
    Samuel Fowler and Others versus James Bott, Jun., and Another.
    Upon a covenant in a lease of a mill for years, to pay rent, the rent may be recovered after a destruction of the mill by fire, although the lessor does not rebuild.
    This was an action of covenant brought by the plaintiffs, to recover the sum of 225 dollars, for rent alleged to be due from the ninth day of April, 1807, to the ninth day of January, 1808, of a chocolate mill demised by the plaintiffs to the defendants, by a certain indenture between the parties dated the third day of November, 1806.
    The defendants prayed oyer of the indenture, upon which it ppears that the plaintiffs thereby covenanted, among other things, to build a chocolate mill, in a place agreed upon, of certain dimensions, and in a certain manner mentioned in the indenture; and did, in and by the same indenture, “grant, lease, and demise, the same chocolate mill, with the privileges and appurtenances thereto belonging,” to the defendants for the term of six years from the lessors’ completing their said part in said building; to have and to * hold to the defendants for and during the [ * 64 ] said term of six years, commencing as aforesaid. And the plaintiffs further covenanted with the defendants, that they should quietly hold, occupy, and enjoy, the said leased premises for and during the said term of six years, against the lawful claims of all persons, they paying rent as hereafter mentioned, and at the end of the term surrendering the premises in good repair, unavoidable accidents and common wear and tear excepted. The defendants, for themselves, their heirs, &c., covenanted and engaged to and with the plaintiffs, their heirs, &c., well and truly to pay them the sum of 300 dollars a year for the leased premises, the same to be paid quarterly.
    The defendants pleaded three several pleas in bar: —
    1. That the plaintiff never built a chocolate mill in the place, &c., according to the form and effect of the said indenture. On this allegation the plaintiffs took issue, which was joined by the defendants.
    2. That, before the accruing of any part of the rent sued for, the plaintiffs entered into a parcel of the demised premises, and expelled the defendants, and kept the defendants expelled from the possession thereof during the whole time for which rent is claimed. On this allegation an issue was also taken by the plaintiffs, and joined by the defendants.
    3. That, after the commencement of the lease, and before any of the rent for which this action is brought accrued, or was in arrear, the said chocolate mill was, against the will and without the default of the defendants, burnt and consumed by fire ; of which the plaintiffs had dre notice; and that the plaintiffs were requested to rebuild the same, but refused so to do; and that the same yet remains unbuilt. To this third plea the plaintiffs, protesting that they had no notice of the destruction by fire as aforesaid, reply, denying the request to rebuild the mill; and on this point an issue was joined by the parties.
    * A verdict having been found for the plaintiffs on all [ * 65 ] the issues, the defendants moved in arrest of judgment upon the whole record ; the principal question being stated by the parties to be, whether the burning down and consuming the mill by fire, as stated in the third plea of the defendants, admitting there was no request to rebuild, constitutes a good and valid de fence against the present action.
    
      Story, for the defendants, was aware that the decisions in the English courts of law were against his clients, but as he knew of no determination of our own courts on the subject, he considered the point yet open here. In England, the chancery interferes in cases of this kind, and relieves where the law has an oppressive operation. As we have no chancery here, this Court will avail itself of the principles which govern in the Court of Equity, for the sake of doing justice between parties. By the ancient law, a tenant was bound to rebuild, though the loss arose from tempests, fire, or other inevitable casualties; but in modern times, more equitable principles have been adopted by the courts of law. Cases are found in the books where, in case of a partial destruction of the tenements leased, the rent has been apportioned.  In the case of Brown vs. Quilter, 
       the premises being burnt down, a bill in equity was filed by the tenant to restrain the landlord from bringing an action at law for the rent due subsequent to the time of the accident; and Lord Northington said, “Here no. action at law is brought, and therefore no relief is necessary. But if an action be brought, this court will restrain the landlord from proceeding to recover rent until the house is rebuilt.” And in the case of Steele vs. Wright, 
       it was decided, that though the landlord is not bound to rebuild, yet the tenant is neither obliged to rebuild, or pay rent until the house is rebuilt.
    In the case of Cutter vs. Powell, 
       which was an action for the wages of a seaman who died on the passage, it was said by the counsel for the defendant, that the tenant of a house, who f * 66 ] covenants to pay rent, is bound to continue paying * the rent, though the house be burnt down, for which he cited the case of Belfour vs. Weston, decided in Lord Mansfield's time ; Lord Kenyon interrupted the counsel, and referring to the case of Brown vs. Quilter, observed that that position “ must be taken with some qualification; for where an action was brought for rent after the house was burnt down, and the tenant applied to the Court of Chancery for an injunction, Lord C. Northington said, that if the tenant would give up his lease, he should not be bound to pay the rent.”
    
      Putnam for the plaintiffs.
    Where the party, by his own contract, creates a duty or charge upon himself, he is bound, notwithstanding any inevitable accident, to make it good, if he can. Thus a lessee could not be released from his covenant to pay rent, though he had been driven from the premises by public enemies;  and where the premises had been burnt down, and the lessee’s covenant was, as in the case at bar, to keep the premises in repair, unavoidable accidents excepted, the lessee was held liable to the rent reserved.  And in the case of Belfour vs. Weston, 
       where the same point came before the court, they would not hear an argument, considering the point as settled by the cases above cited.
    Neither, on the general question, is there any difference in the decisions of courts of equity, from those of the courts of law. Except the dictum of Lord Northington, in the case of Brown vs. Quilter, which went off on another ground, the chancery has uniformly adhered to the principles of the common law. 
    
    Nor, in truth, is there any thing more than a seeming hardship in the case. If an accident happen to premises leased for years, what good reason can be given why the whole loss should fall on the lessor ? A long term would show the equity in a stronger point of view, but the rule cannot be affected by the length of the term. The lessee * is the owner of the premises [ * 67 ] during his term, as much as the remainder-man is of his remainder.
    It may be added that principles of sound policy are in favor of the decisions cited. Accidents of this kind generally happen through the carelessness of the tenant; indeed, they may sometimes arise from a cause still more blameworthy. Where the lessee finds he has a hard bargain, he has the lessor in his power, and it would be the worst conceivable policy to add an inducement to fraud and wickedness, by excusing him from the payment of his rent, on the destruction of the leased premises by fire.
    The action stood continued nisi for advisement; and at the following March term in Suffolk, the opinion of the Court was delivered by
    
      
       3 Rol. Air. Appointment, C.pl. 2. — 1 Dyer, 56, a. pi. 15, Richard Le Taverner Case.
      
    
    
      
      
        Ambler, 619, cited in 1 D. E. 708.
    
    
      
       Cited by counsel in 1 D. E. 708.
    
    
      
       6 D.SfE. 323.
    
    
      
      
        Paradine vs. Jane, Aleyn, 26.— Style, 47, S. C.
      
    
    
      
       2 Str. 763, Monk vs. Cooper, 2 L. Raym. 1477, S. C.
      
    
    
      
       1 D. & E. 310.
    
    
      
       2 Br. Cha. Rep. 341. — 1 Fonblanque on Equity, 366. — 1 Ves. 461, Rook vs Wortn. — 3 Ves. Jun. 34, 38, Pym vs. Clackbum. — See also 4 Co. 81, Sir Andrew Lor Lett's Case. — 1 D. & E. 310, Belfour vs. Weston. — 1 Dallas, 210. — 6 D. & E. 488, Weigall vs. Waters.— Ibid, 650, Bullock vs. Dommett.
      
    
   Sewall, J.

[After stating the plaintiffs’ demand, the several issues, and the verdict.] By a motion in arrest of judgment, this question, arising upon the defendants’ third plea, is to be decided by the Court, viz., — whether, after a destruction by fire of the buildings demised, the lessors, without rebuilding, can recover their rent. The supposed hardship of the case has been urged upon the attention of the Court, as an argument for the defendants. The answer to this argument is, that a lease for years is a sale of the demised premises for the term; and, unless in the case of an express stipulation for the purpose, the lessor does not insure the premises against inevitable accidents, or any other deterioration. The rent is in effect the price, or purchase money, to be paid for the ownership of the premises during the term ; and their destruction, or any depreciation of their value, happening without the fault of the lessor, is no abatement of his price, but entirely the loss of the purchaser.

Independently, however, of the general reasoning, which has been gone into upon this question, the law applicable to the case at bar has been long settled. In the case of Belfour vs. Weston, cited for the plaintiffs, the same question was made which [ * 68 ] arises in this case; but the* Court of King’s Bench refused to hear an argument upon it; being of opinion that, the point had clearly been determined by the authorities ; and on that occasion Justice Butter refers to the opinion of Lord Mansfield in the case of Pindar vs. Ainsley and Rutter; where the question occurred in an action of ejectment brought by the tenant, in a lease for years, against the landlord, for the possession of some houses, which, having been burnt down, had been rebuilt by the landlord during the term; but after acts by the tenant, from which his abandonment of the lease was to be presumed. Lord Mansfield stated, as an established principle of law, that the consequence of the house being burnt down is, that the landlord is .not obliged to rebuild, but the tenant is obliged to pay the rent during the whole of the term.

Nor is it correct to say that, in cases of this nature, the courts of equity in England afford relief. The cases cited in the argument for the defendants, as in point to that purpose, are noticed by Justice Butter in the case of Doe v. Sandham; and he speaks of them as decisions on particular circumstances, and not upon any general principle or rule of equity.

Upon the whole, this established rule of law determines the construction and operation of the contract relied on by the plaintiffs in the case at bar. When words of the same import are used, as were employed in the contracts upon which the decisions cited and referred to were made, the intentions of the parties must be understood in conformity to those decisions, even admitting the supposed hardship of the case, or severity of the demand. But even this objection seems inapplicable, when we consider the lease as a bargain and sale for the term at an agreed price. When there is no covenant on the part of the lessor to insure against fire, or any engagement to repair the premises in that event, or any other casualty by which they may be impaired or destroyed, the accident becomes the * misfortune of the lessee, and [ * 69 ] he is not excused from his rent.

Judgment is not arrested, but must be entered according to the verdict. 
      
       1 D.& E. 705.
     
      
      
        [Hare vs. Groves, Anstr. 687. — Leeds vs. Cheetham, 1 Sim. & Stu. 146. — Holzapfel vs. Baher, 18 Ves. 115. — Ed.]
     
      
      
        [Monk vs. Cooper, Ld. Raym. 1477. — Str. 763. — Belfour vs. Weston, 1 D. & E. 310. — Holtzapfel vs. Baker, 4 Taunt. 45. —18 Ves. 115.— Leeds vs. Cheetham, 1 Sim. & Stu. 146. — Hare vs. Groves, Anstr. 687. —Phillips vs. Stevens, 16 Mass. 238. — White vs. Wagner, 4 Hog. 373.— Wagner vs. White, ib. 564. — Paradine vs. Jane. Alleyn, 27. — Com. L. & T. 211. — Ed.]
     