THE FARMER'S MAGAZLXE. 



to the custom of the country ; and, upou quitting, to leave the 

 hedges, ditches, gates, aud stiles iu a proper state of repair." 

 Aud it was further agreed by the plaiutiiY " to allow £3 per 

 annum for manure. Also, iu case he should want tiie farm to 

 his owu kii.d iu the space of three years to piy £20 of mouey 

 to the said William Howells, for quitting the farm at six 

 months' notice." It was admitted Ijy the plaiutitf that the de- 

 fendant, according to the cuatom, was entitled to two-thirds of 

 the wheat crop, but be claimed the remaining one-third as the 

 incoming tenant's portion or " landsbare," as it is termed in 

 this county, the universal custom being, as he alleged, to give 

 the incoming tenant one-third of the wheat aownou a ley, and 

 one-sixth of the wheat sown on a naked fallow. The defen- 

 dant denied the plaintiff's right to any laudahare by reason of 

 his having been excluded from landahare attliecommencemtnt 

 of his tenancy, his predecessor having been entitled, under an 

 agreement which he had made with his landlord, a former 

 owner of the estate, to the whole of the away-growing crop, 

 the defendant contending that, according to the custom of the 

 country, when a tenant on entering takes uo landshare, he is 

 not liable to leave any on his quitting. Tne defendant having 

 cat the wheat crop and put it into stooks (as it was admitted 

 he was bound to do whether or not the plaintiff was entitled to 

 landshare), and having told the plaintiff he did not intend to 

 leave any landshare for him, the plaintiff ordered the gates of 

 the fields to be locked, and the defendant afterwards broke the 

 locks, and carried away the whole of the wheat crop. The 

 plaintiff then brought this action, claiming £10 for the alleged 

 trespass of breaking the locks, and £26 Ss. lOd. as the value 

 of the plaintiff's landshare thus taken away and converted by 

 the defendant. It was proved by Eilaway, the outgoing tenant, 

 who quitted in the same year as plaintiff purchased the farm, 

 that he had a conversation with tbe plaintiff about the land- 

 share; that he told him that he had no landshare on entering, 

 and that he did not intend leaving any ; that he had a document 

 under the hand of his original landlord Mr. Watkins, " that 

 freed him from having one ;" an! that plaiutiff said, 'if you 

 have such a documeat I am satisfied." The document was as 

 follows:— '^ August 8th, 1813. Memorandum of an agree- 

 ment between Mr. Arthur Ellaway ar,d the undersigned. In 

 consideration of Mr. Eilavvay not having any landshare upon 

 his taking the IVntre, he will not be entitled to leave any after 

 quitting the said farm, but must not leave on the said farm 

 more than his odd mark in wheat. — J. C. VVatkins." This 

 document was also shewn to the defendant before he took the 

 farm. It was proved by defendant, tiiat, afUr he had, taken the 

 farm, he had a conversation with plaintiff about the landshare; 

 that he said to plaintiff, "What about landshare?" Plaintiff 

 said to him, " Don't the custom of the place give a landshare ?'' 

 " No, I don't think it does, as Mr. Watkins has done away 

 with it." " If Mr. EUaway has a document to show from Mr. 

 Watkins, that will be an end to it ;" and that he (the plaintiffj 

 then saw the document referred to, and gave up all claim for 

 landshare. It was proved by several farmers, who had lived 

 for years in Tregare, or iu the neighbouring parishes, that the 

 general usage of the district was, that the offgoing tenant 

 should leave uo landshare for his successor when he had none 

 left by his predecessor ; and their evidence was uncontradicted. 

 But some of them stated that some of the principal land- 

 owners of the district (and they instanced the Duke of Beaufort 

 and Colonel Clifford) were desirous of doing away with the 

 landshare, and that they let their farms exempt from the 

 landshare ; and it was open to much doubt whether their tes- 

 timony affirmed any general usage excluding the landshare, or 

 whether it merely referred to instances where the landshare 

 was done away with by special contract. Mr. James Price, on 



behalf of the defendant, contended— Ut, That where the land- 

 lord of a firm has broken through the custom, by depriving his 

 tenant of the landshare, the farm becomes for ever exempt from 

 liability to landshare ; aud 2ndly. That even supposing his first 

 proposition could not be maintained, he had satisfactorily es- 

 tahlisheJ it to be a part of the custom of the country that the 

 liability to landshare on leaving depended on the eiijoymeut of 

 landshare iifthe first year of hi» tenancy. ^ As regards the first 

 point contended for, I think it quite impossible that it can be 

 established. For how does the custom of the country [operate 

 on contracts of letting? It annexes to the specified terms of 

 the agreement all thoie well known usages and customary 

 rights and incidents affecting the ^occupation] of Uand which 

 universally prevail iu the district, aud which, it is to be pre- 

 sumed, were tacitly assumed by the parties as forming part of 

 the contract. And as the owner of a farm cannot remove it 

 from the district in which it is situate, so neither can he pre- 

 vent those with whom he treats for the letting of his farm from 

 silently importing into the contract the established usages, 

 unless he excludes those usages by express terms. But the 

 second proposition anpears to me much more worthy of con- 

 sideration, aud open to doubt. It is to be observed that the 

 defendant had ]no' right whatever to an away-going crop, ex- 

 cept under the custom. Whatever share of the crop, then, the 

 custom gave him, he was entitled to take, and no more. If it 

 was part of the custom that the incoming tenant should have 

 a landshare, he was bound by his contract to leave one ; but if, 

 under the circumstances, the custom gave the incoming tenant 

 no su;h right, but gave the defendant the whole of the crop, 

 then, by the contract, the defendant was entitled to the whole, 

 A^aiu, it is not to be denied that it was more consonant with 

 justice that the defendant should takejhe whole of the away- 

 going crop, rather than leave a landshare for the plaintiff; for 

 it is only reasouBble and fair that the tenant should quit on 

 the same terms as he entered, and that he should enjoy aa 

 many entire crops of wheat as there were years in his term. 

 Tliis proposition would hold, whatever might be the length of 

 the term; but in a case like the present, where the de- 

 mise was only for two years certain, the depriving the 

 tenant of oae-third of a year's crop, when he hal only held 

 the farm for two years if the tenancy had then been deter- 

 mined (and the plaintiff would iu that c.se have had the same 

 right to demand a landshare as at present), would have ap- 

 pealed to work a comparatively greater hardship than when he 

 has held the farm for a much longer time. What, then, 

 is the existing custom? Did this landshare ' invariably 

 form part of the original custom — or was the right to it 

 from the first uncertain, and dependect on the fact of the out- 

 going tenant having enjoyed it on entering? Or, again, has 

 there sprung up in comparatively recent times such a usage as 

 is contended for by the defendant, modifying the more ancient 

 custom, and yet so general as always to be received aud acted 

 upou where the circumstances exist to which it applies? And, 

 as a matter of law, can a usage be admitted which thus niodifies 

 a more ancient usage, or rather limits its application, when the 

 more remote usage has become so general as to be' presumed 

 to influence people in their contracts, and to be tacitly recog- 

 nized and acted upon whun they contract ? These are the 

 questions which, it appears to me, to be necessary to answer 

 before I can determine whethe- the defendant has established 

 a good defence under the customof the country, j The manner 

 in which the custom of the country operates on contracts such 

 as this is thus explained by Barou Parke, in^delivering the 

 judgment of the Court of Exchequer iu " Ilutton u. Warren," 

 1 M. and W., 479 : " It has long been settled that, in com- 

 mercial tiausactious extrinsic evidence of custom Rnd usage >i 



