the rent, or out of his covenant to pay it. It is therefore advisable for the tenants to make the best terms they can with him.

J. DUNNING.

I am of opinion Stump and Geare are liable by virtue of their covenant to pay the rent now in arrear; and alfo all the future rent till the expiration of the term, though the premiffes. fhould remain in the condition they are, and I apprehend Stump, cannot, either at law or in equity, compel Mr. Beer to rebuild after the offer Mr. Beer has made to take back the eftate. If there be nobody in poffeffion, then Mr. Beer muft proceed under the 4th George 2d laying the demife in the ejectment fubfequent to the time the rent became in arrear. JA. WALLACE.

I am of opinion that Mr. Orwry can have no remedy against Mr. Stump, there being no covenant in the leafe, which can in any fhape be conftrued to import an obligation on the part of Mr. Stump to rebuild in cafe of fire, which is a lofs, that if not specially excepted, would naturally fall upon the tenant and not upon the landlord. No man is liable to make good any damage unless he has undertaken to do so, or has by fome act of his occafioned the lofs, neither of which is the prefent cafe. The fame reasoning applies to the cafe of Mr. Beer the original

original leffor, except his having received the infurance can make any difference, and I doubt much whether it can, because the interest he had in the building, after the expiration of the term is a property that he was intitled to cover by an infurance, and paying the premium he has infured for himself and not for the tenant. The rent remains still due at law, but I incline to think that a court of equity would interpofe in favour of the tenant to relieve against the payment of rent whilft the premiffes remain in ruins. If Mr. Stump and Mr. Orwry can have any further relief, which I think very doubtful, it can only be in this fhape, to file a bill to reftrain Mr. Beer from recovering the rent, offering to contribute as much as together with the one thousand pounds received by Beer will put the premisses in the condition that they were in before the accident, and praying that he may be decreed to pay over the thousand pounds for that purpose. If they think it worth while to pursue this plan, it seems to me an equitable mode of restoring the interests of all the parties, and I should think the experiment worth the trial, though I know no authority that can infure fuccefs. ALEX. WEDDERBURN.

No. III.

14 Nov. 1732,

How far the Leffee of Premiffes deftroyed by Fire (when there is no Exception in the Lease in reSpect to that Casualty) is liable to answer Damages to the Leffor.

B

Y INDENTURE of leafe the Company of Apothecaries, in confideration of one hundred pounds fine, and four hundred pounds and upwards, laid out in repairs, &c. demifed to Samuel Bridgman a piece of ground and fix meffuages and ail other buildings thereupon erected, or which at any time thereafter during the term demifed fhould be erected and built with the appurtenances, with the crane and wharf, to hold from Christmas then next for twenty four years, at the yearly rent of two hundred pounds clear of all taxes, with the ufual covenant (amongst others) for the tenant at all times during the term to repair the meffuages, &c. thereby demifed or mentioned, or intended to be thereby demifed with their appurtenances, and being fo well and fufficiently repaired, &c. to leave the fame at the end of the term, together with all clofets, doors, &c. and other things which then were or at any time within the said term fhould be made or fet up in or about the premiffes, good, fafe, whole, and undefaced, reasonable use and wearing thereof in the mean time only excepted.

Mr.

Mr. Bridgman at his own charge afterwards built another houfe on faid premiffes, and not being excepted from fire, had one thousand three hundred pounds infured on the faid buildings in the Hand-in-Hand Fire Office, but the crane and a counting houfe were not included therein.

Mr. Bridgman afterwards granted a leafe of a house with the crane and counting houfe, part of faid premiffes to Mr. Difton, who either affigned the fame or granted an under-leafe thereof to Mr. Howell.

Mr. Howell it is fuppofed thinking the five hundred pounds then infured on the house in his poffeffion not fufficient in case of an accident by fire, as Mr. Bridgman had made confiderable improvements therein, applied to faid fire office to have one hundred pounds more infured thereon, which they complied with.

In February 1756, (being about three quarters of a year before the expiration of the lease,) all the buildings standing on the demifed premifes were burnt down.

Soon after this accident, Mr. Bridgman's widow and executrix propofed that if the Company would accept a furrender of their lease, fhe would pay them the whole infurance money if Mr. Howell would pay her the fix hundred pounds he had received, but he refufing to pay any more than five hundred pounds, the 3 R 4 treaty

treaty was dropt, and now Mrs. Bridgman abfolutely refuses to pay the Company any more than one thousand pounds, alledging the is only obliged to answer in damages the value of the houses at the time the fire happened, which, exclufive of the house built after the commencement of the leafe, and for which she is not obliged to answer any damages, did not exceed that fum, and that the infurance money is not the true measure of the damages; for if the houses had only been infured for half their value, it could not be supposed the Company would have accepted the money, but expected their full value, and by the fame rule if they have been insured for more, the Company ought not to expect the furplus, or that at least she ought to have an allowance out of the insurance money, of the money insured on the house built by Mr. Bridgman, and the rent accrued due after the accident, but the Company think the true measure of damages ought to be the whole money infured, for as the office have their election either to pay the money or rebuild, it must be supposed the houses were of the full value of the money insured, otherwife the office would have rebuilt them, and tenants have no pretence to be gainers by fuch an accident; for if that were the cafe it would induce them to fet their houfes on fire, which no court will encourage, and that as Mrs. Bridgman would have been obliged to

deliver