CRANSTONS v. FITZ GERALD. M. T. 1850. him served with any writ or process, judgment of outlawry was had Queen's Bench against him on the 30th of May 1849, on foot of this promissory note. The present action was brought for recovery of the amount of the promissory note which had been indorsed to the plaintiffs, who were co-partners, and of other debts due by the defendant to the plaintiffs. Service of the writ of summons on the manager and agent of the defendant, who resided out of the jurisdiction, was substituted, and an appearance by an attorney was entered for him on the 11th of July 1850. This motion is made for the purpose of compelling the defendant to reverse his outlawry, which he may do on motion, but the Court will impose the terms on him of appearing to the action and paying the costs of the outlawry proceedings. An outlaw has no locus standi in any Court for his own benefit except for the purpose of reversing his outlawry. [BLACKBURNE, C. J. You have invested him with the power of which you seek to deprive him by serving him with a writ requiring his appearance.-Moore, J. His appearance has been induced by your own acts, why then should he be deprived of the benefit?]-The judgment of outlawry is a judgment for the Queen, "that the defendant be outlawed," and the disability caused by such judgment cannot be removed but by the reversal of the judgment. It is not sought to deprive the defendant of the power of appearing, but to compel him to remove the impediment to his appearance. The very exigency of the writ of summons, commanding his appearance in the Queen's Court, requires that he should appear cleared of the contempt. In 2 Lush's Practice, p. 683, it is stated that an outlaw is incapable of defending an action. In Loukes v. Holbeach (a) it was held that a party outlawed in the King's Bench, in an action to recover the arrears of an annuity, could not be heard in the Common Pleas on a motion to set aside the deed of annuity; in that case Parke, J., delivered the judgment of the Court, and adopted the principle and language of the Judges in the case of Griffith v. Middleton (b), that a person outlawed is not receivable to sue in any Court unless it be to reverse his own outlawry; for it was said that when it is ad lucrandum there ought to (b) Cro. Jac. 425. (a) 4 Bing. 419. CRANSTONS v. FITZ GERALD. be ability in the person, and it is all one to gain by way of discharge M. T. 1850. Queen's Bench as by way of perquisition. An outlaw cannot appear in Court for any purpose but to reverse his outlawry: Aldridge v. Buller (a); and to this rule there are but these exceptions: He may sue or defend in auter droit, or may be a competent witness, or he may apply for his discharge under the Insolvent Debtors' Act, and may appear in Court also for the purpose of applying for his discharge from custody when the writ or power of the Court has been abused, or irregularly used against his person: Hawkins v. Hall (b); Walker v. Thelluson (c); Davis v. Trevanion (d). An outlaw cannot for his own benefit move to have a bill of costs taxed: In re Ford (e); even when acting in a representative capacity, if he appear to be personally interested in the matter: In re Mander (f). There the judgment of outlawry was sued out by third parties. J. H. Orpen, contra. This motion is quite irregular. Here a writ issues at suit of the plaintiffs requiring the defendant to appear at a certain time, and he does appear according to its exigency; what more is required? It is a motion to the discretion of the Court, and there is no precedent for the present application. The plaintiffs might perhaps have replied the outlawry. The distinction taken in all the cases cited is that the outlawed person is not merely entitled to protect himself from arrest, but that he is also entitled to come into Court and defend himself like any other person, but that he cannot come into Court seeking a benefit for himself until the outlawry be removed: Bac. Ab. tit. Outlawry, D. A party in contempt is entitled to appear and resist any proceedings taken against him: King v. Bryant (g). -[BLACKBURNE, C. J. Is there any precedent of a replication of outlawry to a plea in bar ?-MOORE, J. An outlaw may defend an action; and here the plaintiffs have actually obtained an order of the Court, substituting service on the defendant's agent.] (a) 2 M. & W. 412. (e) I Dowl. N. S. 277, 578. (e) 10 Jur. 757. (g) 3 Myl. & Cr. 195. (b) 1 Beav. 73. (d) Dowl. & L. 743. M. T. 1850. CRANSTONS V. FITZ GERALD. Orpen was stopped and— Cosby replied. The judgment of outlawry is simply that the defendant be outlawed, and it matters not for what or by whom that judgment has been sued. It is in the power of an outlaw to reverse his outlawry on motion and enter an appearance for himself, and he cannot appear until after such reversal. Even in bringing a writ of error, the error cannot be suggested by the outlaw himself, but by an amicus Curia. There is no instance of a replication of outlawry; for if an outlaw could not appear, it follows that he could not plead. In Hawkins v. Hall the proceeding was a penal one; the defendant was in custody and the process of the Court had been abused, and Lord Langdale held that the outlaw might apply to the Court for his personal protection when he had been improperly detained. Here the defendant by his appearance seeks a gain for his own benefit by way of discharge. BLACKBURNE, C. J. This motion is of an extraordinary character and must be refused. It is certainly one to the discretion of the Court; but are we on motion to set aside this appearance? it being entered actually on the compulsion of the plaintiffs themselves. It is in fact an endeavour to get rid of this appearance, which the plaintiffs have compelled the defendant to enter, and thereby to preclude him making any defence to which he is entitled. Motion refused, with costs. M. T. 1850. HENRY LUTTRELL v. THOMAS M'CREERY. COVENANT for non-payment of rent. The declaration stated that the Earl of Carhampton, being seised in fee of certain premises, by indenture of the 19th of May 1792, bargained and sold the same, with the appurtenances, to one William Drought for one year, who, by virtue of said indenture and of the statute for transferring uses into possession, became possessed thereof; that the Earl of Carhampton, being seised of the reversion of the said premises, on the 10th of May 1792, released and confirmed unto William Drought, his heirs and assigns, the said premises: To hold the same from the 25th of March 1792, for the lives of M. D., D. F. and J. M., and the survivors and survivor of them (with a covenant for perpetual renewal), yielding and paying the yearly rent of £40. That William Drought did thereby, for himself, his heirs, executors, administrators and assigns, covenant to pay the rent to the Earl of Carhampton, and that the Earl of Carhampton did, for himself, his heirs, &c., covenant with William Drought that upon the death of any of the June 7. Nov. 5, 22. A declaration stated an in denture of 1792, which contained a Covenant for renewal on the death of the cestui que vies and the sur vivors of them on payment of a peppercorn fine, and that the nominated life was to be indorsed on the indenture or on a sepa rate deed, label or parch alleged the death of one of the c. q. vies, and that by an indenture of 1818, under the hand and scal of plaintiff and defend ant, reciting the indenture of 1792, and that all the estate and interest of the lessor in that lease vested in plaintiff, and the estate of the lessee in the defendant, and that the defendant had applied for a renewal of the indenture of 1792 by inserting the life of D., and that plaintiff, in pursuance of that covenant, added and inserted said life, Habendum for the three lives and the survivor, and such other life, &c., "subject to the rent and all the other covenants in the indenture of 1792 contained on the lessee's part to be done and performed." The declaration then averred a covenant by the defendant to pay the rent, the existence of the term, and that the rent accrued due, and non-payment. The defendant craved oyer and pleaded that before the rent became due the defendant, by an indenture therein mentioned, assigned his interest in the premises; that the assignee entered, and that the plaintiff after the entry received rent from the assignee and accepted him as his tenant. Held, on general demurrer, that such plea was bad, the reference by the deed of 1818 to the deed of 1792 incorporating all the covenants in the deed of 1792, and the deed of 1818 containing the words " subject to the said yearly rent of £40 sterling," raised an express covenant to pay the rent, and that such covenant was obligatory on the defendant after his assignment over.-[CRAMPTON, J., dissentiente.] A covenant for renewal means that the tenant is to have at all times a subsisting legal estate for three lives and the life of the survivor, and that the landlord is to have all his legal remedies for the recovery of the rent.-Per MOORE, J. Held, per CRAMPTON, J., that no new estate was, or intended to be, created by the deed of 1818; that the intention was to continue the old estate by way of enlargement, and leave the relation of landlord and tenant as it stood before. LUTTRELL M. T. 1850. lives, on payment of a peppercorn fine, he would add and insert to Queen's Bench the time and term thereby granted the life of such person as might be named, which nominated life was to be indorsed on the indenture or written on a deed, label or parchment, to be affixed to the indenture, or in a separate deed or writing, declaring the life or lives failing, and the life and lives so added in lieu thereof (Profert). M'CREERY. It then stated that during the existence of two of the lives the third one dropped on the 1st of April 1818, and that on the 21st of April 1818, by indenture made between plaintiff and defendant (Profert), reciting that the estate and interest of the Earl of Carhampton in the premises was legally vested in the plaintiff, and that the estate and interest of William Drought was vested in the defendant, and that J. M., one of the lives in the indenture of the 10th of May 1792, was dead, and that defendant had applied for a renewal thereof by inserting the life of the Duke of Leinster; that he (the plaintiff) added the life of the Duke of Leinster to the time and term granted by the original indenture: To hold the premises unto the defendant, his heirs and assigns, for and during the life and lives of M. D., D. F. and the Duke of Leinster, and the survivors and survivor, subject to the yearly rent and to the covenants in the indenture of the 10th of May 1792 contained. That defendant by said last-mentioned indenture covenanted to pay the rent on every 29th day of September and 25th day of March; that the last-mentioned term still continued, the life of the Duke of Leinster being still in being; and that on the 25th of March 1849 the sum of £60 for one and a-half year's rent was and still is in arrear. Breach-Non-payment of the same. The defendant craved oyer of the deed of 1818, which was as follows: "This indenture, made the 21st of April 1818, between Henry "Luttrell of, &c., of the one part, and Thomas M'Creery of, &c., of "the other part: Whereas by indenture of lease bearing date the "10th day of May 1792, and hereunto annexed, Henry Lawes Earl of Carhampton, for the considerations therein mentioned, did demise "and set unto William Drought of, &c. (in his actual possession then "being by virtue of a bargain and sale therein recited), all that and |