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special provision must be superadded because it was a term of the previous tenancy, though in point of law there was no continuance of that tenancy but a new one.

Then was there evidence of an assent by the defendant to the terms contained in the lease, for without an assent there could be no contract? There was in fact no evidence, and all that can be assumed is the contract which is usual in the place where the premises lie, not any special term contained in a lease, of which the defendant was not bound to know. I do not rely on the improbability of a tenant for life assenting to such a condition, but it is satisfactory that in deciding in accordance with common sense we are deciding in accordance with the law.

Certain difficulties have been suggested by Mr. O'Malley, the chief of which was that unless this special term is imported into the contract, and the landlord is bound by it without his assent, he would be subject to one set of terms and the tenant would hold on another, which would be a solecism. In answer, a case might be put which would present as great a solecism of a different description. Assume that the original lessor had survived the late tenant, and that the plaintiff, his personal representative, had continued to hold (the lease having expired and been given up, or for some other cause not having come to his knowledge): assume further that the lessor had died during the tenancy of the present plaintiff; in such case neither the tenant nor the landlord would be aware of the terms of the lease; and if we put one solecism against the other, it would be a greater absurdity to conclude that one party should be bound by, and the other take advantage of, a contract of which they were both ignorant, than to hold that the contract was void for want of mutuality. But in truth there is no difficulty, for in every case it is a question of fact. A tenant stipulates, as he supposes, with the


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agent of his landlord, that the landlord shall repair a particular fence. After the tenant has paid rent for several years he calls upon the landlord to repair the fence; upon which the agent insists that there was no such stipulation; and the jury find that there was a mistake as to the terms of the agreement. But the mistake has not the effect of rendering the contract void, for the principal object of it being the letting of the land, a tenancy is created and the landlord may recover rent. A case (a) occurred a short time ago, where an indenture of lease was cancelled by the mutual consent of both parties, and it was nevertheless held that the tenure and rent remained.

BLACKBURN, J.-I am also of opinion that the judgment of the Court below ought to be affirmed. It

It appears from the case that the plaintiff is the representative of the tenant who was in the occupation of the land, and paying rent at the time the defendant became tenant for life. The defendant knowing that ill. a year had been paid for the premises, continued to receive the same rent. By the payment and acceptance of rent a tenancy from year to year was created upon the ordinary terms ; unless there is evidence that the parties agreed to any other terms, and then those terms must be superadded. If both parties had known that the terms upon which the premises were previously held were certain special terms, that would be reasonable evidence from which a jury might draw the inference that they agreed that the premises should be held on those special terms. But it is impossible to incorporate those terms into the agreement unless they were known. Where the continuing to hold after the expiration of a lease

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is evidence of a tenancy from year to year, it does not follow that all the terms of the lease are incorporated, but only those which are applicable to such a tenancy. Of course, there


be a case in which a new landlord may say to his tenant, “I know that you have been holding upon such and such terms, and I agree that


con: tinue to bold


those terms.” But if there is no such agreement, the mere receipt of rent is no evidence of an agreement to hold upon special terins, unless they are known to each party.

Applying those principles to the present case, it appears that there had been a lease which contained a covenant that the lessor should at the expiration of the lease take all fruit trees and shrubs planted by the lessee at a valuation. I do not construe that covenant as Mr. O'Malley has done. A nurseryman has a right to remove shrubs, but not to destroy trees; and I do not understand that the lessee deprived himself of his right to remove his stock-in-trade. The lease expired at Michaelmas, 1847, and the lessor, who was tenant for life, allowed the lessee to continue in possession upon the same terms as before. That might have led a jury to draw the conclusion that all the terms of the lease were incorporated with the yearly tenancy. But the lessor died in April, 1856, and the defendant, who became tenant for life of the premises, was utterly ignorant of the terms of the lease, and, as pointed out in the Court below, it is very improbable that she would have agreed to such a condition as this if she had known of it. How, therefore, can it be supposed that she agreed to terms of which she knew nothing?

KEATING, J.-I am also of opinion that the judgment of the Court below ought to be affirmed, on the simple ground


that the case finds as a fact that the defendant was ignorant of the terms of the lease.



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Mellor, J., MONTAGUE Smith, J., and Lush, J., concurred.

Judgment affirmed.


(Appeal from the Court of Exchequer.)

the Court of

that in a claim

upon land

Carr v. LAMBERT, WOODHALL and Others.

Feb. 8. This was an appeal against the decision of the Court of Held, in the

Exchequor Excheqner in making absolute a rule to enter the verdict Chamber

(a ffirining the for the defendants, pursuant to leave reserved at the trial. judgment of The pleadings sufficiently appear in the report of the case

Exchequer), in the Court below: 4 H. & C. 499.

of common of The case on appeal stated the facts as follows:-It was pasture for

cattle levant prored at the trial that at :he time of the alleged trespasses and couchant the defendant John Woodhall was possessed of a toftstead, appurtenant

thereto, the consisting of a cottage and stable with a garden and orchard


“levant and of the extent of about two acres. Evidence was given that about fifty years before the commencement of the action

means such

a number of this had been planted with fruit trees, but before that time cattle as the

land might it was swarth, and had been depastured with cattle. No maintain by

its produce direct evidence was given as to the number of cattle which beyond the it had then supported or was capable of supporting, and food obtained


by them from

the common, and that it is not necessary that they should be actually fed, eithor wholly or in part, from the produce of the land.

amount of




no point was raised at the trial on either side as to the necessity of proof on this subject.

After a great deal of evidence had been given, the learned Judge suggested that on the evidence the fact seemed clear that the owners of the toftstead had as of right turned the cattle housed on the toftstead, but not deriving their sustenance therefrom, on the locus in quo for more than thirty years, and that the only question was one of law, viz., whether such a right of common was legal, or, in other words, if such cattle were “levant and couchant." Both sides

” assented to this suggestion, and no other question was required to be or was in fact left to the jury; and thereupon the learned Judge directed a verdict to be entered for the plaintiff, reserving leave to the defendants to move to enter the verdict for them.


Hayes, Serjt. (Kemplay with him), argued for the plaintiff (a).— The peculiarity of the case is that for more than thirty years the defendants' cattle have not been “levant and couchant” upon the toftstead in respect of which the

" right to depasture the plaintiff's land is claimed. The judgment of the Court below proceeds on the ground that the expression “levant and couchant” means, first, the potentiality of the dominant tenement to support cattle, and, secondly, the measure of the number which it would suffice to feed if cultivated for that purpose. But there is no authority that a right of common of pasture exists for cattle which are not fed either wholly or in part upon the land in respect of which the right is claimed. No doubt the term “levant and couchant” is a loose expression. It is used in the sense pointed out by Bailey, J., in Cheesman V. Hardham (6), and also in the sense pointed out by

(a) Feb. 7. Before Willes, J., J., Smith, J., and Lush, J. Blackburn, J., Keating, J., Mellor, (6) 1 B. & Ald. 706. 711.

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