against PLUMMER.

excluded the custom, it was operative; and Lord
Chief Baron Thomson is reported to have said at the
trial, that as to the special agreement, in order to
control the custom, it must be of such a nature that
it operated upon, and prevented, in express terms, the
custom from attaching. Now here the lease does not

terms exclude the custom. It is true that it does provide for compensation in certain specified cases, and that foldage is not one of those, but non constat that the tenant would necessarily have any such claim; and it was therefore unnecessary to provide for it; for

the terms of the lease he is not bound to keep any sheep at all, but only to fold such as he shall keep upon the demised premises.

Gurney, Doyley Serjt., and Courthope, contrà, were stopped by the Court.

ABBOTT C. J. There is no doubt that, by a special covenant, a party may waive the benefit of the custom of the country, whether general or particular; and the only question is, whether the plaintiff in this case has waived the benefit of being paid for the foldage by the covenants in this lease. Upon considering the whole lease, I am of opinion that he has so waived this advantage, for which, in all probability, he must have received some corresponding benefit. He covenants that he will at all times, during the term, fold his flock which he shall keep upon the demised premises, upon such parts thereof where the same have been usually folded, upon the penalty of three pounds a time for every time the same shall be folded off from the demised premises, or on any other part thereof, than




where the same had been usually folded. It is said that this covenant does not absolutely bind the tenant to keep as well as fold his flock. I think that it does, but that does not forin the ground of my judgement; for the lease further proceeds to bind the tenant, in the last year of his term, to carry all the manure arising on the premises, to such part of the fallowed lands as shall be appointed by the landlord or the incoming tenant; and then there follows a provision as to the payments which are to be made by the in-coming to the out-going tenant, viz. “ for fallowing the land and carrying out the dung, but nothing for the dung itself; and also grass in the ground, and for thrashing out the corn, as is customary between a tenant coming in and a tenant going out.” There are, therefore, certain payments specified, which the in-coming tenant is to make, but no payment for foldage is mentioned. It must therefore be considered as wholly excluded by the lease. Upon the whole, I am of opinion, that by the express terms of the lease, which specifies certain particular payments to be made on quitting the premises, the custom of the country, as to the payment for foldage, is waived, and, therefore, that the plaintiff is not entitled to recover.

BAYLEY J. I am of opinion, that the plaintiff is not entitled to recover the compensation in question. Where there is a written agreement between the parties, it is naturally to be expected, that it will contain all the terms of their bargain; but if it is entirely silent as to the terms of quitting, it may let in the custom of the country as to that particular. If, however, it specifies any of those terms, we must then go by the lease




alone. The custom of the country applies to those cases only where the specific terms are unknown; and it is founded

upon this principle, that justice requires that a party should quit upon the same terms as he entered. If, therefore, the party, when he entered upon the farm, paid for a way-going crop, or for foldage, manure, fallowing, or tillage, then if the lease be wholly silent as to the terms upon which he is to quit, the custom of the country may be introduced, and he may

be entitled to receive for a way-going crop, foldage, &c. Upon this ground, Senior v. Armitage was determined, for the lease there was wholly silent as to the terms of quitting, and the claim there was different from the present, being a claim for labour done by the out-going tenant, from which he could not himself derive any benefit. Here, too, there is a specific contract to fold the flock upon the premises, under a penalty. My judgement, however, is founded particularly on the last stipulation in the lease, by which the tenant is prohibited from carrying off the manure, and by which the incoming tenant is directed to make certain payments to him; and if a lease speaks distinctly of the allowances to be made upon quitting, it seems to me to exclude all others which are not named.

HOLROYD J. I am of the same opinion. It seems to me, that the covenant in the lease, that the tenant will fold his flock which he shall keep, &c., is binding on him to keep a flock, and fold it on the usual parts of the demised premises. For although the words of a covenant are to be construed according to the intent of the parties, yet they are to be taken most strongly against the party who stipulates. To this covenant




there is attached a penalty, the only effect of which is to give the landlord an option, either to bring an action for damages for the breach of the covenant to fold, or to proceed for the penalty. But even supposing that there was no covenant to fold in this lease, still, inasmuch as it provides for the payments which the in-coming tenant is to make, it seems to me that its language is equivalent to this, that the in-coming tenant shall pay for such things as are specified, and no more. For the rule expressio unius est exclusio alterius applies. Then as the parties have provided for all the payments that were to be made, and as they have not mentioned foldage, it follows that the plaintiff is not entitled to any compensation for it, and that the verdict must be entered for the defendant.

Best J. I had at first some doubt in this case, but, on looking at the whole deed, I think it was intended by the parties, that it should contain all the terms of quitting, and that the custom of the country should not prevail. In Wigglesworth v. Dallison, there were no sufficient circumstances to exclude the custom; and unless it appears that there is nothing to exclude it, the agreement must regulate the rights of the parties. Here the parties have made some stipulation as to the terms of quitting, and if they had intended that this or any other payment should be also made, they would have introduced them into the lease. I think, therefore, that the verdict should be entered for the defendant.

Postea to Defendant.


Smith against CHANCE.

June 19th.

bound either to



ASSUMPSIT for hay sold and delivered. Plea, A tenant was

general issue. At the trial at the last Worcester- consume the shire assizes before Richardson J. it appeared that the mised premises, plaintiff was tenant of a piece of pasture land near Wor- load of hay recester called the Further Hill, which he occupied from moved to bring Candlemas, 1815, to Candlemas, 1817, when he quitted

quituing possesthe premises in consequence of a notice given by him- sion of the preself. One of the terms upon which he held the land mises, he sold

part of a rick of was, that he would consume the hay on the premises, standing to a or for every load of hay would bring two waggon-loads purchaser, with

out mentioning of Worcester muck, and spread the same. At the time his liability to

bring manure. when the plaintiff quitted the possession, a part of a rick The in-coming

tenant refused of hay was left standing on the premises. This hay the to allow the plaintiff sold to the defendant, but without mentioning take away the

purchaser to the

agreement respecting the muck. The succeeding te- hay until the nant, Phillips, who had previously given permission to brought. After the plaintiff to carry off the hay, provided he would month, during

which time the fulfil his agreement with the landlord as to the manure, høy had been in consequence of some dispute between himself and the considerably

damaged, the plaintiff as to the terms, immediately upon the defend- latter consented

that it should ant's sending persons to truss and carry away the hay, be removed ;

the purchaser, forbade their proceeding to do so, and threatened to however, then

refused to acbring an action against them if they carried away the

cept or pay for hay before the plaintiff had brought on the manure. that although

the same: Held In consequence of this the defendant desisted, and the the bringing on

the manure was

not a condition precedent to the carrying off the hay, as between the landlord and tenant, still, that after the tenant had quitted possession of the premises, the succeeding tenant had a right to refuse to permit the hay to be removed till after the manure was brought on, and that as the vendor had not enabled the purchaser to remove the hay in the first instance, he was not entitled to recover the price.


manure was

an interval of a

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