PRIVILEGE OF RENEWING LEASES. Leases are sometimes made for a certain term with a privilege to the lessees to renew them for an additional term. Such a lease is only a lease for the first term, and there must be a new lease to demise the premises for another term, if the lessee elects to take a renewal. Hunter v. Silvers, 15 Ill. 174.; Thiebaud v. First Nat. Bank, 42 Ind. 212. If the lessee desires to retain the premises, he must, unless prevented by some accident or mistake, make his election during the continuance of the original term. If he could make his elec

tion after the expiration of the term, then he would have a reasonable time thereafter in which to make his election, for when a right is given and no time is prescribed for its exercise, a reasonable time is allowed. Such a construction of the lease is not permissible, for it would extend the lease beyond the original term, while by its language it is limited to that term. It follows, therefore, that the tenant can have no right in the premises as against the landlord unless he makes his election during the original term. Renoud v. Daskam, 34 Conn. 512; Thiebaud v. First Nat. Bank, 42 Ind. 212. If the lease does. not stipulate for any special form of a notice of an election to take another term, no particular form of notice is required by law. In such case the intent and understanding of the parties, as manifested by their acts and words, is the controlling consideration in determining whether the tenant has made his election, and given due notice thereof to the landlord. Clarke v. Merrill, 51 N. H. 415.

If the tenant merely holds over without notifying the landlord of his intention to take another term, he will not thereby obtain as against the landlord any right in the premises, and the latter then has the option whether to demand the premises or to treat the lessee as still tenant of the premises. Dolese v. Barberot, 9 La. Ann. 352; Thiebaud v. First Nat. Bank, 42 Ind. 212. By holding over the tenant does elect to take the premises either as a tenant from year to year, or from month to month, as the case may be, or for another term under the lease. Since the law creates a tenancy from year to year, only in the absence of an agreement, the holding is referred to the contract and he is deemed to elect to take the premises for another term. Kelso v. Kelly, 1 Daly, 419; Clarke v. Merrill, 51 N.

H. 415; Kramer v. Cook, 73 Mass. 550; Woodcock v. Roberts, 66 Barb. 498. His continuance in possession is equally effective as a notice of his intention to extend the lease, as a surrender of the key is of his intention to terminate the tenancy. Whether he has made an election or not is always a question of fact and not of law. Bradford v. Patten, 108 Mass. 153. But if he has made it, he may, at the option of the landlord, be compelled to accept a new lease. Kelso v. Kelly, 1 Daly, 419.

The requirement that the lessee shall give notice of his election to take another term before the expiration of the original term, is for the benefit of the landlord, and he may therefore waive it. Bradford v. Patten, 108 Mass. 153; Kramer v. Cook, 73 Mass. 550. An acceptance of the rent after the expiration of the original term is a waiver of the right to a notice. The lease will therefore be presumed to be renewed, if the tenant holds over and the landlord accepts rent after the original term has expired. Woodcock v. Roberts, 66 Barb. 498; Schroder v. Gemeinder, 10 Nev. 355; Kramer v. Cook, 73 Mass. 550; vide Bradford v. Patten, 108 Mass. 153; Dolese v. Barberot, 9 La. Ann. 352; Thiebaud v. First Nat. Bank, 42 Ind. 212.

There is another form of a lease which differs in some respects from that which has thus far been considered. For instance, a lease may be for a certain term with a privilege to the lessee, to hold for a longer term. A lease for one year with the privilege of three years, is an example of this class. The least limit of such a term is one year; but at the option of the tenant the lease may become a lease for three years. Such a provision for an option

to take a longer term under the lease is not like a covenant for a renewal of the lease at the option of the lessee. A renewal contemplates the execution of some further instrument by the lessor, and generally by both lessor and lessee. But where the provision is for a longer term under the lease, the lease itself is as to the additional term a lease de futuro requiring only the lapse of the preceding term and the election of the lessee to become a lease in presenti. Chretien v. Doney, 1 N. Y. 419; Kramer v. Cook, 73 Mass. 550; Delashman v. Berry, 20 Mich. 292. In case of such a lease, it is not necessary that any notice of the election shall be given to the

landlord. Kramer v. Cook, 73 Mass. 550; Delashman v. Berry, 20 Mich. 292. The actual continuance of the occupation is conclusive evidence of an election to take the premises for the longer term. It is both a declaration and an act; the expression of a wish and its execution. If the tenant elects to remain at all after the expiration of the first term, he will be held to have elected under and according to the terms of the lease which gives him no right to elect a term for any other period except the optional term therein provided. If, for instance, the optional term is for two more years, he will be held as a tenant for that term, and cannot claim that he elected to take a shorter term. Delashman v. Berry, 20 Mich. 292; Kramer v. Cook, 73 Mass. 550. O. F. B.

Appeal from Lee District Court.

On the second day of December, 1872, Richard D. Arthur was by the judgment of the District Court of Fayette county sentenced to the penitentiary of this state for the term of 10 years, for the crime of larceny from a building in the night time. On the 4th day of January, 1876, His Excellency, Samuel J. Kirkwood, then governor of this state, granted to said Arthur a conditional pardon in these words: "This pardon is granted upon the following condi tions, and acceptance and release under this instrument shall be an acceptance of each and all of such conditions, viz.: First, said R. D. Arthur shall, during the remainder of the term of his sentence, refrain from the use of intoxicating liquors as a beverage. Second, he shall, during that time, use all proper exertion for the support of his mother and sister. Third, he shall not, during said term, be convicted of any offense against any of the criminal laws of this state. Should said Arthur violate

either of these conditions, he shall be liable to summary arrest upon the warrant of the governor of the State for the time being, whose judgment shall be conclusive as to the sufficiency of the proof of the violation of the first and second conditions, and to be confined in the penitentiary of the state for the remainder of the term of his sentence, and this instrument to be summarily revoked." Said pardon was thus endorsed: "I accept the within pardon with all its conditions. Signed, R. D. Arthur." And upon the face of said instrument the following appears: "I subscribe to the above."

On the 26th day of March, 1877, His Excellency, J. G. Newbold, then governor of this state, issued his warrant setting forth said conditional pardon, and reciting the violation thereof as follows: "And whereas said Arthur has, as I have been informed and am convinced, violated the first of the conditions of the pardon aforesaid by drinking intoxicating liquors repeatedly, so much so as to become intoxicated, and moreover has been guilty of criminal practices, which, while not of themselves constituting a violation of said condition, are yet of such a nature as to aggravate his offense in violation of said first condition." Said warrant proceeds as follows: "Now, therefore, by virtue of the authority vested in me by law, and by reason of the reservation in said condititional pardon, and of the violation thereof, I, J. G. Newbold, Governor of the State of Iowa, do hereby revoke said conditional pardon, and do remand said Richard D. Arthur to the penitentiary of the state, there to be confined for the remainder of the term for which he was originally committed to said penitentiary, and I do hereby require all peace officers within the state to whom this may be shown to aid and assist in arresting and returning said Arthur to said penitentiary." In pursuance of said warrant the said Arthur was arrested and returned to the penitentiary.

He thereupon instituted this proceeding in habeas corpus, setting forth the foregoing facts and claiming that his imprisonment was illegal on the grounds:

1st. Because the governor has no power to limit a pardon and make it dependent upon conditions, and that the pardon is absolute and the conditions void.

2nd. If the governor has power to pardon conditionally, judicial authority must be invoked and determination had upon the question as to whether or not he has forfeited his liberty by the violation of the conditions of his pardon. The governor having no judicial power in this respect cannot issue a warrant of arrest on a mittimus to imprison, such authority belonging exclusively to the courts.

There was a demurrer to the petition upon the ground that the prisoner was pardoned conditionally, and by the terms of the grant he was to be re-incarcerated in case of violation, and whenever the executive should so determine, and defendant is justified in holding petitioner by the warrant, a copy of which is set out in the petition. The demurrer was overruled and the petitioner was discharged. Defendant appeals.

T. F. McJunkin, Attorney General, and D. N. Sprague, District Attorney 1st Judicial District, for appellant; F. H. Semple and T. H. Craig, for appellee.

ROTHROCK, C. J., delivered the opinion of the

court:

The first question presented is: Has the Governor of the state power to grant a conditional pardon? The constitution, sec. 16, art 4 provides: "The governor shall have power to grant reprieves, commutations and pardons after conviction for all offenses except treason and cases of impeachment, subject to such regulations as may be provided by law." The only restrictions upon the pardoning power imposed by law relate to pardons for murder in the first degree. Code § 4712. As to all other crimes the power to pardon is given by the constitution unrestricted by any statute.

In vol. 4, p. 407, of Blackstone's Commentaries, it is said: "A pardon may also be conditional, that is, the King may extend his mercy upon terms which he pleases, and may annex to his bounty a condition either subsequent or precedent, on the performance whereof the validity of the pardon will depend; and this is by the common law." This rule has been followed by adjudications in England and has been so generally adopted by the courts of this country, under constitutions providing an unrestricted pardoning power, that the law must now be regarded as settled, that the executive may annex to a pardon any condition precedent or subsequent provided it be not illegal, immoral or impossible to be performed. People v. Potter, 1 Parker, 47; 1 Bishop on Crim. Law. §§ 711,712; U. S. v. Wilson, 7 Pet. 150; Ex parte Wells, 18 How. 307; Flavell's case, 8 Watts & Serg. 197; State v. Smith, 1 Bailey (S. C.) 283.

The remaining question in the case is as to the effect to be given to a conditional pardon. In State v. Smith, supra, it is said: "A pardon ex vi termini pre-supposes a wrong done or an offense committed, and forgiveness of the party injured; and as the act of pardoning must necessarily be voluntary, the injured party must have the power of prescribing the atonement to be made; and it necessarily follows that the offender has the right to accept or not to accept the terms proposed. He may prefer to make the reparation demanded by law for the wrong done or the offense committed, or the atonement substituted, at his election."

The petitioner in this case was serving a sentence imposed by the law for a crime committed. He had no legal right to demand a release from imprisonment. The pardon offered to him was an act of grace or favor upon the part of the state by its executive. He was free to accept the pardon with its conditions, or to reject it and serve out his sentence. He chose the former; accepted the pardon, and stipulated that for a violation of the conditions the instrument might be summarily revoked by the governor and he should be remanded to the penitentiary for the remainder of the term of his sentence.

The conditions imposed are not illegal, immoral or impossible to be performed, and to enforce them

deprives the prisoner of no legal right. It may further, with propriety, be said that if the governor issued his warrant for the arrest and imprisonment of the petitioner upon an insufficient showing that he had violated the condition of the pardon, and he should be required to serve out the remainder of his term, he will only perform that which the law, by his sentence, solemnly adjudged to be just.

The court below overruled the demurrer upon the ground that the governor could not without notice to the petitioner and without a hearing determine the condition broken, and upon his warrant imprison in the penitentiary, and that he could not exercise the judicial functions necessary to determine the question, because the constitution gives this power to the courts alone,

Certain adjudicated cases were relied upon as holding that a violation of a conditional pardon "should be judicially determined, and the execution of the sentence enforced by the court pronouncing it, or some other court of competent jurisdiction." People v. Potter, 1 Parker, 47; 9 Ind. 20; Com. v. Fowler, 4 Call. (Va.) 35. Without entering into a discussion of the questions which are determined in these cases, it is sufficient to say that the instrument in the case at bar is unlike any to which our attention has been called. It expressly provides that the governor may, by his warrant, revoke it upon such showing of a violation of the condition as he may deem sufficient. Upon its revocation the legal status of the petitioner must be regarded the same as it was before the pardon was granted. It must be remembered that the pardon was an act of grace. The petitioner had no right to demand it. It was founded on no right which he could enforce in any court. What he accepted was in the nature of a favor or gift. It was not such a contract as entitled him to have a judicial determination of forfeiture in the face of his stipulation that the governor might revoke it upon such showing as might be satisfactory to him.

We think the demurrer should have been sustained, and that the petitioner should have been remanded to the penitentiary.

2. DUTIES OF DRIVER OF CAR AND PEDESTRIANS. -A driver is not bound to regulate his speed at such a rate as may be necessary to avoid harm to persons crossing the road in an unreasonable and improper manner. It is as much the duty of persons crossing the street to look out for vehicles as it is the duty of the driver to look out for those crossing the road.

3. WHERE THERE HAS BEEN MUTUAL NEGLIGENCE, and the negligence of each party was the proximate cause of the injury, there can be no recovery.

BAKEWELL, J., delivered the opinion of the

court:

This is an action for damages for injuries to plaintiff, caused by the negligence of the driver of one of the street cars of the defendant, which was a common carrier for hire, having railroad tracks and a line of street cars in the city of St. Louis. There was a verdict and judgment for plaintiff, from which defendant appeals.

The accident happened about half-past five o'clock on the afternoon of 9th November. It was getting dusk, but the lamps in the street were not yet lit, and one could see plainly a considerable distance. Plaintiff was lame, the left leg being shorter than the other, in consequence of a scrofulous affection of the hip joint, with which he had been attacked when a boy. He walked with a stick, was about 55 years old, and his general health had been good, with the exception mentioned, up to the time of the accident.

His testimony, as to the circumstances under which he was hurt, is that he resided on Chouteau Avenue, on which street defendent had two parallel tracks, his house being on the north side, about 55 feet west of the crossing on Jefferson Avenue. He got on defendant's car to go east on the southern branch, and, when the car arrived at a point opposite his house, he pulled the bell, the car was stopped at once and he got out; and, without looking right or left, proceeded at once directly north, across the northern parallel track, to his house. The car was of the kind called "bob tails," having its entrance in the rear, and drawn by a single mule. A car of defendant's line was, at the same time, coming west on the northern track; plaintiff did not perceive this car until it was almost upon him, because it was so close to him. He then threw up his hand. in which he held a stick, and shouted "stop." The mule turned sharp to the south side, and the edge of the car struck the plaintiff and threw him down, injuring him very severely. He was confined to bed for two months, during two weeks of which time he could not be moved, and suffered excruciating pain. He used crutches for six months, and spent for medical attendance about $150.

The plaintiff swears the car was about twenty steps off when he first saw it; that he can not say whether or not it was nearly at a stand-still when he was struck; that he did not see what the driver was doing, and does not know whether the car was drawn by a horse or a mule; that the car was coming at a gallop-at full speed-and was stopped at a distance of about ten feet from the point of the accident. He was in the middle of the track when he saw the car and tried to jump to escape, but could not

get out of the way, and was struck while jumping. The driver knew plaintiff, and, immediately after the accident, said that he had not see him.

Five other witnesses, who saw the occurrence, were examined. Hupp, examined for the plaintiff, says that the car, coming west, was about ninety or one hundred and twenty feet off when he first saw it; that it went fast, under a gallop, as near as he could see; that it did not slack up on approaching plaintiff, but went full gallop; that it went the length of the car after the collision. John Nagle and Dan Meyer testify that the car, coming west, was going full gallop-full speed-and that they did not see the driver do any thing with the brake. Dan Meyer says the car was stopped in twenty feet.

The driver of the car from which plaintiff descended was examined for defendant, but he saw nothing of the accident.

A Mrs. Belden, who was in the car going west, says it was not going particularly fast at the time, and that the car went about its own length beyond the place of the accident, and was stopped there by the brake.

Jeffries was on the front platform of the car going west, for the purpose of taking the place of the driver when they reached the turn-table, a few blocks off. He says that the driver and himself saw plaintiff when the distance of the length of the court room from him, and saw him on the track when a car-length off; that the driver pulled the lines and put on the brake, and stopped as quick as he could; that the car was going at a slow trot when it reached the Jefferson Avenue crossing; that it slacked up at that crossing in accordance with the directions to drivers to go slow at every crossing, and the mule was just getting into its trot again when the other car was about 30 or 40 feet off; that he saw plaintiff when 30 feet off; that the car could be stopped in fifteen feet, and might have been stopped before striking plaintiff, and that the driver did check up, and the witness expected plaintiff would get off the track, as he had only two steps to take to do so.

This witness says that plaintiff was not struck at all; that he fell two and one-half feet north of the track, and was off the track when he held up his cane and dropped over.

Four lengthy instructions were given at the instance of the plaintiff, and no less than thirteen at the instance of the defendant. To the law of negligence and contributory negligence, as laid down in the treatise on the subject thus compiled, the defendant does not object.

It is complained that the court erred in refusing an instruction in the nature of a demurrer to the evidence at the close of plaintiff's case, as there was no evidence introduced by plaintiff tending to show that the driver of defendant saw plaintiff or could have stopped the car if he had seen him. The record does not show that such an instruction was asked at the close of the plaintiff's case. But this is wholly immaterial. The question is not whether such an instruction would have been proper at the close of plaintiff's case, but whether at the conclusion of the whole case, the court should have taken

the case from the jury, and declared as a matter of law, that, on the whole evidence, plaintiff was not entitled to recover.

If there was a total want of evidence of any carelessness of defendant directly contributing to the injury, or if there was clear and uncontradicted evidence of negligence on the part of plaintiff directly causing the injury to himself, the jury cannot find for plaintiff, and it is the duty of the trial court to say so.

The rule in these cases is that if there has been mutual negligence, and the negligence of each party was the proximate cause of the injury, no action can be maintained. But, though there be negligence on the part of the plaintiff, yet, if, at the time of the injury, it might have been avoided by defendant in the exercise of reasonable care and prudence, an action will lie. It was certainly extreme negligence for a lame man, or for any man, to get off a street car on the side next to the parallel track, without looking to see whether another car was approaching. That negligence, of course, would excuse no one in running him down; but it does throw on plaintiff the burthen of showing as a condition precedent to recovery, that defendant, not by extreme vigilance, but by the use of mere ordinary care, might have avoided the accident, and that ordinary care was not employed. At the close of plaintiff's case, there was no evidence that defendant's driver saw plaintiff at all. It is not to the purpose that he might have seen him had he looked straight ahead. The driver of any car may have his attention momentarily diverted from the track immediately before him without failing in the strictest care. It is true that plaintiff's witnesses say that the mule was going at full speed." at a gallop, and at a "full gallop." The mere fact that a mule in a bobtail" car is permitted to gallop, is no evidence of want of ordinary care on the part of the driver; and at the close of plaintiff's case the cause might properly have been withdrawn from the jury, because, giving the utmost weight to all testimony as to every circumstance making in favor of plaintiff, he had entirely failed to prove that the accident which had been rendered possible by his own negligence, had been directly caused by the recklessness or want of ordinary care of defendant.

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The testimony introduced by defendant showed that the driver saw plaintiff before he fell; that he was probably fifty feet off when first seen, and was seen on the track when a car length off, and that the car could be stopped in fifteen feet; that plaintiff had only two steps to take to clear the track, and that it was supposed that he would do so, and the speed of the car was slackened in consequence. It is plain, therefore, that by the use of the utmost diligence on the part of defendant, the accident might probably have been avoided. To this utmost diligence, the defendant was not, under the circumstances, bound ; and, in the whole testimony, see no evidence of recklessness or want of ordinary care on the part of the driver of the defendants. It is not at all a question of the weight of the evidence. We are not balancing contradictory statements at all; but, carefully search

we can

ing the record for evidence of want of ordinary care on the part of defendant, in order that we may uphold this verdict, we are unable to find any want of ordinary care directly contributing to, or causing the injury, and, under these circumstances, we feel it to be our duty to reverse the case.

It is not to be disputed that there was evidence of some want of care on the part of the defendant. Το go fast past the crossing, contrary to general instructions in that regard from the company, was a careless act on the part of the driver; but it was not the cause of the injury. The Jefferson avenue crossing was about sixty feet from the point of collision, and had plaintiff been on the track when that crossing was reached, the driver, even if his mule was at a gallop, might well suppose, without any reckless disregard of plaintiff's safety, that he would be off the track before he was reached. Three short steps will take a man entirely across the track, which is only five feet between the rails. And a driver is not bound in the exercise of merely ordinary care, to check his horse because a man sixty feet off is seen on the track directly in front of him, nor is he bound to foresee the possibility that a man walking toward the track will attempt to cross it immediately in front of an approaching car driven at a gallop. A driver is not bound to regulate his speed at such a rate as may be necessary to avoid harm to persons crossing the road in an unreasonable and improper manner. It is is as much the duty of persons crossing a street on foot to look out for vehicles as it is the duty of the driver to look out for those crossing the street. There must, in such a case, be positive evidence of well defined negligence on the part of the driver; some evidence of some negligence will not do.

The case at bar is in many respects like that of Cotton v. Wood, decided in England in 1861. 8 C. B. 568; 7 Jur. N. S. 168. In that case an omnibus was being driven at five or six miles an hour along a crowded thoroughfare in London, on a stormy, snowy night in November, at about ten o'clock. A woman and child set out slowly to cross the There road, and were run over by the omnibus. was as much time for them to get out of the way as there was for the driver to pull up; and had they stepped forward with alacrity they would have escaped; but they hesitated and stepped backward and were run over. The driver might have seen them, because a passenger saw them; but the driver happened at the moment to be looking back. The judge at nisi prius was of opinion that there was no evidence to go to a jury, but took a verdict to avoid a new trial, and a rule having been obtained to show cause why a non-suit should not be entered, was made absolute after an The court says argument in the Common Pleas.

that it might as well be said that the persons injured negligently ran against the omnibus, as that the omnibus horses negligently ran against them. William v. Richards, 3 Car. & K. 8; Cornman v. East Co. R. R., 5 Jur. N. S. 657.

We do not render a judgment for defendant but reverse the cause, because the evidence, as presented by the record, is in some points, and