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him; and that he refused to execute the lease without such covenant to restrain from aliening. He also admitted having executed a lease to David Hunter of the date, import, and at the rent and for the lives mentioned in the amended bill; and that there was in the lease no covenant to restrain the tenant from aliening.

Exceptions being taken to this answer, the appellant submitted; and, by his further answer, set forth a copy of the lease to David Hunter, dated 25th July 1744; and said that at the time of putting in his former answer, he did not know or believe that the restrictive clause was omitted in that lease, as it was for the most part inserted in all his other leases.

The respondent replied to the answers; and the cause being at issue, several witnesses were examined on the part of the respondent, and particularly the said David Hunter, who deposed, that after the commencement of the suit between the respondent and the appellant, the appellant applied to him to give up his lease; and that the reason why he applied, (as the appellant informed him) was on account of the appellant's having sworn, in his answer to the respondent's bill, quite otherwise than what had been mentioned in Hunter's lease, and promised that if he would surrender his lease, he would execute another lease; and the respondent's witnesses also proved, that the respondent, in the year 1745, let part of the premises to one Francis Stephenson.

The appellant also examined witnesses, and particularly several of his tenants, with respect to the inserting clauses of restriction in the appellant's leases; but none of the leases with such clauses of restriction were proved in the cause, neither did the appellant venture to examine the said James Somerville his clerk, with respect to such clauses of restriction.

Publication being passed, and the cause set down for hearing, the same came on to be heard on the 13th of June 1757, when the only question between the parties for the consideration of the court was, whether a clause of restriction from alienation should be inserted in the lease to the respondent: and on the 15th of the same month, the court decreed that the respondent was entitled [338] to a specific execution of the agreement; and that the appellant should execute a lease to him of the lands and premises, with the turf bog and appurtenances to the said premises belonging, at the yearly rent of £17 11s. 6d. for the lives of the respondent and his two sons, in the bill named, with the usual covenants between landlord and tenant, without any clause against aliening or setting; and if the parties could not agree, it was referred to a baron to settle it, and the respondent was to have his costs.

From this decree the appellant appealed, insisting (C. Pratt, T. Sewell) that no proof was made in the cause, that he had ever entered into any agreement for granting such a lease as he had been decreed to grant to the respondent, and that he had denied by his answers, that he ever agreed to grant him such a lease. It was however objected on the part of the respondent, that the appellant had by his answers admitted, that he agreed to treat the respondent as well as any of his tenants to whom he had granted leases; that he had granted leases to Waite and Hunter without such restrictive covenant; and that therefore, to fulfil his agreement with the respondent, he should have granted him as beneficial a lease as he had to them; that is, a lease without such restrictive covenant.—But to this it was answered, that if the respondent would avail himself of the appellant's answers, the several parts of those answers, relative to the agreement for a lease, must be taken together; and then it would manifestly appear, that the appellant's meaning by those words in the objection, was to grant the respondent a lease conformable to those which he had granted to his other tenants in general; that is, a lease with such restrictive clause; and such a lease the appellant was always ready to grant. That at the time of his agreement to grant a lease to the respondent, the covenant against aliening or demising was contained in every lease theretofore granted by the appellant to his tenants, except in one, which had been granted to Mr. Waite. In that lease alone the restrictive clause was omitted, because Mr. Waite was the only tenant who had paid a fine, and thereby became a purchaser of the omission of such restrictive covenant; but the respondent neither paid, or agreed to pay a fine for his lease; consequently could only expect to have as beneficial a lease as the appellant had granted to his other tenants, who had paid no fine. That this