Page:The English Reports v1 1900.pdf/586

[283] Elizabeth Worsop intermarried with John Wood, the younger, Esq. and Dorothy intermarried with Thomas Toller, who, in 1695, sold their interest in the premises to Dean Noah Webb; and Ann intermarried with Arthur Bush, and died on the 23d of November 1693, leaving issue one son, the respondent Worsop Bush. The said Dean Noah Webb also died, having first made his will, and thereby devised his interest in the premises to his wife Deborah, during her life, and after her decease, to his son Henry Webb and his heirs.

After the death of Ann Bush, one of the cestui que vies, application was made by Arthur Bush, her husband, to Lord Ross, who was then in London, to renew the lease, which he promised to do upon his return to Ireland; and that no advantage should be taken of any lapse in the mean time.

Soon after this conversation, one Fitzgerald, Lord Ross's agent, wrote a letter to Mr. Bush, informing him, that he had orders from his Lordship to receive the rent in arrear, and also the fine for renewal; but as Lord Ross was indebted to one Darby, he desired that Bush would accept bills drawn upon him, payable to Darby. Accordingly in February 1694, two bills were presented to Bush, one for £52 10s. and the other for £47 10s. making together £100, which he accepted; and one of these bills was mentioned to be for the rent of the lands, and the other in part of the fine; but neither of them was ever tendered to Mr. Bush for payment.

In 1695, Lord Ross returned to Ireland, when he was again applied to for a renewal, and a deed was tendered to him for that purpose, together with £100 as the fine; but his Lordship would not at that time, either execute the deed, or receive the fine. Whereupon Mr. Bush wrote a letter to Lord Ross upon the subject, and receiving no answer, he, in 1697, applied to his Lordship personally, and having made him sensible of the injustice of his refusal, he obtained a second promise from him that he would renew; and the Notary Public, whom his Lordship employed, and who had prepared the deed which had been tendered to him, was then sent for; but not happening to be in town, Lord Ross expressed some concern, and assured Bush that he would execute the deed whenever the notary returned.

But notwithstanding all this, Lord Ross refused to renew, and insisted upon the lapse of time which had happened while he was in England; and, therefore, in Trinity term 1701, John Wood, (whose life had been named in the room of Ann Bush) and Elizabeth his wife, Worsop Bush, son and heir of the said Ann, Deborah Webb, widow and relict of Dean Noah Webb, and Henry Webb, son of the said Noah and Deborah, exhibited their bill in the Court of Exchequer in Ireland, against the Lord Viscount Ross; stating the several applications and promises for a renewal, and praying that Lord Ross might be compelled to receive the £100 and execute an instrument of renewal for the life of John Wood, in the room of the said Ann Bush, deceased.

[284] To this bill Lord Ross, on the 18th of June 1702, put in his answer and plea; by his answer he admitted, that he was in England at the death of Ann Bush in November 1693, and did not return to Ireland till the summer of 1695; but insisted on the plaintiffs having neglected to name a new life, and pay the fine within the six months limited by the release; and that as the fine was to be paid at the Tholsell in Dublin, the plaintiffs might have tendered it there, and needed not to follow him to England, to make him a personal tender of it. He denied the several promises of renewal, charged by the bill. And as to the specific relief thereby prayed, Lord Ross pleaded, that in the release to Sir Thomas Worsop, over and above the covenants and agreements in the bill set forth, there was another covenant in the following words; viz.

And the said Sir Thomas Worsop, for himself, his executors, administrators, and assigns, doth hereby covenant, grant, and agree to and with the said Richard, Lord Viscount Ross, his heirs, executors, administrators, and assigns, that he the said Sir Thomas Worsop, his heirs, executors, administrators, and assigns, or some of them, shall and will, from time to time, and at all times hereafter, upon the failure of every life of every several person or persons within the term of this lease nominated, or to be nominated as aforesaid, for every life so failing, satisfy and pay unto the said Richard, Lord Viscount Ross, his heirs, executors, administrators, and assigns, the full and entire sum of £100 sterling, at the Tholsell in the city of Dublin, over and above the annual rent hereby reserved, within six months after the failure of every such life; and every such payment of such sum of £100 to be made without any de-