THE FARMER'S MAGAZINE. 



81 



admiasible to annex incidents to written contracts iu matters 

 with respect to which they are silent. The same rule has also 

 been applied to contracts in other transactions of life, in which 

 known usages have been established and prevailed ; and this 

 has been done upon the principle of presumption that, iu such 

 transactions, the parties did not mean to express in wridng the 

 whole of the contract by which they intended to be bound, but 

 a contract with reference to those known usages. Whether 

 such a relaxation of the strictness of the common law was 

 wisely applied, when formal instruments have been entered 

 into, and particularly leases under seal, may well be doubted ; 

 but the contrary has been established by such authority, and 

 the relations between landlord and tenant have been so regu- 

 lated upon the supposition that all customary obligations, not 

 altered by the contract, are to rsraain In force, that it is too 

 late to pursue a contrary course ; and it would be productive 

 of much inconvenience if this practice were now to be dis- 

 turbed." Mr. Justice Coleridge, in delivering the judgment of 

 Q. B., in Brown v, Byrne, 3 Ellis and Bl., 715, aays : " In all 

 contracts as to the subject matter of which known usages prevail, 

 parties are found to proceed with the tacit assumption of these 

 usages ; they commonly reduce into writing the special par- 

 ticulars of their agreement, but omit to specify those known 

 usages, which are included — known as of course — by mutual 

 understanding: evi Jence, the;erore, of such incidents is re- 

 ceivable. The contract, in truth, is partly express and in 

 writing, partly implied or understood and unwritten." In 

 Lord Hood v. Kendall, 17, C. B. R., 269, Mr. Justice WiUes, 

 in his summing up to the jury said : " Then there is a further 

 question, viz., whether there is any custom of the country 

 affecting the position iu which the tenint stood. And here it 

 must be observed that it is not the mere practice which pre- 

 vails with regard to a particular estate that will make custom 

 of the country; it must be au usage generally practised and 

 adhered to — so general, iu fact, as to be ordinarily known and 

 acted upou throughout the country, and understood to form an 

 ingredient iu every bargain, without express and particular 

 reference to it." Such being the best judicial explanations of 

 what is meant by '' custom of the country," it would seem to 

 be necessary to its validity that it should be reasonable, cer- 

 tain, and of universal application, except when excluded by 

 express contract ; for what is either unreasonable or uncertain, 

 or what only prevails partially or iu particular instances, cannot 

 be presumed to have been tacitly assumed by the parties to 

 the contract — the want of those qualities rendering it necessary 

 to inquire whether the custom applies or not to the subject of 

 the contract. I therefore conclude that the custom as set up 

 by the defendant could not have formed part of the original 

 custom ; that, if there be such a customary right as laud- 

 share— and it is admitted that there is — one must be able to 

 allege with respect to it that the custom gives it to the in- 

 coming tenant iu all cases, and not that it applies in all cases, 

 except where it does not; or, in other words, »! some cases, 

 which can only be ascertained after inquiry. But, if I felt there 

 was HO inconsistency in saying that the custom, as set up by 

 the defendant, was part of the original custom, I should be 

 inclined to conclude from the evidence adduced that it owes its 

 origin to the very general desire of the landowners to abolish 

 the landshare, and that it is of comparatively recent growth. 

 But it was submitted by Mr. Price that, if this be so, it would 

 not invalidate the custom ; and he quoted Woodfall to prove 

 that it is not necessary that it should have existed immemo- 

 rially, p. 505, 5th edn. It will be observed that none of the 

 authorities which I have before referred to mention immemo- 

 riality as a necessary ingredient to make such a usage binding ; 

 and, besides the case of Senior v, Armytage quoted by Wood- 



fall, there is the very recent case of GtifTinhoof v. Daubuz, 4 

 El. and B. 230, to show how short a time it requires for a 

 usage to prevail with regard to farming contracts to be recog- 

 nized by the Co\irt3. In that case it was a question whethc' 

 the landlord or tenant was bound under the circumstances to 

 pay the tithe rent-charge due on the Ist October after the ex- 

 piration of the tenancy, the tenancy ending at Michaelmas; 

 and it was proved that it was the umal course in that part of 

 the country where the farm was situate for the tenant quitting 

 to pay, and Lord Campbell, in giving judgment, says : "The 

 tenant, by the contract as explained by the usage, was cer- 

 tainly bound to pay." Now, the Tithe Commutation Act was 

 only passed iu 1836, and few commutations were perfected 

 before 1840. Here, therefore, was a usage which could not 

 have prevailed extensively more than ten or twelve years, and yet 

 recognized by Lord Campbell as affecting a written contract. It 

 must, therefore, be conceded that it is no objection to a usage 

 of this kind that it has not immemorially existed ; but still it 

 must be general, or it can have no effect. It was, undoubtedly, 

 proved by the defendant that the right to lundshare had been 

 done away with to a very great extent, and that, so far as the 

 experience of his witnesses went, it was the invariable practice 

 for a tenant, who had no landshare on entering, to have none 

 on quitting ; and I should be inclined to hold that the cus- 

 tomary right to landshare was now restricted to those cases 

 where the offgoing tenant had taken a landshare on entering, 

 if I thought, in point of law, that the ancient usage might be 

 thus narrowed or modified by a more recent usage. But I am of 

 opinion that this cannot be ; that a recent usage cannot be 

 admitted, which contradicts a more ancient one, unless, at 

 least, the earlier one falls into desuetude— that they cannot 

 co-exist together ; and that, as the customary right of land- 

 share is admitted, there cannot be at the same time a cus- 

 tomary exemption from landshare. There is another objection 

 which, though perhaps not fatal to the custom set up by the 

 defendant, tends to show its unreasonableness. It often hap- 

 pens that a farm is held by the same tenant, or by him and his 

 ancestors, for a great number of years ; so that what took 

 place, in point of fact, at the commeucemeut of the tenancy is 

 either only known to himself or not known at all. Now, if 

 such a tenant, on quitting, alleged that he and his ancestors 

 had no landshare on entering, how is it possibh to ascertain the 

 truth of his allegation? No doubt he would be called upon to 

 establish the fact if the incomer brought his action. But is it 

 reasonable that the incoming tenant should thus be driven, of 

 necessity as it were, to his action to ascertain what his rights 

 on entering are ? for, I take it, it is not pretended that the 

 alleged custom would deprive his successor of his landshare 

 unless he, on entering, yielded to a rightful claim. The al- 

 leged custom, therefore, appears to me highly objectionable, as 

 introducing uncertainty, and encouraging the assertion of un- 

 founded claims. But, without resting at all on this objection, 

 I conclude, for the reasons before expressed, that the defence 

 on the part of usa^e has faded ; and as the defendant was 

 fully aware of the existence and effect of the special contract 

 under which Mr. EUaway was entitled to the whole of the 

 away-going crop, at the time when he executed the lease, it 

 seems to me that he could only insure himself the enjoyment 

 of the same advantages at the end of his term, by having a 

 clause to that effect inserted in the lease ; and that, as this 

 was not done, the declaration cf the plaintiff, that the land- 

 share was " at an end"— though it in effect imported that the 

 defendant should at the end of his tenancy enjoy the whole of 

 the away-going crop — did not bind him in law, or afford the 

 defendant any ground of defence in this action, the position of 

 the defendant not having been in any way altered, nor bis 



