Page:The English Reports v1 1900.pdf/1129

for himself, as to make leases of them to a stranger; and supposing that the particular words of this statute do in ordinary cases exclude all equitable jurisdiction, as to the value of the lands; yet it was apprehended, that as every sole corporation is a trustee for succession, no words of this statute could or ought to prevent a Court of Equity, in particular cases of leases made in trust for the lessor, and injurious to such succession, from seeing that such rent as the law requires, is reserved upon [532] such leases, so avowedly made in trust for the lessor for if all equitable jurisdiction in such particular cases is destroyed by this statute, and if, as the respondents seemed by the nature of their defence to presume, no redress can be had from a jury, every Archbishop, Bishop, and other ecclesiastical dignitary, Masters and Fellows of colleges, and Masters or Governors of hospitals in Ireland, might make leases in trust for themselves, at any low rent whatsoever, without any redress for the successor in equity or at law. And in the present case, as it did not appear by the plea or answer, that a moiety of the value was reserved as rent, if the plea and demurrer were allowed upon a right principle, the same principle would justify the allowance of a plea and demurrer, in case the late Provost had not only not reserved a moiety of the true value, but reduced the rent reserved on leases made by his predecessor, to twenty shillings yearly. Let the case of a stranger taking a lease under this statute be what it might, all that was contended for on the part of the appellant was, that where a lessee is a trustee for the lessor, who had made such lease as aforesaid, it is incumbent upon such trustee, in a Court of Equity, if he would repel the equitable jurisdiction which arises in all cases of trusts, to shew by his plea or answer upon oath, that his lessor, or cestui que trust, did no more than by law he might have done, if a stranger had been the lessee, i.e. that a moiety of the true yearly value was reserved; and the omission of this would leave the defendant in the light of a trustee for the lessor, without any foundation for the court to presume, that his lessor could lawfully have made a like lease to a stranger; but, on the contrary, the silence of the defendant in this particular, created a strong presumption, that such a lease could not have been lawfully made to a stranger.

But it was said, that if the defendants had sworn, that a moiety of the true value was reserved on these leases, it would have destroyed their plea.

If this objection was well founded, and a moiety of the true value was not reserved, the defendants had no sufficient case to support a plea; the general inconvenience having been already mentioned which must follow, if a plea of this nature will hold in every case where the true moiety of the value is not reserved, or the ancient rent reduced. But in fact, the defendants could not take upon themselves to swear, that a moiety of the true value was reserved; for if they could, it was conceived that they might, by a protestation in their plea, upon oath, that the rent reserved was not less than a moiety of the true value; and by insisting, as they had done, that whether it was or not, was only to be enquired into at law, have had the full benefit of their plea, if it ought to be allowed in a case where a moiety of the true value was reserved. To bring a case within the statute of Charles, two things are required; first, that there should be no other lease in being of the lands, or any part thereof, which should not expire within one year; secondly, that there should be reserved as much yearly rents or profits, or more, as the [533] moiety of the true value of the lands, at or immediately before the time of making, should amount to. The defendants had averred the first requisite, but had omitted the second. And in a case attended with such peculiar circumstances as the present, the court should not have determined the question as to the validity of these leases in equity, till those circumstances were fully laid before the court at the hearing of the cause; and at most, should only have reserved the benefit of the plea to the hearing, with liberty to except.

It was further objected, that the tenant of a Provost, college, or Bishop, should not be bound to discover; that such discovery would subject him to a forfeiture; and that entertaining such a hill, might shake a considerable part of the property of the kingdom of Ireland, in the hands of Bishops tenants.

But it was not necessary on the part of the appellant to contend, that any such tenant was bound to discover the value; ho insisted, that the respondents were not to be considered in a Court of Equity as tenants; for Gamble and Tomkins were executors of the late Provost, and stood in his place as to those leases, and were bound