Page:The English Reports v1 1900.pdf/944

Anderson, his heirs, executors, administrators, and assigns, that, as often as any of the lives, for which the said premises were thereby granted, or any of the lives which should be inserted in any other lease then after to be made of the said premises, to the said Arthur Anderson, his heirs and assigns, should happen to fail, he the said James, Duke of Ormond, his heirs and assigns, should and would, from time to time, and at all times for ever then after, at the request of the said Arthur Anderson, his heirs or assigns, and upon payment of all rents of the said premises that should be then in arrear, and advancing and paying, by way of fine, within twelve calendar months next after the death of each life, £16 13s. 4d. renew and make a new lease of the said several lands, tenements, and hereditaments, to the said Arthur Anderson, his heirs and assigns, at and under the yearly rent and reservations, and with the covenants, conditions, and provisoes contained in the said lease; with the like clause for being dispunishable for waste, and the like covenant for renewal for such two lives as should be then in being, and also for one other life, to be added in the place and room of such of the three lives as should from [257] time to time happen to fail. Provided, that if when such new lease or renewal was to be made, more than one of the cestui que vies before-mentioned should be dead, there should be named in such new lease, so many other lives in their stead; and there should be paid to the person or persons, who was or were to renew the same, a fine of the value aforesaid, for each of the said cestui que vies, who should be dead at the time of the said renewal.

At the time of taking this lease, Arthur Anderson had two nephews, each named John Anderson; one being the son of his brother Alexander, who left Ireland in 1697, and the other the son of his brother James, admitted to be still living; but the appellant being then, and for a considerable time afterwards, concerned as agent for the Duke, under the said Commissioners, it became his proper office and duty to take care that all the cestui que vies, which should be named in such leases as were then to be perfected, should be certainly and rightly described; and for that purpose this lease was deposited in his hands to be examined; yet he left in uncertainty which of the said two nephews was the cestui que vie intended in the lease.

By another act of parliament, passed in England in the 12th and 13th years of King William III. the said Duke was impowered to sell the fee-simple and inheritance of part of the lands, whereof be was enabled to make leases for lives, with renewals as aforesaid; and, by virtue of this second act, the Duke, by deeds of lease and release, dated the 2d and 3d of March 1703, did, in consideration of £510 19s. 2d. grant, bargain, and sell to the appellant and his heirs, the said lands of Killcross, subject to the lease so made to the said Arthur Anderson.

In July 1714, Arthur Anderson died, having made his will, dated the 1st of July 1704, and thereby devised his right and interest in the said lease to the respondent.

Within twelve calendar months after the death of the said Arthur Anderson, the respondent applied to the appellant for a renewal of the lease, and that another life might be inserted in the room of Arthur; and at the same time tendered the fine of £16 13s. 4d. all rents and arrears being discharged; but the appellant absolutely refused to renew the said lease, insisting that John Anderson, one of the cestui que vies therein named, had been absent from Ireland ever since 1697, and therefore must be presumed to be dead; and that no tender of a fine for renewal having been made, within twelve calendar months after his absence, the respondent's benefit of renewal was therefore forfeited.

Whereupon in Michaelmas term 1715, the respondent filed his bill in the Court of Exchequer in Ireland, against the appellant, setting forth the aforesaid lease, and the covenants for renewal therein contained; and that the respondent was become entitled thereto, and to the benefit of renewing the same; and insisted that John Anderson, the cestui que vie in the said lease, was John Anderson the son of James, who was still living; and [258] therefore prayed, that the appellant might be obliged to renew the said lease, by inserting a new life in the room of the said Arthur Anderson, pursuant to the aforesaid covenant.

The appellant put in his answer to this bill, and thereby insisted that John Anderson, the cestui que vie in the said lease, had withdrawn himself from Ireland, soon after the execution thereof, and had died in remote parts; and that neither the said Arthur Anderson, nor the respondent, having made any tender of a fine for a renewal, within twelve calendar months from the time of his so absenting himself, the benefit of the