cannot be resisted; but still he is bound to make and repair the thing in convenient time, because of his own covenant." So where the assignee of a reversion brought covenant against lessee of a house for non-payment of a year's rente; defendant prayed oyer of the lease, which contained a covenant on the part of the defendant to repair the house during the term, except it should be destroyed by fire, and then pleaded, that before any part of the rent in question became due, the premises were destroyed by fire, against the will of defendant, and were not rebuilt by the lessor or the plaintiff; and that the defendant did not occupy the premises during the year for which the rent was claimed. On demurrer, it was holden, on the authority of Paradine v. Jane, Aleyn, 27. that the defendant was bound by his express covenant to pay the rent during the term1. The doctrine laid down in the preceding case having been alluded to in argument, in Cutter v. Powell, 6 T. R. 323, Lord Kenyon, C. J. said, "that it must be taken with some qualification; for where an action was brought for rent after the house was burned down, and the tenant applied to the Court of Chancery for an injunction; Lord Northington said, "that if the tenant would give up his lease, he should not be bound to pay the rent." Probably the case here alluded to by Lord Kenyon was the first of the following cases: The plaintiffs were tenants to the defendants of a house, &c. by lease, in which there was a covenant by the plaintiffs to do all repairs, accident by fire only excepted: the defendants had insured the buildings, which were burned down; the insurers paid the loss: the defendants declined re-building, and brought an action of covenant for the rent accrued due after the accident had happened. The plaintiffs filed a bill in the Court of Chancery for an injunction, and obtained the common injunction: the defendants, on coming in of the answer, moved to dissolve the injunction, they having by their answer offered to remit the rent, upon a surrender being made of the lease, which the plaintiffs declined, as the lease was beneficial. The plaintiffs had pleaded at law the truth of the case in bar of the action: and on a demurrer to this plea, the plaintiffs were advised not to argue the demurrer, but to apply to a court of equity. On showing cause against dissolving the injunction, Lord Northington, Chr. inclined to e Monk v. Cooper, Str. 763. 2 Lord g Camden and another v. Morton and Raym. 1477. S. C. f See Belfour v. Westor, 1 T. R. 310. S. P. another, in Canc. E. 4 G. 3. MSS. 2 Rep. temp. Ld. Chan. Northington, p. 219. S. C. think, that the matter pleaded was a good defence at law; but that, in all events, a court of equity ought to restrain this action, until the house, &c., were rebuilt; and therefore continued the injunction. Bill brought for a specific performance of a covenanth for quiet enjoyment, contained in a lease of certain houses demised by defendant to plaintiff, and to have 500l. laid out in rebuilding the houses, (which had been burned down by accident since the execution of the lease,) and for an injunction to restrain defendant from proceeding at law. N. The 500l. had been received by the defendant from the insurance-office on account of the insurance of these houses. Defendant, by his answer, offered to accept a surrender of the lease. Lord Northington, Ch.-"There is not any covenant from the landlord to rebuild. A court of equity can decree a specific performance in those cases only, where clear directions can be given in what manner, and when the act is to be performed. It would be most arbitrary for me to decree a rebuilding, in a case where there is not any covenant for the rebuilding. All that can be required from a court of equity is, in a case like this, when an action shall be brought for rent, to order an injunction, until the houses are rebuilt, or the lease delivered up. In the present case, there has not been any action brought for the rent, and the defendant has offered to accept a surrender of the lease, which is all the relief the plaintiff is entitled to." There being a valuable wharf on the demised estate, the plaintiff declined surrendering his lease; the bill therefore was dismissed with costs (9). h Brown v. Quilter, in Canc. 1 June, 1764, MSS. Amb. 619. S. C. But see Hare v. Groves, 3 Anstr. 687. and (9) Ejectment by tenant against landlord to recover the possession of some houses which had been burned down during the term, and had been rebuilt by the landlord. In the lease there was an express covenant, on the part of the tenant, to pay the rent, but he had not paid any after the time of the fire. Lord Mansfield, C. J. said, the consequence of the houses being burned down was, that the tenant was not obliged to rebuild, but the tenant was obliged to pay the rent during the whole term. The houses having been burned down four years before action brought, and the rent not having been paid during that period, he left it to the jury to consider whether it was not to be presumed that the tenant had abandoned the lease at the time of the fire; and accordingly the jury found a verdict for the defendant. Pindar v. Ainsley, Middlesex Sittings after M. T. 1767, cited by Buller, J. 1 T. R. 312. But where there are no special circumstances, the general rule prevails, that equity follows the law; and a court of equity will not restrain a party from proceeding at law for rent arrear after the premises are destroyed by fire; the agreement for payment of the rent being without restriction1The lessee of a house, on a general covenant to repair during the term, is bound to rebuild, in case the house be consumed by an accidental firek (10). If a lessor covenant1 that he will, in case the messuage, shop, and building demised be burnt down, rebuild and replace the same, in the same state they were in before the fire, he is only bound to rebuild what he let, and not any additional parts, which may have been erected by the lessee. On a covenant to erect a bridge in a substantial manner, and to uphold and keep in complete repair for a certain time; although the bridge be broken down by an extraordinary flood, yet the party covenanting is bound to repairm. See Shubrick v. Salmon, 3 Burr. 1637, to the same effect. Of Express Covenants running with the Land.-Express covenants, which run with the land, entered into by lessee for years, for himself, his executors, administrators, and assigns, are binding on the lessee and his personal representative, (having assets,) during the continuance of the term; although such covenants are broken, after an assignment of the term by the lessee, and after an acceptance of rent from the assignee by the lessor, or grantee of the reversion; and there is i Hare v. Groves, 3 Anstruther, 687. recognized and acted upon in Holtzapffel v. Baker, 18 Ves. 115. k E. of Chesterfield v. D. of Bolton, Com. R. 627. Bullock v. Dommitt, 6 T. R. 650. S. P. 1 Loader v. Kemp, 2 C. & P. 375, Best, C. J. m Brecknock Company v. Pritchard, 6 T. R. 750. (10) In many cases an exception of accidents by fire or tempest is introduced into leases for the protection of lessees. It appears, from the cases of Monk v. Cooper, and Hare v. Groves, 3 Anstr. 687, that this exception should be introduced into the covenant for payment of the rent, as well as into the covenant for repairs, in order to exempt the lessee from the obligation of paying rent as well as rebuilding, in case the house should be destroyed by fire or tempest. In Walton v. Waterhouse, 2 Saund. 420, covenant was brought against lessee of a house for not repairing; defendant pleaded that the house had been destroyed by fire, but in convenient time after had been rebuilt. Plaintiff demurred specially, because defendant did not shew by whom the dwelling-house was rebuilt.-Judgment for plaintiff. not any distinction in this respect between a voluntary assignment by the lessee and a compulsory assignment by virtue of the bankrupt laws".-In covenant against lessee of a house by indenture, wherein the lessee had expressly covenanted for himself, his executors, and assigns, that he would repair within a month after warning; the breach assigned was for not repairing the house within a month after warning given; the defendant pleaded, that a long time before that warning he assigned his term to J. S., who paid his rent always afterwards to the plaintiff, who had accepted the same; and then averred performance of all the covenants until the assignment; the plaintiff demurred, on the ground that this assignment did not take from the lessor his advantage of the express covenant; and, notwithstanding his acceptance of rent by the hands of the assignee, yet he might charge the lessee or assignee at his election; and the whole court being of that opinion, it was (without argument) adjudged for the plaintiff. The same point was ruled in Ventrice v. Goodcheap, 1 Roll. Abr. 522. N. pl. 1. where the lessee had covenanted for himself and his assigns to repair; on the ground that the lessee had expressly covenanted for himself and his assigns, and that this personal covenant could not be transferred by the acceptance of the rent. So where the breach was for non-payment of rentP (11). In Mayor v. Steward, 4 Burr. 2439. it was holden, that a bankrupt was bound by an express collateral covenant, (to indemnify plaintiff against the covenants of a lease,) which had been broken after act of bankruptcy committed, and after defendant had obtained his certificate. From the foregoing cases it appears clearly, that express covenants, which run with the land, entered into by lessee for years, for himself, his executors, administrators, and assigns, are binding on the lessee during the continuance of the term, although such covenants are broken after an assignment of the term by the lessee, and after the acceptance of rent from the assignee by the lessor or grantee of the rever n Auriol v. Mills, 4 T. R. 94. But see stat. 6 Geo. 4. c. 16. s. 75. o Barnard v. Godscall, Cro. Jac. 309. p Devon v. Collier, 1 Rol. Abr. 522. (N.) pl. 1. Crofts v. Taylor, ibid. Adj. on dem. S P. (11) The following authorities may be referred to, as tending to establish the same point: Fisher v. Ameers, 1 Brownl. 20.-Thursby v. Plant, 1 Sidf. 402.-1 Sidf. 447. Nota.-Boulton v. Cann, Freem. 337.-Ashurst v. Mingay, 2 Show. 134, T. Jones, 144. S. C. Edwards v. Morgan, 3 Lev. 233.-Jodderell v. Cowell, Ca. Temp. Hardw. 343.-Auriol v. Mills, 4 T. R. 94. sion; it remains only to add, that such covenants, under the same circumstances, are binding on the personal representative of the lessee having assets. In covenant by the lessor against the executor of lessee for years, by indenture, of a garden adjoining to the house of the lessor, in which indenture lessee had covenanted for himself, his executors, and assigns, that he would not erect any building in the garden to the prejudice of the lessor's lights; it was alledged that an assignee of defendant's testator had erected a house in the garden to the prejudice of the lessor's lights. Defendant pleaded an assignment of the term to J. S., who had paid rent to the lessor, and had been accepted by him as tenant. On demurrer, it was contended, on the part of the defendant, that by the assignment and acceptance of rent, the privity of contract was determined, more especially as it was a contract which concerned an act to be executed on the land, and therefore running with the land; but the court conceived, that as it was an express covenant, that the lessee should not build, it should bind him and his executors; and neither an assignment, nor an acceptance of rent, by the hands of the assignee, could deprive the lessor of the advantage of suing the lessee or his executors on an express covenant. Judgment for plaintiff. Queen Elizabeth, by letters patent, demised a house for years, which the lessee covenanted to repair. On the death of the queen, the reversion descended to King James, when the lessee assigned his term, and the assignee paid rent to the king, who afterwards granted the reversion to the plaintiff; the house being out of repair, the plaintiff brought covenant against the executors of lessee for a breach of the covenant committed after an assignment of the term and reversion, and after plaintiff had accepted rent from the assignee of the term; it was holden, that the action would lie, on the ground that it was a covenant in fait, by the express words, running with the land; and that notwithstanding an assignment, the covenantor and his executors were always chargeable, so that he could not, either by the assignment of his estate, or by any other act, discharge himself or his executors, (who were chargeable by the act of the testator,) having assets, as long as the reversion continued in the lessor; and by the express words of stat. 32 H. 8. c. 34. such remedy as the lessor might have had against the lessee or his executors, the assignee shall q Bachelour v. Gage, executor of Gage r Brett v. Cumberland. Cro. Jac. 521. 2 Rolle's R. 63. S. C. |