and moderation, to moderate the rigor of the law.’’ Grounds &c. 38. ca. 49. apply to the prefent cafe.
If the leffor covenants that the leffee fhall quietly enjoy againʃt all men, yet in cafe he is outfed by an Enemy, or tortiouʃly entered upon by ftrangers, no action of covenant can be maintained againft the leffor, notwithftanding the expreʃsly general covenant. For the enemy he could not oppofe, and againft ftrangers he had a remedy over. Vaughan 119. &c. This the counfel for the Plaintiff agree to be the law. Why then fhould the law make the leffee anfwerable on fuch a general exrpreʃs covenant to furrender the demifed premiffes in good repair, when they were deftroyed by an hoftile army? Ought not the two covenants to receive the like favorable and reafonable ftructions? “ Remedies are to be reciprocal.” ‘‘ When the conftruction of any thing is left to the law, the law, which abhorreth injry and wrong, will never fo conftrue it, as it fhall work a wrong.’’ Grounds& &c. 368.
To conclude : –Our opinion is, that the Defendant ought to pay the rent ; 1ft, Becaufe of the exprefs covenant to pay it. 2dly, Becaufe it is a fum certain, and the extent of the lofs known ; and as he was to have the advantage of cafual profits, he ought to run the hazard of cafual loffes duriing the term, and not lay the whole burthern of them upon the leffors ; as refolved in Alayn 27. And 3dly, becaufe if a tenant by elegit be interrupted to take the profits of the land, by reafon of war, he fhall not hold over, but fhall fuftain the difadvantage, as refolved in 4 Co. 81 b. Sir Andrew Corbis's caʃe.
But, I am of opinion, that the Defendant is excufed from his covenant to deliver up the premiffes in good repair on the 1ft of March 1778 ; – 1ʃt, Becaufe a covenant to do this, againft an act of God or an enemy, ought to be ʃpecial and expreʃs, and to clear that no other meaning could be put upon it. 2dly, Becaufe the Defendant had no confideration, no premium for this rifque, and it was not in the contemplation of either party. And, laʃtly, becaufe equality is equity, and the lofs fhould be divided;– he who had the term will loofe the temporary profits of the premiffes, and he, who hath the reverfion, will bear the lofs done to the permanent buildings. Neither party has been guilty of any default ; the injury has been done by a common enemy, whom both together could not poffibly refift or poffeffion of the Plaintiff himfelf. Suppofe, when the leafe was executed, that the leffee had been afked,– s it your meaning, that, in cafe the buildings fhall be deftroyed by an act of God, or public enemies, you are to rebuild or repair them? His anfwer would have been unqueftionably, “No ; I never entertained fuch an indea.” Should the like queftion have been put to the leffor, his anfwer would certainly have been, “ No, I do not expect any thing fo unreafonable.”
If there is no cafe in point in favour of this determination, there is none againft it ; and fince no action of this kind has hitherto
