The question of waiver was properly submitted to the jury on the evidence as a matter of fact for their determination. "In a general way, waiver may be said to occur whenever one, in possession of a right conferred either by law or by contract, and knowing the attendant facts, does or forbears to do something inconsistent with the existence of the right, or of his intention to rely upon it; in which case he is said to have waived it, and he is estopped from claiming by reason of it afterwards." Bish. Con., s. 656. But in such a case the question of waiver is one of fact for the jury. Fox v. Harding, 7 Cush. 516, 520; Union Bank of Georgetown v. Magruder, 7 Pet. 287.
Exception overruled.
CARPENTER, J., did not sit: the others concurred. *Page 189