CHAPTER X.

COVENANTS.

HUSBANDRY

Custom of the country.-The law will imply a promise on tenant's part to cultivate his farm in a husband-like manner, and according to the custom of the country in which it is situated, unless the express agreement is inconsistent with the custom. When a custom of the country is proved to exist, it is to be considered as applicable to all tenancies in whatever way created, whether verbal or in writing, unless expressly or impliedly excluded by the written terms themselves (Wilkins v. Wood).

Effect of covenant not to carry away hay and straw, &c., under a penalty. On a covenant in a farming lease, that the lessee would not sell or carry away from the demised premises any hay, straw, or manure, which should be grown or produced thereon, without the consent of the lessor first had and obtained, under the increased rent of £10 for every ton so sold or carried away, and so in proportion for any greater or less quantity, but that the lessee would eat and consume the hay and straw of his cattle; the breach alleged was that the lessee, without the consent of the lessor, did sell a large quantity of hay and straw grown and produced on the demised premises to wit, &c. It was held by the Court of Exchequer, that the covenant was one covenant, which gave the lessee the right to sell the hay, &c., on payment of the increased rent, and that therefore the breach was not well assigned. And per Bramwell B., "The expression is first, that he should not sell or carry away from the demised premises any manure, and so forth, but it is said under an increased rent of £10. That is to say, he shall not do it, except on liability to pay a rent. I think that is the fair meaning of it. If you do it, you may do it on a liability to pay rent. If that is the true construction of the document, he covenants to pay an increased rent. There is no absolute covenant that he will not do it. If that is the true construction of the document, then undoubtedly the declaration ought to have alleged that increased rent, and though the time for payment arrived, that it had not been paid. * * It seems to me that Hurst v. Hurst (4 Ex. 571, 19 L.J. (N.S.), Ex. 401) was well decided on principle, and that it is distinguishable from this case. In Hurst v. Hurst the Court says the meaning of the covenant is, "You shall not lop the trees; further, if you do you shall pay £20." If the covenantee think fit to avail himself of it, then the consequence is there may be a good breach of the original covenant: therefore the declaration is a good one. But the Court came to that

conclusion on the ground that there were two covenants there; one an absolute one-not to cut the trees, and the other an absolute one-to pay liquidated damages if he did so. But we decide this case on the ground that this is not so here. There is no covenant that the defendant will not remove the manure, but a covenant that he will not do it without paying £10; in fact, there is only one covenant, which is a complex covenant that he shall pay £10 if he remove it. It seems to me in this case, the plaintiff can only recover the agreed £10, that he is not entitled to claim unliquidated damages, and consequently he ought in the declaration to have shown he is entitled to £10 per ton, and made a good breach as to its non-payment; and in that case the declaration would be good; not having done so, it is bad, and is distinguishable from Hurst v. Hurst on the ground I have named.” Pollock C.B., referred to the report of Hurst v. Hurst in the Exchequer Reports, and said that Baron Parke had been misunderstood by the reporter. [See Law of the Farm, p. 77]. "He meant that the £20 was unliquidated damages, but that if they meant to go for that, they ought, according to Lowe v. Peers and the Anonymous Case, and another case, to have denied that it had been paid, because if a given sum is due as liquidated damages under the statute, you cannot sue unless you have not been paid. In Hurst v. Hurst there was no negation of the payment of the £20 penalty. What was passing in Baron Parke's mind was this: they had blended the two together, and the only way in which you can make sense of it is, that it is an entire action for unliquidated damages, though a part of it was undoubtedly liquidated. You cannot say they were liquidated, and sue for them, because you do not deny that they have been paid. You must, therefore, treat it as if it had been for unliquidated damages only; and this makes the whole matter clear" (Leigh v. Lillie).

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Hay" in farming lease includes hay not fit for fodder.-Where it was covenanted in a farming lease that an additional rent of £10 per ton should be payable "if hay, straw, or other dry fodder" should be sold and taken off from the farm, and hay had been taken off by the defendant which was not fit for food, it was held by the Court of Exchequer that such damaged hay was still within the meaning of the covenant, which implied that everything grown on the farm should remain and be used there (Fielden v. Tattersall.)

Construction of drainage covenant in lease.-An agricultural lease contained a covenant on the part of the lessor, his heirs, &c., that he and they would "drain with proper drain-tiles, one rood apart, ten acres of the land now in rye grass, at his and their costs, except the carriage of the said drain-pipes, which is to be borne and paid by the lessee; and will drain the remainder of the lands hereby demised, in manner aforesaid, upon being paid a further yearly rent of £5 for every £100 so expended." It was held by the Court of Common Bench, that the words "in manner aforesaid" referred only to the mode of performing the work, viz., placing the drain-tiles one rood apart; and consequently that the tenant was not chargeable with the expense of carriage of the drain-pipes beyond the first ten acres (Beer appt. v. Santer respt.)

Payment by landlord for manure and tillages, &c.-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 deed 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 cultivate the land, according to the custom of the country, and also did and should well and truly observe, perform and keep all and singular other the covenants and agreements thereinbefore contained, and on his part to be performed, he, the defendant, would upon the delivery up of possession of the said land, on the day specified, so cultivated as aforesaid, and on such performance of such other covenants aforesaid, pay the plaintiff for the manure, tillages, hay, clover, and all other things then upon the land, as were usually paid for between an outgoing and incoming tenant. It was held by the Court of Common Pleas, on the authority of Boone v. Eyre (1 H. B., 273 n), that the delivery up of the agreement was not a condition precedent to the payment for manure, &c."

Right to have letters produced on question respecting valuation of tillage, &c.-In Price v. Harrison, the declaration stated an agreement between the plaintiff and defendant, that the plaintiff should lease to the defendant a farm, and that defendant should forthwith, after making the agreement, pay to the plaintiff the amount of certain tillages on the farm, at a valuation; and the breach averred was the non-payment of the valuation. The defendant on an affidavit stating that during the treaty for the farm, he had written letters to the plaintiff, which were in the plaintiff's possession, but of which the defendant had no copies, and that he believed it was on such letters that the plaintiff relied to establish such agreement, and that he had a just ground to defend the action, and that it was necessary for the purpose of his pleading that he should inspect the letters, obtained an order from a Judge at Chambers to inspect them. It was held, on cause being shown against a rule to rescind the order, that the defendant was entitled to inspection at common law. And per Williams J., "It did not follow in Shadwell v. Shadwell (28, L.J. (N.S.), C. P., 275), that a writing must be necessarily produced to prove the agreement referred to; but here the declaration could not be proved by parol evidence only. The plea there might have been supported by a release by parol, a writing was not necessary; and it also appeared to me that there was only a surmise that the defendant intended to rely on some document supposed to exist."

Infringement of Highway Act by the use of a steam thrashing-machine.-Harrison (app.) v. Leaper (resp.) was a case stated for the opinion of the Queen's Bench under 20 and 21 Vict., c. 13, and raised a question as to whether the appellant had been rightly convicted by the magistrates of an offence against the 70th section of the

Highway Act (5 and 6 Will. IV., c. 50). The section in question made it an offence to erect any steam-engine within 25 yards of a public highway, unless it were within some building, or so fenced as not to be dangerous to passengers. In the present case the appellant had sent his man with a steam thrashing-machine on hire to the premises of a farmer, who directed the servant to set the machine at work near a rick, within 12 yards of the highway. The steam-engine startled some horses on the highway, and they ran over their driver. It was objected, first, that the act did not apply to engines of this class, which, it was said, were not in existence when the act passed; secondly, that it was not erected; and thirdly, that the appellant had not the control of it at the time. The magistrates overruled the objections and convicted the appellant; and the Court quashed the appeal. And per Cockburn C.J., "It strikes me in this way: if a servant in the care of such an engine were to run up negligently against another with it, his master would be liable. If, however, he wilfully does so, his master would not be liable. So here, if he wilfully erected this machine in an improper place without his master's orders to do so, the master could not be made liable, under this Act of Parliament. Upon that ground I think the conviction cannot be supported. The master was not present, and there is nothing to show that the engine was placed in that particular spot by his direction."

Exemption from toll of barley to be ground for pigs.-Where a person sent by a horse and cart thrashed barley which had grown upon his farm to the mill for the purpose of having it ground into meal for feeding pigs upon the farm, and brought back meal, and which was to be used as food for the pigs, and the horse and cart had not been employed in any other way during the same day, the horse and cart were held to be exempt from the payment of a toll at a turnpikegate through which they passed on each journey, inasmuch as the barley and also the meal came within the words "fodder for cattle" in section 32 of 3 Geo. IV. c. 126. And per Cockburn C.J., "These clauses giving exemption are to be construed in favour of agriculture, and we ought to put a liberal construction upon them. It is true that some difficulty at first sight occurs, as to whether barley in the course of being carried to the mill for the purpose of being ground into meal can be considered as "fodder;" but, upon the whole, looking at the words of the Act, and putting a liberal and fair construction upon them, from the moment that it is destined to be used as fodder it comes within the Act, although there may be an intermediate stage before it is converted into the state in which it is to be used as "fodder." If it were otherwise, this great inconvenience would ensue—that if a man having a crushing-mill on his own premises, and in taking the corn to be ground he passed through a toll-gate, he would not be exempt, whereas if he was taking it in its natural and primitive state he would be so. If barley to be used as fodder be exempt, it would be a great anomaly if the exemption did not exist where the barley was being carried to the place where the mill was, for the purpose of being crushed, and ground into meal to be used as fodder. So if a man was taking turnips for the purpose of being boiled to render them

more fit for the purpose of food for cattle, as is done in Scotland, the exemption would exist. A variety of such instances might be mentioned. The safer course is to decide in accordance with the intention of the Legislature and with the spirit in which the Act has been construed in former cases, and to say that where the corn was destined for the consumption of cattle, although there be an intermediate stage during which it may pass to the toll-gate, it is equally entitled to exemption from liability to pay toll as if it had actually been converted into food at the time" (Clements v. Smith).