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manner in which the goods were sent, and the receiving of part payment, there is strong evidence of an intention on the part of both parties that the property should pass. But it is contended for the defendant, that the terms "cash against bill of lading" are conclusive, to ascertain an intention that the property should not pass. The bill of lading, it was said, was not to be parted with until cash was paid, and so amounted to indicia of title. Now many cases and many dicta of judges were referred to in the course of the argument. These cases and these dicta warrant no doubt the position that various circumstances are in the absence of circumstances to the contrary, conclusive evidence of the intention of the parties. And thus in the present case, the terms cash against bill of lading" would be conclusive one way if there was nothing to countervail them, while on the other hand the terms "free on board" would be conclusive the other way, with the like qualification. The various cases, together with the principles upon which they were decided, are to be found in Blackburn on Sale, and Benjamin on Sale. Uniformly the question is treated as one of intention. "The fact," says Mr. Benjamin, "of making the bill of lading deliverable to the order of the vendor, is, when not rebutted by evidence to the contrary, almost decisive to show his intention to reserve the jus disponendi, and to prevent the property from passing to the vendee." And, again:-The primâ facie conclusion that the vendor reserves the jus disponendi when the bill of lading is to his order, may be rebutted by proof that in so doing he acted as agent for the vendee, and did not intend to retain control of the property; and it is for the jury to determine as a question of fact what the real intention was.' It is our duty to uphold the ruling of my brother Keating if there be reasonable evidence to support a finding of the jury in favour of the plaintiffs. Taken together, the circumstances of the casethat is, the contract, the bill of lading, the part payment, the ascertainment of the specific potatoes by placing them in the sacks of the plaintiff's all show an intention that the property should pass. Upon the first point therefore the plaintiffs succeed. The second point, whether the plaintiffs may sue in trover, may be more shortly dealt with. It is said that they could not, because the bill of exchange never having been accepted by them, they never had the right of possession. But whether they had this right or not depends on whether there was an absolute refusal or not to accept the bill. There never was any such absolute refusal. The defendant imposed unreasonable terms on the plaintiffs, who, otherwise quite willing to accept the bill, were by those terms prevented from accepting it. At the time of the dispute first arising, it was believed by both parties to the contract that the cargo was short by sixteen sacks, and thereupon the plaintiffs offered to pay for the amount less those sixteen sacks. M. Paresys Loutre's agent, however, would have all or nothing, tendered the bill of lading and the bill of exchange, and desired the plaintiffs to accept the bill or take the consequences. It is then discovered that both parties were in error, and that the quantity was correct after all. But M. Paresys Loutre, the price of potatoes having gone up, has chosen to treat the plaintiffs as not having complied with the

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contract, and to have the potatoes sold. I think the plaintiffs had done nothing to warrant such a sale. On both grounds therefore this rule must be discharged.

GROVE, J.-I am of the same opinion. The case for the defendant, as argued by Mr. Willis, was put on the ground that there was conclusive evidence that the parties to the contract did not intend the property to pass. Now the term "conclusive" may be used in two senses: first, it may mean that which is not to be gainsaid, as where there has been an estoppel; secondly, it may mean that which is conclusive, unless it is answered by that which is equally conclusive on the other side. The argument at first maintained that the evidence was conclusive in the first sense was soon abandoned, and it was put that the words of the contract were conclusive unless there was sufficient rebutting evidence to overweigh them, which it was contended that there was not. But the case by no means stands on the words of the contract only; we may look at both the circumstances under which the contract was to be performed, and also those under which it was in fact performed. Now we observe in favour of the plaintiffs that there was part payment, there was a separation of the subject matter of the sale, and there was delivery free on board in pursuance of the contract. All these three circumstances, and especially the last (see Brown v. Hare, ubi sup.), are very strong to show that the intention was that the property should pass. The cases may run very fine, but they none of them depart from the proposition that the question is one of intention for the jury to decide. This proposition is strongly laid down in Brown v. Hare, ubi sup.-a case very much resembling the present. In that case the plaintiffs agreed to sell, and the defendants to buy, a cargo of oil, to be shipped by the plaintiffs "free on board" to the defendants, who were to pay, on delivery of the bills of lading, by bills of exchange to be dated on the day of shipment. Twenty tons of oil were shipped by the plaintiffs, and bills of lading were endorsed specially to the defendants, who were informed of the shipment, and received the bills of lading an hour or two before they heard of the loss of the ship, whereupon they returned the bill of lading to the plaintiffs. It was held by the Exchequer Chamber that the property had vested in the defendants, and that they were liable for the price. "The contract," said Erle J., in delivering the considered judgment of the court, "was for the purchase of unascertained goods, and the question has been when the property passed. For the answer the contract must be resorted to; and under that we think the property passed when the goods were placed free on board' in performance of the contract. In this class of cases the passing of the property may depend, according to the contract, either on mutual consent of both paties, or on the act of the vendor alone The real question has been on the intention with which the bill of lading was taken in this form: whether the consignors shipped the goods in performance of his contract to place them 'free on board,' or for the purpose of retaining a control over them and continuing to be owner, as in Wait v. Baker (2 Ex. 1), and as is explained in Turner v. The Trustees of the Liverpool Docks (6 Ex. 543), and Van Casteel v. Booker (2 Ex. 691.) The question was one of fact, and

C..P.]

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Tuesday, Jan. 19. ELLIS V. SAXON.

must be taken to have been disposed of at the trial; the only question before the court below or before us being, whether the mode of taking the bill of lading necessarily prevented the property from passing. In our opinion it did not under the circumstances, and, therefore, the judgment must be affirmed." In the present case we have almost the same circumstances, with the additional circumstances of part payment and the putting the potatoes into the sacks. I think the insertion of the words "payment by cash against bills of lading was merely intended to operate as a provision to protect the lien of the vendors. I understand them to say although it is intended that the property shall pass, still we do not wish to part with our lien until cash be paid."" There was, therefore, evidence upon which the jury could reasonably have found for the plaintiffs. I also agree with what my lord has said on the question whether the plaintiffs might sue in trover.

DENMAN, J.-It was, I think, desirable that we should be referred to the numerous cases cited, in order that, if possible, we might extract some principle from them. Now the only indisputable principle to be extracted is, that it is question of fact for the jury whether the property passed or not. This principle is put in Vas Casteel v. Booker (2 Ex. 691) more strongly than in any other case. I am of opinion that the circumstances greatly preponderate in favour of the plaintiffs, and therefore, as a juryman rather than as a judge, I say that I believe that the property passed. I agree as to the right to sue in trover.

KEATING, J.-At the trial of this cause no witnesses were called; but the facts either appeared from the correspondence or were taken by admis. sion. Of the two objections, that the property had not passed, and that the plaintiffs could not maintain trover, only the first was argued at the trial. My impression was that the property had passed. Whether I then took the best possible course may, perhaps, be doubted, but I took it at the suggestion of counsel on both sides. Upon hearing the rule argued, I at first thought that I had given too much weight to the loading of the plaintiffs' sacks by the vendor, and to the expression "free on board' when set against 'payment by cash against bill of lading.' But

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after hearing the whole case, I quite agree with what has been already said: that the intention was that the property should pass, reserving to the vendor a lien for the unpaid price. If the defendant had a right to sell, the plaintiffs could not recover. Had he a right to sell? I think not. He was only entitled to sell upon a rescission of the contract, and the contract could only have been rescinded by an absolute refusal on the part of the plaintiffs to perform it. But there was no such absolute refusal here. The plaintiffs, on the contrary, did everything that was reasonable. The sale, therefore, was a conversion, and the plaintiffs are entitled to recover.

Rule discharged. Attorneys for the plaintiffs: Dalton and Jessett.

Attorneys for the defendant: Heather and Son.

Detinue-Stay under master's order-Further order for action to proceed-Plea that further order obtained by false affidavit — Whether issuable plea.

To a declaration in detinue the defendant, being under terms to plead issuably, pleaded that he had obtained and complied with a master's order to stay proceedings upon delivery of the goods, which order was still in force, but that the plaintiff had by means of a false affidavit that all the goods had not been delivered, obtained a further master's order that he should be at liberty to continue the action.

Held, that the plea was not issuable, and a rule to rescind an order of Pigott B., that the plaintiff might sign judgment, discharged.

DECLARATION in detinue for trunks, wearing apparel, and other goods of the plaintiff. There was also a count in trover in respect of the same goods.

Plea on equitable grounds that after the accruing of the causes of action in the declaration mentioned, and the commencement of the action, the defendant obtained an order of Master Bennett that on the delivery up by the defendant to the plaintiff or his attorney of the goods of the plaintiff in the declaration mentioned, and on the payment of the costs of the action, to be taxed, and 11. for damages, all proceedings in the action should be stayed; that afterwards the defendant delivered to the plaintiff the whole of the said goods in the declaration mentioned, and paid to the plaintiff the said 1., and 6l. 18s. 7d., the amount of the said costs, and the plaintiff accepted and still retained the same; that the defendant had never detained or converted any goods of the plaintiff other than those delivered up to the plaintiff under Master Bennett's order, and still retained by him as in the plea mentioned, and that the said sum of 11. so paid to and received by the plaintiff as in the plea mentioned was sufficient to cover all the loss and damage sustained by the plaintiff as in the declaration mentioned; that the said order of Master Bennett was still in force, but that the plaintiff by means of a false affidavit that the defendant had not delivered up all the said goods detained by him as in the declaration mentioned, obtained a further order that he should be at liberty to continue the action, notwithstanding the said order.

The

In addition to the steps in the action set out in the plea, there had been a further order of Master Bennett (made four days before the pleading of it) that "the defendant should have a week's time to plead, pleading issuably and rejoining gratis ;" and the defendant had given the usual notice "to reply within four days, otherwise judgment." alleged false affidavit referred to in the plea was an affidavit by the plaintiff that certain articles, of which he furnished a list, had not been returned to him. The plaintiff had taken out a summons before Master Gordon to show cause why he should not sign judgment on the ground of the plea not being issuable, and, upon Master Gordon refusing to make any order, appealed to Pigott, B., who, after taking time to consider, made the following order: "I do order that, notwithstanding Master Gordon's decision herein, the plaintiff be at liberty to sign judgment herein, the defendant not having pleaded issuable pleas."

Bompas for the defendant, citing (Crossfield v. Such, 22 L. J. 65, Ex.) having obtained a rule to rescind the order of Pigott, B.,

Plowden, for the plaintiff, showed cause.- -An issuable plea is one upon which a decision, either by a demurrer or by a jury, would determine the action upon the merits (see Chit. Arch. Pr. vol. 1., p. 247, and the cases there cited). It is impossible to determine the merits in this action upon the question whether the plaintiff made a false affidavit or not. An issuable plea raises one issue: this plea raises three, the issue whether the order was made, whether it was set aside, and whether it was set aside upon a false affidavit. A judge's or master's order cannot be pleaded at all; it is only a judgment that can be pleaded. [Lord COLERIDGE, C.J. -The plea is upon equitable grounds. DENMAN, J. -Tabor v. Edwards (3 C. B., N. S. 64) is a strong authority that a judge's order cannot be pleaded. The proper way of enforcing a judge's order is by attachment.] The plea is manifestly bad and frivolous. In Humphreys v. Earl of Waldegrave (6 M. & W. 622), it was held that a plea to an action by the holder of a cheque, that the consideration for the making was money won by a third party of the defendant at hazard in a common gaming house is not an issuable plea within the meaning of an order to plead issuably. In Sewell v. Dale (8 Dowl. 309), the defendant was under terms to plead issuably, and pleaded never indebted to a declaration containing counts upon bills of exchange, and also a count for goods sold and delivered. It was held that plaintiff might treat the plea as a nullity, and sign judgment for want of a plea. The plea in this case, said Patteson, J., "is a mere sham plea, pleaded in order to provoke a demurrer."

Bompas, for the defendant, supported the rule. The plea is not only issuable, but is the only plea which could have been pleaded. In Crossfield v. Such (22 L. J. 65, Ex.), it was held that if in detinue, all the goods are delivered after action brought, the plaintiff cannot have judgment to recover the goods so delivered, or their value, but may have judgment to recover damages for their detention if he has sustained any damage, and may also have judgment to recover the residue of the goods or their value, and damages for detention. In that case the defendant pleaded first, except as to part of the goods, non detinet; secondly, as to that part, that the plaintiff ought not further to maintain the action in respect thereof, because after suit the defendant delivered the same to the plaintiff, who accepted and retained them; thirdly, as to damages by detention, payment into court of 18., averring no damages ultra. The court, in a considered judgment, held (upon general demurrer) that the second and third pleas were good. It is, therefore, a good defence to pay damages for detention into court, and to plead that goods have been returned. But to plead the whole of such a plea in this case would be paying damages twice over. Nor can accord and satisfaction be pleaded, as that would have implied that the plaintiff acted as he did by his own free will, whereas he was set in motion by a judge's order. The plea, therefore, went on to allege payment of the damages under a judge's order, valid at the time at which it was pleaded, although since abrogated. Because a judge's order cannot be pleaded, that is no reason why it should not be mentioned as a

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step in the cause. The plea would not embarrass the plaintiff. [Lord COLERIDGE, C. J.-The defendant avers that the order which would otherwise be in force has been set aside by means of a false affidavit. If the plaintiff takes issue, he seems to admit that the affidavit was false. GROVE, J.-The defendant puts the plaintiff into an unnecessary difficulty. DENMAN, J.-Does it not come to this that the whole of the allegations in the plea respecting the orders are surplusage? KEATING, J.-At all events it is very difficult to say whether they be surplusage or not.] In Thellusson v. Smith (5 T. Rep. 152), it was held that if the defendant when under an order to plead issuably put in a plea which, though informal, goes to the subject of the action, the plaintiff cannot sign judgment as for want of a plea. At any rate the defendant might fairly be let in to plead on making an affidavit of merits.

Lord COLERIDGE, C. J.-This case has been elaborately argued, and we have now to say whether this particular plea is an issuable plea or not. It must be carefully borne in mind that the defendant was under terms to plead issuably. However difficult it may be to say what is an issuable plea, it has been often said that is easy to say what is not an issuable plea, and I think that this plea is not. It is not in compliance with the terms under which the defendant had an extension of time to plead allowed him. The order therefore of my brother Pigott was quite right, and this rule must be discharged.

KEATING, J.-I am of the same opinion. The plea is a clever one, but it is decidedly embarrassing.

The

GROVE, J.-I am of the same opinion. definition given in the books of an issuable plea is a plea which goes to the merits of the case. (a) Notwithstanding this definition, I should have great difficulty in saying what an issuable plea is. But I can say that this plea is not. The plaintiff could not tell what to reply to, nor what would be the consequence of his replication.

DENMAN, J.-I am strongly inclined to think that this plea would be held invalid on the ground that it sets up either a judge's order or else sets up no defence at all. At any rate, I think the plea to be a monstrosity, inasmuch as the plaintiff must be at a loss what to take issue upon. For my own part I cannot see what it is that the defendant relies on, and in fact I fail to make the plea out. Rule discharged with costs. Attorneys for the plaintiff, Cutler and Co. Attorneys for the defendant, E. F. Sealy.

Wednesday, Jan. 27.

WALDRON V. HAWKINS.

Landlord and tenant-Ejectment-Breach of cove nant not to underlet without leave-Underletting by writing for a year-Acceptance of rent with knowledge of-Waiver.

The acceptance of rent with knowledge of a written underletting for a time certain is a waiver pro tanto of the breach of covenant not to underlet. The plaintiff let houses and lands to the defendant upon a lease for twenty-one years, containing a

(a) See Bullen and Leake on Pleading, 2nd edit., p. 378, citing Mackay v. Wood (7 M. & W. 420, 721).

covenant that the defendant would not assign, underlet, or permit any person to occupy any part of the premises without the consent of the plaintiff. The defendant underlet part of the premises by written agreement to T. for a year, and the plaintiff having accepted, and also distrained for rent accrued due after the making of the agreement, and with notice thereof, brought ejectment as for a forfeiture upon breach of the covenant not to underlet or permit to occupy: Held, that the breach was not a continuing breach, and a rule to set aside a verdict entered for the defendant on the ground of waiver discharged. THIS was an action of ejectment in respect of a dwelling-house, farm, and tenements, called Perzwell, with lands thereto belonging, containing about 135 acres, in the parish of Kentisbeare, in the county of Devon, and also a field called Allhallows Meadow, in the parish of Uffculme, in the said county, containing about six acres. premises had been let by the plaintiff to the defendant under a lease for twenty-one years, from Lady Day, 1869, containing inter alia a covenant in the following terms:

The

And also shall not assign or demise to, or permit any other person to occupy the said premises, or any part thereof, without the consent in writing of the said Bethel Waldron, his heirs, and assigns.

This covenant was followed by a proviso for re-entry by the plaintiff in case of the breach of any of the covenants. Twenty-one breaches were relied on by the plaintiff, the material breach being non-performance of the above covenant not to assign, &c., "by having assigned or demised certain parts of the same premises from the 25th March, 1873, up to the date of the writ issued to one Frood, or by having permitted the said Frood to occupy the said premises without the consent in writing" of the plaintiff or his assigns for that purpose had and obtained.

The cause was tried before Keating, J., and a special jury, at the Devon Spring Assizes, 1874. It was proved that the defendant had, by a written agreement dated 31st Jan. 1873, let certain pasture land, part of the premises to be depastured by cows, together with a dwelling house, to Frood, for one year from the 25th March 1873, for the sum of 1441., payable quarterly, and that the plaintiff had, with the knowledge of this agreement, not only accepted rent, but had also distrained for rent after the said 25th March 1873. It was at first contended for the defendant that the letting of a dairy was not an assignment or permission to occupy within the meaning of the covenant, but was merely a letting of the cows, and that the occupation of the dwelling house was merely accessory thereto; but the case of Burt v. Moore (5 T. R. 329) was cited for the plaintiff to show that the letting of the cows had under the circumstances created an estate (in the land. The jury found for the defendant upon the question of waiver, whereupon the learned judge directed a verdict for the defendant, with leave reserved to move. A rule was afterwards obtained accordingly to set aside the verdict, and instead thereof enter a verdict for the plaintiff "on the ground that the letting of the dairy dwelling to Frood was a breach of covenant, and was not waived by the distress or acceptance of rent by the plaintiff.

Kingdom, Q.C., and Charles for the defendant, showed cause.-It is not contended that the letting

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under the agreement was a breach of covenant within the rule laid down in Burt v. Moore (ubi sup.); but it is contended that the breach has been waived by the acceptance of rent with a knowledge of the breach :

Goodwright v. Davids (Cowp. 803).

The breach was complete upon the day that the agreement was signed, and is not a continuing breach. They also referred to,

Doe d. Ambler v. Woodbridge, 9 B. & C. 376; 4 M. & R. 363;

Doe d. Flower v. Peck, 1 B. & Ad. 428.

Cole, Q.C., with him Lopes, Q.C., H. Clarke and Selfe, for the plaintiff, supported the rule.-In the case of Goodwright y. Davids there was no continuing breach, so that the substantial question in this case, which is, whether there was a continuing breach or not, was not argued. Here there was clearly a continuing breach of the second part of the covenant containing the engagement "not to permit to occupy." Although the plaintiff may have waived for one day, he did not thereby waive for the whole time for which the underlease had to run. At any rate, the acceptance of rent was a waiver up to the next rent-day only. [DENMAN, J. -Waiver is an act of the mind, and the court is to say whether the plaintiff intended to waive.] Doe dem. Mustin v. Gladwin (6 Q. B. 953) is a strong authority for the plaintiff. In that case a lessee of buildings covenanted to insure and continue insured such buildings in the joint names of himself and the lessor, his executors or assigns; and there was a proviso for re-entry on breach of the covenant. The lessee insured in his own name singly, but showed the policy to the lessor, who approved of it, and accepted rent during the next three years ending at Christmas, 1842. The premiums of insurance were duly paid up to that time, the premium at Christmas, 1842, covering the year 1843, and the policy continuing unaltered. In January 1843, the lessor assigned; and the assignee in the same year brought ejectment for a forfeiture incurred by not insuring in the joint names. No notice had been given to the lessee to alter the policy. It was held that the covenant to insure in the joint names was a continuing covenant, and was not waived by the conduct of the lessor, except as to past breaches. "This ejectment," said Patteson, J., in delivering the considered judgment of the court, "must be considered as unusually harsh; and it is impossible for any court to lend itself willingly to enforce such a proceeding. But we must not forget that the legal rights of the parties are all that we have the power to deal with. . . . . Since this lease, then, contains a proviso for re-entry in case of a breach of this covenant, we have only to inquire whether it has been so broken that the landlord might maintain an action of covenant for the breach. That it has been broken is unquestionable; but the present landlord is said to be bound by the act of the former, who gave the defendant to understand that he should not require the performance of the covenant, but was satisfied with the substitution of a different mode of insuring.' Then after referring to Pickard v. Sears (6 A. & E., 469) and Doe dem. Pittman v. Sutton (9 C. & P. 706), which had been relied on for the defendant, he proceeds thus: "It seems sufficient to observe that no case has gone to the length of intimating that a breach of covenant can be justified by a parol licence to break it." And he concludes by saying: "In this

case there is nothing but verbal evidence that a landlord had said that he would be satisfied, though the covenant should be broken, which it indisputably was during the whole time that the premises remained uninsured according to the covenant; for the waiver by acceptance of rent could not operate beyond Christmas, up to which period that rent was accepted, and this being a continuing covenant, a subsequent breach entitled the lessor of the plaintiff to re-enter;" and for this he cites Doe dem. Flower v. Peck (ubi sup.)

Lord COLERIDGE, C.J.-I am of opinion that this rule ought to be discharged. The sole question arises upon the true construction of a few words in the lease from the plaintiff to the defendant, considered by the light of the finding of the jury. These few words, of which the plaintiff sought to take advantage, are to the effect that the defendant would not "assign, or demise, or permit any person to occupy the premises. It appears that without the consent of the plaintiff the defendant let in an undertenant by a demise which was to last for a year. By so doing the defendant unquestionably broke his covenant, and the question is whether the plaintiff waived the breach. Now the underlease bore date 31st Jan. 1873, and was to continue for a year. In Sept. 1873, before the underlease had run out, the plaintiff accepted rent, and also distrained for rent under circumstances not now material during the currency of the underlease. The jury must be taken to have found that the plaintiff did these acts with a knowledge of the underlease. Does then this acceptance of rent with the knowledge of the underlease prevent the plaintiff from relying upon the covenant in the lease? I am of opinion that it does. The covenant is to be read distributively, i. e., that the engagement not to assign or demise indicates an assignment or demise by a formal instrument, and that the engagement not to permit to occupy indicates a permission to occupy without a formal instrument. Mr. Cole argues that all the words are to be read together, and so have the effect of making every day of occupation in any manner without permission a breach of the covenant. But I think that this would be an unreasonable construction of the words, and that the breach of covenant committed was a breach of the covenant not to underlet, and not a breach of the covenant not to permit to occupy. This being so, the plaintiff accepted rent with the knowledge of that breach, and I think in all principle that this amounts to a waiver. None of the cases which have been cited are authorities to the contrary. Mr. Cole very properly laid great stress on Doe d. Muston v. Gladwin (6 Q. B. 953). But that case, when carefully looked at, is quite distinguishable. There was a possibility there of the state of things in which the breach consisted being altered at any time after the first actual breach by the alteration of the policy from the improper form to the proper one. There was therefore a repetition of the original breach day by day. In the present case there was never but one breach; there was a creation once for all of a state of things amounting to a breach necessarily lasting for a year. After that state of things was created, there was a distinct waiver of the breach. Then Goodwright v. Davids (2 Cowp. 803), becomes applicable. In that case a lessee had covenanted

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not to underlet without the consent of the lessor under hand and seal, there being a power of reentry in case of breach. The lessor accepted rent due after the condition broken with full notice of the breach. And Lord Mansfield said: "To construe this acceptance of rent due since the condition broken as a waiver of the forfeiture is to construe it according to the intention of the parties. Upon breach of the condition the landlord had a right to enter. He had full notice of the breach and does not take advantage of it, but accepts rent subsequently accrued. That shows he meant that the lease should continue. Cases of forfeiture are not favoured in law, and where the forfeiture is once waived the court will not assist him." Technically distinguishable, this is substantially the same as the present case." Then my brother Denman has referred to Doe d. Gatehouse v. Rees (4 B. N. C. 384; 6 Scott 161). In that case it was held that the forfeiture of a lease accruing on the lessee's insolvency was waived by acceptance of rent from him after his discharge under an Insolvent Debtors' Act, and that the nonpayment of a debt specified in the schedule to be due to the lessor was not a continuing insolvency, so as to constitute a new forfeiture after the acceptance of rent. That is a further authority for the defendant. Upon the whole therefore I am of opinion that the ruling of my brother Keating was correct, and that this rule ought to be discharged.

GROVE, J.-I am of the same opinion. Waiver of a breach of covenant may take place in those cases where the contract is voidable at the option of the person entitled to take advantage of a forfeiture. Now here there has been an undoubted breach, and when we have the finding of the jury that the plaintiff knew of that breach, I think he must be taken to have waived that which he knew and could have taken advantage of, i.e., the underletting. In Doe d. Ambler v. Woodbridge (9 B & C 376), the action was one of ejectment for using rooms in a house contrary to a covenant that the tenant "would not alter. convert, or use such rooms for any other use than bed or sitting rooms. The defendant had underlet part of the house to a lodger, but the landlord had, after be knew of such underletting, received rent under the lease; and the court held that the defendant committed a new breach of covenant every day during the time that the rooms were used by the under tenant. The distinction between that case and the present may seem fine, but it is really a legal distinction arising from the fact that in this case the landlord knew not only of the underletting, but of the period for which it was to continue. Then Doe dem Muston v. Gladwin (6 Q. B. 953) appears to have been decided on the express grounds that a proper policy might have been effected on any single day, and that the only waiver was by parol licence. The rule of Goodwright v. Davids is applicable to the present

case.

DENMAN, J.-I am of the same opinion. Goodwright v. Davids (ubi sup.) covers this case, which is in one sense a fortiori to it, inasmuch as here the question arises upon one and the first underletting, whereas in Goodwright's case the question arose in subsequent years. Doe d. Ambler v. Woodbridge (ubi sup.) does not apply, because in that case the breach was a perpetually renewed act. As to Doe d. Muston v. Gladwin (ubi sup.),