Magaw v. Lambert ( 1846 )

Per Curiam.

It is impossible to see what payment of the loss by the insurance company had to do with the payment of the rent by the tenant. It was not the rent which was insured, but the premises out of which it issued; and the tenant could not say the company had paid it for him. Nor was the misapplication of the charity fund for the relief of indigent sufferers by the fire, a better ground of defence. The committee of distribution ought possibly to have relieved the tenants of rented property in preference to their landlords; but that is a matter which, resting as it did in their discretion, cannot be drawn into view. The evidence of these matters, therefore, ought to have been excluded. The question on the merits is one of fact, and not of law. If the landlord took possession of the ruins for the purpose of rebuilding without the consent of the tenant, it was an eviction of him : if with his assent, it was a rescission of the lease ; and, in either case, the rent was suspended. On this plain ground the point ought to have been submitted.

Judgment reversed, and venire de novo awarded.