He who enjoys the benefit ought also to bear the burden ; and the contrary.
The liability of a railway company to provide sufficient accommodation for passenger and goods traffic, and to indemnify against loss or damage by negligence, in return for the exclusive right of way and tolls thereupon : as, also, all other instances where lights are conferred upon individuals or bodies of persons as against the public ; as, public companies having powers under Acts of Parliament, partners in trade, attorneys, surveyors, innkeepers, pawnbrokers, etc, are within the meaning of this maxim. And also where the public are not directly concerned ; as, in rights and liabilities arising out of the relation of lessor and lessee, landlord and tenant, husband and wife, master and servant, principal and agent, executor, devisee, etc; in all which cases, to the privileges conferred by the law, the law attaches corresponding liability.
The converse of the position first stated, viz., that he who bears the burden has a right to the benefit, may be deduced from the instances already given, as well as from the general principle of the law, which holds that no burden is thereby imposed without a corresponding benefit.
Real property is a leading object in the consideration of this maxim, it being a common rule that all land, in passing from one owner to another, takes with it the burdens which the previous owners have thought fit to lay upon it, and the conditions to which it was, in passing from their hands, subject, whether or not they are implied covenants running with the land, or express, binding the covenantor and his assigns. If an indenture be made between A of the one part, and B and C of the other part, and therein a lease is made by A to B and C on certain conditions, and B and C are thereby bound to A, to perform the conditions, and B only and not C executes the deed ; yet, if C accept the estate, he is bound by the covenants ; and one of them cannot be sued without the other whilst both are living ; for, “ Qui sentit commodum sentire debet et onus ; et transit terra cum onere.”
The law of landlord and tenant, and of lessor and lessee, furnishes many instances of the application of this maxim. As, where one leased a house by indenture for years, the lessee covenanting for himself and his executors to repair at all times needful ; the lessee having assigned it over to another, who suffered it to decay ; it was held, in an action of covenant by the lessor against the assignee, that such action would lie, although the lessee had not covenanted for his assignee ; because, that such covenant extending to the support of the thing demised, is quodammodo appurtenant to it, and goes with it ; and because, the lessee having undertaken to repair, the rent was the less, which was to the benefit of the assignee ; “ et, qui sentit commodum, sentire debet et onus.”
A devise or bequest, subject to the payment thereout of an annuity or certain sum, carries with it an obligation to make the payment, and the thing devised stands charged with the annuity or sum payable, and cannot be accepted otherwise ; and where the devise is of a thing of less value than that with which it is charged, the devisee accepting the gift must discharge the burden.