Templeman v. Biddle

1 Del. 522

• Court: Superior Court of Delaware
• Decided: July 5, 1835
• Status: Published

Opinion

The Court

said, a general custom may be proved without being pleaded; or perhaps it would be judicially noticed without being either proved or pleaded; but a custom obtaining only in a particular district or neighborhood must be pleaded. As an example of the former the custom is believed to be general throughout this state for the way-going tenant to sow and afterwards to reap a crop of wheat, there can be no such general custom as to an oat crop; for the time of renting generally in the lower counties is the first of March, and, in some parts of Kent, the first of January. In either case the way-going tenant could not sow oats and there can be, of course, no custom in those districts which authorizes his returning to reap an oat crop. In this county where the letting is generally from the 25th of March such a custom may exist; but if relied on it must be pleaded and proved.

Rodney, for plaintiff. W-m. JET. Rogers and J. Rogers, for defendant.

Question to a witness. What has been the course of tillage of this farm for 17 years past, as to the oat crop? Objected to.

By the Court. We have stated that a particular custom must be pleaded. The plff. therefore in this case can entitle himself to the oats only on the ground of contract. Does the question tend to prove such a contract? The usage of a tenant to sow oats each year and reap them while on the farm can have no relation to his rights after he has left it; or tend to prove any contract that he shall have the way-going crop. The common law does not give it to him; the custom, if there be such, is not pleaded, and the evidence offered is not admissible to show a contract. It is therefore excluded.

The plff. entered a nolle prosequi on the first and second counts of his declaration and went only for the trespass in treading down, &c. the wheat crop, for which he had a verdict.