1816. YORK LENT ASSIZES, 56 GEO. III. 1816. 1 A SENIOR v. SIR GEORGE ARMYTAGE, BART. the tenant of a to provide bour, tillage, materials for the same, in his away-going SSUMPSIT special, by tenant against land- A custom for lord, to recover a certain sum by way of com- farm in a parti pensation for half-tillage, crops sown, value of cular district away-going crops, &c. under the denomination work and la of tenant right, according to the custom of the sowing, and all country. The declaration stated the custom to be, for the tenant to provide work and labour, tillage, sowing, and all materials for cultivation, in the away-going year; the landlord to make a reasonable compensation for the same, except in the case of exemptions by special agreement. The notwithstanddeclaration, moreover, contained an averment that defendant was not exempted from the operation of the custom by any special agreement. year, and for the landlord to reasonable compensation for the same, is make him a valid in law, held under a written agree ing the farm is ment; provided such agreement does not in express terms exclude This cause had been tried at the last assizes, the custom. before Mr. J. Bayley, when it appeared upon the evidence for the plaintiff, that a written agreement existed between the parties; and the learned Judge being of opinion that the plaintiff was bound to produce the agreement, and that the custom was controlled by it, directed the plaintiff to be nonsuited. 1816. SENIOR But the Court of King's Bench afterwards decided, that, unless the agreement in express terms excluded the custom, it was still operative. The ARMYTAGE. Court, therefore, set aside the nonsuit and directed a new trial. v. The plaintiff's counsel now contented themselves with proving the custom, which appeared to prevail only in the immediate neighbourhood of the defendant's estates, and to be almost confined to those estates. The defendant's counsel, having procured evidence of the existence of the written agreement, contended, that the plaintiff ought to produce it, in order to support the averment in the declaration, that it did not exclude the custom. To this it was answered, that the plaintiff was not called upon to prove a negative, and that it was incumbent upon the defendant to shew that the agreement excluded the custom. Of such opinion was Lord Chief Baron Thomp son. It was then objected for the defendant, that, as it appeared in evidence that the custom was not a general custom, but prevailed only in a particular district, it was not binding on the defendant. But the Chief Baron was of opinion that it was sufficient for plaintiff to shew that the custom existed in the particular place. The defendant's counsel afterwards addressed the jury on the unreasonableness of the custom against the landlord, to establish which they called several stewards of the first landholders in the county of York; they further contended that the written agreement was incompatible with the supposed custom. On the other hand the plaintiff's counsel contended that one clause in the agreement (viz. that all manure, compost, &c. was to be used on the farm, and left on the land at the expiration of the holding, without the tenants' claiming any allowance for the same) implied the existence of the custom. The Chief Baron told the jury, that this was quite a distinct custom from that which usually prevails between the in-coming and out-going tenants. But that, if they were satisfied of its existence (about which there could be little doubt, as it was in evidence that the defendant had paid the amount of a valuation made under it to the former tenant of this very farm) they must find a verdict for plaintiff. And that as to the special agreement, in order to control the custom, it must be of such a nature that it operated upon, and prevented, in express terms, the custom from attaching, which did not appear to be the case here. The jury found for the plaintiff. Scarlett and Richardson for plaintiff. Raine, Heywood, Maude, and Littledale, for defendant. 1816. SENIOR 2. ARMYTAGE. 1816. SENIOR v. ARMYTAGE. Though, in respect to written instruments generally, no custom or usage can be introduced to add any thing to the terms of the contract, which the parties (in the full deliberation which the law always presumes to accompany such instruments) did not think proper to stipulate; yet, in leases of farms, &c. the usage or custom of the district, as a kind of lex loci, is allowed to add either to the form of the stipulations, or to annex even suppletory obligations of its own, so far as they are not contradictory to what is expressed in the written instruments. The reason is evident. The law presumes that each party intended what each knew to be the common practice of the vicinity, and that each omitted the express mention of it, only because it was so notorious. Thus in Wiglesworth v. Dallison, Douglas, 190, in which the alleged custom was, for tenants, whether by parole or deed, to have the away-going crop after the expiration of their terms; amongst the several objections urged to this custom, it was contended, that a lease by deed precluded the operation of the custom, as the parties must be supposed to have described all the circumstances relative to the intended tenure in the written instrument. LORD MANSFIELD." The custom of a particular place may rectify what would otherwise be imprudence or folly. The lease being by deed does not vary the case. The custom does not alter or contradict the agreement in the lease; it only superadds a right which is consequential to the taking; as a heriot may be due by custom, although not mentioned in the grant or lease." Dougl, 197. 1816. THIS SMITH V. BOLTON, ESQ. the hundred, held, that they are only liable for things demorioters, or dedemolition of against the lished by the stroyed in the not for any HIS was an action against the hundred on In an action the stat. 1 Geo. I. st. 2. c. 5. brought by tenant of a public house at Hull, to recover the amount of damage done to the furniture, liquors, plate, china, money, and wearing apparel of himself and his wife, in consequence of the demolition of the house by a mob of rioters. The landlord the house, and had recovered, in the preceding cause, the amount goods stolen or of the damage done to the freehold. The sum premises. now sought to be recovered was 4341. There was no doubt as to the riot and demolishing, which were occasioned by the impressment of a seaman, who had been rescued; and the press-gang had fled to this house, which was their general rendezvous. But the defendant's counsel contended, that the amount of the damages must be confined strictly to the value of those articles which had been actually demolished by the rioters; and could not be extended to those which, for any thing that appeared in evidence, might have been surreptitiously removed from the premises; that this latter was a distinct felony, and the act meant that the hundred should make compensation only for the damage which was the direct and immediate consequence of the offence. lost from the |