Page:The English Reports v1 1900.pdf/1061

Daniel Swayne, the original lessee, died in 1729, leaving Hugh Swayne his eldest son and heir, and Daniel his youngest son.

Colonel Ponsonby, in pursuance of the covenant of renewal, and in consideration of a renewal fine of £62 19s. 4½d. by indenture, dated the 28th of April 1729, demised the lands to the said Hugh Swayne, his heirs and assigns, for three lives, at the same rent, [432] and subject to and under the same clauses and covenants, as in the original lease.

Hugh Swayne, in December 1742, in consideration of £405 demised to Roger Adams, his heirs and assigns, part of the said lands, at the yearly rent of 10s. an acre, for the three lives in his lease; with a covenant for perpetual renewal. And in April 1749, for a further consideration of £910 5s. he demised other parts of the lands to Adams, his heirs and assigns, for the same lives; with a like covenant for perpetual renewal, at the yearly rent of £125 19s. 9d.

Hugh Swayne lived upon the lands, until the year 1748, when he quitted, and never resided upon them afterwards; from which period therefore, Mr. Ponsonby became entitled to the increased rent of £150, pursuant to the above covenant; and accordingly, on the 5th of August 1751, he demanded the arrears of it from Roger Adams, who freely and without objection paid the appellant, then Mr. Ponsonby's agent, £36 1s. 10½d. for one year and a half's arrear of this additional rent. But Mr. Ponsonby demanding, on the 5th of November following, a further sum of £24 1s. 3d. as the additional rent due for one year, ending the 1st of that month, Adams refused to pay it; whereupon Mr. Ponsonby distrained, and Adams replevied, and Mr. Ponsonby avowed for the rent, and was proceeding at law for the recovery thereof.

But on the 6th of June 1752, Roger Adams filed a bill in the Court of Exchequer in Ireland, against Colonel Ponsonby, Hugh Swayne, and the appellant, then Colonel Ponsonby's agent; praying relief against the said additional rent, and that Mr. Ponsonby might repay such penal sums as he had received, and be injoined from proceeding in his suit in replevin.

Mr. Ponsonby and the appellant, by their joint answer, admitted the leases made to Adams, the distress and the proceedings thereon; and insisted on Mr. Ponsonby's right to the additional rent of £24 1s. 3d. by virtue of the above covenant, and that he was entitled to distrain for it.

Hugh Swayne, by his answer, admitted the leases made to Adams; and that he, pending the cause, conveyed and assigned for valuable consideration, his interest In the lands under the renewed lease made to him by Mr. Richard Ponsonby, to Sir Henry Cavendish, Bart. and his heirs, subject to Adams's leases. And that Sir Henry Cavendish afterwards assigned his interest therein to Richard Bradshaw, Esq. and his heirs, upon certain trusts for John Digby and Mary his wife, and their issue, which interest was soon after re-assigned to Sir Henry Cavendish.

Hugh Swayne afterwards died, having by his will devised all his real and personal estate to Arthur Barstable and Henry Wrixon, in trust, after payment of some legacies, for his son Benjamin Swayne, his heirs, executors, and administrators; and appointed Arthur Barstable and Henry Wrixon his executors.

The bill was several times amended; and Sir Henry Cavendish, John Digby and Mary his wife, Richard Digby and John Digby their infant sons, Richard Bradshaw, Benjamin Swayne, Arthur [433] Barstable, and Henry Wrixon were made parties; to which amended bills Mr. Ponsonby and the appellant, and the several other defendants, put in their answers.

Roger Adams died in March 1762, leaving two sons, Samuel and Roger; and by his will appointed the respondents Prudence Adams his widow, and his sons Samuel and Roger his executors: but before his death, he assigned and conveyed all his interest in the lands under the two leases made to him by Hugh Swayne, to his son Roger.

By Roger Adams the elder's death, the suit and proceedings abated, whereupon Prudence, Samuel, and Roger Adams, his executors, on the 29th of June 1762, filed a bill of revivor against Colonel Ponsonby, and the appellant, and the several other defendants, stating the proceedings on the original and several amended bills, and the matters before set forth; and praying to have the benefit of the former proceedings, and that in case Mr. Ponsonby should not appear entitled to the additional rent of