Page:United States Reports, Volume 1.djvu/317

306 

1788.

‘‘ in the Northern Liberties of the city of Philadelphia, referving a

‘‘ Rent-charge of 40 dollars per Ann. payable on the 1ft day of Octo-

‘‘ ber annually. Before any rent was due, Nicholas Wymick, on the

‘‘ 15th of July, 1785, affigned and conveyed all his intereft in the

‘‘ Premiffes to Henry Moyers. The Plaintiff accepted one years

‘‘ rent of the Affignee. The queftion is, whether he can recover in

‘‘ the prefent action, which is for one year's rent accruing fub

‘‘ fequent to that paid? ’’

The conveyance from Kunckle to Wynick contained the following claufe :– ‘‘ And the faid Nicholas Wynick for himfelf, his heirs, exe-

‘‘cutors and adminiftrators, doth hereby covenant, promife, and

‘‘ agree, to and with the faid John Kunckle, his heirs, and affigns,

‘‘that he, the faid Nicholas Wynick his heirs, or aʃʃigns fhall and

‘‘ will at his and their own expence, within one year from the date

‘‘ hereof, erect, build, and finifh, on the hereby granted lot, one

‘‘ good fubftantial dwelling houfe, at leaft 16 fect fquare and 2 ftories

‘‘ high, with a cellar under the fame walled up with brick or ftone ;

‘‘ and ʃhall and will from time to time and at all times hereafter for-

‘‘ ever, well and truly pay, or caufe to be paid, unto the faid John

‘‘ Kunckle, his heirs, or affigns, the aforefaid yearly rent or fum of

‘‘ 40 dollars, &c.’’

Rawle, for the Defendant, make two points : 1 ft, Whether the fentences in the claufe above ftated from the deed, could be fo coupled and interwoven, as to create an exprefs covenant, on the part of the Grantor, that his aʃʃigns  fhould pay the rent-charge ? and, 2dly, Whether acceptance of rent from the Affignee, was not a bar of the Plaintiff's demand of the rent from the Affignor?

I. On the firʃt point he endeavoured to conftrue the Covenant, fo as to extend it to the Aʃʃigns of Wynick only in the cafe of building the dwelling-houfe, and not in the cafe of paying the rent. But he did not feem to expect much fuccefs from this difcrimination.

2. On the ʃecond point, he argued, that this was a rent iffuing out of the land, which the Plaintiff had elected to purfue by his acceptance of rent from the Affignee ; and that this acceptance was a bar to his demand againft the Defendant. ''Cro. J.'' 522.3. Rep. 22.2 Bulʃts. 152. He admitted, that 3 Lev. 233. Sound. 240. S.C. appeared to be ftrong againft him ; but, contended, that, in truth, they ought not to have any weight with the Court, fince the prefent queftion was not immediately in agitation in thofe cafes, and, confequently, what has not been exprefsly adjudged, cannot be fet up as an authority. As 1 ''Bac. Abr.'' 536. is founded on 3 Lev. 233. it muft neceffarily follow the fate of its principal. With refpect to Keb. 640, he prefumed that the Reporter had been guilty of fome miftake, and queftioned whether his doctrine had been received even in England.

But he urged that whatever might be the practice there, the laws and circumftances of Pennʃylvania had rendered a different one neceffary here; for the Acts of Affembly altering the common law, carried with them many confequences, which were not exprefsly provided for in the acts themfelves;  as in the cafe of real eʃtates made fubject