case earl OF ROSS Appellant Elizabeth worsop widow and others Respondents that  march Mews dig viii where a lessor covenant for the perpetual renewal of a  lease upon the lessee name a new life and pay a fine within a certain time  after the death of any of the beneficiary and vie a court of equity will upon  slight circumstance relieve the lessee against a forfeiture for not literal  comply with the term of the covenant sir Thomas worsop Knt have marry  Elizabeth the aunt of Richard Lord brown er p viscount Ross the appellant  father get possession of the manor town and land of Dunshaghlin and Rosetown  with the appurtenance in the county of meath in Ireland towards payment of the  say Elizabeth portion and after the same be pay off still continue to enjoy  the premise by agreement with the mother and guardian of the viscount during  his minority soon after the viscount come of age sir Thomas upon a pretence  that he have lie out pound in building and other improvement on the premise  prevail on the viscount to grant he a lease thereof for three life renewable  for ever and accord by indenture of lease and release date the that and that  of may the viscount in consideration of love and affection to his aunt and of  pound recite to have be lie out in improvement on the premise pursuant to  former agreement and of pound S then pay as a fine grant and convey the say  premise to sir Thomas worsop and his heir during the natural life of John  worsop and Thomas worsop first and second son of sir Thomas and of Elizabeth  worsop his four daughter at the yearly reserve rend of pound Payable half  yearly by this deed the viscount covenant that he his heir and assign on  failure of any of the say life or those thereafter to be add and on payment of  pound as a fine and nominate a life to be add in the place of such life so  fall within six month after such failure and pay the arrear of rend then due  will from time to time for ever renew the lease to the say sir Thomas worsop  and his heir and sir Thomas thereby brown covenant for himself and his heir  with Lord Ross that he and they on failure of every of the life name in the  say lease or to be add shall on nominate a new life as aforesaid to be insert  in the place of every life so fall pay to Lord Ross at the Tholsell of the  city of Dublin the sum of pound over and above the annual rend within six  month after the failure of every such life but it be express provide that if  it shall happen that upon the failure of any of the life therein nominate or  to be nominate as aforesaid the say sir Thomas worsop his heir executor  administrator or assign shall not pay the say Richard Lord viscount Ross his  heir or assign for every life so fail as aforesaid the say full and entire sum  of pound at the Tholsell as aforesaid within six month after the failure of  such life and shall not also within six month nominate the life of some other  person in lieu thereof to be add to the time and term of the say grant then  and for ever after such failure on the part of the say sir Thomas worsop his  heir or assign it shall and may be lawful to and for the say Lord viscount  Ross his heir executor administrator and assign to sue for the say pound or  else at his election for ever after to deny and refuse the make of such  renewal by add any other life or life to the time and term of the say grant  and that in case the say sir Thomas worsop his heir and assign shall not  within the time aforesaid pay the say sum of pound for each life so to be add  and nominate such life within the time aforesaid then the say premise from and  after the determination of the life then in be shall be and remain to the use  of the say Lord viscount Ross his heir and assign for ever on the that of may  Thomas worsop one of the three life die and by indenture date the that of  November between the Lord Ross and sir Thomas worsop Ann worsop his young  daughter be name in the stead of the say Thomas worsop who die without issue  about January sir Thomas worsop die and on the d of January John worsop his  son and heir and one other of the life in the release name die without issue  and by indenture date the that of February between the Lord viscount Ross of  the one part and dame Elizabeth worsop widow and relict of sir Thomas worsop  lettuce worsop Thomas Toller Esq and Dorothy his wife and Elizabeth and  whether worsop which lettuce Dorothy Elizabeth and Ann be four of the daughter  of sir Thomas and the say Elizabeth and Ann be two of the life then in be of  the other part Elizabeth hoey be name in the stead of the say John worsop  decease dame Elizabeth worsop die about October and lettuce worsop also die  without issue whereby the interest in the premise under the say indenture of  lease and release become vest in Elizabeth Dorothy and Ann worsop as sister  and coheir of the say John worsop the son and heir of sir Thomas worsop brown  er p brown Elizabeth worsop intermarry with John wood the young Esq and  Dorothy intermarry with Thomas Toller who in sell their interest in the  premise to dean Noah web and Ann intermarry with Arthur bush and die on the d  of November leave issue one son the respondent worsop bush the say dean Noah  web also die have first make his will and thereby devise his interest in the  premise to his wife Deborah during her life and after her decease to his son  Henry web and his heir after the death of Ann bush one of the beneficiary and  vie application be make by Arthur bush her husband to Lord Ross who be then in  London to renew the lease which he promise to do upon his return to Ireland  and that no advantage shall be take of any lapse in the mean time soon after  this conversation one Fitzgerald Lord ross agent write a letter to Mr bush  inform he that he have order from his lordship to receive the rend in arrear  and also the fine for renewal but as Lord Ross be indebt to one Derby he  desire that bush will accept bill draw upon he Payable to Derby accord in  February two bill be present to bush one for pound S and the other for pound S  make together pound which he accept and one of these bill be mention to be for  the rend of the land and the other in part of the fine but neither of they be  ever tender to Mr bush for payment in Lord Ross return to Ireland when he be  again apply to for a renewal and a deed be tender to he for that purpose  together with pound as the fine but his lordship will not at that time either  execute the deed or receive the fine whereupon Mr bush write a letter to Lord  Ross upon the subject and receive no answer he in apply to his lordship  personal and have make he sensible of the injustice of his refusal he obtain a  second promise from he that he will renew and the notary public who his  lordship employ and who have prepare the deed which have be tender to he be  then send for but not happen to be in town Lord Ross express some concern and  assure bush that he will execute the deed whenever the notary return but  notwithstanding all this Lord Ross refuse to renew and insist upon the lapse  of time which have happen while he be in England and therefore in Trinity term  John wood who life have be name in the room of Ann bush and Elizabeth his wife  worsop bush son and heir of the say Ann Deborah web widow and relict of dean  Noah web and Henry web son of the say Noah and Deborah exhibit their bill in  the court of exchequer in Ireland against the Lord viscount Ross state the  several application and promise for a renewal and pray that Lord Ross may be  compel to receive the pound and execute a instrument of renewal for the life  of John wood in the room of the say Ann bush decease brown to this bill Lord  Ross on the that of June put in his answer and plea by his answer he admit  that he be in England at the death of Ann bush in November and do not return  to Ireland till the summer of but insist on the plaintiff have neglect to name  a new life and pay the fine within the six month limit by the release and that  as the fine be to be pay at the Tholsell in Dublin the plaintiff may have  tender it there and need not to follow he to England to make he a personal  tender of it he deny the several promise of renewal charge by the bill and as  to the specific relief thereby pray Lord Ross plead that in the release to sir  Thomas worsop over and above the covenant and agreement in the bill set forth  there be another covenant in the follow word videlicet and the say sir Thomas  worsop for himself his executor administrator and assign do hereby covenant  grant and agree to and with the say Richard Lord viscount Ross his heir  executor administrator and assign that he the say sir Thomas worsop his heir  executor administrator and assign or some of they shall and will from time to  time and at all time hereafter upon the failure of every life of every several  person or person within the term of this lease nominate or to be nominate as  aforesaid for every life so fail satisfy and pay unto the say Richard Lord  viscount Ross his heir executor administrator and assign the full and entire  sum of pound sterling at the Tholsell in the city of Dublin over and above the  annual rend hereby reserve within six month after the failure of every such  life and every such payment of such sum of pound to be make without any de  brown er p duction or defalcation for or by reason of assessment subsidy or  any other charge whatsoever Chargeable on landlord or tenant as aforesaid  provide always that if it shall happen that upon the failure of any such life  herein above nominate or to be nominate as aforesaid the say sir Thomas worsop  his heir executor administrator or assign shall not pay the say Richard Lord  viscount Ross his heir or assign for every life so fail as aforesaid the say  full and entire sum of pound at the Tholsell as aforesaid within six month  after the failure of such life and shall not also within the say six month  nominate the life of some other person in lieu thereof to be add to the time  and term of this present grant as aforesaid that then and for ever after such  failure on the part of the say sir Thomas worsop his heir or assign it shall  and may be lawful to and for the say Richard Lord viscount Ross his heir  executor administrator and assign to sue for the say sum of pound or else at  his election for ever after to deny or refuse the say sir Thomas worsop his  heir executor administrator and assign to add nominate or put any other life  or life to the time and term of this present grant other than the life or life  which then shall be in be and in case the say sir Thomas worsop his heir and  assign shall not within the time or brown time hereby limit and agree pay the  say sum of pound for each life so to be nominate and nominate each life so to  be add within the time aforesaid that then the premise from and after the  determination of the life then in be shall be and remain to the use of the say  Lord viscount Ross his heir and assign he further plead that the say sir  Thomas worsop die before the say Ann the heir executor administrator or assign  of the say sir Thomas do not within six month after the death of the say Ann  pay or tender to the say viscount or his assign the say fine of pound over and  above the annual rend at the Tholsell in Dublin or elsewhere nor within the  say six month nor in some year after nominate a new life whereby the say Lord  viscount be at liberty for ever after to refuse to add any other life and the  say premise after the determination of the life then in be be by the say  indenture limit to remain to the say Lord viscount his heir and assign for  ever and that after failure make of pay the say money or nominate any new life  he make his election as he then do and declare that he will not renew the say  lease this plea be argue on the that of November when it be order that the  plea shall be reserve with the cost till the hear of the cause with liberty  for the plaintiff S to reply soon afterward Lord Ross die leave the appellant  his old son and heir a minor who thereupon become seize in tail of the  reversion of the promise subject to the say lease for life during the  continuance of the life then in be by virtue of a settlement make by his  father in and not as his heir at law the respondent take no step in the cause  from the time of argue the plea in till Hilary term when they exhibit their  bill of revivor against the appellant but do not proceed thereon and on the  that of may amend their say bill and make Francis Bernard Theobald butler and  John butler to who the appellant have convey the premise upon several trust in  pursuance of a act of parliament defendant to which bill the appellant on the  d of February put in his answer and thereby insist that the respondent have  lapse their time for renewal and hope he shall not be compel to add a new life  instead of a former which by the bill appear to have fall above thirty three  year before on the that January Elizabeth hoey who have marry one Roth and be  the life add in the room of John worsop die afterward Deborah web die and also  Henry web leave Noah web his old son and heir and on the saint of April John  wood the life name by the respondent in their bill to be add in the room of  Ann bush likewise die whereupon the respondent on the saint of march exhibit  another bill of revivor and also a supplemental bill against the appellant and  the say Francis Bernard and John butler the brown say Theobald butler be then  dead in order to compel the appellant to add the life of Richard Toller for  that purpose name in this last bill in the room of the say John wood and to  receive the fine of pound for such renewal but the respondent in this bill  take no notice of the death of Elizabeth hoey who die in January nor seek to  have any new life insert in her place though they have notice thereof brown er  p to this bill the appellant put in his answer and thereby insist on the  benefit of his father plea and that he be not now oblige to renew the  respondent have lapse their time the cause be at issue the respondent examine  several witness therein and on the that of June they exhibit another bill  against the appellant set forth the several matter aforesaid and that they  have name worsop bush as a new life in the room of the say Elizabeth hoey and  have cause a tender to be make to the appellant of pound for add the life of  the say worsop bush in the premise in the room of the say Elizabeth hoey  decease and pray that the appellant may be compel to receive the say pound and  add the life of the say worsop bush in the premise to which bill the appellant  put in his answer and insist on the plea and answer put in by his father to  the former bill and on the several matter set forth in the appellant former  answer and the long acquiescence of the respondent without any suit for  renewal in bar of all the relief pray by they this cause be likewise at issue  the respondent examine several witness and both the cause come on to be hear  together on the d of July the court overrule the plea put in by the appellant  father and decree that the respondent shall bring into court the sum of pound  sterling be the fine due to the appellant father for renew the lease of the  land of Dunshaghlin and Rosetown on the death of Ann worsop otherwise bush who  die on the d of November with legal interest for the say pound to be compute  from the end of six month next after the death of the say Ann worsop otherwise  bush for the use of such of the representative of the appellant father as  shall be entitle thereto and that the respondent shall also pay to the  appellant a further sum of pound be the fine due for renew the say lease on  the death of Elizabeth hoey otherwise Roth who die on the that of January with  interest to be compute from the end of six month next after the death of the  say Elizabeth hoey otherwise Roth and that the respondent shall likewise pay  to the appellant a further sum of pound be the fine due for renew the say  lease on the death of John wood esquire who die on the saint of April with  interest to be compute from the end of six month next after the death of the  say John wood the interest of the say three several sum to be pay and compute  at the rate that money bear interest from time to time by act of parliament in  Ireland and that the respondent shall also pay to the appellant all arrear of  rend due for the premise and the court brown further decree that thereupon the  appellant shall execute a renewal of the original lease of the premise to the  respondent and their heir for and during the life of the say Elizabeth worsop  otherwise wood widow one of the beneficiary and vie in the original lease  worsop bush and Richard Toller esqrs and the life of the long liver of they at  and under the yearly rend and subject to the several clause in the say  original lease mention and contain from this decree Lord Ross appeal contend d  rider I brown that it be the express agreement of the party that if sir Thomas  worsop his heir or assign do not within six month after the death of a  beneficiary and vie pay the pound fine and also name a new life that then the  earl and his heir be to have their election either to sue for the pound or for  ever refuse a renewal that a court of equity ought not to dispense with a  lapse of time in case of this nature because it be not a matter of form or  circumstance but a substantial and valuable part of the agreement that the  time for renewal shall be fix within a certain period and that the fine shall  be pay and the life name within the time appoint for to prolong the nomination  of a life be to take away the chance of the death of a beneficiary and vie if  name in time and the fine attendant thereon during the suspense of such  nomination beside it give the advantage of the contingency from the landlord  to the tenant against the express stipulation of the party and will encourage  tenant to use all delay that invention can suggest if they be sure of find  relief in a court of equity against a lapse of time to renew the estate that  the proviso be not calculate for a penalty or condition to enforce a  performance of any part of the agreement and upon that ground subject to  relief in a court of equity but be intend to be strict and precise execute and  the rather because there be not a mutual stipulation for a renewal the earl  and his heir be indeed bind to renew upon payment of the fine and name brown  er p a new life within the time for that purpose limit but sir Thomas worsop  and his heir though liable to the payment of the pound upon the death of a  beneficiary and vie be not oblige to add any far life or accept of a renewal  and if the appellant be not to take a legal advantage of the proviso he will  be without remedy in this respect that this be not a case which lie in  compensation for the damage which may be sustain by dispense with a lapse of  time be mere eventual and depend upon contingency incapable of be estimate  with any certainty no proper equivalent or compensation can be give in lieu of  it and that the suppose promise or declaration of the late Lord Ross dispense  with the time limit for the nomination of a new life in the room of Ann bush  be support by the evidence of one single witness father of one of the  respondent and examine to a suppose conversation upon a accidental meeting in  the street above thirtyfive year before the examination whereas it be express  deny by Lord ross answer and attend with great brown improbability and it be  apprehend that such parole evidence will be productive of all the mischief  intend to be avoid by the statute of fraud and perjury on the other side it be  insist I strange W Murray that the respondent come proper into a court of  equity for a specific performance of Lord ross covenant to renew accord to the  true intent and meaning of the party and that many decree have be make for the  specific performance of such covenant and especial in Ireland where these  perpetual lease be frequent that upon the death of Ann bush the only life upon  the failure of which a formal tender and nomination in time be not make the  condition on which the lessee become entitle to have another life add be  substantial and in equity perform application have be make to Lord Ross for  that purpose within about a month after her death but the actual renewal be  defer till his return to Ireland at his own desire and upon his express  promise to take no advantage of the six month expire in the mean time for  otherwise the nomination of the life and the proper instrument will have be  procure from Ireland before the six month can have expire and it will be  contrary to justice to suffer a man to take advantage of his own wrong that  the bill draw upon Mr bush by Lord ross agent and accept and his lordship  promise to renew make to Mr bush in Dublin in the year when the notary be send  for be not only a confirmation of the original agreement to renew  notwithstanding the expiration of the six month but ought to be consider as a  election make within the term of the proviso rather to take the pound fine  than to vacate the lease and amount to a waiver of any legal advantage arise  from the lapse of time if any such advantage have be gain before and therefore  it be hope that the decree will be affirm and the appeal dismiss with cost  accord after hear counsel on this appeal it be order and adjudge 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 pound for their cost in  respect of the say appeal jour vol p