Wilmington,

May Term, 1798.

#### Cutlar vs. Potts.

THIS case was again taken up ; and Haywood, justice, was opinion that equity should relieve in cases where the premises are burnt down without the default of the lessee, before the rent day or the expiration of the stipulated cime, upon the ground that when the consideration fails in whole or in part, the obligation built thereupon ceases in proportion.

Judge Stone

thought it politic that the law should be as stated in the Taw authorities cited on the former argument, otherwise a lessee might frequently be tempted to destroy the premises, in order to get dear of his bargain ; the law as laid down in these authorities has the opposite tendency : Lessees have every inducement to take care of the premises, and none to injure them, when they must pay whether the premises are burnt down or not; the value of the rent is a loss that must fall some where, upon the lessee if he pays, upon the lessor if he does not; — and why should that loss fall upon the lessor, who is an innocent man, any more than upon the lessee, who is no better than one innocent man ?