331^ FAIR VALUATIOX. 



award -which is bad for excess would be cured, his lordship added: ''Not 

 so. The award is bad, not because the arbitrator has exceeded his 

 authority, but because he has not done that which the parties had 

 required him to do." 



The dilliculty here arose from the substitution in the draft lease, " of 

 fair valuation " for " consuming price" The action was brought by an 

 outgoing tenant of a Herts farm against his landlady, to recorer com- 

 pensation for certain hay, straw, and manure, left by him on the farm, 

 and the defendant pleaded — first, that the umpire did not duly yalue, 

 and secondly, payment into Court of £520. The farm was taken by 

 the plaintiiT, subject, amongst others, to these covenants contained in a 

 draft lease, under which plaintiff's father had held : first, to house the 

 produce on the farm, and to thrash, feed, and fodder the same thereon, 

 and not to sell or dispose of any part thereof, e3;ce2:jf as after-mentioned ; 

 secondly, that he should be at liberty to sell and dispose of his hay and 

 wheat straw (except that of the last year's produce), bringing back 

 immediately for every load of hay and straw so disposed of, two loads of 

 o-ood rotten dung, or other equivalent manure ; and thirdly, that he 

 should, on the determination of his tenancy, leave all the hay, straw, 

 and manure arising during the last year of his tenancy, for the use of 

 his landlord or the incoming tenant, being i)uid for the hay and wheat 

 straw at a fair valuation. These latter words were substituted in the 

 draft lease for "consuming price." "When the plaintiff gave up his 

 farm at Michaelmas, 1853, a dispute arose between him and the defen- 

 dant as to the valuation of the hay and straw left liy him, the plaintiff 

 insisting that he was entitled to be paid for them at a "fair valuation," 

 and not a "consuming price," as was contended by the defendant. 

 Valuers were appointed on each side, and then, as they could not agree, 

 an umpire, who valued the hay, straw, &c., left on the premises, at 

 £77-1 1 1 s. od., sent in the following certificate: "I certify that I have valued 

 the above at a marketa1)le price in its present situation." This umpire 

 was the only witness called at the trial, and stated that he did not value 

 at a "consuming price "or at "a market price," but at a fair valuation." 

 After delivering out his valuation, he discovered that he had improperly 

 included in it a small quantity of old hay, worth £2, and the jury 

 returned a verdict for the plaintiff for £252 Us. dd., being the difference 

 between the sum paid into Court, and the amount of the valuation when 

 go altered. 



Leave Avas reserved to the defendant to move to enter a nonsuit or 

 for a new trial, but the court discharged the rule. 



In Clarice v. Westrojye, the struggle letween the mroming and outgoing 

 tenants was whether the former should pay the latter for the straAv at a 



