Page:The English Reports v1 1900.pdf/229

The respondents in affirmance of the decree made this case: That Earl Wentworth, by indenture dated 31st December, 1656, in consideration of 1250l. demised the lands in question, and several other lands (which by leases in being did not then yield above 100l. a year) to Sir James Shaen for 41 years, at 110l. rent; and 2d December, 1659, in consideration of 250l. did by another indenture demise the reversion to John Humphrys for 99 years, in trust for Sir James Shaen, at 100l. rent; and by lease and release, 25th and 26th May, 1660, Earl Wentworth, with consent of John, Earl of Clare, (whose daughter Earl Wentworth had married) and of the Honourable Robert Boyle, Esq. in consideration of 1000l. conveyed all said lands and premisses to Arthur Annesley, Esq. afterwards Earl of Anglesey, and others, and their heirs, in trust for Sir James Shaen and his heirs; and soon afterwards said Earls of Kildare and Clare ordered said lands to be left out of the Earl of Kildare's rent-roll, and it was so done; and Sir James Shaen, until Michaelmas, 1885, received the rents of the premisses in question from appellants, or those they derive under, and the lease under which the appellants claimed expired 25th March, 1686, before and after which time appellants made frequent applications to Sir James Shaen and respondent, to renew their leases at an under value, which being refused, appellants threatened to set up Lord Kildare's title, pretending to be his tenants, and that they had attorned to him; and shewed that respondent, after his father, Sir James's death, exhibited his bill against appellants, to be restored to the possession of the premisses in question, and for an account of the mesne profits since their lease expired, they having from that time held over the possession; and that appellants in their answer insisted they never were tenants to Sir James but to John, Earl of Kildare, and believed his title best, though appellant Handcock, in his answer to a bill formerly filed by said Earl of Kildare in the Exchequer, set forth, that he was well assured that said deeds of lease, as also of the reversion, were duly made over to the said Sir James Shaen, or in trust for him, [126] and that he bad duly paid the rents to Sir James or his order; and that he and Ridgley Hatfield (under whom appellant Hatfield claimed,) held as Sir James's tenants, by virtue of the lease for 29 Years, which he expected to hold to the end of the term; and the appellant Hatfield made proposals in his own handwriting, to take a new lease from the respondent's father, representing and recommending himself as Sir James's faithful old tenant; and it appeared by proofs in the cause that respondents were, and always owned themselves tenants to respondent and his father; and that the chancellor, upon hearing the cause, decreed an injunction to restore respondent to the possession, and appellants to account for the mesne profits at 40l. yearly, the old rent, from the expiration of the lease to the time of the bill filed, and from that time according to the full value; and appellants to have allowance for such money as they paid to the Lord Ranelagh on account of disturbance, or for his interest in the lands; which decree respondent alleged was very favourable to appellants, in abridging the mesne profits to 40l. a year for that time, the premisses being worth 500l. per annum; and as to the suggestion in the appeal, that no decree ought to have been made, the Earl of Kildare not having been a party, respondent showed that the decree was agreeable to justice, and the constant course and practice of the courts of equity in Ireland; which never permit tenants who hold over their terms, to set up a title in any other person against their landlord, whose title by their lease they had acknowledged and held under; for that would be contrary to the fidelity due from a tenant to his landlord, and a breach of the trust reposed in him; and that it would be of fatal consequence to all the protestant proprietors in that kingdom, whose tenants (being generally papists) would thereby be encouraged to betray the possession to the old Irish proprietors, and drive their protestant landlords to be plaintiffs at law, where it would be almost impossible to make out their title, most gentlemen's evidences being lost or destroyed in the many wars, rebellions and disorders which have happened in that kingdom; and that this is the rather reasonable, because by the decree the possession is barely to be restored, which cannot interfere with the right of any man but the very tenant party to the bill; and further insisted, that the Earl (who and his ancestors had been out of possession near 50 years) should not be put into possession till they [127] had made a title at law, and that the respondent, who had been so long in possession, ought not to be stripped of his long possession by the fraud of his