THE RISK OF LOSS. 12/ recover in an action for use and occupation, though the premises were entirely destroyed;^ and now it is not likely that much weight would be given in the form of the lease, if it contained no proviso relieving the tenant. In one or two early cases it was intimated that the tenant might have relief in equity from his legal liability,^ but these cases have been overruled.^ In England no distinction is made between partial destruction of the leased premises as where leased land remains after the calamity, and total destruction as where the lease is of a single room or story of a building without land, and the entire building is destroyed. In the latter case, as well as the former, the tenant must pay rent.* In this country, however, the tenant is relieved in case of total de- struction of the leased premises.^ It is difficult to see how total Wigbtman, 4 McC. 447 ; Coogant/. Parker, 2 S. C. 255 ; and perhaps in Kansas, Whitaker V. Hawley, 25 Kan. 674. It is immaterial that the lessor had insurance on the property, and has collected the money and refuses to rebuild. Skillen v. Water Works Co., 49 Ind. 193, 198; Bussmanz/, Ganster, 72 Pa. 285 ; Hoy v. Holt, 91 Pa. 88, 90. And if the lessee builds he has no right to the insurance. Ely v. Ely, 80 111. 532. See also Leeds V. Cheetham, i Sim. 146 ; Lofft v. Dennis, i E. & E. 474. 1 Izon V. Gorton, 5 Bing. N. C. 501. And see Packer v. Gibbins, i Q. B. 421. 2 In Harrison v. Lord North, Ch. Cas. 83, the plaintiff sought to be relieved from payment of rent for a house which was taken from his possession during the civil war for use as a hospital. For the plaintiff it was argued that this was not like an ordinary case of ouster by a third person, for there was no remedy over. For the defendant it was said : '* The plaintiff hath a pitiful case, but not such as this court can relieve, for the law and equity is all one in this case, . . . and cited the case of Carter and Cummins about two years since in this court, where the plaintiff being a tenant of a wharf, which by an extraordinary flood was carried all away, brought his bill to be relieved against paying of his rent, but all the relief he had was only against the penalty of the bond, which was broken for non-payment of rent ; and the defendant ordered only to bring debt for his rent . . . The Lord Chancellor (Sir Orlando Bridgeman) took time to advise ; but de- clared if he could he would relieve the tenant." In Brown v. Quilter, Ambler, 619, Lord Chancellor Northington expressed surprise that it was considered so clear that the landlord could recover rent at law, and said that " when an action is brought after the house is burnt down, there is a good ground of equity for an injunction till the house is rebuilt." The bill was in fact dismissed because the landlord in his answer offered to cancel the lease, and the tenant declined to accept a can- cellation. The same Chancellor is said to have proceeded upon the same theory in Cam- den V. Morton, 2 Eden, 219; and Lord Apsley adopted it in Steele z/. Wright, cited in I T. R. 708. See also Weigall v. Waters, 6 T. R. 488, 489, per Lord Kenyon.
- Hare v. Groves, 3 Anstr. 687; Holtzapffell v. Baker, 18 Ves. 115; Leeds v.
Chatham, i Sim. 146, 150. See to the same effect Redding v. Hall, i Bibb, 536; Har- rison z/. Murrell, 5 T. B. Mon. 359; Lamott v. Sterett, i Har. & J. 42; Hicks z/. Parham, 3 Hayw. (Tenn.) 224.
- Izon V. Gorton, 5 Bing. N. C. 501.
5 McMillan v. Solomon, 42 Ala. 356; Ainsworth v. Ritt, 38 Cal. 89; Alexander v. Dorsey, 12 Ga. 12 ; Womack v. McQuarry, 28 Ind. 103 ; Shawmut Nat. Bank v. Boston,
