contract, are to remain in force, that it is too late to pursue a contrary course, and it would be productive of much inconvenience, if this practice were now to be disturbed. The common law, indeed, does so little to prescribe the duties of landlord and tenant, since it leaves the latter at liberty to pursue any course of management he pleases, provided he is not guilty of waste, that it is by no means surprising that the courts should have been favourably inclined to the introduction of those regulations in the mode of cultivation, which custom and usage have established in each district, to be the most beneficial to all parties." Accordingly, in Wigglesworth v. Dallison 1, the tenant was allowed a 'way-going 'Doug. 201. crop, though there was a lease under seal. "The lease," observed Lord Mansfield, "being under seal, 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.”

be

On the same principle, a custom for the tenant to provide labour, tillage, sowing, and all materials for the same, in his 'waygoing year, and for the landlord to make him a reasonable compensation, is valid in law, and may be insisted upon, although the farm be held under a written agreement, provided the custom be not thereby expressly or by implication excluded2. So, if the lease contain no stipulation as to the mode of quitting, the offgoing tenant is entitled to his 'way-going crop, according to the custom of the country, even though the terms of holding may inconsistent with such a custom3. The tenant may, of course, by the terms of his taking, waive the benefit of the special custom of the country. As where the custom was, that the out-going tenant was entitled to an allowance for foldage from the in-coming tenant; and the lease specified certain payments to be made by the lessor or in-coming to the out-going tenant at the time of quitting the premises, among which there was not included any payment for foldage, it was held, that the terms of the lease excluded the custom, and that the out-going tenant was not entitled to any allowance in respect of foldage 4. Upon this case it has been observed by Parke, B. 5, that "no doubt could exist in this case, but that the language of the lease was equivalent to a stipulation, that the lessor should pay for the things mentioned, and no more." where the tenant held under the terms of an expired lease,

So,

by

5 Hutton v. Warren, 1 Mee. & Wels. 477.

1 Roberts v. Barker, 1 Cr. & Mee. 808.

Hutton v. Warren, 1 Mee. & Wels. 466.

which it was stipulated, that the tenant, on quitting the farm, should not sell or take away any of the manure in the fold, but should leave it to be expended on the land by the landlord or his succeeding tenant, the lease containing no stipulation as to the tenant being entitled to payment for such manure. By the custom of the country, the tenant would have been bound not to sell or take away the manure in the fold, but to leave it to be expended on the land by the landlord or his succeeding tenant, and would have been entitled to be paid for the same; it was held, that, as an express stipulation had been made on the subject, the custom was excluded. "If," said Lord Lyndhurst, "the parties meant to be governed by the custom in this respect, there was no necessity for any stipulation; as, by the custom, the tenant would be bound to leave the manure, and would be entitled to be paid for it. It was altogether idle to provide for one part of that which was sufficiently provided for by the custom, unless it was intended to exclude the other part1.

A custom,-by which a tenant, cultivating his farm in a husband-like manner, is entitled, on quitting, to receive from the landlord, or in-coming tenant, a reasonable allowance for seeds and labour bestowed on the arable land in the last year of the tenancy, and is bound to leave the manure for the landlord, if he will purchase it,-is not excluded by the stipulation in his lease, that he will consume three-fourths of the hay and straw arising, not only from the farm itself, but from the demised tithes of the whole parish, and spread the manure arising therefrom, and leave such of it as shall not be so spread, on the land, for the use of the landlord, on receiving a reasonable price for it 2: the custom of the country as to the obligation of the tenant to plough and sow, and the corresponding obligation of the landlord to pay for such ploughing and sowing in the last year of the term, being no way varied by a stipulation relating to an entirely distinct and independent matter.

In general, on the expiration of a tenancy, the tenant must give up possession of the whole of his farm to the landlord, crops and every thing else, unless there be a custom for the tenant to hold over any part, or to take any of the crops; and the proof of the custom lies on the tenant. If the custom be for the out-going tenant, for what is called his odd mark, to crop one-third of the arable for wheat, and to reap that wheat after the tenancy has

expired, and the tenant so crop more than the proper one-third,
the landlord will be entitled to have all that which was last sown,
and which is above one-third, unless the tenant can shew that, by
the custom, he has a lien upon it for the sowing and the seed1.
Finally, it may
be observed, that in all cases when it is in-
tended that the tenant shall hold under a demise by deed, or
other written instrument, it should always be expressly stated
how far the local custom is intended to be adopted or repudiated;
and where, from the nature of the case, it is likely that any ques-
tion may arise as to the fixtures, there should be express provision
made for the disposal of them at the end of the term. This may
be, that the tenant shall be allowed a reasonable time, after the
expiration of his term, for the removal of his fixtures; or that
the landlord shall take them at a valuation; or that they shall be
suffered to remain, to be valued to the in-coming tenant. And
such special provisions as these are the more important, where
the tenant contemplates considerable improvements, or the fix-
tures are of considerable value, as in leases of collieries and
breweries, or where, from their connexion with the produce and
profits of the soil, as in the case of nursery-grounds, any dispute
about them might be productive of much injury to the property.

The same principles, which permit a written contract to be superadded to by these customary usages, will equally permit the admission of parol evidence, to show that a word or expression used in a written instrument is not to be taken in its common acceptation, but according to the particular import established by custom in some given district, or amongst some particular class of individuals. Thus, in a recent case2, which underwent much discussion, where the lessees of a coal mine covenanted with the lessors, that they would, by a certain time, get all the demised coal in the township of B., "not deeper than, or below the level of," the A. mine, under a certain point of the surface, it was held, on a question whether "level" was used in the ordinary sense of a horizontal plane, or in a peculiar sense, having reference to the drainage, that evidence was admissible, to shew the understanding of this term among coal-miners.

CHAPTER IX.

OF JOINT ESTATES.

SECT. 1.-OF JOINT TENANTS.

SECT. 2.-OF CO-PARCENERS.

SECT. 3.-OF TENANTS IN COMMON.
SECT. 4.-OF PARTITION.

WHERE the ownership of property is in one person, he is said to have a sole or several estate: where there are several persons jointly entitled, they are said to have estates in co-parcenary, joint tenancy, or in common, according to the circumstances under which their joint ownership was created*.

1 Litt. s. 291;

SECT. 1.-OF JOINT TENANTS.

Joint tenancy arises when two or more persons have a subject of property between them in equal shares by purchase1. During the

Co. Litt. 188. b. time they hold jointly, none of them has an estate in any particular part. Each has the whole and every part with benefit of

1

survivorship, until the tenancy be severed. Each joint tenant has the whole for the purposes of tenure and survivorship, while, for the purpose of alienation, he has only a particular part. Joint tenants, as such, have no devisable interest, and a devise, while the joint tenancy subsists, will be void, even if the devisor should survive1. To create this species of tenancy, there must Swift v. Robe-1st, unity of interest; 2nd, unity of title; 3rd, unity of berts, 3 Burr. time; 4th, unity of possession. In other words, joint tenants have one and the same interest, accruing by one and the same conveyance, commencing at one and the same time, and held by one and the same undivided possession 2.

1488; Amb.

617.

22 Bl. Com.

180.

258.

Lake v. Gib1 Eq. Ca.

son,

Ab. 290, pl. 3.

Where two or more persons purchase lands, and advance the money in equal proportions, and take a conveyance to them and their heirs, this is a joint tenancy: but, where the proportions of the money are not equal, and this appears in the deed itself, this makes them in the nature of partners 3, and though the legal estate 82 Ves. sen. survives, yet the survivor is a mere trustee for the others, in proportion to the sums advanced by each. If two or more make a joint purchase, and afterwards one of them lay out a considerable sum of money in repairs or improvements, and dies, this, it seems, will be a lien on the land, and a trust for the representative of him who advanced it 4. Where the money is advanced in equal proportions, so that the purchasers are joint-tenants in equity as well as at law, a mere conveyance to a trustee, without any consideration, will not sever the tenancy, but the trust estate will go to the survivor in the same manner as the legal estate would have done 5. So, in the case of a joint undertaking or partnership, although the estate survives at law, yet the survivor will, in equity, be a trustee for the representatives of the deceased partner. Thus, where five persons purchased lands in fee of the commissioners of sewers, and, in order to improve and cultivate these lands, afterwards entered into articles, whereby they agreed to be equally concerned as to profit and loss, and that each of them should advance a certain sum to be laid out in the manurance and improvement of the land, the Master of the Rolls held, that they were tenants in common, and not joint tenants, as to the beneficial interest: but, as the lands survive at law, equity will not relieve, unless the party seeking relief will do equity; and therefore, in this case, as it appeared that the ancestor of the party seeking relief had quitted the concern for

5 Rex V.
Williams,
Sugd. V. & P.
App. No. 23.