330 COMPENSATION FOR DRAINING. 



tiles, did not apply. No question was raised as to the propriety of the 

 di-aiuage. The defendant merely contested the right of the plaintiff to 

 chai-ge him for drainage done without his knowledge. The jury be- 

 lieved the plaintiff's witnesses, and found for him Avith damages. 



It was contended for the defendant, among other things, that the 

 judge ought to have directed the jury that the alleged custom under 

 which the plaintiff charged the landlord with the expense of draining, 

 could not be supported in law. Coleridge J. considered that it was 

 inyolved in the alleged custom that the tenant is to farm according to 

 the rules of good husbandry, especially as certain lands absolutely re- 

 quire drainage to make them bear. His liordship added, "The finding 

 must be taken with reference to the terms upon which the tenant held 

 the farm. We must assume that the jury have found that this draining 

 is according to the rules of good husbandry. It seems to me that it is 

 not an unrensonable custom that a tenant, who is bound to use a farm 

 in a good and tcnantable manner, and according to the rules of good 

 husbandry, should be at liberty on quitting the farm to charge his 

 landlord with a portion of the expenses of draining the land that 

 requires draining, according to good husbandry, though the drainage 

 be done without his landlord's knowledge or consent," Erie J, added : 

 " I think that the finding of the jury fairly means that the custom is 

 that the drainage must be according to the rules of good husbandry. 

 If a tenant contracts to hold according to the custom of the country, 

 the usage of the country becomes part of the contract. It would not be 

 an unreasonable contract between landlord and tenant that the tenant 

 should be at liberty to put in such drainage as was necessary, and that 

 the landlord should pay a portion of the expense. If it be not un- 

 reasonable as a contract, I do not sec how it is unreasonable as a 

 custom." The appeal was dismissed, with costs. 



In Clarice v. Roijsione the declaration stated that the plaintiff was 

 possessed of a farm on which he had laid certain manure, and in con- 

 siderafion that tj/e 'plaintiff would give v^i the farm to his landlord (the 

 defendant) and let him have the benefit of the manure, the latter 2^1'onmed 

 to pay him so much money as he deserved to have, according to the 

 custom of the country. Breach — nonpayment of the value of the manure. 

 In the memorandum of agreement between them, and signed by both — 

 *'Be it remembered that the above closes of land have been only clipi^ed 

 or mown once, and since manured with eight loads of rotten manure 

 per acre, v/hich the tenant agrees when given up by him to leave in the 

 same state, or allow a valuation to be made." This agreement having 

 Tjeen proved l^y the plaintiff, it was contended for the defendant that 

 there was a variance between the allegation in the first count and the 



