2. THE DOCTRINE OF ULTRA VIRES, when invoked for or against a corporation, will not be allowed to prevail when it would defeat the ends of justice or work a legal wrong.

3. AN AGREEMENT MADE BY AN AGENT BEYOND HIS AUTHORITY, THROUGH COMPULSION and under protest will not affect the principal.

4. ESTOPPEL ASSIGNING DIFFERENT REASONS FOR BREACH OF CONTRACT.-Where the defendant first gave as a reason for not forwarding certain cattle on Sunday, that he had not the requisite number of cars, and afterwards claimed that the law of the state forbade the shipment of cattle on Sunday: Held, that he was estopped from raising the latter objection. Where a party gives a reason for his conduct touching any thing involved, in a controversy, he can not, after litigation has begun, change his ground, and put his conduct upon another and different consideration.

In error to the Circuit Court of the United States for the Eastern District of Missouri.

Mr. Justice SWAYNE delivered the opinion of the court:

The defendant in error was the plaintiff in the court below. He brought this action to recover damages from the railroad company for alleged breaches of a contract entered into by the parties on the 23d of September, 1873, for the transportation by the company of sixteen car-loads of cattle from East St. Louis to the city of Philadelphia. It was stipulated that McCarthy should have the entire care and charge of the cattle during the trip; that he should load and unload them; that the company should be deemed forwarders and not common carriers, and that it should be liable only for loss or injury caused by its gross negligence. The cattle were shipped accordingly at East St. Louis, under the care of Hensely, an employee of McCarthy. They were transported thence by the defendant's road to Cincinnati, thence by the Marietta and Cincinnati road to Parkersburg, in West Virginia, and thence by the Baltimore and Ohio road to Baltimore. There the performance of the contract terminated. The plaintiff gave evidence tending to prove the following state of facts: Between East St. Louis and Cincinnati there was unnecessary delay and serious injury to the cattle arising from the gross negligence of the company's servants. At Cincinnati Hensely sold forty of the cattle. This was done because, by reason of the injuries they had received, they were unfit for further transportation. Between Cincinnati and Parkersburg there was further unnecessary delay arising from the same cause which produced it between East St. Louis and Cincinnati. The cattle arrived at the latter place five hours behind the proper time. Hensely insisted that they should be shipped for Baltimore on the morning of the next day, which was Sunday. The Baltimore company received but refused to forward them until Monday morning, and refused to ship them at all until Hensely signed a new and onerous contract, touching their transportation upon the Baltimore road. He at first refused, but there being no other means of transportation east, he was constrained to submit, and signed under protest. The defendant company gave evidence tending to contradict the plaintiff's evidence on all these points. It was ex

"was

pressly proved that the Baltimore company not able to send the cattle out of Parkersburg on Sunday, because they had not the necessary cars therefor at the time, and that they were sent at the first opportunity, which was on Monday morning." The evidence as set forth in the bill of exceptions is wholly silent as to any other reason for not making the shipment on Sunday.

The testimony being closed, the company's counsel submitted sundry instructions and prayed that they should be given to the jury. A part were given and a part refused. Proper exceptions were taken as to the latter. Finally the court instructed the jury at large according to its own views.

There is no question presented in the record as to the sufficiency of the pleadings or the admission or rejection of testimony. The exceptions and the assignments of error are confined to the instructions refused and to those given by the court sua sponte.

It has been repeatedly determined by this tribunal that no court is bound to give instructions in the forms and language in which they are asked. If those given sufficiently cover the case and are correct, the judgment will not be disturbed, whatever those may have been which were refused. We have examined the charge of the learned judge who tried the case below, and are entirely satisfied with it. It was full, clear, and unexceptionable. It submitted the case well and fairly to the jury, and was quite as favorable to company as the company had a right to demand. We have found no error in it.

There are a few points, and only a few, to which we deem it necessary particularly to advert.

The suit was well brought by McCarty. The only testimony as to the ownership of the cattle was given by him. He said, "William Hensely besides myself was interested in the cattle. He had a half-interest in the profits. I was the owner." If Hensely had been joined with McCartey as a plaintiff, there must, upon this testimony, have been an amendment, by striking his name from the record, or the action must have failed. The facts called for no instruction, and the court properly refused to give any.

The contract with the defendant was for the transportation of the cattle the entire distance they were to go. It was stipulated that the company would forward "16 cars more or less from East. St. Louis to Philadelphia, at the rate of $130 per car, which is a reduced rate made expressly in consideration of this agreement." No other company was named, there was no mention of compensation to any other party, and nothing was said of a change to the cars of any other company on the way. Such corporations, unless forbidden by their charters, have the power to contract for shipments the entire distance over any connecting lines. Railroad Co. v. Pratt, 22 Wall. 123, is conclusive in this court upon that subject. The principle is so well settled in this country that a further citation of authorities in support of it is unnecessary. Such is also the rule of the English law. Both here and there the company is liable

in all respects upon the other lines as upon its own. In such cases the public has a right to assume that the contracting company has made all the arrangements necessary to the fulfillment of the obligations it has assumed. Railway Co. v. Blake, 7 H. & N. 987; Buxton v. R. R. L. R., 3 Q. B. 549; Weed v. R. R., 19 Wend. 534; Knight v. R. R., 56 Maine 240. When a contract is not on its face necessarily beyond the scope of the power of the corporation by which it was made, it will, in the absence of proof to the contrary, be presumed to be valid. Corporations are presumed to contract within their powers. The doctrine of ultra vires, when invoked for or against a corporation, should not be allowed to prevail where it would defeat the ends of justice or work a legal wrong. Union Water Co. v. Murphey's Co., 22 Cal. 620; Morris R. R. C. v. R. R. Co., 29 N. J. Eq. 542; Whitney Arms Co. v. Burton, 63 N. Y., 62. There is no conflict in the evidence as to the terms of the contract. It is all one way and leaves no room for doubt.

The contract contains some provisions in favor of the company, to which we have not. adverted. They do not appear to have been challanged in the court below, and have not been here. They are, therefore, not before us for consideration, and we pass them by without remark.

It does not appear that Hensely had any authority to enter into the contract forced upon him at Parkersburg. The original contract included the Baltimore road. The Parkersburg contract could not, therefore, in any wise, affect his rights with respect to the defendant. The court instructed the jury properly on the subject. It must be laid out of view as an element in the case.

The question made by the company upon the Sunday law of West Virginia does not, in our view, arise in this case. We have already shown that the defendant proved upon the trial that it was impossible to forward the cattle on Sunday, for want of cars. And it is fairly to be presumed that no other reason was given for the refusal at that time. It does not appear that anything was then said as to the illegality of such a shipment on the Sabbath. This point was an afterthought suggested by the pressure and exigences of the

case.

Where a party gives a reason for his conduct and decision touching anything involved in a controversy, he can not, after litigation has begun, change his ground and put his conduct upon another and different consideration. He is not permitted thus to mend his hold. He is estopped from doing it by a settled principle of law. Gold v. Bank, 8 Wend. 567; Holbrook v. White, 24 Id. 169; Everett v. Salters, 15 Id. 474; Wright v. Reed, 3 Dunford & East. 554; Duffy v. O'Donovon, 46 N. Y. 223; Winter v. Coit. 3 Selden, 294. The judge below committed no error in refusing to charge as requested upon this subject.

The judgment of the circuit court is affirmed.

WILLIAM G. CHOATE, of New York, has been confirmed by the Senate as Judge of the United States District Court, in place of Judge Blatchford.

1. CHATTEL MORTGAGE CONTEMPORANEOUS AGREEMENT. A chattel mortgage and a written agreement to govern the same subject-matter between the parties executed contemporaneously must be treated as one contract.

2. MORTGAGOR APPLYING PROCEEDS.-A chattel mortgage permitting the mortgagor to remain in possession, and to sell and apply the proceeds, or any part of them, to his own use, is fraudulent and void in law as against creditors.

Prior to August, 1874, Geo. C. Farnham & Co., were trading at Neillsville, in Clark County. They became embarrassed in business, and transferred their stock of goods to their attorney, B. F. French. Two of the partners, Boardman and Palmer, had retired from the firm, leaving Farnham to carry on the business in his own name, and he was then trying to compromise with his creditors. On the 7th of August, Farnham called on Blakeslee, the plaintiff, and two others, to get them to endorse his paper, to enable him to carry out his compromise with his creditors. An arrangement was made, and said parties endorsed Farnham's paper to the amount of $8,017.79.

Before the arrangement, Farnham seems to have bought out his partners and to have given his individual paper to the plaintiff and the two others who endorsed his compromise notes for $10,000, due in eighteen months. Farnham executed to them a chattel mortgage on his stock, to secure the last mentioned sum, "and also all goods, wares and merchandise which shall be purchased and added to the present stock during the existence of this mortgage." At the same time, and as a part of the transaction, the parties to the mortgage executed a contract in which it was agreed that one-half of all the proceeds of notes and accounts then in Farnham's possession, amounting to about $5,000, should be applied in payment of the endorsed notes above mentioned; and also that Farnham should deposit with one W. C. Allen, "one-half of all the proceeds from the sale of goods in said store, to be deposited weekly, and a full statement of said notes and deposits rendered to said secured party every week." It was understood that one-half the proceeds of sales, etc., was to be deposited to meet the maturing notes, and the other half to keep up the stock, etc.

The execution under which defendant as sheriff took possession was for a debt incurred by Farnham, subsequent to the above transactions, for goods which he purchased to keep up his stock. S. N. Dickson, for plaintiff and respondent; O'Neill & Sheldon and Gregory & Pinney, for defendant and appellant.

RYAN, C. J., delivered the opinion of the court:

The chattel mortgage and accompaning agreement, contemporaneously executed, to govern the same subject matter between the parties must be taken together and dealt with as one contract. Elmore v. Hoffman, 6 Wis. 68; Norton v. Kearney, 10 Wis. 443. So taken, they give a mortgage by a merchant to creditors of his entire stock of goods, licensing the mortgagor to remain in possession and dispose of the goods in the course of his trade, applying one-half of the proceeds of the sale toward his liability to the mortgagees. No provision is made in either paper for the disposition of the other half, which is, therefore, left at the absolute disposal of the mortgagor for his own use.

It was vain for the respondent to say that the mortgage contains no express agreement for the mortgagor's use of one-half of the proceeds. The silence of the mortgage gives him the right as effectually as express agreement could. Having applied one-half to the use of the mortgagees, and made no provision for the other, the mortgage leaves that absolutely with the mortgagor. He might hold it in money or lend it, or invest it at his pleasure, without breach of contract with the mortgagees who take no right under the mortgage to it or over it. He made the mortgage for payment of one-half only of the proceeds while he should remain in possession. He retained the other half as effectually as he would have retained half of the goods had he mortgaged but half.

It is quite unnecessary to consider what may be the rule elsewhere, though it is very generally, if not universally, the same as here. The validity of such a mortgage is not an open question in this state. A chattel mortgage permitting the mortgagor to remain in possession, to sell and apply the proceeds, or any part of them, to his own use, is fraudulent and void in law as against creditors. Place v. Langworthy, 13 Wis. 629: Steinart v. Deuster, 23 Wis. 136.

There is another objection to the mortgage which might be sufficient of itself to avoid it. Secret liens on chattels remaining in possession of the owner are against the policy of the law. For this reason, when possession remains in the mortgagor, a chattel mortgage must be put on record to give it effect against creditors of the mortgagor. The mortgage should therefore fully disclose the consideration upon which it goes and the nature of the lien given. It appears here that the mortgage itself was put on record, but not that the accompanying agreement was. It is quite evident that the mortgage of itself not only did not disclose the true nature of the transaction, but was calculated to conceal it and to mislead without notice of the accompanying agreement. The mortgage itself purports to cover the entire stock for money lent to the mortgagor, while the agreement discloses that it is in effect a mortgage of half the stock for indemnity against liabilities assumed by the mortgagees. This alone might avoid the mortgage as against creditors. Butts v. Peacock, 23 Wis. 359.

But we prefer to rest our judgment on the ground first stated. The license given to the

mortgagor to retain half the proceeds and use them at his pleasure, makes the written contract of the parties fraudulent and void in law as against creditors; absolutely void as to them, beyond all aid from extrinsic facts. Parol evidence can make it neither better nor worse. Intent does not enter into the question. Fraud, in fact, goes to avoid an instrument otherwise valid. But intent, bona fide or mala fide, is immaterial to an instrument per se fraudulent and void in law. The fraud which the law imports to it is conclusive. So a fraudulent agreement of parties by parol goes as fraud in fact to impeach a written instrument valid on its face. Fraud, in fact, imputed to a contract, is a question of evidence; not fraud in law. And no agreement of the parties in parol can aid a written instrument fraudulent and not void in law. Wood v. Lowry, 17 Wend. 492; Elgell v. Hart, 9 N. Y. 213; Robinson v. Elliott, 22 Wall. 513. We doubt whether the parol understanding as to the disposition of the other half of the proceeds with which the respondent undertook to supplement the written contract, would have redeemed from the taint of fraud in law, if inserted in it. But it is very certain that the attempt to show it in aid of the mortgage was an attempt to vary the written contract by parol This appears too familiar to need even statement, much less discussion. And yet the elementary principle appears to have been overlooked in the court below.

Apparently apprehensive of its validity the respondent tried to purge his title of the fraudulent mortgage. He undertook to show that the mortgagor voluntarily surrendered possession to the mortgagees, his creditors, without respect to the mortgage. Whether he claimed such surrender as a payment, or as a pledge, is left uncertain. And the very uncertainty goes to disprove either. Indeed, there is a strong presumption that this was an afterthought. All the evidence of the circumstances of the transfer of possession exclude such a theory. The mortgagor appears to have been hopeless of going on with his business and willing that the mortgagees should take possession, but unwilling voluntarily to surrender it. He thought it would look better for him that the sheriff should take possession under the mortgage. And so the mortgagees employed the sheriff to take possession, giving him a copy of the mortgage; and the sheriff, with the copy and under it, surrendered and received possession from the mortgagor, and delivered it over to the mortgagees. The act of the sheriff was, of course, unofficial; he was the mere agent of the mortgagees. So that, as matter of fact and of law, the mortgagees took possession under the mortgage, as was their right as between them and the mortgagor. Frisbee v. Langworthy, 11 Wis. 375; Heubner v. Koebke, decided at the present term. We do not hold that the holder of a chattel mortgage may not relinquish his right under it, and accept the mortgaged goods from the mortgagor in payment of his debt or as a pledge. Such a transaction might be upheld in a proper case. But we do hold that such a shifting of title must be open,

express and explicit as open, express and explicit as the mortgage itself-and that one who takes possession of chattels, apparently under a mortgage, can not, when the mortgage fails him, shift his right of possession, by vague evidence of implied understanding, to payment of his debt as to a pledge for it. Both debtor and creditor must expressly be parties to either payment or pledge. And either must be established by the acts of the parties at the time, as expressly and satisfactorily as payment or pledge in any other case. Here there is no such evidence. And the subsequent course of the respondent in selling the goods under the mortgage, himself becoming the purchaser, for the evident purpose of changing his title as mortgagee in possession to title as owner, is quite inconsistent with previous possession upon either payment or pledge. The respondent fails to establish any prima facie right of possession, except under the mortgage.

The charge of the learned circuit judge of the court below does not go upon any shift of respondent's title from under the mortgage, It recognizes the mortgage throughout as the foundation of the respondent's right. But it appears inadvertently to confound fraud in fact and fraud in law, as affecting the mortgage. The learned circuit judge charged the jury that the mortgage is void on its face; that is, void in law. But he proceeds, nevertheless, to submit the good or bad faith with which the mortgage was executed, as a question of fact for the jury, instructing them that it is valid if executed in good faith, invalid if executed in bad faith.

Without expressly saying it, the charge seems to imply, as was argued here, that possession of the mortgagees, under the mortgage, would operate to cure the fraud imputed to it by law. It is a novel and startling proposition that possession under an instrument of title can be better than the instrument of title itself. But, strange to say, there is authority for the position. Read v. Wilson, 22 Ill. 877; Brown v. Webb, 20 Ohio 389. In each of these cases a chattel mortgage appears to be held void in law, but possession under it good as against creditors.

In neither of those cases, nor in this, would mere possession by the mortgagor before maturity of the mortgage, proprio vigore, import fraud in fact or in law. And so the validity of the mortgage does not rest on the mere fact of possession in either mortgagor or mortgagee. It is the fraudulent provision for possession which taints the mortgage with fraud, and makes it void as against creditors. The judgment of law goes upon construction of the paper, without inquiry of fact outside of the paper. As against creditors the paper is void from the beginning, and remains void always. No change of possession can purge it of the fraudulent provision, or operate to make that valid which was void before. Before and after possession taken, the title of the mortgagee rests equally on his mortgage, and the question between him and creditors of his mortgagor, is equally upon the validity of his paper title. The title accompanies the possession and enters into it, and

the possession rests upon the title. The mortgagee's possession under the mortgage is just as good or as bad as the mortgage itself; and no court possesses power to transmute a void mortgage into a valid pledge. Robinson v. Elliott,

supra.

It is true that upon the default of the mortgagor the legal title to the chattels mortgaged is held to vest in the mortgagee; but under a mortgage like that here, it is legal title sub modo. The mortgagee can not apply the subject of the mortgage in absolute payment of his debt. He must sell it, applying the proceeds to his debt, and accounting for the surplus to the mortgagor. And so his title and possession are executory, very much like a sheriff's upon execution. He must justify his possession, and the execution of the duties of his possession, like a sheriff. And he can no more do so as against creditors upon a mortgage void as to them, than a sheriff can justify his possession and proceeding upon void process.

The radical error, perhaps, in the cases cited for the respondent, more apparently so in the case in Illinois, seems to rest upon the theory that provision for disposal of the mortgaged goods by the mortgagor to his own use, is indeed fraudulent and void in and by itself, but does not taint the entire mortgage with fraud; and that possession once taken by the mortgagee operates to purge the mortgage of the fraudulent provision. We need not cite authorities to show that a fraudulent provision for possession and use by the mortgagor infects the entire mortgage, and avoids it wholly as to creditors.

If it were imputed as fraud in fact against a mortgage fair on its face, that the mortgagee had suffered the mortgagor to sell the goods mortgaged, and dispose of the proceeds to his own use, possibly subsequent possession taken by the mortgagee might go to uphold his good faith, and to rebut fraud in fact. But nothing which a party claiming under a title fraudulent and void in law can do will go to better his title. While in possession under a void title, he may sometimes acquire another which is valid. But we recall no way in which possession is held to be better than the title under which it is taken, except by operation of the statute of limitations.

It is not necessary to comment on the respondent's sale to himself. It could not better his title, however made. As made it appears to be a mere nullity.

As there seems to have been confusion in the case between fraud in fact and fraud in law, it is perhaps proper to add that our judgment, proceeding upon fraud in law, imputes fraud in fact to none of the parties.

The judgment is reversed, and the cause remanded to the court below for a new trial.

IN a New York court-room the other day, a lawyer asked a witness: "I believe you have been a preacher. in your day?" To which the witness replied: "I once preached from the text: 'Woe unto you, lawyers, scribes, Pharisees, hypocrites; how shall ye escape the dominion of hell?'"

DIGEST OF DECISIONS OF THE SUPREME COURT OF THE UNITED STATES.

October Term, 1877.

PRACTICE-APPEAL — TAKING SECURITY.—“ None of the objections to this appeal are, in our opinion, well taken, except the one which relates to the approval of the bond. That, we think, must be sustained. The security required upon writs of error and appeals must be taken by the judge or justice. Rev. Stats. sec. 1,000. He can not delegate this power to the clerk. Here the approval of the bond was by the clerk alone. The judge has never acted, but as the omission was undoubtedly caused by the order of court permitting the clerk to take the bond, the case is a proper one for the application of the rule by which this court sometimes refuses to dismiss appeals and writs of error, except on failure to comply with such terms as may be imposed for the purpose of supplying the defects in the proceedings. Martin v. Hunter's Lessee. I Wheat. 361; Dayton v. Lash, 94 U. S. 113."-O'Reilly v. Edrington. Appeal from the Circuit Court of the United States for the Southern District of Mississippi. Opinion by Mr. Chief Justice WAITE. Amendment allowed.

UNITED STATES STATUTES AS TO AGREEMENTS OF SEAMEN. 1. The provision of the United States Statutes (R. S., § 4511), requiring the agreements of seamen to be signed in the presence of a shipping commissioner, refer only to the agreements described in section 12 of the original act; nor does it include those which are excepted from the operation of section 12 by the second proviso to the same section, nor either of the three cases excepted by the amendatory act. 2. "Beyond all doubt that amendment and the twelfth section of the original act must be read together in disposing of the present case, as the amended act was passed before the supposed wrongful act of the respondent was committed. When those two provisions are read together, it is an easy matter to specify the cases in which shipping commissioners must act, or in which the agreement of the seamen is required to be signed in the presence of such a commissioner. They are as follows: (1) Where the ship is bound from a port in the United States to a foreign port, not including the ports of the British provinces, or the ports of the West India islands, or the Republic of Mexico, or lake-going vessels touching at foreign ports. (2) Ships of seventy-five tons burden or upward bound from a port on the Atlantic to a port on the Pacific, or vice versa."-United States v. Brig Grace Lathrop. Appeal from the Circuit Court of the United States for the District of Massachusetts. Opinion by Mr. Justice CLIFFORD. Decree affirmed.

RESULTING TRUSTS LIMITATION.-It is an undoubted rule of law in Pennsylvania, that a resulting trust in land, if not sought to be enforced for a period of twenty-one years, and if not reaffirmed or continued, will, under ordinary circumstances, be extinguished. This rule is especially applicable where the party having the legal title, has, during the requisite period of twenty-one years, been in notorious and adverse possession, paying the taxes and exercising all the usual rights of ownership, and his title has, for the whole period, been on record in the proper office. A lea ing case is Stimpfler v. Roberts, 6 Harris, 283, which adopts the general rule, that a resulting trust, resting in parol, is to be regarded as extinguished after the lapse of twenty-one years. This case has frequently been affirmed by subsequent cases cited in the defendant's brief. In Fox v. Lyon, 9 Casey, 481, it is said: "In Stimpfler v. Roberts, it was decided, on great consideration, and reaffirmed in Brock v. Sayage, 7 Casey, 421, that, where a warrant is issued to one person, and the purchase-money is paid by another, and the patent is afterwards taken out by the

nominal warrantee, the right of him who paid the purchase-money is gone, unless he takes possession of the land, or brings ejectment to recover it, within twenty-one years from the date of the warrant; and after that lapse of time he can not recover, no matter how clearly he may be able to prove that the legal owner was in the beginning a trustee for him." And this decision was followed and reaffirmed in the subsequent cases of Halsey v. Tate, 2 P. F. Smith, 311, and in Lingenfelter v. Richey, 12 P. F. Smith, 123. In the latter case, it was claimed that a deed absolute on its face, was nevertheless in trust. The court, following and relying on the case of Stimpfler v. Roberts, and other cases to the same effect, with reference to the parties claiming the benefit of the said trust, said; "As they claimed title to the land against the express language of the deed, they were bound to show by clear and satisfactory evidence that there was a resulting trust in favor of Sparks, and that he had taken such possession of the land, or exercised such exclusive acts of ownership over it, within twenty-one years from the time the trust arose, as would prevent its extinguishment.-King v. Pardee. In error to the Circuit Court of the United States for the Western District of Pennsylvania. Opinion by Mr. Justice BRADLEY. Judgment affirmed.

SOME RECENT FOREIGN DECISIONS.

"COVENANT "-PROVISO - CONDITION - STIPULATION-FORMAL WORDS UNNECESSARY TO CONSTITUTE A COVENANT.-Brooks v. Drysdale, English High Court. Chy. Div., 26 W. R. 331.-An agreement for the sale, by the defendant to the plaintiff, of a public house, contained a clause by which the plaintiff was to take the lease held by the defendant, "subject to the performance of the covenants thereby reserved and contained, such covenants being common and usual in public houses." It subsequently appeared that the defendant's lease contained a proviso or condition in these words, "Provided always, and these presents are upon this express condition, that all and every underlease, deed of assignment, &c., which shall be made and executed during the term, shall be left with the solicitor of the ground landlord within two months of its date for the purpose of registration, and a fee of one guinea paid for such registration," and the plaintiff refused to complete the purchase and sought to recover back his deposit. Held, that whether the clause in question amounted strictly to a "covenant" or not, it was included in that term in the agreement between the plaintiff and the defendant, the words being used generally. Held, further, per Grove, J., that the clauses amounted to "a covenant" in the strict sense of the word.

LESSOR AND LESSEE-USER BY TENANT-COVENANT BY LESSOR TO REPAIR-WASTE.-Saner v. Belton. English High Court of Justice, Chy. Div., 26 W. R. 394.-A lessor covenanted to keep the main walls and timbers of a warehouse in repair. There was a proviso for abatement of rent in case the premises became untenantable through "flood, fire, storm, tempest, or other inevitable accident." The warehouse had been seriously damaged during the user of the defendant the lessee, but such user was not proved to have been improper. The lessor had entered and spent some time in doing extensive repairs. Held, that the lessor's covenant to keep in repair amounted to a covenant to put and keep in repair with regard to the class of tenement demised; and that, therefore, having regard to the user proved he had no right of action against the lessee for waste. But sem• ble, in the absence of such covenant, no user of a tenement which is reasonable and proper, having regard