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breach of both a private and public trust reposed in him by his landlord. And if the question was cognizable in a Court of Equity, this reasoning went even to the justice of the decree complained of. That the original lease granted in 1719, was accepted with all its clauses and covenants, and no objection was then made to the covenant in question, nor yet upon the renewal in 1729 and the first demand of additional rent on account of non-residence, was immediately and freely complied with so that [435] for upwards of thirty years, no objection was made either to this, or any other part of the lease. After so long an acquiescence, and at so great a distance of time, the impeaching a solemn agreement freely and voluntarily entered into by the parties, without the least pretence of hardship, or undue advantage taken, would be of most mischievous consequence. As to the objection, that to comply with this clause, the whole posterity of the family of the Swaynes must reside on the lands; it was answered, that the residence required was only from the lessees as they came to inherit, not from any other branch of the family; and whatever pretended hardship might now be set up, such was the original agreement, which must continue as long as the lease, how often soever renewed, unless discharged by mutual consent.

On the other side it was contended (J. Dunning, A. Wedderburn), that the covenant in the lease for the perpetual residence of the lessee and his heirs, with all their family, was repugnant to the estate demised, contrary to reason, in restraint of natural liberty, and against the policy of the realm. That the lease being expressly recited to be made in pursuance of an agreement and decree in 1713, the covenant was not warranted by, but was in addition to that agreement; and as the decree did not direct any such covenant to be inserted in the lease, this covenant was proper to be relieved against in a Court of Equity; the lease in this particular varying from the agreement, in conformity to which it is said to have been made. But supposing the covenant good in point of law, yet being inserted only for the sake of improvement, and to secure the rent reserved, the same had been substantially performed, and the design thereof answered to the head landlord; for Roger Adams, as was admitted by the answers, kept the lands well stocked with more than sufficient to answer the rent, and the large fines paid by the under lessees, shewed the lands to be of considerable value, over and above the head landlord's rent. That the additional rent mentioned in the covenant was in the nature of a penalty, and relievable against in equity; and although the forfeiture, if any, must have incurred soon after the granting of the orginal lease, yet from that time till August 1751, no demand for any additional rent was made on the contrary, Richard Ponsonby, who well knew of the non-residence both of Daniel Swayne and Hugh his son, from time to time accepted the reserved rent, and gave receipts for it in the usual manner, without demanding any additional rent; and he twice renewed the original lease without making any claim of the same; by which acquiescence and acts of the lessor, the penalty and covenant had been waived, and ought not now to be resorted to, and especially against purchasers for a valuable consideration; who from such acquiescence must be induced to believe, either that no forfeiture or penalty had incurred, or that none was then existing.

After hearing counsel on this appeal, it was ordered and adjudged, that the decree complained of should be reversed; and that the respondent's bill should be dismissed without costs, as against the appellant. (MS. Jour. sub anno 1770. p. 127.)