Page:The English Reports v1 1900.pdf/1066

the said ten acres, and thereupon insisted that the respondents should pay him the increased rents of £5 a year, for each of the said ten acres so ploughed up and converted into tillage contrary to their covenant, and which they had continued in tillage from the time the same were first ploughed up.

[439] But the respondents refusing to pay such increased or additional rent, and having broken the several other covenants above stated, the appellant in Trinity term 1766, brought an action of covenant in the Court of Common Pleas against the respondents, and declared therein on five several breaches of covenant. 1st, For non-payment of the rent of £5 an acre for ploughing up and converting into tillage the said ten acres, and continuing the same in tillage for four years, from the 5th of April 1762, to the 5th of April 1766. 2d, For stubbing up and carrying away 40 loads of whinn bushes, growing on the said demised premises. 3d, For suffering great part of the young trees, layers, and quicks, to be destroyed and damaged. 4th, For not keeping and preserving the gardens, court-yard, orchard, and fruit-trees, in a handsome and proper manner, pursuant to their covenant. 5th, For sowing ten acres of land, part of the arable lands of the said farm, with winter corn, without first summer-tilling, mucking, and tathing the same in an husband-like manner.

The respondents did not think fit to plead to the declaration, but suffered judgment to go against them by default; and the appellant caused a writ of inquiry of damages to be executed on the said judgment; upon the execution whereof, the former tenant of the farm and several other persons were sworn and examined on the part of the appellant, and proved that by breach of the said several covenants, the appellant's farm had suffered damage to the amount of £300. The jury therefore assessed the appellant's damages at £300.

The respondents continuing to keep the said ten acres in tillage, and refusing to pay either the increased rent for the same, or the original rent of the farm, which became due at Michaelmas 1766, old stile, and Lady-day 1767, old stile respectively, the appellant was obliged to bring two actions against them for such respective half yearly rents, and increased rents, and obtained judgments therein against the respondents by default; and upon the execution of writs of inquiry on such judgments, the appellant recovered verdicts for the said respective half years original and increased rents. But the respondents, instead of paying the damages recovered by the appellant, in the said several actions, caused writs of error to be brought on the judgments; which were afterwards non-prossed, and the judgments affirmed.

In order to put the appellant to all possible expence, the respondents, in Trinity term 1766, brought an action at law against him, and declared therein for having broke five or six of the covenants contained in the lease; to which the appellant having pleaded performance of covenants, the respondents did not think proper to proceed any further in their action, but filed a bill in the Court of Chancery against the appellant, for an injunction to stay his proceedings on the judgments he had recovered against them; and obtained the common injunction, which, upon the appellant's putting in his answer, was dissolved, and the respondents bill was afterwards dismissed with costs, for want of prosecution.

[440] On the 5th of November 1767, the respondents filed a second bill in the Court of Chancery against the appellant, complaining of the said several judgments and verdicts obtained by the appellant, and particularly with respect to the said increased rent of £5 an acre, for the said whinns and furze ploughed up and converted into tillage; and alledging, that the said ten acres, before they were so ploughed up, were of very little value, and that the same were of greater value in a state of tillage; but that in regard the ploughing up the same might subject them to some forfeiture or penalty under the lease, they or one of them acquainted the appellant, his steward, or agent, with their intention to stub up and plough the said ten acres; and that the appellant, or his agent, had given licence or consent to the ploughing up the same, or had afterwards acquiesced therein, and that the appellant, after he had had notice thereof, had received the original rent, and settled accounts with the respondents; and likewise alledging, that the subject matter of the action was taken into consideration by the arbitrators, and the damages for breach of the covenants were included in the award; or if not, that some of the breaches having happened before the award, the appellant was concluded by the award, not to seek any satisfaction