
    Benson vs. Hobbs.
    mem for o» « {¡might by b J-omhe part of n to seedj ?,moíhy b,eedffor lam to sow on the H.wmieíí'rau i®¡fee£¿?ylbrthi |>^¶ (¡“¿¡¡¡fá ikítcheiiV&c-.was ™4nant^e,a"deB recover torthe vent *1^-hited on his part had been performed
    Parol evidence, that there was a subsequent parol agreement between B and H, that two bushels of clover seed, and two bushels of timothy seed should be bought by H, and deducted out of the rent, not admissible in evidence as a stipulation contained in the articles of agreement, on the part oí B t© furnish two bushels oí clover seed, fte, every ^eajr during the eonttauanee of the lease
    Appeal from Montgomery County Court. Covenant on articles of agreement for the rent of a plantation, and the breach assigned was the nonperformance of the covenants, and nonpayment of &160 due for two years rent, &c. The defendant, (now appellee,) pleaded general performance, to which the plaintiff, (the appellant,) replied manee, and issue was joined.
    1. At the trial the plaintiff offered in evidence the following articles of agreement, dated the 11th of September 1810, between the plaintiff and defendant, whereby the plaintiff covenanted and agreed with the defendant, &c. that “the said Benson hath rented unto the said Hobbs all that plantation whereon N. W. Lanharn occupies, with the improvements,” &c. “for the term offour years, beginning for the first year on the 1st day of November next, for the yearly rent of g80 per year,” &c. “The said Benson doth further covenant and agree, to find and give unto the said Jft>bbs two bushels of clover seed, and also two bushels of timothy seed, for him to so w on said land, where the said iioh&s thinks best; and-also to let the said Hobbs have as snnch rail stuff off said land as the place requires, and as much fire-wood as necessary for the place, during said term. And for the true performance of every of the articles, ” &c. “the parties bind themselves in the penal sum of $ I GO, to be paid to the party aggrieved,” &c. “N. B. The said Benson. agrees,” &c. “to find timbers and plank, nails, and all materials to build'a kitched 16 by 18 feet long; said Habb.s is to cut all the timbers, and assist in raising and building said kitchen. Said Benson agrees to have if done between this dáte and the 1st day of January 1811.” Signed and sealed by the parties. The defendant then prayed the opinion of the court, that the said instrument of writing was a dependant covenant, and that before the plaintiff could recover for the refit in arrear, he must shew that every thing stipulated on his part had been performed. Which prayer the Court, [Harwood, A,J.~| granted. The plaintiff excepted.
    2, The plaintiff then offered evidence, > that subsequent to the execution of the instrument, there Was a parol agreement between the plaintiff arid defendant, that two bushels ot clover seed, and two bushels of timothy seed, should' be bought by the defendant, and deducted out of the rent. .The plaintiff offered no evidence that this had been deducted out ofthe rent, nor did the defendant offer any evidence that any part of the rent was paid, although the plaintiff -admitted that the first year’s rent wassettled. The defendant then prayed the court to direct the jury, that this was' a stipulation contained in the instrument on the part of the plaintiff to furnish two bushels of clover seed, and two bushels of timothy seed, every year, during the continuance of the lease. Which prayer the court granted. The plaintiff excepted; and the verdict and judgment being against him, he- appealed to this court.
    The cause was- argued before Cítase, Ch. 3. and Buchanan, Earle, Johnson, Martin, and Dorsey,, J,
    
      Taney, for the Appellant,
    referred to Pordage vs. Cole, 1. Sound. 320, (note 4.)
    
    No counsel argued for the Appellee.
   The Court dissented from the opinions of the county' court in both the bills of exceptions*

JUDGMENT REVERSED» AN® PRO9EDENDQ AWARDED,  