126 HARVARD LAW REVIEW. where the lessee expressly covenanted to pay the rent he must keep his covenant, though the leased property suffered injury by acci- dent.^ In the present century the landlord has been allowed to and Urovin, Justices, that the rent should be apportioned because there is no default in the lessee. The statements in this case as to the effect of gain by the sea or burning by wildfire are cited in the leading case of Paradine v. Jane, Aleyn, 26, and frequently since, as authority, but it certainly does not appear what view the majority of the court held. In Rolle's Abridgment, 236, it is said that if a man leases land and part is surrounded by fresh water, there will be no apportionment because the tenant shall have the fish and may be expected to regain the land. So if the land is burned over by wildfire, but if part of the land is surrounded by salt water, there will be an apportionment, because any one may fish in the water, and there is no reasonable possibility of regaining the land. The substance of this is repeated in 6 Bacon's Abridgment (6th ed.), 49, 50, and in Chief Baron Gilbert's treatise on Rent, 186, 187 (1758). But see the case of Paradine V. Jane, Aleyn, 26, in the following note. 1 Paradine v. Jane, Aleyn, 26, was an action of debt on a lease rendering rent. The defendant pleaded that Prince Rupert, an alien enemy with a hostile army, had expelled him and kept him out of possession. This was held insufficient. " And this difference was taken, that where the law creates a duty or charge, and the party is disabled to perform it without any default in him, and hath no remedy over, there the law will excuse him ; . . . but when the party by his own contract creates duty or charge upon himself, he is bound to make it good, if he may, notwithstanding any accident by inevitable necessity because he might have provided against it by his contract. And therefore, if the lessee covenant to repair a house, though it be burnt by lightning, or thrown down by enemies, yet he ought to repair it. Dyer 33 «, 40 E. 3. 6. h. Now the rent is a duty created by the parties upon the reservation, and had there been a covenant to pay it, there had been no question but the lessee must have made it good, notwithstanding the interruption by enemies, for the law would not protect him beyond his own agreement, no more than in the case of reparations. This reservation then being a covenant in law, and whereupon a covenant hath been maintained (as Rolle said), it is all one as if there had been an actual covenant." After this it seems not to have been doubted that at least if the tenant had covenanted to pay rent he would not be excused at law. Monk v. Cooper, 2 Ld. Ray. 1477 > s. c. 2 Strange, 763; Shubrick v. Salmond, 3 Burr. 1637, 1640; Pindar v. Ainsley (Lord Mansfield, 1763), i T. R. 312; Belfour v. Weston, i T. R. 310, Baker v. Holtpzaffell, 4 Taunt. 45 ; Izon v. Gorton, 5 Bing. N. C. 501 ; Arden v. Pullen, 10 M. & W. 321. And the law in this country is generally the same. Osborn v. Nicholson, 13 Wall. 654, 660; Warren v. Wagner, 75 Ala. 188; Cowell v. Lumley, 39 Cal. 151 ; Robinson V. L'Engle, 13 Fla. 482; Coy v. Downie, 14 Fla. 544; White v. Molyneux, 2 Ga. 124; Lennard v. Boynton, 11 Ga. 109; Pope v. Garrard, 39 Ga. 471 ; Peck v. Ledwidge, 25 111. 109 ; Smith v. McLean, 22 111. App. 451, 454 ; Womack v. McQuarry, 28 Ind. 103; Skillen v. Waterworks Co., 49 Ind. 193, 198 ; Harris v. Heackman, 62 la 411 ; Redding V. Hall, I Bibb 536; Helburn z/. Mofford, 7 Bush, 169; Lamott v. Sterett, i Har. & J. 42; Fowler v. Bott, 6 Mass. 63; Kramer v. Cook, 7 Gray, 550, 553; Gibson v. Perry, 29 Mo. 245 ; Hallett v. Wylie, 3 Johns. 44; Gates v. Green, 4 Paige Ch. 355; Patterson V. Ackerson, i Edw. Ch. 96; Howard v. Doolittle, 3 Duer, 464; Graves v. Berdan, 26 N. Y. 498, 500; Hilliard v. New York, &c. Co., 41 Ohio St. 662; Harrington v. Wat- son, II Ore. 143; French v. Richards, 6 Phila. 547 ; Diamond v. Harris, 33 Tex. 634; Cross V. Button, 4 Wis. 468. But the law is otherwise .in South Carolina, Ripley v.
