crops unsevered at the expiration or determination of a tenancy, the law vests them in the landlord as part of the land (s). It is rarely that the tenant is not assisted either by custom or express agreement. Where, however, it is expressly agreed that a tenant shall have an away-going crop, such agreement confers on the tenant a mere easement, and does not give the tenant the right of possession of the land, as against his landlord, after the expiration of the tenancy, but the tenant at most can only go on the land for the purposes of cultivating or reaping the crop (t); though by custom the tenant may be entitled to retain possession of a part of the premises, but the proof of such custom lies on the tenant (u).

all

Wigglesworth v. Dallison (x) is one of the leading cases in regard to a custom of this kind. It was trespass against a late tenant for cutting corn, and the defendant justified under a custom in the parish, "that every tenant and farmer of any lands within the same parish, for any term of years which hath expired on the first day of May in any year, hath been used and accustomed and of right ought to have, take, and enjoy to his own use, and to reap, cut, and carry away, when ripe and fit to be reaped and taken away, his away-going crops; that is to say, the corn growing upon the said lands which hath, before the expiration of such term, been sown by such tenants upon any part of such lands, not exceeding a reasonable quantity thereof, in proportion to the residue of such lands, according to the course and usage of husbandry in the same parish, and which hath been left standing and growing upon such lands at the expiration of such term of years." The court decided that the custom was good, and constituted a defence. Lord Mansfield observed, "It is just, for he who sows ought to reap; and it is for the benefit and encouragement of agriculture. It is, indeed, against the general law concerning emblements, which are not allowed to tenants who know when their term is to cease; because it is held

(s) As to fixtures, ante, 363.

(t) Strickland v. Maxwell, 2 C. & M. 539; 4 Tyr. 346, S. C.

(u) Caldecott v. Smythies, 7 Car. & P. 808.

(x) 1 Dougl. R. 201; affirmed in error, id. 207, note 8. When the in

coming tenant cannot maintain trover for the value of the away-going crops, Boraston v. Green, 16 East, 71. Trover against out-going tenant for improperly cutting and removing crops, Davies v. Cannop, 1 Price, 53.

to be their fault or folly to have sown when they knew their interest would expire before they could reap. But the custom of a particular place may rectify what otherwise would be imprudence or folly. The lease being by deed does not vary the case. The custom does not alter or contradict the agreement in the lease; it only superadds a right which is consequential to the taking, as a heriot may be due by custom, although not mentioned in the grant or lease."

And upon the same principle it has been held, that a custom that a tenant may leave his away-going crops in the barns, &c. of the farm for a certain reasonable time after the expiration of his term and after he has quitted, for the purpose of threshing, &c., is good in law; and that the terms of the tenancy, as to such occupation of the barns so far continue, that the landlord may distrain the corn so left for rent, even after six months from the end of the term, independently of the stat. 8 Anne, c. 14, s. 16 (y).

The claim to a remuneration for tillage or cultivation of arable land, the benefit of which cannot have been derived by the outgoing tenant, and which will be received by his successor, may also be supported by custom as well as agreement; and has received the favourable notice of the courts. Thus, in Dalby v. Hirst (z) it was decided that an usage for the off-going tenant of a farm in a particular district to bestow his work, labour, and expense in manuring, tilling, fallowing, and sowing his lands according to the course of husbandry, and for the landlord to pay him a reasonable compensation in lieu thereof, is a valid and reasonable usage; and it is not material that the tenant holds upon a written contract, provided it does not either expressly or impliedly exclude the custom (a).

The right to carry away, or be paid for, straw and hay, the produce of the land, and which is thereon in the usual course of husbandry, at the expiration of the tenancy, is also usually governed by the custom or usage of the surrounding country. If no such usage be proved, and no agreement upon the sub

(y) Beaven v. Delahay, 1 Hen. Bla. 5. See 2 Bac. Ab. 234, tit. Customs, (C); Knight v. Bennett, 11 Moor, 227; 3 Bing. 364, S. C.; Nuttal v. Staunton, 4 B. & C. 51.

(z) 3 Moor, 536; 1 B. & B. 224,

S. C.

(a) Senior v. Armytage, 1 Holt, N. P. R. 197. And per Parke, B., observing on this case, in Hutton v. Warren, 1 Mee. & W. 477.

ject exists, the tenant would, it seems, have the power of removal (b).

In regard to manure and dung, the produce of the land, the removal seems to be so decided a breach of the rules of good husbandry, which a tenant is impliedly bound to observe, that, except by express contract, the tenant never has the right of removal, and is not often entitled by custom to a compensation for them (c). Where by agreement the tenant is to be paid for manure, &c. at a valuation, the property in it remains in him until the valuation, &c. (d).

All these customs may prevail, whether the tenancy were created by parol, or by writing, or specialty. But they cannot, as we have already remarked, have any application to instances in which the express terms of the tenancy are inconsistent with such customs (e); or the parties have prescribed rules (having relevance to the subject to which those usages apply) of such a nature that the parties must be taken to have contemplated that the usages of the country would not control or regulate the holding, or the rights of either party at the end of the tenancy (ƒ). But if a lease contain no stipulations as to the mode of quitting, the off-going tenant is entitled to his awaygoing crops according to the custom of the country, even though the terms of holding be inconsistent with such custom. Thus, where a tenant held on the terms that the wheat land should be summer fallowed and well manured for the crops; and by the custom a tenant who had sown his land with wheat, after a crop of turnips, at the wheat seedness next before the expiration of his tenancy, was entitled to one-half of the wheat so sown; it was held that the custom should prevail, and that it gave the tenant a right to a moiety of the crop (g).

(b) Woodf. by Harrison, 526, 447; Furbre v. Andrews, Winchester Summer Assizes, 1788, id.; Gough v. Howard, Peake's Addl. Cases, 197. When the in-coming tenant may detain the hay until manure be brought on according to terms of letting, Smith v. Chance, 2 B. & Ald. 753. Inde bitatus assumpsit for value of hay, &c., on valuation, &c., Leeds v. Burrows, 12 East, 1; Poulter v. Killingbeck, 1 B. & P. 397.

(c) Woodf. by Harrison, 3d ed. 417, 429, 494; Gough v. Howard, Peake's Addl. Cases, 197; Ex parte Nixon, 1 Rose, B. L. 446.

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(d) Beatty v. Gibbon, 16 East, 116.

(e) Therefore a tenant, whose tenancy is determined after Lady-day, by an agreement silent as to awaygoing crops, is not entitled to such crops under a custom which gives to the tenant such crops upon a regular expiration of a Lady-day tenancy; Thorpe v. Eyre, 3 Nev. & Man. 214; 1 Ad. & E. 926; and see Caldecott v. Smythies, 7 Car. & P. 808.

(ƒ) Ante, 26, 109.

(g) Holding v. Pigott, 5 M. & P. 427; 7 Bing. 465, S. C.; and see Hutton v. Warren, 1 M. & W. 466; ante, 26, 109.

Where a farm was taken for fourteen years, and the tenant was to pay a given sum for tillages and improvements done before he entered, and to receive the value of the tillages, &c. which he should leave on the farm, according to a valuation to be made at his quitting; and the tenant in the first year said he would leave, and the landlord said he might; but no new bargain was made as to his tillages and improvements; it was held that he was not entitled to the value of the tillages, &c. he left on so quitting (h).

7thly. OF THE COMMON COUNT FOR USE AND OCCUPATION (i).

This count is founded on the statute 11 Geo. II. c. 19, s. 14, by which it was enacted, that "it shall be lawful for a landlord (k), where the agreement is not by deed, to recover a reasonable satisfaction for the lands, tenements, or hereditaments (1) held or occupied by the defendant, in an action on the case, (i. e. promises, though debt also lies) (m), for the use and occupation of what was so held or enjoyed; and if in evidence on the trial of such action any parol demise, or any agreement, (not being by deed), whereon a certain rent is reserved, shall appear, the plaintiff in such action shall not therefore be nonsuited, but may make use thereof as an evidence of the quantum of the damages to be recovered."

Before this statute the landlord's remedy by action for his rent must have been upon the demise, and he could only recover according to it. The statute gave to landlords the action for use and occupation in order to avoid the difficulties of suing upon a demise; but it never was intended that the new action should be maintainable where the latter was not (n). If therefore there be an eviction or a surrender by operation of law of a tenancy, whilst a quarter's rent is current, an action for use and occupation

cannot be maintained to recover a proportion of the rent from the preceding quarter-day to the time of eviction or surrender, &c.(o). And where a tenant, at a rent payable half-yearly, against whom a fiat of bankruptcy issues during a current half-year, delivers up possession of the premises to his landlord, according to the 6 Geo. IV. c. 16, s. 75, he is not liable to be sued for use and occupation for the portion of the half-year prior to the fiat (p). And we have already seen that if there be a parol or other demise, an action for use and occupation cannot be sustained, unless there be an entry and some occupation, though for an hour only; if there be that, it need not continue, for the entry perfects and constitutes the holding (q).

Still, however, where there is a written agreement for the tenancy, it must, generally speaking, be produced, and also proved by the plaintiff at the trial, duly stamped as a demise. This subject has been already considered (r).

The common count for use and occupation is maintainable, although the defendant, to whom the premises were let, did not himself occupy them, but let them to another person (s); or they were occupied only by the servants of the defendant (t).

Where the tenant is bound to pay the rent, notwithstanding the destruction of the premises by fire, &c. it is recoverable, even before the premises are rebuilt, in this general form of action (u). Actual occupation is not necessary; a legal or constructive possession suffices (x). There must, however, be an occupation by the defendant, and therefore the assignees under a deed of assignment by an insolvent for the benefit of creditors, who enter merely to sell, and do not hold themselves out as occupiers for another purpose, are not liable in this form of action (y), nor does the entry of one of two executors enure so as to make them both liable for use and occupation (≈).

(0) See preceding note (n); ante, 330. (p) Slack v. Sharp, 3 Nev. & P. 390; 2 Jurist, 839; ante, 265; and this though the tenant holds under a parol demise.

(q) Ante, 320; Woolley v. Watling, 7 Car. & P. 610, where the agreement was in writing for a taking from a future day; see also Jones v. Reynolds, 7 Car. & P. 335; 6 Nev. & M. 441; 4 Ad. & E. 805, S. C.; Edge v. Strafford, 1 C. & J. 391; 1 Tyr. 293, S. C.; How v. Kennett, 3 Ad. & E. 666.

(r) Ante, 126; and Fry v. Chapman, 5 Dowl. P. C. 265.

(s) Bull v. Sibbs, 8 T. R. 327. (t) Bertie v. Beaumont, 16 East, 33. (u) Baker v. Holtpzaffell, 4 Taunt. 85; Izon v. Gorton, 7 Scott, 537; 5 New Cases, 501, S.C.; Ibbs v. Richardson, 1 P. & Dav. 618.

(x) Pinero v. Judson, 6 Bing. 206. (y) How v. Kennett, 3 Ad. & E. 659.

(2) Nation v. Tozer, 1 C., M. & R. 172; 4 Tyr. 561, S. C.; ante, 272.