318 CUSTOM OF THE COUNTRY. 



provided for iu the leases, by which the testator held or shuuld hold the 

 same. The plaintiff, on taking possession in the course of that month, 

 paid to the defendant s testator, according to the custom of the country, 

 the amount of the valuation, £2,233 196'., for fallows, dressings, &c., as 

 well of the other lands as of the Crown lands, which latter only 

 amounted to £240. By the terms of the Crown lease, the custom of 

 the country as between landlord and out-going tenant was excluded. 

 At the desire of tlie plaintiff the Crown lease was not renewed, and the 

 plaintiff gave up possession of the Crown lands on the lOtli of October, 

 1849, when he claimed as out-going tenant to be paid for fallows and 

 dressings, &c., according to the custom of the country. The defendant 

 objected first that the custom of the country was excluded by the terms 

 of the contract, and secondly that, if not, the custom did not include a 

 case where the term was determined by the expiration of the landlord's 

 interest. 



It was also objected that there was no obligation on a landlord to 

 pay according to the custom of the country. Jervis C.J. left it to the jury 

 to say whether the custom for a landlord to pay the out-going tenant 

 was proved ; and the jury having found in the affirmative, his Lordship 

 directed a verdict for the plaintiff, reserving leave for the defendants to 

 move to enter a verdict for them, if the Court should be of opinion that 

 on the construction of the documents the custom of the country was 

 excluded by the agreement between the parties. The rule was discharged, 

 and the Court held, first, that the custom of the country was not ex- 

 cluded by the agreement ; and that where such a custom exists there is 

 an implied contract on the part of the landlord, that if there be no in- 

 coming tenant, he Avill pay the out-going tenant according to the 

 custom ; but scniihle that such a custom does not apply to cases where 

 the term is put an end to by the determination of the landlord's 

 interest. 



Parlce B. said : "The plaintiff was to indemnify the testator as to all 

 covenants which he had entered into with the Crown. The latter re- 

 ceived the amount of valuation from the plaintiff as in-coming tenant, 

 and is bound to pay him. The agreement does not exclude the custom 

 of the country. It merely contemplates a lease which would expire on 

 the 29th of September, 1849, so that the time of quitting is not the 

 same as under the Crown lease. The obligation created by taking this 

 particular property literally turns out to be nothing more than a demise 

 for a year, and the custom of the country ap^tlies to that." And ^;<'r 

 Alderson B. : "The plaintiff agrees to take the whole of the lands, and 

 he stipulates that he will save harmless his landlord from all covenants 

 entered into between the latter and the Crown. But there is nothing 



