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£24 1s. 3d. he might be restrained by injunction, from proceeding at law for recovery thereof, and repay such sums as he and his agents had received from Roger Adams the elder, with interest from the times that he had been obliged to pay them, and all such costs as he had sustained by reason of Mr. Ponsonby's distraining on the lands for the yearly or additional rent; and in case Mr. Ponsonby should appear entitled to such additional rent, that then the representatives of Hugh Swayne might be compelled to pay the plaintiffs, the sums which Roger Adams had been obliged to pay with interest, and the costs sustained by him by reason of the lands having been distrained for this penal rent; and that the plaintiff Roger Adams might be allowed to retain a competent part of the rents payable by him out of the lands, in order to discharge the said additional and yearly rent, and all other rents due or to become due out of the lands to Mr. Ponsonby, and his heirs and that Sir Henry Cavendish, John Digby and Mary his wife, Richard and John Digby, and Richard Bradshaw, might be respectively restrained by injunction, from proceeding at law for the recovery of more of the rents than should remain, after deducting the said additional yearly rent, and all other rents payable to the head landlord.

The cause was duly revived, and the several defendants put in their answers; and issue being joined, witnesses were examined, publication passed, and the cause was set down for hearing; but abated by Mr. Ponsonby's death, which happened on the 12th of November 1763, having by his will devised the lands in question to the appellant, on condition of his taking upon him the name of Ponsonby, and appointed Rowland Bateman and John Day his executors. Whereupon, in Michaelmas term 1764, the respondents filed a bill of revivor, and the cause being duly revived, was heard on the 27th of January 1766, and continued in hearing the 29th and 1st and 3d days of February following, when the Chief Baron, and Mr. Baron Dawson, were pleased to decree the respondents a perpetual injunction against the appellant, from proceed-[434]-ing to recover the additional yearly rent; and that the appellant should forthwith pay the respondents all such sum and sums of money, as they had paid the appellant, on account of the said additional rent; and that the defendants the executors of Swayne should have their costs against the respondents, and the respondents were to have and recover the same against the appellant. But Mr. Baron Mountney took time to consider, and afterwards was pleased to deliver his opinion, that the respondents bill ought to be dismissed, without prejudice to any other they might be afterwards advised to bring against the defendants, or either of them.

From this decree the appellant appealed, insisting (W. de Grey, A. Forrester, J. Casey), that there was no ground for the interposition of a Court of Equity, to prevent the question being tried at law, where it was properly disputable; and that the respondents should have established their title there, before they had come into a Court of Equity for relief, in the manner they sought it. Had the immediate lessee applied to a Court of Equity for relief against the covenant objected to, he must have been sent to law to try how far that covenant was or was not reasonable; for supposing it unreasonable, unlawful, or waived by any act of those under whom the appellant claimed, all these were mere legal questions, no way cognizable in equity. The benefit was claimed as appendant to the inheritance, and as such, being a matter of freehold, was triable at law only. But the covenant in question, was evidently founded on the truest principles of law and policy: the former supposed the tenant resident upon the demised lands, manuring and improving them for his own as well as his landlord's benefit, whose rent arose from such industrious manurance and improvement of the tenant: the latter particularly required that residence, in Ireland especially, and at the time when this lease was made, just after the ceasing of long disturbances, and when the country was beginning to look towards the improvement of its soil, which former calamities had, a little before that period, rendered impracticable; in such circumstances, a clause of residence upon the demised premises, with an increase of rent attending the failure, was not a penalty, like the forfeiture of a man's estate upon non-payment of a sum at a certain day, but a mutual agreement for public benefit; the landlord letting his land at an easy rate, whence the tenant, by raising a comfortable subsistence for himself, would consequently benefit the community, by supplying it with the produce of that land; but upon neglect of so important a consideration, justly subjected himself to an advanced rent, as a compensation for the