1806. IGGULDEN versus MAY. indenture contained particular words indicating an intention in the parties that this should be a covenant . for a perpetual renewal; yet we are to consider whether that be the true construction of these words, and the case necessarily resolves itself into this question, namely, whether a covenant to grant a new lease with all covenants, grants, and articles,' &c. can be satisfied by tendering a lease of all covenants except the covenant for a renewal. The argument that a covenant for a lease with all the covenants cannot be satisfied by a lease with all but one, will be found to have no weight with the court, if, according to the fair construction of the lease, that one covenant shall appear to have nothing to do with the subject matter to be granted. The covenant is at the end of 18 years of the term of 21 years, or before, at the request and costs of the lessors, their executors, administrators, and assigns, to make seal, and deliver to them a new lease for the like time and term of 21 years, with all covenants, grants, and articles, as in that indenture contained. These words are clear and unequivocal. The subject matter therefore of the grant is one lease not leases. It is to grant a new lease; and a new lease means the same as one new lease, if the parties contracted for one lease. The covenants to be introduced must be commensurate with the duration of such lease and suited to it. And the words, with all covenants, grants, and articles, as in these present indentures are contained,' amount only to a general and lax expression of what was before contained in the lease, namely, all provisions relative to the enjoyment of the same for the same term of 21 years, as are contained in the present lease relative to the now subsisting term of twentyone years. If the continued grant of successive leases, were intended, words should have been used more plainly expressing the right to a continued re newal, instead of words applicable to one renewal. The argument for the plaintiff rests on that which is not the natural construction of such a covenant; it is a construction, as it is supposed, arising out of the intention of the parties, without any adequate consideration, which leads virtually to a grant in perpetuity, Whereas, the other construction of the words of the covenant looks only for a single renewal of the lease, for the same term, and this is more reasonable and more to be adopted by a court of justice. The case on the part of the plaintiff supposes it was the intention of the parties, that this should be a covenant, for a perpetual renewal. If such had been their meaning, they might and they would (their interest being concerned) have found words, which without difficulty or ambiguity, would have expressed that intention, and which would obviously have occurred to the most unexperienced draftsman. Had the words and so from time to time,' been added at the end of eighteen years, that is to say, suppose the covenant had run thus, that the defendant covenanted at the end of eighteen years to grant the plaintiff a new lease, and so from time to time,' the design of the parties would have been clearly and unequivocally pointed out. Possibly cases may be put of grants such as the plaintiff. contends for, and where they would be by no means unreasonable or improper. As in the case which was put in argument, in the court of Chancery, that this. might be originally unprofitable sea beach, and that the owner might reasonably part with it without any prospect of increasing his fine; for while the leases were renewing, he would have a certain gain; and, when at an end, the lessor could not be in a worse situation than he originally was. And on the other hand, it was but reasonable that the lessee should be at liberty to give it up, if the experiment did not answer at the end of the first twenty-one years. But the answer to this, and other 1806. IGGULDEN versus ΜΑΣΑ 1806. IGGULDEN versus MAY. supposed cases, appears to be this; if such had been the views of the parties, they would not suffer their intentions to have rested on words that were ambiguous. Persons so attentive to their eventual interests would have expressed themselves by words clearly calculated to insure these views. As to the argument on the word covenants, in the plural number, we think it has not much weight; and from the loose and vague language of this provision, and the fair import of the whole, the word covenants,' is literally satisfied by granting one new lease with the covenant of renewal, for a good title and quiet enjoyment; and the lessees being bound by no other covenant than to pay the rent in the indenture. On the cases that have been cited for the plaintiff, it will not be necessary to say much; for the words in them all differ from those of the case in question; and in most of them the intention of a perpetual renewal may be fairly inferred. The only case on this subject, which has been decided in a court of law is, the case of Cooke v. Booth.* That is certainly a case very analogous to the present, both in respect to the words of the covenant and in some respect of the fact of successive renewals. In that case there was a series of successive renewals uniform and unbroken, containing the same clause of renewal, and it was alledged that the covenants correspond with them; but, in this it is only alledged that they correspond with those in various other leases successively made, which allegation might be proved, although there were many instances to the contrary. That case was decided on two grounds. First, it was said that the parties themselves by a number of successive renewals in the same terms, had put their own construction on the words of that covenant in that case, by which they were bound. * Coup, $19. And on that first ground the judgment of Lord Mansfield, of Mr. Justice Willes, and of Mr. Justice Ashurst, proceeded, and Mr. Justice Buller's judgment went on another ground, namely, on the authority of the case of Bridges v. Hitchcock.* As to the first of these grounds inasmuch as the fact stated respecting the successive renewals so materially differs in this case from that of Cook v. Booth, this case cannot be governed by that, even if it were possible, in any form of action, to bring upon the record, with reference to the former leases, the fact of the contract contained in the last lease. On that subject, it is unnecessary to dis cuss what was said in Moore v. Foley, and by Sir William Grant, at the Rolls, in 9 Vezey, Jun. 335, where great doubts have been raised upon it; nor can the second ground govern this case, namely, the authority of the case of Bridges v. Ilitchcock. That was a case very different in its circumstances from the present, for there, as was observed in argument, was a covenant to grant such further lease as should by the lessee be desired, without any fine, and under the same rents and covenants only as in that lease. So that the covenant left the lessee to require a lease for any term, provided there should not be any other covenants than those in the present lease, and it was not unfair to presume, that as he might require a lease for any length of time, he might require one with a covenant for a perpetual renewal. As to the case of Furnival v. Crewe, Lord Hardwicke relied in that case on the words, and so to continue the renewing of such lease or leases to Thomas Moore or his assigns paying as aforesaid,' and his lordship was of opinion in that case that the plaintiff was entitled to a new lease with a covenant of renewal to be inserted in it. But in 1806. IGGULDEN versus MAY. * 1 Bro, Parl. Cases, 522. +6 Vezey, Jun. 232. 3 Atk. 84. 1806. ICGULDEN versus MAY. the present case there is not one word analagous to these. As to the following authorities of Hyde v. Skinner,* decided by Lord Macclesfield; of Russell v. Darwin,+ decided by Lord Cambden ; and of Moore v. Foley, decided by Sir William Grant; in all of these there was a covenant to renew, but in all of them moreover, it was held there should be no perpetual renewal ; and although these cases were decided in a court of equity, yet the judge was bound to put the same construction on the instrument under consideration as a judge sitting in a court of common law. On these authorities, as well as on the reason of the thing, we are all of opinion that the plaintiff was not entitled to have à new lease executed to him containing the covenant of renewal, and therefore there must be judgment for the defendant. JUDGMENT for the DEFENDANT. sedeas. Leave to take out execution. Lord KINNAIRD and others against LYALL. Error. Super- Error in parliament on judgment in B. R. Plaintiff in error dies in vacation. Plaintiff in B. R. sucs out execution tested in the term preceding; held irregular, because at the teste of the writ there was error pending, and execution could not be taken out in that case without leave. And where, in the next term after the defendant in B. R. died, the plaintiff moved for leave to sue out execution tested of the term preceding; it was refused, because the error must appear on the record. KINNAIRD THIS and Others versus LYALL. was a rule to shew cause why the testatum fieri facias, issued in this cause, should not be set aside for irregularity, and the sum of 1. paid into the hands of the sheriff of Susser, by the executors |