charged only from such debts as are capable of valuation at the time of the insolvency. It is perfectly clear that this was not: it was wholly uncertain at that time whether the business would be profitable or not, or whether the plaintiffs would choose to give it up or not." Here, however, the thing is susceptible of valuation.

PER CURIAM.-The discharge of the defendant under the act, clearly did not enure to release him from liability to indemnify his sureties against payments subsequently made by them under the bond.

Judgment for the plaintiff.

A discharge under an insolvent law the maker has been discharged under is no bar to an action on an express covenant to pay rent brought to recover rent accruing subsequent to the insolvent's discharge: Lansing v. Prendergast, 9 Johns. 127.

the insolvent law, such discharge is no bar to a suit on the note brought by the endorser against the maker: Frost v. Carter, 1 Johnson's Cases, 73; S. C. 2 Caines, 311; Paxton v. Haster, 6 Halst.

If the endorser of a note pay it after 410.

*592]

*WILLIAM FORRESTER BRAMLEY, Appellant, JOSEPH CHESTERTON, Respondent. May 29.

Where a tenant holds over after the expiration of a notice to quit, the landlord is entitled to recover against him the reasonable damages and costs sustained by him in an action at the suit of a party to whom he had contracted to let the premises, but to whom the tenant's wrongful act had prevented him from delivering possession.

THIS was an action to recover the sum of 501., that is to say, 407. damages sustained by the plaintiff in consequence of the defendant having neglected and refused to deliver up to the plaintiff, when thereunto lawfully required by him, the possession of a certain dwellinghouse situate in Granby Street, in the parish of St. Margaret, in the borough of Leicester, of which dwelling-house the defendant had been the occupier as tenant to the plaintiff, and for the determination of which tenancy due notice had been given by the plaintiff to the defendant; and also 107., the value of two shop-windows, door, and shutters, with the fixings and appendages, unlawfully removed by the defendant from the above-mentioned dwelling-house.

The cause was tried before the judge of the said court, without a jury, upon the 22d of October, 1856.

The plaintiff proved that he was the landlord of the premises mentioned in the plaint, which in May, 1855, were in the occupation of the defendant as tenant from year to year, at the rent of 351. a year.

Before the 24th of June, 1855, the plaintiff gave notice in writing to the defendant to quit the said premises on Christmas-day then next. After service of the notice to quit, and so soon as time had expired so

that the plaintiff could not give defendant fresh notice to quit at Lady Day, the defendant called upon the plaintiff, and refused to give up possession pursuant thereto, alleging, among other reasons, that his tenancy did not commence at Christmas, and that the notice was informal on other grounds. The defendant also *immediately instructed his solicitor to write to the plaintiff; and, on the 27th of August, 1855, the following letter was accordingly sent:

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"Leicester, August 27th, 1855. "Sir,-Mr. Chesterton has brought me a notice to quit sent or delivered by you, directing him to give up possession of the house he now occupies in Granby Street, in this town; on perusing which, and some other documents connected with the tenancy of those premises, it would seem that your notice is informal and invalid on several grounds.

"Thinking you might probably act under the supposition that the notice was good, and that he would leave the premises at the time stated in your notice, I am directed by Mr. Chesterton to acquaint you that he does not intend to give up the premises at that time, unless some satisfactory arrangement be previously made for putting an end to the tenancy. Yours, &c. "PAUL DUDLEY."

The plaintiff at such interview informed the defendant that he the plaintiff had let the premises as from Christmas then next to Mr. Thomas Harcott, at an increased rent, and that therefore the defendant must go out. The defendant then requested the plaintiff to see if he could arrange with Mr. Harcott to forego his agreement, and he, the defendant, would pay the increased rent. Accordingly the plaintiff saw Mr. Harcott, who refused to give up his agreement, and informed the plaintiff that he should bring an action to enforce it if he were not duly let into possession; that he, Harcott, had given notice to quit his then shop; and that he could not recede from the bargain. This conversation was communicated by the plaintiff to the defendant, who said thereupon that he, the defendant, did not care, that he could not give up the premises.

*The defendant did accordingly refuse to quit the said prem[*594 ises pursuant to the said notice; whereupon the plaintiff entered a plaint in the said Leicestershire county court, and thereupon a summons issued to the defendant; and, upon the said summons coming on to be heard upon the 19th of March, 1856, it was adjudged by the said court that the plaintiff recover of the said defendant the said premises, together with costs of suit: and it was ordered that the defendant should forthwith quit and deliver up possession of the said premises, and that, if necessary, a warrant should issue for that purpose; and it was further ordered that the defendant should pay to the clerk of the court, at his office, 77. for the plaintiff's costs.

Before the said 19th of March, 1856, the plaintiff was served with a

writ in the Court of Exchequer at Westminster, at the suit of the said Thomas Harcott, of which writ the defendant had notice, and subsequently with a declaration for breach of the said agreement, wherein the said Thomas Harcott claimed of the plaintiff 100l. as damages.

The defendant, on or before the 24th of March, 1856, sent Mr. Herbert, as his agent, to the plaintiff, and offered to pay him 81. 158. in respect of rent and damages due to him the plaintiff, provided he the plaintiff would sign a receipt tendered by Herbert, and which purported to be in discharge of rent and all damages, but the plaintiff refused to do so, and said that he could not give a receipt for damages, because he did not know what he should have to pay in Harcott's action; but the plaintiff at that time received from Mr. Herbert the sum of 81. 158., and signed the following receipt :

"March 24th, 1856. Leicester.

"Received the sum of 87. 158., less property-tax, for one quarter's rent due 25th March, 1856. (Signed) W. F. BRAMLEY."

*The plaintiff paid into court in Harcott's action the sum of *595] 102., which Harcott took out of court, and went on with his action for damages ultrà. After notice of trial was given for the Leicestershire Summer Assizes, 1856, the plaintiff settled the said action, by the payment of 81. further as damages, and 137. as the costs of Harcott's attorney; and the plaintiff also paid to his own attorney 61. 12s. 6d. for his costs in the action,-making together the sum of 371. 12s. 6d.

At the close of the plaintiff's case, the court determined that the plaintiff could not recover any damages in respect of the shop-windows, or any damage in respect of rent,-being a sum claimed by him amounting to the difference between the rent for a quarter as paid by the defendant, and the amount which would have been paid by Thomas Harcott. The question, therefore, was, could the plaintiff recover the said 377. 128. 6d. or any part thereof.

On the behalf of the plaintiff, it was urged that the plaintiff was entitled to recover the amount as special damages in trespass for mesne profits; and the court was referred to Tindall v. Bell, 11 M. & W. 228,† and asked to find as a fact that the plaintiff had done what a reasonable man could be required to do to settle the suit, and that the sum so paid was the necessary consequence of the defendant's wrongful holding over, and that, at all events, the plaintiff was entitled to pay money into court and costs up to that time, and that the plaintiff had done what a prudent man would have done in settling the suit.

On behalf of the defendant, it was argued, that the claim for damages alleged to be consequential on his holding over, was not sustainable, as the plaintiff might have sued the defendant for double value, under the statute 4 G. 2, c. 28; and that the acceptance of rent, received qua

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rent, up to the 25th day of March, was a *waiver of the plaintiff's right to claim double value, or to claim damages in the nature of mesne profits on the ground that the defendant was a tres passer after Christmas, 1855; and that the receipt of such last-mentioned rent was an acknowledgment that the defendant was lawfully in possession up to that time: and the case of Doe d. Cheny v. Batten, Cowp. 243, was referred to.

On behalf of the defendant, it was also contended that the damages were too remote, and that the money which the plaintiff had been compelled to pay to a third person, under a contract to which the defendant was no party, was not the necessary damage resulting from the defendant's holding over.

On behalf of the defendant it was also contended, that, as an action for double value would not lie in a case where the defendant held over under a bonâ fide claim of right,-Wright v. Smith, 5 Esp. N. P. C. 203,-so, as the defendant held over here under such a claim, this action was not sustainable; and that the plaintiff had no right to let the premises under the circumstances.

On behalf of the plaintiff, it was urged in reply that the right to bring an action for double rent under the statute referred to was a cumulative remedy, and did not deprive the plaintiff of his right to recover the damages claimed as special damage in this action; that the acceptance of the rent under the circumstances was no waiver; nor was the money paid or accepted in satisfaction of damages; nor was such acceptance any admission of the defendants being rightfully in possesssion,-upon which point the prior judgment of the court, was conclusive inter partes.

It was further argued for the plaintiff that the damage was not too remote; that the defendant had all along known that Harcott would bring an action *on his agreement; that the damages were the [*597 necessary consequences of the defendant's wilfully holding over; and that, as the defendant wilfully held over, bona fides had no influence upon the determination of the rights of the parties.

The judge directed a verdict to be entered for the plaintiff for 377. 12s. 6d.; and he found as a fact that the plaintiff had done what a reasonable man would have done in settling the action with Harcott upon the terms above mentioned; and that the costs did not exceed what would have been incurred in the paying of the money into court; and that, as a matter of fact, the plaintiff did not accept the said sum of 81. 158. in satisfaction of the damages herein, or waive thereby his claim thereto, unless as a matter of law his acceptance of such money, and his giving such receipt, deprived him of his right to bring any action for damages under the circumstances disclosed upon this case.

The question for the opinion of the court was,-first, whether the acceptance of such money, and the giving of such receipt, in point of

law, deprived the plaintiff of his right to damages in this action,— secondly, whether the damages sought to be recovered were too remote.

Phipson, for the appellant.-It may be conceded that the mere receipt of rent did not in point of law deprive the plaintiff of his right of action for any legal damage he might have sustained. But the question is what is the true measure of damages sustained by the plaintiff from the defendant's wrongful act in holding over after the expiration of the notice to quit. The real damage, it is submitted, is, the difference between the rent which the defendant contracted to pay and the increased rent. In Fletcher v. Tayleur, 17 C. B. 21 (E. C. L. R. vol. 84), Jervis, C. J., and Willes, J., professing to found themselves upon the rule *laid down by the Court of Exchequer in Hadley *598] v. Baxendale, 9 Exch. 341,† suggest that the damages in an action for the breach of a mercantile contract should be estimated according to the average per centage of mercantile profits. Hadley v. Baxendale was an action against a carrier for unreasonable delay in the conveyance of a shaft for a mill, whereby the mill was prevented from working and Alderson, B., in delivering the judgment of the court says: "We think the proper rule in such a case as the present is this: Where two parties have made a contract, which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either arising naturally, i. e. according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract, as the probable result of the breach of it."(a) In Robinson v. Harman, 1 Exch. 850, 855,† Parke, B., says,- The rule of the common law is, that, where a party sustains a loss by reason of a breach of contract, he is, so far as money can do it, to be placed in the same situation with respect to damages as if the contract had been performed." [WILLIAMS, J.-Suppose the mesne landlord were called upon to pay double value, could he recover that as damages against his tenant?] Possibly that might be a damage naturally resulting from the wrongful act of the under-tenant. [WILLIAMS, J.-I find in Chitty on Pleading, Vol. II. p. 342, a precedent of a declaration in an action of that sort.] In Maine on Damages, pp. 15, 16, it is said,—" One very common instance in which damages are held to be too remote, *arises where the plaintiff claims compen*599] sation for the profits which he would have made if the defendant had carried out his contract. It is by no means true, however, that such profits can never form a ground of damage. There are many cases in which the profit to be made by the bargain is the only thing purchased, and in such cases the amount of that profit is strictly the measure of damages. Where A. agrees to execute work for B., or to

(a) See the remarks upon these cases in Maine on Damages, page 9.