1803.

BROWNE

V.

O'DEA.

that the defendant should be restrained from paring or burning during the term unexpired in the said last-mentioned lease; and that the bill should stand dismissed as to so much as sought an injunction on the foot of the two judgments or either of them.

The cause now came on upon a re-hearing: Mr. D'Arcy for the plaintiff.

Mr. Fitzgerald, Mr. Williams, and Mr. O'Grady for the defendant argued, that whatever disposition the court might have under such circumstances as the present to relieve a plaintiff who had acted fairly, it would not be solicitous in behalf of one who had lain by for seven years after the execution of the lease complained of, taking his chance of the lives dropping in the mean time; and who would not have come in even then (as may be collected from the case) if he had not been disappointed in his scheme of selling his reversion to the defendant. That, though the rule collected from the statute of usury, "that no advantage, directly or indi"rectly above legal interest should be gained," was a wise rule, yet it might be carried too far if applied to every case of a lease granted at the same time that a loan of money was obtained; the rule, as so applied, presumes that the lease granted is a benefit to the tenant; but that does not necessarily follow, and there are circumstances to shew in this case, that there was a full and ample consideration for the lease, in the increased rent and in the covenant to build, and improve: indeed, unless a benefit to the tenant appears on the face of the lease, the court cannot interfere.

Lord CHANCELLOR.

The question is, whether this lease was made under such ircumstances that it ought to be impeached. It is clear that

the transaction respecting it took place at the same time with
a transaction respecting a loan of money; you attempt to
separate these transactions, but you cannot; nothing appears
in the case to separate them, and they must be taken to be
one and the same transaction. It would perhaps be a good
rule to be generally observed, that a transaction of this na-
ture is not to make part of a transaction respecting the loan
of money(a), because the person borrowing under such
circumstances is not a free agent; it must be presumed that
whatever advantage the tenant has obtained by the lease was
the inducement to him to lend the
and that is get-
money,
ting a profit for the loan of money beyond what the law
allows. But in this case it is clear that the lease was a bene-
ficial lease to the defendant; this is acknowledged even by
his anxiety to maintain it. Having a lease for a term of
which about seventeen years are unexpired, he gets a lease
for three lives now, by the common understanding of all
who deal in such matters, this is a much better interest than
the other; and for this he is to pay only 21. 14s. addi-
tional rent, which cannot be considered a sufficient induce-
ment to the landlord to charge his estate with this longer
term: besides, he has a permission to pare and burn the lands
as he shall think fit, on certain conditions, which consist of
his building a house of a particular description and making
walls and drains, and for doing this no time is limited; the

(a) In the case of Hunt v. Potter, in this court, March 5, 1804, there having been contradictory evidence as to the fact of the loan and lease being one transaction, an issue was directed to try "whether the plaintiff at any time and when previous to the day on which the lease was executed, contracted and agreed with defendant to grant said defendant the lease, wholly independant of and unconnected with a loan, or treaty or communication for a loan of money."

So in Drew v. Power, July 2, 1803, (post) the Lord CHANCELLOR was about to direct an issue "whether the lease was executed "without any regard to a loan of money;" but his Lordship afterwards found the evidence before him was sufficient to decide on.

1803.

BROWNE

V.

O'DEA.

1803. BROWNE

V.

O'DEA.

effect of which is to put the lands so completely in the
of the defendant that he may leave them worth no-
power
thing at the expiration of the lease. There are indeed clauses
beneficial to the landlord, though there is nothing in the case.
to shew that they have turned out so; but the covenants to
pare and burn are beneficial to the tenant only; and the
question is not whether the burning, &c. be or be not inju-
rious to the landlord, for even if it were beneficial to him,
if it were beneficial to the tenant likewise, it is a benefit be-
yond what the rule of law allows, that a party shall not by
any means obtain benefit on the loan of money, beyond legal
interest. I am therefore of opinion that this lease can-
not be supported.

I think the decree requires alteration in one part. The master should take an account of the valuable and lasting improvements made by the defendant since the 1st Nov. 1789, and which were of such a nature as that the same could not have been valuable to the defendant under his original lease; but it does not appear to me that he has done any thing which he would not have done under his original lease.

Reg. Lib. xlix. 7. "Let the decree be reversed so far as "it directs an account to be taken of all valuable and lasting "improvements made by the defendant on the lands com"prised in the lease of the 1st November, 1789, and that "the amount of such improvements be set off against the profit accruing to the defendant, from paring and burn"ing the surface of the said lands, pursuant to the cove"nant contained in the said lease, and that a balance should "be struck between the parties: and, instead of such di"rections, let the master inquire whether the defendant, "after the execution of the said lease of the 1st of Novem"ber, 1789, and before the filing of the plaintiff's bill

"made any and what valuable and lasting improvements, "by building walls, planting quicks, and making banks and "drains which will be beneficial to the inheritance after the expiration of the term for which the lands were demised "by the indenture of the 2d May 1776, in the pleadings "mentioned, and which were of such a nature and made "at such an expense, that the defendant would not have "made such improvements if he had had only the interest "of the lands which he derived under the said lease of the "2d May, 1776; and if the master shall find that any "such improvements were actually made as aforesaid, let "the master set a fair value upon such improvements, to "be paid by the plaintiff to the defendant, having regard "to the benefit which the defendant has derived there "from and will derive therefrom during the continuance "of the said lease of the 2d May, 1776: and let the mas"ter also inquire what was a fair compensation to be made

by the defendant to the plaintiff by way of rent or sum "in gross, for liberty to pare and burn the lands actually 66 pared and burnt by the defendant after the execution of "the lease of 1st November, 1789, and before the defen"dant was restrained from paring and burning by the said "decree of 8th March, 1800, having regard to the pro"fit made by defendant by such paring and burning be(( yond the profit which he might have made of said land "without paring and burning the same, and also having "regard to the benefit which the defendant has deriv"ed from the improvement (if any) of the land so pared "and burnt, and will derive therefrom, during the remain"der of the term of said lease of 2d May, 1776, and also

66

having regard to the improvement (if any) of said land "so pared and burnt which will be enjoyed by the plaintiff "or those claiming under him after the expiration of the "lease of the 2d May 1776: also having regard to the injury (if any) which such lands have sustained by such

1803.

BROWNE

7.

O'DEA.

1803.

BROWNE

V.

O'DEA.

"paring and burning. And let the sum which the master "shall find to be the value of the lasting improvements of "which an account is before directed, be set off against the "amount of the compensation to be made for such liberty "to pare and burn as aforesaid, making a rebate of interest "at 5 per cent. per ann. from the value so to be set on "such improvements, from the times when compensations "for such paring and burning ought to have been paid to "the plaintiff until the expiration of said lease of 2d May, "1776; so that such improvements may not be in effect "paid for by the plaintiff during the continuance of the "said lease of 2d May, 1776. And thereupon let the master strike a distinct balance between the parties res"pecting such accounts, and affirm said decree in all other "respects."