Page:The English Reports v1 1900.pdf/609
attorney, who attended at the meeting above mentioned, and against the representatives of Dr. Duncan Cuming, the mortgagee, who died sometime before; and set forth, that he had been informed in the year 1732, of the death of Richard Clarke, and had on the 19th of February 1732, informed the respondent thereof, and tendered a fine to him, for inserting the name of George Alcock in the room of Richard Clarke; that the respondent had promised to renew the lease, upon receiving the fine with interest from six months after the death of Richard Clarke, which he stated by his bill to have happened about January 1731; and he also suggested, that Joshua Parrott and Thomas Litchfield, the two lives mentioned in the leases of 1683 and 1710, were still living; but as they had been a great number of years out of the kingdom and not heard of, he was willing to admit them to be dead, and to submit to pay fines for these lives, and to pay a fine for every seven years for each life respectively, from the time that these persons were respectively reputed dead, with interest for each respective fine, from the time that it ought to have been paid; and therefore prayed, that the respondent might be compelled to renew the lease for the lives of George Alcock, James Carthy, and John Winnet, with the reservations and provisions contained in the original lease.
The respondent, in the same term, brought an ejectment for the lands on a double demise, viz. of himself and the respondent Edwards, as the assignee of Dr. Cuming's mortgage.
On the 26th of May 1733, the respondent put in his answer to Dr. Saunders's bill, and admitted the application made to him in February 1732, for a renewal, and the tender of a fine; and set forth the conversation had with Dr. Saunders on that occasion, in the manner above mentioned; and admitted the promise not to take advantage of the lapse of time since Clarke's decease, under the proviso and restrictions before stated; but he relied on the legal determination of the lease, and insisted on Dr. Saunders's misrepresentation of the time of Clarke's death, his concealing the death of Litchfield and Parrott, and his varying the description of Joshua Parrott in the lease to his under-tenants, so as to make it tally with a person then in being, and thereby induced a belief of his being the original cestui que vie, as so many fraudulent acts; and for which reasons, he ought not to have any assistance or relief in a Court of Equity.
Dr. Saunders afterwards amended his bill, setting forth the proceedings on the ejectment, and making the respondent Edwards a party, and praying an injunction; which the Court granted till the hearing of the cause, on his paying the rent and arrears then due, and on his entering into a recognizance to be accountable for the mesne profits of the lands from the death of Richard Clarke, subject to the further order of the Court.
The respondent Carroll put in his answer to the amended bill; and in Easter term 1734, filed a cross bill against Dr. Saunders and his under-lessees, the tenants of the land; wherein he set [319] forth the death of all the cestui que vies in Dr. Saunders's lease, and charged the several fraudulent practices above mentioned, to conceal or misrepresent the time of their deaths; and prayed, that the defendant Saunders might account for the rent and arrears to the death of Richard Clarke, and for the mesne profits from that time, or for what he might have made thereof without his wilful default.
Dr. Saunders put in an answer to this bill; and admitted, that he had renewed the lease to Richard Clarke in 1727, and had received a fine for inserting the name of John Winnett in the place of Thomas Litchfield; and yet pretended, he had no reason to believe that Thomas Litchfield was dead: he also admitted, that he might have said at the meeting with the respondent Carroll and his agent, in February 1732, that Thomas Litchfield was alive and in the country; but said he knew nothing of him, or where to enquire about him: he admitted that Joshua Parrott the son of Joshua Parrott, was named as a cestui que vie in the leases which he made to Richard Clarke and George Alcock; but pretended, it was by the mistake of the clerk who ingrossed the deed, and not with any fraudulent view: he also admitted, that he told the respondent at the meeting in February 1732, that Joshua Parrott, the original cestui que vie, was alive, and lived in the neighbourhood of the estate; that he had lately seen him and given him a piece of money, and that he was a poor old man: but said, that he afterwards found himself mistaken, and that the