226 



NEW ENGLAND FARMER 



JAN. I, 1840. 



AND HORTICULTURAL RRGISTER. 



Boston, Wedsesday, January 1, 1840. 



We give below the opinion of Judge C , in a case 



recently Bubmitled. As it is the first judicial decision 

 which he has ever delivered from the bench, and as he 

 has been obliged to be his own reporter, he hopes any 

 legal inaccuracy will be pardoned. We hope the prin- 

 ciples of law will be found irue and sound. 



DECISION IN A CONTESTED CASE. 



,JVov. iSth, 1839. 



Dear Sir — Astlio season of the year has now arrived 

 in which the cultivators of the wheat crop throughout 

 our commonweallh arc engaged in making out their 

 certifiodtes for the bounty on the same, I am desirous 

 that a better understanding should be had, not only for 

 myself but for the benefit of others who may be engaged 

 in the cuUiration of the crop, with regard to the true 

 intent of the law in certain cases (wliich not unfiequent- 

 ly occur,) between the person who cultivates the crop 

 and the owner of the land. I will state a case in which 

 I am one of the parties:— Late in the fall of J83T, hav- 

 ing received a quantity of Italian wheat from a friend 

 in the Stata of New York, which at that time hail not 

 been cultivated amongst ua, I was induced to apply to a 

 neighbor of mine for a piece of ground, for which I 

 agreed to pay three-fifths of what I could raise, aa a 

 compensation for the use of the land. I accordingly 

 ploughed my ground the same fall, (being of a rich loam 

 soil,) and on the 13lh of ApriUollowing (against the ad- 

 vice and opinion of the owner of the land upon early 

 sowing,) I prepared my seed, by soaking it twelve hours 

 in brine, preparatory to rolling it in liite, and sowed it 

 one and a half bushel per acre, immediately after which 

 the ground froze sufficiently hard to bear up an ox. At 

 the season of the year when the heads began to appear, 

 lime was sown on broadcast, at the rate of one bushel 

 per acre, to prevent the work of the weavil. I harvest- 

 ed the wheat when ripe (three acres,) which produced 

 about 23 bushels per acre ; three-fifiha of it 1 paid over 

 to the owner of the land, as agreed on ; I then made out 

 my certificate for the whole crop, (70 bushels,) itatin;; 

 the manner of procedure in the management of the 

 land, Jtc, agreeably to the requirements of the law in 

 eucb cases, making oath to the same, and present«^d the 

 same to the Treasurer fur allowance. Immediately af- 

 ter, the owner of the land made out a second cortificate 

 for three-fifths of the crop ; made o.ith to the same and 

 presented it to the Treasurer, and demanded a bounty, 

 (as I had not at that time received my bounty, it not 

 beins convenient,) the Treasurer actually paid to the 

 landholder a bounty on the three-fifths (or 42 bushels,) 

 of two dollars on the fir.st 15 bushels, and five cent* fiir 

 every additional bushel ; accordingly when I called for 

 my bounty on the whole crop, the Treasurer refused to 

 pay me bounty for more than two. fifths or 28 bushels, 

 two dollars fur the first 15 bushels and five cents for ev- 

 ery additional bushel, making a second bounty of two 

 dollars in one case. Now it appears to me, that either 

 my self or the commonwealth orbbth, have been wronged. 

 As lands are frequently let in this manner, 1 am induc- 

 ed to iiddress you on this subject, and most lespectfully 

 to ask your opinion as to the true intention of the law 

 in such cases, and have the goodness to publish the same 

 in the New England Farmer. Please send me a copy, 

 and you will confer a favor. 



Most respectfully, yours, &c. 



Rev. Henry Colman. 



The foregoing letter has lieen sometime, in company 

 with others, waiting our return to winter quarters; and 

 our absence must be the apology for apparent neglect. 

 With the writer of the letter, whose name and residence 

 wo have left blank, we are acquainted, and believe him 

 inra[>obIe of making knowingly any false statement. — 

 Who the niher party is, we do not know, even by name. 

 Tons, however, if the above is a full statement of the 

 case, tha matter is as clear as the light of day. 



Contracts are to be interpreted according to the cir- 

 cumstances and conditions under which they are made. 

 It is understood in this case that, at the time of making 

 the contract, no reference was made to the bounty 

 which might be obtained from the State upon the crop. 

 The law indeed was not in existence at that time. — 

 There was nu agreement between the parties that the 

 owner of the land should receive any part of the boun- 

 ty if any bounty should be obtained; nor on the other 

 hand that he should furnish any part of the eeed, or per- 

 form any part of the labor of cultivation or harvesting; 

 or bear any part of the expense or loss in case of a fail- 

 ure of the crop. The simple condition was that the les- 

 see should pay to the owner of the land three-fifths of 

 the crop grown upon the land that season. It was un- 

 derstood of course that the land was to be cultivated ; 

 and it was naturally inferred that the interests of the 

 lessee would induce him to cultivate the land with the 

 most profitable crop and in the best manner. Indeed, 

 as the land was leased upon the presumption and un- 

 derstanding that it would be cultivated, had the lessee 

 after hiring the land, neglected to cultivate it, we should 

 have considered that the owner of the land had a just 

 claim upon him to the full amount of what might be 

 considered the fair rent of such land. But in a case, as 

 in this, where the land was cultivated, and cultivated 

 as it was expected by the parties it would be cultivated, 

 both as to the kind of crop raised and the manner of 

 growing if, the owner of the land has a claim only for 

 that which was stipulated as the rent, and for nothinsj 

 more; that is for three-filths of what was grown upon 

 that land that season, and this payable in kind. How 

 this should be paid, whether in the sheaf or threshed 

 and cleaned, must depend altogether upon agreement at 

 the time ; or uptm usage in such cases, if no agreement 

 were made. So too in resrnrd to the straw, as the agree- 

 ment was that the owner should have three-fifths of 

 what leas raised on the land, three-fifths of the straw be- 

 long to the owner, unless general usage establishes a 

 contrary rule, or some express stipulation was made on 

 the subject at the lime of contracting. We suppose, 

 however, that in this case the operation on the part of 

 the lessee was not considered as completed until the 

 crop was actually prepared for use or market; in which 

 case the contract would be fulfilled on the part of the 

 lessee by tliK delivery ofiliree-fifthsofthe cleaned grain. 



If, again, in the progress of the operation it should 

 appear that the lessee wilfully or negligently failed to 

 culti\'ate the whole ground ; or used seed which lie 

 knew to be imperfect *:■ bad ; or, through neglect, al- 

 lowed his crops to be expo.sed to the depredctions of cat- 

 tle or vermin ; or if a wheat or rye crop were grown, the 

 lessee without the consent of the owner cut any portion 

 of the standing crop wfjile in a green stats for fodder, or 

 for bonnet straw, in all these respects the owner of the 

 land would have a just claim upon the lessee for such 

 damages as he might fairly prove he had sustained by 

 such neglect or unexpected appropriation of the proceeds 

 of the land. 



The question of the right of the owner to any portion 

 of the bounty of the State awarded upon the crop, in- 

 volves in our opinion, after the views above given, no 

 difficulty whatever. If the agreement had been that the 



owner should be entitled to three-filths of "toAai coulu 

 be made" in the course of the season from the land, ther( 

 would have been a fair claim on the part of the ownei 

 to three-fifths of the bounty of the State. But it wai 

 not 30. The lessee agreed to pay to the owner of the 

 land as rent three-fifths of wiAat he slwuld raise upon it 

 This of course was in kind, unless an agreement was 

 made to the contrary at the time of contracting, whict 

 is not pretended. Seventy bushels of wheat it seems 

 were produced on the three acres of land. The owner 

 therefore, was entitled to forty two bushels of the vvheai 

 raised and to nothing more, witli the exception of condi 

 tions in respect to the straw above referred to. 



The law authorising a bounty upon wheat expresslj 

 states that this bounty shall be paid to the " person whi 

 raises or causes to be raised" wheat ton certain aniouni 

 therein specified. Now with what propriety can it be 

 said that the owner of the land in this case either raisec 

 or caused to be raised a (Top of wheal when he did noth 

 ing towards the cultivation of the crop ; nor as appears 

 if all the facta in the case are given in the letter, so niucl 

 as determined what kind of crop should be cultivatec 

 on the leased land. For a man, therefore, under these 

 circumstances to go before a mngistrale and make oatl 

 with a view to obtaining thw bounty, that he either rais- 

 ed or caused to be raised, is as clear a cage of false swear, 

 ing as ever appears in our courts. The terras of the 

 certificate given under oath are " I have raised,'' &c 

 Tlve oath in this case may have been taken without s 

 proper regard to the nature of the case ; but this does not 

 alter its character. 



Again, the object of the law was to encourage the cul- 

 tivation of wheat in the Stata ; to ascerlain the capaci 

 ties of the soil for its production ; and by a careful obser 

 vatiun of its growth and progress, to determine the bes 

 mode of cultivating this valuable crop. For whon 

 then was this bounty designed but for the actual cultiva 

 lor of the crop.' under whose particular direction, skill 

 intelligence and care, the cultivation was undertaker 

 and carried on, and to no one else. Certainly not to the 

 ownerof a tract of land, who merely leases it for a fixer 

 rent without even stipulating what crop should be culti- 

 vated upon it. 



The bounty proffered is altogether accidental and ex- 

 traneous, and in the absence of all stipulation in respect 

 to it at the time of making the contract, the owner has 

 no claims upon it whatever, but it belongs tu the culti- 

 vator. 



Suppose the owner of a ship should charter his vessel 

 to an enterprising individual for a year, upon a stipula- 

 tion that three-fifths of any cargo she should bring home 

 should belong to the owner, to be paid as charter money. 

 The government witii a view of encouraging enterprise 

 and ascertaining whether a productive trade can be car- 

 ried on with China, engage to give a bounty of fifty 

 cents upon every pound of silk brought from Canton in- 

 to the country. Ifthe person who charters the ship 

 brings home fifty thousand pounds of silk, then he must 

 pay the owner thirty thousand pounds of silk. But the 

 owner of the ship has no claims upon the bounty of the 

 government, which was a bounty not for owning or 

 building or freighting ships, but upon the enterprise and 

 labor of bringing silk from China into this country. With 

 this certainty the owner of the ship had nothing to do, 

 since he did not even so much as stipulate that silk 

 shonld be brought instead of tea or China ware. But 

 let us suppose that instead of grnnting a bounty upon silk 

 the government, after the voyage had been undertaken, 

 thought best to lay a duty upon silk of fifty to eighty per 

 cent., or so heavy as to make the voyage a losing con- 

 cern to the shipper or freighter, in such case would 

 the owner of the vessel expect to pay the government 



