¶1The case was argued on the 22d December 1803, by Mr. Gibson for.the plaintiff, and Mr. Rawle for the defendant. The following cases were relied on by the former, to prove that the ground landlord was exempted from taxation, by the terms of the covenant. Doug. 602, 624. 1 Salk. 198. 2 Salk. 615. 1 Ld. Ray. 318. 12 Mod. 166. Comb. 424, 466. 5 Mod. 368. It was said on both sides, that an usage had obtained with respect to the payment of taxes, on ground rents, where covenants had been inserted in the deeds, and similar to the case before the court, but they disagreed in their statement of this usage : whereupon the court recommended that the same should be ascertained by the verdict of a jury, which was mutually agreed to : after this method was adopted, the defendant died, and Thomas Phipps and Benjamin Kite, his executors, were substituted as parties to the suit.
¶2The cause came on to trial at a Court of Nisi Prius on the 23d February last, on a declaration in covenant for non-payment of the rent charge ; to which the defendants pleaded covenants performed, with leave to give the special matter in evidence, without prejudice to the question of law. Several witnesses were examined, to ascertain what had been the practice as to the payment of taxes on ground rents, subsequent to their becoming distinct subjects of taxation (which was said to be in 1779) on deeds previously granted, with covenants that the grantees should pay the same clear of all assessments and *388*charges ; but the instances of payment by the grantees were equal to those of payment by the ground landlords, and the matter was left in equilibrio. The jurors were hereupon discharged by consent, and it was agreed, that the decision of the court should be given on the case before stated.
¶3The case being afterwards called up in Bank, Mr. Rawle declared, that he could not contend the legal question in behalf of the executors defendants, independently of the usage of which they had failed in the proof ; and agreed that judgment should be entered for the plaintiff, on the case stated.
¶4Judgment for the plaintiff.