PAYMENT FOR MANURE. 331 



proof adduced in support of it, and that the count was not proved. 

 FoUocIc C.B. was of that opinion ; and the jury having found for the 

 plaintiff, gave the defendant leave to enter a verdict on the first count 

 (the two others were for use and occupation to recover the rent), and 

 the Court made the rule absolute, on the ground that the written 

 agreement excluded the custom of the country, as being inconsistent 

 with it, and that therefore there was a variance between the declaration 

 and the proof, AJderson B. said : " It appears to me that the reason- 

 able and natural construction of the agreement is that the party is to 

 pay nothing down, but that he is to do something when he goes out of 

 possession, or to pay for the deterioration of the property if he does not; 

 and that this stipulation being inconsistent with the custom of the 

 country, the contract must prevail, and the custom of the country must 

 be excluded," 



In Stafford v, Gardner (7 L.R. C.P, 242) the plaintiff was tenant of 

 a farm with a right to the use of a certain part of the premises without 

 payment until the 25th March next after the expiration of the term for 

 threshing and spending the last year's crop, and by the custom of the 

 country, he was entitled at the expiration of the term to be paid by the 

 landlord or incoming tenant for certain tillages. He gave up the farm to 

 the defendant as incoming tenant at Michaelmas, 1870, and valuers were 

 appointed by both parties and duly made their valuation. After the defen- 

 dant had entered into possession, but before 25th March, 1871, the land- 

 lord gave him notice that rent was due from the plaintiff, and requested 

 him to pay the amount of the valuation, which was less than the rent due, 

 to him, the landlord, and not to the plaintiff. This the defendant did, 

 and the plaintiff brought an action to recover the amouut due for the 

 tillages : he was non-suited, and the Court of Common Pleas confirmed 

 the non-suit. 



Payment by landlord for manure and tillayes, ([•(•,— In Newson v. 

 Smithies, the plaintiff covenanted with the defendant, his landlord, to 

 deliver up possession of a certain farm and land on a day named, and 

 that in the meantime he would cultivate the land according to the 

 custom of the country, and that upon the delivering up of the land he 

 would surrender and yield up a certain agreement to be cancelled, and 

 all his unexpired term and interest in the farm, and would afterwards, 

 on request, execute any farther de<3d for effectually surrendering the 

 term ; and the defendant covenanted that if the plaintiff did on the day 

 named deliver up possession, and did and should in the meantime cul- 

 tivate the land, according to the custom of the country, and also did 

 and should well and truly olservc, perform and Iceep all and singidar other 

 the covemtnts and agreements IhereinUfore contained, and on his 'part to U 



