The Company of Proprietors of the Brecknock and Abergavenny Canal Navigation against Pritchard and Others
| Jurisdiction | England & Wales |
| Judgment Date | 10 June 1796 |
| Date | 10 June 1796 |
| Court | Court of the King's Bench |
English Reports Citation: 101 E.R. 807
IN THE COURT OF KING'S BENCH.
2 B. &. P. 65.
the company of proprietors of the brecknock and abergavenny canal navigation against pritchard and others. Friday, June 10th, 1796. On a covenant to build a bridge in a substantial manner, and to keep it in repair for a certain time, the party is bound to rebuild the bridge, tho' broken down by an extraordinary flood. [2 B. &. P. 65.] This was an action of covenant on articles of agreement, dated the 6tb of August 1793, in which the defendants covenanted to erect and finish in a substantial and workmanlike manner a bridge 'across the river Usk in the county of Brecknock on or before the 10th of December then next, and to uphold and keep it in complete repair for seven years; the declaration stated that though the defendants did build and finish the bridge they had not upheld and kept it in complete repair, &c., for that on the 10th of February 1795, it was washed broken and fell down, and that the defendants had not upheld and rebuilt it, &c. To this the defendants pleaded that until and at the time when the same was so washed broken and .fell down as mentioned in the declaration, the bridge was well built and in complete repair, and capable of resisting any usual or ordinary flood, &e. ; and that then the said bridge by the act of God by a great unusual and extraordinary flood of water, such as such bridge so well built and in complete repair could not reasonably be expected to resist, by means of the waters of [751] the said flood rushing and pressing against the same was without the default of the defendants, or its being in their power to prevent, washed broken and fell down, &e. The plaintiffs demurred to this plea. Wood in support of the demurrer. The defendants are bound by their express covenant to keep the bridge in repair for the seven years, notwithstanding the accident stated in the plea. The distinction taken in the books is this, " When the law creates a duty, and the party is disabled to perform it without any default (a) On this point Litt. Sep. 38, was cited by the defendants. 808 SMITH V. JAMBS , ST. E.752. in him, and he has no remedy over, the law will excuse him: but when the party by his own contract creates a duty or charge upon himself, he is bound to make it good if he may, notwithstanding any accident by inevitable necessity, because, he...
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