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The jury found a fhilling damages for the plaintiff, which entitled him to the horse and the defendant to a fourth falvage.

PENNSYLVANIA,

SUPREME COURT.

Sarah Green and William Pollan, against the Executors of David Shaffer.

HE plaintiff's made a lease by inden

THE

ture, dated March the first, one thousand seven hundred and feventy-three; of a fugar house, &c. to John William Hoffman, and his affigns for five years, at feventy pounds per annum, payable quarterly. The leffee covenanted for himself, his executors, administrators, and affigns, to keep the demifed premises in good repair, and to deliver them up at the end of the term in fuch good repair to the plaintiff's, &c. John William Hoffman affigned the leafe to David Shaffer, the original defendant, who entered into the premises. The breach alledged was, that the defendant had not paid thirty-five pounds rent, in arrear for the laft half year, nor de. livered up the premises at the end of the term in good order and repair on the first

of March, one thoufand feven hundred and feventy-eight; but that the roof, window-fhutters, floors, &c. of the sugarhouse were in decay, destroyed, &c.

The defendant pleaded due performance of covenants, payment, and the following fpecial plea; that an alien enemy, viz. The British army, commanded by general Sir William Howe, on the firft of May, one thousand seven hundred and feventy-seven, had invaded the city of Philadelphia, taken poffeffion of the premifes and held the fame until the end of the term and afterwards; and had during that period committed the waste and destruction stated by plaintiff in his declaration.

The plaintiff demurred generally to the laft plea, and defendant joined in demurrer.

The demurrer was argued on the twentyfeventh of June, one thousand seven hundred and eighty-fix, by Meffrs. Coxe, Lewis, and Wilfon, for the plaintiff's; and Mers. Ingerfol, Wilcocks, and Sergeant for the defendant, before the chief justice and judge Bryan; and afterwards by the fame councli before the chief justice, judges Atley and Bryan, (judge Rush declining to hear the

fame,

fame, having been of council with the plaintiff's.)

Two questions were made:

Firft.-Whether the defendant as affignee of the leafe was bound by the covenant to repair as well as the leffee.

Second. Whether the fpecial matter pleaded was fufficient in law to bar the planitiff's right in demand ?

On the fixth of October, one thousand feven hundred and eighty-feven, the chief juftice delivered the judgment of the court.

With respect to the firft queftion, we are clear, in our opinion, that the covenant to repair, and to deliver the demifed premises in good order and repair, runs with the land being annexed and appurtenant to the thing demised, and binds the affignee as much as the leffee, even if the affignee were not named by express words, on account of the privity; but in the case at bar, the affignee is bound by exprefs words, and (a fortiori) is answerable as well as the leffee. This point has been fully ftated in Spencer's cafe. 5. Co. 16. b. and 1 Salk, 199. Lev. 206.

See

See 1. Rolls abr. title (covenant) letter M. pl. 1. and N. pl. 2.-Vin.abr. 6 vol. p. 411. letter M. pl. 1. 2.-Bacon's abr. 543. ca. 5. and the books cited in these abridgements.

The fecond question is of great difficulty, and of great importance. We cannot find that it has ever come directly before any court in England, or in any part of Europe. We wifh that it had come before abler judges than we pretend to be. However, we must give our judgment, but we do it with more diffidence than has occurred in any cafe, fince we have had the honour to fit here.

As there is no pofitive law, no adjudged case, no established rule or order, to direct the court in this point, we must be guided by the principles of law, by conscience, that infallible monitor within every judge's breaft, and the original and eternal rules of juftice; for equity is part of the laws of Pennsylvania. See 1. Chan. ca. 141.Grounds and rudiments of law and equity, P. 74. ca. 104. Doct. and Stud. 1. cap.

16.

It is agreed, that if a house be destroyed by lightening, floods, tempests, or enemies, without any concurrence of the leffee, or paffibilty

poffibility of his preventing the fame, this
is no waste in the leffee: for it is not done
by the leffee's negligence, or any wilful act
of his; and he cannot be charged with ufing
it improperly, and it would thus have pe-
rifhed, even in the reverfioners poffeffion.
1 Inft. 53 b. Landlord's law, page 158,`
278, 286.-Fitzherbert's natura brevium,
(wafte) 132, 1ft edition Kelw. 87.

It is also agreed, that where the law creates a duty or charge, and the party is dif abled to perform it, without any default in him, and hath no remedy over, there ́ he fhall be excufed. As in the cafes of waste against tenants in dower, by the courtesy for life, or years, of common carriers, innkeepers, &c.—of leffees by parole, &c. or of a leffor during a war. Aleyn 27.-4 co. 84 b. Southcote's cafe and other books.2 Leon. 189.

But it is contended for the plaintiffs, that the defendant is obliged to pay the rent, and yield up the tenament in good order and repair, because of the express covenant; and in fupport of this doctrine have been cited, Doctor and Student. Dialogue 2. chap. 4. page 124. Aleyn 27.-Stile

47.

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