As this case was commenced in a court of law, and has not been removed to another jurisdiction, *122we must take the principles of law for our guide. On such alone we profess to decide it, as it would be novel and irregular to apply equitable considerations to a case not properly constituted in the proper forum. There is no principle or authority which warrants the apportionment of the sum secured by the bond in this case. The distinction is well settled between those covenants implied by law and the obligation created by the act of the party. In the first case, if the party, without default in him, is disabled from performing it, and has no remedy, the law will excuse him. A tenant is liable to waste, but if the house be destroyed by enemies or tempest, he is excused. But if he covenant to repair the house, he is bound by his contract although it should be destroyed by lightning or by enemies, because he might by his contract have stipulated against such liability. In Dyer 33, a lessor covenanted under a penalty to sustain and repair the banks of a river, which were afterwards destroyed by a sudden inundation. It was held that although he was excused from the penalty, he was bound to repair in convenient time. In Allen 20 it was decided that a lessor was liable by his covenant to pay the rent, although he had been driven from the premises by public enemies. These ancient authorities, to which others might be added, have been affirmed by an uniform current of modern decisions. In 2 Str. 763, the tenant was held liable on a covenant to pay the rent, though he had no enjoyment of premises by the default of the lessor, who had covenanted to repair, which he failed to do after the house was destroyed by fire. In 1 Term Rep. 710, Mr. Justice Buller says, “ a lessee is obliged to pay rent, even though the premises should be burned down.” There is no principle of the law better established than that an apportionment of the debt cannot be made in a case of this kind. There must be judgment for the plaintiff.
Executors of Ragland v. Parish Cross, 5 N.C. 121, 2 Car. L. Rep. 121 (1815)
The Executors of Ragland, dec. v. Parish Cross.
This is an action of debt brought upon the bond, which accompanies this case. This bond was given for the hire of a negro. A few months after the hiring, the negro being in the possession of the defendant, and in the ordinary discharge of his duty to the defendant, cut his knee pan with a drawing knife. An inflammation took place and his situation was considered dangerous both by the defendant and the plaintiff’s testator, Frederick Ragland; whereupon Frederick Ragland took the negro to his own house. There is no evidence of any express consent given by the defendant for the removal of the negro to Ragland’s house. The knee mortified and the negro died. The defendant insists that he ought not to be compelled to pay any more of the bond than shall be proportional to the time of service of the negro, and should be relieved from the payment of the residue of the bond, by reason of the death of the negro.
It is submitted to the Supreme Court to decide, whether, upon these circumstances, the defendant is entitled to the relief he insists for, upon any principle of law or equity—and it is agreed that the court shall decide this case in the same way as if the defendant had applied to a court of equity for relief.
The case was submitted without argument.