Page:The English Reports v1 1900.pdf/604

rent, and to be released from the said agreement, as being obtained on false and fraudulent suggestions.

On the 25th of April 1741, the appellant put in his answer to this bill, and thereby set forth the several transactions and circumstances before-mentioned, and denied he knew of any representation made of the number of acres by Dean Meade, or John Meade, or that they, or either of them, were his agents or agent, or had any power to treat for the setting the said lands, and denied he ever acquainted the respondent that the lands contained any certain number of acres; but admitted, that after the first application to him by the respondent for a lease, and before the second, when the agreement was concluded, a survey had been made and returned to him, whereby it appeared that the lands contained 874 acres, 2 roods, 13 perches; but denied he intended at the time of the agreement, to deceive the respondent by any knowledge he had of such survey, for that he offered as well before, as at the time of concluding the agreement, to set the lands at a rent by the acre, which the respondent refused, and declared, that he was as well acquainted with the lands as with his own, and proposed to take them at a gross rent; and the appellant by his answer offered, at his own expence, to support and defend the respondent's right and possession to every part of the demised premises, and insisted that the agreement was fairly entered into, and that the respondent ought to perform the same.

[311] The other defendants also put in their answers, and denied having represented the lands to the respondent, as containing any certain number of acres whatsoever.

On the 2d of July 1741, the respondent amended his bill, and thereby set forth, that he was advised that the article executed by him ought, in a Court of Equity, to be looked upon as an agreement to be carried into execution with the usual clauses and covenants, (if the representations made of the number of acres should not be considered as a fraud, so as to set aside the agreement;) and that it was an usual clause, that a tenant might surrender on giving six months notice to the landlord of such his intent, and paying all rent and arrears: he therefore, by his bill, gave notice, that on the 25th of March 1742, he would surrender and pay all rent and arrears due to that day, and waived all other allowances if such surrender was accepted; he also suggested, that there were forty acres of common in the center of the lands, on which the tenants of the adjacent lands had an equal right of commonage with the tenants of Kilcoleman, and which the appellant, during the treaty, had concealed; and therefore the amended bill prayed, that if the appellant did not accept of the surrender offered, the respondent might be discharged from the said articles, and have an allowance for the acres which the lands fell short of the number represented, and for the common and detained acres and bog.

To which amended bill the appellant, on the 16th of November following, put in his answer, and thereby insisted, that the said lease or articles ought not to be considered in a Court of Equity as an agreement to be carried into execution, but as an actual demise of the lands; and that the clause of surrender mentioned in the bill was not an usual clause, and was never inserted except by particular agreement; he denied there was any such clause of surrender in any of his leases, or that any mention was made thereof during the treaty, and therefore refused to accept the surrender. He said he was informed, and believed, that there was a common adjoining to or belonging to the said lands, on which the tenants of the adjacent lands had an equal right of commonage; but whether such common was in the center of the lands, or what number of acres the same contained, he did not know; but denied he concealed any such right of commonage from the respondent, or that he knew or believed that the respondent took the said common as part of the said lands; and the appellant insisted on his right to the rent without any abatement whatsoever.

The cause being at issue, several witnesses were examined on both sides; and the appellant having examined the said Dean Meade and John Meade, they fully proved the several transactions relating to the said agreement, as before-stated; and the cause was set down to be heard as against the appellant only.

On the 11th of May, and 6th of June 1743, the cause was heard; and on the 5th of July following, it was ordered and decreed, that the said lease or agreement should be set aside, and that the lands should be forthwith surrendered; and that the respondent should account for what he made, or might have made, [312] with-