BARCLAY and Others

against FABER.

for the defendant to be discharged out of custody on filing common bail, on the ground of a defect in the affidavit to hold to bail. That rule was afterwards made absolute. On the second day of term the plaintiffs lodged a detainer against him, having employed the same attorney as Messrs. Thuret and Co. A rule nisi was obtained to discharge the defendant out of custody as to this suit also. On shewing cause the affidavits filed against the rule fully negatived all collusion between the plaintiffs and Thuret and Co.

Gaselee and Wylde shewed cause. All collusion is negatived, and the defendant being in custody was lawfully detained by the plaintiffs. The ground, therefore, on which the motion was made, wholly fails.

Curwood, in support of the rule, relied on Spence v. Stuart (a), as precisely in point. There, as in the present case, it was ruled that the original arrest being bad, the detainer, which was founded upon it, was bad also.

Per Curiam. The case of Spence v. Stuart was de termined on a different ground. There the party arrested was privileged from arrest at the time; and it would manifestly be a violation of the privilege if he were not placed by the Court in the same situation as if no such arrest had been made; but here the party, though not properly arrested at first, was not privileged from arrest at the time, and that makes all the difference between the two cases.

Rale dischargede

(a) 3 East, 89.


Hewitt one, &c. against Bellott.


June 18th.

taken off on

to the Vice

ACTION for an attorney's bill for business done in More than one

chancery. The bill had been referred by the Vice sixth part of an Chancellor, to one of the masters of that court for taxa- having been tion, and upon the taxation more than one-sixth part taxation, the

defendant prewas taken off. The defendant then presented a petition sented a petition to the Vice Chancellor, praying that he might be al- Chancellor to lowed the costs of taxation, pursuant to 2 G. 2. c. 23. allow the costs s. 23. The defendant not having paid the residue of Pending this

proceeding, the bill, the plaintiff pending the application to the Vice the attorney

brought his ac Chancellor, commenced an action for the residue of his tion for the bill; and a rule nisi having been obtained for setting bill: Held that aside the writ and all the subsequent proceedings for the action was irregularity with costs, it appeared from the affidavits the stat. 2 G... in answer, that the plaintiffs' agents had offered, pre- having only

prohibited an viously to bringing the action, either to deduct the costs action being of taxation from the amount claimed, or to give their ing the refer

brought pendpersonal undertaking to pay those costs.

ence and tax ation.

residue of the

c. 23. s. 23.

Scarlett shewed cause against the rule, and contended that the action was properly brought, inasmuch as the statute only prohibited the commencement of an action pending the reference and taxation, and here the taxation was at an end.

Gurney and Curwood, contrà, urged that pending the application to the Vice Chancellor for the costs of the taxation, it could not properly be said to be terminated, and therefore no action could be brought.

3 C 3




against BELLOTT.

ABBOTT C. J. I am of opinion, on looking at this act of parliament, that this action is maintainable, for the Court are expressly authorised to award the payment to the attorney of the residue of his bill after taxation, and then to award the costs of the taxation to be paid according to the event. And if this were not so, it would give a defendant an opportunity of delaying the other party for an indefinite time, where more than one-sixth part of an attorney's bill has been taken off, by omitting to demand the costs of taxation to which he is entitled.

Rule discharged with costs.

June 19th.


By the custom
of the country, ASSUMPSIT.

The declaration stated, that the the out-going plaintiff being possessed of a farm, was in respect of tenant was entitled to an al. it entitled to foldage; and that in consideration that the lowance for foldage from plaintiff would relinquish and give up the possession of the in.coming the farm, and would permit him to have the benefit of a lease, how

the said foldage, the defendant undertook to make all ever, specified certain pay- due and customary allowances, as between in-coming ments to be made by the in- and out-going tenants, for and in respect of the said coming to the out-going te

foldage. At the trial at the last Sussex assizes before nant, at the time of quitting the Park J., the only question was as to the foldage, in repremises,

spect of which a certain sum was claimed by the plainthere was not

tiff, who was the out-going tenant of a Southdown farm, included any payment for foldage: Held that the terms of the lease excluded the custom, and that the out-going tenant was not eno uitled to any allowance in respect of foldaģe.

Where the lease also provided that the tenant should, during the term, fold his flock of sheep which he should keep on the demised premises, under a penalty it he omitted to do $o. Held, arguendo, that this amounted to a covenant to keep a flock of sheep upon the premises


among which



from the defendant, the in-coming tenant. It was admitted, that by the custom of the country such an allowance was usually made; but the defendant contended, that under the special provisions of the plaintiff's lease, the custom of the country was excluded. The following were the clauses relied on: " And also that the said Henry Webb shall not, during the term, carry, or cause or suffer to be carried from off the premises, any hay, straw, corn in the straw, haulm, sheaf, or fodder, muck, dung, compost; or sullage, that shall grow, arise, or be made in or upon the said demised premises; but yearly and every year, in a good husband-like manner, fodder out, lay, spread, spend, and use the same, in or upon some proper part thereof, upon pain of forfeiting three pounds for each load so carried away from the said demised premises ; and also shall and will, at all times during the said term, penn or fold his flock of sheep, which he shall keep upon the said demised premises, upon such parts where the same have been usually folded, upon the penalty of three pounds a time for each and every time that the same shall be folded off from the demised premises, or on any other part thereof, than where the same have been usually folded as aforesaid ; and also shall and will, in the last year of the said term, at the usual time for moving the dung out of the closes, carry all the dung and manure arising on the premises in the preceding year to such part or parts of the said fallowed lands or grattens as shall be appointed by the lessor, his heirs or assigns or the next succeeding tenant or tenants, and there cast the same into a mixen or mixens, he and they paying for fallowing such land and carrying out the dung, but nothing for the dung itself, and also grass in the 3 C4


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ground, and for thrashing out the corn, as is customary between a tenant coming in and a tenant going out of a farm.” The learned judge directed the jury to find verdict for the plaintiff, with liberty to move to enter a verdict for the defendant; and a rule nisi having been obtained in last Easter term,

Marryat and Chitty now shewed cause. By the general custom of the country, the plaintiff was entitled to compensation for foldage, and there is nothing in the lease to controul that custom. In Wigglesworth v. Dallison (a), it was held, that a custom that tenants should have the way-going crops after the expiration of their terms was valid ; and it was there expressly argued, that the circumstance of the lease being by deed excluded the custom, inasmuch as the parties must be supposed to have described all the circumstances relative to the intended term in the written instrument. In Doe v. Snowden (6), where there was a written agreement for seven years, and where the taking was from Old Lady-day, it was said that the custom of most countries would enable the lessee to enter upon the arable land at Candlemas, to prepare for the Lent corn, without any special words for that purpose; and in the late case of Senior v. Arnitage (c), a custom for the tenant to provide work and labour, tillage, sowing, and all materials for the same in his way-going year, and for the landlord to make him a reasonable compensation for the same, was held valid, although the farm was held under a written agreement; and this Court held, that unless the agreement in express terms

(a) Douglas, 2012

(6) Blac. 1225.

(c) Holt's N. P. 197.


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