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it. That the appellant was a purchaser not only of the fines for renewal of the lease, but also of the benefit of the forfeiture of such renewal, by the neglect to renew according to the tenor of the covenant, and that too under an act of parliament; and therefore it was conceived, that a Court of Equity ought not to dispense with, or relieve against such a forfeiture, and thereby deprive the appellant of the very thing which he had purchased.

On the other side it was contended (T. Lutwyche, C. Talbot), that it did not appear in the cause that John Anderson, the cestui que vie, was yet dead; for the Jury did not by their verdict find him to be dead, and therefore the presumption was that he was still living. That there did not appear to be any wilful default in the respondent, or in his testator, whereby he should incur a forfeiture; but it plainly [260] appeared, that the appellant was a manager for the Duke of Ormond at the time of making the lease. And therefore, if there was a default, it was in him, who intended to insist on that advantage, otherwise he would have applied to the respondent's testator to renew his lease, which he might and ought to have done. As to the respondent's admitting the cestui que vie to be dead, that was only in obedience to the order of the Court, who were minded to make an adequate amends to the appellant, upon a presumption, from the long absence of the cestui que vie, that he was dead; and the appellant ought rather to be pleased with this decree, which was so much to his advantage, when the covenant for renewal, within twelve calendar months after the death of each life, must be construed to extend only where the cestui que vie was fully proved to be dead. That the appellant knew the cestui que vie was out of the kingdom, and if he thought there was any ground for it, he might have obliged the respondent's testator to have renewed: it was merely accidental that the cestui que vie went out of the kingdom, and it is the proper business of a Court of Equity to relieve against accidents; therefore the recompence which the Court made, by allowing a life to be dropped at the end of every seventh year, and to pay a fine and interest for the same, was a very ample satisfaction, considering that an annuity for life could not be bought at less than ten years purchase. That the words of the act of parliament were, in cases of neglect and refusal, which necessarily implied wilful neglect and refusal; but which, for the reasons before stated; neither the respondent or his testator could be guilty of. That as the respondent had complied with the order of the Court, by tendering so many fines, he had given manifest evidence of his willingness to renew; and therefore apprehended that he had a continuing interest in the lands, there being no negative words in the lease, whereby it could appear that the benefit of renewal was to be forfeited, if new lives were not named within twelve months. That it was the proper business of a Court of Equity to see that the true intent and meaning of the act of parliament, and the covenants in the lease, were observed and performed according to equity; and as it appeared by the appellant's own shewing, that he was a common purchaser in fee of the said lands under the said act, he could not thereby be in a better condition than the Duke of Ormond would have been in, had he remained owner of the estate: nor did the appellant's case thereby differ from common cases, but the respondent's case was very different from what it would have been, if it had been clearly proved that the cestui que vie was dead: however, as the respondent was only relieved against an unavoidable accident, it was humbly insisted that the decree was agreeable to equity and justice, and ought therefore to be affirmed.

Accordingly, after hearing counsel on this appeal, it was ordered and adjudged, that the same should be dismissed, and the decree and order therein complained of, affirmed. (Jour. vol. 22. p. 105.)