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1812.

THI

BORASTON against GREEN.

HIS was an action on the case, in which the first count stated that the defendant, on the 1st of January 1806, and from thence till Lady-day 1810, was the tenant and occupier of a certain farm and lands, &c. in the parish of Stoke St. Milborough, in the county of Salop, which he held as tenant from year to year for so long as he and his landlord pleased; such year ending at Ladyday. That the defendant quitted at Lady-day 1810 the said farm and lands, &c., and ceased to be tenant thereof; and that the plaintiff was the next succeeding and in-coming tenant and occupier of the said farm, &c. That long before and at the time when the defendant entered upon and quitted the said farm, &c. there was and still is an ancient custom within the said parish, that every tenant of any farm and lands within the same parish holding from year to year, such year ending at Lady-day, and who hath sown any of his lands with wheat on a clover brush at the wheat seedness next before the expiration of his tenancy, and hath afterwards reaped the wheat growing on such lands as and for a part of his away-going crop, hath been used and accustomed and of right ought to have and take to his own

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summer fallownured, &c. and

ed and well ma

at harvest to reap and carry away the

same:" for neither is trover the proper

action to try a question as to the right to the land, nor does the proper remedy for any mismanagement of the land during the former term appertain to the in-coming tenant, but to the landlord. And however the in-coming tenant might maintain an action against the off-going tenant for a breach of the custom of husbandry in the place, in not leaving one-third of the away-going crop of wheat sown upon a clover brush; yet the custom of the country could have no place where the off-going tenant held under a lease expressly making a different provision in respect of the away-going crop, or where he continued to hold over after the expiration of such a lease without coming to any fresh agreement with his landlord, by which he must be taken to hold under the same terms.

use

1812.

BORASTON against GREEN.

use two-third parts only of such wheat, and to leave the other third for the in-coming tenant. And then the plaintiff averred that the defendant, at the wheat seedness next before the expiration of his said tenancy, and of his so quitting the said farm, &c. sowed 50 acres of the said land with wheat on a clover brush; and that afterwards, and whilst the plaintiff was the tenant of the said farm, &c. to wit, on the 1st of August 1810, the defendant cut down and reaped the wheat growing on the said lands so sown by him; but did not leave one-third part of the wheat for the plaintiff as such in-coming tenant, but took and carried away the whole, and converted the same to his own use, contrary to the custom. There were other counts laying the like custom in case of tenancies for term of years ending at Lady-day: and there was another count in trover for so many sheaves of wheat in the straw, and so many quarters of wheat and loads of straw to all which the general issue was pleaded.

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At the trial before Mr. Serjt. Marshall, who sat for Mr. Justice Lawrence, at Shrewsbury, it was proved on the part of the plaintiff, that he entered upon the farm at Lady-day 1810, at which time there was a field of five acres in turnips, and 16 acres of clover brush. The defendant was then sowing wheat for the off-going crop on all the fallows, which were eight or 10 acres, but only on six acres of the clover brush, leaving the other 10 acres unsown. That according to good husbandry the turnips ought to have been eaten off by stock during the winter, which would have fitted the land for Lent corn in the spring. That Lent corn, and not wheat, ought, according to good husbandry, to have been sown after the turnips, and was much better for the in-coming tenant; and that the sowing with wheat was bad husbandry.

That

That the best of the turnips were drawn and carried into an adjoining piece, and were consumed there by the cattle; the rest was eaten off. That the land had been fallowed for turnips, and ploughed and manured several times in the summer of 1809. It was admitted on the part of the defendant that he had reaped and carried away all the wheat sown on the fallow, on the clover, and on the turnips. It was also proved to be the custom that the in-coming tenant should have a third of all wheat sown upon a clover brush; which was explained to be what was sown at one ploughing on clover; and that it was so called whether eaten or mown off; though eating off enriched and hardened a light soil, as this was, which made it hold the wheat better; while mowing the land impoverished it.

On the part of the defendant, a lease was proved, by which this farm was demised by Mr. Hall the landlord to one Hudson for 21 years from the 5th of April 1782; in which was a covenant by Hudson not at any time during the term to sow any part of the lands demised upon the Brush, but at all times to manage and manure them in a good and husbandlike manner, and not wilfully to impoverish and make barren the same. And a covenant by Hall, that it should be lawful for Hudson to make use of convenient pieces of land belonging to the said premises until May-day next after the end of the said term for his and their cattle to eat and spend all such hay, straw, or fodder, as should then be or remain upon the demised premises; and until harvest then next following, to fence in and take care of and preserve all such hard corn as shall be sown on the said premises the winter seedness precedent thereto, so as the same exceeded not 29 acres in the whole, and be summer fallowed, and well manured with

muck

1812.

BORASTON

against GREEN.

1812.

BORASTON against GREEN.

muck or lime; and at such harvest to reap, order, carry, and place such hard corn in a convenient part of the barns belonging to the said demised premises, and there to thresh out, &c. and carry away the same before corn harvest then next following, leaving the straw thereof upon the premises for the use of the said Hall, his heirs and assigns. That Hudson had assigned the remainder of his lease after some years to the defendant, who continued to hold after the expiration of it in 1803, the same as before, till Lady-day 1810, when he gave it up.

It was thereupon contended for the defendant, that the custom could not apply to this case, where the holding was upon a special contract, at first under the indenture, and afterwards by an implied agreement under the same terms, by which the defendant had a right to take hard corn sown, not exceeding 29 acres, as an away-going crop; and therefore that this action could not be sustained. To this it was answered for the plaintiff, that the defendant whose term was now expired had no right to take any part of the produce grown upon the land afterwards, unless by custom or special agreement: that if he disclaimed to be bound by the custom, he must make title to the corn under the terms and conditions of the covenant, which he could only do by shewing that the land so cropped (not exceeding 29 acres) had been summer fallowed, and well manured: whereas the corn taken by him was proved to have been sown partly upon a clover brush, and partly upon turnip land ploughed and sown contrary to good husbandry and the terms of the covenant. In reply, it was contended for the defendant that he was at all events entitled to the corn; and if improperly raised, he was answerable for it to his landlord; but that no question could be made of that between him and the in-coming

tenant.

tenant. The cause however was permitted to proceed; reserving leave to the defendant to move to enter a nonsuit. The defendant then went into evidence to negative the custom, which is not material to be stated and finally two questions were left to the jury: 1st, as to the existence of any custom, as stated in the special counts of the declaration; and if they found the custom, then they were directed to find a verdict for the plaintiff, and give him the value of one-third of the wheat sown upon the clover brush, which was 217. But if they thought the custom not proved, then they were to find for the defendant on the four special counts. 2dly, Whether the sowing of wheat on turnip land at the season and in the manner described by the plaintiff's witnesses was contrary to good husbandry: and if so, then they were instructed that by the construction of the covenant the defendant could have no claim to the way-going crop from land so sown, and were directed to find for the plaintiff upon the 5th count, in trover, and give him the value in damages of the crop so sown and taken away by the defendant : otherwise, to find for the defendant. The jury found for the plaintiff on both the grounds submitted to them, and gave him 637. in damages.

Jervis moved in the last term to enter a nonsuit, or to reduce the damages from 847. to 217. He contended, 1st, that the plaintiff could not recover on the custom, because it appeared that the defendant had held under a lease, which being a special contract between the parties, excluded any implied contract under the custom; and when the defendant held on after the expiration of the lease, it must be taken, in the absence of any evidence to the contrary, that he held on upon the terms con

1812.

BORASTON

against GREEN.

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