seems to have surprised both the plaintiff and the defendant is one which requires a passenger in an automobile to exercise reasonable care for his safety. Just what is the extent of a passenger's responsibility in this regard is not clearly settled by the authorities. The guest, of course, is not expected to interfere with the operation of the machine. Latimer v. Anderson Co., 95 Car. 187. But one thing he is required to do: He must keep his eyes open and not close them to obvious dangers. Sherris v. Northern Pac. Ry. Co. (Mont.) 175 Pac. 269; Virginia, etc., Ry. Co. v. Skinner, 119 Va. 843, 89 S. E. 887. It is his duty to use reasonable care in looking and listening for trains as an automobile approaches a crossing and to call the attention of the driver to the presence of danger. Lawrence v. Denver, etc. Ry. Co. (Utah), 174 Pac. Rep. 817; Anzinger v. Ry. Co. (Pa.), 105 Atl. 87; Brommer v. Ry. Co., 179 Fed. 577, 29 L. R. A. (N. S.) 924; Thompson v. Ry. Co., 165 Cal. 748, 134 Pac. 709.

IS A COVENANT AGAINST ASSIGNMENT OF LEASE WITHOUT LANDLORD'S CONSENT EXTINGUISHED BY CONSENT ONCE GIVEN?

When a lease has a covenant that the tenant shall not assign the agreement, or underlet any part of the premises, and that even though the landlord shall consent to an assignment, no further assignment shall be made without express consent in writing by the landlord, and there is not a similar covenant that no further underlettings shall be made without express consent, and one consent to underlet is given, is the condition not to underlet thereby discharged?

The question of the right to sublet under a lease which requires the consent in writing of the lessor has arisen in New York and elsewhere from the fact that rentals have recently increased enormously since many leases were made, and landlords have refused to accept unobjectionable sublessees, hoping thereby to force the tenant to surrender the premises. Heretofore in this country the provision requiring the consent

of the landlord has been invoked by the landlord in order that undesirable tenants should not be substituted for the original lessee without his consent, and cases are not found providing that consent shall not be withheld except upon reasonable objection, but in England the greed of landlords has forced such a provision into leases for dwellings, and hereafter it will be necessary for tenants here to see to it that they are protected in this particular.

"In the absence of statutory or contractual restrictions to the contrary, a lessee for years may, without the lessor's consent, or an express provision in the lease, either assign, sublet, or mortgage or otherwise encumber the term granted by the lease."1

And it would seem that the lessee's right to sublet may be so restricted by statute or in the terms of the lease by a covenant requiring the lessor's consent in writing, without providing that consent shall not be withheld except upon reasonable objection, that the lessor can arbitrarily refuse to give consent, in which case the lessee will not have any remedy against the lessor for refusal to consent thereto, provided that appropriate language is used. A covenant not to assign or sublet is to be construed strictly against the lessor.2

There are two lines of decisions upon this question, the one laid down in McAdam on Landlord and Tenant, where it is said:

"A single license to sublet or waiver of one act of subletting does not authorize a subsequent subletting, the rule in regard to assignments being inapplicable. The Court, in McKildoe's Ex'r v. Darracott,5 said: "The only difference between an assignment and underlease in this respect is that the doctrine of Dumpor's case in regard to assignments has not been extended to underleases. It was held in that case that a

above.

The cases quoted to sustain this position are McKildoe's Ex'r v. Darracott, in which it is held that (1) a lease being forfeited by the act of the lessor in subletting the premises, the forfeiture will be waived if the lessor with knowledge of the forfeiture accepts rent or sues out a distress for rents accruing after the forfeiture; (2) a subletting is not a continuing act of forfeiture, and if the forfeiture is once waived, the waiver cannot afterwards be retracted.

The Court relied on Doe v. Bliss, but in that case it was held that, "Dumpor's case is the law and we cannot now revoke it." In Doe v. Bliss, the covenant was that the lessee should not underlet the premises, which he did, and the landlord received the rent. And it was claimed that by condition broken and forfeiture waived by the first underletting the condition was gone forever, and Dumpor's case was cited as authority to sustain that position. The Court said in Doe v. Bliss:

"I suppose the defendant relies on Dumpor's case and infers that this tolerance is tantamount to a license, but this is too strong a proposition," which clearly draws the distinction between waiver of a breach of a condition and giving a license to sublet. It is stated in 1 Taylor, § 410, that there is no distinction between giving a license to assign or to sublet, and the statement in this case that the doctrine in Dumpor's case has not been extended to subletting is without correctness or weight. See,

(7) Doe v. Bliss, 4 Taunt. R. 735; Archbold 97. (8) 13 Gratt. (Va.) 276.

In Lynde v. Hough, 10 the lease contained a clause not to let or underlet any part or the whole of the demised premises without written consent of the lessor, under penalty of forfeiture. The lessee, E. C. Hough, without license or consent, assigned his interest to H. R. Hough. Plaintiff sued to recover possession and got a verdict for $4,000.

The Court held that the assignment of his right and interest in the lease without the consent of the plaintiff was not a breach of the covenant not to underlet. Dumpor's case is not denied and the case turns on the breach being an assignment of the term, and not an underletting.

Seaver v. Coburn11 was an action for breach of covenant not to underlet or permit any other person to occupy certain premises. Defendant underlet to Eagle Lodge. Plaintiff accepted rent quarterly for six years. It was held that as

"the use by Eagle Lodge has been subsequently sanctioned by the plaintiff by receiving from them the quarterly payment for rent, and if, as to such use, there was a full waiver of the breach of covenant 'not to permit any other person to occupy,' that would be no bar or defense to an action for another and distinct breach, that had not been waived."

All the above cases except Lynde v. Hough are waivers of breaches of covenants or conditions after breach, which is a different thing from giving a license to a tenant who has not broken a covenant, as is the case in the question under consideration, which distinction is made in Doe v. Bliss.12 The waiver of the breach of a condition reaffirms the lease as it was before the breach. The other doctrine is stated in 1 Taylor on Landlord and Tenant, § 410, as follows: "When a license to assign or underlet has once been given, the condition is thereby discharged, and no forfeiture is

incurred by any subsequent alienation; for a proviso, or condition, cannot be divided or apportioned by act of the parties." Where there is a mere condition and no covenant, a license discharges all restriction; but if there is a covenant with a proviso of forfeiture super-added, the latter only is discharged.

In Dumpor's case,13 there was a bare condition, not a covenant. The two cases, Doe v. Clark, 8 East. 185, and Doe v. Hawke, 2 East. 481, merely attempted to state that case; both were dicta, and in the former case the covenant was against underletting. And in Dickey v. McCulloch,1 it was held that the condition was discharged, but that an action still lay on the covenant. The reason for this will appear on referring to the leading case, which went on the insusceptibility of a condition to be apportioned, while a covenant may be. Note 4, § 410, supra.

This doctrine that there is no difference between a license given to assign or to sublet is correct, and in harmony with it is the statement in 24 Cyc. 962, 967, concerning the right to assign or sublet in the absence of contractual restrictions, which cites Schenkel v. Lischinsky,15 which held that an agreement by a lessee to convey a lesser interest than he himself possessed is not an agreement to assign a lease, but is an agreement to sublet and in the absence of a prohibition against subletting in the original lease, is enforceable.

A license to assign or a license to sublet is a license in either case, which in itself has the same characteristics in law in each case, although the act to be done in each is different. A license is merely a permission to do an act, or authority to do some act, as stated in Clifford v. O'Neill.16

The leading case in New York on the question under discussion is Siefke v.

17

Koch, which case has been cited but once. In the syllabus it is said:

"The consent of the landlord or lessor that the lessee may assign the lease to another operates as a discharge thereafter of the covenant that the lease should not be assigned without the lessor's consent." In the opinion, the Court says:

"The consent of the plaintiff (lessor) that Krakenbuhl, the lessee, might assign to the defendant (assignee), operated as a discharge thereafter of the covenant that, the lease should not be assigned without the plaintiff's consent, and the defendant took by the assignment the remaining interest in the premises, free from the restraint of the condition."18

In other states this doctrine is followed as follows: Where there is a condition in a lease against the assignment of the term without the consent of the lessor, and such consent is given to one assignment without any restriction as to future assignments, the condition is waived altogether, and the assignee may assign the term without the consent of the lessor.19

If the lessor consents to an assignment of the lease (where the lessee covenants that he will not assign without the lessor's written consent), or if he waives the lessee's breach of condition against assigning, the covenant is extinguished in the absence of statute to the contrary.20

Where a lease contains a covenant against assignment, and the restriction is once removed, it operates as a removal of the restriction forever.

"It is questionable whether in any case such a covenant would be enforced so as to produce forfeiture. It is a restraint on alienation and therefore against the policy of the law.""

UNPUBLISHED LAW.

Largely by reason of much iteration and reiteration, it has come to be assumed that justice is hag-ridden by too much case law. So seriously has the legal profession and the judiciary accepted this as a postulate that various revolutionary expedients and devices have been evolved and encouraged

to meet the "evil." Some of these efforts have had a beneficent effect, vide: the agitation for a shortened opinion, as an example. On the other hand, some have not resulted satisfactorily, and justice is the loser by their sanction and adoption. It is of one of these latter in particular-the memorandum decision—that I desire to provoke discussion.

In an address to the Judicial Section of the American Bar Association at its annual meeting in Boston this year, H. E. Randall, of the West Publishing Company, expressed some valuable thoughts and gave some valuable data on the matter of law reporting. Among other things, he explained the functioning of the selective system for decisions. This seems to be a plan by which the judges of appellate courts, or committees of lawyers for them, designate only certain decisions for publication in the official law reports. The balance are not officially printed. According to him, this method of "reducing" the law had vogue in Kentucky and in Nebraska and even now is in operation in England. The consequence, as he graphically explained, was that irregular (not nefarious) methods were (and in England are) used to get the contents of the records in the suppressed cases before the lawyers and nisi prius judges, and then these decisions became indirectly law by citation and recognition, although, so to speak, born under the bar sinister. No elimination of matter, and much confusion of application and use, therefore, took place.

Now the point I wish to make and I make it as a practicing lawyer-is that clients employ lawyers to advise them as to

the law. It is highly moral, and unquestionably sound, to urge that the end of the law is justice. Nevertheless, it is demonstrably clear that the law, being an enunciation of general rules, must very frequently work injustice. As long, however, as the law is certain, men may define the boundaries of their conduct. When it becomes uncertain, even lawyers cannot advise them.

Certainty is therefore the prime purpose or value of the law, and justice only second. In insisting upon the need of some certainty I am but following in the tracks of Mr. Frederick Coudert, as made by his essay on "Certainty and Justice."

Certainty can only be gained for the law by making the law known or knowable. If by no amount of address and application can a lawyer determine the state of the law, then indeed is Justice blind, then indeed are her scales loaded. In order to render the law known, and, as a corrollary, certain, it must be published. In the instance of selective decisions, it does, at least, get published, "after dark" so to speak. Because the memorandum decision does not even purport to publish the law-although it makes it-it is very considerably more vicious than the other plan.

With all reasonable and enlightened attempts to solve the problem presented by the burden of case law I am in sympathy. Brief and concise opinions are especially appealing to the practitioner. Contrary to the general condition of affairs with relation to the increased length of opinions engendered by the habit of loose dictation and the typewriter, I find that our Florida Supreme Court has in recent years pretty faithfully wedded itself to brevity. The earlier reports of the State are loaded with tremendous and heavy opinions that dishearten and obfuscate the lawyer. Presentday opinions of the court are much more pithy and much less discursive. Encyclopedias and texts to the contrary-they do not seem to have consulted or referred to Florida decisions upon many of the points. to which they have spoken-these latterday decisions of the Florida court display learning, good reasoning, and, as often as

is usual with similar courts in other jurisdictions, sound law. Our court is, however, unfortunately addicted to the course of memorandum decisions. True the Supreme Court of the United States and many other highly respected courts have fallen into a like habit, but that cannot sanctify or justify it or relieve it of its odium.

The excuse for the practice seems to be that it is a remedy or specific for the fatty degeneration of present-day case law. Were it so, it is in reality a parasite more noxious than the pest it attacks. I am not sure, however, that the case law problem is so serious as it is described to be. Supposing that there exists an oppressive bulk of case law, what harm does it do? It is my experience that the lawyers in large cities rarely have extensive libraries. They appear to rely mainly on general bar association libraries and to do business on a very light office library equipment. Those first-class firms that do indulge in many books have incomes upon which a few sets of reports more or less can make little impression We country lawyers are differently situated. Yet many of us make a living with a very scanty showing of shelves, and, again, those of us who want a good working supply of authorities seem to be able to get them furnished to us without being reduced to penury. In fact, it is only with respect to the reports of cases in other jurisdictions than our own that the extent and cost of case law can be regarded as onerous. Admitting that, what lawyer finds that these "foreign" citations have even their legitimate weight as persuasive authority before the nisi prius judges? Only when it comes to Supreme Court briefs do they come into their own, and, even here, they yield readily to distinction and difference. Standing upon a separate base of statute and custom law, they must do so. In this state of things, can a little-considered plethora of case law from other jurisdictions compensate for a reduction of the invaluable and eagerly wanted case law of the sovereign jurisdiction where the lawyer practices? Surely everyone will concede that, in the infinite multitude of legal states of fact, the more

points that have been clarified by final and authoritative decision from the court of last resort in a jurisdiction, the more certain is the law of that jurisdiction. In any event, it must be apparent that the key to the objectionable mass of case law is a perfect digest system rather than less case law.

Merely to condemn the memorandum opinion in a general way is not enough. I want to point out its two chiefest faults.

One fault-and it is one upon which I need not dilate, because it is not essentially a fault, but rather is simply an abuse—is that it affords opportunity to the appellate court to evade its duty. Under cover of the memorandum decision, a Supreme Court may reverse itself back and forth, it may avoid troublesome questions, it may leave, unsolved, matters of substantive doctrine and adjective practice very vitally useful to the bar of the State. This is a danger which only the conscience of the court can regulate. We shall leave it without more than this advertence thereto.

The other fault is that it creates unpublished law. A case goes up from a particular circuit or district. The lawyers in the case, and often several others, and the judge know what the record is and what is the principal point involved. The lower court is affirmed by memorandum decision. That memorandum decision makes law for that circuit or district. The judge knows that he has been upheld in his ruling by the appellate court. He regards the case as a precedent. But not all or many of his own bar know the significance of the case. When they advise clients they do so at their peril. The reports show nothing decided-yet something has been decided. Stare decisis intervenes. To expatiate upon the embarrassment of such a situation to a lawyer from another circuit or from the same circuit or district unfamiliar with the facts

and points in this case is needless.

A nisi prius judge will often readily reverse himself, with reference to rulings on similar points in other cases, where his ac