Curia,
per Sutherland, J.I think the Judge erred in charging the jury, that if they believed a part of the alley, as described in the lease, was, between the 30th of December, 1819, and the 3d of May, 1820, inclosed by a fence, in th© defendant’s garden and appropriated to his exclusive use, and the obstruction in the remaining part of the alley rendered the passage with loaded teams unsafe and hazardous, the plaintiff would be entitled to recover on the ground of forfeiture. These two causes of forfeiture should have been separately and distinctly presented to the jury.
The exceptions and condition in the lease did not bind the defendant to leave the whole of the demised premises unoccupied and unimproved; unless the whole was necessary for a convenient way or passage for the horses, carriages, carts, and servants of the lessor. Suppose the premises conveyed had been one hundred, instead of four and twenty feet in width; would it be contended, that the reservation of a right of way. extended to each and every part of them, and prohibited the defendant from inclosing any portion ? It should have been submitted to the jury, as a matter of fact, whether enough of the alley was left unenclosed to afford a convenient passage for the lessor, and if they were of opinion that there was, then, clearly, the plaintiff would not be entitled to recover on that ground. If the construction contended for by the plaintiff’s counsel be correct, the effect of the conveyance was merely to give to the defendant a right of way through the alley ; for if he could not enclose any portion of it, he could not use it permanently in any other way, without encroaching on the lessor’s rights. Now if this had been the understanding and intention of th© patties, they would most naturally have carried it direct-ly into effect, by a simple conveyance of a right of way to the defendant.
But again: the fence complained of was on the premises at the time of giving the lease, and had been there several *230years before. It took no more in width from the alley thati was covered by the defendant’s house. These are strong circumstances which a jury would be authorized,and, 1 think,bound to consider equivalent to an admission on the part of the lessor, that neither the house nor the fence encroached upon the right of way intended to be reserved by him. But, at all events, the question of fact should have been submitted to the jury.
As to the obstruction occasioned by the manure, the evidence was contradictory. It appears to have been about the center of the alley. Bassett testified-, “ that he took a load of hay to the defendant’s barn, and. drove round the pile of manure with ease; and thinks that it formed no obstruction that there might have been three or four loads of it. Poto-' ers also drove a load of hay to-the defendant’s barn, and he thought a loaded waggon could not have been driven over the manure with safety ; but he does not say, that there was not room to pass round it, and from the diagram it would appear that he must have gone round it with his load, in order to get at the defendant’s barn. Other witnesses stated that loaded teams could not be driven over the manure with safety ; but there is not one who swears that after the rack was removed, a loaded waggon could not have passed round the manure without danger or inconvenience. The jury might well have come to the conclusion, that the manure did not so obstruct the alley as to deprive the lessor of a convenient passage through it.
If the obstruction did amount to a forfeiture, the receipt of rent by the lessor in September, 1820, was nota waiver of it. The manure was not removed, until the last of April, 1820. The rent which was received, felt due in December, 1819. In order to render the receipt of rent a waiver, it is necessary that the rent should have accrued as well as have .been received subsequent to-the forfeiture. It proceeds upon the principle that the lessor, by receiving, the rent, affirms the lease to have continuance, as Ld. Coke expresses it ;• but that can only relate to the time when the rent fell due, and not to the time of its payment; and so, are all the authorities. (Co. Litt. 211, b. Woodf. L. & T. 203-4. Doe *231v. Batten, Cowp. 246, Aston, J. Jenkins v. Church, id. 482. Goodright v. Davids, id. 803. Roe v. Harrison, 2 T. R. 425. 1 Saund. 287 c. n.(16). Pennants case, 3 Rep. 64.) The receipt of rent was an affirmance of the lease on the 30í/j of J)ecember, 1819; but the obstruction still continuing, the subsequent forfeiture has not been waived. The case of Doe v. Bliss, (4 Taunt. 735) is precisely analagous on this point; and the same doctrine is fully sustained by the subsequent case of Doe v. Bancks, (4 B. & A. 401.) The lease was not absolutely void, but -voidable at the option of the lessor upon a breach of the condition. (Doe v. Bancks, 4 B. & A. 401.) If the lessor, therefore, with a full knowledge of the forfeiture, had accepted rent, which fell due after that event, the cases already cited show that it would have been a waiver.
The lessee had but an estate upon condition, on breach of which, the lessor undoubtedly bad a right to re-enter. (Co* Litl. 203, a. et seq. sections 328-9-30-31.)
But a new trial must be granted, for the misdirection ef the Judge, the costs to abide the event.
New trial granted.