Opinion by

The defendant’s affidavit does allege an actual eviction from the leased premises by title paramount to that of the plaintiff, and that the defendant has never used or occupied the same, and therefore, that there has been a total failure of consideration for the rent reserved. Of course an actual eviction by title paramount to that of the lessor suspends the rent, and we are hardly at liberty to say that when an eviction is alleged positively in an affidavit of defence we can, or will, treat the averment as the mere assertion of a conclusion of law.

The affidavit also discloses a decree against the defendant and the plaintiff, for a preliminary injunction restraining them from interfering with or molesting the railroad company or its contractor, or agents and employees, in entering upon and occupying so much of the premises under the viaduct as may be necessary for use during the reconstruction of the bridge, and from removing and transferring to any adjacent ground so much of any structures or materials upon said grounds as may be necessary. Of course it is impossible for a court to judge how much the terms of such an order will interfere with the possession and use of the premises leased, by the defendant, but as the defendant alleges under oath that it amounts to ah eviction, we think it is entitled to have the full facts heard and determined by a jury. Upon the development of all the facts on the trial the court can much more intelligently judge whether an eviction has been established, and how to administer justice between the parties.

Judgment reversed and procedendo awarded.