# Pollard v. Shaaffer

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SUPREME COURT of Pennʃylvania:
September Term 1787.
POLLARD verʃus SHAAFFER.
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 ​
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judgment of the Court; Mr Juʃtice RUSH having decline to give any opinion, as he had been of counfel with the Plaintiff in this caufe before he took his feat upon the bench.
M‘KEAN, Chieƒ Juʃtice.– Two queftions were made in this caufe:– 1ft, Whether the Defendant as aʃʃignee of the leafe, is bound by the covenant to repair, as well as the leʃʃee? And 2dly, Whether the fpecial matter pleaded, is fufficient in law to bar the Plaintiff?
With refpect to the firʃt queftion, we are clear in our opinion, that the covenant to repair, and to deliver up the demifed premiffes in good order and repair, runs with the land, being annexed and appurtenant to the thing demifed, and fhall bind the affignee as much as the leffee, even if the affignee were not named by the exprefs words, on account of the privity ; but in the cafe at bar the affignee is bound by expreʃs words and, a ƒortior, in anfwerable as well as the leffee. This point has been fully fettled in Spencer's caʃe 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 thefe abridgments.
The ʃecond queftion is of great difficulty, and of very great importance in its confequence. We cannot find, that it has come directly before any court in England, or in Europe. We wifh, that it had come before abler judges than we pretend to be. However, we muft give our judgment ; but we do it with more diffidence than has occurred in any cafe fince we have had the honor to fit here.
As there is no pofitive law, no adjudged cafe, nor eftablifhed rule, or order, to direct the court in this point, we muft be guided by the principles of the law ; by confcience, that infallible monitor within every judge's breaft, and the original eternal rules of juftice. For, equity is part of the law of Pennʃylvania. 1 Chan. Ca. 141. Grounds and Rudiments oƒ law and equity. pa. 74. ca. 104. Doct. and Stud. lib. 1. cap. 16.
It is agreed, that if a houfe be deftroyed by lightning, floods, tempefts, or enemies, without any concurrence of the leffee, or pofibility of his preventing the fame, this is no waʃte 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 perifhed, even in the reverfioner's poffeffion. 1 Inʃt. 53. b. Brook, Waʃte 69. 4 Co. 63 b. Herlakendan's caʃe. Lanlord's Law pa. 158. 278. 286. Fitzherbert's Natura Breviwm, Waʃte, 132. 1ʃt Edition, Kelw. 87.
It is alfo agreed, that where the law creates a duty or charge, and the party is difabled to perform it without any deƒault in him, and hath no remedy over, there he fhall be excufed. As in the cafes of wafte againft tenants in dower, by the curtefy, for life, or years, of common carriers, innkeepers &c. of leffees by parol &c. or of a ​
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ceʃʃer during a war. Aleyn. 27. 4. Co. 84. b. Southeste's caʃe 2 Len. 109. and other books.
But, it is contended for the Plaintiff, that the Defendant is obliged to pay the rent, and yield up the tenements in good order and repair, becaufe of the expreʃs covenant: and in fupport of this doctrine have been cited. Doctor and Student. Dialogue 2 chap. 4. pa. 124. Aleyn 27. Stiles 47. S.C. 1. Rofs Abr 939. S.C. Comyns Rep. 631. 632. 2 Stra. 763. 1 Vent. 185. Plowd. 290 Perkins 738. Brook. tisie (Covenant ;pl. 4. title, Waʃtepl. 19.31. 2 Len. 189. Dyer. 33. pl. 10. Saunders 420. 2 Vern. 280.
On the part of the Defendant, it is infifted, that the exprefs covenant in this cafe does not bind againft acts of God or Enemies, but only againft all other events ; becaufe fuch acts were not in the contemplation of either party at the time of the leafe executed. A rifque known and inʃued ought to be complied with, agreeably to the bargain, but not otherwife. Every contract ought to be conftrued according to the intention of the parties ; and, in the prefent cafe, the Defendant had only covenanted to keep the premiffes in repair &c againft a cafe, which he could by no poffibility prevent. That if the law were otherwife, yet in England relief would be had in a court of chancery ; and that as no fuch action had ever been brought, in a cafe circumftanced as this is, an argument is furnifhed, that no fuch action will lie. In maintenance of this opinion were cited :Ld. Raym. 909. 4 Bac.Abr. 369. 370. 1 Rolls Abr. 236. Dyer 56. pl. 15. 1 Blackʃt. 252. 268. 2 Blackʃt 379. 3Blackʃt. 153. 157. Couper 9. 600. Douglaʃs 190. 1 Comyns Digeʃt. 150. Co. Lit. 206. 1 Brown's Parl. caʃes 526. 528. 15 Vin. Abr. 474. pl. 1. 3 Chan. Rep. 44.79. 3 Burr. 1240.1637. Dyer 33.10. Sir Tho. Raymond 464. 1 Co. 98. Shelly's caʃe. 6 Vin. pa. 407 ca. 1.3. 1 Cha. Ca 72.83. 84. 190.
The books have been thoroughly fearched on this head, and the queftion difuffed with great ability on both fides. In fhort, little more could be done or faid for either party than what has been faid and done.
In deciding this intricate and difficult cafe, it will be of ufe to ftate the different powers of the common law courts, and the court of chancery, in England, at the time of the revolution.
The courts of law there are governed by general and eʃtabliʃhed rules, from which they never deviate in any cafe, be the injuftice arifing from them ever fo apparent ; for, they are bound by their oaths to obferve the ʃtrict rules oƒ law. A court of chancery judges of every cafe according to the pecuilar circumʃtances attending it, and is bound not to fuffer an act of injuftice to prevail ; and in doing this, it conforms to the ʃpirit and intent of the general rule of every pofitive law, which always admits of particular exceptions tacitly underftood. The jurisdiction and bounds of thefe two courts are fixed. ​
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In this State, the Judges are fworn “ to do equal right and juftice to all men to he beft of the judgment and abilities, according to law.” There is no court of chancery. The Judges here are, therefore, to determine caufes according to equity as well as the pofitive law ; equity being a part of the law. Doctor and Student lib. 1. cha. 16. 1 Chan. Caʃes 141. Grounds oƒ law and equity 74. ca. 104. Indeed the common law is common rights, common reaʃon, or common juʃtice. Weed: Inʃt. 4.
Were this point brought before a court of common law in England at this day. I have doubts with refpect to what would be the determination. For, it is laid down as law. “ that if a leffee coarnanieth to leave a wood in as good plight as the wood was at the time of the leafe, and afterwards the trees are overturned by tempeft, he is difcharged of his covenant, quia impetontia excuʃat legem. ” 1 Co 98 b. In that cafe, there was an expreʃs covenant ; and altho it was impoffible to reftore the trees in the fame plight in lieu of them. The fame law in Brook covenant. N. 4 Now, was it not equally impoffible for the Defendant to deliver the poffeffion of the premiffes in good repair to the Plaintiffs on the 1ft of March 1778, when they were held by an hoftile army?
In Vaughan's reports, in the cafe of Hayes v. Bickerʃtaʃʃ, pa. 122. it is held, “ that a man‘s covenant fhall not be ftrained fo as to be unreafonable, or that it was improbable to be fo intended, without neceʃʃary words to make it fuch ; for it is unreafonable to fuppofe a man fhould covenant againft the tortious acts of ftrangers impoffible for him to prevent, or probably to attempt preventing.” This was an action brought by the leffee againft the leffor, on his covenant for quite enjoyment. In pa. 119. it is faid, that if the leffor covenants that the leffee fhall hold and enjoy his term, without the entry or interruption of any, whether fuch entry or interruption be lawƒul or tortious, there the leffor fhould be charged, becaufe no other meaning can be given to his covenant. In the cafe before the court, if the leffee had covenanted for himfelf and his affigns, to deliver up the tenements in good order and repair, notwithftanding they fhould be deftroyed by act oƒ God or oƒ an Enemy then this action would certainly lie, becaufe of the ʃpecial expreʃs words; but when there no fuch words, but only generally to repair &c. would it be reafonable to conftrue thefe words fo as to extend to the cafes put? Cannot the covenant in this cafe have another meaning? Can it not b fo conftrued, that the tenements fhould be kept in good repair, and in fuch order delivered up at the end of the term, without any act or default in him, or act of any perfon, who could be profecuted as a wrongdoer, to prevent it ? and notwithftanding common and ordinary accidents might happen?
Perhaps, however, the common law courts in England might think, that they were bound by the ftrict rules of law, on account of the general expreʃs covenant, to determine againft the Defendant, and ​
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that his relief muft be in chancery, if any where, becaufe of the eftablifhed rules and boundaries of the jurisdiction of thefe courts. W muft then confider the equity of this cafe, and determine upon all the circumftances thereof ; for altho' we have not the chancery forms or methods of carrying feveral equitable cafes into execution, yet we are to determine, where we may, according to equity, as making a part of the law, to prevent a failure of juftice. And here we have no precedents in chancery in point but the cafe of the Office, which was taken away by the ufurpers in the civil war in England, reported in 1 Ch. Cas. 72 that of the rent of a houfe, which was feized by the Parliament, during the faid war, for an Hofpital for foldiers, Ibid. 84, which appears to have been taken under advifement by the Chancellor, with a declaration, that, if he could, he would relieve the tenant ; but it was afterwards probably compromifed as we can find no more of it : that of the recognizance for payment of Ł.10,000 to legatees by an executor, where the teftators's eftate was fo leffened by the fire of London that it became infufficient to make up the fum, Ibid. 190. And that of the fee given with an Apprentice ; where Ł. 120 was given, and it was provided by articles expreʃsly, that if the mafter died within a year. Ł.60. were to be returned ; he died in three weeks after the execution of the articles ; and tho’ the parties themfelves had provided againft accidents, and tho’ the maxim, “ modus at conventio vincunt legem ” was urged, yet an hundred guineas were decreed to be paid back. 1 Vern 460. I fay thefe cafes, and the uncontradicted affertion of Dunning, that the cafe of Paradine verfus Jane, and the other cafes which went upon the like principles, had been lately over-rued in chancery, fee 3 Burr. 1639. and alfo fome others, which have been quoted by the Defendant's counfel, hold a doctrine that is ftrongly in favor of the Defendant.
In Doctor and Student, Dialogue 2. ch. 4. pa. 126. Mr. St. German in puzzled to give a fatisfactory reafon to the queftion put by the Doctor, to wit, “ If a man under age marries, and lands afterwards defcend to the wife, and wafte is committed therein after her death without the concurrence or default of the hufband, fhall he be charged with it ?” The cafe, thus ftated, fhews, that he could not refufe taking such eftate, and, therefore, the charge or condition annexed to it by law is unreafonable and unjuft. He makes the Student anfwer it in this manner:−“ That there is as great default in him as in him in the reverfion ; and that there is as great reafon why he fhould be charged with the wafte, as that he in reverfion fhould be difherited, and have no manner of remedy, nor yet no profit of land, as the other hath.” But I conceive that as there was no default in either of them, nor remedy over for either of them, that there is more reafon that each of them fhould bear his own fhare of the lofs, according to the duration of his eftate, than that the one fhould be refponfible to the other. The maxims, “ Lex non cogit impoʃʃibilia. ” “ Imptentia execuʃat legem. ” ‘‘ Conftructions are to be with equity ​
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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 ​
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been brought, a prefumption arifes, that the fenfe of mankind is againft it. If, however, we fhould be thought to be miftaken, another hearing may be had before the High Court of Errors and Appeals, on a writ of error, where this new cafe may be finally fettled.