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covenant for renewal by any lapse of time. If it was to be supposed, that Parrott and Litchfield were dead in the wars, before the lease granted by the respondent's ancestor to Dr. Saunders, it was the fault of the lessor to grant such a lease; but if it was to be presumed that they were then living, not the least evidence had been offered of their deaths, but only of their long absence. And it would be of very fatal consequence to lessees of this kind, who were very numerous in Ireland, to be obliged, upon pain of forfeiting their leases, to make applications to renew, before they have notice of the deaths of their cestui que vies; especially, as it is in the power of the landlord, by the Irish statute of 7 Will. 3. c. 8. to call upon his lessee, after seven years absence of a nominee or cestui que vie, and oblige him to prove him to be living. But supposing Dr. Saunders to have been guilty of any neglect or delay in this case, it is the constant practice of Courts of Equity to relieve against a lapse of time in the performance of covenants or conditions, where, as in the present case, a compensation can be made for the delay; and more especially, where such lapse of time has happened by mistake or accident, and where the injury arising from a refusal of relief will be irreparable, by losing the estate itself, and all the improvements made upon it in confidence of a continuance of the lease.

On the other side it was contended (W. Murray, J. Browne), that the lease being determined, and the time for renewal long since elapsed, and Dr. Saunders having declined all applications to add any new life, till near three years after the decease of the surviving cestui que vie, there was no foundation to relieve against the lapse of time, even supposing it to have happened from an innocent neglect; because it was an essential part of the agreement, that the new life should be named within the limited time; and was inserted for this particular purpose, that the lessor might from thenceforth have his chance of a new fine, by the death of the new cestui que vie; and therefore a Court of Equity could not dispense with the lessee's neglect of nomination, without destroying a substantial part of the contract, and depriving the lessor of a beneficial chance, for which the Court could not give a compensation. That Dr. Saunders appeared, from a variety of circumstances, to have acted a very unfair part; not only by changing the description of one of the cestui que vies, but also in attempting, by concealment and misrepresentation of the truth, to ensnare the respondent into a renewal: for it was in proof, that upon the treaty in February 1732, in Dublin, and upon the respondent's desiring to know how long Clarke had been dead, Dr. Saunders affirmed, that he had been dead only about thirteen or fourteen months; though he knew that Clarke had been dead near three years, and though he had actually, on the 7th of April 1730, renewed a lease with George Alcock, who was Clarke's devisee. And when the respondent, at the same time, enquired what was become of Thomas Litchfield, one of the original cestui que vies, Dr. Saunders falsely affirmed, that he was in the country; though in the year 1727, [322] he had renewed an under lease for the life of John Winnett, in the room of Litchfield, and took £56 for it, which was the full fine for adding a new life. And as to Joshua Parrott, the other original cestui que vie, whose description was varied in the renewed leases, as before mentioned, the respondent having some suspicion of his death, particularly enquired of Dr. Saunders, during the treaty, if he was then living; to which the Doctor affirmed, and repeated the affirmation, that Joshua Parrott, the cestui que vie in the lease, was alive, and had been with him about three weeks or a month before, and was a poor old man, to whom he had given a piece of money; all which now appeared to be a manifest untruth. As to the pretence, that the description of this man was varied by the mistake of the ingrossing clerk, there was not the least proof, or even a probability of it; for there was nothing that could mislead the person who drew or ingrossed the new lease, it being naturally the practice to follow the descriptions of the old leases, and not to form new and different ones. It was therefore hoped, that after so long an acquiescence under the decree of November 1736, for dismission of the original bill, and after the trial of two ejectments, and verdicts obtained in both; the decrees would be affirmed, and the appeal dismissed with exemplary costs.

Accordingly, after hearing counsel on this appeal, it was ordered and adjudged, that the same should be dismissed; and the decrees therein complained of, affirmed: and it was further ordered, that the appellants should pay to the respondents £100 for their costs in respect of the said appeal. (Jour. vol. 26. p. 383.)