SUPREME COURT of Pennʃylvania:
September Term 1787.
POLLARD verʃus SHAAFFER.
C
OVENANT.–The Plaintiff, and one Martha Green(now deceased) made a lease by indenture, dated the 1st of March 1773, of a Sugar House&c. to John William Hoƒƒman and his assigns for five years at £.70. per ann. payable quarterly. The Lessee covenanted for himself, his executors, adminstrators, and assigns to keep the demised premisses in good repair, and to deliver them up to the Plaintiff, at the end of the term, in such good repair &c. John William Hoƒƒman assigned the lease to the Defendant, who entered into the premisses. The breach alledged in this action was, that the Defendant had not paid £.35. rent in arrear for the last half year, nor delivered up the premisses at the end of the term, to wit, the 1st of March 1778, in good order and repair ; but that the roof, window-shutters, floors &c. of the Sugar-house were in decay, destroyed &c.
The Defendant pleaded performance of covenants, payment, and that an alien enemy, to wit, the British army, commanded by general, Sir William Howe, on the 1st of September 1777, had invaded the city of Philadelphia, had take possession of the premisses, and held the same until the end of the term, and afterwards ; and that during the period they held possession, they had committed the waste and destruction &c.
To the last plea, the Plaintiff demurred generally ; the Defendant joined int he demurrer, and issue &c.
The Demurrer was twice argued, on the 27th of June 1786, and on the 15th of April 1787, by Coxe, Lewis, and Wilʃon for the Plaintiff ; and Ingerʃol Wilcocks, and Sergeant for the Defendant: And, on the 6th of October, the chief justice pronounced the
