Page:United States Reports, Volume 1.djvu/319

308 

1788.

rent from the Affignee will take away all remedy againft the Leffee himfelf. I have looked for this diftinction in he books, but cannot find it in any cafe where there was an exprefs covenant for the payment of the rent. The cafes found the law upon the perfonality of the contract ; which extends equally to the payment of the rent, as to the making repairs; and, though the authorities are not fo numerous in the one cafe as the other, yet they are as expreʃs. 2 Keb. 640. and 2 Barnard 372. are full to the point. If thefe books are thought to be of doubtful authority, 1 ''Roll. Ab.'' 522. cities two cafes, where the breach of covenants was for non payment oƒ the vent. In 1 Sid. 402. where the Court draws the diftinction between debt and covenant, they exprefsly mention the action to be for the rent ; and the cafe in 3 Lev. 283. is likewife covenant for non payment of the rent.

As to the argument ab inconvenenti, I cannot fee how it operates more in this country than in England. It Leffees mean not to be perfonally bound after affignment, they fhould take care what covenants they enter into. If they will, in exprefs words, covenant for the payment of the rent, they muft be bound by it.

Judgment for the Plaintiff. 

HIS was an appeal from the determination of the Regulators of Party Walls &c.–Howell moved that a Venire fhould iffue agreeably to the third fection of the act paffed the 15th of April 1782, 3 State Laws 75. allowing the appeal to the next Court of Common Pleas, and enacting, that thereupon “the faid Court (upon fecurity being “ entered&c.) fhall direct a Venire to the Sheriff &c.”

Sergeant though that the queftion ought to be tried upon a feigned iffue, or under an ejectment ; to either of which he would agree.

But, by SHIPPEN, Preʃident.–A feigned iffue can only determine, whether the Regulators have done right or not ; cannot determine the title, and finally fettle the matter. For this reafon we think it proper to try the queftion by ejectment.

Lewis and Wilcoks faid, the practice in the Supreme Court had been conformably to the opinion of the Preʃident here. 

BOND and Warrant to confefs Judgment had been executed by the Defendant for Ł600. Before the Judgment was entered up, he had paid fo much of the money as reduced the fum really due to lefs than Ł.10 : And the queftion ftated for the opinion of the Court, was, whether the Plaintiff fhould be allowed cofts? Hallowell