
    *Thompson v. Pendell.
    August, 1841,
    Lewisburg.
    (Absent Cábele and Bbooke, J.)
    Lease — Covenant to Keep Premises in Repair — Destruction by Fire — Rent.—in the lease of a mill, lessee covenants to keep up the repairs of the mill, except heavy repairs, such as if the dam or forebay should be injured by high water, or if the main shaft or wheel should give way so as to retiuire a new one, in this case, it is to be repaired by the lessor in a reasonable time, and the lessor is not to lose the rent if he should go on to do the work according to contract; the mill is wholly destroyed by accidental Are during the term ; and the lessor fails and refuses to rebuild the same : Held, the rent is susx)ended from the time of such destruction of the demised premises ; dissentiente Tuckeb, P.
    Debt by Thompson against Pendell and five others (his sureties), in the circuit superior court of Rockbridge, on a single bill for 450 dollars, payable the 1st May 1838, “being for one year’s rent of the Boat Yard mills.”
    The defendants tendered a special plea in bar, founded on the statute Supp. to Rev. Code, ch. 109, 62, wherein they alleged, that by agreement between the plaintiff Thompson and the defendant Pendell, dated the 6th April 1837, Thompson leased to Pendell, the Boat Yard mills, and the store house and garden appurtenant to the same, for a term of five years from the 1st May 1837, at the annual rent of 450 dollars, payable at the end of each year of the term; and by the agreement, Thompson was to keep up and make, during the term, the heavy repairs of the mills, whether rendered necessary by wear and tear or by accident, within a reasonable time after such necessity should occur; and in case of Thompson’s failure so to do, he was not to' be entitled to rent during such his failure. And for securing the annual rents to Thompson, Pendell, and the other defendants his sureties, executed their bonds, and among the *rest the bond in the declaration mentioned, which was for the first year’s rent. And the defendants averred, that during the first year of the term, on the 5th December 1837, the mills and the store house were accidentally destroyed by fire, Pendell having then enjoyed the premises for seven months and four days: Yet Thompson, though often requested, wholly failed and refused to make the heavy repairs rendered necessary by the destruction of the mills and store house by fire; whereby Pendell had been from the time of the fire wholly deprived of the use of the mills. And Thompson, after the destruction of the same by fire, took possession of the garden, to wit, on day of April 1838, and by himself, his tenants and agents, had ever since held and enjoyed the same. By reason whereof the defendants had sustained damages to the value of 200 dollars. And the defendants, after the fire and before the commencement of this suit, tendered to Thompson the sum of 281 dollars 66 cents, for and on account of the first year’s rent, being- the rateable proportion thereof for the space of time during which Pendell enjoyed the premises; which sum so tendered Thompson refused to receive, and the defendants had been and yet were always ready and willing to pay, and now brought into court. And the 200 dollars damages sustained by Pendell, and the 281 dollars 66 cents so tendered to Thompson, exceeded the sum demanded in the declaration. All which the defendants were ready to verify &c.
    The facts of the plea were verified by affidavit of three of the defendants; and they paid the 281 dollars 66 cents into court.
    Thompson objected to the reception of the plea, on the ground that it was not in itself a good bar to the action, and because no profert was therein made of the agreement for the lease of the mills of the 6th April 1837; but the court admitted it, and Thompson excepted. And then he put in a general replication, on which an issue was made up.
    *At the trial, the defendants offered in evidence a deed between Pendell and Thompson, dated the 6th April 1837; by which it appeared, that Thompson let the Boat Yard mills &c. to Pendell for the term of five years from the 1st Hay 1837, at an annual rent of 450 dollars--and there were the following covenants in it: “The said Samuel Pendell is to keep up the repairs of the mill, except heavy repairs, such as if the dam or forebay should be injured by high water, or if the main shaft or wheel should give way so as to require a new one, in this case it is to be repaired by the said Thompson in a reasonable time after such breach, and he Thompson is not to lose the rent if he should go on to do the work according to contract.” — “And the said Pendell for himself &c. doth covenant and agree to and with' the said Thompson, his heirs &c. that the said Pendell, his executors &c. shall -well and truly pay or cause to be paid unto the said Thompson, his heirs &c. the said yearly rent of 450 dollars.” — “And that the said Pendell, his heirs &c. agree, at their own proper costs and charges, to keep up the repairs of the mill and appurtenances thereof, except such as are herein before named and reserved, during the present lease, accidents by fire and the act of God excepted, and to- return the mills to the said Thompson, his heirs &c. at the expiration of the said term of years, in as good a condition as he received them, the natural wear and tear excepted.” Then followed the usual covenant for the enjoyment of the premises by the tenant during the term. Whereupon Thompson prayed the court to instruct the jury, 1st, that upon the legal construction of the agreement, the lessee was bound to pay the rent thereby agreed to be paid, though it should be proved that the mills and store house were wholly consumed by fire during the first year of the term, without the tenant’s default and against his will, and though the jury should believe, that the landlord, under a sound construction of the contract, *was bound to rebuild in the event of a casualty by fire, and though the fire had rendered the demised property of no value to the tenant. 2ndl3r, That if the jury should believe, that the bills &c.. demised were burnt by the culpable negligence of the tenant or his agents during the term, then the tenant was bound to pay the rent,’ though the property had been consumed by fire, even if the landlord was bound to rebuild in case of accidental fire, and even if there was an express covenant to rebuild in case of such casualty. 3rdly, That if the jury should believe from the evidence that the tenant, within a day or two after the mills were burnt, removed from the premises, with his family and property, to the lands of one Weaver, and a few months afterwards engaged in milling business for Weaver, where he continued to reside ever since, exercising no act of ownership over the property demised to him by Thompson, then the entry of Thompson on a portion of the demised premises and erecting a hogpen thereon, and his subsequent entry and leasing to one Northern, for one year, a portion of the garden he had demised to Pendell, were not such acts or disturbances of the lessee’s right, he having vacated the demised premises, as will by law discharge the tenant from the payment of the rent reserved by the lease.” The court gave the last two instructions, but refused to give the firsthand, on the contrary, told the jury, “that upon a fair construction of the lease, the tenant was not liable to pay the rent reserved, in case of an accidental destruction of the mills &c. by fire or any other means (except the rent accrued . up to the time of such destruction) without any default or negligence on the part of the defendant, unless the landlord repaired or rebuilt within a reasonable time, as specified or provided in the contract; and that a refusal to rebuild from the time of the burning to this date, and a disclaimer by the landlord of any intention or obligation to rebuild, was sufficient evidence to *the jury, to establish a failure to repair or rebuild in a reasonable time; within the meaning of the contract.” To which opinion Thompson excepted.
    The defendants also introduced one Moore as a witness, who testified, that about three weeks after the burning of the mill, he heard Thompson make an estimate of his loss: that he estimated the same at 8000 dollars, which included the mills, the grain and other contents, and the rent Pendell was to pay. Thompson’s counsel objected to this evidence as illegal, on the ground that his admission as to the loss of the rent was only the expression of his opinion on a point of law, which was erroneous, and ought not to bind' him, and therefore ought not to be given in evidence against him. The court held that the evidence was admissible; saying, “that how far it should avail, was a question for the jury, under the advice of the court, if such advice should be asked, to consider in connexion with the other testimony in the cause. ” Thompson excepted.
    Verdict and judgment for defendants; to which this court, upon the petition of Thompson, allowed him a supersedeas.
    Brockenbrough for plaintiff in error.
    X. The special plea ought to have been rejected by the court, because (if for no other reason) it made no profert of the covenant therein set forth and relied on as the foundation of the defence. The plea was “in the nature of a plea of setoff,” under the statute Supp. to Rev. Code, ch. 109, $ 62, and the defendants were as much bound to make profert as Pendell would have been if he brought an action of covenant for a breach. The plea was bad too for duplicity ; for it set up two distinct grounds of de-fence, each going to the whole action — ■ 1. that Thompson was bound by his contract to rebuild within a reasonable time, and having failed to do so, the rent was suspended; and 2. that Thompson, after the destruction *of the mills by fire, resumed possession of part of the premises, and thenceforth occupied and enjoyed the same, and so the rent was suspended. These two grounds of defence were not only distinct and independent, but inconsistent: for if Thompson’s covenant bound him to rebuild in case of destruction by fire, then Pendell was entitled to a suspension of the rent only from the time of his failure to rebuild within a reasonable time, and Thompson was entitled to the rent until such breach; but if it was true, that he entered upon and enjoyed part of the demised premises during the term, the whole rent was extinguished, as well that which accrued before the mills were burnt, as that which would, but for the alleged eviction, have afterwards accrued. Briggs v. Hall, 4 Leigh 484. And that part of the plea which claims the exemption of the defendants from rent by reason of Thompson’s entry on the demised premises, is further defective in not stating that he entered against the will of the lessee Pendell. II. The court erred in refusing to give the first instruction asked by Thompson’s council, and in the instruction it gave to the jury, that Pendell was not liable to pay the rent in the event which occurred of a total destruction of the mills by fire, unless Thompson rebuilt the same within a reasonable time. It erred in refusing to give the instruction asked, because a tenant is bound to pay the rent, notwithstanding the destruction of the premises by fire without his default or negligence, when there is nothing in the lease which exempts him; and because a breach of covenant on the part of the lessor does not excuse the lessee from paying the rent, but he is turned over to his action for the covenant broken. And the instruction which the court gave was erroneous. The covenant did not bind Thompson to rebuild in case of destruction of the premises by fire: it only bound him to make the “heavy repairs” therein specified, or at all events only such repairs as were of the same kind *with those specified. The enumeration of certain repairs in this covenant, limited the generality of the phrase “heavy repairs,” to that description of repairs, which, in the usual course of events, were likely to become necessary during the term. If the contingency of a total destruction of the mills by fire, had been in the contemplation of the parties when the covenant was entered into, the rebuilding of them, being the heaviest of all repairs, would surely have been specified; and the phrase “in this case,” immediately following the implied covenant of Thompson to make the “heavy repairs” specified, is conclusive to shew what sort of repairs was in contemplation. Thompson’s covenant to make the “heavy repairs,” implied that something should remain to be repaired, not that he should rebuild in case of total destruction. There being no covenant to rebuild, Thompson’s failure to rebuild was no ground for a suspension of the rent. The total destruction of the premises by fire, was a contingency not provided for by the contract between the parties; and the case is left subject to the operation of the well established rule of law, that the tenant shall pay rent notwithstanding such destruction. Monk v. Cooper, 2 Ld. Raym. 1477; Paradine v. Jane, Aleyn 26; 18 Vin. Abr. Rent I. a. pi. 10, p. 515; Belfour v. Weston, 1 T. R. 310; Weigall v. Waters, 6 Id. 488; Hallett v. Wylie, 3 Johns. Rep. 43; Fowler v. Bott, 6 Mass. Rep. 63. There was a class of cases in which under peculiar circumstances (the lessor having insured the premises) the tenant was relieved in equity, Brown v. Quilter,, Amb. 619, but the distinction has been exploded, and the cases overruled; Hare v. Groves, 3 Anstr. 687; Holtzaffel v. Baker, 18 Ves. 115; Leeds v. Cheetham, 1 Sim. 146; 2 Cond. Eng. Ch. Rep. 74. III. The testimony of the witness Moore was improperly admitted. If it was offered to explain the meaning of the lease, or to shew Thompson’s sense of its meaning, it was. certainly improper; Stark. Ev. part 4, *p. 1001. There is nothing to shew the application of the evidence to the question whether the destruction by fire was owing to the default or negligence of' the lessee.
    Baldwin, for defendants in error.
    I. The court did not err in receiving the defendants’ plea. Thompson’s objection to it was a general demurrer ore tenus, under' which formal defects could not be relied on, but only such as shewed that there was, not sufficient matter in the plea to bar the action. The plea was not objectionable for-want of profert of the covenant therein alleged; for it did not ajpear, on the face-of the plea, that the agreement was by deed; and if it had so appeared, and the plea could be regarded as faulty for want of a profert, the defect could only have been taken advantage of by special demurrer. Neither is the plea liable to the objection of duplicity: It does not set up-two distinct grounds of defence; it states the destruction of the mills by fire, the refusal of Thompson to make the necessary repairs incumbent on him, and his subsequent enjoyment of part of the demised premises; all going to shew the failure of' the consideration of the bond on which the action was brought, which is the very de-fence authorized by the statute. The averment of Thompson’s subsequent occupation of part of the premises was not distinct from, but was connected and not inconsistent with, the other matter of the plea; and it was either material, in which case the whole defence would have failed without proof of that additional fact; or it was immaterial, and so mere surplusage. And. whether it rendered the plea double or not, the objection could only be taken, if at all, by special demurrer; and in point of fact it was not taken, in the court below, in any form or shape whatever II. The court rightly refused the instruction asked by Thompson’s counsel, and was right too in the instruction which it gave to the jury. If the buildings on demised premises be destroyed by fire or other accident, without default of the tenant, *and he is deprived of the enjoyment thereof; and it is the duty of the landlord to rebuild within a reasonable time, either by the express terms of the lease or by fair implication, and the landlord fails or refuses to rebuild; the tenant is entitled to be relieved from the rent during the period of such refusal, to the extent of his loss occasioned by such refusal. In this case, it was the duty of the landlord to make “heavy repairs,” without exception of accidents by fire; and here being a case of total destruction, “such heavy repairs” could onl3r be made bjr rebuilding. The examples of “heavy repairs,” in the covenant, are put by way of illustration of what was so to be regarded: the duty of the landlord is not to be confined to those specific repairs; he was bound .to make all “heavy repairs” which were essential to the tenant’s enjoyment of the demised premises. Whatever may be the extent of the “heavy repairs” which the landlord was bound to make, he did not make them, and he is not excused from making them because they involved the necessity of rebuilding. Ñor is the duty of the landlord to rebuild, affected by the obligation of the tenant to make the minor repairs; he could not make them, until the landlord had rebuilt. The tenant was by the contract to keep up the minor repairs; the landlord was to keep up the “heavy repairs.” The duty of the landlord to rebuild is plainly infer-rible from his contract to keep up the “heavy repairs.” Bullock v. Dommit, 6 T. R. 550; Brecknock Navigation Co. v. Pritchard, Id. 750; Pym v. Blackburn, 3 Ves. 34, 38; Chesterfield v. Bolton, Com. Rep. 627. The obligation of the landlord in this case to make the “heavy repairs,” was not an independent covenant; for, by the. fair interpretation of the covenant, the rent was to cease during his failure. And it is immaterial whether it was independent or not, since the statute, under which the defence was made, allows, by way of setoff, any right of the defendants to relief or redress, which could be obtained in any forum *by any form of action or suit. III. Moore’s testimony was properly admitted. If it was not proper to shew Thompson’s own interpretation of his contract, yet it was proper for other purposes ; for example, it was proper upon the question which was made at the trial, whether the burning of the mills was imputable to the tenant’s own default or negligence. The court confined itself to a response to Thompson’s motion, as he made it, which was to reject the evidence altogether; and if he had wished to restrain the evidence to any particular point, he should have asked an instruction (as it was intimated to him that he might) for the purpose.
    
      
      
        See foot-note to Ross v. Overton, 3 Call 309, and monographic note on “Covenants” appended to Todd v. Summers, 2 Gratt. 167.
      The principal case is cited in Scott v. Scott, 18 Gratt. 168 ; 2 Min. Inst. (4th Ed.) 60, 634, 723.
    
   ALLÉN, J.

Several objections have been taken to the proceedings and judgment. The first grows out of the pleadings. The defendants tendered a plea under the statute of 1831, to the filing of which the plaintiff objected, on two grounds; 1. because no profert was made of the lease described in the plea, and 2. because it set up two distinct and independent matters of defence. An objection to the filing of a plea brings to the notice of the court such matters only as could be taken advantage of on general demurrer. The lease was not averred to be under seal; and if it had been, the failure to make profert was cause of special demurrer. So in regard to the alleged duplicity of the plea, — if both matters relied on constituted a full defence to the action, a general demurrer admitting them to be true, could not have been sustained; and if, upon the replication, one of the grounds relied on in the plea did not constitute a bar to the action, the court on motion would have instructed the jury to disregard it. And such in fact was the case in the present instance. The third instruction asked for and given, applied to so much of the plea as set out the re-entry of the landlord. The objections, both, go to the form, rather than to the substance of the plea, and were properly overruled.

*The important question is, whether,

under the circumstances of this case, the tenant was absolved from the payment of the rent accruing after the destruction of the demised premises by fire. The principle of law, that where a tenant covenants generally to pay the rent, he is not absolved, though the premises be destroyed by fire, has been long established, and may now be considered as settled. The hardship is more apparent than real, and the rule may be vindicated upon considerations both of justice and good policy. But, in all such cases, the rights and liabilities of the parties are to be ascertained from the terms of their contract. If there is nothing to take the case out of the operation of the general rule, it must govern, notwithstanding its supposed rigour in particular instances. But the intention of the parties, as deduced from their contract, where it contravenes no settled rule of law, must govern. And as the contract, in the case before us, is somewhat peculiar in its' terms, the reported cases can furnish us but little aid, in arriving at the true meaning and intention of the parties. The clause under which the controversy arises, provided, “That the tenant was to keep up the repairs of the mills, except heavy repairs, such as if the dam or forebay should be injured by high water, or if the main shaft or wheel should give way, so as to require a new one, in this case it was to be repaired by the landlord in a reasonable time after such breach, and he was not to lose the rent if he should go on to do the work according to contract.”

The title of the landlord to rent is founded on the presumption that the tenant enjoys the thing rented during the term. Gilbert on Rents, Law Library, vol. 20, p. 59. This is the universal understanding of the country. In the present case, mills, with a storehouse and garden, were leased. Both parties looked to the profits to be made from the use of the mills alone, as furnishing the tenant with a support and the means of ^paying the rent. Their contract may be somewhat obscure, but this obscurity is increased, as it.seems to me, in attempting to elucidate it by adjudged cases on the effect of covenants to repair and rebuild. Keeping in view the fundamental principle, in the contemplation of these parties when they contracted, that the title to rent is founded on the presumption of enjoying the thing rented, their meaning is clear. The light repairs, of almost daily necessity in machinery of this kind, could be made frequently in a few minutes, and without materially or at all impairing the use and enjoyment of the premises. These the tenant was to make. The “heavy repairs,” of the character designated, might not be required during the term: the substantial parts of the machinery would rarely require them. But property of this kind being liable to injuries from floods and other casualties, provision was made for those repairs should they be necessary: and though the tenant, during the time necessary to make them, agree to pay the rent provided the landlord proceeded to do the work in a reasonable time, he did so upon the assurance that his loss of the use would be but temporary, and that he would be compensated by future enjoyment. The burthen, during a temporary suspension, would be borne by each ; the tenant losing the rent and the landlord the cost of repairs. But if the landlord refuse to make the “heavy repairs,” he was to lose the rent. This is a necessary implication from the words used; for it would have been idle to say he was not to lose the rent if he went on with the repairs, if the parties did not understand that his failure to make them should deprive him of the rent. And this conforms with the spirit and intention of the parties. As long as the tenant actually enjoyed or had the prospect of enjoying the thing, he was to pay rent; when the enjoyment ceased through the default of the landlord, the rent ceased. If this was the leading motive of the parties, would it not defeat the great object they *had in view, to hold, that though rent should cease from the failure of the landlord to make “heavy repairs,” because the tenant thereby was deprived of the temporary enjoyment of the thing; yet, when the property was destroyed, wholly depriving him of the use of the demised premises, and the landlord declined to repair, he should still pay rent? This would indeed be to make a part greater than the whole. By a partial injury from fire, the burning of the main shaft for instance, the rent would be suspended, unless the landlord repaired; but if main shaft, building, dwelling house and all were consumed, the landlord was to be relieved from all charge, and the tenant be compelled to pay the whole rent. Such a construction, it strikes me, violates the whole scope and spirit of the contract. It looked to the enjoyment of the property by the tenant, and imposed upon the landlord the burden of making all such repairs as would be essential to such enjoyment. The classes enumerated are merely intended to discriminate the kind of repairs each was to make. And whenever it became necessary to make “heavy repairs,” or, in the case which has occurred, to rebuild, so as to enable the tenant to use the thing rented, the landlord was bound to secure such enjoyment to the tenant, under the penalty of losing the rent.

Some weight has been attached to the use of the word repair, in this contract. It has been argued that the word implies the continued existence of the thing to be repaired, and that, therefore, the parties could not have looked to rebuilding, to the erection of a new mill, in the case of total destruction. I doubt whether the parties to this inartificial contract, weighed with much nicety the true import of the words by which they have attempted to express their meaning. If we desired proof of this, the clause of their contract under consideration, furnishes it. It is provided, that “if the main shaft or wheel should give way, so as to require a new one, in this case it is to *'be repaired by the landlord:” here, they use the word in a sense different from its literal meaning; not to amend what exists,but to make something entirely new. Even if we were tied down to the strict meaning of the word, it would not vary the aspect of the case. The dam, as well as mills, were leased; all were parts of one whole; and though the house containing the machinery was consumed, the dam, foundation &c. remained, and the superstructure to be erected and attached to the remnants of what continued, may be included in the meaning of the word “repair.” But looking at the spirit and intention of the contract, we are not driven to any such technical considerations.

In this view of the case, it becomes unnecessary to consider whether the contract bound the landlord to rebuild. At first, I felt inclined to the opinion that the stipulations of the agreement did amount to a covenant on his part to rebuild. But subsequent reflection has led me to doubt the correctness of this impression. Each party, by the contract, held his remedy in his own hands. The landlord was at liberty to repair or rebuild as he thought proper. By failing to do the work, he lost the rent; by going on, he maintained his right to it. And as the obligation of the tenant to pay the rent resulted from his ability to enjoin the thing, if, in the case contemplated, he could not, through the failure of the landlord, enjoy it, he was authorized to withhold the rent. In this view too, the court did not err in instructing the jury that the obligation to pay ceased from the time the mills were destroyed, the landlord having avowed his determination not to rebuild. Eor from that time the actual use of the thing by the tenant, and all prospect of future enjoyment, terminated.

As to the objection to Moore’s testimony — the court below held, that it was legal evidence, and admitted it, but said it was a question for the jury, under the advice of the court if asked, how far it ought to avail. If the testimony was offered to affect the construction of the written agreement, it would have been clearly inadmissible. But it does not appear that such was the object. The defendants had pleaded that the mills were burnt without default of the tenant; and from one of the. instructions, asked for by the plaintiff, and given, it would seem that the point arose before the jury whether the mills were not burnt through the culpable negligence of the tenant. The jury was instructed that if the mills were burnt through his culpable negligence, then the tenant was bound to pay the rent. Upon this point,.the evidence was admissible, as tending to shew that the plaintiff, at one time, did not impute any negligence to the tenant. The motion went to reject the evidence altogether. The court was bound to overrule such an objection; and it does not appear that any motion was made to instruct the jury as to the effect of the evidence, although the court, in admitting it, intimated a willingness to instruct the jury as to its effect, if its opinion was asked.

Upon the whole, I think the judgment is right and should be affirmed.

STANARD, J., concurred.

TUCKER, P.

In this case I have the misfortune to differ from my brethren upon the construction of the contract between the parties, though it is probable we may not differ, materially as to thea general principles of law which apply to ‘cases of this description. I shall take it, therefore, as the general rule, both in equity and at law, that a tenant is not absolved from the payment of his rent by the accidental destruction of the premises by fire; nor shall I think it necessary to establish the principle by authority, as the question in this case is supposed to ■ turn, not so much on the general principle, as on the construction of ■ the covenant in the lease. To this I shall therefore particularly address myself.

*And first, let me observe, that the stipulation in the contract (on the part of the landlord) to repair, can, by no fair interpretation, be construed to mean a covenant to rebuild. To rebuild is to re-erect what has . been destroyed: to repair is to mend or make good that which by wear and tear, or otherwise, has been impaired, or only partially destroyed, but which still has existence. To repair, and to rebuild, are not therefore convertible terms. It is an abuse of language so to consider them. We do not repair what is destroyed; we rebuild it. .We do not rebuild what is partially injured or impaired ; we repair it: for to repair is to amend or restore to a good state after injury, decay or partial destruction. It implies the continued subsistence of the thing to be repaired. And as long as language shall give us distinct words for different ideas, it is wise to use them, and understand them, in their different senses. By confounding them, we shall confound also the meaning of contracts, and violate the intention of parties.

Cases, however, have been cited, where a party has been held to rebuild, though that term is not to be found in the contract. But in those cases, equivalent terms are found. As in the case of the bridge, (6 T. R. 750,) the workman covenanted to build it across a river, and to uphold and keep it in repair for seven years; and he was held bound to rebuild it when washed away. But there, not only did the nature of the engagement shew the intention of the parties that he should rebuild it, but the term uphold distinctly bound him to it. Eor the lexicographers tell us that to uphold is to maintain, to keep up, to continue in being, to support in any state; so that the covenant was in effect to keep up the bridge, and to continue it in the state in which it was, for seven years. So in Bullock v. Dommitt, the covenant was to repair, uphold, support, maintain &c. In Dyer 33, the covenant was to repair and sustain; and the word “sustain” is italicised. In Com. Rep. 626, Chesterfield v. *Bolton, the covenant was to leave in repair; and in Brook’s Abr. Cov. pi. 4, the case supposed is of a covenant to leave in the same plight. Now, all these imply, or mean expressly, that the tenant so covenanting shall rebuild. And the same may be said of Walton v. Waterhouse, 2 Saund. 420, where the words are “repair, uphold, support, maintain and keep in repair as often as occasion shall require.” There is then no case in which to repair, standing alone, has been construed to mean rebuild.

The language of the covenant in this case is altogether different from the cases cited. Pendell engaged to keep up the repairs of the mill, except “heavy repairs,” which are to be made by Thompson ; and if I am not mistaken in the interpretation given to the term “repairs,” there is nothing in the contract which binds him to rebuild, or deprives him of his rent on his failure to rebuild in a reasonable time.

It is said, that as the contract provides, that the rent shall not be suspended where “heavy repairs” are required, if Thompson should go on to do the work according to contract, it is implied, that it shall be suspended if he does not. This I do not deny: but I cannot admit another deduction built upon it; that if the rent is to be suspended where there is partial injury, it must a fortiori be suspended, or totally lost to the landlord, where there is entire destruction. The law having established that the tenant shall not be absolved from rent by the destruction of the premises, unless it is so expressly provided by the contract, I cannot think that we are justified in interpolating such an exception into the contract for his benefit. It would indeed be the more unreasonable, since he has actually provided for the suspension of the rent in a particular case; that is to say, while the landlord delayed the repairs he was bound to make. Nay more; with the very idea of “accidents by fire and the act of God” in his mind, and *while he provides that he shall not be liable for them, he does not provide that his landlord shall be. How can we tell that the landlord would have assented to such- a provision? How can we say, that he was willing to relinquish the benefit of that legal principle, which secured to, him his rent, even though the mill should be burned down? How can we say, that he was willing to surrender this just and equitable principle which, in the absence of a contrary stipulation, distributes the loss upon the parties according to their respective interest, — the tenant losing his lease, the landlord his reversion? How can we say, that Thompson would have been willing to be the insurer of the property during the continuance of the lease, without requiring additional rent to cover the hazard? Above all, how can we infer his willingness to assent to a provision, which, in the event that the lease proved a losing bargain to Pendell, would be a premium for its destruction? Shall we infer it by an argument a fortiori from the provision that the rent should be suspended in the event of Thompson delaying to do the “heavy repairs” when required? That provision was no premium for injury or negligence. If the shaft should give way and Thompson should immediately proceed to repair, the rent would be going on, while the profits, only, would be suspended; and thus the tenant would have every motive to prevent those injuries, which would be more detrimental to him than to the landlord himself. But if the rent is to be suspended until the landlord shall enter upon the arduous and expensive duty of rebuilding, which it might not be his interest or within his power to undertake, the tenant might be absolved forever from an onerous contract, through his own negligence or perfidy. Such a construction I am not disposed to give to this contract. If the tenant desired to protect himself against the rent in case of fire, until the landlord should rebuild, he ought so to have provided. The provision is too momentous to be *taken by loose inference from less important stipulations. The less may often be inferred indeed from the greater; but it is I think against every principle of interpretation, to infer the greater from the less. Expressio unius exclusio est alterius, can never apply more strongly, than against such a construction. Eor it not only does not exclude what is not expressed, but it includes by inference, the greater in the less, contrary to the fair presumption, that if the greater had been intended it would have been mentioned rather than the less.

Judgment affirmed.  