POLLARD v. SHAFFER
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1 U.S. 210 (1787)
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U.S. Supreme Court
POLLARD v. SHAFFER, 1 U.S. 210 (1787)
1 U.S. 210 (Dall.)
Supreme Court of Pennsylvania
September Term, 1787
Covenant. 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 Hoffman and his assigns for five years at L. 70. per ann. payable quarterly. The Lessee covenanted for himself, his executors, administrators, 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 Hoffman assigned the lease to the Defendant, who entered into the premisses. The breach alledged in this action was, that the Defendant had not paid L. 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 in 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 Wilson for the Plaintiff; and Ingersol, Wilcocks, and Sergeant for the Defendant: And, on the 6th of October, The Chief Justice pronounced the
judgment of the Court; Mr. Justice Rush having declined to give any opinion, as he had been of counsel with the Plaintiff in this cause before he took his seat upon the bench.
M'Kean, Chief Justice. Two questions were made in this cause: 1st, Whether the Defendant as assignee of the lease, is bound by the covenant to repair, as well as the lessee? And 2ndly, Whether the special matter pleaded, is sufficient in law to bar the Plaintiff? With respect to the first question, we are clear in our opinion, that the covenant to repair, and to deliver up the demised premisses in good order and repair, runs with the land, being annexed and appurtenant to the thing demised, and shall bind the assignee as much as the lessee, even if the assignee were not named by express words, on account of the privity; but in the case at bar the assignee is bound by express words, and, a fortiori, is answerable as well as the lessee. This point has been fully settled in Spencer's case, 5 Co. 16. b. and 1 Salk. 199. 2 Levinz. 206. 1 Rolls Abr. title, (covenant) letter M pl. 1, and N. pl. 2. Vin. Abr. 6 vol. pa. 411. letter M. pl. 1. 2. 1 Bacon's Abr. 534. c. 5. and the books cited in these abridgements. The second question is of great difficulty, and of very great importance in its consequence. We cannot find, that it has come directly before any court in England, or in Europe. We wish, 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 case since we have had the honor to sit here. As there is no positive law, no adjudged case, nor established rule, or order, to direct the court in this point, we must be guided by the principles of the law; by conscience, that infallible monitor within every judge's breast, and the original and eternal rules of justice. For, equity is part of the law of Pennsylvania. 1 Chan. Ca. 141. Grounds and Rudiments of law and equity. pa. 74. ca. 104. Doct. and Stud. lib. 1. cap. 16. It is agreed, that if a house be destroyed by lightning, floods, tempests, or enemies, without any concurrence of the lessee, or possibility of his preventing the same, this is no waste in the lessee: For, it is not done by the lessee's negligence, or any wilful act of his; and he cannot be charged with using it improperly, and it would thus have perished, even in the reversioner's possession. 1 Inst. 53. b. Brook, Waste, 69. 4 Co. 63 b. Herlakenden's case. Lanlord's Law pc. 158. 278. 286. Fitzherbert's Natura Brevium, Waste, 132. 1st Edition. Kelw. 87. It is also agreed, that where the law creates a duty or charge, and the party is disabled to perform it without any default in him, and hath no remedy over, there he shall be excused. As in the cases of waste against tenants in dower, by the curtesy, for life, or years, of common carriers, innkeepers &c. of lessees by parol &c. or of a [1 U.S. 210, 212]