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construction was consistent with the words and meaning of the agreement, and constituted an equality in all the appellant's leases; whereas the contrary construction was repugnant both to the words and obvious sense of the agreement, and established a partial lease for the respondent. For to say that the lease granted to Mr. Waite, who paid a fine, was to be the model of that which was to be granted to the respondent, who paid no fine, was to say, that the appellant agreed to treat the respondent better than any one of his tenants, at the same time that he only agreed to treat him as well as any of them. And with respect to Hunter's lease, it was improperly and unfairly introduced into this cause, and was totally immaterial to the present question; for that lease was made sub-[339]-sequent in time to the agreement with the respondent, and the omission of the restrictive clause therein, the appellant had fully accounted for in his answer, viz. That he had executed that lease without reading it over, upon a presumption that his lawyer, who prepared it, had inserted such restrictive covenant therein.—But it was further argued, that the respondent himself had acquiesced under the restrictive covenant which he now objected to, that he stood by, and insidiously encouraged the appellant to execute a lease with such covenant therein; and after having thus drawn the appellant in, he refused to execute a counterpart, and now endeavoured to establish that very lease in all respects, except the covenant. That the respondent had agreed to waive the agreement for a lease, and to give up the lands to the appellant, on being paid for his improvements, which the appellant always had been, and was still ready to do, and to take back the lands. That by the decree the appellant was not only ordered to execute a lease of the farm, but also of the turf bog and appurtenances to the premises belonging, although there was not the least proof in the cause, nor was it so much as charged in either the original or amended bills, that any part of the turf bog of Breagh, belonged to, or was ever occupied with the farm; nor was this turf bog so much as mentioned in either of the bills; nor was there any charge or the least tittle of proof that the appellant agreed to demise the turf bog, or any part of it, along with the lands, or that he even agreed to demise the lands with the appurtenances. And it appeared from the Register's notes or minutes of the decree, that no mention was made by the court of the bog or appurtenances at the time of pronouncing the decree. Besides, it appeared in proof, that the appellant's tenants of his other lands cut their fuel in this turf bog; from whence it must be inferred, that the utmost which the respondent could with any colour pretend to, was a right of common of turbary in the said bog. And supposing he had proved that such a right was an appurtenant to the lands, and that the appellant had agreed to demise the lands with the appurtenances, such proof could not have supported a decree, ordering the appellant to execute a lease of the bog itself. It was therefore hoped that the decree would be reversed, and the respondent's bill dismissed with costs.

On the other side it was contended (C. Yorke, J. Morton), that clauses to restrain the assignment of leases, especially in cases where improvements are expected from the lessee, are unusual, and always strictly construed; but that in the present case, the insertion of such a clause was not warranted by the agreement of the parties. The original agreement, as stated in the respondent's bill, was admitted by the appellant's answer; and that at the time of entering into it, no mention was made of a covenant for restraining the respondent from alienating or setting the premises demised to him; and that the appellant then knew that the respondent did not intend to reside on the lands during the minority of his sons. And as, by the agreement thus admitted, the lease to the respondent was to be made as convenient and beneficial as any of the leases granted by [340] the appellant to any of his other tenants; and as the respondent, by the admission in the answer to the amended bill, and by evidence, had established the fact, that leases were granted by the appellant to some other tenants without such restrictive covenants or clauses; the decree complained of was grounded upon the clear intention and agreement of the parties. That the appellant's repeated acknowledgment of this agreement by acceptance of the rent, and the respondent's setting the premises to other tenants without interruption before the lease was prepared, or any such restriction mentioned, were conclusive to shew that at the time of the original agreement no such restriction was thought of or apprehended. That the respondent's acquiescence in