
    KERR against WHITAKER.
    On covenant to give possession, it is no excuse that a tenant holds over.
    This was an action of covenant, brought on an article of agreement, under seal, dated the 1st January, 1807, wherein the defendant had agreed, (among other things) to let to the plaintiff, a garden, yard, and part of a house, wherein one Hannah Baughen then lived, for three years; the plaintiff to have possession of the premises on the first day of May next ensuing the date of the agreement. The breach assigned was, that the defendant did not let the said garden, yard, and part of the said house, nor give the plaintiff possession thereof, on the said first day of May, or any time thereafter, [495] but therein failed and made default, and wholly refused. To the declaration of the plaintiff setting out those facts, the defendant plead that the premises were at the time of the agreement, leased to the said Hannah Baughen, who was in possession of the same; that her lease expired on the said first day of May, and that he had given her six months notice in writing to quit the premises' on the said first day of May, and that on that day he requested her to give up the premises, but that she refused to do it; but on the contrary, held over and against the will, and without the consent of the defendant, continued in possession thereof for a great length of time, Ac., by reason whereof, and not by his [f] default, he could not let the premises to the plaintiff, Ac.
    To this plea the plaintiff demurred, and the defendant joined in demurrer.
    
      Mr. I. H. Williamson, for the plaintiff.
    Where the law creates a duty, and the party is unable to perform, the inability will excuse; but where the duty is created by contract, it will not excuse. 3 Burr. 1637; Allen, 26; 3 Term Rep. 876 ; 8 Comy, Dig. 121.
    
    
      Mr. Hornblower, contra.
    The agreement states that Mrs. Baughen was in possession of the premises at the time of the agreement; the spirit rather than the letter of the contract in covenant, is to govern the construction. 1 John. Cases, 70. It was not the intention of the parties, that the plaintiff should have possession on the first of May at all events, whether the tenant held over or not; it was as much the business of the plaintiff as the defendant, to gain possession'; he knew at the time of making the contract, that the tenant might hold over, and that the defendant could not give possession unless the tenant surrendered the premises.
   By the Court.

This is an express covenant to let the premises, and give possession the 1st May, 1807. The defendant took this upon himself, and has failed. The demurrer must be overruled.

Judgment for plaintiff. 
      
       The demurrer must have been sustained, not overruled.
     