SALE OF HAY AND STRAW. 299 



bound not to cany off the hay and straw grown on the farm. It was 

 contended for the plaintiff, that the selling of the goods subject to the 

 above restriction was a wrongful act, and that the plaintiff' was entitled 

 to recover under the third count of this action (case fur excessive dis- 

 tress) the difference between the price actually obtained, and that which 

 might have been obtained if no such condition had been annexed to the 

 sale. MauJe J. was of opinion that no cause of action had been proved, 

 and a verdict was found for the defendant, with leave to plaintiff to move 

 to enter a verdict for him on the third count. The rule was discharged. 

 Rolfe C. said, '* It seems to me that the 5G Geo. III. c. 50 throws some light 

 upon this point, for the 3rd sect, provides that on an execution against 

 a tenant, the sheriff may dispose of the produce of the land to any person 

 who shall agree in writing to expend it on the land according to the 

 custom of the country, where no covenant or written agreement shall be 

 shown otherwise, avconllng to such covenant or written agreement; and 

 the Gth sect, enacts that the landlord shall not distrain for rent on any 

 such produce which shall have been severed fi'om the soil and sold 

 subject to such agreement." Aad^jer Lord Ahingcr : " A¥hen the land- 

 lord sells under a distress, he should sell no more than the tenant could 

 himself dispose of." 



In Fruslicry. Lee the hay and straw were sold under a condition, that 

 they should be consumed upon the land according to the custom of the 

 country (Norfolk) ; and it was alleged that they had in consequence 

 fetched inferior prices. Evidence was given for the defendant to show 

 that sucli was the custom of the country in the neighbourhood where 

 the land lay ; and Ahlicij v. Fetch was cited as an authority that the 

 landlord had a right to impose such a condition. Atderson B., in 

 summing up, left it to the jury to say whether, according to the custom 

 of the country, the hay and straw could not be removed from the 

 premises ; and if so, whether under those circumstances the goods were 

 sold for the best price. The jury found that such was the custom, but 

 that the goods being sold subject to that condition did not fetch the 

 best price; and upon the whole case they gave a verdict for the plaintiff, 

 damages £51. A rule for misdirection after discussion was discharged 

 by the Court of Exchequer on other points. Parhe B. said, " There arc 

 two conflicting authorities on this subject. In the case of Jones v. 

 Hanip, Patteson J. ruled at Nisi Prii/.s that the landlord had no right 

 to annex such a condition to the sale. Mr. Richards moved for a new 

 trial against that ruling in this Court, on the 25th of April, 1840, and 

 the rule was refused on that point. That case was not referred to in 

 Abicy V. Fetch. It must therefore still be considered as a disputed 

 question." Alclerson B. also expressed himself much impressed with 



