the original lease, although the reversioners were seised in fee, the covenant for renewal for ever being inserted through mistake, will not be enforced in equity.

By lease made in the year 1692 for three lives, the lessor covenanted from time to time to renew the same to the lessee, his heirs and assigns, in place of any of the three original cestuique vies, on a fine of one whole year's value of the premises, to be paid for such renewal: the lease was renewed several times, and in the year 1740 a further renewal was executed by the then tenant for life of the reversion, by grant of the premises, "at, under, and subject to the same clauses in the original lease, including the covenant of renewal for ever." Another renewal was executed(u) in the year 1768, and upon a bill by the tenant in March, 1790, for a renewal, it was contended, that the reversioner, and those deriving under him, were bound by the acknowledgement or covenant contained in the renewal of 1740; but it was decided by Lord Clare, that though an intermediate renewal (v) may have been executed by a tenant in fee simple, in pursuance of a supposed covenant of renewal for ever, yet that the heir of the person granting such renewal under a mistaken supposition, is not bound, and the bill was dismissed, which decree, upon rehearing(w) before Lord Manners, was affirmed.

A clause contained in a lease made in the year 1672, by which it was agreed between the parties, "that upon the renewing or inserting of any life or lives, there should be paid by the lessee, his heirs or assigns, the sum of £16 6s. 4d. unto the lessor, his heirs or assigns," was decided by the Queen's Bench not to amount to a covenant(x) for perpetual renewal, and upon a bill in Equity to have this instrument, which was lost, declared a lease for lives renewable for ever, it was admitted that the clause in question did not create a covenant of renewal for ever; but it was contended (y), that after such a lapse of time, and the grant of seven successive renewals, there was ground to presume that the lease contained a covenant of renewal for ever, and that the clause as to fines referred to such a covenant: and further, that there was evidence to warrant the presumption of a parol agree

(u) Duckett v. Ld. Waterford, Lyne on Leases, Appendix, No. 11, fol. 44; and see Higgins v. Lord Rosse, 3 Bligh's Parl. Ca. 112-132, first series.

(v) Duckett v. Ld. Waterford, cited by Pennefather, Baron, in Browne v. Tighe, Hayes, 166.

(w) Duckett v. Ld. Waterford, Lyne

on Leases, Appendix, No. 11, fol. 44.

(x) Bell dem. Smyth v. Nangle, 1 Jebb & Symes, 199; 6 Law Rec. 325; and see Nangle v. Smith, Lyne on Leases, fol. 3, case 1.

(y) Nangle v. Smith, 1 Irish Eq. Rep. 119; Bell dem. Smyth v. Nangle, 2 Jebb & S. 629.

ment to renew for ever, independently of and prior to the lease of 1672, and that such contract being prior to the enactment of Statute of Frauds, was not required to be in writing: and that although the subsequent renewals could not be allowed to give a construction to the covenant, yet the acts of the parties, whether tenants for life or in fee, might be received as evidence of the existence of such a covenant of renewal for ever. Issues were directed by Lord Plunket, to try whether at or before the execution of the original lease, an agreement was entered into by the parties for the grant of a lease for lives renewable for ever; and also, whether the original lease contained any agreement relative to the renewal of such lease to the lessee, independently of the stipulation as to the amount of renewal fines. On an appeal, however(z), to the House of Lords, the decretal order was reversed, and the bill was ordered to be dismissed.

10. A covenant of renewal for ever, which the original lessor was not competent to grant, will not be confirmed or established either by length(a) of time, or by successive(b) renewals, nor will any new(c) grant or confirmation be presumed in favour of the party seeking to enforce performance of the covenant.

It was laid down by Sir John Leach, that every presumption was to be made in support of a right of renewal where, from the year 1682, leases for twenty-one years(d), at an inadequate rent and a fine certain, had been regularly granted of the tithes of a parish by the successive bishops of Ely, who were impropriate rectors of the parish, to the vicars of the parish for the time being, although none of the leases contained any stipulation for renewal.

11. Leases renewable for ever, especially those of old dates, which are technically framed, seldom contain any express covenant binding the lessee to accept a renewal, and the ordinary covenant by the lessor(e) to grant renewals, does not raise any implied covenant on the part of the lessee to do so. Lord Hardwicke (ƒ), however, expressed his opinion

(2) Smyth v. Nangle, 1 West's Appeal Cases, 184; 7 Cla. & Finn. 405.

(a) Higgins v. Lord Rosse, 3 Bligh's Parl. Ca. 112–132.

(6) Hayes v. Ld. Waterford, Lyne on Leases, App. fol. 44, case 11.

(e) Nangle v. Smith, 1 Irish Eq. Rep. 119; but see Ball v. Ld. Downshire, Lyne on Leases, App. fol. 15. The bill was ultimately dismissed with costs; 1 Irish Eq. Rep. 132.

(d) The Attorney-General v. The Bishop of Ely, 4 Russ. 102.

(e) Bayly v. Corporation of Leominster, 1 Ves. Jun. 476; 3 Bro. Cha. Ca. 529, S. C.; Kane v. Hamilton, 1 Ridg. Parl. Ca. 186; Iggulden v. May, 9 Ves. 328, Arg.

(ƒ) Furnival v. Crew, 3 Atk. 87; and see Ld. Frankfort v. Thorpe, 2 Ball & B. 380; Curry v. Stanley, Hayes & J. 487.

S

that a covenant by the lessor "to execute one or more lease or leases, upon payment of a certain fine at the death of each cestuique vie, and so to continue the renewing such lease or leases," would entitle either of the parties to the lease to maintain an action for breach of covenant, on refusal by the other to renew the lease.

A covenant for renewal of a lease for years, at the request of the lessee within the term, will be specifically enforced(g) in favour of the personal representatives of the lessee, although the lessee died without having made any request.

12. Leases for lives renewable for ever, soon after their introduction, became favourite tenures in Ireland, and were treated as perpetual interests, and made the subject of family settlements, mortgages, and other securities for money. In all such leases it was required as a condition precedent, that the renewal fine, unless merely nominal, should be paid within a limited period after the fall of every cestuique vie, and a negative clause was frequently inserted in the lease, discharging the landlord from any liability to renew, in case the renewal fine and all arrears of rent should not be paid, and a renewal of the lease should not be demanded within the time specified.

In order to recover damages in a court of law, for breach of a covenant for renewal, the tenant is obliged to prove that his part of the contract has been strictly fulfilled; but it often happened, from the negligence or ignorance of tenants, or in consequence of the interest having devolved upon infants, or having passed to creditors or trustees, that the renewal fines were not tendered, nor any renewal demanded within due time: the landlords brought ejectments for recovery of the possession, and the tenauts were under the necessity of resorting to a Court of Equity for relief against the strict observance of the covenant which was required at law, and to be decreed entitled to a renewal of the lease upon making adequate compensation.

It has been said(h) that the Courts of Equity of England were strongly inclined to discourage covenants for perpetual renewal, and doubts have been expressed, whether such covenants should be specifically enforced. Lord Eldon, however, disavowed(i) any such doctrine, and stated it had been so long held that covenants of renewal for ever ought to be carried into execution, and that this principle was so covered and sanctioned by decision, whether the judgement was originally right

(g) Hyde v. Skinner, 2 P.Wms. 196. (h) Maxwell v. Ward, 11 Price, 13, by Richards, C. B.; Rees v. Lord Dacre,

cited 9 Vesey, 332.

(i) Willan v. Willan, 16 Vesey, 84.

or wrong, it would be infinitely too dangerous to interpose any new rule on the subject.

The object of fixing a time for the renewal, was to obtain a recognition of the tenure, and to enable the landlord to enforce payment of the rent and renewal fines: the time, therefore, not being of the essence of the contract, Courts of Equity(j) extended the principle of granting relief against mere laches to covenants of renewal for ever, where there was no fraud or unfair dealing on the part of the tenant: in cases of great delay, and where the tenant suffered many years to elapse without applying for a renewal, considerable difficulties were experienced in awarding adequate compensation to the landlord. Lord Chief Baron Gilbert, while he presided in the Irish Court of Exchequer, decreed(k) that an additional renewal fine should be paid on the expiration of every seven years after the fall of any cestuique vie, with interest upon each renewal and septennial fine; adopting the period of seven years as the probable duration of human life, in analogy to the provisions of the Irish Statute(1) 7 Will. III. c. 8, by which it was enacted, that in case of leases granted for a life or lives, and such person for whose life the lands were holden, remained absent from the realm for seven years together, he should be presumed dead, unless sufficient proof of his existence were given.

This rule was received with general satisfaction in Ireland, as giving reasonable compensation to the landlord for the laches of his tenant, and was established in the case of Sweet v. Anderson(m), upon appeal to the English House of Lords. The same mode of compensation was applied to cases where the lease contained(n) a negative clause, stipulating that upon failure of renewal by the tenant within a limited time, the covenant for renewal should be void, and the reversioner, upon the decease of any cestuique vie then in being, should hold the premises freed from any liability to renew.

At first, Courts of Equity showed great reluctance in relieving the tenant, after all the cestuique vies had fallen before any tender of renewal fines, or any demand of renewal had been made, there being, as observed by Lord Lifford(0), no legal estate for the equity to attach

() Seton v. Slade, 7 Vesey, 265. (k) Anderson v. Sweet, in the Exchequer, A. D. 1720, 2 Bro. Parl. Ca. 256. (7 Will. III. c. 8, Irish; 19 Car. II. c. 6, English.

(m) Sweet v. Anderson, 2 Bro. Parl. Ca. 256.

(n) O'Neil v. Jones, 1 Ridgw. Parl. Ca. 171; and see the observations of Ld.

Redesdale in Ld. Mountnorris v. White, 2 Dow's Parl. Ca. 463; Boyle v. Lysaght, 1 Ridg. P. C. 384-404.

(0) Ryan v. Ld. Clonmore, cited 1 Ridg. P. C. 492; Vern. & Scr. 180, S. C.; Kane v. Hamilton, 1 Ridg. P. C. 180, in the note; Hamilton v. Kane, Wallis's Rep. 172.

upon. This distinction, however, was soon disregarded, and relief against a forfeiture(p) of the tenant's interest was given, wherever a lapse of time had been suffered to incur, through mere negligence and without misconduct on the part of the lessee, the uniform practice of Irish Courts of Equity being to compel specific performance of the covenant for renewal in all cases, unless there was a dereliction of the interest(g) on the tenant's part, by neglecting or refusing to renew after demand, or unless it appeared that he had been guilty of fraud.

In a cause before the House of Lords(r), upon an appeal from a decree of the Irish Exchequer for a renewal, Lord Eldon is reported to have said " If instead of adding one life to two lives, or in certain cases two lives to a third, all the lives(s) are suffered to expire, can it be called mere neglect,' when the landlord is required to grant an entire new lease for three lives all at the same time? There is one very material thing to be attended to when we talk of adding a life; the obvious intent and meaning of the language is, that we are to add a life to a life, that is, with reference to some estate which has existence at the time, and not to a lease which had expired. During the whole three lives, the estate had been enjoyed, and the persons who now assert their right, do so without any title whatever." The reversal of the decree in this case proceeded on grounds quite independent of Lord Eldon's observations, and Irish Courts of Equity(t) have persevered in their uniform practice, sanctioned by numerous decisions, of granting relief to the tenant in all cases where the negligence has been merely passive, and no demand has been made under the Tenantry Act.

13. It was supposed to have been determined by the British House of Peers, upon appeal from a decree of the Irish Court of Chancery, that there was no foundation(u) for what was called "the old equity of the country," and that if the tenant neglected to demand a renewal within the time prescribed by the covenant for that purpose, relief ought only to be granted, where equitable interference was warranted by special circumstances. The opinions expressed by Lord Mansfield(v)

(p) O'Neil v. Jones, I Ridg. P. C. 170; Monsell v. Lord Blessington, cited 1 Ridg. Parl. Ca. 500; Lennon v. Napper, 2 Sch. & Lef. 686.

(9) Pendred v. Griffith, 1 Bro. Parl. Ca. 314; Boyle v. Lysaght, 1 Ridg. Parl. Ca. 405.

(r) Fitzsimon v. Burton, Finlay on Renewals, 284.

(s) Finlay on Renewals, 317.

(t) Lord Palmerston v. The Corporation of Dublin, Lyne on Leases, Appendix, case 20, fol. 74; Shenton v. Corbally, 1 Hogan, 433; Lennon v. Napper, 2 Sch. & Lef. 686.

(u) Lennon v. Napper, 2 Sch. & Lef.

682.

(v) Kane v. Hamilton, 1 Ridg. Parl. Ca. 180; Hamilton v. Kane, Wall. Rep. 172.