3^0 RIGHT OF TENANT TO AWAY-GOlNG CROP. 



This was an action of trespass for mowing, carrying away, and convert' 

 ing to the defendant's own use, the corn of the plaintiff on Hibaldstow 

 Leys, in the connty of Lincoln. Dallison pleaded lihcnim tenemenhim, 

 and the other defendant justified as his servant. To this the plaintiff 

 replied that there was a laudable custom within the parish of Hibald- 

 stow, that every tenant and farmer of lands within it, whose term expired 

 on the 1st of May in any year, had a right to take his (uvaij-goi/uj 

 crop ; and the custom was found in the words of the replication. A 

 motion was made to arrest judgment, on the ground that such a custom 

 might be good in respect to parol leases, but could have no legal exist- 

 ence in the cases of leases by deed, but the Court of King's Bench dis- 

 charged the rule. Lord Mansfield C.J. said, '' We have thought of this 

 case, and are all of oi)inion that the custom is good. It is just ; for he 

 who sows ought to reap, and it is for the benefit and encouragement of 

 agriculture. It is, indeed, against the general rule of law concerning 

 emblements, which are not allowed to tenants who know when their 

 term is to cease, because, it is held to be their fault or folly to have 

 sown when they knew that their interest would expire before they could 

 reap. But the custom of a particular place may rectify what otherwise 

 would be imprudence and folly. The lease being by deed does not 

 vary the case. The custom does not alter or contradict the agreement 

 in the lease ; it only superadds a right wiiich is consequential to the 

 taking, as a heriot may be due by custom, althougli not mentioned in 

 the grant or lease." 



The question subsequently came under the consideration of the Court 

 of King's Bench, in the case of Senior v. ArmHage, where a custom for 

 the tenant of a farm in a particular district to proi'ide work and tallow, 

 iillaye, soicinej, and all materials for cultiration in his awaij-going year 

 ami foi' the landlord to make him a reasonaliU compensation for the same, 

 was held to operate notwithstanding the farm is held under a written 

 agreement, unless it can be collected expressly or impliedly from 

 Bucli agreement that the parties did not mean to be governed by the 

 custom. Park B. observed, in Hutton v. Warren, that fi'om his perusal 

 of Mr. Justice Bag leg's manuscript notes of the case, Mr. Holt had 

 stated it too strongly when he said that the Court held the custom to 

 be operative, unless the agreement in express terms " excluded it," and 

 that their decision was to the effect that, " though there was a written 

 contract between landlord and tenant the custom of the country would 

 still be binding, if not inconsistent with the terms of such written con- 

 tract ; and that not only all common law obligations, but those imposed 

 by custom, were in full force where the contract did not varg litem." 

 The custom in Senior v. Armitage prevailed only in the neighbourhood 



