Page:The English Reports v1 1900.pdf/437

But, after hearing counsel on this writ of error, it was ordered and adjudged, that the judgment given in the Court of Queen's Bench should be reversed; and that judgment should be given for the plaintiff. (Jour. vol. 19. p. 227.)

The plaintiff afterwards petitioned the House (p. 284), stating, "That the House had reversed the judgment given against him in the Court of Queen's Bench, and had ordered that Court to give judgment for the petitioner, with his costs and damages; but that, notwithstanding the said order, the Court had refused to give judgment for the petitioner, or make any rule therein; alledging, that judgment ought to have been given by the House." Whereupon it was ordered, that the former judgment of the House should be altered and amended, by leaving out these words ["And it is further ordered, that the Court of Queen's Bench shall give judgment for the plaintiff John Lyde"] and inserting instead thereof ["And that judgment is hereby given for the plaintiff John Lyde."] And that the Court of Queen's Bench do tax the said John Lyde his costs, as if the said Court had given judgment for him.

By indenture dated the 14th of May 1697, Lord Kerry demised to the plaintiff the town and lands of Knocklegane, in the parish of Duagh, in the county of Kerry; for the natural lives of himself, and Jane his wife, and Daniel Monroe, their eldest son, and the life of the longer liver of them, to commence from the 17th day of the same month; under the yearly rent of 30l. for the two first years, 45l. for the six next years, and 58l. 10s. for the residue of the term, payable half-yearly. And by this lease, the plaintiff covenanted to pay the said reserved yearly rents, at the respective times therein before mentioned.

In Michaelmas term 1707, Lord Kerry brought an action against the plaintiff, in the Court of Exchequer in Ireland, for six years [68] arrear of rent due upon this lease, amounting to 303l. 15s. and judgment having been obtained by default, a writ of inquiry was, on the 2d of December 1708, executed before the Lord Chief Baron Rochford, when the jury found 299l. 16s. 10½d. damages, and 6d. costs; and thereupon final judgment was entered up for the same, and for 15l. 9s. 10d. increased costs, amounting in the whole to 315l. 7s. 2½d. Which judgment was afterwards affirmed, upon a writ of error in the Exchequer Chamber of Ireland.

But, to reverse this judgment, and the affirmance of it, the plaintiff brought a writ of error in Parliament; and on his behalf it was insisted (W. Salkeld), that the lease granted by Lord Kerry was a lease for lives, which could not be without livery and seisin, or lease and release, or bargain and sale; and that therefore, this being an estate for life, by a bare indenture of demise without livery, was void by the rules of the common law. That the lease bore date the 14th of May 1697, to commence from the 17th day of the same month; and being a lease of a freehold, to commence in futuro, was void, and contrary to the known and settled rules of law.

Besides these arguments, the circumstances of the case were much relied on, as being peculiarly hard and oppressive.—The plaintiff was a Colonel in the army, and happening to be at Londonderry, in the year 1689, when that place was besieged by the forces of the late King James, he raised men and arms for its defence;