case John stafford and other appellant the city of London respondent that  march whether a party have break any of his covenant or not be a matter proper  triable at law as the damage suppose a breach can be settle without such trial  decree of the court of exchequer affirm the exemplary cost with which this  appeal be dismiss show the opinion of the lord that it be bring mere for delay  and as here state the cause involve no general question of law viner vol p can  vol p can Eq can ab can wms viner vol p can vol p can Eq can ab note to can  can stram in pursuance of a act of parliament d and that William and mary by  which the profit of all aqueduct of the city of London be appropriate to the  use of the orphan etcetera the respondent by indenture date the that of  December demise to the appellant and one Peter grey who afterward die all  those their water arise within the parish of Marybone and Paddington in the  county of Middlesex and the water of dalstone and hackney and the surplus of  Lambsconduit water after the conduit on Holbornhill and the cock thereof be  supply and all such right and title as the city can or shall have to the water  of dame Agnes de saint Clare together with the use of all and every of their  conduit and conduithead drain cistern and pipe for the better convey the say  water to the city and suburb except as therein except and all and every their  spring and water on the northside of the river Thames which then be unlet or  unappropriated to hold from Christmas then next for the term of year under the  yearly rend of pound and brown by this lease the city enter into the usual  covenant with the lessee for their quiet enjoyment of the premise there be a  great arrear of rend due upon this lease and it be report that soams as well  as grey be dead the city in Michaelmas term bring their action against the  appellant Stafford and Adam who have plead in abatement that Bartholomew soams  be live the city bring a new action against all the appellant to recover  satisfaction for the rend in arrear whereupon the appellant Stafford and Adam  notwithstanding their say plea exhibit a bill in the court of exchequer in the  name of themselves only against the city and when this cause come on to be  hear the bill be dismiss with cost for want of Soamess be make a party in  Trinity term the city obtain judgement against the appellant by default for  pound beside cost whereupon they first bring a writ of error and afterward  exhibit a new bill against the city in the court of exchequer suggest that by  the say lease the city have not only grant what they have no right to grant  but also have disturb they in the enjoyment of what be rightful grant in the  several follow instance saint as to the water of Marybone and Paddington for  although the city have take upon they to grant to the plaintiff all the water  of Marybone and Paddington yet the plaintiff can not be admit to enjoy the  same because the owner of somersethouse by virtue of a grant from the city  several year ago to the duke of Somerset in fee claim a right to have a pipe  in the main of those water sufficient for the supply of above family and which  right the city neither disclose to the plaintiff or except out of their say  lease dly that the plaintiff have not be permit to have the use or benefit of  the banquetinghouse and Pumphouse which be conduithead belong to the say water  of Marybone and Paddington and which be absolute necessary for the management  of the say water because one of the city officer set up a pretend right and  claim to the same dly as to the surplusage of the Lambsconduit water the  plaintiff can never be let into the possession thereof because the parishioner  of saint sepulchre claim a right and title thereto and be actual in the quiet  possession thereof at the time of grant the plaintiff say lease and long  before thly as to the water of dalstone and hackney which come to the brown er  p conduit at Aldgate after the plaintiff have possess themselves of these  water and be go to improve the same and have actual let out part thereof to  several person and lie pipe for the conveyance of such water to their several  tenant they be interrupt in the enjoyment thereof by the city who have order  and direct the say pipe to be cut and destroy and the say water to be lie on  to Aldgate conduit for the use of the Tankardbearers by which mean the  plaintiff be total dispossess thereof And therefore the bill pray some  reasonable brown deduction out of the arrear and a proper apportionment of the  future rend in respect of these matter and in the mean time a injunction to  stay the city proceed at law the city by their answer to this bill as to the  several particular ground of complaint therein allege insist saint that the  claim make by the owner of somersethouse be within the general exception of  the lease and that the plaintiff have notice of the say grant to the duke of  Somerset dly as to the banquetinghouse and Pumphouse that they be not grant by  the lease and that the clerk of the city work claim the same as a perquisite  belong to his office dly that the city have good right to grant the surplusage  of Lambsconduit water but if it shall appear that they have not such right  they submit to the court as to the allowance to be make to the plaintiff in  respect thereof thly as to the water of dalstone and hackney come to Aldgate  conduit the city deny their make any order or give any direction for the cut  and destroy of the plaintiff pipe or that they any way hinder or deny the  plaintiff the privilege of lie tenant thereto on the that of June this cause  be hear when it be unanimous order and decree that the bill shall stand  dismiss with cost but from this decree the plaintiff appeal insist t Lutwyche  I Floyer that it be erroneous and ought to be reverse for that with respect to  the water of Marybone and Paddington the say grant to the duke of Somerset in  fee be not within the word or intention of the exception in the lease in  regard the say lease particular distinguish the several place in and about  London which the appellant be to serve with the water demise to they by the  respondent and no notice be thereby take of somersethouse and the rather for  that the respondent themselves in a former lease of the say water make by they  to one Houghton as appear by the say lease produce at the hear oblige the say  Houghton by express word to supply somersethouse with the water come from  Marybone and Paddington and though the respondent have by their answer insist  that the appellant have notice of the say grant yet they total fail in make  any proof of such notice that as to the banquetinghouse and Pumphouse it  appear by the proof in the cause that the same be ancient conduithead belong  to the say water and be absolute necessary for the management and conveyance  thereof and as a evidence of it there still remain a cistern in the say  banquetinghouse for the reception of the say water and both the house be enjoy  by the say Houghton the former lessee of the say water under the same general  word by which they be grant in the appellant lease that with respect to the  surplusage of Lambsconduit water the respondent do not pretend to be in the  possession thereof at the time of grant the say lease nor do they say or prove  that they ever be and yet brown they confess that the same be grant to the  appellant in express word these water appear to be of considerable value but  the appellant never have the benefit or enjoyment of they of which hardship  the respondent themselves be so sensible that they submit to make the  appellant a allowance in respect thereof if the parish of saint sepulchre  shall appear to have a better right thereto than the respondent but this right  the appellant insist they be not bind to try as it appear that the respondent  be not in possession of these water when they take upon themselves to make a  grant thereof to the appellant and as to the water of dalstone and hackney  come to the conduit at Aldgate although the respondent by their answer deny  that they ever disturb or hinder the appellant in the enjoyment thereof or lie  tenant thereto yet the appellant have full prove that the servant and workman  of the respondent by their order do cut and destroy several pipe lie by the  appellant for the conveyance of the say water to several of their tenant and  cause the say water to brown er p be lie on to Aldgate conduit for the use of  the Tankardbearers by which mean the appellant be total deprive thereof and  though by this proof the appellant have direct falsify the respondent answer  in that particular yet they be not only dismiss from have any relief in the  matter above complain of but be also condemned in the cost of the suit and  therefore it be hope that the say decree of dismission will be reverse to all  this it be answer on the other side W Thomson d do you that the grant to  somersethouse be in fee make so long ago as Edward VI and have be accord enjoy  ever since so that it can not belong to the city at the time of their grant to  the appellant and which they themselves well know it therefore come within the  exception of water unlet and unappropriated and consequent be not lease to the  appellant that the building call the banquetinghouse and Pumphouse do not pass  by their proper name nor by the name of conduit or conduithead for that  whatever they may be former they be not use as such at the time of the grant  but for many year before be appropriate to the clerk of the city work who all  along let they as tenement for habitation that the city grant extend only to  water unlet or unappropriated and consequent if the water of dalstone and  hackney be at the time of that grant and have be for time immemorial in part  appropriate to the poor Tankardbearers for the use of the inhabitant about  Aldgate they be not grant that the fact be a single fact and do many year  since and if it be necessary to cut some pipe though the respondent deny there  be any order of the court of alderman or the committee of city land for that  purpose to bring the water to the conduit at Aldgate that the Tankardbearers  may enjoy it it be do justice to they and no injury to the lessee who have  only a right to the water after appropriation brown as to the surplus of  Lambsconduit water the city know of no right which the parish of saint  sepulchre have to the same nor do they ever acquiesce or yield to any such  claim how the lessee have manage those water the respondent do not know but  certain it be that no water have come to that conduit for several year pass so  there can be no surplus have thus answer the appellant allegation the  respondent offer some further reason for dismiss the appear with costs That  whether the respondent have break any of their covenant or not be a matter  proper triable at law as the damage suppose a breach can not be settle without  such trial That the lessee never look upon this as a beneficial lease but  agree to the same as a inducement to the city to grant they a licence to erect  a engine to raise water in the four arch of londonbridge and though such  licence bear date before the lease in question it be apparent from entry in  the city book relative to these affair that the say licence be not execute  until the appellant and the say Peter grey have become bind in a bind of pound  penalty date the that of April condition that they shall take or procure some  person to take such lease of these water as aforesaid and then and not before  the city seal be put to the licence for the four arch it be also plain from  the proviso contain in the lease that if the say licence for erect a engine in  the four arch shall by any proceed at law be abate or declare illegal the  lease be to be void and the whole rend to cease so that both the lease and  licence make but one agreement and therefore the pound per and ought to be  esteem as it real be the consideration for both grant and accord the four arch  be still enjoy by the appellant as well as all the water intend to be grant by  the lease and last that after several year acquiescence these cavil and  exception first commence and afterward increase with the arrear of rend and  may well be maintain with the interest of those arrear for at the time of the  decree there be a arrear of above pound detain by the appellant under pretence  of not enjoy the trifle particular mention in their complaint accord after  hear counsel on this appeal it be order and adjudge that the same shall be  dismiss and the order and decree therein complain of affirm and it be further  order that the appellant shall pay to the respondent the sum of pound for  their cost in respect of the say appeal jour vol p brown er p