case fillip earl OF chesterfield vers Charles duke OF bolton in scacc a  covenant to keep a house in good and sufficient repair and so to leave it bind  the covenantor to rebuild if the house be burn down by accident ld raym burr  this be a action of covenant wherein the plaintiff declare that by a indenture  date the saint of July between whether Vaughan sole daughter and heir of John  late earl of carbery of the first part Scroop earl of Bridgewater Cho earl of  Sunderland Edward William Pawlett and the plaintiff then name Philip dorm  Stanhope of the second sir Thomas Stepney sir Edward Mansell sir Nicholas  William and Griffith rice of the three the defendant then marquis of  Winchester of the four and Richard and John Vaughan of the five part recite  that the late earl of carbery devise his estate in come Carmarthen for year to  Richard and John Vaughan on trust to raise per annum for the maintenance of  his two comens er p sister lady Frances and lady Altham for their life  reversion to his daughter and her heir and that in consideration of a marriage  between her and the defendant she convey to the say earl of Bridgwater  Sunderland Lord William Pawlett and the plaintiff and their heir all the  capital message call golden grove the demesne land park warren c to the use of  the defendant and the say lady whether Vaughan his intend wife after the  marriage for their life and the life of the survivor without impeachment  comens of waste except such waste afterward restrain then to trustee to  preserve contingent estate then to the first and other son of the defendant on  the body of the say lady whether in tail male then to the daughter of the say  marriage then to such use as lady whether by deed or will shall appoint and  for want of appointment to her and her heir the defendant covenant with the  say earl of Bridgwater Sunderland Lord William Pawlett and the plaintiff that  at all time during his life the defendant shall and will sufficient repair and  keep in good and sufficient reparation the say capital message call golden  grove and so leave the same at the time of his decease he be allow to cut  sufficient timber for repair the same and the plaintiff assign the breach that  after the say marriage videlicet on the saint of may and from thence continual  hitherto the say capital message call golden grove and all the building  thereof have be in decay and want good and sufficient reparation and great  part thereof fall down and although the defendant during all the say time be  allow to cut down sufficient timber for repair the same yet he have not repair  the same or any part or keep it in good and sufficient repair the defendant by  leave of the court plead double first that he have repair and keep in good and  sufficient repair the say capital message accord to the form and effect of the  say covenant and thereon issue be join second that before the say saint of may  three four part of the say capital message be burn down and that he repair and  keep it in sufficient repair until in be so burn down and that he have  sufficient repair and keep in repair the residue of the say message that be  not burn down upon which the plaintiff demurrer and it be insist by Mr tailor  counsel of the defendant that by this accident the defendant be excuse from  the repair of the house for as in waste the defendant be excuse by inevitable  accident there be the same reason comens he shall be excuse in covenant if a  man covenant to deliver a horse if the horse die before the time he be excuse  pal and wherever a thing can be deliver in the same plight he will be excuse I    shelly case second and this be the more reasonable since the statute annae c  see this section be make perpetual by the stat Ann c by which it be provide  that no action shall be bring or prosecute against any person in who house any  fire shall begin or arty recompense make by such person for any damage suffer  or occasion thereby in which statute the word be general and must extend to  all persons and it provide that the person who house be accidental burn shall  not make recompense for any damage suffer or occasion thereby and this be the  defendant case for the plea say that the house mention in the declaration be  burn by accident without any default of the defendant three the plaintiff have  not entitle himself to this action of covenant for the covenant be that the  defendant shall repair be allow to cut sufficient timber for repair the same  so that the allowance of sufficient timber be a condition precedent which  ought to appear to have be comply with before the defendant can be charge with  the repair it be true that the declaration aver that the defendant be allow to  cut sufficient timber but do not say that there be any timber to cut and the  plaintiff ought to show every thing requisite to be do on the plaintiff part  previous to his action and if there be no timber the defendant can not nor be  he bind to repair and consequent the plaintiff shall have say that there be  sufficient timber which the defendant be allow to cut down fourthly the  declaration do not show that the plaintiff who be the covenantee have any  interest in the land and consequent that he be prejudice by the house be burn  the house belong to the defendant himself dare his life and it do comens er p  not appear that he bath any son or if he bath he only can be damnified why  then shall the plaintiff comens recover any damage in this case on the other  side it be insist that in this case the defendant have express covenant to  keep the house in good and sufficient repair and therefore be oblige to do  what he have undertake to do be may have except fire as be frequent do and  what reason can there be for such a exception if the party be not otherwise  bind to make good any damage which may happen by fire this therefore be not  like the case of waste where inevitable accident excuse but even in waste the  defendant must repair in convenient time and if blow down by tempest consume  by lightning or destroy by enemy the tenant may take the material which remain  to repair much more where the covenant be express to keep in repair so be die  a where a lease be make of a meadow in which the lessee covenant to sustain  and repair the bank so that the meadow shall not be surround under the penalty  of but by a sudden and outrageous flood occasion by overturn the wear in Devon  the land be drown and the bank demolish by Fitzherbert and Shelly the lessee  be excuse from the penalty as where a house be burn by thunder or blow down by  the wind because it be the act of God which can be resist but yet he be bind  to do it up and repair it in convenient time by reason of his covenant so it  be say in style that the lessee be not Chargeable for waste where a enemy  invade unless he be bind by a particular covenant to keep the land let without  waste in alein in the case of paradine for jane which be a action of debt for  rend the defendant plead expulsion by prince Rupert with a army and it be  resolve to be no plea it be resolve to be a have plea upon the ground of it be  be to a action of debt bring for rend due upon the lease which lie mere upon a  contract between the party to which such collateral matter plead be nothing to  the purpose have it be a action of waste and the waste have be do by prince  Rupert and his soldier such a circumstance may have be plead to bar the  plaintiff style for when a man by his own contract create a duty or charge on  himself he be bind to make it good if he may though a accident by inevitable  necessity happen comens because he may have provide against it by his contract  therefore if a lessee covenant to repair a house which be afterward burn by  lightning or throw down by enemy he ought to repair it so the case of pool for  archer in show skin S c a where there be a covenant to repair and the house be  burn down the lessee plead entry by the lessor the next day after the house be  burn down so that he can not repair and judgement for the plaintiff so in the  case Sti the case of Compton vers Allen be exact in point it be a action of  covenant bring by Compton against Allen his lessee for year upon a covenant of  the indenture for not keep the house let unto he in repair the defendant plead  that the house be burn by casualty the plaintiff demurrer to this plea and for  cause show that the plea be contrary to the defendant express covenant by his  deed and therefore be not good roll chief justice say that a lessee that  covenant to repair ought to do it if the house be burn be it by negligence or  by other mean style p Comton and Allen so Leon Sav S c a so in sand keb S c b  in the case of Walton vers waterhouse in all these case it be determine that  the lessee be bind to repair though the house covenant to be repair be consume  by fire this case be again argue by Mr clark for the plaintiff and by Mr  starke for the defendant and it be insist for the defendant first that the  action be not maintainable against the defendant in this case because it do  not appear that the house call grove place be by settlement limit to the  defendant in possession for there be a term of a hundred year limit to John  and Richard Vaughan on trust to raise per and for his sister and another term  of year limit to trustee for the separate maintenance of the duchess after her  marriage and grove place may be include in one of these term and if so it can  never be the intent that he shall repair it till he come into the possession  of the estate say non allocatur for if this will excuse the defendant it be  incumbent on he to show that it be comprise in one of these term for it shall  not be intend but in case it be so when the defendant have express covenant to  keep grove place in repair he will be oblige to do it although it have be  settle as part of the separate maintenance of his wife a man may oblige  himself by covenant to repair a house in the possession of another comens  second the covenant be that he shall keep in repair not that be shall rebuild  and therefore it can not be the intent of the party to bind the defendant  beyond the common and ordinary repair and not to make a new house if by  accident without the defendant default it shall be burn or demolish say non  allocatur for when the defendant covenant that he will repair and keep in good  and sufficient reparation without any exception this import that he shall in  all event repair it comens er p and in ease it be burn or fall down he must  rebuild it otherwise he do not keep it in good and sufficient reparation and  this be warrant by the case cite which show that the covenantor must rebuild  if necessity require as where the house be burn by fire c three the estate  limit to the defendant be without impeachment of waste and consequent the  covenant to repair be contradictory and inconsistent with it say non allocatur  for the estate be not absolute without impeachment of waste but it be with a  exception except as herein after restrain and it be afterward restrain from  cut tree in walk or ornamental and therefore the covenant to repair be not  inconsistent with the estate give he nor do it follow that if a person have a  estate without impeachment of waste that be may not oblige himself by covenant  to keep up a house upon it in repair fourthly it be not show that there be  sufficient timber allow to the defendant to put the house in repair the  covenant be that the defendant shall repair and keep in good and sufficient  repair he be allow to cut sufficient timber for repair the same that be not in  the walk or ornamental to the say message now this be in the nature of a  condition precedent it ought to be express aver that this be do before the  defendant can be charge with any breach of covenant for not repair it be  indeed say although the defendant be allow to cut sufficient timber for repair  that be not in any walk or otherwise ornamental but that be not full enough  comens for first the word although be no proper or formal averment second it  be not show that there be any timber grow but what be in the walk or  ornamental and it shall have be express allege that there be timber sufficient  beside what grow in the walk or be ornamental to the house it be not enough to  say that he be allow to cut timber if there be none to cut down it be not  sufficient to allege that the defendant find good security unless show who be  the security he give Yelv three it be not say who it be allow he to cut down  the timber and so altogether uncertain this be traversable and what issue can  be join on this averment say non allocatur for it be answer and resolve by the  court that although have be always hold a proper word for a averment and as to  the other part of the objection it be enough to make the averment in the word  of the covenant and in case there be not timber sufficient the defendant may  show it and as that be a matter for his benefit it be incumbent on he to show  it and it shall not be presume and it must be intend that he be allow to take  it by all who can give that allowance judgement upon this plea for the  plaintiff the court determine in the case of monk v Cooper report in ld raym  and Str that a lessee who covenant to pay rend and to repair with express  exception of casualty by fire be liable upon the covenant for rend although  the premise be burn down and not rebuild by the lessor a similar decision and  upon the authority of the above case be give in the case of Belfour v Weston  report in I term Rep p and the law upon the subject be recognize by buller  justice in the case of do v Sandham I term Rep comens er p