States. In Massachusetts and a few other States it has been held that when the premises are claimed by para- mount title the tenant is not bound to await a forcible removal, but may yield to a demand for possession made on the premises. In New York it has been held that the landlord may effect an unlawful eviction, and thus release his tenant from his obligations under the lease, without any physical interference, by the process known as a 'constructive eviction.' This consists of a nuisance willfully maintained by the landlord, either upon >,r in close proximity to the tenant's premises, of such a character as to deprive the tenant of his rightful enjoyment of them and force him to abandon them. This doctrine has also been applied to a variety of acts or omis- sions by a landlord which do not come under the ordinary description of a nuisance, such as the refusal of the proprietor of an apartment house to furnish the heat or the elevator service stipu- lated in the lease. The courts have, upon the contrary, refused to carry the principle to the extent of permitting a tenant to claim a con- structive eviction and abandon the premises be- cause of the landlord's failure to make promised repairs, even though the premises are rendered untenantable by such failure. The rights accruing to a tenant under an evic- tion may usually be supplemented by a right of action against the landlord for damages, and the tenant may recover under the covenant of quiet enjoyment from the lessor the damages sus- tained by him as the result of the breach. See Landlord and Tenant, and the authorities there cited. EVIDENCE. The means by which the truth or untruth of any relevant fact is established in the trial of an action at law. What is and what is not legal evidence is determined primarily by the pleadings in the action. The early common- law system of pleading was so devised as to nar- row down all matters of dispute between the plaintiff and defendant to a single issue of law or fact. If the issue was one of law, a question was raised for the court only ; but if the issue was one of fact, a question was raised for determina- tion by a common-law jury, after a trial in which evidence was introduced on the one side to prove the alleged fact, and on the other to disprove it. The whole system presupposed, on the part of the jury, inability to consider more than one issue of fact at a time, and in the consideration of tli.it ime issue. to some extent. Iacl< of capacity to give to different classes of logically relevant evidence (heir proper weight. It is to the his- torical development of the jury system, therefore, thai many rules of the law of evidence may he attributed, which now seem to be unwarranted in logic and unsuited to the times. Modem systems of pleading permit (he rais- ing of numerous issues of fact, and have thus imposed on the jurj duties requiring a higher standard of intelligence than under the ancienl system. The rules of evidence, however, partly because they have ben found to be practically sufficient, and partly because of the necessity of fixed and definite rules in the branch of the law, have not undergone a corresponding change, and