held in De Bolle v. The Penna. Ins. Co., 4. Whart. 68; yet it may be sued and recovered upon to the use of the parties to whom the money was to be paid, and the court will so control the execution upon the judgment as that it shall be eventually appropriated as agreed upon.

The 3d error assigned is to the refusal of the learned judge to charge as requested in the defendant's 2d point, that this suit had been prematurely brought, because the obligation to pay by the defendants did not accrue and become due until the expiration of the term granted by the lease. This proposition proceeds upon the idea that the payments stipulated to be made were in the nature of rent, and no time being expressly fixed were not payable until the land had been enjoyed. But it is very evident that the covenant to pay these debts was an immediate one, for they were then already due, and the very object of the stipulation was to save the property from being proceeded against, and thus lost to the lessors. The covenant was the consideration for the grant of the lease and not for the enjoyment of the property. When a lease is granted with a reservation of only a pepper-corn or nominal rent, or with no rent at all, the consideration may lawfully be, and usually is, a sum of money paid in cash. There is nothing to prevent it from being to be paid at a certain time in the future, or, as here, without any time, which is either that it shall be paid forthwith or in a reasonable time, it matters not which, so far as this case is concerned. It was not reserved as rent, and it is very plain that the parties did not so intend it.

The 4th, 8th, 9th, 10th and 11th assignments of error may be considered together. They are all grounded upon the position that the covenant sued upon was one of indemnity merely, and the plaintiffs not having shown that the incumbrances had been enforced against the property or that they had been compelled to pay them, they had suffered no actual damage, and therefore could recover at most but a nominal sum. The answer to this position is twofold. The covenant in its terms was a direct and absolute engagement to pay at once or within a reasonable time, and the lessees not having done so it was broken, and the covenantees as the legal plaintiff's could recover the whole amount to the use of the creditors to whom the amount had been specially appropriated by the agree

ment. But even supposing it to be an indemnity merely, we must regard the lessees by their absolute engagement to pay as assuming the place of principals while the plaintiffs becaine sureties merely. Though as to the creditors the plaintiffs remained principals, as between them and the defendants they were sureties. Then it is well settled that as soon as the surety's obligation to pay becomes absolute he is entitled in equity to require the principal debtor to exonerate him, and he may at once file a bill to compel an exoneration, although the creditor has not demanded payment from him: Beaver v. Beaver, 11 Harris, 167. Equity is part of the law of Pennsylvania, and is administered through common-law forms; for the greater period of her history could only be so administered. The vesting of separate equity jurisdiction in the courts has not changed the law in this respect. Hence on a bond or covenant to indemnify against claims the obligee is entitled to sue as soon as a claim is made and need not wait until judgment is recovered against him or even until an action is commenced: Miller v. Howry, 3 P. & W. 374; Bank v. Douglass, 4 Watts, 95; Stroh v. Kimmel, 8 Watts, 157; Leber v. Kauffelt, 5 W. & S. 440; Carman v. Noble, 9 Barr, 366.

The 5th assignment of error complains of the refusal of the court to affirm the defendants' 4th point, which was "that the equitable plaintiff's held the lease subject to all equities between the legal plaintiffs and defendants at the time of bring ing this suit." In the abstract this proposition was certainly true, but it was entirely irrelevant to any question before the jury. No evidence had been given of any equities, unless the defendants considered their alleged set-off to be such, and that as we have seen was no equity at all; for the defendants had precluded themselves by their own agreement from setting it up against the legal plaintiffs.

The remaining errors complained of in the sixth and seventh assignments may be considered together; namely, that the directors of the corporation, plaintiffs, had no power to make the lease sued on. It is supposed that a company chartered for the purpose of manufacturing and refining oil can not lease its entire property and so defeat the very pur pose for which its charter was granted. But corporations, unless expressly restrained by the act which establishes them, or some other act of assembly, have and always have had au

unlimited power over their respective properties, and may alienate and dispose of the same as fully as any individual may do in respect to his own property. Hence an insolvent corporation may make a general assignment for the benefit of its creditors, and this power may be exercised by the directors, unless special provision to the contrary is made in the charter: Dana v. The Bank of the United States, 5 W. & S. 223. If they can alienate absolutely, they may lease, which is but a partial or temporary alienation. Omne majus continet in se minus.

Judgment affirmed.

BARKER V. DALE ET AL.

(3 Pittsburg, 190. U. S. Circuit Court, Western District of Pennsylvania, 1870.)

1 Ejectment-Oil lease. A lease of land "for the sole and only purpose of mining and excavating for petroleum, coal, rock and carbon oil, or other valuable mineral or volatile substances," vests a corporeal interest for which ejectment will lie.

2 Time--Breach of covenant without forfeiture. A clause in an oil lease to commence operations by a day certain, is of the essence of the covenant, so far as to give an action for damages after the expiration of the lease; but it is not a condition the breach of which forfeits the lease. Lessor excluded from mining. A mining lease for a term certain, saving only to the lessor the right of tillage, is exclusive, and the lessor can not mine himself within the tenement.

3 A lessee may abandon and after the abandonment he can not recover the premises.

On the 8th day of December, 1865, Alanson Clark leased to the plaintiff, Barker, the land in dispute, by written lease, "for the sole and only purpose of mining and excavating for petroleum, coal, rock or carbon oil, or other valuable mineral or volatile substances," * * "to have and to hold the

*

said premises for the said purposes only, unto the said Barker, his heirs, executors, administrators and assigns, for twenty-five years;" for which Barker was to deliver to Clark "one half the oil, etc., found." The said Barker "to commence

1

· Chicago Oil Co. v. U. S. Co., 57 Pa. St. 83. Post RECEIVER.

2 Bell v. Truit, 8 M. R. 649.

31 M. R. 67, note 13.

operations by the first of April, 1866." The lessor warranted

the title.

Barker never took possession of or commenced to work on the land under the lease.

Some time after this Clark leased one acre of the said land to Dale, the defendant, who obtained a large producing wellupon learning which, Barker brought this suit in ejectment for the land. These facts were in substance conceded. The defendant asked the court to charge the jury in answer to the five following points.

C. B. CURTIS, for plaintiff.

GEO. H. CUTLER, for defendants.

MCKENNAN, Cir. J., auswered the points as follows:

1st. The right acquired by plaintiff under the agreement of December 8, 1868, in the premises therein described, was an incorporeal right only, and upon such right ejectment. will not lie, and therefore the plaintiff can not recover.

Answer by the court. The first prayer is refused. We are of the opinion that by the lease, dated December 8, 1865, a corporeal interest in the business therein described was vested in the plaintiff, which is the proper subject of an action of ejectment.

2d. That the clause in the agreement that the plaintiff was to commence operations by the first day of April, 1866, is a condition subsequent, and his failure to perform this condition determined his right under the agreement, and hence he can not recover.

Answer by the court. This prayer is also refused. The clause by which the plaintiff was to commence operations by the first day of April, 1866, is not a condition, the non-performance of which determined the plaintiff's rights or worked a forfeiture of his interest under the lease.

3d. The time mentioned in the agreement within which the plaintiff was to commence operations was of the essence of the contract, and the plaintiff not having commenced operations within that time, he can not recover.

Answer by the court. The time fixed in the lease within which the plaintiff was to commence operations is of the es

sence of the contract, so far as to enable the lessor, after its expiration, to maintain an action against the plaintiff for the non-performance of his stipulation, but not so as to divest his interest under the lease.

4th. The agreement in question did not give the plaintiff any exclusive right of mining and excavating for petroleum on said premises, and hence the plaintiff can not recover.

14

Answer by the court. This prayer is refused. The lease grants to the plaintiff for a determinate term, the premises in dispute, for the purposes therein stated, ubject to lessor's "use of the same for the purpose of tillage," and this is exclusive of any right of the lessor to mine or excavate within their defined limits, for petroleum, coal, rock oi', carbon oil, or other mineral or volatile substances.

5th. If the jury believe from the evidence that prior to the lease of September 14, 1868, to West and another, the plaintiff had abandoned all his rights under the agreement, and all intention of mining or excavating for oil, etc., on the premises therein described, then he can not recover.

Answer by the court. This prayer is allowed. The jury must be satisfied by the evidence that the plaintiff intended to surrender his lease and to abandon altogether the commencement or prosecution of mining or excavating operations, and that his acts touching such alleged abandonment were perpetrated with such intention.

The jury, after a few minutes consultation, returned a verdict for the plaintiff, with nominal damages and costs.

CLARK V. BABCOCK.

(23 Michigan, 164. Supreme Court, 1871.)

Lessor not bound to repair. A lessor is under no general obligation to put premises in repair, and his covenants to do so are not to be enlarged bevond their fair intent.

Lessee's option to perform lessor's covenants and charge against the rent. A lease of a sawmill and salt works to be run in connection with it was made on February 16th for a year from February 1st. The lessor was made liable to a deduction of rent for delays caused by