Page:The English Reports v1 1900.pdf/945
renewal was become forfeited, and therefore he absolutely refused to renew the said lease.
On the 19th of February 1717, the cause was heard; when the Court directed an issue to be tried at the then next assizes, to be held at Kilkenny, whether John Anderson, the cestui que vie in the lease mentioned, was living at the time of the plaintiff's tender of his fine to the appellant, or not; and if dead, when he died.
This issue was accordingly tried before Sir John St. Leger, one of the Barons of the said Court of Exchequer, at the assizes held in and for the county of Kilkenny, on the 2d of April 1718; when the jury, on the evidence of one Thomas Barnes, who was clerk to the appellant, returned their verdict in the following words, viz. "We find that Black John Anderson, son of Alexander Anderson, is the cestui que vie in the lease mentioned; but we do not find that he is dead."
On the 7th of July 1718, the cause was heard before the Lord Chief Baron Gilbert, and the rest of the Barons, upon the equity reserved; and it then appearing that John Anderson, the cestui que vie found by the verdict, had been a long time absent from Ireland, and there being no positive proof of his being alive, the court ordered the respondent to amend his bill, by inserting a tender of the fine for the second life, and pay the costs of the day; and that the cause should stand over.
The respondent accordingly tendered the appellant all arrears, and three several sums of £16 13s. 4d. for fines, (the said John Anderson having then been absent twenty-one years,) which was a fine for each seventh year, and interest for each sum respectively, from every seventh year of the said John Anderson's absence; and then amended his bill, by stating this tender, which the appellant by his answer admitted.—The cause came on again to be heard on the 2d of December 1720, when the court was pleased to order and decree the appellant to renew, and make a new lease to the respondent, of the lands in the pleadings mentioned, for the lives named in the bill, and according to the covenant in the aforesaid lease; on the respondent's paying the appellant £16 13s. 4d. with interest, from the 19th of July 1704; another suni of £16 13s. 4d. and interest, from the 19th of July 1711; another sum of £16 13s. 4d. and interest, from the 19th of July 1718; and on the respondent's also paying to the appellant the sum of £16 13s. 4d. being the fine due on the death of Arthur Anderson, [259] and all rents in arrear, accates, and duties, and an heriot of £5 pursuant to the aforesaid lease.
On the appellant's petition, the cause was re-heard upon the 24th of May 1721, when the court affirmed the former decree; and referred it to the officer, to state the account and compute the interest.
From this decree, and the affirmance thereof, the present appeal was brought; and on behalf of the appellant it was argued (R. Raymond, P. Yorke), that Arthur Anderson, his heirs or assigns, had no right by the covenants in his lease to have the same renewed but upon certain terms, which were the demanding such renewal, and paying the fine for it, within twelve calendar months next after the death of each life, at such place and in such manner as by the covenant was directed. That it was admitted by the respondent's bill that he had not complied with these terms, for that one of the lives was dead in July 1704, which was fourteen years before he tendered any fine, or demanded any renewal for that life; and there was no proof in the cause that the said John Anderson was living at any time since the year 1697. Besides, the allowance of interest by the decree, since the 19th of July 1704, was an admission that the tender of the fine was not made within twelve calendar months; for if it had, there could have been no pretence to decree interest. That the terms on which the respondent was to be entitled to a renewal, were in the nature of a condition precedent; and it is the general rule in Courts of Equity, not to relieve against the non-performance of such conditions. That it was not possible to know what damage might accrue to the lessor, by the lessee's not tendering his fine, and having a renewal within the time limited, the same depending upon the fall of lives, which was merely contingent, and incapable of any certain valuation. That upon the respondent's neglecting to renew according to the covenant, an absolute right to the reversion of the lands expectant on the determination of the remaining lives, passed over to, and vested in the appellant, by the authority of the act of parliament, discharged of the covenant for renewal: and for a Court of Equity to give relief against the express provision of an act of parliament, was the same thing in effect as to repeal