I cannot say that it is not a stronger case against a renewal. The third case cited was Baynham v. Guy's Hospital; and I cannot perceive that that has any relation whatever to the decision in Eaton v. Lyon: it is. completely distinct from it. There it was perfectly clear, that the dropping of one life, without an application to renew, must have deprived the lessees of all right of renewal; because there is a subsequent provision annexed to the covenant for renewal, which is, that if the lessee, his executors or administrators, do not apply within the time specified, all the articles and clauses of the covenant were to be null and void. The consequence was, that, they not having complied with that condition, the instrument was at an erd, with all its provisions and covenants; and the lessor might have re-entered the moment the breach was committed. Therefore I look upon that to be a very clear case against a renewal, and one which would not justify me in the course I propose to take. The next authority brought before me was Eaton v. Lyon, which, I think, in effect, governs this case; and I cannot say otherwise, without contradicting what Lord Alvanley said and did in it. The covenant there was, "that the said G. Hockenhull, his heirs or assigns, would, at the decease of any of the life or lives aforesaid, at the request of the said D. Orred and S. Orred, or at the request of the survivor of them, &c. grant a new lease of the said premises thereby demised, and add one more life or lives in the room of the life or lives so dying." Now those terms, and the terms of this covenant, seem to me in substance precisely the same. The words here are, that the lessor, &c. should and would, at any time within the space of one year next after the death of any such life or lives, execute a good lease of the premises. The phrase, any such life or lives, refers to, and is to be construed by a preceding part of this instrument, which states, that if E. M. Brown, his executors, &c. should, at any time thereafter, upon the death

of any, or either of the life or lives by which the said de-
mised premises were then held, &c. So that the only dif-
ference between the two covenants is, that the expression
in one of them is "any" only, and in the other it is "any
or either ;" and that does not make any difference in effect.
I think that "any" imports the same thing as "any or
either;" and that they both mean, that upon the death of
any one of these lives, the acts provided by the covenant
should be done. Certain facts, mentioned in the report,
happened in Eaton v. Lyon, which shewed a clear inten-
tion of renewing; so that if any thing turned upon that
circumstance, it was a more favourable case for a renewal
than this is. But Lord Alvanley considered that it was a
pure question upon the construction of a covenant; and so
I think here. I will not go through the reasoning in that
case; it amounts to this, that the question is purely one
at law; that there is no difference between the construc-
tion of covenants at law and in equity; and that the true
meaning of a covenant so expressed is, that notice must be
given upon the expiration of the first life; and not having
been given there, Lord Alvanley dismissed the bill. The
only circumstance (in addition to what I have already men-
tioned) which distinguishes that case from this is, that in
that there was a covenant on the part of the lessee to give
notice, in consequence of which notice the lessor cove-
nanted to grant a lease. If that makes any difference be-
tween the two cases, it seems to be rather a difference in
favour of this lessor; because in that case the lessor had
the remedy in his own hands. Upon the non-application
he might have proceeded upon the covenant, to compel the
lessee to accept a renewed lease. Consequently, it seems
to me, that the power which the lessee there gives to the
lessor, to insist upon a renewal, rather weakens than
strengthens the argument for these plaintiffs, inasmuch as
it put the lessee to a strict performance of the covenants.
I am of opinion besides, that there is a great deal of expe-

1824.

MAXWELL

and others

v.

WARD.

1824.

MAXWELL and others

V.

WARD.

diency in holding men to a diligent enforcement of their rights; and that great inconveniences may ensue, if persons are to lic by for a length of time, and are then permitted to do what the other party supposed would never be done. Lord Alvanley's construction seems the most convenient in practice for the conduct and arrangement of the affairs of mankind. Accordingly, I should feel myself bound to dismiss this bill; but I consider this a very nice question, and on that account I will give the plaintiffs the advantage of retaining the bill for twelve months, to enable them to take the opinion of a Court of Law, by bringing an action for the breach of the covenant, or any other they may be advised.

His Lordship afterwards added, that he had laid the Irish cases entirely out of the question; because it was clear, from the act of parliament (a), and its history, that they were founded on local equity.

July 1st.

To a bill for

IN THE EXCHEQUER CHAMBER.

(Before the whole Court.)

WOLLEY and another v. PLATT and LowOOD.

THE plaintiffs in this suit were the same parties as in that

tithes by lesees of Wolley and another v. Brownhill and others (see p.317,

of a spiritual im

propriator against occupiers alone, mere non-payment, coupled with evidence of pernancy by the landlord of the premises for a few years, and of loose reputation of title in him as a portioner,unsupported by any document, does not constitute a defence, and the case will not be sent to law.

ante), and sued in the same right, and for the same object. The defendants were occupiers of lands in another township in the same parish, called Stayley, and after, by their answer, putting the plaintiffs on proof of their title, and respectively admitting occupation since the 1st January, 1812, they said that their several farms and lands formed part of a certain estate, situate in Stayley, belonging to the Earl of Stamford and Warrington. They believed that the said Earl was, in and prior to the year 1812, and has ever since been, and now is, entitled to all the tithes of corn and grain arising, &c. on the said estate. They alleged that they had, ever since they occupied their said several farms and lands in each year respectively, accounted for, and paid to the bailiff for the said Earl, yearly compositions for the tithes in kind of all the corn and grain, which had been reaped, taken, or got by them from their lands; and that from the year 1812 downwards, no claim or demand for such tithes was ever made on them, or either of them, by the plaintiffs, or any person or persons on their behalf, or by or on the behalf of any other person or persons claiming to be entitled to the rectory, or the tithes belonging to it, until the time of the filing of the bill (1817). They further said, that they had been informed, and believed, that the said Earl, and the persons under whom he claimed the title, had been entitled to re ceive, and had received, all the tithes of corn and grain of the lands from time immemorial, or from very ancient time, to the present time. The defence to the demand of the residue of the tithes sought by the bill was similar to that set up in the other cause, which has been referred to.

Martin, H., Clarke, N. G., and Boteler, for the plaintiffs.

Agar, Parker, T., and Spence, for the defendants.

1824.

WOLLEY

and another

v.

PLATT

and another.

1824.

WOLLEY and another

PLATT and another.

The title of the plaintiffs, as lessees of the rector, had been before established.

On the part of the defendants no documentary evidence was produced.

The parol evidence (material to be stated), consisted of the depositions of four witnesses. The first was the Earl of Stamford's bailiff for the lands in question, from the year 1814 to the time of his examination. He stated, that from that year down to 1821 inclusive, he had (as bailiff) valued the tithes of corn and grain upon the farms in each year, and received the amount of such valuations (except for Lowood's farm, in 1819,) from the respective occupiers; that in 1819 he took the tithes in kind of about half a customary acre of oats, being the only corn or grain produced in that year on Lowood's farm, on account of his having refused to pay the amount at which he had valued it, as being too high. The three other witnesses, aged 76, 50, and 80, respectively, had been occupiers of the defendants', or part of the defendants' farms; and deposed, that during their several occupations, no tithes, or no tithes of corn and grain had been collected or demanded from them for the rector or his lessees. Two of them stated that they had been informed, one by his father, who had been an occupier in the parish nearly all his life, the other by a deceased steward of Lord S., that the Earls of Stamford had always received, and were reputed to be entitled, to the two last mentioned species of tithe. The period of occupation by the first was about two, at a distance of about forty years; and he said, that in one year he had paid some composition in money, in lieu of the tithe of some oats, to the best of his recollection, to the then steward of Lord S. The second gave evidence of having occupied from May, 1809, to November, 1811; and of having, in 1810 and 1811 paid a composition in money, in lieu of the