33G SELLING HAY OR STRAW. 



and labour of dung, and the folding of sheep on the farm, such valua- 

 tion to be made before September 29th, 1853. In answer to the 

 questions put them by WilUams J. on the trial, the jury found that it 

 was agreed between tlie parties, that the valuation of the straw should 

 be made on the same terms as that of the other matters mentioned in 

 the agreement ; that supposing the outgoing tenant entitled to the 

 manure, the straw was to be paid for at two-thirds of the market price, 

 but if he was not, at one-half of the market price ; and that when there 

 was no special agreement to the contrary the tenant was entitled to go 

 out as ho came in. It was agreed that the Court should decide by 

 whose lault the valuation went otf. A verdict was accordingly entered 

 for the plaintitf for £311 2.^. 1(/., beiug the whole amount claimed in 

 the particulars on the higher valuation, less £25 125. 8d. for price 

 and value of work, seeds, &c., supplied by the plaintiff, and leave was 

 reserved to the defendant to move to enter a nonsuit on the first point, 

 or to reduce the damages on the second to £215, the amount agreed 

 to be due upon the valuation at the lower price. The Court of 

 Common Pleas held upon the first point, that us inasmuch the valua- 

 tion ^s•ent off, and the straw had been consumed by the beasts of the 

 defendant, so that a valuation had become impossible, an action would 

 lie, in order to have the value assessed by a jury ; and on the second, 

 that such an action would only lie to recover the value of the straw at 

 the lower valuation, on the ground that the terms upon which the 

 valuation as between outgoing and incoming tenant w\as to be made, 

 were contained in a written agreement, which provided only that the 

 outgoing tenant should be paid for the straw on the premises, and not 

 for the dung, and according to the clear and established rule in these 

 cases, he was entitled to be paid for the straw only at a fodder price. 

 And per GresswcU J. : " The ground of the Court's decision on the 

 second point is, that there is an express stipulation that the tenant shall 

 pay for the manure on going in, but no stipulation that he shall be paid for 

 it on going out." Accordingly the verdict was ordered to stand for £215. 

 In Lowndes v. Fountain a farming agreement contained among others 

 this clause — "No luoj or siraiv io be sold of i/ie said land, without 

 consent of the landlord or his agent, except the ralue of the straw so 

 sold off be returned in manure on the said laud," and tiie Court of 

 Exchequer was equally divided as to whether "value'' was to be con- 

 strued as a manure or money value. The defendants took possession 

 of the land as assignees of one Boreham, under the agreement, in April, 

 1854, and continued to occupy it until Lady-day, 1855, when the 

 ]ilaintiff determined the tenancy by notice to quit. During their 

 tenancy the defendants sold all the straw off" the land, claiming to do 



