In this State, the Judges are fworn “ to do equal right and juftice to all men to he beft of the judgment and abilities, according to law.” There is no court of chancery. The Judges here are, therefore, to determine caufes according to equity as well as the pofitive law ; equity being a part of the law. Doctor and Student lib. 1. cha. 16. 1 Chan. Caʃes 141. Grounds oƒ law and equity 74. ca. 104. Indeed the common law is common rights, common reaʃon, or common juʃtice. Weed: Inʃt. 4.
Were this point brought before a court of common law in England at this day. I have doubts with refpect to what would be the determination. For, it is laid down as law. “ that if a leffee coarnanieth to leave a wood in as good plight as the wood was at the time of the leafe, and afterwards the trees are overturned by tempeft, he is difcharged of his covenant, quia impetontia excuʃat legem. ” 1 Co 98 b. In that cafe, there was an expreʃs covenant ; and altho it was impoffible to reftore the trees in the fame plight in lieu of them. The fame law in Brook covenant. N. 4 Now, was it not equally impoffible for the Defendant to deliver the poffeffion of the premiffes in good repair to the Plaintiffs on the 1ft of March 1778, when they were held by an hoftile army?
In Vaughan's reports, in the cafe of Hayes v. Bickerʃtaʃʃ, pa. 122. it is held, “ that a man‘s covenant fhall not be ftrained fo as to be unreafonable, or that it was improbable to be fo intended, without neceʃʃary words to make it fuch ; for it is unreafonable to fuppofe a man fhould covenant againft the tortious acts of ftrangers impoffible for him to prevent, or probably to attempt preventing.” This was an action brought by the leffee againft the leffor, on his covenant for quite enjoyment. In pa. 119. it is faid, that if the leffor covenants that the leffee fhall hold and enjoy his term, without the entry or interruption of any, whether fuch entry or interruption be lawƒul or tortious, there the leffor fhould be charged, becaufe no other meaning can be given to his covenant. In the cafe before the court, if the leffee had covenanted for himfelf and his affigns, to deliver up the tenements in good order and repair, notwithftanding they fhould be deftroyed by act oƒ God or oƒ an Enemy then this action would certainly lie, becaufe of the ʃpecial expreʃs words; but when there no fuch words, but only generally to repair &c. would it be reafonable to conftrue thefe words fo as to extend to the cafes put? Cannot the covenant in this cafe have another meaning? Can it not b fo conftrued, that the tenements fhould be kept in good repair, and in fuch order delivered up at the end of the term, without any act or default in him, or act of any perfon, who could be profecuted as a wrongdoer, to prevent it ? and notwithftanding common and ordinary accidents might happen?
Perhaps, however, the common law courts in England might think, that they were bound by the ftrict rules of law, on account of the general expreʃs covenant, to determine againft the Defendant, and
