66 by recognizance for the future rents of said lands, or by "virtue of any recognizance entered into in pursuance of "that order. And said Rose Hopkins was directed forth"with to hand over to plaintiffs all deeds and papers re"lating to the estates of Henry Hopkins or in her custody "or power, or in the custody or power of any person or persons by her order or for her use. The register to vary the conditional decree pursuant to the foregoing de66 cree, and when so varied, the same to be made absolute against the defendants therein." 66 66 Reg. Lib. xlviii. 440. 1802. BOND V. HOPKINS. JACKSON v. SAUNDERS, 1802. Μου. 30. Dec. 20, 22. 1804. JOHN WEAVER, being seized in fee, in 1699 demised Nov. 20. the lands of Cumer to Richard Lamb and John Lamb, for Under the tenantry act, 19 three lives with a covenant for perpetual renewal. Richard & 20 Geo. 3, c. and John Lamb some time after made partition, by which 30, what shall each became entitled to a seperate portion of the lands. Weaver's estate afterwards vested in Robert Saunders, (under be deemed reasonable time af ter demand, for paying renewal fines, must in all cases de pend on the circumstances; and circumstances previous, as well as subsequent to the demand, are to be taken into consideration. Therefore when the demand was on the 6th of Oct. a tender on the 20th March following was not within reasonable time; the tenant having had intimation for two years before that payment of the fine was expected, and havingneglected to pay it. The demand required by the statute need not be in writing, nor is any precise form prescibed for it. 1804. whom the defendant claimed) who in 1724, upon the apJACKSON plication of Richard Lamb for a renewal of his part, demised by indenture the North-west part of the said lands to the said Richard Lamb, for the lives of Edward and Richard Lamb and Thomas Mitchell, with a covenant, "that v. SAUNDERS. แ 66 as often as it should please God to take away by death any of the before named E L. R. L. and T. M. the "lives in said indenture mentioned, the said Robert Saun"ders, his heirs and assigns should put in another life of "such person as should be named by the said Richard "Lamb, his heirs and assigns, still to keep up the three "lives in the then present demise :" and the said Richard Lamb covenanted, " that within four mon ths after the death "of any of the before-named E. L. R. L. and T. M., "he would nominate one other person whose life should be "added to said indenture, and pay to said R. S. and his "heirs one full half-year's rent of said lands; and if said "R. L. his heirs or assigns should neglect or refuse so to 66 do, then the said R. S. should be allowed interest for said "fine from the death of the person or persons so dying." In 1755, E. and R. Lamb being dead, Morley Pendred Saunders, in whom the reversion was then vested, granted a new lease for the lives of Thomas Mitchell, Henry Palmer, and Robert Palmer, with a covenant for perpetual renewal, to Jackson, in whom the tenant's interest in both the Northwest and the South-east parts of said lands had vested, and under whom the plaintiff claimed. Henry Palmer died in 1787, Thomas Mitchell in 1793, and Robert Palmer in 1800. About 1799, several applications were made to plaintiff on the part of the defendant; and particularly, on the 1st of March, when plaintiff was renewing his lease of the South-east part of Cumer, he was requested by the defendant's agent to pay the fines and renew the lease of the part in question; and at another time, the defendant having met 66 1804. JACKSON V. SAUNDERS. 1804. JACKSON v. SAUNDERS. fincs were then ready; and on the 14th of March, Mr. P. f. wrote again, to signify that the plaintiff was then ready to pay the fines; and that as the ejectment was irregularly brought, he would not attend at the assizes. However, the record was brought down and came to trial at the next assizes, when the plaintiff at law was nonsuited for want of an appearance by the defendant to confess lease entry and ouster. On the 29th of March, 1801, plaintiff tendered to defendant the amount of renewal and septennial fines and interest, together with the rent in arrear, and also tendered leases to be executed, which defendant refused. On the 20th of April, 1801, this bill was filed, praying a renewal for the lives therein named, on payment of all rent, arrears of rent and renewal fines, and an injunction. This case was argued on the original hearing, by Mr. Burston, Mr. Blackburne and Mr. Parsons for the plaintiff, and by Mr. Saurin, Mr. Burne and Mr. F. W. Greene for the defendant; and on the re-hearing, by Mr. Burston, Mr. Ball, Mr. O'Driscoll and Mr. Parsons for the plaintiff: counsel for the defendant not being called upon to argue it. A preliminary question was made in the case; whether the covenant in the lease of 1724 ought not to be considered merely as a covenant for adding three lives in the place of the three lives therein named, and not as a covenant for perpetual renewal; but the Lord CHANCELLOR having expressed his opinion, that the lease of 1724 was to be considered only as an instrument of partition, and that it did not make any change in the tenure created by the lease of 1699; that point was not pressed. The other and principal question was, whether under the circumstances of the case, and the provisions of the statute(a) the plaintiff was barred of his right to a renewal. (a) 19 & 20 Geo. 3, c. 30. It recites that great part of the lands in Ireland are held under the leases for lives with covenants for Arguments for the plaintiff. The constant and uniform practice of courts of equity in Ireland, antecedent to the passing of the act of the 19 and 20 Geo. 3, commonly called the tenancy act, was to relieve tenants claiming under covenants for renewal against mere neglect or lapse of time, on indemnifying the landlord. The principle on which the Irish courts proceeded, are laid down and explained by Lord LIFFORD, in the case of Boyle v. Lysaght, in the House of Lords.(a) It is computed that one seventh of the whole landed property of Ireland is held under leases of this description: they have been perpetual renewal on payment of certain fines, and that from various accidents and causes, the tenants had frequently neglected to pay or tender such fines within the time prescribed by such covenants; and that many such leases were settled; and that it had been for a long time a received opinion in this kingdom, to which some decisions in courts of equity, and declarations of judges had given countenance, that courts of equity would in such cases relieve against the lapse of time upon giving an adequate compensation to the persons to whom such fines were payable; and to the end that such interests should not be defeated by a mere neglect, where no fraud was intended, upon making full satisfaction to the lessors or those deriving under them, it declares and enacts, "That courts of equity on an adequate compensation being made, "shall relieve such tenants and their assigns against such lapse "of time, if no circumstance of fraud be proved against such te66 nants or their assigns; unless it be proved to the satisfaction of "such courts, that the landlords or lessors, or persons entitled to "receive such fines had demanded such fines from such tenants or their assigns, and that the same had been refused or neglected "to be paid within a reasonable time after such demand." Sect. 2 provides that if the landlord shall find any difficulty in discovering his tenant or his assigns, so as to make a demand; in such a case a demand made on the lands, from the principal occupier, together with a notice of such demand inserted for two months in the London and Dublin Gazettes, should be sufficient. (a) 1 Ridgew. Parl. Cas. 401. 1804. JACKSON υ. SAUNDERS. |