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the restrictive clause, and the other alterations of the agreement mentioned in the indorsement, sworn to and insisted on by the appellant's answer (in case the same had been proved, which they were not), would not now afford any ground for an alteration of the lease originally proposed; neither could the appellant avail himself of it, because it was admitted by him, that he himself tore and destroyed the lease which had been prepared, with the indorsement, and thereby cancelled such new agreement, thus set up without evidence. Lastly, that the testimony of the appellant's tenants, to prove that restrictive clauses from alienation were inserted in all or most of their leases, was not conclusive, as the leases without such clauses to those tenants might, pending this suit, have been exchanged for leases containing them. And this observation acquired the greater weight in the present case, because it was in proof on the part of the respondent, that since the suit was instituted, application was made by the appellant to David Hunter, one of his tenants, (not under his influence,) to make such exchange, which was refused. And it was very remarkable, that the appellant had not ventured to prove and produce any of his leases containing such restrictive clause; as the dates of them must then have appeared. As therefore the respondent, from the time of the original agreement, had fully performed every stipulation and covenant on his part, and had been so long and unjustly disappointed of his lease; and forced into an expence to compel a performance of the agreement by the appellant, greater than the value of the inheritance of the lands to be demised; it was hoped that the appeal would be dismissed with exemplary costs.

Accordingly, after hearing counsel on this appeal, it was ordered and adjudged, that the same should be dismissed, and the decree therein complained of, affirmed: and it was further ordered, that the appellant should pay to the respondent the sum of £100 for his costs, in respect of the said appeal. (Jour. vol. 29. p. 421.)

Lady Iveagh, the daughter of William Earl of Clanricarde, was in her life-time entitled to a portion, which was a charge upon her father's real estate in Ireland; and was also as executrix and residuary legatee of her mother Countess Hellen, who was executrix and residuary legatee of Colonel Thomas Burke, her second husband, entitled to several mortgages upon the same estates, and amongst others, upon the lands of Tyrehane; and by her will in 1744, she distributed her personal estate amongst her children, of whom Hellen, the wife of Richard Butler, Esq., was one.

In the year 1746, Mr. Butler, as the surviving executor of Lady Iveagh, was in possession or in receipt of the rents and profits of several of the estates which were subject to the above-mentioned incumbrances, and amongst others, of the lands of Tyrehane, for the purpose of satisfying such incumbrances; which estates, subject thereto, belonged to the respondent the Earl of Clanricarde.

The appellant was then tenant in possession of the lands of Tyrehane under Mr. Butler, which he held at the yearly rent of £90 by a lease for 21 years, which commenced from the 25th of March 1740, and had been made to him by Lady Iveagh.

The appellant was in the same year 1746 informed, that all the leases made by Lady Iveagh since the death of Colonel Thomas Butler her husband, of any part of the said estates, would be avoided, unless the respondent the Earl of Clanricarde, or his uncle the Honourable Thomas Burke, (who was his lordship's agent and