Page:The English Reports v1 1900.pdf/587

duction or defalcation, for or by reason of assessments, subsidies, or any other charges whatsoever, chargeable on landlord or tenant, as aforesaid. Provided always, that if it shall happen, that upon the failure of any such life herein above nominated, or to be nominated as aforesaid, the said Sir Thomas Worsop, his heirs, executors, administrators, or assigns, shall not pay the said Richard, Lord Viscount Ross, his heirs or assigns, for every life so failing as aforesaid, the said full and entire sum of £100 at the Tholsell as aforesaid, within six months after the failure of such life, and shall not also within the said six months, nominate the life of some other person in lieu thereof, to be added to the time and term of this present grant as aforesaid; that then and for ever after such failure on the part of the said Sir Thomas Worsop, his heirs or assigns, it shall and may be lawful to and for the said Richard, Lord Viscount Ross, his heirs, executors, administrators, and assigns, to sue for the said sum of £100 or else, at his election, for ever after to deny or refuse the said Sir Thomas Worsop, his heirs, executors, administrators, and assigns, to add, nominate, or put any other life or lives to the time and term of this present grant, other than the life or lives which then shall be in being: and in case the said Sir Thomas Worsop, his heirs, and assigns, shall not, within the time or [285] times hereby limited and agreed, pay the said sum of £100 for each life so to be nominated, and nominate each life so to be added within the time aforesaid; that then the premises, from and after the determination of the lives then in being, shall be and remain to the use of the said Lord Viscount Ross, his heirs and assigns.

He further pleaded, that the said Sir Thomas Worsop dying before the said Ann, the heirs, executors, administrators, or assigns of the said Sir Thomas, did not within six months after the death of the said Ann, pay or tender to the said Viscount, or his assigns, the said fine of £100 over and above the annual rent, at the Tholsell in Dublin, or elsewhere, nor within the said six months, nor in some years after nominate a new life, whereby the said Lord Viscount was at liberty, for ever after, to refuse to add any other life; and the said premises, after the determination of the lives then in being, were by the said indenture, limited to remain to the said Lord Viscount, his heirs and assigns for ever. And that after failure made of paying the said money, or nominating any new life, he made his election, as he then did, and declared that he would not renew the said lease.

This plea was argued on the 24th of November 1702; when it was ordered, that the plea should be reserved with the costs, till the hearing of the cause, with liberty for the plaintiffs to reply.

Soon afterwards Lord Ross died, leaving the appellant, his eldest son and heir, a minor; who, thereupon, became seised in tail of the reversion of the premises, subject to the said lease for lives, during the continuance of the lives then in being, by virtue of a settlement made by his father in 1682, and not as his heir at law.

The respondents took no step in the cause, from the time of arguing the plea in 1702, till Hilary term 1718, when they exhibited their bill of revivor against the appellant, but did not proceed thereon; and on the 27th of May 1725, amended their said bill, and made Francis Bernard, Theobald Butler, and John Butler, (to whom the appellant had conveyed the premises upon several trusts, in pursuance of an act of Parliament) defendants; to which bill the appellant, on the 3d of February 1726, put in his answer, and thereby insisted, that the respondents had lapsed their time for renewal, and hoped he should not be compelled to add a new life instead of a former, which, by the bill, appeared to have fallen above thirty-three years before.

On the 7th January 1729, Elizabeth Hoey, who had married one Roth, and was the life added in the room of John Worsop, died. Afterwards Deborah Webb died, and also Henry Webb, leaving Noah Webb, his eldest son and heir; and on the 1st of April 1730, John Wood, the life named by the respondents in their bill, to be added in the room of Ann Bush, likewise died: whereupon the respondents, on the 31st of March 1731, exhibited another bill of revivor, and also a supplemental bill against the appellant, and the said Francis Bernard and John Butler, the [286] said Theobald Butler being then dead, in order to compel the appellant to add the life of Richard Toller, for that purpose named in this last bill, in the room of the said John Wood, and to receive the fine of £100 for such renewal. But the respondents, in this bill, took no notice of the death of Elizabeth Hoey, who died in January 1729, nor sought to have any new life inserted in her place, though they had notice thereof.