stated in the particulars to be,-first, the non-payment of rent accrued due subsequently to Michaelmas, 1854,-secondly, the assignment, underletting, and demise of the premises, and parting with the indenture of lease, contrary to the covenant in that behalf.

Hugh Hill, Q. C., accordingly, in Hilary Term last, obtained a rule nisi to enter a verdict for the defendant, on the ground that the facts admitted at the trial showed that the plaintiff had waived his right of re-entry.

Kinglake, Serjt., and H. Lloyd, now showed cause.-The question is, whether the acceptance of rent from the lessee on the 23d of May, 1857, was a waiver of the forfeiture accruing from the unauthorized underletting at Michaelmas, 1854, of which forfeiture the landlord had elected to avail himself by having previously commenced an action of ejectment on the 16th. In the notes to Dumpor's Case (4 Co. Rep. 119), in 1 Smith's Leading cases, 4th edit. 33, it is said: "It is conceived that the mere receipt of subsequent rent does not, of its own proper force, operate as a waiver of the forfeiture. It is only evidence of the election of the lessor to retain the reversion and its incidents, instead of the possession of the land; and, as an election once made and expressed cannot be retracted (quod semel placuit in electionibus amplius displicere non potest: Co. Litt. 146, a) the receipt of subsequent rent, as such, without more, binds the landlord by proving an election. But rent to the amount of that reserved in the lease may be received under circumstances showing it to be paid and accepted merely as compensation for use of *the land, and not with the intention of setting up the lease; *379] nay, a contrary intention may be expressed at the time of its receipt. A receipt of rent under such circumstances would not, it seems, amount to a waiver of the forfeiture: see Doe v. Batten, Cowp. 243. It is not supposed that the naked question of intention to waive would in such a case be left to the jury. The question should perhaps be,-Did the lessor receive the rent eo nomine as rent due under the lease? See per Parke, J., Doe d. Griffith v. Pritchard, 5 B. & Ad. 765, 776 (E. C. L. R. vol. 27). A receipt of rent after the lessor has by some unequivocal act, such as bringing ejectment, expressed his election to treat the lease as void, cannot operate to revive it: Jones v. Carter, 15 M. & W. 718. See Co. Litt. 215 a." [WILLES, J.-All that is now exploded. CROWDER, J.-The Court of Queen's Bench, in Croft v. Lumley, 5 Ellis & B. 648 (E. C. L. R. vol. 85), decided that the receipt of rent, as a matter of law, operated to waive all forfeitures then known to the lessor, and that no protest on his part could prevent this legal effect. The Exchequer Chamber affirmed the judgment in that case, but upon another point. The case afterwards went to the House of Lords, with a like result: see 6 House of Lords Cases 672.(a)] In Jones v. Carter, 15 M. & W. 718,† it was held that the service by a lessor upon the lessee of a declaration in ejectment for the demised premises, for a forfeiture, operates as a final election by the lessor to determine the term; and he cannot afterwards (although there has not been any judg ment in the ejectment) sue for rent due or covenants broken after the service of the declaration. Parke, B., in giving judgment, there says:

(a) As to the question of waiver, see the opinions of Bramwell, B., p. 705, of Crompton, J., p. 713, of Martin, B., p. 720, of Williams, J., p. 725, of Wightman, J., p. 729, and of Coleridge, J., p. 733.

Though the lease is *declared to be void for breach of covenant, [*380 it is perfectly well settled that the true construction of the proviso is, that it shall be void at the option of the lessor: Rede v. Farr, 6 M. & Selw. 121, Doe d. Bryan v. Bancks, 4 B. & Ald. 401 (E. C. L. R. vol. 6), and other cases: and, consequently, on the one hand, if the lessor exercises the option that it shall continue, the lease is rendered valid; if he elect that it shall end, the lease must be determined. In the cases above referred to, the option was held to have been exercised by the receipt of rent subsequently due, and the lease thereby rendered valid. In like manner, the lease would be rendered invalid by some unequivocal act, indicating the intention of the lessor to avail himself of the option given to him, and notified to the lessee, after which he could no longer consider himself bound to perform the other covenants in the lease; and, if once rendered void, it could not again be set up. An entry, or ejectment, in which an entry is admitted, would be necessary in the case of a freehold lease, or of a chattel interest, where the terms of the lease provided that it should be avoided by re-entry. Whether any other act unequivocally indicating the intention of the lessor would be sufficient to determine this lease, which is made void at the option of the lessor, we need not determine, because an ejectment was brought, and proceeded with to the consent-rule, by which the defendant admitted an entry, and the entry would certainly be an exercise of the option; and, once determined, the lease could not be revived. It was said there was no authority upon the point now under consideration; but there is a case at Nisi Prius materially bearing upon it, in which Lord Tenterden expressed a clear opinion that the receipt of rent after an ejectment brought for a forfeiture was no waiver of such forfeiture: Doe d. Morecraft v. Meux, 1 C. & P. 348 (E. C. L. R. vol. 12). A case was desired, but we cannot find that any was *argued. [*381 We entirely agree in Lord Tenterden's opinion. The precise point that he decided was, that, on the trial of an ejectment for a forfeiture (in which, of course, the entry was admitted), the receipt of rent after the bringing of that ejectment was too late, and the lease was not rendered valid. We think the same consequence follows from an entry admitted by the consent-rule; but, even supposing no consent-rule to have been entered into, we think that the bringing of an ejectment for a forfeiture, and serving it on the lessee in possession, must be considered as the exercise of the lessor's option to determine the lease; and the option must be exercised once for all." The intention of the landlord to waive the right of re-entry or the forfeiture, must be evidenced by some unequivocal act which cannot be retracted: Doe d. Morecraft v. Meux, 4 B. & C. 606 (E. C. L. R. vol. 10), 7 D. & R. 98 (E. C. L. R. vol. 16); Doe d. The Baron de Rutzen v. Lewis, 5 Ad. & E. 277 (E. C. L. R. vol. 31), 6 N. & M. 764 (E. C. L. R. vol. 36). In both those cases the evidence of waiver was clear and distinct. [CROWDER, J.-Having treated the defendant as his tenant by suing him for the rent, can the plaintiff afterwards change his mind and elect to treat him as a trespasser?] In Blyth v. Dennett, 13 C. B. 178 (E. C. L. R. vol. 76), a demand of rent accruing subsequently to the expiration of a notice to quit, was held not necessarily to be a waiver of the notice. [CROWDER, J.-That is a totally different matter. It was necessary there to have the assent of both parties to create a new tenancy: Here,

all that is needed, is, the election of the landlord to discontinue the tenancy. In Comyns's Digest, Condition (P), it is said, that "if, after a condition broken annexed to an estate of freehold, and notice of it, the feoffor accept the rent due at a subsequent day, it shall be a dispensation of the forfeiture, for he allows the estate to have continuance: Co. Litt. 211 b; Harvey v. Oswald (Harvie v. Oswel), Cro. Eliz. 553, *572. So, if a condition upon a lease for years be, for non-pay

*382] ment of rent to re-enter, the acceptance of rent at a subsequent day is a dispensation: Cro. Eliz. 553, 572." Unless there be some distinction between an assize of rent and the present mode of enforcing payment of rent by action, I do not see how that is to be answered. In the course of the argument in Doe d. Nash v. Birch, 1 M. & W. 402, 406,† Parke, B., observes: "In Green's Case, Cro. Eliz. 3, calling the party a tenant in a receipt for bygone rent, was held to be sufficient evidence of a waiver; and that, though the receipt of the rent would not be a waiver, yet that the calling him tenant in the receipt was. You may say that a demand of rent is not a [waiver of a] forfeiture, because the landlord in effect says, 'If you will pay me the rent, I will accept you as a tenant,' and the tenant does not do so; therefore it is incomplete: some distinct act ought to be done to complete a waiver." [CROWDER, J.-I observe that the learned Baron, in giving judgment in that case, says," I think that an absolute unqualified demand of the rent by a person having sufficient authority, would have amounted to a waiver of the forfeiture, and it would have been like the case I cited from Croke's Reports."]

Hugh Hill, Q. C., and Maude, in support of the rule. The simple question here is, whether the bringing an action for the rent, and afterwards by means of the action receiving the rent, was not a sufficient election by the lessor to affirm the continuance of the lease, so as to prevent him from afterwards turning round and treating the lessee as a trespasser. The particulars in the action show that the rent in respect of which it was brought accrued subsequently to the time the plaintiff had notice of the forfeiture. Doe d. Morecraft v. Meux, 4 B. & C. 606 (E. C. L. R. vol. 10), 7 D. & R. 98 (E. C. L. R. vol. 16), Doe d. The Baron de *Rutzen v. Lewis, 4 Ad. & E. 277 (E. C. L. R. vol. 31),

*383] 2 N. & M. 764 (E. C. L. R. vol. 28), and Jones v. Carter, 15 M.

& W. 718,† show that the intention of the landlord to waive the forfeiture must be evidenced by some unequivocal act. But here was an unequivocal act showing a clear election on the part of the plaintiff to treat the defendant as a continuing tenant. Littleton, § 219, says,"If a man grant by his deed a rent-charge to another, and the rent is behind, the grantee may choose whether he will sue a writ of annuity for this against the grantor, or distreine for the rent behind, and the distress detaine until he be payd. But he cannot do or have both together, &c. For, if he recovers by writ of annuity, then the land is discharged of the distress, &c. And, if he doth not sue a writ of annuity, but distreine for the arrearages, and the tenant sueth his replevin, and then the grantee avow the taking of the distress in the land. in a court of record, then is the land charged, and the person of the grantor discharged of the action of annuity." Upon this Lord Coke observes, Co. Litt. 145 a,-" Here is to be observed that this determination of the election of the grantee must be by action or suit in court

of record; for, albeit the grantee distreine for the rent, yet he may bring a writ of annuitie, and discharge the land. And Littleton putteth his case here surely upon a recoverie in a writ of annuitie, but if the grantee doth bring a writ of annuitie, and at the returne thereof appeare and count, this is a determination of his election in a court of record, albeit he never proceedeth any further." [They were stopped by the court.]

CROWDER, J.-I am of opinion that this rule, which calls upon the plaintiff to show cause why the verdict should not be entered for the defendant, on the ground that the facts admitted at the trial showed that the plaintiff had waived his right of re-entry, should be made *absolute. It appears to me that the facts show distinctly that there was a waiver of the forfeiture. The facts are these:- [*384 The defendant was tenant to the plaintiff under a lease which contained a covenant by the lessee not to underlet the premises without the consent in writing of the lessor. The defendant broke this covenant by underletting to one Frend in 1854. On the 30th of April, 1857, the plaintiff commenced an action against the defendant to recover the arrears of rent due from Michaelmas, 1854, to Lady Day, 1857. The writ was in the ordinary form but by the particulars the action appeared to be brought for rent accruing up to the 25th of March preceding. For the defendant, it is said, that, although he had incurred a forfeiture by under-letting without the lessor's consent, yet the plaintiff had waived his right to take advantage of that forfeiture, by having, with knowledge of its existence, brought an action for the rent subsequently accruing, which action was continued by a judge's order referring it to the master, and under which the rent up to the 25th of March, 1857, was paid on the 23d of May. On the other hand, it is said, that, inasmuch as this action of ejectment was brought on the 16th of May, 1857, the very day on which the judge's order was made in the action commenced on the 30th of April, and before the money was paid in that action, the plaintiff's right of entry was not waived, and he was entitled on that day, viz., the 16th of May, to insist upon the forfeiture. The question, therefore, is, whether the bringing the action for the rent on the 30th of April, and the subsequent acceptance of the rent in that action, amounted to a waiver. I am of opinion that it did. Authorities have been cited,-amongst others, Doe d. Morecraft v. Meux, 4 B. & C. 606 (E. C. L. R. vol. 10), 7 D. & R. 98 (E. C. L. R. vol. 16), and Jones v. Carter, 15 M. & W. 718,t-to show that a landlord by bringing an ejectment sufficiently evinces an intention to treat *the tenant as a trespasser. And, at first, it appeared to [*385 me that the payment of the rent on the 23d of May could not operate as a waiver of which the landlord had previously elected to avail himself by bringing an ejectment on the 16th. In delivering judgment in Jones v. Carter, Parke, B., says: "After such an act, by which the lessor treats the lessee as a trespasser, the lessee would know that he was no longer to consider himself as holding under the lease, and bound to perform the covenants contained in it; and it would be unjust to permit the landlord again to change his mind, and hold the tenant responsible for the breach of duty after that time." The act there relied on as determining the landlord's option, was, bringing an ejection. How does that apply here? Here, the landlord, by bringing an action for rent accruing subsequently to the accrual of the forfeiture, and obtain

ing payment of the rent by means of that action, has clearly made his election to treat the lessee as still being his tenant. Surely that as unequivocally shows the landlord's determination to treat the lease as an existing lease, as the bringing of an ejectment demonstrates an intention to treat the tenant as a trespasser. The tenant must under those circumstances be induced to consider himself still tenant, and could not conceive himself liable to be dealt with as a trespasser. There is also a strong expression of opinion to the same effect by the same learned judge in Doe v. Birch, 1 M. & W. 406.† It is true it was not necessary to the decision of the case; but still everything that fell from that very learned judge is entitled to weight. "The question of waiver," he says, "does not distinctly arise in this case. If it had, the authorities. cited show that this was a lease voidable at the election of the landlord. Then I think that an absolute unqualified demand of the rent by a *386] person having sufficient authority, would have *amounted to a waiver of the forfeiture, and it would have been like the case I cited from Croke's Reports." That dictum goes beyond what is necessary in the present case. The learned judge lays it down as his opinion. that an unqualified demand of the rent would operate a waiver of the forfeiture. Here, there has been not merely a demand of the rent, but an action brought to enforce it. That seems to me to be an unqualified and conclusive act on the part of the landlord, showing a determination on his part to treat the lessee as still continuing his tenant. If this action were held to be maintainable, this gross inconsistency would result, viz., that the plaintiff, having already recovered the rent up to Lady Day, 1857, would recover the land by reason of the forfeiture in 1854, and also, as my Brother Willes suggested in the course of the argument, mesne profits down to the time of the verdict. Such a result could never be permitted. I think the authorities abundantly show, that, by such a demand as has been made here, the plaintiff has elected conclusively to treat the defendant as his tenant, and cannot afterwards turn round and make him a trespasser. For these reasons, I think the rule to enter a verdict for the defendant must be made absolute.

WILLES, J.-I am entirely of the same opinion. It has been contended on the part of the plaintiff that the bringing an action of ejectment was such an election on the part of the landlord to take advantage of the forfeiture and put an end to the term, as to prevent the subsequent acceptance of the rent from operating to revive the lease; and that that view is sustained by the decision of the Court of Exchequer in Jones v. Carter, 15 M. & W. 718.† I am glad we are not bound to lay down so capricious a doctrine as that, although the bringing an action *387] of ejectment is an *unequivocal demonstration of intention on the part of the lessor to treat the lessee as a trespasser, yet the bringing an action to recover the rent is not an equally strong and unequivocal demonstration of his intention to treat him as continuing tenant. That, as it seems to me, would be a gross inconsistency, unless there be some substantial distinction between an action of ejectment for the recovery of the land and an action to recover the rent: and none such has been pointed out. It is not necessary, and therefore would be an unprofitable waste of time, to compare the writ of ejectment under the Common Law Procedure Act (15 & 16 Vict. c. 76) with the old writ of covenant for non-payment of rent. It is enough to say that each is