Sec 319

To the rule that possession by a third party does not constitute impossibility,so as to extinguish liability,the Roman Digly v. Atkinson, 4 Camp. 275, and others of like character, in which there was an express covenant to repair. The learned judge in delivering the opinion said, 'that even when there were such express covenants to repair, it has seemed to some a strained and doubtful construction to extend them to the case of rebuilding.' In Wainscott v. Silvers, 13 Ind. 500, the rule is stated, that the tenant is not responsible for buildings accidentally burned down during his tenancy, unless he has expressly covenanted or agreed to repair. That it is not sufficient to charge him that he agreed or covenanted to surrender the premises at the end of his term in the same repair or condition that they were in at the time of the contract. In Warner v. Hitchins, 5 Barb. 666, the covenant was to surrender up the possession of the premises, at the expiration of the lease, in the same condition they were in at the date of the lease, natural wear and tear excepted. The building was destroyed by fire. In an elaborate opinion, the leading cases in both England and this country were reviewed, and it was held that the covenant did not amount to one to repair, and that the tenants were not bound to rebuild. Mcintosh v. Lown, 49 Barb. 554."

"The cases of leases of real and personal property are very rare. In Buss-man v. Ganster, 72 Penn. St. 285, it is said, obiter: ' Even in the case of a lease of chattels with a house, where the chattels are all destroyed without any fault of the tenant, the better opinion seems to be that it affords no ground for defence pro tanto.' In Fay v. Holloran, 35 Barb. 295, it is said: 'Rent cannot be reserved out of chattels personal. If such chattels are demised with land, at an entire rent, the rent issues out of the land only.' So in respect to a similar lease, it is held in Jones v. Smith, 14 Ohio, 606, that the rent cannot be apportioned between lessor and assignee; but this was where the assignment did not mention the personalty. ' If the plaintiff recover, it is because the rent reserved is in respect to the land, and not increased by the personalty.' To the same effect are Sutliff v. Atwood, 15 Ohio St. 186; Farewell v. Dickenson, 6 B. & C. 251.

"On this point the court in the principal case cite Taverner's case, 1 Dyer, 56, where the lease being of sheep and land, and the sheep died, the rent was apportioned, and conclude: 'Indeed, there would seem to be no just reason for denying apportionment, even though the common law doctrine in respect to leases of real estate be conceded. Mingling real and personal property in a single lease ought not to prevent the accepted rules concerning the hiring of each to be applied whenever application is possible.'" 24 Alb. L. J. 364.

In the Roman law the rule that the pay is to be apportioned to the occupation has application when the occupation becomes impossible in consequence of acts in any way imputable to the owner. L. 55, sec 2, D. locati (19, 2.) • • • If the occupation is only partial, the lessee is not bound to pay the entire rent. Whether he has a right, in case of such partial eviction occurring through casus, to throw up the contract, depends on whether his occupation has been materially hindered. But mere trivial depreciations, though coming through casus, are not cause for abatement of rent; L. 27 pr. D. lolaw recognizes an exception where the thing bargained for is in the possession of a public enemy. The reason is that in such case delivery is impossible, not merely to the person contracting, but to all other persons within the same jurisdiction.1 But under our present system of international law, by which the right of suit is only suspended during war, and revives on peace,2 the Roman rule in this respect must be viewed as modified. Impossibility cannot be predicated of an act which may be possible to-morrow.3 - In England expulsion by a public enemy has been held no defence to an action for rent.4 And it has been held in this country that an exception in a policy of insurance that no action shall be sustained unless begun within twelve months CD after loss, is not expanded by war between the countries of the contracting parties, so as to extend the right to sue till the close of the war.5 But a lessee who was expelled by the military authorities, during the late civil war, from the leased estate, his lessor being in the insurgent territory, was held not liable for rent due for the period during which he was dispossessed.6 - It is a defence to an action against a commou carrier that the goods were seized by a public enemy, or by a pirate appearing in sufficient force to exact submission,7 there being no negligence or default on either side. But if the excati (17, 2); a fortiori not of rescinding of contract. Temporary impossibility, so far as it excludes occupation, is, as long as it lasts, to be placed on the same footing as absolute impossibility, and when the exclusion is for a material length of time, the contract can be rescinded. Mommsen, op. cit. 344. 1 L. 72, sec 1. D. de contr. empt. (18, posure to a public enemy was through the negligence of the party charged, vis major is no defence.1

Exception in ca6e of public war.

1).

2 Infra, sec 473.

3 Mommsen, op. cit. 16.

4 Paradine v. Jane, Aleyne, 26. But see Harrison p. Meyer, 92 IT. S. 111; Bayley v. Lawrence, 1 Bay, 499. That trading with public enemy is illegal during war, see infra, sec 473.

5 Semmes v. Ins. Co., 13 Wall. 15S.

6 Gates v. Goodloe, 101 U. S. 612. As to effect of war in suspending re medy, see supra, sec 305. Pollard v. Schaffer, 1 Dall. 210, rules that destruction of premises by a public enemy excused from contract to deliver up in good repair. See this case distinguished from destruction by fire in Hoy v. Holt, 91 Penn. St. 91.

7 Infra, sec 320, 329; Magellan Pirates, 18 Jur. 18; 25 Eng. L. & Eq. 595; Hubbard v. Harnden's Ex., 10 R. I. 244; Lewis v. Ludwick, 6 Cold. 368; Weakley v. Pearce, 5 Heisk. 401; Nashville, etc. R. R. v. Estis, 7 Heisk. 622; Sugarman v. State, 28 Ark. 142.