in the practical application of forms well known here, it must be apparent from the review just taken of the history of the state of rights to land, that tenures highly mischievous in Ireland might be innocent enough in England.

Renewable leaseholds may be either for years or for lives. The particular Irish tenure to which we now refer is that of leaseholds for lives, renewable in perpetuity; in which the owner of the fee covenants that whenever one of the lives mentioned in the lease expires, he will allow a fresh life to be inserted in the lease on the payment of a fixed fine. This covenant will, it is now well established, be enforced against the lessor where it clearly appears that he has bound himself to renew in perpetuum, though it was once denied that it was competent for the parties to enter into such a covenant.1 But if that was at any time the law here, it never was in Ireland; where this sort of interest has found great favour in the eyes both of the people and of the judicature. As far as above laid down, however, the law in both countries is identical, and the very same construction will be put on any lease or agreement, as to whether it amounts to an undertaking to renew from time to time for ever, or only to renew for one or more. But a very considerable difference has been introduced in the laxity with which a forfeiture on the part of the lessee is enforced in Irish courts, as compared with English courts, a laxity which received the sanction of the legislature in the declarations contained in the Tenantry Act.

Leases of this description in both countries are, generally speaking, highly favourable to the lessee: in leases of old standing, by reason of the diminished value of money and the increased resources of agriculture since the date of the lease: in all, whether of old or recent date, by reason of the views of the parties in granting them, which in many instances are principally directed to the raising of large sums in gross by way of premiums or fines for renewal. It is, therefore, evidently for the benefit of the landlord to take advantage of any breach on the part of the lessee of his part of the contract, and to insist upon regaining possession of the lands in case of neglect in paying the stipulated fines, or to obtain renewal of his lease from time to time as the lives named drop in succession. It is the duty of the tenant to obtain such renewal, because, in the first place, it is his interest, and the landlord cannot be expected to take care of that; and in the next place, the lives named are generally of the family of the lessee and strangers to the lessor, who cannot be taken to be cognizant of their existence or decease. And each life ought to be renewed with the least See Bac. Abr. Leases (U).

reasonable delay, because the life intended to be inserted may be of very short duration, and then a fresh renewal and fine would accrue, which the landlord runs the risk of losing if the first renewal be deferred. Moreover, the preservation and continuance of the tenure must be taken to be one of the primary objects of the parties in preferring a lease of this description to a rent in fee farm (which indeed they could not properly create since the stat. Quia Emptores; see Butl. note to Co. Lit. 143 b), or to a conveyance of the lands, reserving a rent-charge of the same amount. The remedy for a rent-charge was of old either by distraint or writ of annuity. To these has been added the action of debt; but it is obvious that none of these affords so full and complete a remedy as ejectment, which the lessor of a renewable leasehold might bring on nonpayment of his rent, and recover the land itself, and put an end to the lease. The difference to the lessor is very substantial, and not one of words merely, or of the form of remedy; and this very valuable incident must in justice be preserved from being destroyed by the act of the tenant. And as by lapse of time the presumption of a rent-charge would arise against the lessor if care were not taken to preserve evidence of the continuance of the tenure by the renewals from time to time, it must be an act of forfeiture in the lessee to neglect renewing his lease upon every necessary occasion, i. e., upon the decease of every cestui que vie. Still more forcible is the claim of the landlord to the benefit of a forfeiture when all the lives have been allowed to run out without any renewal. And in England the lease would unquestionably be in each of these cases forfeited; and this, not only on the ground of implied fraudulent concealment on the part of the lessee, but from the necessity of the case. Owing to the uncertain duration of human life, no compensation can be made; the amount of fines lost to the landlord by the neglect to renew as each life drops cannot be calculated; (it appears that no forfeiture would be incurred were the tenure on a lease for years renewable for ever at certain times-every seven years, e. g.-See 14 Ves. 57, 68). But in Ireland what is called the old equity of the country interferes to preserve the rights of the tenant, if they have been lost by mere neglect. It was considered that the intention of the original parties to the lease was the preservation of the tenure and the regular payment of the fines and annual rents, and that subject to this, the lessor was in effect to part with the whole possession of the land for ever, just as much as if he had sold the land in fee; that the consideration for this consisted partly of the present premium, which he had received; partly of the annual rents, which were paid; and in

part also of the renewal fines which might from time to time accrue that if it could be discovered what would be the sum total of these renewal fines, recurring at uncertain intervals, but generally of small amount-seldom exceeding half a year's rent, often merely nominal, as a peppercorn-it would much more nearly carry out the original contract to decree the possession to the lessee upon payment of such compensation, than to allow the lessee to be ousted, and the landlord to take possession on account of neglect in paying him what was in fact only a small part of the price; and that as to the preservation of the tenure, that would be sufficiently preserved by being now acknowledged de novo. The only difficulty in this view of the case was how to ascertain the amount of compensation, and it certainly appeared no easy matter to calculate the sum total of fines which might have accrued during a period of neglect of twenty or thirty years, with interest on such fines from the time they became due. Chief Baron Gilbert in this difficulty, presiding in the Exchequer in Ireland, hit upon the expedient of septennial fines. By analogy to the period limited in several statutes, that after seven years from the time when a man is last heard of he shall be presumed to be dead, that judge introduced the regulation that a fine should be deemed to accrue due every seven years, and interest computed accordingly, and this rule was universally approved of and adopted. Accordingly no case of mere neglect or lapse of time, without any evidence of fraud on the part of the tenant, was then held to be sufficient of itself to cause a forfeiture. But about the year 1777 there was a case of Bateman v. Murray, in which this old equity had been insisted on successfully in the Irish Chancery, and in which, when it came on appeal to the English House of Lords before Lord Thurlow in 1779, the judgment below was reversed. The reversal took place on grounds which entirely precluded the old equity from being insisted upon, for it was a case of gross fraud on the part of the lessee. In the words of Lord Redesdale (Fitzsimon v. Burton, Finlay on Leases, p. 97), "The man who had the benefit of the lease was the agent of the family to whom the reversion belonged; he was continually calling on all the other tenants, his underlessees, to renew their leases, but he took care not to call upon himself to renew his own lease; that was a circumstance furnishing in my mind a sufficient ground for reversing Lord Lifford's decree." It was, therefore, a case of gross fraud, and no intention could be argued in the English House of Lords to deny or overrule the old equity in question, because they refused to admit of its application to such a case as this. However, the agitation among Irish lawyers was ex

treme, and it was thought necessary to guard against any conclusions which might be drawn from the case of Bateman v. Murray unfavourable to the old established rule, by the declarations contained in the Tenantry Act, 19 & 20 Geo. III. c. 30.

This act, after a preamble reciting that great part of the lands in the kingdom were held under leases of this nature-that such interests had always been considered as perpetuities, and that the received opinion, countenanced by judicial decisions, had been that courts of equity would relieve against mere neglect to renew, or lapse of time, where there was no fraud in the lessee, upon due compensation to the landlord for such neglect-proceeds to declare, that, upon an adequate compensation, courts of equity shall relieve tenants and their assigns against mere lapse of time, if no fraud be proved against the tenant or his assigns, unless it be proved that the lessor made demand of the fines, which was not complied with within a reasonable time (s. 1); and in the second section enacts, that if there should be any difficulty in discovering the lessee, a demand of the fines from the principal occupier and two months' notice in the Gazette shall be considered a sufficient demand within the act.

This act, it will be observed, is declaratory merely in the first section. The only part, properly speaking enactory, is in the second section, where it provides for the service of notices by landlords on tenants whose place of abode is unknown. And it is remarkable that the case of Bateman v. Murray, which gave occasion to its introduction, would receive the same decision after as before the statute.

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Although this old equity was, in point of fact, already so firmly established by judicial precedents as neither to require or receive any additional or extended validity from the declarations in this statute, yet it was not to be expected that a measure expressive of a sentence of approval by the legislature, of a doctrine so hostile to the interests of the landlords, should pass without a violent struggle; and it seems impossible not to grant the palm of superior force to the arguments of the opponents of the equity," if the matter had not been so hedged in and covered by authority as to render all argument useless and out of place. It is impossible, if the tenure be retained, that this doctrine, one of the striking features in the development of it in Ireland, should be omitted, unless by an act of parliament, which should impress a wide difference between the renewable leases that are to come into existence and those that already exist. Twenty-one lords have left on record their protest against the act, which is, in fact, a protest against the continuation of the equity, the principal parts of which we shall here transcribe,

as they put forward, in brief and clear terms, the chief arguments against the principle sanctioned by the act.

"Dissentient.

"For the act discharges one of the contracting parties from the literal obligations of his covenants and leaves them binding on the other.

"For it relieves the lessee against lapse of time if no circumstance of fraud be proved against such lessee, but does not say whether concealment of the termination of one or more lives be fraud within this act.

"For the lessee names the lives, and probably of persons unknown to the lessor, and therefore ought to be obliged by this bill to discover the death of each life to the lessor and the time when it happened, which is not the case.

"For it is an ex post facto act, construing the intentions of the parties differently from the evident meaning of the covenants." Owing to the ingredient of fraud already mentioned appearing in Bateman v. Murray, that case would have received the same determination after as before the Tenantry Act. This act therefore by no means ran counter to Lord Thurlow's judgment, although many writers on the subject point out the guarded language used, and expressly state that this was from delicacy to Lord Thurlow, whose judgment was thus overruled by the declaration of the legislature. But though, on the one hand, this is not the case; and although, on the other hand, the act appears to set up and finally recognize the old equity of the kingdom; yet, in fact, it does contradict some dicta which fell from Lord Thurlow in moving the judgment of the House in Bateman v. Murray; and does also, to some extent, modify and control the old equity, or at least the cases in which it can be relied upon. No one can fail to recognize in the declarations of the act the direct denial of the following expressions in Lord Thurlow's reported address:-"The lessee has neglected to do that which he ought to have done. How is equity to interfere? *** I take the rule to be this: courts of equity will relieve the lessee if he has lost his right by fraud in the lessor, or by an accident on his own part, but will never assist him where he has lost his right through his own gross laches and neglect." "But it has been

argued that if the lessee has not abandoned his right he ought to be let into his renewal; that here the value of the land is far beyond the value of the fines, and that he therefore cannot be presumed to have intended to forfeit his right; that he has never given any cause for such conjecture. *But I take the rule to be this: that when the lessee has lost his legal right he must prove some fraud on the part of the lessor by which he

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