whether upon the true construction of the above lease, unexplained by extrinsic evidence, the half of such sums of money as the cannel got by virtue of the indenture, and sold elsewhere than at the pit's mouth, would have produced, if sold at the pit's mouth, is due to the plaintiff, when the selling price of the top and bottom coal at the pit's mouth at the same time was above 4d. per basket, and if the court should be of opinion with the defendants upon this point, then 2dly, whether the evidence above mentioned to have been rejected ought to have been received.

Woon, for the plaintiff, contended as though the breach assigned did not fall within the literal wording of the covenant, yet it was substantially warranted by it. At the time when the covenant was drawn, all the coal was sold at the pit's month, since which time, by means of a canal, an opportunity is afforded of carrying it to a more distant market; but the contract between the parties must still be understood to stand upon the same equitable footing it was before; for effecting which the court will not tie them down to the mere words, but look to the meaning of the contracting parties. There can be no doubt but that the intent of the covenant was that the lessor should share the half of whatever price the coal produced at the market; and whether it was further from the pit, or nearer to it, could not possibly vary the case. For this purpose it is perfectly safe to consider the sale as made. at the pit's mouth, as far as regards the regulation of the price. And if the evidence offered had been received, it would have been decisive to show that the defendants themselves so understood the contract. In Cooke v. Booth, Cowp. 819, where the question was whether a covenant by the lessor to renew under the same rents and covenants should be considered as a covenant for a perpetual renewal, evidence of acts of the ancestors of the lessor, who had frequently renewed, was admitted to show the intention of the contracting parties.

LAMBE, contra, was stopped by the court.

Lord KENYON, C. J.

The conduct of the defendants may possibly be a frand upon the covenant, and perhaps a court of equity would give

the plaintiff some relief; but how can this court get rid of the covenant in the shape in which the question is brought before ns? Suppose the breach had been assigned that this coal had been sold for so much at Liverpool, it could not have been supported upon a demurrer. Then the covenant not being ambiguous in the term of it, can not be explained by parol evidence. This case is distinguishable from that of Cooke v. Booth which was determined on the same principle as that of Furnival v. Crew, 3 Atk. 83, and others. Here the covenant is drawn in clear and explicit terms.

GROSE, J.

The court can not declare that the coal was sold at the pit's mouth, which is expressly stated to be sold elsewhere. Whatever the meaning of the parties might have been, we can only look for it in the covenant; and in that they have expressed themselves precisely and unambiguously; and therefore we can not receive extraneous evidence in explanation of it.

Postea to the defendant.

THE COPPER MINING COMPANY V. BEACH.

(13 Beavan. 478. Before the Vice Chancellor, 1823.)

1 Covenant construed to imply perpetual renewal. A granted a lease and covenanted that he would always, at any time when requested by the lessees, etc., demise the premises for the further term of thirty-one years, in which new lease were to be contained the same covenants, articles, clauses, provisos and agreements: Held, that this amounted to a covenant for a perpetual renewal. Form of recital in renewal lease. A testator covenanted for a perpetual renewal of a lease: Held, that the proper form of lease to be granted in renewal, was a demise for the new term, reciting the original covenant.

In 1757 a lease was granted of some mining property, for thirty-one years, with a covenant for renewal in the form after stated, and renewed leases were, in 1774 and 1788 granted, containing similar covenants for renewal. The last-mentioned lease

1 Page v. Esty, 54 Me. 319; compare Hyde v. Skinner, 2 P. Wms. 196.

was made between Mr. Talbot, of the one part, and the Copper Mining Company of the other part, and thereby the property was leased for thirty-one years. This lease contained the following covenant for renewal: "That he, the said Thomas M. Talbot, his heirs and assigns, in consideration of the sum of £400, paid by the said Governor and Company, would, at the costs of the said Governor and Company, always, at any time, when and as often as the said Governor and Company, their successors or assigns, should and would request the same, by indenture under his or their hands and seal, lease, demise, set, and to farm, let, unto the said Governor and Company, and their successors or assigns respectively, all and singular the premises therein before demised, together with all the liberties, privileges, powers and authori ties, in as full, large and ample manner as the same were therein before granted, to commence at the feast of the Aununciation of our Blessed Virgin Mary, or St. Michael, the Archangel, whichever should happen to be next preceding the execution of such new lease, for the further term of thir ty-one years, from thence next ensuing, and fully to be complete and ended, in which said new lease or leases were to be contained and inserted the same rents, payments, reservations, covenants, articles, clauses, provisos and agreements, as were therein before mentioned and contained."

Mr. Talbot, by his will, dated in 1810, devised his real estates, and amongst them the mines in question, unto the defendants, M. H. Beach and W. H. Beach and John Hunt, since deceased, and their heirs, upon certain trusts.

In 1819, after the death of Mr. Talbot, the draft of a renewed lease from the trustees of his will to the copper mining company was prepared, and in this draft Mr. Polson, the conveyancing counsel of the company, had introduced a covenant by the trustees, for renewal, in the same form as the former covenant.

Mr. Hodgson, on behalf of the trustees, struck out this covenant, adding a proviso that the acceptance of the lease without such covenant should not prejudice the lessees in respect to any future renewal.

Mr. Polson insisted on having the covenant for renewal inserted. He offered, however, to add a proviso for cesser of

the covenant, upon the trustees conveying the legal fee to the person entitled to call for it, and upon that person giving to the company a similar covenant.

This being objected to, a bili for specific performance was filed on the 21st of June, 1821, praying that a renewed lease might be granted, subject to the same rents, payments and reservations, and containing the same grants, covenants, articles, clauses, provisos and agreements as were reserved, made payable, contained and inserted in the lease of 1788, and particularly a covenant for renewal, upon the same terms and conditions as the covenant for renewal therein contained.

The defendants, the trustees, by their answer, said, "that being interested as trustees only, they were advised that they could not take upon themselves to determine whether the plaintiffs were or not entitled to have a renewed lease granted to them, containing such a covenant for further renewal as was required by the plaintiffs, and they declined to execnte such a lease, except under the direction and indemnity of the court."

On the 10th of February, 1823, the cause was heard by Sir J. LEACH, Vice Chancellor.

Mr. HART, Mr. SPENCE and Mr. POLSON, for the plaintiffs, argued, that they were entitled to have a covenant for renewal similar to that in the first lease, without which they said it would not be a lease containing the same covenants, etc., as the former leases. That otherwise, the plaintiffs might be deprived of their right to a perpetual renewal, for the lessors might sell, and the purchaser might take with notice only of the lessees' limited interest, as represented on the counterpart lease, in which case he would not be bound to renew. That at all events, if a new covenant were not given, the lessees' remedy, being only upon the original lease and covenant, would be a very inconvenient description, and might be, or at least in time might become liable to be objected to on the ground of perpetuity, or as a stale demand, and that by all the authorities it appeared that the way in which a perpetual right of renewal was kept up was, by the renewal, toties quoties, of the original covenant.

Mr WETHERELL, Mr. WILBRAHAM and Mr. HODGSON, on the. other hand, insisted that the trustees, having no beneficial

interest, were not bound to enter into personal covenants: Page v. Broom, 3 Beav. 36; Worley v. Frampton, 5 Hare, 560; Brooke v. Hewitt, 3 Vesey, 255; Willingham v. Joyce, 3 Vesey, 168; Beauclerk v. Ashburnham, 8 Beav. 322; Powell v. Lloyd, 2 Y. & Jer. 372. That the only foundation for the plaintiffs' remedy must be the original covenant contained in the first lease, which ran with the land and would affect all subsequent owners, and that if the renewed lease contained a recital of that covenant it would bind all purchasers who would thereby have notice of the lessees' interest. That each successive renewal must be considered as a tentative act only toward performance of the covenant, which being perpetual in its terms could not be held to be satisfied by any limited number of compliances with it, and that it was quite settled that the doctrine of perpetuity did not apply to such a case.

The vice-chancellor expressed his opinion to be, that no such covenant as that claimed by the plaintiffs could be required from the trustees, and that the form proposed of reciting the covenant for renewal, and declaring the new lease to be granted in pursuance of it, was the proper one; and he declared, Reg Lib., 1822, A. Fol. 965, "that according to the covenant contained in the lease of 1788, the plaintiffs were entitled to a perpetual renewal of the lease of the lands," etc., etc.: Bridges v. Hitchcock, 5 Bro. P. C. 6; Cooke v. Booth, Cowp. 819; Furnival v. Crew, 3 Atk. 83; Moore v. Foley, 6 Vesey, 232; Iggulden v. May, 9 Ves. 325, and 7 East, 237; Dowling v. Mill, 1 Mad. 541; Harnett v. Yeilding, 2 Sch. & Lef. 556; Brown v. Tighe, 2 Cl. & Fin. 396; Sheppard v. Doolan, 3 Dr. & War. 1; Price v. Assheton, 1 You. & Coll. (Exch.) 82; Smyth v. Nangle, 7 Cl. & Fin. 405; and 3 Hurg. Juris. Consult. Exerc. 178; and he referred it to the master to approve of a proper lease according to such declaration."

A dispute arose respecting the terms of the decree, and whether the court intended to declare that the plaintiffs were entitled to a perpetual renewal; and on the 18th of March, 1823, the case was mentioned on the minutes, when the vicechancellor said that he intended at the hearing to declare that the plaintiffs were entitled to a perpetual renewal.

The matter went into Master Courtenay's office, and on the 3rd of June, 1823, the plaintiffs' counsel consented to take the