goods, chattels, and effects then were, or to remove the said goods, chattels and effects, and to sell the same whenever and wheresoever they should think proper, by private contract or public auction.

19. By indenture of the 22nd of April, 1867, made between Candler of the one part, and the defendant, Reed, of the other part, Candler, pursuant to the license, demised by way of underlease, the premises to the defendant, Reed, for the term of years mentioned in the license, by way of mortgage to secure the sum of 3007., the whole of which is still unpaid. Provided that if the mortgagor should, on or before the 22nd of July next following the date thereof, pay unto the mortgagee the said sum of 3001., together with interest, then the mortgagee would at the request and costs of the mortgagor, surrender, yield up, re-assign, and re-convey to him, or as he or they should appoint, all and singular the premises thereby demised and assigned; and provided that if the principal sum and interest should be paid by certain instalments on the days therein mentioned; and provided that the mortgagor should not become bankrupt, or enter into any deed of trust, composition, or arrange ment, or otherwise for the benefit of his creditors, and should keep, observe, and perform all and singular the covenants, provisoes and conditions therein, and in the two thereinbefore recited indentures of lease respectively contained (one of which was the indenture of the 23rd of March, 1860), on his part to be kept, observed, and performed, then and in such events the said sum of 3001., or the residue thereof, which might for the time being be due with all interest should not be called in together, but should be taken and accepted by the mortgagee by instalments at the times and in manuer herein before expressed. And provided that until default in payment, as aforesaid, and no breach of the covenants, clauses and conditions therein contained, should have been made by the mortgagor, the mortgagor should have full and free enjoyment of the said premises without any molestation, interruption or eviction by the mortgagee, or And any person claiming under him. provided also that on and after default should be made in such payment or

any breach as in the next preceding proviso mentioned, it should and might be lawful for the mortgagee to enter and come into, and upon all and singular the premises, and to take and receive the rents, issues and profits thereof, and to apply the same in payment of any principal, interest, or other moneys, costs, charges or expenses which might be due and owing to the mortgagee under or by virtue of those presents.

20. On the 30th of April, 1867, Candler duly executed an assignment of all his estates and effects to James William Clements Aylett, George Frank Keed, and Thomas Carr Acland, absolutely, to be applied and administered for the benefit of the creditors of Candler in like manner as if he had been adjudicated a bankrupt, and the same deed was registered under the 194th section of the Bankruptcy Act, 1861.

21. The defendant, Portbury, was the occupier of a portion of the demised premises, at the times of the service of the writs of ejectment hereinafter mentioned.

22. On the 23rd of May, 1867, Edgley, as acting under the bill of sale, sold by public auction in and upon the said premises certain goods, chattels, and effects in the bill of sale mentioned. Previously to the sale, bills announcing the same were posted on the premises.

23. The plaintiff did not give her consent to the said or any sale by auction on the demised premises, nor did she know of the sale until some time afterwards.

24. It was also proved at the trial that Candler, who had previously remained in possession of the premises, had left the premises before the said auction, and was at that time at Bath.

25. The defendant, Reed, did not assent to the sale, and was not in possession of the premises.

26. In the year 1867 the plaintiff brought two actions of ejectment against the now defendants for the recovery of the possession of the said premises by reason of a forfeiture of the lease for the said sale by auction. In both those actions the plaintiff was nonsuited (2).

(2) 39 Law J. Rep. (N.s.) Q.B. 136; s. c. Law Rep. 5 Q.B. 288.

27. The jury found that the sale by auction took place on the premises, with the permission of Candler. The learned Judge then directed a verdict to be entered for the plaintiff, reserving leave to the defendant to move to enter a verdict for him on the point of law mentioned in the first and second paragraphs of this case.

The questions for the opinion of the Court of appeal were—

First. Whether the facts disclosed a ground of forfeiture by reason of the sale by auction, and, if so, whether such forfeiture was not waived.

Second. Whether a rule upon those points reserved at the trial, on which it was refused, ought to have been refused, as above mentioned; and also whether the said rule of the 13th of June, 1870, ought to have been discharged or ought to have been made absolute on the grounds therein stated.

The Court of Appeal to make such rule or order upon this appeal as it should think fit, and to proceed thereon pursuant to the provisions of the Common Law Procedure Act, 1854.

Baylis (Prentice with him), for the appellant. The jury have found that the sale by auction took place with the permission of Candler. But the bill of sale contains no license for an auction on the premises. The final words of the proviso for sale, "by public auction," would apply only when the goods were previously removed. And if there were such a license it was impliedly revoked by the subsequent indenture of mortgage. Having, by that instrument, parted with his estate, Candler was in the position of a stranger and could not "permit" a sale on the premises when he had neither the power to allow nor to prevent it. The permission, if any, in the bill of sale was a mere personal license, which was, on the execution of the mortgage deed, revoked by operation of law.

[BREIT, J.-How could the subsequent acts of Candler injuriously affect the permission given to the grantees of the bill of sale?]

As Reed, the mortgagee, could enter and prevent a sale by them, Candler was not able to permit it.

[KEATING, J.-But the mortgagor, for

aught that appears from the case, remained in possession, although he was away from the premises when the auction was held.]

In Hobson v. Middleton (3) the defendant had covenanted that he had not done, nor permitted, nor suffered to be done, any act whereby an estate was encumbered; and it was held that his assenting to an act which he could not prevent was not a breach of the covenant. Bayley, J., said that the words, "permitting and suffering,' do not bear the same meaning as knowing of and being privy to;' the meaning of them is, that the defendant should not concur in any act over which he had control," p. 303. Moreover Candler had assigned all his estate to trustees.

[BRAMWELL, B.-But it is not found that they elected to take the lease.]

If, then, that assignment is inoperative, the mortgage must be relied on, in which was a proviso that the enjoyment by the mortgagor of possession of the premises should cease if he assigned for the benefit of creditors. Therefore he had no possession, and could not permit the entry and sale. Next there was a waiver of the forfeiture.

[BRAMWELL, B.-How is that point raised? there were two actions of ejectment-surely amounting to a conclusive election by the plaintiff to insist on the forfeiture.]

There was a revocation of election by the claim for rent.

[CLEASBY, B., referred to Jones v. Carter (4), per Lord Wensleydale.]

Here, however, the waiver was in, not after, the action of ejectment. It would be a hardship on the defendant if the plaintiff were allowed to avoid the lease, and yet receive rent accrued after the forfeiture.

J. Brown (J. Rose with him) for the respondents, was not called upon.

KELLY, C.B., delivered the judgment of the Court.

We are of opinion that the judgment. of the Court of Queen's Bench should be affirmed. This was an action of ejectment on a forfeiture, and, pursuant to leave re(3) 6 B. & C. 295. (4) 15 Mee. & W. 718.

served at the trial, the defendant raised two questions. First, whether forfeiture could be incurred by reason of the grant of a license to sell certain goods by auction on the premises demised, and upon that point the Queen's Bench refused a rule nisi. Secondly, the question upon which a rule. was granted and subsequently discharged, viz., whether the plaintiff was disentitled to recover by reason of his having given particulars in an action of ejectment wherein (besides the forfeiture alleged to have been incurred by the permission given for a sale by auction on the premises), he insisted on a forfeiture for non-payment of rent.

As to the first question, we must refer to the terms of the covenant relied upon, by which the said Robert William Candler for himself, his heirs, executors, administrators, and assigns, covenants with the plaintiff and her assigns, "that the said Robert William Candler and his assigns will not permit any sale by public auction to take place on the said premises without the consent in writing of the said Eliza Toleman, her executors, administrators, and assigns."

Now, no consent in writing has been given by the plaintiff, and therefore we have to consider whether that covenant has been broken. By a bill of sale dated the 11th of April, 1867, Candler appears to have mortgaged certain goods, chattels, and effects on the premises in question to Edgeley, and two others, as security for the sum of 501., and the instrument contains a provision that in case default should be made in payment (which payment (which default we must assume to have been made, and which clearly was made), "it should be lawful for the said mortgagees, immediately and whenever they should think fit, to sell and dispose of the said goods and chattels, or any part thereof, on or at the said therein-before mentioned house or premises where the said goods, chattels and effects, then were, or to remove the said goods, chattels and effects, and to sell the same, whenever and wheresoever they should think proper, by private contract or public auction." The first objection raised on the terms of that authority is, that the words, "by private contract or public auction," refer only to

the latter part of the proviso, and not to the first branch of the license as to the disposition of the goods on the premises in question; but when we read the whole sentence the words become insensible unless we treat it as a grant or license, first to sell and dispose of the goods on the premises, or to remove them and sell them wherever the grantee should think fit, and then follow the words, which necessarily must apply both to the original license and to the alternative, "by private contract or public auction." This, therefore, was clearly a license to sell goods and chattels on the premises by public auction, a grant to do that which the covenantor had bound himself by his covenant not to do, and was, in consequence, a breach of covenant. At all events it would be a breach of the covenant, followed as it was by a sale of goods and chattels on the demised premises. On the 22nd of May in the same year, default having been made, Edgeley, acting under the license in the bill of sale, sold by public auction on the premises. Here there is a complete case of forfeiture, and, if the matter rested there, no doubt the plaintiff would be entitled to the verdict.

But then the defendant objects that the power of the covenantor to grant any such license was at an end before the sale took place, and insists, therefore, that the latter had no power to grant the license, or that the power had ceased, and the license become void by means of one or the other of two conveyances which were afterwards made; the first being an underlease by way of mortgage of the 22nd April, 1867.

Now first let us consider whether there was anything in the grant of the underlease which operated as a revocation of the license. There is nothing to be found in the instrument itself having any such effect, but the question submitted to us is, whether by means of this grant the power to the licensee to act in pursuance of the license by effecting a sale by auction on the premises was not determined, and at an end. I think it was not. instrument was in effect a mortgage; but we find there is a condition that as long as the mortgagor should continue to pay the interest at the times fixed, he should

The

be entitled to redeem, and should be and remain in full enjoyment of the premises without any molestation, interruption, or eviction by the mortgagee, or any person claiming under him, and under this instrument, notwithstanding the mortgage; and whatever may be the power that it conferred on the mortgagee, the mortgagor remained in actual possession of the premises in undisturbed and full enjoyment of them, until after the sale by auction took place, and therefore the first question is whether the license itself was determined by the mere grant of this mortgage on the part of the covenantor. As between the parties, viz., Candler and Edgeley, the license continued in operation, Candler remained in actual possession of the premises, and there was nothing to prevent Edgeley entering on the premises, exercising the license, and doing as he actually did in May, viz., entering and making sales by auction. As between Candler and Edgeley, I repeat, the license continued in full force, and Candler did not object to Edgeley exercising it. There may be a doubt whether under the circumstances the mortgagee could have interfered so long as the interest on the mortgage money was paid, and it does not appear from the case that default was made. It is by no means clear that the mortgagee could have entered and dispossessed Candler. It is said, however, that he might have. done so by reason of the subsequent assignment under the Bankruptcy Act, 1861, made for the benefit of creditors. Whether this at once and by itself operated as a determination of the right to continue in enjoyment of these premises on the part of Candler is, as it seems to me, quite unnecessary to decide, because, assuming that the mortgagee had power to take advantage of this, he did not do so, and Candler continued in possession without any objection on the part of the mortgagee. Therefore, even supposing there was power to dispossess Candler, that power not having been executed, he remained in possession, and there was a clear breach of covenant by Edgeley entering-lawfully entering-and effecting a sale by auction on the premises. Next comes the further question whether

the assignment itself, which is said to have put an end to the title of Candler altogether, also put an end to the license, and rendered it invalid and void, and on the authority cited by Mr. Baylis, prevented its being a sale under the presumption of the covenantor, I am clearly of opinion it had no such effect. By the assignment to trustees, Candler might have enabled them-if not prevented by the mortgagee to enter on the premises and dispossess Candler himself, but no such right was exercised, and whatever right might have existed it was not used, there was nothing that de facto interfered with the possession, and consequently nothing to prevent the exercise of the license by sale by auction, which was a breach of covenant, and a cause of forfeiture. I think, therefore, that neither the lease by way of mortgage nor the assignment to trustees, had the effect of preventing the lawful entry under that license of Edgeley and the sale, and that there was clearly a breach of covenant by granting this license under seal, followed by continued possession on the part of Candler, and a sale by his permission by auction on the premises (whatever might have been the power of the mortgagee or trustees to interfere). So the defendant's attempt to sustain this objection altogether fails.

The other objection is of a totally different character. It is whether the statement in the particulars of non-payment of rent as one ground of forfeiture in effect disentitled the plaintiff to insist on that which we may now take to be a forfeiture enabling him to maintain ejectment. I am of opinion that it did not. First, it may well be contended (although it is unnecessary to lay down the law on the point) that the actual bringing of an action of ejectment, and taking it down to trial, claiming a forfeiture by reason of a sale by auction, put an end to the lease, and that it was not competent to the landlord to undo the act which he had done or to treat the lease as afterwards subsisting, and therefore that the claim for rent as rent, although made, would have no such effect as to disentitle him to maintain the action. But all that took place, in fact, was that the defendant

had taken out a summons under the statute to set aside the ejectment on payment of the rent, which was resisted by the plaintiff, who has not accepted the money paid; there it remains still in Court, she has done no act to appropriate it to her own use, and therefore the effect of the forfeiture by sale by auction remains unimpaired.

It is said that it would be great injustice if the plaintiff could take this money out, and yet claim forfeiture by sale; but I do not see the injustice if she can possess the money so paid into Court, in one shape or another. She is entitled to the rent, and whether it is obtained by way of rent or by way of mesne profits does not signify. But it is clear that, on the grounds so very clearly and ably stated in the Court of Queen's Bench, the mere claim of forfeiture by non-payment of rent does not of itself preclude the plaintiff from insisting on the sale by auction as a forfeiture. When the rent was paid into Court there was an end of the part of her particulars by which she claimed a forfeiture for non-payment of rent, but the other cause of forfeiture remained, and I do not see on what ground it can reasonably be contended that, because the landlord brings ejectment claiming a forfeiture for non-payment of rent, she should lose the benefit of the other forfeiture by reason of her having claimed some other but different forfeiture. Therefore I am of opinion that the plaintiff is entitled to retain the verdict on both points, and that the rule must be discharged, and the judgment of the Court below affirmed.

The other learned judges concurred.

Judgment for plaintiff.

Attorneys-John Ellerton, for appellant; Reed & Lovell, for respondent.

1872.

}

Jan. 23. J

MAY V. THE GREAT WESTERN
RAILWAY COMPANY.

Lands Clauses Consolidation Act, 1845 (8 & 9 Vict. c. 18), s. 127-Superfluous Land unsold-Owners of adjoining Land.

By s. 127 of the Lands Clauses Consolidation Act, 1845, it is provided that within the prescribed period, or if no period be prescribed, then within ten years after the expiration of the time limited for the completion of the works, the promoters of the undertaking shall sell and dispose of such superfluous lands as they had acquired under the provisions of that Act or their special Acts, and in default thereof all such superfluous lands remaining unsold shall vest in and become the property of the owners of land adjoining thereto," &c.

The B. & H. railway company was incorporated for the purpose of making a railway, which was to be completed on or before the 30th of June, 1850. The rights and powers of the B. & H. Company became vested in the year 1846 in the defendants. The plans and book of reference deposited with the clerk of the peace included a field in the parish of B. The defendants gave to the owners of the field notices to treat with them for the purchase of the field for the purposes of the railway. The price of one part was settled by arbitration, and of the remainder by agreement between the parties; the field was conveyed to the defendants, and the defendants took possession. Upon a portion of the field they constructed, in part, the line of railway, together with a station and other works connected therewith; and upon part of the remainder of the field they deposited chalk and other spoil, which, in making the railway, was excavated from a cutting near the field, in order to provide a place for depositing which the defendants had purchased the whole of the field, instead of only a portion thereof. After the chalk and spoil were deposited, the defendants allowed the people employed by them to occupy the portion of the field not used for the station, as gardens, and for other purposes, and, in one or two instances, persons not so employed occupied parts of the field, and paid small rents in respect thereof to the station master, who received them for his own use. The land so occupied was productive to the persons who occupied it.