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and having served during all the Irish war, there remained an arrear of pay due to him and his regiment, amounting to above 12,000l. Not being able to recover this money, he betook himself to farming, in order to support his numerous family, which consisted of a wife and eleven children; and with that view he took the lease in question; and carried with him nineteen Protestant families, consisting of about 150 persons, from the county of Down, to the north of Ireland, above 200 miles distant, together with their cattle and stock, to cultivate this farm of Knocklegane, and place a Protestant colony there. But, upon his arrival, he found it occupied by one James Dooley, an Irish papist, who claimed the greatest and best part thereof, under a prior lease, granted by Lord Kerry; and who, with force and arms, obstructed the plaintiff in taking possession, and threatened to raise all the Papists of the country upon him, if he did not desist from his purpose. The plaintiff being thus opposed, never got possession of any part of the premises; and the families he brought with him having lost their stock and cattle, and being utterly ruined and impoverished, he was obliged to carry them back again to the county of Down, and make them satisfaction for their loss, and was thereby damnified to the amount of 5001. and upwards; without ever receiving any recompence from Lord Kerry, though his Lordship was often applied to for that purpose. However, about Christmas 1701, the plaintiff, with Lord Kerry's consent, assigned over his interest in the lease to one John Walsh, who was tenant to his Lordship of other lands, [69] and by whom he was accepted as tenant of these; and thereupon, the plaintiff retired to the management of his farms in the county of Down, and held himself effectually discharged from the covenants of this lease. It was true, that the plaintiff never paid any rent for this farm; but it was also true, that Walsh paid the reserved rent of it for some time to Lord Kerry, or his steward, who received the same from him, as the plaintiff's assignee; but Walsh becoming insolvent, the present action was brought against the plaintiff for the rent in arrear, without ever making any demand for the same, otherwise than by arresting him for the whole sum. Therefore, as these facts were undeniably true, and as the plaintiff not only never had possession of the premises, but had sustained so great a loss in endeavouring to get possession; it was hoped, that he would not appear to act unjustly, in attempting to avoid this lease on the legal grounds before stated.

The facts of the plaintiff's case were not controverted by the defendant; but, on his behalf, it was contended (T. Powys, S. Dodd), that this being an action of covenant upon a deed or indenture, under the hand and seal of the plaintiff, and the title of the land not being in question, he was estopped from saying the lease was not a good lease; for, let the lease be what it would, whether for lives or at will, the covenant was good; and if otherwise, the tenant might enjoy the land, and yet the landlord have no remedy for his rent.

And accordingly, after hearing counsel on this writ of error, it was ordered and adjudged, that the judgment given in the Court of Exchequer in Ireland, and the affirmance thereof in the Exchequer Chamber, should be affirmed; and that the record should be remitted, to the end execution might be had thereupon, as if no such writ of error had been brought into the House. (Jour, vol. 19. p. 264.)

The now defendant brought his action of debt in the Court of King's Bench, against the now plaintiff, as bailiff of the borough of Ivelchester, for refusing to deliver to him a copy of the poll taken at an election for members of Parliament for the said borough; at which election, the defendant was a candidate: and this