Page:The English Reports v1 1900.pdf/588

To this bill the appellant put in his answer, and thereby insisted on the benefit of his father's plea, and that he was not now obliged to renew, the respondents having lapsed their time.

The cause being at issue, the respondents examined several witnesses therein. And on the 27th of June 1738, they exhibited another bill against the appellant, setting forth the several matters aforesaid, and that they had named Worsop Bush, as a new life in the room of the said Elizabeth Hoey, and had caused a tender to be made to the appellant of £100 for adding the life of the said Worsop Bush in the premises, in the room of the said Elizabeth Hoey, deceased; and prayed, that the appellant might be compelled to receive the said £100 and add the life of the said Worsop Bush in the premises. To which bill, the appellant put in his answer, and insisted on the plea and answer put in by his father to the former bill, and on the several matters set forth in the appellant's former answers, and the long acquiescence of the respondents, without any suit for renewal, in bar of all the relief prayed by them.

This cause being likewise at issue, the respondents examined several witnesses, and both the causes coming on to be heard together, on the 2d of July 1740, the Court over-ruled the plea put in by the appellant's father, and decreed that the respondents should bring into Court the sum of £100 sterling, being the fine due to the appellant's father for renewing the lease of the lands of Dunshaghlin and Rosetown, on the death of Ann Worsop, otherwise Bush, who died on the 23d of November 1693, with legal interest for the said £100 to be computed from the end of six months, next after the death of the said Ann Worsop, otherwise Bush, for the use of such of the representatives of the appellant's father, as should be entitled thereto; and that the respondents should also pay to the appellant a further sum of £100 being the fine due for renewing the said lease, on the death of Elizabeth Hoey, otherwise Roth, who died on the 8th of January 1729, with interest to be computed from the end of six months next after the death of the said Elizabeth Hoey, otherwise Roth; and that the respondents should likewise pay to the appellant a further sum of £100 being the fine due for renewing the said lease, on the death of John Wood, esq. who died on the 1st of April 1730, with interest to be computed from the end of six months next after the death of the said John Wood; the interest of the said three several sums, to be paid and computed at the rate that money bore interest, from time to time, by act of Parliament in Ireland; and that the respondents should also pay to the appellant all arrears of rent due for the premises: and the Court [287] further decreed, that thereupon the appellant should execute a renewal of the original lease of the premises to the respondents and their heirs, for and during the lives of the said Elizabeth Worsop, otherwise Wood, widow, one of the cestui que vies in the original lease, Worsop Bush and Richard Toller, esqrs. and the life of the longest liver of them, at and under the yearly rent, and subject to the several clauses in the said original lease mentioned and contained.

From this decree Lord Ross appealed; contending (D. Ryder, J. Browne), that it was the express agreement of the parties, that if Sir Thomas Worsop, his heirs or assigns, did not, within six months after the death of a cestui que vie, pay the £100 fine, and also name a new life; that then the earl and his heirs were to have their election, either to sue for the £100 or for ever refuse a renewal: that a Court of Equity ought not to dispense with a lapse of time, in cases of this nature; because it was not a matter of form or circumstance, but a substantial and valuable part of the agreement, that the time for renewal should be fixed within a certain period, and that the fine should be paid, and the life named within the time appointed: for to prolong the nomination of a life, is to take away the chance of the death of a cestui que vie, if named in time, and the fine attendant thereon, during the suspence of such nomination. Besides, it gave the advantage of the contingency from the landlord to the tenant, against the express stipulation of the parties; and would encourage tenants to use all delays that invention could suggest, if they were sure of finding relief in a Court of Equity against a lapse of time, to renew the estate. That the proviso was not calculated for a penalty or condition to enforce a performance of any part of the agreement, and upon that ground subject to relief in a Court of Equity, but was intended to be strictly and precisely executed; and the rather, because there was not a mutual stipulation for a renewal: the Earl and his heirs were, indeed, bound to renew, upon payment of the fine and naming