322 TAKING AWAY ODD MARK. 



of Taunton v. Costar, where it was held that a tenant holding over after 

 the expiration of his term cannot distrain the landlord's cattle, which 

 were put on the premises by way of taking possession. " Taking this," 

 said Thomson C.B,, " to be a crop growing npon the land, whether cut 

 by the defendant or a stranger not being in possession, the moment it 

 was severed it became the property of the landlord." 



The Court of King's Bench held, in Boraston v. Gi'een, that the in- 

 coming tenant had not such a possession as enahlcd hun to maintain trover 

 against the outgoing tenant, who had committed a breach of the custom 

 of the country in not leaving onc-lhird of the ivaij-going wheat crop sown 

 vpon a ctorer brush. 



Where, by a clause in a lease, it was agreed that in case the tenant 

 slioutd dill// olmrre and perform the several covenants and agreements^ &c. 

 (one being for the ])ayment of rent), and should peaceably quit, &c., on 

 notice, &c., he should be entitled to a way-going crop, which was to be 

 left for the landlord or his incoming tenant at a valuation, it was held 

 by the Court of Exchequer that this clause did not give the tenant the 

 right of possession as against the landlord after the determination of 

 the tenancy, but that the tenant at most could only go on the land for 

 the purposes of a way-going crop, and could not exclude the landlord 

 {StrichJand v. Maxwell). By the custom of Herefordshire, an oflfgoing 

 tenant is entitled to crop one-third of the arable land of the farm with 

 wheat, which is called his odd marJc, and to cut and carry it away after 

 the tenancy has expired {Griffiths v. Tombs). And per FarJce B., "A 

 parol permission by the landlord to the outgoing tenant to sow more 

 than his strict odd mark will be good as against the landlord himself, 

 and therefore as against the incoming tenant." If a lease containing a 

 covenant that the lessee, " at the expiration or other sooner determina- 

 tion of the term," shall take the offgoing crop, is determined by the order 

 of the Lord Chancellor in Bcrnh-vptcy, under the 49 Geo. III. c. 121, 

 s. 19, the assignees are entitled to the offgoing crop {In re Dark). 

 And if a lease is determinable upon notice at the will of the lessor or 

 lessee, and the lessee covenants to leave, at quitting, the hay, straw, 

 &c., on the premises, the banlcniptcg of the lessee and the election of his 

 assignees not to talce to the lease have the same effect with reference to 

 the covenant as though the lessee had quitted upon notice {Ex parte 

 Whlttington). 



Where a tenant held from Lady-day in a county in which the custom 

 of waygoing crops prevailed on the regular expiration of a Lady-day 

 tenancy, but Uie tenancy was determined on June 1st, by an award made 

 on reference of a dispide between landlord and tenant, it was held that the 

 award (which did not of itself change the property) was admissible in 



