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person he meant was not the cestui que vie; and that he seemed to him to be a middle-aged man, or somewhat advanced in years.

Issue being joined in both causes, and several witnesses examined in the original cause, and publication passed, both causes came on to be heard together, on the 8th, 10th, and 11th of November 1736; when it was ordered and decreed, that the original bill of Dr. Morley Saunders should be dismissed with costs, and that the injunction should be dissolved; and that the cross bill should be retained, until after a trial at law should be had on the ejectment brought by the respondent for the recovery of the premises and the respondent was thereby at liberty to enrol the said decree with costs; which was accordingly done.

On the 5th of April 1737, and before a trial could be had on the ejectment, Dr. Saunders died; leaving the appellant Cordelia, then the wife of George Pendred, esq. his only issue and heir at law; but before his death he made his will, dated the 4th of April 1737, and thereby devised the residue of all his real and personal estate (except some particular estates not comprised in the said leases, which were by the will devised to Frances his wife, for her jointure) to the appellant John Hawkshaw, Isaac Dobson, esq. and Thomas Medlicott, gent. and their heirs, in trust for the payment of his debts; and then in trust, to permit the appellant Cordelia to receive the profits to her separate use during her life; and after her death, in trust for the appellant Morley Pendred, eldest son of the appellant Cordelia, and the heirs of his [320] body, with several remainders over; and appointed the said John Hawkshaw, Frances Saunders, and Thomas Medlicott, executors of his will; who proved the same, and took upon them the execution of the trust.

The ejectment brought by the respondent in 1733, having abated by the death of Dr. Saunders, the respondent, as of Easter term 1737, brought a new ejectment in the name of Samuel Cooke, lessee of both the respondents; to which the said Medlicott and the appellant Hawkshaw made their defence; and the same having been tried at Wicklow, at the summer assizes 1737, and the said Medlicott and the appellant Hawkshaw not offering any evidence whatsoever to shew that any of the lives were in being, the respondent Griffith obtained a verdict; but by mistake in the declaration, as to the time of laying the demise, he got a verdict only for three-fourths of the said lands; the demise being laid before one of the coheirs of Dr. Cuming, had assigned to the respondent Edwards: and the respondent having obtained judgment on this verdict, Medlicott and the appellant Hawkshaw brought a writ of error in the Exchequer Chamber to stay execution.

The respondent, therefore, in Easter term 1738, brought a new ejectment on his own demise for the whole lands, to which Medlicott and the appellant Hawkshaw made defence; and the respondent obtained a verdict at the then next assizes, and in Michaelmas term following entered up judgment thereon; whereupon Medlicott and the appellant Hawkshaw brought another writ of error, which they afterwards withdrew; so that the respondent was, by habere facias possessionem, put into possession of the premises on the 2d of April 1739.

The cross cause having been duly revived, came on to be heard upon the 8th of June 1741; when it was decreed, that it should be referred to the Chief Remembrancer, or his Deputy, to state an account between the respondent and the executors of Dr. Saunders, of the rents, accates, and duties of the premises, according to the rent reserved by the lease made by James Carroll to the said Dr. Saunders, until the death of the said Richard Clarke; and it was also ordered, that the said Thomas Medlicott, Frances Saunders, and the appellant Hawkshaw, executors of Dr. Saunders, should account with the respondent for what they or their testator made or might have made, without his or their wilful default, out of the premises, from the death of Richard Clarke, till the respondent was put in possession.

From these decrees the present appeal was brought; and on behalf of the appellants it was insisted (D. Ryder, T. Clarke), that no proof had been made of any fraud or designed misrepresentation in Dr. Saunders; or that he had any notice of the deaths either of Parrott or Litchfield, at the time of his application for a renewal. That it was impossible, from the evidence, to fix when Dr. Saunders ought to have demanded a renewal, so as to save his lease; unless the exact point of time could be ascertained, when the presumption of their being alive ceased, and of their being dead began; and [321] consequently, there was no proof of a breach of the