Page:United States Reports, Volume 1.djvu/223

212 

1787.

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. In