judgment of the Court; Mr Juʃtice RUSH having decline to give any opinion, as he had been of counfel with the Plaintiff in this caufe before he took his feat upon the bench.
M‘KEAN, Chieƒ Juʃtice.– Two queftions were made in this caufe:– 1ft, Whether the Defendant as aʃʃignee of the leafe, is bound by the covenant to repair, as well as the leʃʃee? And 2dly, Whether the fpecial matter pleaded, is fufficient in law to bar the Plaintiff?
With refpect to the firʃt queftion, we are clear in our opinion, that the covenant to repair, and to deliver up the demifed premiffes in good order and repair, runs with the land, being annexed and appurtenant to the thing demifed, and fhall bind the affignee as much as the leffee, even if the affignee were not named by the exprefs words, on account of the privity ; but in the cafe at bar the affignee is bound by expreʃs words and, a ƒortior, in anfwerable as well as the leffee. This point has been fully fettled in Spencer's caʃe 5 Co. 16. b. and 1 Salk. 199. 2 Levinz. 206. 1 Rolls Abr. title, (covenant) letter M. pl. 1, and N. pl. 2. Vin. Abr. 6. vol. pa. 411. letter M.pl. 1.2. 1 Bacon's Abr. 534. c. 5. and the books cited in thefe abridgments.
The ʃecond queftion is of great difficulty, and of very great importance in its confequence. We cannot find, that it has come directly before any court in England, or in Europe. We wifh, that it had come before abler judges than we pretend to be. However, we muft give our judgment ; but we do it with more diffidence than has occurred in any cafe fince we have had the honor to fit here.
As there is no pofitive law, no adjudged cafe, nor eftablifhed rule, or order, to direct the court in this point, we muft be guided by the principles of the law ; by confcience, that infallible monitor within every judge's breaft, and the original eternal rules of juftice. For, equity is part of the law of Pennʃylvania. 1 Chan. Ca. 141. Grounds and Rudiments oƒ law and equity. pa. 74. ca. 104. Doct. and Stud. lib. 1. cap. 16.
It is agreed, that if a houfe be deftroyed by lightning, floods, tempefts, or enemies, without any concurrence of the leffee, or pofibility of his preventing the fame, this is no waʃte in the leffee: For, it is not done by the leffee's negligence, or any wilful act of his ; and he cannot be charged with ufing it improperly, and it would thus have perifhed, even in the reverfioner's poffeffion. 1 Inʃt. 53. b. Brook, Waʃte 69. 4 Co. 63 b. Herlakendan's caʃe. Lanlord's Law pa. 158. 278. 286. Fitzherbert's Natura Breviwm, Waʃte, 132. 1ʃt Edition, Kelw. 87.
It is alfo agreed, that where the law creates a duty or charge, and the party is difabled to perform it without any deƒault in him, and hath no remedy over, there he fhall be excufed. As in the cafes of wafte againft tenants in dower, by the curtefy, for life, or years, of common carriers, innkeepers &c. of leffees by parol &c. or of a
