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1812

BORASTON

against GREEN.

tained in the expired lease. 2dly, That the plaintiff could not recover on the count in trover, as this form of action did not lie to try the right to land, or to the produce of land taken by the party as claiming an interest in the soil. And it was no answer to say that the crop had been taken contrary to the covenant in the lease; for that could not alter the question of property, as between the in-coming and out-going tenant, though it might subject the latter to an action of a different sort by the landlord, as for a breach of the implied agreement to cultivate the land according to the covenants in the expired lease.

Dauncey and Abbott now shewed cause against the rule; and premised that at the time when the corn was cut the plaintiff was the tenant of the farm, which the defendant had before quitted, and therefore the defendant could only entitle himself to enter on the land, and take the growing crop, by custom or by special contract; without one or other of which he would have been a trespasser, and the tenant in possession might recover the crop when severed in an action of trover. The right to the away-going crop, whether claimed by custom or special contract, would not give the off-going tenant a right to the possession of the land, but only a licence to enter and take the crop. It is clear that if there be a custom, such as is laid and proved in this case, the action lies by the in-coming tenant for the breach of it; and that would at any rate entitle the plaintiff to retain his verdict for the one-third of the wheat carried off from the clover brush. As to the wheat sown on the turnips, there was no custom to give it to the off-going tenant, and the jury have found against it. Then he could only entitle himself to

1812.

BORASTON

against GREEN.

it under a contract; but the covenant, in reference to which he claimed the right to the away-going crop, only gave it to him upon a condition, “so as the same exceeded not 29 acres, and was summer fallowed, and well manured with muck or lime;" which not having been complied with, no right vested in the defendant. The plaintiff was thereupon entitled to recover the whole value of the wheat sown on the turnips. [Bayley, J. The land belonged to the defendant when the wheat was sown by him.] If tenant at will sow corn, and afterwards he himself determine the will, he is not entitled to emblements; and tenant for life is only entitled to them, because he shall not be prejudiced by the act of God. [Lord Ellenborough, C. J. asked what authority there was for the plaintiff's recovering upon the count in trover, when the proper remedy, if any, was by an action of trespass quare clausum fregit, to try the defendant's title to enter upon the land and take the profits. The action of trespass would never be heard of again in such cases, if trover would lie for the value of the crop taken by the hand of the owner, or by the mouths of his cattle.] The plaintiff's claim by custom was found by the jury. [Lord Ellenborough, C.J. The defendant held over upon an implied contract, which excludes the custom : and by the contract, his right continued to go upon the land and take off the crop.] The legal possession of the farm must be taken to have been in the plaintiff at the time, who was in the actual occupation of all the other parts of it; and the defendant, whose term in the land was expired, had at most only a conditional licence to enter, but did not bring himself within the terms of the condition: and if he could not have protected himself against the landlord for the act of taking the crop, he could have

no

1812.

BORASTON

against GREEN.

no right against the in-coming tenant. [Lord Ellenborough, c. J. The vice of the argument is that it assumes that because the defendant did not comply with the terms of the contract under which he held the land, therefore the contract itself was nullified ! but that is not founded; the contract still subsisted, though the landlord would have an action for the breach of it.] The defendant could not take the produce of the land at all, without the condition annexed. It is clear that he could not have taken the produce of any 29 acres of the farm, but only of 29 acres of a given description, such as had been before well manured and summer fallowed, which it is not pretended was the case with respect to the land in question. The plaintiff has not received any damage from the mere breaking in and entering upon the land, but from the subsequent conversion of his property.

Jervis and Puller, contrà, were stopped by the Court.

Lord ELLENBOROUGH, C. J. The defendant held the farm upon the terms of the expired lease, which puts an end to the question. The plaintiff claims the 211. for the one-third of the wheat sown upon the clover brush, according to the custom of the country; but the terms of the defendant's holding had no reference to the custom ; for that is only a contract which the law raises in the absence of any particular contract between the parties; and here there was at one time a 'subsisting lease between them; and after that was expired the tenant must be taken to have continued to hold under the same terms; for the breach of which the landlord would have a similar remedy, varying only in the form

of

1812.

BORASTON

against GREEN.

of the action. Then as to the 631. for the remainder of the wheat, the plaintiff's argument is that the defendant being only entitled to hold under the terms of the lease, and not having complied with the condition of manuring and summer fallowing the ground on which the crop was raised, he is denuded of all right to the crop, and that having cut it down and carried it away, the incoming tenant is entitled to maintain trover for it. Now looking at the lease, it appears that there are, not one, but three conditions, on the non-performance of which it must be contended that the lease entitled the landlord or the in-coming tenant to claim as his own the growing crop sown by the off-going tenant: these are, that the quantity sown should not exceed 29 acres, that it should have been summer fallowed, and well manured with muck or lime. Then would it be contended, that if the quantity sown had exceeded the 29 acres by a pole, that would have given the growing corn to the landlord, or the in-coming tenant, as his property, and made the offgoing tenant a trespasser for entering on the land. Then would the neglect of summer fallowing, or of not well manuring the land, change the property. That is a matter we all know which is open to great difference of opinion: and is the claim of property to be in abeyance till that question is ascertained ? It would introduce strange confusion into the remedies of the law if the crops sown by the tenant were to be considered as his own, or the landlord's property, according as he had or had not complied with the terms of his covenant. We cannot per saltum treat the whole of his claim to take the growing crop as a wrong and damage done to the landlord or to the succeeding tenant, to enable them at once to bring trover or trespass; and it would be most

1812.

BORASTON

against GREEN.

incongruous to say that trover lies by the in-coming tenant for the off-going crop when severed, because there has been an inadequate performance of the conditions on which the off-going tenant was to raise and take such crop.

GROSE, J. agreed.

LE Blanc, J. not having returned into court till after the argument of the case, declined giving any opinion

upon it.

BAYLEY, J. It is not true, as stated in the declaration, that in every case of a tenancy from year to year, expiring at Lady-day, the in-coming tenant is entitled by the custom of the parish to one-third, and the off-going tenant to two-thirds of the away-going crop of wheat sown on a clover brush : it is so where there is no express agreement to the contrary; and it may be so even in the case of a deed which is altogether silent as to the awaygoing crop: but if the parties provide for it by their special contract, the right to the crop must depend entirely upon the provisions of the lease: and it will be the same where the tenant holds on after the lease is expired. That disposes of the plaintiff's claim for the 211. which is founded upon the alleged custom of the country. But then it is contended that the off-going tenant's right to the away-going crop depending upon the terms of the lease, he cannot claim it unless he has complied with all those terms by which he bound himself to cultivate the land for raising the off-going crop: and that not having done so, the in-coming tenant may maintain trover for the value of it when severed and taken away. But trover is not the form of action in which such a question can be tried. If he sow the land, it is on a

claim

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