338 PENALTY FOR SELLING STRAW. 



he " shotiU not sell any straw, &e., or manure grown or jJ^'odwed on the 

 said farm, without the ivritten licence'' of the plaintiff, under ceiiain 

 penalties, which were to be recoverable by distress or otherwise as addi- 

 tional rent, at the rate of £7 for every load of hay and £5 for every 

 load of straw, &c. To this allegation of a positive and unqualified 

 stipulation, that the defendant should not sell straw grown upon the 

 farm, it was assigned as a breach that the tenant did sell ten loads of 

 straw grown on the farm during the tenancy, and did not pay the £50 

 penalty for which the action was brought. The defendant pleaded that 

 the straw was sold after the determination of the tenancy ; and it was 

 held by Lord Campbell C.J. and Patteson J., on demurrer, that the 

 breach was well assigned, and came within the express words and 

 intention of the agreement, and that it was immaterial whether the 

 straw alleged to have been sold by the defendant was sold by him before 

 or after the determination of the tenancy, provided it was straw grown 

 on the farm during the tenancy. Lord Campbell said : " If the stipula- 

 tion were confined to sales during the continuance of the tenancy, there 

 would be nothing to prevent the tenant during the last year from 

 hoarding up all the produce of the farm, spending no part of the ma- 

 nure on the farm, and the day after the tenancy determined, selling it 

 all, leaving the farm ruined and exhausted. I do not think that such 

 a construction would make the agreement reasonable as between land- 

 lord and tenant." Judgment was given for the plaintiff. Erie J., how- 

 ever, thought that, looking at the stipulations as set out, which did not 

 include any provision that the landlord should take the unconsumed 

 produce at the end of the term, the tenant was entitled to use it as his 

 own after the tenancy expired, and need not leave it as manure for the 

 landlord, without any remuneration. 



Manure is assignable by the tenant, though he thereby subjects himself 

 to an action for bad husbandry (Burbago v. King). A covenant by a 

 lessee that he will sufficiently muck and manure the land with two suffi- 

 cient sets of murk, within the space of six of the last years of the term, 

 the last set of muck to be laid upon the premises within three years of 

 the expiration of the term, is satisfied by the tenant laying on two sets 

 of muck within the last three years of the term {Pownall v. Moores). 

 Abbot C.J. said : " The object of the last-mentioned stipulation was that 

 all the benefit of the manure should not be exhausted during the lessee's 

 holding, but should at least partially continue at the expiration of the 

 term. But the lessee has nowhere restricted himself from laying on 

 both the sets of manure within the last three years, if he should think 

 l)roper, and we cannot by construction bind him beyond the terms of 

 his covenant." Parke B. ruled in Higgon v. Mortimer that if a tenant 



