case William BLACKER Appellant Wilsey MATHERS Respondent saint February Mews  dig viii a agree for a lease of certain land for three life the lease be  prepare accord to slay agreement except the insert a clause to restrain the  tenant from alienation without the consent of the landlord this clause be no  part of the agreement the landlord be bind to execute a lease without it the  appellant be seize of the town land of Breagh in the parish of sego and county  of Armagh in Ireland a small part whereof be let to Hugh lavery and Patrick  MConnell as tenant at will and intend to remove they and let the premise in  their occupation to a improve tenant on a lease for life it be in the year  propose between the appellant and saint Johh Mathers the respondent brother on  the behalf of the respondent who then live on another farm in the  neighbourhood of the appellant estate that after lavery and MConnell have quit  the premise the respondent shall become tenant thereof at the yearly rend of S  a acre be the like yearly rend as have be pay by the former tenant and to  induce he to lie out his money in last improvement the appellant agree to  grant the respondent a lease of the premise for a own life and two other life  to he nominate by he be the full extent of the power of lease reserve to the  appellant by his marriage settlement nod to execute a like lease to the  respondent as be grant to the appellant other tenant and that the respondent  shall in every particular be treat as well and have the same privilege as have  be grant by the appellant to any of his other tenant to who he have grant  lease the former tenant have quit possession the respondent in November enter  on the premise with the consent and brown approbation of the appellant and  proceed forthwith to make valuable improvement on the land by stub ditch  quicking and ston the same and also to repair the building and erection  thereon to the amount of pound and upward and these improvement and repair be  from time to time overlook and approve of by the appellant and be make and do  in the most substantial manner the respondent intend the lease for the benefit  of William and Thomas Mathers his son then infant who life be to he insert  therein after they attain their full age and during their minority to set the  same to undertenant to the beat advantage after the respondent have make some  progress in his improvement a survey be take by the direction of the appellant  of the land so let which be find to amount to English acre and one rood or  thereabouts and which at S a acre amount to pound S d and the respondent have  apply to the appellant for a lease accord to his agreement the appellant ready  consent that a lease shall be forthwith prepare and as a further encouragement  to the respondent to proceed in his improvement the appellant also agree that  in case either of the two life to be name by the respondent shall die during  the appellant life he will renew the lease and add another life or life  thereto the yearly rend to be pay by the respondent be ascertain by the survey  the appellant send James somervile his clerk to the respondent for the name of  the life to be insert in the lease and give direction to the say James  somervile to prepare a lease to the respondent which be accord draw and  thereby the land in the occupation of the respondent or his undertenant by  their proper description and accord to the before mention survey together with  the turf bog or more in the town land of Breagh then in the actual possession  of the respondent or his tenant which turf bog or moss be use by the appellant  tenant and the other occupier of lance for fire be demise to the respondent  for the life of the respondent and the say William and Thomas Mathers his son  at the say yearly rend of pound S d Payable half yearly with a covenant for  add a further life or life thereto in case either of the life therein name  drop during the appellant life and a clause or covenant brown er p to restrain  the respondent from let set or dispose of the say premise to any other person  under a penalty of pound to be recover as rend in arrear the appellant  afterward discover that it will be for his convenience that a square acre of  ground on the side of the river ban part of the premise agree to be demise to  and then in the occupation of the respondent or his undertenant shall be  exclude from the say lease for the purpose of make a bleach yard for the  appellant other tenant and that a liberty shall be reserve for the appellant  to dig mar on the bog or moss brown demise to the respondent and a endorsement  on the lease to that effect be make by the appellant direction the respondent  be send for to the appellant house and the lease with the endorsement thereon  be read over to he when he object to the clause of restriction in the lease  because no such restriction be in a mention at the time the agreement be make  and be insert only in some of the lease grant by the appellant to his other  tenant and because such restriction be in a particular manner injurious to the  respondent who have then let the premise or part thereof to undertenant and do  not propose to reside on and occupy the sing during the minority of his son  and the respondent also object to the endorsement on the lease because the  exclude a acre of the land on the bunk or side of the river ban will entire  disappoint the intention of take the lease of the say hind for tilde purpose  of bleach and also because the liberty or privilege of dig marls will be total  destructive of all benefit from the bog or moss which then afford a bare  sufficiency of fire for the use of the occupier of the premise at this meeting  the substance of the endorsement on the reuse be seem waive and no difficulty  doubt or dispute subsist between the appellant and the respondent concern the  clause covenant and condition on the rend parcel or privilege to be demise and  grant to the respondent by the lease except with respect to the  beforementioned clause of restriction front alienation which clause the  appellant represent as contain in all his other lease except one to John wait  and the appellant peremptory insist that such restriction shall remain in the  lease and the respondent refuse to accept the same the appellant thereupon  tear cancel and destroy the lease with the endorsement thereon and declare  that the respondent shall never get a lease from he the respondent therefore  in December exhibit his original bill in the court of exchequer in Ireland  against the appellant state the several matter aforesaid and pray a specific  execution of the say agreement the appellant by his answer admit all the  material fact charge in the bill but say that the restrictive clause object to  be insert in all the leaves grant to his other tenant except one John wait the  respondent well know that the appellant have grouted lease to other tenant  beside wait without such restrictive covenant and be inform that flee  appellant be use his utmost influence and endeavour to take up all the louse  from his tenant in which no such restrictive covenant be insert and in lieu  thereof to grant new lease contain such covenant in order to disappoint the  respondent in his suit and prevent his have a lease and the benefit of his  improvement he therefore file a amend bill against the appellant charge that  no such restrictive clause or covenant ought to be insert in the lease and  that at the time the original agreement be make the appellant brown be inform  that the respondent do not intend to reside on the laud and that the  respondent have find out and discover that the appellant have grant a lease  date that of July to one David hunter of part of the town land of Ballynaghy  with the moss or bog in the town land of Breagh for three life and that no  covenant be therein contain for reside on the premise or against alienation  and by this bill the respondent pray a production of the counter part of the  appellant lease to David hunter and a discovery of the number of other lease  grant by the appellant without the restrictive covenant beforementioned and a  discovery of such counterpart of lease as be in Lois custody or power at the  time of put in his former answer the appellant by his first answer to the  amend bill admit that he know the respondent do not intend to reside on the  premise agree to be demise to brown er p he and that he refuse to execute the  lease without such covenant to restrain from alien he also admit have execute  a lease to David hunter of the date import and at the rend and for the life  mention in the amend bill and that there be in the lease no covenant to  restrain the tenant from alien exception be take to this answer the appellant  submit and by his further answer set forth a copy of the lease to David hunter  date that July and say that at the time of put in his former answer he do not  know or believe that the restrictive clause be omit in that lease as it be for  the most part insert in all his other lease the respondent reply to the answer  and the cause be at issue several witness be examine on the part of the  respondent and particular the say David hunter who depose that after the  commencement of the suit between the respondent and the appellant the  appellant apply to he to give up his lease and that the reason why he apply as  the appellant inform he be on account of the appellant have swear in his  answer to the respondent bill quite other wise than what have be mention in  hunter be lease and promise that if he will surrender his lease he will  execute another lease and the respondent witness also prove that the  respondent in the year let part of the premise to one Francis Stephenson the  appellant also examine witness and particular several of his tenant with  respect to the insert clause of restriction in the appellant lease but none of  the lease with such clause of restriction be prove in the cause neither do the  appellant venture to examine the say James somervile his clerk with respect to  such clause of restriction publication be pass and the cause set down for hear  the same come on to be hear on the that of June when the only question between  the party for the consideration of the court be whether a clause of  restriction from alienation shall be insert in the lease to the respondent and  on the that of the same month the court decree that the respondent be entitle  brown to a specific execution of the agreement and that the appellant shall  execute a lease to he of the land and premise with the turf bog and  appurtenance to the say premise belong at the yearly rend of pound S d for the  life of the respondent and his two son in the bill name with the usual  covenant between landlord and tenant without any clause against alien or set  and if the party can not agree it be refer to a baron to settle it and the  respondent be to have his cost from this decree the appellant appeal insist c  Pratt t jewel that no proof we make in the cause that he have ever enter into  any agreement for grant such a lease as he have be decree to grant to the  respondent and that he kind deny by his answer that he ever agree to grant he  such a lease it be however object on the part of the respondent that the  appellant have by his answer admit that he agree to treat the respondent as  well as any of his tenant to who he have grant lease that he have grant lease  to wait and hunter without such restrictive covenant and that therefore to  fulfil his agree mean with the respondent he shall have grant he as beneficial  a lease as he have to they that be a lease without such restrictive  covenant But to this it be answer that if the respondent will avail himself of  the appellant answer the several part of those answer relative to the  agreement for a lease must be take together and then it will manifest appear  that the appellant meaning by those word in the objection be to grant the  respondent a lease conformable to those which he have grant to his other  tenant in general that be a lease with such restrictive clause and such a  lease the appellant be always ready to grant that at the time of his agreement  to grant a lease to the respondent the covenant against alien or demising be  contain in every lease theretofore grant by the appellant to his tenant except  in one which have be grant to Mr wait in that lease alone the restrictive  clause be omit because Mr wait be the only tenant who have pay a fine and  thereby become a purchaser of the omission of such restrictive covenant but  the respondent neither pay or agree to pay a fine for his lease consequent can  only expect to have as beneficial a lease as the appellant have grant to his  other tenant who have pay no fine that this brown er p construction be  consistent with the word and meaning of the agreement and constitute a  equality in all the appellant lease whereas tile contrary construction be  repugnant both to the word and obvious sense of the agreement and establish a  partial lease for the respondent for to say that the lease grant to Mr wait  who pay a fine be to be the model of that which be to be grant to the  respondent who pay no fine be to say that the appellant agree to treat the  respondent better than any one of his tenant at the same time that he only  agree to treat he as well as any of they and with respect to hunter be lease  it be improper and unfair introduce into this cause and be total immaterial to  the present question for that lease be make brown subsequent in time to the  agreement with the respondent and the omission of tile restrictive clause  therein the appellant have full account for in his answer videlicet that he  have execute that lease without read it over upon a presumption that his  lawyer who prepare it have insert such restrictive covenant therein but it be  further argue that the respondent himself have acquiesce under the restrictive  covenant which he now object to that he stand by and insidious encourage the  appellant to execute a lease with such covenant therein and after have thus  draw the appellant in he refuse to execute a counterpart and now endeavour to  establish that very lease in all respect except the covenant that the  respondent have agree to waive the agreement for a lease and to give up the  land to the appellant on be pay for his improvement which the appellant always  have be and be still ready to do and to take back the lance that by the decree  the appellant be not only order to execute a lease of the farm but also of the  turf bog and appurtenance to the premise belong although there be not the  least proof in the cause nor be it so much as charge in either the original or  amend bill that any part of the turf bog of Breagh belong to or be ever occupy  with the farm nor be this turf bog so much as mention in either of the bill  nor be there any charge or the least little of proof that the appellant agree  to demise the turf bog or any part of it along with the land or that he even  agree to demise the land with the appurtenance and it appear from the register  note or minute of the decree that no mention we make by the court of the bog  or appurtenance at the time of pronounce the decree beside it appear in proof  that the appellant tenant of his other lance cut their fuel in this turf bog  from whence it must be infer that the utmost which the respondent can with any  colour pretend to we a right of common of turbary in the say bog and suppose  he have prove that such a right be a appurtenant to the land and that the  appellant have agree to demise the land with the appurtenance such proof can  not have support a decree order the appellant to execute a lease of the bog  itself it be therefore hope that the decree will be reverse and the respondent  bill dismiss with cost on the other side it be contend c York I Morton that  clause to restrain the assignment of lease especial in case where improvement  be expect from the lessee be unusual and always strict construe but that in  the present case the insertion of such a clause be not warrant by the  agreement of the party the original agreement as state in the respondent bill  be admit by the appellant answer and that at the time of enter into it no  mention be make of a covenant for restrain the respondent from alienate or set  the premise demise to he and that the appellant then know that the respondent  do not intend to reside on the land during the minority of his son and as by  the agreement thus admit the lease to the respondent be to be make as  convenient and beneficial as any of the lease grant by brown the appellant to  any of his other tenant and as the respondent by the admission in the answer  to the emended bill and by evidence have establish the fact that lease be  grant by the appellant to some other tenant without such restrictive covenant  or clause the degree complain of be ground upon the clear intention and  agreement of the party that the appellant repeat acknowledgement of this  agreement by acceptance of the rend and the respondent set the premise to  other tenant without interruption before the lease be prepare or any such  restriction mention be conclusive to show that at the time of the original  agreement no such restriction be think of or apprehend that the respondent  acquiescence in brown er p the restrictive clause and the other alteration of  the agreement mention in the endorsement swear to and insist on by the  appellant answer in case the same have be prove which they be not will not now  afford any ground for a alteration of the lease original propose neither can  the appellant avail himself of it because it be admit by he that he himself  tear and destroy the lease which have be prepare with the endorsement and  thereby cancel such new agreement thus set up without evidence last that the  testimony of the appellant tenant to prove that restrictive clause from  alienation be insert in all or most of their lease be not conclusive as the  lease without such clause to those tenant may pen this suit have be exchange  for lease contain they and this observation acquire the great weight in the  present case because it be in proof on the part of the respondent that since  the suit be institute application be make by the appellant to David hunter one  of his tenant not under his influence to make such exchange which be refuse  and it be very remarkable that the appellant have not venture to prove and  produce any of his lease contain such restrictive clause as the date of they  must then have appear as therefore the respondent from the time of the  original agreement have full perform every stipulation and covenant on his  part and have be so long and unjust disappoint of his lease and force into a  expense to compel a performance of the agreement by the appellant great than  the value of the inheritance of the land to be demise it be hope that the  appeal will be dismiss with exemplary cost accord after hear counsel on this  appeal it be order and further that the same shall be dismiss and the decree  therein complain of affirm and it be further order that the appellant shall  pay to the respondent the sum of pound for his cost in respect of the say  appeal jour vol p