The plaintiff's occupancy of the farm was that of a tenant at will from year to year (P. S., c. 246, s. 1; Whitney v. Swett, 22 N.H. 10, 13) and as such entitled him to its annual fruits, of which the hay was one. Felch v. Harriman, 64 N.H. 472, 473; Plummer v. Currier, 52 N.H. 287, 296, and authorities cited. And this would still be so, even if the hay was subject to the restriction that it be fed out on the farm. Griswold v. Morse,59 N.H. 211, 214.

As tenant at will, the plaintiff was bound to carry on the farm in a husband-like manner. Whether he did so is a question, not of law, but of fact (Pickering v. Moore, 67 N.H. 533); and having been found in his favor by the referee, it may properly be regarded as equivalent to a finding that good husbandry did not require him to spend on the farm that portion of the hay now in controversy. Noyes v. Patrick, 58 N.H. 618, 619; Whittredge v. Edmunds, 63 N.H. 248, 249. Giving this effect to the finding, the defendant can have no cause of complaint as to the basis on which the damages were assessed by the referee; and if the plaintiff has any, he has failed to make it known.

Judgment on the report for the plaintiff.

All concurred. *Page 466