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 The School of Law of Cornell University 
 
 And Presented February 14, 1893 
 
 IN nenoRY of 
 
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 By his Wife and Daughter 
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KDC 412^R2l" ""'"""* "*'"'' 
 
 ^"'l^mSS.SX'. '3*" o' teases In Scotlan 
 
 3 1924 024 629 333 
 
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 tine Cornell University Library. 
 
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THE LAW 
 
 LEASES IN SCOTLAND. 
 
Wnn fate of ^znszs in ^coihw^ 
 
 A TREATISE 
 
 THE LAW OF LEASES 
 
 U SCOTLAliD 
 
 JOHN RANKINE, M.A. 
 
 ADVOCATE 
 AITHOR OF 'the LAW OF LAND-OWNFKSHIP IN PCOTLANIJ ' 
 
 EDINBURGH 
 BELL & BKADFUTE, 12 BANK 8TEEET 
 
 LONDON : WILLIAM MAXWELL & SON 
 MDCCCLXXXVII 
 
EDINBURGH I 
 PRINTED BY LORIMER AND GILLIES, 
 31 ST, ANDREW SQUARE. 
 
PEEFACE. 
 
 In pursuance of a long-cherished project to attempt an exposi- 
 tion in full of the existing law relating to the possession of 
 land in Scotland, I had already collected the materials for an 
 independent work on Leases, when the publishers of Hunter on 
 ' Landlord and Tenant ' asked me to prepare a new edition 
 of that well-known work. The result of much study thereof 
 and of repeated consultation with practitioners, whose opinion 
 seemed to me decisive, was to convince me that a reproduc- 
 tion of its voluminous pages, brought down to date, would be 
 a misfortune rather than a boon to the profession. Its value as 
 a storehouse of authorities cannot be gainsaid and will never 
 be superseded. But it is pedantic, operose, and ill-arranged. 
 Too often its plan consists in setting down a string of rubrics 
 in order of date, without regard to logical sequence, and with- 
 out any attempt to seek out the principle or rule, which alone 
 makes a decision worth quoting ; and its historical disquisitions 
 needlessly encumber a treatise which was doubtless intended 
 mainly for use in practice. The publishers were pleased to 
 concur in the view that a concise treatment of the subject, 
 which should seek to amend these faults of method, and which 
 should be based — as all works on the Scottish Law of Leases 
 must, consciously or unconsciously, be based — on Mr. Hunter's 
 
V] PREFACE. 
 
 wor 
 
 )rk, might usefully take its place for every-day use ; and the 
 present book is the result. I may add that the main outcome 
 of their application to me has been that I have felt myself 
 entitled to use here and there Mr. Hunter's own words, where 
 they seemed to me fehcitous ; and that I have been scrupulous 
 in retaining his references, except where the authorities quoted 
 are plainly obsolete, and in noting the passages in which I 
 have ventured to differ from him. 
 
 A retrospect of the impressions made on me in writing the 
 present work and my treatise on Landownership emboldens me 
 to suggest a caution to those who may consult this volume. 
 In the earlier book, the relations discussed were, as a rule, 
 those of persons at arm's-length, depending on the public law 
 and not much complicated by agreements. The relation 
 of landlord and tenant is, on the contrary, in its origin purely 
 contractual. And it should always be borne in mind, before 
 venturing to rely on a precedent, that it may be a safe policy 
 to compare with the contract in hand the whole agreement 
 with which the decision consulted is concerned. 
 
 The references to Mr. Hunter's work are to the third edition 
 (1860). The law is brought down to the end of March 1887. 
 
 In preparing this work, I have had the kind assistance of 
 many conveyancers of distinction, to whom I beg thus to return 
 my warmest acknowledgments. And I cannot sufficiently 
 congratulate myself on the good fortune of having again had 
 the valuable assistance of my friend, Mr. Alexander Moody 
 Stuart, Advocate, who has gone over the proof-sheets, and 
 made many important suggestions. 
 
 J. E. 
 
 23 AiNSLiB Place, Edinburgh, 
 May 1887. 
 
CONTENTS. 
 
 List of Cases cited, . 
 List op Statutes cited, 
 List of Acts of Sederunt cited, 
 
 Definition, 
 
 PART I. 
 
 CONSTITUTION OF A LEASE. 
 
 A. THE PARTIES TO A LEASE. 
 
 CHAPTER I.— PERSONAL AND OFPICIAL DISABILITY. 
 
 A. Personal Incapacity — 
 
 I. Pupillarity, 
 II. Insanity, 
 
 III. Forfeiture, 
 
 IV. Obsolete disabilities, 
 V. Minority, 
 
 VI. Marriage, 
 
 B. Disability arising from oflBce- 
 
 I. Trust administration, 
 
 1. Crown, 
 
 2. Cburcb, 
 
 3. Corporations, 
 
 Universities, 
 Burgbs, . 
 Miscellaneous, 
 
 4. Trustees, 
 II. Factors, . 
 
 CHAPTER II. -LIMITATION OF TITLE. 
 
 I. Want of infeftment, ..... 
 
 II. Conveyance to, and diligence by, creditors, 
 III. Co-existence of a conjunct or correlative title in another party, 
 A. Entail, ...... 
 
 Powers in deed of entail, .... 
 
 Leases of ordinary administration, 
 
 Statutory relaxations, .... 
 
 Exceptional subjects (minerals, woods, mansion-bouse), 
 
 PAGE 
 XV 
 
 xxxvii 
 xl 
 
 5 
 15 
 16 
 18 
 19 
 22 
 
 25 
 26 
 29 
 32 
 32 
 33 
 36 
 37 
 41 
 
 43 
 44 
 49 
 49 
 50 
 51 
 58 
 67 
 
VIU 
 
 CONTENTS. 
 
 B. Fee and liferent, . 
 
 G. Joint and common rights, . 
 
 1. Apart from partnership, 
 
 2. Partnerships and companies, 
 D. Leasehold, . 
 
 PAGE 
 
 71 
 
 74 
 74 
 77 
 79 
 
 B. THE SUBJECTS LET. 
 CHAPTER III. . 
 
 80 
 
 a THE CONTRACT. 
 CHAPrER IV.— CONSTITUTION AND PROOF OF THE CONTRACT. 
 L General rules as to contracts, illustrated from leases, 
 II. Constitution of the contract, 
 
 Stamping, .... 
 Articles of lease. 
 Admissibility of parole. 
 Cardinal parts of a lease, 
 III. Proof of leases not formally constituted, . 
 
 1. For not more than a year, 
 
 2. For more than a year, 
 
 A. Evidence instructing an agreement, 
 
 1. Writ, 
 
 2. Oath, 
 
 B. Bei interventus, . 
 
 CHAPTER v.— LEASE AS A 
 
 Act 1449, c. 17, . 
 
 I. Against whom it gives protection, . 
 II. Requisites of a real right of lease — • 
 
 1. Writing, .... 
 
 2. Land and fiindo annexa as subjects, . 
 
 3. Possession : registered leases, 
 
 4. Definite ish, .... 
 
 5. Specified rent. 
 
 3es, 
 
 84 
 
 
 89 
 
 
 92 
 
 
 96 
 
 
 97 
 
 
 101 
 
 
 103 
 
 
 103 
 
 
 106 
 
 
 107 
 
 
 107 
 
 
 112 
 
 
 112 
 
 AL RIGHT. 
 
 
 
 117 
 
 
 117 
 
 
 119 
 
 
 120 
 
 
 121 
 
 
 124 
 
 
 129 
 
 CHAPTER VI.— PROROGATION AND RENEWAL OF LEASES, 133 
 
 CHAPTER VII.— RENTAL RIGHTS, . .137 
 
 PART II. 
 
 EIGHTS AND OBLIGATIONS OF PARTIES DUEING THE 
 CURRENCY OE A LEASE. 
 CHAPTER VIIL— SUCCESSION TO THE LESSEE. 
 Heir-at-law, •••..... 
 Displacement of his right, ■••... 
 
 Special destinations, ..... 
 
 143 
 
 146 
 
 147 
 
CONTENTS. 
 
 IX 
 
 Bequest, ......... 
 
 Abandonment by heir, ....... 
 
 Incidence of liabilities among representatives, . . . . 
 
 Terce : courtesy : collation, ...... 
 
 CHAPTER IX.— ASSIGNATION AND SUBLEASE. 
 
 I. Power to assign and sublet, . . . . . 
 
 1. At common law, ...... 
 
 2. Express exclusion of assignees and subtenants, 
 
 II. Mode of rendering assignations and subleases effectual — 
 
 A. Assignation — 
 
 1. At common law, ..... 
 Possession requisite in questions with third parties, . 
 
 2. The Registration of Leases (Scotland) Act, 1857, 
 
 B. Sublease, . . . , . 
 
 III. Rights and obligations arising out of assignation and sublease — 
 
 A. Out of assignations, ...... 
 
 B. Out of subleases, ...... 
 
 PAGK 
 
 148 
 153 
 154 
 155 
 
 157 
 157 
 161 
 
 165 
 
 167 
 Vrl 
 174 
 
 178 
 180 
 
 CHAPTER X.— TENANT'S RIGHT AND OBLIGATION TO POSSESS. 
 
 A. Tenant's right to possession, ...... 184 
 
 I. To be put in possession of the whole subject let, . . 185 
 
 Reservations in favour of the landlord, .... 191 
 
 II. To be maintained in possession, ..... 195 
 
 Warrandice: eviction, ...... 196 
 
 a. Partial eviction (damages and abatement of rent), . . 199 
 
 6. Total eviction (reduction, abandonment, abatement), . £04 
 
 Insurance, . . . . ' . . . . 210 
 
 Interdict, . . . . . . . .211 
 
 B. Tenant's obligation to take and retain J)ossession — 
 
 1. To take possession, ....... 212 
 
 2. To retain possession, ....... 212 
 
 3. Not to invert possession, .... . 214 
 
 CHAPTER XI.— REPAIES. 
 
 I. In urban leases, 
 II. In agricultural leases, 
 III. In mining leases, &c.. 
 
 Remedies : transmission of liability. 
 
 219 
 222 
 225 
 226 
 
 CHAPTER XII. 
 
 -IMPROVEMENTS AND THE AGRICULTURAL 
 HOLDINGS ACT. 
 
 Liability for improvements, ..... 
 I. Stipulations for tenants' improvement compensation — 
 
 1. The obligation and right, .... 
 
 2. The parties thereto, ..... 
 
 II. As affected by the Agricultural Holdings (Scotland) Act, 1883, 
 
 1. Subjects of the Act, ..... 
 
 2. Persons affected, ..... 
 
 228 
 
 230 
 233 
 237 
 239 
 239 
 
CONTENTS. 
 
 3. Rights interfered with, 
 
 4. Compensation for improvements, 
 
 5. Procedure for ascertaining amount thereof, 
 
 f 4GK 
 
 240 
 241 
 246 
 
 Do. charging compensation money, • • • "^*° 
 
 CHAPTER XIII.— LANDLORDS' FURNISHINGS: FIXTURES. 
 
 Nomenclature, ... . . . • • 251 
 
 I. Landlords' furnishings, .....•• 252 
 
 1. Furnished dwelJing-houses, . . . . • • 252 
 
 2. Shops with fittings ; mines and factories with machinery, . 252 
 
 3. Lodgings, ........ 252 
 
 4. Factory, machinery, and steam-supply, . . 254 
 
 5. Bowing of cows, ... . 255 
 
 6. Steelbow, . . .256 
 II. Fi-xtures, . . . . . 257 
 
 A. The physical fact of annexation, . ... 260 
 
 B. Intention, ........ 261 
 
 I. Non-agricultural subjects — 
 
 1. For ornament, convenience, or domestic use, . . 262 
 
 2. For purposes of trade or manufacture, . . 263 
 II. Agricultural subjects : the Agricultural Holdings Act, . 266 
 
 0. Construction of special stipulations, ..... 269 
 
 D. Time and mode of removal, ...... 271 
 
 CHAPTER XIV.— RENT. 
 
 Definition, ...... . . 273 
 
 I. Forms of rent : money : grain : royalty, &c., . . 274 
 II. Discharge of the obligation to pay rent — 
 
 A. Mode of payment, ... . . 279 
 
 B. Parties to the payment, . . .281 
 G. Discharge — proof of payment — 
 
 1. Express discharge, . . 232 
 
 2. Tacit discharge : apocha, . . . 284 
 
 3. Prescription, ... . , 285 
 
 4. Compensation, . ... 287 
 
 5. Retention, ... . . 289 
 
 6. Abatement or reduction, . . . 296 
 
 CHAPTER XV.— TIME : TERMS : APPORTIONMENT. 
 
 I. Time of entry, ...... 299 
 
 II. Terms of payment of rent, .... 302 
 
 III. Apportionment — 
 
 .4. Of liability, among tenant's successors, . . 304 
 
 B. Of right to rents, among lessor's successors. . . 305 
 
 G. As affected by the Apportionment Acts, . . . _ 3]^q 
 
 D. As between vendor and purchaser, . . . 3jo 
 
CONTENTS. XI 
 
 CHAPTER XVI.— REMEDIES FOR RECOVERY OF RENT. 
 
 316 
 319 
 
 322 
 323 
 325 
 
 328 
 333 
 334 
 334 
 336 
 337 
 
 339 
 340 
 341 
 342 
 
 I. Summary diligence, ...... 
 
 II. Action of maills and duties : multiplepoiuding, 
 III. Sequestration consequent on hypotliec — 
 
 I. Nature of the right of hypothec, .... 
 
 II. Parties having right of hypothec, 
 
 III. Leases under which hypothec is and is not available, . 
 
 IV. Subject matter of hypothec — 
 
 1. In urban tenements : invecta et illata, 
 
 2. In mines and quarries, .... 
 
 3. In fisheries, ...... 
 
 4. In agricultural and pastoral subjects : crop and stockini 
 
 5. In horticultural subjects, .... 
 V. Duration of hypothec, . . . 
 
 VI. Rights to which hypothec is postponed in competition — 
 
 1. Crown debts, &c., ..... 
 
 2. Superior's hypothec, 
 
 3. Servants' wages, ' . . . 
 
 4. Deathbed and funeral expenses, 
 VII. Mode of making the hypothec effectual — 
 
 A. Retention of the subjects attached, . 342 
 
 1. Previous to term of payment, .... 343 
 
 2. After term of payment, . . . 344 
 
 B. Recovery of hypothecated subjects when removed, . 344 
 0. Hypothec in competition — 
 
 1. Tenant's creditors in competition, . . . 345 
 
 2. Purchasers — 
 
 (a) Sale by bulk in open market, . . 346 
 
 (6) Agricultural produce protected by Statute, . 347 
 
 3. Intermediate lessees : effect of sublease, . . 348 
 
 D. Plenishing order, ...... 350 
 
 E. Sequestration and sale — 
 
 1. Sequestration : — recall, breach, wrongful sequestration, 352 
 
 2. Sale, . .... 357 
 Courts : registration, ..... 358 
 
 VIII. Forfeiture of hypothec, . . ... 360 
 
 IV. Recourse against cautioner, ...... 360 
 
 CHAPTER XVII.— MANAGEMENT : USUAL CONDITIONS. 
 
 A . Rules of management — 
 
 I. In agricultural leases, .... . 364 
 
 1. Management during currency, . . . 367 
 
 2. Management towards and at ish — 
 
 (a) Grass at ish, ..... 368 
 
 (6) Conditions relating to waygoing crop, . . 369 
 
 (c) Conditions relating to dung and its ingredients, , 374 
 
 II. In pastoral farms, ....... 378 
 
 III. In urban subjects, . .... 378 
 
 1. Restriction on landlord setting up a rival trade, . 379 
 
 2. Restrictions on tenant — 
 
 (a) Building on subjects let, . . 380 
 
Xll 
 
 CONTENTS. 
 
 (6) Setting up any trade or business, 
 
 (c) Setting up any noxious trade, . 
 
 (d) Setting up a particular trade, . 
 
 (e) Dealing with, particular persons, 
 IV. In mineral subjects — 
 
 1 . As to mode of working, 
 
 2. Surface damages, 
 
 3. Communication of levels, 
 
 4. Barriers, .... 
 
 5. Support, 
 ti. Miners' cottages, 
 7. Restoration of ground, . 
 
 V. In fisheries, shootings, mills, 
 
 B. Remedies — 
 
 1. Action of damages : acquiescence : measure of damages, 
 
 2. Summary application for inspection : miscellaneous remedies, 
 
 3. Interest ; penalty and additional rent, 
 
 (a) Interest, . . . . • • 
 
 (J) Additional (pactional) rent and penalty, 
 
 4. Arbitration, ....•■ 
 
 C. Real and personal conditions. 
 Apportionment of liability and rights, 
 
 PAGE 
 
 380 
 381 
 382 
 383 
 
 384 
 385 
 386 
 388 
 388 
 389 
 389 
 390 
 
 390 
 394 
 395 
 396 
 397 
 402 
 407 
 410 
 
 CHAPTER XVIII.— WILD ANIMALS : GAME : BIRDS PROTECTION ACTS. 
 
 I. Rights and obligations of occujiiers of land in general — 
 
 (a) Wild Birds Protection Acts, .... 
 
 (5) Game and rabbits, ...... 
 
 Poaching Acts : game licence : gun licence : poison : firearms, 
 Muirburn, ....... 
 
 II. Rights and obligations of occupiers of land in questions with their land- 
 lord and his game tenants, .... 
 
 Fundamental rules : vermin, .... 
 
 Damage from game or rabbits : Game Laws Amendment Act, 1877 
 Ground Game Act, ...... 
 
 III. Leases of game and fishings, ..... 
 
 413 
 413 
 414 
 418 
 
 420 
 420 
 423 
 427 
 431 
 
 PART III. 
 
 TEEMIKATION OF LEASES. 
 CHAPTER XIX.— REMOVING GENERALLY. 
 Nomenclature, ....... 
 
 I. Removing (including ejection) the exclusive remedy, 
 II. Title to sue, ...... 
 
 III. Defenders, ....... 
 
 439 
 440 
 441 
 447 
 
 CHAPTER XX.— TERMINATION DURING CURRENCY. 
 I. Renunciation of leases, ....... 449 
 
 II. Breaks, .... . . . 453 
 
CONTENTS. 
 
 XUl 
 
 III. Irritancies — 
 
 A. Legal irritancies : at common law ; A.S. 1756 : and statute, . 458 
 
 B. Conventional irritancies : non-payment of rent : bankruptcy, &c., 466 
 
 C. Mode of enforcement : purgation, ..... 470 
 
 CHAPTER XXI.— TERMINATION AT ISH : ORDINARY REMOVINGS. 
 
 I. Procedure where there is express obligation to remove or an equivalent, 474 
 
 II. Solemn Removings : Act 1555, c. 39, and later A.S. and statutes, . 481 
 
 Action of removing, . . . . . . . 485 
 
 Violent profits, ........ 487 
 
 Decree of removing : ejection, ...... 493 
 
 Review by suspension, ....... 495 
 
 Wrongous ejection, ....... 497 
 
 III. Removings to which Act 1555 and A.S. 1756 do not cjpply : summary 
 
 removings, ,. . . . . . . . 498 
 
 Urban tenements at common law, ..... 499 
 
 Small holdings : Sheriff Court Act, 1838, . . . .503 
 
 Summary ejection: lieir of liferent tenant: employees: squatters: 
 
 non-plenishing, ....... 504 
 
 Notice by tenant of intention to quit, . .... 508 
 
 CHAPTER XXII.— TACIT RELOCATION. 
 Origin : subjects : parties : pleas : duration, . 
 
 509 
 
 CHAPTER XXIII.— THE CROFTERS HOLDINGS (SCOTLAND) ACT, 1886. 
 
 513 
 
 e : ueuxuuuxiH ; luauuiuery : ruieb ui uumuiiHSiuu, 
 
 1. Security of tenure, ...... 
 
 516 
 
 2. Kent, . 
 
 517 
 
 3. Renunciation of tenancy, . ... 
 
 520 
 
 4. Compensation for improvements, .... 
 
 520 
 
 5. Enlargement of holdings, ..... 
 
 521 
 
 6. Succession and bequest, .... 
 
 522 
 
 PART IV. 
 
 QUESTIONS WITH THIED PAETIES. 
 
 CHAPTER XXIV.— QUESTIONS WITH CREDITORS OF A TENANT. 
 
 I. Effect of tenant's bankruptcy on the lease, . . . . .527 
 
 1. Leases excluding assignees and subtenants, . . 529 
 
 2. Where there is no operative exclusion, .... 531 
 II. Competition among tenant's creditors — 
 
 1 . Landlord's hypothec, ....... 533 
 
 2. Poinding : growing corns : plough-goods, .... 534 
 
 3. Poinding of the ground, ...... 535 
 
 4. Other diligence, . . , . , 536 
 
xiv CONTENTS. 
 
 CHAPTER XXV.— QUESTIONS ARISINO OUT OF NEIGHBOURHOOD 
 AND PUBLIC RIGHT. 
 
 PAGE 
 
 Interest of landlord and tenant : culpa: nuisance : servitude : public right, . 537 
 
 I. Action by tenant against third parties, . . . 538 
 
 II. Action by third parties against landlord and tenant, 541 
 
 III. Questions between tenants of the same landlord, . 547 
 
 CHAPTER XXVI.— PRIVILEGES AND PUBLIC BURDENS INCIDENT 
 
 TO TENANCY. 
 
 I. Privileges independent of strictly correlative burdens— 
 
 1. Eight to church-sittings and burial-places, . . . 548 
 
 2. Parliamentary franchise, ...... 549 
 
 II. Public burdens of tenants and the correlative privileges — 
 
 A. Parochial — 
 
 1. Parochial ecclesiastical burdens, . . 557 
 
 2. Poor rates, . . ... 558 
 
 3. School rates, . . . 560 
 
 B. Parochial-burgal — 
 
 Public Health and cognate Acts, .... 461 
 
 G. County and similar burgh assessments : police, &c., . . 563 
 
 Contagious Diseases (Animals) Acts, . . 566 
 
 Roads and Bridges Act ; and miscellaneous, . . 568 
 
 D. Imperial taxes, ... ... 570 
 
 III. Relief by agreement, . ... 570 
 
 APPENDIX OF STATUTES AND FOEMS. 
 
 I. 20 & 21 Vict. c. 26 [Registration of Long Leases (Scotland) Act, 1857], 575 
 
 II. 46 & 47 Vict. c. 62 [Agricultural Holdings (Scotland) Act, 1883], . 583 
 
 III. 30 & 31 Vict. c. 42 [Hypothec Amendment (Scotland) Act, 1867], . 597 
 
 IV. 43 Vict. c. 12 [Hypothec Abolition (Scotland) Act, 1880], . . 600 
 V. 40 & 41 Vict. c. 28 [Game Laws Amendment (Scotland) Act, 1877], . 601 
 
 VI. 43 & 44 Vict. c. 47 [Ground Game Act, 1880], . . . .605 
 
 VII. 1555, c. 39, . . 608 
 
 VIII. Act of Sederunt anent Removings — (14th December 1756), . . 609 
 
 IX. 1 & 2 Vict. c. 119 (Sheriff Court Act, 1838), . . . 610 
 
 X. Sheriff Court Act, 1853 (16 & 17 Vict. c. 80, sects. 29-31), . . 613 
 
 XL 49 & 50 Vict. c. 50 [Removal Terms (Scotland) Act, 1886], . . 615 
 
 XII. 49 & 50 Vict. c. 29 [Crofters Holdings (Scotland) Act, 1886], . . 617 
 
 Rules and Regulations issued by the Crofters Commission under the 
 
 above Act, . . ... . 630 
 
 XIII. Conditions of Lease of Arable and Grazing Farms, . . . 635 
 
 XIV. Farm Lease dated subsequently to the Agricultural Holdings Act, 1883, 644 
 XV. Farm Lease in view of Agricultural Holdings Act, . . .650 
 
 XVI. Lease of a Shop, ...... . . 658 
 
LIST OF CASES CITED. 
 
 N.B. — Leading names pronounced similarly, and here recurring, are spelt in their 
 most common form. 
 
 A V. B (1541), 321. 
 (1629), 46. 
 (1634), 283. 
 (1680), 444. 
 (1681), 535. 
 (1743), 344. 
 (1791), 105. 
 (1829), 11. 
 (1841), 11. 
 A V. Cunningham, 283. 
 
 V. Duncan, 535. 
 
 ■I). Ms. Huntly, 5. 
 Abbot V. Mitchell, 45. 
 Abercorn, D. v. Edinburgh Presb., 549. 
 
 E. V. Wallace, 388. 
 Abercromby v. Einlay, 463. 
 Aberdeen, E. u. Earquhar, 33. 
 
 Old Coll. v. E. Northesk, 472. 
 
 Old Coll. u. Town, 33. 
 Aberdour Hers. v. Koddick, 30. 
 Abemethie v. Gordon, 57. 
 Aboyne, E. v. Grant, 530. 
 
 V. Innes, 431. 
 
 V. Ogg, 97, 99, 110, 116. 
 
 V. Vassals, 509. 
 Adair v. Kay, 552. 
 
 V. Murray, 551. 
 Adam v. Napier, 278. 
 
 V. Sutherland, 330, 331, 340. 
 Adams v. Dunseath, 241, 519. 
 
 V. M'Dougall, 351. 
 Adamson v. Aiabrose, 340. 
 
 V. Balmerino, 536. 
 
 V. Marshall, 224. 
 Addie v. Young, 212, 301. 
 Adshead v. Wright, 552. 
 Adv., L. V. Ardnamurchan Tenants, 442. 
 
 V. Forgan, 535. 
 
 V. Eraser, 102, 118, 122, 127. 
 
 V. Stevenson, 310. 
 Affleck V. Affleck, 15. 
 Aglionby v. Watson, 88, 146. 
 Agnew V. Agnew, 283. 
 
 V. Coroaphie, 441. 
 
 Agnew V. Gillespie, -57. 
 
 V. Maoniven, 63. 
 Aim's Tr. v. Aim, 149. 
 Ainsly u. Chisholm, 283. 
 Aitchison v, Benny, 150. 
 
 •</. Glasgow Mags., 201. 
 Aitken v. Harper, 252. 
 
 Trs. V. Shanks, 78. 
 Alton V. Hume, 306. 
 
 V. Tenants, 129. 
 Alexander v. Badenacb, 362. 
 
 V. Couper, 211. 
 
 ■I). Dornoch Tenants, 442. 
 
 V. Gillon, 237. 
 
 ■I). Jackson, 458, 459, 464. 
 
 V. Thomson, 20. 
 
 Trs. D. Dymock's Trs„ 405, 406. 
 Alison, 37. 
 
 V. Campbell's Creds., 322. 
 
 V. Proudfoot, 143, 158. 
 
 K. Ritchie, 127, 129. 
 Allan V. Allen, 263. 
 
 ■„. King's Coll., 32. 
 
 ■i>. Markland, 207, 208. 
 
 v. Thomson, 375. 
 
 f. Walker, 445. 
 Allaway v. Wagstaff, 192. 
 AUhusen v. Brooking, 427. 
 Amaan v, Handyside, 188. 
 Anderson, 12, 40. 
 
 V. Abel, 498. 
 
 V. Aberdeen Agricnltural Hall Co., 382. 
 
 V. Alexander, 159, 216. 
 
 V. Gordon, 288. 
 
 V, Kerr, 634. 
 
 V. M'CaUum, 186. 
 
 V. Renfrew Mags., 34. 
 
 V. Stewart, 542. 
 
 c.. Thomson, 258. 
 
 V. Tod, 372. 
 
 V. Tuaoh, 103. 
 Andrew v. Colquhoun, 497. 
 
 V. Morison, 225, 266. 
 
 V. Smith, 553. 
 
XVI 
 
 LIST OF CASES CITED. 
 
 Angus V. Dalton, 205. 
 Annand v, Chessels, ii2. 
 
 V. Elliston Tenants, 280. 
 
 V. Grant, 13. 
 
 V. Tenants, 486. 
 Annexed Estate Comrs. v. M'Nab, 301. 
 Anon, 12, 13. 
 Anstruther v. Anstmther, 50. 
 
 V. Anstruther's Trs., 313. 
 
 V, Greenshields, 469, 472. 
 
 V. Williamson, 551. 
 Arbuthnot v. Campbell, 91, 107. 
 
 V. Colquhoun, 131, 236, 237, 293, 408. 
 
 V. Knnart's Creds., 304, 313, 314. 
 
 V. Reid, 91, 108, 119. 
 Ardross Heirs v. Dishington, 445. 
 Ardwell r. M'CuUooh, 445. 
 Argyle, Cs. v. E. Argyle, 77. 
 
 D. ij. M'Arthur, 214. 
 
 E. a. M'Naughton, 491. 
 Cs. V. Sheriff of Moray, 476. 
 D. V. Russel, 476. 
 
 D. v. Russell, 482. 
 
 Bp. V. Commissary, 509. 
 
 Bp. V. "Walker, 509, 610. 
 Arkwright v. Billinge, 265, 266. 
 Armour v. Lands, 6, 102. 
 Armstrong v. Bryoeson, 215. 
 Arnot V. Bell, 463. 
 
 V. Greig, 535. 
 Astbury, ex parte, 260. 
 Athole, D., 434. 
 Auchinbreck's Factor v. Maclaughlan, 126, 
 
 131, 290. 
 Auld V. Baird, 254. 
 Aveland v. Lucas, 569. 
 Avery v. Cheslyn, 263. 
 Ayton, 101. 
 
 Baillie v. Cuthbert, 306, 308. 
 
 V. Fraser, 99, 100, 409. 
 
 V. Hay, 83. 
 
 ■a. Ly. Letham, 23. 
 
 V. Lockhart, 310. 
 
 V. Maokay, 214. 
 
 V. Mackintosh, 441. 
 
 ■0. Somerville, 90, 112. 
 Bain v. Stewart, 93. 
 Baird v. Brown, 534. 
 
 V. Graham, 392. 
 
 ■i>. Harper, 370. 
 
 (7. Inglia, 220, 230, 233. 
 
 V. Kilsyth Feuars, 540. 
 
 ■a. Mount, 233, 283, 391, 394, 395, 397, 
 400. 
 Bald's Trs. v. Alloa Colliery Co., 389. 
 Balfour v. Lyle, 282. 
 Ball, 11. 
 Ballantine v. Stevenson, 91, 116. 
 
 ■II. Watsons, 534. 
 Ballantyne v. Carter, 113. 
 Balmer v, Hogarth, 188. 
 Balmerinooh v. Durham, 279. 
 Bandeane v. Balgemo, 46. 
 Bannatyne v. Finlayaon, 324. 
 
 V. Scott, 179. 
 
 Trs. V. Cunninghame, 310. 
 
 Barbour v. Bell, 444, 488. 
 Barclay v. G. N. of Scotland Ry., 392, 539. 
 V. E. Fife, 233. 
 V. Neilson, 97, 222, 229, 233. 
 V. Simson, 276. 
 Bargaddie Coal Co. a Wark, 292. 
 Bargenie, L. v. Stuart, 510. 
 Bamfield v. Stewart, 235. * 
 Barns v. Allan & Co., 347. 
 Barr v. Cochrane, 227. 
 V. M'llwham, 260. 
 Barrach, Ly. o. Reisgill Tacksmen, 467. 
 Barrhead By. v. Caledonian Ry., 568. 
 Barron's Trs. v. Hunter, 247. 
 Bartlet v. Stewart, 477. 
 Bartoum v. Duncan, 499. 
 Bathie v. L. Wharncliffe, 109. 110, 115, 116. 
 Battishill v. Reed, 540, 641. 
 Baxter v. Munro, 34. 
 V. Paterson, 212. 
 V. Taylor, 540. 
 Baynes v. Smith, 329. 
 Beaton v. Scott, 118. 
 Beatson, 9. 
 Beattie v. Lambie, 401. 
 
 V. M'Gregor, 405. 
 Beck, 33. 
 
 V. Rebaw, 263. 
 Bee V. Wallace's Trs., 41. 
 Begbie v. Boyd, 264, 304, 327, 337. 
 V. Brown, 36. 
 V. Frame, 211. 
 Belhaven v. Ly. Luss, 257. 
 Bell V. Anderson, 393. 
 
 V. Andrews, 328, 329, 330, 331. 
 V. BeU,115. 
 
 V. GoodaU, 108, 113, 116. 
 r. Gunn, 320. 
 
 V. Lament, 132, 230, 237, 293, 408, 409. 
 f. D. Queensberry's Erxs., 197, 204. 
 V. Twentyman, 540. 
 Belschier v. Caddell, 222. 
 
 V. Moffat, 73. 
 Belshes V. Fraser, 194, 195. 
 I/. Lowden Tenant, 320. 
 Bennet v. Foulden, 283. 
 
 V. Turnbull, 126. 
 Bennie v. Mack, 363. 
 Benton v. Craig's Tr., 171. 
 Beresford's Trs. v. Gardner, 85, 90. 
 Berry v. Allan, 375. 
 Bertram v. Guild, 195, 527, 633. 
 
 V. Stewart's Trs., 286. 
 Berwick, 38. 
 Bethune v. Jervis, 192. 
 
 V. Morgan, 164, 212, 237. 
 V. Tenants, 459. 
 Tenants v. Bethune, 478. 
 Bttt V. Murray, 170, 475, 511. 
 Bidder v. Trinidad Petroleum Co., 270. 
 Biggar v. Scott, 341. 
 Binny v. Binny, 308, 309. 
 
 «. Sinclair, 168. 
 Binning, Ly. v. Sinclair, 459. 
 Birch V. Dawson, 263. 
 Birkbeok v. Ross, 134, 136. 
 V. Ross, 433, 434. 
 
LIST OF CASES CITED. 
 
 XVll 
 
 Birkmyre, 40. 
 
 Birrel v. .Tones, 414. 
 
 Bishop V. Bedford Charity Trs., 544. 
 
 V. EUiott, 263, 270. 
 Bisset V. Caldwell, 329. 
 
 V. Whitson, 199, 499. 
 Blaooadder v. Cockburn, 284, 285. 
 Black V. Bradshaw, 415. 
 Blackburn v. Gibson, 47. 
 
 V. Wilson, 279. 
 Blackwood v. Alexander, 328. 
 
 1/. Moflfat, 555. 
 
 ■i/. Ruickbie, 554. 
 
 V. Thorburn, 555. 
 Blaikie v. rarquharson, 307, 310, 312. 
 Blain v. Ferguson, 476, 511. 
 
 V. Morison, 182, 350. 
 Blair v. Eaptie, 555. 
 
 V. Blair, 156. 
 
 V. Brown, 464. 
 
 V. Galloway, 45, 274. 
 
 V. Lyall, 371. 
 
 V. Robson, 289. 
 
 V. Torrance, 555. 
 Blanc V. Greig, 211. 
 Blantyre, L. v. Dunn, 235, 452. 
 Blaus V. Winraham, 306. 
 Blyth V. Craig, 14, 452, 453. 
 Boag V. Jamieson, 363. 
 
 V. M'Laine, 342. 
 
 V. Wight, 193. 
 Bond V. St. George Parish, 551. 
 Bonomi v. Backhouse, 540. 
 Bontine v. Bontine, 49, 50. 
 
 V. Boyd, 69. 
 
 ■I/. Carriok, 69. 
 
 V. Dunlop, 57. 
 
 K. Graham, 57. 
 Borrows v. Colquhoun, 162, 440. 
 Borthwick, Ly. v. Catkune Tenants, 282. 
 
 V. Scott, 486. 
 BosweU V. Tenants, 471. 
 
 Trs. V. Pearson, 441. 
 Bow V. Stirling Mags., 38. 
 Bowaok V. CroU, 157, 167, 178. 
 Bowhill, L. V. Jackson, 288. 
 Bowie V. Duncan, 291, 294. 
 Boyd, 63, 70. 
 
 V. Boyd, 69. 
 
 •». King's Adv., 76, 77. 
 
 ■u. M'Kenna, 96. 
 
 ■•,. Millers, 321. 
 
 V. Russel, 257. 
 
 V. Storrie, 283. 
 Boyes v. Henderson, 287. 
 Boyle V. Crauford, 23. 
 Boyn, Ly. v. Tenants, 442. 
 Braco v. Innes, 90, 105, 112. 
 Bramwell v. Lacy, 381. 
 
 Brand's Trs. v. Brand's Trs.,258, 259, 261, 265. 
 Breadalbane, B. v. Jamieson,' 58, 68. 
 
 V. Livingstone, 421. 
 
 V. M'Lauohlan, 46. 
 Brims v. Ferrier, 355. 
 Brisbane's Trs. v. Lead, 229, 491. 
 Bristol Corp. ti. Westcott, 162. 
 British Linen Co. v. L. Reay, 234. 
 
 Brbadwood v. Hunter, 392, 424, 426. 
 Brock V. Buchanan, 15, 394. 
 
 V. Cabbell, 168, 170,172. 
 
 V. Cochrane, 146. 
 Brodie, 12. 
 
 V. Cash, 219. 
 
 V. Murdoch, 371. 
 Brook V. Roberts, 271, 272. 
 Broomfield v. Young, 91, 401. 
 Brown, 11, 12, 452. 
 
 V. Birtwhistle, 318. 
 
 V. Blackwood, 654. 
 
 V. Brown, 201. 
 
 V. Coll. of St. Andrews, 89, 373. 
 
 V. Gardiner, 295. 
 
 V. Hill, 482. 
 
 V. Ingram, 550. 
 
 V. L. of C, 463. 
 
 V. Lang, 443. 
 
 V. Maxwell, 185. 
 
 •</. Notley, 539. 
 
 u. Ogilvie, 134. 
 
 ■u. Peacock, 475, 476, 482. 
 
 ■u. Robertson, 211. 
 
 V. Russell, 644. 
 
 V. Scott, 274. 
 
 V. Sinclair, 335. 
 
 V. Smith, 553. 
 
 V. Thomson, 417, 418, 429. 
 
 V. Watt, 570. 
 
 Tutors, 6, 11. 
 Brownlie v. Miller, 188. 
 Bruce, 103. 
 
 V. Buchau, 282, 283. 
 
 V. Grant, 321. 
 
 V. Hunter, 74, 444. 
 
 V. Kinloch, 469. 
 
 V. M'Leod, 237, 410. 
 
 V. Assessor of Zetland, 83. 
 Brunton, Ly., 302, 310. 
 Brydges v. Fordyce, 310. 
 Buooleuch, Ds. v. Davidson, 483. 
 
 D. V. Elliot, 49. 
 
 D. V. Ewart, 60. 
 
 D. V. Grierson, 492. 
 
 D. V. Hyslop, 491, 493. 
 
 D. V. M'Murdo, 492. 
 
 D. V. M'Turk, 284, 285. 
 
 D. V. Tod's Trs., 225, 266. 
 Buchan v. Leith, 292. 
 
 V. Nisbet, 534. 
 
 V. Scott, 536. 
 
 Creds. v. B. Cardross, 282. 
 Buchanan v. Baird, 105. 
 
 •<^. Stark, 222. 
 
 V. Yuille, 444. 
 Buckland v. Butterfield, 262, 263, 265. 
 Budge V. Balfour, 226. 
 
 V. Sinclair, 491. 
 Buittle Min., 32. 
 ■ Bullions V. Bayne, 23. 
 Burden v. Dick, 464. 
 Burnett v. Aberdeen Mags., 128. 
 
 V. Burnett, 86. 
 
 V, Erazer, 166. 
 
 V. M-Kinning, 116, 119. 
 
 V. Stewart, 196. 
 
 b 
 
XVlll 
 
 LIST OF CASES CITED. 
 
 Burns v. Fleming, 262, 263. 
 
 V. Martin, 1.55, 282, 528. 
 
 V. Stewart, 202. 
 Burrell v. Gebbie, 222. 
 Bute, E. V. Campbell, 21. 
 Butter, 62. 
 
 ■0. Loch, 202. 
 
 ■0. Maodonalds, 441. 
 
 X,. M'Vioar, 257, 336. 
 
 V. Riddel, 344. 
 Byers v. Law, 118. 
 
 Caddel v, Sinclair, 106. 
 Cadzow V. Lockhart, 424. 
 Cairns v. Gerrard, 84. 
 
 V. Howden, 198. 
 Calder v. Downie, 14. 
 
 V. Robertson, 415. 
 Calderwood v. Smith, 443. 
 Caldwell v. Stirk, 314. 
 Caledonian Ry. v. Barr, 203. 
 
 V. Greenock, &c., Ry., 406. 
 
 V. Greenock Sacking Co., 544. 
 
 V. Smith, 194. 
 Callander Co. v. Campbell, 329, 332. 
 Calpie V. Kennedy, 472. 
 Calvert v. Reid, 384. 
 Cameron v. Cameron, 213, 214. 
 
 V. Fraser, 200, 205. 
 
 V. Macdonald, 460, 485. 
 
 V. Robertson, 447. 
 Campbell (1755), 7. 
 (1850), 62. 
 (1883), 6L 
 
 V. Anstruther, 303. 
 
 V. D. Argyll, 447. 
 
 V. Boswall, 86, 355. 
 
 V. Brown, 222, 346. 
 
 V. Calder Iron Co., 78, 528. 
 
 V. Campbell, 74, 82, 144, 193, 303, 306, 
 307, 310, 312, 430. 
 
 V. Cunningham, 144. 
 
 V. Dougal, 109, 115. 
 
 V. Dundas, 235. 
 
 V. Gallanaoh, 151. 
 
 V. Gammill, 233. 
 
 V. Grant, 80. 
 
 V. Howden, 229, 269. 
 
 V. Johnstone, 486. 
 
 V. Love, 53. 
 
 V. M'Allister, 465. 
 
 V. M'Kellar, 442, 443, 444. 
 
 V. M'Kinnon, 88, 108, 110, 115, 120, 
 125, 127, 452. 
 
 V. M'Laurin, 398, 475. 
 
 V. M'Lean, 433. 
 
 V. M'Pherson, 107, 116. 
 
 II. Marshall, 553, 554. 
 
 V. Ralston, 379. 
 
 V. Richardson, 550. 
 
 ■0. Robertson, 108, 111, 116, 462. 
 
 ■i>. Shaws Water Co., 405. 
 
 ■u. Siller, 47, 127. 
 
 V. Watt, 201. 
 
 V. Welsh, 290. 
 
 Bxrs. v. Campbell, 80. 
 
 Trs. V. Campbell, 314. 
 
 Capron v. Oapron, 313. 
 Cardross v. Colville. 46. 
 
 V. Hamilton, 20, 233. 
 Carey, 203. 
 Gargill V. Baxter, 358. 
 
 V. Muir, 74, 75, 145. 
 Carlisle v. Lawson, 475. 
 
 V. Lowther, 47, 445. 
 Carmichael v. Bertram, 483. 
 
 V. Chancellor, 24. 
 
 V. Penny, 97. 
 
 V. Peter, 196. 
 
 V. Tait, 278. 
 Carnbee, 445. 
 Carnegie v. Carnegie's Exrs., 306. 
 
 V. Guthrie, 391, 409, 410. 
 
 V. L. Kintore, 431. 
 
 •,;. Scott, 128, 147, 491. 
 Carnousies v. Keith, 509. 
 Carr v. Nunn, 514. 
 Carrick v. Warden, 453. 
 Carron Co., 277. 
 
 V. Donaldson, 367, 391. 
 Carruthers v. Barclay, 368. 
 
 V. Irvine, 102, 125. 
 
 V. M'Garrooh, 462, 468, 464. 
 
 V. Y. Stormont, 485. 
 
 V. Thomson, 294. 
 Carstairs v. Brown, 539. 
 Carter v. M'Intosh, 165. 
 Cassels v. Lamb, 465. 
 CassOis, E. v. M'Adam, 51. 
 
 V. Macadam, 158. 
 
 V. Ramsay's Creds., 338, 344. 
 Cathcart v. Mitchell, 337. 
 
 V. Schaw, 57, 69, 70, 83. 
 
 V. Sloss, 343, 344. 
 Cathie v. Musselburgh Mags., 35. 
 Catt V. Tourle, 383. 
 Catterns v. Tennent, 253, 254, 326. 
 Cauder, L. v. Hamilton, 452. 
 Cauvin v. Robertson, 289. 
 Cawfield, 7. 
 Chalmers v. Dalrymple, 446. 
 
 „. Dixon, 539. 
 
 ■u. Wilson, 201. 
 Chapman v. Edin. Prison Bd., 403. 
 Charters v. M'Duflf, 90. 
 Chatto, Ly. v. Haliburton, 493. 
 Chauntler v. Robinson, 644. 
 Cheetham v. Hampson, 544. 
 Ohimside v. Currie, 25. 
 
 V. Park, 482. 
 Christie, 277. 
 
 V. M'Donald, 65. 
 
 V. Maopherson, 180, 337, 350. 
 
 ■ti. Stirling Mags., 38. 
 Church V. Sharp, 96. 
 Clackmannan, L. v. Tenants of Balnamon, 
 
 126. 
 Clappertbn ii. Edinburgh Mags., 2, 548, 
 
 549. 
 Clark V. Bennet, 472. 
 
 V. British Linen Co., 570. 
 
 «. Clerk, 59, 67, 69. 
 
 V. Dallas, 289. 
 
 ■o. Dumfries Comrs., 570. 
 
LIST OF CASES CITED. 
 
 XIX 
 
 Clark V. Duncan, 355. 
 
 ■I'. Farquharson, 119, 120. 
 V. Finlay, 294. 
 
 V, Hamilton, 374. 
 
 V. Lamont, 102, 114, 115. 
 
 V. West Calder Oil Co., 171. 
 
 Creds. V. Dewar, 288. 
 
 Oreds. v. Gordon, 19, 20. 
 Clayton v. Gregson, 186. 
 Cleghorn v. Dempster, 34. 
 
 V. Taylor, 205. 
 
 V. Tenants, 280. 
 
 Donatar v. Tenants, 279. 
 Cleland, 62. 
 
 V. Crawford, 314. 
 
 V. Morison, 63. 
 Cline's Estate re, 313. 
 Clugston V. Goold, 200, 392. 
 Clydesdale Bank v. Paul, 85. 
 Coolirane v. Black, 15. 
 
 V. Ferguson, 287, 362. 
 
 ■I/. Guthrie, 405. 
 
 V. Hamilton, 275. 
 Cockburn v. Cookburn, 148. 
 
 V. Sampson, 126. 
 
 V. Steuart, 285. 
 
 V. Trotters, 341. 
 
 Tutors V. Cockburn, 14, 452. 
 Colgrave v. Dios Santos, 264, 272. 
 Collart V. Ly. Avandale, 444. 
 College V. Hay, 155. 
 Collet V. Balmerino, 536. 
 Collins V. Hamilton, 544, 545. 
 Colquhoun v. Buchanan, 422. 
 
 V. Liddell, 415. 
 
 V. Watson, 192. 
 Colt V. Colt, 10, 11. 
 Colville 11. Balmerino, 30. 
 
 V. Carriok, 381. 
 Colvin V. Dunbar, 366. 
 Connacher v. Bryson, 417. 
 Connon v. Lindsay, 171. 
 Constable v. Constable, 313. 
 Convery v. Sommerlee Iron Co., 451. 
 Coomber v. Berks Justices, 570. 
 Cooper V. Bone, 347. 
 
 V. Bruce, 30, 505. 
 
 V. Campbell, 193. 
 
 V. Grabtree, 541. 
 
 V. E. Eglinton's Trs., 358. 
 
 V, Leslie, 90. 
 Cormack v. Copland, 469. 
 Uorrie v. Stewart, 292. 
 Corshill V. Wilson, 124. 
 Corstorphine v. Tenants, 284. 
 Cossar v. Home, 463, 489. 
 Cowan V. Brownlee, 103. 
 
 m. Perry, 330, 331. 
 Cox V. Glue, 541. 
 
 V. Stead, 258, 269. 
 Craig V. Bell, 111. 
 
 V. M'Beath, 401, 402. 
 
 V. Miller, 201. 
 Graighall v. Kinninmouth, 477. 
 Craigie v. Reid, 487. 
 CraigmiUar, L. v. Chalmers, 476. 
 
 V. Nisbet, 77. 
 
 Cranstoun's Creds. v. Scott, 47, 126, 131, 
 
 138, 135. 
 Cranwell v. London Corp., 203. 
 Crawford, 16. 
 
 „. Boyle, 670. 
 
 V. Dixon, 388, 393. 
 
 ■0. Kennedy, 198. 
 
 V. Maxwell, 157, 158, 162, 178, 630. 
 
 V. Ritchie, 282. 
 
 V. Stewart, 336, 337, 338, 343, 344, 433. 
 
 V. Whiteford, 145, 505. 
 Crawfordjohn, Ly. v. Glaspen, 71. 
 Crawshay v. Maule, 78. 
 Crichton v. Viscount of Air, 102, 125. 
 
 V, Anderson, 46. 
 
 V. Crichton, 21. 
 
 V. Ly. Keith, 15, 147, 148, 164. 
 
 V. Meason, 96, 176, 181. 
 
 V. E. Queensberry, 345. 
 Critohley v. Campbell, 189, 191, 435. 
 CroU V. Sc. Central Railway, 558. 
 Cromar v. D. Gordon, 488, 496. 
 Crosbie v. Bell, 341. 
 
 Tr. V. Hume, 444. 
 Cross V. Muirhead, 398, 475. 
 Cruiokshank v. Ewing, 9, 11. 
 
 V. Sandeman, 306. 
 CuUen V. Smeal, 286. 
 Culling V. ZufEnal, 260, 263. 
 OuUwick V. Swindell, 264. 
 
 Culter V. , 119. 
 
 Cumine v. Bayley, 234. 
 Gumming v. Lumsden, 334, 348. 
 
 V. Williamson, 294. 
 
 Trs. V. Simpson, 286. 
 Cunningham v. Black, 351, 508. 
 
 V. Crawford, 119. 
 
 V. Grieve, 148, 150, 161. 
 
 V. Grossart, 556. 
 
 V. Halyburton, 459. 
 
 V. Hamilton, 49, 162. 
 V. Warner, 390. 
 
 V. Webster, 422. 
 Cunison v. Somerville, 323. 
 
 V. Stewart, 347. 
 Currie v. Crawford, 345. 
 Customs Tacksman v. Greenhead, 202. 
 Cuthill V. Jeffrey, 532. 
 
 Daer, L. v. D. Hamilton, 308. 
 Daes V. Scougall, 287. 
 Dalgleish v. Henderson, 441. 
 Dalhousie L. v. Wilson, 463. 
 
 E. V. Crokat, 109, 310. 
 
 £. V. Dunlop & Co., 347. 
 
 B. V. Maule, 152. 
 
 E. ■;;. WUson, 212, 530. 
 Dallas V. Eraser, 84, 115. 
 Dalrymple v. Bruce, 314. 
 
 V. Hepburn, 136. 
 
 V. Wemyss, 370. 
 Dalziel, 16. 
 
 V. Caldwell Tenants, 118. 
 
 V. Lockhart, 224. 
 
 V. D. Queensberry's Bxr., 195, 393. 
 Daniel v. Janes, 418. 
 Darnley v. Stewart, 563. 
 
XX 
 
 LIST OF CASES CITED. 
 
 Darnley, E. v. Campbell, 502, 510. 
 Darrooh v. Rennie, 148, 161. 
 Davidson ■;;. Boyd, 280, 281, 527. 
 ■V. Cannon, 551. 
 V. Douglas, 92, 321. 
 V. Dunbar, 498. 
 V. Falconer, 534. 
 V. Girvan, 448, 455. 
 V. Gordon, 443. 
 V. Gray, 650. 
 Davie v. Stark, 355, 380, 395. 
 Davis V. Elsam, 382. 
 V. Jones, 263, 264. 
 V. Trehame, 388, 389. 
 Dawling's Bairns v. Balmerino, 283. 
 Dawson v. Pringle, 396. 
 
 V. Watson, 433. 
 Dean v. Abercrombie, 200, 220. 
 V. AUaley, 260. 
 V. Irving Mags., 34, 35. 
 V. Steele, 286. 
 Deas V. Kyle, 188. 
 V. Walker, 346. 
 Denham v. Wilson, 55. 
 Denniston v. M'Farlane, 77, 78, 441. 
 
 V. M'Linto, 321. 
 D'Eresby's Trs. v. Strathearn Hydropathic 
 
 Co., 216. 
 Deuchar v. Cunninghame, 145. 
 V. L. Minto, 148, 150, 161. 
 D'Eynoourt v. Gregory, 261. 
 Dick V. Lands, 337. 
 V. Robertson, 225. 
 V. Skaills, 162, 472. 
 V. Stewart, 318. 
 V. Taylor's Trs., 181, 182, 204. 
 Dickson v. Campbell, 207, 405. 
 V. Dickson, 73, 74, 75, 76. 
 V. Graham, 224. 
 V. Kerr, 290. 
 V. Porteous, 294. 
 V. Tweedie, 477. 
 V. Watson, 534. 
 DUlon V. Campbell, 235. 
 Dimioh v. Corlett, 402. 
 Dingley v. Sales, 162. 
 Dingwall v. Duff, 73. 
 Dobie, 11. 
 
 V. Duncanson, 188. 
 
 V. Ms. Lothian, 165, 528, 530, 531, 532. 
 ■0. Thomson, 342. 
 Dobson V. Blackmore, 541. 
 Dods V. Coventry, 295. 
 V. Fortune, 295, 352. 
 V. Walker, 98. 
 Donald v. Leitch, 202, 337, 343, 344, 383, 570. 
 Ddualdson v. Arrol, 553: 
 
 V. M'Farlane, 554. 
 Douglas V. Adair, 554. 
 V. Ballingall, 551. 
 V. Cranstoun, 16. 
 V. Dickie, 559. 
 V. Dowie, 36. 
 V. Graham, 76. 
 V. Haig's Tr., 168, 169, 175. 
 V. Idington, 489. 
 V. Scott, 277. 
 
 Douglas V. Somervell, 452, 453. 
 V. Walker, 394, 498. 
 Crs. of, V. Carlyles, 126. 
 DouU V. Holmes, 287. 
 
 V. Home, 363. 
 Dove V. Reid, 550. • 
 Dow V. Hay, 362. 
 DowaU V. Miln, 261, 264. 
 Dowie V. Stark, 293. 
 Downie, 38, 40. 
 
 V. Campbell, 53, 54, 198, 204. 
 V. Grahame, 370. 
 Drum V, Jamieson, 135. 
 
 V. Niven, 143. 
 Drumkilbo Tennant v. The Laird, 535. 
 Drumlanrig, L. v. Scott, 444. 
 Drummond, 11. 
 
 V. Douglas, 85. 
 
 V. Gow, 91, 119, 209. 
 
 V. Hunter, 185, 208, 209; 221. 
 
 V. Maopherson, 213, 214. 
 
 V. Scott, 107, 115. 
 Drummore, L., 21. 
 Drumquashill, L. v. Olelland, 444. 
 Dryborough v. Dryborough, 296. 
 Drysdale ®. Jameson, 423. 
 
 V. Kennedy, 342. 
 
 V. Wood, 179. 
 Ducat V. Cs. Aboyne, 231. 
 Duck V. Braddyll, 253. 
 Dudgeon v. Howden, 223. 
 
 V. M'Leod, 547. 
 Dudley v. Warde, 263, 264. 
 Duff V. Fleming, 206, 207, 208. 
 
 V. Fowler, 52, 158. 
 
 ■u. Hay, 158: 
 
 ■V. Innes, 278, 363. 
 
 V. Laing, 632. 
 
 V. Wilson, 300. 
 
 Trs. V. Shand's Trs., 311. 
 Duffy V. Gray, 352, 357, 
 
 11. Mungle, 181. 
 Duke V. Ferguson, 372. 
 Dunbar, 448. 
 Duncan ii. Barron, 107, 114. 
 
 V. M'Dougal, 212. 
 
 V. Raeg, 148. 
 
 V. Scott, 190. 
 
 ■V. Smith, 554. 
 
 V. Thomson, 465. 
 
 V. Welsh, 465. 
 Dundas v. Hood, 533. 
 
 V. Monorieff, 896, 397. 
 
 V. Morlson, 179, 532. 
 Dundee Police Comrs. v. Straton, 155. 
 Dundonald, E. v. Glenagies, 128. 
 Dunfermline, E. v. Cs., 452. 
 
 Ly. V. The Earl, 149. 
 
 V. Officers of State, 510. 
 Dunipace, Ly. v. Watson, 342. 
 Dunlop &, Co. V. Meiklem, 441,- 482. 
 
 V. Steel Co. of Scotland, 2, 102, 197. 
 Dunn V. Cotesworth, 552. 
 
 V. Craig, 289, 295. 
 
 V. Dunn, 144, 147, 344, 356. 
 
 ■II. Hamilton, 544, 545. 
 
 ■V. Johnstone, 376, .'534. 
 
LIST OF CASES CITED. 
 
 XXI 
 
 Dunn V. Livingston, 220. 
 
 Trs. V. E. Zetland, 266. 
 Dunsmore v. Oswald, 202. 
 Durham, 101. 
 
 V. Henderson, 212, 530. 
 
 V. Livingston, 530. 
 Durie v. Duddiugston, 257. 
 
 Easton v. Easton, 73. 
 
 V. Longlands, 423. 
 Edenham v. Stirling, 87. 
 Edgar v. Whitehead, 7, 445. 
 Edinburgh Bailies v. E. Lothian Heritors, 
 202. 
 
 V. Fleshers, 19. 
 
 V. Paterson, 34, 35. 
 
 V. Provan's Crs., 182, 323, 326. 
 
 Hammermen v. Stewart, 32. 
 
 Mags. v. Binny, 38. 
 
 Merchant Co. v. Heriot's Hosp., 38. 
 
 and Glasgow Ry. v. Hall, 559. 
 Edmond v. Edmond, 149. 
 
 ■^. Raid, 25, 117, 213, 214. 
 Edmouston v. Bryson, 475, 476. 
 
 ■I/. Edmonston, 105. 
 
 V. Kilsyth Comrs., 562, 565. 
 
 ■i>. Preston, 209. 
 Ednam, Ly. v. Heir, 536. 
 Edwich V. Hawkes, 384. 
 EgUnton, E. v. Fulton, 477. 
 
 ■V. Tenants, 202. 
 Elder v. AUan, 534. 
 Elgin, E. v. Eerguson, 24. 
 
 V. Ms. Tweeddale, 502. 
 
 V. WeUwood, 50, 127, 276. 
 
 Mags. 11. Morrison, 38. 
 
 Trs. V. Walls, 81, 88, 160, 177. 
 Elibank, L. v. Hamilton, 54. 
 
 V. Hay, 462. 
 
 v. Pentland, 60. 
 
 V. Renton, 69. 
 
 V. Scott, 377. 
 Elliot V. D. Buocleuch, 24, 162, 163. 
 
 V. Currie, 54, 56. 
 
 V. EUeis, 289. 
 
 V. Pott, 52, 491. 
 
 Trs. I,. Elliot, 56, 306, 307. 
 Elmslie v. Grant, 288. 
 Elphinstone v. Guthrie, 444. 
 
 V. Monkland Co., 178, 179, 190, 402. 
 EMck's Trs. v. Duff, 367. 
 Elwes V. Marr, 258, 260, 265, 266. 
 Empson v. Soden, 262. 
 EmsHe v. Duff, 107, 110, 113, 115. 
 England, Church of. Assurance Co. i/. Wink, 
 
 113. 
 Errol, Ly. v. Cruickshanks, 284, 285. 
 
 E. V. Ury Pars., 510. 
 Erskine v. Glendinning, 85, 91. 
 
 Trs. V. Crombie, 372. 
 Essilmont, Ly. v. Tenants, 441. 
 Evans v. Davis, 380. 
 Ewan's Trs. v. Muirkirk Iron Co., 217. 
 Ewing v. Campbell, 383. 
 
 V. Chalmers, 222, 
 
 V. Crawford, 225. 
 
 V, Hasties, 380. 
 
 Eairell t>..Gaskoin, 249. 
 Fairfax v. Greenshields, 541. 
 Fairholm v. Livingston, 287. 
 Eairlie v. Johnston, 338. 
 
 V. Nelson, 532. 
 
 Trs. V. Eairlie, 319. 
 Falconer v. Hay, 28, 29, 146. 
 
 V. Smith, 484. 
 Falkland Min. v. Johnston, 29. 
 Farquhar v. Campbell, 453. 
 
 V, Farquhar's Exrs., 149. 
 Farquharson, 431, 433. 
 
 V. Campbell, 22. 
 
 V. Earquharson, 64, 149. 
 Farrant v. Thomson, 258. 
 Earrer v. Nelson, 425. 
 Eeatherstonhaugh v. Eenwick, 41, 78. 
 Fenton, 145. 
 Eerguson v. Dick, 534. 
 
 V. Eerguson, 73. 
 
 ■u. Ferguson's Trs., 74. 
 
 ■u. Galloway, 384. 
 
 ■•;. Hood, 203. 
 
 ■0. M'Nab, 415, 430. 
 
 V. Methven, 216. 
 
 V, Morison, 443. 
 
 V. Muir, 286, 288. 
 
 V. Paul, 262, 263, 270. 
 
 V. Sheriff, 415. 
 Eerme, 128. 
 Ferret v. Hill, 381. 
 Eerrier v. Hector, 451. 
 Eersie v. Burnett, 280. 
 Fielden v. Slater, 383. 
 Fife, E. V. Wilson, 161, 274, 433, 434. 
 
 Trs. V. Duncan, 98. 
 Einlayson v. Clayton, 472. 
 
 V. Finlaysons, 10. 
 
 V. Peddie, 372. 
 Einnie v. Mitchell, 374. 
 Fisher v. Dixon, 258, 259, 260, 261, 265, 
 266. 
 
 V. Turnbull, 459. 
 
 Trs. v. Eisher, 155. 
 Eitzherbert v. Shaw, 260, 272. 
 Fleming v. Baird, 207, 209. 
 
 V. Fleming, 150. 
 
 •17. Macdonald, 365, 531, 
 
 V. Morison, 488. 
 
 V. Ure, 544. 
 
 Trs. V. Fleming's Tutors, 43, 306. 
 Fletcher v. Davidson, 495. 
 
 ■„. Fletcher's Trs., 235. 
 Flowerden v. Buohan, 282. 
 Eoley V. Addenbrooke, 265, 270, 272. 
 Forbes, 11. 
 
 V. Anderson, 430. 
 
 V. Duncan, 469, 471. 
 
 V. Ly. Saltoun's Exrs., 362, 512. 
 
 V. Underwood, 407. 
 
 V. Ure, 152, 153. 
 
 V. Wilson, 52, 91, 107, 113, 116. 
 Ford V. Hart, 550. 
 
 V. HiUocks, 215. 
 
 Trs. V. Eord, 149. 
 Eorman's Tutors, 14, 452, 453. 
 Forrest & Barr v. Henderson, 402. 
 
xxii 
 
 LIST OF CASES' CITED. 
 
 Forrester v. A, 536. 
 
 V. Milligan, 25, 76, 77. 
 
 V. Thomson, 370. 
 ,.. Walker, 317. 
 
 V. Wright, 374, 375. 
 
 Exrx. V. L. Dreddon, 284. 
 Forsyth v. Aird, 45. 
 
 V. Bruce, 482. 
 Foster v. Adamson, 206. 
 Fotheringham, 8. 
 
 V. Balmerino, 536. 
 Foulis V. Innertyle Tenants, 22. 
 
 V. M'Whirter, 88, 299. 
 Fowler v. Cant, 349. 
 Fowlie V. M'Lean, 89, 90, 105, 114. 
 Frame v. Cameron, 382. 
 Fraser, 8. 
 
 V. Ms. Abercorn, 48, 467, 468. 
 
 V. Brebner, 84. 
 
 ■II. B. & G. Union Canal Co., 196. 
 
 V. Ewart, 88, 399. 
 
 V. Fraser, 16, 146, 147, 177, 232, 235, 
 495. 
 
 r. E. Haddington, 225. 
 
 v. Lawson, ,417, 418, 422, 427, 428, 
 429. 
 
 V. Leslie, 90. 
 
 V. Macdonald, 368, 394, 395, 519. 
 
 V. Mackay, 233, 235. 
 
 V. Maitland, 232, 234, 236, 368, 408. 
 
 V. Mathieson, 186. 
 
 1). Middleton, 71. 
 
 V. Patrick, 304, 435. 
 
 V. Ly. Pitsligo, 123. 
 
 V. Robertson, 528. 
 Freelaud v. Monteith, 477. 
 Freudraught v. Seton, 501. 
 Frier v. B. Haddington, 232. 
 PuUarton v. Crawford, 370. 
 Putt V. L. EuthTen, 207. 
 
 Gaims v. Blackwood, 553. 
 
 Galashiels v. Mackerston, 446. 
 
 Galbraith's Trs. v. Eglinton Iron Co., 192, 
 
 386. 
 Gall V. Muirkirk Iron Co., 82. 
 Galloway, E., 7. 
 
 B. V. M'CuUoch, 177. 
 
 B. V. M'Hutcheon, 530. 
 
 Cs. V. Mackenzie, 71. 
 
 Bp. V. Innes, 128. 
 
 V. Cowden, 190. 
 
 V. Dickson, 558, 559. 
 
 c. M'Pherson, 358. 
 Gammell v. Andersons, 97, 230, 232, 237. 
 
 V. Winter, 429. 
 Gandy v. Jubber, 544, 546. 
 Garden v. Gregory, 362. 
 
 V. Lindsay, 280, 282. 
 Gardin v. A, 46. 
 Gardner v. Beresford's Trs., 113, 491, 492. 
 
 V. Montgomerie, 13. 
 
 V. Walker, 199. 
 Gardyne v. Royal Bank, 155. 
 Gariooh v. Forbes, 90, 119. 
 Garlies, L. t. Stewart, 125. 
 Gaskill V. Spry, 382. 
 
 Gatherer v. Cummings' Trs., 372. 
 Gearns v. Baker, 435. 
 Geichen v. Walkinshaw, 126. 
 Gemmel v. Low, 179. 
 V. Eiddell, 82, 431. 
 V. Yule, 23. 
 Gentle v. Henry, 120, 123, 446. 
 Gibb V. Winning, 69, 100, 296. 
 Gibson v. Adams, 89, 103, 106. 
 V. Aitketi, 23. 
 V. L. Corsbie, 535. 
 V. Hammersmith By., 272. 
 V. May, 346. 
 V. Moffat, 183. 
 V. Soooti, 23. 
 V. Scott, 495. 
 Trs. V. Eraser, 405. 
 Gill V. B. Fife's Trs., 296. 
 Gillanders v. Campbell, 561. 
 
 V. Craig, 398. 
 Gillespie v. Clark, 21, 78. 
 
 V. Russell, 81, 86. 
 Gillespie's Hosp. v. Penman, 247, 248. 
 GUlon V. Muirhead, 25, 77. 
 Gilmore v. Cannon, 551. 
 
 V. Gilmour, 155. 
 Gilray, 14. 
 
 Girdwood & Co. v. Pollock, Gilmour & Co., 
 332. 
 V. Wilson, 109, 332. 
 Girvan v. Campbell, 433, 553. 
 Glasgow, E. V. Hamilton, 157. 
 Mags. V. Bams, 34. 
 Mags. V. Farie, 81. 
 Mags. V. Macfait, 97. 
 Union Ry. v. M'Ewen & Co., 194, 203. 
 Glen V. M'Kenzie, 464. 
 
 V. Roy, 101, 274, 355. 
 Glendinning v. Glendinning, 283. 
 Glendonwyn v. Gordon, 150. 
 Gold V. Holdsworth, 383, 398, 475. 
 Goldie, 146. 
 
 ■i>. Oswald, 236, 335, 356. 
 ■V. Williamson, 199. 
 Gooden v. Chisholm, 72, 306, 309. 
 Gorbals P. F. v. Macarthur, 36. 
 Gordon (1805), 469, 471, 472. 
 
 D. V. Carmiohael, 91, 109, 114, 119. 
 
 D. V. Innes, 491, 492. 
 
 D. V. Leslie, 305. 
 
 ■i>. L. Adv., 340. 
 
 ■0. Pr. Albert, 63. 
 
 u Anderson, 96, 377. 
 
 •67. Bryden, 476. 
 
 ■u. Burnett, 301, 482, 484. 
 
 V. Crawford, 160, 215, 216. 
 
 V. Falconer, 368. 
 
 V. Fiddler, 377. 
 
 ■II. E. Fife, 463. 
 
 ■u. Forbes, 83, 121. 
 
 ■u. Gordon, 23, 67, 69, 264, 305, 306. 
 
 ■1. Hall, 20, 107. 
 
 ■II. Hope, 494. 
 
 ■u. M'CuUoch, 370. 
 
 ■II. Michie's Reps., £05. 
 
 ■II. Milne, 43, 46. 
 
 ■II. Morgan, 415. 
 
LIST OF CASES CITED. 
 
 XXIU 
 
 Gordon v. Eae, 60. 
 
 V. Robertson, 96, 237, 372, 376, 377. 
 
 V. Ruxton, 190, 1 96. 
 
 V. Suthe, 201, 292, 355, 385. 
 
 V. Thomson, 97, 230, 237. 
 
 Trs. V. Innea, 233, 492. 
 
 Trs. V. Melrose, 226, 394. 
 Goreley ex parte, 211. 
 Gorman v. Chapman, 381. 
 Gosford, L., 467. 
 
 Goskirk v. Edinburgh Ry. Access Co., 191. 
 Gosling V. Brown, 417, 422. 
 Gowan v. Pursell, 22, 23. 
 Gowaus V. Christie, 206, 207, 209. 
 
 Tts. V. Carstairs, 89, 106, 111, 115, 116. 
 Gracie v. Pulsometer Co., 330. 
 Graham, 14, 453. 
 
 V. Gordon, 223, 226, 344, 460, 496. 
 
 V. Graham, 107. 
 
 V. Hunter's Trs., 23. 
 
 V. Lindsay, 374. 
 
 V. M'Kenzie, 422. 
 
 V. Moir, 397. 
 
 V. Stevenson, 212. 
 
 V. Whytock, 128. 
 Grange v. Durham, 129. 
 Granger v. Geils, 15, 99, 457, 485. 
 
 V. Hamilton, 301, 357. 
 Grant v. Adamson, 167, 169, 172, 174. 
 
 V. Baird, 232. 
 
 V. Beresford's Trs., 107. 
 
 V. L. Braco, 157, 178. 
 
 V. Fenton, 361. 
 
 V. Gentle, 420. 
 
 V. Grant, 107, 448 
 
 V. Gray, 166. 
 
 V. M'Donald, 360, 361. 
 
 V. M'Lean, 285. 
 
 V. M'Leod, 231. 
 
 V. E. Morton, 182. 
 
 V. Richardson's Reps., 90, 107, 114. 
 
 V. Sherris, 352. 
 
 V. Sinclair, 42, 89, 454. 
 
 V. Walker, 93, 96. 
 
 V. Watt, 100, 296, 408, 410. 
 
 Curator, 13. 
 Gray v. Forbes, 378. 
 
 *. Goldie, .371. 
 
 V. Hog, 209. 
 
 V. Low, 90, 147, 148, 153, 163, 165, 497. 
 
 V. Reid, 285. 
 
 V. Renton, 191, 354. 
 
 V. Rollock, 75, 76. 
 
 ■I/. Seton, 73. 
 
 ■I/. Skinner, 54. 
 
 ■I/. Stewart, 556. 
 
 V. B. Sutherland, 129. 
 
 V. Swanson, 550. 
 
 V. Sword, 294. 
 
 Trs. v. Benhar Coal Co., 178. 
 Greenlaw v. Adamson, 491. 
 Greenock Par. Bd. v. Coghill & Son, 406. 
 Greig v. Boyd, 106, 120, 496. 
 
 V. MaoCreath, 552, 555. 
 
 V. Mackay, 375, 377. 
 
 V. MiUer, 33, 34. 
 Grierson, 495. 
 
 Grierson v. Kerr, 367, 420. 
 Grieve v. Grieve's Creds., 48. 
 
 V. Pringle, 23, 108, 115. 
 
 V. Rutherford's Trs., 86. 
 Grozier v. Downie, 75, 444. 
 Grymes v. Boweren, 263. 
 Guild's Trs. v. Guild, 74. 
 GuUan v. Dunmuir, 535. 
 Guthrie v. Mackerston, 306, 307. 
 
 w. Shearer, 191, 201, 293, 294, 355. 
 
 ■u. Smith, 324. 
 Gwinall v. Earner, 544. 
 
 Haddington, E. v. Campbell, 476. 
 
 Mags. V. Howden, 362. 
 Haddo, L. v. Johnston, 367. 
 Haggart v. Miller, 280, 281. 
 Haig V. Henderson, 267. 
 Haining v. Grierson, 222. 
 Haldane v. Nichol, 41. 
 Haliburton v. Carse Tenants, 319. 
 Halkerston v. Kadie, 343. 
 Halkett, 11. 
 
 V. B. Elgin, 387. 
 
 V. Blair, 195. 
 Hall V. Grant, 469, 471, 472. 
 
 V. M'GiD, 226, 237, 368,391, 395, 409, 411. 
 
 V. Nisbet, 343. 
 
 V. Ross, 292. 
 HaUey v. Badie, 553. 
 
 V. Hammersley, 253. 
 
 V. Lang, 507. 
 
 V. Sands, 108, 115. 
 Hallows, 10. 
 Hamilton, 14, 60, 200, 220. 
 
 D. V. Buchanan, 85, 87. 
 
 Ds. V. Duke, 73. 
 
 D. V. Waring, 54. 
 
 D. 1). Warnook, 472. 
 
 V. Alexander, 282. 
 
 V. Boswell, 444. 
 
 V. L. Burleigh, 341. 
 
 V. Campbell, 420. 
 
 ■;;. Ly. Cardross, 88. 
 
 V. Crawford, 441. 
 
 V. Cunninghame, 212, 301. 
 
 ■u. CuthiU, 463. 
 
 ■u. Fleming, 237, 411. 
 
 ■V. Hamilton, 367. 
 
 V. Harper, 500. 
 
 ■I,. M'Carteney, 289. 
 
 v. M'Dowal, 51. 
 
 V. D. Queensberry's Bxrs., 133. 
 
 V. Reid's Trs., 369. 
 
 V. Sharp, 20. 
 
 V. Smith, 87. 
 
 V. Sommerville, 164. 
 
 V. Tenants, 123, 125, 464. 
 
 V. Tenant & Co., 318, 539. 
 
 V. Turner, 192. 
 
 Mags. V. D. Hamilton, 549. 
 
 Exrs. V. Hamilton, 306. 
 
 Trs. V. Fleming, 202, 206, 210, 229. 
 
 Trs. V. Stewart, 171. 
 Hannah v. Dodds, 552. 
 Hannan v. Ramsay, 246. 
 Harbison v. Robb, 220. 
 
XXIV 
 
 LIST OF CASES CITED. 
 
 Hardie, 126. 
 
 V. Black, 205, 220. 
 
 ■„. D. Hamilton, 392, 425. 
 
 0. Kinloch, 189. 
 
 V. Wilson, 486. 
 
 Trs. V. Hardy, 149. 
 Harkness v. Rattray, 451, 527. 
 Harley v. Campbell, 187. 
 Harper v. Davies, 514. 
 
 V. Laing, 356. 
 Harris v. James, 546. 
 Harrold v. PoUexfen, 222. 
 
 V. Stewart, 103. 
 Harrow School v. Alderton, 263. 
 Haxrower v. Wells, 97. 
 Hart V. Tenants, 498, 499. 
 Harvey v. Gordon, 20. 
 
 V. Haldane, 48, 451, 527. 
 
 V. Harvey, 263. 
 
 V. King's College, 370. 
 Haslet V. Burt, 271. 
 Hasluck V. Pedley, 313. 
 Hastings, 63. 
 Hatton V. Clay, 164. 
 
 ■0. Murray, 18. 
 
 V. Northesk, 16. 
 Hay V. Bandone, 444. 
 
 V. Elliot, 343, 346, 347. 
 
 V. Gicht, 321. 
 
 V. Grant, 19. 
 
 V. Halket, 313. 
 
 V. Keith, 322, 338, 343, 344, 348. 
 
 V. Kerse, 300, 482. 
 
 V. M'Cracken, 128. 
 
 V. M'Tier, 88, 176. 
 
 V. Wood, 144, 150, 161. 
 
 Trs. V. Miln, 40. 
 Heap V. Barton, 272. 
 Heddle v. Baikie, 284, 287, 476. 
 Heddrington v. Book, 42. 
 HeUawell v. Eastwood, 260, 261, 262, 264. 
 Hemming v. D. Athole, 431. 
 Henderson, 9, 491. 
 
 V. Maxwell, 398, 402. 
 
 V. Steuart, 82. 
 
 V. Warden, 335, 353. 
 Hendry v. Marshall, 318, 395. 
 
 Trs. V. Renton, 404, 405, 406. 
 Henry v. M'Bwan, 1, 277. 
 Hepburn v. Burn, 145, 163. 
 
 V. Campbell, 187. 
 
 ■u. Mosman, 49, 162. 
 
 V. Richardson, 337. 
 Heritable Sec. Co. u Granger, 221. 
 Heritable Sec. Investment Assoc, v. Wingate 
 
 & Co.'s Tr., 325. 
 Hermiston, L. v. BuUer's Relict, 129, 482. 
 Heron, L., 319. 
 
 V. RoUo, 475, 476. 
 Herries, L. v. Maxwell's Curator, 309, 312. 
 Heriot's Hosp. v. Angus, 199. 
 
 V. Ferguson, 378. 
 
 V. Heriot's Gardener, 215. 
 Herriot v. Faulds, 385. 
 
 V. Halket, 294, 376. 
 Hewat V. Henderson, 551. 
 Hickman v. Isaacs, 382. 
 
 HiU V. Collins, 552. 
 
 V. Gordon, 295. 
 
 ■V. Wright, 510. 
 Hilson V. Fairs, 554. 
 
 1}. Laidlaw, 555. 
 Hodge V. Brown, 182, 207, 220, 230. 
 Hogg V. Auchtermuchty Sch. B., 561. 
 
 V. Caldwell, 355. 
 
 V. Low, 287. 
 
 V. Morton, 467, 470, 471. 
 Holburn v. Mayne, 283. 
 Holliday v. Scott, 198. 
 Holt V. Harberton, 519. > 
 
 & Co. V. CoUyer, 383. 
 Home, 9, 16, 319. 
 
 ij. Anderson, 285. 
 
 ■0. Caimcross, 280. 
 
 ■0. Kelloe Tenants, 280. 
 
 ■0. Oldhamstock Tenants, 118, 123. 
 
 V. Taylor, 24, 88. 
 Honeyman v. Gordons, 463. 
 Hood V. Martin's Creds., 324. 
 
 V. MUIer, 213, 216. 
 Hope V. Aitken, 276. 
 
 V. Cleghom, 87. 
 
 V. Wauch, 282. 
 Hopetonn, E. v. Brovra, 395. 
 
 V. Hunter's Trs., 300. 
 
 V. Low, 465. 
 
 V. Wight, 300, 370, 414, 421. 
 Hopkirk v. KeDy, 451. 
 Hopwood V. Schofield,.540. 
 Horn V. Baker, 260. 
 
 V. M'Lean, 338, 469, 471. 
 Hornby v. Cardwell, 183. 
 Horsburgh v. Newton, 354. 
 Houldsworth v. Brand's Trs., 146, 163, 271, 
 394, 405, 456, 489, 490, 492. 
 
 ■i>. City of Glasgow Bank, 188. 
 Houston V. L. Garnook, 102. 
 
 ■i>. Harvey, 202. 
 Howden & Co. v. Dobie & Co., 406. 
 Hoy, 485. 
 
 Huggins u Ward,' 566. 
 Hughes V. Macfie, 543. 
 Hume V. Craw, 52, 158. 
 
 V. Dickson, 92. 
 
 ■0. Fish, 22. 
 
 ■0. Lyell, 157. 
 
 ■1). Macleod's Reps., 510. 
 Humphrey v. Mackay, 191, 201, 293, 294. 
 Hunter v. Badenooh, 465. 
 
 V. Barron's Trs., 246. 
 
 V. Broadwood, 283, 391, 399. 
 
 V. Brown, 157. 
 
 V. Clark, 399. 
 
 V. Dun, 495. 
 
 V. Kinnaird's Trs., 284, 285. 
 
 V. Miller, 365, 366, 370. 
 
 V. N.B. Ry., 203. 
 
 V. N. of England Banking Co., 337. 
 
 V. D. Queensberry's Exrs., 393. 
 
 V. Stewart, 313. 
 Huntly, Ms., 16. 
 
 ■I). Hume, 282. 
 
 V. Grant, 118. 
 
 •61. Russell, 260. 
 
LIST OF CASES CITED. 
 
 XXV 
 
 Hurlet Alum Co. o. B. Glasgow, 388, 389. 
 Hutchison, 514. 
 
 </. Ferrier, 93, 94, 103, 122, 320, 321. 
 
 •1/. Kay, 253. 
 
 V. D. Queensberry's Exra., 181, 182, 204. 
 Hyslop V. D. Queensberry's Exrs., 197, 204. 
 
 Trs. V. Hyslop, 266. 
 
 Inglis V. Balfour, 215. 
 
 D.Moir's Trs., 422, 424, 425. 
 
 & Co. V. Paul, 166, 170. 
 Innerwiok v. Innerwick, 24. 
 lunes V. Allardice, 447. 
 
 V. Clark, 465. 
 
 V. D. Gordon, 52, 83, 233, 235, 301. 
 
 ■u. Ker, 57. 
 Inverury Burgesses v. Mags., 34. 
 Irvine v. Aberdeen Coll., 535. 
 
 V. CoUins, 139. 
 
 V. Fiddes, 148. 
 
 V. Field, 105. 
 
 V. Lyon, 146. 
 
 V. Scott, 233. 
 
 V. Valentine, 163, 165. 
 
 Jack V. E. KeUy, 500. 
 
 V. M'Caig, 356, 357. 
 
 V. Muirhead, 444. 
 
 V. Nairne, 415, 428. 
 
 V. Stirling, 34. 
 Jackson v. Bowes, 325. 
 
 V. Graham, 91, 103. 
 
 V. Lind, 345. 
 
 V. Pesked, 540. 
 JafEray v. Carrick, 329, 331, 332. 
 James v. E. Fife, 415. 
 Jamieson, 14, 40. 
 
 V. Gordon, 463. 
 
 V. Houston, 24. 
 
 V. Thomson, 476. 
 Jenkin v. Younger, 232. 
 Jenkins v. Gething, 260. 
 ■ Jerviswoode, L. v. Livingston, 459. 
 TJobu Ker, 283. 
 Johnston, 16. 
 
 V. M. Annandale, 306, 307. 
 
 V. Buchanan, 553. 
 
 V. Cleghoru, 289. 
 
 V. Constable, 211. 
 
 V. Craufurd, 75. 
 
 V. CuUen, 123. 
 
 V. Dickson, 446. 
 
 V. Forbes, 397. 
 
 V. Gordon, 87, 454. 
 
 V. Grant, 98, 113. 
 
 V. Guild, 556. 
 
 V. Hall, 381. 
 
 V. Inglis, 278, 289, 295. 
 
 V. Logan, 90, 112. 
 
 ■d. Mackie, 313. 
 
 V. Martin, 443. 
 
 V. MaxweU's Trs., 489. 
 
 V. Monzie, 134. 
 
 ■u. Ramsay, 163. 
 
 u. Robertson, 402. 
 
 V. Tenants, 496. 
 
 V. Thomson, 440. 
 
 Trs., 72, 482, 483, 505. 
 
 Jolly V. Brown, 540. 
 
 V. Graham, 223, 231, 233, 235. 
 
 V. Stevenson, 499. 
 Jones V. Bone, 383. 
 
 V. Chappell, 541. 
 
 V. Edney, 384. 
 
 ■II. Ogle, 313. 
 
 V. Thome, 382. 
 Jopp V. Scorgie, 231. 
 Jordan, 1876, 383. 
 
 JordanhiU Crs. v. E. of Crawford, 127. 
 Justice V. Ross, 54. 
 
 Kay V. Miln, 38. 
 Keay v. Marquis, 44, 50. 
 Keegan v. Robertson, 478. 
 Keggie v. Christie, 22, 23, 24. 
 Keir v. D. Athole, 107, 114, 116. 
 
 V. Menzies' Crs., 167. 
 Keith V. Johnston's Tenants, 119. 
 
 ■u. Keir, 204. 
 
 ■u. Bogie's Heirs, 305, 369. 
 
 V. OgQvie, 129. 
 Kelloch V. D. Queensberry's Exrs., 197, 204. 
 Kelly V. Beaton, 308. 
 
 V. Innea, 92. 
 Kemp V. Bird, 380. 
 Kennard v. Allan, 551. 
 Kennedy, 284. 
 
 V. Alison, 465. 
 
 V. Carlyle, 120, 451. 
 
 .;. Eorsyth, 171, 172. 
 
 ■1/. JafEray, 451. 
 
 ■:,. Watson, 23. 
 Kennoway v. Mowat, 280. 
 Kerr v. Downie, 104. 
 
 V. Fowlis, 498. 
 
 V. Graham's Trs., 69. 
 
 V. Muirhead, 498. 
 
 V. Nisbet Tenants, 444. 
 
 V. Lord Ramsay, 123. 
 
 V. TurnbuU, 307. 
 
 V. Waugh, 102, 125. 
 Kidd V. Byrne, 424, 426. 
 
 V. Haliburton, 321. 
 
 V. Hyde, 318. 
 KidgiU V. Moor, 540, 541. 
 Kildonan Creds. v. Douglas, 45. 
 KOgour V. Thomson, 232. 
 Killilung Tenants, 44. 
 
 Kilmarnock Gas Light Co. v. Smith, 191, 
 200, 201, 255, 292, 294, 355. 
 
 Mags. V. Inhabs., 35, 36. 
 Kincaid, 8. 
 
 V. Love, 93. 
 Kincardine's Creds. v. Somerdyke, 19. 
 
 V. Tacksmen, 341. 
 King V. Jaffray, 308. 
 
 V. Johnston, 340. 
 
 V. MitcheU, 554. 
 
 V. Wieland, 47, 441. 
 King's Adv. u. Some Excommunioants, 490. 
 Kinloch, 38. 
 
 V. Fraser, 196. 
 
 V. Macoomie, 465. 
 
 ■n. Mansfield, 458, 469, 533. 
 
 V. Robertson, 541. 
 
XXVI 
 
 LIST OF CASES CITED. 
 
 Kinlooh'a Exrs. v. Heir, 305. 
 Klnnaird v. Matthewson, 202, 549. 
 Kinneil v. Menzies, 346. 
 Kinnoull, E., 63. 
 
 V. Tod, 415. 
 Kintore, E. v. "Watt, 494. 
 Kippen v. Oppenheim, 204, 221, 355, 356. 
 Kirk V. M'G-owan, 555. 
 Kirkcaldy Fleshers v. Mags., 279. 
 Kirkland v. Ca^dell, 532, 633. 
 
 V. Miller, 634. 
 
 V. WDson, 532, 533. 
 Kirkmabreck Heritors, 277. 
 Kirkman v. Pym, 19. 
 Kirknewton Min. v. Balmerino, 451. 
 Kirkpatrick v. Allanshaw Co., 100, 409. 
 Kirkwood v. Morrison, 405. 
 Knockdolian v. Parthiok Tenants, 539. 
 Knowles v. Bings, 464. 
 Knox V. Irvine, 44, 102. 
 Koehler v. Neidrick, 19. 
 Kyle V. Kerr, 16. 
 Kynynmond v. Rochead, 308, 309. 
 
 Lade v. Largs Baking Co., 320. 
 Laidlaw v. Wilson, 176, 181. 
 Laing v. Denny, 71. 
 
 V. N., 448. 
 
 V. Stephenson, 268, 269, 271, 458. 
 Laird v. Grindlay, 153, 630. 
 Lamb v. Grant, 336, 354. 
 
 V. Mitchell's Trs., 398, 400. 
 Lambert v. Smith, 501. 
 Lamington, 73. 
 
 V. Oswald, 344, 346, 632. 
 Lancaster v. Eve, 262. 
 Lang V. D. Douglas, 73. 
 
 V. Hislop, 536. 
 Langwell v. Maokay, 544. 
 Latta V. Edin. Eccl. Comrs., 310. 
 Lauder, 382. 
 Lauderdale, E. *. Swintou Tenants, 281. 
 
 V. Tenants, 283, 284. 
 
 D. V. E. Tweeddale, 451. 
 Laurent v. L. Adv., 189, 200. 
 Law V. Gibsone, 100, 296. 
 Lawrie v. Kerr, 90, 112. 
 
 V. M'Arthur, 415. 
 
 V. Maxwell, 306. 
 Lawriston, Ly. v. Tenants, 448, 510. 
 Lawson v. Boghall Tenants, 257. 
 
 V. Brown, 535. 
 
 u. Leith iPacket, &c., Co., 74. 
 
 V. Low, 363. 
 
 V. Maxwell, 342. 
 
 V. Murray, 98. 
 
 V. Ogilvy, 320, 398. 
 
 V. Scott, 459. 
 Lawton v. Lawton, 263, 264, 266. 
 
 Exrs. V. Salmon, 261, 264. 
 Leach v. Thomas, 260, 362, 263. 
 Leader v. Homewood, 272. 
 
 V. Moxon, 540. 
 Learmonth v. Sinclair's Trs., 235. 
 
 Trs. V. Sinclair, 312, 313. 
 Leek V. Fulton, 215. 
 
 V. Merryflats Brick Co., 215. 
 
 Le Conte v. Douglas, 354, 358. 
 Lee V. Alexander, 97. 
 
 V. Risdon, 263, 272. 
 Leechman v. Sievewright, 215, 216. 
 Leeds v. Burrows, 247. 
 Lees V. Marr Type-Founding Co., 226, 450. 
 Leith V. Leith, 433. 
 
 ■ii. Steuart, 119. 
 Lennox v. Allan, 609. 
 Leslie v. Forbes, 19. 
 
 V. Grant, 19. 
 
 ■V. Orme, 56, 70, 127. 
 
 V. Pounds, 544. 
 Leslie-Grant v. Dundas, 490. 
 Lesmore v. Hutcheson, 452. 
 Levy V. Thomsons, 406. 
 Ley V. Kirkwood, 126. 
 Liddesdale, 76. 
 Liford's Ca., 259. 
 Lindsay, 8. 
 
 V. Bell, 372. 
 
 V. Bonnitown, 18. 
 
 v. Hogg, 469. 
 
 V. Home, 207. 
 
 V. Webster, 48, 100, 297, 410. 
 
 V. E. Wemyss, 333, 354, 356. 
 Linning v. Gustard, 308. 
 Lisk V. Rob, 212. 
 
 V. Scott, 180. 
 Little V. Mutter, 398. 
 
 V. Lintoun, 143. 
 Livingstone v. Fenton, 63. 
 Lochinvar, 611. 
 Lockerby v. Stirling, 20. 
 Lookhart v. Cathcart, 436. 
 
 ■„. Home, 229. 
 
 ■V. Lockhart, 306. 
 
 i: Ogston, 510. 
 
 I'. Paterson, 341. 
 
 ■u. Twaddle, 477. 
 Logan V. Brown, 479, 497. 
 
 V. Hamilton, 255, 266. 
 
 V. Reid, 32. 
 
 V. Weir, 497. 
 London Building Co. v. Field, 383. 
 L.N.W. Ry. V. Buckmaster, 558. 
 
 V. Garnett, 383. 
 Lothian v. Somerville, 5. 
 Loudon V. Adam, 145, 148. 
 
 B. V. Ross, 282. 
 ■ V. Watt, 415. 
 
 V. Murray, 43. 
 Lovat V. Macdonnell, 27. 
 Love V. Foster, 356, 358. 
 Low V. Knowles, 178, 462. 
 
 V. Lyell, 90, 112. 
 
 V. E. Rosebery, 362. 
 Lowndes v. Buchanan, 204, 209. 
 Lowson V. Ross, 186. 
 Ludquhairn v. Haddo, 15, 41. 
 Luker v. Dennis, 383, 384. 
 Lnmsden v. Stewart, 120. 
 Lunan v. Allan, 553. 
 
 Lundie v. Smith of Lundie, 101, 1 30 409. 
 Lundin v. Hamilton, 601. 
 Luss, Ly., 145. 
 Lyall V. Cooper, 305, 368, 369. 
 
LIST OF CASES CITED. 
 
 XXVU 
 
 Lyle r. Oriehton, 287. 
 
 V. Graham, 376. 
 Lyon V. Irvine, 96, 164, 485, 497, 530. 
 
 V. Reid'a Trs., 168, 357. 
 Lyons v. Anderson, 450, 542. 
 
 M'Adam v. Lawrie, 415. 
 V. M'Adam, 43, 306. 
 M'AUister v. Orr, 345. 
 V. Sprot, 461, 497. 
 
 Trs. ■„. M'Alister, 73. 
 Macalister v. Macalister, 76, 77. 
 M'Arthur v. Forbes & Co., 344. 
 
 V. Jones, 539. 
 
 V. Simpson, 119, 120. 
 Macausland. v. Montgomery, 38. 
 Macbrair v. Homes, 509. 
 Maecallum v. Forth Iron Co., 544. 
 
 V. Grant, 30, 445, 505. 
 M'Christie v. Fisher, 444. 
 
 V. M'Kea, 461, 464, 465. 
 M'Clymonts v. Cathcart, 303. 
 M'Coag V. M'Sporran, 161. 
 M'Culloch V. Grierson, 369. 
 Macdouald v. Armour, 558, 568. 
 
 V. Cameron, 353. 
 
 V. Dempster, 190. 
 
 L. V. Finlayson, 479. 
 
 V. Jackson, 287. 
 
 V. Jardine, 464, 465. 
 
 V. Johnstone, 227, 392, 410. 
 
 V. Ds. Leeds, 507. 
 
 L. V. Macdonald, 60, 94, 235, 447. 
 
 V. Macdonald's Trs., 320. 
 ' V. Robertson's Trs., 224. 
 
 V. Sinclair, 447. 
 
 V. Watson, 507. 
 
 Young & Co. V. Hamilton, 197. 
 M'DoneU v. Cameron, 345. 
 M'DouaU V. Caird, 96. 
 
 V. Glasgow Mags., 34, 35. 
 
 V. M'Douall, 408. 
 
 V. Jamieson, 336, 345. 
 M'DougaU V. Buchanan, 351, 352. 
 
 V. Campbell, 452. 
 
 V. Gait, 496. 
 
 V. Lobley, 179. 
 
 V. Northern Insurance Co., 87, 362. 
 M'Ewan, 14. 
 
 V. Crerar, 453. 
 
 V. Donald, 361. 
 
 V. Paterson, 372. 
 Macfarlane v. Campbell, 45. 
 
 V. Forrester, 358. 
 
 V. Greig, 534. 
 
 V. Grieve, 92. 
 M'Feat v. Rankine's Trs., 225. 
 M'Feggan v. Murray, 155. 
 M'Ghie v. Edinburgh Mags., 34, 35. 
 
 V. Mather, 346. 
 M'GUl V. Crawford, 280. 
 
 V. Ferrier, 318. 
 
 f. Law, 54. 
 M'Glashan v. D. Athole, 341, 355. 
 Macgregor, 13, 452. 
 
 V. Hunter, 179, 346, 532. 
 
 V. Stevenson, 406. 
 
 Macgregor v. E. Strathallan, 494, 498. 
 Maoharg, 482, 510. 
 M'llreavie v. Smith, 446. 
 Mack V. Allan, 543. 
 Maokay, 11. 
 
 V. Patrick, 193. 
 M'Keehnie v. D. Montrose, 353, 354. 
 Mackenzie (1842), 11, 37, 515. 
 
 ■u. Oraigies, 397. 
 
 V. Eraser, 361. 
 
 V. Gilchrist, 397. 
 
 V. Gillanders, 443, 444, 494. 
 
 V. Kennedy, 198. 
 
 V. King, 551. 
 
 ■u. Learmonth, 163. 
 
 r. Lovat, 357. 
 
 V. Mackenzie, 69, 133, 235, 489. 
 
 V. M'Leod, 205. 
 
 V. Trotter, 105, 115. 
 M'Kinnon v. Hamilton, 354. 
 Mackintosh v. Baillie, 287. 
 
 V. Eraser, 21. 
 
 V. L. Lovat, 239. 
 
 i: Maodonell, 475. 
 
 V. Mackintosh, 204, 420. 
 
 V. Munro, 443. 
 
 V. Ogilvie's Trs., 230. 
 
 V. Playfair'sTrs.,237, 237. 
 
 V. Robertson, 404, 496. 
 
 V. Trotter, 271. 
 
 V. Watt, 496. 
 M'Intyre v. Anderson, 374, 511. 
 
 V. M-Nab's Trs., 302, 337, 357, 511. 
 M'Kirdy u Anstruther, 188. 
 M'Kye u Nabony, 335, 351. 
 Maclaren v. Ms. Breadalbane, 93, 475, 476. 
 
 V. Clyde Trs., 557. 
 M'Lean, 12. 
 
 •0. Warnoch, 225, 643. 
 M'LeUan v. Graham, 353, 358. 
 
 V. Kerr, 205, 220. 
 Macleod, 14, 515. 
 
 V. Crawford, 372. 
 
 V. Davidson, 441. 
 
 V. Mackenzie, 304. 
 
 V. M'Leod, 357, 397. 
 
 V. Thomson's Creds., 337, 360. 
 
 V. Urquhart, 98. 
 
 Trs. V. Macpherson, 356. 
 
 Trs. V. M'Leod, 149. 
 Macmaster v. Cameron, 225. 
 M'Math V. Hewit, 443. 
 M'Michan v. Hutcheson, 370, 407. 
 M'Millan v. Gordon, 123. 
 M'Morran v. Black, 107, 114. 
 M'Nab V. Annexed Estates Gomrs., 484, 508. 
 M'Nair v. L. Blantyre's Tutors, 475, 482, 
 
 495. 
 Macnaughton v. Wilson, 301, 482, 484. 
 M'Neal v. Smith, 374. 
 M'Nee v. Camie, 369. 
 M'Neight v. Lockhart, 74, 145 
 Macneil v. Macneil, 21. 
 
 V. Sinclair, 233. 
 M'Neillie v. Cowie, 85. 
 M'Niven v. Murray, 44, 464. 
 
 V. Leith, 93. 
 
XXVUl 
 
 LIST OF CASES CITED. 
 
 Macome v. Dickson, 252, 558. 
 M'Pherson v. Campbell's Trs., 85. 
 
 V. M'Pherson, 107, 433, 434. 
 M'Queen v. Dunn, 555. 
 
 V. Fraser, 361. 
 Macrae v. Gordon, 289. 
 
 •V. Hyndman, 16. 
 
 v. Mackenzie, 97, 223, 232. 
 
 V. Mackenzie's Trs., 486. 
 
 V. M'Pherson, 294. 
 
 V. Smith, 295. 
 M'Rorie v. M'Whirter, 112, 114, 116. 
 M'Tavish ■;;. M'Lauchlan, 102, 490. 
 M'Vean v. M'Lean, 131. 
 
 V. M'Vean, 76. 
 M'Wiannell v. Dobie, 78. 
 
 Madderty Min. v. Heritors, 32. 
 Main v. Lamb, 43. 
 Mains v. M'LuUich, 415. 
 Maitland v. Maitland, 313. 
 
 V. Neilson, 91, 92. 
 Malcolm v. Bardner, 52, 88. 
 
 ■u. Henderson, ."51. 
 
 V. Malcolm, 233. 
 MansHeld, B. v. Blackburn, 261, 264, 271. 
 
 •I. Caird, 224. 
 
 V. Henderson, 97, 98, 471. 
 Manson v. Sinclair, 550. 
 Manuel v. Manuel, 21. 
 March, E. v. Dowie, 486. 
 
 ■V. E. Leven, 308. 
 Marchmont, E. v. Eleeming, 448. 
 Marianski v. Jackson, 219. 
 Marischal, E. v. Eraser, 88, 284. 
 
 V. Tenants, 72. 
 Marshall v. Cohen, 200. 
 
 1/. Gartshore, 497. 
 
 ■<!. Marshall, 78. 
 
 V. Read, 462. 
 
 V. Walker, 373. 
 Marstou v. Kerr's Tr., 330. 
 
 V. Underwood, 175. 
 Martin, 11. 
 
 V. Forbes, 318. 
 
 V. Marshall, 290. 
 
 V. Roe, 262, 265, 271. 
 Martyr v. Bradley, 263, 270. 
 Mather v. Eraser, 260, 264. 
 Matheson v. Duff, 94. 
 
 V. Nioolson, 191, 212. 
 Maule V. Maule, 144, 152. 
 
 V. Robb, 88, 177. 
 Maw V. Hindmarsh, 383. 
 Maxwell v. Bouar, 16. 
 
 V. Burgess, 97. 
 
 V. Glasgow Coll., 33. 
 
 V. Glassook Tenants, 47, 441. 
 
 V. Grierson, 108, 110, 111. 
 
 V. M'Murray, 365. 
 
 V. Montgomery, 202. 
 
 V. D. Queensberry's Exrs., 177, 181, 183, 
 198, 204. 
 
 u Tenants, 135, 445. 
 
 Trs. V. Scott, 314, 315. 
 Meek v. Smith, 324. 
 Meikle v. Meikle, 14, 453. 
 
 Meldrum v. Gibb, 367. 
 Mellerstane, 101. 
 
 V. Haitlie, 129. 
 Melville v. Barclay, 341. 
 Menmuir v. Airth, 187, 194, 199. 
 Menzies v. Menzies, 433, 434. 
 
 V. D. Queensberry's Exrs., 197, 198, 204. 
 Mercer v. Esk Valley Ry., 215. 
 Merohiston Tenants v. Napier, 310. 
 Merry v. Brown, 405. 
 Merse Steward v. L. West Nisbet, 321. 
 Metropolitan Assn. u. Petch, 541. 
 Metropolitan Asylum v, HUl, 382. 
 Meux u" Jacobs, 272. 
 Middleton v. Meggat, 176, 181, 196, 204. 
 
 V. Yorstoun, 176, 181, 196, 204. 
 Miller v. Carrick, 53, 60, 61. 
 
 V. Duncan, 172. 
 
 V. L. Gwydir, 398, 401. 
 
 V. M'Currach, 554. 
 
 V. Mair, 277. 
 
 V. Meldrum, 288. 
 
 V. Paterson, 352, 355. 
 
 V. Renton, 189. 
 
 V. Robertson, 553. 
 
 V. Small, 155. 
 
 V. Walker, 2. 
 Milne, 7, 13, 452. 
 
 V. E. Dalhousie, 369, 424. 
 
 V. Forbes, 450. 
 
 V. Mitchell, 214. 
 
 V. Petrie, 442. 
 
 V. Young, 443. 
 Minshall v. Lloyd, 271. 
 
 V. Ward, 264. 
 Mitchell, 155. 
 
 V. Adam, 376. 
 
 ■0. Berwick, 283. 
 
 ^, Little, 45. 
 Moir V. Graham, 70. 
 MoncrieH (1846), 11. 
 (1851), 11. 
 
 V. Arnot, 413, 422. 
 
 ■u. L. Balnagown, 320. 
 
 ■u. Dalgleish, 552, 555. 
 
 ■V. Hay, 468, 470, 471. 
 
 V. Skene, 235. 
 Monkton, Ly. v. Balderston, 163. 
 Monro v. Cameron, 362. 
 
 V. Hogg, 96. 
 
 ■u. M'Kenzie, 393. 
 
 V. Miller, 212, 530. 
 
 V. Robertson's Trs., 355. 
 Monteith a, Tenants, 90. 
 Montgomerie v. Carrick, 131, 385, 404, 405, 
 
 408, 409. 
 Montrose, D., 433. 
 
 M. V. Walkinshaw, 119. 
 Moon V. Roger, 194. 
 Moore v. Boddam, 75. 
 
 ■i>. Robinson, 383. 
 Moray, Cs. v. Stewart, 71, 107, 115, 119. 
 Mordaunt, Bs. ■». Innes, 83. 
 
 V. Innes, 50, 51, 52, 67. 
 Morgan v. V. Arbuthuot, 443. 
 Morham, M. v. Binston, 313. 
 Morton & Co. v. Colquhonn, 492. 
 
LIST OF CASES CITED. 
 
 XXIX 
 
 Morton v. G-raham, 424. 
 V. Montgomery, 230. 
 B. V. Murray's Reps., 461, 462. 
 E. V. Scott, 510. 
 E. V. Somerville, 358, 534. 
 E. V. Tenants, 177. 
 Morris v. Glen, 92. 
 V. Allan, 501. 
 Morrison (1857), 8, 11. 
 (1872), 7. 
 ■u. Blair, 398. 
 w. Campbell, 104. 
 V. Carron Co., 534. 
 v: Edinburgh Fleehers, 34. 
 V. Handyside, 351. 
 v. Jamieson, 372, 373. 
 V. M'Kirdy, 98. 
 L. V. E. Nisbet's Tenants, 284. 
 V. Orchardton Tenants, 282. 
 V. PatuUo, 132, 237, 410. 
 V. Smith, 347. 
 V. WaUaoe, 380. 
 Tutors, 6. 
 Mossman v. Brocket, 222, 223, 224, 230. 
 Moubray v. Ewbank, 216. 
 Mounsey v. Kennedy, 139. 
 Mousewell, Crs. v. Children, 73. 
 Mowat V. DenhaiD, 289. 
 
 V. Johnston, 105. 
 Mowbray v. Drummond, 534. 
 Muckal V. Tenants, 126. 
 Muckarsie Parson v. Abercrcmbie, 29. 
 Mudie V. Lightoun, 819. 
 Muir V. Downie, 355. 
 V. Innes, 202. 
 V. M'Intyre, 383. 
 V. Mure, 59, 60. 
 V. Wilson, 163, 215, 216, 231. 
 Muirhead v. Drummond, 80, 326. 
 V. Tenant & Co., 389. 
 V. Young, 67, 68. 
 Mukoarro, 135. 
 
 Mumford v. Oxford, &c., Ey., 541. 
 Mungle V. Young, 388, 406. 
 Munro v. Baillie, 449. 
 V. Brown, 462. 
 ■„. Eraser, 222, 532. 
 ■I/. Mackenzie, 405. 
 V. Munro, 20, 21, 153, 229. 
 Murdoch v. EuUerton, 209. 
 •17. IngHs, 74, 444. 
 17. Moir, 115, 116. 
 •17. Murdoch's Trs., 150. 
 Murray, 112. 
 
 •17. Balcanquhal, 367. 
 
 ■17. Bisset, 225, 230, 266. 
 
 ■ii. Brodie, 455. 
 
 •17. Buchanan, 199, 541, 547. 
 
 ■17. Campbell, 269. 
 
 V. Douglas, 195. 
 
 ■17. Drummond, 313. 
 
 V. Hogaith, 78. 
 
 E. 17. Hume, 459. 
 
 ■17. M'Robbie. 160. 
 
 ■17. Selkrig, 409. 
 
 ■17. Torrie, 154. 
 
 V. Trotter, 287. 
 
 Murray's Reps. v. Tutors of Sanquhar, 128. 
 
 Trs. V. Dalrymple, 22. 
 
 Trs. V. Gordon, 391. 
 
 Trs. V. Jardine, 313, 314. 
 Mutter V. Eyfe, 382. 
 
 Nadin, 203. 
 
 Naper v. Ferrier, 222, 223. 
 
 Naylor v. CoUinge, 270. 
 
 NeUl V. E. Cassillis, 105, 112, 115. 
 
 V. Leslie, 96. 
 
 Trs. V. Gordon, 192. 
 Nehnes & Co. v. Ewing, 330. 
 Nelson v. Liverpool Brewery Co., 544. 
 
 V. Mossend Iron Co., 509, 512. 
 
 V. Menzies, 134. 
 Newman v. Anderton, 253. 
 Newton Min. v. Heritors, 32. 
 Nichols V. Hall, 666. 
 NicoU V. Edinburgh Mags., 34. 
 
 V. Grosset, 500. 
 Nicolaon v. Inglis, 22. 
 
 V. M'AUister's Trs., 287. 
 Nisbet V. Aikman, 459, 478, 507, 508. 
 
 V. Baikie, 287. 
 
 V. Kinnaird, 85. 
 
 V. M'Innes, 670.. 
 
 Tr., 532. 
 Nithsdale v. Ten-ants, 441. 
 Niven v. Macfarlane, 530. 
 
 V. Pitoaim, 260, 265. 
 Niyison v. Howat, 371, 378, 405, 406, 451. 
 North V. Gumming, 422, 434. 
 N.B.Ry. V. Ronton, 203. 
 
 V. Lindsay, 203. 
 Northesk, E. v. EoUand, 367. 
 
 Oag's Curator v. Comer, 149. 
 Qatman v. Harland, 300. 
 O'Brien v. White, 514. 
 Officer V. Nicolson, 230, 237. 
 Ogilvie V. Devon Iron Co., 386. 
 
 V. Duff, 467. 
 
 •17. EuUarton's Trs., 530. 
 
 V. Gruar, 279. 
 
 ■17. Maims, 511. 
 
 •17. Mollis, 19. 
 
 •17. Ramsay, 110. 
 
 17. Wingate, 339. 
 Oliphant v. Currie, 130, 131. 
 
 •17. Peebles, 299. 
 
 V. Scott, 198. 
 
 V. Thomson, 225. 
 Oliver v. Snttie, 85, 188, 191. 
 
 •17. Weir's Trs., 463, 489. 
 Orme v. Diffors, 25. 
 Orr V, Rainnie, 507. 
 OrreU v. Orrell, 404. 
 Osier 1!. Ms. Lansdowne, 246, 247. 
 Oswald V. Gordon, 192, 385. 
 
 •17. Graeme, 357. 
 
 V. Pearson, 389. 
 
 V. Robb, 125. 
 
 Paget V. E. Galloway, 60. 
 Paisley v. Marshall, 564. 
 Panmure, E. v. Collison, 324. 
 
XXX 
 
 LIST OF CASES CITED. 
 
 Park V. Cookbum, 3i5. 
 
 Parkhill v. Chalmers, 14, 1 5, 41. 
 
 Parlane v. Hamilton, 202. 
 
 Parsons V. Hind, 262, 264. 
 
 Partoun v. Tenants, 126. 
 
 Partick Police Commissioners i. G. W. 
 
 Steam Laundry Co., 267. 
 Paterson v. Adamson, 536. 
 
 V. Blair, 195. 
 
 V. Bonar, 87. 
 
 V. Burton, 105, 116. 
 
 V. Edington, 105, 106. 
 
 ■D. Parish, 149. 
 
 w. B. Fife, 112, 229. 
 
 ■u. Johnston, 433, 552. 
 
 ■V. MiUar, 554. 
 
 •67. Smith, 302, 310. 
 Paton V. Couston, 179. 
 
 V. M'Intosh, 443. 
 Patrick v. M'CaU, 195. 
 
 V. Watt, 285. 
 Pattisson v. Gilford, 435. 
 Paulu Anstruther, 310, 312, 313. 
 
 V. Sommerhayes, 422. 
 Paxton V. Hunter, 442. 
 
 V. Slack, 476. 
 Peacock v. Lauder, 126. 
 Pearson, 8. 
 
 V. Oswald, 403, 404, 405, 406. 
 Pease v. Coats, 383. 
 Peddie, 12. 
 
 V. Brown, 203. 
 Pendreigh's Tr. v. Dewar, 229. 
 Penman v. Ker, 313. 
 
 V. Martin, 441. 
 Penry v. Brown, 263, 271. 
 Penson, 330. 
 Pentland v. Booth, 358. 
 
 i!. Royal Exchange Ins. Co., 321. 
 
 V. Scott, 283. 
 Penton v. Robart, 260, 264. 
 Perth Mags. v. Andrew, 477. 
 
 V. Black, 38. 
 Perthshire Road Trs. v. Forfarshire Road 
 
 Trs., 569. 
 Peter v. Munro, 342. 
 Peterborough, E. v. Milne, 158. 
 Petley v. Mackenzie, 303, 306. 
 Petrie's Trs. v. Ramsay, 38, 40. 
 Pew V. Mercer, 194. 
 Philip, 14. 
 
 V. Benjamin, 91. 
 
 V. Cumming's Trs., 98, 106, 114. 
 Philips V. Easson, 344. 
 Phin V. Phin, 464. 
 Pickering Board v. Barry, 569. 
 Piers V. Black, 199, 202. 
 Pirie v. Murray, 72. 
 Pitcairn v. Drummond, 234. 
 
 V. Pitcairn, 149. 
 Pitfoddles, L. v. Pitfoddles, 536. 
 Pitsligo, L. V. Paton, 103. 
 Place V. Pagg, 259. 
 Pooock V. Gilham, 380. 
 Pollock V. Craig, 107, 115. 
 
 V. Paton, 398. 
 Pollock, Gilmour & Co. v. Harvey, 121, 433. 
 
 Polwarth, L., 344. 
 
 V. Murray, 98. 
 Poole's Ca., 263, 264, 272. 
 
 v. Bentley, 91. 
 Porteoas v. Grieve, 382. 
 Porter v. Paterson, 164. 
 
 ■u. Stewart, 415, 422. 
 Porterfield v. Cunningham, 280. 
 Portland, D. v. Baird, 157, 158, 161, 163, 
 164. 
 
 V. Samson, 217. 
 Portman v. Home Hospital Lessees, 381. 
 Pott V. Eiddell, 310. 
 Potter V. Hamilton, 204. 
 Powell V. Guest, 550. 
 Power V. Customers, 90. 
 Pratt V. Abercrombie, 96, 113, 148. 
 Preston v. L. Cockpen, 502. 
 
 ■v. Duddingston Tenants, 135. 
 
 V. Gregor, 322, 343. 
 
 ■u. Preston, 73. 
 
 V. Scott, 283, 284. 
 Pretty v. Bickmore, 544. 
 Pringle, 149. 
 
 V. E. Home, 494. 
 
 •u. M'Lagan, 158. 
 
 V. M'Murdo, 367. 
 
 V. Murray, 285. 
 
 V. Pringle, 306, 307. 
 
 V. Scott, 69, 343. 
 Proctor, 7. 
 
 Prudential Ins. Co. v. Cheyne, 320, 341. 
 Pugh V. Acton, 271. 
 Purves V. Gentle, 181, 183. 
 
 V. Rutherford, 373. 
 
 Queen, The, v. Ellis, 569. 
 Queensberry, D., 510. 
 
 V. Barker, 448. 
 
 V. Haining, 190. 
 
 V. Telfer, 506. 
 
 Exrs. V. T>. Buccleuch, 50, 53, 57. 
 
 Exrs. V. E. Wemyss, 51. 
 
 M. V. D. Queensberry, 309. 
 
 M. V. D. Queensberry's Exrs., 53, 54, 58. 
 
 Ms. V. Wright, 139. 
 
 Leases, 55, 56. 
 Quincey, ex p., 263, 264, 272. 
 
 R. V. Barrett, 548. 
 
 V. G.N. Ry., 203. 
 
 i). Moore, 545, 546. 
 
 V. Pedly, 544, 545. 
 
 V. Pratt, 415. 
 
 ■t>. Topping, M'L. & Y., 271. 
 
 V. Vaughan, 203. 
 Rae V. Pinlayson, 120, 131, 236, 408, 410. 
 
 V. Henderson, 469, 489. 
 Raglan Board v. Monmouth Steam Co., 569. 
 Eailton v. Muirhead, 324. 
 Raine v. Alderson, 540. 
 Ramage v. Briggs, 490. 
 Ramsay v. Commercial Bank, 165, 170, 179. 
 
 ■I/. Conheath, 501. 
 
 ■0. Homes, 445. 
 
 V. Strain, 405, 406. 
 Randifurd v. Tenants, 212. 
 
LIST OF CASES CITED. 
 
 XXXI 
 
 Rankin v, Dixon & Co., 205, 542. 
 V. M'Laohlan, 440, 469. 
 V. Marshall, 405. 
 Raper v. Duff, 415. 
 Eattray v. Graham, 144. 
 Kea V. Thomas, 554. 
 Eeaddie v. Mailler, 229. 
 Eeay v. Chalmers, 391. 
 
 L. V. Anderson, 5, 6, 15. 
 V. Falconer, 31. 
 Keddie v. Syme, 188. 
 Redhead v. Ker, 53. 
 Redpath v. White, 102. 
 Reeves v. OatteU, 381. 
 Reid V. Baird, 221. 
 
 V. Edinburgh Mags., 279. 
 
 V. Keith, 215. 
 
 I. Mathieson, 554. 
 
 V. Ogilvie, 285. 
 
 V. Shaw, 196. 
 Renton v. Renton, 227. 
 
 V. Younger, 301. 
 Restalrig v. Craw, 129. 
 Rex V. Lee, 262. 
 
 V. Oltey, 260. 
 
 V. St. Dunstan, 263. 
 Rich V. Basterfield, 544, 546. 
 Richard v. Kirkland, 448, 510. 
 
 V. Lindsay, 133, 134, 135, 136. 
 Richardson v. Harrey, 362. 
 
 V. Steuart, 433. 
 Richmond, D. v. Duff, 82, 431. 
 Riddell v. Grosset, 187, 191. 
 
 V. Zinzan, 493, 499, 502. 
 Riddick v. Wightman, 100, 296, 408, 410. 
 Ridgway v. Wharton, 91. 
 Rigg, 452. 
 
 V. Durward, 86, 88. 
 
 V. N. Tenants, 77. 
 Ritchie v. Barclay, 24. 
 
 V. Dickson, 446. 
 
 V. Little, 286. 
 Robb V. Menziesi 182, 489, 499, 508. 
 
 Trs. V. Robb, 149. 
 Roberts v. E. Rosebery, 394. 
 
 V. Wallace, 170, 530. 
 Robertson, 12, 14, 155, 453, 515. 
 
 u D. Athole, 419. 
 
 V. BoaweD, 353, 354. 
 
 V. Boyd, 405, 407. 
 
 V. Bryce, 353. 
 
 V. Caird, 345. 
 
 V. Campbell, 541. 
 
 V. Clerk, 323, 401. 
 
 V. Cockburn, 89, 212, 351, 352. 
 
 V. Draffan, 500. 
 
 V. Driver's Trs., 402. 
 
 V. Drysdale, 511. 
 
 I/. Elphinstone, 9. 
 
 V. Galbraith, 354, 357. 
 
 V. Gibson, 82. 
 
 V. Jardine, 340. 
 
 V. M'Intosh, 287. 
 
 v, Menzies, 76, 200. 
 
 D. Orme, 280. 
 
 0. Perthshire Local Authority, 255, 566. 
 
 V. Peter, 71. 
 
 Robertson v. Player, 180. 
 
 V. Scott, 531. 
 
 V. Spalding, 126, 301. 
 
 V. Stewart, 545. 
 
 r. Winans, 156, 275. 
 
 V. Wright, 539. 
 Robson V. M'Nish, 234. 
 Roohead v. Borthwick, 188. 
 
 V. Moodie, 158. 
 Rodger v. Crawfurds, 124, 173. 
 
 V. Gibson, 419. 
 Roebuck v. D. Hamilton, 10. 
 Roffey V. Henderson, 272. 
 Rollo V. Murray, 341. 
 
 V. Reid, 94. 
 RoUock, 126. 
 Rolls V. Miller, 381. 
 Romano v. Nisbet, 472. 
 Ronald v. Strang, 126. 
 Ronaldson, 128, 156, 180. 
 
 V. Ballantyne, 521. 
 Rorison v. Shaw, 337. 
 Rosebery, E. v. Brown, 456. 
 RoseweU v. Prior, 544, 546. 
 Ross V. Blair, 101, 131, 159. 
 
 V. Brims, 495. 
 
 V. Fleming, 286. 
 
 V. Ly. Fowlis, 488. 
 
 V. Gilchrist, 551. 
 
 V. Hawkins, 235. 
 
 V. Heriot's Hosp., 38. 
 
 V. M'Finlay, 455, 457. 
 
 V. Moncrieff, 232. 
 
 V. Monteith, 179, 532. 
 
 V. Ross, 8, 9, 10, 107, 108, 114, 482. 
 
 V. Steven, 92. 
 
 V. D. Sutherland, 88, 130, 131. 
 
 V. Cs.-Dr. Sutherland, 409. 
 
 V. Webster, 93, 496. 
 
 V. Williamson, 335, 337, 349. 
 Rossy V. Tenants, 6, 72. 
 Rosyth, L. V. Wood, 284. 
 Rothes Ca. v. Campbell, 478. 
 Rowallan v. Boyd's Relict, 483, 505. 
 Rowan v. Bar, 342. 
 Roxburghe, D., 549. 
 
 V. Archibald, 367. 
 
 V. Archibalds, 163. 
 
 V. Ds.-Dow., 73, 74. 
 
 E. V. Maisondieu Tenants, 38. 
 
 D. V. Robertson, 374, 377. 
 Roy V. E. WemysB, 495. 
 Royal Bank v. Dixon, 536. 
 Runcie v. Lumsden's Reps., 235. 
 RusseU, 11, 452. 
 
 V. E. Breadalbane, 170. 
 
 V. Clark, 497. 
 
 V. Cochrane, 360, 534. 
 
 V. Freen, 102, 108. 
 
 & Son V. Gillespie, 386. 
 
 V. Lanarkshire, &c., Trs., 586. 
 
 V. Shenton, 544. 
 Rutherford v. Bowden Feuars, 91. 
 
 V. Dunn, 544. 
 
 V. Laidlaw, 554. 
 
 V. Scott, 346. 
 Ruthven v. Arbuthnot, 344. 
 
xxxu 
 
 LIST OF CASES CITED. 
 
 Saint V. PiUey, 272. 
 
 St. Albans v. Battersby, 383. 
 
 St. Andrews Archb. v. Glasgow Mags., 34. 
 
 Commissary v. Watson. 346. 
 St. Clare v. Grant, 489. 
 Salton, L. v. Club, 344, 349. 
 Samuel v. E. & G. Ry., 204. 
 
 V. Samuel, 282. 
 Sandeman v. So. Property Co., 465. 
 
 V. Thomson, 326. 
 Sanderson v. Town of Musselburgh, 34. 
 
 V. Ms. Tweeddale, 163. 
 Sawers v. M'Connell, 82, 197, 292. 
 Saxby v. Manchester, &o., Ry., 544. 
 Scott, 346. 
 
 V. Anderson, 350. 
 
 V. Baird, 144. 
 
 V. Boyd, 106, 120, 499. 
 
 V. Brodie, 370. 
 
 v. Cairns, 99. 
 
 v. Christie, 496, 497. 
 
 •<^. Cook, 500. 
 
 0. Durham, 368. 
 
 V. Erskines, 353. 
 
 V. Ewart's Reps., 269, 271. 
 
 V. Fisher, 442, 444. 
 
 V. Graham, 134. 
 
 <!. M'Murdo, 506. 
 
 V. Straiten, 125. ' 
 
 V. Tait, 199, 223. 
 
 V. Thorn, 321. 
 
 V. Whitstaid Tenants, 320. 
 
 V. Wotherspoon, 469, 471. 
 
 Exrs. V. Bethune, 212. 
 
 Exrs. V. Hepburn, 154, 230. 
 Scottish Heritable Sec. Co. v. Allan Camp- 
 beU & Co., 320. 
 
 V. Granger, 204. 
 Scottish Lands, &o., Co. v. Shaw, 108. 
 Scottish Union Ins. Co. v. Mackintosh, 211. 
 Soougal V. Crawford, 506. 
 Scrimgeour v. Mitchell, 157. 
 Seaforth's Trs. v. Macaulay, 185. 
 Selby V. Greaves, 253. 
 Selkirk, E. v. Kennedy, 415. 
 
 Mags. V. Clapperton, 34, 36, 232, 235, 
 269. 
 
 E. V. Naismith, 404. 
 Selkrig v. Erench, 344. 
 Sellar v. Alton, 110, 116. 
 Sellers v. Brown, 222. 
 Semple v. M'Kirdy, 555. 
 Seth V. Hain, 41, 76. 
 Seton V. Caskieben, 20, 22. 
 
 V. Seton, 467. 
 
 V. White, 126, 131, 299. 
 Shadwell v. Hutchinson, 540. 
 Shanks v. Grant, 496. 
 
 Exrs. V. Aberdeen Ry., 403. 
 Sharp, 9. 
 
 V. Burt, 195. 
 
 V. Clark, 457. 
 
 V. Maxwell, 343. 
 
 V. Napier, 113. 
 
 V. Smyth, 464, 551. 
 
 Factor v. L. Monboddo, 202. 
 Shaw, 12. 
 
 Shaw V. Browne, 355. 
 
 V. Palmer, 476. 
 
 V. Tenants, 283. 
 Shepherd, 11. 
 
 V. Watherstone, 314. 
 Shinas v. Fordyce, 446, 499. 
 Shireff v. L. Lorat, 373. 
 Shirlaw v. Wilson, 447. 
 Shotts Iron Co. v. Paton, 504, 506. 
 Sibbald v. L. Sinclair, 260. 
 Sievewright v. Scott, 114, 119. 
 Simpson v. A, 289. 
 
 V. Creighton, 369. 
 
 V. ©-ray, 158. 
 
 V. Sayage, 541. 
 
 V. Sc. Union Ins. Co., 211. 
 Simpson's Asyliim Trs. v. Gowans, 278. 
 
 Trs. V. Carnegie, 373, 374. 
 Sinclair v. Caithness Flagstone Co., 89, 107, 
 108. 
 
 V. Dabymple, 305, 369. 
 
 V. Duffus, 433. 
 
 V. Eraser, 233, 405, 407. 
 
 V. Harper, 551. 
 
 V. Hutchison, 202. 
 
 V. Leslie, 447. 
 
 ./. M'Beath, 82, 98, 101, 109, 229. 
 
 V. Manderson, 451. 
 
 „. Manson, 223, 225, 232. 
 
 u. Mossend Iron Co., 115, 210. 
 
 1/. Sinclair, 313, 314. 
 
 v. Sinclare, 472. 
 
 V. Weddell, 87, 105. 
 Skeete v. Allan, 554. 
 
 V. Buchanan, 554. 
 
 V. Turnbull, 654. 
 Skene, 105, 113, 115, 397. 
 
 V. Greenhill, 156, 178. 
 
 V. Maberley, 216. 
 
 V. Spankie, 91, 119. 
 Skinner v. E. Saltoun, 100, 231. 
 Skirving v. Vernor, 549. 
 Slade, 11, 14, 453. 
 Slipper V. Tottenham, 203. 
 Slowan V. Hawthorn, 201. 
 Slowey V. Robertson, 445, 501. 
 Small V. Boyds, 343. 
 Smart v. Ogilvie, 347. 
 Smellie v. Lockhart, 415. 
 Smeton v. Brand, 260. 
 Smiles v. Crooke, 570. 
 Smith V. Cameron, 201, 379. 
 
 V. Falconer, 286. 
 
 V. M 'Donald, 552. 
 
 V. M'Gill, 192. 
 
 V. E. Marischal, 467. 
 
 V. Robertson, 88, 185, 191. 
 
 V. Rogerson, 181. 
 
 V. Ross, 197. 
 
 V. Wharton, 405. 
 
 V. White, 381. 
 
 V. Wilson, 186. 
 
 V. Young, 414. 
 Somerville's Factor, 10. 
 Soot's Trs. V. L. Wharnclifife, 246. 
 Sonter v. Wauchope, 157. 
 Speirs, 11, 12. 
 
LIST OF CASES CITED. 
 
 XXXUl 
 
 Spiers' Tutors, 11, 12. 
 Sprot V. Morrison, 295. 
 Sproul V. "Wnson, 89, 92, 115, 395. 
 Squier v. Maj'er, 263. 
 Stainhill, Ly. v. Burd, 494. 
 Stair, E., 63. 
 
 Cs. V. Willison, 366. 
 Stalker v. Young, 555. 
 Stanfield v. Nelson, 73. 
 Stansfeld v. Portsmouth Mayor, 271. 
 Stark V. Edmonstone, 367. 
 Stead V. Cox, 533. 
 Steedman v. Kennedy, 202. 
 Stephen v. L. Adv., 28, 547. 
 Stevenson v. Adair, 20. 
 
 V. Baird, 477. 
 
 I/. Barclay, 471. 
 
 V. Cooper, 180, 350. 
 
 ■V. Dohie, 126. 
 
 ■u. Job, 459. 
 
 V. Love, 1, 158. 
 
 V. M'Cullochs, 360. 
 
 i: Moncrieff, 313, 314. 
 
 V. Stevenson, 444. 
 
 Trs. V. Ms. Tweeddale, 451. 
 Steward v. Wand, 74. 
 Stewart v. AUan, 551. 
 
 „. D. Argyle, 390. 
 
 V. Barnetson, 551. 
 
 u. Bell, 324, 330, 361. 
 
 ■„. BuUoch, 433, 434. 
 
 1. Bums, 441. 
 
 ■u. Campbell, 47. 
 
 V. Clark, 82, 97, 98, 106, 255. 
 
 V. Doull, 550. 
 
 V. E. Dunmore's Trs., 237, 408, 410. 
 
 V. Grimmond'a Reps., 371, 505. 
 
 V. Lead, 194. 
 
 r. Leith, 104, 105. 
 
 V. Macandrew & Co., 278. 
 
 ,;. M'CaJlum, 198. 
 
 ■o. M'Naughton, 155. 
 
 ■V. M'Rae, 131, 236, 293, 408. 
 
 ■I/. Murdoch, 66. 
 
 V. Murray, 415, 429. 
 
 V. Neilson, 85. 
 
 V. Paisley Mags., 35, 36. 
 
 V. Phimister, 554. 
 
 ■A Vine, 148. 
 
 ■ii. Rose, 257, 338, 346. 
 
 V. Rutherfurd, 456. 
 
 V. Ly. Samuelston, 18. 
 
 V. Scouller, 555. 
 
 V. Smart, 539. 
 
 V. Smith, 555. 
 
 V. Spalding, 442, 443. 
 
 V. Stables, 324, 335, 349. 
 
 V. Stephen, 539. 
 
 V. Steuart, 63. 
 
 V. Stewart's. Exrs., 69, 80. 
 
 V. Strang, 246. 
 
 t>..Wand, 198, 324, 353, 444, 547. 
 
 r. Watson, 88, 464, 469, 471, 472, 473. 
 
 r. Webster, 18. 
 
 Donatar Vi Tenants, 280. 
 Still's Trs. V. Chivas, 372. 
 Stirling v. Dunn, 51, 82, 491. 
 
 Stirling v. Miller, 88, 213. 
 
 ■0. Strang, 232. 
 
 V. Walker, 52. 
 
 V. Yuille, 375. 
 Stiven v. Cowan, 261, 
 Stoddart v. Stevenson, 415. 
 Stonefield v. M' Arthur, 470. 
 Stormont, V. v. Andersons, 340. 
 Straohan v. Christie, 202. 
 
 V. Cunningham, 287. 
 
 V. Niohol, 395. 
 Stratiou v. Graham, 397, 398, 401. 
 Summerlee Iron Co., 277. 
 Summers v. Fairservice, 93, 451. 
 Sumner v. Broomilow, 271. 
 Sunderland Overseers v. Guardians, 383. 
 Sutherland, 100. 
 
 V. Forbes, 553. 
 
 V. Grahame, 443. 
 
 V. Hay, 103, 113, 116. 
 
 V. Jeffrey, 148. 
 
 V. Mackenzie, 462. 
 
 V. Robertson, 205, 220. 
 
 V. Sinclair, 551. 
 
 V. Thomson, 539. 
 Suttie V. Somner, 369, 398. 
 Swan V. Baird, 168. 
 Swinton v. L. Craigmillar, 198. 
 
 V. Gawler, 307, 309. 
 
 V. M'Dougals, 206. 
 
 V. Ds. Roxburghe, 73. 
 
 V. Seton, 343, 346. 
 
 V. Stewart, 360. 
 Sydserf v. Todd, 530. 
 Syme v. Harvey, 258, 262, 264, 265. 
 
 V. E. Moray, 423, 424. 
 Symington •;;. Cranston, 196. 
 
 V. D. Queensberry's Exrs., 198, 204. 
 
 V. Weir, 451. 
 
 Tailfer v. M'Dougal, 143. 
 Tait V. Gordon, 485. 
 
 V. Haldane, 554. 
 
 V. Maltland, 73. 
 
 V. Paton, 498. 
 
 V. Sligo, 500. 
 Tassie v. Glasgow Mags., 547. 
 Taylor, 16. 
 
 V. Bethune, 234, 235. 
 
 V. Boyle, 471. 
 
 V. Brown, 83, 223, 226. 
 
 V, Davidson, 338. 
 
 V. Duff's Trs., 366, 368, 398, 400. 
 
 V. Fairlie's Trs., 628. 
 
 V. Macknight, 364. 
 
 V. Maxwell, 213. 
 
 ■•/. St. Mary Abbot, 660. 
 
 1/. Taylor, 213. 
 Tenants v. Vt. Stormont, 139. 
 Tennant v. Auchinleck, 443. 
 
 V. B. Glasgow, 204. 
 
 r. M'Brayne, 334. 
 
 V. M'Donald, 404, 443, 469, 470, 472. 
 
 r. Tennent, 505. 
 
 Trs. V. Maxwell, 355. 
 Thom 1). Jack, 534. 
 Thomas v. Dumbreok, 100, 297, 353. 
 
XXXIY 
 
 LIST OF OASES CITED. 
 
 Thomas v. M'Nab, 555. 
 
 V. M'Naughton, 554. 
 Thomson v. Barclay, 337, 501, 502. 
 V. Boyd, 279, 321. 
 V. Brown, 211. 
 V. Christie, 323. 
 V. Coventry, 294, 295. 
 V. Elderson, 7, 445. 
 V. Fowler, 230, 395. 
 V. Gariooh, 187. 
 V. Gibson, 540, 544. 
 V. Gordon, 209, 295. 
 V. Gray, 542. 
 
 V. Handyside, 446, 497, 500, 507. 
 V. Harvle, 269, 448, 510. 
 V. Jameson, 289. 
 V. Merston, 72. 
 i>. Mowat, 60. 
 V. Oliphant, 266. 
 V. Paxton, 20,4. 
 V. Reid, 126. 
 V. Stevenson, 19, 20. 
 V. Terney, 134, 486. 
 V. Watson, 143. 
 V. Young, 112. 
 Heps. V. Oliphant, 365, 368. 
 Threipland, 11. 
 
 V. Munro, 398. 
 Thresher v. E. London Waterworks Co., 265. 
 
 270. 
 Thurstone's Oreds., 536. 
 Tod V. Flight, 543, 544. 
 V. Montgomery, 344. 
 Trs. V. Finlay, 262. 
 Trs. V. Wilson, 167. 
 Tolquhon's Exrs., Ly. v. Creditors, 302, 310. 
 Topping V. Barr, 104. 
 Torphichen, L. ■;;. L. Pitfoddels, 472. 
 Torrie v. Adam, 353. 
 
 ■u. Mounsie, 146. 
 Touch V. Ferguson, 193, 224. 
 Traill v. Traill, 442. 
 Trappes v. Harper, 261. 
 Traquair, Cs. v. Cranstoun, 349. 
 Ly. V. Howat, 280. 
 Trs. u. Innerleithen Hers., 557. 
 Trotter v. Cunninghani, 306. 
 V. Dennis, 157, 158, 162. 
 V. Hall, 148, 161. 
 V. Lanceman, 511. 
 V. M'Ewan, 414, 421. 
 V. Rochead, 306. 
 Tucker «. Newman, 540. 
 TuUiallan v. Crawford, 289. 
 TuUoch, 515. 
 
 ■V. Willoughby D'Ereaby, 346. 
 Turnbnll v. Kerr, 257, 306, 307. 
 V. M'Dowall, 237. 
 V. M'Lean, 292. 
 V. Scott, 179. 
 Turner, 14. 
 
 V. Blackadder, 535. 
 ■u. Nicolson, 237. 
 V. Scott, 535. 
 
 V. Turner, 51, 52, 57, 70, 233, 491. 
 Trs., 452. 
 Tweeddale, Ms. ii. Aytoun, 397. 
 
 Tweeddale, Ms. v. Brown, 365, 378. 
 
 V. Dalrymple, 421. 
 
 V. Dods, 145. 
 
 V. Hume, 283. 
 
 t>. Murray, 371, 483, 505. 
 
 ■V. Somner, 305, 369, 371, 414, 421, 505. 
 Tyson v. London Corp., 203. 
 
 Udny V. Brown, 72, 482, 502. 
 Underwood v. Richardson, 166, 175. 
 Union Bank v. Mackenzie, 171. 
 Urquhart v. Dewar, 149. 
 
 V. Mackenzie, 461, 462, 463. 
 
 Vallance v. M'Donald, 22. 
 Varley v. Coppards, 162. 
 Vary v. Thomson, 544. 
 Veitch, 69. 
 
 V. Paterson, 401, 570. 
 
 D. Young, 144. 
 Vere v. Dale, 10. 
 
 ■11. Mackintosh, 429. 
 
 Waddell, 8, 11. 
 V. Broun, 120. 
 V. M'Phail, 553. 
 V. WaddeU, 74. 
 
 Trs. V. Monkland Iron Co., 209. 
 Wainwright v. Ramsden, 203. 
 Wake V. HaU, 258, 264. 
 Waldie v. Commercial Bank, 264. 
 
 V. Gordon's Trs., 85. 
 Walker v. Bayne, 202, 205. 
 „. Creda., 23. 
 
 ■:,. Flint, 89, 106, 112, 115. 
 V. Macknight, 162, 230. 
 V. Masson, 234. 
 V. Milne, 105, 115. 
 V. TumbuU, 82, 185, 255. 
 Exrs. v. Low's Trs., 168. 
 Trs. V. Manson, 229, 450, 458. 
 Walker, Grant & Co. v. Grant, 215. 
 Wallace v. Campbell, 169, 172. 
 V. Cunningham, 19. 
 ■i!. L. Forrester, 321. 
 c Harvey, 47, 123. 
 (/. Jacksmen, 405, 454, 457. 
 .,. Tenants, 444, 502. 
 I/. Turners, 213. 
 V. Wallace, 9, 21. 
 Walmsley v. Milne, 262, 266. 
 Walpole V. Beaumont, 130, 293, 409, 410. 
 Wansborough v. Maton, 260. 
 Warden v. Usher, 264. 
 
 Wardlaw u'Campbell, 37, 40, 73, 74. 
 
 r. Mitchell, 322, 338. 
 
 V. Otterburn, 123. 
 
 V. Wardlaw'a Trs., 74. 
 
 Donatar v. Brown, 280. 
 Ware, re, 203. 
 
 Wark V. Bargaddie Coal Co., 99, 113. 
 Warner v. Cunninghame, 77. 
 Waterfall v. Penistone, 264. 
 Wateraon v. Stewart, 224, 23 1. 
 Waterstone v. Mason, 507. 
 Watherell v. Howells, 265. 
 
LIST OF CASES CITED. 
 
 XXXV 
 
 Watmore v. Bums, 404. 
 Watson V. Brown, 283. 
 
 V. Douglas, 212, 530. 
 
 V. E. Errol, 421. 
 
 K. Gordon, 18. 
 
 V. Kidston, 186, 394. 
 
 V. M'CuUoch, 357. 
 
 V. Reid, 535, 536. 
 
 Keps. V. Turner, 181, 182. 
 Watt, 8. 
 
 V. Bell, 490. 
 
 V. Duflt, 163. 
 
 V. Stewart, 104. 
 Wauchope v. Gall, 330. 
 
 V. Hope, 387, 502. 
 
 V. Stephens, 195. 
 Wauohton ■!;. Aickin, 459. 
 Waugh V. Aberoromby, 502. 
 
 1). Nisbett, 472. 
 
 V. Eussel & Son, 278. 
 Weatherhead v. Moffat, 553. 
 Webster v. Donaldson, 282. 
 
 I/. Farqubar, 235. 
 
 V. Lyell, 185. 
 Weddell v. Buchan, 492. 
 Wedderburn v. Marr, 323. 
 
 V. Nisbet, 284, 472. 
 Wedgwood v. Catto, 46. 
 Weeton v. Woodcock, 272. 
 Weguellin v. WayaU, 570. 
 Weir V. Dunlop & Co., 44. 
 
 V. Glenny, 539. 
 
 Exrs. V. Durham, 308, 309, 333. 
 
 Trs., 40. 
 Wellington v. BCoskins, 569. 
 Wells V. Attenborough, 383. 
 
 11. Proudfoot, 362. 
 Wellwood V. Husband, 102, 127, 414. 
 
 V. Moncrieff, 50. 
 
 V. Wellwood, 277. 
 Wemyss v. Drysdale, 612. 
 
 V. Goodsire, 635. 
 
 V. Gulland, 421, 429. 
 
 V. St. Colme, 284. 
 
 V. Wilson, 424. 
 
 E. V. Campbell, 306, 321, 432. 
 
 E. V. Hope, 385. 
 
 E. V. Hope's Trs., 387, 388, 539. 
 
 E. V. Murray, 35. 
 
 E. V. D. Queensberry's Exrs., 51, 52, 53, 
 56. 
 
 E. V. D. Queensberry's Exr., 491, 493. 
 
 E. V. Wright, 375. 
 West V. Blakeway, 263, 271. 
 West-Nisbet, L. v. L. Swiuton, 306, 307. 
 Weston V. Potterrow Tailors, 542, 543, 544. 
 Westropp V. EUigott, 514. 
 WethereU v. Bird, f 82. 
 Wheeler v. Montefiore, 539. 
 White, 13. 
 
 V. Christie, 341. 
 
 V. Haddington Sch. B., 506. 
 
 V. Houston, 222, 224, 230. 
 
 V. Jameson, 542. 
 
 V. Moncrieff, 202, 209. 
 Whiteford v. Johnston, 448. 
 Whitehead v. Bennett, 264, 26f, 
 
 Whitelaw v. Pulton, 213, 220, 361. 
 Whitson u Duncan, 456. 
 
 V. Kamsay, 7. 
 Whittinghame v, Hatelie, 280. 
 Wickenden v. Webster, 381. 
 Wight V. Dicksons, 390. 
 
 V. E. Hopetoun, 88, 125, 163, 224. 
 
 V. Inglis, 305. 
 
 ■u. Sutherland, 496. 
 
 V. Wight's Trs., 192. 
 Wilkie V. Kerr, 202. 
 Wilkinson v. Rogers, 380. 
 Williams v. Jones, 205. 
 Williamson v. Balgillo, 285. 
 
 V. Forbes, 182, 350. 
 
 V. Eraser, 109. 
 
 V. Johnstone, 449, 464, 472. 
 Wilson V. CampbeU, 234, 448, 467. 
 
 V. Douglas, 91, 405. 
 
 V. Pinoh-Hatton, 219. 
 
 V. Hart, 383. 
 
 V. Henderson, 133, 134, 488. 
 
 V. Holme, 534. 
 
 V. Holmes, 570. 
 
 V. Kerr, 552. 
 
 V. M'Aulay, 14. 
 
 V. Mader, 209. 
 
 f. Mann, 102, 111, 124. 
 
 V. Norris, 82, 200, 254, 255. 
 
 V. Pollock, Gilmour & Co., 254, 274. 
 
 V. Spankie, 331. 
 
 V. Stewart, 153, 511. 
 
 V. Storry, 34, 35. 
 
 V. Warrock, 280. 
 
 V. Whately, 270. 
 
 V. Wilson, 15, 41, 138, 174, 442. 
 
 Trs. V. Wilson's Factor, 22. 
 Winans v. Mackenzie, 184, 446. 
 
 V. Macrae, 539. 
 Windham v. Way, 262. 
 Winerham v. Ly. Idington, 341. 
 Wink, 12, 452. 
 Winn v. Ingilby, 263. 
 Winraham v. Henderson, 72. 
 Witham v. White, 323, 399, 401. 
 Wood V. Kerr, 92. 
 
 ■D. Leadbitter, 2. 
 
 ■0. Moncur, 487. 
 
 ■0. Paton, 424. 
 
 ■I). Robertson, 539. 
 
 V. Stewart, 535. 
 Woodward v. Wilson, 321. 
 Wooler V. Knott, 383. 
 Wright V. Cunningham, 302. 
 
 V. Inglis, 369. 
 
 V. M'Gregor, 401. 
 
 V. Walker, 168, 171, 534. 
 
 V. Wightman, 351, 459, 508. 
 Wyld & Co. V. Richardson, 346. 
 
 Yeaman v. Gilruth, 187, 188. 
 Yeoman v. Elliot, 169, 172, 175. 
 York Buildings Co. v. Adam, 223. 
 
 u. BaiUie, 87. 
 
 ■V. Buchan, 288. 
 
 V. Carnegie, 441, 445. 
 
 r. Fordyce, 47. 
 
xxxvi 
 
 LIST OF CASES CITED. 
 
 York Buildings Co. v. Garden, 280. 
 
 V. Grant, S70. 
 
 v. Stewart, 510. 
 
 V. Threepland, 47. 
 Young V. Cockburn, 101, 274. 
 
 V. Cunningham, 190, 390, 540. 
 
 V. Gerrard, 145, 470. 
 
 V. Newbigging, 553. 
 
 Young V. Welsh, 346. 
 
 & Oo. V. Paton, 507. 
 
 & Co. V. Eamsay, 216. 
 
 Trs. V. Anderson, 212, 530. 
 Yuille V. Lawrie, 340. 
 
 Zetland, E. v. Hislop, 379, 331. 
 Zuill V. Buchanan, 325. 
 
LIST OF STATUTES CITED. 
 
 1 Rob. I. u. 6, p. 322. 
 Dav. II. u. 6, p. 322. 
 Rob. III. u. 2, p. 418. 
 
 c. 12, p. 322. 
 1424, c. 20, p. 418. 
 1449, c. 17, pp. 70, 117 seq., 134, 135, 177, 
 
 273, 287, 433. 
 1457, c. 88, p. 422. 
 1469, 0. 36, pp. 322, 434, 536. 
 1474, c. 60, p. 422. 
 1477, c. 75, p. 418. 
 1491, c. 36, p. 36. 
 1493, c. 48, p. 418. 
 1503, c. 98, p. 535. 
 1528, c. 6, p. 542. 
 1535, 0. 11, p. 418. 
 
 o. 26, p. 36. 
 1551, c. 19, p. 17. 
 1555, c. 39, pp. 447, 460, 481 seq., 487, 495, 
 
 498, 502, 608. 
 1563, 0. 72, p. 29. 
 1572, c. 48, p. 29. 
 
 c. 54, p. 557. 
 1579, c. 81, p. 492. 
 
 c. 82, p. 486. 
 
 c. 83, p. 285. 
 1581, c. 118, p. 17. 
 1584, c. 132, p. 29. 
 1587, c. 29, p. 29. 
 
 1592, 0. 143, pp. 287-8. 
 0. 152, p. 17. 
 
 1593, c. 185, pp. 34, 36. 
 
 1594, c. 231, p. 542. 
 1597, 0. 232, p. 557. 
 1606, c. 16, p. 36. 
 1617, 0. 4, p. 172. 
 
 c. 6, p. 557. 
 
 c. 12, p. 199. 
 
 c. 15, pp. 18, 52. 
 
 o. 19, p. 413. 
 1621, c. 18, pp. 47, 49. 
 1661, c. 41, p. 193. 
 1669, c. 9, pp. 286, 486. 
 
 c. 17, p. 193. 
 1681, 0. 4, p. 542. 
 1685, c. 14, p. 486. 
 
 c. 24, p. 542. 
 
 i;. 30, p. 418. 
 
 1690, 0. 39, pp. 302, 483. 
 1693, c. 24, pp. 302, 483. 
 c. 28, p. 36. 
 
 1695, c. 5, p. 362. 
 
 1696, e. 55, pp. 47, 49. 
 
 1698, CO. 19, 20, p. 36. 
 
 1699, 0. 4, p. 321. 
 
 1700, c. 3, p. 18. 
 1703, c. 7, p. 19. 
 
 4 & 5 Will. III. c. 23, p. 418. 
 
 7 Anne, t. 21, p. 17. 
 
 8 Anne, t. 16, p. 323. 
 1 Geo. I. c. 20, p. 17. 
 
 seas. 2, o. 48, p. 193. 
 c. 54, §§ 10-14, pp. 130, 273. 
 6 Geo. I. 0. 16, p. 193. 
 
 20 Geo. II. c. 43, § 17, p. 321. 
 
 § 26, p. 36. 
 c. 50, § 11, p. 16. 
 
 §§ 21, 22, pp. ISO, 273. 
 
 21 Geo. II. c. 34, p. 17. 
 
 24 Geo. II. c. 23, §§ 1, 6, p. 302. 
 6 Geo. III. 0. 32, p. 418. 
 
 cc. 36, 48, p. 193. 
 
 c. 48, p. 193. 
 
 9 Geo. III. 0. 41, p. 193. 
 
 10 Geo. III. c. 51, § 1, p. 159. 
 
 §§ 1-8, pp. 59, 60. 
 § 6, p. 70. 
 § 7, pp. 54, 55. 
 §§ 9-31, p. 233. 
 
 13 Geo. III. c. 33, p. 193. 
 
 0. 54, p. 419. 
 
 14 Geo. III. c. 78, § 86, p. 205. 
 
 § 83, p. 211. 
 
 15 Geo. III. c. 28, p. 81. 
 33 Geo. III. c. 44, p. 18. 
 39 Geo. III. c. 56, p. 81. 
 
 43 Geo. III. c. 150, § 33, p. 340. 
 50 Geo. III. 0. 112, § 28, p. 320. 
 52 Geo. III. c. 95, § 13, p. 340. 
 
 54 Geo. III. c. 137, § 15, p. 628 
 
 55 Geo. III. 0. 184, p. 93. 
 3 Geo. IV. 0. 91, p. 36. 
 
 §§ 5, 6, 8, 11, pp. 33, 34, 35. 
 
 5 Geo. IV. c. 74, p. 276. 
 
 y,. 87, p. 277. 
 
 yi. 90, § 10, p. 93. 
 
xxxvni 
 
 LIST OF STATUTES CITED. 
 
 6 Geo. IV. c. 48, § 2, p. 321. 
 
 c. 69, pp. 414, 421, 422, 429. 
 c. 120, § 44, pp. 495, 496. 
 § 46, p. 796. 
 10 Geo. IV. c. 7, p. 18. 
 
 c. 50, pp. 26-8. 
 ■2 & 3 Will. IV. u. 65, § 9, pp. 553, 554, 555, 
 556. 
 § 10, p. 556. 
 § 11, pp. 553, 555. 
 § 36, p. 549. 
 § 37, p. 549. 
 u. 68, § 1, pp. 414, 422, 429, 430. 
 0. 112, p. 26. 
 
 3 & 4 Will. IV. o. 69, pp. 26, 27. 
 
 §§ 2, 3, p. 26. 
 c. 76, p. 557. 
 c. 77, § 30, pp. 357, 499, 557. 
 
 4 & 5 Will. IV. 0. 22, pp. 310-313. 
 ;-) & 6 Will. IV. c. 63, p. 277. 
 
 6 & 7 WiU. IV. c. 42, § 1, pp. 11, 67, 159, 
 
 161. 
 §§ 1, 2, pp. 68, 59, 68, 70. 
 1 Vict. c. 41, § 2, p. 320. 
 o. 41, pp. 358, 499, 503. 
 
 1 k 2 Vict. c. 70, p. 58. 
 
 c. 86, §§ 4, 6, p. 496. 
 
 c. 87, p. 66. 
 
 0. 114, pp. 317-8. 
 
 § 32, pp. 499, 503, 506, 507, 508. 
 c. 119, pp. 499, 506, 610. 
 
 2 & 3 Vict. c. 41, § 5, p. 328. 
 
 0. 42, p. 569. 
 
 3 & 4 Vict. c. 48, p. 67. 
 
 4 & 5 Vict. i;. 38, p. 67. 
 
 7 & 8 Vict. c. 29, p. 414. 
 
 c. 37, p. 67. 
 c. 66, p. 19. 
 
 8 & 9 Vict. c. 17, § 40, p. 171. 
 
 § 137, p. 167. 
 c. 19, §§ 112-5, pp. 202-3. 
 
 § 128, p. 167. 
 0. 33, §§ 105-6, p. 82. 
 
 § 130, p. 167. 
 c. 42, §§ 8-12, p. 82. 
 c. 83, pp. 558-510. 
 
 § 88, p. 340. 
 c. 96, p. 82. 
 
 9 & 10 Vict. u. 67, p. 499. 
 
 10 & 11 Vict. c. 50, § 2, p. 316. 
 
 §§ 2, 3, p. 174. 
 
 11 & 12 Vict. .;. 30, § 2, p. 416. 
 
 § 4, pp. 414, 417. 
 c. 36, §§ 1, 3, 4, 24, pp. 61, 62, 70, 71. 
 §§ 13-20, p. 233. 
 § 39, p. 49. 
 § 43, p. 49. 
 § 49, p. 152. 
 
 12 & 13 Vict. c. 49, p. 67. 
 
 c. 51, pp. 6, 7, 12. 
 
 13 & 14 Vict. 0. 33, p. 564. 
 
 c. 30, p. 556. 
 c. 97, p. 92. 
 
 14 Vict. c. 24, p. 67. 
 14 & 15 Vict. c. 25, § 3, pp. 267-8. 
 
 c. 34, p. 563. 
 
 c. 42, f§ 1, 2, p. 26. 
 
 16 & 17 Vict. 0. 80, § 2, p. 465. 
 
 § 26, p. 358. 
 § 27, p. 353. 
 
 § 29, pp. 481, 484, 485, 613. 
 §§ 30, 31, pp. 478, 613. 
 c. 94, §§ 6, 13, pp. 62, 70. 
 
 17 & 18 Vict. c. 9, § 18, p. 569. 
 
 c. 80, p. 562. 
 c. 83, p. 92. 
 c. 86, p. 565. 
 c. 91, § 6, p. 557. 
 
 § 31, p. 559. 
 
 § 42, pp. 297, 433, 552. 
 c. 106, p. 569. 
 
 18 & 19 Vict. c. 29, p. 562. 
 
 c. 68, pp. 562-3. 
 
 c. 88, p. 36. 
 
 0. 122, § 109, p. 211. 
 
 19 & 20 Vict. c. 56, §§ 29-36, p. 339. 
 
 c. 58, § 8, pp. 549, 569. 
 u. 60, § 4, p. 348. 
 
 § 6, p. 360. 
 
 § 8, p. 361. 
 
 § 9, p. 362. 
 i;. 79, p. 531. 
 
 § 2, p. 528. 
 
 § 7, p. 47. 
 
 §§ 42, 102, p. 290. 
 
 § 82, p. 532. 
 
 § 102, p. 529. 
 
 § 119, pp. 342, 348, 534. 
 
 20 & 21 Vict. 0. 26, pp. 169, 172-5, 177, 316 
 
 575. 
 
 §§ 2, 12, 16, pp. 123, 124, 127, 132. 
 
 § 78, p. 144. 
 c. 56, pp. 13, 39. 
 
 §§ 4-6, p. 7. 
 c. 58, p. 569. 
 c. 65, p. 564. 
 u. 70, p. 557. 
 u. 71, p. 569. 
 u. 72, p. 564. 
 
 § 17, p. 549. 
 e. 73, p. 563. 
 
 21 & 22 Vict. c. 75, § 3, p. 82. 
 
 c. 83, § 5, p. 32. 
 23 Vict. c. 15, p. 92. 
 
 23 & 24 Vict. c. 27, §§ 44, 46, p. 383. 
 
 c. 41, p. 82. 
 c. 79, p. 564. 
 c. 85, p. 562. 
 c. 90, pp. 416, 429. 
 c. 105, p. 569. 
 
 24 & 25 Vict. c. 17, p. 563. 
 
 c. 37, p. 558. 
 c. 47, p. 565. 
 u. 83, p. 569. 
 
 § 13, p. 549. 
 ^. 84, pp. 31, 453. 
 
 § 1, p. 444. 
 "• 86, §§ 5, 6, p. 24. 
 
 25 & 26 Vict. c. 37, p. 26. 
 
 u. 69, p. 565. 
 c. 85, §2, p. 166. 
 c. 89, § 62, p. 167. 
 i;. 97, p. 569. 
 c. 101, p. 564. 
 
LIST OF STATUTES CITED. 
 
 XXXIX 
 
 25 & 26 Viot. c. 114, p. 422. 
 
 26 & 27 Viot. c. 40, p. 563. 
 
 c. 81, p. 565. 
 
 0. 113, p. 417. 
 
 <;. 115, pp. 37, 453. 
 
 c. 118, §§ 22 seq., p. 171. 
 
 27 & 28 Viot. u. 53, § 35, p. 430. 
 
 c. 114, pp. 228, 233, 323, 313. 
 c. 115, p. 418. 
 
 28 & 29 Viot. c. 96, p. 92. 
 
 0. 102, p. 563. 
 
 29 & 30 Viot. c. 28, p. 563. 
 
 c. 30, p. 565. 
 
 c. 62, pp. 26, 27, 28, 240. 
 
 c. 71, pp. 31, 32. 
 
 0. 72, p. 565. 
 
 0. 118, p. 565. 
 
 30 & 31 Viot. o. 37, p. 563. 
 
 u. 38, p. 563. 
 
 c. 42, pp. 326, 334-5, 338, 347, 349, 557. 
 
 § 7, p. 359. 
 0. 80, p. 569. 
 0. 96, § 3, p. 321. 
 
 §§ 5, 16, p. 359. 
 o. 97, §2, pp. 11,445,453. 
 0. 101, pp. 561-2. 
 0. 107, § 115, p. 228. 
 
 31 & 32 Viot. 0. 45, p. 28. 
 
 0. 64, p. 316. 
 
 § 3, p. 550. 
 
 § 6, p. 553. 
 
 § 8, p. 557. 
 
 § 13, p. 555. 
 
 § 14, p. 555. 
 
 §§ 42, 46-8, p. 569. 
 
 § 49, p. 549. 
 
 § 59, p. 551. 
 c. 82, p. 340. 
 
 § 7, p. 365. 
 0. 84, §§ 3-5, pp. 64-66, 71. 
 0. 89, § 6, p. 228. 
 0. 97, pp. 37, 39. 
 0. 100, § 29, p. 320. 
 
 § U, p. 317. 
 
 §§ 41-2, p. 92. 
 0. 101, Sched. (H), p. 44. 
 
 § 14, p. 49. 
 
 § 20, pp. 148, 149. 
 
 § 27, p. 174. 
 
 § 40, p. 152. 
 
 § 47, p. 144. 
 
 § 61, p. 152. 
 
 § 138, p. 316. 
 
 § 159, p. 46. 
 
 § 163, p. 174. 
 u. 108, p. 557. 
 u. 123, p. 569. 
 c. 130, p. 563. 
 
 32 & 33 Vict. c. 48, p. 171. 
 
 0. 116, p. 44. 
 
 33 Vict. 0. 10, § 6, p. 275. 
 
 c. 14, p. 549. 
 33&34 Viot. c. 14, §2, p. 19. 
 u. 23, p. 17. 
 0. 35, pp. 310-314. 
 c. 38, pp. 561, 562. 
 o. 57, § 7, pp. 416, 422. 
 
 33 & 34 Viot. 0. 57, § 2, pp. 418, 428. 
 
 0. 97, p. 92. 
 
 34 & 35 Vict. 0. 56, p. 565. 
 
 u. 59, p. 563. 
 
 0. 96, p. 565. 
 
 0. 97, pp. 92-97, 284. 
 
 c. 99, p. 93. 
 
 0. 105, p. 565. 
 
 35 & 36 Viot. 0. 33, § 24, p. 557. 
 
 u. 62, pp. 560, 561. 
 
 o. 72, § 37, p. 67. 
 
 u. 76, p. 384. 
 
 u. 77, p. 384. 
 
 0. 78, § 44, p. 340. 
 
 o. 94, §§ 31, 56, 70, p. 383. 
 
 36 & 37 Vict. 0. 4, § 16, p. 82. 
 
 0. 36, § 45, pp. 26, 27. 
 c. 53, p. 66. 
 o. 61, p. 26. 
 
 37 & 38 Viot. u. 49, § 15, p. 383. 
 
 0. 94, § 4, p. 118. 
 
 § 9, pp. 43, 306, 443, 494. 
 
 § 12, p. 152. 
 
 § 36, p. 31. 
 
 § 60, p. 26. 
 ... 95, § 25, p. 173. 
 o. 97, § 37, p. 144. 
 
 §§ 27, 46, pp. 148, 149. 
 
 38 & 39 Viot. 0. 17, p. 565. 
 
 .;. 26, § 3, p. 342. 
 u. 49, pp. 36, 563. 
 .;. 60, 1 16, p. 38. 
 u. 61, § 3, pD. 236, 434. 
 
 § 6, pp. 61, 71, 233. 
 u. 63, p. 565. 
 i;. 74, p. 561. 
 .;. 92, p. 238. 
 
 § 53, p. 268. 
 
 39 & 40 Viot. c. 46, p. 26. 
 
 c. 49, p. 565. 
 c. 70, pp. 485, 486, 495. 
 ■ 0. 75, p. 563. 
 
 40 & 41 Viot. c. 28, §§ 8, 9, pp. 416, 421, 
 
 423, 426, 601. 
 0. 29, p. 25. 
 o. 36, pp. 172, 173. 
 0. 40, pp. 316-7. 
 c. 50, § 8, p. 320. 
 
 § 8, pp. 352, 471. 
 0. 53, pp. 565, 569. 
 c. 54, p. 563. 
 
 41 & 42 Vict. c. 8, p. 563. 
 
 c. 28, p. 236. 
 
 c. 40, p. 565. 
 
 c. 46, p. 560. 
 
 c. 49, pp. 186, 187, 276-7, 565. 
 
 c. 51, § 33, pp. 82, 568. 
 
 c. 63, p. 565. 
 
 42 & 43 Viot. c. 8, p. 562. 
 
 c. 30, p. 565. 
 0. 47, p. 565. 
 0. 64, p. 563. 
 
 § 10, p. 36. 
 v;. 74, pp. 566-8. 
 c. 78, pp. 560-1. 
 
 43 Vict. 0. 2, pp. 36, 563. 
 
 u. 8, p. 563. 
 
xl 
 
 LIST OF STATUTES CITED. 
 
 43 Vict. c. 12, pp. 326, 461, 600. 
 c. 14, p. 36. 
 
 43 & 44 Vict. 0. 4, p. 13. 
 
 c. 6, p. 353. 
 
 e. 18, p. 665. 
 
 c. 19, §§ 88, 97, p. 340. 
 
 0. 34, p. 317. 
 
 § 6, pp. 47, 290. 
 
 § 13, p. 345. 
 u. 35, pp. 413, 422. 
 u. 47, § 4, pp. 416-7, 605. 
 
 § 6, pp. 414, 417, 418, 423, 427 seq. 
 
 § 7, p. 415. 
 
 44 Vict. c. 13, § 2, p. 557. 
 
 44 & 45 Vict. 0. 21, §§ 1-4, p. 25. 
 
 § 2, p. 22. 
 
 § 5, p. 24. 
 c. 26, p. 3S4. 
 c. 27, p. 563. 
 c. 39, pp. 302, 501. 
 c. 42, p. 317. 
 
 44 & 45 Vict. c. 45, p. 565. 
 
 c. 51, pp. 413, 422. 
 
 c. 53, pp. 54, 55, 61, 63, 66, 70, 71. 
 
 c. 67, p. 565. 
 
 45 & 46 Vict. c. 3, p. 384. 
 
 ^. 11, p. 561. 
 i^. 49, p. 563. 
 u. 53, p. 233. 
 i;. 77, p. 500. 
 
 46 Vict. 0. 10, §§ 4, 5, 6, p. 416. 
 
 46 & 47 Vict. c. 51, pp. 549, 557. 
 
 0. 52, § 40, p. 342. 
 
 c. 56, p. 660. 
 
 c. 62, pp. 11, 237, 250. 
 
 § 5, pp. 220, 230. 
 
 § 27, pp. 461, 464, 466, 467. 
 
 §§ 27, 30, p. 327. 
 
 § 28, pp. 54, 479, 481, 484, 485, 
 608. 
 
 § 29, pp. 160, 622. 
 
 § 30, pp. 267, 272. 
 
 § 42, p. 515. 
 
 47 & 48 Vict. c. 13, p. 566. 
 
 c. 47, p. 566. 
 
 c. 63, pp. 37, 453. 
 
 48 & 49 Vict. c. 3, p. 550 seq. 
 
 c. 23, § 10, p. 551. 
 
 § 13, p. 556. 
 c. 46, p. 551. 
 u. 61, pp. 240, 413. 
 c. 72, pp. 36, 663. 
 
 § 12, p. 219. 
 
 49 Vict. c. 16, p. 434. 
 
 49 & 50 Vict. 0. 27, § 12, p. 6. 
 c. 29, pp. 230,513-23, 617. 
 
 § 16, p. 150. 
 c. 32, pp. 566-8. 
 
 c. 50, pp. 302, 482, 500, 501, 502, 
 615. 
 
 ACTS OF SEDEEUNT CITED. 
 
 15th June 1597, p. 284. 
 
 28th Jeb. 1662, p. 460. 
 
 24th June 1665, p. 460. 
 
 13th Feb. 1730, p. 6. 
 
 14th Dec. 1756, pp. 458, 498, 602, 609. 
 
 § 1, pp. 447, 477, 478. 
 
 § 2, pp. 448, 481, 484, 485. 
 
 § 3, p. 447. 
 
 § 4, pp. 460, 462-6, 466. 
 
 § 6, pp. 460, 462-5, 489. 
 
 §§ 6, 7, pp. 459, 495, 496. 
 
 12th Nov. 1825, p. 353. 
 27th Jan. 1830, pp. 493, 494. 
 24th Dec. 1838, p. 317. 
 11th July 1889, § 34, p. 489. 
 
 § 147, p. 496. 
 
 § 150, p. 364, 358. 
 
 § 151, p. 353. 
 
 § 152, p. 354. 
 24th Dec. 1839, p. 496. 
 8th Jan. 1881, p. 317. 
 22nd Dec. 1882, Sched. (A), p. 528. 
 
DEFINITION OF LEASE. 
 
 A. LEASE or tack is a contract of location (letting to hire) by Definition. 
 which one person grants and another accepts certain uses, 
 current or definitive, or the entire control, of lands or other 
 heritages for a period or periods, definite or indefinite, or even 
 in perpetuity, in consideration of the delivery by the grantee of 
 money or commodities or both, periodically or in lump or in 
 both of these ways.^ The granter is known as the lessor, land- 
 lord, or over-lessee, or, if he hold immediately under the 
 landlord, the principal lessee. The grantee is known as the 
 lessee, tenant, tacksman, sublessee, or subtenant. The periodical 
 payment is rent, royalty, or lordship : the lump sum is grassum 
 or foregift. The contract is in its essence purely personal ; in 
 certain circumstances it gives rise to what is substantially a 
 real right. 
 
 In the course of this work an explanation will be submitted of Distinguished 
 the details of this definition. On the present page, it is only transactions. 
 necessary to discriminate between this contract and other trans- 
 actions with which it might be confounded. The distinction 
 between a long lease and a feu is more formal and historical than Feu. 
 essential^ It will appear in the sequel that a lease of the Sale. 
 definitive use of a subject — such as a mineral stratum — can 
 hardly be distinguished from a sale ; but it would be a fanciful 
 misuse of words to speak of a lease of land for a grain rent as 
 a contract for the sale and delivery of grain. ^ A family settle- Family settle- 
 ment may take the form of a lease and yet be refused the ™™*^- 
 interpretation a lease would in other circumstances receive.* It Licence, 
 may, finally, be. observed that the above defiriition is wide 
 
 1 See St. 2.9.1 j Mack. 2.6.5 ; Bankt. Vict. e. 88. 
 
 2.9.1 ; Ersk. 2.6.20 ; 2 Ross' Lect. 456 ; ^ Henry v. M'Ewan, 1832, 10 S. 572, 
 
 1 B.C. 65. aff. 7 W. & S. 411. 
 
 ^ The words of grant were of old * Stevenson v. Love, 1842, 4 D. 1322 
 
 similar ; and perpetuity is not denied to (long lease, yet held not assignable, the 
 
 a lease. See hybrid cases in Buchanan's intention being conlra). 
 Tra. V. Pagan, 1868, 7 M. 1 ; 18 & 19 
 
2 DEFINITION. 
 
 enough, and is meant, to include certain contracts which are 
 denied the name of lease in English law, and are across the 
 Border known as licences. The use of the term licence as 
 signifying the permission to use heritable subjects on another 
 title than demise is scarcely if at all recognised in Scotch law ; ^ 
 and the mere fact that some of the rights and remedies possessed 
 by and competent to landlords and tenants in other circum- 
 stances are absent or inappropriate does not seem to be a 
 sufficient reason for refusing to recognise as leases such transac- 
 tions as the hiring of a sitting in church^ or in a place of 
 entertainment ; '' the grant of a right to take mineral for a 
 period of years at a lordship where there is no obligation on the 
 tenant to work the mines ; ^ or an agreement to take for a rent 
 from a coalmaster the waste water pumped from a pit so long as 
 pumping continues and without reference to any fixed period for 
 the termination of the contract.^ 
 
 "■ But see MiUer v. Walker, 1872, 3 K. ' Wood v. Le^idbitter, 13 M. and W. 838. 
 
 2^2, 248. 8 MUler v. Walker, supra, ^. 
 
 6 Clappertoni>. Edinburgh Mags., 1840, ^ Dunlop & Co. v. Steel Co. of Scot- 
 
 2 D. 1385. land, 1879, 7 R 283. 
 
PART I. 
 
 CONSTITUTION OF A LEASE. 
 
 A. The Pahties. 
 
 1. Personal and Official Disability (Chap. I.). 
 
 2. Limitation of Title (Chap. II.). 
 
 B. The Subjects Let (Chap. III.). 
 
 G. The Contract. 
 
 1. Constitution and Proof of a Lease (Chap. IV. 
 
 2. Lease as a Real Right (Chap. V.). 
 
 3. Prorogation and Renewal (Chap. VI.). 
 
 4. Rental Rights (Chap. VII.). 
 
THE PARTIES TO A LEASE. 
 
 There is a presumption, arising from the principle of freedom 
 of contract, that every person— individual or corporate — who is 
 the proprietor of a subject or has a right to the use and 
 possession of it may enter into the contract of lease or into a 
 contract to give a lease, with any other person for such period 
 and on such terms as may be agreed on, and that such other 
 person may lawfully contract with him. But this presumption 
 yields to evidence to the contrary, and that evidence may go to 
 show (1) that either party or both parties are subject to some 
 personal disability to contract, more particularly with reference 
 to heritable estate, or (2) that the first party is subject to 
 some limitation of title. The former sort of disability is part 
 of the law of persons ; the latter is part of the law of heritable 
 property. In treating of the former it will be convenient to 
 bring together — as applicable both to lessor and lessee — the 
 rules relating to each cause or source of personal incapacity, 
 along with the modes which the law has adopted to prevent the 
 mischief which would arise from throwing part of the natural 
 resources of the country extra comTnercium. An acquaintance 
 with the general law of persons will be taken for granted,^ and 
 attention will be directed only to such parts of it as have a direct 
 bearing on the Contract of Lease. 
 
 ' Fraser, Parent and Child, and Husband and Wife ; Thorns, Judicial Factors, 
 passhn. 
 
CHAPTER I. 
 
 PERSONAL AND OFFICIAL DISABILITY. 
 
 A. Disability to Entek into the Contract of Lease 
 
 ARISING FROM PERSONAL INCAPACITY. 
 
 I . PUPILLARITY. 
 
 1. Tutors as Lessors. 
 
 Pupils cannot enter into contracts, and their tutors^ or admin- PupiUarity- 
 istrators-in-law necessarily do for them every competent actj^*°rs.*^ 
 relative to leasing, but always subject to the contingency that, if 
 proved to be injurious to the pupil, it can be reduced within the 
 quadriennium utile ; or, if that be no longer feasible, give rise 
 to an action of damages against them within the same period.^ 
 Subject to this qualification, they may grant leases, although the 
 result should be to subject the pupil to a passive title. The 
 doctrine that they cannot, of their own authority, effectually Rule as to 
 grant leases of a duration longer than that of their ofiSces, fe^e!'"" °* 
 uniformly laid down in the books,^ was fixed after solemn 
 consideration of the abstract question.* The rule applies equally 
 to the expiration of the oflBce by the cessation of pupillarity,* 
 by the death of the tutor or of the pupil, by the tutor's resigna- 
 tion, and by his removal as suspect. In a case of the last 
 description, the Court, having removed the tutors, declared that 
 the leases granted should terminate at the ensuing Whitsunday.® 
 The rule seems to exclude the modification suggested by 
 Bankton on the analogy of the Act of Sederunt, 13th February 
 1730, of an extension for a year beyond the termination of the 
 ofiice;' and not to admit of relaxation, though the ish agreed 
 
 ' Including guardians, under 49 & 50 ' L. Reay v. Anderson, 1800, M. 
 
 Vict. c. 27. 16385 ; but see 2 BeU, lU. 175. 
 
 2 B. Pr. 2087. = A v. Marquis of Huntly, 1672, 
 
 3 Cr. 2.10.1 ; St. 1.6.25, 2.9.3 ; Mack. M. 16285. 
 
 1.7.18 ; Ersk. 1.7.16 ; 1 B.C. 133 ; B. Pr. « Lothian t.. SomerviUe, 1724, M. 16337. 
 
 1184, 2084. ' Bankt. 1.7.30, and 2.9.18. 
 
PERSONAL AND OFFICIAL DISABILITY. 
 
 Belazation. 
 
 on be the date of repayment of a sum of money which has been 
 expended for the pupil's benefit f or though the pupil was merely 
 fiar, and the tutor (or administrator-in-law) the liferenter.® 
 
 Doubts have been moved of the soundness of the rule 
 which thus limits the duration of leases by.tutors,!" amj ^s a 
 remedy it has been suggested that leasing on terms usual 
 in the circumstances should be held to be an act of ordinary 
 administration done by tutors upon their own responsibility, and 
 only open to reduction upon proof of lesion.^^ And now, by the 
 Pupils' Protection Act, 12 & 13 Vict. c. 51, sect. 25, the 
 provisions applicable to judicial factors are extended, so far as 
 possible, to tutors-at-law and tutors-dative.^^ Tutors-nominate 
 were in the year 1886^^ brought within the scope of that Act ; 
 and even before this inclusion they were armed by the Court, 
 on evidence that it was for the interest of the pupil, with special 
 powers to grant leases, at least of agricultural subjects, for the 
 ordinary duration — nineteen years." And the same reasoning 
 would have applied to leases of mines, pasture, &c., of the ordinary 
 duration.^^ 
 
 In settling the terms of a lease, tutors must govern themselves 
 by the rules of sound administration. Even in cases where the 
 Pupils' Protection Act did not apply, the Court have granted 
 special powers to depart from the ordinary course. Thus it 
 has authorised tutors-nominate to let for nineteen years to a 
 previous tenant without advertising the farm, but after a judi- 
 cial valuation.i^ It may be argued that no distinction will be 
 drawn in practice between cases which do and cases which do 
 not fall under that Act, in regard to the granting of special 
 powers. 
 Judiciaifaotora The Act of Sederunt of 13th February 1730,^^^ by a special 
 A.s!l3tirFeb. provision, regulates the duration of leases granted by judicial 
 factors, officers appointed by the Court, and among others, factors 
 loco tutoris. By section eighth it is enacted that, ' such factor 
 ' shall have power to grant tacks or leases to continue during 
 ' all the time that the estate set in tack shall remain under the 
 ' inspection of the said Lords of Session, and for one year 
 ' further. '18 The limitation points, not to the particular factor's 
 
 Administra' 
 tion 
 
 1730. 
 
 8 Armour v. Landa, 1^71, M. 16284. 
 
 ' Rossy V. His Tenants, 1612, M. 16211. 
 
 " 1 B.C. 133 ; 1 Bell, Leases, 133. 
 
 " 1 B.C. 133-4, note. 
 
 '2 Infra, p. 7. 
 
 " 49 & 50 Vict. c. 27, sect. 12. 
 
 " Morison'a Tutors, 1857, 19 D. 493, 
 
 23 D. 1313, and next case. 
 
 '^ See chap. xv. 
 
 1" Brown's Tutors, 1867, 5 M. 1046. 
 
 " Acts of Sed., p. 225. 
 
 " Bankt. 1.7.29, 71; Ersk. 1.7.10, 
 2.12.58. 
 
SPECIAL POWERS GRANTED TO GUARDIANS. 7 
 
 terra of office, but to the duration of the factory. In the other 
 details of leasing these officers are said to have been governed by 
 the rules applicable to factors upon estates under sequestration ;'^ 
 but this rule probably applied particularly to cases in which the 
 factory must be short-lived,^" and the sounder rule seems to have 
 been that they were entitled to exercise all acts of ordinary 
 administration. Thus they had to do their best to recover rents 
 due both before and during the factory. ^^ All the powers 
 which belong to a proprietor infeft might be exercised hy them 
 in removing tenants whose leases were expired,^^ or who were in 
 arrear.^' The rule formerly was to let by public auction, even 
 when the same or a higher rent was contemplated ;^* but letting 
 privately was afterwards held to be admissible, unless a diminu- 
 tion of the actual rent were contemplated, in which case the 
 factor had to proceed ' according to the rules of law ' {i.e., with 
 judicial sanction), and report to the clerk (sect. 4). He had no 
 authority to pursue an action of removing and reduction of a 
 lease on the ground of its being contrary to the terms of an 
 entail. 25 
 
 As has been already stated, the Pupils' Protection Act of 1849 PupUs' Proteo- 
 (12 & 13 Vict. c. 51), applies inter alios to factors ?oco |™„Aj*7^g„_ 
 tutoris, tutors-at-law, and tutors- dative. It superseded in most 
 part the provisions of the Act of Sederunt, and in particular 
 introduced an improved system of accounting. By the seventh 
 section, as amended by 20 & 21 Vict. c. 56, sects. 4, 5, 6, it 
 is enacted that if at any time it shall appear to the factor that 
 there is a strong expediency for renewing or granting a lease for Special power 
 a period of years, he shall report the same to the accountant of obtainST ^ 
 the Court of Session who may order any necessary inquiry, and 
 shall state his opinion in writing. The report and opinion may 
 be submitted by the factor to the Lord Ordinary, with a note 
 praying for the sanction of the Court to the measure proposed. 
 The Lord Ordinary, with or without further inquiry, disposes 
 of the matter himself, subject to the review of the Inner 
 
 ^' Bankt. 1.7.71-2. See as to these — sherifE-clerk on remit ; Douglas v. Jones, 
 
 E. GaUoway, 1747, M. 7438 ; Cawfield, 1829, 8 S. 274. 
 
 1758, M. 14346 ; Campbell, 1755, M. ^o ggg Edgar v. Whitehead, 1714, M. 
 
 7445 ; Proctor, 1824, 2 S. 659 ; Morrison, 4053. 
 
 1832, 10 S. 204 ; Brown, 1832, 11 S. 190 ; =1 2 B.C. 264. 
 
 Morison, 1833, 11 S. 326; Milne, 1834, 13 ^^ 2 B.C. 264-5 ; Thomson v. Elderson, 
 
 S. 222; 14 S. 561, 681— the probable dura- 1757, M. 4070. 
 
 tion of the sequestration being a leading '^ 2 B.C. 264. 
 
 element. See a curious case where the ^ St. 4.41.7 ; 4.51.27, 28. 
 
 dispute was as to the validity of a lease, ^ 2 B.C. 264, and Whitson v. Ramsay 
 
 and the subject was let ad interim by the & Co., 1807, there cited. 
 
8 
 
 PERSONAL AND OFFICIAL DISABILITY. 
 
 Cases— Tutors- 
 at-law. 
 
 Factors loco 
 iutoris. 
 
 Older cases. 
 
 House, -whose judgment is final ; or, in special cases, if he see 
 cause, report the application. Entailed estates are included. 
 
 It is settled that a tutor-at-law may competently apply for 
 special powers under this provision, and the only question that 
 has caused any doubt on the Bench, is whether necessity for the 
 powers requires to be shown, or expediency only, the result of 
 the latter view being the risk that the Court might be virtually 
 asked to take over the management of all estates of pupils in 
 Scotland. It would appear that the statute itself gives the 
 criterion — a strong expediency. The risk referred to induced 
 one Division to refuse sanction, first, to a lease of a colliery for 
 fourteen years,^^ and afterwards to such leases of land and 
 buildings as would come to an end or might be broken three 
 years after one of the pupil proprietors reached minority f while 
 the other Division entertained no doubt in an intermediate case 
 that the offer of a rent for a period beyond the lapse of pupil- 
 larity, considerably higher than for one limited thereby, was 
 sufficient expediency to warrant the grant of special powers.^* 
 In all these cases the report of the accountant of Court was 
 favourable to the application. Where tutors-at-law were not 
 concerned, the section has been held to admit of special powers 
 being given to grant leases from time to time of numerous small 
 subjects let at £30 or under on one large estate ; the reason being 
 that constant changes of possession occurred. The duration was 
 fixed at not more than nineteen years, and due advertisement was 
 prescribed.^^ This was a departure — unavoidable in the circum- 
 stances — from the salutary rule that powers of leasing will not 
 be granted per aversionera over a whole estate, since in such 
 cases the Court cannot have the whole circumstances before it.'" 
 The Court has sanctioned a year's extension of a current lease 
 to begin after the pupil had attained minority; being moved 
 thereto by an offer of a greatly increased rent, and the fact that 
 time was required to advertise for a new tenant. ^^ There will be 
 the less difficulty in granting special powers if the pupil be only 
 a ■pro indiviso proprietor and the other co-owners concur ;^^ but 
 it will be only under very peculiar circumstances that powers will 
 be granted when they withhold their concurrence.^' 
 
 These were all leases of ordinary administration, though of 
 
 2' WaddeU, 1851, 13 D. 739, explained 
 in Fraser, infra, ^ ; and following Boss v, 
 Eoss, 19th March 1820, F.C. p. 126. 
 
 w Fraser, 1857, 19 D. 801. 
 
 ^ Kincaid, 1856, 18 D. 1208. 
 
 '» Lindsay, 1855, 18 D. 205. 
 
 =» Ws.tt, 1856, 18 D. 652. 
 
 '1 Pearson, 1865, 3 M. 883. 
 
 ^^ Fotheringham, 1857, 19 D. 964. 
 
 ^' Morrison, 1857, 20 D. 276. 
 
AUTHORITY TO DO ACTS OF ORDINAET DUTY REFUSED. 9 
 
 such endurance as to be beyond the factor's or tutor's common 
 powers to grant. A survey of the cases decided before the Act 
 was passed will serve (1) to indicate that the Act was nothing 
 more than declaratory of the existing law in demanding ' strong 
 ' expediency ' and not a balance of advantage on the one hand or 
 absolute necessity on the other ; and (2) to suggest the circum- 
 stances which may still be likely to weigh with the Court in 
 granting or refusing special power to lease. 
 
 The leading rule of the law, apart from statute, is that the Authority to 
 Court will not interpose its authority to such acts as must be ordinMy duty 
 done in the course of ordinary administration, and which are refused, 
 therefore within the strict and peculiar duty of a tutor or factor 
 loco tutoris. For it is not within its province to superintend 
 every common step taken respecting an estate under guardianship 
 or judicial management, and its interference would be attended 
 with detrimental consequences, as it might tend to relieve the 
 administrator of the wholesome responsibility under which he is 
 placed.^* The general doctrine (applicable to all cases of 
 guardianship or judicial factory) has been explicitly recognised 
 as in force, that if no special circumstances are stated, the Court, 
 in appointing, will grant only the usual powers, leaving the tutor 
 or judicial factor to apply for special powers if needed. But, 
 as will immediately appear, these special powers have been 
 granted with more frequency and readiness in recent times than 
 formerly. ^^ Thus the Court has refused to authorise the granting 
 of leases in terms of missives granted by the former proprietors;^^ 
 and, where the factory was drawing to an end, the letting of small 
 farms on lease, which had been held theretofore from year to 
 year, and to spend money on erecting or repairing farm stead- 
 ings ; though it did sanction a lease of a large farm on the same 
 estate for the period of nine years. ^^ It refused special power to 
 borrow money for the purpose (inter alia) of implementing to 
 the tenant the prestations of a lease entered into previously to 
 the commencement of the factory. ^^ For a similar reason it will 
 always decline to confer special powers on a minor, whether with 
 or without curators.^^ 
 
 34 2 B.C. 265 ; Home, 1793, M. 16382 ; ^s Home, 1793, M. 16382 (lapsed 
 
 Henderson, 1803, M. 14982 ; Ross v. trust). • 
 
 Ross, 9th March 1820, F.C. p. 126 ; '' Cruickshank v. Ewing, 1864, 3 M. 
 
 Ersk. 1.7.17, Note (by Ivory) 212 ; 1 302 (lapsed trust). 
 
 B.C. 133 ; Beatson, 24th Feb. 1810, F.C. ^^ Henderson, supra, ^ (lunatic). 
 
 606 ; Robertson v. Elphinstone, 28th ^ Wallace v. Wallace, 8th March 1817, 
 
 May 1814, F.C. 631. F.C. 322 ; 1 Ersk. 1.7.16, Note (by Ivory), 
 
 ^ Sharp, 1832, 11 S. 93 ; Pitcaim, 208, infra, p. 21. 
 1838, 1 D. 212 ; infra, p. 11. 
 
10 
 
 PEBSONAL AND OFFICIAL DISABILITY. 
 
 Authority to 
 do acts of 
 administration 
 otherwise 
 ultra vires. 
 
 Old cases. 
 
 Later cases — 
 
 Agricultural 
 
 leases. 
 
 But the Court is always ready to grant special power to tutors 
 and factors to perform such acts as, if performed by a person of 
 full capacity for the management of his own affairs, would be acts 
 of ordinary administration, but which lie beyond the scope of the 
 common law powers of a mere administrator. Among these acts 
 may be included the granting of leases of ordinary duration. 
 With reference to such acts of ordinary administration (if not also, 
 as seems to have been the intention, to all acts of administration), 
 the following rule, laid down by the whole Court in 1836, maybe 
 regarded as sound : — ' Wherever it has been made to appear to 
 ' the Court that the power craved was either necessary to 
 ' prevent serious loss to the estate, or expedient in order to 
 ' procure evident and positive advantage, or where the interest 
 ' of third parties connected with the estate was concerned, as, 
 ' e.g., in the relation of superior and vassal, &c. &c., the Court 
 ' has been in the constant practice of granting the power neces- 
 ' sary for accomplishing the object set forth in the petition. 
 ' Even where only a contingent benefit was in view to the 
 ' existing estate, and where there was no absolute necessity for the 
 ' power, and no positive loss would have accrued from the refusal 
 ' of it, the Court [has] nevertheless granted the power craved.'*" 
 This rule does not run counter to those cases which decide that 
 urgent necessity is alone available to induce the Court to sanction 
 sale of the heritable property of an incapax,^^ for sale is not 
 an act of ordinary administration. 
 
 Though in former times, when the factor or tutor had to 
 proceed by action and not by summary petition, the Court seems 
 to have demanded stronger proof than now of the propriety of 
 granting these powers,*^ it still admitted ' evident utUity'^^as 
 sufficient. It was satisfied that to grant a mineral lease for 
 twenty-five years was a necessary and proper act of administration, 
 on evidence that a going mine could not profitably be relet for a 
 shorter period ;« and special powers were granted on proof that a 
 cotton mill could not profitably be let by a tutor for any period 
 which would not extend beyond the date of his ward's majority.^ 
 In more recent times, powers have been granted on proof that a 
 farm lease could not properly be of less duration than seven years. 
 
 ^» Somerville's Factor, 1836, 14 S. 
 451 (borrowing and burdening estate). 
 
 *^ Colt». Colt, 1801, M.App.Tutor,N-o. 
 1; Verer Dale,1804,M.16389;Finlaysons 
 V. Finlaysons, 22nd Dec. 1810, F.C. 114 
 
 " 1 B.C. 133. 
 
 ^ Roebuck v. D. Hamilton, 1761, M. 
 
 16387. 
 
 « Colt V. Colt, 1800, M. 16387 ; com- 
 mented on in Ross v. Ross, supra, « ; Colt 
 V. Colt, 1801, supra, H 
 
 ^ HaUows, 1794, M. 14981 (the point 
 on which the case is reported is that of 
 procedure). 
 
SPECIAL POWERS RELATING TO DURATION. 11 
 
 — a period stretching beyond the expected endurance of the 
 factory ;*^ that a farm, if let for less than nineteen years, would 
 suffer a droop, if for nineteen years a rise, of rent ; *' and that a 
 twelve-years' lease, as craved, would be beneficial to the land let, 
 and might turn out not to be beyond the limits of the factory.^^ 
 The view that an advantageous lease of a subject will redound 
 to the benefit of all concerned — ward, heir, or substitute; the 
 custom of the country ; and the analogy of entail and trust powers 
 as conferred by statute, have all combined to make the Court 
 ready and willing in most cases to sanction leases of agricultural 
 lands for nineteen years or under, whether on fee-simple or on 
 entailed estates.*^ Where the lands have been let from year 
 to year before the beginning of the factory, this circumstance 
 may lead to a refusal of power to lease for years or to a 
 ciirtailment of the term sanctioned.^" And the necessity of 
 leases in cases to which the Agricultural Holdings Act *^ applies 
 is not now so pressing as it in practice used to be. Powers 
 may be granted, alternative in respect to duration, where the 
 different farms on an estate are susceptible of different treat- 
 ment ;°^ or the term may be restricted greatly within the ordinary 
 limits, especially if there be opposition by a party interested.^* 
 
 In regard to minerals, a term of thirty-one years has been Mineral leases, 
 recognised as the maximum limit of ordinary leases in entailed^* 
 and trust^^ estates ; and the same length of duration has been 
 repeatedly sanctioned where special powers were required."^ In 
 one case the term sanctioned was twenty-five,^'' in another thirty- 
 two years ; *^ in a third, a latitude was allowed. ^^ Probably the 
 Court would be satisfied with nothing short of straitened 
 circumstances in the case of the ward, in authorising the opening 
 of a new field. ^^ 
 
 Authority has been granted to let water power for twenty-one Miscellaneous. 
 
 « Dnimmond, 1832, 10 S. 216 (lunatic). '"' Cruiokshankt).Ewing,1864,3M.302. 
 
 " BaU, 1837, 15 S. 1254 ; Forbes or " 46 & 47 Vict. c. 62, infra, ohap.xii. 
 
 Camegy, 1838, 1 D. 355 ; see A. B., 1829, ^^ Mackay, 1848, 10 D. 1493 (thirteen 
 
 7 S. 327. and nineteen years, probably on account 
 
 ^' Russell, 1840, 2 D. 721 (idiot). of part of the lands being pastoral). 
 
 « Slade, 20th Dec. 1831, 10 S. 167 
 M'Kenzie, 1842, 4 D. 456 ; A. B., Pet. 
 27th May 1841, F.C. p. 956 ; Shepherd, 
 1841, F.C., p. 1288 ; 1844, 17 Sc. Jur. 74 
 
 D. 146 ; Threipland, 1848, 10 D. 1234 
 Spiers' Tutors, 1848, 10 D. 1474 ; Spiers, 
 1854, 17 D. 289 ; Morison, 1857, 19 D, 
 493 ; 1861, 23 D. 1313 ; Brown's Tutors, 
 
 S3 Martin, 1849, 11 D. 1031. 
 
 " 6 & 7 Will. IV. u. 42, sect. 1. 
 
 s= 30 & 31 Vict. 0. 97, sect. 2. 
 
 =« Moncrieff, 1846, 8 D. 710 ; Spiers' 
 
 Brown, 1846, 9 D. 250 ; Halkett, 1847, 10 Tutors, 1848, 10 D. 1474 ; see Waddell, 
 
 1851, 13 D. 739, 23 Sc. Jur. 289. 
 ^ Colt, 1800, M. 16387. 
 58 Moncrieff, 1851, 14 D. 13. 
 ^ Dobie, 1846, 18 Sc. Jur. 599. 
 
 1867, 5 M. 1046. "" See last case. 
 
12 PERSONAL AND OFFICIAL DISABILITY. 
 
 years." The impolicy of precludiDg a pupil heir from residence 
 
 in the mansion-house of his estate on reaching puberty or 
 
 majority will as a rule prevent the Court from sanctioning leases 
 
 thereof to extend beyond the period of guardianship. But the 
 
 rule yields to circumstances, such as the fact that the only farm 
 
 on the estate could not be well let without the mansion-house.*'' 
 
 Kenunciation. Before entering into a new lease, it may be necessary to accept 
 
 renunciation of the old, and power to do so will be granted by 
 
 the Courb on proof that the tenant cannot go on with his lease, 
 
 and that a new contract would be for the benefit of the estate.*'^ 
 
 Grassums. A factor cannot take grassums, nor arrange for new rental 
 
 Eentai rights, jigjj^g^ these being acts of extraordinary administration, and 
 
 such besides as the Court would not sanction.^* 
 
 Diminution of If be Cannot obtain an offer of rent equal to or higher than 
 
 rental. ^.j^g ^^^ j-gj^^^ j^g should apply for special powers ; though the old 
 
 rule was to test the market by public auction, and accept the 
 
 highest offer.*^ In the exercise of its discretion, the Court, on 
 
 being applied to may or may not order a roup at a reduced 
 
 upset rent,** and may reject the highest offerer in favour of the 
 
 old, or of a more suitable, tenant.*'' 
 
 Special powers In order to bring into one view the whole doctrine of the 
 
 ment"*^^ assistance given to private administrators in dealing with leases, 
 
 it may be well to interpolate here a notice of the rules relating to 
 
 the granting or refusal of special powers, not as heretofore in the 
 
 constitution of a new lease, but in the management of an exist- 
 
 Abatementof ing lease. The Court is very chary of interfering by way of 
 
 sanctioning an abatement of rent, although the tutor or factor 
 
 would not be in safety to take such a step without special 
 
 powers.*^ Abatement for a year is more readily sanctioned than 
 
 a reduction for a term of years or for the rest of the lease ;*' but, 
 
 even in the latter case, there may be and often are circumstances 
 
 in which it is plainly a better course to grant a reduction rather 
 
 than risk the only alternative by accepting a renunciation and 
 
 advertising for a new tenant. The Court will then authorise an 
 
 abatement on being satisfied that to keep the tenants bound by the 
 
 81 Spiers' Tutors, supra, ^. 65 q,. 2.10.I ; St. 2.9.3; Ersk. 1.7.16. 
 
 «2 Hill, 1851, 14 D. 13, 23 So. Jur. 634. ^ M'Lean, 1828, 6 S. 1018. 
 
 In Spiers, 1854, 17 D. 289, the authority e' Anon., 1850, 12 D. 914, and see 2 
 
 does not seem to have extended beyond B.C. 265 ; Shaw, 1750, M. 4070. 
 
 the pupillarity. 68 Anderson, 1822, 1 S. 363 (N.E. 340); 
 
 <» Brown, 1846, 9 D. 250 ; Wink, 1851, Brodie, 1843, 5 D. 1024. 
 
 ^^ ^- ^52. 69 Peddie, 1822, 2 S. 88 (N.E. 80) ; see 
 
 " St. 2.9.17 ; Bankt. 2.9.41 ; though Robertson, 1823, 2 S. 150, 579 (N.E. 137, 
 
 they might renew rentals, Stair, ibid. 498). 
 
SPECIAL POWERS OF MANAGEMENT. 13 
 
 old rent would be injurious not only to them but to the estate, 
 being beyond the actual worth of the land 7° or at least largely 
 so,^^ and thus crippling a hitherto solvent tenant and rendering him 
 unfit to do justice to his holding.'^^ These considerations are of 
 special weight in the case of a mineral lease, where much capital 
 is required and the venture is to a large degree speculative.'' 
 An abatement for a year only may be made applicable merely to a 
 single subject or to the whole farms on an estate, and authority 
 will not be given except on a full statement of the circumstances of 
 each parcel, and then only on a just discrimination of the differ- 
 ences that may exist between one subject and another, not solely 
 in the pecuniary position of the tenant, but in its history and 
 natural advantages or drawbacks. The proper course would then 
 be for the Court to fix the abatement applicable to each parcel, 
 after report from a man of skill, but it may alternatively name a 
 maximum percentage of reduction, and allow the tutor or factor 
 discretion within that limit. In no case will a hard and fast 
 reduction all round be sanctioned. In agricultural subjects, a 
 stipulation that the abatement shall be expended on the land 
 in the form of extraneous manures is not unusual and has been 
 approved.'* ' Granting abatement of rent either temporarily 
 ' or permanently,' where there is ' strong expediency ' is one of 
 the cases provided for in the Pupils' Protection Act,'^ so that, 
 wherever the Act applies, there must, in the outset, be presented 
 a report by the tutor or factor to the accountant of Court, who 
 gives his opinion on it before the application reaches the Lord 
 Ordinary. Any other alterations, temporary or permanent, on 
 the stipulations of a lease may receive the authority of the 
 Court if they are such as to pass the test — invariably applied 
 — of strong expediency.'" 
 
 Concerning the procedure in applications for special powers. Procedure, 
 it will be enough to say that summary application by note or 
 petition, to the Junior Lord Ordinary or to the Lord Ordinary 
 on the Bills, is now fully established," and that the sheriff has 
 now jurisdiction to appoint and superintend judicial factors on 
 estates yielding not more than £100 a-year.'^ 
 
 '0 Milne, 1834, 13 S. 222. (There was 11 D. 1031. 
 
 an alternative to accept renunciations, see '* Grant's Curator, 1880, 7 E. 1014. 
 
 14 S. 561, 681) ; Annand v. Grant, 7th '= 12 & 13 Vict. o. 51, sect. 5. 
 
 March 1817, F.C. 319. '^ See Maogregor, supra, " (change of 
 
 '1 Macgregor, 1837, 15 S. 1092 ; con- rotation from five to four shift), 
 
 trast Gardner r. Montgomerie, 1833, 11 S. ''"' Thorns on Judicial Factors; 20 & 
 
 326, which went on specialties. 21 Vict. o. 56. 
 
 '2 Anon., 1850, 12 D. 914. '^ 43 4 44 yiot. u. 4. 
 
 73 Macgregor, supra, ^ ; White, 1849, 
 
X4, PERSONAL AND OFFICIAL DISABILITY. 
 
 2. Pupils as Lessees. 
 
 Pupil as lessee. A pupil may of course by inheritance, bequest, or gift become 
 a lessee, in which case his tutor or the judicial factor appointed 
 to him will have to consider as to the possibility and propriety 
 of carrying on the venture, and at the close of his oflBce will 
 have to account for his intromissions. The pupil himself can 
 neither enter into a new lease nor renew an old one. 
 
 Powers and It has never been determined whether a tutor or factor Zoco 
 
 guardSns."^ tutovis is bound to renew or to attempt to renew a lease which 
 expires during his term of ofEce.'^^ He would probably not be 
 justified in giving any material advance on the rent, or in renew- 
 ing a lease of a subject of an uncertain or precarious nature. 
 The necessity or strong expediency which would alone justify a 
 tutor, with or without the sanction of the Court, in entering on 
 a lease for the first time, is not likely to arise. And, if the 
 tutor or factor does make the venture from a desire to main- 
 tain the ward in the only way open to him, it would probably 
 be held on the analogy of partnership ^^ and of businesses involv- 
 ing risk '1 that he would be liable for loss, if such be the 
 result, and on the other hand be bound to account for all the 
 profits if the venture turns out successful ; and that, in the latter 
 case, the Court will condone the speculation after the risk is past, 
 by not withholding from a factor his commission, while it will 
 not authorise de futuro any departure from the rule of speedy 
 realisation. In order to facilitate this realisation, it will sanction 
 on due cause shown any agreement with the landlord for a 
 renunciation of a lease.*^ In one case, where the circumstances 
 were somewhat peculiar, the factor was authorised to sublet.*' 
 
 Auctorinrem The rule that a tutor cannot be auctor in rem suam, and 
 that therefore ' all rights acquired by the tutor during the 
 ' subsistence of his office in relation to the pupil's affairs, or 
 ' wherein he has any interest, are presumed to be for the behoof 
 ' of the pupil,' ** applies to leases. The father of pupils having 
 died in possession of a considerable farm, a tutor-dative was 
 
 ™ See ParkhiU v. Chalmers, 1771, M. 8= Fonnau's Tutors, 1805, and Blyth «. 
 
 16366, aff. 2 Pat. 291. Craig, 1808, Hume 888, 889 ; Meikle v. 
 
 80 Cases of Wilson and M'Anlay in 2 Meikle, 1823, 2 S. 274 (N.E. 2i2) ; Cock- 
 
 B.O. 624 ; Calder v. Downie, 11th Dec. bum's Tutors v. Oockburn, 1825, 3 S. 
 
 1811, F.C. 390. 642 (N.E. 449) ; Warden, 1829, 7 S. 848, 
 
 « Philip, 1827, 6 S. 103 ; HamUton, 8 S. 208 j Robertson, 1841, 3 D. 345 ; 
 
 1834, 12 S. 924 ; Maoleod, 1856, 19 D. M'Ewan, 1852, 2 Stuart, 137 ; Grahame, 
 
 133; Gilray, 1872, 10 M. 715; 1876, 1857,14 D. 312; Turner, 1862, 24D. 694; 
 
 3 R. 619. (See case of no risk beyond Eraser, Parent and Child, 269, 503. 
 
 capital already advanced ;Jamieson, 1870, 83 giade, 1831, 10 S. 167. 
 
 8 M. 976). 84 More's Notes, 39. 
 
 suam, 
 
INSANITY. 15 
 
 appointed. The tutor, apparently with the approbation of the 
 connections of the pupils, entered into a bargain with the 
 proprietor, by which, after renouncing the subsisting lease, of 
 which there were two years to run, he obtained a new one for 
 fifteen years in his own name at an advance in the rent. This 
 advance, during the two years of the former lease, he became 
 bound to pay to his pupils. While there were four years of 
 this second lease to run, and while the children were still under 
 his care, he obtained another lease for thirteen years on a 
 further advance of rent. He was held liable to account to the 
 wards for the profits arising from the leases during the whole 
 period of his possession.^^ But this rule of liability does not 
 apply where a quondam tutor takes a lease of lands on expiry 
 of his ward's tack and after the ward has reached majority.*^ 
 
 The Court has in certain urgent cases appointed an interim interim 
 manager of a farm ; ^'^ and this seems the preferable course to "^''^ser. 
 that which was adopted in one case of authorising the landlord 
 to cultivate it in conformity with a report by men of skill. ^* 
 
 II. — Insanity. 
 
 The rules in regard to the disability of pupils to grant or to 
 take leases apply with equal force to persons rendered incapable 
 of managing their own afiairs by idiocy, furiosity, senility, 
 or by being deaf-mutes,^* and duly recognised as such by 
 cognition or by being placed under curatory ; and the mode 
 in which the consequences of defect of capacity are partially 
 obviated in the one case, is closely paralleled by the appointment 
 of curators bonis, with power to apply for special powers in the 
 other. Many of the illustrations given above have been drawn 
 from the law of curatory to the insane ; and no distinction 
 can be drawn beyond what may fairly be gathered from the 
 certainty of the lapse of the guardianship within a fixed period 
 in the case of a pupil, and the uncertainty of its duration in the 
 case of a party incapax, arising from the possibility or pro- 
 bability of convalescence, or of death within a shorter or longer 
 period.^" And it may be part of the duty of a curator bonis 
 
 85 Wilsons V. Wilson, 1789, M. 16376; v. Affleck, 1862, 24 D. 291 (litigation as 
 Cochrane v. Black, 1855, 17 D. 321, 337, to right of lease). 
 
 per L. Cowan; Fraser's Parent and ^^ Brocks. Buchanan, 1851, 13 D. 1069. 
 
 Child, 279, seq.; and Ludquhaim ■«. ^^ Cr. 1.12.28; St. 1.10.13; Ersk. 
 
 Haddo, 1632, M. 9503, 16260. 1.7.49-51 ; 1 B.C. 137. 
 
 86 ParkhiU u. Chahners, ««pra, ra. ^ Bankt. 1.7.14; Ersk. 1.7.16, note; 
 
 87 Crichton v. Br. Keith, 1857, 19 D. 1 B.C. 136 ; 1 St. 6.25, Brodie's Note ; 
 713 (f. loco aisentis) ; Granger v. Geila, L. Eeay v. Anderson, 1800, M. 16385. 
 1857, 19 D. 1010 (pending appeal) ; Affleck 
 
16 
 
 PEESONAL AND OFFICIAL DISABILITY. 
 
 (as of any one having an interest) to set aside a contract of 
 lease invalidly entered into by his ward prior to the com- 
 mencement of the curatory.®^ A similar duty on the part 
 of a tutor is scarcely conceivable. There is neither reason, 
 analogy, nor precedent for a resumption of possession by a land- 
 lord, in the event of his tenant becoming incapable of managing 
 his own affairs, there being no proper assignation involved in 
 putting the management into the hands of his curator.*^ 
 
 Intoxication. In order to a reduction of a lease entered into during the 
 temporary mental alienation produced by intoxication, there 
 must have been not merely such a condition as would have made 
 it better for the party not to enter into business at the time, 
 but a- perfect incapacity of entering into business transactions, 
 and of completing such as he had begun.®^ 
 
 Interdiction. The rule that the almost absolute remedy of interdiction is 
 not available to cut down onerous and rational deeds, receives 
 illustration from the law of leases in two reported cases.®* 
 
 III. FOEFEITUEE. 
 
 Of landlord. 1. Of Landlord. — By conviction for high treason, thq 
 
 traitor's real estate is forfeited, and vests in the Crown, which 
 thereafter is alone entitled to deal with it.®^ Fugitation or 
 outlawry unrelaxed for a year involves liferent escheat to the 
 superior, and Hume suggests that the same rule should apply to 
 persons escaping after sentence of death.®' So that leases 
 granted by the traitor or rebel during forfeiture are null; while 
 those granted before forfeiture are valid if the rent be sufi&cient 
 and the duration ordinary.®^ 
 
 Of tenant. 2. Of Tenant. — Forfeiture and escheat single and liferent, 
 
 although by the Statute 20 Geo. II. c. 50, sect. 11, abolished 
 in civil matters, still exist in matters criminal.'^ By their 
 operation an incapacity to take or hold leases may be produced. 
 
 81 Ersk. 1.7.51 ; Maxwell v. Bonnar, St. 1.7.41 ; Mack. 1.7.16 ; Bankt. 1.7.126, 
 
 1704, M. 6288. Not merely pleaded by 
 exception ; Crawford, 1583, M. 6275. 
 
 "^ In partnership there is no proper 
 succession ex lege, as in lease. 
 
 93 Taylor v. Provan, 1864, 2 M. 1226 {p^ 
 L. J.-O. Inglis). See Haltoun v. Northesk, 
 1672, M. 13384 ; St. 1.10.13 ; Bankt. 
 1.9.66 ! Ersk. 3.3.16 ; 1 B.C. 297 ; 1 Bell, 
 m. 17 ; Johnston, 1854, 17 D. 228. 
 
 "'Kyle V. Ker noted in 5 S. 128 
 (N.E. 127); Eraser ». Eraser, 1827, 5 S. 
 301 (N.E. 279). Douglas v. Cranstoun, 
 1613, M. 7148, is overruled. See also 
 
 130; 1.11,66; Ersk. 1.7.58; 1 B.C.139;and 
 Christie v. Macdonald, 1870,7Sc. L.E. 180. 
 
 95 1 Hume, 546 ; Ersk. 4.4.24 ; Bankt. 
 1.5.83. 
 
 98 2 Hume, 483. 
 
 <" Cr. 2.10.8 ; St. 3.3.32 ; Mack. Obs. 
 312; Home, 1570, M. 4684; Dalziel, 
 1674, M. 4685 ; M. Huntly, 1677, M. 
 4689. See M'Crae v. Hyndman, 1836, 
 15 S. 54, aff. M'L. & Rob. 645. 
 
 9s Bankt. 2.4.37 ; Ersk. 2.5.39 ; B. Pr. 
 730, 734 ; BeU's Notes to Hume on 
 Crimes, p. 229. 
 
in 
 
 crimeB. 
 
 FORFEITURE OF TENANT. 17, 
 
 In terms of 7 Anne, c. 21, forfeitures upon conviction of For treason, 
 high treason or misprison of treason are governed by the English 
 rules, which form an integral part of the law of Scotland.'" 
 One of these rules prescribes confiscation of real property, 
 and of chattels or moveables.-^"" By the law of England, leases 
 for the life of the lessee himself, or for that of another person, 
 are real estates ■^°^ and leases for a determinate period, of what- 
 ever length, are chattels, which, although ' savouring of the 
 ' realty,' constitute a portion of the moveable estate.^"^ In con- 
 sequence, the tenant's right in leases, both liferent and for years, 
 must in Scotland accrue to the Crown.''''^ 
 
 Escheat is inter essentialia of a sentence of death, and by Escheat 
 special statutes it forms part of the punishment of certain crimes 
 not capital,^"* — viz., by 1551, c. 19, of perjury and bigamy; by 
 1581, c. 118, and 1522, c. 152, of deforcement; by 1581, c. 
 118, of breach of arrestment; formerly also of usury.^"^ But, 
 though the Act 33 & 84 Vict. c. 23, abolishing forfeiture and 
 escheat as a consequence of treason or felony (not, however, of 
 outlawry), does not apply to Scotland, it is unusual to escheat 
 a convict's goods, unless he have been sentenced to death. 
 
 Leases (other than liferent leases), although heritable as to what falls 
 succession, fall under the single or simple escheat, by which they ™iease?other 
 devolve to the Crown, to the exclusion of the lessee, his heirs, ^^^'^ liferent. 
 and all other persons deriving right through him.^"^ Doubts 
 have been suggested whether leases of extraordinary duration 
 come under this rule. Steuart says that it ' seems very hard 
 ' that a tack of several nineteen years, exceeding any probable 
 ' amount of the tacksman's life,' should be thus subjected.-"''^ 
 Mackenzie holds that if a lease be granted for fifty or sixty 
 years, it will fall under the single escheat, but doubts if a lease 
 for a hundred years will.-"'^ Erskine, on the authority of 
 Steuart, states that ' it would seem that leases of unusual, but 
 ' determinate, duration should fall under, not the single, but 
 
 S9 Bankt. 3.3.4, 36, 41,47; Ersk. 4.4. 24; "^ Bankt. 3.3.18; Ersk. 3.5.57 j 2 
 
 1 Hume, 606-7. Hume, 464. 
 
 "» Bankt. 3.3.49 ; Ersk. ut sup.; 1 "= 1597, c. 251. 
 
 Hume, 538 ; 2 Blackstone's Com. 386. "« Balfour, 207 and 553-6 ; Hope's 
 
 101 Woodf all's Landl. and Ten. (13th Min. Praot. vii. s. 5, and note, s. 7 ; DM. 
 
 Ed.) 146 ; 2 Blackstone's Com. 386-7. and Steu. 120 ; St. 2.1.4, 2.9.24, 
 
 "2 Woodfall, 288 ; 2 Blackstone's Com. 3.3.15, 26 ; Mack. 2.5.25, 26 ; Bankt. 
 
 386-7. 2.9.30, 2.3.21; Ersk. 2.2.6, 2.5.61; 1 
 
 "'The provision of the Clan Act, 1 Bell on Leases, 29. 
 
 Geo. I. c. 20, which let in the landlord "' Dirl. and Steu. ut sup. 
 
 instead, was repealed by 21 Geo. II. o. "^ Mack. Obs. 352. 
 34. See 1 Hume, 546, note. 
 
 B 
 
18 
 
 PERSONAL AND OFFICIAL DISABILITY. 
 
 ' the liferent escheat' "^ This opinion is supported by the 
 rule,"" that where the lease is for more than one life, it shall 
 be forfeited during the life of the criminal only, and shall 
 accrue to the surviving lessees. Not only the property belonging 
 to the criminal at the date of his sentence is forfeited, but all 
 that shall accrue to him until he receive a pardon. ^^^ In 
 consequence, leases which he shall acquire, either by succession 
 or contract, devolve to the Crown. And it is no bar to the 
 forfeiture of a vested right of lease, that it is expectant on the 
 lapse of a prior right which is being possessed on, at the date of 
 the forfeiture, by another party.''^^ 
 Liferent leases. On the preamble that it had not been clearly decided whether 
 a liferent tack should fall under the simple escheat or not, it was, 
 by the Statute 1617, c. 15, enacted that such leases should fall 
 under liferent escheat only. They lapse to the landlord.^^' 
 The Act proceeds to provide, that ' in case any tack, set of lands 
 ' or teinds, contain more liferents nor one,' the person having 
 right to the said tacks, after the decease of the forfeiting life- 
 renter, ' shall brook and injoy the same, notwithstanding 
 ' the saids liferenter's rebellion attour the space of year and 
 ' day ; which rebellion shall prejudge himselfe only, and 
 ' no other person succeeding to him in the right of the said 
 ' tack.' 
 
 Kental rights, although bearing a very close resemblance to 
 liferent leases, and though they have been ranged under the 
 same class,"* yet, not being expressly mentioned in the Act, 
 and not being known under the name of liferent leases, seem to 
 fall under the single escheat.'^^^ 
 
 Kentals. 
 
 Papistry. 
 Trade. 
 
 IV. — Obsolete Disabilities. 
 
 The disability of Papists to enjoy ' tacks of lands,' "« relaxed 
 in 1793,"' was abolished in 1829.™ 
 
 The disability of butchers to be graziers over more than one 
 
 "» Ersk. 2.5.70. 
 
 ^^^ Sea next paragraph. 
 
 "1 St. 3.3.15 ; Bankt. 3.3.21 ; Ersk. 
 2.5.61. 
 
 "2 Hatton V. Murray, 1552, M. 
 4658 ; Lindsay v. Bonuitown, 1602, M. 
 4662. 
 
 "3 Hope's Min. Pract. 7.2 and 5, and 
 Note to 5; St. 2.4.62, 2.9.24, 3.3.15; 
 Mack. 2.5.25, 26 ; Obs. 352 ; Bankt. 
 2.4.40, 2.9.46; Ersk. 2.5.61, 66; see 
 
 Sandf. Entails, 303 ; Stuart v. Lady 
 Samuelston, 1631, M. 3623. 
 
 "^ Bankt. 2.9.4(5. 
 
 "= Balfour, 353 ; Hope's Min. Pract. 
 t. 7, note to sect. 5. 
 
 "8 1700, 0. 3 ; Stewart v. Webster, 
 1741, Elch. V. Papist, No. 1 ; Watson v. 
 Gordon, 1783, M. 9615. 
 
 ™ 33 Geo. III. c. 44; Ersk. 2.3.16, 
 note t. 
 
 "8 10 Geo. IV. c. 7. 
 
ALIENAGE. 1 
 
 acre of leased land, the purpose being to prevent forestalling and 
 monopoly,^^^ is in desuetude.^^** 
 
 The common law rules ^^^ respecting the disability of aliens Alienage, 
 to acquire and hold, inter alia, leasehold rights in the United 
 Kingdom, after being in Scotland,^^^ it would seem, brought into 
 conformity with English law,^^^ were relaxed by the Act 7 & 8 
 Vict. c. 6 6 ; and are now displaced by the Naturalisation Act, 3 3 
 Vict. c. 14, which ia its 2nd section enacts that 'real and per- 
 ' soaal property of every description may be taken, acquired, 
 ' held, and disposed of by an alien in the same manner in all 
 ' respects as by a natural-bom British subject; and a title to real 
 ' and personal property of every description may be derived 
 ' through, from, or on succession to an alien in the same 
 ' manner in all respects as through, from, or on succession to a 
 ' natural-born British subject : Provided that . . . this section 
 ' shall not affect any estate or interest in real or personal pro- 
 ' perty to which any person has or may become entitled, either 
 ' mediately or immediately, in possession or expectancy, in pur- 
 ' suance of any disposition made before the passing of this Act 
 ' [12th May 1870], or in pursuance of any devolution by law. 
 ' on the death of any person dying before the passing of this 
 ' Act.' There is no distinction, as in the earlier statute, between 
 alien friends and alien enemies. 
 
 V. — Minority. 
 
 1. Of Lessor. — A minor puhes, fatherless, and without curators, Without 
 may grant inter vivos a lease, since he may convey heritage ; but 
 if there be ' enorm lesion,' his deeds are subject to restitution.^^* 
 Discharges for rent granted by a minor so situated are valid, and 
 the sanction of the Court is neither necessary nor competent.-'^^ 
 
 Where a minor has curators or an adtninistrator-in-law, a deed With curators, 
 
 but without 
 their consent. 
 
 "3 1703, c. 7 ; 2 Bankt. 9.19 ; Ogavie p. 72. 
 V. MelUs, 1708, M. 2020 ; WaUace v. ^^* Balf. 119 ; Cr. 1.12.30 ; Mac- 
 Cunningham, 1708, M. 2349 ; Edinburgh kenzie, 1.7.9; St. 1.6.32, 35, note a; 
 Mags. V. Fleshers, 1799; M. v. Burgh Bankt. 1.7.52; Ersk. 1.7.33; 1 B.C. 134; 
 Royal, App. 6. 1 Bell on Leases, 108 ; Eraser, Par. and 
 
 120 Edinburgh Mags., supra, "" ; 1 Bell, Child, 336 ; Thomson v. Stevenson, 1666, 
 Leases, 144. M. 8982 ; Clerk's Cred. „. Gordon, 1699, 
 
 121 Or. 1.14.4, 5 ; 2.18.24 ; 2 Bankt. 60- M. 3668. 
 
 65 ; Ersk. 3.10.10 ; B. Pr. 2135 ; Mere's ^^ Ersk. 1.7.33, Note by Ivory, 228 ; 
 
 Notes, 10; Kincardine's Cred. «. Sommer- Hay «. Grant, 1749, M. 8973 ; Koehler 
 
 dyke, 1683, M. 4635. ' v. Neidriek, 1782, M. 8975 ; Kirkman v. 
 
 122 Leslie v. Forbes, 1749, M. 4636 ; Pym, 1782, M. 8977 ; and see Jack v. 
 Leslie v. Grant, 1763, 2 Pat. «8. N.B. Ry., 17th Deo. 1886, 24 Sc.L.R. 
 
 123 Authorities in Woodfall, L. and T. 211. 
 
of curators. 
 
 20 PERSONAL AND OFFICIAL DISABILITY. 
 
 of conveyance or a lease granted without their concurrence is 
 challengeable without proof of lesion/^*' either by action or ex- 
 ception ; but the right to challenge may be lost by mora or 
 homologation, as in a case where an action of reduction by the 
 minor's heir was thrown out on the ground that it was not 
 brought till thirty-five years after the date of the lease, and 
 thirty-two years after she had succeeded, and that she had drawn 
 the rents without objection during the whole of that latter 
 period. -^^^ Similarly, a lease granted by a minor, proximus major- 
 ennitati, at an increased rent could not be reduced by him after 
 he had allowed possession to be had for four years after he had 
 reached majority, or five years in all.^^* 
 With consent A lease by a minor — as lessor — is his own act and deed, hi.s 
 curators, if he have any, being merely consenters.^^^ It is settled 
 law that a minor with consent of his curators can grant deeds 
 alienating his heritage out and out, subject to reduction on proof 
 of lesion.^^" A fortiori therefore he, with the like consent, can 
 grant a lease to endure not only until he attain majority, but for 
 whatever period he and they shall deem proper, subject to the 
 same proviso; and such is the rule,^^^ arrived at after some hesi- 
 tation.^^^ The reason given by Baron Hume in reporting a case 
 in which the nullity of a lease for nineteen years was negatived 
 by the Court, is much to the point — viz. , ' that the law acknow- 
 ' ledges a minor as a person who has a will of his own, and who 
 ' is entitled to administer his property according to his own 
 ' pleasure, provided only he have his guardian along with him to 
 ' guide his inexperience and supply the immaturity of his judg- 
 ' ment.'^^^ There seems to be no limitation to the endurance of 
 leases which may be thus granted ; though, of course, anything 
 unusual in that respect, as in any other, may go towards proving 
 enorm lesion. ^^* 
 
 126 Balf. 119; Cr. 1.12.30; cf. 2.20.16; Thomson v. Stevenson, 1666, M. 8982 j 
 
 Stair, 1.6.33 ; 1 B.C. 134 ; Mack. 1.7.9 ; Clerk's Cred. v. Gordon, 1699, M. 3668. 
 Bankt. 1.7.56; Ersk. 1.7.33 ; Seton v. L. "i j ^q jg^ . g pj,_ gogg ; 1 Bell, 
 
 Caskieben, 1622, M. 8939. Leases, 109. 
 
 "^ Cardross v. Hamilton, 1708, M. "^ Cr. 2.10.1 ; Bankt. 2.9.18 ; and 
 
 8951 ; rev. Robertson's App. 37. Ersk. 1.7.16, limit the duration to that of 
 
 ™ Gordon?;. Hall, 1757, M. 15178; and the curatory; and St. 2.9.3 is not cojifra; 
 
 see Harvie v. Gordon, 1726, M. 5712 ; and but the case referred to by Erskine was 
 
 obs. in Stevenson^. Adair, 1872, 10 M. 919. one of tutory, and the point is now 
 
 129 St. 1.6.35 ; Mack. 1.7.8 ; Ersk. settled. 
 ^■7.li. 133 Alexander v. Thomson, 1813, Hume 
 
 ™ Cr. 1.12.30; St. 1.6.44; Bankt. 411. 
 1.7.52; Ersk. 1.7.33,34; 1 B.C. 134; "* Munro ■„. Munro, 1735, Elch. 
 
 Hamilton v. Sharp, 1630, M. 8981; Minor, No. 1. 
 
MINORITY OF LESSOR, 21 
 
 As the lease is the deed of the minor himself, it is invalid, if Not by 
 executed by the curators alone. ■'^^ If the minor decline to execute ™"' 
 the lease, the transaction must be terminated, because there is no 
 mode by which he can be compelled to act, or by which his 
 curator can be authorised to act independently. An application 
 to the Court of Session to compel a minor to concur with his 
 curators, or to authorise them to do without his consent, was 
 refused upon the special ground that his declinature was not 
 unreasonable ; ^^^ but the ' general opinion ' of the Court being 
 that they possessed no compulsitor, the case has been viewed as 
 equivalent to a refusal to interpose.^'' It was held in an old 
 decision that if the minor were furth of the realm the curator 
 might levy his rents,^'^ on the view, no doubt, that this was 
 necessary administration. The more modern procedure would be 
 to obtain the appointment of a factor loco absentis if the minor 
 were inaccessible, or his express mandate if not. 
 
 The question whether a lease by a minor to his father or to Leasebyminor 
 a curator is liable to be set aside, without proof of lesion,i^^ has f°ti,er**°'^ " 
 never been precisely decided ; since of the only cases which 
 appear to be in point, one merely held that if the interests of a 
 father and his minor son conflict, a curator ad litem will be 
 appointed ; ^^^ and the other, besides involving the rights of third 
 parties, went no further than the Bill Chamber.^*^ But the 
 general doctrine of auctor in rem suam is quite wide enough to 
 embrace the case contemplated, and there can be no difficulty in 
 answering the question in the affirmative.^*^ 
 
 It results from the recognition of a minor's full capacity to Special powers 
 contract (eked out or not, as the case may be, by the consent of his ^ 
 administrator or curators),^*' that the Court consistently declines 
 to confer on him or them special powers similar to those which 
 it confers every day on judicial factors. '^^^ But in those few cases 
 in which the Court has made the anomalous appointment of a 
 curator bonis to a minor pubes (not subject to mental incapacity), 
 it has been strongly argued, though without the support of any 
 
 135 Stair, .1.6.35; Mack. 1.7.8; Ersk. "»MacneiUt>.Maoneill,1564,M.16229. 
 
 1.7.14; M'Intosh x-. Fraser, 1675, M. ^^ Gillespie v. Clark, 1821 ; 1 S. 160 
 
 11239, 16290 ; E. Bute i>. Campbell, (N.E. 153). 
 
 1725, M. 16338. '^ On this subject cf. Eraser, Par. and 
 
 "« L. Drumore, 1744, M. 8930, 16349 Child, 279, 372; Manuel s;. Manuel, 185a, 
 
 (appointment of factor). 15 D. 284, and the mass of oases collected 
 
 "7 Note a (by Brodie) to Stair, 1.6.35. in Bell's Prin. (8th ed.) 1998, 2084. 
 
 "' Crichton v. Criohton, 1560, M. ^^ Munro v. Munro, 1735, Elch. 
 
 16228. Minor, No. 1. 
 
 "^ Balfour, 124; Bankt. 1.7.57 ; Ersk. i" Wallace i: Wallace, 8 March 1S17, 
 
 1.7.19. F.C. 322. 
 
22 PERSONAL AND OFFICIAL DISABILITY. 
 
 reported decision, that this officer of Court might demand and 
 obtain the Court's assistance.^*^ 
 
 2. Of Lessee. — Similarly minors — alone, if they have no 
 Minors as administrator-at-law or curators ; with their consent, if they 
 lessees. ^^^^ g^^j^ assistance — may enter into leases as tenants,"^ with 
 
 the additional protection of the power to reduce within the 
 quadrienniv/m utile on proof of enorm lesion. None of the 
 cases in which deeds by minors have been sustained, though 
 granted without consent, on the ground of their having fraudu- 
 lently held themselves out to be major, apply to leases ; and it 
 is doubtful how far the doctrine of resting-owing bears analogy 
 to the solemn contract of lease. But transactions in the 
 course of management of the subjects let will share the validity 
 of ordinary trade contracts. ^^' 
 
 VI. Marriage. 
 Jusmariti 1. Of Female Lessor. — A married woman cannot grant leases 
 
 and JUS admin- », ., piiii 
 
 istmtionis. 01 ner Separate property without the consent oi her husband, 
 because he is her curator or administrator-at-law, and is vested 
 with the right of administering that property,i*^ and this rule is 
 not altered by the Married Women's Property Act, 1881, which 
 only withdraws the right of administration (in cases of marriages 
 contracted after 18th July 1881, or of earlier marriages where 
 the Act is adopted) from the rents or produce, not from the 
 corpus, of heritable property."^ But a lease of whatever length, 
 and with whatever stipulations the nature of her title warrants, 
 can be granted by her with her husband's concurrence. "Without 
 his wife's consent, a husband can grant leases of her property to 
 last during his administration,!^'' on the ground that when so 
 limited they amount merely to an assignation of his jus mariti. 
 Where that is excluded — either expressly or under the provisions 
 of the above Act — he has no such power; and, if he grants a 
 
 "' See the admirable chapter on this 60-1 and 632; B. Pr. 1618; Bullions r. 
 
 subject in Thorns' Judicial Factors (2nd Bayne, 1793, M. 6149 ; Boyle v. Craw- 
 
 ed.), and especially p. 269. ford, 1822, I S. 372 (N.E. 350). Gem- 
 
 "" 1 Bell, Leases, 142 ; Hume v. Fish, mill r. Yule, 1735, M. 5997 ; Elch. i. 
 
 1636, 1 B.S. 94; Farquhar v. Campbell, Husband and Wife, No. 4, is not contni, 
 
 1628, JVl. 9022; Seton ■„. L. Caskieben, since it related to parap/ieraoZta. 
 
 1622, M. 8939. i« 44 & 45 v;,t_ „_ 2I, sect. 2. 
 
 "' 1 B.C. 135, and cases there. iso Ersk. 2.6.21, Note (by Ivory) 95; 
 
 "8 Reg. Maj. i. 0. 30, sect. 6; ii. c. 16, B. Pr. 1184, 1594 ; Mere's Notes, 20 ; 
 
 sect. 13; c. 42, sect. 4; iii. 0. 17, sect. 2 
 Quon. Attach, c. 21 and 22 ; Balf. 95 
 Cr. 1.12.28; Mack. 1.6.7; St. 1.4.9, 13 
 Bankt. 1.5.66; Ersk. 1.6.13,22,27; 1 B.C 
 
 Fraser, H. & W. 812; Grieve v. Pringle, 
 1797, M. 5951. Gibson v. Aitken, 1798, 
 Hume 205, contra. 
 
COVERTURE. 23 
 
 lease on the contrary assumption he may expose himself to an 
 action of damages.^^i ' If, while a minor, a married woman grants 
 a lease with her husband's consent, she is, like any other minor, 
 entitled to reduce it within the quadriennium utile on proving 
 enorm lesion.^^^ 
 
 Contrary to the views of our earlier lawyers^^^ (except Exclusion of 
 Dirleton"*) it is now settled that the husband's right of admini-i^;„'^'"^"*"^"- 
 stration, like the jus mariti, may be excluded^^^ or by him 
 renounced, ^^^ either expressly or by such general words as 
 necessarily imply exclusion or renunciation. ^°'' Thus, by a deed 
 of separation a husband renounced his jus mariti and all other 
 right and title to the rents of subjects of which his wife, through 
 a former husband, enjoyed a liferent, and declared that her own 
 receipts should be sufficient. A lease of her life interest was granted 
 her without her husband's consent. The fiar, having obtained 
 a renunciation of the lessor's liferent right, raised a reduction of 
 the lease upon the ground of the absence of the husband's 
 consent. But the lease was sustained, because the right of 
 administration might in law be, and in fact had been, effectually 
 renounced.!"^ The effect of such renunciation or exclusion of the 
 right of administration, coupled with an express or a statutory 
 withdrawal of the jus mariti, is, inter alia, to oust the husband 
 from the management of the wife's separate property, and to 
 enable her to lease it out as she pleases.^^® 
 
 Mere separation of the spouses does not, at common law, Effect of 
 involve a vrithdrawal of the husband's curatorial power i^^" but a ^^P*'^* '°°' 
 decree of separation a mensa et thoro, and a protection order 
 under the Conjugal Eights Act, 1861, have each the effect of 
 making a wife capable of entering into obligations, liable for wrongs 
 and injuries, and capable of suing and being sued, as if she were not 
 
 151 Kennedy v. Watson, 18i8, 11 D. i=« Bankt. 1.5.8; Ersk. 1.6.14.22, Note 
 171, per L.J.-C. (by Ivory) 154 ; 1 B.C. 638 ; St. 1.4.9, 
 
 152 Gibson v. Sooon, 6th June 1809, Note a (by Brodie); Walker r. Creditors, 
 F.C. p. 291. 1730, M. 5841 ; Murray's Trs. v. Bal- 
 is' St. 1.4.9, and Note a (by Brodie) ; rymple, 1745, M. 5842. 
 
 Fowlis V. Innertyle Tenants, 1667, i°' Gowan f. Pursell, supraji^" ; Wilson's 
 
 M. 5828 ; Nicolson v. Inglis,' 1678, M. Trs. v. Wilson's Factor, 1868, 7 M. 136. 
 
 5834; Vallance v. M'Dowall, 1709, M. 1"= Keggie r. Christie, 25th May 1815, 
 
 5840. F.C. p. 374. 
 
 1" Dirl., voce Jus mariti. i°' Gowan, i^^ ; Keggie, i^' ; Gordon 
 
 15= Mack. 1.6.7; Ersk. 1.6.14,22, Note v. Gordon, 1832, 11 S. 36; Graham r. 
 
 (by Ivory) 154; Ersk. Pr. 1.6.15 ; 1 B.C. Hunter's Trs., 1831, 9 S. 543. 
 
 638; St. 1.4.9, Note (by Brodie); An- i«» Ersk. 1.6.25; 1 B.C. 643; Bullions 
 
 nand v. Chessels, 1774, M. 6844, aff. 2 v. Bayne, and Boyle i. Crawford, i*^, 
 
 Pat. 369; Gowan a. Pursell, 17th May and see Baillie v. Lady Letham, 1680, 
 
 1822, 1 S. 418 (N.E. 390). M. 5981 and 5998, and 1 Bell, Lease.=, 107. 
 
24 
 
 PERSONAL AND OFFICIAL DISABILITY. 
 
 Of divorce. 
 
 Married 
 woman as 
 
 riiarried.!"! These words are wide enough to include obligations 
 and suits regarding her heritable property, and do not seem to 
 be restricted by the context, which only relates to property fall- 
 ing under the jus mariti}^^ And in contracts of separation a 
 renunciation of the jus administrationis may be inserted, and 
 will be given effect to.'"^ The Court would probably sustain 
 leases granted in ordinary administration by a married woman, 
 especially if necessary for securing her an aliment, on the same 
 principle as it has allowed action for rents,^** and declared them 
 not attachable by the husband's creditors.^^^ And now, when a 
 wife is deserted by her husband, or is living apart from him with 
 his consent, a Judge of the Court of Session or Sheriff-Court 
 may, on petition, dispense with his consent to any deed relating 
 to her estate.^"'' It is certain that his insanity^^" and civil deaty* 
 (by outlawry, or sentence of death, or penal servitude) dispenses 
 with it, subject to revival on convalescence in the one case, and 
 pardon, relaxation, or release in the other. 
 
 In divorce, the guilty husband loses all right to courtesy 
 and to control of his wife's separate heritable estate, and the 
 wife is entitled to terce. The guilty wife is excluded from 
 terce, and must yield to the courtesy. If both are guilty, 
 each forfeits all right in or to the property of the other. If 
 the legal liferents of terce and courtesy are excluded, husband 
 and wife return to the full control of their respective heritable 
 estates.!"' 
 
 2. Of Female Lessee. — There is no disability arising from 
 sex to take or hold a lease, and the only question has been as to 
 the effect of coverture. After a great deal of learning^'" and 
 decision^" to the contrary it is now established that, whether a 
 lease granted to or otherwise vested in an unmarried woman 
 contains an exclusion of assignees or not, it is neither forfeited 
 
 "' 24 & 25 Vict. u. 86, sects. 5 and 6 ; 
 Fraser, H. &, W. 552, 
 
 '^^ Ibid. sect. 19, and see the earlier 
 case of Ritchie v. Barclay, 1845, 7D.819. 
 The dispute arose out of alleged delict in 
 ejecting a tenant from premises let by 
 the wife and a factor (wrongly called 
 curator bonis) appointed to a lapsed trust 
 in her favour. 
 
 163 Keggie v. Christie, supra, i'^. 
 
 "* Canuiohael v. Chancellor, 1694, 4 
 13.S. 151. 
 
 '*■' Jameson v. Houston, 1770, M. 
 5898 (she had been left in sole possession 
 
 for seventeen years). 
 
 «6 44 & 45 Vict. c. 21, sect. 5. 
 
 "'' Authorities in Fraser, H. & W. 547, 
 819. 
 
 "8 Ibid. pp. 546, 780, 818. 
 
 '"" Eraser, H. & W. 1216; Innerwick 
 ?). Innerwick, 1529, M. 329; E. Elgin i;. 
 Ferguson, ] 827, 5 S. 243 (N.E. 226). 
 
 "" Balf. 206 ; Cr. 2.10.6 ; St. 2.9.26 ; 
 Bankt. 2.9.13; Ersk. 2.6.31; 2 Ross, 483; 
 Kames in Elliot v. T). Buccleuch, 1747, 
 M. 10332, being alone contra. 
 
 '"''■ Cases in Balf. supra, i™ ; Home v. ' 
 Taylor, 1734, M. 7199. 
 
COVERTURE. 25 
 
 nor carried to her husband by her marriage,"^ for in full view of 
 these authorities it was decided that, a lease having been granted 
 for a term of years to a man and his wife, and the longest liver, 
 and the heirs of the longest liver, but secluding assignees, and 
 the wife surviving and continuing in possession of the farm, the 
 right wa-s not irritated by her subsequent marriage.^"^ And, 
 though it has never been decided that a lease can be taken by a 
 married woman, as lessee, without conjunction with her husband, 
 the competency thereof is plainly involved in' cases in which she 
 has been recognised as holding a joint tenancy with him, and 
 the full right on her surviving.^'* The landlord would in such 
 a case take care that the husband and his creditors should not 
 be entitled to interfere. If, on the other hand, she acquires a 
 current lease by succession, gift, or onerous assignation, there might 
 have been at one time a difiSculty arising from the husband's jus 
 vfiariti over the stock and other moveables, either acquired with 
 the subject let or afterwards put upon it ;^''^ and this difficulty 
 may go far to explain the absence of authority on the matter. 
 But in the case of marriages contracted after 18th July 1881, 
 these moveables vest in the wife as her separate estate, and 
 spouses married before that date are, subject to certain conditions, 
 entitled to put themselves under the statute by agreement. ^^^ 
 
 The rules .stated above^"" in regard to the case of a married Effect of 
 
 . IT ic 1 1 separation and 
 
 woman, qvM lessor, who is separated or divorced irom or deserted divorce, 
 by her husband, are applicable, mutatis Tnutandis, where she is 
 a lessee, with this distinction, however, in favour of her freedom 
 of action, that, where a lease is simply an implement of a 
 trade carried on by her in her own name there can be no doubt 
 that, apart from statute, she is entitled to enter into the con- 
 tract, and that she may enjoy all the rights, and will be amenable 
 to all the liabilities, whicli it involves.^"^ 
 
 B. Disability arising from Office. 
 
 I. Trust Administration. 
 
 It remains to consider a number of cases in which limitations in 
 
 "2 1 B.C. 76, note; B. Pr. 1218; "* Gillon v. Muirhead, "^ and Tor- 
 
 More's Notes, 248; Ersk. 2.6.31, note *; rester v. Milligan, "2. 
 
 St. 2.9,p. 372,jSfote(byBrodie); per Lord "= See Ersk. 2.6.31. 
 
 Glenlee in Forrester v. Jlilligan, 1830, 8 '''' 44 & 45 Vict. o. 21, sects. 1-4. 
 
 S. 992-4 ; not questioned in Edmond v. "^ Supra, p. 23. 
 
 Keid, 1871, 9 Macph. 782. "^ ^r;/. from Chiirnside i;. Currie, 1789, 
 
 "3 Gillon V. Muirhead, 1775, M. 15286, M. 6082; Orme v. Diffors, 1833, 12 S. 149; 
 
 Hailes 631; said byMr.Bell(Com. sw/iTO, Fraser, H. & W. 552 ; and see 40 & 41 
 
 i'-) to have been affirmed on appeal; but Vict. c. 29. 
 see 3 Pat. 681. 
 
26 
 
 PERSONAL AND OFFICIAL DISABILITY. 
 
 the power of certain persons to grant or take leases depend, not 
 on anything affecting their capacity as individuals, but on the 
 restricted nature of some office or trust conferred or imposed on 
 them. This office or trust may be more or less of a public 
 nature, or it may be the result of the exigencies of private life. 
 Of the former sort is the administration of Crown, Church, and 
 corporate property. Of the latter sort — besides the cases taken 
 up above more conveniently under the head of personal incapacity 
 — is the administration of private trustees, factors, and appointees 
 General rule, under powers. The cardinal rule, common to all these offices, is 
 that the officer or trustee is not entitled to stray beyond the 
 powers conferred on him by his commission. But the nature 
 and extent of these powers have to be gathered, not only from 
 the deed appointing him and the express directions set forth for 
 his guidance, but also from the dictates of the common law and 
 statute. It is, therefore, of some importance to state shortly the 
 special rules applicable to each of the administrators referred 
 to. In each case the administrator will be regarded first as 
 lessor and then as lessee, following the arrangement hitherto 
 adopted. 
 
 1. The Crown. 
 
 (a) The Crown as Lessor. — The management of Crown lands 
 (as distinguished from the private estates of the sovereign i'^^) was 
 transferred from the Officers of Exchequer to the Commissioners 
 of Woods and Forests in 1833, i^° and the powers of an earlier 
 Enghsh Act^^i were at the same time applied to Scotland.^^^ 
 These powers extend to the lands and other property of the Prince 
 of Scotland. They are limited in various ways, of which, in the 
 matter of leases, the following are the most important : — 
 
 Leases for thirty-one years may be granted of subjects of 
 any description (Act 1829, sect. 22), and now, with consent of 
 the Treasury, leases of mines (other than mines of gold and 
 silver), minerals, or other metallic or non-metallic substances or 
 substrata, obtained by mining, quarrying, or excavating, may be 
 granted or extended for a period of sixty-three years,^^^ and a 
 grassum may be taken.^** Leases for building or garden ground 
 may be made for ninety-nine years (Act 1829, sect. 23) ; the 
 rent under such leases may be nominal for the first three years 
 
 Leases from 
 Crown — of 
 land. 
 
 1™ 25 & 26 Vict. 0. 37 ; 36 & 37 Vict. 
 0. 61 ; 37 & 38 Vict. c. 94, sect. 60. 
 
 18» 2 & 3 Will. IV. c. 112 ; 3 & 4 
 Will. IV. c. 69, sects. 2, 3, and see 14 & 
 15 Vict. o. 42, sects. 1, 2. 
 
 i8» 10 Geo. IV. c. 50 (1829). 
 
 182 3 & 4 Will. IV. c. 69, sect. 3. 
 
 183 36 & 37 Vict. c. 36, sect. 4. 
 "^ 29 & 30 Vict. c. 62, sect. 3. 
 
CROWN. 27 
 
 (sect. 30). In leases of minerals the rent may be either in money, 
 or in money and a share of the produce, or by way of a royalty 
 (sect. 33). Power is given to distrain for rent (sect. 90). Lessees, 
 at a rent exceeding £50, have to pay five per cent, on arrears 
 after the lapse of three months from the date of the demand 
 (sect. 91) ; and the Commissioners are empowered to compound 
 for arrears (sect. 93). Disputes respecting boundaries, extent, or 
 servitudes are to be settled by arbitration (sect. 95). Mines and 
 quarries, in or under the foreshore, are specially excepted from 
 the provisions which transfer the management of that territory to 
 the Board of Trade.^^^ Duplicates of leases are to be trans- 
 mitted to be recorded in the Office of Chancery in Scotland. ^^^ 
 An attested copy or extract from this record of any lease recorded 
 for behoof of the Crown is equivalent to the principal, and may 
 be recorded as if it were the principal in the books of Council and 
 Session.isf And the Statute 15 & 16 Vict. c. 62 (30th June 
 1852), section eleventh, enacts that a minute and memorandum 
 describing the document entered in the Minute-Book of the 
 Office of Chancery in Scotland shall be a sufficient compliance 
 with 3 & 4 Will. IV. c. 69. 
 
 In consequence of recent alienations of Crown lands in Scotland Of salmon 
 these rules have become of less practical importance than formerly, 
 so far as corporeal property is concerned. Such lettable lands as 
 remain are leased out conform to the same rules of good manage- 
 ment as in leases between subject and subject. But a considerable 
 revenue is now obtained by the Crown from the letting of salmon 
 fishings in rivers and in the sea and estuaries within three miles 
 of low- water mark. The rule of the Office is always to give the 
 proprietor ex adverso an opportunity of taking the fishings 
 himself, but in many cases he does not tender, and they are then 
 let to a third party. The lessees are taken, bound not to 
 interfere with fishings ex adverso of lands other than those 
 mentioned in the lease. But a Crown lease, obtained after'the 
 lessee had been interdicted from fishing from his own lands by 
 the opposite riparian owner, is a sufficient answer to a complaint 
 for breach of interdict, leaving the question of property to 
 be decided by declarator or reduction.^^^ Provision is made for 
 putting the contract to an end in the event of legislative pro- 
 hibition of stake or bag nets. The duration of the leases varies in 
 practice, and is usually between seven and eleven years. There 
 is no rule as to the exclusion of assignees. Entry is at Martinmas, 
 
 185 29 & 30 Vict. c. 62, sect. 21. '^r 3g & 37 Vict. c. 62, sect. 5. 
 
 188 3 & 4Will. IV. u. 69, sect. 7. ^^^ Lovatii. Macdonell, 1868, 6 M. 330. 
 
28 PERSONAL AND OFFICIAL DISABILITY. 
 
 and the lessee is bound, if required, to take over the tackle and 
 material of the outgoing tenant at a valuation. The offer is by 
 circular, and is accepted by written tender. ^"^ The lessee is 
 bound to defend himself against any unjust claim by a third 
 party, and is not entitled, without special stipulation, to be 
 relieved of the expenses thereby entailed, though the untenability 
 of the claim be afterwards established.^'" 
 Of foreshore The Board of Trade, which now has the management of the 
 
 mussTush-""'^ foreshore"! (with the exception of minerals under it),i»2 jg i^ the 
 ings. habit of granting leases thereof to the proprietors of the land ex 
 
 adverse, not entitled to the ownership under their charters.^"''* 
 And it is empowed to grant an order (substantially though not 
 in name a lease) for the establishment, improvement, maintenance, 
 and regulation of oyster and mussel fisheries on the shore and bed 
 of the sea or of an estuary or tidal river, above or below or partly 
 above and partly below low-water mark, for not more than sixty 
 years, with certain rights to the use of the solum^^^ The Act 
 , has been practically a dead-letter (though one or two applications 
 have been made), principally on account of the expense attending 
 the preliminary inquiry which has to be made in the interests of 
 the public. 
 
 The Admiralty and War Departments have occasionally both 
 to give and take leases of land in Scotland, but there is nothing 
 in their practice to call for comment. 
 
 (6) The Crown as Lessee. — On the other hand, the Woods 
 and Forests Commissioners are entitled to take leases on such 
 terms as they think fit (Act 1829, sect. 47); to purchase 
 current leases (sect. 48) ; and in either case to cause them to be 
 granted or assigned (as the case may be) to a trustee or trustees 
 for the Crown (sect. 49), or to allow them to merge (sect. 50). 
 Gift to Leases of the property of subjects may accrue to the Crown 
 
 by forfeiture or escheat, or by default of heirs, in consequence of 
 the total failure of heirs to a person of lawful birth, or by the 
 death of a bastard without issue. But as it is an established 
 rule that the sovereign cannot act in a subordinate capacity, he 
 cannot be the lessee of his subject,!'^ and therefore he transfers 
 by a gift to a donatary leases so accruing. It has been decided 
 that the sovereign cannot transfer to a donatary a lease accruing 
 
 i8i> Stephen v. Lord Advocate, 1868, 6 i" 29 & 30 Vict. c. 62, sects. 7 et seg 
 
 R- 282. 192 Ibid, sect, 21. 
 
 '''' I am indebted for information as i^^ Stephen, '89. 
 
 to practice to the kindness of the solici- '"^ 31 & 32 Vict. c. 45 sects. 5 28 
 
 tor to the Woods and Forest Depart- 29-42. 
 
 ™®"*- "' Falconer r. Hay, 1789, M. 1355. 
 
 donataiy. 
 
CHURCH. 29 
 
 ob defectum hceredis if assignees and sublessees are excluded ; 
 and a general opinion was expressed that the same rule applied 
 even where there were no such exclusion. i^" But from this 
 opinion leases accruing by forfeiture or escheat are excluded, 
 because it is expressly limited to those accruing ob defectum 
 hceredis. Were it of general operation it would be equivalent to 
 a rule that leases cannot devolve to the Crown — contrary to thu 
 rule that leases fall under forfeiture and escheat, ^^^ and are in 
 terms included under gifts of escheat. ^^^ Although the sove- 
 reign has the absolute power of disposal, the gift is generally 
 made to the creditors or relations of the criminal. ^^^ 
 
 2. The Church. 
 
 The right of the minister of a parish to the enjoyment of the 
 manse and glebe being limited, not by a concurrent right in any 
 other person, but by the circumstance that he is curator 
 heneflcii no less than holder of an usufructuary right during his 
 incumbency,^"" h6 may properly be regarded as an administrator 
 for himself and the Church, rather than as a limited owner. 
 
 Leases of manses which before the Reformation were inadmis- Manses. 
 sible even for a short period of years,^"^ were frequently resorted 
 to soon after the Reformation, as a means of evading the 
 encroachments of the Protestant clergy and laity, and had to be 
 restrained by Act of Parliament.^"^ Indications in the statute 
 book that manses were intended for the residence of the 
 parish ministers do not go the length of prohibiting their 
 residence elsewhere, at least within the parish. ^"^ The legisla- 
 ture in both sets of Acts merely had in view the proper admini- 
 stration of ordinances, and the preservation of the benefice from 
 alteration for purposes for which it was never intended. While 
 it is probable that for urgent sanitary reasons the minister might 
 desert his manse, it is equally probable that he would not be 
 entitled to leave it unoccupied and exposed to the deterioration 
 involved therein for the mere sake of convenience, or to let it for 
 a year, or term of years, or during his incumbency, or for any 
 other purpose except as a residence. In some of these cases, 
 
 iss Falconer v. Hay, "^s. v. Abercromby, 1558, M. 7935 (five 
 
 '^' Supra, p. 16. 
 
 1S8 1 Dallas, part ii. pp. 91 and 95. ^"^ 1S63, c. 72 ; 1572, c. 4S ; Bulk of 
 
 "!> 3 Jurid. Styles, 2nd ed. 196. the Universal Kirk, p. 12 ; St. 2.3.40 ; 
 
 =»» He has been caDed, like an English Maokenz. Oba. 166, 183; Forb. 222; 
 
 rector, a, corporation sole. B. Pr. 2176 ; Bankt. 2.8.119 ; Ersk. 2.10.56 ; Connell 
 
 Clark on Partnership, i. 35 ; and see on Par. pp. 242-45, 339-40, 425. 
 
 Duncan's Par. Law, 388. 2°' 1584, 0. 132 ; 1587, u. 29 ; Min. of 
 
 -" Balfour, 204 ; Parson of Muckarsie Falkland v. Johnston, 1793, M. 5155. 
 
30 PERSONAL AND OFFICIAL DISABILITY. 
 
 he would fail to satisfy the demand of the presbytery for ' due 
 ' residence,' in others, the demand of the heritors, that the 
 subjects be kept in proper repair. But nothing is more common 
 than for a minister to let his house as a residence during his 
 holiday, and even for short periods also before or after the 
 same, while he resides elsewhere in the parish or neighbour- 
 hood. And it is now settled that, so long as the heritors 
 find nothing to complain of in the way of injury to the fabric or 
 its adjuncts, they have no title to interfere.^"* It is quite a 
 different question when and how the minister's ecclesiastical 
 superiors would be entitled to interfere for the purpose of 
 enforcing ' due residence.' The rules as to removing will 
 necessarily be the same as those which obtain with reference to 
 glebes. ^°^ 
 Glebes. While the letting of manses is exceptional, the letting of 
 
 glebes (including the minister's grass as well as glebes proper), is 
 an ordinary mode of administration, and one which leaves the 
 incumbent free to do his professional work. It has accordingly 
 been always recognised as lawful. ^"'^ But at common law the 
 lease is limited by the duration of the lessor's incumbency, and 
 is therefore ipso facto terminated by his death or deposition, or 
 the acceptance of his resignation by the presbytery. The new 
 incumbent is entitled to the full unburdened possession on being 
 inducted. In the interval the tenant's possession is sine titulo, 
 and may be summarily brought to an end by the newly-inducted 
 minister, contrary to the rule in the case of leases granted by a 
 life renter.^"'' The rule is general, and does not give way to 
 circumstances specially favourable to the tenant. ^"^ The only 
 relaxation at common law occurs when a crop has been 
 sown prior to the vacancy, or at least prior to the induction 
 of the new incumbent. The tenant is then allowed to occupy 
 the ground sown for the purpose of reaping the crop even 
 after the latter date, on the principle that messis sementem, 
 sequitur/^"^ 
 
 ™ Aberdour Heritors v. Koddick, prejudice of the succeeding incumbent. 
 
 1871, 10 M. 221; and see Couper ii. Ersk. 2.10.6 ; Macoallum?;. Grant, supra, 
 
 Bruce, 1602, M. 13831 ; Maooallum v. 204. 
 
 Grant, 1826, 4 S. 527 (N.E. 535) ; '-"■' Maccallum v. Grant, supra, ^\ and 
 
 Lockerby v. Stirling, 1835, 13 S. 978; authorities there ; Dunlop, Par. Law, 177 ; 
 
 Duncan's Paroch. Law, 391. Duncan, Paroch. Law, 135, 398, 541. 
 
 ^"^ Couper r. Bruce, supra, ""*. 208 ggg speculations of LI. AUoway and 
 
 206 The prohibition in 1572, c. 48, Glenlee in Maccallum, ">\ 
 
 obviously referred only to alienations by -"^ Golvil v. Balmerino, 1665, M. 
 
 long leases, or at least by leases to the 464. 
 
CHURCH. 31 
 
 But now statute has introduced a relaxation of the strict rule statutory 
 
 . powers to let. 
 
 m two directions. In the first place — 
 
 'A minister may, with consent and approval of the heritors (i.e., Power to grant 
 ' proprietors of lands of £100 real rent), and the presbytery, grant a lease exceeding 
 ' or leases of his glebe, or any part or parts thereof, reserving for the use eleven years. 
 ' of the minister not less than five imperial acres, nearest and most con- 
 ' venient to the manse, which shall be marked out by the heritors and the 
 ' presbytery, for any term not exceeding eleven years, for such yearly rent 
 ' or rents, and upon such condition or conditions as shall be approved of 
 ' by the heritors and the presbytery ; but without any foregift or 
 ' grassum, and under the special condition if the said reserved five acres 
 ' be included in the said lease, that such lease, in so far as they are 
 ' concerned, shall cease and determine at the first term of Martinmas 
 
 * six months after the death, deprivation, resignation, or translation 
 ' of the minister of the parish, such consent and approval of the 
 ' heritors and the presbytery to be signified by a certificate written 
 
 * on the lease .or leases, and signed by the clerk to the heritors, and 
 ' by the moderator and clerk of such presbytery ; and the rent or rents 
 
 * payable under such lease or leases shall be paid and belong to the 
 
 * miuister.'^" 
 
 In the second place, the minister naay, with the consent Long leases, 
 of the presbytery, and of two-thirds in value of the heritors, 
 obtain from the Court of Teinds authority to let his glebe, 
 or any part of it, for any term not exceeding ninety-nine years 
 on building lease. ^^^ This is an alternative to feuing the glebe. 
 As feuing has been found to be the more convenient mode, it 
 will be unnecessary to do more than refer to the Act for a 
 statement of the procedure,^i^ and the right of a neighbouring 
 heritor to object on the score of amenity,^i' and to have the 
 first ofifer.^^* The rents are to be enjoyed by each incumbent in 
 full (sect. 16). 
 
 In spite of opinions to the contrary in last century,^^^ it is now Minerals. 
 recognised in practice that the glebe and the minister's right to 
 it extend a ccelo usque ad centrum, with this limitation, 
 however, that what is below the surface being pars soli and in 
 no sense a fruit of the glebe, if it be taken away, must be taken 
 for behoof of the benefice and not of the incumbent for the time 
 
 -^0 29 & 30 Vict. c. 71, sect. 3. 5 Sc.L.R 631 ; 7 M. 88 ; 8 M. 956 ; 
 
 =" 29 & 30 Vict. c. 71, sect. 5 et seq. 11 M. 80, 251 ; 1 R. 187, 934 ; 2 R. 
 
 21= Sect. 6 et seq. 488. 
 
 =" Sect. 11. ii" Obs. of L.P. Dundas and L. Mon- 
 
 -'* Sect. 17 ; 37 & 38 Vict. o. 94, sect. boddo, in Reay t. Falconer, 1781, 2 
 
 36. The cases, which all relate to Hailes 890. 
 feus, are reported in 6 M. 284, 970 ; 
 
lands. 
 
 32 PERSONAL AND OFFICIAL DISABILITY. 
 
 being alone.^^^ Therefore minerals are leased by the incumbent, 
 with consent of the heritors and the presbytery, and the rents 
 are funded or laid out in permanent investment, and the 
 interest only paid to each incumbent. 
 Mortified It may be a question whether lands, not properly glebe, 
 
 but settled in perpetuity ' on the minister for the time being, 
 ' and enjoyed by him along with his glebe,' ''^^ will follow the 
 rule of lands let by liferenters, or the analogy of glebes, in the 
 matter of removing. ^'^^ It is expressly provided, however, that 
 they are to have the benefit of the Act 1866 referred to above.^'* 
 
 3. Corporations. 
 
 (1) As Lessors. 
 
 The general rule in regard to corporations, however constituted, 
 is that they are entitled to grant, or take and hold leases, subject 
 to any limitation of power contained in their memorandum, 
 articles, charter, or other constitution, or elsewhere.^ The power 
 to grant and take leases is sometimes specially conferred in these 
 constitutive documeots.^^" The other contracting party should 
 in every case satisfy himself of the power of the officials to bind 
 the corporation, and of the mode in which this can be done.^^* 
 The deeds should, as a rule, run in the corporate name, and be 
 sealed with the corporate seal.^^^ Only two sorts of corporations 
 require to be further mentioned here. These are Universities 
 and Burghs. 
 
 (a) Universities. — The power of administering the property 
 of universities was held in various hands prior to the Universities 
 Act of 1858 ;^^' but that statute appointed the Senatus Academicus 
 in each case to ' administer the property and revenues, subject 
 ' to the control and review of the University Court' (sect. 5). 
 There is no rule, either in the statute, or in. the ordinances of the 
 Commissioners or of the Queen in Council, which have been 
 issued in pursuance of the statute, limiting the power of granting 
 or taking leases, good administration being sufficiently secured by 
 the character of these bodies ; which would probably not be 
 
 *i^ Minister v. Hers, of Newton, ] 807, ter's right. Allan v. King's College, ^", 
 
 M. Glebe Appx. No. 6 ; and see Min. v. is not contra. 
 Hers, of Madderty, 1794, M. 5153, Bell ^is 29 & 30 Vict. 0. 71, sect. 2. 
 
 Fol. Ca. 76 ; Logan v. Reid, 1799, M. ^» 1 Bankt.2.27 ; 1 Ersk. 7.64 ; 2 B.C. 
 
 Glebe Appx. No. 1. 167, 656 ; 1 Ross' Lect. 83 ; Spott. Styl. 
 
 "' Min. of Buittle, 22nd Nov. 1809, 15-16 ; Steu. Ana. to Dirl. 89. 
 F.C. 10, n. ; AUan v. King's Coll. of Aber- ^^ Edinburgh Hammermen v. Stewart, 
 
 deen, 23rd Jan. 1811, F.C. 158; 2 Con- 1664, M. 2541. 
 nell, Tithes, 136. 222 ciark on Partnership, i. 179. 
 
 ^'8 Probably the latter, since death is '-^"a 21 & 22 Vict. 0. 83. 
 
 not the only termination of the minis- 
 
ROYAL BURGHS. 33 
 
 bound by ancient dicta or decisions,^^* except so far as these may 
 import a prohibition against leases of such undue length as to 
 amount to alienation in the narrower sense of the word, or on 
 such terms as unduly to anticipate revenue by way of grassum. 
 
 (b) Burghs, (a) Royal. — A lease by a royal burgh should Requisite 
 proceed, as its warrant, on a previous Act of Council, or of the ^"^^ '■""'"■"^s- 
 interim managers properly convened, ^^^ or where the property of 
 the burgh is being administered by a judicial factor ^^^ on the 
 authority of the Court of Session. The necessity for an Act of 
 Council or managers has statutory authority on one, and 
 apparently the better, reading of the Act 3 Geo. IV. c. 91, 
 sects. 5, 6, 8, and 11. The fifth section provides that all feus, 
 alienations, or tacks for more than one year of an heritable pro- 
 perty, being part of the common good of such burgh, and tacks 
 of the common good shall proceed by public roup or auction, of 
 which public notice shall be given by advertisement published 
 once at least twenty days preceding the day of roup or auction 
 in some newspaper printed in such burgh if any such newspaper 
 is there printed, and, if no such newspaper is there printed, then 
 in some newspaper published in the county wherein such burgh 
 is situated, or if no such newspaper is published in such county, 
 then in a newspaper published in the next adjoining county or 
 counties in circulation in such burgh, and also by written or 
 printed notices affixed and continued upon at least three con- 
 spicuous places in the said burgh, of which the door of the 
 principal church shall be one, at least twenty days preceding the 
 day of such roup or auction. The eighth section enacts that, in 
 the event of these transactions taking place otherwise than by 
 public roup and after proper notice, the members of council who 
 were instrumental in authorising the same are to forfeit a sum 
 not exceeding £50 each, and the 'feus, alienations, leases, or 
 ' tacks shall be altogether void and null.' The eleventh section 
 provides that ' it shall not be lawful for the magistrates or the 
 ' town council of any burgh to contract any debt, grant any 
 ' obligation, make any agreement, or enter into any engagement 
 ' which shall have the effect of binding them or their successors 
 ' in office, unless an Act of Council shall have been previously 
 ' made in that behalf ; and any such contract, obligation, agree- 
 ' ment or engagement made or entered into without such Act of 
 
 *-^ Cr. 1.11.15 ; Aberdeen Old College Teinds, No. 19, the lease was probably 
 ,1. Town, 1669, M. 2533, 6848 ; St. 2. not granted by the college. 
 1.8-20 ; Bankt. 2.1.8-24. In MaxweU v. ^23 (j^eig ». Miller, 184?, 4 D. 662. 
 
 Glasgow CoU., 1745, M. 15744, Elchies, 225 Beck, 1836, 14 S. 1056. 
 
 C 
 
34 PERSONAL AND OFFICIAL DISABILITY. 
 
 ' Council shall be void and null as against the common good of 
 ' the burgh, or the succeeding magistrates or town council thereof, 
 ' without prejudice nevertheless to the personal liability of the 
 ' persons by whom the same may have been made or entered 
 ' into.' The sixth section provides for a precedent Act of Council, 
 with the additional safeguard that notices shall be given during 
 Session of the Court of Exchequer (now the Court of Session) so 
 as to give opportunity for interdict, but this section only applies 
 to feus and alienations. It is submitted that the eleventh section 
 is wide enough to include leases ; but that the careful exclusion 
 of leases from the purview of the sixth section absolves the burgh 
 from any limitation as to the time at which notices require to be 
 given.22' But even although the application of this statute could 
 be held to be doubtful, a previous Act of Council seems to be 
 requisite at common law ; ^^^ and according to the practice of the 
 more important burghs, Acts of Council are passed, which are 
 narrated in the lease. To render the lease secure, the Act of 
 Council should set forth the consideration, for leases and aliena- 
 tions are governed by a common rule. Although a reduction of 
 a lease granted by magistrates, on the ground that burghs are to 
 be deemed upon the same footing as minors are, was repelled, ^^^ 
 yet leases, if granted without an adequate consideration, are 
 reducible at the instance of the succeeding magistrates (contrary 
 to one decision),^^" of the burgesses, or of any person who can 
 show an interest.^'^ 
 Mode of The ancient and ordinary, ^'^ though perhaps not uniform,^'^ 
 
 '°^' practice of letting by public roup, has now been made a statutory 
 
 requisite under the pains of nullity by the fifth and eighth sec- 
 tions of the Act of 1822 quoted above,^^* with regard to leases 
 for more than a year of heritable property being part of the 
 common good and to leases of the common good itself. It is 
 
 '"" Greig v. Miller, swpra, ^^. 2529 ; Stirling Burgesses v. Mags., 1772, 5 
 
 228 See Dean v. Mags, of Irvine, 1752, B.S. 419; Cleghorn v. Dempster, 1813, 2 
 M. 2522 ; M'Dowal v. Mags, of Glasgow, Dow 40 ; Burgesses of Inverury ». Mags. 
 1768, M. 2525 ; Mags, of Selkirk v. of the Burgh, 14 Deo. 1820, F.C. p. 218 ; 
 Clapperton, 1828, 6 S. 955. Mags, of Selkirk v. Clapperton, supra, 
 
 229 Archbishop of St. Andrews u Mags. '^s . Sanderson o. Musselburgh Trs., 
 of Glasgow, 1685, M. 2496. 1859, 22 D. 24 ; of. Nicol v. Mags, of 
 
 23" Id. Aberdeen, 1870, 9 M. 306, and Morri- 
 
 231 Bankt. 1.3.73; Ersk. 1.4.23; Mags. son v. Fleshers of Edin., 1853, 16 D. 
 of Glasgow V. Bams, 1685, M. 2515; 86. 
 
 ■s. of Edin. -o. Paterson, 1690, M. 23a ^593^ ^ -^^^ . ji^ck. Obs. 106 ; 
 
 2496 ; Anderson v. Mags, of Renfrew, Jack v. Stirling, 1681, M. 1838, 2496. 
 
 1752, M. 2539 ; Dean v. Mags, of Irvine, 233 M'Ghie v. Edinburgh Mags., 1735, 
 
 supra, 228 ; M'Dowal v. Mags, of Glasgow, M. 2501 ; Bankt. 2.9.19. 
 
 supra, 2'-8 ; Wilson v. Storry, 1775, M 234 s^,yra, p. 33. 
 
PARLIAMENTARY BURGHS. 35 
 
 probably implied that leases for a shorter period or of other 
 subjects may be granted otherwise than by public roup. 
 
 The Act 1491 J c. 36, which limited the duration of leases of Duration, 
 the rents of a burgh's heritable property — now obsolete in prac- 
 tice — to three years, does not apply to leases of the heritable 
 property itself ^^^ So that leases of such endurance as is ordinary 
 in administration and beneficial to the burgh may be granted, and 
 ratification by the Convention of Burghs, which was at one time 
 supposed to be necessary,^*^ is not now required. ^^^ But in all 
 cases there should be strict conformity with the rules of the Act 
 of 1822. The taking of a grassum, not being an act of ordinary 
 administration, is probably inadmissible.^^' But the old Act 
 1593, e. 185, has been respected in practice, so far as regards 
 the letting of the burgh dues, as a part of the common ' gude 
 ' and patrimony' which is to be 'yearly bestowed.' ^^^ 
 
 (/3) Parliamentary, not being Royal, Burghs. 
 
 The Act 3 & 4 Will. IV. c. 77 (1833), in its thirtieth section, As in royal 
 enacts that the magistrates and town council to be elected under ™° ^' 
 the authority of the Act ' shall have such and the like rights, 
 ' powers, authorities, and jurisdiction, as is or are possessed by 
 ' the magistrates and council of any royal burgh in Scotland,' 
 under certain exceptions and restrictions relative to civil and 
 criminal jurisdiction. The question has never been decided 
 whether the right to lease out, which is granted in these general 
 terms, is or is not to be exercised under the rules and limitations 
 applied to burghs royal by the Act of 1822. It would probably 
 be held that as a negative reply would involve a grant of much 
 more extensive rights and powers than burghs royal possess, 
 this cannot have been the intention of the legislature. 
 
 iy) Burghs of Regality and Barony. 
 
 The magistsates of a BuEGH OF Regality or of Barony have 
 the same power with the magistrates of a royal burgh of grant- 
 ing feus of the common good,^*" and consequently of granting 
 leases. Grants by these communities are governed by the rules of 
 common law alone, in other words, of good administration, since 
 
 -'^ Dean v. Irvine Mags., supra, -^ ; F.C. at p. 16, and relative Seas. Papers, 
 
 cf. M'Dowal V. Glasgow Mags., ibid.; and p. 61. 
 
 Mack. Obs. p. 106 ; Bankt. 2.9.16 ; Ersk. '^^ Mack. Obs. 106 ; but see M'Ghie v. 
 
 2.3.15. Edinburgh Mags,, ='3. 
 
 '^5 Hope Min. Prac. 9.16, note; Edin- ^^ Cathie v. Mags, of Musselburgh, 
 
 burgh Mags. v. Paterson, 1690, M. 2496 1762, M. 2621, Elch. Burgh-Eoyal, No. 
 
 (feus). 32 ; Mags, of Kilmarnock v. Inhabitants, 
 
 =" Dea,n ; M'Dowal, supra, -'^. 1776, HaUes 738, 5 B.S. 406 ; Wilson v. 
 
 -'38 But see cases referred to in E. Storry, 1775, M. 2529; Stewart d. Paisley 
 
 Wemyss v. Murray, 17 Nov. 1815, Mags., 1822, 1 S. 261 (N.E. 246). 
 
36 PEESONAI^ AND OFFICIAL DISABILITY. 
 
 the above statutory provisions relative to the powers of adminis- 
 tration do not apply to them. 2" The statutes specially applic- 
 able to burghs of regality have no reference to the powers of 
 
 Let should be administration.^*^ It will be prudent for a lessee to obtain 9. 
 
 AoTof CouncU. previous Act of Council. But it cannot be affirmed that such a 
 warrant is indispensable. In a case already cited,^*^ this was one 
 of the points adverted to in the opinions given, but the interlo- 
 cutor proceeded on the want of an adequate consideration. In a 
 subsequent case, the other point was taken, that alienation of 
 public property should only take place by public roup, but as the 
 transaction — a sale — was otherwise invalid, no decision was come 
 to as to the mode of alienation. 2** The magistrates should always 
 bear in mind any uses which the inhabitants may have been 
 in the custom of taking when considering whether all or what 
 items of burgh property should be leased out.^*^ 
 
 (c) Miscellaneous Corporations. — Improvement Commis- 
 sioners created by local Acts have powers of leasing as therein 
 set forth. The local authority, under the Artisans' and Labourers' 
 Dwellings Acts, 1868 to 1885, may let lands acquired by it in 
 like manner as other lands acquired for sanitary purposes and 
 not needful therefor.^*^ The local authority under the Artisans' 
 and Labourers' Dwellings Improvement (Scotland) Acts, 1875 
 to 1885,^*'' may let the land acquired by it, on condition that 
 the lessees shall carry the improvement scheme into execution by 
 building subject to suitable sanitary conditions. ^''^ Industrial and 
 provident societies, now regulated by Acts passed in 1876, 1880, 
 and 1883,^*' are on registration declared to be bodies corporate, 
 with their property vested, not as formerly in trustees but in the 
 societies themselves, which may then (unless their rules other- 
 wise direct), take land on lease and lease out land. In the latter 
 case the tenant is not bound to inquire as to the authority of the 
 grantor, and the society's receipt for rent is to be a full dis- 
 charge.^'''* 
 
 2^' It. 0am. 0. 1; 1491, c. 36; 1535, c. =44 Stewart v. Mags, of Paisley, sup. "". 
 
 26 ; 1593, c. 185 ; 1693, c. 28; 3 Geo. IV. 24s Kilmarnock Mags., supra, «*>. 
 
 0. 91 ; St. 4.1.3 ; Bankt. 4.20.10 ; Ersk. =46 42 & 43 vict. 1;. 64, sect. 10. 
 
 1-4.38. 247 38 & 39 Viot. c. 49 ; 43 Vict. u. 2. 
 
 2*2 1606, c. 16 ; 1698, u. 19 and 20; 20 ^48 33 ^ 39 yig(._ ^ ^9^ ^^^^ 9 J,^^^ 
 
 Geo. II. c. 43, sect. 26 ; 35 Geo. III. .;. Working Class- Dwelling-houses Act, 18 
 
 122; Proc.-Fiso. of Gorbals v. Macarthur, & 19 Vict. 0. 88, which attempted to in- 
 
 1775, M. 7381, 5 B.S. 494 ; Begbie v. troduce an anomalous amalgam of feudal 
 
 Brown, 1776, M. 7709 ; Dowie v. Douglas, and leasehold tenure, has been a, dead- 
 
 30th May 1817, F.O. p. 343, aff. 1 S. letter and need not be further noticed here. 
 App. 125. 249 39 4 40 Vict. 0. 45 ; 43 Vict. c. 14, 
 
 2" Mags, of Selkirk v. Clapperton, sect. 8; 46 and 47 Vict. u. 47. 
 1828, 6 S. 955. ='5o Act 1876, sects. 11, 12. 
 
TRUSTEES. 37 
 
 (2) As Lessees. 
 
 Lastly, corporations may become lessees, subject to the rules of 
 good administration and to statutory limitations, if any such 
 exist, and to the ordinary rules relating to the mode and degree 
 in which they are represented by, and bound by acts of, their 
 officers. 
 
 4. Trustees. 
 
 (a) As Lessors. — The management of heritable property in Trusts. 
 Scotland is to a very large extent in the hands of trustees, who 
 act either under purely private trusts for private beneficiaries, or 
 under public or semi-public trusts instituted for the benefit of a 
 large number of persons, or of an extensive class, or of the public 
 generally. In nearly all such trusts the office is gratuitous in 
 the sense of the Trusts' Acts of 1861, 1863, and 1867;^" that 
 is, ' trustees who are not entitled as such to remuneration for 
 ' their services in addition to anj' benefit they may be entitled to 
 ' under the trust, or who hold the office ex officio,' including ' all 
 ' trustees, whether original or assumed, who are entitled to re- 
 ' ceive any legacy, or annuity, or bequest under the trust.'^^^ 
 Tliey stand thus in a different position from commissioners or 
 factors in the ordinary case. 
 
 At common law trustees under private trusts are entitled, so Pnvate trusts. 
 far as not controlled by express limitations in the trust-deed, to 
 grant leases for the ordinary term of endurance — that being an 
 ordinary or necessary act of administration ^°^r — not subject to de- 
 feasance on their term of office coming to an end sooner than the 
 stipulated ish of the lease.^^* But the power can only be exer- 
 cised in aid of the intentions of the truster, or, as it is put by Lord 
 Watson in the case just cited,^*^ ' Trustees have been permitted to 
 ' use all those administrative powers and faculties which are 
 ' necessary to the extrication and fulfilment of the purposes of 
 ' the trust-deed, but not to use administrative rights and powers 
 ' which instead of giving effect to and carrying out the purposes 
 ' of the truster would tend to defeat or confuse those purposes 
 ' as appearing from the deed itself Thus, it may be a fair, and 
 even a highly expedient act of administration, to allow the hus- 
 band of a beneficiary to occupy the trust premises rent free, as 
 
 - =51 24 & 25 Vict. 0. 84 ; 26 & 27 Vict. 253 M'Laren on Wills, 242. 
 
 0. 115 ; 30 and 31 Vict. c. 97. By 47 & ''^* Wardlaw v. Campbell, 1882, 9 E. 
 
 48 Vict. u. 63, sect. 2, these Acts may be 725, aff. 10 R.H.L. 65; 8 App. Gas. 641. 
 held to be extended to all trusts. 255 ^^ iq r.h.L. 69 ; 8 App. Gas. 
 
 =52 See Mackenzie, 1872, 10 M. 749 ; 651. 
 Alison, 1886, 23 ScL.R. 862. 
 
PERSONAL AND OFFICIAL DISABILITY. 
 
 Public trusts. 
 
 Statutory 
 powers. 
 
 perhaps the best means of enabling him to carry on a trade for 
 the support of his wife and family, though the object of the trust 
 be to protect the wife's interest from the jus mariti?^^ The 
 Court will refuse to grant special powers to testamentary trustees 
 in supplement to those conferred on them by the settlement, 
 unless the application comes within the statutory rules mentioned 
 below. ^^''' 
 
 Of public trusts, mortifications alone have furnished illustra- 
 tions of the powers of trustees in the matter of leasing. Craig^** 
 was of opinion that in the absence of powers specially granted 
 (as is sometimes the case)^^' in the constitutive deed, the limit 
 of duration is twenty-one years or three lives ; having probably 
 in contemplation leases of agricultural land. This opinion does, 
 therefore, nothing more than put in a concrete form adapted to 
 that case, as understood at the time, the rule requiring of all 
 trustees to proceed on the footing of good administration and for 
 the benefit of the trust. In a case which was much debated, it 
 never seems to have been questioned that trustees on a mortifica- 
 tion could let for a term of years, the only doubt being whether 
 there was an inversion of the trust by turning the building in 
 which the beneficiaries were being taught an industry, from a 
 woollen into a linen manufactory.^'''' But where there is an 
 express prohibition in the mortification against selling or dis- 
 posing of part of the property, the trustees are not entitled, at 
 their own hand, to let it for ninety-nine years, however advanta- 
 geous the terms may be.^'^i Acts of mal-administration may 
 be challenged in Court by any one who has a legal interest 
 (either present or contingent) to benefit by the institution s^''^ 
 by any administrator -^^^ and perhaps by the Presbytery of 
 the bounds.26* 
 
 By statute, there are granted, in the first place, to various 
 bodies acting through trustees — such as Friendly Societies^''^ — 
 
 =56 Kay V. Miln, 1830, 8 S. 437. 
 '^ Berwick, 1874, 2 K. 90 (renunciation 
 of lease); Kinloch, 1859, 22 D. 174. 
 
 258 Or. 1.11.5. 
 
 259 Dallas, Styles, 833, 840. 
 
 ™ Edinburgh Town v. Binny, 1694. 
 M. 9107 ; English Rules in Lewin, p. 
 542 ; 2 M'L. on Wills, 392 ; and see 
 Mack. Obs. 369, and Elgin Mags. •;;. 
 Morrison, 1882, 10 R. 342. 
 
 261 Petrie's Trs. v. Ramsay, 1868, 7 M. 
 64. 
 
 262 Arg. from Edinburgh Merchant Co. 
 
 V. Heriofs Hosp., 1765, M. 5750 ; Christie 
 V. Stirling Mags., 1774, M. 5755 ; Bow 
 V. Stirling Mags., 1825, 4 S. 276 (N.E. 
 280) ; Ross v. Heriot's Hosp., 1843, 5 D. 
 589, rev. 5 B. Ap. 37 ; and see Downie, 
 1879, 6 R. 1013. 
 
 262 Macausland v. Montgomery, 1793, 
 M. 2010. 
 
 264 See Perth Mags. v. Black, 1730, 
 1 Pat. 39 ; E. Roxburghe r. Maisondieu 
 Tenants, 1650, 1 B.S. 461. 
 
 265 38 & 39 Vict. c. 60, sect. 16 (2). 
 
• STATUTORY POWEES OF TRUSTEES. S9 
 
 general powers of granting and taking leases, in the Acts which 
 specially regulate the proceedings of the bodies. To these it 
 seems unnecessary to advert further than by suggesting that 
 in every case the Statutes themselves should be consulted. But 
 now also, in the second place, general powers are conferred on 
 all gratuitous trustees^^'' — whether in public or private trusts — 
 by the Trusts Act of 1867 :-"' 
 
 ' In all such trusts, the trustees shall have power to do the following acts, Ordinary 
 ' where such acts are not at variance with the terms or purposes of the P"'''^"'^- 
 ' trust, and such acts, when done, shall be as effectual as if such powers had 
 ' been contained in the trust-deed, — viz. (inter alia), to grant leases of the 
 ' heritable estate of a duration not exceeding twenty-one years for agri- 
 ' cultural lands, and thirty-one years for minerals, and to remove tenants' 
 (sect. 2). Further, ' it shall be competent to the Court of Session, on Specialpowers. 
 ' petition of the trustees under any trust-deed, to grant authority to the 
 ' trustees to do any of the following acts on being satisfied that the same 
 ' is expedient for the execution of the trust, and not inconsistent with 
 ' the intention thereof ; and the Court shall determine all questions of 
 ' expenses in relation to such applications, and where it shall be of 
 ' opinion that the expense of any such application should not be 
 ' charged against the trust-estate, it shall so find in disposing of the 
 ' application;' (inter alia) ' to grant feus or long leases of the heritable 
 ' estate or any part of it ' (sect. 3). 
 
 The application goes to a Lord Ordinary in the Outer House 
 or on the Bills, and proceeds as a petition under the Distribution 
 of Business Act of 1857,^^^ with the like opportunity for review 
 (sect. 16). But 
 
 ' nothing in this Act contained shall be construed as innovating, revok- Saving clause. 
 
 ' ing, or restricting any express powers or directions given to trustees 
 
 ' acting under any trust-deed, . . . and none of the powers and 
 
 ' incidents by this Act conferred or annexed to the office of trustee shall 
 
 ' take effect or be exercised if it is declared in the trust-deeds that they 
 
 ' shall not take effect ; and, when there is no such declaration, then if 
 
 ' any variations or limitations of any of the powers or incidents by the 
 
 ' Act conferred or annexed are contained in such trust-deed, such powers 
 
 ' or incidents shall take effect or be exercised only subject to such 
 
 ' variations or limitations' (sect. 19). 
 
 It may be regarded as settled that the effect of the first of interpretation 
 these sections — applicable to what may be called leases of^'^^^^P™" 
 ordinary administration — is not to give to trustees any new 
 
 25' But see note 2='. ^'^ 20 & 21 Vict. c. 56. 
 
 ««' 30 & 31 Vict. 0. 97. 
 
.luam. 
 
 40 PERSON AL AND OFFICIAL DISABILITY. 
 
 power of leasing where they had it not before, but to enable 
 trustees, who had, either at common law or under the trust-deed, 
 power to lease, to do so for the periods mentioned in the Act. 
 It did not, therefore, enable trustees to lease out an unopened 
 mineral field, where the trust-deed contained no such power. ^^^ 
 In regard to the following section — which authorises the Court 
 to sanction long leases — an opinion (apparently well-founded) has 
 been expressed that such sanction could not be given to a lease 
 for ninety-nine years of a building (not merely a building-stance) 
 where the intention of the truster was that the subjects should 
 remain unlet.^™ But there was no inconsistency with the truster's 
 intention — such as to exclude the Court's sanction — where the 
 trustees proposed to grant an obviously advantageous lease for 
 99 9 years of part of an estate, and the trust-deed only directed 
 that after the lapse of a liferent the trustees were to enter into 
 possession, divide and pay over the proceeds half-yearly till the 
 death of the truster's last-surviving child, and then to sell and 
 divide the price among his grandchildren.^^^ 
 Auciorinrem These powers of trustees to grant leases are in every case 
 subject to the general rule of law that they are not entitled 
 to be auctores in rem suam, — to make profit by their office 
 — as by taking qud individuals, leases granted by themselves, 
 directly or indirectly, qud trustees ; and that if such profit has 
 been made, the lease must be held to have been taken by 
 them for behoof of the beneficiaries, as subject of a constructive 
 trust. 2' 2 
 
 Trustees as (6) As Lessees. — This rule is also one of the few matters requir- 
 
 ing special mention in regard to the powers of trustees to take leases 
 in their fiduciary capacity. It will depend on special circum- 
 stances in each case, whether they are justified in binding the 
 trust-estate by taking a lease at all, or by taking a lease for years 
 few or many, and it would be out of place to attempt to give 
 illustrations by means of hypothetical cases, which could only lead 
 up to the rule that trustees are entitled and bound to do what 
 they can for the benefit of the estate, within the limits set by the 
 intention of the truster, and by the rules of necessary or ordinary 
 
 -''»Wardlawv.CampbeU,supra,25». (The 11 M. 694 (sale); Anderson, 1876, 3 
 
 point did not require to be determined, R. 639 (feu), with Weir's Trs., 1877, 
 
 but the great preponderance of opinion 4 R. 876 ; J.imeeon, 1884, 21 SaL.R. 
 
 was to this effect). See Downie, 1879, 6 541. 
 
 R- 1013. ='' Birkmyre, 1881, 8 R. 477. 
 
 '"" Petrie's Trs., supra, ™i, per L.J.-C. ^72 g^g ^jjg authorities in M'Laren on 
 
 Patten ; of. Hay's Trs. v. Miln, 1873, 'Wills, ii. 112 ; Lewin, p. 180. 
 
FACTORS. 41 
 
 administration. But it is possible and useful to illustrate the Constractive 
 rule of constructive trust, — as has been already done in treating "^"^ ' 
 of tutors and judicial factors ^^ — from actual cases of renewals of 
 lease. Thus, a factor to a landowner's tutor (holding in that 
 way a fiduciary relation to the pupil), in acquiring a lease of the 
 teinds of the pupil's lands, was held bound to communicate the 
 benefit of the lease to the pupil. ^^* A still stronger illustration 
 of the rule is given by a case in which a lease from a liferenter 
 was, on the death of the tenant, taken up by his widow and 
 continued by her in her own name, at first by simple entry of 
 her name in the landlord's rent-roll, and later under an agree- 
 ment for an advance of rent ; and yet it was held that the tack 
 had belonged to her daughters as heirs-portioners of their father, 
 and her representatives had to account for the profits.^'* For 
 like reasons, if a lease be taken by members of a copartnery or 
 by trustees for the partnership, no partner or trustee can by 
 effecting a dissolution of the partnership, or taking advantage 
 of its natural termination a short period before, secure to himself 
 the benefit of a renewal of the lease in his own favour. The 
 lease, if renewed, accrues to the copartnery. ^^^ 
 
 5. Factors, &c. 
 
 The powers of commissioners, factors, and other mandataries Commission- 
 depend wholly on the scope of their mandates — which ought to mandataries, 
 be in writing^"'^- — as gathered from the deed itself,^''^ or by neces- 
 sary implication in conformity with the general rules of agency.^^' 
 Thus, a commission to ' input and output ' tenants empowers the 
 commissioner to let, and there is no implied restriction to leases 
 for a year only ; ^^^ but power to ' output ' relates only to remov- 
 ings. In the old law a factor could not without express powers 
 grant a rental right. ^^^ The duration of leases so granted is not 
 limited by the endurance of the factory. ^^^ The power to grant 
 or take leases falls of course with the factory when recalled or 
 
 "'^ Supra, p. 14, and cases of Wilsons p. 574 ; Featherstonehaugh v. Fenwick, 
 
 V. Wilson, 1789, M. 16376 ; Parkhill v. 17 Ves. Jun. 298. 
 
 Chalmers, 1771, M. 16365, aflf. 2 Pat. "' Cr. 1.7.4; see St. 2.9.3; Ersk. 
 
 291. 2.6.21. 
 
 '^■^ Ludquhairn .. Haddo, 1632, M. "» See the styles in Spots. 302 ; 
 
 9603. Dallas, 812 ; 2 Jur. Styles, 37. 
 
 2" Bee •<,. Wallace's Exrs., 1745, M. ^^^ See Haldane v. Nichol, 1863, 36 So. 
 
 6008. As to proof of trust, see Seth v. Jur. 78. 
 
 Hain, 1855, 17 D. 1117 ; and as to the ^so i Hunter, 180 ; contra, 1 Bell, 
 
 protection of onerous assignees from the Leases, 133. 
 
 trustees, 2 M'L. on WiUs, 115. -'^ St. 2.9.17 ; Bankt. 2.9.41. 
 
 S's 2 B.C. 632 ; Lindley on Partnership, =82 Ersk. 2.6.21 ; contra, Cr. 2.10.1. 
 
42 PERSONAL AND OFFICIAL DISABILITY. 
 
 otherwise terminated, but care should be taken to give due 
 notice to all concerned.^*^ A factor having general power to 
 grant a lease is entitled to modify its terms. ^^* 
 
 283 Heddrington v. Book, 1724, M. =84 Grant v. Sinclair, 1861, 23 D. 
 
 4047. 796. 
 
43 
 
 CHAPTER II. 
 
 LIMITATION OF TITLE. 
 
 There may be an incapacity to grant an effectual lease, arising 
 from limitation or lack of title in any one of three different ways : 
 by want of a properly completed title ; by the diligence of, or by 
 conveyance to, creditors ; and by the co-existence of a conjunct 
 or correlative title. 
 
 I. — Want of Infeftment. 
 
 ' The proper title of the grantor of a lease as heritable pro- Want of 
 ' prietor is an infeftment. Where the grantor is not infeft, the 
 ' lease does not confer an effectual or permanent right, though it 
 ' may be made perfect by the grantor's subsequent infeftment, 
 ' provided no mid- impediment has intervened.' ^ Since 1st 
 October 1874, the status of apparency has ceased to be part 
 of our law ; ^ but this rule holds good whether the heritable 
 proprietor have the personal right which accrues to him by mere 
 survivorship under the Conveyancing Act of 1874;^ or hold a 
 personal service ; * or hold a special service, or adjudication, or 
 disposition, judicial or private, without infeftment. The mid- 
 impediment which will avail to cut down a lease granted by a 
 person in such a position, may be an infeftment taken by an heir 
 of entail, who does not represent the grantor ; by the holder of 
 the fee at the termination of the grantor's liferent ;^ by a pur- 
 chaser from a former owner infeft ; or by a creditor of a former 
 owner infeft adjudging his debtor's estate.^ But whore the person 
 taking infeftment represents in any way the uninfeft grantor, he 
 
 1 B. Pr. 1181. 3 Sect. 9. 
 
 2 37 & 38 Vict. i;. 94, sect. 9 ; ^ See ibid. sect. 31. 
 
 M'Adam v. M'Adam, 1879, 6 R. 1256 ; » Gordon v. Milne, 178n, M. 7008, 
 
 neming's Trs. v. Fleming's Tutors, 1882, 10309 (liferent by reservation). , 
 
 9 K. 1013 ; Main n. Lamb, 1880, 7 R. * B. Pr. au'pra, ^ ; Lowdou v. Murray, 
 
 688. 1752, M. 5270. 
 
44 LIMITATION OF TITLE. 
 
 is not entitled to challenge the lease on the mere head of in- 
 complete title in the granter^ 
 
 Similarly, if the lessor's title (though at the date of the lease 
 unimpeached and unimpeachable) be reduced,^ or, if it never 
 was more than inchoate and eventually was never completed, the 
 lessee's right will fall with it. Of the latter state of facts, there 
 is an apt modem illustration. After missives of sale of lands, 
 the purchaser entered into missives of lease of the minerals. The 
 sale fell through, and a second purchaser obtained from the 
 vendor a disposition containing an assignation by the first 
 purchaser of the missives of lease. The lessees were held not 
 bound, since the lessor never owned the minerals ; the purchaser 
 never agreed to let them ; and the two elements of contract and 
 title could not be combined without the consent of the lessees.® 
 
 II. Conveyance to and Diligence by Creditors. 
 
 (a) Of Lessor. 
 
 1. Bond and Disposition in Security. 
 
 The modern bond and disposition in security leaves powers of 
 ordinary administration unimpaired in the debtor.^" But the 
 clause of assignation of rents, in default of payment of the debt, 
 entitles the creditor to enter into possession and uplift the rents, 
 and to make all necessary repairs on the buildings, subject to 
 accounting to the debtor for any balance of rents actually 
 recovered beyond the debt, interest, penalty, and expenses. 
 Possession is obtained by the lender by means of an action of 
 raaills and duties, which operates as an additional transference 
 of the landlord's rights, the publication of his sasine by registra- 
 tion being insufficient to put the tenants in mala fide to pay to 
 their landlord, whose right is only encumbered, not taken away. 
 So that a heritable creditor in possession can grant leases so 
 long and for such time as he is in possession,^-"^ and to this 
 extent (but no further) Mr. Duff is justified in saying that he 
 may set tacks, whether to the debtor or others, and remove 
 tenants.-'^ The passage on which Mr. Duff founds the more 
 
 ' This was even the case under the old ' Weir v. Dunlop & Co., 1861, 23 D. 
 
 law of apparency, as altered by the Act 1293 (correct the rubric). 
 
 1695, c. 24, after three years' possession, i" 1 Jur. Styles, p. 401 (5th ed.) ; 32 
 
 leases being onerous deeds. Killilung & 33 Vict. c. 116, sects. 6, 7 ; and Sched. 
 
 Tenants, 1760, 5 B.S. 877; Knox v. FF. to 31 & 32 Vict. c. 101. 
 
 Irvine, 1759, M. 5276 ; Keay v. Marquis, '' 2 Bell's Convg. 1077. 
 
 1804, Hume 434. 12 Duff, Feudal Conv. pp. 274 and 
 
 8 Maoniven v. Murray, 1847, 9 D. 1138. 276. 
 
HERITABLE SECURITY. 45 
 
 extensive power is only an observation from the Bench that an 
 heritable creditor on entering into possession is to be viewed as 
 the proprietor, leading up to the doubtful doctrine that it would 
 therefore be unreasonable to allow a charge in name of factor-fee, 
 or for any trouble undertaken in that capacity.^^ 
 
 In a case where an heritable creditor infeft on a bond and special power 
 disposition in security, containing power to output and input ^^J'^g^*''':*'' 
 tenants, had obtained a decree in an action of maills and duties, 
 and levied the rents under it, no doubt was felt that he was 
 entitled, on the ground of the special power, to pursue a summary 
 process of removing,^* and the only questions (which did not 
 require decision) were, whether, in such a case, decree of maills 
 and duties was necessary, and whether the power extended to 
 granting leases of ordinary duration. 
 
 In a case finally decided on specialties, the Lord Ordinary ^ot to oust 
 (Rutherfurd) decided that an heritable creditor was not entitled *® debtor, 
 to enter into possession to the effect of ousting the proprietor 
 himself, and letting the lands as if they had been conveyed to 
 him with a proper term of entry and an obligation by the disponer 
 to remove, his only remedies being action of maills and duties, 
 sale, and poinding of the ground. ^^ He cannot do so by a 
 summary removing before the sheriff though he have special 
 powers to ' output possessors.'^® 
 
 2. Absolute Disposition with Back-hond. 
 
 The form of security known as absolute disposition with back- creditor in 
 bond or back-letter has very different effects. It confers a possession, 
 right of property, completed by infeftment and qualified only by 
 a personal obligation of the disponee to denude in a certain event. 
 It entitles the disponee to administer the property, and inter 
 alia to grant leases on such conditions and for such duration as 
 he pleases, so long at least as they are not fraudulently con- 
 ceived. But if, as is ordinarily the case, the disponer is, either or not. 
 by express stipulation in the back-letter or by tacit understand- 
 ing, left in full possession and control of the subjects, neither the 
 disponee nor his trustee in bankruptcy or other representative 
 can object to leases granted by their debtor, in bond fide, in 
 course of ordinary administration, and not having the character 
 of alienations in the narrower sense of the word.^'' 
 
 1' Crs. of Kildonan v. Douglas, Heron probably proceeded on fraud. 
 
 & Co., 1785, M. 14135 ; see 2 Bell's ^6 M'Farlane v. Campbell, 4th March 
 
 Cnnvg. 1076. 1857, 19 D. 623. 
 
 " Forsyth v. Aird, 1853, 16 D. 197. " Abbot v. Mitchell, 1870, 8 M. 791 ; 
 
 1= Blair v. Galloway, 1853, 16 D. 291. B. Pr. 912, and cases there. 
 Mitchell V. Little, 1820, Hume 661, 
 
46 LIMITATION OF TITLE. 
 
 3. Inhibition. 
 
 Inhibition. ' Inhibition does not deprive a debtor of the management of 
 
 ' his lands. It therefore does not affect a tack of them though 
 ' granted after the inhibition, if it is a fair and honest tack for 
 ' an adequate rent and an ordinary term of years. But it is 
 ' otherwise with regard to any tack of an opposite description, 
 ' such as impairs the inhibiting creditor's security and lessens the 
 ' value of the debtor's lands if they shall be adjudged or brought 
 ' to a judicial sale.'^^ "Where the lease was of a duration longer 
 than ordinary, stipulated for a rent very inadequate, anticipated 
 the ish of a current tack, and contained such a power to cut ripe 
 copse wood as was usually in the right of a proprietor only, it was 
 ruled that ' the said tack is such a species of alienation as to be 
 ' struck at by the pursuer's inhibition. '^^ And a lease granted in 
 consideration of a sum of money advanced in name of grassum, and 
 of a certain rent, for repayment of which the tenant was allowed 
 to retain the whole of the rent, was found to be affected by inhibi- 
 tion, being not a proper administrative lease, but an attempt to 
 obtain in the form of a lease a security for debt which a 
 creditor could not have obtained directly by the voluntary act of 
 the debtor or by legal diligence.^" Inhibitions now take effect 
 from the date of the registration of a statutory notice in the 
 register of inhibitions, or failing that, from registration of the 
 inhibition itself and the execution thereof.^-"^ 
 
 4. Adjudication. 
 
 The effect of adjudication upon powers of leasing depends upon 
 the doctrine of litigiosity. Litigiosity which used to take effect 
 from citation upon a summons of adjudication as being equivalent 
 to denunciation upon the old letters of apprising^^ now begins 
 with the registration of a statutory notice of the summons in 
 the register of adjudications.^' It is no defence that the lessee, 
 whose right began after litigiosity supervened, was another 
 creditor;^* or that the sum adjudged for was small ;^5 or 
 
 18 Per Baron Hume in E. of Breadal- ^i 3^ ^ 32 Viot. c. 101, sect. 155. 
 
 bane v. M'Lauchlan, 1802, Deois. 242; ^^ Ersk. 2.12.16 and 41; Karnes, Equity, 
 
 and see 2 B.C. 151 ; Ersk. 2.11.2, and 445 ; 1692, 0. 19; Mack. Obs. p. 460 ; L. 
 
 Note (by Ivory) 318 ; St. 2.9.43, art. Cardross v. Colville, 1682, M. 77 ; Crioh- 
 
 1, llote (by Brodie) ; More's Notes, 425 ; ton v. Anderson, 1684, M. 79. 
 
 B. Vt. 1185 ; Eandeane -o. Ballegerno, ^' 31 & 32 Vict. c. 101, sect. 159. 
 
 16U3, M. 7016; Gordon •.-. Milne, 1780, =4 ^ ^_ £__ ^q^q^ -^ gg^g^ j^ ^ -^^^ 
 
 M. 7008. Die. 557, the word ' selling ' is used in 
 
 1' E. Breadalbane v. M'Lauchlan, ^. place of ' setting.' 
 
 ^'' Wedgwood v. Catto, 13th Nov. 25 Gardin, 1627, M. 8375. 
 1817, E.G. p. 386. 
 
ADJUDICATION : BANKRUPTCY. 47 
 
 that the landlord was under no other diligence at the time.^" 
 The date to be looked to in judging of a competing tenant's 
 preference is the date of his entry into possession.^'' And the 
 adjudication, in order to have full effect, must he timeously and 
 lawfully followed forth. ^^ 
 
 An adjudger cannot grant a lease to endure beyond the term 
 of his own right. 
 
 5. Ranking and Sale. 
 
 The rules in regard to the granting of leases by a landlord 
 pending a process of ranking and sale of his estate (now nearly 
 obsolete) may be gathered from a collation of the cases. ^^ 
 
 6. Insolvency or Bankruptcy. 
 
 Insolvency, or even bankruptcy, does not abrogate the power Bankrupt 
 of the proprietor to grant a lease ; and a bankrupt landlord, if leases, 
 the trustee in his sequestration declines to make up a title or to 
 interfere in any way with the subjects, is entitled at the expira- 
 tion of the lease to bring an action of removing.^" 
 
 But the insolvency or bankruptcy of a lessor may, under the Effect of 
 Statutes 1621, c. 18, and 1696, c. 5, raise questions relative to OT^bank^"^ 
 the validitj'^ of leases. The insolvency of the landlord is not a vaUditv'of 
 ground for cutting down his leases, but if the lessee be a conjunct leases. 
 or confident person, and the deed be granted without a true, just, 
 and necessary cause, to the prejudice of prior creditors, and the 
 granter be insolvent and was so at the time of making the deed, 
 it is reducible.^^ The second branch of the earlier statute, is 
 also applicable, which authorises the reduction of all voluntary 
 deeds granted by an insolvent to persons cognisant of his insol- 
 vency, after such diligence shall have begun as law has appointed 
 for attachment of the subject conveyed.^^ But bankruptcy does 
 not render invalid a lease just and fair in itself, and not coming 
 under the operation of the Act 1696, c. 5, as altered by the 
 Sequestration Statute, 1856, sect. 7, and the Debtors' Act, 1880 
 (43 & 44 Vict. c. 34), sect. 6. The generality of the terms 
 of the leading statute includes leases. If, therefore, a lease 
 
 =6 Blackburn v. Gibson, 1629, M. ings v. Threipland, 1778, M. 8383 ; rev. 
 
 8378. 2 Pat. 496 ; CampbeU v. SiUer, 1785, M. 
 
 " Wallace V. Harvie, 1627, M. 67 15223 ; Lord Cranstoun's Crs. v. Scott, 
 
 and 15228 ; Maxwell v. Tenants of Glas- 1756, M. 15218 ; Stewart v. M'Ra, and 
 
 sock, 1630, M. 15215. Stewart v. Campbell, 1834, 13 S. 4, 7. 
 
 =8 Blackburn, supra, ^6 ; Crichton v. ^ King v. Wieland, 1858, 20 D. 960. 
 
 Anderson, 1 684, M. 79. The rule would extend to extraordinary 
 
 -0 Carlyle v. Lowther, 1766, M. 8380 ; removings. 
 
 York Buildings v. Fordyce, &c., 1778, ^i 2 B.C. 186 ; Gondy, 44. 
 
 M. 8380 ; aff. 2 Pat. 500 ; York BuUd- ^^ 2 B.C. 199 ; Goudy, 58. 
 
48 LIMITATION OF TITLE. 
 
 should be granted subject to the statutory objections, it is 
 reducible.^^ 
 Sequestration. In the Sequestration of a landlord's estate it may happen that 
 an immediate sale of the bankrupt's property would be attended 
 with great loss ; or it may be impracticable to sell it at all to 
 advantage, and therefore it may become necessary to adopt a 
 course of management. If the creditors resolve to take up the 
 heritable property, the power of leasing, under the rules ordinarily 
 applicable to administrators, necessarily belongs to the trustee. 
 In particular, he must have the power, upon the expiration of a 
 current lease, to grant a new lease, as this may be necessary 
 towards an advantageous sale. As the administrator of the 
 estate, and the organ of the body of creditors, the act of the 
 trustee as a lessor will bind the creditors. But, although not 
 indispensable, it may be right for the lessee to obtain the 
 consent of the commissioners. 
 Trustee's A trustee in a sequestration who takes possession of the bank- 
 
 iiabiiity. rupt's heritable estate renders himself liable in implement of the 
 
 prestations due under the lease by the landlord to the tenant 
 in occupation of the land, at least to the extent of the rents 
 received by him as trustee from the estate.^* And he will be 
 bound by an agreement made by the landlord in the fair admin- 
 istration of the property, such as an agreement for an abatement 
 of rent.^'' 
 
 (6) Of Lessee. 
 Attachment of A lessee's power to sublet or assign, if such be vested in him 
 transmit ™^y ^® affected by inhibition, adjudication, or sequestration.^* 
 An inhibition has no effect against a renunciation, if the renun- 
 ciation is only a recognition by the tenant that the lease has by 
 law or compact come to an end. If the lease excludes assignees 
 and sublessees, inhibition does not secure it to the inhibiting 
 creditor, nor compel the lessee to put in a manager.^'' 
 Adjudication. Adjudication is the active diligence appropriate to all heritage, 
 and therefore to the right of lessees. All leases are adjudgeable 
 (even those which, being agricultural leases of ordinary endur- 
 ance, are not assignable),^* unless assignees are expressly excluded, 
 or unless there be a special exclusion of adjudgers or other 
 
 '' 2 B.C. 108-10 ; Goudy, 85. Hume 778. The mode of rendering long 
 
 ^ Harvie v. Haldane, 1833, 11 S. 872. leases effectual as security for debt is 
 
 ^5 Lindsay v. Webster, 1841, 4 D. 231. described infra, chap. ix. 
 
 '« The right to a lease cannot be af- 37 Eraser v. M. of Abercorn, 1835, 14 
 
 feoted by heritable bond, that being a S. 77. 
 
 form of security only applicable to feudal '8 jj^ck. 2.6.7; Ersk. 2.8.8; 1 B.C. 
 
 e.state — Grieve, &e. v. Grieve's Crs., 1790, 77. 
 
ENTAIL. 49 
 
 creditors. And if the exclusiou of assignees contain an excep- 
 tion in favour of such as the landlord shall approve, the right to 
 withhold approval, and therefore exclude adjudication, is absolute.^" 
 Lastly, an assignation or sublease may fall under the Bankruptcy 
 Acts 1621, c. 18, and 1696, c. 5, in the same way as a lease 
 by a proprietor. 
 
 III. — Co-Existence of a Conjunct or Correlative Title 
 IN ANOTHER Party. 
 
 This sort of disability includes the cases of entail, fee and 
 liferent, common property, and leasehold. 
 
 4- Entail. 
 
 A strict entail is the only mode of restricting a fiar, who is in subjects of 
 the sole possession as such of heritable property, in the enjoy- ^"**''- 
 ment thereof, over and above the limitations of user which bind 
 all proprietors through the law of neighbourhood. It may extend 
 over all feudalizable subjects, whether held feu or burgage, build- 
 ings, teinds, salmon fishings, reversions, adjudications, the radical 
 right remaining to a debtor after granting a trust-deed, and 
 over 'pro indiviso shares of a feudal subject ; but not over 
 unfeudalizable subjects such as leases.^" The heir of entail in 
 possession is not a liferenter but a limited fiar, restrained by the 
 fetters of the entail, but no further. 
 
 It is now necessary to a strict entail that all the three cardinal Restraint on 
 prohibitions — necessary to keep the estate together and in the ^li^"**'*)"- 
 line of succession- — should be present, properly fenced by irritan- 
 cies and resolutive clauses,*^ either expressly in the deed of entail 
 itself, or by means of the clause authorising registration of the 
 deed in the register of tailzies, which is the modern equivalent.*'^ 
 The only prohibition which it is necessary to notice here is that 
 which strikes against alienations. For every lease is an aliena- 
 tion,*^ and the main interest of modern entail law lies in 
 observing in what way, under what conditions, and how far the 
 Court and the legislature have relaxed the strict law which 
 
 ^ D. of Buocleuoh v. Elliot, 1747, M. *> Cases collected in Eankine, Land- 
 
 10329-35, Elch. Tack, No. 12, 5 B.S. ownership, p. 570. 
 
 618, note ; Hepburn v. Mossman, 5 B.S. *' 11 & 12 Viet. c. 36, sect. 43. 
 
 618 ; Cunninghame & Co. v. Hamilton, *' Ibid. sect. 39 ; 31 & 32 Vict. c. 101, 
 
 1770, M. 10410, Hailes 369. (A vague sect. 14. 
 
 doubt was suggested whether the land- ** Bontine v. Bontine, 1864, 2 M. 
 
 lord by himself adjudging might not let 918, per LI. Deas and Curriehill (I.) ; and 
 
 in other adjudgers within year and day, per L. Chan. Eldon in 2 Dow 213. 
 but see last case). 
 
50 
 
 LIMITATION OF TITLE. 
 
 'Dispone,' — 
 ' put away.' 
 
 Relaxations. 
 
 In the entail 
 itself. 
 
 Long leases by 
 heir of entail 
 valid, unless 
 prohibited by 
 entail. 
 
 created intolerable disabilities in the working of this prohibition 
 and its fellows. 
 
 It is necessary to premise that the outcome of an immense 
 mass of legal disputation and philological research has been to 
 establish as equivalents to the expression ' alienate,' as employed 
 in one of the cardinal prohibitions ;, the other expressions 
 frequently to be found therein, alone or in conjunction — viz., 
 ' dispone,' ** and ' put away ' (dilapidare),^ and that each of 
 these expressions therefore strikes at leases. 
 
 The relaxations which were necessary in order to reconcile the 
 lawful wishes of the entailer with the plain interests of the 
 community have proceeded along three lines. 
 
 I. They were sometimes contained in the deed of entail itself. 
 And then the rule in favour of the freedom of ownership opened 
 the way to a construction as ample as the relaxing or empowering 
 words would fairly bear. Thus, where there was a clause per- 
 mitting leases in certain specified terms, or for such space of time 
 as they (the heirs) should think fit, a lease for 999 years, with a 
 grassum, was sustained, although it was argued that the per- 
 missive clause had reference exclusively to leases limited to those 
 periods which in law did not amount to alienation.** There was 
 a condition fixing a minimum rent; but so long as that condition 
 was not broken, a grassum might be taken, without any obliga- 
 tion to invest it for behoof of the heirs in succession.*^ Where 
 the only restriction was that it should not be lawful for tlie heir 
 in possession ' to grant tacks or rentals of the same for any longei- 
 ' space than the granter's lifetime, at least not to set any tacks 
 ' or rentals thereof in diminution of the rental, directly or 
 ' indirectly, longer than the said space,' the Court was of opinion 
 that the entire prohibition was contained in the words following 
 ' at least.' *^ But a special restriction will not be read as a 
 relaxation to the effect of liberating the heir in possession on 
 account of its not being properly fenced, and of its being the 
 only bar to liberty of leasing, provided the general prohibition 
 against alienation be effectually guarded.*^ 
 
 ■" D. of Queensberry's Exrs. v. D. 
 Bucoleuoh,7th Marohl816,r.C.105; rem. 
 ,=; Dow, 293 ; 5th Feb. 1818,F.C. 466; rev. 
 1 Bligh 339, 6 Pat. 465, 548, and authori- 
 ties referred to in Sess. papers and appeal 
 oases there ; and Keay v. Marquis, 1804, 
 Hume 434. 
 
 *" Mordaunt v. Innee, 9th March 1819, 
 F.C. 679 ; aff. 1 Sh. Ap. 169, and authori- 
 ties there. 
 
 ■«' 1 B.C. 68 ; Sandf. on Ent. 305-6 j E. 
 Elgin V. Wellwood, 1821, 1 S. App. 44. 
 
 '■'' Wellwood 0. Monorieff, 1823, 2 S. 
 475 (N.E. 423). 
 
 * Keay v. Marquis, 1804, Hume 434. 
 
 *' Anstruther v. Anstruther, 1840, 3 
 D. 142 ; aff. 2 Bell's App. 242 (19 years) ; 
 see also Bontine v. Bontine, 1864, 2 M. 
 918 (two lifetimes, or 19 years + onje 
 lifetime). 
 
ENTAIL : LEASES OF ORDINARY ADMINISTRATION. 5 1 
 
 II. Apart from statute, the Court has recognised — and all the Leases of ordin- 
 cases which occupied so much of its time and of that of the House ti^* ™'"° ™ 
 of Lords, about the end of last and the beginning of the present 
 century, proceeded on the footing — that leases of ordinary 
 administration, of the usual endurance and containing no stipu- 
 lations framed for the purpose, or with the result, of giving the 
 granter a greater benefit than his successors, are valid, on the 
 ground that they are not alienations in the narrower sense of the 
 word, but contracts necessary for reaping the full fruits of the 
 subject.*" The determination of what is and what is not an what are such, 
 ordinary lease depends to a large extent on the nature of the 
 subject let. Most of the illustrations of the doctrine are, of 
 course, drawn from agricultural leases. In treating of what may, 
 by a convenient though somewhat inaccurate phrase, be called 
 the common law powers, it will be necessary to refer to such 
 statutory relaxations as amend the law without falling under 
 the category of statutory powers. 
 
 (1) First as to duration. 
 
 In one case, in which a lease for a thousand years was reduced Leases of un- 
 as an alienation, the judgment affirming proceeded upon the 
 ground that it went against a prohibition to let in diminution of 
 the ' true worth and rental,' having been granted for a rent lower 
 than that paid at the expiration of the previous lease ; and it 
 was therefore unnecessary to determine whether it was liable to 
 reduction on any other ground.^^ But its invalidity, by reason 
 of duration alone, is undoubted, because leases for periods much 
 shorter have, on that ground, been set aside as alienations. A 
 lease of a portion of a loch for three hundred years was helil 
 invalid under a prohibition to dispone.*^ A lease for a hundred 
 years, although there is no case in point, has always been justly 
 considered excessive.'^ Leases for ninety-nine years,** ninety- 
 seven years,** seventy-six years and the lifetime of the tenant in 
 possession at the expiration of that period,*® seventy-seven 
 
 « 1 B.C. 69 ; E. Wemyss 1-. D. Queens- St. 2.3.59, Note (by Brodie), p. 271; 
 
 berry's Exrs., 1822, 1 S. 483 (N.E. 449); Karnes' Eluc. 358 ; v. , 
 
 E. CassiUs v. M'Adam, 1806, M. Tack, 1752, 5 B.S. 797. 
 
 Appx. 14 ; Sandf. 301 ; Mora's Notes, " Malcolm v. Henderson, 1807, M. 
 
 185. Tailzie, App. 17 ; aff. 2 Dow 285. 
 
 =1 Turners v. Turner, 1807, M. Tailzie, '^ D. of Queensberry v. E. Wemyss, 
 
 App. 16 ; aff. 1 Dow 423, 5 Pat. 758. 1807, M. Tailzie, App. 15, Buch. Rem. Ca. 
 
 =2 Stirling v. Dunn, 1827, 6 S. 272 ; 408 ; aff. 2 Dow, 90-124, 206-15 ; 5 Pat. 
 
 aff. 3 W. and S. 462 ; cf. Hamilton v. 758. 
 
 M'Dowal, 3rd March 1815, F.C. 302. ^ Mordauntr. Innes, 9th March 1819, 
 
 ^ 1 B.C. 69 ; Sandf. on Ent. 294 ; F.C. 679 ; aff. 1 S. App. 169. 
 
52 LIMITATION OF TITLE. 
 
 years,*" sixty-six years,*^ fifty-seven years,*^ forty years,''" and 
 thirty-one years have also been held invalid." In some of these 
 cases the purpose of the lessor was further ascertained by the 
 fact that he stipulated for a grassum. 
 Liferent leases. Though there is no decision on the subject, it may be regarded 
 as certain that liferent leases are leases of unusual duration,^^ 
 since they are regarded in law as importing a right more per- 
 manent and more nearly approaching to property than leases of 
 ordinary duration, and in common with leases of definite but 
 unusual duration, imply, in the absence of an express prohibition, 
 the power of assigning and subletting,^^ and fall under the 
 liferent, not the single, escheat.** 
 Invalid in toto. The question has never been determined whether a lease whose 
 fKccTtm? only blot is excessive duration be good for a period restricted to 
 the ordinary endurance, or to the term allowed by the entail. In 
 one case, the Court of Session refused to restrict on the ground 
 that the lease was otherwise objectionable, and the House of 
 Lords gave no opinion on the hypothetical question f^ in another, 
 the lease embraced the whole rights of ownership, except the 
 right of voting as a freeholder ; ^ and in a third case, there was 
 a grassum. ^'^ The opinions of the best writers differ.®* Bxit 
 aid may be obtained from the opinions of the Court in a case 
 where the entail allowed of leases for twenty-five years — evidently 
 the limit of leases of ordinary administration — and the heir granted 
 a lease for ninety-nine years. The refusal of the Court to allow a 
 restriction to the shorter period was founded on the fact that the 
 object of the lease was to enable the lessee to erect a considerable 
 building on a small piece of ground; in short, that it was a build- 
 
 •'' Elliot «. Pott, loth March 1814, F.C. note to 5; St. 2.4.62, 2.9.24; Mack. 
 
 .588 ; rev. 1821, 1 S. App. 16, 89. 2.5.25, 26 ; Obs. 352 ; Bankt. 2.4.40 ; 
 
 •'8 Turner v. Turners, 6th Dec. 1811, 2.9.46; Ersk. 2.5.61, 66, 68, 70; Sandf.on 
 
 F.O. 363. Ent. 303 ; Stat. 1617, c. 15 ; supra, p. 18. 
 
 '"' E. Wemyss v. D. of Queensberry «5 j; Wemyss r. Murray, 17th Nov. 
 
 and Welsh, 25th May 1813, F.C. 298 ; aff. 1815, F.C. 8, aff. 1 Bligh, 339, 6 Pat. 
 
 1 Bligh, 339 ; 6 Pat. 465, 551. 465, 551. 
 
 «" Malcolm v. Bardner, 1823, 2 S. i"' Mordaunti'. Innes, 9th March, 1819, 
 
 410 {N.E. 366). F.C. 679 ; aff. 1822, 1 S. App. 169 ; vide 
 
 ^ Stirling v. Walker, 20th Feb. 1821, 2 S. 32 (N.E. 28) ; and Inues v. Duke of 
 
 F.C. 279. Gordon, 1827, 6 S. 279. 
 
 "- Balfour, 203; 1 Craig x. 5 ; 2 Ross' ^7 Malcolm v. Bardner, supra, <». In 
 
 Lect. 484. Forbes ?. Wilson, 1873, 11 M. 454, the 
 
 ^ St. 2.9.26, Note vi. (by Brodie) ; question was treated as difficult, and did 
 
 Mack. 2.6.7; Bankt. 2.9.11, 46 ; Ersk. not require to be decided. 
 
 2.6.32 ; 2 Ross' Lect. 484 ; 1 B.C. 77 ; >» 1 B.C. 70 ; Sandf. on Ent. 303 ; St. 
 
 Sandf. on Ent. 303 ; Hume r. Craw, 1637, 2.3.59, Note (by Brodie), p. 272; 1 
 
 M. 10371 ; BuSv. Fowler, 1 672, M. 10282. Hunter, 103 ; B. Pr. 1762; 1 Bell, Leases, 
 
 ^ Hope's Min. Prac. vii. 2.5, and 129. 
 
ENTAIL : LEASES OF ORDINARY ADMINISTRATION, 53 
 
 iug-lease, not an ordinary agricultural tack.*' But it may be 
 permitted to take more general ground, and submit'" that the 
 Court would here, as in other cases of contract, decline to reform 
 the agreement of parties, especially where the term requiring 
 alteration is inter essentialia, and affects the frame of the whole 
 transaction in the most intimate way ; on the same principle as 
 it would decline to validate a lease illegal on account of a grassum 
 by distributing the fine all over the lease proportionally as 
 increased rent.'^ And the contrary proposition is nowise helped 
 by a decision supporting a lease, nominally too long, but really 
 within the permissible limit, counting from its date ; "^ nor by 
 another case in which it was thought that a valid deed by an heir 
 of entail could stand by itself, though a gratuitous alienation, 
 granted at the same time but quite separable, were cut down, the 
 other party making no objection to the severance.''^ Yet a lease 
 in which alternative periods of duration are stipulated for, the 
 shorter period or periods to come into operation in the event of 
 the longer periods being found to be ultra vires, is a legal contract, 
 and will be enforced.'* 
 
 In order to cut down a lease it is not sufficient to show that it Renunciation 
 was granted by a former heir in possession after accepting a renun- new Uase.^ 
 elation of a current lease provided the succeeding heirs be not 
 injured by fraud or gross negligence in negotiating for the new 
 lease,'^ or that it was granted pending, and to commence at the ish 
 of, a current lease, provided the one ends and the other begins 
 during the grantor's possession. But at common law. If a new 
 lease be granted to commence upon the expiration of a current 
 lease, the new one will be invalid against a succeeding heir,'* or 
 ajrainst a singular successor, if the estate be sold," should it not 
 be followed by possession before the succession opens to him. 
 Without possession a lease is not a real right, and therefore not 
 obligatory upon an heir taking only under the entail. But the 
 
 ■» MiUer v. Carrick, 1867, 5 M. 715 339 ; 6 Pat. 465 ; 1 Sh. 483 (N.E. 449). 
 
 £<3iss. L. Curriehill (L)]. ™ B. Pr. 1752; More's Notes, 186 ; M. 
 
 "" 1 Hunter, 103. Queensberry v. Exrs. of D. of Queens- 
 
 "' D.of Queensberry 's Exrs. and Hyslop berry, 15th Nov. 1815, F.C. 1, aff. 6 Pat. 
 
 V. D. of Buccleuch, 6th July 1820, F.C. 651. 
 
 164, aff. 1821, 1 S. App. 59, 64; E. '« Redhead ». Kerr, 1792 ; Bell's Gel. 
 
 Wemyss i: Exrs. of D. of Queensberry Ca., rev. 3 Pat. 309 ; Downie v. Camp- 
 
 and Murray, 2nd Feb. 1821, F.C. 256. bell, 3l8t Jan. 1815, F.C. 182, overruling 
 
 "AgnewD.Macniven, 23rd June 1813, Campbell v. Love, 1772, M. 16519, 5 
 
 F.C. 400 ; 1 B.C. 70 ; Sandf. on Ent. 303. B.S. 622. 
 
 '3 Cleland v. Morrison, 1878, 6 K. 156. ^ E. of Aberdeen v. Farquhar, 1731, 
 
 '* E. Wemyss o. D. Queensberry's in Sandf. on Ent. p. 332 (homologation by 
 
 Exrs., 17th Nov. 1816y,F.C. 8 ; 1 Bligh, receipt of rent not admitted). 
 
54 LIMITATION OF TITLE. 
 
 granter or his personal representatives may be liable in damages . 
 to the lessee. '^^ The impolicy of thus leaving to the last moment 
 the rearrangement of the possession of subjects in use to be let, 
 produced a relaxation of the rule, first in regard to Montgomery 
 leases, which might be granted at any period within one year of 
 the determination of an old lease.'^^ And now, in regard to all 
 leases current for a term of not less than seven years, the heir in 
 possession may ' at any time, within two years previous to the 
 ' expiration of such lease, grant a new lease at a fair rent, to 
 ' commence at such expiration, and if such heir in possession 
 ' shall die before the commencement of the new lease, it shall be 
 ' as valid as if he were still alive,' subject to the sanction of 
 nullity, if a grassum or if less than the fair rent be taken.^" 
 Fair rent. ^2) At a Fair Rent. — If the rent be so materially inadequate 
 
 as not to be a fair rent at the date of granting (which is the 
 point of time to be looked to in making the estimate), the lease 
 will be reducible. Thus, a lease of lands which was granted by 
 an heir of entail in implement of an agreement entered into 
 seventeen years previous to its date, fell under this rule, in spite 
 of the fact Cwhich was regarded as irrelevant) that the tenant had 
 erected a dwelling-house at an expense much greater than was 
 necessary for a farm-house and steading suitable to the lands.^^ 
 The rent may be unfair, either by unnecessarily being lower than 
 the former rent,^^ or by being stationary when a higher rent 
 might have been safely obtained. In either case, there must be 
 ' some unfairness, some fraud, or some gross culpable negligence 
 ' operating as mischievously as fraud.' *^ This element of fraud 
 will be evident on the face of the transaction, if in order to make 
 provisions to children or to liquidate debt a lease be granted to 
 a confidential person at a low rent, with power to sublet, and 
 under obligation to repay the surplus thereby obtained. Such 
 a lease may be reduced at the instance of a succeeding heir,'* 
 and the confidential person or trustee interposed will be bound 
 to account to him for the surplus rents effeiring to the period 
 subsequent to his succession.^^ The same element of fraud on 
 
 ?8 Downie v. Campbell, supra, '">. M. 15450 ; Sandf. on EntaUe, 3IS. 
 
 ™ 10 Geo. III. c. 51, sect. 7. *' Per L. Eldon in Ms. Queensberry 
 
 8" 45 & 46 Vict. c. 53, in pursuance of v. D. Queensberry's Exrs., 1820, 6 Pat. 
 
 the same policy as in the Agricultural 551. 
 
 Holdings Act, 1883 (46 & 47 Vict. c. 62, ^ D. Hamilton v. Waring, 1820, 2 
 
 sect. 28). Bligh 196, 6 Pat. 644 ; L. Elibank r. 
 
 *' Gray v. Skinner, 10th June 1854, 16 Hamilton, 1827, 6 S. 69, overruling Mac- 
 
 D- 923. gill i: Law, 1798, Sandf. on Entails, 320. 
 
 '^Opinions in Elliot v. Currie, 1798, ''^ Justice r.itoss, -1829, 8 S. 108. 
 
;ENTAIL : GKASSUM. 55 
 
 the entail would be obvious on the face of a transaction by which 
 the rent should be stipulated to diminish as the lease went on, 
 or after a certain number of years, or after the lessor's death. 
 
 The common law, as thus stated, is frequently summed up in 'Below just 
 old entails by a prohibition against letting ' below the just rent 
 ' or avail for the time.' Whether the other formula insisting on < without 
 letting 'without diminution of the rental [or rent] ' ^^ means ^^™j^^*}T 
 anything more and prohibits the acceptance of a lower rent than 
 that of the current lease in any circumstances, has never been 
 determined, probably on account of the almost continuous 
 prosperity of the landed interest tUl within recent times. And 
 now, ' notwithstanding any prohibition contained in any deed of 
 ' entail against granting leases unless such leases are without 
 ' diminution of rental, it shall be lawful for any heir of entail in 
 ' possession of an entailed estate to grant leases for such period as 
 ' it may be otherwise competent for him to do at a fair rent,' 
 under sanction of nullity if a grassum be taken, or the rent be 
 less than a fair rent.^'' But Montgomery leases can still only 
 be granted ' for a rent not under the rent payable by the last 
 ' lease or sett.' ^^ 
 
 (3) Without Grassum. — A grassum is a sum of money paid or Grassum. 
 promised to the lessor, besides the periodical rent, and necessarily 
 effecting a diminution of that rent.*^ Grassums were originally 
 deemed the distinguishing marks of that species of leases called 
 rentals,^ but were afterwards adopted by the proprietors of 
 entailed estates, either in order to create a fund of credit for the 
 direct benefit of the granters, or as the means of making pro- 
 visions for their widows and children, who, by reason of the 
 limitations, would otherwise have been very scantily provided 
 for.^^ In the earlier cases in which doubts were raised as to the 
 legality of the heir taking to himself a benefit which he did not 
 share with his successors, the question did not require to be 
 decided. In one case, the succeeding heir, instead of reducing, 
 adopted the contract by getting for his own behoof the bonds 
 and bills taken by his predecessor as securities for future rents. "^ 
 
 8« 1 B.C. 73 ; Sandf. on Entails, 305 ; *> Cr. supra, «>, compared with 2.9.34 ; 
 
 Ersk. 3.8.29, note ; St. 2.3.59 ; Queens- St. and Mack, sujira, ^ ; Bankt. 2.9.45. 
 
 berry Cases, passim, esp. 6 Dow 293 ; »■ Ersk. 2.6.37 ; 1 B.C. 73 ; Sandf. on 
 
 1 Bligh, 339, 534 ; 6 Tat. 465, 548, 551 ; Ent. 312, note + ; 1 Bell, Leases, 127, 
 
 Christiei). M'Donald,1870, 7 Sc.L.R.180. note (6). 
 
 8' 45 k 46 Vict. c. 53, sect. 8. ^^ Denham v. Wilson, 1761, M. 15512, 
 
 "^ 10 G«o. III. c. 51, sect. 7. as explained by Lords Eldon (C.) and 
 
 '*» Balfour, 203 ; Cr. 2.10.4 ; St. 2.9, Redesdale, in D. Buccleuch v. D. Queens- 
 
 16, 17, and 20 ; Mack. 2.6.9 ; Ersk. 2.6.37. berry's Exrs., 1 Bligh 464, 507. 
 
56 LIMITATION OF TITLE. 
 
 In another case,^^ there was a power to grant leases on whatever 
 terms the heir in possession thought proper. In a third case,®* 
 there was a good plea of personal bar. In a fourth case,'* the 
 point was avoided. But in all of these cases, down to the end of 
 last century, the general opinion, on the Bench as elsewhere, 
 seems to have been strongly in favour of a power which, while 
 liable to gross abuse, might enable an heir in possession to 
 temper the rigour of the law of entail in its effect on members 
 of his family as dear to him as his eldest son. But the celebrated 
 litigations, known as the cases of the Queensberry Leases, arising 
 out of a flagrant misuse of what was at the time believed to be 
 a general power of heirs of entail, involved the whole system of 
 granting leases with grassums in a common ruin. For it was in 
 the end determined, after many years of litigation,®^ that a grassum 
 is anticipated rent, and therefore that a lease made upon a 
 grassum paid to the granter is an alienation pro tanto of the 
 rent ; ®" that a power in an entail to make leases ' without 
 ' diminution of the rental, at the least at the just avail for the 
 ' time,' means, at the fair value at the time of leasing, not at the 
 last rent, which may have been fixed at a period much anterior, 
 (rental in that clause being the same in construction as rent) ; ^ 
 that the heir in possession, by taking a grassum, effects a 
 diminution of the rental, and does not take the just avail for the 
 time f^ that numerous leases granted by the heir in possession 
 for his own benefit and to the prejudice of the succeeding heir, 
 operate as a fraud upon the entail ■^'^ that all leases open to 
 these objections, or any of them, are liable to be set aside ; and 
 that the existence of a grassum may vitiate not only the lease at 
 whose commencement it was stipulated for, but any new lease 
 substituted for it during its currency,^"^ or even a third lease 
 similarly substituted for the second during its currency. ^"^ 
 versUm of"' (•*) ^7 leasing for long periods to a favoured person, not the 
 large estate, heir of entail next in succession, the universitas of a large 
 
 ss Leslie v. Orme, 1779, M. 15630; 5 Pat. 758; 17 F.C. 298; 19 F.C. 1,8,105, 
 
 aff. 2 Pat. 533. 466 ; 5 Dow, 293. 
 
 "* ElUot's Tra. v. Elliot, 1793, M. s? At 1 Bligh, 509. 
 
 15622. 98 Ibid. 530. 
 
 "^ Eliott V. Curries, 1798, M. 15450. «i Ibid. 528. 
 
 "^ X>. Buooleuch v. D. QueensbeiTy's >"» Ibid. 467, 483. 
 
 Exrs., and D. Queensberry's Exrs. v. E. "i Ibid. 436. 
 
 Wemyss, 1819, 1 Bligh 339, 6 Pat. 465. "^ E. Wemyss v. D. Queensberry's 
 
 The earlier stages of these cases are to be Exrs., 1821, 1 S. 202 (N.E. 190), on the 
 
 foundin 14F.C. 7;M.Appx. Taillie, No. remit in 1 Bligh, 339. 
 15 ; Buch. Rem. Ca. 408 ; 2 Dow, 90 ; 
 
ENTAIL : REMEDIES OF SUBSTITUTES. 57 
 
 estate, or so much of it as is capable of alienation, an attempt 
 has been made in effect to alter the order of succession for a 
 time.^*^ Similar attempts have been made by alienations under 
 colour of feuing large pieces of ground by feu rights granted 
 unico contextu, extending together over the whole or. a large part 
 of an estate.^"* In both cases the simulate transaction is cut 
 down, the principle being in both the same, — viz., that common 
 law powers or powers expressly conferred in an entail to feu 
 or lease, are intended to aid in the rational and fitting admin- 
 istration of the estate and for no other purpose. In the 
 case of leasing referred to, the real purpose of the grantor 
 was made clear, not only by the unusual comprehension of the 
 lease and its unusual duration, but also by the inadequacy of 
 the rent. 
 
 In every case of contravention, the remedy of the heirs is Eemedies. 
 twofold.^"^ If the contravener survive, the next heir or any 
 substitute is entitled to bring a declarator of irritancy,^"'' to have 
 it declared that all right, title, and interest of the contravener to 
 and in the entailed estate is, and shall be, void and extinct, and 
 that the estate has devolved on the next heir. _ And, whether 
 the contravener survive or not,^"' an action of reduction is 
 competent for the purpose of cutting down the offending lease. 
 Both actions may go on together, but if so, decree of irritancy Purgation, 
 must be obtained before decree of reduction.^"* If the contra- 
 vener survive, purgation may take place before decree of irritanc}' 
 is granted, provided restitutio in integrum be possible, and this 
 doctrine applies to leases granted in contravention of an entail. ^°° 
 If the contravener be dead, and declarator of irritancy be there- 
 fore incompetent, the general rule holds that purgation is no bar 
 to decree of reduction. Therefore an offer by a tenant to purge 
 by distributing the grassum proportionally over the years past 
 and future of his lease, did not save him from having his lease 
 cut down.^"" These are the only remedies competent to the 
 
 "" Bs. Mordaunt v. Innes, 9th March ^"^ D. Queensberry 'b Exrs. v. Hyslop, 6th 
 
 1819, F.C. 679, aff. 1 S. Ap. 169 ; Innes July 1820, F.C. 164, aff. 1 Sh. Ap. 59; 
 
 o. D. Gordon, 1827, 6 S. 279. Agnewsj. GUlespie, 23rd June 1813, F.C. 
 
 1" L. Cathcart v. Schaw, 1755, M. 402 ; Turner v. Turner, 1 Dow 423. 
 
 15399, 5 B.S. 816, aff. 1 Pat. 618 ; Innes ™Bontine v. Dunlop, 1823, 2 S. 115 
 
 V. Ker, 1807, M. Appx. Tailzie, 13-18 ; (N.E. 106). 
 
 rem. 5 Pat. 609; 17th July 1813, F.C. 374; ™ Abernethie a. Gordon, 1835, 13 S. 
 
 2 Dow, 149 ; 5 Pat. 768. 263, 15 S. 1167 ; aff. 1 Rob. Ap. 434, 
 
 '"^ Cases collected in Rankine, Land- per L. Chan, at p. 470. 
 
 ownership, 574. "" D. Qneensberry's Exrs. r. Hyslop, 
 
 ™ See Bontine r. Graham, 1837, 15 S. and v. D. Buccleuch, 6th July 1820, 
 
 711 ; 3 Jar. Styles, 190. F.C. 164, aff. 1 Sh. Ap. 59, 64. 
 
58 LIMITATION OF TITLE. 
 
 landlord"! He cannot maintain an action of damages. "^ On the 
 principle that if both parties are not bound neither party is 
 bound, the tenant would also be entitled to obtain reduction of 
 a lease which was ultra vires of the granter. And, if ousted by 
 a reduction, he is entitled to indemnification by suing for 
 damages on the warrandice in his lease.'^^^ 
 
 III. Statutory Relaxations."* 
 
 These came into existence first in 1770, and they have beeu 
 gradually extended by legislation, reaching down to very recent 
 times. They may be divided into four classes — 
 
 (1) Ordinary Statutory Powers. 
 Ordinary First in logic though not in time come the ordinary powers 
 
 powei-r^ of leasing bestowed by statute. The Act by which they are con- 
 ferred or recognised is known as the Rosebery Act, 1836 (6 & 7 
 Will. IV. c. 42). After a preamble narrating the legal effect of a 
 strict entaiP" on the disposal of the estate and the expediency 
 of conferring certain powers on heirs in possession,"" it enacts 
 that — 
 
 Heirs of entail Xotwithstandiiig any prohibitory, irritant, and resolutive clauses con 
 
 mav°"Tanr" tained in any entails already made and established, or which may here- 
 
 tacks of any after be made and established, pursuant to the directions of the said 
 
 ertates'under Act passed in the Parliament of Scotland in the year one thousand six 
 
 the restrictions hundred and eighty-five, it shall be lawful for the respective heirs of 
 
 tained. entail in possession to grant tacks of any parts of the lands, estates, or 
 
 heritages therein contained, for the fair rent of such lands or heritages 
 
 at the period of letting, either by pubKc auction or private bargain, 
 
 and notwithstanding any prohibition against diminution of the rental, 
 
 for any period not exceeding twenty-one years, and to grant tacks 
 
 of any mines and minerals contained in such lands and estates for any 
 
 period not exceeding thirty-one years : Provided always, that notliing 
 
 herein contained shall authorise any heir of entail in possession of any 
 
 entailed lands, estates, or heritages to take any grassum or valuable 
 
 consideration, other than the tack-duty or rent, for granting any tack, or 
 
 to grant any tack of the home farm, nor of the mansion-house and offices, 
 
 or of the garden, lawn, park, or policy attached thereto, for any period 
 
 beyond his own life ; and in case any such grassum or consideration shall 
 
 '" E. Breadalbane ?;. Jamieson, 1877, 4 being scarcely part of the law of leases, 
 
 R. 667. is here omitted. 
 
 112 Ms. Queensberry v. Queensberry's "' The powers are extended to heir-i in 
 
 Exrs., 1826, 4 S. 320 ; rem. 2 W. and S. possession under unrecorded entails by 
 
 265, 6 S. 706, rev. 4 W. and S. 254. 1 & 2 Vict. c. 70. 
 
 "= Infra, chap. x. "6 Including institutes and trustees for 
 
 "* The procedure under these statutes, entailing (sect. 20). 
 
ENTAIL : MONTGOMERY POWERS. 59 
 
 be taken, or in case any tack hereby iiroliibited shall be granted, such 
 tack shall be null and void (sect. 1). 
 
 Provided also, and be it enacted, that nothing herein contained shall This Act not 
 prevent or be construed to prevent anv heir of entail in possession from *° •■«s*rain any 
 
 ^ . , . more extensive 
 
 exercising any power of granting tacks which may be contained in the power con- 
 entail under which he possesses more extensive than the power df grant- entail ™ *"' 
 ing tacks hereby conferred (sect. 2). 
 
 No application to the Conrt for special power is required or 
 admissible. The rules relating to the exclusion of the mansion- 
 house,^^'^ and to the permission to ignore a prohibition against 
 diminution of the rental,^i* and to let at any time within two 
 years of the ish of a former lease.^^^ are noticed elsewhere. It will 
 also be shown that though an express prohibition against letting 
 may be wiped out by the statute, a further restriction, not 
 necessarily dependent on, though intimately connected with, the 
 other will not necessarily disappear along with it.^^" 
 
 (2) Montgomery Poivers. 
 
 First in time came the Montgomery leases, authorised by the Montgomery 
 earlier sections of the Montgomery Act, 10 Geo. III. c. 51, for '^'°^*'^*" 
 two purposes — the promotion of agricultural improvements and 
 of building. The statute is now so little resorted to that it 
 need not be quoted in full. For the former of these purposes it For agricui- 
 sanctions leases for not more than fourteen years from Whit- i^nt.™^™^^ 
 Sunday next after their date, and for the life of a person in 
 existence and to be named in the tack ; or for two existing lives 
 and the life of the survivor, or for not more than thirty-one years 
 (sect. 1), provided that in a lease for two lives there be an 
 obligation on the tenants to enclose the whole lands in thirty 
 years, two-thirds in twenty years, and one-third in ten years ; 
 that in a lease for more than nineteen years,!^^ there be an obli- 
 gation to enclose the whole lands in the course of the lease, and 
 two-thirds of the lands before two-thirds of its course have run, 
 and one-third before one-third has run (sect. 2) ; and as to both 
 sorts of leases that there be an obligation laid on the tenants to 
 keep the fences in good and sufficient repair during the lease, and 
 to leave them so at its expiration ; and that no enclosure should 
 contain more than forty acres where the land is arable (sect. 3).^^^ 
 
 The sections designed to promote the ' building of villages and For building. 
 ' houses ' enact that leases for the purpose of building may be 
 
 "' Infra, p. 70. F.C. 64. 
 
 '^' Supra, p. 55. '-- The provisions of sect. 7, infra, p. 60, 
 
 ''' Supra, p. 5J. with regard to rent, grassum, and com- 
 
 '™ Clerk V, Clerk, infra, p. 69. mencement of lease also apply. 
 
 '-1 See Mure v. Mure, 22nd Dec. 1808, 
 
60 LIMITATION OF TITLE. 
 
 granted for any number of years not exceeding ninety-nine years 
 (sect. 4), under these provisoes — (a) that not more than five acres 
 be granted to any one person ; (b) that there be inserted in the 
 lease a condition annulling it if a dwelling-house of the value of 
 £10 or upwards be not built within ten years of its date for each 
 half-acre ; (c) that the houses be kept in good tenantable and 
 sufficient repair ; (d) that this standard as to number, value, and 
 repair be kept up, under pain of nullity (sect. 5) ; (e) that the 
 manor-place and its accessories should be spared (sect. 6) ; ^^' (/), 
 that the rent be not under the rent payable under the last tack ; 
 (g) that there be no grassum ; and (h) that the last lease shall, if 
 for a fixed term of years, be within a year of its termination 
 (sect. 7). Ampler powers contained in any tailzie are saved 
 (sect. 8). 
 Cases. The Act does not apply to unrecorded entails.^^* It is strictly 
 
 interpreted. 1^^ An improving lease, in which the duration is left 
 to the option of the tenant within the limits set forth in the Act, 
 is permissible, and may be secured against challenge by a declar- 
 ation of the option.^-" The obligation to keep the fences in good 
 repair apply not only to those fences which are made in exact 
 accordance with the dates prescribed, but to such also as antici- 
 pate the statutory periods.^^'' A grassum will be none the less 
 fatal though it take the form of an obligation to pay the lessor's 
 debts. ^^® In a very special case the fact that a grassum taken in 
 the last lease was not calculated on when fixing the rent in a 
 building lease of part of the land was not allowed to cut down 
 the latter where there had been complete bona fides on the part 
 of the lessee.^^' The tenant under a building lease is entitled, 
 in so far as is necessary for his reasonable enjoyment, to cut 
 down timber growing on the land let to- him ; and the question 
 of necessity depends on the special circumstances of each case.^** 
 And, lastly, the condition in building leases in regard to the 
 erection of dwelling-houses within a certain period under sanction 
 of nullity imports not a purgeable irritancy but a statutory 
 nullity, which may be taken advantage of by the heir in possession 
 succeeding the lessor, though the latter has by back-letter or 
 otherwise dispensed with performance ; and the lease cannot even 
 
 '23 Infra, p. 70. 126 l. Elibank v. Pentland, 1821, 1 S. 
 
 1 * Paget V. E. Galloway, 1837, 15 S. 117 (N.E. 115). 
 
 667 ; L. Maodonald v. Maodonald, 1840, '» Hamilton, 1846, 8 D. 308 9 D 53 
 
 2 D. 889, aff. 1 B. Ap. 819. 128 j,iu„ „. Mu„_ ,„p^„_ 12,^ ' 
 
 1=6 Thomson v. Mowat, 1824, 3 S. 385 129 j) Buocleuoh v. Ewart, 1827 6 S 
 
 (N.E. 272) ; Miller v. Carrick, 1867, 5 M. 128, eed quwre. 
 
 715, aff. 6 M. (H.L.) 101. ™ Gordon v. Rae, 1883, 11 R 67 
 
ENTAIL : POWEKS OBTAINABLE ON PETITION. 6 1 
 
 stand for the period which the deed of entail expressly permits, 
 not being a lease of ordinary administration. ^^^ 
 
 (3) Powers obtainable on Petition. 
 
 The Rutherfurd Act and its numerous amendments confer Powers con- 
 powers of leasing in three different sets of circumstances, which i848. 
 have this only in common, that the authority of Court is re- 
 quired to make the transaction effectual. 
 
 (a) With Consents. — An heir in possession is entitled to let Consent being 
 out the estate in whole or in part without restriction, provided 
 he obtains the consent of the heirs whose consent is necessary 
 to a disentail, or gets their consent dispensed with. This power 
 is necessarily involved in the greater power to disentail, and is 
 conferred by provisions ^^^ which closely follow, in frame and 
 sequence, the disentail provisions. Since in most cases ^^^ it is 
 equally open to the heir in possession to resort to the powers 
 dealt with in the following paragraph, without requiring to obtain 
 consents, it will be enough here to refer to the statutes, and to 
 note that the consents required when the entail is a new entail 
 are those of the- 1st and 3rd sections of the Rutherfurd Act.^^* 
 
 (6) Long Leases. — The power to grant long leases is of much Long leases. 
 greater importance. It is always associated in the entail statutes 
 with the power to grant feus. The leading enactment is the 
 24th section of the Rutherfurd Act, 11 & 12 Vict. c. 36. 
 
 Notwithstanding any prohibitory, irritant, and resolutive clauses, or power to grant 
 any limitation by way of maximvim or minimum of the extent of ground jg?™'^ °"° 
 to b e feued or to be granted in each separate feu, contained in any tailzie 
 dated prior to the first day of August one thousand eight hundred and 
 forty-eight, it shall be lawful for an heir of entail in possession of an 
 entailed estate in Scotland, upon notice to the heir of entail next entitled 
 to succeed to such estate immediately after such heir of entail in posses- 
 sion, with the approbation of the Court, to be obtained in the form and 
 manner hereinafter provided, to grant feus or long leases of any part of 
 the said entailed estate for the highest feu-duty or rent that can be got for 
 the same, such feus or long leases so granted by him not exceeding in all 
 one-eighth part in value for the time of such estate ; provided always, 
 that it shall not be lawful for such heir to take any grassum or fine or 
 valuable consideration other than the tack-duty or rent for granting any 
 such feu or lease, nor to grant any such feu or lease of the mansion-house, 
 offices, or policies of the estate ; and such heir shall be entitled to make, 
 
 1^ Miller r. Carrick, supra, '^ (powder '** Except as to the mansion-house 
 
 magazine only erected). and its accessories. See infra, p. 70. 
 
 132 ii&l2Vict.c.36, sect.4; 38&39 '^^ Campbell, 1883, 20 Se.L.R. 
 
 Vict. e. 61, sect. 6 ; and 45 & 46 Vict. c. 474. 
 53, sect. 4, 5. 
 
62 
 
 LIMITATION OF TITLE. 
 
 at the sight of the Court, all such feu-charters or other feu-rights, or tacks 
 or leases, as shall be necessary; and in case any such grassum, fine, or con- 
 sideration shall be taken, and in case any feu or lease hereby prohibited 
 shall be granted, such feu or lease shall be null and void ; but nothing 
 herein contained shall prevent or be construed to prevent any heir of 
 entail in possession from exercising any power of granting feus or leases 
 which may be contained in the tailzie under which he possesses, more 
 extensive than the power of granting feus or leases hereby conferred. 
 
 This power is extended "^ to heirs in possession under new 
 entails (i.e., entails executed after 1st August 1848), 'which do 
 ' not expressly prohibit the granting of feus or building leases of 
 ' the entailed estate or any part thereof, though containing a 
 ' prohibition against alienation and long leases generally,' and 
 subject to the proviso that the ' Court, having regard to the 
 ' interests of the heirs substitute of entail, shall be satisfied that 
 ' the granting of such feus or leases is an act of beneficial ad- 
 ' ministration of the entailed estates;' but instead of 'long leases' 
 this extension speaks only of ' building leases for more than 
 ' twenty-one years.' i^" The authority may be granted on a 
 continuing petition, for (16 & 17 Vict. c. 94, sect. 6) 
 
 Competent to It shall be lawful for the Court, upon an application by an heir of 
 tinuine peti- entail entitled, in terms of the said recited Act, to applj' for the authority 
 tions for au- and approbation of the Court to the granting of feus and long leases, to 
 "■rant feus and ^^ extent not exceeding in aU one-eighth part in value for the time of 
 long leases.137 ^j,g entailed estate, to fix and determine the minimum rates of feu-duty 
 or tack-duty at which the lands specified in such application, or the 
 different portions of such lands where the same are of different values, 
 may be feued or let on long leases ; and such minimum rate or rates of 
 feu-duty or tack-duty, being so fixed by interlocutor of the Court, shall 
 be acted upon with reference to all feus or long leases which may be 
 granted from time to time under such application, unless the Court, upon 
 being moved to that effect by such heir of entail, or by any other party 
 entitled to appear, shall afterwards alter the same (which the Court is 
 hereby authorised to do, from time to time, upon motion to that effect as 
 aforesaid), in which case such altered rate or rates of feu-duty or tack- 
 duty shall be substituted for the rate or rates of feu-duty or tack-duty 
 previously established ; and in like manner it shall be lawful for the 
 Court, upon such application as aforesaid, to approve, by interlocutor, of 
 a form of feu-charter, feu-contract, or feu-disposition, or a form of long 
 
 ^■" By 15 & 16 Vict. u. 94, sect. 13. 
 
 136 This is clearly a case of faulty draft- 
 ing, for building leases are nowhere men- 
 tioned (contrary to what is stated in the 
 Act of 1853), in the Rutherfurd Act, and 
 
 the only reference possible is to the long 
 leases in the section above printed. 
 
 ^^ Campbell, 1850, 13 D. 42 (under 
 Act 1848, sect. 4) ; Butter, 1852, Dune, 
 p. 343 ; Cleland, 1852, 24 Sc. .Tur. 628. 
 
ENTAIL : LONG LEASES. 63 
 
 lease, to be made use of under such application, from time to time as 
 such, feus or long leases shall be granted, and to grant authority to such 
 heir of entail to grant feus or long leases in the form so approved of, 
 from time to time, as he shall think proper, subject to any conditions or 
 stipulations "' which the Court may deem necessary ; and such form may 
 be altered by the Court from time to time as the Court shall see fit in 
 the course of the proceedings ; "' Provided always, that it shall not be 
 lawful for su.ch heir of entail to take any grassum or fine or other valu- 
 able consideration other than the feu-duty or rent for granting any 
 such feu or lease, nor to grant any such feu or lease of the mansion- 
 house, offices, or policies of the estate ; and in case any such grassum, 
 fine, or consideration shall be taken, and in case any feu or lease 
 hereby prohibited shall be granted, such feu or lease shall be null and 
 void. 
 
 Application for authority under these sections can now be !„ sheriff- 
 made in the Sheriff-Court, subject to appeal to the Court of Comt. 
 Session ; and the procedure in the Sheriff-Court must be as 
 nearly as possible the same as that set out in next paragraph.^*" 
 The authority granted is available not only to the applicant, but xhe applicant, 
 to the succeeding heirs of entail.^" The application may now 
 be made by a tutor on behalf of a pupil heir,^*^ and by other 
 guardians or with their consent; by an heir in possession and 
 iafeft, though a competition of services may be pending at the 
 time,^*^ and by an heir in possession though he have sold his 
 life-interest in the property.^** The applicant should be infeft 
 at least in the parts of the estate which he proposes to lease 
 out.^*^ He may proceed by private bargain.^*^ The term ' long Meaning of 
 ' leases ' in the leading enactment has been interpreted as mean- °"° 
 ing leases longer than those which are ordinarily granted in 
 regard to the particular subject let, or longer than the term 
 allowed by the entail ; not merely building leases or such leases 
 as substantially convey, like the feus so closely associated with 
 them, the full rights of ownership. The Court could, therefore, 
 
 '^ E.g. Rights in the nature of servi- Dune. p. 59. 
 
 tudes — Stewart v. Stewart, 1877, 4 K. '* 45 & 46 Vict c. 53, sect. 5. 
 
 981, 6 R 145. '■" Ibid. sect. 6 (3). 
 
 13' See case of such alteration — E. "^ Ibid. sect. 11, altering the law in 
 
 Kinnoull, 1862, 24 D. 379. Though Boyle, 1853, 15 D. 420. 
 
 model charters for different sorts of feus '^ Livingstone v. Fenton, 1858, 20 D. 
 
 are approved of — e.g. for villas, shops, &c. 1231. 
 
 —the selection of the nature of each feu "* Gordon v. Pr. Albert, 1851, 14 D. 
 
 is left to the discretion of the heir, — 114. 
 
 ibid. There is usually a relative plan, ^^ E. Stair, 1852, 1 Stu. 578. 
 
 which is incorporated in the deeds — "^ Hastings, 1549, 12 D. 918. 
 
C4 LIMITATION OF TITLE. 
 
 competently sanction a nineteen years lease of land out and out, 
 where its only value was for sporting purposes.^*'' 
 
 (c) BuildiTig Leases. — Lastly, large powers of granting 
 building leases may be obtained from the sheriff. By the 
 ICntail Act of 1868, "Mt is enacted that 
 
 Power to grant It shall be lawful for any heir in possession of an entailed estate, 
 leases' &'^™° notwithstanding any prohibitions or limitations in the deed of entail or 
 in any Act of Parliament, in the manner and subject to the conditions 
 hereinafter mentioned, to grant leases for the purpose of building for 
 any number of years not exceeding ninety-nine years, or feus of any 
 part of such estate (but reserving the minerals therein and the right of 
 working the same), except the garden, orchards, policies, or enclosures, 
 adjacent to or in connection with the manor place, in so far as such 
 garden, orchards, policies, or enclosures are necessary to the amenity of 
 the manor place, or, if the estate be held by burgage tenure, to dispone 
 any part thereof, reserving and excepting as aforesaid, subject to a 
 ground-annual : Provided always, that the feu-duty, rent, or ground- 
 annual to be stipulated for shall not be less than the amount ascertained 
 as hereinafter provided : Provided also, that it shall not be lawful for 
 such heir to take any grassum or fine or valuable consideration other 
 than the feu-duty, rent, or ground-annual for granting any such charter, 
 lease, or disposition ; and in case any such grassum, fine, or considera- 
 tion shall be taken, such charter, lease, or disposition shall be null and 
 void ; but nothing herein contained shall prevent any heir of entail in 
 possession from exercising any power of granting feu-charters, leases, or 
 other grants which may be contained in the entail under which he 
 possesses, more extensive than the powers hereby conferred. 
 Procedure in For ascertaining whether the land so proposed to be f eued, leased, or 
 granting feus, disponed may be feued, leased,' or disponed in terms of the provisions of 
 &c. ' the preceding section, and the value of the same, an application shall be 
 
 made by the heir in possession of the entailed estate to the sheriif of 
 the county within which the entailed estate, or the portion thereof pro- 
 posed to be feued, leased, or disponed, is situated, who thereupon shall 
 direct notice to be given to the next heir of entail entitled to succeed to 
 the entailed estate in such manner as shall seem proper (and in the 
 event of such next heir of entail being under age or subject to any legal 
 incapacity, the sheriff shall appoint a tutor ad litem or curator ad litem 
 to such heir), and shall appoint one or more skilful persons to inquire 
 and report as to the value of the lands proposed to be feued, leased, or 
 disponed, and whether from their position or otherwise they may or 
 ought to be feued, leased, or disponed in terms of the preceding section 
 either in whole or in lots ; and upon such person or persons reporting 
 that the feu-duty, rent, or ground-annual offered is in their opinion, 
 
 "'■ Farquharson v. Farquharaon, 1870, •« gj jj 32 y^^ ^ g^^ ggj^g 3.5 
 
 9 M. 66. See note, tupra, ^. 
 
ENTAIL: POWERS TO LEASE. G5 
 
 having regard to all the circumstances, fair and adequate, and that such 
 land may, from its position, be feued, leased, or disponed in terms of 
 the preceding section either in whole or in lots, the sheriff, on considera- 
 tion of the whole circumstances, may and is hereby empowered to 
 authorise such heir in possession or his successor in the entailed estate 
 at any time within ten years from the date of such deliverance to feu, 
 lease, or dispone the said land in one or more lots at such rate of feu- 
 duty, rent, or ground-annual as he can obtain for the same, not being 
 less than the rate fixed by the said skilled persons, subject to such 
 conditions as the sheriff may think essential to secure such feu-duty, 
 rent, or ground-annual, and any other conditions he may see fit, and also 
 subject to a nominal taxed sum of one penny sterling in lieu of all 
 casualties on the entry of heirs and singular successors, and to grant the 
 necessary feu-charter, lease, or disposition, and which being executed 
 and recorded in the Register of Sasines shall be effectual to all intents 
 and purposes; and the lands so feued, leased, or disponed shall, from 
 the date of recording the feu-charter, lease, or disposition in the Eegister 
 of Sasines, and so long as such feu-charter, lease, or disposition shall 
 remain in force, be held as out of the entail, and be liberated from all 
 the prohibitory, irritant, and resolutive clauses or clause of registration 
 thereof; provided always, that, the superiority of the lands so feued, 
 leased, or disponed, and the feu-duties, rents, and ground - annuals 
 thereof, shall be and shall remain subject to the said entail in the same 
 manner as the lands themselves were subject thereto previous to the 
 granting of such feu-charter, lease, or disposition ; and it is hereby pro- 
 vided, that the decree of the sheriff pronounced on such application and 
 proceeding shall not be subject to review by suspension, advocation, or 
 reduction, or in any other form, except by a short note of appeal to be 
 presented to the Court of Session in one or other of the Divisions 
 thereof, which appeal shall be disposed of by such Division as a 
 summary cause : Provided always, that unless such note of appeal shall 
 be lodged with the clerk of the Division of the Court of Session, 
 and notice thereof given in writing to the opposite party, or his 
 known agent, or lodged with the sheriff-clerk, within six months of 
 the date of the decree of the sheriff, such decree shall be final and 
 conclusive ; and, in the event of an appeal being duly taken and 
 lodged, the judgment of the Court of Session thereon shall be final and 
 conclusive. 
 
 Provided always, that every such feu-charter, lease, or disposition Feu-charters, 
 shall contain a condition that the same shall be void, and the same is unJessUiild- 
 hereby declared void, if buildings of the annual value of, at the least, ings of certain 
 double the feu-duty, rent, or ground-annual therein stipulated shall not a„|j jjgp^ j^ 
 be built within the space of five years from the date of such grant upon repair, 
 the ground comprehended therein, and that the said buildings shall be 
 kept in good, tenantable, and sufficient repair, and that such grant shall 
 be void whenever there shall not be buildings of the value foresaid. 
 
66 LIMITATION OF TITLE. 
 
 kept in such repair as aforesaid, standing upon the ground so feued, 
 leased, or disponed. 
 
 Competent The rules contained in last paragraph regarding succession to 
 
 leaseT '" ^''^ ^^^ authority and regarding the title to sue are equally appli- 
 cable here. A condition reserving power to the lessor to resume 
 part of the land let, subject to a corresponding abatement of rent, 
 is not ' a valuable consideration other than the rent ' in the sense 
 of the leading section, since it is not stipulated for the benefit of 
 the granter alone. A reservation of timber for the granter's own 
 behoof will or will not be regarded as such valuable consideration 
 according as the wood is or is not ripe for cutting, and is or is not 
 of substantial value. But the fifth section demands that certain 
 buildings shall be erected after the date of the lease, and it 
 would not be enough to set out in the lease that buildings of the 
 requisite amount had been already erected, with an irritancy in 
 the event of there ever ceasing to exist on the land buildings in 
 good repair and of the statutory value.^*^ 
 
 (d) Special Powers for Public Purposes only. 
 The most recent entail statute enacts i^" — 
 
 Where application is made for authority to grant a feu or a lease 
 of a portion of an entailed estate, not exceeding two acres in extent, for 
 a scientific purpose, or other purpose of public utility, the Court or the 
 sheriff, if satisfied that it would he for the public advantage, and not 
 prejudicial to the estate, may grant such authority for such yearly feu- 
 duty or rent as may be agreed upon, though inadequate and below the 
 just value, subject to such conditions as the Court or the sheriff may 
 think fit. 
 
 Provided that it shall not be lawful for the applicant to take any 
 grassum or consideration for granting such feu or lease other thaii the 
 feu-duty or the rent, and if any such grassum or consideration shall be 
 taken .such feu or lease shall be nuU and void. 
 
 This enactment was preceded by a number of statutes known 
 as the Entail Sites Acts. 
 Entail Sites First}^'^ Portions of entailed estates may be feued out or let 
 
 ^°'^- on long lease to the extent of not more than one-fourth of an 
 
 acre for the building of a place of Christian worship, one acre 
 for a burying-ground or for a school-house and playground, or 
 one-eighth of an acre for a dwelling-house for a minister or 
 schoolmaster, or half-an-acre for a garden attached to such 
 
 i« Stewart v. Murdoch, 1882, 9 E. i" i & 2 Vict. c. 87, was repealed by 
 
 458 (conversion of long lease into feu). 36 & 37 Vict. u. 53, sect. 5. 
 
 «» 45 & 46 Vict. c. S3, sect. 6 (2). 
 
ENTAIL : MINERALS. 67 
 
 dwelling-house, though the heir in possession be under age, and 
 though the rent be inadequate, provided the sheriff is satisfied of 
 the propriety of the measure in the whole circumstances, and 
 provided no grassum or exclusive benefit be reserved by the 
 granter (Act 1840)."^ Existing powers of leasing are reserved 
 (sect. 2). The procedure for obtaining the sheriffs sanction is fully 
 set forth (sect. 3) ; the heir is exempted from forfeiture through the 
 alienation thus authorised (sect. 4). The lessees are prohibited 
 from assigning, subletting, or burdening their grants (sect. 6), 
 and must within five years occupy for the authorised purpose, 
 and continue so to occupy during the whole course of the lease, 
 failing which the subjects revert to the heir in possession for the 
 time being, after certain proceedings before the sheriff (sect. 7).^^^ 
 Second, An Act passed in 1841 to afford further facilities for 
 the conveyance and endowment of sites for schools ^^* deserves 
 nothing more than this passing reference, since its provisions, 
 though expressly applicable to Scotland are couched in the 
 language of the English law, and are now superseded in practice 
 by the wider powers contained in the Education Act of 1872.^'^ 
 
 IV. Exceptional Subjects. 
 
 There are certain subjects, parts of most entailed estates, 
 which require separate notice. 
 
 1. Minerals. 
 
 The heir in possession, in the absence of prohibition, is Minerals. 
 entitled to work minerals, and consequently so to lease them as 
 to draw the just profits.^*^ It is doubtful whether at common 
 law a prohibition to work or let minerals (which would thus be 
 put extra commerciurn) would be given effect to,^''' only one such 
 prohibition having ever come before the Court. ^^^ It would not 
 in any case prevent leases of minerals for thirty-one years or 
 under.153 The rule holds in spite of the fact that the lease is more 
 properly a sale with gradual delivery and at a price payable 
 by instalments. And the only safeguard against undue injury 
 to succeeding heirs is the rule laid down in a carefully con- 
 
 1"^ 3 & 4 Vict. u. 48, sect. 1. '=" 1 B.C. 53 ; Gordon v. Gordon, 24th 
 
 "3 Sect. 8 is repealed by the Stat. Law January 1811, F.C. 161 ; More's Notes, 
 
 Revision Act of 1874 (No. 2). 187 ; Sandf. on Ent. 276-7 ; Ersk. 3.8.29, 
 
 i"'* 4 & 5 Vict. o. 38, amended by 7 & 8 note 245 ; 2 B.C. (6th ed. Shaw's) 831, 
 
 Vict. c. 37, 12 & 13 Vict, c, 4P, and 14 note 6. 
 
 Vict. c. 24. ^^'' Muirhead v. Young (2), 1858, 20 
 
 '^^ 35 & 36 Vict. c. 72, sect. 37 (com- D. 592 ; ■per L.P. M'Neill, 602. 
 
 pulsory purchase under the Lands Clauses ^'^ Clerk v. Clerk, 1872, 10 M. 647. 
 
 Acts). iii' 6 & 7 Will. IV. c. 42, sect. 1. 
 
68 LIMITATION OF TITLE. 
 
 sidered case/^" that there must, in order to the reduction of a 
 lease, be some ' unfairness, some fraud, or some gross culpable 
 ' negligence operating as mischievously as fraud would operate.' ^^^ 
 In that case the whole of the minerals of a large entailed estate 
 were let several years before the question arose at a fixed rent 
 of moderate amount, without the alternative of a lordship or 
 tonnage-rent. There were contained in the lease powers to 
 assign and sublet, to work the coal as the lessee might deem for 
 his benefit, to sink pits without limit as to number or locality, 
 to make roads through any part of the estate necessary for 
 working the coal, to erect colliers' houses, and for that purpose 
 to open quarries and take stone without payment to the land- 
 lord. There were no clauses providing for intersection al damage 
 or restoration of the surface on the expiration of the lease. Nor 
 was there a barrier clause, nor any check as to the amount of 
 output, nor provision for the landlord's inspection of tbe work- 
 ings. Various other clauses usually inserted in mineral leases 
 for the landlord's protection were omitted. A portion of the 
 coal-field was sublet by the lessee to several subtenants, from 
 whom he obtained a subrent of more than four times the amount 
 paid by him to the landlord. The remainder of the coal-field 
 was in the lessee's own possession, and unwrought. In an action 
 of reduction of the lease raised by a succeeding heir on the 
 ground that it was an alienation or an undue exercise of the 
 power of leasing, and in contravention of the entail and of the 
 Statute 6 & 7 Will. IV. c. 72 (13th August 1836), a proof 
 was allowed. The Court held that there was no proof of 
 unfairness, fraud, or gross negligence, the lease having been at 
 its date a fair and equal contract, under which the lessee took 
 the risk of an unopened and untried field, which then had no 
 practicable means of communication with markets, and which 
 was proved not to have been wrought to profit by the greater 
 number of the sublessees. The absence of a lordship and of an 
 exclusion of subtenants was the main note or mark of inequality 
 relied on by the heir, but without success. i«^ If the lease 
 escapes reduction the Court will decline to regulate the tenant's 
 workings out of consideration for the interests of succeeding 
 heirs, or to make him liable in damages."^ The entail will not 
 
 ^^Muirhead v. Young (1), 1855, 17 pp. 893, 911, ibid. 
 
 ^- ^''5- ^^ Muirhead v. YouDg (2), supni, i" ; 
 
 ^"1 Using the words of L. Eldon in the and see E. Breadalbane v. Jamiesou, 
 
 Tinwald case, supra, p. 54. 1877, i R. 667. 
 
 "^ See esp. op. of LI. Ivory and Deas, 
 
ENTAIL : WOODS. 69 
 
 be allowed to curtail the liberty of the heir in possession and his 
 tenants further than is necessary for the preservation of the 
 estate and its transmission to succeeding heirs, therefore a 
 prohibition against communicating levels to an adjoining mineral 
 property will be ignored, if and in so far as such communication 
 may be necessary or beneficial to the working out of the minerals 
 on the entailed estate, and not permanently detrimental to its 
 mines, but under condition that as soon as the purpose for which 
 the communication is made has been served the heirs of entail 
 and their lessees shall be bound to close it up so as to keep 
 out the water in the adjoining mines to the rise.^^* If this . 
 condition could not have been complied with, the Court would 
 have refused to authorise what would be obviously detrimental 
 to the estate — an alienation for the benefit of part only of the 
 series of heirs. 
 2. Woods. 
 
 The power of an heir of entail in possession himself to cut down AVoods. 
 and dispose of timber being limited to such timber as is ' not. 
 ' required for the reasonable enjoyment of the mansion-house by 
 ' persons in the rank of life which the inmates of such a house may 
 ' be supposed to hold,' ^^^ and to such as has reached maturity,^^'' 
 his power to sell growing timber — which frequently takes the name 
 or frame of a lease — is similarly restricted. The only exception 
 would be a lease of the right to thin growing timber — an act of 
 ordinary administration necessary or beneficial to the estate. ^"'^ 
 Further, inasmuch as the representatives of an heir in possession 
 have no right, on his decease pending the cutting of timber, 
 except to the wood then actually severed from the ground,^"' he is 
 not entitled to grant any higher or more permanent right to his 
 vendee or lessee, whose purchase or lease breaks off short on that 
 event taking place, and not on notice thereof reaching him.^''' 
 There does not seem to be any valid distinction between woods 
 planted by the lessor and woods planted by a predecessor,!'" qj. 
 between planted and natural woods, except that it would probably 
 be held that natural wood set out in haggs, according to the 
 
 i« Clerk V. Clerk, 1872, 10 M. 647. tine, and Boyd, supra, "^ ; of. Hamilton 
 
 '® Boyd V. Boyd, 1870, 8 M. 637, 644, i. Vs. Oxfurd, 1757, M. 15408. 
 ptr L. Deas ; Mackenzie v. Mackenzie, ^^ Boyd, supra, '^^ 
 
 1824, 2 S 775 (N.E. 643) ; Bontine v. ^'^ Cathcart, supra, i"" ; Lord Elibank 
 
 Carrick, 1827, 5 S. 811 (N.E. 750) ; and v. Kenton, 1833, 11 S. 238 ; Veitch, in 
 
 see Gordon v. Gordon, 24 Jan. 1811, E.G. note to 1 B.C. 53. Stewart v. Stewart's 
 
 161. Exrs., 1761, M. 5436, and Pringle v. Scott, 
 
 ™ Cathcart v. Schaw, 1755, M. 15403, 1 B.C. 63, decide nothing to the point. 
 5 B.S. 818. aff. 1 Pat. 618 ; Ker i: "» Veitch, supra, "«. 
 
 Graham's Trs., 1827, 6 S. 73, 270 ; Bon- "<> Mackenzie, supra, "^ 
 
house. 
 
 70 LIMITATION OF TITLE. 
 
 custom of an estate, for annual cutting (silvoe cceduce in the 
 stricter sense of the word), might be disposed of by an heir in 
 possession, by a lease which would not expire with him.^''^ 
 Express prohibitions will, subject to the condition that they are 
 calculated to preserve the estate, be enforced according to their 
 ten or. ^'^ 
 
 3. Mansion-house. 
 Mansion- In old entails it was not uncommon to except the mansion- 
 
 house or mansion-houses and their accessories from express 
 powers of leasing ; and, even without such exception, this part 
 of an entailed estate, as in other matters,^'''^ is treated in a way 
 different from that in which the bulk of the estate is administered. 
 Whether on account of the expediency of residence at the seat of 
 the old heritable jurisdiction, or in conformity with the old view 
 that the Act of 1449 (hereinafter to be frequently referred to) did 
 not apply to buildings,"* the rule has all along been that a con- 
 tract of lease of a mansion-house or its accessories, or both, is 
 purely personal and must be limited by the tenure of the granter.^"* 
 In entire consistency with this rule and practice, the ordinary 
 statutory powers of leasing, conferred by the Rosebery Act, are 
 not applicable to ' the home farm, mansion-house and offices, 
 ' garden, lawn, park or policy attached thereto, except to the extent 
 ' of the granter's lifetime.'"" Further, the power to grant Mont- 
 gomery leases does not extend to letting ' the manor-place, office- 
 ' houses, gardens, orchards, or enclosures adjacent to the manor- 
 ' place, which have usually been in the natural possession of the 
 ' proprietor or have not been usually let for a longer term than 
 ' seven years when the heir in possession was of lawful age,' and 
 land cannot be let for buildings within 300 yards of a manor- 
 place usually in the natural possession of the proprietor."'' Simi- 
 larly the mansion-house, offices, and policies are withdrawn from 
 the powers to grant long leases conferred by the Rutherfurd Act;"* 
 and the garden, orchards, policies, and enclosures adjacent to, or 
 in connection with, the manor-place, in so far as they are necessary 
 to the amenity of the manor-place, are excepted from the powers 
 of granting long building leases conferred by the Entail Act of 
 
 "1 See infra, p. 73, the right of a life- v. Orme, 1779, M. 15530, 2 Hailes 832, 
 
 "■enter. aff. 2 Pat. 533. 
 
 "'■ Moir V. Graham, 1826, i S. 730 i'« 6 & 7 Will. IV. c. 42, sect 1 
 
 (N.E. 737) ; Boyd, supm, ^^. it? iq Geo. IIL c. 61, sect. 6 ; Turner 
 
 ^'^ See Eankine, Landownership, 594. v. Turner, 6 Dec. 1811, F.C. 363. 
 
 1" Authorities in Sandford, Entails, "^ 11 & 12 Vict.' c. 36, sect. 24 : 
 
 279' n°te- amended by 16 & 17 Vict. ^. 94, sect. 6, 
 
 '^5 Cathcart v. Schaw, supra, i^s ; Leslie and 45 & 46 Vict. u. 53, sects. 5, 6 (3). 
 
FEE AND LIFERENT. 71 
 
 1868.^™ So that if an heir of entail in possession desires to let 
 the mansion-house or its appurtenances, or both, for a tertn 
 beyond his lifetime, he must proceed either by obtaining a 
 private Act or by obtaining the consents of all the heirs whose 
 consent is necessary to a disentail. ^^^ 
 
 II. — Fee and Liferent. 
 
 A fiar burdened with a liferent cannot grant an effectual lease Powers of 
 without the consent of the liferenter.^" But the power of a hus- limited^ 
 band over his lands out of which an annuity has been granted, 
 or over which a locality has been constituted, in favour of his 
 wife, is not thus limited, both of these rights of the wife being 
 eventual, and not in immediate enjoyment. In marriage-con- 
 tracts there is generally inserted a power to lease these lands ; ^^^ 
 but, independently, leases granted in the exercise of fair ad- 
 ministration will be obligatory, notwithstanding the husband's 
 decease. ^^* Anciently a contrary doctrine was maintained,^** but 
 the rule was established after solemn consideration.^*' The 
 exercise of the power must, however, be in bond fide ; for a 
 husband is not entitled to deprive his wife of her right of locality 
 or liferent, in whole or in part, by deeds subsequent to her in- 
 feftment, even though onerous, much less by gratuitous or fraudu- 
 lent deeds. He cannot, therefore, under colour of a lease, alienate 
 by letting at an undervalue and out of the course of due adminis- 
 tration. ^^^ 
 
 As the right of a liferenter is purely iisufructuary, he is only Powers of 
 entitled so to possess as during his own life to reap the profits 
 salvd substantia}^'' Consequently he cannot grant a lease to 
 endure longer than his own lifetime, whether he be a liferenter 
 by reservation or by constitution only.^** It will always be a 
 question depending on the circumstances of each case whether 
 
 1™ 31&32 Vict. c. 84, sect. 3, amended 619; Countess of Galloway c. Maoken- 
 
 by 45 & 46 Vict. o. 53, sect. 6 (3). zie, 1778, 5 B.S. 620 ; Laing v. Denny, 
 
 180 11 & 12 Vict. c. 36, sect. 4 ; 38 & 1827, 5 S. 903. 
 39 Vict. c. 61, sect. 6 ; 45 & 46 Vict. ^. ^^ St. 2.6.1, 4 ; Mack. 2.9.3.1 ; Bankt. 
 
 53, sect. 4. 2.6.24, 26 ; Ersk. 2.9.39, 40, 56, 57 ; 2 
 
 ™ 1 B.C. 62, note. Ross' Lect. 500 ; 1 B.C. 62. 
 
 182 1 Jurid. Styles, 5th ed. 199; ^'^ Balfour, 206 ; Cr. 2.9.9, 13 ; St. 
 
 183 1 Bell, Leases, 104. 2.9.9, Note by Brodie ; Bankt. 2.6.34, 
 i»< Dirl. and Steuart, 193, s. r. Life- 2.9.38 ; Ersk. 2.6.21, 2.9.57 ; 1 B.C. 62, 
 
 renter. note 5 ; E. Pr. 1057 ; More's Notes, 213 ; 
 
 185 Cs. Moray ». Steuart, 1772, M. Lady Crawfordjohn v. Glaspen, 1611, 
 
 4392, 1 Hailes 485, 5 B. S. 619 ; aflt. M. 8252 ; Fraser v. Middleton, 1794, M. 
 
 2 Pat. 317. 8256, 7849. 
 
 ^8« Robertson v. Peter, 1777, 5 B.S. 
 
72 
 
 LIMITATION OF TITLE. 
 
 Liferenter's 
 management. 
 
 Woods. 
 
 the fiar on the lapse of the liferent has or, has not adopted or 
 homologated a lease taken for a longer period.^*' 
 
 Notwithstanding the granter's death, a lease by a liferenter 
 subsists until the ensuing Whitsunday. ^^^ At that term the 
 lessee may be removed ; ^^^ but he is entitled to possess until he 
 is removed as accords of law.^^^ So long as there is no attempt 
 to dilapidate the estate, and subject to this limitation in respect 
 of endurance, a liferenter has a right to exercise the power of 
 leasing in every respect as an absolute owner. ^'^ A widow, life- 
 rented in locality lands, is by the common style empowered to 
 lease for her lifetime, or for nineteen years at a fair rent without 
 grassum.i^* Where a contract of marriage, although limiting the 
 amount of annuity, conferred to that extent a full right to the 
 profits, the deed was held to confer a locality right, giving powers 
 of leasing as ample as those of an absolute owner ; and leases 
 granted by the liferentrix were sustained, although the rent which 
 might have been obtained upon new leases would have consider- 
 ably exceeded the amount of her specific annuity. '^'^ From this 
 decision, as well as from the absence of an interest to challenge, 
 it follows that a liferenter may let at an undervalue for his own 
 lifetime. A liferenter is entitled to alter the date of payment 
 of rent so long as he does not thereby curtail the fiar's rever- 
 sionary right. Thus, he may postpone payment of one-half of 
 a year's rent from Martinmas to Whitsunday — the whole having 
 been theretofore paid at the former term — and the change will 
 make no difference in apportioning the rents between them.^^^ 
 
 As in entail law so here, it is necessary to advert to certain 
 specialties where the subject liferented contains timber or min- 
 erals. A liferenter being, in the ordinary case, entitled only to 
 the fruit or produce of growing trees, and to underwood, ordinary 
 windfalls, and, in so far only as required for the use of the estate, 
 to ripe wood and extraordinary windfalls,^''' may find it con- 
 venient to let out this partial right along with, and as accessory 
 
 ™ Earl Marisohall v. Tenants, 1630, 
 M. 15215. Kossy v. Tenants, 1612, M. 
 15211, does not seem to be law. 
 
 ™ 1491, c. 26 ; Balfour, 458 ; Craig, 
 Stair, and Bankt. cit. ^^ ; Ersk. 2.6.49 
 2 Ross' Leot. 477 ; 2 Bell, Leases, 104 
 Thomson i-. Meraton, 1628, M. 8252 
 infra, chap. xxi. 
 
 '"' Ersk., and Thomson r. Merston, 
 supra, 1"°. 
 
 "2 Balfour, 206, 458 ; St. 2.9.9 ; Bankt. 
 2.6.34; Ersk. 2.6.49, Note (by Ivory), 
 
 Winra- 
 15212 ; 
 15207 ; 
 
 133 ; Ross' Lect. supra, i^" ; 
 ham V. Henderson, 1621, M 
 Johnstone's Trs., 1803, M. 
 Udney v. Brown, there noticed. 
 
 "^ Karnes' Eluc. 60 ; Ersk. 2.9.56 ; 
 B. Pr. 1181. 
 
 "^ 1 Jurid. Styles, 5th ed. 199. 
 
 1"^ Pirie v. Murray, 1766, M. 8248. 
 
 ^^^ Gooden v. Chisholm, 1829, 8 S 
 165. 
 
 "' Authoritie.s in Rankine, Land- 
 ownership, p. 606. 
 
FEE AND LIFERENT : WOODS AND MINERALS. 7o 
 
 to, a lease of the estate or part of it. But there is one case in 
 which a lease of timber may stand by its own strength. Life- 
 renters are entitled to cut coppice-wood if they be in possession 
 when the customary period arrives for cutting, whether it recurs 
 annually as to some part of the coppice (cut down on the system 
 of ' haggs ') or at longer intervals, and whether the liferent be by 
 reservation or constitution.^^^ Except as here stated, the right 
 to timber rests solely in the fiar, unless there be some express 
 extension of the liferenter's right. ^'^ The fiar may therefore, if 
 not excluded from management by the intervention of a trust,^"" 
 let the timber, except so far as it is necessary for the com- 
 fortable enjoyment of the dwelling-house,^"^ or for the recurring 
 requirements of the estate.-"- Thus he alone is entitled to thin 
 the woods and to let the right to do so. In every case where 
 the liferenter's rights might be affected by a lease or by any- 
 thing done in virtue of a lease, intimation should be made to 
 him.203 
 
 It seems to be settled, after some doubt in our earlier law,^"* Minerals. 
 that a liferenter by constitution of a specific subject has no right 
 to minerals, whether a mine be open or not when his right 
 emerges, and therefore no right to let them out.^"^ Probably, 
 however, a liferenter by reservation will be entitled to carry on 
 going mines, at least if there be no risk of exhaustion, at the 
 normal rate of working.^"* Minerals required for the use of the 
 mansion-house or estate may be taken by any liferenter, and the 
 right may be transmitted in leasing out either of these subjects. 
 In other respects the fiar is alone in right, and may let out 
 the minerals without having to fear any interference on the part 
 of the liferenter.^"'' But he may render himself liable to the 
 
 "8 Dickson v. Dickson, 1823, 2 S. 152 RobertsonApp. 443; Dingwall, ™,Tait,2»». 
 
 <N.E. 138) ; M'Alister's Trs. v. M'Alister, -«* Cr. 2.8.17 ; Dirl. and Steu. 28, 29; 
 
 1851, 13 D. 1239, reverting to the law in St. 2.3.74. See Preston v. Preston, 1677, 
 
 Crs. of Mousewell u. Children, 1683, M. M. 8242. 
 
 8253, 4 B.S. 138, and ignoring the dis- =03 E^gk, 2.9.57; Bankt. 2.6.6; 1 B.C. 
 
 tinction made in Ferguson v. Ferguson, 61 ; B. Pr. 1042, 1070 ; 2 Sandf. Succ. 
 
 1734, M. 8254, Elchies (Liferenter) 1; 120; La. Lamington,1682,M.8240; Pres- 
 
 Gray v. Seton, 1789, M. 8250, Hailes ton, supra, -" ; Belschier v. Moffat, 1779, 
 
 1067 ; and Lang v. D. Douglas, 1752, M. M. 15863 ; Swinton v. Ds. Koxburghe, 
 
 8246. 1 Eeb. 1814, F.C. 532 ; Dickson v. 
 
 ™Dingwallj).Duff, 1833, 12S. 216,541. Dickson, sapra, ™ ; Wardlaw ;;. Camp- 
 
 -™ Tait V. Maitland, 1825, 4 S. 247 bell, 1882, 9 R. 725, aff. 10 R.H.L. 65, 
 
 (N.B. 253). 8 App. Gas. 641. 
 
 -»■ Dickson v. Dickson, ^'\ and Tait v. ^^ Eiston i>. Eiston, 1831, 9 S. 716. 
 
 Maitland, 2»». ^ Lamington, ^°, Dickson, su-pra, '"s ; 
 
 ^ Stanfield v. Wilson, 1680, M. 8244. D. v. Ds.-Dow. of Roxburghe, 19th Jan. 
 
 ^ See Ds. Hamilton •</. Duke, 1723. 1S16, F.C. 65. 
 
are common 
 proprietors. 
 
 74 LIMITATION OF TITLE. 
 
 latter for surface damages and for undue interference with the 
 enjoyment of the liferented subject.^"^ And these rules may be 
 overturned by proof of a contrary intention where intention is 
 allowed to have any influence, and especially in the case of life- 
 rents constituted by mortis causa disposition.^"^ 
 
 III. — Joint and Common Rights. 
 
 The last limitation of power to grant or take leases is that 
 which is involved in the fact that the lessor has a joint or common 
 property in the subject let, or the lessee is only one of two or 
 more parties acquiring a joint or common right. It will be con- 
 venient to consider separately cases into which the element of 
 partnership or joint-stock association does not, and cases into 
 which it does, enter. 
 
 A. Apart from Partnership. 
 Lessors who The leading rule is that, common property being a right of 
 
 ownership vested pro indiviso in two or more persons, all of 
 whom are equally entitled to enjoyment, the consent of all is 
 requisite in the management or disposal of the subject. ^^^ Joint- 
 ownership differs from common property only in certain respects, ^^^ 
 which have nothing to do with the management of the joint- 
 estate so long as the community lasts. It will, therefore, be 
 useful to ignore the distinction in what follows. The rule above 
 laid down is otherwise described in the brocard — In re communi 
 melior est conditio prohibentis ^^^ — importing an absolute veto 
 competent to each common proprietor, however small his interest 
 may be.^^' All must concur in the granting of a lease,^^* in seques- 
 trating a tenant, ^^^ and in removings. Thus a removing could 
 not go on without the consent of all the proprietors, though one 
 only of them had been in use to let, and had in fact alone let the 
 subject. ^'^ His delegation, tacit or express, did not extend so far. 
 Where of four common proprietors, one acted in granting the 
 lease for himself, for two others as their mandatary, and for the 
 
 ™ Roxburghe, 207, Dickson, supra, ^. B. Pr. 1882; 2 B.C. 500, 544; 2 Bell, 
 
 2'»' WaddeU r. Waddell, 21st Jan. 1812, Convg. 785. 
 
 F.C. 481 ; Guild's Trs. v. GuUd, 1872, 10 212 28 D. (10.3) ; 8, 27, § 1 D. (8.2) ; 
 
 M. 911; "Wardlaw v. "Wardlaw's Trs., 11 D. (8.5); St. 2.9.43; Ersk. 2.6.63; 
 
 1875, 2 R. 368 ; Fergnson v. Terguson's 1 B.C. 63 ; 2 Bell, Leases, 60 ; B. Pr. 
 
 Trs., 1877, 4 R. 532 ; Wardlaw v. Camp- 1074. 
 
 bell, supra, 2»=. =13 Bruce v. Hunter, 16th Nov. 1808, 
 
 2i» B. Pr. 1072. F.C. 5 (l-71st part). 
 
 2" CargiUs V. Muir, 1837, 15 S. 408 ; 2" Campbell v. Campbell, 24th Jan. 
 
 M'Neight v. Lockhart, 1843, 6 D. 128,136; 1809, F.C. 100. 
 
 Lawson v. Leith, &c., Packet Co., 1850, ^^ Steward v. Wand, 1842, 4 D. 622. 
 
 13 D. 175; St. 2.3.41; Ersk. 3.8.35; ^16 Murdoch r. Inglis, 1679, 3 B.S. 297. 
 
JOINT LEASES. 75 
 
 fourth (who was abroad and took no part in the management) as 
 his negotioTwm gestor, the two mandants were not entitled to 
 remove the tenant without the concurrence of any representative 
 of the mandatary, who had died in the interval.^^^ But the rule 
 is modified in two directions. The defence would not be listened 
 to if tendered by a mere squatter, occupying without semblance 
 of right. ^'^ And one of several common adjudgers seems to be 
 entitled to pursue a removing, provided he offers a more solvent 
 tenant or a higher rent,^'' or finds caution to his fellows for the 
 rent, so far as their interest is concerned. ^^" 
 
 A common or joint lease creates a common or joint right, Joint lease to 
 entitling each lessee, unless it be otherwise arranged, to insist on 
 joint possession and management, ^^^ and involves common or 
 joint liability — an obligation in solidum to pay the rent and 
 perform the other prestations due from a lessee — such as those 
 arising out of tacit relocation.^^^ No immunity is inferred by 
 non-occupation. ^^^ If the lease be common, each lessee has a 
 distinct right in his pro indiviso share, transmissible by succes- 
 sion^^* (subject to any clause of survivorship), or, if it be other- 
 wise competent, by assignation. ^^^ If the lease be joint — of which 
 a lease to trustees is the most familiar example — there is no 
 separate estate, but one estate vested in all, with right of 
 survivorship.^^^ 
 
 The principal questions which have arisen in regard to such Destinations 
 leases have been raised with respect to the interpretation of 
 destinations to heirs. Passing by a decision ^^~ which shows that 
 such destinations are amenable to the rule, falsa demonstratio 
 non nocet, — it will be found that there is a difference in the legal 
 effect of a common lease, according as it is taken, to A and B 
 and their heirs ; or to A and B, the longest liver, and their heirs ; 
 or to A and B in conjunct fee and liferent, and to their heirs. 
 In all these cases, however, the rule holds that the distination 
 will be read as part of a contract, and will not be governed by 
 the special rules which are applicable to destinations in disposi- 
 tions of land, and which result from the feudal principles that the 
 
 ™ Grozierf. Downie, 1871,9 M. 826. -"* Sutherland m Robertson, 1736, M. 
 
 ™ See Johnston v. Craufurd, 1855, 17 13979. 
 
 D. 1023 ; Lade v. Largs Baking Co., ^■' Dickson v. Dickson, supra, --^ 
 
 1863, 2. M. 17. --' Gray v. Eollook, 1570, M. 4246. 
 
 219 A. V. B., 1680, M. 2448. ^^ See CargiUs v. Muir, 1837, 15 S. 
 
 -™ HaDiday v. Bruce, 1681, M. 2449. 408, and other authorities in note -", 
 
 221 Dickson v. Dickson, 1821, 1 S. 113, supra, p. 74. 
 
 2 S. 462. '"'' Moore v. Boddan, 1823, 2 S. 583 
 
 222 Brown v. Paterson, 1704, M. 14629. (N.E. 501). 
 
76 LIMITATION OF TITLE. 
 
 fee cannot be in pendente, and that of spouses the husband is 
 the dignior personaP^ Where the meaning of the destination 
 as it stands is unquestioned, and action is brought for the pur- 
 pose of getting behind it and showing that the lease was really 
 granted for behoof of one of the lessees ^^^ or of a third party, this 
 is really an attempt to prove a trust, and the only admissible 
 evidence will be the writ or oath of the party or parties 
 maintaining the primd facie interpretation of the words 
 used.^^" 
 Lease to two («) If the lease be taken to A and B and their heirs, each lessee 
 
 the?/hekf has during life an equal interest both in kind and in degree, and 
 upon the death of either his right devolves, not to the survivor 
 but to his own heirs. ^^ The assumption in an old decision^^^ ttjat 
 there was an exception in the case of conjoint right to a father 
 and his lawful son, by virtue of which the son succeeded to the 
 whole interest after the father's liferent of the whole had lapsed, 
 would probably not be given effect to in modern times. And the 
 rule seems to be in full force, even where the conjoint parties 
 are husband and wife.^^^ 
 Lease to two (&) If the lease be granted to A and B and the longest liver 
 leBsees and the ^^^ ^jjgjj. jjeij-g ^t^q right is common during their lives, with 
 
 survivor and _ . ° ... . 
 
 their heirs. accretion to the survivor. Each during his life is vested with a 
 right so qualified, that were he to assign his portion the assigna- 
 tion would terminate with his life, when the survivor acquires 
 the sole right. 2^* No acquiescence in, or adoption of, any altera- 
 tion in the rule thus established will be inferred from such facts 
 as that for convenience the holding was divided, each tenant 
 possessing and paying rent and taxes for one-half only, and that 
 an assignee of the predeceaser possessed the half thus vacated for 
 more than a year after his author's death, paying the rent and 
 getting his name entered in the landlord's rental book — whether 
 with the survivor's knowledge or not did not matter. ^^^ The rule 
 
 •-"28 Forresters. Milligan,1830,8S.992; observed in Forrester •<.. Milligan, ^^s^ 
 
 Macalister v. Maoalister, 1859, 21 D. 560 ; where the specialties founded on showed 
 
 L, Boyd )). King's Adv., 1749, M. 4205 ; nothing more than that the conduct 
 
 5 B.S. 777; Bankt. 2.9.49. of the parties was consistent with the 
 
 229 JI'Vean v. M'Vean, 1864, 2 M. plain meaning of the lease. 
 
 1150. =34 1 Bell on Leases, 147-8; 2 Ross' 
 
 ^ Seth V. Hain, 1855, 17 D. 1117. Lect. 487 ; Gray o. Rollock, supra, ^^ ; 
 
 ■-31 1 Bell, Leases, 146; Douglas v. Lidderdale, 1627, M. 4247; (Bankt. ut 
 
 Graham, 1566, M. 4245 (mother and son) ; supra, ^, seems to have mistaken the 
 
 Dickson v. Dickson, -^\ import of this case as well as its name). 
 
 232 Douglas V. Graham, ^si. 235 Robertson v. Menzies, 1857, 19 D. 
 
 ^ The case in Balf. 201 (1561), is 667 (heirs of siw-nVo?- expressly called), 
 ambiguously noted, but the rule was 
 
PAETNEESHIP. 77 
 
 applies in full force to the case where the common tenants are 
 husband and wife. The heir of the survivor succeeds, though 
 the survivor be the wife.^^" The wife's right being presumably 
 onerous, being obtained by contract from a third party, and being- 
 such, in any case, as not to make the husband pauperior, cannot 
 be displaced by the husband directly or indirectly as a donatio 
 inter virum et uxorem.^^'' If the heir of the spouses named 
 in it be a party to the lease, especially if he was sui juris at its 
 date, his right will be, not a mere spes successionis, but a jus 
 qucBsitum under contract, and therefore not liable to be defeated 
 or affected by any deed (such as a sublease) granted by his 
 parents, and taking effect beyond their lives. ^^^ The rule is not 
 affected by the circumstance that the marriage has been ultim- 
 ately dissolved by divorce, and that the survivor is the guilty 
 party. ^^^ 
 
 (c) If a lease be made 'to A and B in conjunct fee and liferent, Lease to two in 
 ' and to their heirs,' the right of each is a right pro indiviso, and'uferenT 
 burdened with the eventual liferent of the other over the whole and their heirs, 
 subject, and assignable or adjudgeable only under that qualifica- 
 tion.^*" But the terms ' fee and liferent ' in correlation are not 
 properly applicable to leasehold rights. ^*i 
 
 B. Paetneeships and Companies. 
 
 1. As Lessors. 
 
 Since unincorporated private companies or partnerships can- Partnerships 
 not hold feudal property in the social name, it must remain a^ies^sora^*"**' 
 in the name of the partner who contributed it, or the title be 
 taken in the names of the whole partners or of trustees for them.^'*- 
 There is no such limitations in the case of corporations, including 
 joint-stock companies under the general statutes in that behalf. 
 Leases in each case should be granted by the parties in whose 
 name the title stands ; and care should be taken to be assured 
 that the transaction is not ultra vires of the parties actually 
 concerned in the letting. ^*^ 
 
 ^' Decided in L. Boyd r. King's Adv., -'"' 1 B.C. 64; and case of Brown, 
 
 supra, ^ and assumed in GiUon v. Muir- 1789, there. 
 
 head, 1775, M. 15286, overruling Rig v. -" Macalister, supra, ^-*, per L.J.-C. 
 
 X. Tenants, 1561, M. 4197, Balf. 201. IngUs. 
 
 -^ Craigmillar r. Nisbet, 1638, M. -*- 2 B.C. 614, 619 ; Denniston v. 
 
 6089; Ifraser, H. andW. ii. 925 ; but see M'Farlane, 1808, M. App. Taclc, 15; 
 
 L. Glenlee's obs. in Forrester v. Milligan, but see 18 & 19 Vict. c. 88. 
 
 supra, ^ ^' See case of mutual leases — the con- 
 
 '^ Macalister v. Macalister, supra, ^^. tribution of each partner to the concern, 
 
 ^' More's Notes, 250 ; Cs. of Argyle i: Warner v. Cunninghame, 1798, M. 14603, 
 
 E. Argyle, 1573, M. 327. 3 Dow 76. 
 
dissolution. 
 
 78 LIMITATION OF TITLE. 
 
 2. As Lessees. 
 
 As lessees. A lease taken for behoof of a partnership or company^*^ may 
 
 run in the name of the partners or any of them, or of a 
 third party in trust ; or in the name of the partnership, if it be 
 a firm name, not merely a descriptive title ; or of the corpora- 
 tion, if the company be incorporated.^*^ Any partner of a firm 
 may bind it by accepting a lease in the firm name, provided his 
 act is one which comes within the scope of the partnership 
 business.^*" Leases so taken become part of the common stock — 
 held for the common use, affectable for payment of the partner- 
 ship debts, and saleable for the common purposes.^*'^ And the 
 benefit of leases may accrue to the partnership, though intended 
 by the lessee for his own behoof Thus, ' it will not be permitted 
 ' to a partner by dissolving a partnership to secure the benefit of 
 ' a lease held by the company and about to expire ; ' ^*^ or to 
 renew in his own name, a lease which belonged to a partnership 
 which was approaching its stipulated term of endurance. ^*^ 
 
 Kffect of With the dissolution of a company in whose name a lease has 
 
 been taken, the lease lapses. Bankruptcy therefore (if assignees 
 and subtenants are excluded) by dissolving the company ter- 
 minates the lease. ^^^ Dissolution by death, mutual consent, or 
 any other cause, must produce the same effect.^^^ There is no 
 necessary connection between the endurance of the partnership 
 and of a lease which is one of its assets.^*'^ If any part of the 
 term of a lease granted to a company is unexpired at the 
 dissolution of the partnership, it is partnership estate, and is 
 to be distributed as such.^^^ Where, therefore, a company has 
 been dissolved, and the partners cannot agree as to the disposal 
 of the lease of the premises in which they carried on trade, it has 
 to be exposed to sale.^^* The rule applies, though the lease be 
 not taken socio nomine, if it be held for the common benefit. 
 Where, consequently, the partners of a company in the pro- 
 
 ^ In addition to the following brief 249 Featherstonhaugh v. Fenwiok, 17 
 
 sketch, it will be enough to refer to the Ves. Junr. 298. 
 
 many well-known treatises on company 250 1 3 q g2 . More's Notes, 268 ; 1 
 
 and partnership law. Bell, Leases, 150 ; Campbell v. Calder 
 
 ^ Murray v. Hogarth, 1835, 13 S. 453 ; Iron Co., 1805, in 1 B.C. 82. 
 
 Denniston J). M'Farlane, supra, ™ ; 2 B.C. =^1 See Gillespie v. Clark, 1821, 1 S. 
 
 627 ; 1 Bell, Leases, U9 ; B. Pr. 357 ; 160 (N.E. 153). 
 
 More's Notes, 101. 252 Crawshay v. Maule, 1 Swanst. 509. 
 
 24«2B.C. 617. See cases in 1 Lindley, ^^ Per Sir William Grant, M.R., in 
 
 648, of leases by a partner to his firm. Peatherstonhaugh v. Fenwiok supra, ^^ 
 
 =^- 2 B.C. 612. 254 2 B.C. 631 note, 632 note; Mar- 
 
 ^Js 2 B.C. 632, and authorities there ; shall ■„. Marshall, 23rd Feb. 1816, F.C. 
 
 1 Lindley, 574. 101. 
 
PARTNERSHIP. 79 
 
 secution of its business have obtained a lease in favour of them- 
 selves individually, and their assignees or sublessees, and the 
 company is afterwards dissolved by the death of one of the 
 partners, the survivor is bound to concur with the representatives 
 of the deceased in a sale of the lease as a part of the company 
 stock. ^^^ And, on the same principle, a lease having been taken 
 in the joint names of two individuals with the view of entering 
 into a partnership, and that purpose having been broken off, it 
 was decided that one of the parties was not entitled to resist an 
 application for sale of the lease and for his removal from the 
 premises.^*" 
 
 IV. Leasehold. 
 
 The power of a lessee to sublet and the limitations involved 
 in the restricted character of his title find a more convenient 
 place in a subsequent chapter. ^''^ 
 
 ==•■> Aitken's Trs. .,. Shanks, 1830, 8 S. 753. 
 256 M'Whannell i\ Bobbie, 1830, 8 S. 914. 
 -'^'' Chap. ix. 
 
80 
 
 CHAPTER III. 
 
 THE SUBJECTS LET. 
 
 The proper subjects of the contract of lease are land and other 
 corporeal heritable property, such as buildings. But by an 
 obvious extension the term is applied to the temporary transfer 
 of certain incorporeal rights — such as the right to the use of water, 
 fishings, and game — which are intimately connected with the 
 land. Questions have arisen as to the propriety of applying the 
 rules of leasehold to certain subjects. On account of the 
 exhaustive character of the possession, it has been frequently 
 maintained that a temporary right to take mines or timber is 
 more of an executory sale than a lease ; yet the nomenclature is 
 fully established.! The right to kill game or other animals 
 ferae naturce is to such an extent a right to the occupation of 
 land for a special purpose, that no lawyer need be ashamed of 
 using the popular expression — game lease. The definition, with 
 which this work started, is sufficient to exclude from the category 
 of leasehold the temporary communication of such continuing 
 rights as offices, customs, and the like.^ 
 
 In the following remarks an attempt will be made not to forestal, 
 as to any special subject, that explanation of the general rules 
 governing the contract of lease, which will occupy the rest of the 
 work. Passing by for the moment the ordinary subjects of lease 
 (lands and buildings), it will be enough to explain, or enable the 
 reader to discover for himself, the special characteristics which 
 attach to certain other subjects, in so far as these characteristics 
 are pertinent to the present inquiry. 
 1. Mills and Multures. 
 Mills and The Only reason for separate mention of mills — i.e., grist- 
 
 mills- — in treating of leases of heritable subjects, is that along 
 
 ' See Muirhead v. Druinmond, 1792, Campbell, 1743, M. 5427 ; Campbell v. 
 in 2 B.C. 28 ; Stewart v. Stewart's Exrs,, Grant, 1827, 6 S. 188. 
 1761, M. 5436; Campbell's Exrs. r: ^ Infra, Tp. 83. 
 
 miilturea. 
 
mills: MINES: FISHINGS. 81 
 
 with the fabric there may be let the advantages derivable from 
 the astriction of lands by the pseudo-servitude of thirlage ; 
 whereby the occupiers of these lands are bound to resort to the 
 mill for the manufacture of their grain at rates — called multures, 
 sequels, and services — regulated by ancient compact or by 
 prescription, and not by the market value of the process. The 
 law of thirlage has been so fully treated in works which are in 
 the hands of all lawyers ; so little has been added to the doctrine in 
 recent times ; and the burden itself has so nearly died out all over 
 the country, that it would unnecessarily encumber this treatise 
 to do more than add a reference to the authorities.^ 
 2. Minerals. 
 
 A considerable controversy has raged both in Scotland and Minerals. 
 England as to the meaning of the words ' mines, minerals, and 
 ' quarries,' when used in dispositions of subterranean substances. 
 The question has chiefly arisen where there has been a reserva- 
 tion made by one who is proprietor of land ' a ccelo usque ad 
 ' centrum,' in disponing the surface.* In leases for the working 
 of minerals, there is invariably a detailed description of the 
 subject let ; and an interpretation of the general terms is 
 therefore not likely to arise as between landlord and tenant. 
 If the question is whether a particular seam or sort of mineral 
 be or be not described by or included under the name of a 
 substance mentioned specifically in a lease, the point is matter of 
 fact, not of law, and should be sent to a jury.^ The transmissible 
 right, formerly existing, to the services of colliers and salters as 
 serfs was abolished in last century.^ 
 3. Fishings. 
 
 The limitations under which fisheries of salmon, trout, oysters. Fishings. 
 mussels, lobsters, and other kinds of fish may be carried on, and 
 the respective rights of the Crown, the landowner, and the public, 
 have been so fully set forth in works which treat of fishery and 
 ownership,'^ that it would be out of place to reiterate what is 
 
 3 Or. 2.8.6-12 ; Forbes, 2.4.3.1.5 ; St. « GiUespie v. Eussel, 1854, 17 D. 1, 18 
 
 2.7.15-27 ; More's Notes, 225 ; Mack. D. 677, 19 D. 897 ; 3 Macq. 757 ; 21 
 
 2.9.15-30; Bankt. 2.7.38-61; Ersk. 2.9. D. (H.L.) 13 (whether the TorbanehiU 
 
 18-32, 38 ; B. Pr. 1016-36 ; 1 Hunter, mineral was coal). 
 
 248-259 ; 39 Geo. III. c. 55. Add cases » 15 Geo. III. c. 28 ; 39 Geo. III. 
 
 in 9 S. 244 ; 9 S. 763 ; 6 W. and S. 98 ; u. 56. 
 
 1 M. 833 ; 11 M. 630 ; 8 E. 514. As '^ B. Pr. 646, 671, 739, 1112,747, 1100, 
 
 to a cognate monopoly, see E. Elgin's 1224 ; Stewart on Fishing, passim ; 
 
 Trs. V. Walls, 1833, 11 S. 585. Kankine on Landownership, 257 et seq., 
 
 * Cases collected in Kankine on Land- 765, 768, 777 (salmon) ; 295, 350, 875 
 
 ownership, pp.147 e{«cg'.;Mags.ofGlasgow (trout) ; 215, 226 (oysters and mussels) ; 
 
 V. Farie, 21st Jan. 1887, 24 Sc.L.R. 253. 228 (lobsters). 
 
 F 
 
82 
 
 THE SUBJECTS LET. 
 
 Steam and 
 water power. 
 
 there stated. It is enough to remark here that whatever 
 continuing right a fishery owner may possess he can communicate 
 by way of lease. Questions may arise, however, whether a privi- 
 lege of fishing reserved by him in a grant of fishings is of such 
 a nature as to be assignable and communicable, or to be only 
 personal to himself.* 
 
 4. Kelp- shores. 
 
 Kelp-shores. The right to cut seaware for the manufacture of kelp is a right 
 distinct from that of the agricultural or pastoral tenant of sea- 
 board lands, and is not presumed to be let out with these lands.^ 
 It may constitute a separate holding, and, as a matter of fact, 
 leases of ' kelp-shores ' ^^ were not uncommon during last century 
 and part of the present century, till the use of kelp was super- 
 seded by that of barilla in the manufacture of soda, and the 
 burning of kelp was given up as unremunerative. 
 
 5. Stea/m and Water Power. 
 The questions which have arisen with reference to leases of 
 
 factories along with a supply of steam-power, or to the letting of 
 steam-power as a separate subject, will be elsewhere noticed.^^ 
 And illustrations of the general rules of interpreting leases are 
 to be found in cases relating to the composite contract.^^ What 
 is compendiously known as a lease of water-power presents no 
 peculiarity requiring notice in this place. ^' 
 
 6. Tolls. 
 
 Tolls. Tolls on roads are now abolished." General powers are given 
 
 to canal companies to lease out their tolls for not more than 
 twenty-one years. ^^ But canal companies which are also railway 
 companies are under special restraints for the prevention of 
 monopolies. ^^ 
 
 7. Railways. 
 
 Railways. Leases of railways are so purely the creatures of special 
 
 statutes,^'' and, on account of the peculiarity of their subject 
 matter, are so widely difi'erent from leases of other subjects, that 
 
 8 Gemmill v. Eiddell, 1847, 9 D. 727 ; 1761, M. 12799 ; StirUng v. Dunn, 1827, 
 D. Bichmond v. Duff, 1867, 5 M. 310 6 S. 272, aff. 3 W. and S. 462; Henderson 
 (reservations of privilege of angling). v. Stewart, 1818, Hume 522, 15 S. 868 ; 
 
 " Campbell v. Campbell, 1795, M. Gall v. Muirkirk Iron Co., 1850, 12 D. 
 
 9646. 
 
 '» Sinclair v. M'Beath, 1788, Hume 
 773. 
 
 ^ Esp. infra, chap, xvi. 
 
 12 Stewart v. Clark, 1871, 9 M. 616 ; 
 Wilson V. Norris, 10th March 1810, F.C. 
 624; Walker v. TumbuU, 1843, 5 D. 
 1334. 
 
 " Examples — Eobertson v. Gibson, 
 
 622; Sawers v. M'Connell, 1874, 1 R. 
 392. 
 
 " 41 & 42 Vict. c. 51, sect. 33. 
 
 IS 8 & 9 Vict. c. 42, sects. 8-12. 
 
 '" 21 & 22 Vict. c. 75, sect. 3 ; 23 & 24 
 Vict. 0. 41 ; 36 & 37 Vict. ^. 48, sect. 16 
 (annually renewed). 
 
 " S&9 Vict. 0. 33, sects. 106, 106 ; 8 
 & 9 Vict. c. 96. 
 
RAILWAYS: FERRIES: DUES: RENTS. 83 
 
 it will be convenient in this work simply to refer to well-known 
 treatises on railway law,^^ wherein the circumstances which in- 
 duce the legislature to sanction or veto an arrangement whereby 
 one line is virtually absorbed in another, and the conditions on 
 which such an absorption is allowed are duly set forth in detail. 
 It would be out of place to do rnore in a general treatise on land- 
 lord and tenant, which cannot diverge (as would be necessary to 
 a full exposition of the subject) into the cognate rules relating to 
 amalgamation and working agreements. As might be expected, 
 the cases which have come before the Courts do nothing to 
 illustrate the general doctrines of leasehold.^^ 
 
 8. Ferries. 
 
 Leases of rights of ferry have long been recognised and Ferries, 
 enforced in our law.^* They usually include the use of the 
 vessels or boats and their appurtenances, as well as of the 
 requisite piers and landing-places, and sometimes also of a ferry- 
 house and croft for residence.^^ 
 
 9. jDwes. 
 
 Leases of harbour-dues, burgh-customs, and such like imposts. Dues, 
 usually taken from year to year, are more properly contracts of 
 pure location.^^ 
 
 10. Bents, &c. 
 
 Leases of the right to draw rents, feu-duties, casualties, dues Rents, &c. 
 of office, and such like annual or periodical prestations^^ are now 
 rare, and, where they are not in reality assignations in the 
 proper sense of the word, are usually collusive transactions 
 entered into for some purpose which may^* or may not be^^ so 
 tainted with illegality as to be altogether void. The rights so 
 let or assigned are usually associated with lands and other 
 heritable subjects, forming together with these the universitas 
 of the grantor's estate. 
 
 18 Deas, p. 117 ; Hodges, pp. 10, 28, =1 See BaiUie v. Hay, 1866, 4 M. 625. 
 
 513, 531 ; Browne and Theobald, 293, ^ Cases in 1 Himter, 328. 
 
 322, 337, 440, 445. ^ Balf. 200-208 ; Cr. 2.10.2; St. 2.9.3; 
 
 1' The Scotch cases are to be found in Bankt. 2.9.1 ; Ersk. 2.6.27; 2 Ross' Lect. 
 
 10 D. 215, 1317 ; 11 D. 1395 ; 12 D. 37, 488, 504 ; Gordon v. Forbes, 1774, M. 
 
 834, 989, 1014 ; 14 T>. 747 ; 15 D. 523, 15221. 
 
 and (H.L.) 48 ; 17 D. 1148, and 22 D. ^ SeeBs.Mordaunti). Innes,9th March 
 
 (H.L.)l; 18 D. 1230; 19 D. 598; 1 R. 1819, F.C. p. 679, aff. 1 Sh. Ap. 169; 
 
 (H.L.) 1; 5 R. 995 ; 9 R. 610. Innes v. D. Gordon, 1827, 6 Sh. 279. 
 
 2" Rankine on Landownership, p. 254, ^^ L. Cathcart v. Sohaw, 1755, M. 
 
 as to the nature and comprehension of 15403, 5 B.S. 816, aff. 1 Pat. 618 ; 
 
 the right ; Taylor v. Brown, 1800, Hume Bruce v. Assessor for Zetland, 1882, 
 
 308, 10 R. 34, 
 
84 
 
 OHA.PTER IV. 
 
 CONSTITUTION AND PROOF OF THE CONTRACT. 
 
 I. — General Rules as to Contracts, illustrated from 
 Leases. 
 
 A lease is a contract, and is therefore subject to all the general 
 rules applicable to contracts. Illustrations of some of these will 
 appear passim during the course of this treatise; It will be well, 
 however, to refer here to a few cases (not adequately noticeable 
 elsewhere) in which the elementary principles of contract law 
 have received striking illustration in modern times. 
 Consensus 1. There must be between the parties consensus in idem 
 
 piacSwm. placitiim. Their minds must have come into agreement, not 
 merely apparently, but really; otherwise there is no contract. 
 Thus, where, after a draft lease had been adjusted between the 
 parties, the lease as extended and signed by the tenant contained 
 a new and material clause, and the landlord in consequence 
 refused to sign, there was held to be no concluded contract, and 
 therefore no room for an action of damages for non-implement 
 or for certain expenditure incurred on the faith of the transac- 
 tion but not till after warning.^ An offer was made for a farm 
 by letter to the landlord, whose agents sent a draft lease for 
 revisal, and three months later got it back to be extended. 
 They then proposed to insert a further condition and also certain 
 stipulations verbally agreed on in this interval. It was held 
 that there never was agreement, even to the effect of setting 
 up a completed contract by rei interventus? Again, a person 
 in bargaining for a farm believed the contract between him and 
 the landlord to include certain terms stipulated for by him in 
 an earlier, as well as those contained in a later, offer, neither of 
 which was formally accepted by the landlord. The latter believed 
 that the whole bargain was contained in the second offer. The 
 
 1 Dallas V. Fraaer, 1840, 11 D. 1058 v. Gerrard, 1833, 11 S. 737. 
 (there waa no reiinterventus). See Cairns ^ Fraser ». Brebner, 1857, 19 D. 401. 
 
CONSENSUS : FEAUD. 85 
 
 possession, which lasted for two years, did not show on what 
 
 footing it proceeded. Even after that lapse of time it was held 
 
 that there was no contract, and that the tenant must remove, 
 
 reserving all claims that might be competent to him in connection 
 
 with his possession of the farm.^ But in such cases the discrepancy 
 
 must be real and not merely formal, and therefore it was no 
 
 valid objection that an offer of a lease of ' corn and flour-mills, 
 
 ' and pigs'-houses and boilings ' was accepted as ' your offer for 
 
 ' my mill ; ' and that the acceptance bore to be ' subject to a 
 
 ' lease drawn out in due form.' * A provision that certain Distinction 
 
 moveables were to be taken over by the tenant at entry conform oompiete'coi 
 
 to inventory appended to the lease and signed, was held to be*™'"*^'"^ 
 
 only an obligation of the lease and not a suspensive condition, covenant. 
 
 though no possession had followed and no inventory had been 
 
 prepared or signed.^ 
 
 2. A lease, like any other contract, which is tainted with Fraud, 
 fraud, is voidable. Where a body of trustees were induced to 
 execute a lease on the representation by the tenant's son, acting 
 with the tenant's consent, that it was in exact conformity with an 
 expiring lease of the same subjects, vdth the terms of which the 
 son was acquainted, while in point of fact it was materially dif- 
 ferent, the lease was reduced as fraudulently obtaiaed ; and the 
 question was left open whether reduction would have followed if 
 the father had been ignorant of his son's fraud.^ An allegation 
 of fraud may let in proof of material ' stipulations made at or 
 about the date of the contract, although they do not appear in 
 the lease itself.'^ Neither party is bound to warrant every repre- 
 sentation made to the other in transacting about a lease, or to 
 reveal everything that might weigh with the other party in 
 deciding whether or not to contract ; there must be allegation 
 and proof of dolus dans causam contractui, not merely of false 
 representation.^ An advertisement offering a mineral field on 
 lease set forth that it contained certain strata, and referred 
 
 3 D. Hamilton v. Buchanan, 1877, 4 K. Paul, 1877, i R. 626. Issue in M'Neillie 
 
 328, 854; aff. 5 R. (H.L.) 69 ; see also f. Cowie, 1868, 20 D. 1229. 
 
 Waldie v. Gordon's Trs., 1867, 5 Sc.L.R. ' Drununond i/. Douglas & Co., 1851, 
 
 40. 23 Sc. Jut. 648. 
 
 ^ ErsMne v. Glendinning, 1871, 9 M. » Oliver v. Suttie, 1840, 2 D. 514 (large 
 
 656 (remit to conveyancer to draw the discrepancy in acreage, see infra, p. 188). 
 
 See M'Pherson v. Campbell's Trs., 1869, 
 
 ^ Steuart v. Neilson, 1864, 2 M. 41 Sc. Jur. 634, for form of issues, and 
 
 817. Nisbet v. Kinnaird, 1698, M. 4872 (a 
 
 ^ Beresford's Trs. v. Gardner, 1877, 4 gross misrepresentation of amount of 
 
 R. 363, 885, 1091; seqnelin 5 R. 638. As prior rent, which would probably at the 
 
 to the last point see Clydesdale Bank v. present day have been sent to a jury). 
 
Mora. 
 
 86 CONSTITUTION AND PROOF OF THE CONTRACT. 
 
 intending offerers to a mining-engineer named, for further in- 
 formation. On the faith of the advertisement and of the 
 engineer's report a lease was entered into, but the tenant found 
 on trial that there was no workable mineral in the field. It 
 was held that in order to reduce the contract he must aver not 
 merely false but fraudulent representation on the part of the 
 landlord, or of persons for whose statements he was responsible.* 
 Similarly, it was decided in one branch of the Torhanehill case, 
 that a case of fraud on the part of the mineral tenant was not 
 properly set forth by the landlord, where it was merely founded on 
 alleged concealment of the fact that the tenant, being in occupa- 
 tion of an adjoining field containing a peculiarly valuable mineral, 
 had ' good reason to believe ' that it existed also in the lessor's 
 land, and on an alleged false representation, which in any view 
 only came up to a statement, regarding a mineral field still to 
 all intents and purposes untried, that the quality and value of 
 the mineral was less than the tenant believed it to be.^" A 
 fresh action was brought similar to the last, except that in lieu 
 of the allegation averring ' good reason to believe ' there was 
 inserted an averment which was read as stating that the tenant 
 had ascertained and knew at the date of the contract that the 
 mineral in question existed in the field let to him. And the 
 new record was sent to proof, with the approval of the House of 
 Lords.ii The right to challenge may be lost by mora, as where 
 possession for ten years barred objection on the ground of mis- 
 representation as to the stock-carrying capacity of a farm.^^ The 
 rule that a cautioner is entitled to a disclosure by the creditor 
 of all facts material to the risk^^ seems to have been ignored in 
 one case, where the fact that a tacksman of tolls, for the rent of 
 which caution was taken, was allowed to take them, contrary to 
 the rules of the roup, while in arrear for toll-rent, was concealed, 
 and was regarded by the Court as so immaterial as not to be 
 worthy of being put in issue.i* That the 'lessor was only a 
 creditor of the lessee with an ex facie absolute, but really 
 redeemable, disposition as his title to the subjects let, both 
 
 CampbeU v. BoswaU, 1841, 3 D. of Lords whether the first action was not 
 
 ^3^- also relevant). 
 
 " GOlespie v. Eussel, 1856, 18 D. 677, ^^ Grieve v. Rutherford's Trs., 1871, 9 
 
 (the tenant's representations fell much Sc.L.R. 60. 
 
 short of this on a fair construction) ; and is gee the limitations on the rule in 
 
 see Rig «. Durward, 1776, M. 5672, PoUock on Contracts, p. 506, and cases 
 
 " Gillespie V. Russel, 1857, 19 D. there, some of them Scotch; Guthrie's 
 
 897, aff. 3 Maoq. 757, 21 B. (H.L.) 13. B. Pr. 251. 
 
 (Some doubt was expressed in the House " Burnett v. Burnett, 1859, 21 D. 813. 
 
EULES OF INTERPRETATION. 87 
 
 heritable and moveable, is not a fact which has to be disclosed 
 to a party becoming cautioner for the rent, though the result 
 of the transaction be that there is no hypothec to fall back 
 on.^^ 
 
 3. Both parties must be bound or neither ; or, if there be All parties 
 more than two parties, all must be bound or none.^^ Thus, 
 
 where three persons agreed with a lessor to take a lease and to 
 become jointly and severally liable for the rent, and two of them 
 signed the extended tack in the absence of the third, who had 
 gone to view the lands, these two were held not bound as lessees 
 on the refusal of the third to sign. There was locus paenitentice 
 so long as any party to the transaction was not efifectually bound, 
 and it made no matter in whose custody the inchoate deed was 
 kept.i'' ' But, where a tack was set to a tenant and his son 
 ' while under age, the tack was found effectual to the father 
 ' against the granter, though the son did not subscribe it; 
 ' because the faith of the father only appeared to have been 
 ' followed, and the putting in the son's name to have been rather 
 ' a concession to the father than a stipulation by the granter of 
 ' the tack.'is 
 
 4. A lease, being a mutual contract containing correlative Principles of 
 rights and obligations, must be construed as a whole, each clause 
 
 being taken in connection with all the others and with the 
 common and statutory law of the land. Moreover, it must be so 
 read as to bring out the intention of the parties so far as that 
 appears on the face of the contract when thus interpreted, along 
 with such extraneous evidence as may be competently adduced. ^^ 
 The Courts have no bias either for or against the landlord or the 
 tenant ; and the only presumption admissible seems to be the 
 general maxim that a deed shall be construed contra profer- 
 entem, against the party who had the drawing up of a deed to 
 which the other only consented.^" The doctrine that leases are 
 stricti (even stridissimi) juris^^ was imbedded in our juris- 
 prudence at a time when a grant of a lease was regarded as a 
 favour to a follower, rather than as a commercial transaction, 
 
 ^ M'Dougall V, Northern Assurance Sinclair v. Weddell, 1868, 41 So. Jur. 121. 
 
 Co., 1864, 2 M. 935. ^ Hamilton v. Smith, 1738, M. 9168, 
 
 1^ See D. Hamilton v. Buchanan, sup. per L. Kilkerrau. 
 
 '' ; St. 1.10.16 ; B. Pr. 71, and cases " As to which see imfra, p. 97. 
 
 there. ^ See Johnston v. Gordon, 1805, Hume 
 
 i' York Buildings Co. v. BailUe, 1724, 822, per L.P. Campbell. 
 
 M. 8435 ; see Edenham ». Stirling, 1634, ^^ Cr. 2.10.3; St. 2.9.26; Bankt. 
 
 M. 8408 ; Hope v. Cleghorn, 1727, M. 2.9.11, 17 ; Ersk. 2.6.31 ; 2 Ross' Leot. 
 
 8409 ; Paterson v. Bonar, 1844, 6 D. 987 ; 482 ; 1 Bell, Leases, 145. 
 
88 
 
 CONSTITUTION AND PEOOF OF THE CONTRACT. 
 
 and the only traces it has left behind are to be found in the 
 rule of delectus personce, which will be explained when treating 
 of the lessee's succession and power to alienate. ^^ In other 
 respects, a Scottish lease seems to be a contract boTU^ fidei^^ 
 like the leases of ancient Rome and modem Europe.^ 
 Homologation. 5. There will be an early opportunity of stating the rules 
 which regulate the form in which leases have to be constituted.^^ 
 It is a general rule of contract law that voidable agreements may be 
 set up, or objection cut off, by mora and homologation. Therefore, 
 the receipt of rent by the heir of the granter of a lease for thirty- 
 two years barred challenge on the ground of minority and lesion.^^ 
 Payment of rent for three years has been held sufficient to stop 
 the mouth of a tenant who complained of misrepresentation of 
 the quality of the stone let to him in the tack of a quarry .^'^ 
 Eeceipt of rent is a recognition of a sublessee by the land- 
 lord, ^^ if it be paid and received in that capacity, and not 
 otherwise ;^^ and the same is true of an assignee j^" for in these 
 cases all that is necessary to prove is that the landlord does not 
 exercise his power to dissent from the new arrangement. It is 
 different in cases where the landlord cannot get rid of a tenant 
 without a process of reduction.'^ Then it only shuts out recourse 
 against the tenant for the estimated value of his possession 
 during the past.^^ 
 
 Eeceipt of 
 rent. 
 
 Lease a per- A lease is at common law merely a personal contract obligatory 
 
 sonalorreal , . i,. •'., -i 
 
 right— rules upon the parties and their representatives, but not upon singular 
 
 botti™°° ° successors. ^^ So much is this the case, that a question between 
 
 landlord and tenant involving the existence or non-existence of a 
 
 ^ Infra, chaps, viii., ix. 
 
 ^ See opinions o liter to this effect by 
 L. Balgray in Smith v. Eobertson, 1831, 
 9 S. 751 ; by L. Cunninghame in Ross v. 
 D. Sutherland,1838,16S. 1179, and Foulis 
 V. M'Whirter, 1841, 13 Sc. Jur. 160 ; and 
 by L. Curriehill (I.) in "Wight v. B. 
 Hopetoun, 1858, 20 D. 955, 958 ; see 
 also per L. Meadowbank in Fraser v. 
 Ewart, 25th Feb. 1813, F.C. 223, and 
 Stirling v. MiUer, 29th June 1813, F.C. 
 416. 
 
 ^ See the references in 2 Hunter, 143, 
 and WoodfaU (13th ed.), 134. 
 
 25 Infra, p. 89. 
 
 ^ Hamilton v. lij. Cardroas, 1712, 
 • Robertson's App. Gas. 37. 
 
 " Rig V. Durward, 1776, M. 5672. 
 
 ^ Maule V. Robb ; Hay v. M'Tier, 
 1807, Hume 835. 
 
 29 E. Elgin's Trs. v. Walls, 1833, 11 S. 
 585. 
 
 ^ Aglionby v. Watson, 1809, Hume 
 845. 
 
 ^' Ibid, per L. Glenlee. 
 
 ^2 E. MarshaU v. Fraser, 1633, 1 B.S. 
 339 (rentaller) ; Home v. Taylor, 1734, 
 M. 5700 ; Malcolm v. Bardner, 1823, 2 S. 
 410 (N.E. 366), contraTention of entail. 
 
 ^ Or. 2.10.9 ; Dirl. 411 ; St. 1.15.4, 
 2.9.1, 3.2.6; Mack. Obs. 37; Mack. Inst. 
 2.6.6 ; Bankt. 2.9.1 ; Ersk. 2.6.23, 30 ; 
 2Ross'Leot. 473; IB.C. 65; B.Pr.ll86; 
 Stewart d. Watson, 1864, 2 M. 1414, 
 1422; CampbeUi;.Mackinnon,1867, 5M. 
 636, 644, 649, aff. 8 M. (H.L.) 40,46. 
 
CONSTITUTION OF LEASES. 89 
 
 lease may be competently tried by the sheriff, there being no 
 real competition of heritable title, no proper conflict of heritable 
 right.^* But, by an old statute,^^ leases of certain sorts of 
 subjects become real rights if they comply with certain requisites 
 over and above what is required for the constitution of a personal 
 contract. The scheme of the immediately following pages is to 
 detail, in the first place, the rules relating to the constitution of 
 all leases, whether they be real or only personal rights, and then 
 to pass on to the scope and requirements of the statute. 
 
 II. Constitution of the Contract. 
 
 The cardinal rule which governs the constitution of a contract By probative 
 of lease is ' that wholesome rule of our law which requires ^' ' 
 ' probative writings hinc inde to bind parties or either of them 
 ' in any bargain concerning heritage.' ^^ ' Leases, like other 
 ' heritable rights, can be constituted only by probative writing, 
 ' and this rule admits of no exception while matters are entire.' ^" 
 As will be shown hereafter, one class of leases — those taken for 
 a year or under — are exempted from the rule.^^ And, as will 
 also be pointed out in the sequel ^^ in cases where the rule 
 applies, the conduct of the parties may preclude either of them 
 from taking advantage of any informality in the constitutive 
 deed or deeds, and thus in effect bind both as effectually as if 
 no informality had existed. We proceed, in the first place, with 
 the rule requiring probative writ, and how it is observed. 
 
 A lease, in the proper sense of the word, is a bilateral contract Preliminary 
 contaiaed in one writing signed by both parties.*" But it^^i^rtS 
 commonly happens that the formal deed is preceded by a record °* ™^P- 
 of the terms verbally adjusted between the parties, in the form 
 of ' missives ' or ' missive letters ' — where the arrangement is 
 set forth and concluded in more than one document — or of a 
 
 ^ Robertson v. Cookbum, 1875, 3 E. Adams, 1875, 3 K. 144 ; Sinclair v. 
 
 21 (the question of competition of lease- Caithness Flagstone Co., 1880, 7 R. 1117, 
 
 hold rights was reserved). var. 8 R. (H.L.) 78. The dicta of Lord 
 
 ^ 1449, c. 17. Neaves allowing secondary evidence in 
 
 ^ Per Baron Hume in reporting Spronl Exchequer, are either not contra, or are 
 
 •». Wilson, 1809, Hume 920. bad law; Adv.-Gen. v. Sinclair, 1855, 
 
 37 Walker v. Flint, 1863, 1 M. 417, 421, 17 D. 290 (the case was compromised). 
 
 perl,.J.-G. Inglis; Cr. 2.10.10 ; St. 2.9.4; ^ Infra, p. 103. 
 
 Mack. 2.6.5 ; Bankt. 1.11.23, and 2.9.5 ; =» Infra, p. 106. 
 
 Ersk. 2.6.30, and 3.2.2; B. Pr. 1190; *>Each party should have a duplicate 
 
 and of recent cases, Gowan's Trs. v. or a copy, per L.J.-C. in Brown v. Coll. of 
 
 Carstairs, 1862, 24 D. 1382 ; Emslie St. Andrews, 1851, 13 D. 1365. Discre- 
 
 V. Duff, 1864, 3 M. 854 ; Fowlie v. pancy between duplicates lets in parole ; 
 
 M'Lean, 1868, 6 M. 254 ; Gibson v. Grant v. Sinclair, 1861, 23 D. 796. 
 
90 CONSTITUTION AND PROOF OP THE CONTRACT. 
 
 • minute ' of lease — where there is only one document privately 
 arranged — or of articles of roup and subscribed offer — where the 
 contract is arrived at by public auction." Lastly, there may 
 be merely a promise to grant or take a lease, or a promise not 
 to remove a sitting tenant before a given term, accepted accord- 
 ing to the requirements of law.*^ It frequently happens that 
 the parties rest satisfied with the missives or minute or promise, 
 without executing a more formal document. It has never been 
 questioned that if the missives or minute set out a concluded 
 contract, properly authenticated, this is a full equivalent to a 
 formal lease, the frame of the contract being a matter of 
 indifference to the law, and the same doctrine applies to a 
 promise, obligation, or engagement to grant or take a lease or 
 not to remove a tenant when taken along with a sufficient 
 acceptance.*^ Factum de assedatione faciendd et ipsa assedatio 
 cequiparantur^^ 
 Authentica- The same rule requiring formal authentication applies to these 
 
 tion thereof, subsidiary or preliminary writs as well as to the more formal lease. 
 Thus — at the risk of anticipating — it may be here stated that 
 while a promise by a landlord of a year's tack,*^ or a promise not 
 to remove a sitting tenant for a year,*^ can be proved by 
 witnesses, a promise of either sort applicable to a longer*^ or 
 to an indefinite*^ period can only be proved by writ or oath. 
 Thus, a memorandum containing an obligation to grant a lease 
 was held not to be of itself a title of possession, being only 
 initialed on all the pages except the last, and lacking the 
 testing-clause till after production in Court. *^ It seems to be 
 the better opinion that such a promise for a leajje for years or 
 for an indefinite period cannot be proved by witnesses even to 
 the extent of standing good for a year.^" A promise to extend 
 a lease by a year cannot be proved by witnesses if it is alleged 
 
 ^1 These writs may contain stipula- ■ see Charters v. M'DufiF, 1567, ibid, 
 tions so various that it would serve no ^^ Fraser v. Leslie, 1581, M. 12405. 
 
 good purpose to attempt a detail of the *' Johnston v. Logan, 1621, M. 8399 
 
 usual clauses. It is enough to refer to Laurie v. Kerr, 1630, M. 12736, 15169 
 
 1 Hunter, 420. BaiUie v. SomerviUe, 1611, M. 8398 
 
 *2 Distinguish this from the somewhat Power v. Customers, 1626, M. 8399. 
 unusual promise by landlord to treat for ^ Low „. Lyell, 1611, M. 8398 (for 
 
 a lease; Cooper v. Leslie, 1825, 4 S. 33 Hfe) ; Brace v. Innes, 1742, M. 15176 
 
 (first and last offer). (so long as rent paid). 
 
 *• See cases in next paragraph. ^9 Beresford's Trs. •;;. Gardner, 1877, 
 
 ** Cr. 2.10.10 ; St. 2.9.6 ; Bankt. 2.9.5; 4 R. 885. 
 Ersk. 2.6.21 ; Garioch v. Forbes, 1750, » Cf. Powlie v. M'Lean, 1868, 6 M. 
 
 M. 15177 ; Grant v. Richardson's Reps., 254 ; and Charters v. M'DuflF, supra, ^', 
 
 1788, M. 15180. with Baillie v. SomerviUe, supra, *''; Low 
 
 ^ Monteith v. Tenants, 1582, M. 8397; v. LyeU, supra, ^. 
 
PRELIMINARY WRITS. 9l 
 
 by the promisee to be subject to some condition not usually 
 contained in similar tacks, such as that caution should be found. ^^ 
 Acceptance of a probative — but only of a probative — offer may 
 be proved by possession, payment of rent, and other facts and 
 circumstances, though these might not amount to proof of rei 
 interventus}^ Thus, a lease was held to be constituted by 
 possession following on a holograph letter from the landlord to 
 the tenant letting a farm at a rent to be fixed by two other 
 persons ; and the duration and rent were proved by entries in 
 the rental book of the estate, made by one of these persons who 
 was judicial factor at the time.^^ The same doctrine would hold 
 where the offer came from the tenant or a regular lease was 
 signed by him, and he was allowed to possess and pay rent 
 without objection.^* In each case the offeree is entitled to hold 
 the offerer bound immediately on receipt of the offer, and 
 declares his intention by his conduct ; there is no locus 
 pmnitenticB. It will in every case be a question of circum- 
 stances, turning mainly on a construction of these preliminary 
 writs, whether the execution of a formal deed is or is not a 
 condition precedent to a concluded bargain. ^^ If it is not, the 
 Court remits to a conveyancer to adjust the 'usual and necessary' 
 clauses.'^ 
 
 It would be out of place to touch on the conveyancing rules Rules of con- 
 fer the execution of documents, further than to point out that ^^y*''''"'^- 
 where the constitutive writ — a lease proper or a minute — is a 
 single document, it must be tested ; and that where the contract 
 is to be found in two or more writings, each of these must either 
 be tested or holograph of the granter, or of some one entitled to 
 bind him in the matter. In regard to these rules of con- 
 
 51 Jackson v. Graham, 1705, M. 12413. while tenant possessed. There was pay- 
 
 °^ Seeinfra, p. 112; Arbuthnot i). Camp- ment of increased rent (the tenant having 
 
 beU, 1793, Hume 785 ; in D. Gordon v. been subtenant previously), but this ele- 
 
 Carmichael, 1800, Hume 805, the informal ment was not required for the decision, 
 
 note was adopted in a holograph letter In Forbes v. Wilson, 1873, 11 M. 454 
 
 of the landlord's factor to the tenant, there was distinct rei interventus besides, 
 
 which referred to and was sent with it ; ^^^ Maitland v. Neilson, infra, ^^ ; 
 
 Arbuthnot v. Keid, 1804, Hume 815 Erskine i>. Glendinning, 1871, 9 M. 656 ; 
 
 (factor's holograph) ; Skene v. Spankie, Broomfield v. Young, 1757, M. 9446 ; 
 
 1790, in 1 BeU, Leases, 313. The case of and see Rutherford v. Bowden Feuars, 
 
 Drummond ■». Gow, 1787, rejferred to in 1748, M. 8443, and succeeding cases ; 
 
 the same place, seems ill-decided. Poole v. Bentley, 12 East 168 ; Philip v. 
 
 « Gray v. Low, 1869, 21 D. 293. Benjamin, 9 A. and E. 644 ; Ridgway v. 
 
 ^ BaUantine v. Stevenson, 1881, 8 R. Wharton, 6 H.L. Cas. 238. 
 
 959 — lease signed by tenant and retained ^ Erskine v. Glendinning, supra, ^ ; 
 
 by landlord unsigned by hijn for a year, Wilson v. Douglas, 1868, 7 M. 112. 
 
92 
 
 CONSTITUTION AND PROOF OF THE CONTRACT. 
 
 Stamping. 
 
 General rules. 
 
 Instruments 
 to be separ- 
 ately charged 
 with duty in 
 certain cases. 
 Terms upon 
 which instru- 
 ments may be 
 stamped after 
 execution. 
 
 Proviso — as to 
 instruments 
 executed 
 abroad. 
 
 As to the 
 remission of 
 penalties. 
 
 Instrument 
 not duly 
 stamped in- 
 admissible. 
 
 veyancing, there is no distinction between leases and other 
 heritable rights. ^'^ 
 
 StaTTuping. 
 
 Special statutory provisions are enacted for the regulation 
 of the stamping of leases, and it will conduce to accuracy if 
 these provisions are given in the actual terms of the subsisting 
 Act.58 
 
 The principal provisions of a general character in the Stamp 
 Act, 1870, which require to be noticed here are as follows : — 
 
 8. An instrument containing or relating to several distinct matters is 
 to be separately and distinctly charged as if it were a separate instrument, 
 with duty in respect of each of such matters.'^ 
 
 15. (1) Any unstamped or iasufficiently stamped lease may be 
 stamped"" after the execution thereof on payment of the unpaid duty 
 and a penalty of ten pounds, and also, by way of further penalty, where 
 the impaid duty exceeds ten pounds, of interest on such duty, at the rate 
 of 5 per centum per annum from the day upon which the instrument was 
 first executed up to the time when such interest is equal in amount to 
 the unpaid duty. 
 
 (2) Provided as follows : — {a) Anj unstamped or insufficiently stamped 
 instrument, which has been first executed at any place out of the United 
 Kingdom, may be stamped at any time within two months after it has 
 been first received in the United Kingdom on payment of the unpaid 
 duty only ; (b) the Commissioners may, if they think fit, at any time 
 within twelve months after the first execution of any instrument, remit 
 the penalty or penalties or any part thereof. 
 
 17. Save and except as aforesaid, no instrument executed in any part 
 
 ^ Cases of informal writs not cured by 
 rei interventus : Sproul v. Wilson, supra, 
 '' (not tested) ; Maitland v. Neilson, 
 1779, M. 8459, 17054 (neither missive 
 probative) ; Macfarlane v. Grieve, 1790, 
 M. 8459 (writer unnamed) ; KeUy o, 
 Innes, 1619, M. 16876 (unauthenticated 
 postscript) ; Hume v. Dickson, 1730, 
 M. 16898 (defective witnessing). For 
 cases in which defective writs were 
 set up by rei interventus, see infra, p. 
 112. 
 
 =8 33 & 34 Vict. c. 97. The statutes 
 
 afltecting leases immediately before 1870 
 
 were 13 & 14 Vict. c. 97 ; 17 & 18 Vict. 
 
 83 ; 23 Vict. c. 15 ; 28 & 29 Vict. c. 
 
 96, sect. 5. 
 
 *' If a new lease be added on the 
 same stamped paper as a former lease, 
 the latter only will be struck at by the 
 Act ; see Ross v. Steven, 1749, M. 16935. 
 The subtle distinctions which pervade 
 
 this part of the law of stamps cannot be 
 set forth in a note ; see Tilsley, pp. 272 
 et seq. The cases are English. It may 
 be said, however, that, if the transaction 
 be really one transaction, and if there is 
 no fraud, a single stamp for the cumu- 
 lative consideration will suffice though 
 there be different subjects let at different 
 rents, and for different periods ; Boase v. 
 Jackson, 3 B. and B. 185, and cases in 
 TUsley, 362. 
 
 ™ It is the custom to allow fourteen 
 days without penalty. The after-stamping 
 has retroactive effect, making the docu- 
 ment operative ab initio; Davidson v. 
 Douglas, and Wood v. Kerr, 1838, 1 D. 
 10, 14 ; Mories v. Glen, 1843, 6 D. 97. 
 The following section (16) provides for the 
 reception of after-stampable documents 
 in Court, on payment of the penalty 
 and £1 extra ; see also 31 & 32 Vict. 
 c. 100, sects. 41, 42. 
 
STAMP DUTIES. 93 
 
 of the United Kingdom, or relating, wheresoever executed, to any 
 property situate, or to any matter or thing done or to be done in any part 
 of the United Kingdom, shall, except in commercial proceedings, be 
 pleaded or given in evidence, or admitted to be good, useful, or available 
 in law or equity unless it is duly stamped in accordance with the law in 
 force at the time when it was first executed.^^ 
 
 The following are the stamp duties to which leases are now The duties, 
 subject in terms of the schedule of the Act of 1870 : — 
 
 Lease or Tack.'"' 
 
 (1) For any definite term less than a year :°' £ s. d. 
 
 {a) Of any dwelling-house or tenement, or part of 
 a dwelling-house or tenement, at a rent not 
 exceeding the rate of £10 per annum, . 1 
 
 (6) Of any furnished dwelling-house or apartments 
 
 where the rent for such term exceeds £25, . 2 6 
 
 /■ The same duty 
 
 (c) Of any lands, tenements, or heritable subjects I fyeaj^? the 
 except or otherwise than as aforesaid, . \ f™ the™Se 
 
 \ term. 
 
 (2) For any other definite term or for any indefinite term : 
 
 Of any lands, tenements, or heritable subjects — 
 Where the consideration, or any part of the con- 
 sideration, moving either to the lessor or to any 
 other person," consists of any money, stock, or 
 security : 
 
 / The same duty as 
 T i. £ 1 * 1 i. • I a conveyance 
 
 in respect oi such consideration, < on a sale for 
 
 I the same cou- 
 ^^ V fiideration.^ 
 
 Where the consideration or any part of the con- 
 sideration is any rent : 
 
 ^ Illustrated as to leases by M'NiTen IV. u. 90, sect. 10 ; Woods and Forests 
 
 ».Leith,1836, 14 S. 685; Boss f. Webster, Act, 10 Geo. IV. c. 50, sect. 77; and 
 
 1834, 12 S. 308 (removing) ; Grant v. MUitia Act, 17 & 18 Vict. u. 106, sect. 41. 
 
 Walker, 1837, 16 S. 246 (interdict) ; An obligation to remove requires no 
 
 Summers v. Tairservice, 1841, 4 D. 347 ; stamp, Maclaren v. Ms. Breadalbane, 
 
 Hutchison v. Perrier, infra, ^ (annual 1831, 10 S. 163 ; Bain v. Stewart, 1854, 
 
 inquiries whether tenant meant to sit 14 D. 1007. 
 
 on) ; Kincaid •■;. Love, 1835, 14 S. 188 ^ Meaning, in Scotland, in case (a), 
 
 (assignation). An unstamped document ' not exceeding a year,' infra, p. 95. 
 
 may, hovrever, be given in evidence to ^ E.g., Price of assignation of interest 
 
 prove a fact collateral to it, but in no in a lease made between agreement for a 
 
 case to establish or give effect to it. lease and execution of the lease. 
 
 Cases in Tilsley, Stamp Laws, 3rd ed. ^ I.e., One-half per cent, on every 
 
 247 et sc?. completed or fractional sum of £5 up to 
 
 ^ The only statutory exemptions are £25 ; of £25 up to £300 ; and of £50 
 
 under the Church Building Act, 5 Geo. thereafter. 
 
94 
 
 CONSTITUTION AND PROOF OF THE CONTKACT. 
 
 In respect of such, consideration: 
 If the rent, whether reserved as a yearly rent 
 or otherwise, is at a rate or average rate : 
 
 Not exceeding £5 per anmun. 
 Exceeding — 
 
 £5 and not exceeding £10, 
 
 10 
 15 
 20 
 25 
 50 
 75 
 100 
 
 15, 
 20, 
 25, 
 50, 
 75, 
 100, 
 
 If the term is 
 
 definite, and 
 
 does not exceed 
 
 35 years, or is 
 
 indefinite. 
 
 If the term 
 being definite 
 
 exceeds 
 
 35 years, but 
 
 does not exceed 
 
 100 years. 
 
 If the term 
 
 being definilo 
 
 exceeds 
 
 100 years. 
 
 £ s. d. 
 
 £ S. d. 
 
 £ S. d. 
 
 6 
 
 3 
 
 6 
 
 1 
 
 6 
 
 12 
 
 1 6 
 
 ,9 
 
 18 
 
 2 
 
 12 
 
 1 4 
 
 2.6 
 
 15 
 
 1 10 
 
 5 
 
 1 10 
 
 3 
 
 7 6 
 
 2 5 
 
 4 10 
 
 10 
 
 3 
 
 6 
 
 5 
 
 1 10 
 
 3 
 
 For every fuU sum of X50, and 
 also for any fractional part of 
 £50 thereof, .... 
 
 (3) Of any other kind whatsoever not hereinbefore 
 
 described, . . 10 
 
 And see sections 96, 97, 98, 99, 100. 
 
 These sections are as follows : — 
 
 Agreementsfor 
 leases for not 
 more than 
 thirty-five 
 years to be 
 charged aa 
 
 Leases in re- 
 spect of pro- 
 duce or other 
 goods, oAi 
 valorem, duty 
 on value stipu- 
 lated or value 
 according to 
 rate of conver- 
 sion. 
 
 Sect. 96. (1) An agreement for a lease or tack, or with respect to the 
 letting of any lands, tenements, or heritable subjects for any term not 
 exceeding thirty-five years, is to be charged with the same duty as if it 
 were an actual lease or tack made for the term and consideration men- 
 tioned in the agreement. 
 
 (2) A lease or tack made subsequently to, and in conformity with, 
 such an agreement duly stamped, is to be charged with the duty of 
 6d. only.'^^ 
 
 Sect. 97. (1) Where the consideration, or any part of the consideration, 
 for which any lease or tack is granted, or agreed to be granted, does not 
 consist of money, but consists of any produce or other goods, the value of 
 such produce or goods is to be deemed a consideration in respect of which 
 the lease or tack or agreement is chargeable with ad valorem duty, and 
 where it is stipulated that the value of such produce or goods is to 
 amount to, or is not to exceed, a given sum, or where the lessee is 
 
 ™ See the former law and practice in 
 Matheson v. Duff, 1779, M. 16942; 
 Maodonald v. Macdonald, 1778, M. 
 16956, Hailea 789 ; overruled in Hollo v. 
 
 Eeid, 1787, M. 16944; Hutchison ■/. 
 Perrier, 1851, 13 D. 837, aff. 1 Macq. 
 196, 15 D. (H.L.) 7. 
 
STAMP DUTIES. 95 
 
 specially charged witli, or has the option of paying after, any permanent 
 rate of conversion, the value of such produce or goods is, for the purpose 
 of assessing the ad valorem duty, to be estimated at such given sum, or 
 according to such permanent rate. 
 
 (2) A lease or tack or agreement made either entirely or partially for statement of 
 any such consideration, if it contains a statement of the value of such ^y "unt5° "' 
 consideration, and is stamped in accordance with such statement, is, so shown to he 
 far as regards the subject matter of such statement, to be deemed duly 
 stamped, unless or iintil it is otherwise shown that such statement is 
 incorrect, and that it is in fact not duly stamped. 
 
 Sect. 98. (1) A lease or tack, or agreement for a lease or tack, or with No duty in 
 respect to any letting, is not to be charged with any duty in respect of ^^^''^°* °\ 
 any penal rent, or increased rent in the nature of a penal rent, thereby in oonsidera- 
 reserved or agreed to be reserved or made payable, or by reason of being 1°^°^ exStSg 
 made in consideration of the surrender or abandonment of any existing lease, 
 lease, tack, or agreement of or relating to the same subject matter. 
 
 (2) No lease made for any consideration or considerations in respect Lease liable to 
 whereof it is chargeable with ad valorem duty, and in further considera- '^'^^''^f^ vi 
 tion either of a covenant by the lessee to make, or of his having for substantial 
 previously made, any substantial improvement of or addition to the pro- w^essee'M'a'' 
 perty demised to him, or of any covenant relating to the matter of the f ui'tber con- 
 lease, is to be charged with any duty in respect of such further con- 
 sideration. 
 
 (3) No lease for a life or lives not exceeding three, or for a term of Lease by 
 years determinable with a life or lives not exceeding three, and no lease ecclesiastical 
 for a term absolute not exceeding twenty-one years, granted by an '^^"'^ °^' 
 ecclesiastical corporation aggregate or sole, is to be charged with any 
 
 higher duty than 35s. 
 
 (5) No lease or tack, or agreement for a lease or tack, in Scotland, of Lease in Scot- 
 any dwelling-house or tenement, or part of a dwelling-house or tene- ^^""^ °^ dwell- 
 ment, for any definite term not exceeding a year, at a rent not exceeding n"? exceeding' 
 the rate of £10 per annum, is to be charged with any higher duty no^t^exceedi* 
 than Id. rate of £10,°^ 
 
 Sect. 99. The duty upon an instrument chargeable with duty as a lease ^ase^j'^' 
 or tack for any definite term less than a year of — than one year 
 
 (1) Any dwelling-house or tenement, or part of a dwelling-house or w.^ft^.^' 
 
 tenement, at a rent not exceeding the rate of £10 per annum ■ ™°* "t rate 
 
 (2) Any furnished dwelling-house or apartments : ' P?n\'lT'^?^ 
 
 r\ i-T- J T J. ^-iw, s£ime II 
 
 Ur upon tlie duplicate or counterpart of any such instrument, may be ^'^'"shed 
 denoted by an adhesive stamp, which is to be canceUed by the person dupUcate.'^ma; 
 by whom the instrument is first executed. ''e denoted by 
 
 Sect. 100. (1) Every person who executes, or prepares or is employed if abovrr"''' 
 m preparing, any instrument upon which the duty may, under the provi- "»* <i"ly ^^^^^ 
 sions of the last preceding section, be denoted by an adhesive stamp, ajid berrrezecu-' 
 which IS not, at or before the execution thereof, duly stamped shall *"°"' Penalty 
 forfeit the sum of £5. ' °^ Pe''™u who 
 
 executes or 
 prepares, £5. 
 
96 
 
 CONSTITUTION AND PROOF OF THE CONTEACT. 
 
 Proviso as to 
 letters or cor- 
 respondence. 
 
 Expense of 
 after-stamp- 
 ing. 
 
 Articles of 
 
 (2) Provided that nothing in this section contained shall render any 
 person liable to the said penalty of £5 in respect of any letters or 
 correspondence. 
 
 Where an uiistamped deed is founded on by one of the 
 parties in a suit, the expense of stamping will in the first 
 instance be borne by that party ;^' but in the ultimate decision of 
 the cause, if the deed is a mutual deed (such as a lease), which 
 both parties were bound to stamp, the expense will, as a general 
 rule, be divided equally between them.^^ 
 
 Articles of Lease. 
 
 It is the practice in many large estates, for the purpose of 
 securing regularity and, as far as possible, uniformity, in the 
 system of agricultural management, and for the sake of brevity, 
 to embody in a document called ' Articles of Lease,' the condi- 
 tions and stipulations under which, unless validly modified, the 
 different farms are to be let. These articles are different in 
 different districts and even in adjoining estates, and they are 
 altered from time to time according as ideas regarding the most 
 suitable modes of cultivating the land change.*^ The principal 
 point is to make sure that the articles have been adopted and 
 incorporated in each lease of which they are intended to be a 
 part. This adoption may be totaH" or partial,''^ and no 
 particular form of words is imperative.'^^ Thus adoption of 
 articles of lease, unsigned by the tenant, was held to be proved 
 sufficiently by a formal missive, binding the offerer — the 
 tenant — in the conditions of another tenant's lease which 
 incorporated the articles as being in course of preparation, and 
 by a draft lease, signed by the tenant, and containing a reference 
 to the articles as drawn up. Possession followed during the 
 whole course of the lease. ''^ Probably the Court of Session was 
 right in thinking that the reference in the missive to inchoate 
 regulations was too vague to be relied on. A copy written, or 
 more usually printed, is delivered to each tenant,^* and this is 
 all the more expedient if, as is sometimes the case, the tenant does 
 not sign a docquet on a copy of the articles for identification, or 
 
 ^ Neil V. LesHe, 1867, 5 M. 634 
 Grant V. Walker, 1837, 16 S. 246. 
 i» M'DouaU V. Caird, 1870, 
 
 M. 
 
 1012, overruling Boyd v. M'Kenna, 
 1824, 2 S. 712 (N.E. 593); Monro r. 
 Hogg, 1830, 9 S. 225 ; and see Church v. 
 Sharpe, 1843, 5 D. 876. 
 
 ^' Some forms have been collected in 
 Appx. xiii. hereto. 
 
 fo Lyon v. Irvine, 1874, 1 I!. 512. 
 
 ^ In Pratt v. Abercromby, 1858, 21 
 D. 19, only one of the estate regulations 
 (as to drainage) was incorporated. 
 
 ''- See 1 Jur. Styles (5th ed.), 581. 
 
 '^ Gordon v. Anderson, 1825, 4 S. 13, 
 aff. 3 W. and S. 1 ; see Gordon v. Robert- 
 son, 1825, 3 S. 656 (N.E. 468), rev. 2 
 W. and S. 115. 
 
 '^ See Crichton v. Meason, 1828, 6 S. 
 403. 
 
FORMAL LEASE NOT CONTROLLED BY PAROLE. 9 I 
 
 a copy is not annexed to his lease. Tiie articles do not now 
 require to be stamped/^ being only of force as parcel of the 
 incorporating lease. The articles are binding on the lessor and 
 his successors, whether universal or singular, if properly adopted, 
 and if the contract be otherwise complete^'' and they, like any other 
 express bargain, override local custom.'^'' These 'articles' are not to 
 be confounded with mere jottings of the particulars of a lease which 
 it is intended to put into formal shape in the future though this 
 intention has never been carried out;^^ nor with conditions ' such 
 ' as are to be granted to tenants now taking new leases.' The 
 effect of the latter stipulation is to show that the whole conditions 
 of lease are not contained in the document relied on, and to let in 
 proof of what these conditions actually were, and particularly of 
 any stipulation made about the same time as the said document, 
 though in the interval there have been certain acts of possession."' 
 
 Admissibility of Parole. 
 
 As in the case of other written contracts, parole evidence will 
 be admitted to clear up a latent ambiguity; to show that a term 
 in the lease has a technical meaning, and that it was used in that 
 sense ; or to explain, if relevant, the state of the premises at the 
 date of the lease. The cases in which and the conditions under 
 which custom or usage may be proved will appear in consider- 
 ing the obligations of parties. But, like other written contracts, 
 leases cannot be controlled, redargued, or modified by under- ^oj controlled 
 standings arrived at, or communings which took place between by prole 
 
 . o ± evidence. 
 
 the parties prior to, the conclusion of the bargain or unico con- 
 textu with it and not reduced into obligatory form. The rule is 
 in full operation where there is a formal lease — one document 
 regulating the rights of the lessor and lessee.^" Thus, where a 
 lease was executed, proof of a verbal promise said to have been 
 made by the lessors at the time of its execution, and said to 
 have led to the tenant's engagement to give the stipulated rent, 
 was refused as incompetent.*^ And, where a lease recited that 
 
 '■^ Not mentioned in the subsisting 8" On the principle of Inglia v. Buttery 
 
 Stamp Act, 33 & 34 Viet. c. 97. The & Co., 1878, 5 R. (H.L.) 87 ; and Lee i. 
 
 Act 55 Geo. III. c. 184, which imposed Alexander, 1883, 10 E. (H.L.) 91; and 
 
 a duty, was repealed quoad hoc by 33 earlier cases therein cited ; Stewart v. 
 
 & 34 Vict. 0. 99. Clark, 1871, 9 M. 616 ; Barclay v. Neil- 
 's Macra v. Mackenzie, 1828, 6 S. 935 son, 1878, 5 R. 909 ; Carmichael t>. Penny, 
 
 (signed unico contextu). 1874, 11 Sc.L.R. 636. 
 
 " Gordon ». Thomson, 1831, 9 S. 735. ^i Glasgow Mags. v. Maofait, ns,";, 
 
 '8 E.Aboynev. Ogg,1810, Hume847; M. 12341; Maxwell v. Burgess, 1773,' 
 
 Gammellj;. Andersons, 1836, 15 S. 233. M. 12351, in effect overruling Har- 
 
 "> E. Mansfield v. Henderson, 1856, rower v. Wells, 1749, Elch. Prescription 
 
 18 D. 989. 31. ' 
 
 G 
 
98 CONSTITUTION AND PROOF OF THE CONTRACT. 
 
 certain subjects had been delivered over to the tenant at a given 
 valuation, to be deducted from the value of the same at the out- 
 going, the landlord was not entitled to redargue the terms of his 
 own ' solemn contract ' by proving that only part of the subjects 
 had actually been included in the valuation at entry. ^^ A lessor 
 will not be entitled to withdraw a part of a subject let in a formal 
 tack on the plea that it was inserted by mistake, and was not 
 embraced in the preliminary minute ;^^ nor a lessee to add to the 
 subjects let something not mentioned in the lease, except on 
 proof by writ or oath.^* Where, on the other hand, the contract 
 has to be spelt out of two or more documents hinc inde, the 
 diflSculty may arise whether these writs contain, or were intended 
 to contain, the whole bargain ; and the rule seems to be that the 
 Court, if convinced that a valid contract has been established ; 
 that, as shown by rei interventus or by express terms, it is a lease 
 for years ; and that on the face of it there is something lacking to 
 determine the true position of the parties, will allow proof proui 
 de jure to supply the want. Therefore the endurance of a lease, 
 proved by rei interventus to have been a lease for years, was 
 thus supplied in a case which seems to transgress no maxim of 
 our law.^^ If the missive does not suggest the necessity of 
 supplement, nothing will avail except writ of date subsequent 
 to the lease (or oath) with rei interventus.^^ Where the question 
 relates not to the contents of the lease, but to the scope of the 
 granter's authority, parole evidence is of course admissible.^'^ 
 Proof of sub- But after the contract has been concluded there is nothing to 
 sequ^ent altera- prevent the parties or their successors from making any innova- 
 tion on it they please, or from authorising a breach ; and this 
 may be proved by probative writ ; by the oath of the party 
 whose interest it is to maintain the contrary ; or by informal 
 writ *^ or parole, provided that in these last cases there be such 
 rei interventus following on the alteration as instructs the assent 
 or acquiescence of the said party. This rule was first given effect 
 to without any elaborate argument in a case where the altera- 
 tion from a grain to a fixed money rent was made out by proof 
 
 8- Lawson v. Murray, 1825, 3 S. 536 859; StewartttClark, 1871, 9M. 616. Cf. 
 
 (N.E. 371). L. Polwarth iJ.Murray, 1887, Sc.W.N. 58. 
 
 8' E. Fife's Trs. v. Duncan, 1824, 3 S. 87 j)„^^ „ Walker, 1822, 2 S 81 
 
 ■2il (N.E. 178). (N.E. 73). 
 
 « Stewart v. Clark, supra, ™. 88 See Johnstone v. Grant, 1844, 6 D. 
 
 8" Macleorl ,. Urquhart, 1808, Htime 875. Doubts have been expressed with 
 
 840 ; cf. Morrison v. M'Kirdy, 1841, 4 D. what appears to be unnecessary scrupu- 
 
 2.04, 14 So. Jur. 100 ; E. Mansfield r. losity a.s to whether a signed draft of an 
 
 Henderson, supra, ™. alteration could found rei interventus- 
 
 -•' Philip uCumming'sE.xrs., 1869, 7 M. Sinclair r. M'Beath, 1868 7M 273- 
 
INNOVATION INSTRUCTED BY PAROLE. 99 
 
 of agreement followed by payment and accounting conform.^* But 
 the law in regard to innovation by verbal agreement can scarcely 
 be said to have been settled before a celebrated judgment of the 
 House of Lords,®" which may be thus stated — reserving a 
 consideration of the general law of rei interventus to a later 
 page : — 
 
 A proprietor, by a written contract of lease, let the coal under wark v. Bai- 
 his lands. The lessees were restricted from working within s^i^^^^o^'^f^o- 
 fifteen feet of the boundaries. On the allegation that this 
 stipulation had been violated by the lessees, the lessor brought 
 an action to have them compelled to erect a wall or barrier of 
 the thickness stipulated. The lessees were also tenants of the 
 coal in the lands adjoining. They alleged that the lessor had, on 
 their request, verbally consented to allow them to work through 
 the adjacent coal. And they set forth on the record various 
 matters, which, as they maintained, involved rei interventus, and 
 proved consent and acquiescence. The lessor admitted knowledge 
 of what had occurred, but denied the existence of evidence of 
 consent and acquiescence. In the Court of Session it was 
 held incompetent to prove such a relaxation of, or departure 
 from, an important part of a written lease by parole evidence. 
 To offer to prove that such a request was made, and that the 
 subsequent operations tended to show it was reasoning in a circle. 
 The first thing to be established was, that there was such an 
 agreement as that averred. Therefore any operation which took 
 place after that date could never be of the smallest value in 
 proving the existence of that agreement. But this judgment 
 was reversed, and it was held that if, after a parole agreement 
 has been made, there is what the law calls rei interventus, that 
 is, if there are acts and circumstances following upon the agree- 
 ment in performance of it, then it is no longer revocable. It is 
 as valid as if it had been made in writing ; and the averments 
 of a verbal agreement and of the rei interventus following on it 
 must be viewed in combination and as forming a whole, and 
 sent to proof together. Neither element could stand alone.®i 
 
 The soundness of the doctrine thus laid down has never been KiApatrick^ 
 seriously impugned, and has recently been confirmed in a case coai Co. 
 
 89 BaiUie V. Eraser, 1853, 15 D. 747 '' Gibb v. Winning, 1829, 7 S. 677 
 
 .(receipts for eleven years inconsistent (no averment of express consent) ; and 
 
 with original bargain). Scot .. Cairns, 1830, 9 S. 246 (feu, no 
 
 9" Wark V. Bargaddie Coal Co., 1856, averment of acquiescence), were therefore 
 
 IS D. 772, rev. 3 Macq. 467, 21 D. held rightly decided. See also B. Aboyne 
 
 -(H.L.) 1. The question did not really v. Ogg, 1810, Hume 847. 
 iirise in Granger r. Geils, 1857,19 D. 1010. 
 
100 CONSTITUTION AND PROOF OF THE CONTHACT. 
 
 iQ which the facts demanded greater precision in the staiement 
 of the law than was necessary in Warlc's case. To an action for 
 a half-year's rent of a coal-field, the defence was that the land- 
 lord, in order to enable the tenant to resist the demand of his 
 workmen for an increase of wages, had verbally agreed to reduce 
 the rent by a third, and that on the faith thereof the tenant had 
 resisted these demands and locked out the workmen for two 
 months. A majority of the Judges of the First Division held that 
 the rei interventus was insufficient ; that the facts alleged were 
 quite consistent with the lease as it originally stood; that there 
 must be an inconsistency between the original contract on the 
 one hand, and both the agreement and the acts inferring acquies- 
 cence on the other, and that, though there was some looseness 
 in the language employed by the Lord Chancellor in Wark's 
 case, the real import of the judgment was set forth by Lord Cran- 
 worth, where he spoke of its only dealing with ' something done in 
 ' contravention of the lease.' Lord Shand was of opinion that it 
 was enough if the agreement was inconsistent with the original 
 bargain, and if the facts alleged were such as naturally followed 
 on the innovation. ^^ It will be seen farther on, in treating of 
 rei interventus generally,^' that the ruling view is most in 
 keeping with the maxim that the facts proved must be ' unequi- 
 ' vocally referable ' to the informal agreement. 
 By way of When the alteration in question is an abatement of rent, there 
 
 (reduction) of i^ the additional difficulty, if the evidence of the agreement be 
 rent. merely parole, that the facts and circumstances relied on are 
 
 usually susceptible of explanation, either as importing an ease, 
 allowed year by year, or a permanent reduction. Thus, while 
 a permanent reduction all over an estate has been made out 
 by putting in evidence a letter from the landlord to his factor 
 acted on for a course of years,'* and while reference to oath has 
 been suggested as the only competent mode of proving the new 
 bargain apart from writ"^ or judicial .admission,'^ proof by 
 parole pure and simple has been rejected over and over again.'^ 
 In one case the Court saw its way to a different conclusion, but 
 the question was admitted to be difiBcult, and the point arose not 
 out of a transaction of the ordinary sort, but out of one in which a 
 
 "^ Kirkpatriok v. AUanshaw Coal Co., 9' qjj,], ,, winning, supra, ^\ 
 
 1880, 8 R. 327, and dicta in Sutherland, s" Thomas v. Dumbreck, 1834, 12 S. 
 
 1860, 22 D. 665, therein cited ; and see a 285. 
 
 case of alleged communing with a factor, ^ Riddick v. Wightman, 1790, and 
 
 Skinner v. L. SaltouD, 1886, 13 R. 823. Grant v. Watt, 1802, Hume 776, 777 ; 
 
 '" Infra, p. 114. Law v. Gibsone, 1846, 13 S. 396. 
 
 »^ Lindsay v. Webster, 1841, 4 D. 231. 
 
CAHDIXAL CLAUSES IN A LEASE. 101 
 
 grain-rent was altered into a money-rent, with the ultimate result 
 of loss to the tenant.*"* 
 
 Cardinal Parts of a Lease. 
 
 The ordinary clauses in leases of the subjects which are in Cardinal parts 
 use to be let in Scotland will be referred to later in considering 1,^^ ''°"" 
 the rights and obligations of parties during the course and at the 
 termination of the relation of landlord and tenant, and it would 
 serve no good end to go through these clauses in order, for the 
 purpose of suggesting suitable forrns.®^ It is only necessary to 
 notice here the mode in which the law regards the contract of 
 lease when a question arises between the parties or their repre- in questions 
 sentatives — not by singular title — in respect to the cardinal parties and 
 parts of the contract — the parties, the subject, the rent, and 'g^i.^g'^^^ta"''^ 
 the duration. The law relating to the parties to a lease hastives. 
 been sufficiently considered.^"" As to the subject matter, the Eirtios. 
 freedom of contract entitles the parties to bind themselves and " ^®''*' 
 their representatives in regard to any subject which is or may 
 come under their control, unless, as in the case of mansion-houses 
 and their appurtenances on an entailed estate,"^ there be a 
 statutory disability; and it is only when an attempt is made 
 to raise the lease of certain subjects into the position of real 
 rights "- that the law refuses its aid. As to rent, the parties are Rent, 
 entitled to agree to an elusory rent;"^ to a rent in the shape of 
 service;"* or to rent set against payment of interest on debt due 
 by the landlord to the tenant, or reserved for liquidation of the 
 same, or for any purpose not rendered illegal by the general law 
 of contract. Or the rent may be wholly or partially discharged."^ 
 But probably there ought to be some reservation of rent, however 
 elusory.^"® If there be no lease or agreement of lease at all, the 
 occupant of a subject belonging to another is presumed to occupy 
 as tenant at the annual value of the subject in lieu of rent."' 
 But this liberty in adjusting the rent is subject to the disabilities 
 which were pointed out in the first part of this work as affect- 
 ing certain persons, such as limited owners and trustees. 
 
 Lastly, as to the duration of the right. A lease may, subject Duration. 
 
 "s BaiUie V. Eraser, supra, «•. "' Ross v. Blair, 1627, M. 1516^ and 
 
 "' See 1 Hunter, 367 d seij. ; 1 Jur. casesunder Act 1449, im/ra, p. 131; B.Pr. 
 
 Styles (5th ed.) 565. "98. 
 
 ™ Svpra, pp. 5 et seq. "^ Du'-h^'"- l^^S. ^- l^lf,; ^7*""' 
 
 101 Supra p 70 1625. M. 15167, 16476 ; Mellerstanes, 
 
 102 Infra p 121 1591. ^1- l^l''^ ' ^ ^®^'' ^^^^' ^^■ 
 
 >»3 Sinclair" r. M'Beath, 1788, Hume "" Yourgf. Cockburn,1674, M.11624; 
 
 773 (one penny Scots, if required). Glen v. Roy, 1882, 10 R. 239. 
 
 '"J Ibid, (as factor) ; Lundie ;. Smith "^ Supra, pp. 33, 64. 
 of Lundie, 1610, M. 15166 ; Brsk. 2.6.54. 
 
102 CONSTITUTION AND PROOF OF THE CONTRACT. 
 
 to what has already been set forth in regard to personal disa- 
 bility,"' be granted in perpetuity,"" or for a very long period,"^ 
 or for an indefinite period — as for and until the repayment of 
 debt'^^ — or for no specified period."^ When no period is specified 
 the rule has been said to be to construe the term as being for 
 one year only, or, if the lease implies a longer duration, then the 
 shortest that the words admit of.^^* And where a tack without 
 an ish, but plainly importing a lease for years, had subsisted for 
 years, immediate removing was ordered, apparently on the theory 
 that the possession was — at the date of the action at least — - 
 reduced to possession from year to year."^ But the modern 
 rule is the more equitable — to let in proof of the intention 
 of parties in executing what, though defective, was evidently 
 meant to be a contract of lease, by parole,^'* with or without 
 the aid of preliminary documents, such as advertisements.^^' The 
 absence of an ish may, however, have another result ; it may go 
 far to show that the transaction was never intended as an assur- 
 ance, but only as a revocable lease or licence. The tenant of 
 a coal-pit agreed to let adjoining owners have the water which 
 was pumped from his pit and discharged theretofore into a 
 stream, ' so long as he continued to pump,' on condition that 
 he was to be put to no expense in the matter, and that his 
 own use of the water was not to be interfered with. The 
 grantees after three years' use obtained a better supply else- 
 where, and ceased to make use of the former supply and to 
 pay the stipulated rent or price. Lord Mure's construction of 
 the bargain was, that the grantees would have had to continue 
 paying the return, though they ceased to carry on the operations 
 for which the water was required, and that an ish was to be 
 found in the termination of the granter's own lease, and not 
 till then. But the other Judges of the First Division took 
 
 W9 Swpra, chaps, i., ii. place of one who represented the lussor, as 
 
 "» Crichtonu.Vt. Air, 1031,1m. 11182, explained in 1 Bell, Leases, 42,1 ; Knox 
 
 S.C. 15191 (from five years to five years) ; v. Irvine, 1759, M. 5276, 15199. 
 
 Carruthers v. Irvine, 1717, M. 15195 ('as "^ Armour v. Lands, 1671, M. 16284 ; 
 
 ' long as the grass groweth up and the M'Tavish r. M'Lauohlan, 1748, M. 1736 ; 
 
 ' water runneth down ') ; Ker r. Waugh, S.C, M. 15248. 
 
 1752, M. 10307; and cases on Act 1449, "» Eedpath v. White, 1737, M. 15196. 
 
 infra, p. 124; 2 Eoss'Lect. 490; 1 B.C. 66. "^ Ibid.; Or.. 2.10.7 ; Mack. 2.6.9; St. 
 
 "1 Houston r. L. Garnock, mentioned 2.9.16 ; B. Pr. 1194 ; 1 Bell, Leases, 315. 
 
 at M. 10308 (400 years); Welwood r. "' ciark v. Lament, 27th Jan. 1816, 
 
 Husband, 1874, 1 K. 607 (999 years) ; F.G. 72. 
 
 L. Adv. v. Fraser, 1758, M. 15196, 1 "« M'Leod v. Urqiihart, svpra, &'. 
 
 Hailes 406, rev. 2 Pat. 66 (1140 years; "!• Russell r. Freen, 1836, 13 S. 752 ; 
 
 Crown bound as coming on forfeiture in Wilson v. Mann, 1876, 3 R. 527. 
 
PROOF OF LEASE FOR A YEAR OR UNDER. 103 
 
 what seems to have been the sounder view, that there was no 
 lease on account of the absence of ish, more especially as the 
 granter might, without recourse, have put the arrangement to 
 an end by ceasing to pump.'^^ 
 
 III. Proof of Leases not formally Constituted. 
 
 1 . Of Leases for not more than a year. 
 
 All leases which are not constituted by probative writ or writs ' verbal 
 are, by a somewhat unfortunate nomenclature, known as ' verbal ' '^^"s^*' 
 leases, meaning thereby, not that they are constituted by word 
 of mouth, but that some evidence other than documentary is 
 required to establish the existence of the contract. To one sort Leases for a 
 of these the term is quite properly applied, for, as has been ^^"j." 
 hinted above,^^® by an exception to the rule requiring formal 
 writing, or, perhaps, by adhering to the common law of location 
 as a purely consensual contract^"^" requiring no formality of con- 
 stitution, leases for not more than one year may be proved prouf 
 de jure, by witnesses as well as by the other modes of probation 
 known to the law,^^^ whether there has been possession or not.^^^ 
 Where besides parole there is also documentary evidence, it 
 will be a question depending for its answer on the circumstances 
 of each case, whether the document was intended to exclude 
 further inquiry into the terms of the bargain, or can only be 
 regarded as part of the evidence thereof The facilities which 
 now exist^^^ for after-stamping, even in the course of a law-suit, 
 deprive the question of much of its former importance,^^* and the 
 point raises more a speculative than a practical difScnlty, since 
 in most cases the character of the writ — as a bungled tack 
 intended to be regular.i^^ a letter and reply offering and accepting 
 relocation from year to year,^^^ or a mere jotting of terms — will 
 at once betray itself The onus of proof may be shifted from 
 the tenant to the landlord if, in reply to an averment of a usual, 
 he alleges an unusual, period of endurance.^^' 
 
 "8 Dunlop & Co. r. Steel Co. of Scot- does not seem to be law. See Jackson r. 
 
 land, 1879, 7 E. 283. Grahame, 1705, M. 12413. Bruce, 1628, 
 
 ™ Stipra, p. 89. M- 3609, is not in point. 
 
 ^™ I. (3,25); 1.2 D. (19.2) ; C. (4.65) ; '-' Supra, p. 92. 
 
 Pothier, Louage ; St. 1.15 ; Ersk. 3.3.14; '-^ Hutchinson r. Terrier, 1851, 13 D. 
 
 B. Pr. 136 ; 1 B.C. 452. 837, aff. 1 Macq. 190. 
 
 ™ Cr. 2.10.10; St. 2.9.4 ; Mack. 2.6.5 ; ^^ Kanoliv. Stewart, 1844, 6 D. 1103 ; 
 
 Bankt. 1.11.23 and 2.9.5; Ersk. 2.6.30; Sutherland i: Hay, 1845, 8 T>. 283; 
 
 3.2.2 ; B. Pr. 1187 ; 1 Bell, Leases, 281 ; Anderson v. Tuach, 1870, 7 Sc.L.R. 319 
 
 and ca«es on p. 90, supra, notes *'", ■"'. (promissory note for rent). 
 
 Cowan V. Brownlee, 1833, 12 S. 65, is ^"-^ Hutchinson, svpra, ^-i 
 
 not contra. '" <"-'bson v. Adams, 1875, 3 R. 144 
 
 ^^ L. Pitsligo V. Paton, 1678, M. 12410, (seven months). 
 
104 
 
 CONSTITUTION AND PROOF OF THE CONTBACT. 
 
 Aries or The bargain seems to be neither the better nor the worse for 
 
 earnest. ^^^ giving of arlcs or earnest. Thus, in a case where arles and 
 
 caution for rent were given, and the owner of the house, hearing 
 that the lessee in the interval between the bargain and the date 
 of entry had gone to England with all her effects, gave a lease to 
 another party, the Court found that he was not entitled to do so ; 
 but the judgment in favour of the first lessee was not in any way 
 based on the arles.^^* But, contrary to the general rule,!^^ local 
 custom may establish a right in a lessee of house-property by 
 formal instrument to overgive or throw up the bargain at a 
 certain distance of time before the date of entry, the only penalty 
 being forfeiture of the earnest."" If there had been no earnest 
 there would have been no penalty, for, the overgiving having 
 been timeous, the landlord in the actual case had by reletting 
 saved himself from injury. ^^^ 
 
 Of course, the oath of party on reference,^^^ or his judicial 
 admission, is equally competent in proof of these short leases. 
 
 The opinion has been hazarded that when tacit relocation 
 supervenes at the termination of a lease deviations from the 
 original bargain may be proved by parole, since the lease is only 
 primd facie evidence of the terms of the verbal lease which has 
 been engrafted on it.^^* But this seems to be an inaccurate view 
 of the effect of tacit relocation, and the deduction drawn from it 
 seems to be open to grave doubt. '^* If the lease be merely 
 verbal its terms may from time to time be altered by agreement, 
 proveable by parole evidence ; as, for instance, where the landlord 
 intimated certain proposed innovations on the contract, with 
 notice to the tenant that if he had objections they must be stated 
 within a given time, and, in default of objection, the tenant was 
 held to have consented to the change."^ 
 Duration. If a verbal lease or paction be made for a period longer than 
 
 one year it has been said that ' it would not be binding even for 
 ' one year, because the terms and conditions must have been 
 ' adjusted at the commencement of a course of years, and would 
 ' probably be quite unsuitable to a shorter period; and the 
 ' allowing such an agreement to be binding for one year would 
 ' be to convert one transaction into another.'^'® This doctrine is 
 
 Oath on refer- 
 ence. 
 Judicial 
 admission. 
 Proof in tacit 
 relocation. 
 
 Proof of 
 alterations. 
 
 '=8 Topping V. Barr, 1830, 8 S, 973, '•» Tait, Ev, 222; Dickson, Evid. sects. 
 
 ™ B. Pr. 173, 113, 173, 
 
 "° Watt V. Stewart, 1703, M, 8472 i'« Infra, chap, xxii. 
 
 (forty days before term). 135 Morrison v. Campbell, 1842, 4 D. 
 
 ™ Kerv. Downie, 1670, M, 8470 (four- 1426. 
 
 teen days too late). ™ Tait on Evid. 221 ; Tail's Justice of 
 
 '32 Stewart r. Leith, 1766, M. 16178, Peace, 381, 
 
PROOF OF LEASES FOR A YEAR OR UNDER. 105 
 
 apparently sound, where possessiou has not followed, and 
 matters are entire.-'^' Thus, a tenant in a verbal lease for years, 
 on which he bad never possessed, was held entitled to resile, but 
 he was bound to pay a penalty, which, by his own admission, 
 was stipulated for in the event of his resiling.^'* Where, how- 
 ever, the lessee has entered into possession under a verbal lease for 
 a series of years, the lease will be obligatory upon both parties for 
 one year, and the lessee must pay the stipulated rent.^^^ But even 
 although there has been possession and rent has been paid, a verbal 
 lease for a term of years is binding for one year only, and either 
 party is entitled to resile at the end of each successive year.^*" 
 It cannot be said, however, that this rule of subsistence for a 
 year, and from year to year, is settled law ; for there was much 
 difference of opinion on the Bench in a modern case in which the 
 point did not require to be settled. A lease of furnished rooms 
 for sixteen months, it was held, could not be proved by parole ; 
 but the frame of the issues did not raise the question now under 
 discussion. Something will, doubtless, turn on the hardship 
 caused hinc inde to the parties by removing at a broken term.^*^ 
 And there may be a right to indemnification for outlay expended 
 ■in bond fide and on the faith of a valid contract.^*^ Meliorations 
 by either party or other rei interventus will not avail to set 
 up as a lease for years a contract proved only by parole evi- 
 dence."^ The question in such cases will be whether there are 
 stipulations in the lease for years incompatible with a one year's 
 lease. ^** 
 
 The rule requiring: probative writ in dealing with heritage in leases of 
 
 „ .„ ,>,i-i i incorporeal 
 
 is not founded on the old Statute 1449, c. 17, which converts subjects, 
 leases of certain subjects — and not of others — into real rights on 
 certain conditions. So that it may be allowable to conjecture — 
 
 13^ 1 Bell, Leases, note y, pp. 2S1-3. 22nd Nov. 1810, F.C. 40, overruling A 
 
 '^ Skeen, infra, "». '• B, 1629, M. 8400. 
 
 139 Tait on Evid. 229 ; Bell, Leases, "^ Fowlie u M'Lean, 1868, 6 M.254. 
 
 supra, ™. See the analogy of contract of service in 
 
 '*> St. 2.9.4; Bankt. 2.9.5 ; Ersk. 2.6.30 Eraser, M. and S. 30, 36, and esp. Pater- 
 
 and 3.2.2 ; 1 B.C. 388 ; 1 Bell, Leases, son v. Edington, 1830, 8 S. 931. 
 
 281-5 ; Edmonston v. Edmonston, 1566, ^^ Walker v. Milne, 1823, 2 S. 379 
 
 M. 12418; Mowat r. Johnston, 1636, (N.E. 338); Bell ,). Bell, 1841, 3 D. 
 
 JI. 8400, 15170 ; Skeen, 1637, M. 8401 ; 1201. 
 
 Paterson v. Burton, 1711, 4 B.S. 830 ; '« Pp. 106 seg?. ; and Skeen, mpva, 
 
 Mackenzie i. Trotter, 1729, M. 8437; "° ; Mackenzie v. Trotter, supra, "» ; 
 
 L. Braoo ... Innes, 1742, M. 15176; Neill (. E. Ca^aillis, supro, i*. 
 
 Stewart v. Leith, 1766, M. 15178; i44 gindair v. Weddell, 1868, 5 S.L.R. 
 
 Buchanans. Baird, 1773, M. 8478; A r. 664; Irvine i. Field, 1871, 8 Sc.L.R. 
 
 B, 1791, M. 15181 ; Neill v. E. Cassillis, 381. 
 
106 CONSTITUTION AND PROOF OF THE CONTRACT. 
 
 though there is no authority in point — that it would be as incom- 
 petent to let out rights to rents, game, services, ferries, or 
 feu-duties, by word of mouth for a longer period than a twelve- 
 month, as to let out land, mills, mines, fishings, or woods. A case 
 in which right to the use of steam for heating purposes was claimed 
 by the tenant of a factory with steam-power under a formal 
 lease does nothing to illustrate the point, for the claim was really 
 to be allowed parole proof of a covenant omitted from a written 
 contract, and therefore plainly inadmissible."' But a not too 
 distant analogy may be drawn from another sort of location — 
 the locatio operarum or contract of service — where the same 
 distinction is drawn between contracts for not more than a year 
 and contracts of longer endurance.^** 
 2. Of Leases for Tnore than a year. 
 An equitable It has been already pointed out that there is a salutary modi- 
 Se^rtdot rule! fi^^tion of the Strict rule requiring probative writ or writs in 
 constituting leases for more than a year, where the conduct of 
 parties makes enforcement of that rule demonstrably inconsistent 
 with good faith. The law cannot be better stated than in the 
 words of L.P. Inglis : ^*'' — ' If things have been done on the faith 
 ' of the agreement and in pursuance of it — that is to say, if the 
 ' agreement has been followed by rei interventus, there is a rule 
 ' of law to this effect, that an improbative writing combined with 
 ' rei interventus shall be sufiScient. The operation of rei inter- 
 ' ventus is sometimes expressed as a bar to locus poenitentice, 
 ' but the practical effect is that it perfects the contract. Further, 
 ' a verbal lease for a period of years, followed by rei interventus, 
 ' will be sufficient. . . . With regard to the verbal bargain I 
 ' think it is quite fixed that that can only be proved in one or 
 ' other of two ways. The first mode is by writing. There is 
 ' nothing anomalous in saying that a verbal bargain may be 
 ' proved by writing ; for there may be writing enough to prove 
 ' though not to constitute the agreement. The other mode is by 
 ' oath.' "^ There are thus two elements requisite to the comple- 
 tion of a binding contract in this informal mode : (A) proof of 
 
 ""• Stewart v. Clerk, 1871, 9 M. BIB. "' Then L.J.-C, in Walker j. Flint, 
 
 i« B. Pr. 173, 190 ; Gaddel v. Sinclair, 1863, 1 M. 417, 42], containing matter 
 
 1749, M. 12416 ; Paterson v. Edington, quoted, suijra, p. 89. 
 
 supra, "1 ; Praser, M. and S. 28 et seq. ^"^ See also general obs. in Gowana' 
 
 No help is got from a case relating to a Trs. v. Carstairs, 1862, 24 D. 1382, 1386, 
 
 duty-house let with, but not possessed as 1387, 1389, to the same effect ; Gibson r. 
 
 accessory to, town customs ; Greig r. Adams, 1875, 3 R. 144 ; Philip ,;. Cum- 
 
 Boyd, 1827, 6 S. 250 ; Scott .. Boyd, ming's Trs., 1869, 7 M. 859. 
 1829, 7 S. 592. 
 
PROOF OF LEASES NOT PEOBATIVE : WRIT. 107 
 
 the agreement, which cau only be by writ or by the oath of the 
 person who is or might be made the defender in an issue 
 in which the existence of a lease is put in question ; and 
 (B) proof of the conduct of the parties following on the 
 agreement (rei interventus). In each case these two elements 
 must be looked at together, as unum quid, the force and 
 relevancy of each being only to be judged of with reference 
 to the other ; they must be correlative. But it is possible, and 
 it may be useful, in illustration of the rule, to set out separately 
 what sort of writs have or have not been admitted for the purpose 
 of letting in proof of rei intei-ventus ; how an agreement may be 
 proved by oath ; and what sort of facts have or have not been 
 held to come up to proof of acquiescence, so as to complete the 
 contract. 
 
 A. Evidence Instructing an Agreement. 
 
 1. Writ. 
 
 As to the capacity of certain writs to instruct agreement of Writ, 
 parties, there is no doubt or difficulty. To this category belong 
 a minute or missives signed by both parties, but neither holograph Minute, mis- 
 nor tested ; "* a missive signed by the landlord ^^ or by the ^'^^''" 
 tenant, 1^^ and labouring under the same informality. The inform- 
 ality may arise in various ways, as by being initialed instead of 
 being signed in full,^^^ faulty execution by notaries,^^^ the lack of 
 subscription by witnesses,^^* or of a date.^*'^ It is equally clear 
 that the writ of a factor empowered to grant leases is equivalent Factor's writ, 
 to the writ of his constituent, the scope of his authority being a 
 matter of fact proveable 2^'>'out de jure}^^ Thus while a proposed 
 additional agreement between landlord and tenant, dictated by 
 the landlord to his factor in the tenant's presence, and handed 
 
 '^ Duncan v. Barron, 1762, M. 15177, Leases, SOB ; Gardner i: Beresford's Trs., 
 
 16984, Elch. Tack, 19; Campbell r. 1878, 4 K 885, 5 R. 638, aff. 5 R. (H.L.) 
 
 M'Pherson, 1793, Hume 786. 105, 3 App. Cas. 582. 
 
 i5» Grant v. Richardson's Reps., 1788, '■" M'Morran r. Black, 1624, M. 16830, 
 
 M. 15180; L. Arbuthnot -v. Campbell, 17012. 
 
 1793,Hume785;M'Phersonr.M'Pherson, "^ Grant v. (irant, 1753, M. 13841, 
 15th May 1815, F.C. 352 ; Cs. Moray did not raise the point, being decided on 
 ('. Stewart, 1772, M. 4392, 15179, rev. the plea of all parties not called, but 
 2 Pat. 317 (offer signed by a number of there can be no doubt of the law. 
 tenants, but not tested); Sievewright i. "° Gordon ,•. Hall, 17.')7, M. 15178 
 Scott, 1796, Hume 790. (not properly a case of want of formal- 
 in' Pollock ■„. Craig, 1773, 5 B.S. 621; ity). 
 Forbes v. Wilson, 1873, 11 M. 454 ; Ross '"" Sinclair v. Caithness Flagstone Co., 
 V. Ross, 1790, Hume 774; Graham v. 1880,7 R. 1117,1120, per L.P. Inglis ; 
 Gowans, 1792, Hume 784 ; Keir .•. D. aff. on this point, 8 R. (H.L.) 78, 90, 
 Athole, 1815, 6 Pat. 130. I'Cr L. Watson ; Kinslie v. Duff, 1865, 
 '^= Urummond v. Scott, 1787, 1 Bell, 3 M. 854. 
 
108 
 
 CONSTITUTION AND PROOF OF THE CONTRACT. 
 
 Articles of 
 roup. 
 
 to the tenant unsigned, and by him afterwards accepted in 
 writing, was an incomplete contract open to repudiation by 
 either party, it would have been an excellent foundation 
 for rei interventus}^'' If the factor have no authority, ex- 
 press or implied from the course of estate management, 
 his writ will of course not bind the landlord. ^^^ A letter 
 addressed by a factor not to the tenant but to a subfactor, 
 and by him delivered to the tenant as his title is equally 
 available as if it had reached him direct.^*" A missive 
 .signed per procuration for the landlord in whose name it 
 lan by his son at his request, though insufficient to bind the 
 landlord by itself, was held to be protected from repudiation by 
 the conduct of the parties.''*" 
 
 There are also certain writs, having as their proper function to 
 lead up to a formal lease, as to which there is little difficulty in 
 assuming that, if a formal contract is not executed, and the 
 parties proceed as if it had been, the reason is mere neglect, or 
 anything rather than that the contract was incomplete. Such 
 are articles of roup, open to objection on the score of informality or 
 otherwise, but followed by an offer from the intending tenant ;^*^ 
 and an advertisement similarly accepted.^*^ There are other 
 documents of a more private nature, of which the same cannot 
 be said, and which nevertheless have over and over again been 
 admitted for the purpose of letting in proof of rei interventus. 
 Drafts, copies. Of this sort are drafts and copies of leases. It is necessary to 
 examine carefully the circumstances in which they have been 
 admitted. In the earliest case an unsigned draft lease was given 
 by the landlord to an outgoing tenant, and the intention of 
 parties to make ' a finished transaction,' was shown by receipts 
 for rent which expressly mentioned the ' new ' or ' second ' tack.^*^ 
 Ill the next case, Lord Glenlee founded his judgment, allowing 
 proof of rei interventus, on an unsigned draft prepared by the 
 landlord's agent, and not effectively repudiated by the landlord 
 himself, while the other Judges (erroneously) were satisfied with 
 
 Advertise' 
 ments. 
 
 '■■>'' Sinclair, '"" (there was no proper 
 averment of 7'ci interventus). See also 
 Ross V. Ross, supra, ^^K 
 
 "' Campbell v. Robertson, 1797, noted 
 ill Maxwell r. Grierson, Huine 849. 
 
 IS" Arbuthnot i: Reid, 1804, Hume 
 81.5. 
 
 i"" Bell V. Goodall, 1883, 10 R. 905 ; 
 and in Scottish Lands, &c., Co. i>. Shaw, 
 
 1880, 7 R. 756 (sale). 
 
 '"I Haly V. Sands, 1749, M. 16354 ; 
 Elch. Tack, 15 (the offer was written, but 
 this would not be necessary). 
 
 '•>- Campbell v. M'Kinnon, 1 867, 5 M. 
 636, aff. 8 M. (H.L.) 40. In Russel r. 
 Freen, 1835,13 S. 752, the advertisement 
 supplied the duration. 
 
 "■' Grieve i: Pringle, 1797, M. 5951. 
 
INFORMAL WRITS. 109 
 
 parole.^^* In the latest case^^Hhere was an unsigned draft, from 
 which could be ascertained all the essentials of a lease. It was 
 drawn by or for the landlord, revised by the tenant, and returned 
 as adjusted to the landlord, and there was written corroboration 
 of the transaction in entries in a rental book and in certain 
 accounts. Though it thus appears that in the two most authori- 
 tative cases the drafts did not stand alone in proof of the agree- 
 ment, it does not seem to have been held that written corro- 
 boration is required ; i^" and it may be assumed that the rei 
 interventus which supervenes is the best proof of the intention 
 not to regard a draft as a merely preparatory document. And 
 this will more particularly be the case where the draft is the only 
 document embodying the terms of the contract. If, on the 
 contrary, an original bargain is contained in a completed lease or 
 minute, a mere draft, intended only as such, though signed by 
 one of the parties, will not let in rei interventus to prove any 
 innovation on that bargain.^®' Notarial copies of missives would 
 be equally available.^*^ An unsigned minute may be set up as 
 containing the terms of a contract by a signed writ competently 
 referring to it as such from one of the parties or his factor. ^*^ 
 The same rules would be applied to an extended lease never 
 signed.^'" 
 
 The evidence of agreement is still more slender where the Memoramia ii 
 writ consists of notanda or memoranda by the landlord in his 
 estate-books or elsewhere. Yet it is well established that such 
 notes may be used as foundation for rei interventus}''^ An 
 unsigned note holograph of the landlord, containing the names 
 of tenants, the farms for which their offers were accepted, and the 
 rent, and retained in the landlord's possession, has been held 
 sufficient for this purpose, but the judgment turned chiefly on 
 tlie fact that the memorandum was a semi-public document 
 
 '*^ Campbell r. Dougal, 1813, Hume copies sent by the landlord's factor to the 
 
 861. tenant, the originals being lost. 
 
 i«5 Bathie v. L. ■Wharncli£fe, 1873, '"g x)_ (jordon r. Cariuichael, 180n, 
 
 11 M. 490. Hume 805 (the factoi's writ was pro- 
 
 ^^ See opinions of 1st Division in bably holograph, and the contract was 
 
 Bathie, ^^. therefore completed by the tenant's 
 
 '^ Semile — Sinclair v. M'Beath, 1869, mere possession, supra, p 91. 
 7 M. 273, but the point did not require i™ Seeder L. Moncreiff, L.O., in Gird- 
 to be decided, since the averments of rei wood r. Wilson, 1834, 12 S. 576. 
 interventus were insuflScient. ^^ It has been even questioned on the 
 
 168 In Williamson 11. Fraser, 1834, 12 S. Bench whether they do not constitute 
 
 466, it was admitted that there had been written leases ; E. Dalhousie v. Crokat, 
 
 a lease, and the question was as to its 1868, 6 M. 659. 
 terms, and these were ascertained from 
 
110 CONSTITUTION AND PROOF OF THE CONTRACT. 
 
 applicable to a large number of tacks."^ Similarly, entries for 
 a long series of years in the rental book of a society instituted 
 for the purpose inter alia of acquiring and giving out land for 
 settlement were, when taken along with the advertisement of 
 lots, held to be habile titles to let in proof of rei interventus}''^ 
 It is said to have been decided in more than one unreported 
 case that a memorandum in a landlord's pocket-book mentioning 
 the endurance of a lease, would suffice ; ^^* but the opinion may 
 be hazarded that this could only have been decided in very 
 exceptional circumstances, or in connection with other writs. In 
 a case which was narrow in each part of it,^^^ the writs which 
 were held to instruct agreement were — a letter from the landlord 
 to his son asking him to get the answers of certain villagers on 
 the estate to an offer of leases made previously to them ; the 
 son's note-book containing memoranda of some answers ; a list 
 in which the factor marked the names of some villagers as 
 willing to take leases and held equivalent to a rent-roll ; and 
 letters from the landlord to his son and factor, explaining why 
 he did not desire a final settlement, and suggesting an interim 
 arrangement which showed that he held these villagers bound 
 by their agreement in any event. -^'^ A case, similarly com- 
 plicated, and therefore of little use as a precedent, involved 
 mainly an entry in a factor's books ; receipt for rent and rates ; 
 and a guarantee of assistance in an action brought by the tenant 
 as such.^''^ On the other hand, where a landlord kept no rental- 
 book but only a ledger, in which there was an entry charging 
 a tenant with rent and adding figures which meant, as the land- 
 lord swore on a reference to his oath, that the verbal settle- 
 ment he had made with his tenant began in 1802, and was to 
 terminate in 1817, neither writ nor oath was held to instruct 
 a contract, though it may now be assumed they would have 
 supported a plea of rei interventus if that had been in the 
 case.-^''* 
 Of large In all these cases, while keeping in view that the function of 
 
 estates. ^.j^^ ^^^.^^ ^^ ^^^-^ ^^ ^^^ ^^ Constitute the lease, but to instruct the 
 
 existence of a verbal agreement, it will be well not to forget the dis- 
 tinction between a writing ' irregular and unshapely as it may be 
 
 1'= E. Aboyne v. Ogg, 1810, Hume 847 "''' Sellar i: Alton, 1875, 2 E. 381. 
 
 (duration was admitted). SeeBathie !•. '?" Ogilvy v. Ramsay, 1802, 1 Bell, 
 
 L. Whariidiffe, supra, «». Leases, 508 (the last element seems the 
 
 ^~' Campbell v. M'Kinnon, 1867, 5 M. most important). 
 
 636, iifE. 8 M. (H.L.)40. "8 Maxwell r. Grierson, 1812, Hume 
 
 "* 1 Bell, Leases, 307-8. 849. 
 
 ^'^ See infra, p. 116. 
 
RENT-ROLLS : RECEIPTS FOR RENT. Ill 
 
 ' which appears to have been intended by the parties at the time 
 ' as the permanent evidence of a finished agreement,' and ' a brief 
 ' note or occasional memorandum made by the landlord for his 
 ' own private use, or some transient and incidental mention of 
 ' terms of set in a writing destined for some quite different 
 ' purpose.'"^ Perhaps it may be laid down on a review of the 
 circumstances of the cases in which such notanda have been 
 admitted, that the admission will be confined to entries in 
 documents which affect a considerable number of tenants, like 
 the rent-roll of a large estate, or notes of negotiations with a 
 number of tenants at the same period of time. This view 
 receives some further support from a decision in which the 
 Court admitted as the sole writ, a letter from the husband of a 
 proprietrix (who left the management to him) giving a list of farms, 
 with the rent, duration of lease, &c., to the surveyor of taxes, in 
 order to enable him to make up the valuation roll, and by him 
 acted on. The reason for thus admitting a res inter alios acta, 
 was that the letter was not a mere private writing, but a statu- 
 tory return regulating political rights, taxes, and rates. ^^^ The 
 existence and import of a lease have been held to be instructed — 
 (1) by a letter from the tenant (then sitting from year to year) 
 asking leave to break up pasture, and to perform certain opera- 
 tions which would occupy a period of years ; (2) an acceptance 
 signed by but not holograph of the landlord ; (3) a letter 
 from the landlord's agents to the tenant, declaring the ish ; 
 (4) an advertisement of sale of the estate, showing the ish and 
 rent ; and (5) entries in the cash-book of the factor (who was 
 also the tenant) docquetted by the landlord or his representa- 
 tives and audited.^^^ In the Registration Court, entry in the 
 factor's accounts and collection lists has been with good reason 
 rejected. ^^^ 
 
 On the other hand, a simple receipt for rent is not a sufficient Receipts for 
 writ.^^^ The Court has twice refused this effect to receipts which 
 bore that the rent paid was for part of a new tack or new agree- 
 ment for a term of years.^*^ In the one case, the receipt was 
 written by the tenant, and might have been signed by the landlord 
 without adverting to this unusual addendum. In the other case, 
 the writing was wholly that of a factor who had no power to grant 
 
 '■'•' Per Baron Hume in reporting last '^ Gnwans' Trs. .•. Carstairs, 18H'2, 24 
 
 case. 1^- 1382. 
 
 i«» Emslie v. Duff, IS6.5, 3 M". 854. >''-' Anon. 1798, and Campbell v. Robert- 
 
 181 Wilson V. Mann, 1876, 3 R. 527. son, 1797, noted in Maxwell -■. Grierson, 
 
 182 Craig V. Bell, 1871, 10 M. 8. Hume 849. 
 
112 CONSTITUTION AND PROOF OF THE CONTRACT. 
 
 leases. The broad question is thus open, whether a receipt for 
 rent, drawn and signed by a landlord or his authorised agent, 
 and setting forth the footing on which the rent was paid to be a 
 lease for years, would be accepted as sufficient to let in proof of 
 acquiescence. On a review of the cases which have occurred 
 during the present century, it can hardly be doubted that it 
 would. 
 
 2. Oath of Party. 
 
 It is now settled, ^^^ after some fluctuation of opinion,^*^ tliat a 
 verbal agreement may be proved by the oath on reference of the 
 party who is or might be made defender in an issue putting in 
 question the existence of an agreement; in other words, of the 
 party who attempts to deny or to resile.^*' The rule does not 
 affect singular successors of the lessor, who are entitled to ignore 
 everything but writing.^** It has its equivalent in a judicial 
 admission.^'^ The Court will satisfy itself of the relevancy and 
 sufficiency of the averments of rei interventus before allowing 
 the oath to be taken, otherwise the solemnity might be futile.^'* 
 The whole stipulations of the lease have to be proved by writ, 
 or oath, or judicial admission, and it will not be permissible 
 to instruct by parole evidence any stipulations which are not 
 therein contained. ^'^ 
 
 B. Rei interventus. 
 
 In a passage which has been frequently adopted on the Bench 
 as law, Mr. Bell says,-^®^ 'Rei interventus raises a personal exception, 
 ' which excludes the plea of locus poenitentia}. It is inferred 
 ' from any proceedings not unimportant on the part of the 
 ' obligee, known to and permitted by the obligor to take place 
 ' on the faith of the contract as if it were perfect ; provided they 
 ' are unequivocally referable to the agreement and productive of 
 ' alteration of circumstances, loss, or inconvenience, though not 
 ' irretrievable.' Elsewhere Mr. BelP®* describes, in contrast to 
 this, the sort of facts which are required to prove not only the 
 
 is= B. Pr. 1187; Walker r. Flint, 1863, 15176; Brodie's Stair, p. 369; Tait, 
 
 1 M. 417 ; Gowans' Trs. v. Carstairs, Evid. 222. 
 
 1862, 24 D. 1382, 1387, 1388 ; Neill v. i67 Mode's Notes, 67. Not of a party 
 
 E. Cassfflis, 22nd Nov. 1810, E.G. 40; long out of possession. Thomson v. 
 
 M'Rorie ■„. M'Whirter, 18tli Deo. 1810, Young, 1828, 7 S. 32. 
 l''-C- 86. 188 B. Pr. 1187, infra, p. 119. 
 
 ^^ Cf. Balllie v. Somerville, 1611, M. '89 Macrorie, supra, ^^. 
 
 8398 ; Low v. Lyell, ibid. ; Johnston v. >» ggg Bra^g„ ^ Innes, supra, '^^ 
 
 Logan, 1621, M. 8399 ; Lawrie v. Keir, i^' Paterson v. E. Fife, 1865, 3 M. 423 
 
 1630, M. 12736, 15169; Murray, 1630, "^ B. Pr. 26. 
 
 M. 15170, with Braco v. Innes, 1742, M. "' B. Pr. 946. 
 
REQUISITES OF EEI INTERVENTUS. 113 
 
 rei interventus but also the implied contract or permission itself 
 on which it follows — ' Where great cost is incurred by operations 
 ' carried on under the eye of one having a right to stop them, 
 ' or where under the eye and with the knowledge of him who 
 ' has the adverse right, something is allowed to be done which 
 ' manifestly cannot be undone, the law will presume an agree- 
 ' ment or conventional permission as a fair ground of right.' i"* 
 We have here to do only with rei interventus of the first 
 degree, whose function is to prevent repudiation of an express 
 contract, not to prove the contract itself. It will be observed 
 that the emphasis of the facts is much weaker in the former than 
 in the latter case. The question whether the facts are strong 
 enough to bar resiling is, in every case, a question of circum- 
 stances. 
 
 The contract being mutual, and each party, therefore, at the Requisite 
 same time obligor and obligee, the actual proceedings which, 
 where acquiesced in, clinch the bargain, may be those of either 
 or both.^^^ But there is greater difficulty in relying on the 
 landlord's actings than on the tenant's, for, in many cases, it may 
 be argued that the proceedings would be equally available and 
 beneficial whatever tenant might be obtained.^'"' They must 
 follow in time the verbal agreement, though not necessarily the 
 writ or oath by which it is instructed ■,^^' and they must be 
 ascribable to that agreement, not to some other (such as a formal 
 lease) which has supervened. ^'^ The knowledge and permission 
 required does not necessarily involve actual cognisance and con- 
 scious permission of everything or anything that is done on the 
 faith of the agreement ; for it is enough if the one party puts 
 the other into a position in which he may fairly rely on the 
 existence of an agreement, and the latter acts accordingly.^^^ 
 The circumstances in which knowledge by the landlord of the 
 tenant's actings would be regarded as requisite, are illustrated 
 below, ^o" 
 
 '"* Both passages approved by L. Ch. crorubie, 1858, 21 D. 19. 
 
 Chelmsford in Wark v. Bargaddie Co., 3 "* Gardner v. Beresford's Trs., 1878, 5 
 
 Macq. 467, 477, 479, supra, p. 99 ; and K. 638, aff. 5 E. (H.L.) 105 (formal lease 
 
 see also Kirlcpatrick there. reduced). 
 
 1"° Of. Skeen, 1637, M. 8401 ; Forbes v. "' See in other departments of the law. 
 
 Wilson, 1873, 11 M. 454; Sutherland & Ballantyne v. Carter, 1842, 4 D. 419; 
 
 Co. V. Hay, 1845, 8 D. 283 ; Sharp v. Johnston v. Grant, 1844," 6 D. 875, 7 D. 
 
 Napier, 1822, 1 S. 477 (N.E. 444) ; with 390 ; Ch. of England Ass. Co. v. Wink, 
 
 the other cases, infra, pp. 114-6. 1857, 19 D. 1079. 
 
 '*> Skeen, supra, ^^^. ^ Infra, p. 116, Bell i: Goodall and 
 
 "^ Emslie v. Duff, 1865, 3 M. 854, 866, Gardner <-. Beresford's Trs., supra, ^^, 
 
 per L. Ardmillan ; and see Pratt v. Aber- '"*. 
 
 H 
 
114 
 
 CONSTITUTION AND PROOF OF THE CONTRACT. 
 
 referable to the 
 agreement. 
 
 Unequivocally The chief difficulty in practice is to show that the proceedings 
 founded on were ' unequivocally referable ' to the prior agreement. 
 And, on account of the fact that there is always the possible 
 alternative of a lease for not more than a year as the true or 
 a possible foundation for the actings of parties, the problem is 
 usually reduced to showing that these actings were consistent 
 only with the existence of a bargain for a longer period. To 
 prove mere possession is therefore not enough, for possession 
 may always be ascribed to the minor tenure. ^"^ The circum- 
 stance that this obvious consideration has been frequently lost 
 sight of has given rise to a great deal of misconception.^"^ The 
 function of possession, as has been, and as will be shown, is, 
 first, to clinch a bargain already perfected on the landlord's 
 side ; ^"^ second, to help in converting a personal into a real 
 right 5^"* and third, to perfect an assignation.^"^ Most of the 
 cases in which possession alone was founded on for the present 
 purpose probably belonged, if we knew the full details, to the 
 first category, the landlord's writ being holograph or tested. 
 Where that does not seem to have been the fact,^"'^ the cases 
 have been overruled. 
 
 The usual rei interventus consists of improvements made by 
 the tenant. The rule was laid down early in this century in 
 these words : ' The ordinary improvements in the way of better 
 ' culture and management of the lands were not a sufficient rei 
 ' interventus to bind a verbal bargain of set for a term of years ; 
 ' yet the case was otherwise with proceedings of the kind (erecting 
 ' a building for £60 on subjects let for £12, 12s.) here founded 
 ' upon, which are referable only to a bargain for a term of years, 
 ' and should not have been permitted unless the bargain was to 
 ' be implemented.' ^"'^ Each case will depend on its own 
 circumstances, the main elements being the amount and expense 
 of the melioration, the amount of the rent, and the duration 
 alleged. The decisions do not afford much assistance. Land- 
 
 Forms of rei 
 interventus. 
 
 Tenant's im- 
 provements. 
 
 -" 1 B.C. 328 ; B. Pr. 1189, 1190 ; 
 More's Notes, 244 ; Tait, Evid. 231 ; 
 Clark V. Lamont ; Macrorie v. Macwhir- 
 ter, supra, '^ ; Eowlie v. M'Lean, 1868, 
 6 M. 254. 
 
 ^"^ Mr. Hunter's whole exposition is 
 thus vitiated, i. 415 et seq. 
 
 2«3 Supra, p. 91. 
 
 2»« Infra, p. 121. 
 
 ^'^ Infra, chap. ix. 
 
 "^ See M'Morran v. Black, 1624, M. 
 16830, 17012 ; Duncan v. Barron, 1752, 
 
 M. 15177, 16984 (a bundle of heresies) ; 
 Grant v. Richardson's Reps., 1788, M. 
 15180 ; Sievewrjght v. Scott, 1796, Hume 
 790 ;_ Rose v. Ross, 1790, Hume 774 ; D. 
 Gordon c Carmichael, 1800, Hume 805 ; 
 M'Arthur v. Simpson, 1804, M. 15181. 
 
 207 pg^ curiam in Macrorie v. Mac- 
 whirter, 18th Dec. 1810, E.G. 86, fol- 
 lovped in Clark v. Lamont, 27th Jan. 
 1816, F.C. 72 ; Philip ;■. Cumming's Trs., 
 1869, 7 M. 859, and see Keir v. D. Athole, 
 1815, 6 Pat. 130. 
 
CIRCUMSTANCES INSTRUCTING BEI INTERVENTUS. 115 
 
 lords have been held not to be bound by allowing a building 
 to be converted into a meeting-house, through the alteration 
 of partitions and erection of pews,^"^ nor by allowing a small 
 outlay on a farm-steading and inclosures ;^''^ while as sufficient 
 rei interventus have been recognised such improvements as 
 these : contributing carriages ; ^^^ liming, enclosing, and im- 
 proving a moor at large outlay ; ^^^ turning a field into garden- 
 ground by trenching and planting fruit-trees and shrubs ; ^^^ 
 leading lime ; ^^^ boring for mineral, in the case of a mineral 
 lease ; ^^* cutting whins, draining, cai-rying lime, and making a 
 bam ; ^^* erecting a barn, making a mill-lade, and certain other 
 alterations ; ^^^ making dykes and other improvements ; ^^'^ form- 
 ing an avenue across a small piece of land let for the purpose ; ^^^ 
 taking down ruinous cottages, so that the landlord may use 
 up the materials, driving tiles, and importing manure and lime 
 at great expense ;^^^ and building dwelling-houses on small 
 allotments. ^^^ It may be anticipated that the statutory security 
 for indemnification for outlay on certain improvements, introduced 
 by the Agricultural Holdings Acts, 1883, ^^^ will largely impair 
 the value of these as indicia of the true duration of a tenant's 
 holding. Apart from that Act, there would be a valid claim Damages, 
 in equity for reimbursement of money spent on meliorations, 
 so far as in rem, versum of the landlord, if so spent on the faith 
 of a contract of which there is no proof but parole,^^^ and some- 
 times this is expressly stipulated.^^^ In other respects no damages 
 are due for exercising the privilege of resiling. ^^* 
 
 Other forms of rei interventus have been these : providing s^i interventus 
 
 other than 
 improvements. 
 
 --« Mickenzie i. Trotter, 1729, M. ^is porbes v. Wilson, 1873, 11 M, 454. 
 
 8437. 219 Bathie »-. L. Wharncliffe, 1873, 11 
 
 2™ Clark V. Lamont, supra, -'". R. 490. The improvements in Neill v. 
 
 ™ Haly V. Sands, 1749, M. 16354, E. CassUUs, 22nd Nov. 1810, F.C. 40 ; the 
 
 Eloh. (Tack) 15. enclosing in Gowans' Trs. v. Carstairs, 
 
 2" Grieve v. Pringle, 179", M. 5951. 1862, 24 D. 1382; and the piggeries in 
 
 ■^12 Campbell v. Dougal, 1813, Hume Walker v. Flint, 1863, 1 M. 417, would 
 
 ■861. probably have been sufficient rei inter- 
 
 2'^ Drummond v. Scott, 1787, 1 Bell, ventus, if that could have been pleaded. 
 
 Leases, 306 (taken along with entering 220 Campbell v. M'Kinnon (Tobermory) 
 
 on a submission about marches, the land- 1867, 5 M. 636, aff. 8 M. (H.L.) 40. 
 
 lord concurring). 221 45 & 47 yjgt ^ gg ; Appx. hereto ii. 
 
 21* Sinclair v. Mossend Iron Co., 1854, 222 g^e Walker v. Milne, 1823, 2 B. 
 
 17 r>. 258. 379 (N.E. 338) ; Bell v. Bell, 1841, 3 D. 
 
 215 Murdoch v. Moir, 18th June 1812, 1201. 
 
 r.C. 692. ■ =23 skeen, supra, '^"i Pollock v. Craig, 
 
 2i« Emslie V. Duff, 1865, 3 M. 854. 1763, 5 B.S. 621. 
 
 21'' Cs. Moray v. Stewart, 1772, M. -^ Sproul v. Wilson, 1809, Hume 920 ; 
 
 4372, 15179, rev. 2 Pat. 317. Dallas v. Eraser, 1849, 11 D. 1058. 
 
116 
 
 CONSTITUTION AND PROOF OF THE CONTRACT. 
 
 CoiTespond- 
 enoe with the 
 writ. 
 
 Before 
 possession 
 under it. 
 
 Duration of 
 the lease. 
 
 recruits for the landlord's regiment ; ^^^ paying grassum ; ^-^ and 
 paying a rent larger than that which was payable under a former 
 lease, if for the purpose of the new bargain that lease was given 
 up by the tenant before its natural termination, the ratio being 
 that the increment of rent during the surrendered years was 
 a grassum, only explicable on the supposition of a new lease 
 for years.^^'' An increase of rent supervening at the natural 
 close of a lease can scarcely be said to indicate a new lease 
 for years any more than a yearly tack ; ^^* and a recent case in 
 which this was the only rei interventus may therefore be deemed 
 to be wrongly decided.^-' A landlord who allows a sublease for 
 a term of years to be granted with his full cognisance, to be 
 followed by possession, and to go unchallenged for a considerable 
 period is barred from resiling. ^^^ Conversely, a tenant who sees 
 the subject let taken out of the market, so that the opportunity 
 and season of letting slips past, will not be allowed to repudiate 
 his bargain ; ^^^ but whether it will be set up for his full stipulated 
 duration or only for a year will, it is suggested, depend largely on 
 circumstances. 
 
 It is not necessary that the actings founded on should be 
 in accordance with express stipulations in the writ adduced ; 
 but, if such be the case, the connection of causality between 
 agreement and performance is the more distinct. -^^ The rei 
 interventus may take place, before possession in virtue of the 
 imperfect contract is possible, as during possession under an 
 old lease and in contemplation of a new one.-^^ The same 
 rules as to rei interventua apply whether the lease alleged to 
 have been agreed on is of ordinarj' or of extraordinary endur- 
 ance.23* 
 
 --' Campbell c. M'Pherson, 1793, 
 Hume 786. 
 
 ^^^ Maororie v. Macwhirter, supra, -"'. 
 See Burnet v. M'Kimming, 1835, 14 S. 
 74 ; E. Aboyne v. Ogg, 1810, Hume 
 847. 
 
 "~ E. Aboyne v. Ogg, supra, —*•. 
 
 -^ See Campbell i: Robertson, 1797, 
 noted in Hume 849 ; Paterson v. Burton, 
 1711, 4 B.S. 830. This element was not 
 req^uired for the decision in Ballantine v. 
 Stevenson, 1881, 8 R. 959. 
 
 -■-" Sellar t>. Alton, 1873, 2 R. 381. 
 
 -™ Bell V. Goodall, 1883, 10 R. 905. 
 
 ^"^ Illustrations used in SutherLmd i: 
 Hay, 1845, 8 D. 283, where, however, 
 this was only one of a number of elements 
 and the lease was only' for a year. 
 
 -■'-' Bathie r. L. WharnclifEe, supra, 
 -1'; Keir i: T>. AthoU, 1815, 6 Pat. 130. 
 
 -*' Murdoch r. Moir, 8th June 1812, 
 F.C. 692. 
 
 ^'* Gowans' Trs. v. Carstairs, 1862, 24 
 I). 1382. 
 
117 
 
 CHAPTER V. 
 
 LEASE AS A REAL EIGHT. 
 
 Leases — originally and in their nature merely personal contracts Aotl449, c 17. 
 — were in certain cases converted into real rights^ by the opera- 
 tion of the old Act 1449, c. 17, as liberally construed by the 
 Court.^ The Act is thus conceived : — ' It is ordained for the 
 ' safetie and favour of the puir people that labouris the ground, 
 ' that they, and all utheris that hes taken or sail take landes in 
 ' time to cum fra lordes, and hes termes and zeires thereof, that 
 ' suppose the lordes sell or annaly that land or landes, the takers 
 ' sail remaine with their tackes, unto the ischew of their termes, 
 ' quhais handes that ever thay landes cum to for siklike maill as 
 ' they tooke them for.'^ 
 
 The order of exposition will be to explain — I. Against what Order of 
 persons tenants are thus protected (' quhais handes that ever thay "^'^ ™™ " 
 ' lands cum to '), and II. What are the requisites for the 
 creation of this real right, these being — (1) That the lease 
 (when for more than a yearj shall be iu writing ; (2) That the 
 subject matter of it be land or those adjuncts, which are styled 
 /undo annexa ; (3) That the lessee shall be in possession; 
 (4) That the lease shall have an ish or termination expressed, 
 or in other words shall be of a defined duration ; and (5) That a 
 rent shall be stipulated. 
 
 I. — Against whom the Statute gives Tenants Peo- 
 
 TECTION. 
 
 The Act comes into operation if the landlord 'sells or alien- 
 ' ates ' the land. It was not required for protection against the 
 
 1 TJie phrase is convenient though not Bankt. 2.9.1 seq. ; 2 Ross' Lect. 476 ; 
 
 quite accurate ; see per L. Neaves in 1 B.C. 65 ; B. Pr. 1190 ; More's Notes, 
 
 Edmond v. Reid, 1871, 9 M. 782. 244-8. 
 
 "- Balf. 200 ; Or. 2.10.2-10 ; St. 2.9.2 ; "■ The Act is c. 6 in Thomson's Ed. 
 
 see Brodie's Note to sect. 43 ; Mack. 2.35, and c. 18 in Glendook's CoUec- 
 
 2.6.S, and Obs. 37; Ersk. 2.6.23 seq.; tion. 
 
118 LEASE AS A REAL EIGHT. 
 
 lessor's representatives, but only against singular successors, in- 
 cluding as construed- — (1) Purchasers and creditors ;* (2) Heirs of 
 entail, so long as the lease is not contrary to the law as set forth in 
 an earlier chapter f (3) Widows, infeft in locality lands, so long 
 as the husband's power of administration has been exercised fairly 
 and in bond fide ;^ (4) Superiors attaining possession by liferent 
 escheat of their vassal, provided that leases granted after 
 denunciation are fair and bond fide contracts;^ and (5) The 
 Orown and its donataries of gifts of forfeiture, ultima hceres, 
 bastardy, and escheat. Forfeiture of a vassal does not invalidate 
 a lease when it has been clothed with possession before the 
 commission of treason, since the fee returns to the Crown cum 
 suis oneribus realibus? It is now settled that this rule applies, 
 though the duration be extraordinary and though a grassum 
 have been given.^ It seems to follow that the Crown would not 
 be entitled to object to a lease on the ground of inadequacy of 
 rent. The limited right of a liferenter's tenant to sit till the 
 Whitsunday following the lessor's death will be referred to 
 hereafter.!" 
 Non-entry. By the old law,!i on a decree of declarator of non-entry, and by 
 
 the law since 1874, on a decree in the action of declarator and for 
 payment of a casualty which has come in its place,!^ the superior 
 was and is entitled to take possession of the subjects feued out to 
 the exclusion of {inter alios) tenants, the reason being that by the 
 nature of feudal rights the fee must return to the superior upon 
 the falling of the feudal casualty as entire as when he first made 
 the grant, and that therefore the superior is not bound to 
 regard any deed granted by the vassal without his consent before 
 the casualty was incurred. Although the superior is entitled to 
 remove the lessee, he cannot do so summarily, but is bound by 
 statute to continue him in possession until the Whitsunday 
 following the date of the decree declaring the casualty, upon pay- 
 ment of the stipulated rent being made by him to the superior. ^^ 
 
 * As to the latter, see im/ro, chap. xxiv. rev. 2 Pat. 16 ; 1 Bell, Leases, 4'2. 
 
 ' Supra, p. 49. i" Infra, chap. xx. 
 
 « Supra, p. 71. " BaK. 201 ; Cr. 2.9.27, 2.19.23 ; St. 
 
 7 St. 2.4.66, 2.9.25 ; Bankt. 2.9.45 ; 2.9.25 ; Mack. 2.6.5, Obs. 37 and 104 ; 
 Ersk. 2.5.79 (without diminution of Bankt. 2.9.2 ; Ersk. 2.6.26 ; 1 Bell, 
 rental) ; Beaton ■». Scott, 1672, M. 3664. Leases, 68 ; 1 Bell, Convg. 616 ; see 
 
 8 Mack. Obs. 37 ; Cr. 2.10.8 ; St. Byers a. Law, 1628, M. 13791, 1 Br. 
 3.3.32 ; Home v. Oldhamstock's Tenants, Sup. 262 (heir-apparent). 
 
 1670, M. 4684 ; Dalziel v. Caldwell i^ 37 & 38 Vict. c. 94, sect. 4 (4), and 
 
 Tenants, 1674, M. 4685 ; M. Huntly v. Sched. B ; Begg's Convg. Code, 319. 
 
 Grant, 1677, M. 4689. " Authorities in " construing 1491, 
 
 5 L. Adv. V. Eraser, 1758, M. 15196, u. 26. 
 
REQUISITES : WRITING. 119 
 
 Mackenzie expresses a doubt whether this will hold when the 
 duty is only a simulate duty, and not near the rent of the land. 
 And he expressly lays it down that the statute will not protect 
 those who have paid their rents to the landlord ' beforehand.'^* 
 The lessee's right is not lost, but lies dormant, or is suspended, 
 during the non-entry, as it anciently was during the ward, and, 
 consequently, upon the entry of the heir the lessee is entitled to 
 resume possession, and retain it during as many years as were ' 
 
 unexpired when he was first excluded by the superior ; so that, 
 combining the period before his exclusion with that subsequent 
 to his resumption, the period stipulated may be completed.^''' 
 Even after the close of a liferent tack, the years of dispossession 
 were added for the benefit of the liferenter's heir.^^ It has been 
 well said that the lessee would undoubtedly be entitled to 
 damages for ejection. i" 
 
 II. — Requisites of a Real Right of Lease. 
 
 (1) Writing. 
 
 The Statute 1449, c. 17, has been read as applicable to leases Writing, 
 for more than one year only if they be in writing. ^^ Leases for a. 
 year or under do not require this solemnity. The rules regard- 
 ing writ laid down in the last chapter are equally applicable here, 
 and were illustrated in large part from cases which arose between 
 tenants and the singular successors of the landlord. It will be 
 sufficient to add in a note the most important of these.^' An 
 obligation to give a sitting tenant a lease for years, if required, 
 does not bind a singular successor of the landlord, if the 
 requisition was not made before the commencement of his right.^" 
 A purchaser will be bound to recognise an excambion between 
 his author and a tenant, though only instructed by writs which 
 
 " Mack. Obs. 104. ^' M. of Montrose v. .Walkinshaw, 
 
 "Authorities in"! Cr. 3.1.12; L. of l-'Oe, M. 13515; Garioch v. Forbes, 
 
 Culter V. , 1611, M. 16559. 1750, M. 15177 {sup. p. 90) ; Cs. Moray 
 
 16 Cunningham v. Crawford, 1670, M. v. Stewart, 1772, M. 4392, 15179, 
 
 lg557_ Hailes 485 ; rev. 1773, 2 Pat. 317 [sup. 
 
 1' 1 Jurid. Styl. (3rd ed.), 668 ; 1 Bell, p. 107) ; Skene -o. Spankie, 1790, noted 
 
 Leases, 70. 1 Bell, Leases, 313-14 {sup. p. 91) ; 
 
 18 Balf 202; Cr. 2.10.10 and 13; St. Dmmmond v. Gow, 1779, ibid. ; Sieve- 
 
 2.9.4 ! Mack. 2.6.5, and Obs. 37 ; Bankt. wright v. Scott, 1796, Hume 790 {sup. p. 
 
 2 9 5- Erak 2 9 '>i, 3.2.1 ; 2 Boss' 107) ; D. of Gordon v. Carmichael, 1800, 
 
 Lect.'475 ;"l B.C. 65 '; 1 Jurid. Styl. (5th Hume 805 {sup. p. 91) ; Arbuthnot f. 
 
 ed.) 565; Menzi.a' Lect. 822; 1 Bell, Reid, 1804, Hume 815 (s«P- P- fl) ; 
 
 Leases 34 • B Pr. 1190 ; Keith v. M'Arthur v. Simpson, 1804, M. 15181 
 
 Johnston's Tenants, 1636, M. 8400 (don- {sup. p. 114) ; Burnet ■.. M'Kimming, 
 
 atar); Leith v. Steuart, 1776, 1 Hailea 1835, 14 S. 74. 
 j-^ 20 Clerk v. Farquharson, 1 / 99, M. 15225. 
 
120 
 
 LEASE AS A REAL lilGHT. 
 
 Lands, &c. 
 
 Houses. 
 
 Ferry. 
 Harbour. 
 
 imply merely that such a transaction has taken place, or perhaps 
 by possession alone, if the ground exchanged be of small 
 extent.-^ 
 
 (2) Subject — Land and fundo annexa. 
 
 The terms of the statute are limited to ' lands ' alone. But 
 under that word there are included all those subjects which are 
 the adjuncts of land, styled fundo annexa, and which are held 
 to be capable of being created into separate tenements, or, as it 
 has been otherwise expressed, ' all heritable subjects capable of 
 ' such open and continuous possession as may naturally suggest 
 ' to a singular successor the existence of a lease.' ^^ These are 
 mills, minerals, salmon-fishings, and similar subjects. ^^ 
 
 Though houses are fundo annexa and may form separate 
 tenements, this ample construction of the statute was for long 
 held not to extend to them on account of the special reference in 
 the Act to labourers of the ground ; by the doctrine of ejusdem 
 generis, as applied to its more general words (all others) ; and 
 by the fact that in early times houses were usually let from year 
 to year.^* But these difficulties were eventually got over, on the 
 ground of expediency and universal practice.^^ If a house (a 
 shooting-lodge, for instance) be let as accessory to and for the 
 enjoyment of a right, to which the statute has no application, 
 there seems to be no reason for any exception to the rule that 
 the accessory follows the principal. Were it not so, and the 
 possession thus became severed, the value of each subject 
 would be seriously diminished during the severance.^^ 
 
 There can be little doubt that leases of rights of ferry or 
 of harbour may be made effectual against singular successors 
 of the lessors ; for these also are or may be made separate 
 tenements.^'' 
 
 ■-1 Kennedy v. Carlyle, 1836, 15 S. 
 102. 
 
 ^^ Per L. Deaa in Campbell r. 
 M'Kinnon, 1867, 5 M. 651. 
 
 23 Mack. Obs. 37 ; Bankt. 2.9.1 ; 
 Ersk. 2.6.27 ; 2 Ross' Lect. 467 ; 1 B.C. 
 65. 
 
 ^ Ersk. 2.6.27 ; 2 Ross' Lect. 504 ; 
 Rae V. Finlayson, 1680, M. 10211, 15216 
 (but here there was no proper stipulation 
 of rent, and the purchase preceded the 
 term of the tenant's entry, so that the 
 case was well decided on other grounds). 
 Balfour and Craig are silent; St. 2.9.2, 
 is ambiguous ; Bankt. 2.9,1, contra. 
 
 -« Waddel v. Brown, 1794, M. 10309; 
 Clerk v. Earquharson, -" ; M' Arthur r. 
 Simpson, ■' ; Lumsden v. Stewart, 1843, 
 5 D. 501, per L.O. Cunningharae ; Sandf. 
 EntaiKs 163 ; 1 B.C. 65, 755 ; Ersk. 
 2.6.27, notes; Brodie's Note to St. 
 2.9.43 ; 1 Jur. Styles (5th ed.) 565 ; 
 Menzies, 823 ; 2 Bell, Convg. 1114. 
 
 2" Hunter (i. 436), contra, on the prin- 
 ciple of jus nohilius. Greig v. Boyd, and 
 Scott V. Boyd, 1827, 6 S. 250 ; 1829, 7 
 S. 592, did not raise the question 
 (customs). 
 
 ^ See Gentle v. Henry, 1747, M. 
 13804. 
 
SUBJECTS NOT PROTECTED: POSSESSION. 121 
 
 On the other hand, a right to services, held along with a lease Snbjeots to 
 of land, does not transmit with it against a singular successor • '^^ '"^^"^^^^V- 
 nor a lease ot rents, that is, of an estate already under tenantry, 
 for that is merely a (possibly latent) assignation of the rents in 
 return for an annual payment, and does not involve any occupa- 
 tion of land ;-^ nor for the same reason, a lease of feu-duties or 
 casualties-^o In none of these cases is the creation of a separate 
 tenement possible. Leases of the right of killing game and of 
 fishing form the subject of a separate chapter. s" It will be 
 enough to state here that such leases (unless the subject be 
 salmon fishing, which is a separatum tenementum) are held not 
 to come within the Act. It is suggested that the contrary would 
 be held if the whole use of the laud is thereby absorbed. The 
 rules relating to the leasing of the mansion-house and its appur- 
 tenances on an entailed estate have been already set forth.^^ 
 
 (3) Possession. 
 
 The persons whom the Act is intended to protect are, in the 
 first place, ' the puir people that labouris the ground,' and the 
 possession, implied in the phrase, is carried over as a requisite to 
 the ' utheris that hes taken or sail take landes.' 
 
 Possession, as the source of jural relations, involves two ele- Possession. 
 ments, (1) detention or the having or holding a thing, so that as 
 matter of fact it is under the detentor's control, with the power 
 of excluding all others ; and (2) the animus or intention 
 to possess, which in the case of a tenant is the iatention to 
 possess partly for himself and partly for his landlord. These 
 ideas are primarily applicable to the possession of corporeal 
 subjects ; but, by an obvious extension, the term is used (either 
 alone or as quasi-possession) in regard to incorporeal subjects, 
 such as fishings and shootings, in which case the animus is the 
 same, and the detention is notified by the actual exclusion of 
 other parties from the enjoyment of the right, and usually also 
 by overt acts in exercise of the right. The possession may be 
 natural, when the corporeal thing is held, or the incorporeal Natural, 
 right is exercised, by the tenant personally or through servants; 
 or civil where the thing is held or the right exercised by another Civil, 
 person, not a mere servant, for him, as in the case of a sublease. 
 
 '-* 2 Ersk. vi. 27, note " ; Op. of Lord Leases, 33. But quid juris if the univer- 
 
 Pies. in Pollock, Gilmour & Co. v. Har- sitae ot a large estate is let, and only a 
 
 vey, 1828, 6 S. 913. But Gordon r. small part of it is under tenantry ? would 
 
 Forbes, 1774, M. 15221, is not in point, the overlease of that part be ineffectual 
 
 the case not being laid on the Act. against a purchaser ? 
 
 2' Bankt. 2.9.1 ; Ersk. 2.6.27, 3.5.5 ; '■'" Infra, chap, xviii. 
 
 2 Ross' Lect. 504 ; 1 B.C. 7.">7 ; 1 Bell, " Supra, p. 70. 
 
122 
 
 LEASE AS A REAL EIGHT. 
 
 Necessary for 
 real right. 
 
 Eatio. 
 
 There the sublessee's possession is natural, and that of the land- 
 lord and tenant, each with a different animus, civil. The 
 possession is lost by the disappearance either of the detention or 
 of the animus, or of both.^^ 
 
 The rule that possession is necessary to convert a personal 
 into a real right in the lessee ^^ is expressed in a picturesque 
 way by the maxims : ' possession is the life of a tack,' ' pos- 
 ■ session is the sasine of the lease ; ' or, as put in the House 
 of Lords,^* 'Even the most formal lease or tack does not 
 ' give any possessory interest in the land which it purports to 
 ' demise, until the proposed lessee or taker enters into possession 
 ' actual or constructive.' The mode in which it was attempted 
 to reach this object before the passing of the Act was by taking 
 sasine or instruments of possession on tacks, in imitation of 
 feudal custom.'* This form of security was out of place, and the 
 attempt was given up in practice after the Act was passed.^® 
 The rule is founded on that principle of law which demands, in 
 order that a transaction shall affect third parties, that there shall 
 be some outward and visible sign, such as delivery, sasine, intim- 
 ation, publication.'^ Possession is the only means whereby a 
 singular successor or creditor of the landlord or a competing 
 lessee can become acquainted with the existence of a lease, and be 
 enabled to learn its stipulations ; and the necessity for possession 
 is the main safeguard against collusive agreements.*^ The effect 
 of possession or of the want of it may appear, either in questions 
 with creditors, or as between competing lessees, or as between 
 tenants and the singular successors of the lessor. The last is 
 the relation to which the statute expressly relates ; but on 
 closer examination it appears that the transactions which give 
 rise to the two other sets of questions are in effect ' sales or 
 ' alienations ' of the subjects let, just as much as an out-and- 
 out sale. As has been already intimated, questions with 
 creditors are postponed to a later page.'^ Competing leases 
 
 ^ See the the authorities collected in 
 Rankine, Landownership, pp. 3-7. 
 
 3» Cr. 2.10.7-11 ; Dirl. 411-12 ; St. 
 2.9.7, and 3.2.6, and St. 2.9.43, art. 2, 
 Note a (by Brodie) ; Mack. 2.6.5, Obs. 
 37 ; Bankt. 2.9.3 and 4 ; Ersk. 2.6.25 ; 
 2 Ross' Leot. 488 and 500; 1 B.C. 65, 
 69, 755 ; B. Pr. 1209-11 ; More's Notes, 
 244 ; 1 Jurid. Styl. (5th edit.) 566. The 
 analogy of sasine is not perfect, for 
 sasine persists till superseded by an- 
 other sasine, while possession may be 
 
 lost without conscious transfer, 1 B.C. 
 66. 
 
 ^ Per Lord Truro in Hutchinson v. 
 Eerrier, 1852, 1 Macq. 196, 208. 
 
 ^ Mack. Obs. 37. 
 
 '^ Ibid., but see L. Adv. v. Eraser, 
 1758, M. 15196, rev. 2 Pat. 66. 
 
 ^ St. H.22 ; Ersk. 3.1.2 ; 1 B.C. 
 279 ; B. Pr. 86. 
 
 ^ Ersk. 2.6.25 ; 1 B.C. 65 ; 2 Koas 
 Lect. 493, 504. 
 
 " Infra, chap. xxiv. 
 
EEGISTEATION OF LONG LEASES. 123 
 
 seldom occur ; when they do, a posterior lease followed by 
 possession is preferable to a prior lease upon which there has 
 been no possession.^" 
 
 The protection given by the statute against the alienee, not Protection 
 of a leasehold right, but of the feu, is of more importance. It ff^auooessoAo 
 is only afforded to a tenant who has entered on possession prior lessor's right, 
 to the completion — of old by sasine, now by registration — of the 
 alienee's right ; if not, the lessor has put it out of his own 
 power to confer possession on him.*^ As a consequence of this 
 rule, tacks with a postponed date of entry are merely personal 
 rights, and cannot stand against an infeftment taken in the 
 interval by a singular successor of the lessor.*^ There is no 
 room for questions of bona or Tnala fides.*^ Probably attainder 
 of the landlord would be regarded as completion of the Crown's 
 right in such a question of competition.** 
 
 No equivalent for possession was provided either by common Registration of 
 law*' or statute, till the Registration of Leases Act, 1857, was 1357. 
 passed. This statute will be noticed more at length when 
 treating of assignation. In this place it is enoiigh to state that 
 it applies to probative leases for thirty-one years and upwards, 
 and allows of their being recorded in the Register of Sasines. 
 It then provides (sect. 2) that — 
 
 Leases registerable under this Act and valid and binding as in a ques- Eeoorded 
 tion with the granters thereof, which shall have been duly recorded as |,g^^^at ^nguf' 
 herein provided, at or subsequent to the date of entry therein stipulated, lar successors 
 
 •^ ..,„,-,• J -1 in the lands 
 
 shall by virtue of such registration be effectual against any singular jet. 
 successor in the lands and heritages thereby let, whose infeftment is 
 posterior in date to the date of such registration ; provided always that 
 except for the purposes of this Act, it shaU not be necessary to record 
 any such lease as aforesaid, but that all such leases which would, under 
 the existing law prior to the passing of this Act, have been valid and 
 effectual against any such singular successor as aforesaid, shall, though 
 
 " St. 2.9.7 ; Mack. Obs. 37 ; Bankt. feft is considered, supra, p. 43. 
 
 2.9.3; Ersk. 2.6.25; 1 Bell on Leases, « Hamilton f. Tenants, 1632, M. 15230 
 
 52 ; M'MiUan v. Gordon, 1627, M. (postponed till redemption of a wadset) ; 
 
 7018, 15229; Kerr... Lord Ramsay, Johnston r. Cullen, 1676, M. 15231 (post- 
 
 162oi M. 15227, overruUng WarJIaw v. poned till lessor s death— wadsetter infeft 
 
 Otterliurn, 1585, M. 15227. during his life). 
 
 *' C- 2 10 7-11 ■ Ersk. 2.6.25; 1 B.C. « Home u Oldhamstock a Ten., 15^0, 
 
 66 ; Wallace ■.. Harvey, 1627, M. 67 M. 15226, is overruled by the foregoing 
 
 (appriser's sasine prevailed over over- cases. _ „ „ ,„„„, 
 
 lessee's execution-it went no further-o£ « Gentle v. Henry, 1747, M^ 13804. 
 
 maiUs and duties) ; Fraser ,;. Ly. Pitsligo, ^'' Recording in the old Register of 
 
 1611,M.6425,15227(saleandinfeftment). Reversions had no effect; Dirl. ana 
 
 The effect of a lease granted by one unin- Steuart, 29.';. 
 
124 
 
 LEASE AS A EEAL BIGHT. 
 
 Eegistratiou 
 equivalent to 
 possession. 
 
 Perpetual 
 lease. 
 
 not recorded, be valid and effectual against such singular successor, as 
 well as against the granters of the -said leases. 
 
 Recorded leases are preferable inter se according to their dates 
 of recording (sect. 12). And sect. 16 provides*^ that — 
 
 The registration of all such leases, assignations, assignations in security, 
 translations, adjudications, writs of acknowledgment and notarial instru- 
 ments as aforesaid, in manner herein provided, shall complete the right 
 under the same respectively, to the effect of establishing a preference in 
 virtue thereof, as effectually as if the granter or party in his right had 
 entered into the actual possession of the subjects leased under such writs 
 respectively, at the date of registration thereof. 
 
 A collation of the two sections here quoted suggests that 
 questions of preference between a recorded lease and a lease 
 possessed on but not recorded, would be determined according 
 to the priority in time of the registration and of the first lawful 
 possession.*'' 
 
 (4) Definite Ish. 
 
 The usual or ordinary endurance of a lease varies from a week 
 in certain small dwellings by a gradually ascending scale through 
 leases of larger dwellings, furnished or unfurnished, fishings, 
 shootings, factories, pastoral farms, arable farms, farms let oa 
 improving leases, and minerals, to land let for building purposes 
 where the ordinary term is ninety-nine years.** The old Act 
 says, and has been construed as saying, nothing to regulate or 
 restrict freedom of contract in regard to the leagth of the 
 period. All that it says is that it is enacted in favour of such 
 tenants as ' hes termes aad zeires thereof ' (of lands taken) and 
 that ' the takers sail remaine with their tackes unto the ischew 
 ' of their termes.' These words have been uniformly interpreted 
 as demanding a fixed duration. But the period may either be 
 a certain number of years or the lifetime of the granter, of the 
 grantee, or probably of third parties.*" 
 
 Therefore, in our earlier law there was never any doubt that 
 a perpetual lease was invalid in a question with singular 
 
 ^^ See Rodger v. Crawfords, 1867, 6 M. 
 24. 
 
 ■^ Begg's Convg. Code, 454. 
 
 * See the Queensberry oases, supra, 
 p. 51 ; 1 B.C. 68 ; B. Pr. 1195. 
 
 « Balf. 2(10 ; Cr. 2.10.5 ; Dirl. and 
 Steu. 295; St. 2.9.16 and 27; Mack. 
 2.6.5, Obs. 38 ; Bankt. 2.9.5 ; Brsk. 
 2.6.24 ; 2 Ross' Lect. 488-93 ; 1 B.C. 
 
 68; B. Pr. 1194; Brodie's Stair, 369; 
 More's Notes, 246 ; 1 Bell, Leases, 38-52, 
 and 215-16 ; 1 Jurid. Styl. (5th edit.) 565 ; 
 Menzies' Lect. 823 ; 2 Bell, Convg. 1210. 
 See Corshill t-. Wilson, 1626, M. 15188. 
 L. Neavea' suggestion seems, therefore, 
 wrong in a question with a singular 
 successor — Wilson v. Mann, 1879, 3 R. 
 527, 5-y.i. 
 
LEASE IN PERPETUITY. 12,-, 
 
 successors of the lessor, however the perpetuity might he 
 indicated, as, for example, hy a lease from five years to five years 
 et sic in infinitum ;5<* or for hves with an obligation on the lessor 
 and his successors to grant leases in all time coming at the same 
 rent ;" or to endure 'perpetually and continually as long as the 
 ' grass groweth up or the water runneth down ; ' '^^ qj, <foj, ever;''^-' 
 or to the original tenant's ' bairns ' so long as they were able to 
 pay the duty.^* In two well-known cases in last century the Wight r. E. 
 rule was, if not expressly recognised, yet not impugned. In the ^'"Petoun. 
 earlier of the two, a lease granted for two nineteen years, with 
 an obligation on the granter, his heirs and successors, to renew 
 it after that time, from nineteen years to nineteen years, in all 
 time coming, upon the tenant's paying a certain sum as grassum 
 at each renewal, was found obligatory upon a singular successor ; 
 but the o^atio of the judgment was that he had accepted a dis- 
 position of the lands subject to an express exception of this very 
 tack, and containing an express assignation of the disponer's in- 
 terest under it, with right to quarrel the tack on any ground not 
 inferring warrandice — which a reduction by the disponer certainly 
 would have done — and was thus barred personali exceptione 
 from objecting.*^ In the later case, a lease granted from nineteen scotti). 
 years to nineteen years, as long as the lessee should desire to straiton. 
 possess and should pay the rent, was sustained against a singular 
 successor ; but homologation was the ground of the decision, 
 the landlord and his ancestors having allowed the lease to 
 stand without cavil for about 100 years; and there was much 
 diiference of opinion on the Bench as to whether perpetual should 
 be recognised like very long leases as protected by the Act.*'' It 
 may be suggested that the express terms of the statute draw 
 a plain distinction. It appears, however, that a lease granted Tobermory 
 for a fixed period or periods, and at the close thereof, to be 
 renewable for ever or indefinitely, will be enforced against a 
 singular successor, so long as the fixed period has not lapsed, 
 leaving over the question whether renewal could then be 
 demanded.^" 
 
 At an earlv period attempts were made to create leases into Leases as 
 
 »' -^ ^ securities for 
 
 debt — termiu- 
 
 ^ Crighton or Stewart v. Viscount of -^ Hamilton n. Tenants, 1626, M. 15188, ation iiide- 
 
 Ayr, 163L M. 11182, 1519L scdquare? "' ®' 
 
 =1 Oswald V. Robb, 1688, M. 15194. '° Wight i. Earl of Hopetoun, 1763, 
 
 52Carruthers v. Irvine, 1717, M. M. 10461, 15199. 
 
 15195. SB Soott V. Straiton, 1771, M. 15200, 
 
 ^ Ker V. Waugh, 1762, M. 10307, afF. 3 Pat. 666. 
 
 15185; L. Garlies x. Stewart, 1615, s? Campbell r. M'Kinnon, 1867, 5 M. 
 
 M. 15187, went too far, see supra, }\ 102. 636, 662, 655, aff. 8 M. (H.L.) 40. 
 
126 LEASE AS A REAL RIGHT. 
 
 securities for debts, by granting them to endure indefinitely 
 until the money should be repaid, or with an obligation not to 
 remove the tenant till then, and allowing him to retain the rent 
 in extinction of the interest, or of both principal and interest.^' 
 The weight of authority among the institutional writers ^^ is 
 greatly in favour of the view that such leases or obligations are 
 not valid in a question with singular successors of the lessor; 
 and there is a catena of cases to the same effect,^" interrupted 
 by two contrary decisions, which must be regarded as now 
 overruled.^^ It does not matter whether the rent be less 
 than, equal to, or more than the interest due, though it was 
 at one time held that in the last state of facts the lease would 
 lie a real right, its ish being calculable as the date when the 
 surplus rent would wipe out the capital. ^^ If a lease embraces 
 two periods, a fixed term of years, and thereafter until debt be 
 paid, the Act will protect the tenant against singular successors 
 during the fixed period, but no longer. The circumstances in 
 which this has been held have varied. In some cases the lease 
 has been for so many years at a fixed rent, the tenant retaining 
 out of it interest on a debt, and being entitled to keep the farm 
 till the capital is paid.^^ Or the rent may be equal to the 
 interest, and the tenant be entitled to a prorogation of the lease 
 from year to year after the fixed period, until the debt shall be 
 paid.^* The lease in its earlier part is a real right ; in its later 
 part a mere ' personal obligement.'^^ 
 Leases for long The cases in which, and the extent to which, a power of leasing 
 
 periods. . . , . , , . , i ■ . , 
 
 IS restricted with respect to duration, by personal incapacity, by 
 limited title, and by the rules of good administration, have been 
 explained in the First Part of this work. If, on the other hand, 
 
 ^ 2 Ross' Leot. 502; 1 B.C. 71. 15240, 1283 ; Seton v. White, 1673, M. 
 
 "' Cr. 2.10.11 ; Steuart iu Dirleton and 15173, and cases, infra, 1°^. 
 
 S. 295 ; Mack. Obs. 38 ; St. 2.9.28 ; 82 Cockburn v. Sampson, supra, «' ; 
 
 Ersk. 2.6.24; 1 B.C. 71; B. Pr. 1194 c« overruled expressly in AucMubreck's 
 
 seq. ; More's Notes, 246 ; Dirleton alone Factor v. Maclaughlan, infra, *^. 
 
 is contra. es Thomson v. Reid, 1664, M. 15239 ; 
 
 ^' RoUook, 1614 ; Muokal v. Tenants, Peacock v. Lauder, 1674, M. 15244 ; 
 
 1621; Part'jun J). Tenants, 1621, allinM. Maotavish (Auchinbreck's Tactor) v. 
 
 35234. Maclaughlan, 1748, M. 1736, 15248; 
 
 •i' Ranald v. Strang, 1625, M. 15236; Robertson s). Spalding, 1754, Elch. (Tack) 
 
 Cockburn v. Sampson, 1698, M. 15247 ; No. 20. 
 
 Hardies, 1627, M. 15190; Bennet v. ^4 Crs. of Douglas u Carlyles, 1757, 
 
 TurnbuU, 1628, M. 15237, 2181 ; Geichen M. 15219 ; cf. case of prorogation for 
 
 V. Walkinshaw, 1 629, M. 15238 ; Ley v. definite period with postponed entiy ; 
 
 Kirk -vood, 1629, M. 7195; L. Clackman- Cranstoun's Cred. v. Scot, 1757, M. 
 
 nan v. Tenants of Balnamon, 16S1, M. 15218. 
 
 15230 ; Stevenson v. Dobie, 1665, M. "s Peacock i'. Lauder, supra, "'. 
 
LONG LEASES. 127 
 
 the lessor's powers are not limited in any of these ways, it seems 
 to be the better opinion that he can bind himself and his 
 successors, universal or singular, by a lease of any length what- 
 ever, provided the duration be definite. «« 
 
 No doubt has ever existed that leases of any sort of lettable Cases. 
 property to which the Act applies for ninety-nine years are valid 
 against singular successors.^' For building leases that is an 
 ordinary duration. In the earliest case a lease for 2240 years 
 was held to be beyond the purview of the statute, but there 
 was the further objection that the rent was elusory.^^ More 
 recently it was said to be ' generally held by lawyers that a tack 
 ' above 100 years would not [have the benefit of the statute] and 
 ' it is fit it should be so, otherwise these two species of rights, 
 ' tacks and feus, would be confounded.'*^- But the case in which 
 these observations were made did not demand a decision of the 
 point. A judgment of the House of Lords, sustaining a lease 
 for 1140 years, in a question with the Crown, which came in 
 the place of a forfeited person, probably, though not certainly, 
 proceeded on the view of the law now suggested.'" It is diflScult, 
 moreover, to imagine what rule could be framed to discriminate 
 between short or ordinary, and long or extraordinary leases. 
 The Act itself makes no such distinction. Consequently leases 
 for 999 years, or some such long period, are not unknown in 
 practice in modem times.'^ 
 
 But this question, like some others discussed in this section. Effect of 
 Las now little more than a scholastic interest since the second "^^^'^ 
 section of the B,egistration of Leases Act, cited above, '^ 
 will, OQ compliance with the simple condition of registration, 
 render effectual against singular successors leases which even 
 actual possession would not render complete, and, among 
 others, perpetiial leases, leases of an indefinite duration, being 
 
 ^ 2 Koss' Leot. 489 ; 1 B.C. 68 ; More's years of whole estate) ; 1 Bell on Leases, 
 
 Notes,247;Brodie's Stair, p.369. Of older 51-2; Campbell w. M'Kinnon, 20th March 
 
 writers, Balfour (203) and Craig (2.10.5) 1867, 5 M. 636, aff. 4th April 1870, 
 
 merely speak of a nineteen years' lease as 8 M. (H.L.) 40 (small holdings), 
 an alienation, and Stair, Mackenzie, and * Alison v. Ritchie, 1730, M. 15196. 
 
 Erskine are silent ; B. Pr. 1195, is doubt- ^ Per L. Monboddo in Jordanhill. 
 
 ful; Bankt. 2.9.6, 1 Bell, Leases, 38 seq. Creds. v. E. of Crawford, 1752, Eloh. 
 
 contra. The main reason against the rule (Tack) No. 18, 5 B.S. 797. 
 is that it imperils the usefulness of the '" L. Adv. v. Eraser, 1758, M. 15196, 
 
 Register of Sasines. But all interested rev. 2 Pat. 66 ; and obs. thereon in 1 
 
 are bound to inquire into the state of Hailes 404, 406, M. 15207, and 1 Bell, 
 
 possession, which is a public fact. Leases, 43. 
 
 ^ Campbell v. Siller, 1785, M. 15223 'i E. Elgin v. Wellwood, 1821, 1 S. Ap. 
 
 (farm) ; LesUe v. Orme, 1779, M. 15530, 44; Welwood v. Husband, 1874, 1 R. 507. 
 aff. 2 Pat. 533 ; 2 Dow, 112 (seventy -six '^ 20 & 21 Vict. c. 26, supra, p. 1'23. 
 
terminations. 
 
 128 LEASE AS A REAL RIGHT. 
 
 not less than thirty-one years, and leases in payment and 
 security of debt. The only prerequisite is that the leases shall 
 be binding in a question with the grantor. 
 Miscellaneous It is right to add a short notice of the construction put by 
 the Court upon certain forms of declaring an ish. It lies upon 
 the tenant to prove any survivance or other fact on which the 
 duration of his tenure depends.'^ Under a lease to A during his 
 life, and after his decease during the life of B, and for the space 
 of two nineteen years after B's decease, it has been held that the 
 fixed period began to run on the decease of the survivor, contrary, 
 as it seems, to the plain words of the destination.'^* If there be 
 absolute inconsistency in the terms of the ish, the shorter dura- 
 tion will be taken."^ The lifetime of the tenant in possession at 
 the close of a fixed period is the lifetime of the principal tenant, 
 not of a sublessee who had the corporeal possession."'' A lease 
 ' to A, his heirs, and assignees, for two nineteen or thirty-eight 
 ' years and crops, and after the expiration of the said two nine- 
 ' teen years for all the years and crops of the lifetime of the 
 ' person having right to this present tack, at the expiry of the 
 ' said two nineteen years,' was held to run out on the death of A, 
 who survived the thirty-eight years, although the clause went on 
 to describe the person having right as aforesaid, ' either as heir 
 ' or as assignee appointed within ' the first twenty-nine years. 
 These words did not let in A's heir.'^' A destination to the 
 assignees of a tenant and their ' heirs ' during their lifetime, 
 means an assignee and his first heir.'^^ An ish may be imported 
 by reference, and this may be done in such general terms as ' the 
 ' same conditions with a former lease.'"* A lease granted ' during 
 ' the will of the lessor,' expires on his death.^" An obligation 
 not to remove a tenant if he gives security for the rent is valid 
 during the lifetime of the tenant and no longer, and would not, 
 of course, be good against a singular successor. '^ An option of 
 a lease for years or for a life or lives need not be declared till 
 near the close of the years or of the lives ; probably not even 
 then, unless the landlord insists, for, if he does not, res ipsa 
 loquitur — the tenant is entitled to the alternative which turns 
 
 !■' E. Dundonald v. Glenagies and E. '" Carnegy v. Soott, 1822, 1 Sh. App. 
 
 Mar, 1675, M. 15193. 114; sequel, 4 W. and S. 431. 
 
 '^ Bishop of Galloway v. Innes, 1684, ^ Grseme v. Whytock, 1819, in More's 
 
 M. 15194. Notes, 246. 
 
 '■" Burnett „. Aberdeen Mags., 1741, 1 ™ Hay v. M'Cracken, 1807, Hume 832. 
 
 Pat. 305. 80 E. Moray's Reps. v. Tutors of 
 
 7" Konaldson, 18t)i Deo. 1812, F.C. 49; Sanquhar, 1583, M. 2266, 1. B.S. 12a 
 
 More's Notes, 251. 81 Ferme, 1680, M. 15193. 
 
FIXED RENTS. 129 
 
 out to be the more favourable to him.^^ The rules applicable to 
 a lease without ish have been stated on an earlier page.^^ 
 
 (5) Bent. 
 
 The existence and expression of a specified rent are necessary Fixed rent, 
 to secure a lessee against singular successors. This point 
 alone is to be considered here, leaving for future discussion 
 the rights and obligations of parties in regard to rent. The 
 statute entitles the protected tenants to sit ' for siklike maill as 
 ' they took them [the lands] for ; ' and this has been uniformly 
 interpreted as postulating the stipulation of certa Tnerces.^* 
 Consequently the Act does not apply where there is either no 
 rent at all or where the rent is merely elusory.*' The Act 
 contains no limitation on the power of the parties to fix the rent, 
 but seems to sanction a lease as effectual against third parties 
 whatever may have been the rent stipulated ; nor have purchasers 
 or creditors any ground in law for insisting that the tenant shall 
 pay a fair and adequate rent, unless they can impugn the con- 
 tract on the ground of bankruptcy ; or as made in contravention of 
 a prohibition to alienate;*^ or as transgressing the rules of ordinary 
 administration, where the lessor has a limited or fiduciary title.^" 
 
 As there is no criterion according to which the stigma of Not elusory, 
 elusoriness can be ascertained, the practical result is that a rent 
 of some kind worthy of the name is essential.*' Extraordinary 
 duration has been coupled with elusory rent as avoiding a lease ; 
 and, where the ish was certain, the latter was probably the fatal 
 flaw.*® If there be a rent, the singular successor cannot com- 
 plain that its amount has been diminished through the taking of 
 a grassum, nor can he demand that the amount of the grassum 
 should be distributed over the whole years of the lease and 
 added to the rent.^" 
 
 The rent may consist of money, ascertained or ascertainable, — Prestations 
 
 recognised as 
 satisfying the 
 Act. 
 '^ Gray v. E. Sutherland, 1765, M. 460. case of liferent locality, miscalled a tack. 
 
 82 Supra, p. 102. ^ Ersk. 2.6.24 ; 2 Robs' Lect. 494 ; 1 
 
 ^ Balf. 200 ; Cr. 2.10.2 ; St. 2.9.29 ; B.C. 72 ; B. Pr. 1201. 
 
 Mack. 2.6.5, Obs. 38-9; Bankt. 2.9.5 »« 1 B.C. 72 ; supra, p. 54, as to entails, 
 
 and 9 ; Ersk. 2.6.24 ; 2 Ross' Lect. 494 ; ^7 Supra, chap. i. 
 
 1 B.C. 71-2 ; B. Pr. 1197-1202 ; More's 88 B. Pr. 1201. 
 
 Notes, 246 ; Brodie's Stair, 369 ; 1 Jurid. 89 Alison v. Ritchie, 1730, M. 15196 ; 
 
 Styl. (5th edit.) 566 ; Menzies' Lect. 823 ; L. Hermistoun v. Butler's Relict, 1631, 1 
 
 2 Bell, Convg. 1114 ; Melierstains v. B.S. 321, was a case of fixing the date of 
 Haitlie, 1591, M. 15165 ; L. of Alton v. removing in a liferent lease which had 
 Tenants, 1 625, M. 15167; Keith u. Ogilvie, run out, and had nothing to do with the 
 1629, M. 15238 (tercer) ; and Reatalrig f . statute. 
 
 Craw, 1605, M. 15166, is thus overruled ; '» 2 Ross' Lect. 494 ; 1 B.C. 72 ; B. Pr. 
 
 Grange-Durham, 1575, M. 15165, was a 1201 ; 1 Eel], Leases, 229. 
 
 I 
 
130 LEASE AS A REAL RIGHT. 
 
 in conformity with the maxim, certum est quod cerium reddi 
 potest — produce such as minerals (in fixed quantity or sufficient 
 for the use of the mansion-house),^^ fish, kain-fowls, whether by 
 stipulation convertible into money or not, and services of either 
 sort.^^ These services must be expressly specified and the 
 number and kinds thereof enumerated and ascertained in some 
 written lease or by some agreement made in writing and signed 
 by the parties or some persons authorised by them, unless 
 they be mill-services due by law or custom.^^ These services 
 were saved, when the indefinite services of feudal times — 
 arages and carriages, hosting, hunting, watching and warding, 
 which had been ordered to be compounded for money in 
 consequence of Mar's rebellion'* — were abolished after the Rising 
 of 1745. 
 Retention,— It is thought that a stipulation requiring a tenant to pay a 
 burfwis- larger share of public burdens than usual in relief of the lessor 
 and entitling him to deduct the amount from the rent, will 
 transmit against a singular successor, being only a mode of pay- 
 ment by which no real difference is made in the obligations of 
 the parties.®" But more difficult questions arise where a lease 
 contains a stipulation, or a separate agreement exists, whereby 
 the tenant is entitled to retain the rent in whole or part in 
 to pay debt or extinction of debt or in payment of interest. Another oppor- 
 tunity will occur of considering what conditions or covenants run 
 with the land, and what are merely personal obligations.'^ In 
 Rent fixed the present matter two propositions are quite clear. On the one 
 adequate." hand, a lease may indirectly be so arranged as to affiird a good 
 security to the tenant for payment of the interest of a loan or 
 even of the principal ; for the rent may be fixed arbitrarily and 
 the parties may on calculation settle a rent and fix a period 
 which will afford to the lender full security for his interest and 
 for a gradual extinction of his principal.'^ In other words, if 
 a definite rent is fixed, it will not matter whether it appears 
 ex facie of the agreement or otherwise that payment of debt 
 
 " See Walpole v. Beaumont, 1780, 1610, M. 15166, where the engagement 
 
 ^- 15249. was to do the smith-work of the estate, 
 
 ^ The distinction admitted in sales would have been held to conform to this 
 
 per rental— judicial or not — does not Act; cf. Ross «. Ds. Sutherland, 1838, 16 
 
 apply in questions of elusoriness under S. 1179, infra, '<". 
 
 the present Act. See 1 Hunter, 461 ; ^^ 1 Geo. I. sess. 2, c. 54, sects. 10-14. 
 
 1 Bell, Leases, 226 ; and oases in Elch. 95 i Hunter, 477 ; OHphant r Currie 
 
 (Ranking and Sale) 1, M. 13317, 14159. imfra, i»i. 
 
 9* 20 Geo. II. c. 50, sects. 21, 22. "^ Infra, chap. xvii. 
 
 Probably the case of Lundy v. the Snpth, ^ 1 B.C. 72 ; 2 Ross' Lect. 502. 
 
 interest. 
 
RETENTION OF RENT. 131 
 
 was in the view of the parties.^* On the other hand, if a Rent dis- 
 fixed rent has been stipulated for in the lease, and then, either " "^^ " 
 unico contextu or later, the obligation to pay it is discharged, 
 the discharge is regarded as a purely personal contract, not 
 transmissible against singular successors ; and the fixed rent is 
 still due in a question with them.^^ Between these two extreme Full rent, 
 cases lie others in which difficulties arise which find a ready ^^^^gjjj 
 though not entirely satisfactory solution in the rule that the 
 singular successor is entitled to draw the full stipulated rent.^* 
 The retention in these cases does not apply to the whole rent, 
 but leaves a surplus in money or other prestations.^"^ The rule 
 was arrived at only after there had been a course of contrary 
 practice. ^"^ Thus a stipulation in a lease did not bind a 
 singular successor which allowed £5 a-year out of a rent of 
 £12 to the tenant for acting as ground-officer. It was very 
 doubtful whether this stipulation would have prevented the 
 lessor or his representatives from dismissing the tenant from 
 this office or from stopping the abatement in that event; but 
 there was no doubt that the obligation was no more than 
 personal.^"^ The tenant will be entitled to retain the rent due 
 for the period before he has been legally interpelled, but no 
 further. 1°* These are cases in which the full stipulated rent is 
 payable, irrespective of independent personal claims per contra. 
 But where the landlord comes under some obligation to the 
 tenant connected with the subject let — e.g., to fence or otherwise 
 specifically to improve it, and to allow retention of the rent or 
 part of it as security for the fulfilment of the obligation, the full 
 stipulated rent is then the gross rent, subject to this deduction, 
 and nothing more can be demanded, either by the lessor or 
 his representatives or by a singular successor.^"^ It has been 
 decided that a right of retention of this sort can be read into 
 
 "8 See an example of this in M'Vean White, '^ ; Mack. Obs. 38 ; 2 Ross' Lect. 
 
 V. M'Lean, 1873, 11 M. 506, 764, where, 502. 
 
 however, the present question did not ^"^ Ross v. Ds. Sutherland, 1838, 16 S. 
 
 arise. 1179. See Lundy, supra, ^. 
 
 ^ Ross V. Blair, 1627, M. 15167 ; St, 
 2.9.29. Seton i». White, 1769, M. 15173: 
 15245, has not been followed. 
 
 ™ Ersk. 2.6.24.29 ; 2 Ross' Lect. 602 
 1 B.C. 72; B. Pr. 1202; Auchinbreck's 
 Factor v. Maclaughlan, 1749, M. 1736 
 15248. See Cranstoun's Credrs. v. Scott, 
 1757, M. 15218, 5 B.S. 830. 
 
 "1 Oliphant v. Currie, 1677, M. 15245 
 3 B.S. 321 (kain and public burdens). obsolete ratio. 
 
 "2 Oliphant v. Ourrie, "^ ; Seton v. 
 
 10* Ersk. 2.6.29; Auchinbreck's Factor 
 V. M'Laughlan, supra, "". 
 
 i»5 Ersk. 2.6.24, 29 ; 1 B.C. 72 ; B, 
 Pr. 1202 ; More's Notes, 246 ; Arbuth 
 not V. Colquhoun, 1772, M. 10424 (inolos. 
 ing) ; Stewart v. M'Ra, 1834, 13 S. 4 
 L. Jeffrey's obs. in Montgomerie v. 
 Carrick, 1848, 10 D. 1396. Rae v. Fin 
 layson, 1680, M. 10211, proceeded on an 
 
132 LEASE AS A REAL EIGHT. 
 
 a lease by ' the custom in that part of the country ' ; ^"^ but the 
 decision is of very doubtful authority. If the claim on which 
 retention is pleaded arises in the interval between the entry of 
 a purchaser and the date at which the last payment of rent to 
 the vendor is conventionally payable, the tenant's remedy is 
 against the purchaser, and he is not entitled to retain in a 
 question with the vendor. ^"^ 
 
 The Registration of Leases Act, 1857, again steps in to 
 overcome many of the difficulties raised by the Act of 1449, by 
 providing that registered long leases if good against the granters 
 shall be effectual against singular successors;^"* so that an 
 elusory rent will be no longer fatal, and the payment or 
 securing of debt will fall under the ordinary rules of securities 
 over feudal subjects. 
 
 i»6 Bell V. Lamont, 14th June 1814, 10425. Hunter (i. 465) took a different 
 F.C. 645; see 1 B.C. 74; B. Pr. 1202. view, but the decision seems sound. 
 
 I"' Morrison v. PatuUo, 1787, M. ™ 20 & 21 Vict. c. 26, sect. 2. 
 
133 
 
 CHAPTER VI. 
 
 PROROGATION AND RENEWAL OF LEASES. 
 
 The distinction between a prorogation and a renewal of a lease Nomenclature. 
 
 is said to be that in the former the only alteration on the 
 
 original terms is an extension of the period — a new term to 
 
 run after the lapse of the old ; while in the latter the new 
 
 term begins before the lapse of the old, or alterations are made 
 
 in the rent or other prestations.^ But the nomenclature is 
 
 not adhered to,^ and points to no difference in any principle 
 
 or rule of law. The substance of the transaction in either case 
 
 is a new lease entered into by and with the sitting tenant. The 
 
 contract must, therefore, be constituted or instructed in one or 
 
 other of the modes described iu the last two chapters, with the 
 
 help of the original lease in explication of the conditions agreed 
 
 on. 
 
 Thus, in questions with the alleged lessor and his represeuta- Questions with 
 tives,a letter, presumably holograph, from the landlord to aj.epr™enta^ 
 liferent tenant, promising at the end of the liferent lease to *^^®'- 
 renew it as from the Whitsunday following, was held binding on 
 the lessor's representatives without proof of express acceptance.^ 
 A holograph memorandum by a landlord, proposing an extension 
 for thirty years of a short tack, sent by him to his factor as 
 authority for drawing out a new lease, was held binding on the 
 landlord, the possession for eight years after the ish of the old 
 tack being ascribed to this memorandum, which was communicated 
 to the tenant, and not to tacit relocation.* But neither party 
 was bound by mere negotiations for a renewal intra terminum, 
 one of the conditions never having been implemented by the 
 tenant, and the new lease never having been delivered.^ And 
 
 1 2 Ross' Lect. 500. (N.E. 380). 
 
 2 See Richard v. Lindsay, 1725, M. * M'Kenzie v. M'Kenzie, 1799, Hume 
 15217 ; Cranstoun's Creds. v. Soott, 1757, 801. 
 
 M. 15218, 5 B.S. 830. ^ Hamilton v. D. Queensberry's Exrs., 
 
 3 Wilson V. Henderson, 1823, 2 S. 428 1833, 12 S. 206. 
 
134 PROEOGATION AND RENEWAL OF LEASES. 
 
 acts which would be rei interventus if referable to an alleged 
 renewal may lose their value if they take place pending the old 
 lease.^ If, however, a personal contract of renewal is instructed, 
 and cannot be enforced against a singular successor, the granter 
 and his representatives will be liable in damages." 
 Questions with In questions with singular successors of the lessor, the only 
 sico^sOT^" difficulties arise out of the rule that possession is required for the 
 completion of the real right, and they arise with reference to 
 the period (if there be such) between the agreement for a 
 prorogation or renewal and the natural termination of the old 
 lease. The prorogation will be effectual against singular suc- 
 cessors, whose right emerges during that interval, ' if it be a new 
 ' lease granted on the renunciation of the original lease, or if it 
 ' is clear that the possession is to be upon the new lease from 
 ' its date,'^ as where there is a change in the rent, and payment 
 and acceptance of rent conform.^ A decision in which a mere 
 prorogation by agreement subsequent to the lease was held good 
 against a singular successor, can only be justified on the view that 
 it was a mere readjustment of terms, the extension being from 
 Michaelmas to Martinmas — a more convenient term and the term 
 Leases tanrfm. of entry. 1° If, on the other hand, the prorogation or renewal is 
 to begin at the termination of the old lease, the tenant's posses- 
 sion during the interval referred to can only be ascribed to the 
 old lease, and the new term will not be allowed to affect a singular 
 successor who has meantime come into the lessor's right.'^^ Till 
 the commencement of the new term, there is no possession under 
 the lease which it is proposed to enforce ; and such possession is 
 implicitly required by the old Act of 1449. It makes no differ- 
 ence whether the prorogation is endorsed on the original lease or 
 not ; 1^ and whether the singular successor had notice or know- 
 ledge of its existence or not.^^ Thus, where there were three 
 separate tacks, each for nineteen years, the second to begin at the 
 ish of the first, and the third at the ish of the second, and a 
 
 "Brown v. Ogilvie, 1822, 1 S. 286 " Cr. 2.10.7, 11; Bankt. 2.9.39; 1 
 
 (N.E. 266) (sublease). B.C. 68, 72 ; B. Pr. 1210 ; More's Notes, 
 
 ' Wilson V. Henderson, supra, ^. 245; Ivory'sNote to Ersk. 2.6.25; Brodie'a 
 
 ' Per L.O. Barcaple in Birkbeck ii. Stair, 2.9.43; and] see St. 2.9.7; 2 Eoss' 
 
 Ross, 1865, 4 M. 272, 276. Lect. 501 ; Johnston v. Monzie, 1760. 5 
 
 9 1 Bell, Leases, 54 ; 1 B.C. 68 ; B. Pr. B.S. 877 (purchaser) ; Scot v. Graham, 
 
 1210 ; Neilson v. Menzies, 1671, M. 7770, 1769, M. 15220 (creditors). 
 
 15231, i£ the latter report be, as would i^ ggg ^ Hunter, 475, on 1 Bell, Leases, 
 
 seem, the correct one. 66. 
 
 ^» Thomson v. Terney, 1791, Hume is Johnston v. Monzie, " ; Birkbeck 
 
 780. B. Pr. 1210, doubts, justly, if the v. Ross, ». Richard v. Lindsay, ^, is 
 
 case is not founded on the specialty. contra. 
 
OBLIGATION TO EENEW. 135 
 
 singular successor in the lands came into right pending the 
 second, the third tack was held to be invalid as against him, being 
 granted ' in tempus indebitum, viz., to begin in such a year when 
 ' the setter had no right,' and the tacks being separate instru- 
 ments.^* The doctrine was advanced a step in a case where a obligation to 
 tack of teinds for three lives and three nineteen years contained ™"^'^' 
 an obligation to renew ' during as many years as was above speci- 
 ' fied.' The patron — a singular successor by Act of Parliament — 
 was held not bound by the obligation, which was contrasted with 
 a lease taken for successive periods of nineteen years ' because that 
 ' was all one tack,' which was during its whole course as binding 
 on the tenant as on the landlord ; while in the case in hand the 
 tenant at the ish of the original lease would not be bound to 
 accept a renewal. ^^ A prorogation granted three years before the 
 ish of a tack, to commence at that ish, was held invalid against 
 creditors who had in the interval taken infeftment, or had 
 adjudged and had entered into possession by means of a judicial 
 factor.^® And it was held, in conformity with the law in these 
 cases, by Lord Barcaple, that, apart from the question whether 
 sporting leases fell under the Act of 1449, a minute, entered 
 into unico contextw with a lease of game for two years, agreeing 
 that the tenant should become tenant of extended shootings at 
 and from the ish of the lease, with option, however, to retire from 
 the contract altogether on giving notice six months before the 
 said ish, was not a bargain binding on a purchaser as a lease 
 or present agreement of lease, but was simply a contract to enter 
 into a lease at a future time.^''' Here also, as in the teind 
 case, the freedom of the tenant was an important element in 
 the decision. 
 
 Certain decisions ^^ which cannot stand with those just cited, cases over- 
 must be, and have been,^^ deemed to be overruled. In all of '^'^®''' 
 them there was no mere promise of a renewal, but a concluded 
 contract for a new lease to run from the termination of the old ; 
 and in none of them does the decision seem to have been 
 
 '^ L. Drum V. Jamieson, 1602, M. ^' Birlcbeok v. Koss, supra, K See 
 
 15209 ; followed in Maxwell v. Tenants, other cases of renewable leasee, supra, 
 
 1630, M. 15215. p. 125. 
 
 " Dalrymple v. Hepburn, 1737, M. '* Preston v. Duddingston Tenants, 
 
 9444, Elch. (Tack) 5, 5 B.S. 190. (See 1604, M. 15210; Makcarro, 1622, M. 
 
 in last report the question whether teinds 15213; Richard v. Lindsay, 1725, M. 
 
 are subject to the Act of 1449). 15217. 
 
 16 Cranstoun's Crs. ■„. Scot, 1757, M. i» B. Pr. 1210 ; 1 B.C. 68 ; 1 Hunter, 
 
 15218. 473 ; see Birkbeck f. Koss, supra, '. 
 
136 PROROGATION AND RENEWAL OP LEASES. 
 
 materially affected by specialties.^" Without venturing to im- 
 pugn what seems to be a settled rule of law, it may be allowable 
 to suggest that where both parties are thus bound there is nothing 
 more than a formal distinction between the tenant's position and 
 that which he would have occupied if he had taken the pre- 
 caution to renounce the old lease and take a new one for the 
 space of the aggregate number of years of the old lease still to 
 run and of the new lease. 
 
 ^ In Richard v. Lindsay, ^, each point cism in 1 B.C. 68 is not borne out by the 
 was separately taken up ; and the criti- report. 
 
137 
 
 CHAPTER VII. 
 
 RENTAL RIGHTS. 
 
 It will be equally unpardonable to ignore and to enlarge on 
 kindly (nativi) tenants and their rental rights. Except in 
 Lochmaben and its vicinity,^ the name and the institution have 
 become, it is believed, quite obsolete. It will be sufficient to 
 gather together in a note the authorities in our law books to 
 which reference may be made,^ and to state in the briefest 
 possible manner what was the nature of a tenure at one time 
 widely and frequently adopted. It seems fitting to interpolate 
 this notice in the present place since the main differentia of 
 rental rights consists in their constitution ; but it will be also 
 convenient to accumulate here all that it seems necessary to say 
 on their scope and character, so as not to have to return to the 
 subject. 
 
 I. Kental Rights proper. 
 
 These seem to have been originally of the nature of customary Nature of 
 heritable rights, and, at one time, to have followed the fortunes 
 of those servile tenures which attained or retained in England 
 the security of copyholds. They preserved, under the manor and 
 barony, the ancient rights to the soil that were found to be diffi- 
 cult of adaptation to the feudal theory of interdependent tenure. 
 The relation of ' kindliness ' was either found or imitated by the 
 Crown and the Church on their extensive domains; the notes 
 and marks of the holding, both there and elsewhere, being 
 services, a grassum — payable once for all or on each trans- 
 mission — the necessity of residence, descent to heirs, and security 
 
 1 Infra, p. 139. Mack. 2.6.8-10, and Obs. 247 ; Bankt. 
 
 2 M. 7188-96, 10310-20, 15183-95; 2.9.41-45 ; Ersk. 2.6.37, 38 ; 2 Ross' Leot. 
 2 B.S. 101 ; 1 Pat. 77 ; 30th Nov. 1808, 478-481 ; B. Pr. 1279-82 ; 1 Bell, Leases 
 F.C. ; 16 S. 309 ; 21 D. 309 ; Balf. 205 ; 88 ; More'a Notes, 246. 
 
 Cr. 1.11.24, 2.9.24,34; St. 2.9.15-20; 
 
138 
 
 EENTAL BIGHTS. 
 
 Constitution. 
 
 Not trans- 
 missible. 
 
 of tenure so long as the quit-rent — an easy burden — was paid. 
 But the stipulation of a grassum was probably never absolutely 
 necessary. The customary services were abolished in 1747, and, 
 by a process of degeneration, the heritable nature of the right 
 seems to have gradually disappeared. The process culminated 
 in the Act 1587, c. 69, passed in the year which saw the old 
 Church lands absorbed by the Crown by annexation. This Act 
 declared rentals on Crown lands to be ■ naked liferents ;' and the 
 same rule came to be universally recognised as applicable to 
 rentals on private estates also. If, however, the right was 
 granted to the kindly tenant and his heirs, the destination came 
 to mean that the first heir had the benefit, and that with his life 
 the right terminated. There never was a right to assign or 
 sublet. 
 
 To the constitution of the relation, writ was necessary. It 
 might be either an enrolment in the landlord's rental book, 
 which had to be holograph of the landlord or of some one having 
 his authority to grant rentals, or a formal lease (the latter alone 
 being available against singular successors), whereby the pro- 
 prietor ' received, admitted, and rentalled his lovite A as his 
 ' kindly tenant.' '"^ Even in a question with singular successors, 
 the mention of a definite ish was not necessary, the right, in the 
 absence of an ish, being held to be for the tenant's life ; but a 
 perpetual rental was not a real right. It would appear to have 
 been requisite that there should be a definite rent, certain or 
 ascertainable, and not elusory. Eentalling could not be initi- 
 ated, but might, perhaps, be renewed by heirs of entail and 
 tutors. 
 
 Assignation and subletting were excluded by the nature of the 
 right. The usual explanation of this rule was that a rental was 
 a personal grant vouchsafed on account of special favour ; but it 
 seems the sounder view to regard the rule as a mode of keeping 
 settlers of native stock on the land and excluding strangers. There- 
 fore, whether there was an express exclusion or not, every breach 
 of this fundamental condition was void. The irritancy applied 
 to excambions between rentallers on the same estate, but 
 to propulsions to heirs. While an exclusion, not fenced with 
 an irritancy, in an ordinary lease infers, in the case of a breach, 
 only an avoidance of the deed, not a forfeiture of the lease, 
 forfeiture of a rental right follows if either the whole or more 
 
 ^ The name ' kindly tenant ' or ' rent- 
 aller ' was necessary ; but was not of such 
 potency as to make a tenure kindly which 
 
 had stipulations inconsistent with a rent- 
 ailing; Wilson V. Wilson, 1859, 21 D. 
 309. 
 
LOCHMABEN TENANTS. 139 
 
 than half of the subject should be assigned or sublet, as was the 
 law before the middle of last century in the casualty of recogni- 
 tion. The only other forfeitures which affected rental rights 
 were those legal irritancies which are common to all leases. 
 
 II. The Crown's Kindly Tenants of Lochmaben Four 
 Towns. 
 
 Of these tenants it may be briefly remarked that, in spite of 
 the advantages of feudalisation and the facility with which it 
 can be accomplished, they still exist in considerable numbers ; 
 that they are not lessees or tenants in the usual sense of the 
 words, being irremoveable so long as they pay their rents, being 
 at liberty to alienate either redeemably or irredeemably, and 
 being treated in all respects as proprietors, liable to the burdens 
 and entitled to the rights of ownership.* They are thus in a 
 very different position from rentallers properly so called. 
 
 III. Rentals under 18 & 19 Vict. c. 88. 
 
 This statute, the Dwelling-houses (Scotland) Act, 1855, which 
 attempted to introduce a curious amalgam of feu and lease, to be 
 called a rental-right, has been a dead-letter, probably on account 
 of being unworkable. 
 
 ^ The authorities are collected in Loch- Mouusey v. Kennedy, 30th Nov. 1808, 
 
 maben Tenants v. Vt. Stormont, 1726, M. E.G. 25 ; Ms. Queensberry v. Wright, 
 
 15185, 15195, aff. 1 Pat. 77 ; Irvine v. 1838, 16 S. 439. 
 Collins,1795,M.10316; Ben,Eol.Ca.l45 ; 
 
PART II. 
 
 RIGHTS AND OBLIGATIONS OF PARTIES DURING 
 THE CURRENCY OF A LEASE. 
 
 Having thus treated of the parties to and subjects of a lease 
 and of the modes in which the contract may be entered into, we 
 now proceed to inquire what are the rights and obligations 
 which arise, at common law, by statute, or by usual stipulation, 
 out of the relation thus constituted. These rights and obliga- 
 tions are strictly correlative ; and no inconvenience will arise 
 from the fact that the point of view is now and again altered, 
 according as the landlord's right or the tenant's right comes 
 most into prominence. The division will be as follows : — 
 
 1. Succession to and Assignation of Leases ; Subleases 
 
 (Chaps. Vm., IX.). 
 
 2. Possession (Chap. X.). 
 
 3. Repairs ; Improvements ; Furnishings ; Fixtures 
 
 (Chaps. XI., XII., XIII). 
 
 4. Rent ; Terms of Payment ; Apportionment ; Remedies 
 
 for Recovery (Chaps. XIV., XV., XVI.). 
 
 5. Management and Usual Conditions ; Game (Chaps. 
 
 XVIT., XVIII.). 
 
\ 
 
143 
 
 CHAPTER VIII. 
 
 SUCCESSION TO THE LESSEE. 
 The doctrine of delectus personce, whereby the choice of a tenant History and 
 
 Ti ini> , • 1 11 !• scope of delec- 
 
 made by a landlord in granting a lease was regarded as exclusive, tus persona. 
 was at one time carried so far as to deny any right of succession 
 to the tenant's part of a tack. It arose out of the interest of 
 the landlord to prevent a transference of the land into the hands 
 of persons majoris vigoris than the original lessee, who might 
 use their greater power for the purpose of retaining possession by 
 force,^ and was thus a reason for checking assignations and sub- 
 leases, though in most cases none for excluding heirs. But 
 the doctrine survived in more modem guise for the purpose 
 of keeping out tenants of smaller pecuniary credit, of less 
 agricultural skill, of worse dispositions or habits, or even of less 
 congenial political bias, than the selected lessee, and in these 
 respects an heir (especially if belonging to a large family) might 
 easily be as obnoxious as an assignee or sublessee.^ So that 
 where a tack was not expressly taken as descendible to heirs, 
 there was held to be no right of succession.^ The contrary was 
 held to be finally established* by a judgment which did no 
 more than send the question to trial in a suspension of a decree 
 of removing which proceeded on the traditional ground.^ It 
 is now undoubted law that heirs of lessees succeed though not 
 expressly called ; ^ and the same rule applies to heirs of heirs, 
 and heirs of assignees.^ 
 
 ^ See the chartularieg referred to in 1 contra, Steuart to Dirl. 413. 
 
 Hunter, 55. * B. Pr. 1219 ; Here's Notes, 247. 
 
 2 Ersk. 2.6.31 ; 2 Ross' Lect. 482 ; 1 = Thomson v. Watson, 1760, M. 10337. 
 
 Bell, Leases, 152 ; 1 B.C. 75 ; argument « Ersk. 2.2.6, 2.6.31 ; 2 Ross' Lect. 
 
 in Ahson v. Proudfoot, 1788, M. 15290. 482 ; 1 B.C. 76 ; 1 Bell, Leases, 146, 
 
 " Cr. 2.10.6 ; Ersk., Ross, B.C., supra, 508 ; Brodie's Stair, 2.9.43 ; 1 Sandf. 
 
 = ; 1 Bell, Leases, 145 ; Little v. Lin- Sue. 34 ; 1 M'Laren, Wills, 92. 
 
 toun, 1579, M. 10319 ; Drum v. Niven, '' Tailfer v. M'Dougal, 1811, Hume 
 
 1609, M. 10320; dul. Bankt. 2.9.30; 857. 
 
144 SUCCESSION TO THE LESSEE. 
 
 Lease vests The right transmits and vests for all purposes without any 
 
 ^rvioe. service ; * so as to enable the heir, by virtue of mere survivance, 
 
 to possess,** to transfer, 1" to challenge his predecessor's deeds, and 
 to sue a removing." A title to long leases and assignations in 
 security recorded in the Eegister of Sasines, under the Registra- 
 tion of Leases Act, 1857, may be completed by the recording of 
 a notarial instrument by the heir, ' who shall have been served 
 ' by general or special service ' to his author. The mention 
 of ' special ' service seems to be a blunder, since a special service 
 no longer includes a general service to the whole heritage, and 
 the latter alone is applicable to a non-feudal right. ^^ There 
 is an alternative form, in which service is not required, and 
 the heir's title is completed by writ of acknowledgment from 
 the proprietor infeft in the subjects let (or, in the case of an 
 assignation in security, from the person in absolute right of 
 the lease), and recording the writ.^^ But the vesting of the 
 right is not postponed by either of the sections cited, the whole 
 purpose of which is to secure that conveyances relating to 
 long leases shall enter the record in order to secure a pre- 
 ference. 
 In heir-at-law. The heir who succeeds sub silentio, or where heirs are called 
 without qualification, is the heir-at-law. Before conquest was 
 abolished, 1* leases fell to the heir of line, not to the heir of 
 conquest, so that they are unaffected by the abolition. There 
 is no distinction in the matter of succession between short and 
 long leases, though the contrary has been maintained," or between 
 leases protected by the Act of 1449 and those which are not 
 so protected." It is a blunder in conveyancing to add the 
 words ' and executors ' to a destination in favour of heirs, and 
 they are held pro non scriptis, at least, if there be an exclusion 
 
 8 St. 3.5.4 and 6 ; Bankt. 3.5.9 ; Ersk. " Scott v. Baird, supra, «. 
 
 3.8.77 ; 1 B.C. 759 ; Scott v. Baird, 1754, 1= 20 & 21 Vict. c. 26, sect. 8, and Soh. 
 
 M. 14376 ; 5 B.S. 814, aff. 6 Pat. 719 ; F; 31 & 32 Vict. c. 101, sect. 47 ; Begg's 
 
 Veitch V. Young, 1808, M. Appx. Service Convg. Code, p. 446 ; Mowbray'sHendry's 
 
 and Conf. 4 ; Maule v. Maule, 1829, 7 S. Styles, 351. The reference to retours 
 
 527 and Appx. to same volume ; Dunn v. must be altered in conformity with the 
 
 Dunn, 1835, 13 S. 590 ; M'Laren, 1.92. last Act, sect. 27. 
 
 9 Cases in M. 14374 seq.; Dirl. and i^ 20 & 21 Vict. c. 26, sect. 7, Sched. 
 Steu. 298. E, and last note. 
 
 1" Though this was once doubted ; " 37 & 38 Vict. c. 97, sect. 37 ; see 
 
 Kattray v. Graham, 1623, M. 10366, Cr. 1.10.26; St. 3.5.10; Ersk. 3.8.15 ; 1 
 
 14374; Bankt. 3.5.9 ; 2 Rosa' Lect. 597 ; Bell, Leases, 509 ; B. Pr. 1671. 
 
 now settled, B. Pr. 1680 ; More's Notes, " Dirl. and Steu. 136 ; 2 Ross' Lect. 
 
 319 ; Campbell v. Ounninghame, 1739, 483. 
 
 il. 14375 ; Hay v. Wood, 1801, noted i« More's Notes, 141. 
 in Brodie's Stair, 525. 
 
HEIRS-PORTIONERS. 145 
 
 of assignees and subtenants. ^'^ The question was in one case 
 raised, whether a lease taken to heirs ' and successors/ secluding 
 assignees without the landlord's consent, enabled the tenant 
 effectually and without that consent to dispose of the lease 
 Qnortis causd. The decision turned on homologation. ^^ In 
 opposition, however, to certain opinions delivered from the Bench, 
 it may be suggested that more explicit phraseology must be used 
 for the purpose of giving the very important and unusual power 
 of unfettered settlement, and that the addition of 'successors,' as 
 of ' executors,' must be regarded as mere surplusage. A lease, 
 though it excludes assignees, may be propelled to the eldest son 
 of the lessee. ^^ 
 
 The tenant's part of a lease being one and indivisible, it will, Heirs-por- 
 in the event of his dying intestate and being succeeded by heirs- '°"^''^' 
 portioners, be allocated to the eldest on a division of the heritable 
 estate as a prcecipuum, but subject to her accounting to the 
 others for their shares of the profits ; ^^ or, if no division be 
 possible,^" it will go to, and remain with, all of them possessing it 
 pro indiviso, as if they were a single heir, all being entitled to 
 the rights and jointly and severally liable to the obligations 
 inferred by the lease.^^ Thus, in a well-considered case, no 
 doubt was cast on the right of sisters of a deceased tenant to 
 claim a lease which seems to have been the only thing of 
 value their brother possessed.^^ The right is one of common, 
 not joint, possession, ^^ so that the share of each descends to 
 her heirs instead of accrescing to the others.^* It has been 
 decided that if a lease is taken for the life of the original tenant 
 and of his heirs should he or they survive a fixed period, and, if 
 the elder of two heirs-portioners (who both survive the said 
 period, while the original tenant does not) dies, the lease does 
 not subsist wholly nor come to an end wholly, but terminates 
 only as to her part.^' Mr. Bell in his ' Principles,' supports 
 this judgment on the ground that the other heir-portioner could 
 only succeed to the lapsing share by heirship not by accretion. 
 
 " Lowdon V. Adam, 1805, M. App. Ly. Luss, 1678, M. 15028. 
 Tack, 10. The analogy of feudal rights ^^ B. Pr. 1219; see Deuohar, Cunning- 
 would make the rule general. ham, infra, p. 148; Lowdon, ^'. 
 
 18 AgUonby f. "Watson, 1809, Hume ^ Youngs v. Gerard, 1843, 6 D. 347. 
 
 845. 23 Cargill v. Muir, 1837, 15 S. 408 ; 
 
 ^^ Hepburn v. Burn, 1759, M. 10409 ; M'Neight v. Lookhart, 1843, 6 D. 128, 
 
 Crawford v. Whiteford; 1778, 5 B.S. 620, 136. 
 B. Pr. 1219 ; but what if stocking and =4 gge B. Pr. 1219. 
 
 capital be not also transmitted ? ^' Per L.O. in Ms. Tweeddale v. Dods, 
 
 2» On the analogy of Ersk. 3.8.13 ; 1821, in 1 Sandf. Her. Sue. 28 ; 2 Bell, 
 
 B. Pr. 1659 ; Fenton, 1523, M. 5357 ; 111. 150. 
 
 K 
 
146 
 
 SUCCESSION TO THE LESSEE. 
 
 Heir under 
 disability. 
 
 The better opinion, however, seems to be to hold that there 
 could be no partition of an indivisible subject, and that the 
 lease endured so long as any immediate heir of the original 
 tenant was in life.^^ 
 
 If the heir be a person under disability, and a manager be 
 appointed to take charge of the subject let, the question whether 
 the appointment is admissible, if assignees and subtenants are 
 excluded, will in every case depend on whether the transaction 
 is a virtual assignation or sublease,^^ or, on the other hand, 
 a bond fide arrangement for the management of the subject 
 in the interests and at the risk of the heir.^^ 
 Ultima hares. The Crown, to which accrues the caduciary right known as 
 the right of ultima hceres and bastardy is not, properly speaking, 
 an heir, but is treated as such in all respects,^^ except that it 
 does not satisfy the definition of an heir in an express destina- 
 tion.^" It is consequently not kept out by an exclusion of 
 assignees and subtenants; and the rule is not affected by the 
 fact that it cannot possess of itself, but must pass the right on 
 to a donatary,^! who therefore succeeds as heir in right of the 
 Crown, not as an assignee. ^^ 
 
 The heir-at-law and all right of succession may be excluded 
 by restricting the tenant's holding to a liferent, as will be shown 
 more at large in treating of removing. ^^ And the amplest power 
 of disappointing an heir is conferred on the lessee when the lease 
 is at common law or by its express terms assignable.^* The landlord 
 may also retain or obtain power to oust the lessee's heir. Thus 
 a mineral lease was qualified by a subsequent agreement that in 
 the event of the tenant's death, the landlord, if he so wished, 
 might resume possession at a valuation, if he should at any time 
 be dissatisfied with the working of the mines by the tenant's 
 representatives. A year after the tenant's death, the landlord 
 intimated his dissatisfaction and his intention to resume. It was 
 held that the landlord was not bound to state his grounds for being 
 dissatisfied, and that nothing short of a plain averment of fraud 
 or mala fides could let in other proof than the intimation. ^^ 
 
 Displacement 
 of the 
 succession. 
 
 2= Sandford, sufra, ^ ; 1 Hunter, 212. 
 
 ^ See Irvine v. Lyon, 1874, 1 R. 512. 
 
 ^ Sge 1 Bell, Leases, 172. 
 
 2' Reg. Maj. ii. 58 ; Balf. 237 ; Skene 
 TOCC Bastard; Cr. 1.16.30-37; Mack. 3.10.1; 
 Ersk. 3.10.24 ; Goldie, 1753, M. 3183 ; 
 Brock V. Cochrane, 2nd Peb. 1809, F.C. 
 150. 
 
 5" Torrie V. Munsie, 1832, 10 S. 597. 
 
 21 Falconer v. Hay, 1789, M. 1355, 
 seems to be overruled in principle by the 
 later oases in notes ^"j ^i, supra, p. 28. 
 
 ^ Dallas, p. 104 ; Dirl. and Steu. 121. 
 
 2* Infra, chap. xxi. 
 
 ^ Infra, p. 157. 
 
 2^ Houldsworth v. Brand's Trs., 1875, 
 2 R. 683, and see infra, p. 163. 
 
DESTINATIONS. 147 
 
 In leases which descend to heirs, but are not assignable, the Alteration in 
 normal line of succession may be altered — (1) by a special ^^^ succession, 
 destination in the lease itself; or (2) by agreement with the 
 landlord, taking the form of an alteration made unico contextu 
 with the lease, or subsequent to it, or of bequest approved by him; 
 or (3) by bequest in virtue of statutory authority. The right to 
 succeed may be given subject to a condition, but if the landlord 
 refrains from enforcing the condition, it will be jus tertii for the 
 tenant's representatives to found on it as annulling the heir's right.^" 
 
 (1) Special destinations involving joint or common rights have Special destin- 
 been already adverted to, and the rights of heirs in such cases lease. ^" *^ 
 explained. ^'^ The simpler case, in which the original tenancy 
 is held in severalty, remains to be considered. It is necessary 
 in all cases to discriminate between words inferring a destination, 
 and words intended merely to define the duration of the lease. 
 Thus, a lease taken to A and his heirs-male for nineteen years 
 and thereafter for the life of B, his second lawful son, to what- 
 ever period of years the said B's life should extend, gave no right 
 to B in preference to a nearer heir-male ; and, the words being 
 unambiguous, evidence of the intention of parties could not be 
 admitted.^® If it be intended to exclude the common law right 
 of an heir-at-law to succeed, unless the landlord approves of the 
 change, the intention should be made unmistakably clear, for 
 it will not be spelt out of a doubtful clause.^^ A lease to a 
 person ' for his life and for the life of any of his sons to whom 
 he may assign it,' does not lapse but goes to the eldest son failing 
 any nomination.*" As has been already shown,*^ a lease for 
 thirty-eight years and the lifetime of the person having right at 
 the termination thereof, ' either as heir or assignee,' runs out 
 with the life of the original tenant if he survives the fixed 
 period, the alternative quoted being ignored.*^ The existence 
 of a lease descendible to heirs but not assignable being estab- 
 lished, it will not be competent for the heir-at-law, relin- 
 quishing possession himself, to put any one else (in the decided 
 case, his sisters) into his place by an arrangement not origin- 
 ally consented to by the landlord or acquiesced in by him ex 
 post facto.*^ A destination to heirs ' secluding heirs-portioners,' 
 
 36 Praseru. Eraser, 1831, 9 S. 849. *> Fraser v. Fraser, 1805, Hume 819. 
 
 ^ Supra, p. 75. "■ Supra, p. 128. 
 
 38 Dunn V. Dunn, 1835, 13 S. 590. ^ Carnegie v. Scott, 1822, 1 Sh. Ap. 
 
 33 Criohton ■„. Ly. Keith, 1857, 19 D. 114. 
 
 713 (a very special case in which assign- ^ Gray v. Low, 1859, 21 D. 293 (the 
 
 ment and succession were mixed up case was very special, but this point is 
 
 together). clear), 
 
148 
 
 SUCCESSION TO THE LESSEE. 
 
 Permitted 
 alteration and 
 bequest. 
 
 Terms of be- 
 quest. 
 
 is equivalent to a declaration that the eldest heir-portioner shall 
 succeed without division.** 
 
 (2) For the purpose of avoiding the bad effects of devolution 
 to a minor, heirs-portioners, or a person incapable of managing, 
 or for the purpose of keeping up the lease for the benefit of the 
 tenant's family at large, not of his heir alone, the lease may 
 contain power to the lessee to name an heir,*^ or to bequeath 
 generally ;*^ or such power may be granted extrinsecus by the 
 landlord; or the landlord may expressly agree to or tacitly acqui- 
 esce*'^ in an alteration of destination, or in a bequest by the 
 tenant made without obtaining his consent. Power to alter or 
 bequeath is not imparted by the usual destination in general 
 terms to ' heirs,' if assignees be excluded.*^ 
 
 It is in the first place necessary to note the mode in which 
 the tenant may give effect to his intention to alter. The 
 tenant's right in and to a lease may be conveyed by him in a 
 will or Tnortis causa disposition either expressly,*'' or by general 
 words sufficient to indicate or include the right. And now 
 heritable estate — including leases — is in the same position as 
 moveable estate so far as regards the mode in which it may be 
 settled onortis causd.^ So that the only difficulty now lies in 
 the ascertainment of the settler's intention. Thus, a clause in a 
 tenant's contract of marriage conveying ' the whole horses, nolt, 
 ' sheep, stocking upon this farm, household furniture, labouring 
 ' utensils, bonds heritable or moveable, bills, promissory notes, and 
 ' whole other effects heritable or moveable,' was held not to 
 apply to the lease of his farm.^^ Nor was a lease included in 
 a settlement of ' all and sundry goods, gear, debts and sums 
 ' of money, horn crop and corn crop, household furniture and 
 ' every other thing that shall be pertaining and belonging or 
 ' resting and owing to ' the tenant.^^ Leases are included in 
 a settlement of ' heritages.' ^^ A farmer's settlement appointed 
 
 ** Op. in Pratt v. Abercromby, 1858, 
 21 D. 19. The clause in Crichton v. 
 Ly. Keith, supi^a^ ^^, was explicit. 
 
 * Deuchar v. L. Minto, 1798, M. 
 15295 ! Irvine i). Fiddes, 1827, 5 S. 534 
 (N.E. 502); B. Pr. 1219. 
 
 ^« Stewart v. Pirie, 1832, 11 S. 139. 
 
 ^'' Darroch v. Rennie, 1803, M. 15301 
 (possession by second son for sixteen 
 years) ; of. Gray v. Low, supra, '^. 
 
 * Deuchar, supra, *^ ; Cunningham 
 1). Grieve, 1803, M. 15298 ; 4 Pat. 671 ; 
 1805, M. App. Tack, 9, aff. 6 Pat. 16 ; 
 
 Lowdon V. Adam, sujjra, ^^ ; 1 B.C. 82 ; 
 1 Bell, Leases, 162 ; Brodie's Stair, p. 
 371 ; B. Pr. 1219. 
 
 <"• Stewart v. Pirie, supra, * ; Trotter 
 V. Hall, 1790, Hume 878. 
 
 ^ 31 & 32 Vict. ^. 101, sect. 20 ; and 
 see 37 & 38 Vict. c. 94, sects. 27, 46. 
 
 ^^ Cockburn v. Cockburn, 1803, Hume 
 131. 
 
 ^2 Sutherland v. Jeffrey, 1805, Hume 
 133. 
 
 ^ Duncan v. Eaes, 15th Feb. 1810, 
 F.C 583 (the distinction made in the 
 
GKNERAL TERMS OF BEQUEST. 149 
 
 certaiu persons to be trustees ' to do everything necessary for the 
 ' comfort of my wife and family ; that they entirely take charge 
 ' of the farm, all means and moveables, until the youngest is 
 ' twenty-one years of age, then to be an equal division among 
 ' the three. ... It must also be distinctly understood that 
 ' should my present wife marry she shall get her legal claim, 
 ' but shall have no influence or claim upon the children, or any 
 ' management of the farm without the trustees' consent. The 
 ' whole arrangements are to be through the trustees. They 
 ' shall also have power to retain or give up the farm as they 
 ' see it to be of most advantage to the family.' Though there 
 was no other or direct disposition of the lease, specifically or 
 generally, the assimilation of bequests of moveables and heritages 
 led — it appears soundly — to the conclusion that there was 
 sufficient evidence of an intention to convey the lease to the 
 trustees who were therefore held entitled to it.** A testator, 
 possessed of moveable estate and long leases, including a lease 
 of a hotel in which he carried on business, bequeathed 'the whole 
 ' of property either in money, bonds, debets, bussness, and other 
 ' afficts whotsoever,' to his wife, whom he appointed ' heir and 
 ' executrix.' A majority of the First Division held that the 
 bequest did not cover any of the leases. Lord Ardmillan held 
 that the term ' bussness ' applied to the hotel and its goodwill.^^ 
 A review of the cases relating to other sorts of heritable property 
 since the passing of the 20th section of the Act of 1868, cited 
 above,^^ strongly supports the view that the institution of an 
 ' heir ' should have been held sufficient to carry the leases 
 without direct disposition.*'' It may be an element in deter- 
 mining the question of intention that at the date of the settle- 
 ment — though not of the death — the testator possessed no lease ; 
 or that the settlement was dated prior to the alteration of the 
 law in 1868.*^ The presumption against evacuation of a special 
 
 judgment — of no importance to the v. Aim, 1880, 8 R. 294 ; Farquharson r. 
 
 present matter — seems untenable ; 1 Farquharson, 1883, 10 R. 1293; Ford's 
 
 Bell, Leases, 512; 1 Hunter, 219). Trs. v. Ford, 1884, 11 R. 1129 ; Oag's 
 
 « Hardy's Trs. v. Hardy, 1871, 9 M. Curator v. Corner, 1885, 12 R. 1162. 
 
 736. ^ At least this would probably now 
 
 ^° Edmond v. Edmond, 1873, 11 M. be held under the supervenient statute 
 
 348. 37 & 38 Vict. u. 94, sect. 46. 
 
 ^ 31 & 32 Vict. 0. 101, sect. 20 ; Pit- ^' See Farquharson : Ford's Trs., 
 
 cairn v. Pitcairn, 1870, 8 M. 604; supra, ^^ ; 'Furqahstx v. Farquhar's Exr., 
 
 Robb's Trs. v. Robb, 1872, 10 M. 692; 1875, 3 R. 71. But Paterson v. Farish, 
 
 M'Leod's Trs. 6. M'Leod, 1875, 2 R. 481; 1800, Hume 128, is of doubtful authority. 
 
 Pringle, 1877, 15 So. L.R. 89 ; Urquhart The decision in Ly. Dunfermline v. the 
 
 V. Dewar, 1879, 6 R. 1026 ; Aim's Tr. Earl, 1628, M. 3048 would not now be 
 
150 
 
 SUCCESSION TO THE LESSEE. 
 
 Landlord's 
 veto — its 
 effect. 
 
 Statutory 
 powers of 
 bequest. 
 
 Bequest of 
 lease. 
 
 destination by a subsequent general settlement ^^ is illustrated by 
 a case in which the subject destined was a lease. ^" 
 
 In all these questions as to the meaning and effect of bequests 
 and alterations on destinations, it is postulated that the landlord 
 is content to allow either the heir-at-law or the heir in the 
 original destination on the one hand, or on the other hand the 
 person put in his place, to succeed to the lease ; and thus the 
 heir is at liberty to dispute the effect of the provisions alleged 
 to exclude him. If, however, there be no doubt of the tenant's 
 intention to alter, it is competent to the landlord alone — not to 
 the tenant's heir — to object to the new destination.^^ Until 
 challenge by the landlord the new destination subsists ; if he 
 acquiesces it is secured. But if he repudiates it, he lets in the 
 heir to set it aside by reduction at his own hand ; for the rule 
 that a clause excluding the heir is only pleadable by the land- 
 lord does not confine the landlord, in giving effect to his right, 
 to doing so in an action at his own instance or to which he is a 
 party. ^^ 
 
 (3) By the 29 th section of the Agricultural Holdings Act ' *' 
 it is enacted — 
 
 A tenant may by will, or other testamentary writing, bequeath his 
 lease to any person (hereinafter called ' the legatee '), subject to the 
 following provisions : — 
 
 (a) The legatee shall intimate the testamentary bequest to the landlord 
 or his known agent within twenty-one days after the death of 
 the tenant, unless he is prevented by some unavoidable cause 
 from making intimation within that time, and in that event he 
 shaU make intimation as soon as possible thereafter. 
 
 (6) Intimation to the landlord or his known agent by the legatee shall 
 import acceptance of the lease by the legatee. 
 
 (c) Within one month after intimation has been made to the landlord 
 or his known agent, he may intimate to the legatee that he 
 objects to receive him as tenant under the lease ; 
 
 If the landlord or his known agent makes no such intimation 
 within one month, the lease shall be binding on the landlord 
 
 repeated. On the whole of this subject, 
 see notes in Begg, Conveyancing Code, 
 65 seq. 
 
 '^ See Glendonwyn v. Gordon, 1873, 
 11 M. (H.L.) 33, L.R. 2 Sc. Ap. 317, and 
 cases there. 
 
 ^'> Flemings v. Fleming, 1800, M. App. 
 ImpUed Will, 1. 
 
 "1 Deuchar v. L. Minto, 1798, M. 
 15295 ; Hay and Wood, 1801, M. 16297 ; 
 
 Cunningham •,;. Grieve, 1803, M. 15298, 
 4 Pat. 571 ; 1805, M. App. Tack, 9, aff. 
 6 Pat. 16; 1 B.C. 77; 1 BeU, Leases, 
 168 ; B. Pr. 1219. 
 
 "^ Murdoch v. Murdoch's Trs., 1863, 1 
 M. 330. 
 
 «3 46 & 47 Vict. 0. 62. See Appx. 
 No. ii. See the similar enactment in 
 the Crofters' Holdings Act, mfra, chap, 
 xxiii. 
 
STATUTORY BEQUEST. 151 
 
 and the legatee respectively as landlord and tenant as from the 
 date of the death of the deceased tenant. 
 
 (d) If the landlord or his known agent intimates that he objects to 
 
 receive the legatee as tenant under the lease, the legatee may 
 present a petition to the sheriff, praying for decree declaring that 
 he is tenant under the lease as from the date of the death of the 
 deceased tenant, of which petition due notice shall he given to 
 the landlord, who may enter appearance, and state his grounds 
 of objection ; and if any reasonable ground of objection is 
 established to the satisfaction of the sheriff, he shall declare the 
 bequest to be nuU and void ; but otherwise he shall decern and 
 declare in terms of the prayer of the petition. 
 
 (e) The decision of the sheriff under such petition as aforesaid shall 
 
 be final. 
 (/) Pending any proceedings rmder this section, the legatee shall have 
 
 possession of the holding, unless the sheriff shall otherwise 
 
 direct on cause shown. 
 (g) If the legatee does not accept the bequest, or if the bequest is 
 
 declared to he null and void as aforesaid, the lease shaU descend 
 
 to the heir of the tenant in the same manner as if the bequest 
 
 had not been made. 
 
 This provision applies only to holdings which are agricultural or 
 pastoral or partly the one and partly the other, or wholly or in 
 part cultivated as a naarket-garden : and not even to these if let 
 only during the tenant's continuance in any office, appointment 
 or employment of the landlord (sect. 35).^* There is thus 
 thrown on the sheriff or sheriff-substitute a very delicate duty 
 without further indication of the intention of the legislature 
 than that he must be satisfied that the ground of objection to 
 the legatee is reasonable. The section seems to confine the 
 tenant's nomination to a single nominee, and to exclude trustees. 
 The parties may contract themselves out of the section (see sect. 
 36). 
 
 It seems the better opinion, and to result from the above Destination 
 exposition and especially from the fact that the heir to a lease ^ ff^^s'-^"**'!- 
 takes as heir of provision (as in entails) and takes nothing of 
 which his predecessor's creditors could make use in the event of 
 his renouncing, that he incurs no passive title by entering and 
 that these creditors cannot attach the profits of the subject let so 
 far as accruing subsequently to the death of their debtor.^^ It 
 is quite certain that the practical results of an entail, — in 
 
 ^* The other terms are defined in sect. Campbell v. Gallanaoh, 1806, there ; 
 42. More's Notes, 346 ; B. Pr. 1924. 
 
 65 See the controversy in 1 B.C. 82; 
 
152' SUCCESSION TO THE LESSEE. 
 
 questions inter heredes only and not in questions with creditors 
 — are obtained by an assignation or settlement on a series of 
 heirs, under condition that the order of succession shall not be 
 altered, and under what limitations, conditions, and restrictions 
 soever the settlor thinks fit,'''' so long as these do not affect the 
 contract with the landlord. Recording in the Register of Tailzies 
 is incompetent, because the right is not feudal, and unnecessary, 
 because the limitation is inherent and the right personal.'"' 
 Leases of teinds and of minerals have been contained in entails 
 of family estates; ''s and an entail of leases of lands for ninety-nine 
 years in the form of an assignation in favour of a series of heirs 
 called in an entail of feudal property has been recognised in one 
 case by judgments nearly fifty years apart. ^^ But, in order that 
 the policy of the Rutherfurd Act might not be defeated by 
 leases granted in lieu of feudal conveyances, that statute enacts 
 that if a lease dated on or after 1st August 1848 is held directly 
 or through trustees by a party of full age and born after its date 
 he shall not be affected by conditions or limitations of entail, or 
 intended to regulate the succession, or to restrict his enjoyment of 
 the estate in favour of any future heir ; leaving untouched the 
 right of the landlord to enforce stipulations in his favour.™ Thus 
 the Act does not apply to old leases (dated before 1st August 
 1848) ; nor to persons in possession born before the date of the 
 lease. The Act does not ^2580 jure alter the destination ; that 
 must be done by the heir, who is thus set free to do it. 
 Tempusde- As an heir is now not liable for the debts of his ancestor 
 
 beyond the value of the estate to which he succeeds,"-' there is no 
 longer any advantage in entering subject to specification,"- but 
 the heir has still the benefit of the postponement of actions of 
 constitution and of constitution and adjudication till six months 
 after the ancestor's death. ''^ Possession by the heir during that 
 period by cultivating the land and other acts of management if 
 they be such as are necessary and proper for the maintenance of 
 the subject in its ordinary — it may be, fruit-producing — condi- 
 tion, will not necessarily be regarded as indicating an intention 
 
 81! Sandf. Entails, 252 ; per L. Balgray '» 11 & 12 Vict. o. 36, sect. 49. 
 
 in Maule, infra, "», 7 Sh. Appx. p. 10. '^ 37 and 38 Vict. c. 94, sect. 12. 
 
 <'■ Per L. Braxfield in 7 Sh. 531, note ; '- See 31 & 32 Vict. c. 101, sect. 49. 
 
 L. Balgray, supra, "s. Under the old benefit of inventory, see 
 
 «8 L. Balgray, supra, «". Laird v. Grindlay, 1791, Bell, Oct. Ca. 
 
 "" E. Dalhousie v. Maule, 1782, M. 296, per L.J.-C. ; 1 B.C. 80 ; Forbes v 
 
 1.0963 ; Maule v. Maule, 2nd Dec. 1817, Ure, 1856, 18 D. 577. 
 
 F.C. 394 ; 1829, 7 S. 527— opinions in ™ 31 & 32 Vict. u. 101, sect. 61. 
 appx. thereto. 
 
 liberandi. 
 
ABANDONMENT BY THE HEIR. 153 
 
 to take up the lease, but it will be prudent to let the landlord 
 know that the possession is merely tentative. If his actings pass 
 beyond ordinary administration, they will indicate, on the con- 
 tary, his intention to adopt the lease. 
 
 The intention to take up a lease and the intention to renounce Proof of 
 or abandon it may each be proved not only by express words but also byTeir"™™ 
 tacitly by the heir's conduct. Abandonment has been instructed 
 in the latter mode in several cases. Thus, an heir by acknow- 
 ledging the right of certain trustees to enter, and by possessing 
 under a missive from them, was barred from claiming the lease 
 qua heir.'^* Again, at the death of a tenant under a lease of 
 which three years were still to run, the heir (of whose existence 
 the landlord was ignorant) was abroad ; the widow, having 
 neither right nor obligation to remain in possession, left the farm 
 after a few months ; and the landlord, finding no one entitled, 
 granted a new lease at a rise of rent. About the end of the 
 three years the heir returned and claimed the surplus rent. It 
 was held that he must be taken to have abandoned the lease, and 
 that nothing was due to him. The grounds were that the land- 
 lord was not bound to leave the farm unlaboured, nor to apply to 
 the sheriff for authority to let it for the three years ; that if the 
 heir did not know of his father's death till the ish of the lease, 
 no injury was done to him, since he could not have possessed; and 
 that if he did know of it, he having declined the risk was not 
 entitled to the profit as he would not have been liable for any 
 loss."" Abandonment by an heir was later held to be instructed 
 by his refraining for two years to enter, during which period he 
 was in Scotland ; by his subsequently residing abroad ; and by 
 a memorandum left by him at his departure which showed that 
 he regarded his sisters as the tenants.'^ After the ish of a tack, 
 it will not be open to an heir, who has never entered on possession 
 but on the contrary has allowed others to possess for their own 
 behoof, to plead tacit relocation. ^'^ In such cases it is sometimes 
 a question of fact whether the persons in actual possession are 
 only managers for the heir or are pretended tenants ; "^ and the 
 Court will be astute to get at the true position of parties, however 
 these may 'juggle ' with words in their transactions."^ It appears, 
 moreover, that delay to claim possession, such as would infer 
 abandonment if the subject was in consequence relet, will not 
 
 ^* Munro v. Munro, 1825, 4 S. 328 " Wilson v. Stewart, 1853, 16 D. 106. 
 
 (N.E. 231). '» Gray : Wilson, supra, ^^ '". 
 
 75 Watt V. Duff, 1852, 14 D. 879. '» Forbes v. Ure, 1856, 18 D. 577. 
 
 "« Grayr. Low, 1859, 21 D. 293. 
 
154 SUCCESSION TO THE LESSEE. 
 
 have the same effect if the deceased tenant's relatives or others 
 retain possession under the lease. Thus a delay of fourteen years 
 during which the true heir (or one of the true heirs) was abroad 
 and ignorant of the destination in the lease did not preclude her 
 from claiming right to a lease which in the interval had been 
 possessed on by the widow of the old tenant, a daughter at home, 
 and that daughter's son successively.*" 
 Damages for If the heir refuses to take up the lease and it has not come to 
 aWdonment!' its natural termination, a number of obligations have been under- 
 taken by the tenant which remain partly unfulfilled at his death ; 
 and in lieu of fulfilment comes a claim for damages competent to 
 the landlord against the tenant's representatives. In a decided 
 case, there was no other heritage, and the burden was cast on the 
 executor, as such, and on him as an individual in so far as he had 
 personally intromitted.^^ If there had been other heritage, it 
 may be presumed that the rule of setting a debt arising out 
 of the possessor's heritable estate against heritage would have 
 made the heir primarily or ultimately liable. As the measure of 
 damages*^ has been suggested the rent due till the ish under 
 deduction of rents actually received for the same period on re- 
 letting.*^ There may, however, be other outstanding obligations 
 — in regard to repairs, improvements, and the like — for a breach 
 of which the representatives will be liable, if injury has been 
 thereby caused to the landlord's interests. While an offer by 
 the executors to take up the lease would be a good answer 
 to an action of damages for breach of the bargain so far as 
 depending on discontinued possession, it may be rejected by the 
 landlord and will be no answer to a claim which becomes due 
 only at a removing.** Nothing turns on the omission or addition 
 of words such as ' executors,' ' successors,' in imposing the obliga- 
 tion to pay rent or to' perform other prestations.*^ It will be 
 matter of construction to determine whether an obligation is one 
 prestable once for all or is recurrent at each transmission.*^ 
 Incidence of The practice is almost universal in framing the rent clause of 
 
 r"pre^sen^'a-™^ a lease to take the ' heirs, executors, and successors ' of the 
 *'"'^^- tenant bound along with him to pay the rent; and in other 
 
 80 Criohton V. Keith, 1857, 19 D. 713. 83 pg^ l_ GifEord, 2 R. 187. Subject to 
 
 81 Bethune v. Morgan, 1874, 2 E. 186. discount. 
 
 (There can be no doubt that both the 84 ggott's Exrs. v. Hepburn, 1876, 3 E. 
 
 L.Oa. -were right, though there was no 876. 
 
 proper review of the question). 85 Bethune, 81; goott's Exrs., ^*, per 
 
 82 L. Gifford, 2 E. 188, seems over- L.E. Inglis. 
 
 scrupulous in refusing to call the action 86 Murray v. Torrie, 1776, 5 B.S. 
 
 one of damages. 516. 
 
LIABILITY OF TENANT'S REPRESENTATIVES. 155 
 
 parts of the deed to throw on the same parties the burden 
 of fulfilling the other prestations. When the heir does not 
 renounce, the ejBfect of such an obligation may be stated in the 
 words of Lord President Inglis in a cognate case of feu-contract. 
 ' The imposition of the obligations on the vassal, his heirs, 
 ' executors, and successors is read, according to inveterate prac- 
 ' tice as an obligation on himself so long as he remained vassal and 
 ' lived, and after his death on his heirs and executors for payment 
 ' of arrears, and on his successors in the feu for payment of the 
 ' feu-duty in the future.' ^'^ The addition of the words ' con- 
 ' junctly and severally ' makes, however, an important difference, 
 since it binds each of the persons indicated in the obligation 
 to fulfil, not successively in their order, according to the state 
 of things when a claim emerges, but absolutely and in any 
 event, the same and the whole obligation. ^^ And where such a 
 clause was applied to two joint tenants, and these persons bound 
 themselves and their respective heirs, executors, and successors, 
 all conjunctly and severally, the word ' respective ' was held not 
 to have any effect in distributing the obligation, but only to 
 import that each tenant bound his own representatives. When 
 one of them and his representatives ceased to have any rights 
 under the leases, the obligation still incumbent on them became 
 of a cautionary character, entitling them to relief from the 
 remaining tenant, or, failing relief, to a termination of the con- 
 tract on the occurrence of a break in the tenants' option. ^^ 
 
 Terce is not due out of leases, because they are not feudal Teroe. 
 rights. And for the same reason leases do not fall under the Courtesy. 
 courtesy.^" The theory of collation is wide enough to include Collation, 
 among the heritable subjects, which require to be thrown into 
 the divisible aggregate, the right of a deceased tenant under 
 a lease ; ^^ and there is some practice in conformity with this 
 view.'^ If assignees are excluded, the lease is allocated to the 
 heir, and its value credited to the common fund for division.^^ 
 
 ^ Dundee Police Corns, v. Straton, authorities there. 
 
 1884, 11 R. 586, and contrast with Miller ^ MTeggan v. Murray, 1805, Hume 
 
 V. SmaU, 1853, 1 Macq. 345 ; Gardyne v. 887 ; Stewart v. M'Naughton, 1824, 3 S. 
 
 Royal Bank, 1853, 1 Macq. 358 ; King's 351 (N.B. 250) ; Robertson, 1841, 3 D. 
 
 College V. Hay, 1854, 1 Maoq. 526. 345 ; Mitchell, 1847, 10 D. 148 ; B. Pr. 
 
 88 Ibid. 1912. 
 
 89 Burns v. Martin, 1885, 12 R. 1343, »» On the principle of Gilmour v. Gil- 
 rev. 14th Teb. 1887, see esp. L. Watson's mour, 13th Deo. 1809, F.C. 449 ; Fisher's 
 judgment. Trs. v. Fisher, 1850, 13 D. 245 ; 1 M'L. 
 
 9» Ersk. 2.9.49 and 52. Wills, 143. 
 
 "^ 1 M'Laren, Wills, 141 seq., and 
 
156 
 
 CHAPTER IX. 
 
 ASSIGNATION AND SUBLEASE. 
 
 Assignation, 
 auid ? 
 
 Sublease, 
 quid } 
 
 In ordinary formal leases it is usual to provide, immediately 
 after the nomination of a lessee and his heirs, for the admission 
 or exclusion of assignees and subtenants, or of either of these 
 classes of successors. Or the lease may be silent on this matter. 
 It is proposed in this chapter to gather together the rules which 
 regulate (1) the powers of tenants to assign and sublet; (2) the 
 mode of rendering assignations and subleases effectual ; and 
 (3) the rights and obligations of assignees and subtenants. 
 Leases being originally and essentially personal rights, the 
 proper mode of conveyance of the tenant's right in them is by 
 assignation, not disposition. ^ An assignation is a transference of 
 a lease by the lessee, whereby he substitutes in his place 
 another tenant who becomes entitled to his rights and bound by 
 his obligations under the lease, he himself ceasing to be vested 
 with the one or subject to the other. A mere offer to assign 
 does not prevent the offerer from implementing the conditions of 
 his lease ; so that he may proceed to get the rent fixed by 
 arbitration (if that was the agreement with the lessor) and the 
 award will be binding on the assignee if pronounced before 
 acceptance of the offer. ^ By a sublease a lessee lets the 
 subject leased to him, or part of it, to another to hold it under 
 him as landlord. The main distinction between the two trans- 
 ferences is that the cedent in the assignation ceases to be 
 tenant ; while the granter of a sublease still remains tenant of 
 his own landlord.^ It is proposed consistently to name these 
 three parties landlord, lessee, and sublessee, or landlord, tenant. 
 
 ' Per L. Moncreiff in Blair v. Blair, 
 1849, 12 D. 115 ; Menzies' Lect. 826 ; 
 1 Bell, Convg. 1112. 
 
 2 Robertson v. Winans, 1885, 12 R. 
 419 (sublessee). 
 
 3 St. 2.9.22 ; Bankt. 2.9.17 ; Ersk. 
 2.6.34; 1 B.C. 76; Ronaldson, ISth Dec. 
 1812, r.C. 49 ; Skene v. GreenhiU, 1825, 
 4 S. 25 (N.E. 26). 
 
POWER TO ASSIGN AND SUBLET. 157 
 
 and subtenant, without cumbering the exposition with the terms 
 under- and over-tenant or under- and over-landlord. 
 
 I. Power to Assign and Sublet. 
 
 (1) At Common Law. 
 
 In Scotland * the doctrine that leases are stridi juris involv- Ddectus 
 ing a delectus personce, though relaxed in favour of succession/ ^*'^"""^' 
 is still in force to the effect of preventing a lessee from assigning 
 or subletting, unless expressly or by an exception known to the 
 law empowered to do so.^ The rule is equally applicable to 
 both modes of alienation.'^ 
 
 Express power to assign and sublet is usually granted by taking Express power, 
 the lease to the tenant, bis assignees, and sublessees. At first 
 the favour was by common style limited to assignees or sublessees 
 ' of no higher degree' than the lessee himself;^ but this restric- 
 tion dropped aside in more peaceful times and is now unknown.^ 
 If the power be merely ' to output and input tenants,' it extends 
 to subletting only not to assigning, being intended to admit of 
 parcelling out the subject among ' subtenants and helps,' and 
 of removing these. ^^ The power of subletting will not be spelt 
 out of a lease by way of presumed intention, as where the 
 landlord knows that the farm, the dwelling-house on which the 
 tenant seeks to sublet, is to be occupied as a led farm ; ^^ and 
 the same rule will apply to assignation. The sublease, formerly Extent of 
 confined to part only of the subject originally let,^^ may now ^"^^l^^^®- 
 embrace the whole of it,^^ and that for the whole term of the 
 lease.. No argument is necessary to establish the recognised 
 rule that a power to sublet does not imply a power to assign, 
 since the landlord gives up the security of the original tenant 
 
 ^ It is different in England, Woodfall, * See the reason, supra, p. 143 ; Spotts. 
 
 p. 257. Styles, 363 ; 2 Ross' Lect. 486. 
 
 5 Supra, p. 143. ' 1 Jur. Styles (5tli ed.) 566. 
 
 ^ Balf. 208 (the rule referred to is not ^ St. 2.9.22 ; Bankt. 2.9.15 ; Ersk. 
 
 to be found in Thomson's Acts); Or. 2.6.33; 1 Bell, Leases, 192; 2 Boss' 
 
 2.9.23, 2.10.3.6 ; St. 2.9.22, 26 ; 3.1.16 ; Lect. 486 ; Souper v. Wauchope, 1694, 
 
 Mack. 2.6.7.8 ; Bankt. 2.9.11.15 ; Ersk. 4 B.S. 156. 
 
 2.6.31-33; 2 Koss' Lect. 483 ; 1 B.C. 76; " E. Glasgow w. Hamilton, 1851, 13 
 
 B. Pr. 1215 ; Mere's Notes, 248 ; 1 Bell, D. 1290. 
 
 Leases, 175, 187 ; Hume v. LyaU, 1680, ^^ 2 Eoss' Lect. 486 ; 1 Bell, Leases, 
 
 M. 10391; Hunter v. Brown, 1681, 3B.S. 468 ; Grant v. L. Braco, 1743, M. 15279; 
 
 387 ; Scrimgeour v. Mitchell, 1775, 5 B.S. Bowack v. CroU, 1748, M. 15280. 
 
 618 ; D. Portland v. Baird, 1865, 4 M. ^^ I B.C. 77; 2 Rosa' Lect. 487; 1 Bell, 
 
 10, 22 ; and other cases in this sub- Leases, 469 ; Crawford v. Maxwell, 1768, 
 
 section. M. 15307, and case there ; Trotter v. 
 
 ' The doubt in Ersk. 2.6.33 is not Dennis, 1770, M. 15282. 
 justified by the authorities. 
 
158 
 
 ASSIGNATION AND SUBLEASE. 
 
 Implied 
 power. 
 
 Liferent and 
 similar leases. 
 
 Leases of 
 
 extraordinary 
 
 endurance. 
 
 and his representatives in the latter case and not in the former. 
 It is also settled — though there has been some difference of 
 opinion i* — that a power to assign does not include a power to 
 sublet, the main reasons being the material consideration that 
 injury might be caused by subdivision, and the formal argument 
 from expressio unius exclusio alterius. This argument is also 
 available, when either power is expressly excluded. ^^ 
 
 Power to assign and sublet is implied in certain sorts of tacks 
 by an exception at common law to the general rule. These are — 
 
 (1) Liferent Leases; because these are regarded as conferring 
 a more prolonged right than ordinary leases. ^^ 
 
 (2) Leases granted for the Duration of the Lessee's Tenure 
 of an Office — as to a minister during his incumbency — for the 
 same reason. ^'^ 
 
 (3) Farm, Leases of Extraordinary Endurance}^ 
 
 There has been much difference of opinion in the history of 
 our law as to the duration which shall or shall not be regarded 
 as ordinary. A lease for ten years was at one time considered 
 a long lease. ^^ Nineteen years were regarded as equivalent to a 
 liferent, and consequently as a long term of endurance.^" The 
 former view has never been given effect to by the Court ; the 
 latter was given effect to late in last century so as to imply a 
 power to sublet. ^^ It is now settled, however, that a lease of nine- 
 teen or twenty-one years is one of ordinary duration ; and that a 
 lease of thirty-seven or thirty-eight years is one of extraordinary 
 endurance.^^ There is no authority as to leases for a period 
 intermediate between twenty-one and thirty-eight years. If 
 such be granted, and nothing be said of power to alienate, 
 it is probable that the power would be held to be implied. 
 
 1* Bankt. 2.9.17 ; 2 Ross' Leot. 486. 
 
 ^= 1 B.C. 77 ; 1 BeU, Leases, 192, 469 ; 
 More's Notes, 250 ; Binnie n. Sinclair, 
 1672, M. 10382; Eochead v. Moodie, 
 1687, M. 10392 ; Crawford v. MaxweU, 
 supra, ^^ ; Trotter v. Dennis, supra, ^. 
 
 i« St. 2.9.6 ; Mack. 2.6.7 ; Bankt. 
 2.9.11.46 ; Ersk. 2.6.32 ; 2 Ross' Leot. 
 484 ; 1 B.C. 77 ; 1 BeU, Leases, 186, 192 ; 
 Hume V. Craw, 1637, M. 10371 ; Dufif v. 
 Fowler, 1672, M. 10282. 
 
 '' Pringle v. M'Lagan, 1802, Hume 
 808. 
 
 18 More's Notes, 249 ; B. Pr. 1215 ; 
 and see case where a long lease was held 
 unassignable to a stranger, but merely 
 because it was in reality a family settle- 
 
 ment, Stevenson v. Love, 1842, 4 D. 1322. 
 
 ^ Cr. 3.4.5. 
 
 2» Balf. 203 ; Cr. 2.10.5 ; Dirl. and 
 Steu. 85, 96. 
 
 21 Duffs. Hay, 1769, Hailes 289. 
 
 22 1 B.C. 76 ; 1 Bell, Leases, 186, 191, 
 443 ; Ersk. 2.6.32, 33 ; Brodie's Stair, 
 371 ; Crawford v. MaxweU, 1758, M. 
 15307 ; Alison v. Proudfoot, 1788, M. 
 15290; E. Peterborough v. MUne, 179], 
 M. 15293 ; E. Cassilis v. Macadam, 1806, 
 M. Appx. Tack, 14 ; Trotter v. Dennis, 
 "; Simpson v. Gray, 1794, M. 15294; 
 Pringle v. M'Lagan, supra,^'' ; L. Neaves 
 in D. Portland v. Baird, 1865, 4 M. 10, 
 22, should be read as speaking of agricul- 
 tural, not of mercantile, subjects. 
 
• UEBAN LEASES. 159 
 
 looking to the almost universal prevalence of twenty-one or 
 nineteen years' leases, and to the probable inference that 
 the additional possession was intended to recoup for unusual 
 outlay in improvements.^^ Leases for more than thirty-eight 
 years, and for indefinite periods which may extend beyond that 
 period, as involving liferents, are a fortiori assignable and 
 the subjects sublettable.^* 
 
 (4) Leases of Urban Tenements. 
 
 It is necessary to premise that the distinction between rustic Urban leases, 
 or rural tenements and urban tenements does not result from the Urban and 
 situation of the subject in country or town, but from its nature, ments!^"^^ 
 according as the main subject let is the use of the solum, its 
 produce, and what is naturally on or below it {rural) ; or the 
 use of the superficies, of what has been by the art of man placed 
 on the surface — viz., buildings of all sorts (urhan).'^^ The 
 addition of an accessory to the main subject of lease makes no 
 difference. Thus the existence of a farm-house does not make 
 the farm less of a rural tenement; and the accompaniment 
 of an area or garden does not make a villa less urban than a 
 factory. 
 
 In urban tenements a lease implies power to the lessee to Ratio of the 
 assign and sublet, unless there be an express exclusion. ^^ This ^^"^^ '°"" 
 exception from the rule of the delectus personce is said to have 
 arisen from the circumstance that there was not originally the 
 same solidarity between the lessor and lessee of a house as 
 between the landlord and tenant of a farm ; and that there may 
 be more frequent and urgent calls to relinquish possession in the 
 one case than in the other.^"^ But the exception was not reached 
 without difficulty ;^^ and doubts have been expressed whether it 
 would be applied in cases where, there being ample justification 
 for a delectus personce, the ratio of the rule failed — as in shops 
 and taverns, and in mills or factories let with the machinery 
 large and small.^^ There seems to be no justification for these 
 
 25 See the Montgomery Leases for Bankt. 2.7.5.16 ; B. Pr. 983. 
 
 thirty-one years (10 Geo. IIL c. 56, sect. ^6 Bankt. 2.9.12 ; 1 B.C. 76 ; 2 B.C. 
 
 1) ; the ordinary leases of the Kosebery 32 ; B. Pr. 1271 ; 1 Bell, Leases, 184 ; 
 
 Act (6 & 7 Will. IV. c. 42, sect. 1), Ersk. 2.6.31-33 ; Aitchison v. Benny, 
 
 supra, p. 58 ; and B. Pr. 1215. 1748, M. 10405 ; Elch. Tack, 13 ; Ander- 
 
 ^ Bankt. 2.9.46 ; Ersk. 2.6.32 ; 2 son v. Alexander, 10th July 1811, F.C. 
 
 Ross' Lect. 484; More's Notes, 248; 327. 
 
 Ross V. Blair, 1627, M. 10368. ^ Last note. 
 
 == Brodie's Stair, 371 ; 1 Hunter, 232 ; ^s Bankt. supra, '"; Aitchison v. Benny, 
 
 and as to servitudes with the same supra, ^°. 
 
 nomenclature, 3 D. (8.1) ; Forbes, 2.4.3 ; ^9 i B.C. 76 ; B. Pr. 1274. 
 Mack. 2,9.3 : St, 2.7.5.9 ; Ersk, 2.9.6 ; 
 
160 ASSIGNATION AND SUBLEASE. 
 
 doubts in the case cited by Mr. Bell.^" Mr. Hunter's ingenious 
 suggestions^ that assignation or sublease might be admitted, if 
 only the larger gear of a factory was let with it, while it should 
 be held excluded if the smaller machinery, requiring greater care 
 and skill in the use, was also let, affords a distinction too slender 
 to support a rule of law. It would, moreover, be unfortunate if 
 the alienability of a lease were in each case to turn on the 
 greater or less need in the landlord's interests for a choice of 
 tenant. It may be presumed that if the question arose, the 
 Court would uphold the freedom of the tenant, after satisfying 
 itself that the tenement was urban, and exclude all other inquiry. 
 If a lease of an urban tenement is merely accessory to a larger 
 and more valuable right, for the exercise of which it is required, 
 and which is itself not alienable, it will follow the fortunes of 
 the principal right. This was decided where an attempt was 
 made to sublet an exclusive privilege of carrying on a retail 
 trade in a village, and therewithal the inn and bakehouse in 
 which the trading was to take place. The rent of the inn 
 and bakehouse was entered separately from the rent for the 
 monopoly ; but this circumstance did not prevent the Court 
 from applying the ordinary rule applicable to principal and 
 accessory. ^^ 
 
 Even if let for There was a difference of opinion on the Bench in a case 
 
 a year or ess. ^j^j^j^ ^,^^ decided in 18 2 5,^^ whether the exception in favour of 
 tenants of urban tenements extended to those who held leases for 
 a year or under. There is no authority for drawing a distinction, 
 
 Let furnished. ^^^ there is an equal absence of principle.^* But the case of a 
 house let furnished seems to be on a different footing. The rent 
 there consists of two different parts lumped together — the rent 
 properly so called, and the hire for the use of the moveable 
 property. There is no right to assign or sublet the right to use 
 the furniture, for that is the subject of pure location, and the 
 two contracts are inseparably bound together.. Neither the 
 complex subject nor any part of it can, it is thought, be so 
 alienated. 
 
 (5) Miscellaneous Leases. 
 
 Mines. In leases of mines and minerals the intentions of the parties as 
 
 to assigning and subletting are always set out in express words, 
 
 2» E. Elgin's Trs. •<.. Walls, infra, 32. 248. 
 
 " 1 Hunter, 234. 34 gee b. Pr. 1274. The practice 
 
 32 E. Elgin's Trs. v. Walls, 1833, 11 S. seems to be in favour of the power, see 
 
 585. Murray v. M'Eobbie, 1874, Guth 
 
 ^ Gordon v. Crawford, 1S25, 4 S. 95 Deo. 278. 
 (N.E. 97), misunderstood in More's Notes, 
 
 rie s 
 
EXPRESS EXCLUSION. 161 
 
 either of admission or exclusion. If nothing should be said on 
 the matter, the question would turn mainly, if not solely, on the 
 duration of the lease ; ^^ and the maximum limit of an ordinary 
 mineral lease — unassignable on that account — would probably be 
 taken at the Eosebery term of thirty-one years.^^. In the only 
 case in which the question has been discussed, it was thought 
 to be very doubtful whether a mining lease for thirty years could 
 be assigned without express power to that effect, that period 
 being regarded as analogous to nineteen years in an agricultural 
 lease. ^^ So much depends on the mode of exercise of rights of 
 fishing and shooting — especially when let for sport — as affecting Sporting 
 the comfort of the landlord, his relations with farm-tenants, and ^^^^^' 
 the preservation of a sufficient stock, that the doctrine of delectus 
 personce seems specially applicable, and an opinion to this effect 
 has fallen from the Bench.^^ 
 
 (2) Express Exclusion of Assignees and Subtenants. 
 
 Where assignation and sublease would for any of the foregoing Clause of 
 reasons be admissible, the power may be withdrawn by a clause 
 of exclusion, immediately following the destination to heirs — 
 either in general terms ' excluding assignees and subtenants ' or 
 with certain variations. The effect of an exclusion in general 
 terms has been already partly indicated. It has been pointed 
 out that any such exclusion, however wide, is unavailing to 
 prevent an assignation or sublease to the lessee's heir-at-law — 
 the equivalent of propulsion of the fee in the feudal law ; ^^ or to 
 exclude the Crown and its donatary coming into right by gift of 
 ultima heres or bastardy.**' Whether the exclusion is express 
 or implied, the right of exercising it or waiving it is personal to 
 the landlord ; and, conversely, if the landlord expressly or tacitly 
 consent or acquiesce, no one else can object.*^ The only varia- 
 tions which require to be noticed here are — (1) where. either of 
 the two power.s is omitted from the clause of exclusion ; (2) 
 where there is an express exclusion of legal assignees and of 
 trustees and managers for creditors ; (3) where there is an 
 
 ^ See opinions of L. Cowan and L. ^ Supra, p. 145. 
 
 Neaves in D. Portland r. Baird, 1865, *" Supra, p. 146. As to escheat, see 
 
 4 M. 10, 16, 19, 22. SMpra, p. 16. 
 
 36 6 & 7 Will. IV. c. 42, sect. 1 ; the ^^ Supra, p. 150 ; Trotterf. Hall, 179d, 
 
 limit is arbitrary but sufficiently near the Hume 878 ; Deuchar v. L. Minto, 1798, 
 
 truth. .M. 15295; Hay & Wood, 1801, M. 
 
 ^ D. Portland, supra, ^ ; see L. 15297; M'Coag v. M'Sporan, ISf'S, 
 
 Cowan's view of the bearing of breaks on Hume 813; Darroch v. Rennie, 1803, 
 
 the question, ibid. M. 15301 ; Cunningham v. Grieve, 1803, 
 
 38 Per Jj. Kinloch in B. Fife i: Wilson, M. 15298; 4 Pat. 571 ; M. Appx. Tack, 
 
 1864, 3 M. 323. 9 ; afif. 6 Pat. 16. 
 
 L 
 
162 
 
 ASSIGNATION AND SUBLEASE. 
 
 Exclusion of 
 either, not 
 both. 
 
 Bankruptcy. 
 
 Partners. 
 
 Landlord's 
 approval. 
 
 admission of partners ; and (4) where to the exclusion is adjected 
 an express exception (which takes various forms) in the event of 
 the landlord's consent being obtained. 
 
 (a) It has never' been doubted that an exclusion of subtenants 
 does not import an exclusion also of assignees. Although the 
 converse rule, that an exclusion of assignees does not import an 
 exclusion of subtenants, has been objected to*^ and even denied*^ 
 — apparently by a simple blunder — it is sufficiently established 
 by authority.** 
 
 (b) The eflfect of the bankruptcy or insolvency of the lessee on 
 his relation with the landlord and others will form the subject of 
 separate treatment.*^ It is enough to state here that, while 
 adjudgers, and trustees, and factors (in a sequestration or other- 
 wise) for behoof of creditors are not excluded by the mere 
 presumption of law in favour of a delectus personce*^ they are 
 shut out by an express exclusion of assignees and subtenants 
 generally ; ^"^ so that it is unnecessary to add (as is not unfre- 
 quently done) the words ' legal and conventional (or voluntary), 
 ' and all trustees, factors, or managers for creditors.' ** 
 
 (c) A special power is sometimes conferred to assign ' to succes- 
 ' sors or new partners in the trade or business now carried on by ' the 
 lessees,*^ in leases for manufacturing or mining purposes. Though 
 there has been no decision in Scotland,*" there seems to be no 
 doubt on principle that some such clause is required to entitle a 
 lessee to assign to a copartnery of which he is a member, or to 
 a partner assumed.*^ It would be equally incompetent, if the 
 landlord objected, for one partner to assign all his interest to 
 another.*^ 
 
 (d) It is now settled that no alteration is made on the rights or 
 obligations of the parties by adjecting to the exclusion, words such 
 as these : — ' without the landlord's consent,' or ' unless specially 
 ' approved of by a writing under the hand of the landlord.' The 
 
 ^ More's Notes, 248. 
 
 ** B. Pr. 1216. 
 
 " Crawford -v. Maxwell, 1758, M. 
 15307 (subtenants expressly called, how- 
 ever) and case there ; Trotter v. Dennis, 
 1770, M. 15282; 1 B.C. 77; Brodie's 
 Stair, p. 371. 
 
 ^ Infra, chaps..xx., xxiv. 
 
 ^s St. ^.9.26 ; Mack. 2.6.7. 
 
 ^^ Elliot V. D. Buccleuoh, 1747, M. 
 10329 ; Eloh. Tack, 12 ; 5 B.S. 618 ; 
 iHepburn v. Mossman, 5 B.S. 618 ; Cun- 
 ninghame v. Hamilton, 1770, M. 10410, 
 
 Hailes 369 ; Ersk. 2.8.8 ; 1 B.C. 77. 
 
 ^ See 1 Jur. Styles (5th ed.), 638. 
 
 ^' 1 .Jur. Styles, 653. 
 
 =" See Dick v. Skaills, 1706 ; 4 B.S. 
 642 ; Borrows v. Colquhoun, 1852, 1 Stu. 
 733, rev. 1 Maoq. 691 ; More's Notes, 
 249. 
 
 ^^ Roe d. Dingley v. Sales, 1 M. and S. 
 297 ; see Walker v. M 'Knights, 1886, 
 13 R. 599. 
 
 ^2 Varley II. Coppard, L.R. 7 C.P. 505; 
 cf. Bristol Corp. n. Westcott, 12 Ch.D. 
 461. 
 
WITH landlord's APPROVAL. 163 
 
 addition is really no qualification at all. The understanding of 
 the profession in early times seems to have been, and down to 
 the year 1820 it could be plausibly argued, that some materiality 
 must be ascribed to words used in a solemn deed, and that the 
 effect of the addition was to let in a judicial control of the land- 
 lord's discretion, by calling for his reasons for objecting to the 
 proposed assignee, and overruling them if deemed insufficient.^^ In 
 the earlier cases, the point did not arise purely or was not deter- 
 mined ; ^* though one of them, where the lease was taken to the 
 tenant, ' his heirs, and such his assignees as the said lessor should 
 ' approve of, excluding all others his assignees,' and an adjudger 
 was held excluded without inquiry into the reasons for objection 
 to him, may be fairly taken as involving the modem doctrine.*^ 
 This doctrine was finally established, after a full examination of 
 the earlier decisions, in a case which settled that a seclusion of 
 ' assignees and subtenants without the landlord's consent' does 
 not entitle the Court to inquire into or compel the landlord to 
 adduce reasons for withholding his consent — still less to justify 
 them.^^ The same rule was applied where the clause was 
 conceived in favour of assignees and subtenants, ' but under 
 ' this condition always, that if the tenants shall desire to assign 
 ' this lease or to subset the premises hereby let, the assigna- 
 ' tion or the subtack shall be, and shall only be, with the 
 ' written consent of the proprietor or his successors.' ^'' Certain 
 expressions made use of on the Bench and a reservation in the 
 judgment in a case which, the lease being a perpetual one and 
 equivalent to ownership, was peculiarly unfavourable for a harsh 
 exercise of the landlord's veto, point to a control by the Court 
 over his ' caprice,' or ' abuse ' of the reserved power, as to which 
 he might ' be called on, not to justify but to exculpate himself;' *^ 
 but these were merely obiter dicta, as to a matter expressly 
 
 53 1 B.C. 78 ; Ivory's Ersk. Bk. 2, note "s Emoti>.D.Buccleueh,1747,M.10329. 
 
 107 ; Brodie's Stair, p. 371. The only =« Muir v. Wilson, 20th Jan. 1820, 
 
 authority was an erroneously reported F.C. 83, 1 Bell, Leases, 182 (subtenant), 
 
 decision, relating to fodder, not to assig- See Gray v. Low, 1859, 21 D. 293, 723 ; 
 
 nation; D. Roxburgh «. Archibalds, 1785, and Houldsworth v. Brand's Trs., 1875, 
 
 M. 10412. 2 E. 683, supra, p. 146 ; 1 B.C. 78 ; B.Pr. 
 
 ^* Ly. Monkton v. Balderston, 1712, 1218 ; More's Notes, 249. 
 
 M. 673 ; Sanderson v. Ms. Tweeddale, "=' D. Porthmd v. Baird, 1865, i M. 10 
 
 1756, M. 10407 ; Hepburn i'. Bum, 1759, (assignation) ; see Johnston i/. Ramsay, 
 
 M. 10409 ; Irvine r. Valentine, 3 Pat. 1887, ScW.N. 80. 
 
 287, and notes to 1 B.C. 78, and 1 Bell, ^ Wight v. E. Hopetoun, 1855, 17 
 
 Leases, 179 ; Mackenzie v. Leannonth, D. 364, 373, 378 (' such assignees as the 
 
 1817, in note to Muir i. Wilson, infra, ' landlord shall be pleased with or approve 
 
 ^, ' of by a writing '). 
 
164 
 
 ASSIGNATION AND SUBLEASE. 
 
 Evasions de- 
 feated. 
 
 Irritancy. 
 
 reserved ; and they have been justly repudiated or explained 
 away in the most recent case already referred to.^^ 
 
 If an exclusion of assignees and subtenants or of either of them 
 is established by force of the common law or of stipulation, the 
 Court will interfere to prevent evasion through indirect or covert 
 alienations. Thus, a so-called deed of trust conveyed and made 
 over a lease so far as necessary for the purposes of the trust ; 
 substituted the trustee in the granter's full right and title with 
 power to manage and transact ; gave certain relatives a share 
 in the produce and a residence on the lands ; ordered an account- 
 ing ; and sent to arbitration any controversies which might arise 
 between the trustee and the truster's heirs. The trustee put his 
 own stock on the land and otherwise behaved as tenant ; and he 
 could point to no real accounting having taken place. On the 
 lessee's death the Court, at the instance of the landlord, held 
 that the trust-deed was a covert assignation and that the trustee 
 (or assignee) must remove.^" So, an arrangement made by a 
 tenant — restricted from assigning and subletting — with a third 
 party, that the latter should cultivate the farm by his own ser- 
 vants, horses, and implements without remuneration and that 
 the tenant should remove with his family and stock, was held 
 to be a delusive device to defeat the exclusion ; and interdict 
 was granted against its being carried into effect.^^ It was held 
 relevant to found an action of declarator of disability to assign and 
 for removing on an express exclusion and an averment that the 
 tenant of a shop had removed his own goods from it and allowed 
 a person in a different trade to occupy it, the tenant's allegation 
 that the occupier was merely his shopman being a transparent 
 device. ^^ A deed by which a tenant gives over the management 
 of his farm to a creditor irrevocably, binding himself to abstain 
 from interference therein and stipulating for an accounting at the 
 ish of the lease, is none the less an assignation, though it is 
 called a factory and commission. ^^ 
 
 If the exclusion is fortified by an irritancy, incurred in the 
 event of breach, the penalty of extinction of the tenant's right 
 and of his removal from the premises cannot be escaped by pur- 
 gation before decree, since it is a conventional irritancy.^* If there 
 
 ^ In T>. Portland u. Baird, supra, ^^, 
 at 4 M. 18, 20, 23. 
 
 "" Porter 1J. Paterson, 1813, Hume 862. 
 The question left undecided whether the 
 lessee's heirs could then resume posses- 
 sion would depend on the presence or 
 absence of an irritancy, infra, chap. xx. 
 
 ^ Hamilton o. Sommerville, 1855, 17 
 D. 344. 
 
 «2 Hatton V. Clay, 1865, 4 M. 263. 
 
 ^ Lyon V. Irvine, 1874, 1 R. 512. 
 Lyon V. Irvine, supra, ® ; see 
 Porter v. Paterson, supra, "", infra 
 chap. XX. 
 
FORM OP ASSIGNATION. 165 
 
 be no such irritancy, the assignation or sublease will be reducible, 
 and an action of damages will lie for injury done to the landlord's 
 interests, but the lease itself will not be brought to an end. 
 
 The landlord's right of veto may expressly ^^ or by acquiescence Veto re- 
 be given up,^^ and this renunciation cannot be retracted without ""'^""^'^ 
 the consent of the other parties."'' The right of veto may be 
 given up conditionally, and where the assignation takes place 
 through the tenant's sequestration, it is jus tertii in the bankrupt 
 to object to conditions agreed on between his trustee (the assignee) 
 aud the landlord.'^^ 
 
 II. — Mode of eendering Assignations and Subleases 
 
 EFFECTUAL. 
 
 It will be found convenient to treat these two forms of aliena- 
 tion separately. 
 
 A. Assignation. 
 
 1. At Common Law. 
 
 An assignation in regular form gives a narrative of the lease Common style, 
 more or less fully ; sets forth the consideration paid by or for the 
 assignee ; and then sells, assigns, conveys, and makes over to 
 the grantee, his heirs and assignees, the granter's right and 
 interest in and to the lease [or makes and constitutes the grantee, 
 his heirs and donators, the granter's lawful cessioners and assignees 
 to the lease] during its whole currency and to all the consequent 
 rights and powers, surrogating and substituting the assignee in 
 his place, under declaration that the assignee shall be obliged 
 to pay to the landlord the stipulated rent and to implement all 
 the other prestations incumbent on the cedent. This grant is 
 followed by warrandice from fact and deed and by a registration 
 clause.*' But much more simple forms are permissible, there 
 being no voces signatce requiring to be used. It is enough, if the 
 intention to assign be unequivocally expressed.™ An assignation Translation. 
 by an assignee is a translation ; if granted to his cedent, it is a Retrocession, 
 retrocession ; ^ but these transactions do not differ in principle 
 from other assignations, and the nomenclature is consequently 
 unfamiliar. But where the reconveyance takes place by the 
 merging of a sublease in the principal lease, there is this 
 
 ^ See Ramsay v. Commercial Bank, «» 1 Jur. Styles (4th ed.) 460, 639 (Sth 
 
 1842, 4 D. 405. ed.), 708. 
 
 ^ See Gray v. Low, supra, ™. '" Carter v. M'Intosh, 1862, 24 D. 925, 
 
 ^ Valentine v. Ramsay, supra, ^. 933 (bill). 
 
 ^8 Dobie V. Ms. Lothian, 1864, 2 M. '^ See Ramsay r. Commercial Bank, 
 
166 
 
 ASSIGNATION AND SUBLEASE. 
 
 Intimation. 
 
 Form of 
 intimation. 
 
 peculiarity, that the transaction does not require to be intimated 
 to the landlord.''^ 
 
 (a) Completion in questions with Cedent and Landlord. 
 
 The right is completed in a question with the cedent (granter) 
 by delivery."^ It is completed in a question with the landlord 
 and his representatives by intimation, as in assignations of any 
 other personal right or contract. The meaning is, that 'in a 
 ' competition between two bond fide onerous assignees, the land- 
 ' lord is entitled till intimation to .transact with the cedent, 
 ' ignoring the assignee,'^* and is bound to prefer him who first 
 ' intimates his assignation (which is the way of completing a 
 ' personal right) and to put him in possession accordingly.' ''^ 
 It seems to be enough, however, that the assignation be bond 
 fide, onerosity being merely one important element in proof 
 thereof. Intimation in some form or other is necessary for 
 the purpose of establishing privity of contract between the 
 landlord and the assignee. All the more so is this the case 
 when the right assigned is that of a lessee who has sublet 
 the whole subject, for the assignee in that case can have no 
 possession. 
 
 Formal intimation, as the law stood before 1862, was made 
 by the assignee or an agent for him, in presence of a notary and 
 witnesses, delivering to the landlord or leaving at his dwelling- 
 house a schedule of intimation and protest ; after which an 
 instrument of intimation was extended (sometimes on the back 
 of the assignation), and signed by the notary and witnesses. '^^ 
 If the landlord were furth of Scotland, letters of supplement 
 were obtained, under warrant of which messengers-at-arms gave 
 notice, formerly at the market-cross of Edinburgh and pier and 
 shore of Leith, then at the ofiice of Edictal Citations. '^'^ Since 
 1862,'*'^ intimation may also be made — either at home or 
 abroad : ^^ — (1) by a notary-public delivering a copy of the 
 assignation, certified as correct, to the person or persons to whom 
 intimation may in any case be requisite ; or (2) by the holder 
 
 '^ Underwood v. Sichardson, 1824, 3 
 S. 336 (N.B. 238). 
 
 73 See Grant v. Gray, 1828, 6 S. 489 ; 
 Brsk. 3.5.3. 
 
 '^ Burnet v. Frazer, 1673, M. 13470 ; 
 (so long at least as there is no mala fides). 
 
 ''= Per the majority in Inglis & Co. v. 
 Paul, 1829, 7 S. 469, 473. 
 
 's Balf. ]69 ; Or. 1.15,31 ; St. 2.10.17, 
 22 ; 3.3.7 ; Mack. 2.5.3 ; Bankt. 3.1.6, 12 ; 
 
 Ersk. 3.5.3 ; 1 Ross' Lect. 198 ; 2 B.C. 
 17 ; B. Pr. 1463-4 ; 2 Jur. Styles (3rded.) 
 316, 351 ; 1 Bell, Convg. 307. 
 
 '' Campbell on Citation, 133, 140. 
 
 '8 25 & 26 Vict. u. 85, sect. 2. This 
 section does not seem to be coniined to 
 moveable rights. 
 
 ''^ Prof. Montgomerie Bell's view 
 (Lect. i. 314) seems to be sound ; but it 
 abroad both forms should be used. 
 
INTIMATION. 167 
 
 of such assignation or any one authorised by him transmitting 
 a copy thereof certified as correct by post to such person. In 
 the first case the notary's certificate in or nearly in a form 
 scheduled to the Act ; in the second case a written acknowledg- 
 ment by the recipient, shall be sufficient evidence of such intima- 
 tion having been made.*" 
 
 As equivalent to formal intimation the following facta, have Equivalents. 
 been recognised : — (1) a probative acknowledgment by the land- 
 lord of the assignee's right ; (2) citation in an action by the 
 assignee against the landlord ; (3) a charge or citation on any 
 diligence against the landlord ; (4) production of the assignation 
 in Court in an action between them ; ^^ not private knowledge *^ 
 nor registration in the Books of Council and Session or other books 
 kept merely for preservation ; ^ nor parole evidence either of a 
 promise to recognise the assignee as tenant or of actual notice ; ** 
 nor a reference to the oath of the landlord, since other interests 
 besides his are at stake. *^ 
 
 (6) Completion in questions luith Third Parties. 
 
 A controversy has raged for a long period in our law around 
 the question whether an assignation can be so completed by 
 intimation alone as to be effectual not only against the landlord 
 and his representatives, but also against his singular successors, 
 or creditors, and against subsequent assignees, or whether 
 possession is required in addition. The difficulty does not arise Assignation of 
 where the possession is in the hands of sublessees and the subject fease.'''"^* 
 assigned is the principal lease ; for there the actual or natural 
 possession remains unchanged and the civil possession is trans- 
 ferred fi:om the cedent to the assignee by assignation duly 
 intimated to the landlord, accompanied with levying the sub- 
 rents, or sequestration for payment or in security of these, or 
 formal intimation to the subtenant — seeing that this is all the 
 possession possible in the circumstances.*^ 
 
 ^ As to intimations to corporations, Jin. does not arise in cases of lease. See 
 
 banks, joint-stock companies, copart- a case where a sublessee bad knowledge 
 
 neries, see 1 Bell, Convg. 315, and Keir of prior assignation by the lessee and his 
 
 V. Menzies' Crs., 1739, M. 738, 850, 5 mato ^dcs barred his claim to possession ; 
 
 B.S. 656, Blch. Arrestment, 10 ; 25 & Bowackj;. Croll, 1748, M. 1695, 15280. 
 
 26 Viet. c. 89, sect. 62 ; 8 & 9 Vict. c. 17, ^ Tod's Trs. v. Wilson, 1869, 7 M. 
 
 sect, 137 ; 8 & 9 Vict. c. 19, sect. 128 ; 1100. As to the Register of Sasines, see 
 
 8 & 9 Vict. u. 33, sect. 130. infra, p. 172. 
 
 81 St. 1.7.9.45; Mack. 2.5.5.6; Bankt. >« 2 B C. 18; Brodie (Stair, p. 415) 
 
 3.1.12 ; Ersk. 3.5.4 ; 1 Ross' Lect. 203 ; and Menzies, p. 256, on Ersk. 3.5.4. 
 
 2 B.C. 17 ; B. Pr. 1465 ; Here's Notes, ^ 2 B.C. 17 ; but see Ersk. 4.2.9. 
 
 281. ^ Supra, p. 121 ; Hume in Grant v. 
 
 ^- The distinction in B. Pr. 1465 ad Adamson, 1802, p. 813; 1 B.C. 66, 755; 
 
168 
 
 ASSIGNATION AND SUBLEASE. 
 
 Possession 
 requisite. 
 
 In other eases. la other cases — i.e., in assignations of leases not burdened with 
 subleases and of subleases themselves — a transfer of the natural 
 possession to the assignee is possible. The result of the con- 
 troversy alluded to has been to establish that it is also necessary 
 — as was the case in the original constitution of the lease *'' — 
 for the purpose of enabling the assigned lease to obtain or retain 
 the character of a real right available against all the world. 
 'It is a general rule in the law of Scotland, that possession 
 ' natural or civil is necessary to complete the transference of a 
 ' real right. A tack is a real right by force of the Statute 1449 
 ' in a question between assignees and adjudgers from the tenant.'^* 
 This principle of the law is equally applicable whether the 
 assisnation be absolute :^^ or in trust — in which case the trust 
 can only be established by the writ or oath of the assignee '" 
 — with an obligation express or implied, in greniio or in 
 a back-letter, on the part of the assignee to retrocess on the 
 accomplishment of the trust purposes;'^ or lastly in security of 
 debt. 
 
 'J'he rule in question has been mainly ilhistrated by cases 
 iu which the securing of debt has been the purpose of the 
 assignation. It cannot be surprising that repeated attempts 
 have been made to use lucrative leases, especially if of consider- 
 able endurance, as sources of credit, like any other sort of 
 fjroperty. The importance of so utilising the lessee's interest was 
 all the greater, where the expense of making the subject let duly 
 profitable was great and was incurred at the commencement of 
 the lease before profits could begin to come in. What was for 
 the benefit of the tenant could not but accrue to the advantage 
 of the landlord.'^ The only difficulty or drawback was the want 
 of that publicity which the law of Scotland demands in the 
 transfer of heritable property, and which the Register of Sasines 
 bestows on transfers of feudal rights. The objection was in the 
 end held fatal, and the only solution of the problem came to 
 be a statutory application of the system of registration for 
 
 Assignation in 
 secuiity for 
 debt. 
 
 Sime's Tr., 1806, M. Appx. Tack, 13 ; 
 Douglas V. Hay's Tr., 1794, M. 2802 ; 
 Bell's Fol. Ca. 50; Brock v. Cabbell, 
 infra, at 8 S. 652, 5 W.and S. 479. L. 
 Medwyn thought intimation to the sub- 
 tenant enough. See question as to effect 
 of intimation to some, not all, subtenants, 
 Wright V. Walker, 1839, 1 D. 641. 
 
 87 Svpra p. 121. 
 
 *' Per the majority in Brock f. Cabbell, 
 
 infra,_^, at 8 S. 652, 5 W. and S. 479. 
 
 *' Sometimes called and treated as a sale 
 ('sell,' 'price,' 'roup'); Swan v. Baird, 
 1836, 15 S. 251 ; 2 Jur. Styles, 485. 
 
 ™ B. Pr. 1995 ; 2 M'L., Wills, 72. 
 
 "1 Lyon V. Keid, 1830, 8 S. 789, ail. 6 
 W. and S. 114; Walker's Exrs. v. Low's 
 Trs., 1833, 12 S. 44. 
 
 "^ See Law Commissioners, 1838, 3rd 
 Report, page xl. ; 1 B.C. 68. 
 
LEASES AS SECURITY FOR DEBT. 169 
 
 publication to leases of such endurance as to be a source of credit 
 to the lessees.'^ 
 
 The institutional writers are unusually united in holding that Device of sub- 
 an assignation cannot be completed, as in a question with a3si|nee fa) 
 creditors and singular successors, without possession being trans- cedent. 
 ferred to and taken by the assignee f^ and, though Erskine 
 speaks of some other ' publication by which the conveyance may 
 ' be made known,' the onlj^ mode he suggests is adjudication, 
 in which the decree is a public judicial act. The ordinary 
 device for granting security to a creditor was for the debtor to 
 assign the lease and at the same time obtain a sublease of the 
 whole subject, no change taking place in the state of possession. 
 When this device first came before the Court, the competition was Early cases. 
 with a subsequent adjudication, and it was thought relevant 
 to inquire, whether the surplus rent stipulated to be paid to 
 the assignee had been so paid; whether any part of the rent 
 paid to the landlord was disbursed on the assignee's account ; 
 and whether the assignee's name had been entered in the 
 landlord's rental book. There being no evidence to prove the 
 affirmative of any of these questions, the adjudger was preferred. 
 But the general doctrine was laid down that no transmission of 
 a lease can be complete by simple agreement between cedent 
 and assignee, unknown to anybody but themselves."^ Possession 
 was, near the end of last and the beginning of the present 
 century, said to be the criterion of preference as between 
 adjudgers and assignees of a lease. "^ More recently the allow- 
 ance in the leading case of proof of entry of the assignee's 
 name in the landlord's rental book was the main argument for 
 preferring an assignee never in possession but entered in the 
 rent-roll of a large property, and for repudiating in round terms 
 the necessity of possession."" This view was soon after 
 questioned by a high authority,"^ and elaborately reconsidered in 
 two cases which unfortunately were decided on specialties. In Brock r. 
 the first of these there was an ex facie absolute assignation to a ^^^ ^ ■ 
 
 S3 20 & 21 Vict. c. 26, infra, p. 172. 1 B.C. 67 ; Grant v. Adamson, 1802, 
 
 »■> St. 3.1.6; Bankt. 2.9.4; Ersk. 2.6.25; Hume 811 (sublease). 
 
 2 Koss' Lect. 606 ; Hume at p. 811 ; 1 S'' Yeoman a. Elliot, 2nd Feb. 1813, 
 
 B.C. 66, 755 ; B. Pr. 1209-12 ; More's F.C. 149. There was little possession to 
 
 Notes, 250 ; 1 Bell, Leases, 451. be altered, the lease being dated 31st 
 
 "= Wallace v. Campbell, 1750, M. 2805, March, the assignation 18th May, and 
 
 15282; Elch. Tack, 17; esp. L. Kil- the sublease back 19th July and 17th 
 
 kerran's statement, M. 2811. August, all in 1810, practically une 
 
 s^ OSiier in Douglas 1). Haig'sTr., 1794, transaction, not therefore raising the 
 
 M. 2802, Bell's Fol. Ca. 50 (sublease) ; point in the text. 
 
 Sime's Tr., 1806, M. Appx. Tack, 13 ; ^ 1 B.C. 67. 
 
Paul. 
 
 170 ASSIGNATION AND SUBLEASE. 
 
 bank ; intimation thereof to the landlord ; a sublease by the bank 
 to the cedent ; and no change of possession. A back-bond granted 
 by the bank clearly showed that the transaction was ' a collusive 
 ' device to create a latent security over a real right without 
 ' change of possession ; ' not a bond fide right in the bank to the 
 exclusion of the rights of the general creditors of the cedent (and 
 sublessee), as represented by the trustee on his sequestrated estate ; 
 ' but the setting up of a fictitious person between the one party 
 ' and the other by a collusive transaction.' And on this ground 
 the assignation was in the end set aside. '*' The general rule with 
 which this section opened was neither affirmed nor impugned in 
 the House of Lords, and nothing turned upon the facts that the 
 bank's assignation entered the books of the landlord's factor, and 
 that the sublease was informal and defective. A case which ran 
 alongside of the foregoing, and was at one time thought to involve 
 the general point, was eventually decided on a specialty wide 
 apart therefrom.^"" 
 ingiia & Co. t-. Before these two suits were finally disposed of by the House 
 of Lords, a case was sent to the whole Court, in which a sub- 
 lessee granted an assignation which was intimated to the lessee 
 before and to the grantor's sublessees after the grantor's seques- 
 tration, and no possession was ever had by the assignee. It was 
 held, by a large majority of the Court, that possession was 
 requisite to perfect the assignation in a question with the cedent's 
 bankruptcy trustee ; that civil possession could easily have been 
 taken by intimation to the cedent's lessees before the sequestra- 
 tion ; and that after the sequestration it came too late.^^^ The 
 suggestion was thrown out that the object of perfecting a security 
 by assignation might be attained by the assignee taking an 
 instrument of possession, and then granting a sublease to 
 the, cedent; but this device does nothing to obviate the objec- 
 tion of want of publicity, and has consequently never found 
 favour in practice. ^^^ Notwithstanding the fact that the later 
 decisions in the House of Lords expressly reserved the general 
 doctrine, nothing has occurred to shake the principle laid 
 down by the majority in this case of Inglis & Co., founded, 
 
 89 Brock V. Cabbell, 1822, 2 S. 52 (N.E. cited, mpra, p. 166. 
 
 46) ; 1 B.C. 67 ; rem. 3 W. and S. 75 ; "^ ggg Roberts v. Wallace, 1842, 5 D. 
 
 1830, 8 S. 647, aff. 5 W. and S. 476. 6 ; Bett „. Murray, 1845, 7 D. 447 ; 
 
 ™ Eussell V. E. Breadalbane, 1822, 2 S. Ramsay v. Commercial Bank, 1842, 4 D. 
 
 62 (N.E. 54) ; 1 W. and S. 621 ; 1827, 405 ; and authorities in the analogous 
 
 6 S. 891, aff. 5 W. and S. 256. case of moveables in B. Pr. 1 300. Mere's 
 
 "1 Inglis & Co. V. Paul, 1829, 7 S. suggestion (Notes, p. 250) of a mere 
 
 469 ; see the opinion of the majority, change o£ firm seems equally futile. 
 
ASSIGNATION WITHOUT POSSESSION. 171 
 
 as ifc was, on abundant analogy, sound legal principle, and obvious 
 convenience.^"^ 
 
 Accordingly it bas been given effect to in subsequent cases. Later caaes. 
 
 Tbus an assignation without possession does not carry a lease in 
 
 a question with the cedent's creditors or bankruptcy trustee, 
 
 though it be sufficient to transfer a mere petitory claim, such as 
 
 a claim for recompense for meliorations exigible at the ish of the 
 
 lease.^"* And where a mining company assigned in security for Clark n West 
 
 sums advanced on debentures certain leases, under which it was 
 
 tenant, to trustees for the debenture holders, and there was no 
 
 change of possession but only intimation to the landlords, it was 
 
 held that on the liquidation of the company the debenture 
 
 holders had no preference over the ordinary creditors. The case 
 
 was expressly decided on the common law, since the company 
 
 did not come under the Companies Clauses Acts of 1845, 1863, 
 
 and 1869.^"^ Lord-President Inglis thus states the law: — 
 
 ' Taking this as a question of common law, it does not seem to 
 
 ' me to be attended with any difficulty whatever. The assigna- 
 
 ' tion of the leases, with no possession following upon it, creates 
 
 ' no right whatever in the assignee except a mere personal claim 
 
 ' against the granter of the assignation. It may give him a very 
 
 ' good personal claim to be put in possession of the subjects 
 
 ' assigned, and the granter of the assignation may have no 
 
 ' answer to such a claim when it is made ; but, till possession is 
 
 ' actually obtained, there is no real right and no securitj- created in 
 
 ' favour of the assignee whatever. At one period of the law this 
 
 ' might have been the subject of contention, but for the last half 
 
 ' century it has been settled by the well-known case of Cabbell 
 
 ' V. Brock,^'"' and a series of cases connected with it, that an 
 
 ' assignation of a lease without possession is quite unavailing as 
 
 ' a real security.'^*"' There is even less difficulty, if besides the 
 
 absence of any transfer of possession the assignation imports 
 
 nothing more than an obligation to give possession at a future 
 
 date, or subject to a condition. ^"^ 
 
 i»3 See p. 168, note ^. "" Supra, ™. 
 
 i»* Hamilton's Tr. v. Stewart, 1830, 8 ™ Clark v. West Calder Oil Co., 1882, 
 
 S. 799 ; see Wright v. Walker, 1839, ID. 9 R. 1017, 1024. The same was held of 
 
 641; referred tosupra, p. 168; see Connon the moveables included in the trust- 
 
 1'. Lindsay, 1869, 6 Sc.L.E. 552 ; Benton conveyance, as to which (machinery, &o., 
 
 V. Craig's Tr., 1864, 2 M. 1365 ; Union sold retentd possessione), see cases in 
 
 Bank v. Mackenzie, 1865, 3 M. 765. B. Pr. 1317 ; 1 B.C. 248 seq. 
 
 "5 8 & 9 Viet ^i. 17, sects. 40 seq. ; 26 "» Kennedy -o. Forsyth, 1829, 7 S. 
 
 & 27 Vict. c. 118, sects. 22 sej. ; 32 & 33 435. 
 Vict. c. 48. 
 
172 ASSIGNATION AND SUBLEASE. 
 
 Fact of change Little assistance in determining the question whether, as 
 of possession. ^^^^^^ ^f ^^^^^ ^^^^^ j^g^g j^gg^ a transfer of possession, can be 
 
 derived from the cases. It may be noted, on the one hand, 
 that a mere apphcation by trustees for debenture holders for 
 authority to sell the subjects embraced in their so-called security, 
 which were subsequently sold by order of the Court, was without 
 difficulty held to infer no change of possession ;i<"' and, on the 
 other hand, that possession by a tenant's minor son, on propulsion 
 of the tenancy for the legitimate purpose of prolonging a liferent 
 lease, was proved by his name, as tenant, being substituted for his 
 father's name on the farm-carts, in the landlord's rental-books, and 
 in tax returns, though the father continued to manage the farm.^^" 
 2. The Registration of Leases (Scotland) Act, 1857. 
 statutory What Baron Hume^" describes as 'the convenience of busi- 
 
 assjgnation. < ^^^^ — ^j^^ practical advantage of accommodating a tenant with 
 ' the use of his lease as a subject of credit' — gave rise to many 
 suggestions^'^^ aimed at putting long leases on the same footing 
 as other land rights. This could only be done by entering them 
 and documents dealing with them on a register for publication. 
 At length these suggestions were given effect to in the Registra- 
 tion of Leases (Scotland) Act, 1857.^^^ This statute is printed 
 in the Appendix without note or comment,^^* seeing that it has 
 been subjected to very little judicial criticism. It will be suffi- 
 cient to give here a short analysis. In supplement thereto, it 
 will be well to remember — (1) the abolition of burgage tenure, 
 except with regard to the records ; (2) the mode in which the 
 Act brushes aside a number of the requirements of the Act of 
 1449 ;ii5 and (3) what has been already said as to the mode of 
 completing an heir's title for the pui'poses of the Act.^^^ 
 Registers. ''[^[^q registers prescribed are the General and Burgh Registers 
 
 of Sasines (sect. 1), the date of entry in the minute-book being 
 
 ™ Clark V. West Calder Oil Co., supra, & 41 Vict. c. 36, but only to the effect of 
 
 introducing the word * commissary ' after 
 
 1" Millar v. Duncan, 1826, 4 S. 48 ' sheriff ' in sect. 19 of the principal Act. 
 
 (N.B. 59). 1" Appx. No. i. The Act has been 
 
 "^ Dec. 812, in note to Grant v. Adam- admirably annotated in Begg'a Con- 
 son, 1802. veyancing Code, pp. 432 seq. The dearth 
 
 11^ See Wallace v. Campbell, 1750, M. of cases is all the more remarkable since 
 
 2805, 2808, 2812 ; Yeoman v. Elliot, the Act is largely made use of. The 
 
 Brock V. Cabbell, supra,'', '»; 1 B.C. 68; Keeper of the Register of Sasines esti- 
 
 1 Hunter (1st ed.), 410 ; Law Commis- mates approximately the entries relating 
 
 sioner's Report, 1838, p. xl., on which a to leases at about one-thirteenth of the 
 
 Bill was based and introduced in 1838. whole writs recorded, or about 2000 per 
 
 An old Act, 1617, c. 4, prescribed a record annum, 
 
 for long leases by ecclesiastics. "5 Supra, pp. 123, 127, 132. 
 
 "' 20 & 21 Vict. c. 26, amended by 40 i^e Supra, p. 144. 
 
 107 
 
REGISTRATION OF LONG LEASES. 173 
 
 the date of registration, and extracts being made equivalent to 
 
 originals, unless these are challenged as forged (sect. 15). The 
 
 writs registerable are certain sorts of leases and assignations Writs regiater- 
 
 (sect. 3), assignations in security (sect. 4), translations (sect. 6), "'^^ 
 
 writs of acknowledgment (sect. 7), adjudications (sect. 10), 
 
 instruments (sect. 8), discharges, renunciations (sect. 13), and 
 
 extract decrees of reduction (sect. 1 4), dealing with recorded leases 
 
 and their transfers. The leases contemplated are probative 
 
 leases, dated either before or after 10th August 1857, of 
 
 lands and heritages in Scotland, for thirty-one years or more 
 
 (sect. 1), or containing an obligation of renewal so as to endure 
 
 for that period (sect. 17) ; provided that, if the subject be 
 
 not land held burgage before 1st October 1874, leases dated 
 
 after 10th August 1857 and not executed in implement of 
 
 an obligation of renewal of older date shall not be registerable 
 
 unless the name of the lands of which the subjects let consist or 
 
 form a part is set forth in the lease ; and, if the subject be not 
 
 such burgage, or mines or minerals, unless the extent is also set 
 
 forth and do not exceed fifty acres (sect. 18).^^'' Extracts from 
 
 Records for preservation may be recorded (sect. 19).^^^^ 
 
 The effect of recording is to make a lease which is binding in Effect of 
 a question with the lessor effectual against any singular successor ''^^^'™*'™' 
 whose infeftment is posterior to the recording (sect. 2) ; to fully 
 vest an assignation (if absolute) in the assignee to the extent 
 assigned (sect. 3) ; to make an assignation or translation in 
 security a real security over the lease to the extent assigned, 
 enforceable by entry to possession on application to the sherifC 
 (sects. 4, 6) ; to complete the right of an adjudger (sect. 10) or 
 trustee in a sequestration (sect. 11); and to clear the record of 
 leases on renunciation or of burdens on discharge or of either on 
 reduction (sects. 13, 14). Registration determines all preferences 
 according to its date, not only among recorded writs inter se 
 (sect. 12), but also in every respect as if the grantee or party in 
 his right had then entered into possession (sect. 16). Therefore, 
 where neither of two assignees was in possession, the one, whose 
 right was later in date but who registered it under the Act was 
 preferred to the other who had intimated his title to the landlord 
 but had not recorded it.^^' It would appear, however, that an 
 assignee in actual possession, under a lease or assignation con- 
 forming to the requirements of the Act of 1449, from a date 
 prior to a competing registration has nothing to fear, for there is 
 
 "'■ As altered by 37 & 38 Vict. i;. 94 ™ Amended by 40 & 41 Vict. c. 36. 
 
 sect. 25. "" Rodger v. Crawfords, 1867, 6 M. 24. 
 
174 ASSIGNATION AND SUBLEASE. 
 
 a proviso that ' Except for the purposes of this Act it shall not be 
 ' necessary to record any such lease as aforesaid, but that leases 
 ' which would, under the existing law prior to the passing of this 
 ' Act, have been valid and effectual against ' a singular successor 
 ' shall though not recorded be valid and effectual against such 
 ' singular successors as well as against the granters of the said 
 ' leases ' (sect. 2) ; and the effect of registration is put no higher 
 than that of possession (sect. 16). If this view be sound the 
 Act has not succeeded — if such were its object — in placing long 
 leases on the same pedestal as feudal rights, in dealing with 
 which it is not necessary to look beyond the records. ^^^ 
 Transmissions. Provision is made for a person who was not the original lessee 
 or assignee making up title by notarial instrument (sect. 5) •,'^^^ 
 and for heirs making up title for the purposes of the Act in a 
 similar way (sect. 8, 9), or by writ of acknowledgment (sect. 7). 
 The interpretation of the schedules and the procedure for a sale 
 under a bond and disposition in security are imported into the 
 Act from the Heritable Securities Act, 1847.^^^ 
 
 B. Sublease. 
 
 A lease; con- A sublease, being none the less a lease, though granted by 
 
 completed" ^ lossco,^^^ and not by a proprietor, is governed by the same rules 
 
 as such. a,s those which regulate the constitution and completion of all 
 
 leases ; in questions between the lessee and sublessee and their 
 
 representatives and singular successors, requiring the same 
 
 solemnities or the equitable equivalents ; ^^* and being elevated 
 
 into the position of real rights under the Acts of 1449 ^^* and 
 
 1857 ^^^ under the same conditions, to the effect of securing the 
 
 subtenant against the lessee's assignees, later subtenants, and 
 
 creditors. The rule is thus stated by Baron Hume in a case 
 
 which did not properly raise any question of possession,^^" ' If a 
 
 120 See Begg, Convg. Code, 454 ; 2 ^^ Bankt. 2.9.17 ; Ersk. 2.6.34 ; 2 
 Journal of Jurispr. 172, 253, 255. Boss' Lect. 506 ; supra, chap. iv. 
 
 121 The reference to retours in the -"^s Supra, p. 117. 
 
 schedule nrast be corrected in accordance '^^ Supra, p. 172. The Act (20 & 21 
 
 •with 31 & 32 Vict. c. 101. sect. 27. "Vict. c. 26) does not define 'lease' as 
 
 123 10 & 11 Vict. i>. 50, sects. 2, 3, including 'sublease,' but no such definition 
 
 and sched. (A) — to this effect saved from seems necessary, and the Act has been 
 
 repeal by 31 & 32 Vict. c. 101, sect. administered in this sense. 
 
 163. 127 Grant v. Adamson, 1802, Hume 
 
 123 The relation cannot be constituted 810 (subtenant who applied for warrant 
 
 by the lessor interposing a tenant be- to remove his author preferred to author's 
 
 tween his lessee and himself, though he trustees whose right was dated the day 
 
 may assign the rents ; Wilson v. Wilson, after citation— on the ground of liti- 
 
 1859, 21 D. 309, 312, per L. J.-C. Inglis. giosity). 
 
COMPLETION OF SUBLEASE. 175 
 
 ' tenant assigns to John, who intimates to the landlord and then 
 ' stops short ; and, if next the tenant subsets the farm to James 
 ' (having power to subset) and immediately puts James into 
 ' possession, this subset burdens the assignee's right, and he must 
 ' be content to receive the subrents — his author's remaining 
 ' interest in the farm. The subtenant here is just in the same 
 ' case with respect to the assignee, wherein the first tenant put 
 ' into possession would be with respect to a purchaser of the 
 ' property of the lands ; his right is a rider or real burden on the 
 ' tack established and published by possession, just as the tack is 
 ' a real burden on the property established and published by the 
 ' like means. If on the contrary John the assignee enter into 
 ' possession while as yet nothing has followed on the subset Joha 
 ' shall be preferred. He is nowise affected by the subtack to 
 ' James which is just a tack engrafted on a tack, and unavailable 
 ' therefore and in its own nature imperfect until followed with 
 ' possession. It is a species of right which, equally as a principal 
 tack, requires possession to validate it against any third party.' 
 This statement of the law only requires now to be supplemented 
 by the remark that as to certain assignations and subtacks regis- 
 tration is equivalent to possession.^^^ Again, if for any of the 
 reasons given in considering the assignability of leases,^^^ a sub- 
 lease be assignable, the right is completed by possession, not by 
 mere intimation to the lessee.^^" But a retrocession by a sub- 
 tenant to his author requires neither possession nor intimation to 
 the landlord to render it effectual against either a trust-deed or 
 bond and assignation in security granted by the subtenant after 
 the retrocession. After retrocession the grantor's possession must 
 be viewed as held for the grantee.^'^ 
 
 In common form, a sublease only differs from a principal tack Tenor. 
 in subletting (or subsetting) the subjects ; and in so doing under 
 the conditions specified in the principal lease to which special 
 reference is made and of which an extract is delivered, and under 
 obligation to implement the whole stipulations and prestations 
 incumbent on the lessee, with the exception of the payment of 
 the rent due by the lessee to the proprietor which is declared to 
 
 ™ 20 & 21 Vict. u. 26, sects. 12, 16, supra, p. 168, but the case is badly 
 
 supra, p. 172, infra, Appx. No. i. reported — see per L. Balgray in Yeo- 
 
 ^ Supra, p. 157. man v. Elliot, 2nd Feb. 1813, F.C. 149, 
 
 130 1 B.C. 67 ; Ivory's note to Ersk. 151). 
 2.6.25 ; obs. in Douglas v. Hay's Tr., ^' Underwood v. Eiohardson, 1824, 3 
 
 1794, M. 2802 (the judgment seems S. 336 (N.B. 238) ; Marstons v. Under- 
 
 contra, and if so has been overruled, wood, 1827, 5 S. 200 (N.E. 185). 
 
176 
 
 ASSIGNATION AND SUBLEASE. 
 
 be payable by the lessee out of the subrent."^ As has been 
 Subject. already pointed out/^^^ either the whole or part of the subject let 
 
 in the principal lease may be sublet. The duration may be 
 either till the ish of the principal lease or for a shorter period. 
 Duration. If nothing be said about the duration, it will probably be pre- 
 sumed — though the point has not been decided — ^that the two 
 are to run out together. A sublease taken so as to endure till the 
 termination of the principal lease entitles the subtenant to sit 
 till the natural expiry of the principal lease, and, if he is ousted 
 through a reduction thereof, he is entitled to damages ; ^^^ but 
 no action will lie, if a pending reduction was in contemplation 
 of the parties, and it was stipulated that in the event of an 
 adverse judgment the sublessee should remove.^^^ 
 Questions with If the landlord be a party to the sublease, the conditions of 
 Ms'^uccL'^sors. his consent should be clearly expressed, e.g., that the subrent 
 should be paid to the landlord for the time being to the extent 
 of the rent, the tenant remaining, however, bound. ^^^ If the 
 latter be freed from all liability under his lease the transaction is 
 an assignation.^-^" If the landlord be not a party, the sublessee 
 may be in either of two positions. He may hold right from a 
 lessee whose lease either expressly or by force of the common 
 law excludes subtenants. The landlord may then remove him as 
 possessing without title, or may consent to this subletting. The 
 consent may be given expressly or be gathered from the landlord's 
 conduct inferring homologation or acquiescence. Thus acqui- 
 escence was held by a narrow majority (3 — 2) to be established 
 by inquiries made by the landlord about the character and sub- 
 stance of the subtenant before he entered into possession, by occupa- 
 tion for more than ten years, by payment of rent to the landlord 
 by the subtenant (as appeared from the receipts) on his own 
 account, and by his being allowed to sit after the principal 
 tenant had absconded. ^'^ Open and undisturbed possession for 
 years and factor's receipts for rent acknowledged to have been 
 paid by an occupier qud subtenant might not, in another case, 
 have been sufficient to prove acquiescence in a sublease for years, 
 but a letter from the factor to him clearly implying a sublease or 
 
 Landlord's 
 consent. 
 
 132 1 Jur. Styles (6th ed.), 706, 2 Eoss' 
 Lect. 507. As to incorporation of articles 
 of lease, see Crichton v. Meason, 1828, 6 
 S. 403. 
 
 "3 Supra, pp. 156, 1.57. 
 
 1** Whether granted before or after 
 the reduction of the lease in a test case, 
 Middleton V, Yorstoun, 1826, 5 S. 162 
 
 (N.E. 148); Middleton v. Megget, 1828, 
 7 S. 76 ('the length of the Queensberry 
 • lease'). 
 
 135 Laidlaw v. Wilson, 1830, 8 S. 440. 
 
 1*= 1 Jur. Styles (5th ed.), 708. 
 
 1=7 Supra, p. 156. 
 
 138 Hay V. M'Tier, 1806, Hume 836 
 (the judgment seems sound). 
 
SUBLEASE. 177 
 
 at least an agreement for a term of years left no doubt on the 
 matter.1^8 On the other hand, an order sent by the landlord to 
 an occupier * as my subtenant ' to take action in the glen against 
 unlawful peat-cutting was obviously quite consistent with a pre- 
 carious or yearly tenancy and was no recognition of a sublease for 
 years.^*" Eeceipt of rent from a subtenant who was also cautioner 
 in the lease was no proof of sanction of the sublease, especially 
 as the acknowledgments were not conceived in his favour.^" 
 
 If, on the other hand, the lessee is entitled either by express Scope of sub- 
 provision or by force of law to sublet, his power to do so is only 
 restricted by the limitations of his lease, — he cannot give out a 
 more comprehensive right than he himself possesses. Within 
 these limits the subtenant's right is valid as against the landlord, 
 in the sense that the latter cannot object to allow him to take 
 possession. Therefore he ought to be called in any action of Protection 
 reduction of the principal lease, at least if the landlord was a eviction, 
 party to the sublease ^^ or, it is thought, had received intimation 
 of it. But the fact that he was not called therein is no bar to 
 a subsequent reduction of the sublease itself ^*^ And, if he is in 
 possession under a sublease to which the Act of 144! 9 applies, or 
 Las a registered title where the Act of 1857 applies, he is also safe 
 against the landlord and his singular successors, in the sense that 
 he cannot be turned out of possession on the ground of want of 
 title, provided the lessee had power to sublet to him or his right 
 was, as explained in last paragraph, recognised ex post jacto. 
 Therefore he does not lose his tenure though the lessee deserts 
 his lease or renounces in favour of the landlord.^** But if the 
 possession may be ascribed to some other right and the sublease 
 has never been intimated, the landlord may lawfully ignore it 
 and get back the subject unburdened by it.^*^ 
 
 III. — Rights and Obligations arising out of Assignation 
 AND Sublease. 
 
 The immediately foregoing remarks lead naturally to a dis- 
 cussion of the rights and obligations involved in assignation and 
 sublease. Here, again, it will be convenient to separate the two 
 classes of alienations. 
 
 139 Maule V. Robb, 1807, Hume 835 '^ MaxwelU'. D. Queensberry's Exrs., 
 
 (subtenants excluded excepting crofters). infra, p. 181. 
 
 "» Fraser v. Eraser, 1833, 11 S. 565. "'' Obs. in E. Morton r. Tenants, 1625, 
 
 1^ E. Elgin's Trs. v. Walls, 1833, 11 S. M. 15228 ; St., Ersk., Bell, sup^-a, ^^ ; 
 
 585. Bankt. 2.9.17. 
 
 •^ E. Galloway v. M'CuUocb, 1626, "' E. Morton, supra, i", ted qucere. 
 
 M. 7833, St. 2.9.22; Ersk. 2.2.34; 1 As to the effect of reduction and warran- 
 
 Bell, Leases, 470, dice, see next chapter. 
 
 M 
 
178 ASSIGNATION AND SUBLEASE. 
 
 A. Out of Assignations. 
 Cedent ousted It has been already stated ^*^ that assignation operates a 
 and free. substitution of the assignee for the cedent in the rights and 
 obligations of the lease. The old doctrine was that this substi- 
 tution involved no liberation of the cedent from his obligations.^*' 
 Early in last century a majority of the Court thought that the 
 difference between an assignation and a sublease was the difference 
 between the transfer of the whole subject let and the transfer of 
 part only, the transferor in both cases remaining liable for the 
 rent.^** After doubts had been thrown on this doctrine in practice 
 and in text-books, ^*^ it was finally set aside in a case which 
 determined ' that after an assignation has been regularly executed 
 ' and duly intimated to and acquiesced in by the landlord and the 
 ' assignee admitted to possession, the obligation of the cedent for 
 ' rents is limited to those due prior to the possession of the 
 ' assignee. '^^^ There may, however, be a stipulation in the lease, 
 that in the event of his assigning the tenant shall nevertheless 
 Unless con- remain liable for payment of rent and for implement of all the 
 liaMlity^be Stipulations in the lease. The result of an assignation so qualified 
 stipulated for. jg ^T^^^ ^}jg assignee becomes the sole tenant, and the cedent has 
 only a personal right of relief against him on being compelled to 
 pay the rent to the landlord. Therefore where two mineral leases 
 from the same landlord to the same tenant of different subjects 
 in the same coal-field and for different rents and terms of duration 
 contained such a clause and were assigned in the same deed to a 
 company, the cedent was not entitled in a subsequent liquidation 
 of the company to have the liquidator ordained to pay to the 
 landlord the rent due for one of the subjects, the possession of 
 which the liquidator had renounced and which had never been 
 entered on. The reason was that decree would have converted 
 a mere personal right of relief into a preferential claim.^" Or, 
 if the cedent declines to proceed on this footing of continued 
 liability, the landlord will not be taken as recognising the 
 
 "6 Supra, p. 156. to Ersk., supra, "^ ; Tait's J.P.' 388. 
 
 "'Baukt. 2.9.14; Ersk. 2.6.34; 2 15» Skene v. GreenhiU, 18S5, 4 S. 25 
 
 Ross' Leot. 506. (N.E. 26) ; and see per L. Watson in 
 
 i« Grant v. L. Braco, 1743, M. 15279 Blphinstone, infra, 1=2 ; 1 BeU, Leases, 
 
 (the minority took the mpdern view) ; 468 ; 1 B.C. 76 ; Brodie's Stair, p. 371 ; 
 
 Bowaok V. CroU, 1748, M. 15280 (Kil- see also Crawford v. Maxwell, 1758, M. 
 
 kerran's Note). Difficulty felt in Low !•. 15307. Not including those due for any 
 
 Knowles, 1796, M. 13873 (the account of part of a broken term— Porter v. Houlds- 
 
 this case in Skene, infra, ^^"j is scarcely worth, 1829, 7 S. 581. 
 
 *«="''^'e). 151 Gray's Trs. v. Benhar Coal Co., 
 
 1« 1 Jur. Styles (1st ed.) 672 ; Notes 1881, 9 R. 225. 
 
LIABILITY OF CEDENT AND ASSIGNEE. 179 
 
 assignation by merely refraining from objecting to the assignees 
 entering on possession.^^^ The rules regarding intimation and 
 possession have been already set forth. ^^* The landlord's Landlord's 
 acquiesence is predetermined where, either expressly or by the 
 common law, assignation is permitted. In other cases it must 
 be proved either by express stipulation or by the landlord's 
 conduct. ^^* The same rights and liabilities accrue to and against 
 each assignee as soon as his right emerges, no matter how many 
 transmissions there may have been.^^' 
 
 An assignee, as coming in room and place of his author, is Assignee liable 
 liable not only for rents due for his own possession and for future °^ ^'^^'>-^^- 
 rents till he is denuded of his right, but also for all arrears. ^°' 
 If a sublease has been granted, the possession of the subtenant 
 ceases, in the event of an assignation of the lessee's right, to be 
 for him and in his right, and it is held as had for the assignee, 
 with the consequent liabilities.^^'^ The rule applies to trustees — 
 whether voluntary ^^^ or in sequestrations^^^ — who adopt the lease. 
 
 If the landlord's acquiescence is neither predetermined nor given Cedent's 
 ex post facto, the cedent's liability for rent remains.^'''' Where i'^'''^*?- 
 the finding of security for rent is allowed as an alternative to 
 obtaining the landlord's approval of an assignee, the duty lies 
 on the tenant to tender, not on the landlord to demand, security, 
 in order to bring the alternative iilto play.^^^ This condition of 
 obtaining the landlord's approvaP^^ may have an unfortunate 
 effect on a creditor of the tenant. If he obtains an assignation 
 and the landlord consents to it, he is substituted for the cedent 
 and cannot make a retrocession to him without the same consent. 
 He, therefore remains bound by the stipulations of the lease, 
 though his right was all along intended merely as a security and 
 though he may in a question with the cedent bring about a 
 reduction of the assignation.^^^ 
 
 152 L. Elphinstone, v. Monkland Co., 13 D. 90, per LI. Mackenzie and Cun- 
 
 1886, 13 R. (H.L.) 98, 11 App. Cas. 332. ninghame. 
 
 1=3 Supra, p. 166. i*' Paton v. Couston, 1674, M. 15274. 
 
 i« Supra, p. 157. ' ^^^ Ross v. Monteith, 1786, M. 15290. 
 
 155 Murray v. Torrie, 1776, 5 B.S. 516. 159 Du„das v. Morison, 1857, 20 D. 225, 
 
 156 Turnbull i). Scot, 1626, M. 15273 ; and other cases, infra, chap. xxiv. 
 Bannatlne v. Scot, 1632, M. 15274 (back "» Gemmel,i6i : Kamsay, i^^. 
 
 tacks). The case of Dryadale v. Wood, i^i Gemmel v. Low, 1823, 2 S. 563 
 
 1832, 10 S. 198, which is contra, either is (N.E. 486). 
 
 badly decided, or can only be justified on i^" See case of representation that 
 
 the ratio that the lease and its renewal cedent thought the approval could easily 
 
 were separate contracts, and that by be got, M'Dougall v. Lobley, 1870, 7 Sc. 
 
 renewing simpliciter the landlord passed L.R. 569. 
 
 from arrears as against the assignee. ^^ Ramsay v. Commercial Bank, 1842, 
 
 See also M'Gregor v. Hunter, 1850, 4 D, 405, 
 
180 
 
 ASSIGNATION AND SUBLEASE. 
 
 Lessor and 
 lessee. 
 
 Lessee and 
 sublessee. 
 
 B. Out of Subleases. 
 
 Since three parties at least are interested, questions may 
 emerge in three different ways — 
 
 1. As between Lessor and Lessee. 
 
 A sublease has not the effect of discharging the lessee from 
 liability to the lessor, nor the lessor from liability to the lessee, 
 since the original contract continues in full force,^"* and cannot 
 be altered by the operation of the sublease."'' If the landlord is 
 a party to the contract, and declares the principal tenant free and 
 takes the so-called subtenant bound for payment of the rent due 
 under the lease.i"" the transaction is more properly described as 
 an assignation. 
 
 2. As between Lessee and Sublessee. 
 
 The rights and obligations are those stipulated for in the sub- 
 lease or arising out of the general law of landlord and tenant, 
 each party having all the remedies which flow from that relation.^*'^ 
 Thus the tenant's hypothec over the subtenant's goods, when 
 timeously enforced, will, if the tenant be not in arrear to the 
 landlord, be preferred to the landlord's hypothec for rents due for 
 subsequent possession under a lease granted by him to the person 
 who was formerly subtenant.^^^ It does not follow, however, that 
 all the rights of the lessee are conveyed to the sublessee. Thus 
 where a sublessee had the option of demanding a renewal, if the 
 tenant obtained a renewal from the landlord, and himself sub- 
 let for a fixed period without communicating a similar right, it 
 was held in an action by the sub-sublessee against the principal 
 tenant, that the pursuer had no right to a renewal. It was pointed 
 out that difficulties would have arisen if either tacitly or by express 
 communication the pursuer who held only part of the subjects 
 let could have demanded a renewal, applicable either to the 
 whole or to his part."' The subtenant is bound to pay his subrent 
 to the tenant or his assignee unless the payment has been other- 
 wise arranged with the landlord's consent, or the landlord has 
 taken steps to interpel him. Under the absolute warrandice 
 either expressed or implied in the sublease,!^" the subtenant is 
 
 i6«Bankt. 2.9.17; Ersk. 2.6.34; 1 B.C. 
 76 ; Brodie's Stair, p. 371. 
 
 1"^ Ronaldson, 18th Dec. 1812, E.C. 49. 
 As to the effect of the warrandice clause, 
 see next chapter. 
 
 ™ 1 Jur. Styles (5th ed.), 708. 
 
 ^^ See Lisk v. Scott, 1682, M. 10608. 
 
 ^"^ Christie v. Macpherson, 14th Dec. 
 1814, F.C. 95; Stevenson v. Cooper, 
 
 1822, 1 S. 312 (N.E. 288); infm, chap, 
 xvi. 
 
 1"^ Robertson v. Player, 1876, 4 K. 218, 
 diss. L. Deas. The participation of the 
 defender in the pursuer's sublease for a 
 different purpose was thrown out of 
 account. 
 
 "" As to which see next chapter. 
 
WARRANDICE BETWEEN TENANT AND SUBTENANT. 181 
 
 entitled to claim for damages against the tenant, according to 
 the true import of his right, in the event of eviction, when the 
 landlord's or the lessee's title is reduced."^ No claim lies if 
 there be no eviction — as where the landlord and subtenant have 
 arranged for an equally favourable lease after a reduction of the 
 original lease, and the only grievance of the subtenant has been 
 deprivation of the power of management and of transfer and the 
 uncertainty of his position and consequent anxiety pending the 
 reduction. ^'^ And any claim otherwise competent may be excluded 
 by a special clause barring it,^"^ or by a clause providing that 
 the subtenant should remove if the lease should be reduced, 
 nothing being said about compensation.^'^* Even if the warrandice 
 is from fact and deed only, it gives the subtenant in the event pf 
 a reduction of the principal lease ' a vested right to call the 
 ' principal tenant to account for and communicate to the sub- 
 ' tenant his dae proportion of the damages to be recovered by 
 ' him ' under his own warrandice — a right arrestable even before 
 actual recovery of damages. ^^^ Obligations other than those 
 connected with payment of rent are construed as in ordinary 
 cases between landlord and tenant. ^"^ 
 
 3. As between Lessor and Sublessee. 
 
 There being no pri\aty of contract between these parties, no Lessor and 
 rights or obligations can arise directly between them on the ^" 
 footing of contract. Therefore, though a sublessee has a direct 
 action against the landlord for damages caused through the 
 operations of the latter on the subjects sublet or on adjoining 
 lands,^''''' he cannot maintain an action against the landlord or 
 his representatives for damages on account of eviction, in the 
 event of the principal lease being reduced, founding on the 
 warrandice clause contained therein, for whether that lease is 
 expressly granted to the tenant, ' his heirs, assignees, and sub- 
 ' tenants,' or not, the warrandice can only be available to the 
 tenant and his heirs and assignees, between whom alone and 
 the landlord any contract exists.^"* The subtenant's remedy can 
 only be obtained by a double operation, in which be recovers 
 
 I'l Middleton v. Torstoun, 1826, 5 S. 1828, 6 S. 849. 
 
 162 (N.E. 148) ; Middleton v. Meggat, ^^^ Laidlaw v. Wilson, 1830, 8 S. 440. 
 
 1828, 7 S. 76 ; Dick v. Taylor's Trs., 1831, i'" Smyth v. Rogerson, 1832, 10 S. 433. 
 
 10 S. 19, infra, '"' ; see Crichton v, ^'* /n/ra,chaps.xi.,xii.,xiii.,xvii.,xviii.; 
 
 Meason, 1828, 6 S. 403. see Purves v. Gentle, 1797, Hume 794. 
 
 i'2 Watson's Reps. 2). Turner, 1831,118. ^^Duffy j).Mungle,1871, 8Sc.L.R.£37. 
 
 687 (claim for expenses in making the ^^ Maxwell v. D. Queensberry's Exrs., 
 
 new arrangement reserved). 1827, 5 S. 935 (N.E. 869), rev. 5 W. and 
 
 J?3 Hutchison ». D. Queensberry's Exrs., S. 771. 
 
182 
 
 ASSIGNATION AND SUBLEASE. 
 
 Lessor's 
 remedies. 
 
 Reut. 
 
 Other presta- 
 tions. 
 
 damages for . eviction from the tenant under the warrandice 
 implied or expressed in the sublease ; and the tenant obtains 
 relief against the lessor or his representatives.^™ In a case where 
 this necessarily circuitous course was adopted, the rights of parties 
 were nowise aiffected by an agreement in the sublease that in the 
 event of eviction and recovery of damages from the representatives 
 of the lessor, the sum should be apportioned.^^" If the sub- 
 tenant's claim against the tenant is expressly barred he can 
 have no recourse against the lessor. ^^^ 
 
 If a sublease has been granted, taken, and possessed on with- 
 out the landlord's consent, predetermined in the lease, presumed 
 at common law, or granted ex post facto, the landlord is entitled 
 to remove or eject the sublessee as a possessor without valid title ; 
 to sue for violent profits ; ^^^ and to proceed under his hypothec.^^ 
 If, on the other hand, his consent has been interposed in any 
 of these ways he may eject the subtenant at the termination of 
 the principal lease,^^* and, although he has no personal action 
 against the sublessee — there being no privity of contract between 
 them — he may still enforce his claims against his own — the in- 
 termediate — lessee, through the sublessee. Thus, in the matter 
 of rent, he may by arrestment attach the subrents due and to 
 become due by the subtenant to the tenant. He may attach by 
 sequestration under his hypothec — where that remedy is still 
 competent — the stock and crop and invecta et illata of the 
 subtenant, so far at least as the subrents have not been in bond 
 fide paid to the lessee or compensated for in a question with the 
 latter ; ^^^ and to the extent he thus operates payment or holds 
 himself out to be satisfied he relieves the tenant, but no further.^^^ 
 In regard both to rent and to other prestations the statutory and 
 conventional irritancies which bring the lessee's right to an end 
 annul along with it the tenure of the sublessee.^^'' 
 
 In regard to these other prestations, it has been already 
 pointed out that in the common form of sublease the subtenant 
 binds himself to implement the whole stipulations incumbent 
 on the lessee, as specified in the principal lease. It has been 
 
 "^ Dick V. Taylor's Trs., 1831, 10 S. 
 19. 
 
 1*" Dick, supra, '''. 
 
 181 Hutchison, supra, i'^ ; and see 
 Watson's Reprs., supra, '"'. 
 
 18^ Infra, chap. xxi. 
 
 183 Infra, chap. xvi. ; B. Pr. 1237. 
 
 184 Robb V. Menzies, 1859, 21 D. 277. 
 
 185 Hodge V. Brown, 1664, M. 15274 ; 
 
 Edinburgh Mags. v. Provan's Creds., 
 1665, M. 6235 ; Blane v. Morison, 1785, 
 M. 6232 ; Bankt. 2.9.17 ; Ersk. 2.6.34 ; 
 2 B.C. 32. 
 
 18" Williamson v. Porbes, 1830, 8 S. 
 405. 
 
 18'' Though the subtenant be not 
 called, Grant v. E. Morton, 1789, 3 Pat. 
 145. 
 
subtenant's liabilities. 183 
 
 decided in England, on general grounds equally applicable to 
 the law of Scotland, that such an obligation is not only an 
 obligation ad factum prcBstandum, enforceable by the lessee, 
 but also, in the event of a breach by the sublessee, a contract of 
 indemnity rendering the latter liable in damages and in expenses 
 properly incurred in an action brought by the landlord against 
 the lessee to enforce the covenants of the principal lease ; but 
 that no direct action lies at the instance of the landlord against 
 the sublessee.i^^ The proper course in Scotland would be to 
 raise separate actions, one at the instance of the landlord against 
 the tenant, the other at the instance of the tenant against the 
 subtenant, and to have them conjoined, so as to mulct the sub- 
 tenant in the expenses of the conjoined suit, if that be the justice 
 of the case.-'*^ It results a fortiori that, if there be no express 
 adoption by the subtenant of the covenants of the principal lease, 
 there can be no question between landlord and sublessee ; the 
 only difficulty being whether adoption can be implied in a ques- 
 tion between lessee and sublessee.^^" If the transaction be not 
 so much a sublease as a joint lease granted to the original 
 tenant and to his so-called sublessee, a direct action will be 
 competent.^^^ Over and above the aforesaid circuitous remedy 
 by way of obtaining performance or indemnification, there is 
 the direct preventive remedy of interdict, competent to the 
 landlord, when he sees a negative provision of the principal 
 lease or of the common law on the point of being broken by 
 the sublessee. 
 
 ^'^ Hornby v. Cardwell, 1881, 8 Q.B.D. two of Baron Hume's suggestions in 
 
 329. reporting Purves v. Gentle, Dec. p. 794 ; 
 
 '^ In England the same end is attained and see B. Pr. 1252. 
 
 by bringing, in the subtenant as a third ^'' Hume, 3rd and 4th suggestions in 
 
 party to the landlord's suit ; Hornby, Purves, supra, ^''. 
 
 supra, ^ These views, which seem to ^^^ Gibson v. Moffat, 1824, 2 S. 766 
 
 Hornby, supra, ^ supersede the first 
 
 (N.E. 638), to put premises in repair. 
 
184 
 
 CHAPTER X. 
 
 tenant's right and obligation to possess. 
 
 The primary right of a tenant is to be put and to be maintained 
 in possession of the subject let, and the primary obligation of the 
 landlord is so to put and maintain him. The converse is equally 
 true, but of less practical importance. The tenant is bound to take 
 and retain possession, and the landlord has the correlative right to 
 compel him to do so or to pay damages. In each case the rule 
 applies to the whole premises let, including their appurtenances. 
 
 It will be convenient to examine the subject, according to the 
 following division : — (A) In regard to the primary right, to 
 discuss (1) the rule that the whole premises let shall be given 
 over, and the remedies in case of breach ; and (2) the right to be 
 maintained, and the obligation to maintain, in possession during 
 the whole course of the lease, and the remedies in case of breach, 
 wherein the effect of warrandice will be explained : and then (B) 
 to proceed (1) to the tenant's obligation to take possession and 
 the consequences of breach thereof; and (2) to his obligation not 
 to invert possession, and the consequences of inversion. It will 
 be convenient to bring together elsewhere the rules of law relat- 
 ing to term-days and terms, including terms of entry.^ 
 
 By ousting 
 possessors. 
 
 Conditional 
 right. 
 
 A. Tenant's Right to Possession. 
 
 This right involves a communication to the tenant by the 
 landlord of his right to remove or eject possessors according to 
 the forms of law, or a title to call on the landlord to proceed for 
 that end at his own expense.^ A condition precedent to obtain- 
 ing possession will not be strictly read. Thus a stipulation that 
 
 ^ Infra, chap. xv. 
 
 2 St. 1.15.6 ; Banlct. 2.9.21 ; Erak. 
 2.6.28; see the very special case of 
 Winans -u. Mackenzie, 1883, 10 E. 941, 
 
 where the demand for ejection was held 
 not applicable to cottars, at least in 
 absence. 
 
POSSESSION OF WHOLE SUBJECT LET. 185 
 
 a tenant should pay one year's rent in advance was held to be 
 sufficiently implemented by tender of payment on the 23rd of 
 November, the date of entry being Martinmas.^ An agreement inhibition, 
 to grant and take a lease, being equivalent to a lease, entitles 
 the lessee to inhibit the landlord, so as to prevent sale of the 
 subjects to the lessee's prejudice ; and the landlord is not entitled 
 to recal of the inhibition merely on consignation of a sum of 
 damages demanded alternatively in an action by the lessee for 
 implement of the agreement and possession. For, if he were held 
 so entitled, the question would be virtually settled that the 
 tenant was not entitled to specific performance if the landlord 
 preferred to pay damages.* The possession must be given Timeous. 
 timeously. Therefore, where access to a house let was demanded 
 by the tenant ten days after the term of entry, but was not 
 offered to be given till after an interval of twenty days more, and 
 the tenant was obliged to take another house, he was held to be 
 free of the bargain, notwithstanding an averment that by local 
 custom there was frequently much delay in entry.^ And delay 
 in giving possession for thirty-five days after the term on account 
 of injury to a workshop through accidental fire, which took place 
 before the term, was held to free the tenant.® 
 
 I. Right to be put in Possession of the whole Subject Let. 
 1 . Apart from Reservations. 
 
 Questions seldom arise as to the amount or extent of the Cases in which 
 subject let when it consists of houses or small holdings, as to '^"^^ 'on^anse. 
 which there can be scarcely any doubt about boundaries or area.^ 
 Yet one case may be cited as probably deciding that the right to 
 the whole of a subject must be enforced reasonably, and not 
 according to the strict letter ; for it was held to be no objection 
 to the lease of a coimtry house, that the landlord, without notice, 
 reserved possession of a charter-room, store-room, observatory, 
 and spare furniture room.^ And another case may be referred to 
 where the question was whether the great gearing of a steam- 
 engine was or was not included under a lease. ^ Many cases As to rural 
 have, however, arisen when larger premises have been let for ^" •'^° ^" 
 agricultural, pastoral, or sporting purposes ; and the questions 
 turn, in practice, not so much on the effect of delimitation by 
 
 ^ Smith V. Robertson, ]831, 9 S. 751. ' As to boundaries generally, and com- 
 
 ■* Seaforth's Trs. v. Macaulay, 1844, 7 mon and gable walla in particular, see 
 
 D. 180 (L. Moncreiff's ratio was sufficient the authorities collected in Kankine on 
 
 for a decision). Landownership, chaps, vi., xxxii. , xxxiii. 
 
 5 Brown V. MaxweU, 1633, M. 3109. ^ Webster v. Lyell, 1860, 22 D. 1423. 
 
 " Drunmiond ■». Hunter, 1869, 7 M. ^ Walker u. Turnbull, 1843, 5 D. 
 
 347. 1334. 
 
186 
 
 tenant's right and obligation to possess. 
 
 To let in 
 proof. 
 
 Of what was 
 lettable or let. 
 
 Custom of 
 trade. 
 
 State of 
 possession. 
 
 Weights and 
 Measures Act, 
 1878. 
 
 physical meiths and bounds, as on the effect of (a) a general 
 description; (b) of measurements; and (c) of a reference to 
 former possession. 
 
 (a) Effect of a General Description. 
 
 A general description [' the lands (salmon-fishings, &c.) of A '] 
 is such as to require explanation ; and proof will be allowed of 
 the extent of what was lettable and actually let, and each party 
 must take the risk of the result.^" Thus an offer to take a farm 
 named at so much an acre, ' for all not let of said farm,' was 
 accepted by the landlord in general terms. At the time a neigh- 
 bouring farmer on the same estate possessed under his lease a few 
 acres of the farm. The offerer, after failing to get his neigh- 
 bour removed from these acres, brought a reduction of his lease on 
 the ground that he had not obtained possession of all the land let 
 to him ; but his claim was repelled on the ground that he was 
 entitled to no more than was truly out of lease at the date of 
 the agreement." The custom of a trade may, however, be called 
 in to show that a general description of a trade subject let 
 means something different from its primd facie sense. The 
 owner of a glass-work, in letting it, undertook if required to 
 erect a 'cutting-shop.' This expression was proved to mean, in 
 the language of that trade, a cutting-shop, and an engine-house 
 and chimney stalk as well ; and the Court refused to interfere 
 with a verdict giving effeet to this interpretation.^^ If the 
 dispute be between two tenants on the same estate, the question 
 may turn on proof of possession ; and, if so, the tenant holding 
 the earlier lease will succeed if he can show that he possessed the 
 disputed subjects before his neighbour came into possession, for it 
 was out of the power of the landlord, without agreement, to 
 benefit the new-comer at the expense of the sitting tenant. ^.^ 
 
 (h) Effect of Measurements. 
 
 By the Act 41 & 42 Vict. c. 49, which repeals a great 
 number of earlier statutes and consolidates the law of weights 
 and measures, local and customary measures are made unlawful, and 
 contracts made in the United Kingdom by measure are to be 
 deemed to be made according to the imperial measures ascertained 
 by the Act, or some multiple or part thereof (sect. 19), or according 
 
 England, 1 Smith's L.C. 617 seq. ; Clay- 
 ton V. Gregson, 5 A. and E. 302 (' level ' 
 in mineral lease) ; Smith v. Wilson, 3 B. 
 and Ad. 728 (1000 rabbits). 
 
 ^^ Andersons v. M'Callum, 1857, 20 
 D. 2. 
 
 ^^ See case of cottage as pertinent of 
 country-house — Lowsoni). Koss, 1881, 18 
 Sc.L.R. 315. 
 
 " Eraser v. Mathieson, 1824, 2 S. 
 734 (N.E. 613). 
 
 12 Watson V. Kidston, 1839, 1 D. 
 1254 ; see Dickson on Evid. 199 ; and in 
 
MEASUREMENTS. 187 
 
 to the metric system (sect. 20). The unit of imperial measures is 
 the duly ascertained imperial yard, from which all other measures 
 of extension, whether lineal, superficial, or solid, are ascertained 
 (sect. 10). The acre, rood, and pole contain respectively 4840, 
 1210, and 30^ square yards (sect. 12)." A lease granted or 
 taken in terms of any other measures than these, or aliquot parts 
 of them, would be void. And, if these terms are actually used, it 
 will be irrelevant to offer proof that a Scots or other customary 
 measure was really intended by the parties or either of them.^° 
 
 Usually the acreage of a farm is stated,^^ in the advertisements Mistake in 
 and lease, alongside of a reference to the possession of the out- 
 going tenant. If no such reference can be made, on account of 
 the land having been in the owner's hands, or being a part only 
 of a farm or an aggregate of sundry parcels of land detached from 
 several farms and thrown together into one possession, it has been 
 suggested that ' if the tack specify the entire number of acres 
 ' or the extent of the several parcels of land it is at least more 
 ' presumable that the parties have settled the rent on this 
 ' medium ' [that is, on the footing of so much acreage], than if a 
 known farm were let, ' as possessed by ' the late tenant.^^ There Demonstrative 
 can be little doubt of the law as so stated, but it may be questioned 
 whether the inference drawn would follow, — viz., that deduction 
 would be allowed for short measure. It may be assumed, on the 
 contrary, that, in the absence of fraud, there would be no remedy 
 for a miscalculation of extent, unless it could be, shown that the 
 rent though a slump sum was actually to the knowledge of the 
 landlord calculated as at so much per acre.^^ Thus, where a sub- 
 ject was let as ' these fi.ve acres of newly trenched ground on the 
 ' south side of a wood, and the ground actually possessed con- 
 sisted of 6 ac. 1 rood, 16 poles, the measurement was regarded 
 as demonstrative not taxative, and the landlord was not entitled 
 to resume any part of the ground for planting without paying the 
 compensation agreed on in the lease.^^ Even a calculation of 
 
 '* The corresponding Scots superficial consequence being abatement of rent for 
 
 measures were — 5760 ells = 160 falls = i the past and reduction of the lease for 
 
 roods = 1 Scots acre = 1-261183 English the future; Eiddell v. Grosset, 1791, 3 
 
 acre. So that 23 Scots acres = 29 English Pat. 203. 
 
 acres, very nearly, or, for practical pur- ^' Hume in Reporting Yeaman v. Gil- 
 poses, 4 Scots acres — 5 English acres. ruth, 1792, Dec. 783. 
 . 1* See Thomsons v. Garioch, 1841, 3 ^ This seems to have been the fact in 
 D. 625; B. Pr. 36, 91. Yeaman,-''. Seethe cognate cases of feus, 
 
 1^ See a case where the acreage was not Hepburn v. Campbell, 1781, M. 14168; 
 
 stated but the obligations of the tenant Harley v. Campbell, 1822, 1 S. 238 (N.E. 
 
 could only be implemented on a farm 226). 
 
 larger than the farm actually let, the '" Menmuir v. Airth, 1863, 1 M. 929. 
 
188 
 
 tenant's eight and obligation to possess. 
 
 Measurement 
 and prior 
 possession. 
 
 Measurement 
 and actual 
 delivery. 
 
 rent depending on acreage may be binding tbougb its basis be 
 faulty. Thus land extending to 60 acres was let as ' containing 48 
 ' measured acres, every acre to pay six firlots.' The tenant was held 
 not to be bound either to remove from 12 of the acres or to pay for 
 60 acres according to the scale — the bargain being in reality a lease 
 of the farm at a rent of 288 firlots. 2" The words 'or thereby' 
 appended to a measurement are intended to provide for minute 
 errors and fractional deficiencies.^-' It has never been decided — ^the 
 question is eminently a jury one — what minimum proportional 
 deficiency would be material and fatal, if timeously complained of.^^ 
 
 (c) Effect of Reference, to former Possession. 
 
 Where prior possession is referred to in describing the subject 
 let, it will as a rule override description by measurement; in 
 other words, the measurement will be regarded as demonstrative, 
 not taxative.^^ Thus where the subject let was described as 
 ' fourteen acres presently possessed ' by the lessee, an oifer of 
 proof that the lessee had been for thirty years, both before 
 and after the tack was taken, in possession of more than four- 
 teen acres was held relevant to infer right to possess the 
 whole.^* A sheep farm was advertised as of a certain extent, 
 but was let without mention of its extent ' as at present possessed 
 ' by ' the outgoing tenant. In the last year of the lease it was 
 ascertained that the acreage was less by nearly a fourth than the 
 advertised amount. There was no fraud ; ^^ substantial error only 
 was insisted on. It was held that the advertisement could not 
 be looked to as forming part of the contract ; but, apart from 
 that, it was also held that the discrepancy was no ground for 
 reduction, sheep farms being taken in view of the stock carried, 
 not of the acreage let ; and that the tenants who had never com- 
 plained during the lease and could not make restitutio in integ- 
 rum, were not entitled to damages, since an actio quanti minoris^^ 
 cannot be maintained.^" The same result of controlling 
 measurement has been obtained by letting land ' as it shall be 
 
 2" Eochead v. Borthwick, 1679, M. 
 2264. 
 
 ^' Yeaman, supra, ■". 
 
 ^ See Balmer v. Hogarth, infra, '" (1 
 acres out of 333 not). 
 
 ^ Ibid. 
 
 ^ Deas V. Kyle, 1667, M. 10604. 
 
 ^^ As to fraud see supra, p. 85. 
 
 =8 As to which see St. 1.9.10 ; 1.10.14 ; 
 Brsk. 3.3.10; Bankt. 1.19.3; B. Pr. 
 99, 893 ; Eeddie v. Syme, 1831, 9 S. 
 413, aff. 6 W. and S. 188; M'Kirdy 
 
 V. Anstruther, 1839, 1 D. 855 ; Amaan 
 V. Handyside, 1865, 3 M. 626 ; Dobbie v. 
 Duncanson, 1872, 10 M. 810 ; Brownlie 
 ■u. MUler, 1878, 5 E. 1076, aff. 7 R.H.L. 
 66 ; Houldsworth v. City of Glasgow 
 Bank, 1879, 6 E. 1164, aff. 7 E.H.L. 53. 
 
 ^ Oliver v. Suttie, 1840, 2 D. 514. 
 This decision is not shaken by Balmer v. 
 Hogarth, 1830, 8 S. 715, 10 S. Appx. 
 862, 4 Sc. Jur. 390, where the only valu- 
 able part of L. Brougham's judgment 
 relates to the issues. 
 
REFERENCE TO FORMER POSSESSION. 189 
 
 ' delivered over at entry,' especially if the acreage be not 
 warranted. A tenant was thus excluded from claiming possession 
 of an enclosure which adjoined the subjects he had actually got 
 entry to, and was required to make up the gross measurement 
 of the farm and also the measurement of the adjacent field. ^^ 
 But a reference to possession (' all as lately occupied by D ') was 
 not allowed to control a contradictory description in the leading 
 part of the letting clause, so as to force a lessee of the ' exclusive 
 ' right of shooting over the lands of G ' — a grouse moor — to put 
 up with finding that two of the seven beats were held in common 
 with another party, though such had been the prior state of 
 possession. The rent having been paid in advance, damages were 
 held to be due to the tenant in lieu of abatement of rent. For the 
 rule against the admissibility of an actio quanti Tninoris did not 
 apply to a case in which it was no part of the duty of the tenant 
 to renounce possession immediately on discovering the defect.^^ 
 
 Thus far we have dealt only with deficiencies in the extent of incorporeal 
 the corporeal subjects let. The right granted out in a lease may tenant ''^'"^ 
 not, however, be confined merely to the possession of a corporeal 
 subject: it may and usually does include a communication of such 
 incorporeal rights and privileges as are necessary or proper for the 
 enjoyment of the premises within the scope of the uses or pur- 
 poses for which the lease is granted. In so far as these rights 
 and privileges are exercised over the property of third parties 
 (servitudes, natural rights of property with the corresponding 
 nuisances, commonty, church-room, &c.), they will be more con- 
 veniently discussed in a later chapter dealing with the rights of 
 a lessee over-against third parties unconnected with him in title.^" 
 In so far as these incorporeal rights and privileges (such as 
 accesses, lights, water-privileges, &c.) are exercised over the lessor's 
 own land, it has never been established that as between landlord 
 and tenant, who are jointly interested in the same subject and 
 have entered into a contract bonce fidei, there is any stronger 
 case in favour of the existence of such privileges extra fines than 
 in questions between adjacent proprietors who are merely bound 
 by the rules of good neighbourhood or by the law of the tene- 
 ment. ^^ The contrary seems to be the case. The privilege 
 must, therefore, be either an absolute necessity of occupation; 
 or it must be expressly granted, or plainly implied. Thus there 
 was no implication of a grant of right of access by a particular 
 
 28 Hardie v. Kinloch, 1842, 6 D. 64. '» Infra, chap. xxt. 
 
 ^ CritcMey v. Campbell, 1884, 11 R. '^ See Laurent v. L. Adv., 1869, 7 M. 
 
 475. ■ 607 ; Miller v. Renton, 1885, 13 R. 309. 
 
190 tenant's right and obligation to possess. 
 
 . private road — belonging to the landlord but not a road of neces^ 
 sity — where the whole evidence was that the person, employed 
 to point out the boundaries of the farm to offerers merely pointed 
 out the road as the way to the principal town in the district 
 and mentioned that it had been used as such by the outgoing 
 tenant. It appeared that this use was in virtue of a verbal 
 licence from the landlord's factor, objected to by the landlord 
 but not withdrawn. An opinion was, moreover, expressed that 
 right to continue the use of the road under the new lease would 
 not have been communicated by employing therein the words ' as 
 ' possessed by ' the outgoing tenant. As put by Lord Chancellor 
 Cairns: ' That which was possessed by him was the, farm and 
 ' merely the farm. He may have had or he may not have had 
 ' a collateral licence, a licence while- he was tenant of the farm 
 ' to use the road in question ; but that was no part of the posses- 
 ' sion of the farm, nor was it appurtenant to the possession of the 
 ' farm.' ^^ It may be gathered, however, that if so appurtenant, 
 the general words quoted would have had the same inclusive force 
 as the phrase of English law, ' with all ways usually possessed and 
 ' enjoyed.' ^^ So that in a subsequent case the Court did right 
 in sanctioning a continuance by a tenant of his possession of a 
 road along but outside of his march on a farm situated on the 
 same estate, since both he and his neighbour held their farms ' as 
 ' presently occupied by ' the outgoing tenants, and there had been 
 sufficient possession for a possessory judgment.^* In such cases 
 the right is not properly speaking a servitude — a right only 
 available as between owners ; ^^ and the duration of an unusu- 
 ally long lease does not affect this principle.^^ The landlord is 
 entitled to intervene in cases which affect his interests. ^^ Con- 
 versely, land burdened by such a privilege, if let as possessed by 
 a former tenant passes into the new tenant's hands subject to 
 the burden, the existence of which he is presumed to have 
 ascertained.^^ But stjch a clause will not avail to keep up a 
 right or burden inconsistent with, or plainly outwith, the purpose 
 for which the subjects were let.^^ 
 Warranty of It Will be convenient to postpone the law relating to warranty 
 
 fitness. 
 
 S3 Duncan v. Scott, 1876, 3 R. (H.L.) ^ See M'Donald, supra, ^. 
 
 69, 75 (the point did not require to be ^ Young n. Cunningham, 1830, 8 S. 
 
 decided). 959. 
 
 ^' 3 R. (H.L.) 76. 38 Gordon v. Ruxton, 1797, Hume 798 
 
 "* Galloway v. Cowden, 1885, 12 R. (servitude). 
 
 578 ; following M'Donald -v. Dempster, ^9 ^ Queenaberry v. Haining, 1812, 
 
 l^J^l' ^? ^- 34- Hume 859 (agricultural tenant casting 
 
 ^^^^- peats for sale). 
 
LANDLORDS RESERVATIONS. 191 
 
 of fitness for the purpose for which a subject is let to subsequent 
 chapters which deall with repair and meliorations.*" 
 
 The remedies in case of gross discrepancy between the subject Remedies, 
 let and the premises delivered over, are action of reduction of 
 the lease and of damages, brought at a time when restitutio in 
 integrum is still possible,*^ or instead of damages a deduction 
 from the rent for the period of past possession ; ^^ or the with- 
 holding of the rent till the deficiency is removed ; *^ or suit for 
 damages when the rent has been paid forehand,** or no pos- 
 session has been given,*^ or the damage exceeds any rent which 
 could be withheld.*" 
 
 2. Reservations in favour of the Landlord. 
 
 In leases of subjects other than land the nature of the right i" specifically 
 granted out suggests the natural limitations of a possession which j™ts.° 
 is inherently of a limited character. Thus a lease of fishings 
 does not oust the proprietor from such uses of the water as 
 do not interfere with the fishing. A lease of minerals gives no 
 more than the necessary or a prescribed use of the surface ; 
 and special reservation is frequently made, in letting one seam, 
 of all other seams not involved in the working of the mineral 
 let. A lease of woods gives no power to interfere with the 
 surface, except in so far as necessary for the profitable exercise 
 of the right, or with minerals. A lease of a house implies reser- 
 vation to the owner of right of access to perform the necessary 
 repairs incumbent on him, and gives no title to minerals. 
 
 The reservations which are of most importance are those which in farming 
 occur, either ex lege or by special stipulation, in the letting of '"^^^^' 
 land for agriculture or pasture. 
 
 (a) Ex lege. 
 
 From the limited nature of the right granted out in such, ex lege.. 
 leases, it follows that ' it is not understood to comprise every 
 ' right which was before competent to the landlord, but is limited 
 ' to those yearly fruits, which, either naturally or by the lessees' 
 ' industry spring up from the surface.' *''^ 
 
 *" Infra, chaps, xi., xii. 1883, 10 R. 647, infra, chap. xiv. 
 
 « Oliver v. Suttie, supra, ^. ** Critchley v. Campbell, supra, ^. 
 
 ^ Riddell v. Grosaet, 1791, 3 Pat. 203 ^ Matheson v. Nicolsons, 1819, 2Mur. 
 
 (not enough arable land) ; Yeaman v. 141 ; Smith v. Robertson, 1832, 10 S. 
 
 Gilruth, supra, ". 829 (items of damage). 
 
 "^ See Kilmarnock Gas Co. v. Smith, ^ See Goskirku Edinburgh Ry. Access 
 
 1872, 11 M. 58 ; Guthrie v. Shearer, Co., 1863, 2 M. 383. 
 
 1873, 1 R. 181 ; Gray v. Renton, 1840, « Ersk. 2.6.22. 
 3 D. 203 J cf. Humphrey v. Mackay, 
 
192 
 
 tenant's right and obligation to possess. 
 
 Miuerals. 
 
 Remedies. 
 
 ■Woods. 
 
 (1) Minerals. 
 
 Therefore the minerals are reserved, with the right to 
 search for and work .them, and the necessary access and accom- 
 modations, subject to payment of surface damages.*^ The land- 
 lord or any one in his right is entitled to break ground during 
 the currency of the lease.*^ He has the exclusive right to shell 
 marl, since it differs in kind from clay marl as much as lime- 
 stone does from the ordinary soil.** The question whether a 
 tenant can remove soil from one part of his farm to another 
 without permission has never been determined, but the deter- 
 mination would probably depend on the result of a remit to 
 a man of skill appointed to report on the probable results. The 
 landlord is entitled to use existing roads (as well as to open new 
 ones) subject to the obligation of sharing the expense, equitably 
 apportioned, of necessary repairs.^^ The landlord is liable only for 
 such damage as is caused by operations which take place with his 
 sanction, or as properly thence arises, not for damage or annoyance 
 caused by the trespasses of his miners. °^ Surface damages, properly 
 so called, do not extend to injury caused by subsidence, but 
 only to such injury as affects the ordinary agricultural use of the 
 subjects,*^ such as damage to crops by use of the surface or by 
 smoke coming from workings or mineral-heaps ; *^ but this rule 
 would not prevent the tenant from claiming repair of injury caused 
 by sits to the farm-house and other farm buildings.** In some 
 of the cases above referred to there was special stipulation. The 
 effect of such stipulations in extending or restricting or not 
 altering the tenant's right is in each case a matter of construction. 
 In case of breach of a reservation, the landlord's remedy is by 
 action of damages and interdict, not by forfeiture of the lease. 
 
 (2) Woods. 
 
 Woods with the necessary accesses and accommodations are 
 reserved ex lege.^^ If let, as accessory to a farm, the tenant can 
 
 « St. 2.9.31 ; Bankt. 2.9.21 ; Ersk. 
 vt supra, " ; 1 Bell, Leases, 202 ; B. Pr. 
 1226 ; Mere's Notes, 225 ; Colquhoun v. 
 Watson, 1668, M. 15253 (pipe-clay). 
 
 «» Smith V. M'Gill, 1768, M. 15266, 
 Hailes 223. 
 
 ™ Bethune v. Jei'vice, 1778, M. 15267, 
 (question as to clay-marl left open). 
 
 ^^ This rule may be collected with 
 some difficulty from Wight v. Wight's 
 Trs., 1828, 6 S. 1116. 
 
 '^ Galbraith's Trs. v. Eglinton Iron Co., 
 1868, 7 M. 1 67, 172. Therefore the lease 
 should be drawn so as not to exclude 
 
 damages for dislocation of drains through 
 subsidence. 
 
 ^'■' See cases between landlord and 
 mineral tenant, and between surface and 
 mineral owners — Oswald v. Gordon, 1853, 
 16 D. 70 ; Neill's Trs. v. Dixon, 1880, 
 7 R. 741 ; AUaway v. Wagstaff, 4 H. 
 :ind N. 681, and other cases collected in 
 Eankine on Landownership, p. 410. 
 
 " See Hamilton v. Turner, 1867, 5 M. 
 1086, 1098; 
 
 ^ Balf. 208; Cr. 2.10.3 ; Bankt. 2.9.21; 
 Ersk. 1.6.22 ; B. Pr. 1226 ; More's Notes, 
 265; Hutchison's J.P. 508; Tait's J.P. 258. 
 
RESERVATION OF WOODS. 193 
 
 only cut for repairing or erecting the necessary farm buildings, not 
 for alienation.*^ Though woods be not expressly let, the tenant 
 may nevertheless cut willows when of the nature of withs, but 
 not when grown into measurable timber.'^ The old remedy for 
 breach was forfeiture of the lease,*^ but this is no longer the law. 
 At a period when the encouragement of planting and enclosing 
 was the constant care of the legislature of a land which had 
 never been fenced and had lost nearly all its primeval timber, 
 penalties of £10 Scots and £20 Scots were imposed on the 
 destroyer or injurer of trees below and above ten years old 
 respectively (1685, c. 39);^^ and tenants and cottars were made 
 liable not only for their own acts, but for those of their wives, 
 children, servants, and others within their family (1698, c. 16). 
 The burden of indemnifying the owners of woods for the destruc- 
 tion or injury of trees was thrown on the ' parish, town, hamlet, 
 ' vill, or place,' as in cases of riot ; and the burners of woods 
 were to be treated as wilful fire-raisers (1 Geo. I. st. 2, c. 48).^" 
 There is no indication in the books that this British Act has 
 ever been put into operation, though it doubtless remains as part 
 of the law of riots. The Scots Acts have been administered in 
 comparatively recent times. "^ It may be assumed, however, that 
 the law of malicious mischief and the Trespass Act of 1865 
 are strong and wide enough to dispense with the necessity of 
 resorting to the old statutes. ^^ 
 
 (3) Kelp-shores. 
 
 An agricultural tenant is excluded ex lege from cutting ware 
 for the manufacture of kelp, and an offer of proof by a tenant 
 holding his farm with pertinents used and wont, that he 
 and his predecessor had been in use to make kelp, was held 
 irrelevant. ^^ 
 
 (4) Bight to take Game and Wild Animals. 
 
 This reservation will be discussed in a later chapter.^* 
 
 ^ L. Touch V. Ferguson, 1664, M. 423, "^ 1805, Cooper v. Campbell, M. Plant. 
 
 15252. and Enclos., Appx. 1. The cases (which 
 
 ^ Bogue V. Wight, 1806, M. Planting need not be further noticed) are contained 
 
 and Enclosing, Appx. 2. WiUowa do in M. 10478-9, 10484, 10492, 10497, and 
 
 not fall under the enumeration in 6 Geo. Appx. Nos. 1 and 2, and are reviewed in 
 
 III. c. 48 ; 9 Geo. III. u. 41 ; 13 Geo. 2 Hunter, 198. 
 
 III. c. 33. ^- See M'Kay v. Patrick, 1882, 10 E. 
 
 ^ Balf. : Craig, supra, «». (Just.) 10 ; 28 & 29 Vict. e. 56 (camping 
 
 ^ See earlier Acts, 1661, t. 41 ; 1669, and lighting fires), 
 
 c. 17. 63 Campbell v. Campbell, 1795, M. 
 
 ^ 1716, amended 6 Geo. I. c. 16. The 9646. (Kelp-ware, Uke timber, takes 
 
 later British Acts— 6 Geo. III. cc. 36, more than a year to grow into fitness for 
 
 48; 9 Geo. III. c. 41 ; 13 Geo. III. c. use). 
 
 33— are all repealed. « 7„yVo, chap, xviii. 
 
194 tenant's eight and obligation to possess. 
 
 (/3) Conventional Reservations. 
 Special powers These are capable of endless variation, but as a rule they are 
 of resumption. ^.^^^^^ expressions, exact or modified, of the foregoing implied 
 reservations, or powers to resume land for any or certain pur- 
 poses.*^ Thus, though power to resume is implied in a reservation 
 of minerals,''^ it is usual to bind a farming tenant expressly to 
 allow ground to be taken for the necessary works and roads, when 
 required. If, on the other hand, power to resume for a purpose 
 not connected with the mines, woods, or game is to be set up, it 
 must be expressly reserved ^"^ or plainly implied by the actings 
 of the tenant.** In either case a diminution of the size and 
 value of the subjects is the consequence ; and compensation 
 (usually by way of deduction of rent) must be given, 
 whether stipulated for or not, provided the contrary is not 
 agreed on.*^ Arrangements made for these purposes and followed 
 by possession are good against singular successors.™ The ordinary 
 purposes for which right of resumption is reserved are planting,'^^ 
 feuing, and excambing.''^ The question of the extent to which 
 resumption shall be admissible in any ease depends on a fair 
 construction of the clause of reservation, after taking into con- 
 sideration the circumstances in which it was entered into. Thus, 
 a power reserved by a burgh to feu some acres for the improve- 
 ment of its rent, did not entitle it to resume forty out of ninety 
 acres ; ^^ while a right to feu ' the whole or any parts or portion ' 
 of an arable farm near a small town was held to be a plainly 
 worded power to recall every yard of the land, without reference 
 either to the feuing customs of the estate or to the terms on 
 which the feu or feus were granted — for a lump sum or for an 
 adequate feu-duty. ''* It would appear, too, that the tenant 
 cannot interfere with the discretion of the landlord in selecting 
 the land to be resumed otherwise than by appealing to the law 
 of nuisance.''^ 
 Compensation. For the ascertainment of the compensation which is due on 
 
 ^ As to breaks and general powers of possession of the old road), 
 
 resumption, see infra, chap. xx. '^ Menmuir v. Airth, supra, '" ; Grant 
 
 ^ 1 Bell, Leases, 205, seems in error on v. E. Seafield, 1867, 4 ScL.R. 496 
 
 this point. (special bargain for common benefit). 
 
 ^ See case of resumption for purposes '^ As to notice to treat under the Lands 
 
 not within the purview of the power — Clauses Acts, see Glasgow Union Ry. v. 
 
 Caledonian Ky. v. Smith, 1877, 14 Sc. M'Ewen & Co., 1870, 7 So. L.R. 426.' 
 
 L.E. 610. 73 Pew V. Mercer, 1737, Elch. Vie- 
 
 ^ Belshes v. Eraser, 1839, 1 D. 1071. sumption, 10. 
 
 «9 Menmuir u Airth, 1863,1 M. 929. '* Stewart ».Lead, 1825, 1 W.andS. 68. 
 
 '0 Moon v. Roger, 1828, 6 S. 1118 '^ Hunter (ii. 204) suggests a greater 
 
 (compensation for road in the shape of power of interference. 
 
RESUMPTION. 195 
 
 account of this diminution in the size of the farm and in its 
 value to the tenant, it is usual to agree to a reference 
 to arbiters or valuators. ^^ The form of compensation is, as 
 a rule, a reduction of rent. It may be proved, however, by 
 express renunciation of claim, or by facts and circumstances 
 plainly implying renunciation, that the tenant has passed from 
 his right ; as, where a tenant got a neighbouring farm from 
 the same proprietor, and resided for fifteen years and to 
 the end of the lease in a house there, the improvements on 
 which, he verbally admitted, had fully indemnified him for the 
 loss of the buildings resumed by the landlord on the other farm." 
 It is thought that the same result should have followed in an 
 earlier case where it was held, on the contrary, that the tenant's 
 claim was good. Pieces of land were resumed twelve, seven, and 
 four years respectively before the ish of the lease. After the 
 ish there was a further possession for two years on fresh missives ; 
 during the whole period the full rent was paid ; and it was only 
 when, three years after the tenant had removed from the 
 diminished farm, the landlord proceeded to sequestrate the 
 tenant for rent due for a different farm, that a claim for 
 indemnification was sent in and this was the first intimation 
 of a claim.'* The value of the lands to the tenant should be 
 taken as at the date of resumption, not at the date of the lease.''* 
 The result of this where the value of the land has risen, or of 
 resumption at a large fixed sum per acre agreed on in the lease 
 may be that the compensation money exceeds the rent. If in 
 such circumstances the landlord becomes bankrupt, the tenant 
 has no preference for the surplus.*" 
 
 II. The Tenant's Right to be Maintained in Possession. 
 — The general rule is that, possession once taken, the landlord 
 shall do nothing, and, so far as in him lies, allow nothing to be 
 done to oust the tenant from the subject let or any material part 
 of it during the lease. *^ And the leading, though not the only, 
 remedy is action on the warrandice expressed or implied in the 
 
 " See as to validity of award, Patrick portional'). 
 V. M'CaU, 1867, 4 Sc.L.R. 12. *" Bertram v. Guild, 1880, 7 K. 112a, 
 
 '" Belshes v. Praser, 1839, 1 D. 1071. ^ See Paterscn v. Blair, 1819, 2 Mur. 
 
 ™ Hallyburton v. Blair, 1837, 15 S. 177 ; DalzieE v. D. Queenaberry's Exrs., 
 
 750. 1826, 4 Mur. 10, 18 ; Murray v. Douglas, 
 
 "Sharpe v. Burt, 1788, M. 15262. 1837, 15 S. 890; Wauoliope ». Stephens 
 
 (The rule is general though here helped 182C, 4 S. 766 (N.E. 774). 
 by the uee of ' equivalent ' not ' pro- 
 
196 tenant's eight and obligation to possess. 
 
 lease. 82 It will Toe convenient to state, in the first place, the 
 general rules applicable to the obligation of warrandice, and 
 thereafter to detail the circumstances in which the obligation 
 conies into play in questions between landlord and tenant. 
 Warrandice. The Warrandice usually expressed, and, if not, always implied 
 unless otherwise stipulated, is absolute. ^^ But it only applies to 
 the subjects which are really let, and a mixed question of fact and 
 law may arise as to the extent of the premises to which the war- 
 randice was intended to reach. Thus, where a portion of lands let 
 was at the date of the lease in adverse possession, and remained 
 so for twenty years without objection taken by the lessees, 
 who (and one of them especially who was the landlord's factor) 
 were cognisant of the dispute about the title, the Court refused 
 recourse to the warrandice, which was regarded as inapplicable 
 to this portion of the farm. 8* Again, the warrandice does not 
 extend to a part of the subjects possessed by a tenant, not as 
 included in the lease, but as a matter of favour ; ^ or to a loss 
 which both parties, knowing the limits of the granter's right, took 
 the risk of.^^ The landlord does not require to disclose every or 
 any burden, which the tenant might and ought to discover 
 for himself.^'' An obligation of warrandice did not avail to 
 indemnify a tenant for loss caused by a servitude enjoyed by 
 third parties on the lands let at the date of the lease, since the 
 subjects were therein described as possessed by the outgoing 
 tenants, and the incoming tenant must be presumed to have 
 made inquiry. ^^ 
 Of incorporeal Doubt may he expressed of the soundness of a later 
 ^" ■'^° ^' case in which an incorporeal right might, it is thought, 
 
 have been fairly regarded as part of the subject let. The 
 proprietor of part of a loch let his share to mill-owners who 
 had a lease of the rest. They erected an embankment and 
 sluice for the collection and regulation of the outflow into a 
 stream on which their mills were situated. The proprietor 
 
 82 Balf. 319 ; Ersk. 2.6.25.39 ; 2 Boas' name for vindication of the ownership, 
 
 Leot. 493 ; 1 B.C. 644 ; B. Pr. 141, 894, reserving questions of expenses.] 
 
 1208, 1253 ; 1 Bell, Convg. 200. ^ Burnet v. Stewart, 1863, 1 M. 524. 
 
 8S Middletons v. Yorston, 1826, 5 S. ^ Reid v. Shaw, 1822, 1 S. 334 (N.E. 
 
 162 ^N.E. 148) ; Middletons v. Meggat, 311). 
 
 1828, 7 S. 76. The case of Carmichael v. ^ Symington r. Cranston, 1780, M. 
 
 Peter, 1765, M. 16630, did not turn on 16637 ; Hailes, 844. 
 
 warrandice but on assignation to certain ^ Gordon v. Ruxton, 1797 ; Hume, 
 
 profits which failed. 798. (There was some evidence of notice, 
 
 ^Kinloch v. Eraser, 1829, 7 S. 819. but the decision did not turn on that.) 
 
 [The landlord was held bound to give the See Eraser v. E. & G. Union Canal Co., 
 
 tenants (it was a long lease) the vise of his 1830, 9 S. 46. 
 
WABRANDICE. 197 
 
 afterwards let for bleaching purposes riparian lands on this stream, 
 and the bleaching tenant enjoyed the use of the water thus regu- 
 lated. At the close of this lease, the proprietor relet the bleach- 
 field ' as possessed by ' the former tenant. When the lease of 
 the loch ran out, he removed the lessee and demolished the 
 sluice. The bleaching tenant demanded a restoration of the 
 former state of things, or, in default, damages. But the Court 
 held that, as the privilege was not expressly warranted, there was 
 no recourse. It is suggested that the demolition of the sluice 
 was a breach of contract, and that at the worst the tenant was 
 entitled to have it stand and to access for repair. ^^ 
 
 The law of warrandice seems to have been dangerously strained do. 
 in a later case, in which, moreover, the foregoing decisions do not 
 seem to have been cited. A bleach- work was let, ' with full 
 ' power over and control of the existing water-power.' The water- 
 power was, prior to the date of the lease and during its course, 
 regulated by means of reservoirs up-stream, and a customary 
 water-rent was paid for the maintenance of these, at first by the 
 landlord ; then, as arranged, by the tenants ; and, lastly, for five 
 years by the tenant without arrangement. The Court, by a 
 majority, held the tenants entitled to deduct the water-rents for 
 these five years from the rent due to the landlord, the ground of 
 judgment being the warrandice in the lease, as applicable to the 
 privilege of water-power, which formed part of the consideration 
 for which rent was paid. It was held to make no difference 
 that there had been no eviction ; that there could have been 
 none, since the other manufacturers must have kept up the 
 reservoirs in their own interest ; and that there was probably no 
 legal obligation to contribute to the water-rent inter socios.^° 
 
 Warrandice only comes into play when eviction has taken in case only of 
 place, or is certain to come where the ground of demand proceeds 
 from the fault of the lessor, or is threatened where liability is dis- 
 puted f^ or is only avoided by the expiry of the lease leaving behind 
 a liability for violent profits. ^^ When the claim for eviction is 
 made, the grantee ought to give notice. If he do so, he is not 
 
 «> M'Donald, Young & Co. D.Hamilton, Queensberry's Exrs., 1832, 11 S. 18. 
 
 1831, 9 S. 402. Contrast Dunlop & Co. (The eviction, ex facie of the putative, 
 
 V. Steel Co. of Scotland, 1879, 7 K. 283. was reaUy of the true, tenant.) 
 
 9» Sawers v. M'Connell, 1874, 1 E. '^ Hyslop v. D. Queensberry's Exrs., 
 
 392. (The majority was 2 to 1, and the 1822, 2 S. 8, aff. 2 S. Ap. 63 ; Bell v. 
 
 judgment was a reversal.) I>- Queensberry's Exrs., 1824, 3 S. 416 
 
 91 Balf. 319; Ersk. 2.3.30 ; 2 Boss' (N.B. 292) ; Kelloch v. Eosd., 1824, 3 S. 
 
 Lect. 493 ; 1 B.C. 645. See Smith v. 418 (N.E. 294). See as to latent defects 
 
 Koss, 1672, M. 16596 ; Menzies v. T>. and fraud, Wood, Nuisance, 955. 
 
198 
 
 tenant's right and obligation to possess. 
 
 A claim to in- 
 demnification. 
 
 Title to sue. 
 
 Incidence of 
 liability. 
 
 Supervenient 
 law. 
 
 Illegal acts. 
 
 bound judicially to defend the right. ^^ If he do not give notice, 
 he takes the risk of the omission of any relevant defence.^* 
 There is no indemnification for eviction resulting from the tenant's 
 own carelessness or fault. ^* 
 
 The claim is for complete indemnification for loss, past, present, 
 and to come. If the eviction be total, the whole worth of the 
 lease to the tenant at the date of eviction is taken. ^* If partial, 
 the usual mode of compensating the tenant is to make a deduction 
 from the rent.*' 
 
 The claim lies at the instance of the lessee, his heirs and 
 assignees;'* not, as has been already shown,'' of subtenants. It 
 is conceived in terms binding the lessor, his heirs and successors, 
 and is enforceable against the lessor, his representatives, and his 
 successors, whether by singular or universal title, in the subjects 
 let.i"" Personal representatives are liable ultimately only if the 
 lands fall to one who does not derive his right through the lessor. 
 Thus, heirs of entail are only liable if they represent the lessor,^*^ 
 or if the lease is within the lessor's powers.^®^ If it is a 
 contravention of the entail, and is consequently reduced, the 
 lessee's only recourse is against the representatives of the lessor. ^"^ 
 The lessor himself is liable though no possession has been taken 
 by the lessee, where forfeiture of the lessor's right as heir of entail 
 has intervened in the interval between the date of the lease and 
 the stipulated term of entry. ^"^ This subject has been further 
 illustrated by cases already noted which have arisen between 
 lessee and sublessee. i"" 
 
 There is no recourse against the lessor or his successors where 
 the loss is brought about by the action of a supervenient law,^"^ 
 as by a statutory change in the close time for salmon fishing;^*"^ or 
 
 »* Downie v. Campbell, 31st Mar. 1815, 
 F.C. 182. 
 
 '* I B.C. 645. 
 
 85 Stewart v. Wand, 1838, 16 S. 408 
 (encroachment on pasture). 
 
 ^ See Cairns v. Howden, 1870, 9 M. 
 284, and authorities there cited. 
 
 <" Infra, p. 200, 
 
 '^ Maxwell v. D. Queensberry's Exrs., 
 1827, 5 S. 935, rev. 5 W. and S. 771, 783 
 per L. Chan. Lyndhurst. 
 
 «» Supra, p. 181. 
 
 ''"' See the cases as to privity of contract 
 and estate, collected in Stewart v, 
 M'Callum, 1868, 6 M. 382, afif. 8 M. 
 (H.L.) 1 ; and Swintoune v. L. Craig- 
 millar, 1650, 1 B.S. 469. 
 
 i«i Oliphant v. Scott, 1830, 8 S. 985 
 (entail defective in regard to leases and 
 ontracting debt). 
 
 i»2 Supra, p. 49. 
 
 '"' Downie v. Campbell, '' : Hyslop : 
 Bell : Kelloch : Menzies, supra, p. 197 ; 
 Symington v. D. Queensberry's Exrs., 
 1823, 2 S. 162, AB. 2 S. Ap. 80. 
 
 i«* Downie, ^K 
 
 "= Supra, p. 181. 
 
 "^ See the cases on this matter in re- 
 lation to public burdens collected in 
 Rankine on Landownership, 717. 
 
 ^'^ HoUiday v. Scott, 1830, 8 S. 831 ; 
 and see Crawford v. Kennedy, 1694, M. 
 7866, 10125, 4 B.S. 342 ; M'Kenzle ». 
 Kennedy, 1697, M. 7867 ; L. Boyle v. 
 
PARTIAL EVICTION. 199 
 
 if loss results from an illegal act of a third person, which both 
 lessor and lessee are entitled to put a stop to, and to which the 
 lessor is no party — as where a tenant complains of damage to his 
 water-power through the operations up-stream of a feuar from 
 the landlord, the feu expressly prohibiting anything which might 
 prejudice the tenant, and there being no sufificient allegation that 
 the landlord had departed from this condition;™ or if the injury Common risk, 
 results from a legal act of a third party (a neighbour, for example) 
 which both landlord and tenant must be understood to have 
 taken the risk of ; ^"^ or if there be lucrum cessans through the Nuisance, 
 prohibition of the tenant's trade as a nuisance, unless there was 
 a special warranty that the premises were fitted for the prosecu- 
 tion of such a trade.^^" The claim does not prescribe till forty Prescription, 
 years after the date of the distress, which, as already explained, 
 may be different from actual eviction.^^^ 
 
 Eviction may be either partial or total. 
 
 (a) Partial Eviction. 
 
 The remedy in case of partial or temporary eviction is an Partial evio- 
 action of damages, which usually takes the form of a demand for '°°" 
 reduction of rent, when the eviction is of a permanent kind. 
 But in circumstances which involve practically a suspension or 
 dissolution of the relation of landlord and tenant there is the 
 more thorough-going remedy of throwing up or reducing the 
 lease. 
 
 (1) Damages, and Abatement of Rent. 
 
 (a) Damages for Partial and Temporary Eviction. 
 
 Damages are due by the landlord, if, by executing on the subject Damages for 
 let operations which he is not entitled to execute, he ousts the rary eviction. 
 tenant from possession,^^^ or causes injury to the tenant's property ; 
 or if, having agreed to erect a sufficient embankment to protect 
 a farm from inundation, he neglects to do so, and injury results;"^ 
 or if, having reserved right to lay out water-courses he exercises 
 his right negligently, and by his negligence causes flooding.^^* 
 The remedy extends to reimbursement of the expense fairly 
 
 PoUock, 1700, 4 B.S. 481 ; Goldie v. ™ Piers v. Black, 1680, M. 16605 ; 
 
 Williamson, 1796, Hume 793, all relat- Eeid v. Shaw, ™. 
 
 ing to tolls and customs, as to which the "" Murray t>. Buchanan, 1776, M. 16636. 
 better opinion was that the lessee took "^ 1617, c. 12; Mack. Obs. m Goe- 
 the risk ; Heriot's Hosp. v. Angus, 1709, Ersk. 3.7.36, is contra. 
 M. 10126 (multures). Contrast case of ™ Bisset v. Whitson, 1842, 5 D. 5 
 loss of a hotel licence — an ordinary risk — (unrooiing dweUing-house). 
 Donald V. Leitch, 1886, 13 R. 790. "' Scott v. Tait, 1826, 4 Mnr. 57. 
 
 i»8 Gardner v. Walker, 1862, 24 D. "^ Menmuir v. Airth, 1863, 1 M. 929. 
 
 1430 ; and see as to pollution of stream (This case and the last arose on special 
 
 Eeid V. Shaw, 1822, 1 S. 334 (N.E. 311). covenants.) 
 
200 tenant's eight and obligation to possess. 
 
 incurred in preserving the property, and to indemnification for the 
 loss and inconvenience entailed by the result of these operations or 
 of this neglect."^ It seems to be established, in consistency with 
 dicta in the case of Menmuir, that, if the operations take place not 
 on the subject let but on adjacent premises belonging to the same 
 owner, the latter is not bound to show more respect to his own 
 tenant's interests than to those of a neighbouring owner or his 
 tenant, and is only liable in damages if he (or his contractor) 
 shows ' negligence, recklessness, unskilfulness, or want of due care 
 ' and attention to the rights and interests ' of his own tenant. In 
 the case which gave rise to these observations the pursuer was a 
 restaurant keeper and the claim was laid on loss of custom through 
 dust and noise and on injury to the appearance of the premises, all 
 caused by building operations next door.i^^ The same rule would 
 apply if landlord and tenant occupy different floors in the same 
 house.^i'' The rule of liability common to cases between landlord 
 and tenant and cases between adjoining owners is that reasonable 
 care must be taken in conducting such operations, so as to do 
 as little damage as possible to the neighbour ; and that the latter 
 is not entitled to complain of every little inconvenience to which 
 he is put."* There seems to be no valid distinction between 
 injury to the fabric, fixtures, and moveables, and injury to the 
 tenant's trade ;^^^ but injury such as lets in the landlord's 
 obligation to repair is on a different footing. ^^^ Again, a lessee of 
 steam-power is entitled to damages for loss caused by extraordinary 
 stoppages and is not barred by a clause providing for making up 
 stoppages either by deduction of rent or extra work, since that 
 clause only applies to stoppages of ordinary occurrence. ^^^ Right 
 to damages, otherwise competent, may be lost, if a claim be not 
 timeously made.^^^ 
 
 (6) Abatement of Bent on account of Partial and Permanent 
 Eviction. 
 Through act of Abatement is ordered if a partial eviction takes place through 
 
 the landlord. 
 
 "' Kobertson v. Menzies, 1828, 6 S. and cases in Wood, Nuisance, 140. 
 
 462 (raising roof of gig-house and stable). u' Per L. Kinloch, 7 M. 714. 
 
 ™ Laurent v. Lord Adv., 1869, 7 M. ™ Cameron v. Fraser, 1881, 9 K. 26, 
 
 607. The rule of liability seems to be 29. 
 
 sound ; but L. Deas' criticism of the "^ L. Kinloch supra, i^', contra, 
 
 last part of the cited direction to the '^ Laurent, supra, ^'^, such repair was 
 
 jury (that it was too vague) is entitled made without demur, 
 
 to much weight ; cf. Hamilton, 1667, M. i^i Wilson v. Norris, 10th March 1810, 
 
 10121 ; Deans </. Aberorombie, 1681, M. F.C. 624. See Kilmarnock Gaslight Co. 
 
 10122, which were really oases of v. Smith, 1872, 11 JI. 58. 
 
 damages ; Marshall v. Cohen, 9 Amer. ^ Clugston r. Goold, 1823, 2 S. 308 
 
 Rep. 170 (water-closet in upper story) (N.E. 271). 
 
PARTIAL PERMANENT EVICTION. 201 
 
 an act of the landlord himself, of which the tenant did not 
 originally take the risk, and which is contrary to the bona fides of 
 the contract ; as where a landlord having let a farm and an inn 
 at a lump rent, and his successor in the lands set up a rival inn 
 on a new road in the neighbourhood, though the tenant had to 
 take the risk of the new road being made, the landlord was not 
 entitled to attract custom away from her by his own act, and she 
 might have obtained interdict if she had timeously applied. ^^^ 
 Abatement was allowed, where the lessor of fishings detracted 
 from their value by erecting a dock.^^* Apart from the action of 
 the Lands Clauses Acts, a tenant has been held entitled to deduc- 
 tion of rent eflfeiring to land — such as a road — taken from his 
 farm for public purposes without his consent.^^^ And practically 
 the same result is obtained by the rule that the remedy of 
 sequestration for rent will be refused or a charge for rent 
 suspended, where an essential part of the subject let is with- 
 drawn by the landlord, ^^^ directly or indirectly,!^'' provided that 
 the tenant can point to a distinct averment of the withdrawal 
 instantly verifiable.!^* 
 
 But if the tenant takes the risk of the landlord's acts and their Exceptions, 
 consequences he is not entitled either to abatement of rent or to 
 damages. Thus where mills were advertised with no other 
 representation than that there was an abundant and regular 
 supply of water, and let without any stipulation as to the water, 
 the tenant was held not to be entitled to complain of irregularity 
 of supply occasioned by the act of a miller up-stream, to whom 
 the same landlord had let under the sole condition that he should 
 keep his sluices open for three hours a-day at least — which was 
 just the state of possession when the complainer took possession.!^* 
 For the same reason the tenant of a thirlage mill is not entitled 
 to relief though the lessor lays down in grass part of the lands 
 within the sucken which were formerly cropped.!^" And where 
 the contract is shown to be a lease, not of lands but of rents, as 
 by its covering a number of let tenements and by its having an 
 anticipated entry, the lessee cannot withhold rent on the plea 
 
 123 Campbell v. Watt, 1795, Hume 788 ; and next case. 
 
 see Smith v. Cameron, 1879, 6 E. 1107 ; '^ Humphrey v. Maclcay, 1883, 10 R. 
 
 Craig V. Miller, 1887, Sc.W.N. 53. 647. 
 
 ^ HaU V. Roas, 1813, 1 Dow 201. '=9 Aitohison i,. Glasgow Maga., 1825, 
 
 ™ Brown v. Brown, 1826, 4 S. 489 1 W. and S. 153 (recourse against upper 
 
 (N.E. 494). miUer reserved). 
 
 ™ Kilmarnock Gaslight Co. v. Smith, iso siowan v. Hawthorn, 1756, M. 
 
 1872, 11 M. 58 ; Guthrie v. Shearer, 1873, 16052 ; Chalmers v. Wilson, 1769, M. 
 
 1 R. 181, infra, chap. xvi. 16060. 
 
 i» Gordon v. Suttie, 1826, 4 Mur. 86 ; 
 
202 tenant's eight and obligation to vossess. 
 
 that he has not obtained possession of the lands.^^^ The tenant 
 
 will be barred from claiming deduction if he has given a promise 
 
 in writing to pay the full rent ; ^^^ or, if an ample surrogate be 
 
 furnished for the part of his holding of which he has been 
 
 deprived ; "^ or, if he allows the lease to run out without 
 
 complaint.i^* 
 
 Through act of If the loss is caused by the acts of third parties, in which the 
 
 third party, landlord has no hand, there is in the absence of special stipulation 
 
 no claim for abatement of rent ^^^ or for damages, whether these 
 
 acts be lawful or unlawful ; for in the former case landlord and 
 
 tenant share a common risk to the extent of their respective 
 
 interests ; "^ and in the latter case they are equally entitled to 
 
 put a stop to the nuisance. ^^^ 
 
 Damnum Where partial, yet permanent, eviction or deprivation results 
 
 ■ ex damno fatali, by pure accident or public calamity .^^^ it 
 
 seems to be settled that the tenant is entitled to cause the 
 
 landlord to share the loss through an abatement of rent,^^' 
 
 unless the loss be trifling,!*" or unless the claim has been passed 
 
 from.i« 
 
 Lands Clauses The casc of compulsory Sale, surrender or expropriation of 
 
 lands under lease is provided for by the Lands Clauses (Scotland) 
 
 Leaaefor Act, 1845,1*^ sects. 112-115. A lessee for a term of years unex- 
 
 yeais. pired is entitled to claim and be compensated in the same way 
 
 as any other person interested in the land (sects. 6, 17) for 
 
 damage done to him in his tenancy by reason of the severance of 
 
 '^^ Maxwell v. Montgomery, 1681, M. (no relief for forced levy by rebels from 
 
 15173. tenant of landlord's cess) ; Sinclair v, 
 
 132 Butter V. Loch, 1830, 8 S. 408. Hutchison, 1751, M. 10130 ; Bankt. 
 
 133 Burns v. Stewart, 1830, 8 S. 641, 1.20.18. 
 
 aff. 5 W. and S. 366. "9 gt 1.15.3. ^rsk. 2.6.41; B. Pr. 
 
 "* Parlane v. Hamilton, 1828, 6 S. 977 1208 ; E. Eglinton v. Tenants, 1742, M. 
 
 (turnpike rate table not supplied to toll- 10128, Elch. Tack, 8 ; White v. Mon- 
 
 keeper). creiflt, 1849, 11 D. 1031 ; Walker v. 
 
 135 Donald v. Leitoh, 1886, 13 K. 790 Bayne, 30th May 1811, F.C. 265, rev. 
 (hotel reduced to public-house licence). 3 Dow, 233, 241, per L. Redesdale ; and 
 
 136 See Dunsmore v. Oswald, 1821, 1 S. see D. Hamilton's Tra. v. Fleming, 1870, 
 170 (N.E. 161). 9 M. 329. The plea is one, not of com- 
 
 137 Infra, chap. xxv. In Houstoun v. pensation but, of rent not due, Muir v. 
 Harvey, 1831, 9 S. 560, there was a final M'Innes, 4th Feb. 1887. 
 
 decree for damages obtained in the Sheriff 1^° Piers v. Black, 1680, M. 16605; 
 
 Court, as to one term. Steedman v. Kennedy, 1744, Elch. Tack 
 
 138 gee cases of war and rebellion. No. 7 (access); Sharpe's Factor ti. L. Mon- 
 Wilkie V. Ker, 1662, M. 10120 ; Customs boddo, 1778, M. 10134 (well giving out). 
 Tacksmanti.Greenhead, 1667, M. 10121; "i Kinnaird v. Matthewson, 1802, 4 
 Edinburgh Bailies v. E. Lothian Heritors, Pat. 429. See as to damnum fatale more 
 1663, M. 10120 (exemption from rates); at length, infra, p. 204. 
 
 Strachan v. Christie, 1761, M. 10129 "'^ 8 & 9 Vict. 0. 19. 
 
LANDS CLAUSES ACT. 203 
 
 the lands required from those not required by the promoters/*^ 
 or otherwise by reason of the execution of the works (sect. 1 1 3). 
 If part only of his holding be required, the rent is apportioned 
 either by agreement between the landlord, the tenant, and the 
 promoters, or by the sheriff,^** and the lessee remains liable to 
 the landlord for the portion allocated to him, all remedies, condi- 
 tions, and agreements except as to amount of rent being left 
 intact (sect. 112). There may be a binding agreement between 
 the lessee and the promoters without the concurrence of the 
 lessor.i*^ Failing apportionment the lessee is liable for the 
 whole rent.^*^ Neither party has a right of lien on the other's 
 compensation money, i*'^ Where the lease is held for a year only, Lease for a 
 or from year to year (sect. 114), or is within a year of its^^''' 
 expiry,^** or is not produced within twenty-one days after demand 
 made for it by the promoters (sect. 115), compensation to the 
 tenant for the value of the unexpired term or interest and for any 
 allowance that ought to be made to him by an incoming tenant, 
 or for any loss he may sustain, or, if part only of the lands be 
 taken, for damage by severance or otherwise injuriously affecting 
 the same ^*^ is assessed by the sheriff, if possession be demanded 
 before expiry of the lease. ^*'' The tenant is thus entitled to full 
 compensation, and continues liable for the whole rent.^^^ If he 
 is allowed to remain after the date fixed for removal, he can have 
 compensation (unless it be arranged otherwise), for the pre- 
 cariousness of his tenure as compared with his former security, ^^^ 
 hut not for damage done in the prosecution of the promoters' 
 works. ^^^ Notice to treat given to the landlord bars him from Notice to 
 thereafter entering into a lease which shall affect the pro- 
 moters.^^ 
 
 i« Hunter v. N.B. Ry., 1849, 12 D. '^ See case of pollution of water, 
 
 37. Caledonian Ry. v. Barr, 1855, 17 D. 
 
 ^** Not by an arbiter, Se Ware, 9 312. 
 
 Exch. 395. ^™ Not mere notice to treat before that 
 
 ^^ Slippers. Tottenham, &c., Ry., L.R. date, R. v. Stone, L.R, 1 Q.B. 529 ; see 
 
 4 Eq. 112. Glasgow Union Ry. v. M'Bwen, 1878, 8 
 
 1^ Wainwright <;. Ramsden, 5 M. and M. 747. 
 
 W. 602. See a case in which this was "^ Wainwright, "" : Ferguson, supra, 
 
 the arrangement, N.B. Ry. v. Renton, '**. 
 
 1864, 2 M. 4-42. ^^' Granwell v. London Corp., L.R. 5 
 
 "'Carey, 10 L.T. 27; Nadin, 17 Exch. 284 ; R. «■. London, &o., Ry., 10 A. 
 
 L.J.Ch. 421 ; Peddie v. Brown, 1857, 3 and E. 3. 
 
 Macq. 65. ^^ R. i>. Vaughan, L.R. 4 Q.B. 190. 
 
 i« Tyson v. London Corp., L.R. 7 C.P. ^'^ N.B. Ry. v. Lindsay, 1875, 3 R. 
 
 18; Reg. v. G.N. Ry., 2 Q.B.D. 151, 168. (Question there, whether posses^ 
 
 followed by the parties in Ferguson v. -sion is requisite to entitle a tenant to 
 
 Hood, 1881, 9 R. 168. compensation.) 
 
204 
 
 tenant's right and obligation to possess. 
 
 Damnum 
 fatale. 
 
 Accident. 
 
 Negligence, 
 
 (b) Total Eviction. 
 
 (1) Reduction of the Lease by a Third Party. 
 
 This is the typical case of total eviction and is mainly illus- 
 trated by the decisions relating to the Queensberry Leases,^^' 
 which were reduced as in contravention of entails after prolonged 
 litigation. It has already been pointed out that where there 
 never has been a completed lease but possession has been taken 
 on an incomplete contract, the loss falls where it lights, there 
 being no claim of damage on either side.^^^ 
 
 (2) Right to Abandon. 
 
 (a) In cases luhere the Landlord is wholly responsible for the 
 Loss. 
 
 These cases will fall to be examined in later chapters which 
 deal with repairs and meliorations. ^^^ 
 
 (6) In cases of damnum fatale and other Accidents. 
 
 It is easier to describe than to define what is known as 
 damnum fatale, act of God, vis major, or inevitable accident. 
 It has been said to be a ' miracle of nature ; ' ^^^ an occurrence 
 ' unprecedented and such as could not have been reasonably 
 ' anticipated ; ' ^^' and as a circumstance ' which no human 
 ' foresight can provide against and of which human prudence is 
 ' not bound to recognise the possibility.' '^^ It will be well to 
 adhere to this use of the phrase. But in the present connection, 
 accidents of another description have the same eflect in questions 
 between landlord and tenant as these unprecedented occurrences. 
 Thus, human prudence is bound to recognise and does recognise 
 every day the possibility of accidental fires. Now the rules 
 which are contained in the immediately following paragraphs apply 
 both to damna fatalia, and to what are popularly known as 
 accidents, provided that in the latter case neither landlord nor 
 tenant nor any one in their employment acting in strict accord- 
 ance with or within the scope of their orders or authority was 
 at fault. 1^1 If fault exist for which either party is responsible, he 
 
 ^^ Hyslop : Menzies : Bell : Kellooh : 
 Symington : Maxwell : also HutoliiBon : 
 Dick V. Taylor'a Trs. : Middletons v. 
 Yorston & Meggat, supra, pp. 181, 196-8. 
 Downie v. Campbell alone is not of the 
 series. 
 
 ^^ Supra, p. 115. 
 
 ^^ Chaps, xi., xii. See esp. Kippen v. 
 Oppenheim, 1847, 10 D. 242 ; Scottish 
 Heritable Sec. Co. v. Granger, 1881, 8 R. 
 459 ; Lowndes v. Buchanan, 1854, 17 D- 
 63 ; Thomson v. Paxton, 11 D. 1113. 
 
 ^^ Per L. Cockburn in Samuel v, E. 
 and G. Ky., 1850, 13 D. 312, 314. 
 
 ^^^ Potter V. Hamilton, &o,, Ry., 1864, 
 3 M. 83, 87. 
 
 160 Per L.-Ch. Westbury in Tennant v. 
 E. Glasgow, 1864, 2 M. (H.L.) 22, 27, affg. 
 
 1 M. 133. See illustrations cited in 
 Rankine, Landownership, 314. 
 
 ^^ As to which see Linwoods «. Hathorn, 
 14th May 1817, F.C. 327, aff. 1 S. Ap. 
 20, and Mackintosh v. Mackintosh, 1864, 
 
 2 M. 1357, overruling Keith r. Keir, 10th 
 
ACCIDENTAL LOSS. 20.5 
 
 must bear the burden of repairing the loss caused by the so-called 
 accident and can have no recourse against the other. ^^^ Thus, 
 where the only credible explanation of the cause of the burninw 
 down of a house was that the tenant had set fire to a heap of 
 rubbish hard by and allowed it to burn for several days down to 
 the date of the conflagration, he was held to be in fault and 
 liable to the landlord in damages.i'^^ Where apparatus was 
 erected in an improper manner and without the usual precautions 
 against the spread of fire and the premises were consumed in 
 consequence, the tenant who was in fault was mulcted in damages, 
 though the landlord knew that such apparatus was being used, 
 since it would have been innocuous if properly erected and 
 worked. ^^ It was sufficient negligence in the lessee of a malt 
 kiln to leave it at night without a watch in the full 
 knowledge that the fire-place was in the neighbourhood of lath 
 and plaster.^^^ 
 
 The common-law rules regarding the loss sustained by damna 
 fatalia and by accidents as thus understood are that (1) neither 
 party is bound to restore the subject to its former or to an equiva- 
 lent state, and (2) that the tenant is entitled to abandon the 
 lease or demand abatement of rent according as the rei interitus 
 is actually or constructively total or only partial. 
 
 (a) Neither Party liable to Restore. 
 
 This doctrine, which was latent in a number of earlier decisions 
 outside of the law of landlord and tenant,^^^ was established by a 
 judgment of the House of Lords in 1815,^^^ which determined 
 that a subject destroyed through inevitable accident (as by a fire) 
 ' perit suo domino,' and that the meaning of the maxim is, not 
 that the proprietor is alone to suffer but, that all who are 
 interested constitute the dominus and that the subject perishes 
 to all concerned according to their several interests. The rule 
 
 Jnne 1812, F.C. 679 ; and see the English are saved— 14 Geo. IIL o. 78, sect. 86. 
 cases, Williams v. Jones, 33 L.J. Exch. '^ Sutherland v. Robertson, 1737, M. 
 
 297 ; M'Kenzie v. M'Leod, 10 Bing. 385. 13979, Elch. Reparation, 2 (the other 
 
 Contractors — Rankin v. Dixon & Co., defender seems to have been a co-tenant). 
 1847, 9 D. 1048 ; Cleghorn v. Taylor, i« Hardie v. Black, 1768, M. 10133. 
 
 1856, 18 D. 664 ; Cameron v. Eraser, "^ Maclellan v. Kerr, 1797, M. 10134. 
 
 1881, 9 K. 26 ; and L. Watson in Angus See Walker v. Bayne, infra, ^^, where the 
 
 V. Dalton, 6 App. Cas. 831. question of fact was whether Hve coal 
 
 1^^ As to fire, 1426, e. 75 ; Mack. Obs. leapt of itself to an adjoining straw bed, 
 
 in loc; BaU. 509 ; Bankt. 1.10.42 ; Ersk. or was carried on the back of a cat. 
 2.6.43 and notes. The statutory prohibi- ^^ See cases in L. Redesdale's opinion, 
 
 tion of action against persons on whose 3 Dow 241-3. 
 
 estate or in whose buildings fire occurs '^ Walker v. Bayne, 30th May 1811, 
 
 relates to purely accidental fires, and F.C. 265, rev. 1815, 3 Dow 233, 6 Pat. 
 
 agreements between landlord and tenant 217. 
 
206 tenant's eight and obligation to possess. 
 
 applies whether, as in the case cited, the landlord did not desire 
 to rebuild and the tenant was under no special obligation to 
 repair, or, as in a case ^^* which was in effect overruled by the 
 judgment of the House of Lords, both parties were desirous to 
 restore and the tenant was bound to uphold the premises in 
 tenantable and habitable condition and leave them so at their 
 removal. Such an obligation is not intended to provide for 
 purely accidental loss.^^^ The landlord is not relieved of any 
 counter obligation by the tenant's inability through daTnnum 
 fatale to perform his part.^''" 
 
 (;8) Right to Ahandonment or Abatement. 
 Abandonment The question whether a tenant is on the one hand entitled 
 or a atement. ^^ abandon his lease or to claim abatement of rent, or on the 
 other hand bound to remain in his holding and pay the full rent 
 is (otherwise stated) a question as to the incidence of risk in a 
 common enterprise. The principle is laid down by Lord Stair^^ 
 in a passage which was thus paraphrased in a recent decision of 
 high authority. ^"^ ' There is a peril or risk undertaken by the 
 ' tenant ; he is at the risk of the quantity and the value of the 
 • subject, but he is not at the risk of the being or existence of 
 ' it.' Therefore, if a subject let be totally destroyed by causes 
 beyond the control and not within the contemplation of the 
 parties, the contract comes to an end ; if there be destruction of 
 part only of the subject let there will arise a claim for abate- 
 ment of rent.^^^ There is considerable diflSculty, however, in 
 carrying this undoubted principle into practice. The cases which 
 are usually employed in illustration are — as to agricultural 
 subjects, sterility, storm, inundation, and fire ; as to fisheries, a 
 change of stream;^"* as to minerals, exhaustion of strata; as to 
 buildings, fire, the fall of a neighbouring house, war, rebellion,^^^ 
 and riot. 
 Measure of I* ^^7 ^^ Safely Said to follow from the principle above stated 
 
 i"^^- that the Court will not be confined in adjusting the rights of 
 
 parties by any artificial rule (such as has been frequently 
 
 168 Swinton v. M'DougalB, 16th Jan. ''^ 15^ §§ 2-5, 25, § 6, D. (19.2) ; 
 
 1810, F.C. 487. Gliick's Commentar. xvii. 447 ; Weiske's 
 
 "9 Duff V. Fleming, 1870, 8 M. 769. Reohts-lexicon, vii. 776 ; Vangerow, § 
 
 "0 D.Hamilton's Trs.i>. Fleming, 1870, 641 ; St. ut supra, i''' ; Mack. 3.3.5 ; Bankt. 
 
 9M. 329. 1.20.13,2.9.24; Ersk. 2.6.41; Karnes' 
 
 I'l St. 1.15.2 (the passage is too long Equity, 243 ; Pothier, Lonage, p. 109 ; 
 
 for quotation). Code Nap. 1722. Contra in England, 
 
 1™ Per L. Chan. Selbome in Gowans Woodfall (15th ed.), 408. 
 
 V. Christie, 1873, 11 M. (H.L.) 1, 4, affg. i" Foster v. Adamson. 1762, M. 10131. 
 
 9 M. 485. Vi Cases, supra, p. 202. 
 
ABANDONMENT : ABATEMENT OF KENT. 207 
 
 suggested) that in order to justify abandonment or abatement 
 the loss must be either total or at least ' plus quam tolerabile,' Plus quam 
 the latter phrase being explained (with special reference to 
 agricultural subjects) as meaning such a calamity that in con- 
 sequence of it the produce of the crop does not exceed the 
 expense of the seed and tillage ■,^''^ or (with reference to mineral 
 leases) that the subject becomes unworkable to profit even if no 
 rent were payable.^^'^ Lord Stair's view that in a lease for years 
 there are as many locations as years, and that therefore the 
 question of abatement must be considered separately for each 
 year, if it ever was law, cannot be held to be so in modern times, 
 when a tenant for years takes the good with the bad and expects 
 his profit from his tenure taken as a whole.^^^ Further, the Loss at 
 tenant alone takes the risk of loss arising from the state of the *""*"* ^ ™'^- 
 market to which he takes his wares,^"' in the same way as he 
 takes the risk of the quality and quantity of the produce ; nor 
 will the landlord be responsible for gradual deterioration of the 
 soil, short of sterility, or for the efiects of ordinary weather and 
 diseases. ' Increase in the depth of a mine or accumulation of 
 ' water in a mine does not give liberation or abatement to the 
 ' lessee, although the addition to the expense of working should 
 ' create positive loss.'^^* The case of loss due to a supervenient 
 law has been already noticed. ^^^ 
 
 Beyond the region thus excluded, there are circumstances in Jtei mterUus. 
 which there is such rei interitus as to liberate the parties from 
 their mutual obligations, or such loss or destruction of part of the 
 subject let, as to entitle the tenant to claim abatement. If lands 
 are rendered absolutely unproductive by being overblown with 
 sand,^*^ or permanently sterile by inundation, or are carried 
 beyond bounds by avulsion,^*^ or if houses be made untenantable 
 or uninhabitable by being burnt,^^ the tenant may abandon, 
 unless the landlord offers restoration within a reasonable time. 
 The delicacy of the questions which may arise out of this rule are 
 indicated by Lord Shand in the following words : — ' In determin- 
 
 i'6 Ersk. 2.6.41 ; Mack. 3.3.5. 175. 
 
 1" Gowans v. Christie, supra, i'^, at 11 ^*' 2 Hunter, 425, quoted with approval 
 
 M. (H.L.) 2. by Lord Colonsay at 11 M. (H.L.) 8. 
 
 "^ See obs. of LI. Chelmsford and i^' Supra, p. 198. 
 
 Cairns in 11 M. (H.L.) 7, 11; L. Neaves' "^ Lindsay v. Home, 1612, M. 10120. 
 
 illustration of the years of plenty and '^ Futt v. L. Ruthven, 1671, 2 B.S. 
 
 scarcity in Egypt — Pleeming v. Baird, 504. 
 
 1871, 9 M. 730, 735; B.Pr. 1208; More's '^4 p„g „, Fleming, 1870, 8 M. 769 ; 
 
 Notes, 95. Allan v. Markland, 1882, 10 R. 383. 
 
 "9 Dixon V. Campbell, 1824, 2 Sh. Ap. 
 
208 tenant's eight and obligation to possess. 
 
 ' ing the question whether the subject was entirely or in a 
 ' material part so destroyed as to make it unfit for the purposes 
 ' for which it was let, a case of destruction is not made out 
 ' by showing that the premises have been made uncomfortable, 
 ' and, I would add, unsuitable for the purpose of the lease for 
 ' a short time. The question whether the premises have been 
 ' made unfit for the purpose of the tenant's occupation is one of 
 ' degree. While, on the one hand, if a dwelling-house or shop 
 ' has been so destroyed as to be either permanently unfit for 
 ' occupation, or to be unfit for occupation for such a length 
 ' of time that it would be obviously unreasonable to require 
 ' the tenant to continue his possession, the tenant shall be free ; 
 ' yet on the other hand, when such a calamity as a fire, affecting 
 ' both parties, has accidentally occurred, a tenant may reasonably 
 ' be called on to submit to considerable inconvenience as the 
 ' natural and often necessary consequence ; and if the injury to 
 ' the premises be short of destruction, and the damage may be 
 ' repaired within such a time that the term " considerable in- 
 ' " convenience " would fairly describe all that the tenant has 
 ' to undergo, he is not entitled to throw up his lease, but is 
 ' bound to give his landlord an opportunity of having the 
 ' damage repaired, insisting, as he is no doubt entitled to do, 
 ' that no time shall be lost in having the premises restored 
 ' to their former condition.' ^^ So that a tenant of a house 
 of three storeys was entitled to abandon when each storey 
 was so destroyed by fire as to be unfit for occupation, 
 and the repairs amounted to more than half the value of 
 the house, and took seven weeks to execute ; ^^^ and the 
 tenant of a workshop considerably injured by fire ten days 
 before the date of his entry, and not put into tenantable con- 
 dition (as it turned out) for a month more, was held entitled to 
 refuse to enter.^*'' But the tenant of a front and back shop was 
 refused the remedy of abandonment where the back shop was 
 seriously, the front shop scarcely at all, injured by a fire. The 
 work of the shop might have gone on during repairs which could 
 have been executed in little more than a week, at little more 
 inconvenience than what is caused by ordinary repairs.^^^ In 
 such cases it would probably be held that the tenant is entitled 
 
 185 In Allan v. Markland, at 10 E. 389. cases are clearly distinguishable. L.P. 
 
 186 Du£E ]'. Fleming, supra, ^^. Inglis thought the position of the tenant 
 
 187 Drummond v. Hunter, 1869, 7 M. —a wholesale dealer with other places of 
 347. business— a material circumstance, 10 R. 
 
 18* Allan V. Markland, supra, 18*, revg. 395. 
 L. Lae, diss. L, Deas. The two sets of 
 
ABANDONMENT OF LEASE. 209 
 
 to some abatement of rent corresponding to the interval of dis- 
 possession or disturbed possession. 
 
 The question has arisen how far these rules apply to leases of in mineral 
 minerals, which may be regarded as sales at a price payable by ^^^^^^' 
 instalments, and are more or less of a speculation. There can 
 be no doubt that complete exhaustion liberates the lessee ; ^^' on 
 which account it is important to provide for a lordship as well 
 as a rent. Constructive exhaustion or sterility has the same 
 effect, as for instance where the seam let is unworkably thin i^^" 
 but it would probably not now be held that foul air, a bad roof, 
 and such physical obstacles need make the tenant despair."^ It 
 may be gathered from modern cases that the tenant will not be 
 exempted from the performance of his part of a mineral lease, in 
 the absence of stipulation, unless there be exhaustion actual 
 or constructive, or unless no mineral such as was let ever existed 
 in the premises. ^^^ It is usual, however, to make special 
 provision for breaks at certain intervals, or for abandonment 
 whenever the unworkableness of the mineral is ascertained by 
 arbitration or otherwise as stipulated ; ^^^ and then the ascertain- 
 ment in the way prescribed is a condition precedent to abandon- 
 ment, i^* 
 
 In all cases the tenant must declare his abandonment of the Aforainaband- 
 lease without undue delay, — the period allowed being as diverse ™'°^' 
 as the circumstances of each case. Thus intimation of abandon- 
 ment given three days after the term of entry to a house, which 
 had been injured by fire before the term, was not too late.^^* 
 But where a mineral lease provided for its termination when the 
 coals were worked out or were found by arbiters to be unprofitable, 
 it was no relevant defence to an action for arrears of rent to 
 allege exhaustion, since it was the duty of the tenant to take the 
 initiative and have the fact ascertained in the manner stipu- 
 lated.^^^ Where two years were allowed in a mineral lease 
 for proving the field, sinking pits, and erecting machinery, with- 
 out rent, and the tenant possessed on for six months into the 
 
 189 Wilson V. Mader, 1699, M. 10125 ; case of special power granted to a curator 
 
 Murdoch v. Tullerton, 1829, 7 S. 404 ; bonis to reduce mineral rent, White i. 
 
 and see Gowans v. Christie, 1871, 9 M. Moncreiff, 1849, 11 D. 1031. 
 
 485, aflt. 11 M. (H.L.) 1. ^'^ Infra, chap. xx. 
 
 IS" Gray v. Hog, 1706, 4 B.S. 635. ™ Waddell's Trs. v. Monkland Iron 
 
 isiEdmiston v. Preston, 1675, M. Co., 1885, 13 K. 237. 
 
 15172 ; noticed by L. Chan. Selbome at '"^ Drummond v. Hunter, 1869, 7 M. 
 
 11 M. (H.L.) 5. 347. 
 
 "2 Gowans v. Christie, supra, "9; iss Thomson «>. Gordon, 1869, 7 M. 687; 
 
 Eleeming v. Baird, 1871, 9 M. 730. See see Lowndes v. Buchanan, 1854, 17 D. 63, 
 
 
 
210 tenant's right and obligation to possess. 
 
 third year, it was no answer to a claim for the rent of that year 
 that the field was sterile.^^^ 
 Insurance. 
 
 Insurance While the injustice which might arise from an enforcement of 
 
 the strict rule of exacting mineral rent as long as the subject 
 remains is usually mitigated by special clauses directing an 
 inquiry into the profitableness of the workings, the loss due 
 to another fatality, more common than the exhaustion of a mine, 
 is provided for by an Insurance clause. This clause is not 
 commonly to be found in leases of buildings separately let for 
 dwellings, shops, or mills,^'* since if the landlord insures his 
 building and the tenant his machinery or furniture, the tenant's 
 option to abandon or claim abatement of rent sufficiently secures 
 that no unavoidable hardship to either party shall follow destruc- 
 
 in farm leases, tion or injury by fire. It is different in the case of a farm, 
 where the buildings are really part of the tools of the farmer's 
 trade, and where possession of these tools, though it may not be 
 of vital, is of great, importance in the conduct of the farm. 
 Accordingly it is usually stipulated that, whereas the lessor has 
 insured or will assure the houses and buildings against fire, the 
 tenant shall defray one-half of the annual premium, ' declaring 
 ' that in the event of the destruction of the said houses and 
 ' steading, or any part thereof by fire, [the proprietor] shall 
 ' be entitled to recover the sums due under the policy or policies 
 ' of insurance effected or to be effected as aforesaid ; and the 
 ' tenant shall have no claim whatever against the proprietor 
 ' on account of such fire, except that the proprietor shall be 
 ' bound to apply the sums to be recovered as aforesaid in or 
 ' towards the restoration of such houses and steading or parts and 
 ' portions thereof as shall have been destroyed, the proprietor being 
 ' always entitled to settle in what manner the said sums shall be 
 ' applied in or towards the purposes foresaid as he shall think best, 
 ' without the consent or any control on the part of the tenant.'^^^ 
 
 No obligation In judging of the effect of such a clause, it must be borne in 
 
 eommou^law. mind that, without special stipulation, neither party is bound 
 to insure, any more than to restore what is destroyed, ^"o There- 
 
 ^ Sinclair v. Moesend Iron Co., 1854, on the tenant to pay half the premium, 
 
 17 D. 258. ibid. 701 ; other cases, ibid. 684 et seq. 
 
 1S8 Except that in the case of mills the ^^ 1 Jur. Styles, 576, 585, 595 ; or the 
 
 tenant binds himself not to change the whole premium, 598. There are varia- 
 
 mode of working from that stipulated in tiona in these forms, but the meaning is 
 
 the policy without notice, 1 Jur. Styles substantially the same. 
 
 (5th ed.), 594. In the case of a furnished ''"' D.Hamilton's Trs. v. Fleming, 1870, 
 
 house, there is sometimes an obligation 9 M. 329, 338, 
 
INSURANCE. 211 
 
 fore, if the clause above narrated had stopped short before the 
 ' declaration,' it would have been conceived wholly for the benefit 
 of the landlord, who would not have been obliged to expend the 
 money recovered by him in restoration, and, as to the tenant, 
 would have simply added the half or the whole of the premium to 
 his rent.^"^ If, in pursuance of the declaration, the landlord makes 
 a complete restoration, he does so either because the insurance 
 money is sufficient, or of his own free will, for he is not obliged 
 to spend a penny more than he recovers from the company. 
 There is greater security against lapse of the policy through non- 
 payment of the premium when the policy runs in the landlord's 
 name than when there is a mere obligation laid on the tenant to 
 insure in his own.^"^ By statute any party interested in or 
 entitled to a building may, if there be suspicion that the owner 
 or occupier or other insurer has been guilty of fraud or of wilful 
 fire-raising, request the insurance office to lay out the insurance 
 money in restoration of the building. ^"^ This request must be 
 made before the office has settled with the insured.^"* Both 
 landlords and tenants are parties ' interested ' in the sense of the 
 statute.^"^ Where the tenant insures for his own benefit erections 
 which he is to be entitled to remove, or to be compensated for 
 at removing, the landlord can have no claim to the insurance 
 money, if the erections are burnt, other than as an ordinary 
 creditor.^"^ But if the tenant insures his stock or crop, the 
 view seems to have been taken in one case that the insurance 
 money comes in as a surrogatum, and that the landlord has a 
 preference over it in virtue of his hypothec for payment of the 
 rents secured by hypothec. ^"'^ 
 
 (3) Interdict. 
 
 Lastly, the tenant is entitled to restrain by interdict any 
 threatened or inchoate encroachment on his right of possession, 
 exclusive so far as it goes, by the landlord.^"^ 
 
 ""^ Ibid. : under a clause substantially ™° This seems to be the gist of part of 
 
 to the same effect as the leading obliga- Sc. TJnion Ins. Co. v. Mackintosh, 1830, 
 
 tion above. 9 S. 310. 
 
 ^^ See the English cases of breach and ^' Ibid. The point was given up, sed 
 
 its effects in WoodfaU, pp. 654, 329. It quwre, the assurance being entirely volun- 
 
 runs with the lands ; ibid. tary, and the rei interitus purely acciden- 
 
 2«3 14 Geo. III. c. 78, sect. 83, still in tal. 
 
 force (see 18 & 19 Vict. c. 122, sect. 109), ^os Alexander v. Couper, 1840, 3 P. 
 
 and not con&iied to London. Ex parte 249 ; Blanc v. Greig, 1856, 18 D. 1315 ; 
 
 Goreley, 34 L.J. Banktcy. 1. Hood v. Miller, 1855, 17 D. 411 ; John- 
 
 2M Simpson v. So. Union Ins. Co., 1 H. ston v. Constable, 1841, 3 D. 1263 ; 
 
 and M. 618. Begbie v. Frame, 1857, 20 D. 81 ; Brown 
 
 2»5 SemhU as to tenants, WoodfaU, pp. ii. Robertson, 1822, 1 S. 448 (N.E. 416) ; 
 
 409, 653, Thomson v. Brown, 1822, 1 S. 475 (N.E. 
 
212 
 
 tenant's right and obligation to possess. 
 
 Damages for 
 breach. 
 
 Landlord's 
 remedies. 
 
 B. The Tenant's Obligation to take and retain Posses- 
 sion. Inversion. 
 
 1. To take Possession, 
 
 The tenant is under obligation to take possession ; ^"^ and 
 action to compel him to implement the lease ' by entering into 
 ' possession of the premises and paying the rent when due/ is 
 competent in the Sheriff Court, though it may involve a question 
 as to the existence of a binding lease. ^^^ Breach of this obliga- 
 tion infers liability for damages,^^i and in the case of certain 
 subjects, such as farms and dwelling-houses, the amount of 
 damages may be a substantial sum, since deterioration of the 
 premises and dislocation of management readily follow on want of 
 occupation. It seems to be the better opinion, that the executors 
 of a deceased tenant are liable to the landlord for loss caused by 
 the refusal of the heir to enter and fulfil the obligations of the 
 lease. ^^^ The lack of some non-essential part of the subject let,^^^ 
 or the fact that the former tenant remained in actual possession 
 is no excuse for failure to enter. ^^* 
 
 2. To retain Possession. 
 
 There is the further obligation to retain and not abandon 
 possession unless there have been a lawful transfer to an assignee 
 or subtenant, or there be good legal ground — of which some 
 illustrations have been already given — for abandonment. The 
 landlord's remedy may be (1) to bring the lease to an end, in 
 spite of colourable possession intended to evade a prohibition 
 against assignation ; ^^^ or (2) to sue for damages, in which case 
 every direct ground of injury must be taken into account, such 
 as the loss done to the custom of an inn by its being shut against 
 customers for a considerable period ; ^^^ or (3) to demand resump- 
 tion of possession. This demand involves the corollary that the 
 possession it requires shall be honA fide, and subject to the rules 
 
 442) ; Hamilton v. Cunninghame, 1830, 
 8 S. 955. Cf . Addie v. Young, 1862, 24 D. 
 799 ; and Baxter v. Paterson, 1843, 5 D. 
 1074, oases in which interdict would un- 
 doubtedly have been competent. See 
 also cases of game, infra, chap, xviii. 
 
 ^ St. 2.9.31 ; Bankt. 2.9.21 ; Ersk. 
 2.6.39 ; B. Pr. 1222 ; L. Randifuird v. 
 Tenants, 1623, M. 15256 (action a few 
 weeks after term of entry). 
 
 210 Robertson u. Cockburn, 1875, 3 R. 
 21. 
 
 2" Mathieson v. Nicolson, 1819, 2 Mur. 
 141. 
 
 212 Bethune v. Morgan, 1874, 2 R. 186; 
 
 Scott's Exrs. V. Bethune, 1876, 3 R. 816; 
 see supra, p. 154. 
 
 213 Duncan „. M'Dougal, 1796, Hume 
 792. 
 
 2" Lisk V. Rob, 1674, 1 B.S. 715. 
 
 215 Durham v. Henderson, 1773, M. 
 15283; E. Dalhousie v. Wilson, 1802, 
 M. 15311 ; Monro v. Miller, 11th Dec. 
 1811, E.G. 384 ; Watson v. Douglas, 13th 
 Dec. 1811, F.C. 412; Young's Trs. v. 
 Anderson, 1809, Hume 843. 
 
 21^ Graham ■</. Stevenson, 1792, Hume 
 781 ; see the stricter rule in England 
 as to letting licenced houses, Woodfall, 
 670. 
 
RESIDENCE. 213 
 
 of good management, which will be examined in a later chapter, ^i'' 
 It may be added, however, in order to prevent a misunderstanding 
 of the import of the last-cited case, that where the subject let is 
 an ordinary shop, the landlord is entitled to have the tenant 
 ordained to place sufficient furniture in it to secure the hypothec; 
 to keep proper fires in it and air it so as to prevent damp ; but 
 not to open it and carry on business in it.^^^ A tenant who 
 has unlawfully abandoned the subjects let to him is not entitled 
 to reinstatement.^^' 
 
 As a general rule possession may be taken and retained by the Residence 
 tenant's servants, family, grieve, or other persons on his behalf ^ '?" ^ ® '"^• 
 without his own permanent or even occasional residence. Cases, 
 however, occur in which it is for the landlord's interest and it is 
 agreed that the tenant himself shall reside on the premises let. 
 And this obligation is frequently fortified by means of a conven- 
 tional irritancy in case of breach. Residence clauses are chiefly In farm leases, 
 to be found in agricultural leases, being a further security on the 
 lines of that delectus personce which is presumed to exist in such 
 leases. ^^^ The obligation runs in such terms as these, ' to 
 ' live locally with his family yearly ; ' ^^^ to ' occupy, cultivate, 
 ' and be resident upon the premises ; ' ^^^ to ' reside personally 
 ' with his family on the farm.' ^^* In an early case, the interest 
 of the landlord was said to lie in ' the not upholding of the houses 
 ' so well and the want of fulzie,' and the tenant was ordained to 
 reside and to pay such damages as might be proved to have 
 arisen from past non-residence.^^* In other cases the remedy 
 sought has been the irritancy of the lease, and this follows 
 whether there be or be not a conventional irritancy, the only 
 difference being that in the former case the irritancy cannot 
 be purged at the bar,^^^ while in the latter case the tenant's 
 right is forfeited only if he persists in breaking the condition. ^^'^ 
 A reasonable time will be allowed to a tenant succeeding to 
 a lease so conditioned to consider as to entering. ^^' It is no 
 
 ^'' Infra, chap. xvii. century for rebellion. 
 
 218 Whitelaw v. Fulton, 1871, 10 M. ^ Edmond v. Eeid, 1871, 9 M. 782. 
 
 27. ^* WaUace v. Turners, 1696, i B.S. 
 
 2i» Taylor v. MaxweU, 1728, M. 15310 ; 302. 
 
 Taylor v. Taylor, 1826, 4 S. 450, aff. 2 W. ^ See as to irritancies generally, infra, 
 
 and S. 101. chap. xx. ; Cameron, supra, 2^. 
 
 22» Supra, pp. 143, 157. ^^ Edmond, 223; Drummond, =21 : Stir- 
 
 221 Drummond v. M'Pherson, 1799, M. ling v. Miller, 29th June 1813, E.C. 416. 
 
 Appx. Tack, 6. 227 Stirling, supra, 228; a year allowed, 
 
 2^ Cameron v. Cameron, 18th Dec. but the annus deliberandi has now been 
 
 1810, F.C. 90 — a statutory requirement cut down, for other purposes, by a half, 
 
 relating to the estates forfeited in last 31 & 32 Vict. c. 101, sect. 61. 
 
214 tenant's bight and obligation to possess. 
 
 excuse that the non-residence arises from circumstances beyond 
 the tenant's control,^^^ such as fugitation or banishment, ^^^ or 
 public service furth of Scotland ;230 or that the tenant's wife 
 and family are resident ;^^^ or that he possesses through a 
 manager or subtenants ; ^^ or that a furnished house is to 
 be kept up on the farm, with a resident servant, and that the 
 tenant will reside for ten days in every two months.^^^ It will 
 be a question of circumstances in each case what amount of per- 
 sonal presence on the premises will satisfy the requirements of a 
 residence clause.^^* 
 
 3. N'ot to invert Possession. 
 Inversion. Ordinarily leases are granted with a view to a particular sort 
 
 of possession, and to that only — the lease of a farm for agriculture 
 or pasture ; of a garden for horticulture ; of a dwelling-house for 
 residence ; of a mill for manufacture ; of a shop for trading, and 
 so forth. If the tenant trespasses beyond the limits thus gene- 
 rally, or by special covenant more particularly, laid down for his 
 guidance, he is said to invert the possession. The term ' inver- 
 ' sion''^^^is, however, confined in practice to a course of conduct 
 on the tenant's part inconsistent with the objects of his lease, and 
 perhaps involving alterations on the premises let ; and is not 
 extended to isolated acts, such as (in the case of an agricultural 
 tenant for example) night-poaching, trouting, or illegal trapping. 
 The question in every case is as to the fair bond fide construction 
 of the contract between the landlord and the tenant, as gathered 
 from the words of the lease and the nature of the sort of occu- 
 pation contemplated when it was entered into, subject to such 
 alterations as have been tacitly or expressly imported into it 
 during its course. It is impossible to formulate any rule ; it is 
 only possible to indicate the class of cases which have arisen in 
 practice, and the mode in which they have been disposed of. 
 
 Thus an agricultural tenant is not entitled to set up an ale- 
 house on his farm,^^^ or to use a building on it as a posting 
 station,^^'' or to use the stables and offices (with or without alter- 
 ations) for the stated accommodation of stage-coach horses,^^^ 
 
 228 Ivory's Note to Erek. 2.6.44. Woodfall, p. 663. The covenant runs 
 
 223 Drummond, supra, 221. with the land. 
 
 22° Cameron, supra, 222 ; though the 235 Qr ' conversion,' or ' perversion.' 
 
 tenant was known to the lessor to be in See 23 D. 1240. 
 
 military service at the date of the lease. 236 jmji j_ Mitchell, 1787, M. 15254. 
 
 231 Drummond, supra, 221. 237 BaiUie v. Maokay, 1842, 4 D. 1520. 
 
 2S2 Cameron, supra, 222. 238 d_ Argyll v. M'Arthur, 1861, 23 D. 
 
 233 Bdmond, supra, 223. 1236. 
 
 ^ See the English cases cited in 
 
INVEBSION. 215 
 
 whether by doing so he injures the trade of a neighbouring inn 
 belonging to the same landlord or not ; ^^^ or to sublet land to a 
 railway company to be used as a siding for general traffic.^*" It 
 is not lawful to build an addition to a dwelling-house on a piece 
 of ground described in the lease as intended for a flower-plot ; ^" 
 or to set up a yarn mill in addition to a grist miU, since a 
 mill tenant may not either partially or totally change the nature 
 of the subject let, any more than an agricultural tenant can 
 partially or totally cover the lands with buildings, or an urban 
 lessee change the specification, nature, or description of the house 
 let to him.^*^ It is an illegal inversion to turn a market-garden 
 into a place of public amusement ; ^*^ and the same has been held 
 (though the point seems to admit of grave doubt) of the con- 
 version of a shop formerly occupied by a silk-mercer into a show- 
 room for the exhibition of wax figures and a ' monster.' ^** But 
 to let premises as a ' shop ' does not import that they are to be 
 exclusively used for the private sale of goods and that sales by 
 auction are necessarily prohibited. This rule was laid down in a 
 case where a great variety of businesses had been carried on in the 
 past history of the shop ; but it seems to be general.^^^ It seems 
 to be lawful for a surgeon and apothecary to convert a shop let to 
 him into a grocer's or huckster's shop.^^* Premises not included 
 in the subjects originally let, but awarded by arbiters as a 
 pertinent necessary for their contemplated use, cannot be diverted 
 from their use as pertinents only.^*' 
 
 The inversion is all the more objectionable if it involves Structural 
 structural alterations on the premises let.^*^ Thus, where subjects 
 let to persons described as provision merchants were altered by 
 the lessees so as to adapt them for the business of ham-curing, 
 by removing joisting and wainscot and building up a chimney, it 
 was decided that these were operations which could not be law- 
 fully undertaken without the landlord's consent.^*® A lease to an 
 
 ^' He did so in both of these cases, but ^* Leechman v. Sievewright, 1826, 4 S. 
 
 this interest is not necessary to give title 683 (N.E. 690). 
 
 to sue. 245 iieid v. Keith, 1868, 6 M. 768, rev. 
 
 ^ Mercer v. Esk VaUey Railway, 1867, 8 M (H.L.) 110. 
 
 5 M. 1C24 (interim interdict). Of. Leek ="« Gordon „. Cravrford, 1825, i S. 95 
 
 V. Merryflata Brick Co., 1868, 5 ScL.K. (N.E. 97), by sublease. The point vpas 
 
 619. not decided ; but the difference of occu- 
 
 ^' Inglis V. Balfour, 1778, M. Appx. pation does not seem vital. 
 
 Tack, p. 34 ; see Armstrong v. Bryceson, ^'' Walker, Grant & Co., u. Grant, 
 
 1807, Hume 837. 1838, 1 D. 38. 
 
 ^ Tord V. Hillocks, 1808, M. Appx. ^w j^^i^ „. Wilson, 1822, 1 S. 406 
 
 Tack, No. 17. (N.E. 380)— fire. 
 
 ^ Heriot's Hosp. v. Heriot's Gardener, ^4' Leek v. Fulton, 1864, 17 D. 408. 
 1751, Elch. Poet, illicit. No. 20. 
 
216 
 
 TENANTS EIGHT AND OBLIGATION TO POSSESS. 
 
 Special restric- 
 tions. 
 
 By assignees 
 and subten- 
 ants. 
 
 Obligation 
 passed from. 
 
 upholsterer, with power to erect buildings for the purposes of his 
 trade, included a house, a back-green, and a back-house described 
 as a tailor's workshop. The entrance to the back-green and 
 back-house was by a narrow passage which was also the access to 
 two dwelling-houses above the front house. It was held, looking 
 to the tenor of the contract and the nature of the access — which 
 had never been used for the passage of animals — that the use of 
 the back house as a stable was an inversion which the landlord 
 was entitled to put a stop to.^^" The inversion is aggravated if 
 it creates or threatens a nuisance. ^®^ 
 
 The lease may contain special restrictions with regard to the 
 use to which the tenant may put the sjibjects let. It will be 
 convenient, however, to postpone consideration of these restrictions 
 to a later chapter which deals with the tenant's management. ^^^ 
 
 What is unlawful for the lessee himself to do with his holding 
 is equally unlawful for any assignee or subtenant ; and an 
 assignation or sublease granted for a purpose which if carried out 
 would be an inversion of possession, is to that extent invalid. ^^^ 
 
 The landlord's right to complain of an inversion may be 
 extinguished by express renunciation, or by conduct clearly 
 inferring acquiescence or consent. Thus, where subjects let on 
 long lease had for a considerable part of its course been used as 
 a bleachfield, the landlord was held not entitled, on the pretext 
 that the lease had been granted for agricultural purposes, to 
 interdict the erection of buildings in which it was intended to 
 work up the by-products.^^* A mill, described as a paper-mill, 
 was, with the cognisance of the landlord, used by the tenant for 
 six years as an oil-miU. His assignee used it as a grist-mill for 
 about a year. The landlord, by his acquiescence, was held to 
 have lost right to have it restored to its original use ; ^^^ but 
 if the question had arisen, he would probably have been en- 
 titled to an alternative restriction to the original or the second 
 use, the acquiescence having gone no further. ^^^ Whether or not 
 the lessee of a rabbit warren may permit a railway to be con- 
 
 ^ Hood V. MiUer, 1855, 17 D. 411. 
 
 251 Mowbray v. Ewbank, 1833, 11 S. 
 714; Muir v. Wilson, supra, 2^; Skene v. 
 Maberly, 1820, 2 Mur. 352, 1 S. 369 
 (N.E. 347). Nuisance not made out in 
 D'Eresby 's Trs. v. Stratheam Hydropathic 
 Co., 1873, 1 K. 35 (irrigation with pure 
 water) ; infra, chap. xxv. 
 
 ^''^ Infra, chap. xvii. 
 
 ^* 1 B.C. 76 ; 2 B.C. 32 ; B. Pr. 1274 ; 
 Mora's Notes, 248 ; Ivory's Note to Ersk. 
 
 2.6.33 ; 1 Bell, Leases, 184 ; Anderson v. 
 Alexander, 10th July 1811, F.C. 327 ; 
 Leechman v. Sievewright, ^^ ; Gordon v. 
 Crawford, ^. 
 
 ^ Skene v. Maberleys, 1822, 1 S. 369 
 (N.E. 347). See issues there; M'F. 
 230 ; Ferguson v. Methven, 1857, 19 D. 
 794. 
 
 ^ Young & Co. ,;. Ramsay, 1824, 2 S. 
 793 (N.E. 655), aflt. 1 W. and S. 560. 
 
 ^^ See 1 W. and S. 565. 
 
RENUNCIATION OF OBLIGATION NOT TO INVERT. 217 
 
 structed and used across the warren without agreement with the 
 landlord,^*'^ the latter will be barred from objecting by acquiescence 
 for nearly twenty years.^*^ On the other hand, non-use of powers 
 fairly falling within the subjects let is to be regarded as res TnercB 
 facultatis, not as restricting the grant or as a measure of its 
 scope. Consequently, very ample powers over the water on an 
 estate were held to permit of the formation of a navigable canal 
 and towing-path where, for a long period, there had been only 
 a lade or goit.^^^ 
 
 ^^ Probably not ; supra, p. 215, and 2 476. 
 Hunter, 445. ^^ Ewan's Trg. „. Muirkiik Iron Co., 
 
 258 D. Portland v. Samson, 1843, 5 D. 1850, 12 D. 622. 
 
218 
 
 CHAPTER XI. 
 
 REPAIRS. 
 
 invectactiiiata By an easy transition from the law of possession under leases, we 
 on subjects let. pg^gg qjj ^q ^{^3^^ \axge part of the law of landlord and tenant which 
 is concerned with certain operations performed, or things situate, 
 on the subjects let, and the rights and obligations connected 
 therewith. It is difiScult, if not impossible, to draw logical 
 distinctions in this matter, and in practice the whole of the 
 questions which occupy this chapter and the two following 
 chapters are often inextricably intermingled ; but it will be 
 convenient, as far as possible, to adhere to the nomenclature which 
 distinguishes between repairs, improvements, and fixtures. By 
 Repairs. repairs are meant such operations on the subject let as are 
 
 necessary to put and maintain it in a condition fit for the 
 purpose for which it was let. Everything over and above repair 
 Improve- is melioration. Improvements are, in the stricter sense which is 
 ments. \iQre adopted, such meliorations, being operations on, or additions 
 
 to, the subject let as are not recoverable or removeable in specie. 
 Fixtures. Fixtures, on the other hand, are here taken to mean such addi- 
 tions to, or erections on, the premises as are removeable in specie. 
 The order of exposition follows the order of time, for questions 
 as to repairs may arise at the inception of a lease or during any 
 part of its currency, or at the ish; questions as to improvements 
 (except in so far as involved in the settlement of the terms of 
 the contract) can only appear during the course or at the 
 termination of the lease ; and the sole question (as between 
 landlord and tenant) relating to fixtures can only arise at the 
 outgoing, — viz., whether the tenant is entitled to remove them 
 landlord's fur- when he leaves. The law of 'landlord's furnishings,' that is, 
 nis mgs. ^£ appurtenances furnished by the landlord for the use of the 
 
 tenant, without being annexed to the premises, will be con- 
 veniently considered in connection with fixtures. While ' tenant's 
 
OF URBAN TENEMENTS. 219 
 
 ' plenisTiing ' may fitly be left over to the chapters which deal with Tenant's plen- 
 rent and the security for payment of rent.-^ '^ °' 
 
 As has been already indicated,^ a lease implies a warrandice ■Warrandice of 
 on the landlord's part that its subject is reasonably fit for the n^s?"^ 
 purpose for which it is let.^ The rule is only of value where the 
 subject let, or part of it, consists of artificial structures, such as 
 buildings, fences, and the like. The purpose of letting and 
 taking a farm is cultivation, and every farm is capable of being 
 cultivated. The purpose of letting an untried mineral field is to 
 allow the tenant to experiment on the existence of the mineral 
 and win it when found, and any piece of land is patient of such 
 experiment. The lessee of a salmon fishing takes a similar risk. 
 But if a house is let for a dwelling, or a mill, or a shop, it must 
 be be fit to live, work, or trade in ; and if fences are let as part 
 of a farm, they must be real barriers. If the immediately pre- 
 ceding possessor left them in a condition not corresponding to 
 the implied warranty, they must be repaired by the landlord. 
 
 I. In Urban Leases. 
 
 The rule, as applied to urban tenements, is that they shall be Subjects to be 
 put into habitable and tenantable condition by the landlord at antable°oon'cii- 
 entry.* This common law obligation is not coafined as in Eng- *'<>"• 
 land to furnished houses.^ So that the 12th section of the 
 Housing of the Working Classes Act, 1885,® was not needed in 
 Scotland, however salutary a reform it may have operated in 
 England. It enacts that — 
 
 In any contract made after the passing of this Act for letting for 
 habitation by persons of the working classes a house, or part of a house, 
 there shall be implied a condition that the house is, at the commence- 
 ment of the holding, in all respects reasonably fit for human habitation. 
 In this section the expression ' letting for habitation by persons of the 
 ' working classes,' means the letting for habitation of a house or part 
 of a house at a rent not exceeding ... in Scotland . . . four pounds. 
 
 The question whether a house is tenantable and habitable is How asoer- 
 one of fact to be determined on a proof, or by remit to a man of 
 skill ; and the determination will greatly depend on the class of 
 house let and the degree to which it has the advantage of modern 
 
 1 Infra, chaps, xiv., xvi. Cash, 27 J. of Jurisp. 611 ; Marianski v. 
 
 2 Supra, p. 195. Jackson, 1872, 9 Sc.L.R. 480. 
 
 8 Ersk. 2.6.39; B.Pr. 1253; cf. 19 &20 = Wilson ti. Finoh-Hatton, 2 Exch. Div. 
 
 Vict. 0. 60, sect. 5. 336, and cases there. 
 
 ^ Bankt. 1.20.15; 2.9.20; Ersk. 2.6.43; « 48 & 49 Vict. c. 72, passed in 
 
 as to tenantable house, see Brodie ■». August 1835. 
 
220 REPAIRS. 
 
 improvements, such as gas, water, and drainage, with their 
 
 attendaDt drawbacks in the necessity of constant supervision and 
 
 upholding. 
 
 And so up- The landlord of an urban tenement is further bound, unless it 
 
 ^^^^- be otherwise stipulated, to uphold it in a tenantable and habitable 
 
 condition during the course of the lease.^ When this obligation 
 
 is express, it is usually and sufficiently conceived in such terms 
 
 as these : ' To keep the house wind and water tight and in 
 
 ' proper tenantable condition during the whole currency of this 
 
 Exceptions. ' lease. '^ There are two exceptions. The landlord is not liable 
 
 for deterioration or destruction which results from the negligence 
 
 or fault of the tenant himself,^ nor for the consequences of c^am- 
 
 Tenant's reme- nuTTi fatale or pure accident. If the landlord declines to make 
 
 .lies: to repair. ^-^^ repairs, the tenant may take them in hand and deduct from 
 
 his rent what was bond fide disbursed in simply repairing,^" or he 
 
 may, for greater security, before commencing operations, apply to 
 
 the Dean of Guild or Sheriff, whose warrant, proceeding on the 
 
 estimate of tradesmen, will be evidence both of the necessity and 
 
 of the expense of repairing. ^-^ If injury is caused to the tenant 
 
 through want of repair, it is important to observe whether it 
 
 existed ab initio or only supervened after entry, for the issues 
 
 appropriate to the two cases are different, and cannot be 
 
 combined. -^^ 
 
 The result of a breach by the landlord of either obligation 
 may be to make him liable for damages ; or to entitle the tenant 
 to refuse or renounce possession, or to retain rent. 
 Claim (1) Tenants have been found entitled to damages where, on 
 
 account of dilapidation in the roof of house, which the landlord 
 had refused to repair, the fall of a neighbouring ' tower of 
 ' Babel ' on it converted it into a ruin ;^^ where a lower flat was 
 injured for months through the unroofing of the tenement by the 
 proprietor of the uppermost flat (for the purpose of heightening 
 the house) with the lessor's consent ; ^* and where on account of 
 
 'Bankt. 1.20.15; 2.9.20; Ersk. 2.6.43. 10122; Hodge v. Brown, 1664, M. 
 
 See as to keeping a house dry by 13400 (profitable expenses), 
 
 firing, Whitelaw v. Fulton, 1871, 10 M. " Ersk. 2.6.43. See case in which 
 
 27 ; and as to latent defect, Harbison v. the true owners were held responsible for 
 
 Kobb, Guthrie's Dec. 287. repairs, though the contract was made 
 
 ^ 1 Jut. Styles (5th ed.) 684. not with them, but with a person whom 
 
 ^ Sutherland v. Eobertson, 1736, M. they held out as such — Dunn v. Living- 
 
 13979; Hardie i-. Black, 1768, M. ston, 1828, 7 S. 218. 
 
 10133; M'Lellanu Ker,1797,M. 10134. ^^ Qoskirk v. Edin. Rail. Station 
 
 i» Ersk. 2,6.43. See Baird v. Inglis, Access Co., 1863, 2 M. 383. 
 
 1671, 2 B.S. 562 ; Hamilton, 1667, M. " HamUton, supra, ». 
 
 10121 ; Deans v. Aberorombie, 1681, M. " Deans v. Abercrombie, supra, ". 
 
tenant's remedies in urban leases. 221 
 
 the faulty construction of the roof an unusual quantity of snow 
 accumulated, and the water, when thaw came, soaked through 
 the woodwork under the slates and injured goods in the shop 
 below. ^^ In the last case it made no difference that the snow- 
 storm was exceptionally severe ; that the tenant was not at home 
 to prevent or minimise the injury; and that similar, though not 
 so much, injury had been done on a former occasion without 
 giving rise to complaint. 
 
 (2) In certain circumstances a tenant may refuse to take Or abandon, 
 possession and throw up the lease ;^^ or, having taken it, may 
 suspend possession for a time ; or definitively renounce posses- 
 sion, and with it the lease itself. Thus, where on entry to a 
 dwelling-house the tenant found it to be overrun to a great 
 extent and in every part with cockroaches ; to be infested with 
 
 bugs ; to have an offensive smell ; and one of the bedrooms to 
 be too damp to be safely used, the Court held that the condition 
 of the house was such as to render a tenant's life ' substantially 
 ' uncomfortable ; ' and, since the nuisance was not easily or readily 
 removeable, and there was, after fair notice, no offer on the land- 
 lord's part to remove it, that the tenant was not bound by the 
 lease." The tenant of a house, the lease of which expired at 
 Whitsunday, finding that the drains were radically deficient, and 
 that fever had in consequence attacked his children, removed in 
 the end of the preceding February. The landlord had the drains 
 put in order, but the operation took two months. It was held 
 that the tenant was not bound to return into possession there- 
 after, and that he was relieved from liability for any part of that 
 half-year's rent through the landlord's failure to supply him with 
 a habitable house for so considerable a period. Shortly before 
 removing, and when in ignorance of the defects in the drainage, 
 he had offered to take the house from Whitsunday for two years 
 more. The Court was clearly of opinion (though the point did 
 not require to be decided) that he was not bound to enter into 
 possession under this new agreement. ^^ 
 
 (3) The law of retention of rent deserves on account of its Retention of 
 complexity and will receive separate treatment.^® '^™*' 
 
 The mode in which these common law rights and obligations Altered by 
 
 stipulation. 
 
 " Eeid V. Balrd, 1876, 4 R. 234. 1881, 8 K. 459 (the rubric is inaccurate, 
 
 ^^ The case is u, fortiori of Drum- since the point about resumption of 
 
 mond v. Hunter, 1869, 7 M. 347, supra, possession under the old lease was in- 
 
 p. 208. volved in the question of liability for 
 
 1' Kippen v. Oppenheim, 1847, 10 D. rent, and was decided as above). 
 
 242. '' Infra, chap. xiv. 
 
 '' Scot. Heritable Sec. Co. v. Granger, 
 
222 
 
 REPAIRS. 
 
 are varied by express stipulation usually consists in throwing the 
 burden of upholding the subjects in tenan table and habitable 
 condition on the tenant, thus putting him under the same 
 obligations as an agricultural tenant.^" The burden of keeping 
 the houses wind and water tight is sometimes retained by the 
 landlord, ^^ who will, unless it be otherwise stipulated, be liable 
 also for the extraordinary repairs necessitated by lapse of time, 
 natural decay, or mere tear and wear.^^ 
 
 Lessor to put 
 into tenantable 
 repair. 
 
 Lessee to 
 uphold. 
 
 II. In Agricultural Leases. 
 
 The lessor is under an implied obligation to put the bouses, 
 offices, and fences on a farm at the lessee's entry into the con- 
 dition which is known as ' tenantable repair,' ^^ that is, such a 
 condition as will render them (or at least the houses and offices, 
 for fences may require renewal before the close of an ordinary 
 agricultural lease) capable of lasting, with ordinary care, to the 
 ish; 2* and also to furnish such buildings as will enable the tenant 
 to cultivate the land according to the mode contemplated in the 
 lease.^* Two cases, in which dicta to the contrary are to be 
 found, were decided on specialties : in the earlier, on matter 
 of procedure and on some evidence of contrary stipulation ; ^^ in 
 the later, on the ground that the subject was a small tenement 
 let for one year by a liferenter.^^ But the rule does not apply 
 to a lease of the universitas of an estate already mainly under 
 tenantry. ^^ 
 
 The correlative obligation of the lessee at common law is to 
 maintain and uphold the houses and fences (and gates as part 
 thereof) during the lease, and leave them at his removal in the same 
 tenantable state as he received them.^' The landlord has a pre- 
 ferable claim for ascertained damages in case of breach.^" He is 
 
 ^ Infra on this page ; Napier v. Ferrier, 
 1847, 9 D. 1354; Ewing v. Chalmers, 
 1835, 14 S. 69 (damages for taking down 
 shelving). 
 
 21 1 Jur. Styles, 687. 
 
 22 As to manufacturing utensils, see 
 Sellers v. Brown, 1776, Hailes 131. 
 
 23Bankt. 1.20.10, 2.11.21; Ersk. 
 2.6.39; B. Pr. 1253, and see 141; 
 Buchanan v. Stark, 1776, 5 B.S. 515. 
 
 2* See obs. on effect of custom of dis- 
 trict in judging of this, per L. P. in Moss- 
 man V. Brocket, 1810, Hume 850. 
 
 2= Barclay v. Neilson, 1878, 5 R. 909. 
 See as to express obligation to furnish 
 stoba and nails, Burrell v. Geblie, 1868, 
 
 6 SC.L.R. 187. 
 
 28 Haining v. Grierson, 1807, Hume 829. 
 
 2'Harrold i;. Pollexfen, 1844, 6 D. 
 1103. 
 
 28 Belschies v. Caddell, 1776, 5 B.S. 
 516, Hailes 688 (the judgment proceeded 
 on want of express stipulation, but that 
 was only needed on account of the peculi- 
 arity of the subject let). 
 
 2» Bankt. : Ersk., supra, 23 ; B. Pr. 
 1254 ; Whites v. Houston, 1707, M, 
 15258 ; see Campbell v. Brown, 1776, 
 5 B.S. 518. 
 
 3»Munro v. Eraser, 1858, 21 D. 103 
 (by retention, or if » bankruptcy trustee 
 takes up the lease). 
 
IN AGEICULTUEAL LEASES. 223 
 
 not entitled to increase the burden of up-keep by erecting addi- 
 tional subdivision fences during the lease; but it is different with 
 march-fences, which either neighbour may at any time compel 
 the other to concur in erecting — a fact of which tenants taking 
 leases of open land must be held to be cognizant.^^ The tenant's Exceptions, 
 liability is subject to two exceptions. It does not extend to loss 
 caused by damnum fatale, such as an extraordinary hurricane,^^ 
 or by pure accident, such as an accidental fire. Nor does it 
 extend to the natural decay which results from the lapse of time 
 (tear and wear) or essential defect of structure, necessitating such 
 thorough repair as implies extraordinary expenditure.^^ This 
 obligation to uphold is a qualified assurance quite different from, 
 and superadded to, the ordinary obligation to indemnify for 
 specific negligence. 
 
 The rights and obligations of parties with regard to repairs clauses as to 
 are usually regulated by special clauses,^* which may either alter "^ 
 or leave unchanged these common law rules ; and there is a 
 distinct advantage in either case in providing for a reference 
 of disputes to arbiters or valuators. Sometimes on the lessee's Valuation. 
 entry an inspection is made by persons appointed by him and 
 the lessor, and, the state of the subjects having been thus ascer- 
 tained, and the necessary repairs executed, the lessee agrees 
 to take the subjects over as in tenantable condition. Or a 
 valuation is taken : an inventory,^^ called the landlord's in- 
 ventory, is framed with a note of values ; and at the ish a 
 similar process takes place, and the difference of value in case 
 of deterioration is paid by the lessee.^^ Or, more commonly, the 
 landlord assigns to the incoming tenant his right to demand 
 of the outgoing tenant that the premises shall be delivered in 
 
 '1 Dudgeon ». Howden, 23rd Nov. 1813, Taylor v. Brown, 1800, Hume 308 (ferry 
 
 F.C. 458; Acts, 1661, c. 41 ; 1685, c. 39; boats). See the doctrine of scdvd rei suh- 
 
 1669,0.17. Mack. obs. 0(2 !o(!.; KanMne, sfan<i<i in liferents, Rankine, Landowner- 
 
 Landownerahip, 510. ship, 619. 
 
 ^ York Buildings ». Adams, 1741, M. ^ See a clause construed to apply both 
 
 10127 i More's Notes, 252 ; Clark v. to houses and fences, Graham v. Gordon, 
 
 Baird, 1741, M. 10128 (in both cases 1841, 3 D. 479, var. 2 Rob. Ap. 251 ; as 
 
 there was a special repair clause equiva- to embankment against a stream, Scott 
 
 lent to the common law obligation. In v. Tait, 1826, 4 Mur. 57. 
 the latter, the odd limitation in the inter- ^ Stamped in accordance with 33 & 
 
 looutor of the tenant's liability to such 34 Vict. c. 97, sect. 38, and schedule, voce 
 
 loss as an ordinary storm would have Appraisement, 
 caused deserves reconsideration). '^ See Sinclair v. Manson, 1821, 1 Sh. 
 
 33 1 Bell, Leases, 238, 321, 341 ; B. Pr. Ap. 1 ; Jolly v. Graham, 1827, 6 S. 236, 
 
 1254 ; Mossman v. Brocket, 1810, Hume 7 S. 824, rev. 5 W. and S. 280 ; Macra 
 
 850 ; Napier v. Ferrier, 1847, 9 D. 1354 v. Mackenzie, 1828, 6 S. 935. 
 (house with special clause); and see 
 
224 
 
 REPAIRS. 
 
 repairs. 
 
 tenantable repair, and the tenants submit the question of the 
 amount of repair which is necessary to referees. If the subjects 
 are taken over as in tenantable order, and the erections, when 
 accepted as in the condition they were in at entry, were very old 
 and in bad order, the rule which relieves the tenant of any duty 
 to reconstruct what has gone to decay by tear and wear will be 
 enforced, though he came under a special obligation to uphold 
 and leave tenantable. ^'^ 
 Improvements Unless there be a valuation (as in the second of the above 
 "°^^?^* ^''™'* modes), pointing to a comparison of the values of buildings and 
 fences in lump at entry and ish, as the criterion of obligation,^^ 
 the tenant at ish cannot free himself from responsibility for 
 disrepair of some of these erections by proving a greater amount 
 of melioration of others, since this melioration (according to the 
 rule which will be examined in next chapter) is regarded as 
 having been made for his own accommodation only.'^ 
 
 The tenant is not entitled to use the timber on the farm 
 gratuitously in repairing, unless he have special authority.^" 
 
 The right of the landlord or incoming tenant will not be 
 readily held to be renounced through delay in making a claim. *i 
 But in one case a tenant lost all right to damages for breach of 
 the obligation of the lessor (an heir of entail) to put the build- 
 ings in repair, first, in a question with the succeeding heir, by 
 renouncing the lease ' and all claim, interest, or advantage 
 ' therein ;' and secondly, in a question with the lessor's repre- 
 sentatives, by possessing imder the lease for eight years without 
 complaint.*^ 
 
 If the tenant is allowed a certain sum for repairs, all he has to 
 show is that the premises are in good repair ; unless there be 
 a special obligation to produce vouchers.*^ 
 
 Questions have naturally arisen as to what is to be regarded as 
 repair and what is to be viewed as melioration, where the tenant 
 has a conventional right to recompense for the latter, but not for 
 the former. Thus it was held by the House of Lords, that where 
 a tenant was bound to uphold the houses and leave them in 
 tenantable repair, and had power to build an additional steading, 
 
 Use of timber. 
 
 Mtyra. 
 
 Sum allowed 
 for repairs. 
 
 Bepair and 
 melioration, 
 
 ^ Mossman v. Brocket, supra, ^. 
 
 ^ M'Donald xi. Robertson's Trs., 1830, 
 8 S. 974. See scope of obligation In E. 
 Mansfield v. Caird, 1884, 21 Sc.L.R. 720. 
 
 39 Whites V. Houston, 1707, M. 15268. 
 
 ^o L. Touch V. Ferguson, 1664, M. 
 15252. 
 
 *' Adarason v. Marshall, 1676, M. 
 
 11630 (nine months after removing not 
 enough); Dickson v. Graham, 1877, 4 R. 
 717 (3J months, but an ex parte report 
 was communicated to tenant two days 
 before ish) ; Wight v. E. Hopetoun, 1858, 
 20 D. 965 (at each renewal). 
 
 *^ Waterson v. Stewart, 1881, 9 R. 155. 
 
 ** Dalziel v. Lockhart, 1765, M. 15260. 
 
DISTINGUISHED FROM IMPROVEMENTS. 225 
 
 with a claim for recompense at the ish, he was only entitled, if 
 he pulled down the old houses, to so much of the value of the 
 new steading put in their place as ought to be considered as an 
 additional steading; and further, that his claim was for the value to 
 the landlord or incoming tenant at the ish (in quantum lucrati 
 sint), not for the amount of his outlay.** There is, in practice, 
 little difficulty in distinguishing between those operations which 
 are necessary for preservation and for repairing the effects of 
 negligence or fault; improvements proper, which being useful 
 add to the value of the premises, into whose hands soever they 
 may come ; and ornamental additions and operations as to which 
 a tenant, even though he has right to recompense for improve- 
 ments, is not entitled to claim.*^ Thus a landlord bound to 
 repair is not obliged to furnish an improved apparatus used in 
 manufacture ;*^ nor is a tenant, who is bound to keep the dykes 
 in a proper fencible condition, obliged to make new enclosures.*' 
 An obligation incurred expressly by the landlord to put the whole 
 steadings into a good and sufficient tenantable condition refers 
 solely to the buildings actually in existence at the date, and does 
 not infer an obligation to erect new buildings, however necessary 
 for the tenant's accommodation.*^ 
 
 In this matter of repair, a distinction is drawn between Repair of 
 improvements made by the tenant which he is not allowed to ^d'fixtures. 
 remove (such as houses), and fixtures put by him on the land 
 (such as wire fences, palings, and the like). The former he can- 
 not dilapidate by carrying off the materials,** but, on the other 
 hand, he does not require to leave them in good repair ; as to the 
 latter he must either remove them or leave them in good repair.^" 
 
 III. In Mining Leases, &c. 
 
 In mining leases it is usual to bind the tenants to fence the Mines. 
 part of the surface occupied by them — the roads, railways, tram- 
 ways, and pit-mouths — and to uphold the fences so made, and to 
 take the risk of accidents ;°^ to enclose all pits when abandoned, 
 
 ** SiDclair v. Mansnn, 1821, 1 Sh. Ap. Hunter, 210 ; see Douglas v. Jones, 1833, 
 
 1 ; as to the latter point, see Frier r. E. 11 S. 741 (operations of judicial manager). 
 
 Haddington, 1871, 10 M. 118. ^ Murray v. Bisset, 1805, Hume 818. 
 
 ^ The impensce necessarice, utiles, volup- ™ Andrew v. Morison, 19th Jan. 1811, 
 
 tuarias of the Romans. See authorities F.C. 152; Oliphant u Thomson, 8th Feb. 
 
 collected in Rankine, Landownership, 1822, F.C., 1 S. 307 (N.E. 284); D. 
 
 p. 79, note. Buccleuoh v. Tod's Trs., 1871, 9 M. 1014 ; 
 
 « Dick V. Robertson, 1776, 5 W.S. 515. see B. Pr. 1254 ; More's Notes, 252. 
 
 ^' Macmaster v. Cameron, 1812, Hume '^ Such as in M'Feat v. Rankin's Trs., 
 
 858. 1879, 6 R. 1043 ; M'Lean -a. Warnock, 
 
 « Ewing -0. Crawford, 1844, ii.r. 2 1883, 10 R. 1052. 
 
 P 
 
226 
 
 REPAIRS. 
 
 Quarries. 
 
 MUls. 
 
 Shootings 
 fishings. 
 
 and 
 
 Inspection. 
 
 Transmission 
 of liability. 
 
 and, if required, to fill up abandoned pits and ingoing eyes ; to 
 repair existing fences injured by tbem ; to restore and soil over 
 the surface when no longer required by them and at the ish ; 
 to leave accommodation works in good order -.^^ to pay for surface 
 damages; and to accept buildings as in repair, and leave them 
 so. 55 Lessees of quarries are taken bound to keep the fences 
 free from rubbish ; to deposit the mould removed by them in 
 places pointed out by the landlord ; to attend to his directions 
 as to the disposal of tirring and rubbish ; and to fence and keep 
 fenced the workings.^* Leases of mills contain obligations on the 
 tenant to uphold the buildings, machinery, weirs, and water- 
 courses, except against the effects of ordinary tear and wear.**' 
 The clauses as to repair in shooting and fishing leases refer 
 only to the buildings and (in the latter case) to the boats. ^^ 
 
 Remedies. 
 
 In addition to the ordinary remedies by action^^ and diligence, 
 it is a general rule, applicable to all cases of repairs where there 
 is no express provision for arbitration, that either party is entitled, 
 on summary application to the sheriff,^^ to obtain a judicial 
 inspection of the subjects in immediate contemplation of a 
 removing.^^ If before the stipulated ish a dispute arises as to 
 whether the tenant is entitled to a premature removing, this 
 mode of obtaining and preserving evidence of the state of matters 
 when the subjects are abandoned is none the less competent ; *" 
 and the same doctrine would be held to apply to any prema- 
 ture dissolution of the contract — either under express agreement, 
 or according to predetermined breaks. The right to obtain an 
 inspection and further remedy is not barred by receipt of rent or 
 by allowing the tenant to retain possession on tacit relocation. ^^ 
 
 Questions have arisen as to the incidence of liability, where 
 there has been by succession, assignation, diligence, or purchase 
 a change either of landlord or of tenant. Where the change takes 
 place by assignation or purchase, much will depend on the terms 
 expressly stipulated or plainly implied in the transaction. But 
 
 =2 1 Jurid. Styles, 617, 659. 
 
 63 Ibid. 631, 647. 
 
 ^ Ibid. 680. 
 
 55 Ibid. 689, 693. 
 
 58 Ibid. 698, 701, 706 ; see Taylor v. 
 Brown, 1800, Hume 308 (ferry-boats). 
 
 ^ See issaes in actions of damages, 
 Graham -u. Gordon, 1841, 3 D. 479, rev. 
 2 Rob. Ap. 251 ; Budge v. Balfour, 1852, 
 14 D. 943. 
 
 58 Lees' Sheriff Court Styles, 183 ; 
 A. S., 10th July 1839, sect. 88 ; 16 & 17 
 Vict. c. 80, sect. 10. 
 
 5" Gordon's Tre. v. Melrose, 1878, 8 M. 
 906 ; Hall v. M'Gill, 1847, 9 D. 1557. 
 
 *" Lees V. Marr Type-Founding Co., 
 1877, 4 R. 1088. 
 
 «' Hall V. M'Gill, supra, =9. As to 
 retentio rei by tenant, see p. 233. 
 
OBLIGATION RUNS WITH THE LANDS. 227 
 
 the rule is that the obligation to repair or to keep in repair, obligation 
 whether imposed by the common law or by compact, runs with landsT' ^ 
 the lands, and is enforceable by and against the landlord and 
 tenant for the time being ; but that there may be a right of relief 
 on the ground of unfulfilled obligation against the cedent in an 
 assignation, or against the vendor in a sale, or against the personal 
 representatives of a predecessor.^^ Where the obligation rests on 
 common law, there is no authority and no principle for admitting 
 a right of relief, since the new-comer takes the subject as it stands. ^^ 
 Even if there be a special obligation, in fortification or displace- 
 ment of the common law rules, a right of relief will be somewhat 
 strictly construed. Thus, a lease contained an obligation on the 
 landlord to put the buildings and fences in good condition. 
 He sold the land before the obligation was fulfilled, giving to the 
 purchaser at the date of entry a letter binding himself to execute 
 all repairs he was bound to execute and to relieve the purchaser. 
 The latter understood this letter as an obligation to satisfy the 
 tenants. The seller paid a sum of money to the tenants, and 
 got a discharge of his obligation to them. In an action at the 
 instance of the purchaser to compel the seller to put the subjects 
 in repair, it was held that the tenants were the sole creditors in 
 the obligation contained in the lease ; that the letter was only 
 an obligation of relief of the tenants' claims against the purchaser 
 under the lease, and not a new and substantive obligation under- 
 taken to him ; and that the seller was free of all liability.^* But 
 while the obligation to repair is thus transmitted with the 
 premises, liability for damages caused through disrepair during 
 the tenure of one landlord will remain with him and his repre- 
 sentatives, and not pass to a purchaser or to a successor who does 
 not represent him.^° 
 
 ^ See the claim admitted, intra fines 10 R. 959. 
 
 inventarii, by an executor, Eenton v. ^ Ban- v. Cochrane, 1878, 5 K. 877. 
 
 Renton, 1851, 14 D. 35 ; and see cases ® On the principle of Macdonald v. 
 
 of improvements in next chapter. Johnstone, supra, ^■'. 
 
 ^ See Macdonald v. Johnstone, 1883, 
 
228 
 
 CHAPTER XII. 
 
 IMPROVEMENTS AND THE AGRICULTURAL HOLDINGS ACT. 
 
 It has been stated that the word ' improvements ' is here used 
 as signifying meliorations beyond mere repairs for preservation ; ^ 
 and only such meliorations as (in contradistinction to fixtures) 
 are not removeable in specie.^ It is unnecessary in this chapter 
 to keep up the distinction between urban and rural tenements, 
 for the same rules apply to both. But the cases which are 
 referred to in illustration are almost wholly drawn from leases of 
 rural subjects. 
 Laid on land- The expense of improvements ought properly to come out of 
 lord. ^;jjg landlord's pocket in short and ordinary leases ; and it is a 
 
 disadvantage to cultivation if the tenant's power to deal with the 
 land is curtailed by outlays which cripple his credit and are very 
 naturally laid out with more regard to his temporary accommoda- 
 tion than to the good of the premises. It has, therefore, been a 
 usual stipulation that the landlord should lay out a certain sum 
 or sums up to a certain limit in improvements, the tenant paying 
 a certain rate of interest, commonly 5 per cent., and arrange- 
 ments being made for the carriages, for the conduct and supervi- 
 sion of the operation, for vouchers and so forth. ^ The interest 
 may be so calculated as to include a sum for repayment of capital 
 during the lease ; but if the landlord borrows the money from 
 the Enclosure Commissioners* or improvement companies'' at 
 this cumulo rate and takes his tenant bound to pay ' interest at 
 ' the rate exacted by ' these parties, this will be read as meaning 
 the interest charged irrespective of repayment by instalments ; 
 and the usage of the district will not be allowed to interfere 
 
 1 Supra, pp. 218, 224. (27 & 28 Viot. c. 114) ; 30 & 31 Vict. c. 
 
 2 See next chapter. 101, sect. 115 ; 31 & 32 Viot. t 89 
 ■i 1 Jur. Styles, 577, 593, 600 ; 1 B.C. sect. 6. 
 
 65, 73. » 27 & 28 Viot. c. 114, sects. 53, 54. 
 
 ^ Improvement of Land Act, 1864 
 
LIABILITY FOR IMPROVEMENTS. 229 
 
 with this interpretation.® Right to demand payment of the 
 interest is not barred by the mere fact that it was not ex- 
 acted till after the ish.'^ The interest or rent-charge payment 
 is added to the rent proper in fixing the annual value in the 
 Valuation Roll.^ Sometimes the improvements are made without 
 any claim for interest. These obligations can only be proved in 
 the same way as the constitution of the lease itself.^ 
 
 Another mode of arranging for the making of improvements Sum allowed 
 is by taking the tenant bound to do a definite piece of work, 
 and allowing him a sum for the purpose in lieu of all claim for 
 compensation. The obligation will then be fairly construed in 
 accordance with the intention of parties as shown by its terms. 
 Thus an obhgation to build a thrashing-mill was held to extend 
 to supplying it with machinery, which notwithstanding an alleged 
 local custom to the contrary the tenant could not remove at 
 outgoing. 1" And if machinery is to be ' put in ' a mill by the 
 tenant, that means erected, not merely placed within it.^^ Pay- 
 ment of the stipulated sum though postponed till the ish is 
 exigible even if the improvements, which were to be made in return 
 for it and were to be given over at the ish, are destroyed by a 
 damnum fatale or pure accident ;^^ and even if the lease be 
 brought to a premature end by the bankruptcy or renunciation 
 of the tenant. ^^ The right to payment is carried as a ' debt ' 
 by the tenant's general disposition and settlement, though the 
 time of payment (the ish) be long. subsequent to his death. ^* 
 
 It frequently happens, however, that improvements are exe- On tenant. 
 cuted by, and at the charges of, the tenant, and the questions 
 of main practical importance in this department have been 
 whether he has in consequence any claim to recompense ; and, Compensation, 
 if so, against whom. Now the cardinal rule is that improve- 
 ments made by a tenant at his own hand are at common law 
 
 « Sinclair v. M'Beath, 1868, 7 M. 273 ii. 238. 
 
 {£i, 10s., not £6, 14s. Id.). " Readdie v. Mailler, 1841, 3 D. 488. 
 
 ' Brisbane's Trs. •<;. Lead, 1828, 7 S. ^^ jy Hamilton's Trs. v. Fleming, 1870, 
 
 69. 9 M. 329 (fire, supra, p. 206). 
 
 8 Lockhart ; Home, 1858, 24 D. 1451, " Pendreigh's Tr. v. Dewar, 1871, 9 
 
 and see Rankine, Landownership, 204. M. 1037 ; Walker's Trs. v. Manson, 1886, 
 
 ' Paterson v. E. Fife, 1865, 3 M. 423. 13 R. 1198. In the former case discount 
 
 See a case where the landlord's liability at 5 per cent, was allowed, in respect of 
 
 was implied from the association of immediate payment; in the latter refused. 
 
 ' additions ' with ' repairs ; ' Barclay v. Apart from specialties, the refusal seems 
 
 Neilson, 1878, 5 R. 909. justified by the fact that the landlord gets 
 
 ^^ Campbell v. Howden, 1825, 3 S. 569 the benefit of the improvements prema- 
 
 (N.E. 391). Mr. Hunter expresses doubts turely. 
 
 of the soundness of this decision — with " Munro v. Munro, 1825, 4 S. 328 
 
 what appears to be insufficient reason, (N.E. 332). 
 
230 IMPROVEMENTS AND THE AGKICULTUEAL HOLDINGS ACT. 
 
 presumed to have been undertaken for his own benefit alone 
 and give rise to no claim for recompense against any one.^^ This 
 rule suffers no exception, even when through the premature 
 (even innocent) termination of the lease — as for example where 
 an heir cannot or will not take it up on the death of his ancestor 
 or the tenant becomes bankrupt — the anticipated advantage of 
 the improvements to the tenant have not been fully reaped. ^^ It 
 may be regarded as very doubtful whether local usage will be 
 admitted to add a claim for compensation as a term or condition 
 of the lease/'' at least if the lease be in writing.^^ So that such 
 a claim can only arise out of express stipulation or by statute. 
 It is proposed to examine, first, the nature and effect of express 
 clauses securing to tenants compensation for improvements made 
 by them, and, secondly, the leading statutory authority for com- 
 pensation — the Agricultural Holdings (Scotland) Act, 1883, 
 which is mainly devoted to that subject.^^ 
 
 I. Stipulations foe Tenants' Impeovement Compensation. 
 
 1. The Obligation and Right. 
 
 Although these stipulations are usually contained in agricul- 
 tural leases and the law has been completely altered by the 
 Agricultural Holdings Act,^" it would be wrong to pass them 
 over entirely, since that Act only applies to a certain class of 
 subjects, and even, as to these subjects, respects in certain cases 
 custom and agreements in leases current at 1st January 1884 
 and ' fair and reasonable ' agreements in new tacks ; ^^ but the 
 subject will be discussed with all possible brevity. 
 Scope of com- The improvements for which compensation can be demanded 
 mprovements. ^^^ o^^ly such as Were really in contemplation of the parties in 
 
 ^5 Bankt. 2.9.68; Brsk. 2.6.39.43; clearly if no ish is mentioned — Thomson 
 
 3.1.H ; Eames, Equity, 125 ; B. Pr. v. Fowler, 1859, 21 D. 453. 
 1265 ; Hodge v. Brown, 1664, M. 2651, i'' There has been some vacillation in 
 
 13400 ; Officer u. Nioolson, 1807, Hume the decisions and dicta — M'Intosh v. 
 
 827. See Whites v. Houston, 1707, M. Ogilvy's Trs., 1806, Hume 822 ; Officer 
 
 15258 ; Mackay v. Brodie, 1801, Hume v. Nioolson, 1807, Hume 827 ; GammeU 
 
 549 ; Murray v. Biaset, 1805, Hume 818. v. Andersons, 1836, 15 S. 233 ; Gordon 
 
 The case of Baird v. IngUs, 1671, 2 B.S. v. Thomson, 1831, 9 S. 735 ; and see 
 
 562, is not law, whatever may have been Mossman v. Brocket, 1810, Hume 850. 
 the claimant's title. is BeU v. Lament, 14th June 1814, 
 
 IS Scott's Exrs. 0. Hepburn, 1876, 3 R. F.C. 645, and the very special cases of 
 
 816, disapproving 1 B.C. 82, B. Pr. the Fort Augustus Leases, Hume 546 
 
 1255, 1 Bell, Leases, 198, 2 Hunter seq. 
 
 208 ; and distinguishing Morton v. Mont- i^ The Crofters Holdings Act is dealt 
 
 gomerie, 1822, 1 S. 344 (N.E. 322). The with in chap, xxiii. 
 rule was followed in Walker !;. Macknight, ^ Infra, p. 241. 
 
 1886, 13 E. 599, and obtains still more ^ 46 & 47 Viot. c. 62 sect. 5. 
 
SCOPE OF EIGHT TO COMPENSATION. 231 
 
 making the stipulation.^^ Thus while a majority of the Court 
 were of opinion that a landlord, bound to pay for improvements, 
 was liable for the whole value of a new house, not unsuitable to 
 the size of the farm, but larger than the old house which had 
 become ruinous, a minority took the ' very rational view ' ^^ that 
 suitability for the farm was an irrelevant consideration and that 
 the tenant, who had proceeded in the teeth of protests, was only 
 entitled to recompense as if he had put up a new house of the 
 same size as the old one.^* A long lease contained a clause 
 binding the tenant to uphold the buildings and giving him right 
 to remuneration at the ish for any excess of value over their 
 worth at entry, as estimated by valuators. The tenant when the 
 old buildings became ruinous erected new ones of greater size 
 and some of them different in character. The House of Lords, 
 differing from the Court below, held him entitled to recompense 
 only ' in so far as the houses and biggings on the farm at the date 
 ' of the tack were improved or others suitable to the farm were 
 ' built in lieu of the same, and better than the same, at the expira- 
 ' tion of the tack, and that he was not entitled to meliorations for 
 ' houses and biggings built of new except as aforesaid.' ^^ It was 
 subsequently determined that buildings which came in lieu of 
 similar old houses did not require to be erected on the same 
 site.^^ The tenant will not be entitled to compensation if he 
 executes greater improvements than were originally intended 
 unless he can show something more precise and obligatory than 
 that the landlord held out expectations of some allowance for the 
 work.^^ A landlord is not entitled to interdict his tenant from 
 pulling down a building erected by the latter, where the purpose 
 is to erect a better one in its place.^* 
 
 It is consistent with these decisions that the landlord may step Landlord's 
 in to prevent operations undertaken by way of improvements, or 
 to obtain a restoration of the premises to their former condition, 
 provided he can show an interest,^^ such as a greater risk of fire,^" 
 or an obstruction to the light reaching the windows of a neigh- 
 
 22 See express provision made (and ^6 1334^ 12 S. 789, aff. 2 S. and M'L. 
 neglected) as to materials of house to be 24 (they were near it). 
 
 built and compensated for at ish— Skinner ^7 Grant ti. M'Leod, 1856, 19 D. 127. 
 
 V. L. Saltoun, 1886, 13 R. 823. 28 jopp ^. Scorgie, 1870, 7 Sc.L.R. 
 
 23 Per L. Chan, in Joliie, -', 5 W. and 39.8. 
 
 S. 297. '^ See also supra, Inversion of Posses- 
 
 2* Ducat V. Cs. Aboyne, 1803, M. sion, p. 214. 
 
 15264. 30 Mujj. ^. Wilson, 1822, 1 S. 406 (N.E. 
 
 23 JoUie V. Graham, 1827, 6 S. 236, 7 S. 380). 
 824, var. 5 W. and S. 280. 
 
232 IMPROVEMENTS AND THE AGRICULTURAL HOLDINGS ACT. 
 
 bouring house belonging to him.^i But if during the currency 
 of the lease there be no present interest to interfere, the landlord 
 will be compelled to await its expiry before obtaining redress in 
 the way of restoration or damages, especially if the improvements 
 do not materially alter the condition or character of the pre- 
 mises. ^^ And the Court will not grant a general interdict against 
 ' any alterations.' ^' 
 
 Claim It may be shown by evidence from facts and circumstances 
 
 depirtedfrom. ^^^^ ^-^^ tenant has passed from his claim, as by accepting a feu 
 of the lands,^* or renouncing the lease without reservation.^* So, 
 also, if there be an arbitration or inspection clause, it will in 
 every case be a question of circumstances, whether it is merely 
 directory and executory or a condition precedent to payment of 
 compensation, the neglect of which is fatal to the tenant's claim. 
 
 Inspection. Thus where an inspection was stipulated for immediately on the 
 finishing of each inclosure, and the claim was made after such an 
 interval that no one knew the dates required, the tenant lost his 
 remedy.^^ And where a tenant entitled to recompense for 
 improvements from the incoming tenant took no steps to have 
 them ascertained by valuators (as stipulated in his lease), when 
 his son took a new lease of the lands, it was held that no claim 
 survived at the end of the new lease for improvements made 
 under the old.^'^ But a claim made timeously at the expiry of 
 a lease is not barred by the fact that no valuation had, as stipu- 
 lated for therein, been made at the commencement, and proof 
 will be allowed.^^ 
 
 Measure. The measure of the compensation is, as has been already 
 
 pointed out, the value of the improvements to the landlord or the 
 incoming tenant, not the amount of the outlay or the value 
 
 Mode of asoer- for removal. ^^ The mode of ascertainment and enforcement is 
 usually by arbitration *" — which is the exclusive method, if pre- 
 determined or ex post facto agreed on.*i If the arbiters differ, 
 one of them fixing a value on the improvements and the other 
 desiring evidence from men of skill, the Court of Session or the 
 Sheriff Court will order a devolution to the oversman, though he 
 
 31 Ross V. Moncrieff, 1859, 22 D. 328 ^ Grant v. Baird, 1810, Hume 855. 
 (especially looking to the description of ^ Maora v. Mackenzie, 1828, 6 S. 935. 
 the premises in the lease). 38 Eraser v. Fraaer, 1835, 13 S. 988. 
 
 32 Stirling v. Strang, 1857, 19 D. 568. =9 Sinclair v. Manaon, 1821, 1 S. Ap. 1 ; 
 ^' Ibid. Frier v. E. Haddington, 1871, 10 M. 118. 
 *• Selkirk Mags. v. Clapperton, 1830, « See Gammell v. Andersons, 1836, 15 
 
 9 S. 9. S. 233 (lying inventory). 
 
 35 Jenkin v. Younger, 1825, 3 S. 639 « Eraser v. Maitland, 1824, 2 S Ap 
 
 (N.E. 447). 37. 
 
ASCERTAINMENT OF COMPENSATION. 
 
 233 
 
 has already expressed an opinion on the matter.*^ Failing 
 arbitration, a summary application may be made for inspection *^ 
 unless there have been excessive delay ; ** or an ordinary action 
 may be brought ; *^ or, vrhere the amount of claim is ascertained 
 in the lease, diligence may be taken on it ; but retention of the 
 premises is incompetent.*^ The rules regarding retention of rent 
 will be discussed hereafter.*^ The evidence which is alone com- 
 petent to prove the existence of an obligation of recompense is 
 the same as is required for the constitution of a lease.*^ The 
 value of the improvements may, of course, be proved prout de 
 jure. Interest is allowed from the expiry of the lease, unless 
 otherwise stipulated.*' If the lease is reduced the tenant has no 
 claim for meliorations, where they were not made in hand fide 
 reliance on the validity of the right.^" 
 
 2. Parties in Right of, or Liable for, Improvements. 
 
 The law relating to the powers of certain proprietors who have 
 only a fiduciary or limited right of ownership — such as judicial 
 factors of various kinds,^^ liferenters,*^ and heirs in possession 
 under strict entails''^ — to make improvements and charge the 
 estate and subsequent owners does not fall within the scope of 
 this treatise. What follows in this section deals solely with 
 
 « Sinclair v. Fraser, 1884, 11 E. 1139 
 (L. Young thought the second arbiter 
 right, and that it was incompetent for the 
 Sheriff Court to order devolution). 
 
 * See supra, p. 226, and cases there ; 
 Fraser v. Mackay, 1833, 11 S. 391. 
 
 " Irvine v. Scott, 1856, 18 D. 1090 
 and Dove Wilson, Sheriff Court Practice, 
 p. 341 ; Baird v. Mount, 1874, 1 K.. 1119 
 (miscropping). 
 
 ^ Proof in the ordinary way. If on 
 issues, see form, Macf. 222, 238. 
 
 * Bankt. 2.9.68 ; B. Pr. 1256 ; Camp- 
 bell V. GemmiU, 1790, Hume 779 ; M'Neil 
 V. Sinclair, 1807, Hume 834 ; Turner v. 
 Turner, 1811, Hume 554 ; Malcolm v. 
 Henderson, 1815, ibid. The case of 
 Baird v. Inglis, 1671, 2 B.S. 562, was 
 very special. 
 
 *' Infra, chap. xiii. 
 
 « Barclays. E. Fife, 1829, 7 S. 708 (no 
 rei interventus) ; cf. Paterson v. E. Fife, 
 1865, 3 M. 423 (supra, p. 112 ; damages 
 for failure by landlord to make certain 
 improvements) ; Barclay v. Neilson, 1878, 
 5 R. 909. 
 
 •» Barclay v. E. Fife, 1829, 7 S. 708; 
 JoUie V. Graham, 1829, 7 S. 824, 
 
 unaffected by the reversal, 5 W. and S. 
 280. 
 
 =» Innes v. D. Gordon, 1827, 6 S. 279, 
 aff. 4 W. and S. 305 ; D. Gordon's Trs. 
 ■u. Innes, 1832, 10 S. 616 ; see Ly. Card- 
 ross ■,. Hamilton, 1711, M. 108, 1747 
 (where there was no obligation to com- 
 pensate). 
 
 51 See Thoms, Jud. Factors, 84, 213, 216, 
 234, 241, and the provision of the Pupils 
 Protection Act therein referred to. 
 
 °- Improvement of Land Act, 27 & 28 
 Vict. o. 114, sects. 8, 49 seq., 78 seq., and 
 cases collected in Banklne, Landowner- 
 ship, 967. 
 
 53 1 B.C. 71 ; B. Pr. 1256, 1766 ; Sandf. 
 Entails, 327 ; Montgomery Act, 10 Geo. 
 III. c. 51, sects. 9-31 ; Rutherfurd Act, 
 11 & 12 Vict. ,;. 36, sects. 13-20 ; 37 & 
 38 Vict. c. 61, sects. 3, 7, 8, 9, 11, 14 ; 
 45 & 46 Vict. c. 53, sects. 4, 7, 23 ; anno- 
 tated in Rankine, Landownership ; also 
 Improvement of Land Act, supra, ^^, sect. 
 62. The tenant paying the annual rent- 
 charge under this Act is entitled to de- 
 duct the amount from the rent unless 
 otherwise arranged, sect. 67. 
 
234 IMPROVEMENTS AND THE AGEICULTURAL HOLDINGS ACT. 
 
 obligations incurred between landlord and tenant — on the land- 
 lord's part, to improve the subjects let, or to allow the tenant 
 a sum towards improving, or to reimburse him for improvements 
 made by him ; on the tenant's part, to make certain improve- 
 ments with or without recompense. There can be no question 
 that if the obligation is good at all,«* it must be good against 
 the obligant himself. The only difficulty arises when there has 
 been a transfer either of the ownership or of the tenancy, 
 A. Landlord's Obligation. 
 Transmission It seems to be established that on the death of the lessor 
 sfntathres'"'^' leaving an unfulfilled obligation contained in the lease or other- 
 wise instructed by competent proof,*^ the tenant is entitled to 
 have recourse for implement — when the obligation becomes 
 exigible at however remote a period — to any person who repre- 
 sents the obligor.*^ He may make his choice among the repre- 
 sentatives, and the defender is not entitled to object that all 
 parties have not been called ; *' and none of them are entitled, 
 in anticipation of the expiry of the lease and of the obligation 
 then becoming due, to a declarator against the tenant that 
 another representative is alone liable.^* Notwithstanding a 
 contrary opinion expressed by a great lawyer,^^ it would pro- 
 bably now be held that the primary or ultimate liability would 
 rest on the heir who succeeds to the lands, representing the 
 lessor, and that the personal representatives would have a right 
 of relief against him in the event of their being compelled to 
 implement the obligation.^" The reasons for that view are, that 
 the claim is accessory to the real right of the lessee ; that the 
 benefit of the improvements enures to the heir who succeeds; 
 that, as will be more clearly shown when treating of singular 
 successors, the obligation is a condition of the lease, and runs 
 with the lands, being ' a matter properly connected with the 
 ' lands, and forming a natural object of the contract of lease.' ^^ 
 
 ^ Thus a subtenant has no direct came alone liable, the personal repre- 
 
 claim against the landlord — Wilson v. sentatires being discharged). 
 
 Campbell, 1839, 2 D. 232. ^ L. Braxfield in Taylor v. Bethune, 
 
 *' e.g., Held to be within the bounds 1791, Bell, Oct. Ca. 214. 
 
 of a submission, Pitoaim v. Drummond, «» Opinions in Walker i;. Masson, supm, 
 
 1822, 1 S. 431 (N.E. 401), aff. 1 W. and «8 . contrast Robson v. M'Nish, 1861, 
 
 S. 194. 23 D. 429. See the question discussed in 
 
 5S Walker v. Masson, infra, ^^. 2 M'Laren, Wills, 482 ; B. Pr. 1935, 
 
 s' Cumine D. Bayley, 1856, 19 D. 97 ; 1936 ; 1 Bell, Convg. 237, 337. 
 
 British Linen Co. t>. L. Reay, 1850, 12 D. ^^ Arg. in Fraser v. Maitland, 1824, 
 
 949. 2 Sh. Ap. 37, 42 ; contrast an obligation 
 
 ^ Walker v. Masson, 1857, 19 D. 1099 not inter naturaiia of the lease, Water- 
 
 (diss. L. CurriehiU, who thought that the son v. Stewart, 1881, 9 R. 155. 
 heir on succeeding to the lands let be- 
 
LIABILITY FOE COMPENSATION UNDER ENTAIL. 235 
 
 If a lessee entitled to compensation at ish for improvements 
 purchases the farm before his lease is out, it would probably be 
 now held, contrary to an old decision,^'' that his claim was lost 
 by confusion, and that it was considered in fixing the price.^^ 
 At all events it seems to be clear that the heir is primarily, if 
 not solely, liable for improvements made by the tenant under 
 stipulation of recompense at ish but not till after the heir's 
 succession to the estate, for he and the tenant have the whole 
 benefit.^* 
 
 Down to the year 1878 the rule of liability was in strong Under entails, 
 contrast to what has just been stated, where the heir succeeding 
 did not represent his ancestor and held the lands under a strict 
 entail. His succession was freed from liability for expenditure 
 on improvements in two different ways. Except by virtue of 
 statute ^^ the estate and his interest in it could not be charged 
 with outlays on improvements made by his ancestor himself 
 And (what is more to the purpose here) he was not liable to a 
 tenant for any obligation of his ancestor unfulfilled at the date 
 of his own succession,^^ either to pay for meliorations executed 
 by the tenant,^ or to execute them for the tenant,*^ or, it is 
 submitted, to pay a sum towards the expense of improvements ; 
 unless he homologated or adopted the obligation,*^ or it rested 
 not on agreement but on custom,™ or, perhaps, if the improve- 
 ments were made after the ancestor's death,^^ or the obligation 
 was an entailer's debt.^^ 
 
 ^^ Macdoual v. Maodoual, 1760, M. 5 W. and S. 69 ; of. Campbell v. Dundas, 
 
 15259. 20th Feb. 1812, F.C. 515 (price of renun- 
 
 *^ See Selkirk Mags. v. Clapperton, ciation of lease) ; ITraaer v. Maokay, 
 
 1830, 9 S. 9 ; L. Blantyre v. Dunn, 1858, 1833, 11 S. 391 (part entailed, part not) ; 
 
 20 D. 1188. Innes v. D. Gordon, 1831, 9 S. 632 {res 
 
 ^* See Koss v. Hawkins, 1848, 10 D. judicata). 
 1288 (faulty rubric); and obs. of L. ^ Mackenzie v. Mackenzie, 1849, 11 
 
 Gifford in Moncreiff v. Skene, infra, ^ ; D. 596 ; Runcie v. Lumaden's Eeps., 
 
 1 W. and S. 226, discussed in Mackenzie 1857, 19 D. 965. 
 V. Mackenzie, 1849, 11 D. 596. "» JoUie -v. Graham, 1824, 2 S. 730 
 
 ^ The statutes are enumerated sapra, (N.E. 611), 7 S. 824, aff. on this point, 
 
 °'. 5 W. and S. 280 ; but a mere reference 
 
 ^^ 1 B.C. 74; B. Pr. 1256, 1766; to the claim and acceptance of an assig- 
 
 Sandf. Ent. 327 ; Kankine, Lando?7ner- nation which expressly carried it did not 
 
 ship, 586. prove adoption, Barclay v. E. Fife, 1829, 
 
 «'' DUlon V. CampbeU, 1780, M. 15432; 7 S. 708. 
 Webster v. Earquhar, 1791, M. 15439, '» iSemftie—Learmonth V.Sinclair's Trs., 
 
 Bell, Oct. Ca. 207 ; Taylor v. Bethune, 1878, 5 R. 548. 
 
 1791, BeD, Oct. Ca. 214 ; Moncreiff </. '^ See note "^ supra, and Barnfield 
 
 Skene, 1823, 2 S. 113 (N.E. 104), aff. 1 v. Stewart, 1872, Guthrie's Dec. 283. 
 W. and S. 217 ; Eraser v. Eraser, 1825, ^' Eletcher r. Fletcher's Trs., 1826, 4 
 
 4 S. 73 (N.E. 76), 5 S. 722, 8 S. 409, aff. S. 788 (N.E. 795). 
 
236 IMPROVEMENTS AND THE AGRICULTURAL HOLDINGS ACT. 
 
 D. of Argyll's But this Unfortunate state of the law was completely altered 
 ■^'"' by the Entail Amendment Act, 1878, known as the Duke of 
 
 Argyll's Act,'^^ which by its first section enacts as follows : — 
 
 All obligations imdertaken, whether prior or subsequent to the passing 
 of this Act, by an institute or heir in possession of an entailed estate in 
 Scotland, in any lease granted by him as proprietor of such estate, or in 
 any agreement with reference to such lease, for the execution by the 
 proprietor, or with reference to the execution by the tenant of any im- 
 provements of the description contained in the third section of the Entail 
 Amendment (Scotland) Act, 1875, shall, in case of his death after the 
 passing of this Act, and before complete fulfilment of such obligations, 
 and to the extent to which if he had himself made and paid for said 
 improvements, and had survived tiU payment is actually made, he would 
 have been entitled to charge them upon the estate (if the estate had been 
 an entailed estate under the said Act) devolve upon the heirs succeeding 
 to the estate after him, who shall in their order he bound to relieve his 
 executors or other personal representatives of such obHgations so far as 
 unfulfilled, and to repay to such executors or other personal representatives 
 any sums of money which they may be called upon to pay and may have 
 paid in virtue of such obligations ; provided that this enactment shall not 
 apply to any case in which the granter of the obUgation has in express 
 terms, either in the obligation itself or in any separate writing, declared 
 his intention to impose the obligation upon his executors to the relief of 
 the heirs of entail. 
 
 Statutory im- Heirs of entail are thus put as nearly as the genius of entail 
 provements. ^^^^ ^^jjj allow in the position of heirs who represent their an- 
 cestor. The improvements enumerated in the recited Act of 
 1875 include nearly every conceivable permanent improvement.'^^ 
 Areaicondi- It has long been settled that a landlord's obligation to his 
 tenant to improve, or allow a sum towards improvements, or 
 to recompense for improvements, runs with the lands (or more 
 correctly with the reversion) or is a real quality or condition, in 
 the sense that it transmits against singular successors in the lands 
 without special transfer ; ''•' provided it be a term of the lease 
 itself or be imported into it by some custom of the district or 
 
 '" 41 & 42 Vict. u. 28. inns, shooting - lodges, engine - houses, 
 
 !■* 37 & 38 Vict. 0. 61, sect. 3. It will jetties, 
 be enough in order to show the scope of '"> Arbuthnot v. Golquhoun, 1772, M. 
 the section to give the leading words of 10424, 15220 ; Eraser v. Maitland, 
 the subsections— the other words being 1824, 2 Sh. Ap. 37 ; Stewart o. M'Ra, 
 ejusdem generis: — Draining, embanking, 1834, 13 S. 4. The old case Rae v. Fin- 
 enclosing, reclamation, making roads, layson, 1680, M. 10211, was decided 
 trenching, clearing, planting, erecting, when, and on the ra«io that, tacks of burgh 
 improving or adding to mansion-house, tenements were unusual, 1 B.C. 74 ; 
 farm-houses, cottages, factnrs' houses, B. Pr. 12.56 ; More's Notes, 253. 
 
 tion, 
 
OBLIGATION TO COMPENSATE, A REAL CONDITION. 237 
 
 barony^® not inconsistent with the lease,^' and by a subsequent 
 agreement not merely latent; ^^ whether the improvements were 
 executed before or after'''^ the singular successor's entry. If made 
 after that date, the tenant cannot retain in security or for pay- 
 ment any rent due by him to the lessor.^" If made before that 
 date, both the singular successor and the lessor and his repre- 
 sentatives are liable to the tenant, but on the singular successor 
 lies the primary or ultimate liability, enforceable by an action 
 of relief ^^ A special clause burdening a purchaser with meliora- 
 tions due under current leases includes those due under a lease 
 terminating at the Whitsunday of his entry and the separation 
 of the crop.^^ Neither the tenant nor the contractor who does 
 the work has a claim for more than the obligation, if explicit, 
 warrants, though more is spent, and the landlord was represented 
 at the adjustment of the plans.^ 
 
 B. Tenant's Obligation. 
 
 This obligation lies on the lessee and his representatives ** (the 
 heir succeeding to the lease being liable 'primo loco), ^^ till 
 it is implemented or transmitted along with the other obligations 
 of the lease to an assignee.*^ An obligation immediately or 
 in the future prestable by the lessee is transmitted to a pur- 
 chaser at his entry to the lands. ^^ But of a continuing obliga- 
 tion (such as to lay on so much lime every year during the lease), 
 only that part which effeirs to the period subsequent to the 
 purchaser's entry is enforceable by him, unless his right is ex- 
 tended by a special assignation.^^ 
 
 II. Improvements, as affected by the Agricultural 
 Holdings (Scotland) Act, 1883. 
 
 This extremely important statute,*^ which passed at the same 
 
 's M'Intosh V. Ogilvie's Trs., 1806, '^ Arbnthnot v. Colquhoun, supra, ^^. 
 
 Hume 822 ; Officer v. Nicolson, 1807, 82 Stewart v. E. Dunmore's Tra., 1837, 
 
 Hume 827 ; Gammell ». Andersons, 15 S. 1059. 
 
 1836, 15 S. 233 ; Bell v. Lament, 14th 83 TurnbuU v. M'Dowall, 1812, Hume 
 
 June 1814, F.C. 645 ; and Fort Augustus 858. 
 
 Cases, Hume 546 aeq. See these cases 84 q„ jj,g principle of Bethune v. Mor- 
 
 referred to swpra, p. 230. gan, 1874, 2 R. 186. 
 
 " Gordon o. Thomson, 1831, 9 S. 735 ; 85 gge 1 M'Laren, WiUs, 482. 
 
 see Gordon v. Robertson, 1826, 2 W. and 86 ggg gupra, p. 178. As to sublessees, 
 
 S. 115 ; and Alexander n. Gillon, 1847, see supra, p. 180. 
 9 D. 524. ^ Hall v. M'Gill, 1847, 9 D. 1557 (the 
 
 '8 Bruce v. M'Leod, 1822, 1 Sh. Ap. rule did not need the specialty of tacit 
 
 213 ; Turner v. Nicolson, 1836, 13 S. 633. relocation on the same terms. 
 
 ™ Morrison v. PatuUo, 1787, M. 10425 ; 88 Hamilton v. Fleming, 1793, Hume 
 
 1 B.C. 74 ; Brodie's Stair, 371. 787. 
 
 80 Ibid. 89 46 & 47 Vict. c. 62. 
 
238 IMPEOVEMENTS AND THE AGRICULTURAL HOLDINGS ACT. 
 
 time as a similar English Act.^" is chiefly occupied with com- 
 pensation for tenant's improvements, and has, within its scope, 
 wrought a revolution in the law. The Act has received little 
 authoritative interpretation ; nor, looking to the comprehensive- 
 ness of the provision barring appeal from the sheriff's decision 
 regarding awards (sect. 20), is it likely that many cases under 
 the Act will reach the Court of Session. It has, therefore, been 
 regarded as expedient to print the Statute in the Appendix in an 
 unannotated form ; to incorporate a copious index in the general 
 index at the close of this volume ; and to attempt in this place 
 merely an analysis of the Act, containing only such criticisms or 
 suggestions towards an interpretation as seem to be absolutely 
 necessary. *i Useful collections of forms are contained in both of 
 the monographs cited below ; and the latter of the two embraces 
 much interesting matter in regard to the period of exhaustion of 
 certain fertilisers. It is thought to be inexpedient to overload 
 this volume with either of these aids ; since the forms are in 
 every case obvious or at least simple, and since there is the 
 greatest possible diversity of opinion in regard to exhaustion, and 
 so much depends on the nature of the soil.^^ 
 Purpose of the The Statute passed on 25th August 1883 and came into force 
 ■*■"'• on 1st January 1884 (the commencement of the Act, sect. 34). 
 
 The known, though in the Act itself undeclared, purpose of the 
 legislature was to be fair to tenants, and to increase and keep at 
 a high level the fertility and productiveness of the land. The 
 mischief sought to be remedied was that a tenant in an agri- 
 cultural lease, knowing that he had at common law no security 
 for his improvements, and having been unable to obtain any 
 security for them in his lease, took all he could out of the land in 
 the last few years of his lease, and let it down to such an extent 
 
 * The differences between the two Acts '^ The legislature ventured on no rules 
 
 are numerous. of exhaustion in either of the Acts of 
 
 '^ An able and acute annotation, along 1883 ; and the Duke of Richmond's per- 
 
 with a short analysis, a guide to the missive Act (38 & 39 Vict. c. 92, sects, 
 
 requirements of the Act, and a good set 5, 6), which was repealed by the English 
 
 of forms has been published by Mr. C. Act above and never applied to Scotland, 
 
 N. Johnstone, advocate. Mr. David only distinguished improvements in a 
 
 PhUip, S.S.C., prints the Act with notes, shorthand and inadequate way into those 
 
 and — what is less useful and may mislead exhausting in twenty years (draining and 
 
 — extracts from the debates during the other material works), seven years (lim- 
 
 passage of the Bill through Parliament. ing and the like), and two years (pur. 
 
 There are many English treatises, such chased manure, feeding stuffs). Forms 
 
 as Lely and Pearce-Edgcumbe (2nd ed.) ; of leases and estate regulations, drawn in 
 
 WiUis-Bund (3rd ed.) ; Brooke-Little; contemplation of the Act, are to be found 
 
 Jeudwine ; Hutchins ; but there is little in the Appendix hereto, No. xiii. 
 judicial comment. 
 
AGEICULTURAL HOLDINGS ACT : SCOPE. 239 
 
 that his successor could not get it in heart again for several years 
 after his entry, so that, during only about one-half of the 
 currency of a nineteen years' lease, was the land in its normal 
 state ; and that all this could be done without such transgression 
 of the rules of good husbandry, as could be checked by the land- 
 lord or lead to a penalty being incurred. The remedy adopted 
 in the Act was in effect to enforce payment in the way of compen- 
 sation at outgoing for what the tenant had done beyond ordinary 
 husbandry, in certain specified ways, with the result of adding 
 to the value of the holding. The other and minor provisions of 
 the Act are noticed elsewhere.^^ It is proposed to explain, — 
 first, the general scope of the Act in regard to — (1) the sub- 
 jects to which it applies ; (2) the persons it affects ; and (3) the 
 rights it interferes with : and, secondly, the provisions with regard 
 to compensation for improvements. 
 
 1. Subjects of the Act. 
 
 The subjects to which the Act applies are holdings {i.e., pieces Subjects of the 
 of land held by a tenant, sect. 42), (a) wholly agricultural ; or (6) 
 wholly pastoral ; or (c) in part agricultural and as to the residue 
 pastoral ;*•* or (d) in whole or in part cultivated as a market- 
 garden ; provided that they be not let to the tenant during his 
 continuance in any office, appointment, or employment of the land- 
 lord (sect. 34), and provided that they be held under a lease (i.e., 
 a letting of or agreement for the letting land) for a term of years, 
 or for lives, or for lives and years, or from year to year (sect. 42). 
 
 2. Persons affected. 
 
 The persons affected are landlords and tenants. A land- Persons 
 lord is a person — the word includes a body of persons and * ®° ^ ■ 
 a corporation — for the time being entitled to receive the rents 
 and profits of or to take possession of any holding (sect. 42). 
 A lessee is therefore a landlord under this Act with reference to 
 his sublessee. ^^ He may be either an absolute owner — i.e., 
 capable of disposing of the fee-simple, or dominium utile of the 
 whole interest of or in land, though the land or his interest there- 
 in be burdened, charged, or encumbered (sect. 42), or he may not 
 be an absolute owner. In the latter case he has the powers of an 
 absolute owner in giving consents, making arrangements, and doing 
 and having done to him any acts in relation to improvements in 
 
 ^ Bequest of lease, supra, p. 150 ; fix- '■' If subtenancies were more frequent 
 
 tures, infra, chap. xiii. ; notice of ter- in agricultural holdings, many puzzling 
 
 mination, chap. xxi. ; irritancies, chap. xx. questions might arise under sects. 4 and 
 
 ^ Not a hotel with 28 acres appur- the procedure clauses. Special provision 
 
 tenant, Mackintosh v. L. Lovat, 1886,24 is made for charging the intermediate lease 
 
 Sc.L.K. 202. with improvement debt (sect. 24, infra). 
 
fered with. 
 
 240 IMPROVEMENTS AND THE AGRICULTURAL HOLDINGS ACT. 
 
 respect of which compensation is payable under the Act (sect. 
 33). Crown lands are, for the purposes of the Act, administered 
 by the Commissioners of Woods and Forests or other proper 
 officer, or by a special representative of Her Majesty appointed in 
 writing under the sign manual. A provision is made for pay- 
 ment of compensation out of the Land Revenues of the Crown 
 (sect. Sl).^** Parish ministers cannot exercise their powers as 
 landlords without the previous approval in writing of their 
 presbytery. Trustees for ecclesiastical, educational, or charitable 
 purposes must first obtain the approval of a Secretary of State 
 (sect. 32).^'' 'Tenant' means the holder of land under a lease 
 (sect. 42). 'Landlord' or 'tenant' includes the executors,'^ 
 administrators, assignees, legatee, disponee, or next - of - kin, 
 husband, guardian, curator bonis, or trustees in bankruptcy of a 
 ' landlord ' or ' tenant' (sect. 42) ; and these designations (landlord 
 and tenant) continue to apply to the parties until the conclusion of 
 proceedings taken under the Act in respect of compensation for 
 improvements (ibid.). 
 
 3. Rights interfered with. 
 Rights inter- The modc in which the Act interferes with freedom of 
 contract and existing rights is set forth in sects. 40, 38, and 36. 
 There is a general saving of rights, ' except as in this Act 
 ' expressed,' so as not to take aw^ay, abridge, or prejudicially aifect 
 any power, right, or remedy exerciseable under Act, law, or 
 custom (sect. 40). A tenant shall not be entitled to claim 
 compensation by custom, or otherwise than in manner authorised 
 by this Act, in respect of any improvement for which he is 
 entitled to compensation under this Act ; but where he is not so 
 entitled he may recover compensation under any agreement or 
 custom in the same manner as if the Act had not passed (sect. 
 38) — i.e., where the agreement or custom goes beyond the scope 
 of the Act. Any contract or agreement made by a tenant, by 
 virtue of which he is deprived of his right to claim compensation 
 under this Act in respect of any improvement (except an agree- 
 ment providing for such compensation as is by this Act permitted 
 to be substituted for compensation under this Act), shall, so far 
 as it deprives him of such right, be void (sect. 36). The view 
 taken by annotators^^ of the English statute, that an agreement 
 
 ^ 29 & 30 Vict. c. 62. the English Act— hence the blunder. 
 
 ^ This Act is not scheduled in the ^ Woodfall, p. 778 ; Lely and Pearoe- 
 
 Seoretary for Scotland Act, 1885 (48 & 49 Edgcumbe, pp. 35, 133 ; Little, 140 ; eon- 
 
 Vict. c. 61). tra Johnstone, opud sect. 3 ; Jeudwine, 42. 
 
 "8 Not their heir ! The words are It is the old difficulty about rent, elusory 
 
 quoted from the definition of 'tenant' in rent, and no rent, supra, pp. 101, 129. 
 
SCHEDULED IMPROVEMENTS. 241 
 
 not to make any improvements, or dispensing with compensation 
 altogether could not be effectually substituted, seems to be 
 justified by the terms of this section. These two last sections 
 contain the only provisions which compel a resort to the Act. 
 Consequently, in all leases entered into subsequently to the 
 passing of the Act, parties were and are at liberty ab initio to 
 oust its operation in any particular, with this sole proviso, that 
 in regard to compensation the only mode of contracting out of the 
 Act is to agree on a substituted compensation such as the Act 
 contemplates. On the other hand, leases entered into before the 
 passing of the Act are necessarily affected by it, and it can only 
 be ousted by agreement between the parties made in full con- 
 templation of their novel rights and liabilities. 
 
 4. Compensation for lynprovements under the Act. 
 
 It is the wise policy of the Act to confine the new statutory 
 right to compensation to certain specified classes of improvements, 
 instead of starting with a comparison of the value of a farm at 
 entry and ish, and then attempting to discriminate between that 
 part of any increment for which the tenant and that part for 
 which the landlord is entitled to take credit. It may be doubted 
 whether this policy is made any clearer by the proviso in the 
 leading section of the Act that the tenant is not entitled to 
 compensation for any improvement which 'is justly due to the 
 ' inherent capabilities of the soil 'i™ (sect. 1). The improvements Scheduled 
 to which the statute applies are contained in a schedule, and are •™P™"^^"'™ ''• 
 divided into three parts. Part I. includes improvements which 
 agree in this that they are of a permanent character, altering the 
 character of the holding, making structural, or at least functional. Landlords' im- 
 changes on the surface, and that they ought naturally to be P"^"^*^""^" ^■ 
 executed by the landlord himself. They may be called 'land- 
 ' lords' improvemeDts.'i''i The operations enumerated are — 
 erection or enlargement of building ; formation of silos ; laying 
 down of permanent pasture ; making of water-meadows or works 
 of irrigation ; making of gardens ; making or improving of roads 
 or bridges ; making or improving of water-courses, ponds, wells, 
 or reservoirs, or of works for supply of water for agricultural or 
 domestic purposes ; making of permanent fences ; and reclama- 
 tion of waste land ; weiring or embanking of land, and sluices 
 against floods. Part II. includes drainage only — an operation Drainage, 
 often necessary to good cultivation, yet not of an ordinary 
 
 loo The phrase 13 taken from Butt, Irish "' The term 'permanent improve- 
 
 Land Act, 128 ; see Adams v. Dunseath, ' ments ' is already claimed by the Entail 
 10 L.R. (Ir.) 109, 119, per Law C. Acts with a different signification. 
 
 Q 
 
242 IMPKOVEMENTS AND THE AGRICULTURAL HOLDINGS ACT. 
 
 character, and not as a rule required more than once in the 
 course of a lease.i''^ Part III. contains a list of operations (in 
 the way of manuring) which are of ordinary occurrence in the 
 management of a farm, are under the tenant's sole control, and yet 
 may have beneficial effects on the farm, not fully exhausted at the 
 Tenants' im- expiration of a lease. They may be called ' tenants' improve- , 
 provements. , mgnts,' in contradistinctiou to the ' landlords' improvements ' in 
 Part I. They are : boning of land with undissolved bones ; claying 
 of land or spreading blaes upon land ; liming of land ; marling of 
 land ; application to land of purchased artificial or other purchased 
 manure ; consumption on the holding by cattle, sheep, or pigs of 
 cake or other feeding stuff not produced on the holding. 
 The rule of The Scheme of the statute is to start with the statement of a 
 
 compensation, gg^gj-g^j principle or rule, subversive of the common law, and 
 then proceeding to enact certain exceptions or qualifications. 
 The general rule is to be found in the first section, which 
 enacts that a tenant who has made on his holding any of the 
 above improvements shall from and after 1st January 1884 
 be entitled on quitting his holding at the determination of a 
 tenancy (i.e., the termination of a lease by reason of the effluxion 
 of time or from any other cause, sect. 42) to obtain from the 
 landlord, as compensation under this Act for such improvement, 
 such sum as fairly represents the value of the improvement to an 
 incoming tenant ; under the proviso, above referred to, barring 
 claim for what is due to the inherent capabilities of the soil 
 (sect. 1). The time when claim can be made — ^the quitting of 
 the holding — and the amount claimable required further explana- 
 tion in two cases, which are treated of in the thirty-ninth and 
 thirty-seventh sections. If the tenant has remained in his holding 
 during a change or changes of tenancy, he is not on quitting to be 
 deprived of his right to compensation by reason only that the 
 improvements were made during a former and not during the 
 last tenancy (sect. 39). And, where an incoming tenant has, 
 with the landlord's written consent, paid an outgoing tenant any 
 compensation payable under or in pursuance of the Act, the 
 incomer shall be entitled, on quitting, to compensation, in like 
 manner (if at all) as the outgoer would have been entitled if he 
 had remained in the tenancy and quitted at the time when the 
 incomer quitted (sect. 37). 
 
 So far the rules are of general application. When the 
 qualifications are reached it is necessary to discriminate in more 
 than one direction. 
 
 "2 See a statutory description of the processes in 10 & 11 Vict, e. 113 sect, 1, 
 
CONDITIONS OF COMPENSATION. 243 
 
 (1) The first modification of the general rule entitling a tenant Improvements 
 
 , i- J? • J. T. xi. executed be- 
 
 to compensation tor improvements occurs, when they were exe- fore 1st Janu- 
 cuted before 1st January 1884, the date of the commencement ^^^ ■'^^^• 
 of the Act. As to these he is only entitled to compensation, 
 (1) if they are 'tenants' improvements' (Part III. of schedule) 
 executed within ten years before that date, under no express 
 obligation, and as to which compensation is not due by con- 
 tract or custom; and (2) if he has executed 'landlords" 
 improvements (Part I.) or drainage within that period, without 
 right to compensation under contract or custom, and the landlord 
 before 1st January 1885 has declared in writing his consent to 
 the making of the improvement (sect. 2) ; thus in the latter case 
 giving the landlord a bandy mode of agreeing to a recompense 
 and getting over any difficulty that might arise between a limited 
 owner and his successors. In either case compensation can be 
 claimed in the same manner as if the Act had been in force at 
 the time of the execution of the improvements (sect. 2). 
 
 (2) A number of modifications come into play in regard to all Executed 
 the scheduled improvements, when these have been executed landfords' im- 
 after 1st January 1884. (a) In the case of 'landlords' improve- P™^^™™*^- 
 
 ' ments ' (whether the lease were current at the passing of the 
 Act or not), nothing is due to the tenant unless the landlord or 
 his agent duly authorised on that behalf has, previously to the 
 execution of the improvements, and after the passing of the Act, 
 consented in writing to their execution, either unconditionally or 
 upon such terms as to compensation or otherwise as may be 
 agreed on, the compensation payable under such agreement being 
 ' deemed to be substituted for compensation under this Act ' 
 (sect. 3). Thus the consent of the landlord to the execution of 
 ' landlords' improvements' which at common law, whether given 
 expressly or gathered from a failure to veto, involved no liability 
 for compensation, now, if expressly given involves such liability, 
 unless guarded by conditions. It is deemed to be the result of a 
 collation of this section and section thirty-six that a condition 
 importing a total denial of compensation would be void. But 
 there is no provision that the stipulated compensation should be 
 ' fair and reasonable.' 
 
 (b) In the case of drainage executed after 1st January 1884, ((>) Drainage, 
 no compensation is due unless the tenant (notice not having been 
 dispensed with) give to the landlord or his duly authorised agent, 
 not more than three nor les.T than two months before beginning 
 the work, notice in writing of his intention so do to, and the 
 manner of it. One of three things may then happen. (]) The 
 
244 IMPROVEMENTS AND THE AGRICULTURAL HOLDINGS ACT. 
 
 parties may agree that the tenant shall do the work, on terms 
 as to compensation or otherwise (this compensation being then 
 deemed to be substituted for compensation under the Act). Or 
 (2), The landlord may undertake to execute the work, and, 
 unless the notice is previously withdrawn, proceed to do so ' in 
 ' any reasonable and proper manner which he thinks fit,' charging 
 the tenant not more than five per cent, on the outlay, or not 
 exceeding such annual sum payable for twenty-five years as will 
 repay the outlay in that period, with interest at three per cent. ; 
 such annual sums being recoverable as rent. Or (3), The parties 
 may fail to agree, or the landlord may fail to comply with his 
 undertaking within a reasonable time, and then the tenant may 
 execute the improvements himself, and shall in respect thereof be 
 entitled to compensation under the Act. But, if a lease current 
 on 25th August 1883 (which on analogy of entail law may be 
 Old lease. called an old lease)}^^ or a relative writing dated before that 
 day limits outlay for drainage, the limit holds with regard to this 
 compensation (sect. 4). It is a serious defect of this section that 
 there is no provision for the ordinary case in which landlord and 
 tenant share the work. It will be the safest course, if the second 
 mode be adopted, for the tenant to make a reasonable charge for 
 carriages and servants' wages against the landlord as part of the 
 outlay. The liability for payment of the interest or terminable 
 annuity ceases, of course, with the lease, or at furthest with the 
 tenancy. Unless an agreement be come to in the first mode, 
 there is nothing to compel the tenant to carry out his project. 
 If he does not commence operations within three months of his 
 notice, and the delay does not result from the landlord's failing to 
 comply with his undertaking, the proper course will be for the 
 tenant to issue a fresh notice. 
 Substituted (3) The third modification or qualification of the general rule 
 
 compensa, ion. g^ti^jj^g g, tenant to Compensation under the Act admits arrange- 
 ments for substituted compensation. (a) Where in tenancies 
 under old leases an agreement in writing or a custom provides 
 ' specific compensation ' for any of the scheduled improvements, 
 compensation is payable in pursuance thereof, and is deemed to 
 be substituted for compensation under the Act. And (6) where 
 (1) in tenancies under new leases, or (2) in tenancies under old 
 leases, as to any 'tenants' improvement' not provided for by 
 agreement or custom as aforesaid, ' any particular agreement in 
 ' writing secures to the tenant for any tenant's improvement 
 
 103 
 
 See the provision for the change of is from year to year, by notice on either 
 an old to a new lease, where the tenancy side (sect. 42). 
 
SUBSTITUTED COMPENSATION. 245 
 
 ' executed after 1st January 1884, fair and reasonable compensa- 
 ' tion, having regard to the circumstances existing at the time of 
 ' making such agreement, the compensation in respect of such 
 ' improvement shall be payable in pursuance of the particular 
 ' agreement and not of this Act ' (sect. 5). It thus appears that in 
 new leases a custom of compensation will be no longer proveable ; 
 while in old leases it will be still relevant if it infers ' specific 
 ' compensation ' (probably meaning compensation for specific 
 improvements, not for general melioration). Further, an agree- 
 ment (no matter of what date) , relating to any scheduled improve- 
 ment by parties to an old lease ousts, so far as it goes, the 
 statutory compensation if it be ' specific ' ; while under new leases, 
 and, so far as it is not so ousted, under old leases, an agreement 
 concerning compensation for ' tenants' ' improvements must be 
 ' fair and reasonable.' It would be unsafe to attempt any 
 illustration of this phrase. The ' scales ' of compensation 
 framed by district chambers of agriculture and farmers' clubs 
 differ widely. It is probable that the administrators of the law 
 here enacted would be entitled and bound to regard as fair and 
 reasonable an agreement based, with no more than immaterial 
 modifications such as betray individual discretion rather than 
 undue influence, on any of these scales. The agreement must, 
 besides being fair and reasonable, be ' particular,' by which is 
 probably meant ' articulate,' or ' entering into particulars ' ; and 
 the form usually recommended for adoption is by schedule 
 applicable to each of the ' tenants' improvements ' as to which it 
 is intended to oust the statute, and detailing the rate and period 
 of exhaustion, or the remanent value (in shillings per pound of 
 the actual cost) as manure in each year of that period. The 
 parties may thus contract themselves out of the Act either in the 
 lease itself or by subsequent particular agreement. In either 
 case they should express their intention to oust the statute, 
 though this is not necessary so long as they have actually and 
 effectually done so. 
 
 (4) The last qualification or modification of the tenant's right Keduotions. 
 to compensation consists of certain reductions and deductions. 
 The compensation is redvAied by (a) any benefit given or allowed 
 to him in consideration of his executing the improvements ; and 
 (6) in compensating for manure, by the value of the manure 
 which would have been produced by the consumption, according 
 to the rules of good husbandry or written contract specifying such 
 rules, of crops sold ofi" or removed during the last two years of 
 the tenancy (or other less time it has endured except in so far as 
 
246 IMPEOVEMENTS AND THE AGRICULTURAL HOLDINGS ACT. 
 
 Deductions, a proper return of manure has been made. The deductions are 
 sums due to the landlord for (a) rent; (b) taxes, rates, public 
 burdens, drainage moneys, and insurance premiums ; (c) breach 
 of stipulation in the lease or any relative contract ; (d) deteriora- 
 tion committed or permitted by the tenant, provided, as to 
 deterioration and breach of stipulation in relation to cultivation 
 and management, that they have occurred within four years 
 before the determination of the tenancy. But there shall be 
 added to the compensation any sum due for compensation in 
 respect of breach by the landlord of stipulations in the lease or 
 any relative contracts (sect. 6). The Act gives only additional 
 remedies, and does not supersede action at law or other competent 
 process.^"* The opinion may be hazarded that a tacit diminution 
 of rent in respect of improvements being undertaken in the lease 
 by the tenant and executed after 1st January 1884"^ would not 
 be reo-arded as a 'benefit' to him in. the sense of this section. ^"^ 
 
 Such being the substantive part of this important statute, it 
 only remains to notice more briefly the procedure adopted in order 
 to carry out these provisions. This procedure relates, first, to the 
 ascertainment of the compensation, and second, to the mode of 
 charging compensation money on the estate. 
 
 1 . Procedure for ascertaining Amount of Compensation due. 
 By are f erence. A tenant is not to be entitled to compensation^*"^ under the 
 Act unless^"^ he four months at least before the determination^"' 
 of the tenancy ^i" give written notice to the landlord of his inten- 
 tion to claim. The landlord may then give a counter-notice of 
 claim for compensation ^^^ at any time within fourteen days after 
 
 ™ These counter-claims can do no Trs., 1886, 13 B. 883. 
 
 more than diminish or extinguish the "" Defined, supra, p. 242. Therefore, 
 
 tenant's right ; they cannot be awarded in where a sudden termination is possible or 
 
 excess ; see Soot's Trs. v. L. Wharnchffe, probable, notice should be given imme- 
 
 1885, 1 Sh. Ct. Rep. 189. diately on outlay, e.g, in tenancies for life, 
 
 1°^ There is no compensation for those or where an irritancy is impending. See 
 
 executed earlier (sect. 2). See as to mis- Osier v. Ms. Lansdowne, infra, ^". A 
 
 cropping, Hunter v. Barron's Trs., 1886, Whitsunday and separation lease deter- 
 
 3 Sh. Ct. Rep. 33. mines at Whitsunday, though there is a 
 
 "^ Johnstone, in loco, contra. privilege of partial occupation beyond 
 
 1"' Does a renunciation silent regarding that term — see Hannan v. Ramsay, 
 
 claims under the Act exclude them? 1885, 1 Sh. Ct. Rep. 232, 292. Where 
 
 Stuart V. Strang, 16th March 1887. the ish is Martinmas as to arable, and the 
 
 ™ The negative form makes this an following Whitsunday as to houses and 
 
 essential condition. The point is not so grass, notice is timeous if made four 
 
 clear in the English Act. months before the Whitsunday— Stuart, 
 
 109 Which the practice of the parties i'"'. 
 
 may interpret as meaning an old term, i" Under sect. 6, top of this page. The 
 
 not the legal term— Hunter v. Barron's term ' compensation ' is an unfortunate 
 
ARBITRATION UNDER THE ACT. 247 
 
 said determination (sect. 7). Failing agreement as to the amount, 
 mode, and time of payment, a reference is ordered (sect. 8) to a 
 single referee or to two referees and an oversman (sects. 9, 10). 
 Careful provisions are made for filling up vacancies caused by 
 death, disability or failure to act (sect. 9). The delivery to a re- 
 feree of his appointment is to be deemed a submission by the party 
 delivering it. Neither party can revoke a submission or appoint- 
 ment without the consent of the other (sect. 11). The referee or 
 referees or oversman may require production of documents, &c., 
 in the power of either party, and examine on oath (sect. 12), and, 
 after notice, proceed in absence of either party (sect. 13). The 
 award must be in writing and signed.^^^ If issued by a single 
 referee, it must be pronounced and ready for delivery within 
 twenty-eight days after his appointment ; if by two referees, 
 within twenty-eight days after the last appointment, or within 
 an extended time, fixed by them from time to time jointly and 
 not exceeding forty-nine days from said last appointment ; if by 
 an oversman, within twenty-eight days or time extended, not 
 beyond forty-nine days in all, after notice given him in writing 
 of the devolution to him (sect. 16). The award shall not find 
 a sum due generally, but shall as far as reasonably may be 
 specify (a) the improvements compensated, with the matters taken 
 into account in reduction or augmentation ; (b) the time of 
 execution, commission, permission, or omission ; (c) the sum 
 awarded for each improvement, act, matter, or thing; and (d) 
 if the landlord is to charge his estate (under sect. 24, infra) 
 the date of exhaustion of each improvement (sect. 17). The 
 award may decern for expenses (a wide discretion being bestowed 
 on the referees and oversman), subject to taxation (sect. 18), and 
 it shall fix a day not sooner than a month after it is delivered 
 for the payment of the money awarded for compensation, expenses, 
 or otherwise (sect. 19). 
 
 The sheriff (including sheriff-substitute (sect. 42) — there sheriff's func- 
 being no appeal from the latter to his principal "^) has, for his *'°°^" 
 duty (a) to appoint a referee where after notice one party has 
 failed to appoint one ;^^* (6) similarly to appoint an oversman on 
 
 one, but there seems to be no mode of enough when there is only a determina- 
 
 distinguishing between liquid claims (as tion of value of certain goods or repairs, 
 
 for taxes, rents, &e.) and illiquid claims Leeds v. Burrows, 12 East 1. The 
 
 tor damages (deterioration, breach of award is after-stampable, ibid. sect. 57. 
 
 lease). All must be counter-claimed if '^ See Gillespie's Hosp. ii. Penman, 
 
 they are to affect the award. 1885, 1 Sh. Ct. Rep. 292. 
 
 "^ And stamped with ad i-oJorem stamp "■* See Osier v. Ms. Lansdowne, 1884, 
 
 — 33 & 34Viot.c. 97, sched.roce Award ; 1 Sh. Court Rep. 48; Barron's Tre. v, 
 
 not a mere Appraisement stamp, which is Hunter, 1885, ibid. 221. 
 
248 IMPROVEMENTS AND THE AGRICULTUKAL HOLDINGS ACT. 
 
 Substituted 
 compensation. 
 
 In limited 
 ownership. 
 
 the failure of the referees to do so (sect. 9) ; (c) to appoint an 
 oversman, if either party on appointing a referee notifies a 
 requisition to that effect (sect. 10); (d) to extend if he thinks 
 fit the oversman's time for making award (sect. 16);"^ (e) to 
 appoint, and renew the appointment of, guardians to landlords 
 and tenants who are under disability (sect. 22). But his most 
 important function is to hear and determine appeals, where the 
 sum claimed as compensation exceeds £100 on all or any of the 
 following grounds : — (1) Invalidity of the award ;"« (2) improper 
 application therein of the special provisions of sects. 3, 4, or 5, 
 or omission properly to apply the same ; (3) no title in a party to 
 claim certain compensation ; or (4) no compensation awarded to a 
 party entitled."^ He may in his discretion remit for a rehearing 
 with directions. His judgment is final; ^^^ and the award is final 
 if no appeal be taken to him within seven days of its delivery 
 (sect. 20). Money agreed on or awarded or on appeal ordered to 
 be paid may, if not paid within a month of the term of payment, 
 be recovered by recording the agreement or award in the Sheriff 
 Court books, like a bond or decree arbitral, or by enforcing the 
 sheriffs order like an ordinary decree (sect. 21). 
 
 So far the procedure applies only to the ascertainment of 
 compensation money ' under the Act.' But the substituted com- 
 pensation of sects. 3, 4, and 5 must also be ascertained in this 
 way, provided (1) there be a reference under the Act going on 
 as to some other improvements ; and (2) such a course be not 
 inconsistent with the agreement for substitution. The award 
 ought to distinguish these improvements and the amount awarded 
 for them from the rest, and the above rules as to appeal apply to 
 both sorts (sect. 16, last clause)."^ 
 
 2. Procedure for charging Compensation Money. 
 
 This procedure is binding, of course, only on limited owners. 
 The sheriff may grant authority to charge money paid for com- 
 pensation under the Act, substituted compensation and improve- 
 ments executed by the landlord himself instead of by the tenant 
 on the holding or the estate of which it is a part by the execution 
 and registration of a bond and disposition in security over it, or, 
 if the landlord has only a leasehold interest, of a bond and 
 
 '^' In administering sects. 9 and 16 he 
 need not he within his county. 
 
 ^^ Being unwritten or unsigned (sect. 
 14) ; disoonform to sects. 17, 18, 19 ; or 
 bad at common law (see Bell, Arbitra- 
 tion, pp. 34, 327). 
 
 '^' See Gillespie's Hosp., supra, '^^. 
 
 ^'^ Expenses to be regulated by Act of 
 Sederunt (sect. 23). 
 
 "' This clause should have been, as in 
 the English Act, a separate section. It 
 is nearly unintelligible. The words 'i£ 
 ' any ' and ' when necessary ' have gone 
 astray, and may safely be ignored. 
 
CHARGING COMPENSATION. 249 
 
 assignation of the lease in security and for repayment. If the 
 landlord be not an absolute owner, the interest and instalments 
 of capital shall not be made payable beyond the time when the 
 improvements, compensated and awarded for, have, according to 
 the declaration in the award i^" or, failing award, according to the 
 sheriff's judgment, become exhausted. The bond must in that 
 case specify the dates at which the total amount and each instal- 
 ment are payable. This charge ranks after all prior heritable 
 securities ; is no contravention of an entail ; and may (in so far 
 as applicable to landlords' improvements and drainage) be 
 diminished or wiped off by means of the price ^^^ of land entailed 
 on the same line of heirs as the improved holding (sect. 24). 
 Improvement of Land Companies may advance money on and 
 may assign such bonds and dispositions in security or such 
 assignations (sect. 25). The charge affects the holding or estate 
 for the landlord's interest and all subsequent interests, or, where 
 his right is leasehold, the interest of himself, his executors, 
 administrators, and assignees (sect. 26). The instalments and 
 interest of the charge are taken in favour of these same parties 
 (sect. 24), the mode being to take the bond in these terms and 
 assign it to the company or others. 
 
 It will be convenient, in conclusion, to notice a few points to 
 which attention has not been specially directed in the foregoing 
 sketch. There is no restriction as to the size of the holdings to 
 which the Act applies (sect. 35). It has no concern with leases- 
 at-will, or leases for less than a year (sect. 43). It gives no 
 rights directly to a ' sitting ' tenant, though indirectly it puts him 
 in a stronger position in bargaining for a new lease, and it keeps 
 up his right to compensation under the old, during the currency 
 of the new, lease (sects. 1 and 39).^^^ The Act does not abrogate 
 any rights to compensation, existing or to exist under agreement 
 or custom, with regard to improvements not included in the 
 schedule (sect. 1). The measure of compensation is the ' value 
 ' of the improvement to an incoming tenant' (sect. 1) whether 
 one can be got or not,^^^ and it may be necessary to contemplate 
 the improved portion of a holding as apart from the non-paying 
 remainder and inquire what proportion of the profits is then due 
 to the improvement. The procedure laid down is exclusive, with 
 regard to claims founded on the statute (sect. 8) and, in certain 
 
 120 Sect. 17. the English Act. 
 
 •2' See Eankine, Landownership, 579 '^ See the English case on custom 
 
 et seq. of country, Faviell ». Gaskoin, 7 Ex. 
 
 '^ There is no analogue to sect. 43 of 273. 
 
250 IMPEOVEMENTS AND THE AGRICULTURAL HOLDINGS ACT. 
 
 cases with regard to substituted claims, subject to the exception 
 perhaps of necessity for the initial notice (sect. 16, ad fin.).'^^* 
 There is unfortunately for the law and, in the long run, for the 
 parties, no provision as in the English Act contained, for appeal 
 from the inferior Court on questions of law by special case.^^^ 
 And litigants who have had to follow the procedure laid down by 
 the Act have in many cases found the expense to be quite 
 exorbitant. 
 
 ^-* See Johnstone, in loc. i^' English Act, sect. 23, ad fin. 
 
251 
 
 CHAPTER XIII. 
 
 landlord's furnishings : FIXTURES. 
 
 In conformity either with the common law obligation to deliver Nomenclature, 
 over to the tenant the subject let in a state fit for the purpose 
 for which it was let, or with express obligation in supplement, 
 the landlord is in many cases bound to provide along with the Landlords' 
 bare premises (buildings, farm with buildings, &c.), certain usual """"^ ^"^^' 
 or stipulated fittings or appurtenances. If these are and remain 
 moveable, they may be classed under the most general designation 
 as' furnishings, including furniture of houses, fittings of shops, 
 machinery in mines and factories, steelbow in farms. If, being Landlords' 
 originally definite moveable objects, they have, either at the fixtures (innar- 
 
 o J _ J ' J ' rower sense). 
 
 inception or during the currency of the lease, been affixed to 
 or infixed into the premises, they are known as ' landlords' 
 ' fixtures ' in the narrower sense of the term. In each case the 
 furnishings (with an exception in the case of steelbow) remain the 
 property of the landlord. On the other hand, if the tenant 
 provides and stocks or furnishes the premises with articles, 
 animate or inanimate (known as plenishing), which are and Tenants' 
 remain moveable, these continue to be his property, subject to pi<=°ishing, 
 certain rights of attachment by the landlord which will be 
 considered on a later page.^ If, on the contrary, he affixes or Landlords' fix- 
 infixes to or into the premises let definite moveable objects, the *g^^g,'"' '^'^^'' 
 legal effect may be that he is not entitled to remove them at the 
 expiry of the lease, but must leave them with the landlord with- 
 out indemnity. They are then included in the term ' landlords' 
 ' fixtures ' in the wider sense of the word. Other objects annexed Tenants' 
 to the premises by the tenant he is entitled to sever and remove ^ ""^' 
 under certain conditions. These are known as ' tenants' fixtures.' 
 It would be out of place to advert further in this place to 
 tenants' moveables or plenishing : so that this chapter is devoted 
 
 ' Chap. xvi. 
 
252 LANDLOEDS' FURNISHINGS : FIXTURES. 
 
 to the two remaining subjects : (1) landlords' furuishings and (2) 
 fixtures. 
 
 I. Landlords' Furnishings. 
 
 When not only heritable property, but along with it property 
 which is, at the date of the contract or of delivery, and is intended 
 to remain, moveable, is delivered over to a tenant, the contract is 
 logically divisible into two parts: (1) an ordinary contract of lease 
 as regards the heritable property, and (2) as regards the move- 
 able property, either a letting to hire, if it is at ish to be returned 
 in specie, or a loan of the nature of mutuum, where the ipsa 
 corpora cannot, or are not intended to, be returned at ish, but an 
 Lease and hire equivalent delivered over instead. Of a contract of lease and hire 
 of things. ^Yie ordinary subjects are furnished houses, shops containing loose 
 fittings, mines and factories with moveable machinery, and bowing 
 Leaseand loan, of cows. Of a Contract of lease and loan the only example is a 
 Lease and hire steelbow farm. The matter is still further complicated where, in 
 of servwes." ^ Contract of lease and hire, there is hire not only of corporeal 
 moveables, but also of services. This is the case of lodgings and 
 of factories with machinery and steam-supply. In dealing with 
 these complex subjects, the law directs,^rsi, that the general rules 
 of location (letting to hire) or loan shall apply, but second, that 
 the special rules which govern that sort of location which is 
 called lease shall in some cases dominate over the more general 
 principles applicable to all location. 
 1. Furnished Bevelling -Houses. 
 
 It is a proof of the good understanding of parties or of the 
 
 triviality of the subject-matter of their disputes, that no case can 
 
 be cited as reported in the Court of Session in illustration of the 
 
 Leases not law of furnished houses. It has been suggested on an earlier 
 
 transmissible. pgggZ that leases of furnished houses are not assignable, and that 
 
 Incidence of the tenant is not entitled to sublet. As to taxation, 'it is 
 
 public burdens. ^ , . , , , , 
 
 notorious that throughout the country there is a very general, if 
 ' not universal, understanding that the landlord of a furnished 
 ' house is liable for all taxes [and rates] exigible in respect of his 
 ' tenant's occupancy of the premises, unless there is a special 
 ' stipulation to the contrary.'" This rule would apply still more 
 clearly where the hiring was only occasional — a licence to use the 
 premises for a meeting or meetings.* There is seldom a formal 
 lease. Usually the contract rests on missives, or is made by 
 
 2 Swpra, p. 160. on amount of consumption.) 
 
 3 Macome v. Dickson, 1868, 6 M. 898. " See Aitken o. Harper, 1865, 4 M. 
 (Not gas rate, which is a price depending 36. 
 
FURNISHED DWELLINGS. 253 
 
 word of mouth. In either case, it is a wise precaution to adjust inventory of 
 
 an inventory of the furniture, minutely detailing such blemishes "^'^'" ^^^' 
 
 as might have been occasioned by negligent or hard usage. Since 
 
 there is, ex hypothesi, little, if any, furniture belonging to the Fore-renting. 
 
 tenant to sequestrate, the rent should be payable in advance at 
 
 intervals agreed on (subject to remission or abatement in case of 
 
 fire). In the event of failure to pay rent within a certain period, 
 
 there should be an obligation to remove.^ Subject to special obligations of 
 
 stipulation, the ordinary obligations of location apply. ^ The P*'^'®^- 
 
 landlord warrants the furniture fit for use ; is discharged of his 
 
 duty wholly or partially by accidental destruction of the subject ; 
 
 is bound to protect the tenant in his possession and to indemnify 
 
 him for loss which is not the result of pure accident or tenant's 
 
 fault. The tenant is bound to pay the rent, subject as above ; 
 
 to take only the contemplated use ; to bestow due care, and to 
 
 restore, barring accidents, the complex subject in as good repair, 
 
 both as to quantity and quality, as he got it, tear and wear 
 
 excepted. The ordinary rules of removing and ejection apply to 
 
 the subject, since it is regarded as lonum, quid. If the rent and 
 
 the hire are separately stated, the landlord's hypothec will be 
 
 security for the rent only." If rent and hire are lumped together, 
 
 it will secure the whole, on the ratio that ' rent issues out of the 
 
 ' realty,' which is the principal subject let.^ 
 
 2. Shops tuiih Fittings : Mines and Factories with Machinery. 
 The same rules apply, except as to assigning and subletting,^ 
 
 and the incidence of burdens. An inventory should always be 
 adjusted, for, if not, the onus will be on the landlord of proving 
 delivery. Some English cases may be referred to as illustrating 
 the construction put upon leases of factories and the machinery 
 they contain.^" 
 
 3. Lodgings. 
 
 When lodgings are let, the subject of the contract consists 
 of not only a furnished house or part of a house, but also the use 
 of certain articles which are not usually delivered over in a 
 furnished house, and the benefit of certain services in attendance, 
 cooking, bed-making, shoe-cleaning, and the like. Except where 
 furnishings are withdrawn from the lessor's custody, it is not 
 usual to prepare an inventory. The duration of the contract 
 
 = See forma in Woodfall, 894, 896. 717 ; Newman v. Anderton, 2 Bos. and P. 
 
 s See 1 B.C. 452 ;B. Pr. 137 €« seq. and 224; Selby v. Greaves, L.R. 3 C.P. 594. 
 authorities there. ' See supra, p. 159. 
 
 ' See Cattems v. Tennent, 1834, 12 S. " Duck v. Braddyll, M'Clel. 217 ; 
 
 686 ; rev. 1 S. and M'L. 694. Hutchison v. Kay, 23 Beav. 413 ; Haley 
 
 * Ibid, per L. Brougham, 1 S. and M'L, r, Hammersley, 3 De G. F. and J. 587. 
 
254 landlord's furnishings : fixtures. 
 
 is usually so short that the readiest remedy in case of breach 
 of the ordinary rules of lease and hiring of moveables and ser- 
 vices, is a dissolution of the contract on the usual or stipulated 
 notice hinc inde. A formal lease of lodgings is unknown;" 
 even missives are unusual ; a verbal engagement is the ordinary 
 form of the contract. 
 
 4. Factory, Machinery, and Steam-Supply. 
 
 Here in addition to the lease of a building and the hiring 
 of machinery therein, there is a hiriug of steam-power for the 
 purposes of manufacture, being either surplus power not required 
 in the lessor's own works, or steam-power let to a number 
 of tenants in contiguous premises all belonging to the lessor, who 
 keeps the engine in his own hands for the common behoof. In 
 either case, this part of the contract is substantially a contract of 
 service. If let without any building it is not a lease. There- 
 fore where a party who obtained steam-power in this way fell 
 into arrear of the stipulated remuneration, a charge given by 
 him to compel a continuance of the supply (which required con- 
 tinual outlay), was, in the absence of caution, suspended on the 
 ground that the case did not fall under the category of a lease in 
 which the landlord must wait till there be a year's arrear of rent 
 before proceeding against his tenant. '^^ But, where the letting 
 of steam-supply is combined with a lease of buildings, the latter 
 is regarded as the principal, the former as the accessory, subject 
 and contract ; ■'^ and if the two contracts (or three if machinery 
 is let) are inseparable and indivisible, the law of leases is applic- 
 able to the whole.^* If, on the other hand, the consideration 
 (rent and hire) for the constituent members of the contract 
 be separate, the rent being fixed and the hire being either fixed 
 at a distinct sum or ascertainable by arbitration, the peculiarities 
 of leases apply only to the subjects for which rent, in the proper 
 sense, as a return proceeding out of heritable property, is payable. 
 In especial this rent alone is secured by hypothec. ^^ The terms 
 of the contract are variable to an indefinite degree, so that it 
 would be of little benefit to descend to detail. It will suffice to 
 state, in addition to the doctrines already set forth, what has 
 been decided in cases where contracts of this sort have come 
 
 " See a form in WoodfaU, p. 895, con- F.C. 624 ; "Wilson v. PoUock, 1827, 6 S. 3. 
 
 taining prohibitions of nuisances, distress, " Op. in Catterns, infra, ^°. 
 
 with penalty for quitting between terms. ^^ Catterns v. Tennent, 1834, 12 S. 686, 
 
 12 Auld V. Baird, 1827, 5 S. 264 (N.E. rev. 1 S. and M'L. 694 (where the rubri6 
 
 246), approved in Catterns, infra, ^K states the exact opposite of what was 
 
 1' Wilson V, Norris, 10th March 1810, decided). 
 
BOWING. 255 
 
 before the Court. An alleged omission in a formal lease can 
 only be supplied by the writ or oath of the defender.^^ A stipu- 
 lation to make up stoppages either by extra work or by a deduc- 
 tion of rent does not refer to extraordinary stoppages but only to 
 those of common occurrence ; and the lessor must be held to 
 warrant the condition of his engine, and be liable for loss caused 
 to his tenant by any imperfection or fault in it ; ''■'' or, if the loss 
 amounted to a deprivation of part of the subject let, to have the 
 lease thrown back on his hands.^^ Where there was a lease 
 of premises with half the power of a steam-engine, under obliga- 
 tion on the tenant to pay half the expense of keeping the engine 
 at work and in good repair, it was rightly held that the great 
 gearing, which was common to both factories, was included in 
 the subjects let, and that the tenant was not bound to assist 
 in repairing it.^^ 
 
 5. Bowing ^^ of Cows. 
 
 This is a mixed contract of lease and hiring. The proprietor 
 or tenant of a farm lets to a ' bower' the ' bowing' or produce of 
 a dairy of a specified number of milch cows, along with the 
 pasturage of specified fields. The cows remain the property of 
 the lessor, who, unless it be otherwise stipulated, ^^ is at the risk 
 of deaths and casualties rendering them unfit for the purpose of 
 yielding milk.^^ Provision is usually made for shifting of the 
 pasturage according to rotation; accommodation in byres; carriages 
 to market ; winter-feeding allowances from the farm ; and services 
 of the farm-servants. The rent is usually fixed at so much 
 per cow. The public burdens are paid by the lessor. He, 
 besides being owner of the cows, is regarded as in ' possession ' 
 or ' charge ' of them, to the effect of being responsible for not 
 reporting an outbreak of contagious disease to the local authority. ^^ 
 On the other hand, it seems a mistake to say that the bower is 
 merely a manager for the lessor, paid for his services in kind. 
 
 ^^ Stewart v. Clark, 1871, 9 M. 616. the counties of Ayr, Lanark, Renfrew, 
 1' Wilson V. Norris, supra, ^^. Perth, Boss, and Caithness, and in the 
 '* See the cognate case of Kilmamock Stewartry ; Cay, Kef orm Act, 314 ; Regis- 
 Gas Co. V. Smith, 1872, 11 M. 68 (con- tration Dec, Inverness, 5, and cases in- 
 taining supply of ammonia and tar, fra. 
 
 involving constant activity on part of ''^ As in Robertson v. Perthshire Local 
 
 lessor). Authority, 1883, 10 R. Just. 68. 
 
 ^ Walker v. TumbuU, 1843, 5 D. 1334. ~ See Logan v. Hamilton, 1872, 16 
 
 ^ The term is probably connected philo- Joum. of Jurisp. 271. 
 
 logically with ^oDs, bos, bauer, boor, ^ Robertson, supra, "'. It would pro- 
 
 steelbow {infra, p. 256). The contract is bably have been different if the bowing 
 
 still known : it has been observed in the had absorbed the whole farm. 
 Books as esdsting within the century in 
 
24 
 
 23 6 LANDLORDS' FURNISHINGS: FIXTURES. 
 
 He is as much a procurator in rem mam as any assignee or 
 sublessee. If the pasture is fixed during the contract without 
 any shifting powers, the elements of combined lease (or sublease) 
 and hire are all present ; and a clause obliging the bower to submit 
 to surrogated accommodation in the common interest, it may be 
 of both parties does not seem to involve a difference of principle. 2' 
 Whether the bower be a mere manager or the subtenant of a 
 fundus instructus, the cheeses made by him are at common 
 law subject to the landlord's hypothec in the event of non- 
 payment of the tenant's rent.^^ 
 
 6. Steelbow?^ 
 
 The custom of delivering over to a tenant along with a farm 
 a certain stocking, corn, straw, manure, horses, cattle, sheep, or 
 other live-stock and implements, which once, and down to the end 
 of the seventeenth century, was prevalent in Scotland, has, it is 
 believed, wholly died out (or nearly so),^^ except in one particular. 
 It is still usual to stipulate for the retention on the land, at out- 
 going, of unused straw and manure. It will be convenient, 
 however, to postpone a consideration of this survival to a later 
 chapter, dealing with agricultural management.^^ In a treatise 
 which professes to describe only the present state of the law, it 
 would be out of place to give more than the briefest notice of an 
 archaic institution. ^^ An inventory of the steelbow goods was 
 usually made up at entry, and the rent for land and steelbow 
 was separately stated. Provision was sometimes made for valua- 
 tion at entry and ish, and for payment of the difference of value 
 hinc inde ; and it was common to declare that the property in 
 the goods remained with the landlord. But the normal obli- 
 gation imposed on the lessee was to deliver at ish the same 
 quantity or number of goods of the same kind and quality. And 
 the main crux in dealing with the contract lay in the question, 
 whether in fact and law the property of the goods did or could 
 remain with the landlord. If so, the contract was lease and 
 hire ; if not, it was lease and loan of fungibles {mutuum in the 
 
 ^ See the question noted in Goldie v. Eisem-vich= cattle which are not at the 
 
 Oswald, 1839, 1 D. 426, and argued in by owner's risk. Jamieson, Diet, s.v.; Innes' 
 
 Mr. Hunter (i. 344), who leans in favour Legal Antiquities, 241. 
 
 of managership. ^' Mr. Hunter (i. 313) detected two 
 
 ^ Goldie V. Oswald, supra, ^''. In instances in the present century, one in 
 
 Logan V. Hamilton, supra, ^, damages the North-West Highlands, the other in 
 
 were allowed in the Sheriflf Court of Ren- the Hebrides, 
 
 frew for certain breaches (by the tenant) ^ Chap. xvii. 
 
 of a very detailed contract. ^ Or. 1.9.7 ; Dirl. 386 ; St. 1.11.14, 
 
 2^ Steelbow = beatia ferri (Ducange) 2.3.81; Bankt. 1.12.2, 2.3.173; Ersk. 
 
 = cheptel-de-fer (Code Nap. 1821) = 2.6.12, 3.1.18. 
 
STEELBOW. 257 
 
 wider sense). There seems to be little doubt in principle that in 
 a lease of the ordinary duration, and as to that part of the goods 
 (live stock, &c.) which during its currency perishes with the 
 using, and can not be restored in specie, the delivery is an 
 out and out alienation, as in loan of money (mutuuTn) with an 
 obligation to replace in genere ; and further, that the other 
 goods, being replaceable without regard to risk of furnishing or 
 of tear and wear, are also treated as fungibles ; and so the 
 contract has been viewed by the institutional writers,^" and in 
 the earlier decisions.^^ No argument to the contrary can be 
 drawn from the deduction of steelbow in the confirmation of a 
 tenant's testament,^^ for his interest in the corpus of the goods 
 though ownership is, on account of the eventual burden of 
 replacement, not an effective asset. It is true, however, that in 
 one case the creditors of a tenant who renounced the lease and 
 died bankrupt were postponed in regard to steelbow in a question 
 with the landlord ; but there was much difference of opinion in 
 regard to this question of property, and the decision seems to 
 have turned on hypothec."^ The radical distinction between the 
 hiring out of cows in a bowing and the delivery of steelbow lies 
 in the risk ; and it is not easy to find a workable analogy in any 
 other department of the law to the supposed case of property in 
 moveables in posse. 
 
 II. Fixtures.^* 
 
 In the outset it is necessary to recall the distinctions which Nomenclature, 
 have been already suggested. Fixtures are not repairs, because 
 they are not intended for the mere preservation of the subjects 
 let. Fixtures are not improvements (in the narrower sense of 
 that word), because physically they are removeable in specie. 
 Fixtures are not furnishings or plenishing, because they are 
 infixed into or annexed to the subjects let.^^ Again, there is 
 the distinction between ' tenants' ' and ' landlords' ' fixtures.^" 
 
 "St. 1.11.4; Bankt. 1.12.1; Ersk. 32 ^g^ 28th Feb. 1666, p. 98; see 
 
 3.1.18 ; B. Pr. 1264. Hunter i. 315 is Bankt. 1.12.3-5. 
 
 contra. As to the use of mutuum even ^ Butter v. M'Vicar, 1764, M. 6208 ; 
 
 when remuneration is bargained for, see 5 B.S. 899, esp. the latter repoi t. See 
 
 B. Pr. 200 ; St. tup-a. also 2 Bell, 111. '211 ; and, as to last crop 
 
 M Durie x. Duddingston, 1549, M. of hay, Stewarts. Kose, 1816, Hume 229. 
 
 14735 ; Boyd v. Eussel, 1609, M. 5386, '^ Brown on Fixtures ; Grady on F. 
 
 14777 ; TurnbuU v. Ker, 1624, M. 11615, and Dilapidation ; and especially Amos 
 
 14777; Lawson r. Boghall Tenants, 1628, and Ferard (3rd ed. 1883), may be 
 
 M. 14777 (landlord's escheat refused consulted, 
 
 execution tiU ish) ; V. Belhaven v. Ly. *" Supra, p. 218. 
 
 Luss, 1637, M. 14778 (do.). ^ Supra, p. 251. 
 
 B 
 
258 
 
 landlords' FUENISHINGS : FIXTURES. 
 
 ' Tenants' 
 fixtures.' 
 
 ' Landlords' 
 fixtures.' 
 
 Landlord's 
 or tenant's 
 fixtures. 
 
 General law 
 of fixtures. 
 
 ' Tenants' fixtures ' are such moveables as have been annexed by 
 a tenant to the premises, but are removeable by him at or before 
 outgoing. 'Landlords' fixtures' are either (a) moveables annexed 
 by the landlord to the premises, or (6) moveables annexed by 
 the tenant to the premises, and by virtue of that annexation 
 irremoveable by him without the consent of the landlord, whose 
 property they, at the instant of annexation, have become.^'' 
 Landlord's fixtures of the first sort^^ may be dismissed with the 
 single remark that the amount and quality of such appurtenances 
 are usually arranged between the parties in entering on the 
 contract of lease, and that, in regard to dwelling-houses, much 
 in the absence of special arrangement will depend on the custom 
 of the district, and on the class of house. The rest of this 
 chapter is, therefore, taken up with the question whether fixtures 
 annexed to the premises by the tenant are landlord's or tenant's 
 fixtures, the property of the landlord or of the tenant ; irremove- 
 able or removeable by the tenant when he has no longer need of 
 them. In order to a clear view of the problem, it is necessary to 
 give a short sketch of the general law of fixtures. 
 
 By a somewhat hasty generalisation of a rule in the Koman 
 law,^^ the brocard, Incedificatv/m {flantatwni, satv/m) solo solo 
 cedit, has been applied to all cases where a moveable subject has 
 been infixed in or annexed to an immoveable. The ownership of 
 the one is merged in the ownership of the other.*" To this 
 maxim there is no exception. Another rule co-ordinate with it 
 is, that ' whatever becomes part of the inheritance cannot be 
 ' severed by a limited owner, whether for life or years, without 
 ' committing an offence which can be restrained.' But to this 
 rule there are exceptions.*^ The dictum of an English judge*^ 
 
 87 Per L. Watson in Wake v. Hall, 
 1883, 8 App. Cas. 195, 207. 'An agri- 
 ' cultural tenant, who builds a barn with 
 ' its foundation sunk in the soil, ceases 
 ' the moment the structure is completed 
 ' to be owner of the materials composing 
 ' it, and his sole right is thenceforth to 
 ' occupy as tenant, the holding itself 
 ' having become the property of his 
 ' landlord.' 
 
 ^^ See Farraut v. Thompson, 3 Stark. 
 130 ! Cox V. Stead, 1833, 11 S. 672, aff. 
 7 W. and S. 497 ; Fisher v. Dixon, 5 D. 
 811, per L. Moncreiff. 
 
 =5 7 § 10, 28 D. (41.1); 2 C. (3.32); 
 Gains ii. 73 ; 29-32 L (2.1). It applied 
 to only two oases of annexation in cdieno 
 
 solo of the annexer's materials — viz., 
 where this took place sinejusto titulo and 
 in mold fide ; and where it took place in 
 bond fide under a misconception of right. 
 See Wake v. Hall, supra, ^ ; Gesterding, 
 § 31 ; Puchta ii. p. 695 ; Vaugerow, § 329. 
 
 " Or. 1.9.7, 2.8.3; St. 2.1.40 ; Mack. 
 2.1.6; Bankt. 2.1.18; Ersk. 2.1.15, 
 2.2,4; 1 B.C. 753; B. Pr. 937, 1473; 
 More's Notes, 143. 
 
 ^ Per L. Chan. Cairns in Brand's Trs. 
 V. Brand's Trs., 1876, 3 K. (H.L.) 16, 20. 
 
 *' L. EUenborough in Elwes v. Maw, 
 1802, 3 East 38, 2 Smith's Leading 
 Cases ; see Syme ii. Harvey, 1861, 24 D. 
 202, 210 (per L. Colonsay) ; Anderson v. 
 Thomson, 1852, 1 Stu. 91?. 
 
GENERAL LAW OF FIXTTJEES. 259 
 
 has been regarded as law in both countries, in distinguishing 
 between the principal cases in which the rule is applied. ' As 
 ' between heir and executor, the rule obtains with most vigour in 
 ' favour of the inheritance, and against the right to disannex there- 
 ' from. Between the executors of tenant for life or in tail, and the 
 ' remainder-man or reversioner, the right to fixtures is considered 
 ' more favourably for executors than in the preceding case. The 
 ' third case — and that in which the greatest latitude and indulg- 
 ' ence have always been allowed in favour of the claim to having any 
 ' particular articles considered as personal chattels [moveables] as 
 ' against the claimant in respect of freehold or inheritance — is 
 ' the case between landlord and tenant.' In making use of this 
 rule in estimating the value for the present inquiry of decisions 
 in questions between parties other than landlord and tenant,*^ it 
 is well to remember (1) that questions between vendor and pur- 
 chaser, between heritable and ordinary creditors, and as to the 
 proper form of diligence, are governed by substantially the same 
 rules as obtain between heir and executor;** (2) that cases which 
 have in other departments gone in favour of removeability are 
 a fortiori in questions between landlord and tenant, while 
 cases with an opposite result are not necessarily precedents here ; 
 and (3) that the laws of England and Scotland seem to be 
 identical in questions as to fixtures*' — a fortunate circumstance, 
 since our books are singularly poor in valuable illustration. 
 
 All questions regarding fixtures turn on two facts — the one Annexation 
 physical, the other mental — the fact of annexation and the 
 intention with which it was made. Of the relative importance 
 of these two factors in the problem, it may be enough to say that 
 in the case of certain articles, improperly called fixtures, the mere Constructive 
 intention is enough to cause them to share the fate of fixtures fi**"''^^- 
 without being themselves annexed. The annexation is only 
 constructive where keys of doors ;*^ title deeds;*'' covers of 
 wells ;*^ loose articles necessary for the use of certain machinery,*^ 
 even though only as duplicates which had been fitted in, and were 
 
 ^ The rules in questions between heir '"' Liford's Ca., 11 Co. Rep. 50 ; Place 
 
 and executor of a tenant are the same as v. Fagg, 4 M. and R. 277. 
 
 between heir and executor of a proprietor ^' 2 Ross' Lect. 381 ; Bell on Titles, 
 
 —Brand's Trs. v. Brand's Trs., 1874, 2 K. 67. 
 
 258, rev. 3 R. (H.L.) 16, explaining Fisher *" Illustration in Fisher v. Dixon, 
 
 V. Dixon, infra, ^'. infra, *". 
 
 ■»* See authorities collected in Rankine, « Fisher v. Dixon, 1843, 5 D. 775, 
 
 Landownership, p. 114. aff. 4 B. A p. 286 ; Brand's Trs. v. 
 
 *^ L. Brougham in Fisher v. Dixon, 4 Brand's Trs., 1874, 2 R. 258, rev. 3 
 
 B. Ap. 353 ; L. Chelmsford in Brand's E. (H.L.) 16. 
 Trs. c. Brand's Trs., 3 R. (H.L.) 23. 
 
260 landlords' furnishings : fixtures. 
 
 ready in case of need; 5" and a factory belP^ go with the prin- 
 cipal subjects to which they are merely accessory. On the other 
 hand, though the mode of annexation and degree of incorporation 
 are always important elements in determining the intention of the 
 annexer, they can in no case be said to be conclusive so as to 
 shut out other proof. 
 
 I. The Physical Fact of Annexation. 
 The same in This factor in the problem is so intimately connected with the 
 rf fixture™^ other that it is difficult to keep the two apart even in exposition. 
 When the cases are narrowly scanned, however, it will be seen 
 that the distinctions drawn by Lord Ellenborough have no im- 
 portance here. For the same circumstances will lead to the same 
 conclusion in favour of or adverse to the existence of annexation as 
 a physical fact, whatever be the relation of the disputants. For 
 a matter depending wholly on the circumstances of each case it 
 is impossible to formulate rules. But two tests of annexation 
 have been frequently made use of. 
 Removal with- (1) The impossibility of disannexing without material injury 
 ou injury. ^^ ^j^^ fixture, or to the premises, or to both. If such exist the 
 article is a fixture ; if not, it has remained moveable.^^ This 
 test applies, in favour of irremoveability, to buildings put together 
 in situ, and only removeable after being resolved into their 
 constituent materials ; ^^ to large vessels which, though kept 
 in position only by their own weight, would have to be taken to 
 pieces or melted down in order to removal ; ^* and to sheds 
 built in brickwork, and posts and rails fixed to the ground. ^^ On 
 the other hand, such erections remain moveable as may be 
 removed without injury, though they may have sunk into the 
 ground by their own weight. Of this sort are barns, sheds, or 
 mills erected on blocks, pattens, or pillars resting on brickwork, 
 but otherwise unfastened.^^ 
 
 ™ Ex paHe Astbury, L.R. 4, Ch. 630 ; 9 East 215, 2 Sm.L.C. s.v.; Jenkins v. 
 
 see cases of poinding— Sibbald v. L. Gething, 2 J. and H. 520. 
 
 Sinclair, 1555, M. 10504 ; Smeton v. "5 Fitzherbert -i,. Shaw, infra, ^, as 
 
 Brand, 1698, M. 10524. criticised in Elwes v. Maw, supra, ^ 
 
 =1 Barr v. M'llwham, 1821, 1 S. 124 ^6 Huntley v. Russell, 13 Q.B. 572; 
 
 (N.E. 122). Eex v. Otley, 1 B. and Ad. 161 (wooden 
 
 "52 Integre salve et commode, per Parke windmill) ; Wanaborough o. Maton, i 
 
 B. in Hellawell v. Eastwood, 6 Exoh. 295, A. and B. 884 (barn) ; Dean v. Allaley, 
 
 312; Fishery. "Dixon, SM^m,® 5 D. 793; (dutch-barns), 3 Esp. 11; Penton J. 
 
 quce salvce moveri nequeunt, Heineocius, Robart, 4 Esp. 33 ; Eitzherbert v. Shaw", 
 
 ^®':*- ^^^- 1 H.B1. 258 ; and cases of conservatories' 
 
 »^ Leach V. Thomas, 7 0. and P. 327. infra, p. 265 ; Mather v. Eraser, 2 Kay 
 
 Niven v. Pitcairn, 1823, 2 S. 270 and J. 636 ; CuUiBg v. Tuffnal, BuUer's 
 
 (N.E. 240) (security); see Horn v. Baker, N.P. 34 (custom). 
 
INTENTION IN ANNEXATION. 261 
 
 2. In the absence of such intimate connection, a special advan- Special 
 tage may accrue to the premises from the annexation of an article, adaptSn"'^ 
 either from its being essential or material to the enjoyment of the f^^ annexa- 
 premises or their fruits ; or from its being specially adapted in 
 its construction to the enjoyment of the premises.*'^ This test 
 is illustrated by the leading case of the salt-pans, which were 
 ' accessories necessary to the enjoyment and use of the princi- 
 ' palj'^s by cases in which machinery has been held to be a fixture, 
 though capable of being removed, either in its entire state or in 
 parts, without material injury, the ground of judgment being that 
 the whole machinery was part of the general apparatus necessary 
 for the enjoyment of the subjects ; *^ and by cases in which orna- 
 ments which formed a part of the architectural design of a build- 
 ing went with it.!^" But this test is, as will shortly be seen, so 
 closely connected with the intention of the annexation, that it 
 can only be applied with great caution in questions between 
 landlord and tenant. On the other hand, machinery not essential 
 to, or specially adapted for, the use and enjoyment of the 
 premises is moveable, though screwed to the same or otherwise 
 fixed, merely to steady it for more convenient use as a machine.^^ 
 II. Intention. 
 
 The intention of the person who makes the annexation is of 
 primary importance in questions between landlord and tenant. 
 In other cases — for example as between heir and executor of the 
 owner of an estate — it may not be easy and it might not be very 
 material — to discover whether the ancestor meant the subject 
 annexed to go with his heritable estate or for the benefit of his 
 personal representatives. In the case of a tenant it is different. 
 He knows the duration of his tenure and the risk he runs by 
 annexing property of his own to premises of which he is only 
 the temporary possessor. On the other hand, the premises may 
 be only of use to him for the purpose of containing and shelter- 
 ing property of his own, or as the locus of a business which 
 cannot be carried on without fixtures. The problem is to what 
 extent these fixtures remain his property. And the solution Tests. 
 depends mainly on the answer to these questions : What was 
 the purpose of the annexation? i.e., What was the use intended to 
 
 5'' Per L.J.-C. MoDcreJff in DowaU v. 3 E.- (H.L.) 16 ; Stiven v. Cowan, 1878, 
 
 Miln, 1874, 1 R. 1180. 15 Sc.L.R 422 ; 1 B.C. 725. 
 
 "8 Lawton's Exrs. v. Salmon, 1 H.Bl. "° D'Eyncourt v. Gregory, L.R 3 Eq. 
 
 259 note ; of. E. Mansfield v. Blackburn, 382. 
 
 6 Bing. N.C. 426. ^' Trappes v. Haiter, 2 Cr. and M. 177, 
 
 59 Eisher v. Dixon, svpra, *» ; Brand's 6 Exch. 313 ; Hellawell v. Eastwood; 6 
 
 Trs. I. Brand's Trs., 1874, 2 R. 258, lev. Exoh. 295, 312. 
 
262 landlords' FUENISHINGS : FIXTURES. 
 
 be furthered by the annexation? not, What was the ultimate inten- 
 tion of the tenant — to disannex or not ? Was it for the improve- 
 ment of the premises during his possession ? Or was it for the 
 sake of the better enjoyment of the thing annexed ? ^^ In illus- 
 trating the operation of these questions, it will be convenient to 
 Distinctions, make two distinctions : First, between non-agricultural and 
 agricultural subjects, since the law relating to the latter is 
 cleared (or obscured) by statute, while the law relating to the 
 former is the common law of the land ; and second, between 
 fixtures for ornament or convenience, and fixtures for the pur- 
 poses of trade. It will be borne in mind that what follows 
 applies to moveables which have become either constructively or 
 by physical annexation fixtures,^^ and the question is in what 
 circumstances they can be disannexed and removed by the tenant. 
 A. Non-Agricultural Subjects. 
 
 1. Fixtures for Ornament, or Convenience, or Domestic Use. 
 Least favour- This is the case in which the tenant's claim to remove fixtures 
 a e enan . .^ j^^^^ strong,"* and will Only be given effect to where the 
 argument that the tenant repays himself for his outlay by 
 enjoying the fixture during the lease can be fairly met with 
 the counter plea that, the annexation being designed for a 
 temporary purpose, it would be hard if every slight attachment 
 to the premises let should deprive the tenant of his control over 
 them.^^ So that, in the absence of other evidence of intention, 
 it may be necessary to fall back on the mode or amount of 
 annexation, the permanent or temporary character of the fixture, 
 removeability without injury, and the like. Thus ornamental 
 shrubs planted and turf laid down by a tenant for ornament,*" a 
 border of box,"''' and growing trees, "^ cannot be removed by him 
 as matter of right ; and a conservatory, erected on a brick founda- 
 tion and opening into rooms in a dwelling-house, will be irremove- 
 
 ^^ Perpetui usHs causd or not, Hein- "' Supra, p. 259. 
 
 eooius, supra, ^ ; Parsons v. Hind, 14 ^* Bucklaud f . Butterfield, 2 Bred, and 
 
 W.R. 860, per Blackburn, J.; Hella- B. 54; Leach „. Thomas, 7 C. and P. 
 
 well V. Eastwood, 6 Exch. 295, 312, per 327. 
 
 Parke B. ; see also Lancaster v. Eve, 5 ^' Amos and Ferard, 116. 
 
 C.B.]Sr.S. 717, 728; Keg. u. Lee, 14 W.R. « Burns v. Fleming, 1880, 8 R. 226 
 
 311 ; Martin v. Roe, 7 E. and B. 237, 248 ; (probably same as to gravel strewn); dicta 
 
 Walmsley v. Milne, 7 C.B.N.S. 115, 131, in Syme v. Harvey, 1861, 24 D. 202, 
 
 138; Tod's Trs. t,. Finlay, 1872, 10 M. with which contrast cases of trade, sm/ra, 
 
 422. Lord M'Laren's fourth point (re- p. 264. 
 
 lative value of fixture and holding) in ^ Empson o. Soden 4 B. and A. 
 
 Ferguson v. Paul, 1885, 12 R. 1222, if 655. 
 
 relevant, is only so as an element in this ^ Windham v. Way, 4 Taunt 316. 
 test 
 
DOMESTIC FITTINGS. 263 
 
 able by a tenant, although he put it up for his own convenience.*' 
 A verandah attached to posts fixed in the ground must be left 
 behind at outgoing/" as well as kitchen-ranges, , ovens, and set 
 pots built in.'^i The question whether the injury entailed by 
 detachment would be substantial is one of fact.'^^ Subject to 
 specialties, which may arise out of the mode of annexation and 
 difficulty of detachment, the following articles may be regarded 
 as tenant's fixtures'^^ — viz., hangings, tapestry, and pier glasses, 
 whether nailed to the wall or panels, or put up in lieu of panels;^* 
 cornices ;'^^ marble or other ornamental chimneypieces ;'^^ marble 
 slabs ;^^ window blinds ;^^ wainscote fixed to the walls by screws ;'^* 
 grates, ranges, stoves, furnaces, coppers, though set in brick- 
 work ■j^'^ iron backs to chimneys ;*^ pumps ;^^ cupboards fixed 
 with holdfasts ;^^ bookcases screwed to the walls f^ beds fastened 
 to wall or ceiling f^ wooden steps on a garden path.^* Any 
 injury caused to the premises by removal must be repaired by 
 the tenant ; and he must restore any article still extant to its 
 former position or replace it with a similar one, when he is 
 removing an article of his own which he has substituted for it 
 during his tenure.*'' It makes little difference, if any, that the 
 annexation is made by means of screw-nails and not ordinary 
 nails. 
 
 (2) For Purposes of Trade or Manufacture. 
 
 The exception here is general. It would seem that all trade Eemoveable. 
 fixtures are removeable by the tenant who (or whose author) set 
 them up ; provided that there be no custom** or stipulation*' to the 
 contrary, and that the fixtures can be recognised and disannexed 
 in specie, or in such a way as to permit of their being reinstated 
 
 ^ Buckland i. Eutterfield, supra, ^^ ; ''^ Amos and jF. 110. 
 West V. Blakeway, 2 M. and G. 729. '^ Lawton v. Lawton, svpra, ''^ ; Dud- 
 See the Scotch case of Ferguson v. Paul, ley v. Warde, Anib. 113. 
 1885, 12 R. 1222, discussed infra, p. 270. "" Lee v. Risdon, 7 Taunt. 191; Squier, 
 
 '"> Penry v. Brown, 2 Stark. 403. supra, ''■' ; Poole's Ca., 1 Salk. 368 ; 
 
 " Winn V. Ingilby, 5 B. and A. 625. Winn v. Ingilby, 5 B. and A. 625. 
 
 '■2 Avery v. Cheslyn, 3 A. and E. 75 ; '^ Harvey v. Harvey, 2 Stra. 1141. 
 
 Leach v. Thomas, supra, " ; Harrow ^^ Grymes v. Boweren, 6 Bing. 437. 
 
 School V. Alderton, 2 B. and P. 86. ^ Eex v. St. Dunstan, 4 B. and C. 
 
 '■s Lists in Woodfall, 630 ; Cbitty, Con- 686. 
 tracts, 336, 1 B.C. 789 (7th ed.). '^ Birch v. Dawson, 2 A. and B. 37. 
 
 ^* Squier v. Mayer, 2 Freem. 249 ; ^ Exp. Quincey, 1 Atk. 477. 
 
 Beck 1). Eebow, 1 P. Wms. 94 ; Buck- ^ Burns v. Fleming, 1880, 8 R. 226. 
 
 land V. Butterfield, supra, ^. ^ Martyr v. Bradley, 9 Bing. 24 ; 
 
 ^^ Avery v. Cheslyn, supra, '?. Sunderland v. Newton, 3 Sim. 450. 
 
 ^6 Lawtonw. Lawton, 3 Atk. 15;Leach "^ gee Culling v. Tuffnal, BuUer, 
 
 V. Thomas, supra, " ; Bishop ■». Elliott, N.P. 34 ; Davis v. Jones, 2 B. and A. 
 
 11 Exch. 115, 120-2. 165. 
 
 " Allen V. Allen, Moseley 112. *» Infra, p. 269. 
 
2C4 landlords' FURNISHINGS: FIXTURES. 
 
 in specie.^" It would appear, moreover, that fixtures may be 
 removed even though not capable of being so disannexed, if they 
 are merely accessories to things removeable." The ground of the 
 exception is said to be the public advantage, as giving encourage- 
 ment to tenants to improve the apparatus of their trade with the 
 certainty of getting the full benefit of their outlay.'^ It is 
 equally true to say that the tenant in annexing trade fixtures 
 does so with no intention to improve the shop or factory or to 
 make the landlord a gift of the reversion, but solely for the 
 purpose of being the better able to make use of the machine or 
 fitting in prosecution of his trade or manufacture f^ and that 
 there is no rule of law to prevent his intention being given effect 
 to, since the possession is open and no false credit is set up. ' It 
 ' would be injurious to trade if a tenant were told that he must 
 ' contrive to conduct his trade with property which must not be 
 ' affixed to the soil or he would at once be held to have made a 
 ' present of it to his landlord.' °* 
 Examples. Therefore, the following fixtures have been held or may be 
 
 taken as removeable in questions between landlord and tenant: — 
 bakers' ovens; dyers' vats f^ soap-boilers' vats, coppers, tables, and 
 partitions;"' colliery engines f salt-pans;^* coppers and pipes in 
 breweries f^ stoves, cooking-coppers, mash- tubs, water-tubs, and 
 blinds ;!'"' varnish house;^°i machinery or part thereof ;i''^ spinning- 
 mules, screwed or soldered to the floor of a factory ; ^"^ probably a 
 safe built into a wall ; i"* in nursery and market gardens the trees 
 and shrubs, though in full bearing,'"^ and the glass frames and 
 
 "» Whitehead v. Bennett, 27 L.J.Ch. ^ Per L. Hardwicke in Lawtou v. 
 
 474, 476. See Syme v. Harvey, 1861, Lawton, supra, "- ; ex parte Quincy, 
 
 24 U. 202. 1 Atk. 477. 
 
 8' Ibid., and see "Wake i. Hall, 8 ™ Colgrave v. Dios Santos, 2 B. and 
 
 App. Gas. 210 ; Amos and F. 64. Or. 76. 
 
 »^ Lawton v. Lawton, 3 Atk. 14, 16 ; i" Penton v. Eobart, supra, ^\ 
 
 Penton r. Robart, 2 East 88. 102 Da^jg ^ Jones, 2 B. and Aid. 165. 
 
 "' Parsons v. Hind ; Hellawell v. East- "s Hellawell v. Eastwood, supra, «* ; 
 
 wood, supra, ^, ^. of. Waterfall v. Penistone, 6 E. and B. 
 
 »^ Per Wood V.C. in Mather v. Eraser, 876, commented on in CuUwick v. Swin- 
 
 2 Kay and J. 536, 548. dell, L.R. 8 Eq. 249 ; Dowall ,;. Miln, 
 
 »» Year-book, 20 Henry 7, pi. 13, 1874, 1 R. 1180, where L.J.-C. Mon- 
 
 quoted in Woodfall 627. oreiflt's opinion is an excellent summary 
 
 '^ I'oole's Ca., supra, 8". of the law. 
 
 <" Lawton v. Lawton, supra, ^ ; Dud- "^ See Waldie v. Commercial Bank, 
 
 ley V. Warde, Amb. 114 ; Minshall ■„. 1842, 14 Sc. Jur. 683 
 
 Lloyd, 2 M. and W. 450. los Wardell v. Usher, 3 Sc.N.R. 508 ; 
 
 '8 E. Mansfield v. Blackburn, 6 Eing. dicta in Penton r. Robart, supra, "^ ; and 
 
 N.C. 426; secus as between heir and in Gordon «. Gordon, 1806, Hume' 188 ■ 
 
 executor, Lawton's Exrs. v. Salmon, B. Pr. 1475 ; and see Begbie t, Boyd' 
 
 «"f"-«> °*- 1837, 16 S. 232. 
 
TRADE FIXTURES. 265 
 
 heating apparatus of green-houses and hot-houses therein.^"' It 
 has never been decided whether the built part of such houses may 
 also be removed. ^"'^ It may be suggested that it ought not to be 
 removeable, since it could not be removed in specie, but only 
 after being reduced to its component parts; but that a different 
 rule will apply in the case of market-gardens, to which the Agri- 
 cultural Holdings Act applies.^"^ But a gardener is not entitled 
 wantonly to plough up strawberry beds before outgoing, although 
 he might have sold the plants in course of his trade.^"' The 
 objection that 'the fixtures could not be removed salvd rei 
 substantid would probably entitle the landlord to prevent the 
 breaking up and removal of lime- kilns, brick-kilns, mills, work- 
 shops, and erections of a similarly substantial and permanent 
 character. 11" 
 
 It is certain that a tenant would, while an executor or personal Machinery. 
 creditor might not, be entitled to remove fixtures such as — the 
 machinery of a cotton mill ;iii large vessels in a factory, remove- 
 able only after being broken up or melted downji^^ and the 
 engines and machinery of a mine or quarry.^'^ In the leading 
 case (as to legitim) of Fisher v. Dixon, a remit was made to 
 inquire into the practice of removing or retaining mining 
 machinery set up by a tenant during his lease. The reply was : 
 ' The general practice at coal and iron works similar to those of 
 ' the deceased is for the tenant, in the event of the termination 
 ' of his lease, to remove the whole of such engines and machinery, 
 ' if not previously belonging to the landlord or specially acquired 
 ' to him by the terms of the lease ; and in the event of the 
 ' exhaustion of the mineral field or any permanent bar arising to 
 ' the profitable working of the minerals, the whole of the engines 
 ' and machinery are removed by the tenant or worker of the field, 
 ' or by the proprietor, if his property, and the general premises 
 ' dismantled as it may be profitable to do so.'"* The same 
 practice prevails at the present day. Lastly, there has been 
 much controversy — since the passing of the Agricultural Hold- 
 
 ™ Syme v. Harvey, 1861, 24 D. 202. ™ Arkwright v. Billinge, 3 Dec. 1819, 
 
 !'»■ See Syme, "«; Elwes v. Maw, F.C. 52 (security), doubted in 1 B.C. 
 
 supra, " ; Buckland v. Butterfield, ^ ; 755, Brodie'a note to St. 2.1.40, Sandf. 
 
 Martin r. Eoe, 7 E. and B. 237. Herit. Succ. 220, and explained in Niven 
 
 ™ Infra, p. 267. i. Pitoairn, 1823, 2 S. 270 (N.E. 239). 
 
 i<® WathereU v. Howells, 1 Gampb. "^ Niven v. Pitoairn, supra, ^^' (secu- 
 
 227. rity). 
 
 11" See Thresher t: E. London Water- "' Fisher v. Dixon, supra, ^' ; Brands 
 
 works Co., 2 B. and Cr. 608 ; White- Trs. v. Brand's Trs., 1878, 5 R. 607. 
 head v. Bennett, 27 L.J.Ch. 474 ; Foley "* 5 D. 789. 
 
 L. Addenbrooke, 13 M. and W. 174. 
 
rules. 
 
 266 LANDLOKDS' FURNISHINGS : FIXTURKS. 
 
 ings Act"^ of no practical interest — whether a tenant -would he 
 entitled to remove a cider-mill, the question turning on its true 
 character as an implement of trade or a farming utensil."^ There 
 seems, however, to be no sufficient reason for the view"'' that the 
 machinery of a grist-mill would be treated differently from other 
 trade fixtures, the circumstance that such mills were transferred 
 by a peculiar infeftment"^ being immaterial."^ In the decisions 
 noticed above in regard to nursery and market gardens — mioced 
 cases between trade and agriculture^^" — the former element pre- 
 vailed even before the passing of the Act now to be mentioned. 
 B. Agricultural Subjects. 
 Common law Priof to 1st January 1884, the date at which the Agricultural 
 Holdings (Scotland) Act of 1883 came into force, an agricultural 
 tenant was, in regard to fixtures placed by him on his farm for 
 the better enjoyment of it as such and not in connection with any 
 trade carried on by him in it, in a much less favourable position 
 then a tenant who had annexed trade fixtures. If there was 
 pliysical annexation, as explained above,^^^ he was not entitled to 
 remove what by annexation had become the property of the 
 landlord. ^^^ This was the inevitable result of the test of inten- 
 tion.^^^ The annexation was made for the improvement of the 
 premises during his occupation, not for the sake of better enjoy- 
 ment of the thing infixed. In England the rule was applied in 
 the leading case to a beast-house, carpenter's shop, fuel-house, 
 cart-house, and fold-yard wall, all built of brick and mortar, tiled 
 and let into the ground.^^* In Scotland the same rule was estab- 
 lished,^^^ no discrimination being admitted between different parts 
 of a fixture which had to be regarded as unuTn quid ; and a 
 broad distinction was drawn between ' landlords' ' fixtures (such 
 as buildings) which the tenant, though he had erected them, 
 could not remove and need not leave in repair,^^^ and ' tenants' ' 
 
 "= Infra, p. 2B7. Maw, supra, ^. 
 
 ^1^ Lawton v. Lawton, 3 Atk. 14 (for- '^a ^up,.„_ p 261. 
 mer view taken) ; disapproved in Tisher '^4 jjlwes v. Maw, supra, ^, in contra- 
 il. Dixon, 4 B. Ap. 352, 357, 359 ; distinction to the earlier cases (Culling : 
 Walmsley v. Milne, 7 C.B.N.S. 115. Fitzherbert) cited above, ^e, where there 
 
 "' See Arkwright v. Billinge, supra, was no proper annexation. 
 "'■ "= Murray v. Bisset, 1805, Hume 818 
 
 "8 Cr. 2.3.24,27, 2.7.6, 2.8.6; St. 2.3. (oUter) ■ Hyslop's Trs. v. Hyslop, 18th 
 
 71, 2.7.15 ; Bankt. 2.3.94, 2.7.42 ; Ersk. January 1811, F.C. 143, as corrected in 
 
 2-3-36- Arkwright v. Billinge, 3rd Dec. 1819, 
 
 11" 1 Hunter, 306. F.C. 55. 
 
 i2» Per L. Hardwicke in Lawton r. i^s Thomson v. Oliphant, 1822, 1 S 
 
 Lawton, 3 Atk. 16. 307 (N.E. 284), B. Pr. 1254 ; see Dunn's 
 
 ^^^ P- 258. Trs. v. E. Zetland, 1862, 24 D. 801. 
 
 ^'^ Pa- L. EUenborough in Elwes v. 
 
AGRICULTUEAL HOLDINGS ACT. 267 
 
 fixtures (such as wire fences, feal, dry-stone or other temporary 
 dykes, and (probably) pailings) which he might remove, or, if he 
 did not remove them, must leave in repair. ^^^ 
 
 The 30th section of the Agricultural Holdings (Scotland) Act, Agricultural 
 1883,^^ altered this unjust state of the law in substantial con- ° "'^^ 
 formity with an earlier statute which applied only to England. ^^^ 
 As has been already explained, the Act applies to agricultural, 
 pastoral, market-garden, and mixed holdings (sect. 35). The 
 section referred to in substance enacts that engines, machinery, 
 fencing, and other fixtures and buildings ^^ affixed or erected 
 after 1st January 1884 by a tenant to or on his holding, without 
 being entitled under the Act or otherwise to compensation, and 
 under no obligation, and not as substitute for a landlord's fixture 
 or building shall be the tenant's property and be removeable by 
 him before or within a reasonable time after the termination of 
 the tenancy, provided (1) before removing them he has paid all 
 rent owing by him and has performed all his other obligations to 
 the landlord in respect of the holding ; (2) he does no avoidable 
 damage to the holding in the removal ; (3) he immediately makes 
 good all damage so done ; (4) he has given a month's written 
 notice. The landlord before expiration of the notice may notify 
 to him his election to purchase any fixture or building therein 
 specified, in which case it must be left by the tenant ; it becomes 
 the landlord's property ; and the value to be paid is ascertained, 
 in the absence of agreement, by a reference to arbiters under the 
 provisions of the Act. 
 
 It will be observed that the operation of this section is excluded Relation to 
 as to any fixture or building for which the tenant is entitled to prnvement™' 
 compensation under the Act. The reference is to the provisions 
 relating to Part I. of the schedule which includes, inter alia, the 
 erection or enlargement of building ; the formation of silos ; the 
 making or improving of bridges ; the making or improving of water- 
 works; the making of permanent fences; and the weiring or embank- 
 ing of land and sluices against floods. These or parts of these may 
 be fixtures or buildings in the sense of this present section. And 
 
 ^' Andrew v. Morison, 19th January provisions of the Act are explained, 
 
 1811, F.C. 152 (dykes nltroneously erected supra, p. 237. 
 
 and in their ruinous state a nuisance) ; '^ 14 & 15 Vict. c. 25, sect. 3. 
 
 D. Bucoleuch v. Tod's Trs., 1871, 9 M. '*> See the construction put on the 
 
 1014 (wire fences) ; contra as between word 'building' in other Acts, Haig v. 
 
 vendor and purchaser, Graham «. Lamont, Henderson, 1830, 8 S. 912; Partick 
 
 1875, 2 K. 438 (wire fences). PoHce Comrs. v. G. W. Steam Laundry 
 
 128 46 & 47 Vict. c. 62, sect. 30, printed Co., 1886, 13 E. 500. 
 in Appx. No. ii. The scope and general 
 
>68 
 
 landlords' fuenishings: fixtures. 
 
 Exceptions. 
 
 All fixtures, 
 &c., included. 
 
 the tenant is under other sections of the Act entitled to com- 
 pensation in respect of them, provided that before he executed 
 them he had obtained the written consent of the landlord or his 
 duly authorised agent on terms or unconditionally (sects. 1, 3), 
 and had given the statutory notice of claim four months at least 
 before the determination of the tenancy (sect. 7). The opinion 
 may be hazarded (though with diflfidence) that such an agreement 
 between landlord and tenant would definitively oust the operation 
 of the 30th section, and that the neglect of the tenant to give 
 notice would not revive it. He would be understood in such a 
 case to have given up all right either to compensation or to 
 removal, on the ground that when ' entitled to compensation ' he 
 had not taken the only legal means of ascertaining the amount. ^'^ 
 
 The operation of the section is also excluded (1) as to all 
 fixtures and buildings made or erected before 1st January 1884 ; 
 (2j where there is a contrary stipulation (since this part of the 
 Act is not compulsory) ; (3) where there is a custom of com- 
 pensation ; ^^^ (4) where there was a pre-existent obligation to 
 make or erect ; (5) where the fixture or building comes ' instead 
 ' of ' a landlord's fixture or building. The result in these circum- 
 stances is that the property in the buildings or fixtures does 
 not vest in the tenant and that he is not entitled to remove 
 them, by virtue of the Act at least. The words of the section 
 are wide enough to cover all buildings and fixtures, not only 
 such as are put up for the purposes of agriculture. ^^^ So that 
 the tenant would appear to have an alternative claim in regard 
 to fixtures put up for trade purposes or for convenience, ornament, 
 or domestic use ; either to trust to the common law or to appeal 
 to the Act. 
 
 It would be a judaical construction of the section to hold that 
 on a breach of any of these provisoes the property in the buildings 
 and fixtures revests in the landlord.^^* The first and fourth in 
 substance regulate the date of removal ; the second and third the 
 mode of removal ; and the fifth sets out the only method in which 
 revesting can take place under the provisions of the Act. The 
 allowance of a ' reasonable time ' for removal will be noticed on 
 a later page.^^^ As in other references under the Act, there is 
 no appeal to the sheriff from his substitute (sect. 20). 
 
 ■"^ Brookes-Little, p. 97, oontra. 
 
 "2 Supra, pp. 230, 243. 
 
 ^'' Contrast the more limited terms of 
 the English Emblements Act, 14 & 15 
 Viot. 0. 25 (' agricultural purposes or for 
 'the purposes of trade and agriculture ') ; 
 
 and of. 38 & 39 Vict. c. 92, sect. 53 ; 
 Jeudwine, p. 28, contra. 
 
 1^ Lely and Pearce-Edgcumbe, p. 102, 
 contra. See Laing v. Stephenson, 1848, 
 11 D. 142. 
 
 135 Infra, p. 271. 
 
STIPULATIONS AS TO FIXTURES. 269 
 
 III. Construction of Special Stipulations as to Fixtures. 
 
 In many cases, the operation of the rules thus set forth is 
 excluded by the agreement of parties, and then the sole duty of 
 the Court is to interpret the stipulation so substituted for the 
 provisions of common law and statute. Each case depends on 
 its own peculiar circumstances, and little instruction can be 
 drawn from decisions in which general rules of construction can 
 only with difficulty be extracted from the environment of special 
 matter. An attempt will, however, be made to indicate how 
 these general rules have been applied, always subject to the 
 caution that it would be unsafe to trust to a brief reswni^ with- 
 out resorting to the report cited. 
 
 In Scotland, it has been decided that an obligation laid on a Scottish cases. 
 tenant in his lease to build and erect a thrashing-mill bound him 
 to fit it up with machinery, and that, having done so, he was not 
 entitled, in accordance with the custom of the district, to remove 
 the machinery at outgoing ; ^^^ and that a wooden chalet was 
 included in ' dwelling-houses ' for which a tenant had a right 
 under his lease to compensation.^^'' The ordinary clause obliging 
 a tenant to leave the subjects in good tenantable condition does 
 not oblige him so to leave temporary fittings put up by him in a 
 cottage which he used as a stable, but if the fittings ' had been 
 ' permanent fixtures the case might have been different.' ^^^ In 
 a short lease or rather a bargain for the temporary use of waste 
 ground pending negotiations for selling it as a business stance, 
 a permission to remove erections thereon, which if strictly read 
 applied only to a premature removing, was held to apply also 
 when the lease ran out by effluxion of time.^^^ Where a lease 
 was turned into a feu and the feu-right was afterwards reduced 
 the tenants lost right to found on a compensation clause, in so 
 far as the fixtures were added before the date of the feu.^*" A Ferguson v. 
 recent decision which turned on a special stipulation seems to ^" ' 
 be open to question. The subjects let were a house and garden, 
 and the stipulation was that the tenant should not remove any of 
 the trees ' except to replace them by others of equal quality and 
 ' value.' The tenant, an amateur florist (who competed largely at 
 
 136 Campbell -o. Howden, 1825, 3 S. "» Selkirk Mags. v. Clapperton, 1830, 
 
 569 (N.E. 391). 9 S. 9. See a case of partnership, Cox v. 
 
 1^ Murray v. CampbeU, 1879, 6 R. Stead, 1833, 11 S. 672, aff. 7 W. and S. 
 
 1163. 497 ; and case where a landlord's notice 
 
 13^ Scott V. Ewart's Reps., 1824, 3 S. to quit superseded necessity for tenant's 
 
 344 (N.E. 244). notice of claim, Laing v. Stephenson, 
 
 ■39 Thomson v. Harvie, 1827, 5 S. 227 1848, 11 U. 142. 
 (N.E. 211). 
 
270 landlords' furnishings : FIXTURES. 
 
 flower-shows and occasionally sold plants), cut down trees, and put 
 up greenhouses at a cost exceeding the value of the whole hold- 
 ing, and removed them before outgoing. He was held entitled 
 to do so. The judgment proceeded partly on the fact, held to 
 be proved, that the landlord when letting the subjects knew the 
 tenant's intentions, but chiefly on the view that the stipulation 
 cited implied power to remove the greenhouses in order to replace 
 the trees. The former ratio seems plainly irrelevant; and the 
 latter may be deemed insufficient, the more obvious meaning of 
 - the clause being, as Lord Rutherfurd Clark (who dissented) 
 pointed out, that the replacement should at once follow the 
 removal of the trees. The element of trade was not involved, 
 and in no other case of a fixture of this character erected for 
 ornament or convenience has the tenant's intention, not to 
 improve the premises, but the better to enjoy the fixture by 
 annexing it, been held to bar the passing of the ownership to the 
 landlord.!" 
 English cases. The English books are, as usual, much more prolific of autho- 
 rities. Where there is a covenant binding the tenant to yield 
 up at the termination of his lease, certain enumerated articles 
 and general words follow, such as, ' and all other things,' or ' and 
 ' other additions, improvements, fixtures, and things,' the rule that 
 words so tacked on are to be taken as meaning articles ejusdem 
 generis comes into play only if the enumerated articles belong to 
 some assignable genus ; otherwise they are read as restricted only 
 by their own proper meaning, including, it may be, even trade 
 fixtures."^ The rule, noscitur a sociis, when applicable, may 
 enable the Court to confine the covenant to ' landlord's fixtures, 
 ' excluding trade and tenant's fixtures ; ' "^ and the same 
 result may follow on a sound interpretation of an express 
 exception in the covenant itself.^** But a covenant which 
 contains only general words must be allowed its full and fair 
 scope. Thus an obligation to leave ' improvements ' is wide 
 enough to include new mill-stones ; i*s ' buildings ' erected for 
 trade are struck at by a covenant to yield up all buildings."" 
 A covenant to leave in repair bars removal of lime-kilns,i*^ 
 
 "1 Ferguson v. Paul, 1885, 12 R. 1222 «* Foley v. Addenbrooke, 13 M. and 
 
 (L. Rutherfurd Clark also held the land- W. 174. 
 
 lord's knowledge not proved). "6 Martyr v. Bradley, 9 Bing. 24 
 
 "2 Wilson V. Whately, 1 J. and H. '« Naylor v. Collinge, 1 Taunt 19 
 
 436 ; Bidder v. Trinidad Petroleum Co., w Thresher v. E. London W W Co 
 
 17W.R. 153. 2 B. and C. 608. ' ' ' 
 
 "5 Bishop V. Elliott, 11 Exch. 113. 
 
REMOVAL AND FIXTURES. 271 
 
 salt-pans,"^ verandah,^*'' a greenhouse/^" and running machin- 
 
 gj.y 151 
 
 IV. TiTTie and Mode of Removal. 
 
 Tenants' fixtures may be removed at any time during the Time, 
 currency of the lease. In the case of removings which take 
 place at different periods for different parts of the subjects let — 
 as for example a Whitsunday and separation ish — the Court 
 would probably distinguish between the real determination of the 
 tenancy and the supervenient period allowed to the tenant for a 
 limited purpose such as the reaping of white crop, and fix on the 
 former date as decisive. An important question arises, however, Reasonable 
 as to the right of the tenant to any extension of time beyond the ™^^ 
 term of removing from the premises. The Agricultural Holdings 
 Act allows ' a reasonable time after the termination of the 
 ' tenancy' (sect. 30). It seems clear, moreover, that some period ish uncertain, 
 of grace must be allowed where the duration of the lease is from 
 the first uncertain — as in tenancies at will or for life, or during 
 the lessor's life ; — or where the lease comes to an end through 
 an extraordinary removing — as on account of an irritancy. ^^^ 
 There is no indication in the statute, and little in the books, of 
 what would be regarded as a reasonable period. Each case 
 would be treated as a jury question. In one case a period of 
 three months (.3rd February to 15th May) was regarded as a 
 reasonable time for the tenants of an extensive colliery to cede 
 possession in an extraordinary removing, by closing their colliery 
 engagements, disposing of surplus stocks of coal, dismissing ser- 
 vants, and valuing the plant which was to be taken over by the 
 landlord. ^'^ Undue delay in removal of fixtures may lay the 
 tenant open to an action of damages, but does not lead to a claim 
 for violent profits. ^^* A reasonable time may also be secured by 
 stipulation.^^^ But the truce comes to an end on the actual 
 entry of the landlord or an incoming tenant.^^® 
 
 i« E. Mansfield v. Blackburn, 6 Bing. Brook, in re Roberts, 10 Ch.D. 101, 109, 
 
 N.C. 426. iJcrThesiger, L.J. 
 
 "' Penry v. Brown, 2 Stark. 403 ; see '^ Houldsworth v. Brand's Trs., 1877, 
 
 a very special case of plate-glass front, 4 R. 369. 
 
 Haslet V. Burt, 18 C.B. 162, 893. i« Ibid. ; see Laing .•. Stephenson, 
 
 i» West V. Blakeway, 2 M. and G. 1848, 11 D. 142. 
 
 729, and cf. Scott v. Ewart's Reps., supra, '^^ Stansfeld v. Portsmouth Mayor, 4 
 
 i'*. C.B.N.S. 120 ; Sumner v. Bromilow, 34 
 
 "1 R. v. Topping, M'L. and Y. 544, L. J.Q.B. 130. 
 
 559 (serf qucEre). '=« Pugh r. Arton, L.R. 8 Eq. 626 ; 
 
 i»2 Amos and F. 143 ; Woodfall, 644 ; Minshall t;. Lloyd, 2 M. and W. 450 ; 
 
 and see Martin v. Roe, 7 E. and B. 237 Mackintosh v. Trotter, 3 M. and W. 184. 
 
 (ecclesiastical dilapidations) ; ex parte See Amos and F. 102. 
 
272 
 
 landlords' furnishings : FIXTURES. 
 
 Natural ish. If, on the Other hand, a lease comes to its natural close, or to 
 
 a termination which can be foreseen and provided for, it is prob- 
 able, though in the absence of decision not certain, that apart from 
 statute the English rule would be held to apply, and the tenant's 
 right to remove fixtures be limited to his original term i^'' ' and 
 ' such further period of possession by him as he holds the pre- 
 ' mises under a right still to consider himself as tenant' ^^* This 
 rule applies where the lease is brought to an end by surrender 
 unless other provision is made therein,'^^' but a purchaser of the 
 fixtures from the tenant before surrender will be allowed a 
 reasonable time for removal."" 
 
 Mode. The rules of the Agricultural Holdings Act that ' in the 
 
 ' removal of any fixture or building the tenant shall not do any 
 ' avoidable damage to any other building or any other part of 
 ' the holding,' and that ' immediately after the removal of any 
 ' fixture or building the tenant shall make good all damage 
 ' occasioned to any building or other part of the holding by the 
 ' removal ' (sect. 30, provisoes 2 and 3) may be safely taken as 
 embodying the common law obligation incumbent on the tenant. 
 And if the fixture removed be a substitute for a landlord's fixture 
 the latter must be restored or replaced with another of a similar 
 description."^ But the tenant is not bound to put the premises 
 so injured into perfect repair."^ 
 
 '5'' Ex parte Quincy, 1 Atk. 477 ; Lee ^^ Fitzherbert v. Shaw, 1 H.Bl. 258 ; 
 
 r. Rlsdon, 7 Taunt. 191 ; Colgrave 
 Dios Santos, 2 B. and C. 76 ; Poole, 1 
 Salk. 368 ; Meux v. Jacobs, L.R. 7 H.L. 
 490. 
 
 158 Weeton v. Woodcock, 7 M. and W. 
 14 ; discussed in Leader v. Homewood, 5 
 C.B N.S. 546 ; Gibson r. Hammersmith 
 By. 32 L. J. Ch. 337. 
 
 Heap 11. Barton, 12 C.B. 274 ; Boffey v. 
 Henderson, 17 Q.B. 574 ; ex parte Brook, 
 supra, ^^. 
 
 ™ Saint V. PiUey, L.R. 10 Exch. 137. 
 
 "1 Amos and F. 89 ; Woodfall, 645. 
 
 ^*2 Foley v. Addenbrooke, 13 M. and 
 W. 174. 
 
273 
 
 CHAPTER XIV. 
 
 RENT. 
 
 The rule that a reservation of rent is of the essence of a contract inter easen- 
 of lease has been already dealt with, and those qualifications 
 of the rule set forth, which obtain in questions between the 
 tenant and the lessor or his heirs,^ and in questions between the 
 tenant and the lessor's singular successors.^ It now remains to 
 examine the law of rent in its other aspects ; and it may be 
 a convenient division of a large subject to explain in the present 
 chapter the nature of the tenant's obligation to pay rent, and 
 the mode in which that obligation is discharged; in the next 
 chapter, the time of payment, involving the law of terms or 
 term-days and apportionment ; and in the following chapter the 
 remedies open to the landlord for enforcement of his correlative 
 right. 
 
 In law, as distinguished from political economy, rent is the Definition, 
 return, in money, produce, or other moveables, due by a tenant 
 for the possession and use of the subject of a lease. As it is very 
 doubtful how far the specific services, which may still be lawfully Services, 
 reserved in a lease ^ are enforceable by means of the compulsitors 
 which are available for enforcing the payment of rent, it will be 
 the safer course to treat obligations dealing with such services 
 (where and if they anywhere survive) as covenants or conditions 
 of the lease.* The only services which are commonly to be found 
 in modern leases^ — the furnishing of carriages in improving 
 the obligant's farm — are unquestionably part of the rent. But 
 where subjects are occupied by a servant during service, his 
 occupancy is more properly regarded as part of his wages or 
 
 '■ Supra, p. 101. * They satisfy the requirement of rent, 
 
 2 Supra, p. 129. however, in 1449, c. 17 ; supra, p. 129 — 
 
 ' Supra, p. 130 ; 1 Geo. I. sess. 2, c. 54, eg., an obligation to cart coals to the 
 
 sects. 10-14 ; 20 Geo. II. c. 50, sects. mansion-house. 
 
 21, 22. 5 See 1 Jur. Styles, 576 et seq. 
 
 S 
 
274 
 
 RENT. 
 
 Due in virtue 
 of stipulation. 
 
 Extension of 
 the term. 
 
 remuneration than as held under a lease in which his services 
 constitute the rent. 
 
 It is involved in the above definition that the rent must be 
 due by stipulation.^ The term has, however, been somewhat 
 loosely used in the Books as applicable to the consideration due 
 to the owner of a subject by an occupant who cannot overcome 
 by evidence the presumption that ' a party in possession is liable 
 ' to pay the real worth of tbe subject occupied,' and that ' an 
 ' occupant, though no direct obligation to pay rent is proved, is 
 ' bound to pay the annual value of the subject, the onus lying on 
 ' him to show that he got it for less or for nothing at all.' '' 
 This rule was given effect to where there had been possession for 
 years without written lease, and the quantum was fixed at the 
 rent obtained both before and after the possession.* The same 
 mode of estimating the annual value was available and was 
 adopted, where vendors of a mill, authorised by the purchasers 
 to let it, and being unable to do so, took possession themselves, 
 without consulting the purchasers and obtaining fresh powers, as 
 they ought to have done.^ In one case, where there had been 
 possession under a lease which was ultimately reduced, the stipu- 
 lated rent was adopted as a reasonable consideration ; but the 
 terms of the report suggest (as is manifestly just), that this was 
 no conclusive estimate of the annual value for the period of actual 
 possession. 1" In the most recent case the circumstances and the 
 determination of the sum due for possession were too peculiar to 
 be instructive as a precedent. ^^ 
 
 I. Forms of Eent. 
 
 Rent is almost always payable in money. When the amount 
 or part of it is a fixed sum set down in the lease itself, or a sum 
 ascertained by remit to arbiters, the rent is in whole or part 
 known as a money rent. If the obligation of the tenant is 
 to deliver so much grain or other commodities, alone or in con- 
 junction with a money rent, the prestation is in whole or part 
 known as a grain rent, kain rent, or produce rent. If, in the 
 Royalty: lord- third place, the contract goes to the destruction or removal of the 
 siibject let — as in the case of minerals — and the tenant is bound 
 to deliver part of the subject he has dissevered, the prestation is 
 
 Modes of pay- 
 ment. 
 
 Money. 
 
 Grain : kain ; 
 produce. 
 
 "Brown v. Soott, 1859, 22 D. 273; 
 Blair v. Galloway, 1863, 16 D. 291 (see 
 terms of interlocutor). 
 
 ' Per L.J.-O. Monoreiff in Gl«n v, Roy, 
 1882, 10 R. 239, 
 
 8 Young V. Cookbum, 1674, M. 11624. 
 ^ Wilson V. Pollock, Gilmour & Co., 
 1827, 6 S. 3. 
 " E. Fife V. Wilson, 1864, 3 M. 323. 
 11 Glen V. Roy, svpra, '. 
 
MONET AND VICTUAL EENT. 275 
 
 known as a royalty or lordship. The produce rent or royalty 
 deserves the name none the less, though the lease contains provi- 
 sions whereby the payment in kind can be commuted according 
 to a fixed tariff. 
 
 1. Money Rent. 
 
 The amount due may be either a sum ascertained in the Ascertained, 
 lease, ^^ or a sum ascertainable in a stipulated way. In the first 
 case there is no difficulty. In the second case the ascertainment Asoertain- 
 
 able — by a 
 
 usually takes place by means of a reference. Thus, where a sub- reference, 
 lease was agreed on at a rent to be afterwards fixed by valuators, 
 and before anything was done towards that end the sublessee 
 offered to assign his right to a third party, it was held that this 
 offer was no bar to his implementing the condition of his right 
 by obtaining an award, which though pronounced before, was 
 intimated to him after, his offer had been accepted. ^^ Probably 
 in order to bind the sublessee and his assignee such an award, 
 though merely on a reference to valuators and not on a submis- 
 sion to arbitration in the stricter sense of the word, would have 
 to be probative, as inserting a clause into the sublease.^* If so, 
 it may be gi'avely doubted whether the award in the case cited 
 being informal could be cured by the cedent's payment of the 
 sum fixed in it made at an interval after he had relinquished 
 possession.^* In the absence of contrary stipulation, the tenant 
 is at the risk of the delivery of the rent to the landlord or his 
 known agent on the ground of the subjects let.^^ If there be 
 double distress, the tenant is liable only in once and single pay- 
 ment, and should throw the rent due into a multiplepoinding.^^ 
 
 2. Grain or Victual Rent, and Kain. 
 
 The rent of agricultural subjects was at one time not uncom- Advantages 
 monly payable in kind — at so much grain of the different sorts ^%f^^^^^' 
 produced on the farm, in lump quantity or per acre ; provision 
 being usually made in the lease itself or by subsequent agreement 
 for converting the return into money, according to the fiars' prices 
 for the year or for an average of past years, or according to some 
 other known standard, within definite limits of maximum and 
 minimum. The practice has yielded in great part to the inroads 
 of the modern commercial conception of the relation of landlord and 
 tenant, and has been in most cases superseded by the stipulation 
 
 12 In terms of the Coinage Act, 33 of the case ; but there was no valid ob- 
 
 Vict. c. 10, sect. 6. jection to the award as too late. 
 
 1' Robertson v. Winans, 1885, 12 E. " Cr. 2.3.37 ; 1 Bell, Leasee, 225. 
 
 419- " Cochrane v. Hamilton, 1630, M. 
 
 1^ Diw. L. Young in last case. 281 9. 
 
 i" This is L. Eutherfurd Clarks view 
 
276 RENT. 
 
 of a money rent. Yet the older system enabled the two parties 
 who were chiefly interested in the land to share equitably in the 
 prosperity and adversity of what, in spite of modern notions, is in 
 reality to a large extent a joint enterprise, liable, in an unusual 
 degree, to fluctuations of fortune. So that it would be rash to 
 anticipate that money rents shall ever become universal, and im- 
 prudent to omit all notice of victual rent. The minor prestations 
 towards rent, at one time usual, and still surviving in some 
 districts, consist of delivery of kain, kain-fowls (flying customs),i^ 
 custom-wethers, and fish. The amount frequently depends on 
 usage ; and conversion into money at a rate agreed on is generally 
 for the interest of both parties. 
 
 Eisk. If there be no provision for conversion into money, and the 
 
 landlord refuses to receive the victual rent when offered to him 
 in due time, the tenant is liable only for the fiars' prices of the 
 year ; and if the grain perish by lying on his hands, the landlord 
 must suffer the loss ; but if the tenant do not offer his rent in 
 kind, when bound to do so by his lease, he must account to his 
 landlord according to the ' neighbouring ' or ' selling ' prices at the 
 date when due, though exceeding the fiars ; ^^ unless his failure 
 to offer it arose from the pendency of negotiations for conversion.^" 
 Failure to deliver the rent grain timeously may involve liability 
 
 Sort of grain, for damages thereby entailed on the landlord.^^ The question, 
 whether the grain delivered must be the produce of the land or 
 may be fair marketable grain of good quality obtained aliunde, 
 
 Commutation, will depend on the terms of the rent clause.^^ It is a question 
 of fact, which may be sent to a jury, whether in any case a grain 
 rent has during the currency of a lease been altered into a fixed 
 money rent, and whether the change is a permanent one, not 
 merely an occasional abatement.^^ 
 
 ■Weights and Under the Weights and Measures Act, 1824,-* which had in 
 easures ots. ^j^^ uniformity of calculation according to the imperial standards, 
 and dealt with contracts, bargains, sales, and dealings for any 
 work to be done, or for any goods, wares, merchandise, or other 
 thing to be sold, delivered, done, or agreed for by weight or 
 measure, it was conclusively settled on the principle of ejus- 
 
 1^ See a case of feu-duty — Hope v. 1205. 
 Aitken, 1872, 10 M. 347. These dues to =» E. Elgin v. Wellwood, 1825, 3 S. 
 
 a slight extent neutralised the flucuations 422 (N.E. 296). 
 (which in modern times have become more -^ Ersk., 5?ipr'o, '". 
 
 important) in meat, and other produce -^ E. Elgin v. Wellwood, supra, ^. 
 
 besides grain. ^^ Baillie v. Eraser, 1853, 15 D. 747. 
 
 '9 Barclay v. Simson, 1682, M. 4413 ; ** 5 Geo. IV. c. 74, now repealed ex- 
 
 Ersk. 2.6.40 ; Bankt. 2.9.27 ; B. Pr. cept sect. 25, by 41 & 42 Vict. .;. 49. 
 
ROYALTY OR LORDSHIP. 277 
 
 dem generis that a stipulation for rent by boll, firlot, and peck 
 per Scotch acre let, was not struck at by the Act so as to enable 
 the landlord to resile. ^^ Further, the "Weights and Measures 
 Act, 1835,28 which enacted (sect. 11) that 'a stone shall in all 
 ' cases consist of fourteen standard pounds,' did not exclude proof 
 that in calculating rent which depended on the price of cheese 
 ' per stone according to the highest fiars of the county,' the tron 
 weight of twenty-four pounds to the stone was intended by the 
 parties — the view that was taken by two of the Judges at least 
 being that the Act applied only to ' trafficking ' in the commodity, 
 not to the case under dispute. ^'^ The subsisting statute of 1878 2"* 
 substantially follows the phraseology of the Acts of 1824 and 
 1835. So that the same rules will still be applicable, though 
 there may be a faint doubt whether the new provision that ' all 
 ' tolls and duties charged or collected according to weight or 
 ' measure' are to be regulated by the imperial standards, may 
 not apply to rents (sect. 19).^' 
 3. Royalty or Lordship. 
 
 As has been already observed,^" a lease of minerals in considera- 
 tion of a rent is more properly a sale in consideration of a price 
 payable by instalments. In entire consistency with this view it 
 is usual to stipulate, either alone or as an alternative to a money 
 rent, in the option of the landlord, for a certain portion of the pro- 
 duce, to be delivered in kind or convertible into money at the 
 selling price at the hill, wharf, or place of delivery.^^ Or, more 
 
 25 Henry v. M'Ewan, 1832, 10 S. 572, ments) ; and in Ersk. 1.4.6 ; 2 Hunter, 
 
 aff. 7 W. and S. 411 (there was personal 273 ; 1 Connell on Tithes, 431 ; Barclay, 
 
 bar, but this element was not required for Dig. sub voce ; and A.SS., cases, reports, 
 
 a decision). and returns therein mentioned. 
 
 =« 5 & 6 Will. IV. c. 63, repealed by 2" Supra, p. 67. See the use of the 
 
 41 & 42 "Vict. u. 49. term in ascertaining the 'free yearly 
 
 ^ MiUer v. Mair, 1860, 22 D. 660 ' rent ' of the Aberdeen Act (5 Geo. IV. 
 (there were of course no fiars' prices for o. 87), where the entailed estate contains 
 cheese, and there was no market price for minerals worked, in Wellwood v. Well- 
 it except by tron weight). wood, 1848, 10 D. 1480, 11 D. 248 ; 
 
 28 41 k 42 Vict. c. 49, sects. 19 and Douglas v. Scott, 1869, 8 M. 360 ; Chris- 
 
 14. tie, 1878, 6 R. 301 ; and in Taluation for 
 
 '" Compare with this the phraseology rates and taxes, Mackintosh v. Playfair's 
 
 of Act, 1824, sect. 15, and Act, 1835, Trs., 1841, 3 D. 893 ; Valuation Act, 17 
 
 sect. 15. The subject of fiars' prices & 18 Vict. c. 91, sect. 42 ; Carron Co., 
 
 belongs rather to local government law 1864, 4 M. 1133 ; Summerlee Iron Co. 
 
 than to the law of leases (with which it 1875, 4 R. 1146 ; Kirkmabreck Heritors, 
 
 has little connection in practice). It may 1861, 24 D. 1456. 
 
 be best studied in pamphlets by G. Pater- 3i j j„j, styles, 643. In coal, the pro 
 
 son (Histor. Aco. of Fiars) ; W. Hector portion is usually one-fifth to one 
 
 (Fiars' Prices).; N. Elliot (Position of tenth ; lead and tin, one-sixth. 
 Fiars' Prices ; Conversion of Gr,iin Pay- 
 
278 KENT. 
 
 commonly, in lieu of the fixed money rent, at the landlord's 
 option a lordship or royalty is reserved of so much money per 
 ton of output, the rate being different for mineral of different 
 intrinsic value. ^^ There is sometimes a further provision securing 
 to the landlord a participation in the good or evil fortune of the 
 mine or quarry by means of a sliding scale of royalty depending 
 on the market price of the mineral won, raised, and carried off^^ 
 from time to time.^ To enable the landlord to check the 
 accuracy of the amount of lordship offered or paid over to him, 
 the duty is imposed on the tenant to keep regular and accurate 
 books, entering into details of the working, keeping separate the 
 output from the subjects let and the output from other lands ; ^° 
 to see to the accuracy of weighing ; to exhibit the books, and to 
 transmit accounts made up from them periodically.^^ The land- 
 lord sometimes reserves power to appoint a check-grieve or clerk 
 to look after his interests. The coal used by the miners and in 
 the pit is exempted from contribution. ''' The landlord is not 
 barred from claiming arrears through having accepted the fixed 
 rent for years owing to the erroneous nature of the tenant's re- 
 turns.^* 
 Cases. Not much light is thrown on the interpretation of these clauses 
 
 by decided cases. The lease does not exclude proof of an altera- 
 tion subsequently made in its terms by agreement between the 
 parties, as, for example, with regard to the rate of conversion.^' 
 Rent is none the less liquid, and the right to it may none the 
 less be enforced by diligence on the lease, though the amount has 
 to be made out from the books in proportion to the output.*" 
 Though a lease does not particularise the amount of detail into 
 which the periodical account must enter, an obligation will be 
 inferred to afford such information — as to output, prices, and 
 classes of mineral — as will enable the landlord to have an efficient 
 check; and he is not understood to dispense definitively with 
 demanding an account by neglecting to require periodical pro- 
 duction of accounts for a considerable period of time.*^ 
 
 '- SeelJur.Styles, 608, 626,656, 665, 36 i jur. gtyieg, 612, 628, 646, 657, 
 
 (shale), 679 (quarry). 666. 
 
 33 See VTaugh v. Eussel & Son, 1870, s? Ibid. 613, 630, 644, 657, 667. 
 
 7 So.L.R. 222. 38 Simpson's Asylum Trs. v. Gowans, 
 
 3^ 1 Jur. Styles, 637, 665. 1874, 11 Sc.L.R. 309. 
 
 ^ See circumstantial case where the '» Carmichael v. Tait, 1823, 2 S. 485 
 
 option as to each of two subjects let (N.E. 430). 
 
 was preserved, though worked together, *> Johnston v. Inglis, 1832, 10 S. 260. 
 
 Steuart v. M'Andrew & Co., 1850, 13 D. « Adam v. Napier, 1843, 5 D. 736. 
 
 434. 
 
PAYMENT. 279 
 
 Where, as in the ordinary case, rent and royalty are stipulated taking up 
 for alternatively, it is not unusual to insert a clause conferring a 
 power to make up shorts or short workings, whereby it is provided 
 that, if the lordships be not so great as the fixed rent in any 
 year, the deficiency may be made up in succeeding years ; on 
 the footing that in no year shall less than the fixed rent be 
 paid.''^ 
 
 4. Miscellaneous Prestations. 
 
 Services have been already referred to. Customary fees or 
 perquisites to barony-officers cannot be exacted where the obliga- 
 tion to pay them is omitted in a regular lease which deals with 
 the tenant's liability for rent." Herezelds (heriots) are obsolete.** 
 The dues paid for stalls in public market-places are really rents, 
 the amount of which is fixed by custom or statute.*^ 
 
 II. Discharge of the Obligation to pay Rent. 
 
 This discharge may be brought about in various ways. 
 
 1. Payment. 
 
 (a) Mode of Payment. 
 
 Here the general rules relating to the extinction of obligations 
 apply. *^ To operate extinguishment of the debt, payment should In full. 
 . be made in full; by the debtor or some one on his behalf; to By debtor, 
 the true creditor, to his heir who has a title to discharge it, to To creditor, 
 some one on the creditor's behalf, as trustee, factor, &c., or to one 
 who has been held out by the landlord as having authority 
 to discharge the rent ; and lastly, in the honest belief of this 
 recipient's title to discharge. The last point — the doctrine of 
 hovxx fides — deserves further notice. 
 
 Though each case depends in a peculiar degree on its own in bond fide. 
 circumstances when bona fides is in question, it may be useful 
 to notice the cases which have occurred in practice. The tenant 
 is entitled to pay rent to his landlord, who, though notoriously 
 a traitor, is yet unattainted *'^ down to the date of citation in 
 a special declarator of escheat ; *^ to a liferentrix in possession at 
 the date of actual payment — her husband (to whom the rents 
 
 ^ 1 Jur. Styles, 610, 627. Flashers v. Mags., 1822, 2 S. 96 {N.E. 
 
 ** Ogilvie V. Gruar, 1770, HaUes 364. 88). 
 
 ** See 2 Hunter, 285 ; Skene 8.1! ; Balf. ^ St. 1.18.3; Bankt. 1.24.5; Ersk. 
 
 199; Cr. 2.8.32, 2.10.38; St. 2.3.80; 3.4.1 ; B. Pr. 556 ; More'a Notes, 124. 
 
 Bankt. 2.3.172, 2.9.69; Ersk. 2.6.10, and " Balmerinoch r. Durham, 1655, M. 
 
 cases M. 5407 seq. 1777. 
 
 « Thomson v. Boyd, 1824, 2 S. 735 ■'^ Blackbumi;. Wilson, 1610, M. 1786; 
 
 (N.E. 674); Reid o. Edinburgh Mags., Cleghom's Donatar r. Tenants, 1628, M. • 
 
 6th Dec. 1810, F.C. 72; Kirkcaldy 1787. 
 
280 RENT. 
 
 would otherwise have gone, jure mariti) having died a rebel after 
 the date when they became due ; « to a donatary before intima- 
 tion was received by the tenant of an assignation by his rebel 
 landlord to a third party ; «" to an apparent heir (who let the 
 land), before the tenant received intimation of a preferable right 
 by infeftment;" to an apparent heir, his elder brother being 
 supposed to be dead ; ^^ to the landlord in advance under a new 
 arrangement made subsequently to the lease, but long before the 
 question arose ; ^^ to the landlord, after an interpellation b,y a 
 creditor had been tacitly relinquished by mora ; ** or to the 
 lessor, who has sold his estate without the cognizance of the 
 tenant. ^^ 
 Not in bond But payment has been held not to have been made in bond 
 
 ^'^^- fide, when made to the landlord then in non-entry, after his 
 
 superior had raised action against the tenants ; ^^ when made 
 capriciously and as an innovation on previous possession, though 
 to a party infeft ; ^'' or after citation in an action of maills and 
 Premature. duties not relinquished by the pursuer. ^^ In all, questions with 
 donataries, creditors doing diligence,^' and singular successors of 
 the landlord,''" it is a note or mark of mala fides or collusion if 
 payment have been made prior to the stipulated date of payment 
 to the landlord, ^^ or his assignee, ^^ or certain creditors,^' or his 
 factor,^* whether the competition which raises the question began 
 before or after the payment.^^ There is no authority and there 
 seems to be no reason in favour of the view ^^ that the rule is re- 
 laxed if payment take place in the interval between the legal and 
 the conventional term of payment.*^ The rule that forehand pay- 
 
 « Steuart's Donatar v. Tenants, 1624, ^ Home v. Kelloe Tenants, 1666, 1 B.S. 
 
 M. 1778 (question reserved between don- 522. 
 
 atar and liferentrix). *' But see op. of L. Kinloch in David- 
 
 ™ Kennoway v. Mowat, 1638, 1 B.S. son v. Boyd, infra, ''" ; but the doubt 
 
 102. seems not to be justified. 
 
 =1 M'GiU V. Crawford, 1716, M. 1783. «» Ly. Traquair v. Howatson, 1667, M. 
 
 5" Fersie v. Burnett, 1711, M. 1783. 10024, 6221. 
 
 5' York Buildings Co. v. Garden, 1736, "^ Home v. Caimcross, 1602, M. 10021 ; 
 
 M. 1784 ; Elch. B. and m. fides, 2 (be- Cleghorn v. Tenants, 1628, M. 10022, 1 
 
 tween legal and conventional terms). B.S. 249. 
 
 ^ Robertson „. Orme, 1755, 5 B.S. '^ Wilson v. Warrook, 1611, M. 10022. 
 
 838 (citation in maills and duties, seven ^ Wardlaw's Donatar v. Brown, 1695, 
 
 years) ; Garden v. Lindsay, 1757, 5 B.S. 1 B.S. 354 (bond). 
 
 855 (decree of maills and duties, fourteen ^ Wbittinghame v. Hatelie, 1650, 1 
 
 months). B.S. 474 ; Haggart v. Miller, infra, ^. 
 
 ==B. Br. 561. s'Ersk. 3.4.4. 
 
 ^ V. Annand v. Elliston Tenants, 1622, «« B. Pr. 562 ; 2 Hunter, 413. 
 
 M. 1777. 67 Home v. Caimcross, supra, ^\ The 
 
 '«■ Porterfield v. Cunningham, 1629, M. case of York Buildings Co., supra, ^', 
 
 1781. proceeded on a change of system. 
 
ASSIGNATION OF BENT. 281 
 
 ment does not protect against a demand for payment over again 
 does not hold where the land is in point of fact forerented ; «s 
 or where the original payment was made to a factor according 
 to an arrangement which was within the lines of good adminis- 
 tration and was otherwise within the factor's powers to make ; ^^ 
 or where the premature payment having been made to the 
 landlord the demand for second payment is made by his bank- 
 ruptcy trustee, who takes over the estate tantum et tale as the 
 bankrupt had it.™ 
 
 (b) Parties to whom and by whom Payment is Due. 
 
 (1) Right to Bents. 
 
 The parties who are entitled to receive rents are the landlord, Landlord, &c. 
 his heir and other representatives, according to rules which will 
 be commented on in the following chapter ; "i his creditors who 
 have taken the proper steps by action or diligence ; ''^ and his 
 assignees to the rents. It falls to notice here only the position 
 of such assignees. 
 
 The assignation which constitutes their title may be either Assignees to 
 a simple assignation to rents or part of a bond and disposition ''^"*^' 
 in security or other heritable bond. They are entitled in either 
 case to pursue an action of maills and duties, and to take the 
 benefit of hypothec where that security survives, for with the 
 principal right passes the accessorial right to all competent 
 remedies. The effect of such assignations cannot be better stated 
 than in the words of Mr. Bell ^^ : — ' (1) Where the assignation is 
 ' by personal deed, possession must be taken either by intimation 
 ' or by decree of maills and duties, which proceeds on an action 
 ' against the tenant founding on the assignation and concluding 
 ' for decree adjudging the rents to be paid to the assignee. 
 ' Erskine ''^ denies that such assignations have effect against 
 ' singular successors, and his doctrine seems to be law. (2) 
 ' Where the conveyance is by disposition or heritable bond, 
 ' the sasine is a sufficient completion of the creditor's right to 
 ' the rents, upon this principle that the rents are an accessory 
 ' of the real right to the lands. The same principle leads to this 
 ' consequence that personal assignations of rents, though effectual 
 ' while the feudal right continues in the cedent or common 
 ' debtor, lose their force when the real right is transferred to 
 
 ^ E. Lauderdale <.. Swinton Tenants, ^ Infra, p. 304. 
 
 1B62, M. 10023. " gee supra, p. 44. 
 
 ^ Haggart v. MiUer, 1838, 16 S. 1058. " j B.C. 757. 
 
 '» Davidson u. Boyd, 1868, 7 M. 77 ~* Ersk. 3.6.5. 
 (paid 29th Oct., sequestration 9th Nov.). 
 
282 
 
 KENT. 
 
 ' another. The purchaser of lands, therefore, or an heritable 
 ' creditor completing a real right to the lands carries the rents 
 ' in competition with assignations, however completed. The 
 ' only security over rent, effectual against sasine in the lands, 
 ' is one which is not confined to the rents themselves, but takes 
 ' them as an accessory to the feudal right.*''' 
 Intimation. Apart from questions between assignees to rents and creditors, ^^ 
 
 it has been decided that mere intimation of an assignation to 
 the tenant does not make the assignee liable to account for rents 
 if he does not proceed actually to uplift them ; ^' though it 
 interpels the tenant from paying to the cedent the rents due to 
 him,^^ unless it is departed from expressly or tacitly as shown by 
 the conduct of parties.'^^ The assignation carries all future rents 
 while matters remain unchanged, and it is no objection to its 
 completion that intimation was made to the tenants at a date 
 Arrestment, when nothing was actually payable by them.^" If there be a 
 dispute as to the validity of an assignation, the proper course is 
 for either party pending an action of reduction to get the rents 
 thrown into a multiplepoinding, but if, instead of that the assignee 
 arrests rents in the tenant's hands, the cedent (or his successor) 
 cannot obtain a loosing of arrestment, since the assignee's title is 
 still unreduced.^^ 
 
 (2) Parties under Obligation to Pay. 
 
 The position of the lessee, his heirs, representatives, and 
 assignees has been already examined. It is only necessary to 
 add in this place that ' the liability for rent follows the right to 
 the privileges which the lease confers,' unless the contrary be 
 expressly provided.*^ 
 
 (c) Discharge. Proof of Payment. 
 
 The discharge may be either express or tacit. 
 
 (1) Express Discharge. 
 
 This does not require to be proved by a probative writing ; the 
 
 ''5 Hamilton v. Alexander, 1622, M. 
 2813 ; Kelgour v. Thomson, 1628, 1 B.S. 
 245 ; Huntly v. Hume, 1628, M. 2764, 
 2814 ; Ly. Borthwick v. Catkune Tenants, 
 1632, M. 2815 ; Morison v. Orchardton 
 Tenants, 1635, M. 2816 (with which cf. 
 Samuel v. Samuel, 1627, M. 2813) ; E. 
 Loudon V. Ross, 1734, M. 2818 ; E. 
 Buohan's Creds. v. E. Cardross,- 1741, 
 Eloh. Competition, 6 ; Webster v, Donald- 
 son, 1780, M. 2902. 
 
 "" See supra, p. 44. 
 
 '^ Garden ?■. Lindsay, 1757, 5 B.S. 855. 
 
 ™ Hope V. Wauch, 12th June 1810, 
 E.G. 170; Bruce „. Buchan, 1684, M. 
 12609. 
 
 '■" Balfour v. Lyle, 1833, 10 S. 853, 
 11 S. 906, aff. 2 S. and M'L. 1. 
 
 8" Elowerdew v. Buchan, 1835, 13 S. 
 615 ; Hope v. Wauch, supra, '^ (therein 
 differing from arrestment). 
 
 81 Crawford v. Eitchie, 1837, 16 S. 107. 
 
 8^ See Burns v. Martin, 1885, 12 E. 
 1343, rev. 14th Eeb. 1877, supra, p. 155. 
 
EXPRESS DISCHARGE. 283 
 
 subscription of the landlord ^^ or of a person duly authorised by 
 him to grant discharges ** being sufficient authentication. This 
 is so, even in a question with singular successors of the landlord, 
 if the discharge was granted debito tempore — before intimation.^^ 
 It was even at one time held that on account of the rusticity 
 of tenants a discharge was sufficiently instructed by a fitted 
 account written but not subscribed by a factor and by him 
 delivered to the tenant ;^'' or by a factor's holograph account- 
 book though neither subscribed, nor delivered, nor regularly 
 kept ; ^'^ but it is thought that the only mode of using these 
 documents now-a-days would be by putting them before the 
 party in a reference to his oath. A subscribed docquet approving 
 the old tenant, indorsed on the scroll of a new lease on which 
 possession was never taken, is no discharge of rent due under the 
 old lease.^ It will in every case be a matter of construction 
 whether a discharge be general or only applicable to specified 
 items in account,^* or whether a general discharge (of all debts) 
 granted by a landlord to his tenant will include rents.'" Where 
 the lease is constituted by writ, payment of rent under it can only 
 be proved by writ or oath,'^ unless it take the form of delivery of 
 produce in kind,'^ or of a transaction involving such delivery,'' 
 which is proveable prout de jure ; and the rule applies though 
 the term's rent be less than £100 Scots,'* or the claim be restricted 
 to that amount.'^ The oath on reference is subject to the usual 
 rules as to qualifications extrinsic and intrinsic.'^ Thus, in order 
 to bring in an alleged agreement to allow counter-claims in 
 extinction of rent, there must be proved something more than an 
 
 ^ Schaw V. Tenants, 1667, M. 16966 ; ported. As to the discharge of additional 
 
 Preston v. Scott, 1667, M. 11397, 16967 ; pactional rent see infra,in chap. xvii. the 
 
 Boyd V. Storrie, 1674, M. 12456, 16968 ; cases of Hunter v. Brbadwood, 1854, 16 
 
 Glendinning v. Glendinning, 1685, M. D. 441 ; Baird v. Mount, 1874, 2 R. 101. 
 
 9213 ; A. V. Cunningham, 1684, 2 B.S. " 1 Dickson on Evid. § 606 ; Romano 
 
 66. n. Nisbet, 1609, M. 12355 ; Job v. Ker, 
 
 ^ See Holbum v. Mayne, 1687, 2 B.S. 1624, 1 B.S. 21 ; Dawling's Bairns v. 
 
 109. Balmerinooh, 1627, M. 12407 ; and see 
 
 ^ Bruce v. Buchan, supra, '». A. B., 1634, M. 12397. 
 
 =« Ainsly V. Chisholm, 1696, M. ^ Bennet v. Foulden, 1629, M. 12360 ; 
 
 12626. Agnew v. Agnew, 1687, M. 12364 ; E. 
 
 ^ Watson V. Brown, 1710, M. 12628 ; Lauderdale v. Tenants, 1662, M. 10023, 
 
 and see the very special case, Mitchell v. 12362. 
 
 Berwick, 1845, 7 D. 382. '= See Mitchell v. Berwick, 1845, 7 P. 
 
 ^ Pentland v. Scott, 1829, 7 S. 502, 382 ; 1 Dicks. § 587. 
 
 afli. 5 W. and S. 28. °* See 1 Dicks. § 606. 
 
 8S Ms. Tweeddale i). Hume, 1848, 10 '= The case of E. Lauderdale, supra, ^^, 
 
 D 1053. was probably one of verbal lease. SeeTait, 
 
 9" Balf. 156 ; St. 1.18.2 ; Bankt. 1.24. Evid. 335 ; 1 Dicks. 611. 
 
 19; Ersk. 3.4.9. Or. 2.10.7 is unsup- 95 2 Dicks. 1647 cS se^g. 
 
284 RENT. 
 
 intention, hint, or half-promise by the landlord, and an under- 
 standing on the part of the tenant.^^ There is the additional 
 statutory requirement that if the rent paid amount to £2 or 
 upwards a receipt stamp for one penny must be on the document 
 when given and be cancelled, or be added within a month on 
 payment of penalties.^^ Where the lease is verbal, payment of 
 rent may be proved by parole, if the sum do not exceed £8, Cs. 
 8d. ; if it be more, the proof is limited to writ or oatb.^^ 
 (2) Tacit Discharge. 
 From three The maxim, called somewhat inaccurately the rule of the 
 
 oeipTs!" "" ^^' apocha triwm annorum, presumes out of favour to rusticity, or 
 as the result of experience in business, from three discharges for 
 consecutive termly payments, inter alia, of rent, that all preced- 
 ing rents have been paid.^"" The discharges must be in writing;^"^ 
 granted either by the landlord or, as is now established, by his 
 factor empowered thereto,^"^ or, probably by third parties holding 
 the landlord's order to receive the rents.^"^ The payment must 
 be periodical — annual and half-yearly terms being the most 
 usual. Though there is no authority, it seems reasonable to 
 suppose that quarterly receipts or even vouchers of shorter 
 periods would also be available. The presumption does not 
 apply to grassums or to rents different in kind from those 
 expressed in the discharges,^"* nor to one discharge or two dis- 
 charges, but only to three separate discharges, for three consecutive 
 terms ; ^"^ nor if any of the discharges is only partial, and is not 
 supplemented by an acquittance for the balance for that term.^"^ 
 It would seem that, though a term's rent paid in full by instal- 
 
 "■ Hunter v. Kinnaird's Trs., 1830, 9 S. 1845, 7 D. 927, after fluctuation in the 
 
 154. Heddle 1). Baikie, 1847, 9 D. 1254, earlier cases — Wedderbum v. Nisbet, 
 
 is a case of lease which illustrates pro- 1612, M. 6322, 7181 ; Preston -u. Scott, 
 
 cedure only. 1667, M. 11397 ; Blaccadder v. Cockburn, 
 
 "» 33 & 34 Vict. ^. 97, sects. 120 seq. 1687, M. 3552, 3 B.S. 648. In E. Mari- 
 
 and schedule. schal v. Eraser, 1682, M. 3651, 11399, 
 
 ™ A.S., 15 June 1597 ; Ersk. 4.2.21 ; the point did not arise purely. 
 
 Tait, Evid. 336, 1 Dicks. § 611 ; E. "^ In Corstorphine v. Tenants, 1636, 
 
 Lauderdale v. Tenants, supra, <>-. M. 11396, the discharges did not ex facie 
 
 1™ Balf. 163 ; Or. 3.6.12; St. 1.18.2; apply to the years following those for 
 
 Mack. 3.4.4 ; Bankt. 1.24.13 ; Ersk. 3.4. which the rent was claimed. 
 
 10; B. Pr. 567,585 ; Tait, Evid. 470 ; 2 i»* Ly. Errol t,. Cruickshanks, 1605, 
 
 Bell, Leases, 22 ; 2 Ross' Lect. 401 ; M. 11392. 
 
 Dickson, End. §384. The rule applies "Torrester'sExrx.i;.L.Dreddon,1544, 
 
 to other periodical payments. M. 11392 ; Morriston, si/jjra, "i, over- 
 
 'oi L. Morriston v. E. Nisbet Tenants, ruling Wemyss v. St. Colme, M. 11391, 
 
 1631, M. 11394, overruling Kennedy, and Wedderburn v. Nisbet, supra, "2. 
 
 1622, M. 11393. io6 l. Rogytji „ -^^^^^ ^ggj^ j^_ j^ggj 
 
 "= Assumed in D. Bucoleuch r. M'Turk, (though balance is judicially tendered). 
 
PRESCRIPTION. 285 
 
 ments may be held equivalent to a term's rent paid in lump,!"" 
 yet driblets of payment, not appropriated to any particular term, 
 yet amounting in the aggregate to full payment for the three 
 terms will not infer the presumption."^ Provided that the 
 discharges were granted by the same landlord or, if by successive 
 landlords, by the later granters in kaowledge of the earlier 
 acquittances,^"^ the sounder view seems to be that it does not 
 matter whether they were granted to the same tenant or to suc- 
 cessive tenants.^^" Where a bill or promissory note for rent due 
 remains in the hands of the landlord undischarged, the presump- 
 tion that it has not been paid is stronger than the presumption 
 from three subsequent discharges ;^^^ some further proof of release 
 is required to neutralise the bill or note, such as an express 
 discharge of all bygones,^^^ or great delay, and discharge in 
 a sequestration or general accounting.^^^ A decree or bond 
 constituting arrears of rent is similarly beyond reach of the 
 apocha.^^* So that the presumption is not conclusive ; it can be 
 redargued by contrary presumption ; or by the debtor's writ or 
 oath ;"^ or by the terms of the receipts if they reserve claims for 
 arrears. There is a converse presumption in favour of the 
 creditor in a periodical payment when repetition of rent due 
 prior to three discharges is demanded on the ground of double 
 payment. ^^^ 
 
 (3) Preseriptio7i. 
 
 (a) Certain house-rents are subject to the triennial prescrip- Triennial pre- 
 tion. The words of the Statute 1579, c. 83 (so far as in point), ^^"p*^™- 
 are : ' All actionis of debt for house-mailles that are not founded 
 ' upon written obligationis be persewed within three zeirs, 
 ' utherwise the creditor sail have na action, except he outher 
 ' preife be writ or be aith of his partie.' ^" There is no exemp- 
 tion in favour of minor landlords."* The Act does not protect 
 
 ^"^ Obs. in Blaocadder v. Cockburn, ^^'^ Home v. Anderson, 1744, M. 
 
 supra,'^'^; of . Hunter ?). L. Kinnaird'sTrs., 11401. 
 
 1829, 7 S. 548, which was, however, less "" D. Buccleuch r. M'Turk, 1845, 7 
 
 a case of the apocha than of express dis- D. 927. 
 
 charge, the receipts produced being for "^ Grant v. M'Lean, 1757, M. 11402. 
 
 the balance of the tenant's rents. "'* Cockburn v. Steuart, 1669, M. 
 
 "8 The obs. in Here's Notes, 123, seems 11398; St. 1.18.2 ; Erak. 3.4.10. 
 sound to this extent. "« Reid i/. Ogilvie, 1729, M. 11400 
 
 ™ Grays. Reid, 1699, M. 11399. (annualrent). 
 
 "« WilKamson v. Balgillo, 1631, M. "' St. 2.12.30 ; Mack. 3.7.7, Obs. in 
 
 11393 (stipend), is later than Ly. Errol loc; Bankt. 2.12.27; Ersk. 3.7.17; 1 
 
 V. Cruickshanks, 1605, supra, "«. B.C. 331 ; B. Pr. 628 ; Tait, Evid. 456 ; 
 
 "' Pringle v. Murray, 1760, M. 1639, 1 Dickson, § 493 ; Napier, Prescription, 
 
 U403; Patrick v. Watt, 1859, 21 D. 714. 
 637 ; Mere's Notes, 123. ™ Ibid. 
 
286 EENT. 
 
 tenants of rural tenements,"^ but probably extends to all urban 
 tenements. ^2° Each term's rent runs a separate course from the 
 date of payment, the tenant's removal having nothing to do with 
 the commencement of the prescriptive period.^^^ A receipt for 
 rent, dated prior to the triennial period, confirms rather than 
 contradicts the presumption of payment.^^^ The writ, by produc- 
 tion of which the prescription is elided, would probably not require 
 to be a formal acknowledgment of indebtedness. Mere absence 
 of entry of payments of rent in the tenant's books is irrelevant, 
 except to show that no such writ exists. ^^^ The oath which 
 elides prescription must be emitted by the tenant himself, not 
 by a manager for him, however exclusive his management may 
 have been.i^* It may be argued, on the terms of the Act and 
 with the help of some authority, that the same strictness would 
 not be required in the admission of writ ;^^^ but the sounder 
 view seems to be that the same rule must be applied to both.^^^ 
 In all cases the constitution and the subsistence of the debt must 
 both be proved by writ or by oath, or by writ as to either of 
 them, and oath as to the other, ^^^ except in so far as the necessity 
 for proof is dispensed with by judicial admission.^^^ If the tenant 
 who was originally liable dies, the reference, if taken, must be 
 made to the oath of his heir ; and both elements must be made 
 out, without distinction as to the date of the ancestor's death, 
 during or after the currency of the triennial period.^^^ 
 Quinquennial (6) By the Scots Act 1669, c. 9, it is enacted that ' mails and 
 ' duties of tenents, not being pursued within five years after the 
 ' tenents shall remove from the lands for which the mails and 
 ' duties are craved, shall prescrive in all time coming; except 
 ' the saids . . . mails and duties shall be offered to be proven 
 ' to be due and resting-owing by the defenders their oaths or by 
 ' a speciel writ under their hands acknowledging what is resting- 
 ' owing ; ' and that all actions for maills and duties ' shall pre- 
 ' scrive within ten years except the saids actions shall be wakened 
 ' every five years.' i^" Shorter prescriptions are saved ; and 
 
 "" Ross V. Fleming, 1627, M. 12735. 1874, 2 R. 255, and cases there. 
 ™ In the sense explained, svpra, ^^ Smith v. Falconer, 1831, 9 S. 474. 
 
 V- 159. 126 As to the wife's prepositura, see 
 
 121 Ersk., B.C., B. Pr., Dicks., Napier, Fraser H. and W. 628 ; B. Pr. 1566. 
 supra, "''; Ferguson v. Muir, 1737, M. ^27 Deans v. Steele, 1853, 16 D. 317 
 11103. (account). 
 
 122 Cumming's Trs. v. Simpson, 1825, 12a Ritchie v. Little, 1836 14 S 
 3 S. 545 (N.E. 377). 216. 
 
 ™ Ibid. 129 CuUen v. Smeal, 1863, 15 D. 868. ' 
 
 "J Bertram & Co. v. Stewart's Trs., i-» Amended as to this by 1685, c. 14. 
 
 prescription. 
 
COMPENSATION. 287 
 
 minorities deducted.^^^ The statute may be pleaded by a tenant 
 or his cautioner "^ or by a subtenant ; ^^^ under a lease either 
 written or verbal ^^* of a tenement either rural or urban ; ^^^ but 
 not in an action of intrusion ; ^^^ nor by a tenant in a lease of 
 rents, or of an estate which is wholly or mainly occupied already 
 by sitting tenants,^^^ since, there being no natural possession, there 
 could be no removal from the lands — the necessary termimus a 
 g'tto."^ The removal need not be regular ; absconding is a 
 sufficient commencement of the period. ^^^ 
 
 The modes in which the prescription may be elided are the 
 same as under the earlier statute."" It is excluded only if the 
 rents have been ' pursued ' within the period. Therefore it is not 
 excluded by partial payments made within that period, for these 
 rather tend to fortify the presumption that all bygones have 
 been paid ; "^ nor by diligence such as sequestration for rent, or 
 arrestment in security if not proceeded with after the removal ; "^ 
 but it is barred by a sequestration which is followed forth after 
 that event ; "^ by a judicial demand during the five years ; ^^ or 
 by the fact, brought out in an action brought by the tenant for 
 improvement compensation, that the rents had been retained by 
 him to set off against this claim."* 
 
 (4) CompeTisation. 
 
 Another answer to a claim for rent is compensation or set-off. Compensation. 
 The nomenclature of our law in this department is by no means 
 clear ; but it seems on the whole the most expedient course to 
 confine the term to the class of cases contemplated in the Scots 
 Act, 1592, c. 143; and to bring together under the head of 
 
 ™ St. 2.12.32 ; Mack. 3.7.11, and Obs. sion, though doubted by Mr. Hunter, 
 
 in Im.; Bankt. 2.12.5; Ersk. 3.7.20; B. 2, 436. 
 
 Pr. 634 ; Tait, Evid. 544 ; 1 Dickson, § ^ Strahom v. Cunningham, 1739, M. 
 
 465 ; Napier, Prescription, 813. 11059. 
 
 "2 DouU V. Holmes, 1695, M. 2077 ; ^^ M'Intosh r. Baillie, 1763, Eloh. 
 
 Duff r. Innes, 1771, M. 11059. Notes, Prescription, 35. 
 
 ^ Daes V. Soougall, 1710, M. 11056. '*> See authorities in note "K 
 
 "4 Lyle V. Crichton, 1694, 4 B.S. 153 ; ^*^ Nisbet v. Baikie, supra, ^^. 
 
 Nisbet V. Baikie, 1729, M. 11059. ^^ Cochrane v. Fergusson, 1830, 8 S. 
 
 "5 Boyes v. Henderson, 1823, 2 S. 190 324. 
 
 (N.E. 169). ^^ Hogg V. Low, 1826, 4 S. 702 (N.E. 
 
 '=« Robertson -v. M'Intosh, 1688, M. 708). 
 
 11053. '" M'Donald v. Jackson, 1826, 5 S. 
 
 ^ Nisbet V. Baikie, supra, ^^, con- 28 (N.E. 26). 
 
 trasted with FairholmtJ. Livingston, 1725, '*° Nioolson v. M'Alister's Trs., 1832, 
 
 M. 11058 ; Ersk. 3.7.20, and see supra, 10 S. 759 ; cf . M'Intosh v. Baillie, supra, 
 
 p. 122 under the Act 1449. Murray v. "^ See a very special case of extrinsic 
 
 Trotter, 1709, M. 11054, seems to have and intrinsic in Heddle v. Baikie, 1847, 
 
 been of this sort and to be a good deci- 9 D. 1254. 
 
288 
 
 KENT. 
 
 Eetention. Ketention the cases in which a tenant is entitled to refuse pay- 
 ment of rent, in respect of a counter-claim, without being able 
 to appeal to the statute. For, though retention applies, 
 strictly speaking, to corporeal subjects only, the term has been 
 usefully extended to the retention of debts, and, inter alia, of 
 rents."'' Of the two, retention, as thus understood, is much the 
 more important ; compensation may be dismissed in a few 
 sentences. 
 
 1592, c. 143. The words of the statute are that ' ony debt de liquido in 
 ' liquidum instantly verified be writ or aith of the party before 
 ' the giving of the decreete be admitted be all judges within this 
 ' realme be way of exception ; bot not after the giving thereof 
 ' in the suspension or in reduction of the same decreete.' It 
 would be out of place to re-examine the rules which a construc- 
 tioQ of this Act has now established."'' It will be enough 
 to point out how far these rules are illustrated by the law of 
 lea'ses. 
 
 Parties. With regard to the parties who can plead compensation, (a) it 
 
 is trite law that they must be debtor and creditor to each other. 
 Therefore, if an adjudger or annual-renter who is infeft claims 
 rent, the tenant cannot plead in compensation a debt due to him 
 by the landlord against whom the adjudication had been led,"* 
 or whose title was burdened with the bond."^ The compensa- 
 tion is good as to bygones for these might and should have been 
 paid to the landlord (his debtor), but not as to rents due after 
 the date of citation. ^^^ An assignee to rents is entitled to bear 
 away rents due after intimation of his assignation in the face of 
 a counter-claim by the tenants against the landlord ; ^^^ and an 
 arrester those due after the date of the arrestment.^^^ As a 
 factor who lets a subject for his constituent cannot set off the 
 rent due under the lease against his own debt to the tenant ; ^^' 
 so conversely a tenant cannot compensate a claim for rent by 
 alleging a debt due by his landlord's factor. A landlord having 
 died insolvent the tenant was entitled to set the rent against a 
 
 "6 B. Pr. 1410. 
 
 '" See St. 1.18.6 ; Bankt. 1.24.23 ; 
 Krsk. 3.4.11 ; Pr. 3.4.2 ; 2 B.C. 118, 
 .553 ; B. Pr. 672. 
 
 i« Clark-s Crs. ■„. Dewar, 1697, M. 
 •2656. 
 
 1^ York Buildings Co. i. Buchan, 1733, 
 M. 2660. 
 
 1™ Elmslie «. Grant, 1830, 9 S. 200, 
 overruling- York Buildings Co., supra,"". 
 
 1=' L. Bowhill a. Jackson, 1709, M. 
 2612. 
 
 152 Miller v. Meldrum, 1756, M. 2618 
 (counter-claim was for a double payment 
 of rent) ; Anderson v. Gordon, 1703, M. 
 4031, is not now law. 
 
 "3 Ferguson v. Muir, 1711, M. 2659 
 (though rent taken payable to factor 
 nominatim). 
 
RETENTION. 289 
 
 debt due to him before the date of the death but not a bill due 
 by the deceased to a company of which the tenant was partner 
 and endorsed to him after that date.^^* 
 
 (6) The debts must be of the same nature and quality. Debts of sam 
 Therefore a grain rent, not convertible, would not be capable of i"*^'*^' 
 being set off against a money debt ; ^^^ and an absolute and pure 
 debt ' already payable cannot be compensated with a conditional 
 ' debt or one whereof the term of payment is not yet come.' ^^ 
 
 (c) The debts must both be liquid or capable of being liqui- 
 dated at once.^^'^ Thus an illiquid claim for the value of melio- Liquid, 
 rations will not be allowed as a reply to a demand for rent,^^* 
 unless the objection be waived."^ The rule may be enforced 
 against the landlord ; as, for example, if he is liable for the prices 
 of stock at outgoing and the value is not yet ascertained in the 
 stipulated mode.^^" 
 
 Compensation does not operate unless it is pleaded : when 
 pleaded it operates as ipso facto extinction of the mutual debts 
 so far as they correspond. 
 
 (5) Retention. 
 
 Eents may be retained in circumstances which do not give rise 
 to the plea of compensation under the statute, if either (a) the 
 landlord is bankrupt or insolvent ; or (b) the landlord refuses or 
 delays performance of some material part of bis obligations under 
 the lease. 
 
 (a) The former sort of retention is part of the law of balancing Balancing 
 accounts in bankruptcy,^^^ and proceeds on the ground of the bankruptcy, 
 injustice of demanding payment in full of a liquid debt due to a 
 bankrupt, whUe leaving the other party only a right to a dividend 
 on his counter-claim in the bankrupt's sequestration or cessio. 
 The debt thus set off against the rent must be such as is capable 
 of being ranked for ; and there must have been a concourse of debit 
 and credit existing prior to the date of the landlord's bankruptcy."^ 
 
 1" Cauvin v. Robertson, 1787, M. ^=8 Hodge v. Brown, 1664, M. 2651 ; 
 
 2581. Johnstone v. Clegbom, 1824, 2 S. 688 
 
 liis Elliot V. Elleis, 1631, M. 2649 ; (N.E. 579). 
 
 Tulliallan v. Crawford, 1664, M. 2559 ; ^^ Blair v. Robson, 1822, 1 S. 470 
 
 Ersk. 3.4.15. (N.E. 488). See case of actual payment 
 
 ^^^ Ersk. ibid. Ijy the hand of a third party, Clark v. 
 
 "' HamUton „. M'Carteney, 1611, M. Dallas, 1711, M. 13213. 
 
 2631 ; Simpson v. A., 1628, M. 12450, i«» Macrae v. Gordon, 1842, 4 D. 1310. 
 
 13240 ; Dun v. Craig, 1824, 3 S. 274 '«i 2 B.C. 124 ; Goudy, Bankruptcy, 
 
 (N.E. 193) ; Mowat v. Denham, 1828, 7 539 ; see Thomson v. Jameson, 1830, 9 
 
 S. 88 ; Johnston v. Inglis, 1832, 10 S. S. 168. 
 
 260, and other cases in the following "^ 2 B.C. 129 ; Goudy, 542. 
 section, 
 
290 BENT. 
 
 In determining questions arising under the latter rule, it must be 
 observed that, unless there be stipulation to the contrary, the 
 continuing obligation to pay rent during the currency of the lease 
 does not enter as an element into the concourse ; but each term's 
 rent becomes a debt only when the term is current and cannot 
 therefore be set off by the tenant till it is due, so that there can 
 be no compensation except for arrears^^^ due, in the case of 
 sequestration of the landlord, at the date of the first deliverance, 
 and in the case of a cessio, at the date of the decree. ^^* Even if 
 there be an express stipulation that the tenant shall have right 
 to retain rent against debt, the publication of the sequestration, 
 cessio, or other form of divestiture is probably as much an 
 interpellation as an arrestment or the intimation of an assigna- 
 tion of rents. ^^^ Of course, if the tenant has a preference for his 
 claim, by adjudication or otherwise, over the other creditors and 
 the trustee in bankruptcy, he is entitled to retain the rents until 
 his debt, principal and interest, is fully paid.^^^ 
 Eefcention (fi) '-The secoud sort of retention is part of the law of mutual 
 
 bankmuto' obligations. ' In mutual contracts, the counter engagements of 
 ' the parties meet and oppose each other ; and unless credit is 
 ' stipulated or given, the performance of the one engagement is 
 ' conditional of the performance of the other.'^^'^ A lease being a 
 mutual contract, this rule ought, if strictly applied, to take this 
 special form in the present relation — viz., that the tenant shall 
 not be obliged to pay and may retain the rent due by him if 
 the landlord has not and till he has performed his part of the 
 contract. A study of the cases which have arisen during two 
 centuries of our law makes it plain that the operation of this rule 
 of equity has been restrained by two considerations, one of them 
 Different from improperly, the other quite justly, given effect to. The law of 
 compensation, compensation, as above explained, has been allowed to influence 
 the decision of cases to which it had no proper application, as 
 being a mode of extinguishing, not of enforcing an obligation. 
 Effect of lease -A-nd a lease is a continuing contract subsisting, it may be, for 
 tinufng Zn- ^ ^°"S period of time, and not like a sale and other transient 
 tract. " bargain, in which the right of retention or lien finds its chief 
 
 i«3 2 B.C. 139. Elch. Tack, 14 ; Martin „. Marshall, 
 
 "* 19 & 20 Vict. c. 79, sects. 42, 102 ; 12 D. 1172. 
 
 43 & 44 Vict. 0. 34, sect. 9. As to the >™ Campbell „. Welsh, 1785, 3 Pat. 
 
 effect of mere insolvency or notour bank- 32. 
 
 ruptcy of the landlord, see Ersk. 3.4.18 ; '^ 2 B.C. 97. See also B. Pr. 71 ; 
 
 2B.C. 129; Goudy, 543. More's Notes, 131; St. 1.18.7; Ersk. 
 
 ^® 2 B.C. 139; see Auohinbreok's 3.4.21; see Dicksons v. Kerr, 1824, 2 S. 
 
 Creds, V. M'Lauchlan, 1748, M. 1736 ; 768 (N.E. 638). 
 
RETENTION. 291 
 
 illustration. This appears to be a legitimate consideration, since 
 there is usually ample security in the tenant's right of possession 
 for the performance of -the landlord's obligations, however 
 material to the tenant's interest these may be ; but this security 
 dwindles towards the close of a lease. A distinction, not easily 
 maintained in logic, but none the less useful in practice, arises Cardinal 
 out of the different nature of certain of the landlord's obligations, of kndiord. 
 If there be failure on his part to fulfil in any material degree his 
 cardinal duty of giving possession and maintaining the tenant in 
 possession, the right of retention may be regarded as absolute. 
 If, on the other hand, the obligation which is broken or unful- Collateral 
 filled is merely collateral to this principal obligation, the tenant's ° ^'^ations. 
 equity is not so apparent. 
 
 Baron Hume^^^ attempts an exposition of the law regarding the Baron Hume's 
 enforcement of such collateral obligations by the retention of rent ; ^"'^*- 
 and his words are worthy of citation, not as having been expressly 
 recognised by the Court, but on account of their apparent reason- 
 ableness. The illustration he adduces is the ordinary one — an ob- 
 ligation in the tack to build houses or enclose land. ' It must 
 ' always be considered that the tenant has in the meanwhile the 
 ' exclusive use of the land (though perhaps less advantageously) 
 ' and reaps the whole fruits (though perhaps less plentiful), and 
 ' thus in the main has performance made him by the landlord. To 
 ' let him retain the rent of successive years, or as much of these 
 ' as he may choose to claim at a venture, would, in the circum- 
 ' stances, be unjust to the landlord.' The rules then suggested by 
 him may be summarised thus : — (1) If there be apparent a just 
 ground of complaint, retention should be restricted to the prob- 
 able amount of damages, if they can be estimated. (2) If the 
 tack does not set forth explicitly the plan [mode] or time of per- 
 formance, there should be a timeful and urgent demand of imple- 
 ment, through a notarial instrument or the like, accompanied 
 with exhibition of a plan. (3) If the damages are illiquid, and 
 the claim frivolous, or at best doubtful ; and if the tack be still 
 current for a series of years 'the plea of retention shall be 
 ' admitted with more difficulty, and be confined within narrower 
 ' bounds.' (4) The plea is ' more favourable where it is applied 
 ' towards the issue only of the tack and to the rent of the last 
 ' year, supposing always that the ground of claim has arisen 
 ' recently, or, if it be older, that the tenant has been duly and 
 ' seriously urgent for it in former years. '"^ 
 
 i«8 In Bowie v. Duncan, 1807, Hume ^^ In another department of the law. 
 
 g jg the exceptions to this rule of mutual obli- 
 
292 EENT. 
 
 "Where right of (a) It is now established that a tenant is entitled to retain his 
 taMng^? rent, if and so long as the landlord fails to put or maintain him 
 in possession of a material part of the subject let.^'^" Thus, in 
 the face of a decree for rent the tenant was allowed a proof of 
 damage caused by his being deprived of the use of a barn which 
 the landlord pulled down when filled with com, and by being 
 prevented from tilling land to which manure had been led ; the 
 ground of the judgment being that ' tenants could not be obliged 
 ' to pay their rents where they had clear grounds of retention 
 ' on account of damages arising from the very subject by which 
 ' they were to pay their rent, though they could not instantly 
 ' verify them, as consisting in facto.'^^^ In a lease of fishings, a 
 tenant was held to be justified in retaining his rent on the 
 ground of injury (alleged and prvmd facie instructed) through 
 the building of a ship-dock at the chief fishing-station.^'^ And 
 where the tenant of a mill withheld his rent on the ground that 
 his landlord had allowed a conterminous heritor to divert water 
 from it so as to diminish the available water-power, no question 
 was raised either at the bar or on the Bench as to the tenant's 
 right to withhold if the facts were as alleged ; and the case went 
 to a jury.i'^ A gas company let ground adjoining their works 
 ' with right to the whole of the ammoniacal liquor and the tar 
 ' which shall flow into the tenant's cistern, produced and aris- 
 ' ing from the company's works.' In a sequestration for rent, 
 the tenant averred that the company wilfully obstructed these 
 substances in their passage ; but failed to prove any amount of 
 .specific loss arising from that cause. There was no doubt, how- 
 ever, on the Bench that, if the facts had stood otherwise, there 
 would have been a sufficient defence.^'^* ' The landlord is as 
 ' much bound to put and continue the tenant in possession, as far at 
 ' least as his own action is concerned, as the tenant is to pay his 
 ' rent. ... If the lessor by his own act withhold from the tenant 
 ' the whole or any material part of the subject of the lease the 
 ' tenant may resist payment to the extent, at least, of what he 
 
 gatioDS are by L.J.-C. Moncreiff classed Corrie v. Stewart, 1882, 22 Se.L.R. 350 
 
 as due (1) to the special nature of the (fall of floor). 
 
 contract ; (2) to the incidental or acci- i'^ Hall v. Ross, 1813, 5 Pat. 729. 
 
 dental character of the stipulation ; or ira Gordons v. Suttie, 1826, 4 Mur. 86; 
 
 (3) its insignificance; TurnbnU«;.M'Lean, cf. Bargaddie Coal Co. ■„. Wark, I860,' 
 
 1874, 1 E. 730, 738. The cases in other 23 D. 44 ; and see Sawers v. M'Connell, 
 
 departments are collected in B. Pr. 71 1874, 1 R. 392, noticed supra, p. 194. 
 
 ^^^}i,^^-'>- "* Kilmarnock Gas Light Co. v. Smith, 
 
 " See supra, p. 200. 1872, n M. .58. 
 
 ''I Buchau V. Leith, 1708, 4 B.S. 716 ; 
 
RETENTION. 293 
 
 ' has suffered. . . . The continuance of the tenant in possession 
 ' may prevent him from rescinding the contract, but will not 
 ' deprive him of his defence to the landlord's demand.' i" Again, 
 in a lease of a quarry the landlord bound himself to make a road 
 which was necessary in order to render the produce marketable. 
 The road not having been made at the term of payment of the 
 first half-year's rent, a petition for sequestration was dismissed on 
 the same ground.^'" The principle extends to the enforcement of 
 conditions of the lease, which are so material as to stand on the 
 same level with stipulations relating to the quantum of the 
 subject let. So that, where a shop was let under the condition 
 that an adjoining shop belonging to the same landlord should not 
 be let to any person in the same trade, and a landlord acquiring 
 by purchase from the lessor violated the lease by selling in the 
 latter shop articles which fell under the monopoly, and persistently 
 refused to recognise the tenant's right to control his trade, the 
 tenant was held entitled to withhold the unpaid rent effeiring to 
 the period of his possession to the extent of the damage he had 
 suffered, in defence to an action of maills and duties, without 
 raising a counter summons. ^'^'^ But it is a condition of the doc- 
 trine that there be averment and proof of some specific part of 
 the landlord's obligation being unfulfilled.^'^ 
 
 (j8) Where the unfulfilled obligation incumbent on the land- oniycoUateral 
 lord is merely collateral to the principal obligation of giving and obligation- 
 maintaining possession, the tendency of the Court has been to 
 refuse permission to the tenant to retain his rent. In some 
 instances it may be thought that this refusal has been contrary 
 to equity. At the close of a lease, it is true, a tenant may retain 
 rent until the amount due to him for meliorations or otherwise is Cases arising 
 paid or accounted for to him, even where the landlord is ajgj^gg"^'^ 
 singular successor of the lessor."^ Of course, where, as sometimes 
 happens,^^" the obligation of the landlord is to pay a fixed sum in 
 recompense for meliorations at the ish, there can be no doubt of 
 the tenant's right to withhold rent pro tanto, on the ground not 
 of retention but of compensation. But it is none the less clear 
 
 I's Per L.J.-C. Monoreiff, 11 M. 61. 647, where the averment of loss of water 
 
 i''6 Guthrie v. Shearer, 1873, 1 R. 181 ; supply was insufficient, 
 but probably some delay in construction "' Supra, p. 131 ; Arbuthnot v. Col- 
 was contemplated and should have been quhoun, 1772, M. 10424 ; Walpole u. 
 allowed some weight. Beaumont, 1780, M. 15249; Bells v. 
 
 ^ Davie v. Stark, 1876, 3 R. 1114. Lament, 14th June 1814, F.C. 645 ; 
 
 (SenMe, right also to rescind, see supra, Stewart v. M'Ra, 1834, 13 S. 4. 
 p. 204). '™ -Sttpi-o, p. 229. 
 
 "8 Humphrey v. Mackay, 1883, 10 R. 
 
during the 
 
 294 RENT. 
 
 in certain cases that retention is competent. Thus, where right 
 of retention was maintained after the ish of a lease for claims of 
 compensation, arising from a stipulation in the lease that there 
 should be a right of deduction from the rent for the value of dung 
 left on the farm, and arising from a promise that the tenant should 
 be repaid for erecting a smithy, decree for payment of the full 
 rent was suspended pending the ascertainment of these claims. ^^^ 
 A later case seems to run counter to sound principle unless it be 
 explicable on the ratio that the outgoing tenant accepted the 
 incoming tenant as his debtor and freed the landlord, whose 
 obligation was to pay for fallow and dung at ish. The decision 
 against the right to retain was laid on the doctrine of liquid and 
 illiquid, and would probably not be repeated.^*^ 
 Cases arising In cases which arise earlier in the course of a lease, the Court 
 has been in the habit of passing a bill of suspension of a charge 
 for rents (if a question for trial is set out) only on caution or con- 
 signation of the whole rent due,^^^ or of refusing the bill alto- 
 gether, though caution or full consignation be offered, and setting 
 the tenant to prove his illiquid claim in a separate proceeding.-'^* 
 la reading the cases which have arisen during the currency of 
 the lease, it is difficult not to arrive at the conclusion that the 
 rule of liquid and illiquid in compensation, the immateriality to 
 tenant of the collateral obligation incumbent on the landlord, 
 and the ample character of the security for performance, which 
 the tenant possesses in the duration of his tenure, have been 
 allowed an undue weight in favour of the landlord. It appears, 
 however, that the tendency of more recent cases^^^ has been to 
 put the parties to a lease on a more equal footing. Thus, where 
 there was sufficient primd facie evidence of short entry at the 
 commencement of a lease, of defective water supply, and of depri- 
 vation of a particular steading and of pasturage in a wood, the 
 plea against retention, which was given effect to,^^" that there was 
 plenty of security in the future rents for the payment of damages 
 
 ^^ Heriot v. Halket, 1825, 3 S. 479 1842, 4 D. 1304. 
 
 (N.B. 333). 184 Thomson v. Coventry, 1833, 11 S. 
 
 182 Dickson v. Porteous, 1852, 15 D. 1 i 725 (implied duty) ; M'Kae v. M'Pher- 
 Hunter(ii. 268) doubts the decision and it son, 1843, 6 D. 302. 
 reversed the judgment of Lord Cowan. iss ^ j,_^ Kilmarnock Gaa Light Co. v. 
 
 183 Clark V. Finlay, 1823, 2 S. 480 Smith ; Guthrie v. Shearer ; Davie v. 
 (N.E. 426) ; Gray v. Sword, 1824, 3 S. 82 Stark ; Humphrey v. Mackay, supra, pp. 
 (N.E. 55); Stewart v. Cameron, 1827, 292-3. 
 
 5 S. 557 {N.E. 524) ; Gray v. Eenton, ™ Bowio v. Duncan, 1807, Hume 839. 
 
 1840, 3 D. 203 ; Carruthers v. Thomson, This case seems overruled by the eases, 
 
 1836, 14 S. 691; see case of partial ««pm, and not to be borne out by Hume's 
 
 consignation— Gumming r. Williamson, own general argument. 
 
RETENTION, 295 
 
 when ascertained, hardly afforded a sufficient remedy for present 
 direct loss. The immateriality of the damage is sufficient to account 
 for the refusal of permission to retain rent for reimbursement of 
 a petty loss to the tenant of an inn through the diversion of a 
 road ;^^^ to a quarrier through non-implement of an agreement 
 providing for an alteration in the access from his quarry to the 
 high road ;^^* to a farmer through the insufficiency of his stead- 
 ing,i^^ or of the fences,^'* or of both.^^^ A case in which power to 
 retain was refused to a tacksman of tolls can only be justified on 
 the ratio either that there was no substantial loss from the 
 impassable state of a part of the road in question, or that the 
 claim was shut out by special agreement.^'^ In a case relating 
 to burgh customs, there seems to have been no warrandice of 
 certain dues which were eventually found to be inexigible.^'^ 
 
 There is no right to retain, where the claim to do so is made Premature 
 by a subtenant on the ground that an action of reduction of the 
 principal lease has been raised, so long at least as no legal pro- 
 ceedings are taken against him ; ^^* nor where it is made by a 
 mining tenant on the ground that the minerals have become 
 unworkable to profit, if he has not taken steps to abandon his 
 lease in pursuance of a clause enabling him to do so in that 
 event after certain proceedings before arbiters.^*^ In the latest Drybrough v 
 case where the doctrine of liquid and illiquid was explicitly °'^''""^'^' 
 founded on there was a very special stipulation, and the judgment 
 may be supported on grounds apart from those adduced. The 
 subject let was a brewery. In the lease the tenants accepted 
 the premises as in good repair, and bound themselves to 
 undertake ordinary repairs, while the landlord undertook, in 
 case any portion of the subjects became ruinous or untenant- 
 able through natural decay, lapse of time, or any other cause, to 
 rebuild or else allow a reasonable abatement of rent. The 
 tenants in defence to an action of maills and duties alleged that 
 part of the subjects had become ruinous and untenantable, and 
 supported their averment by an ex 'parte report from men of 
 skill. The landlord replied that the subjects were tenantable 
 and in the same condition as at entry. Right to retain was 
 
 ^ Brown -o. Gardiner, 1823, 2 S. 319 (see obs. there as to the old and the 
 
 (N.E. 259). There was also recourse modern remedies), 
 
 against the Road Trustees. '"' M'Rae v. Macpherson, 1843, 6 D. 
 
 i»8 Johnston V. Inglis, 1832, 10 S. 260. 302. 
 
 189 Dun V. Craig, 1824, 3 S. 274 (N.E. "^ HiU v. Gordon, 1834, 13 S. 88. 
 193)_ 193 M'Rae v. Smith, 1841, 3 D. 994. 
 
 190 Thomson v. Coventry, 1833, 11 S. i^^ Sprot v. Morrison, 1853, 15 D. 376. 
 725 ; Dods v. Fortune, 1854, 16 D. 478 ^^ Thomson v. Gordon, 1869, 7 M. 687- 
 
296 RENT. 
 
 refused by the Court. It was observed that apart from this 
 clause there would have been no such right; that the option 
 given by it to the landlord led to the same conclusion; and that 
 the existence of the claim must first be ascertained as well as its 
 amount before a claim of retention could arise, at least where the 
 lease had years to run."^ The action was brought only three 
 years after the entry, which was taken in full knowledge of the 
 decayed state of the buildings, so that there was a primd facie 
 presumption against the tenant's case which was not overcome 
 by the report of the experts. 
 
 (6) Abatement or Reduction of Rent agreed on. 
 
 There has already been occasion to notice the deduction from 
 rent which follows on resumption of possession by the landlord 
 in exercise of a reserved right ^^^ and from loss of part of the 
 subject let damno fatali}^^ It remains to consider such abate- 
 ments of the stipulated rent as are brought about by express 
 agreement. The powers of limited owners and of administrators 
 especially of guardians, judicial factors, and heirs of entail in 
 respect to abatements, and the extent to which they may rely 
 on obtaining the help of the Court have been explained in 
 treating of the parties to a lease.'^^ Trustees exercise the same 
 discretion as fee-simple proprietors in their own right. ^'"' 
 Proof. In regard to the mode of instructing such an agreement or 
 
 obligation it has been decided that where (as in all cases that 
 are easily conceivable) the lease has been reduced to writing, the 
 abatement must be proved by the writ or oath or judicial 
 admission of the landlord,^"^ whether it extends to one year or 
 to more years than one.^"^ The main difficulty in construing 
 such obligations lies in determining whether they are merely 
 temporary eases or amount to a reduction of rent for the whole 
 future of the lease. The presumption is, of course, in favour of 
 the smallest possible innovation on a solemn contract of such 
 importance as a lease ; and this presumption will not be over- 
 come by merely producing a series of receipts pointing to the 
 acceptance of a reduced rent for a period of years. ^"^ An admission 
 by the landlord on record is equivalent to, and cannot be retracted 
 by, his oath on reference; and any condition appended to his 
 
 1S5 Drybrough v. Drybrough, 1874, 1 R. (N.E. 412). 
 909. (Kent £445 ; reported annual value -"i Eiddick «. Wightman, 1790, Hume 
 
 of useless portion, £125). 776 ; Law v. Gibsone, 1835, 13 S. 396. 
 
 ™ Supra, p. 191. 202 Gibb v. Winning, 1829, 7 S. 677. 
 
 iss Supra, p. 204. ™ Riddick v. Wightman, supra, ^"i ; 
 
 189 Supra, p. 12. Grant v. Watt, 1802, Hume 777. 
 
 2™ Gill V. E. Fife's Trs., 1823, 2 S. 460 
 
ABATEMENT. 297 
 
 consent to an abatement will be reasonably construed according 
 to the bona fides of the transaction.^"* A continuing obligation 
 will bind the landlord's singular successors, and, so far as not 
 amenable to the rules against undue preferences, his creditors. 
 Thus, where a landlord empowered his factor in writing to dis- 
 charge the tenants on his estate by giving them a deduction of 
 20 per cent., and to acquaint them that this abatement was to 
 outlast their leases, and the writing was acted on for five years, 
 the obligation was held to be incumbent on the trustee on the 
 landlord's sequestrated estate. ^"^ 
 
 The arrangements made in the Lands Clauses Act for the 
 apportionment of rent where part of subjects let is compulsorily 
 taken, have been already explained.^"*' 
 
 ™ Thomas v. Dumbreok, 1834, 12 S. -"^ Lindsay ». Webster, 1841, 4 D. 231. 
 
 285. -"^ Supra, p. 202. 
 
298 
 
 CHAPTER XV. 
 
 TIME : TERMS : APPORTIONMENT. 
 
 Duration of 
 
 Duration 
 clause. 
 
 Bent clause. 
 
 In dealing with the landlord's obligation to give and the tenant's 
 right to obtain possession, it was thought expedient to postpone 
 consideration of the time of entry,^ and to gather together in one 
 place all that it seems necessary to explain regarding the element 
 of time in leases. This plan involves some anticipation of the 
 law of removings,^ but it is justified by the fact that the most 
 important questions, into which time enters as a factor, relate 
 to the right to receive and the obligation to pay rent. There is, 
 moreover, a distinct practical advantage in setting forth in one 
 view the somewhat complicated doctrine of terms and term-days. 
 
 Except in so far as a proprietor is restrained by the limited 
 nature of his title, he may grant leases for any length of time he 
 chooses. The ordinary duration of agricultural leases has for 
 a long period been nineteen or twenty-one years ; purely pastoral 
 farms have been in use to be let for fifteen years or for a shorter 
 term; mines for twice nineteen years ; land for building purposes 
 is frequently let out for ninety-nine years.^ It cannot be said 
 that there is any customary duration in leases of dwelling-bouses, 
 factories, mills, fishings, or shootings ; or that the ordinary dura- 
 tions just mentioned are founded on any consistent or intelligible 
 theory of cycles, lifetimes, prescription, or perfect numbers. 
 
 The ordinary form of the duration clause in a lease of 
 agricultural land appends to the description of the lands the 
 words : ' And that for the space of years from and after 
 
 ' the term of Whitsunday 18 , as to the houses and grass, and 
 ' the separation of the corn crop from the ground [or Martinmas] 
 ' in that year as to the land in crop.' * And by the rent clause, 
 the tenant ' binds and obliges himself, and his heirs, executors. 
 
 ^ Supra, p. 184. 
 ' Infra, chap. xix. 
 
 ■* Supra, pp. 102, 126. 
 
 * 1 Jur. Styles (5th ed.), 569, 574, 590 
 598. 
 
TIME OF ENTRY. 299 
 
 ' and successors whomsoever, to make payment to [the lessor] 
 ' and his heirs, executors, or assignees, of the sum of £ 
 ' yearly in name of rent, and that at two terms in the year 
 and by equal portions beginning the first term's 
 
 ' payment thereof at the term of , and the next pay- 
 
 ' ment at the term of thereafter, in full of the first 
 
 ' year's rent, being for crop and year , and so forth half- 
 
 ' yearly and termly thereafter during the currency of this lease, 
 ' with a fifth part more of each term's payment of liquidate 
 ' penalty in case of failure, and the interest of the said termly 
 ' payments at the rate of five per centum per annum from the 
 ' time the same shall respectively become due during the not- 
 ' payment thereof.' ^ These two clauses, with the exception of 
 that part of the latter which stipulates for penalty and interest, 
 are subject to endless variation, according to the nature of the 
 subject let and the wishes of the parties ; but the above may be 
 accepted as the model clauses, and all others as modifications, 
 agricultural land having been the subject of the earliest leases in 
 Scotland.^ It is proposed to consider — first, the time of entry 
 (involving the time of removing) ; second, the time of payment 
 of rent ; and third, the apportionment of rent. 
 
 I. Time of Entry. 
 
 The date of entry should always be expressed.''' If not, the Actual : 
 right will be presumed ^ to run from the date of the lease ° p'"^^"""® • 
 or from the following term of Whitsunday or Martinmas,^" unless, 
 it is submitted, the contrary be shown as the result of the know- 
 ledge of the contracting parties with regard to the termination of 
 the previous possession. It frequently happens that, on account Past, 
 of entry having been taken, or possession retained, in consequence 
 of a verbal agreement, the lease is dated later than the term of 
 entry. It is then usual in the lease to declare that the entry 
 was so taken ' notwithstanding the date hereof ^^ The lease 
 will then be construed as if it had been executed at the actual 
 date of entry, in so far as any other construction would leave any 
 clause in it insensible. ^^ 
 
 » 1 Jur. Styles (5tli ed), 569, 675, 584. i» Oliphant r. Peebles, 1629, M. 11535 
 
 ^ Dallas, 821 ; Spottisw. 364 ; 2 Ross' (long lease of teinds) ; St. supra, » ; 
 
 Leot. 487 ; 1 Hunter, 53. Bankt. 2.9.5. ; Ersk. 2.6.24. 
 
 ' 2 Ross' Lect. 478. " 1 Jur. Styles, 590 ; 2 Ross' Lect. 
 
 » Mack. 2.6.5, contra. 487. 
 
 " Setoni;. Wliite, 1679, M. 15173; Sb. is Foulis r. M'Whirter, 1841, 3 D. 
 
 2.9.30. 343. 
 
300 TIME : TERMS : APPOETIONMENT. 
 
 Arable farms- To arable famis, the usual entry is that which is set out in the 
 ^'separitor ^^°^^ Style— Whitsunday as to the houses, fallow lands, and 
 (or Martinmas) grass, and the separation of the white crop thereafter or Martin - 
 ™ ^' mas immediately following the said Whitsunday as to the land in 
 
 crop. In that case the time of entry is in the eye of the law at 
 Whitsunday. The lease describes the common law or custom of 
 Scotland whereby 'if a lease be granted to a new tenant of 
 ' a farm, consisting partly of arable land and partly of meadow 
 ' or pasture lands for a term of years to commence from Whit- 
 ' Sunday, such tenant is entitled to enter on the grass or meadow 
 ' land immediately on the commencement of the tack ; but the 
 ' outgoing tenant is entitled to continue in possession of such 
 ' arable lands as are sown until the separation of the crop from 
 ' the ground,' having 'a limited right of entry and occupation 
 ' for that purpose,' there being ' only one lease, not two leases ' 
 or more.^^ Therefore, where the entry was of this sort and the 
 landlord was under obligation to renew the lease from nine- 
 teen years to nineteen years for ever, on the tenant making 
 a certain tender and demand 'at least twelve months before 
 ' the expiry of the above term of nineteen years,' and so on 
 from time to time, a tender and demand made on behalf of 
 the tenant on 1st August in the year preceding the year of 
 expiry of a renewed lease was too late.^* But this right by 
 common law or custom to continue possession till separation does 
 not extend to a proprietor who is himself in the natural posses- 
 sion of a farm at the time when he lets it ' with entry at Whit- 
 ' Sunday.' If there be nothing to the contrary he must surrender 
 the whole subject at that term.^^ Sometimes the entry to the 
 whole farm is at Martinmas. ^° In either case, it is usual to, 
 make express provision in the lease for working the fallow or 
 paying for having it done by the outgoing tenant. ^'^ It is 
 impossible to make the entry complete at any given term. 
 There is always something to be done by a tenant before he 
 enters to or after he gives up residence. This gradual entry is 
 sometimes regulated by dates — thus, to fallow-break at 1st 
 March ; to houses and grass at Whitsunday ; to arable at separa- 
 
 1' Per L. Chan. Westbury in E. Hope- •= Duflt v. Wilson, 1864, 3 M. 173. 
 
 toun V. Wight, 1864, 2 M. (H.L.) 35, 37, i" 1 Jur. Styles, 582. See a form for a 
 
 altg. 1 M. 1097. Martinmas and Whitsunday Entry, Appx. 
 
 ■^* Ibid. : contrast the twin case of No. xiv. 
 
 timeous tender declined, E. Hopetoun v. '' See as to these arrangements, infra, 
 
 Hunter's Trs., 1863, 1 M. 1074, rev. 3 chap. xvii. Aa to the comparative ad- 
 
 M.H.L. 50, 4 Maoq. 972. The landlord vantages of different entries, Stephens, 
 
 was not entitled to take advantage of his Book of the Farm, § 3257. 
 own default. 
 
TIME OF ENTRY. 301 
 
 tion of crop ; and to bams, granaries, and certain cot-houses at 
 Whitsunday following. ^^ 
 
 To pastoral farms the usual term of entry is Whitsunday ; to Pastoral farms, 
 houses of the better class, not let for shorter periods than a year ^''• 
 or half-a-year, Whitsunday or Martinmas," more frequently the 
 former ; to mines.^o mills, ^^ and other subjects, the usefulness of 
 which does not depend on the seasons, the same terms of Whit- 
 sunday and Martinmas. Fisheries, on the other hand, are usually 
 entered to at some date shortly before the end of the annual 
 close-time, so as to give the lessee an opportunity of making the 
 necessary preparations. ^^ The entry to gardens depends on the 
 nature of the holding. If it be merely an accessory to a dwelling- 
 house, the same entry and ish apply to both. If, however, it is 
 to be regarded as a fruit-producing subject independent of, though, 
 it may be, let along with a house, the date of entry need not be 
 the same ; the aim being to enable the person who raises a crop 
 to reap it and then leave the land open to the new-comer — the 
 usual date of entry being Candlemas (2nd February) though the 
 house may not pass till Whitsunday following. ^^ In regard to 
 subjects used as grass parks a distinction must be drawn. If Grass parks, 
 they be let at Whitsunday for a year as such, the tenant has had 
 all the occupation contemplated in his lease before Candlemas, 
 after which term the landlord is entitled to enter for the purpose 
 of preparing for the next year's crop of grass (by top-dressing or 
 otherwise) and to turn off the tenant's bestial which if allowed to 
 graze the spring grass would annihilate that crop.^* But if there 
 be a lease of land for years from Whitsunday, the tenant is 
 entitled to exclusive possession down to the last Whitsunday of 
 his lease, and to prevent the landlord from interfering with the 
 land till then — as by preparing it by tillage for the next crop — 
 though as matter of fact the whole subject has all along been 
 occupied as grass parks, and though the rent of each season be 
 payable at Martinmas.^* 
 
 '8 See 1 Jut. Styles, 597. Other ancient 20 jbii 606, 623, 639, 653, 661, 678. 
 
 terms of partial entry and removing are -^ Ibid. 688, 692. 
 
 Candlemas (2nd February), Hay r. ^ Formerly Andermas (30th Novem- 
 
 Kerse, 1740, M. 13837 ; Robertson r. ber), Gordon v. Burnett, 1783, M. 13859 ; 
 
 Spalding, 1754, Elch. Removing, 8 ; now regulated by 25 & 26 Vict. c. 97, 
 
 M'Naughton v. Wilson, 1765, M. 13857 : sects. 6, 7, and Bye-laws, issued in 1864 
 
 and Beltane (1st May), Grainger v. Ham- and from time to time, 
 
 ilton, 1756, Elch. Removing, 3, 5 B.S. ^ Renton v. Younger, 1823, 2 S. 244 
 
 207; Kames' Eluc. 287; Annexed Es- (N.E. 214). 
 
 tates Comrs. v. M'Nab, 1 770, 5 B.S. 568, '-•' Hamilton v. Cunninghame, 1830, 8 
 
 Hailes 335. S. 955. 
 
 's Ibid. 684 685. =° Addie v. Young, 1862, 24 D. 799. 
 
302 
 
 TIME : TERMS : APPORTIONMENT. 
 
 Term days. From the foregoing statement, the importance of Whitsunday 
 
 and Martinmas — known as the legal terms — is at once apparent. 
 The term day is the last day of the preceding period ; so that the 
 whole day must elapse before a new term commences. ^^ Of old 
 Whitsunday was a moveable feast ' oft times reaching far into 
 ' summer ' so that ' these who remove do eat up and destroy the 
 ' meadows and hained ground ; ' for remeid whereof the summer 
 and winter terms were by statute declared to be the 15 th of May 
 and Martinmas, and the legal term of removing both in burgh 
 and to landward to be the said 15th of May.^*^ If the lease has 
 been entered into after 14th September 1752, this enactment 
 refers to 15th May and 11th November (which has always been 
 Martinmas day) of the new style.^^ 
 
 Old style. Yet both in rural and in urban tenements it is not unusual to 
 
 find tliat the change of eleven days then made, in passing from 
 the Old Style to the New, has been by custom of district or by 
 express provision ignored in practice.^^ This postponement of 
 removal, taken along with the circumstance that the date of 
 payment of rent is not postponed, has some advantages in enabling 
 the landlord to avail himself of his right of hypothec without 
 haste or undue harshness. And in late high pasture land, the 
 lambs are more fit for removal near the end than at the middle 
 of May. With rural tenements the legislature has not inter- 
 fered. But uniformity of entry and removal is now prescribed by 
 statute ^^ in regard to houses, that is, dwelling-houses, shops, and 
 other buildings, and their appurtenances including dwelling-houses 
 or buildings let along with land for agricultural purposes. The 
 provisions of the Act will be dealt with in a later chapter which 
 treats of removings.^i 
 
 II. Terms of Payment of Rent. 
 
 Farm rents. Passiug now to the clause of rent, — of which a specimen has 
 
 been cited above — it will be at once remarked that the rent of 
 land is payable for the possession from year to year, though for 
 the sake of convenience it is usual to divide a year's rent into 
 
 Crop. two equal portions. This rule of law is still more accurately 
 
 described by saying that the rent is due for the crop and posses- 
 
 Entry to 
 
 buildings. 
 
 28 Ly. Brunton, 1642,M. 15885; Pat- 
 erson v. Smith, 1704, M. 15902; Ly. 
 Tolquhon's Exrs. r. Creditors, 1740, M. 
 15907 ; Wright I'. Cunningham, 1802, W. 
 16919. 
 
 ^ 1690, 0. 39, extended to all effects 
 whatsoever by 1693, u. 24 ; see M'liityre 
 V, M'Nab'a Trs, ivfra, '«, 
 
 -8 24 Geo. II. „. 23, sects. 1, 6. Tait, 
 J.P. 518; M'Intyre v. M'Nab's Trs., 
 1829, 8 S. 237, afE. 5 W. and S. 2.99. 
 
 -'> 2 Hunter, 593. 
 
 3» 49 & 50 Vict. c. 50 (Removal Terms 
 Act, 1886) repealing an Act of 1881 of 
 leas scope— 44 & 45 Vict. c. 39, 
 
 '' Chap xxi. 
 
TEEMS FOR PAYMENT OF BENT. 303 
 
 sion of each year separately, where the possession is had solely or 
 
 principally for the purpose of periodically rearing and disposing 
 
 of produce animate or inanimate ; and that where, as in the case other rents. 
 
 of dwelling-houses, mills, factories, and the like, the rule does not 
 
 apply in its entirety, it is followed as closely as possible. In the 
 
 case of farms the year is regarded as at end with the final reap- Beginning of 
 
 ing of the crop, by cutting or depasturing ; and the term of ^''*'^' 
 
 Martinmas is generally accepted as the end of one crop-year and 
 
 the beginning of another. Rent being payable for this crop and 
 
 year in two parts, the legal terms of payment are at Whitsunday Legal terms. 
 
 after the crop is sown and at Martinmas after the crop is reaped. 
 
 Taking an example, _/irs^, from an arable farm, the legal terms of 
 
 payment of the first year's rent of a farm to which entry is taken 
 
 at Whitsunday and at separation 1885 or Martinmas 1885 are 
 
 at Whitsunday 1886 and Martinmas 1886, the first crop being 
 
 that of 1886. But secondly, if the farm be pastoral and the 
 
 entry be also at Whitsunday 1885, the first payment is legally 
 
 due at Whitsunday 1885 — the date of entry — and the second 
 
 at Martinmas 1885, being together the rent for the crop and 
 
 year 1885, the crop of that year — grass — being the first crop 
 
 reaped ; and there would have been no difference in the legal 
 
 terms of payment though entry had been taken at Martinmas 
 
 1884. The fact that entry is taken at Whitsunday, old style 
 
 (26 th May), does not affect the date when rent becomes payable. 
 
 So that the first half-year's rent may be legally due eleven days 
 
 before actual entry .^^ Houses follow in some respects the rule 
 
 of pastoral farms ; but not to the extent of entitling a landlord 
 
 to demand payment for a half-year at the date of a Whitsunday 
 
 entry. These rules will be illustrated in the following paragraphs. 
 
 It is plain from the foregoing statement that it may be of Arable or 
 much consequence to ascertain whether a farm is to be regarded f"^'"™ ' 
 as arable or as pastoral. It must be either the one or the other ; 
 the produce cannot be divided according as it emanates from the 
 arable or the pastoral portions ; the rent is a lump rent for the whole 
 farm ; and the decisive criterion is the source from which the 
 
 profits or income— are chiefly derived.^^ There is no authority 
 
 to show what would be the result of such improvements as during 
 the currency of a lease turn a pastoral into an arable farm, or 
 the converse case of laying down a large part of a farm in grass. 
 
 The legal terms for the payment of rent being such as above Co^^«"«™*i 
 
 3-- Campbell v. Campbell, 1849, 11 D. 186 ; M'Clymonts r. Cathcart, 1848, 
 j^^2g 10 D. 1489; Campbell v. Anstruther, 
 
 33 Petley i: Ma<;t?nze, 1805, Hume 1836. 9 So, Jur. 163, 
 
304 
 
 TIME : TERMS : APPORTIONMENT. 
 
 Forehand 
 rents. 
 
 Backhand 
 rents. 
 
 described, the parties may agree upon an acceleration or post- 
 ponement, on what is known as fore or forehand rent on the 
 one hand, or back or backhand rent on the other. Thus, 
 continuing the illustration given above if the first year's rent of 
 the arable farm were taken payable, the first half at Lammas 
 (1st August), Martinmas, or Yule (25th December) 1885, or 
 Candlemas^* (2nd February) 1886, and the next half at six 
 months after these dates, the rent would be forehand. In 
 pastoral farms forehand rent is scarcely conceivable.^^ If, on 
 the contrary, the first year's rent of the said arable farm were 
 taken payable, the first half at Lammas or Martinmas 1886 
 or any later date, and the second half at six months there- 
 after, the rent would be backhand, enabling the tenant to earn 
 the rent on the farm before paying it. These forehand and back- 
 hand terms are called the conventional, as distinguished from the 
 legal, terms for payment of rent.^® 
 
 These distinctions are mainly of importance in apportioning 
 the liability for and right to rent among the successors (universal 
 or singular) of the tenant and of the landlord. The rule in both 
 cases is that the legal terms govern the apportionment, to the 
 exclusion of the conventional terms, except where the rent is 
 forehand. 
 
 Hay crop. 
 
 III. Apportionment. 
 
 A. Of Liability for Rent, as betiveen Tenants' Successors. 
 
 The subject is somewhat obscure, but the rule seems to be 
 ubi commodum ibi incommodum ; the rent is divided according 
 to the legal terms, and in proportion as the crop of the broken 
 year is reaped by heir or by executor,^' by original tenant or by 
 assignee.^^ The division of the crop is regulated thus : — Crops 
 sown by the lessee, but not reaped by him the at time of his death 
 are, if annual, moveable and go to the executor, while those which 
 are not annual go to the heir.^^ It was at one time thought to 
 be settled that with these hay of the second crop went to the heir 
 though sown out with white crop the season before and therefore 
 
 ^ These two — Yule and Candlemas — 
 were in vogue for grain rent. 1 Dallas, 
 609 ; 2 Ross' Leot. 494 ; 1 Jur. Styles, 
 (2nd ed.), 628, 635; (3rd ed.), 679, 
 
 ^^ But see Arbuthuot v. Finnarfs 
 Creds., 1750, M. 13337. 
 
 33 Cr. 2.10.11 ; Ersk. 2.9.64; Kames' 
 Elue. 59 ; 1 Bell, Leases, 220 ; B. Pr. 
 1047, 1204, 1230 ; 2 B.C. 8. There is 
 on custom of paying game rents in the 
 
 Highlands for the first year at entry, 
 though it is usual to make express 
 stipulation to that effect — Eraser t. 
 Patrick, 1879, 6 R. 581. 
 
 '' Macleod v. Mackenzie, 1725, M. 
 15905. 
 
 '^ Supra, p. 154. 
 
 ^' See as to trees in nursery gardens, 
 Begbie v. Boyd, 1837, 16 S. 232. 
 
APPORTIONMENT OF LIABILITY. 305 
 
 of Uttle value till the second year.« This particular rule was 
 held to be fixed, though it was hard to see why this crop, as 
 artificial as any other, should alone he exempted from the rule 
 messis sermntem sequitur.^^ Accordingly dicta have fallen from 
 the Bench in cases turning on the interpretation of contracts and 
 occurring between landlord and tenant, indicating that the rule 
 can scarcely now be regarded as binding even in questions of 
 succession.*^ Proceeding on the rule above stated that the Tenant's heir 
 representative entitled to the benefit of a lease ia liable for the *"'' ^''^''"'""• 
 rent, it was decided that executors who were entitled to the crop 
 of the year in which their ancestor died were liable for the rent 
 of that year, but that the rents of subsequent years could only be 
 demanded from his heir who had been acknowledged as tenant 
 by the landlord.*^ The testamentary dispositions of the deceased 
 tenant may, however, throw upon the general estate an obligation 
 which would naturally, along with the corresponding rights, have 
 fallen on the heir; and the same result may follow from the 
 terms in which the lease is taken. Thus, where a house let 
 from Whitsunday for a term of years, with break at each Whit- 
 sunday, to trustees for the occupant's behoof, was renounced by 
 them at Whitsunday 1801, the beneficiary having died in the 
 preceding October and the house having been inhabited by his 
 servants during part of the interval, it was held that his heir 
 was not liable for the rent of any part of the year." 
 
 B. Of Right to Rents, as between Lessor's Successors. 
 
 In reading the cases, it is well to remember that a long and Heir uninfeft. 
 well-sustained controversy has, after being decided by the House 
 of Lords, been superseded by recent legislation. The decision 
 was that, in the matter of right to rents, the lessor's apparent 
 heir was in precisely the same position as if he were infeft, and 
 that therefore his executor was preferable to the next heir for 
 those rents which fell due pending the apparency.*^ It was later 
 decided that a tenant was safe to pa}' to an heir-apparent in 
 
 *> Sinclair v. Dalrymple, 1744, M. 5421 ^ D. Gordon v. Leslie, 1791, M. 6444. 
 
 (heir and executor of fee-simple owner) ; ** Kinloch's Exrs. r. Heir, 1811, Hume 
 
 Wight V. Inglis, 1796, M. 5446 (do.); 178. 
 
 Ms. Tweeddale v. Somner, 19th Nov. *^ Hamilton's Exr. v. Hamilton, 1760, 
 
 1816, F.C. 213 (owner and liferent M. 5253, rev. 2 Pat. 137. The earlier 
 
 tenant's executor) ; contra, Gordon c. authorities are to be found in Balf. 226 ; 
 
 Gordon, 1806, Hume 188 (heir and Cr. 2.9.29; St. 2.1.22, 2.3.16, 2.6.17, 
 
 executor of owner). 3.5.2 ; Bankt. 3.5.8 ; Ersk. 3.8.58 ; 
 
 " See obs. in last case. Karnes' Hist. Law Tr. 198 ; B. Pr. 1682 ; 
 
 ^ Keith V. Logie's Heirs, 1825, 4 S. 1 B.C. 99 ; More's Notes 319, and cases 
 
 267 (N.E. 272), explained in Lyall v. in M. 5243 seqq., 2769, 6246 ; 2 B.S. 49; 
 
 Cooper, 1832, 11 S. 96. 5 B.S. 831. 
 
 V 
 
306 
 
 TIME : TEEMS : APPOETIONMENT. 
 
 According to 
 legal terms. 
 
 Except where 
 forehand. 
 
 Cases. 
 
 possession, though there was a subsisting competition for the 
 ownership.*^ The legislation referred to is the Conveyancing 
 Act of 1874/^ which, in its 9th section, does away with the law 
 of apparency by vesting through mere survivance a personal right 
 to estates in land, descendible to heirs, of the same nature as a 
 personal right under an unfeudalised conveyance.** So that in 
 regard to the subject of this chapter it is unnecessary to consider 
 whether an heir is infeft or not. 
 
 The rule of apportionment — apart from statute — is that the 
 legal terms govern the division of rents between the different 
 classes of successors of a deceasing landlord — in other words, that 
 these terms determine what was in bonis defuncti at the time 
 of his death. There is an exception where the rents are fore- 
 hand, in which case the conventional terms govern. Otherwise 
 stated, anticipating the term of payment may have an effect on 
 the succession, but postponing it can have none.** 
 
 The rule has been applied in questions between the executors 
 of a deceased liferenter and the fiar ; '" between the executors 
 and the heir of a fiar ; ^^ between the executors of a fiar and his 
 widow endowed with locality lands or a bond of provision assign- 
 ing rents, or a conjunct fee ; °^ whether the rent be payable in 
 money or otherwise ; ^^ and whether the conventional dates of 
 payment come twice a-year or oftener, or annually in one lump 
 sum.** But the vesting is always subject to be altered by the 
 expressed will of a landlord who is not restricted in this direc- 
 tion in the disposal of his estate.*^ Such will is not expressed 
 
 *= E. Weraysa v. CampbeU,'1864, 2 M. 
 461 (the heir was the lessor, but the 
 decision went on the general ground). 
 
 " 37 & 38 Vict. u. 94. 
 
 ^ See M'Adam v. M'Adam, 1879, 6 R. 
 1256 ; Fleming's Trs. v. Fleming's Tutors, 
 1S82, 9 R. 1013. 
 
 ■«' Cr. 2.9.13 ; Hope, Min. Prac. 3.40 ; 
 St. 3.8.57 ; Ersk. 2.9.64 ; Karnes' Eluc. 
 59; 2 B.C. 8; B. Pr. 1499; More's 
 Notes, 139 ; Elliot's Trs. v. Elliot, 1792, 
 M. 15917. 
 
 =» Blaus V. Winraham, 1631, M. 15881, 
 1 B.S. 186 ; Laurie v. Maxwell, 1711, M. 
 15905; Baillie v. Cuthbert, 1684, M. 
 15900 (bond) ; Guthrie v. Mackerston, 
 1671, M. 15890, 2 B.S. 152 (mill). 
 
 •'1 L. West-Nisbet v. L. Swinton, 1635, 
 M. 15883 (mill) ; Johnston v. M. Annan-' 
 dale, 1727,'M. 15913 ; Pringle v. Pringle, 
 1741, M. 5419, 15907 ; TurnbuU v. Ker, 
 
 1760, M. 5430 (do.) ; Innes r. D. Gordon, 
 1822, 2 S. 3 (N.E. 2); Trotter v. Cun- 
 ningham, 1839, 2 D. 140. Kames (Eluc. 
 60, 65) questions the soundness of the 
 rule in this case, but it is fixed. 
 
 '^ Carnegie v. Carnegie's Exrs., 1688, 
 M. 15887; Alton v. Hume, 1629, M. 
 15879 ; Trotter v. Rocheid, 1681, M. 
 2375, 15899 ; Lockhartti. Lockhart, 1839, 
 1 D. 443. In Cruikshank v. Sandeman, 
 1843, 5 D. 643, the widow's right was 
 good against executors as well as heir by 
 the terms of the provision. 
 
 ^' Gordon v. Gordon, 1806, Hume 188. 
 
 " Carnegie v. Carnegie's Exrs., supra, 
 ^2 ; Petley v. Mackenzie, 1805, Hume 186 ; 
 see Campbell v. Campbell, 1745, M. 
 15908 ; Elch. Heir and Exr. 3 ; Gooden 
 V. Chisholm, 1829, 8 S. 165. 
 
 '^ Cf. Cruikshank, and Trotter, tupra, 
 
APPORTIONMENT OF RIGHT TO RENTS. 307 
 
 where there has been an obvious mistake in the rent clause, as 
 where the rent of a grass-farm, entered at Whitsunday, was taken 
 payable one half at Martinmas thereafter ' for the half-year imme- 
 ' diately preceding,' and the other half at next Whitsunday ' for 
 ' the full year's rent ' — thus ignoring one half of the first year's 
 crop and possession.^^ The rule has been applied in relation to sub- 
 jects of all sorts. Most of the illustrations relate to arable farms, 
 and no question seems to have ever been seriously moved in regard 
 to them.^'' As to the application of the rule to pastoral farms 
 there has been some controversy ending in the establishment of 
 the principle.*^ It is pleasant to be able to state the law in the in farms 
 words of the philosophic Monboddo. ' The simple rule in this crop! '"^ 
 ' case and which will apply equally to corn and grass farms is the 
 ' crop; without attending to the division of the year which is 
 ' arbitrary as to its commencement. According to this rule the 
 ' crop, whether of grass or corn, belongs to that year in which 
 ' it grows and is reaped ; and the rent for that crop is divided 
 ' betwixt the heir and executor by the legal terms, of the Whit- 
 ' Sunday when the crop was sown, and of Martinmas when it is 
 ' reaped ; so that, without inquiring about years at all, it is 
 ' sufficient to consider whether the rent for that crop be still in 
 ' the tenant's hands or if it be uplifted by the defunct, as, in 
 ' the case of forehand rent, the executor has no claim.' ^^ If 
 the ancestor survived ^° Whitsunday, the half of that year's rent 
 was vested in him and went to his personal representatives ; if 
 he survived Martinmas, the whole. 
 
 It seems to be settled that the same rule applies to the rents Grass-parks, 
 of grass parks let for the season, April to December ; ^^ and to 
 the rents of grist-mills at least when let with multures ;^^ but MUls. 
 the question whether the division of rents of ' windmills and 
 ' clockmills which have no thirlage ' would be regulated by terms 
 was left open.*^ The apportionment of rent of houses followed Houses. 
 the analogy of farms — the nearest analogues being grass-farms. 
 Therefore the proprietor of a house dying between Whitsunday 
 
 "« TurnbnU r. Ker, supra, ^^. There- Campbell v. Campbell, 1849, 11 D. 1420. 
 fore, proprietor dying after Martinmas, '' In Kerr i). Turnbull(s.c. asTurnbuU 
 
 his executor got the whole rent of the v. Ker, supra, *'), at 5 B.S. 876. 
 year. As to this case see Elliot's Trs. ™ As to which, infra, p. 309. 
 
 infra, ^, and Kames' Eluc. 68. ^ Swinton v. Gawler, 20th June 1809, 
 
 »' Authorities in note ^, supra j F.C. 330 ; 2 B.C. 8 ; More's Notes, 139 ; 
 
 Blaikie v. Farquharson, 1849, 11 D. 1456. Ivory's Notes, 241, to Ersk. 2.9.64. 
 
 ^ Johnston v. M. Annandale : Pringle ^ L. West-Nisbet v. L. Swinton, supra, 
 
 V. Pringle, supra, ^^ ; Campbell v. Camp- ' °^ ; Guthrie v. Mackerston, supra, ^^ 
 bell, supra, " ; Elliot's Trs. v. Elliot, ^ Gnthrie, supra, ", 
 
 1792, M. 16917 (general rule stated) ; 
 
308 TIME : TERMS : APPORTIONMENT. 
 
 and Martinmas has right vested in him to the first half-year's 
 rent of the current year ; whether the possession began at the 
 Martinmas or at the Whitsunday before the death, and though 
 the term of payment were conventionally postponed.** In relation 
 Mines, &o. ^q q^^^qj. subjects, such as mines, fisheries, game, and the like, 
 there is little authority in regard to a division of rents according 
 to terms. It may be presumed that at common law no more 
 would be regarded as in bonis defuncti than was conventionally 
 payable before that event, unless there were something in the 
 contract between landlord and tenant to show that rent payable 
 thereafter was due for possession during the life of the deceased.^^ 
 It was never decided, but an opinion was expressed, prior to the 
 Apportionment Acts, that the division must not be governed by 
 the terms, but be regulated by the possession de die in diem, 
 where, as in factories and mines, the profits arise from continual 
 daily labour, irrespective of the seasons.** But this view cannot 
 now be accepted where the rent is taken payable according to 
 terms, for a case of mineral rents was decided on the ratio that 
 a termly rent must be considered as due at a term (and at no 
 intermediate date), whatever that term may be.*" Minerals 
 were let with entry at Martinmas for a fixed rent payable 
 at Whitsunday with an option to the landlord of claiming 
 instead of the fixed rent a lordship, exigible at the following 
 Martinmas on the minerals raised, sold, carried ofi", or consumed 
 during the preceding year, under deduction of the rent paid 
 at the said Whitsunday. The landlord having died on 31st 
 May, it was held that his executors were entitled to half 
 of the lordship exigible at the following Martinmas, after 
 deduction of the fixed rent ; but that they had no right to 
 share in the lordship on minerals, raised to the surface before, 
 but not sold till after, the said Martinmas. The lordship, 
 though payable in lump, was regarded as if payable half 
 at Whitsunday and half at Martinmas, which are the legal 
 
 Biuny v. Binny, 22nd Jan. 1820, ^ Ersk. 2.9.66 (liferent and fee). As 
 
 E.G. 91 ; King v. Jaffray, 1828, 6 S. 422 
 L. Daer v. D. Hamilton, 1740, 5 B.S. 
 695, Elch. Her. and Mor. 11; B. Pr 
 1502 ; 1 Bell, Leases, 492. The reason 
 ableness of the rule is questioned by L. 
 
 to pensions, salaries, and payments con- 
 nected with rents, see E. Kelly v. Beaton, 
 1666, M. 15887 ; E. March v. E. Leven, 
 1710, M. 15904; Linning v. Gustard, 
 1736, M. 15914; BailUe ,.. Cuthbert, 
 
 Monboddo in L. Daer, gapra; L.P.Hope 1684, M. 15900; Carruthers u. Barclay, 
 
 in Binny, supra; Kames' Eluo. 67 ; and 1738, M. 5413 ; Kynynmond u Eochead, 
 
 L, Deas in "Weir's Exrs. v. Durham, 1870, 1739, M. 6415, Elch. Her. and Mor. 10, 
 
 8 M. 725, 729. 11 ; L. Daer v. D. Hamilton, supra, ". 
 
 8= See op. of L.P. Hope in Binny v. «? Per L. Kinloch in Weir's Exrs., 
 
 Binny, supra, «. stipra, « 8 M. 732. 
 
APPORTIONMENT : FOREHAND RENTS. 309 
 
 terms for other subjects besides farms. And the rule of vesting 
 de die in diem, was held to be inapplicable to a case of fluc- 
 tuating production.^' 
 
 The exception, in the case of forehand rents, to the rule of Forehand, 
 looking to the legal terms in apportionment is thus stated in a 
 celebrated passage by Lord Kilkerran. 'The meaning of the 
 ' common maxim that the legal and not the conventional terms 
 ' are the rule between heir and executor is no other than this, 
 ' that the postponing the legal term by the convention of parties 
 ' (which generally is the case of tenant's rents) does not deprive 
 ' the executor of the benefit of the legal term. But, if by the 
 ' convention of parties, annual-rents, for example, be made pay- 
 ' able before the legal term, the executors will have the benefit 
 ' of that convention ; and the case would be the same in a fore- 
 ' hand payment of rents of lands, for there is no instance of what 
 ' is both due and exigible not going to executors. '^^ This rule 
 has been applied between executor and heir where the first half 
 of the first year's rent of an arable farm was taken payable at 
 Martinmas instead of Whitsunday after entry ;™ between an heir 
 of entail in possession and the executors of the widow of a former 
 heir, with right to a locality ; ''^ and between the executor of an 
 heir of entail and the succeeding heir.'^^ But an heir of entail in 
 possession cannot during his tenure alter the practice of the 
 estate by substituting forehand for normal or backhand rents, so 
 as to benefit his executors at the expense of the substitute 
 succeeding to him -^^ nor, on the other hand, will the right of the 
 executors be prejudiced by such postponement out of considera- 
 tion for the tenants as has not been reared into the practice or 
 custom of the estate.''* 
 
 When it is stated that, in order to take the rents due for the Survivanoe of 
 period ending on Whitsunday or Martinmas, the proprietor must ®'^™ ^^' 
 have survived the term day, the meaning is that he shall have 
 survived any part of that day, not noon,'^* or the greatest part,''^ 
 
 ^ Weir's Exrs. v. Durham, sapra, ^. '^ L. Hemes i/. Maxwell's Curator, 
 
 The case of Binny, supra, ", shows that 1873, 11 M. 396. 
 
 there was not, as L. Deas supposes, any '* Ms. Queensberry : Gooden : Herries, 
 
 difference of principle between grass and supra ; Swinton v. Gawler, 20th June 
 
 house rents. 1809, T.C. 330. 
 
 ^' M. Kynnynmound v. Cathcart, 1739, '■' Gooden v, Ghisholm, '", (the 'aocom- 
 
 M. 15906 (bond); 2 B.C. 8; Ersk. 'modation'grantedby a widowinfeft ina 
 
 2.9.64, Notes. locality lasted sixteen years, yet did not 
 
 '" M. Queensberry i\ D. Queen.sberry's deprive her of the full rents [forehand] 
 
 Exrs., 18th Feb. 1814, F.C. 572. due for her possession). 
 
 "Gooden ■■. Chisholm, 1829, 8 S. 'i* See Cr. 2.9.13 ; Ersk. 2.9.6J. 
 
 165. ^^ Bankt. 2.6.24. 
 
310 TIME : TERMS : APPORTIONMENT. 
 
 or the whole of the day." The importance, which at one time 
 attached to the determination of this point, has now heen taken 
 away by the passing of the Apportionment Acts, which now fall 
 to be considered. 
 
 C. As affected by the Apportionment Acts. 
 
 Act of 1834. In the year 1834 the first Apportionment Act '''^ was passed, 
 
 the second section of which, though couched in terms of the 
 English law, was held to apply to Scotland.'^^ It came into 
 operation only on the death of a person — such as a liferenter 
 or heir of entail — whose death caused a determination of his 
 interest.^" This Act is practically superseded ^^ by a more general 
 statute, passed in 1870,^' and applicable to all cases of periodical 
 payments ; *^ so that the numerous cases which arose under the 
 earlier Act are now only of value in so far as they consist with 
 and illustrate the later statute. 
 
 Act of 1870. The mischief set out in the preamble of the Act of 1870 is 
 
 the fact that at common law rents and some other periodical 
 payments are not apportionable (like interest on money lent), in 
 respect of time. The leading enactment is that, ' from and after 
 ' the passing of this Act [1st August 1870], all rents,^* annui- 
 ' ties, dividends, and other periodical payments in the nature of 
 ' income (whether reserved or made payable under an instrument 
 ' in writing or otherwise^^), shall, like interest on money lent, be 
 ' considered as accruing from day to day, and shall be apportion- 
 ' able in respect of time accordingly ' (sect. 2). The apportioned 
 part is to be payable or recoverable when the entire portion of 
 which such apportioned part shall form part shall become due 
 and payable, and not before, or would have been payable, if it 
 had not been determined by re-entry, death, or otherwise (sect. 3). 
 
 ' All persons and their respective heirs, executors, administrators, 
 
 "■ St. 3.8.57; Merchiston Tenants v. 1872, 10 M. 319. 
 
 Napier, 1609, M. 15877 ; Ly. Brunton, ^^ Its scope is pointed out by Lord 
 
 1642, M. 15885 ; Patersou v. Smith, Westbury in Paul v. Anstruther, 1864, 
 
 1704, M. 15902; Lady Tolquhon's 2 M. (H.L.) 1, 5. 
 
 Exrs. V. Creds., 1740, M. 16907 (bond). ^ 33 & 34 Vict. u. 35 (the Act of 1834 
 
 Contrast this rule in favour of executors is not expressly repealed), 
 
 with the rule, supra, p. 302, as to end ^ Except premiums of insurance (sect, 
 
 and beginning of a term. 6) ; matters provided for by special statute 
 
 'M & 5 Will. IV. u. 22. — Latta v. Edinburgh Eccl. Comrs., 1877, 
 
 '' Brydges v. Fordyoe, 1844, 6 D. 968, 5 E. 266 (stipend and ann) ; and matters 
 
 aff. 6 B. Ap. 1. expressly barred (sect. 7). 
 
 8° Campbell : Blaikie, infra, »», ^^ ; *> < Rent ' includes all periodical pay- 
 
 BaiUie v. Loolchart, 1865, 2 Macq. 250, ments or renderings in lieu of or in the 
 
 18 D. (H.L.) 22 ; Pott v. Riddell, 1859, nature of rent. 
 
 21 D. 800 ; L. Adv. v. Stevenson, 1866, 4 ^^ gj, ^^^^^ jj. Dalhousie v. Crokat, 
 
 M. 322; Bannatine's Trs. r. Cunninghame, 1868, 6 M. 659 (point 1), is i.o longer law. 
 
APPOKTIONMENT ACT, 1870. 311 
 
 ' and assigns, and also the executors, administrators, and assigns respec- 
 ' tively of persons whose interests determine with their own deaths, shall 
 ' have such or the same remedies at law and in equity for recovering 
 ' such apportioned parts as aforesaid when payable (allowing proportion- 
 ' ate parts of aU just allowances), as they respectively would have had 
 ' for recovering such entire portions as aforesaid, if entitled thereto 
 ' respectively ; provided that persons liable to pay rents reserved out of, 
 ' or charged on lands or other hereditaments, shall not be resorted to 
 ' for any such apportioned part forming part of an entire or continuing 
 ' rent as aforesaid specifically ; but the entire or continuing rent, includ- 
 ' ing such apportioned part, shall be recovered and received by the heir or 
 ' other person who, if the rent had not been apportionable under this Act 
 ' or otherwise, would have been entitled to such entire or continuing rent, 
 ' and such apportioned part shall be recoverable from such heir or other 
 ' person by the executors or other parties entitled under this Act to the 
 ' same by action at law or suit in equity '*' (sect. 4)/' 
 
 The result of the common law was that the survivance by a Operation of 
 
 the Act. 
 
 proprietor — or other person entitled to draw rents — of a part of a 
 term, however large that part might be, vested in him nothing 
 more of termly rents than if be had survived the beginning of the 
 preceding term day by an hour only. The result of the above 
 statute — as of its predecessor in a more restricted sphere — is to 
 vest in him and transmit to his executors the rent due for the 
 period he so survived into the broken term, the part of the term's 
 rent so due being fixed by the proportion between the number of 
 days he lived into the said term, and the number of days thereof 
 still to run at his death. The rent is taken as accruing de die 
 in diem. No alteration is made on the rule that the legal terms 
 and not (except in case of forehand rents) the conventional terms 
 must be looked to in questions of vesting. In no case does the 
 Act seem to take away from the defunct or his personal repre- 
 sentatives any benefit which they would have had without it f^ 
 on the contrary it gives them a share of rents which they had no 
 right to at common law — the rents effeiring to the broken term, 
 that is, the term which began during the ownership of one person 
 
 ^ Duff's Trs. V. Shand's Trs., 1864, 2 tionally payable at Martinmas and Whit- 
 
 M. 1342. Sunday thereafter ; but there seems to be 
 
 ^ The proviso is substantially repeated nothing in the Acts to oust the rule and 
 
 from the Act of 1834. to prevent the executors of an owner who 
 
 ^ The revenue authorities (Carrie, dies between Whitsunday and Martin- 
 Confirmation of Exrs., p. 107 ; Directions mas from getting the first half of the 
 as to inventory duty, p. 2), seem to year's rent at conamon law, and an appor- 
 detect an exception in the case of rents tioned part of the second half by statute ; 
 of houses entered at Whitsunday, conven- and the contrary view is opposed to the 
 
312 time: terms: apportionment. 
 
 and ended during the ownership of another. Therefore, the 
 owner of a grass farm having died on 18th May, his executors 
 were entitled at common law to the rent legally due at the 
 preceding "Whitsunday, but payable by conventional postpone- 
 ment on the following Martinmas, and by statute ^^ to a 
 proportion of the next half-year's rent corresponding to the 
 three days by which the deceased had survived Whitsunday.^" 
 And, the owner of an arable farm having died on 14th May 
 1841, his executor had right at common law to the last half of 
 the rent for the crop of the preceding year — legally due at 
 Martinmas 1840, conventionally payable on the day after the 
 death — and by statute to the first half of the rent for crop, 
 1841, under deduction of the proportion effeiring to the one day 
 which was required to complete the first term of 1841.^^ Where 
 rents were taken payable forehand — at Martinmas and Whitsun- 
 day after a Whitsunday entry — and the owner died on 18th 
 July 1872, the executor was entitled at common law to the half- 
 year's rent payable at Whitsunday 1872, and by statute to 
 an apportioned part of the rent payable at Martinmas 1872 
 corresponding to the interval between Whitsunday 1872 and 
 the date of the death. The words of the Act were suflScient to 
 support this conclusion, and it was not necessary to rely on the 
 declaration in the leases that at each term the rent was payable 
 for the half-year preceding.^^ 
 Allowances. The Statute says — as did its predecessor — that proportional 
 
 parts of all just allowances shall be allowed. Therefore, the 
 executor is bound to allow the heir before apportioning the rents 
 of a broken term to deduct a payment made to the deceased's 
 widow under her jointure which is charged on the estate, in so 
 far as the jointure becomes payable on or before the term-day, 
 at which the apportionable rents become payable ; ^^ but he 
 is not entitled to seek repetition (if paid) or relief (if not paid) 
 of a proportional part or any part of a sum payable as an 
 
 judgmeuts in Campbell ; and Blaikie, '" Campbell v, Campbell, 1849, 11 D. 
 
 infra, »", ^^ ; and to the words of the 1426, 1438, 1442. 
 
 second section of the Act of 1870 which ^^ Blaikie v. Farquharson, 1849, 11 D. 
 
 applies only to ' accruing ' rents, whUe 1456. The opinions in these two cases — 
 
 ex liypothesi the rents due at Whitsunday which were heard together — are very 
 
 of entry have then at common law instructive. 
 
 'accrued,' and have become m ionis ^ L. Herries v. Maxwell's Curator, 
 
 defuncti. The question is one of great 1873, 11 M. 396. 
 
 difficulty, and deserves solemn oonsidera- *' Paul (or Hard) v. Anstruther, 1862, 
 
 tion, especially since it was not really 1 M. 14, aff. 2 M.H.L. 1 ; Learmonth's 
 
 open under the earlier Act. Trs. -v. Sinclair, 1878, 5 E.. 548. 
 ^ The Act iif 1S34. 
 
APPORTIONMENT ACT, 1870. 313 
 
 annuity in advance before the date of the death.^* If money 
 have been borrowed — for improvements on the estate — repay- 
 able capital and interest, by half-yearly instalments, the payment 
 for the half-year in which the owner died must be apportioned, 
 as well as the rents, or, in other words, be deducted from the 
 rents before apportioning them.^^ The same rule applies to 
 interest on a bond affecting the estate. A landlord died the 
 day after Whitsunday. It was agreed by the parties that ques- 
 tions between them should be decided as if he had died on the 
 term-day itself. And it was held that his executrix was liable 
 for no part of annuities or burdens falling on the estate and 
 effeiring to possession after that Whitsunday, but only for 
 burdens effeiring to possession prior to that date.^^ It will 
 depend in each case on the amount of the deceased's interest 
 in the estate, whether his executors shall or shall not be liable to 
 a proportion of an ecclesiastical assessment ; ^^ but they will not 
 be liable for any part of an assessment laid on subsequent to , 
 their author's death. '^ 
 
 The Act appears to be retrospective.'^ 
 
 D. As between Vendor and Purchaser. 
 
 A purchaser's entry is usually declared to be at a particular According to 
 term ; and the rule of apportionment is that he is entitled — in and legal" ^ 
 the absence of contrary stipulation — to the rents which effeir to ^""^■ 
 the period subsequent to that term of entry, whether payable at 
 the legal or at conventional terms ; ^'"' unless these rents, being 
 forehanded, have become already payable before or at the date 
 of entry. 1"^ The words commonly used, giving the purchaser 
 right to the rents ' from and after the term of entry,' "^ or to 
 the rents payable ' for possession ' after that date.^''^' have that 
 meaning. Where the entry of purchasers was to houses, grass, 
 
 ^ Paul, supra, '^\ "° Sinclair v. Sinclair, infra, ^<^; see 
 
 '" Learmonth's Trs. v. Sinclair, ^'; 27 & the converse case (between incoming and 
 
 28 Vict. c. 114, sect. 66. The point did outgoing tenants) of liability according to 
 
 not rise in Maitland v. Maitland, 1877, possession, despite a clause which primd 
 
 4 R. 422. facie had a different meaning ; Johnston 
 
 S6 Maitland t;. Maitland, 85. (There was v. Mackie, 1850, 12 D. 739. 
 therefore statutory apportionment.) '" Murray v. Drummond, 1670, M. 
 
 S!" Morham Min. v. Binston, 1679, M. 15880 ; Arbuthnof v. Finnart's Creds., 
 
 8499 ; Ly. Anstruther v. Anstruther's 1750, M. 13337 (grass) ; see Hay i;. Hal- 
 
 Trs., 1823, 2 S. 306 (N.E. 269). ket, 1887, Sc.W.N. 16. 
 
 °8 Maitland v. Maitland, supra, o^. "^ Penman v. Ker, 1828, 6 S. 940 
 ^ Capron v. Capron, L.R. 17 Eq. 288 ; (year from Whitsunday to Whitsunday) ; 
 He Clme's Estate, L.R. 18 Eq. 213 ; Has- Stevenson v. Moncrieff, 1845, 7 D. 418. 
 luck V. Pedley, L.R. 19 Eq. 271 ; Con- ^"^ Hunter ^. Stewart, 1857, 20 D. 60 
 stable »-. Constable, 11 Ch.D. 681 ; cf. (grass, backhand) ; Muirays Trs. v. Jar- 
 Jones V. O^le, L.R. 8 Ch. 192. dine, 1865, 3 M. 845 (corn, backhand). 
 
314 TIME : TERMS : APPORTIONMENT. 
 
 and pasturages at Whitsunday, and to the arable land at Martin- 
 mas 1823, and they were 'to have right to the rents, maills, and 
 ' other duties from and after these respective terms,' they had no 
 right to any part of the rent for the year 1823."* Much will, 
 therefore, depend on the question whether the land sold be 
 arable or grass land, for the same rent may be backhand, if the 
 farm be pastoral, and forehand, if accounted arable.^"^ Or the 
 first payment due to the purchaser may be more explicitly 
 pointed out by giving him right ' to a particular crop and year,' 
 in which case the saine question arises.^"* In this latter case, the 
 statement of the crop overrides an erroneous addition purporting 
 to explain when the rent for the said crop is payable."^ An 
 assignation of rents ' after the first term of Martinmas or Whit- 
 ' Sunday next after the death ' of the survivor of two spouses did 
 not carry right to the rent due and payable at the Whitsunday 
 following the survivor's death in April."^ If the legal purport 
 of the contract of sale is plain, the hardship that interest on the 
 price (through mistake as to the arable or pastoral nature of the 
 land or otherwise) begins to run before the rent due to the 
 purchaser becomes current, will not be allowed to influence the 
 construction."' The plain words of the contract cannot be con- 
 trolled by the terms of a preliminary correspondence,^" or by 
 alleged local custom. ^^^ 
 Apportionabie. It was held in an early case^^^ that if a contract of sale of 
 land, dated between terms, neither expressly dispones the rent 
 then accruing and legally due at the coming term (or later), nor 
 reserves it, nor fixes the purchaser's entry, the vendor has no 
 right to any part of the said rent, since he has denuded himself 
 of all right at a time when there was no completed title to it 
 vested in him. It would probably now be held that the accruing 
 rent was apportionabie under the Act of 1870, which is wide 
 enough to reach the case.^^' But the parties may otherwise pro- 
 vide. Thus a disposition of lands assigned the rents from the 
 
 "^ Sinclair v. Sinclair, 1847, 10 D. 190 168 (mortification), 
 
 (repetition eight years later allowed with ^™ Campbell's Trs. v. Campbell, 1800, 
 
 interest from time of challenge). M. Term, Leg. and Conv., Appx. 1 (grass). 
 
 ^"^ Sheppard v. Watherstone, 1817, 5 "" Stevenson r. Moncrieff, supra, '"^ ; 
 
 Dow 278, plainly, though not expressly, see Maxwell's Trs. v. Scott, infra, "^ 
 
 proceeded on the view that the farm (100 "^ Murray's Trs. v. Jardine, supra, "3. 
 
 ac. arable, 700 ao. pasture) was pastoral. "^ Caldwell v. Stirk, M 15880, I B.S. 
 
 "" Sheppard, i»5 . Arbuthnot, ">!. 173, 291. 
 
 !«' Dalrymple v. Bruce, 1860, 22 D. "3 33 ^ 34 yiot, 0. 35, supra, p. 310 ; 
 
 1177 (forehand; yet described as 'being per L. Gifford in Maxwell's Trs. v. Scott, 
 
 ' those payable at' a backhand date). 1873, 1 R. 122, 126. 
 
 ™ Cleland v. Crawford, 1768, 5 B.S. 
 
BETWEEN VENDOR AND PURCHASER. 315 
 
 date of delivery thereof, being the 14th day of October 1871, 
 and without regard to the legal question of crops. The lands 
 were arable ; the entry of tenants was at Whitsunday and separ- 
 ation, and the sett was forehanded, the rents payable at Mar- 
 tinmas 1871 being the first half-year's rents for crop 1872, 
 legally due six months later. It was contended by the vendor 
 that these rents were apportionable between him and the 
 purchaser in the proportion of 152 to 28 — the number of days 
 in the term on either side of the date of the sale. But it was 
 held that the purchaser was entitled to the whole of these rents, 
 as effeiring to possession subsequent to the date of his right, and 
 that the exclusion of legal questions as to crops was only intended 
 to bar apportionment (at the above ratio) of the rent, payable 
 at Whitsunday and uplifted at Lammas 1871, for the broken 
 term."* 
 
 ""■ Maxwell's Trs. v. Soott, supra, ^'^, revg. L. Gifford, diss. L. Benholme. 
 
316 
 
 CHAPTER XVI. 
 
 REMEDIES FOR RECOVERY OF RENT. 
 
 Eeinedies 
 specially ap- 
 propriate. 
 
 All the ordinary remedies available for recovery of debt are 
 open to the landlord for the recovery of rent. He may raise an 
 ordinary petitory action for debt, adjudge, inhibit, arrest, or 
 poind, or he may in certain circumstances call in aid the pro- 
 cess of sequestration in bankruptcy or cessio bonorv/m. But 
 the remedies which are specially appropriate can alone be dealt 
 with here. These are summary diligence following on a decree 
 of registration ; action of maills and duties ; sequestration 
 founded on hypothec ; and recourse against a cautioner. These 
 will be noticed in the order stated. 
 
 Registration 
 for execution. 
 
 I. Summary Diligence. 
 
 Formal leases invariably contain, immediately before the test- 
 ing clause, a registration clause in this short form : ' And they 
 ' [the parties] consent to registration hereof for preservation and 
 ' execution.' The consent to registration for execution alone 
 concerns us here. It is declared by statute^ (when thus ex- 
 pressed and unless specially qualified) to ' import a consent to 
 ' registration and a procuratory of registration in the Books of 
 ' Council and Session or other judges' books competent, therein 
 ' to remain ... if for execution, that letters of horning, and 
 ' all necessary execution shall pass thereon, upon six days' charge 
 ' on a decree to be interponed thereto in common form.' ^ The 
 same short form when used in long leases under the Registration 
 of Leases Act of 1857 is authentically interpreted in equivalent 
 terms.^ It will be enough to refer to other treatises for the 
 
 1 31 & 32 Vict. 0. 101, sect. 138. 
 
 ^ Following in the main the words of 
 the ad longwm clause in former use. 
 
 ' 20 & 21 Vict. c. 26, by incorporating 
 the repealed provision of 10 & 11 Vict. t. 
 ,tO, sect. 2, and sched. A. If the clause 
 
 appears in such a lease registration in the 
 Register of Sasines is held as registration 
 for execution (31 & 32 Vict. o. 64, sect. 
 12) ; though the deed be already registered 
 there for preservation only (40 & 41 Vict, 
 c. 40, sect. 6). 
 
SUMMAEY DILIGENCE. 317 
 
 history and rationale of this form of predetermined judgment or 
 decree by consent.* A simple form is now prescribed for the 
 extracts given out by the proper officer from the Books of 
 Council and Session and the Sheriff Court Books,^ beginning with 
 a statement of the presentation of the writ for registration on a 
 certain date ; inserting a full copy ; and closing with the words, 
 ' And the said Lords grant [or the sheriff grants, as the case may 
 ' be] warrant for all lawful execution hereon.' This is a warrant 
 ' to arrest the readiest goods, debts, and sums of money of the 
 ' debtor or obligant mentioned in such extract, in payment and 
 ' satisfaction of the sum or sums of money, or obligation or obli- 
 ' gations therein specified, as also to charge the debtor or obligant 
 ' therein mentioned to pay the sum or sums of money, or to 
 ' perform the obligation or obligations therein specified within 
 ' the appropriate days of charge under the pain of poinding and 
 ' imprisonment so far as competent, the terms of payment or 
 ' implement being first come and bygone, and, if he fail to obey 
 ' the said charge, then so far as competent to apprise, poind, and 
 ' distrain all his readiest goods, gear, and other effects in payment 
 ' and satisfaction of the said sum or sums or obligation or obliga- 
 ' tions, and if necessary for effecting said poinding to open shut 
 ' and lockfast places.' ^ The short warrant is thus made equiva- 
 lent to the longer form appended to the Personal Diligence Act 
 of 1838,^ which itself did much to simplify diligence. 
 
 The appropriate days of charge here referred to are in cases R"ies of en 
 of edictal charges fourteen days, m other cases six days." it is 
 very doubtful whether the Court would sanction a consent to 
 restrict the days to less than six.^ Imprisonment for debt having 
 been abolished except (so far as applicable to the present sub- 
 ject) under decrees ad factum prcEstandum,^" the words ' and 
 ' imprisonment ' in the foregoing quotation are omitted, unless 
 the decree comes under the excepted category.^^ As ex hypothesi 
 the landlord holds or can at once obtain a decree (of consent) 
 against the tenant, fugcB warrants can now (if imprisonment 
 
 * The best account of it is given in 1 24th Deo. 1838, sects. 1, 2). Faulty war- 
 Bell, Convg. 219. See also Ersk. 2.5.54 ; rants issued under this Act prior to 10th 
 4.1.63 ; B. Pr. 86 ; 1 B.C. 4; 1 Ross' Lect. August 1877 are cured by 40 & 41 Vict. 
 92 ; Menz. Convg. 160 ; 1 Jur. Styles ^. 40, sect. 4. 
 
 (oth ed.), 60; Begg, Convy. Code, 264, ^ Zl li S2 Vict. o. 100, sect. 14; 1 Bell, 
 
 456, 529. Convg. 504 ; Campbell on Citation, 191. 
 
 5 40 & 41 Vict. c. 40, sects. 1, 2, and ^ Forrester v. Walker, 27th June 1815, 
 
 sohed. The authentication is provided F.C. 467, 474. 
 for by sect. 5. '" 43 & 44 Vict. c. 34 ; see also 44 & 
 
 « Ibid., sect. 3. 45 Vict. c. 42. 
 
 »■ 1 & 2 Vict. 0. 114, sched. 1, (A.S., " A.S., 8th Jan. 1881. 
 
318 
 
 REMEDIES FOR RECOVERY OF RENT. 
 
 is otherwise incompetent) be of little use where there is a formal 
 registered lease,^^ and the oppression sometimes wrought by the 
 old law is thus out of date.^^ The old form of proceeding by 
 letters of horning^* is still competent, but is on account of the 
 expense (which cannot be recovered) superseded by the modem 
 forms above described, except in a few cases which are not con- 
 cerned with the recovery of rent.^* It will be observed that th6 
 warrant extends to future rents and prestations, 'the terms 
 ' of payment being first come and bygone ; ' but this does not 
 absolve the landlord from the necessity of giving a new charge fot 
 each successive term's rent after it becomes payable, the charge 
 not being, like the warrant, prospective.-^^ The arrestments and 
 poinding proceed in the usual way. 
 
 Few cases have been reported, illustrating the law of summary 
 diligence on leases. A charge for arrears of rent under deduction 
 of what may be recovered under right of hypothec is not void for 
 uncertainty.^' If the contract stands on articles of roup, con- 
 taining an obligation to pay a fixed rent and a clause of registra- 
 tion for execution, summary diligence may proceed ; but if the 
 articles, though containing such a clause, provide only for a 
 formal tack being entered into with caution for payment of the 
 rent contained in the successful bode, all that the registration 
 clause imports is a summary compulsitor to execute the formal 
 tack.-'^ The cases in which a bill of suspension of a charge will 
 be passed, on caution ^° or consignation, where counter claims are 
 set up by the tenant have been already noticed.^' A charge 
 Vague charge following OD an extract registered lease with warrant under the 
 Personal Diligence Act ordered the tenant to cultivate and 
 manage the lands let according to the most approved rules of good 
 husbandry, and to implement and perform the whole obligations 
 having reference to the proper cultivation and management of the 
 farm within six days, under pain of poinding and imprisonment. 
 The tenant, having been imprisoned, presented a note of suspen- 
 
 Arrears under 
 deduction. 
 
 Articles of 
 roup. 
 
 Suspensions. 
 
 ad factum 
 
 " Ibid., Kidd v. Hyde, 1882, 9 R. 803. 
 
 " M'GiU V. Ferrier, 1837, 15 S. 882, 
 16 S. 934 ; as to which case Mr. Bell's 
 remarks (Pr. 1232) seem just ; Dick v, 
 Stewart, 5th Jan. 1836, F.C., 14 S. 
 205., 
 
 "St. 2.3.22, 2.4.60, 4.47.7; Brsk. 
 2.5.55, 4.3.9 ; 2 B.C. 7, 159, 435 ; B. Pr. 
 2311 ; 1 Ross' Lect. 237 ; Campbell, Cita- 
 tion, 179 ; 2 Dallas, 57 ; Alexander, Bank- 
 ruptcy, 445. 
 
 '' 1 Mackay, Practice, 65, and Law 
 
 Courts Commission, p. 620, there cited. 
 
 " 2 Bell, Leases, 4. 
 
 ^^ In Martin -o. Forbes, 1824, 3 S. 275 
 (N.E. 194). 
 
 ^8 Brown v. Birtwhistle, 1823, 2 S. 469 
 (N.E. 419). 
 
 '^ See case of juratory caution allowed 
 on account of landlord's mora, Hamilton 
 V. Tennent & Co., 11th July 1839, F.C. 
 1261. 
 
 20 Svpra, p. 294. 
 
SUMMARY DILIGENCE. 319 
 
 sion and liberation ; and the Court suspended the charge 
 simpliciter. The grounds of judgment were that it did not point 
 out what obligations the landlord meant to enforce and the tenant 
 had failed to implement ; that poinding and imprisonment of the 
 tenant would not help on but rather retard the exercise of good 
 husbandry ; and that in any case more than six days would 
 be required for implement. ^^ It was admitted that such a general 
 charge, ad facta prcBstanda, was unprecedented; it was obviously 
 oppressive. But the question was left open whether an obliga- 
 tion to perform a specific act prescribed in the lease could be 
 enforced by summary diligence. It was pointed out that the 
 more regular course even then would be to bring an action 
 ad factum prcestandum, and charge on the decree so obtained. 
 While the tendency of Lord President Inglis' opinion seems to be 
 towards the competency of the summary remedy, ^^ Lord Shand 
 was distinctly of a different mind ; but the illustrations he gave 
 were taken from courses of conduct rather than specific acts ; ^^ 
 and the competency would probably be held to depend on the 
 distinction between the two and the possibility of performance 
 within the days of charge. 
 
 II. Action of Maills and Duties. 
 
 The expression 'maills and duties' is an old-fashioned pleonasm Action for 
 for ' rents,' and the action is the ordinary action for payment of '^^°*- 
 rents, generally and eo nomine. If founded on title alone, it petitory, 
 is known as petitory ; if founded on a prvmd facie title coupled 
 with possession for seven years, it is said to be possessory ; possessory. 
 the main distinctions being that in the former case the pursuer 
 must show a better title than any competitor in order to 
 succeed, and must call not only the natural possessors (tenants), 
 but the civil possessors ; while in the latter case any 'prima 
 facie title is sufficient till it be reduced, and natural possessors 
 alone need be called.^* Questions of heritable title to land 
 may thus be raised in a form which, though it may be incon- 
 venient, can scarcely be deemed incompetent, ^^ provided the 
 
 21 Hendry r. Marshall, 1878, 5 K. 687. =^ See Fairlie's Tra. -o. Tairlie, 1860, 
 
 ^ 5 K. 690, 691. 22 D. 632 (validity of entail. L. Ivory 
 
 ^ Ibid. 693, 694 (consumption of straw; and L. Deas thought such an action 
 
 repair of drains ; abatement of nuisance). incompetent for the purpose ; L. Cur- 
 
 ^ Skene, 1512, M. 2226; A. v. B., riehill, contra; but L. Deas mistook in 
 
 1630, M. 2228 ; Mudie v. Lightoun, 1634, regarding the action as possessory) ; and 
 
 M. 2229 ; Home, 1665, M. 2231 ; Hali- see a case vphich was practically a com- 
 
 burton ». Carse Tenants, 1702, M. 2232; petition of services, L. Heron, 1760, 5 
 
 St. 4.22.14, 4.26.2 ; Ersk. 4.1.49 ; Mao- B.S. 876. 
 
 kay. Practice, ii. 308. 
 
320 EEMEDIES FOR RECOVEET OF RENT. 
 
 value of the estate be not such as to withdraw it from the pro- 
 tection of the Court in which the question arises.^^ Of course a 
 purely possessory action can only result in a possessory judgment. 
 
 Title to sue.' The title to sue lies in the proprietor, or in any person who, 
 holding an express or implied assignation of rents, is entitled to 
 attain or maintain civil possession ; such as a disponee,^'^ a life- 
 renter by constitution, reservation, courtesy or terce ; ^^ a trustee 
 voluntary or judicial ; an adjudger ; ^® a heritable creditor ; ^^ or 
 an executor for rents falling under executry ; ^^ but not a superior 
 for bis feu-duties, since his right to possess is excluded by his 
 vassal's title.^^ Infeftment is not necessary.^^ A proprietor or 
 a creditor holding an ex facie absolute disposition (who, though 
 there be a back-bond or back-letter, is in the matter of title a 
 proprietor) gains nothing in the way of title by raising an action 
 of maills and duties ' for it is only an incumbrancer that requires 
 ' to use a process of maills and duties in order to give him a 
 ' title in a question with the tenant to uplift the rents; ' and his 
 infeftment gives him civil possession.^* A competent, and, if 
 summary diligence is unavailable, the appropriate process where 
 such a person is refused payment by the tenants, is an ordinajy 
 petitory action. The title of the pursuer of an action of maills 
 and duties should be set forth as falling under one of the above 
 categories, in the summons or condescendence or both. Thus, 
 it was held to be not enough to design him as chief of a clan 
 without libelling a title of property.^* 
 
 Courts. The competent Courts are — the Court of Session for sums 
 
 exceeding £25 ;^^ the Sheriff Court for sums of any amount — the 
 proper forum where the sum does not exceed £12 being the 
 Small-Debt Court,^^ and where the sum does not exceed £50, 
 
 -« See op. of L. Deas, 22 D. 645 ; '= Prudential Ins. Co. u. Cheyne, 1884, 
 
 Sheriff Court Act, 40 & 41 Vict. c. 50, 1 1 R. 871. 
 
 sect. 8. *> Scott V. Whitslaid Tenants, 1628, 
 
 ^ St., Ersk., swpra, H M. 207 ; MoncriefE v. L. Balnagowu, 
 
 28 St. 4.22.8.9 (tercer without kenn- 1629, 1 B.S. 292, 378 ; Belshes ti. Lowden 
 ing) ; A. v. B., 1632, M. 15842. Tenant, 1686, 2 B.S. 95. 
 
 29 St., Ersk., supra, ^ ; Kames' ' '^ Per L.-P. Inglis in Sc. Heritable 
 Equity, 436. Sec. Co. v. Allan Campbell & Co., 1876, 
 
 ^ This is the common case. As to 3 R. 333, 340 ('an idle formality, and, 
 
 annuabrenters see cases in M. 565 seqq. ; indeed, incompetent'). 
 2 B.S. 508, 3 B.S. 140 ; Elchies, Annual- ^ Mackintosh v. Mackintosh, 1835, 
 
 rent, No. 10 ; Macdonald v. MacdonaWs 13 S. 884 (an amendment would now be 
 
 Trs., 1829, 7 S. 826. allowed, 31 & 32 Vict. «. 100, sect. 29) ; 
 
 5^ Lawson v. Ogilvy, 1832, 10 S. 531, Hutchison v. Ferrier, 1846, 8 D. 1228. 
 aff. 7 W. and S. 397. As to pro indiviso ^ 50 Geo. III. u. 112, sect. 28. 
 owners,seeBellt».Gunn,1859,21D.1008; ^ 1 Vict. o. 41, sect. 2; Lees, Small- 
 Lade r. Largs Baking Co., 1863, 2 M. 17. Debt Handbook, p. 28. 
 
CONCLUSIONS OF SUMMONS. 321 
 
 the Debts Recovery Court ; ^ Burgh Courts, whose jurisdiction 
 is in this matter obsolete ; ^^ Baron Courts, whose jurisdiction is 
 saved by 20 Geo. II. c. 43,*" sect. 17, but is never exercised; 
 and the Justice of Peace Court for sums not exceeding £5," 
 where the title is not disputed.*^ 
 
 The conclusion of the summons is for payment by the defenders Conclusions 
 (tenants or possessors *^) of the rents, maills, and duties of their " '"'"™°°°- 
 several possessions presently resting-owing by them, each his own 
 part [specifying the rents], with legal interest for the term when the 
 rents became due, and of the like sums half-yearly [or otherwise] 
 thereafter, the terms of payment being always first come and 
 bygone;** at least [where the pursuer is a creditor] as much as 
 will satisfy the debt due, interest, and penalties. Expenses are 
 usually asked for as against the proprietor and such tenants as 
 appear and oppose.*^ If the pursuer be creditor in an annuity 
 he may thus recover payment not only of arrears but of subsequent 
 instalments.*^ 
 
 A competition as to the right to rents may take the shape of Multipie- 
 a multiplepoinding in which the tenants are the real or nominal ^°^ "'^' 
 raisers, and the fund in medio the rents actually due at the 
 time, not future rents.*^ This remedy is incompetent if there be 
 no double distress. So where a petition for sequestration of an 
 estate had been refused and the claimant in possession was 
 entitled in a question with the real-raiser to the privileges of an 
 apparent heir, an action of multiplepoinding was dismissed, as 
 it would have been just another mode of obtaining the sequestra- 
 tion which had been refused.*^ 
 
 ^ 30 & 31 Vict. c. 96, sect. 3. House ^ The character in which they are 
 
 maills are mentioned, and agricultural sued should be stated, Hutchison v. 
 
 and other rents seem to come under Terrier, supra, ^. See supra, p. 274, as 
 
 ' other the like debts ' — Dove Wilson, to cases where there is possession but no 
 
 Practice, 461. lease. See as to adding the proprietor, 
 
 ^ Law Courts Commission, iv. 38. supra, p. 319. 
 
 « 1699, 0. 4 ; Balf. 40 ; St. 2.3.62 ; « Woodward v. Wilson, 1829, 7 S. 566. 
 
 Mack. 1.4.11; Bankt. 4.16.1; Ersk. ''5 3 Jur. Styles, 126; St. 4.22.15; 
 
 1.4.25 ; Kidd „. Haliburton, 1570, M. Ersk.. 4.1.49; Mackay, Practice, 310; 
 
 7539 ; Dennistoun v. M'Linto, 1630, M. M'Kechnie and Lyell, Styles, 166 ; Lees, 
 
 7545 ; A. and B., 1541, M. 7544 ; Merse Sheriff Court Styles, 40, 236. 
 
 Steward v. L. West Nisbet, 1622, M. *" Bruce *. Grant, 1824, 2 S. 657 
 
 7299; 20 Geo. IL c. 43, sect. 17; Hay r. (N.E. 662) — an assignee; Davidson v. 
 
 Gicht, 1634, M. 3782. • Douglas, 1839, 12 Sc. Jur. 211, 2 D. 159. 
 
 ■•^ 6 G«o. IV. c. 48, sect. 2 ; Lees, p. ^ Pentland v. Royal Exchange Ins. 
 
 146. Co., 1830, 9 S. 164; Wallace v. L. 
 
 ^ Ibid., sect. 25 ; Lees, p. 166; Boyd Forrester, 1692, 4 B.S. 65. 
 
 V. Millers, 1768, M. 7617, Hailes, 267; ^ E. Wemyss v. Campbell (Breadal- 
 
 Thomson r. Boyd, 1824, 2 S. 735 (N.E. bane Ca.), 1864, 2 M. 461 ; see Scott v. 
 
 615). Thorn, 1838, 16 S. 1133. 
 
 X 
 
322 
 
 REMEDIES FOR RECOVERY OF RENT. 
 
 Hypothec, 
 quid? 
 
 Pledge : lien 
 retention. 
 
 Sequestration Consequent on Hypothec. 
 
 I. Nature of the Right of Hypothec. 
 
 By a right called hypothec which took its origin in the 
 Roman Law,*^ and reached Scotland, by way of France*" or 
 Holland ^^ (passing by England and its law of distress ^^) appar- 
 ently early in the seventeenth century/^ a landlord is, unless 
 restrained by statute, entitled to have retained on the subjects 
 let and to recover from creditors and purchasers the produce, 
 raw or manufactured, of the subjects, and in certain cases other 
 efifects thereon situate. This right is inter naturalia of a 
 lease — tacitly a part of the contract — and presupposes that 
 the moveables which it attaches are neither the property ** 
 nor in the possession of the landlord. In this last respect 
 hypothec differs from pledge and lien,** where there is 
 possession by a creditor of a subject which belpngs to his 
 debtor ; and from right of retention,*^ where a creditor has both 
 possession of and right of property in a subject which he 
 is entitled to withhold from his grantee till the latter satisfies 
 debts due by him.*'^ The law of Scotland is jealous (beyond 
 other systems) of admitting securities over moveables without 
 possession and, except in the cases of bottomry and respondentia,^^ 
 declines to recognise express or conventional hypothecs,*^ ' in 
 ' order that commerce may be the more sure and every one may 
 ' more easily know his condition with whom he contracts;' ^ Of 
 the tacit or legal hypothecs known to the law,*i the most import- 
 
 « 6 D. (20.1) ; 2-7 D, (20.2) ; Van- 
 gerow, Pandekten, §§ 363 seq. ; Gliiok's 
 Commentar, 18.161 ; Weiake's Rechts- 
 lexicon, 8.1. 
 
 ™ Pothier, Louage, sects. 226-269. 
 
 SI Voet, il 2-4. 
 
 ™ Gilbert, Distress; Woodfall (13th 
 ed.), ; distinguished from hypothec by 
 L. Brougham in 4 W. and S. 418, 428. 
 
 =3 Wardlaw v. Mitchell, 1611, M. 6187 
 (privilege) ; Hay v. Keith, 1623, M. 6188 
 (hypothecated) and cases in the next few- 
 years, M. 6217 et seqq. The early notices 
 and cases of distress {Breve distractionis) 
 give no indication of the peculiarities of 
 the civil law right of hypothec — Reg. 
 Mag. 4.22 ; Quon. Attach. 49 ; 1 Rob. I. 
 c. 7; Dav. II. o. 6; Rob. III. c. 12; 
 Balf. 398 and cases there ; Or. 2.10.H ; 
 2.19.32 ; 3.2.21 ; Kames' Tracts, 145, 
 149, 169, seq.; 2 Ross' Leot. 392, seqq.; 
 1469, c. 36 ; 1503, c. 98. 
 
 s* The authorities in last note and 
 esp. the Act 1469, c. 36, suggest (what is 
 otherwise certain) that the original view 
 taken of the chattels possessed by the 
 old service tenants was that they became 
 situ the property of the lord, if indeed 
 they were not his originally and granted 
 out with the land ; see esp. Kames, supra, 
 p. 150. 
 
 ^ Of. Alisoni). Campbell's Creds., 1748, 
 M. 6246, with Preston i,. Gregor, 1845, 
 7 D. 942 ; 2 B.C. 29. 
 
 s' To be distinguished from the right 
 of retention in virtue of hypothec, infra, 
 p. 342. 
 
 ^ 2 B.C. 91 ; More's Notes, 131. 
 
 ^ B. Pr. 452, 1386. 
 
 ™ Reg. Maj. 3.3 ; Balf. 194 ; St. 
 1.13.14 ; 4.25 ; Ersk. 3.1.34 ; 2 B.C. 26. 
 
 «» St. 1.13.14. 
 
 *' Superiors' ; law-agents' ; maritime 
 hypothecs are the others. 
 
DEBTS SECURED BY HYPOTHEC. 323 
 
 ant is still the landlord's hypothec/^ though its range and scope 
 have been greatly curtailed by recent legislation. The existence 
 of hypothecs is only justified by expediency and the common 
 advantage of the parties ; and these can only co-exist where the 
 nexus takes its origin in a custom "^ known to every one, and 
 does nothing to interrupt the ordinary use and employment of the 
 thing hypothecated.^* 
 
 In so far as a landlord is not secured by hypothec, he is placed 
 on the same footing in regard to the recovery of rent and the 
 enforcement of other prestations in the lease as an ordinary 
 creditor in regard to the recovery of a debt."^ 
 
 The purpose of the attachment is to secure the payment of Debts secured. 
 rent. It has been held by a narrow majority that not only the 
 fixed rent stipulated in a lease, but pactional rent payable in 
 case of divergence from prescribed management is thus favoured,*" 
 but the decision has not been regarded as final.*" Interest pay- 
 able by a tenant on improvement money laid out on the land let, 
 though for purposes of valuation regarded as equivalent to rent, 
 can scarcely be viewed as rent in the present relation, if the 
 amount may vary according to the actual expenditure.*^ But 
 it would be difficult to draw any distinction in principle be- 
 tween rent and interest on a sum which the landlord binds 
 himself to pay and does pay to his tenant at entry, to be ex- 
 pended on improvements. In the one case the debt is 
 uncertain in amount, in the other case certain, apparent ex 
 facie of the lease, and therefore such as persons having deal- 
 ings with the tenant may fairly be called on to make their 
 account with. 
 
 II. Parties having Right of Hypothec. 
 
 The right of hypothec lies with the landlord ; his assignee to Parties in 
 rent*' (as accessory to the assignation) in so far as the cedent is"^ ' 
 himself entitled ; '"^ a cautioner for rent who has obtained (as he 
 is entitled to obtain) an assignation in relief on paying rent for 
 
 62 St. supra, ^ ; Mack. 2.6.12 ; 3.1.14; "7 Witham v. White, 1866, 38 Sc. Jur. 
 
 Bankt. 1.18.7; Ersk. 2.6.56; B. Pr. 586. 
 
 1234 et seq. ^ See cases in Guthrie's Deo. 305, 309 ; 
 
 ^ The Act 8 Anne, c. 16, does not ex- and as to recovery of improvement rent- 
 tend to Scotland — Cunnison v. Somer- charge, 27 & 28 Vict. e. 114, sects. 63, 67. 
 ville, 1723, M. 6240. What of royalties ?— see infra, p. 334. 
 
 MB. Pr. 1387. «" St. 1.13.15, 4.25; Ersk. 2.6.56; 
 
 ^ Thomson v. Christie, 1858, 20 D. More's Notes, 83 ; see Edinburgh Town ». 
 
 1256. Provan's Creds., 1665, M. 6235, infra, ^\ 
 
 ^ Robertson v. Clerk, 1842, 4 D. " Wedderbum r. Man, 1707, M. 
 
 1317. 10399. 
 
324 REMEDIES FOR RECOVERY OF RENT. 
 
 the tenant;''^ an adjudger infeffc and using diligence to attain 
 possession, but not otherwise ; ''^ a heritable creditor infeft and 
 in possession, but not otherwise.''^ If the subjects are owned 
 pro indiviso or by joint-proprietors the hypothec pertains to 
 them all as a body, not to any one of them separately,'^* though 
 if one of several pro indiviso owners proceeds on the hypothec 
 in order to secure his share of the rents, the faulty instance 
 may be cured by obtaining the concurrence of the others.''^ If 
 the subjects are held under one lease from the same proprietor, 
 who as to part holds on one tenure, and as to the rest on 
 another (as for example on fee-simple and entail) the rent (though 
 for the purposes of an ultimate severance of the unity of owner- 
 ship it be apportioned between the two parts), is regarded as in- 
 divisible in respect to hypothec, and may all be secured by seques- 
 tration of the whole moveables situated on both parts. '^^ Third 
 parties other than cautioners cannot demand an assignation to 
 the hypothec on paying rents in place of the tenant, unless they 
 can show clearly that no prejudice can be done thereby to the 
 landlord's rights and remedies.'''' Thus, where a landlord had 
 sequestrated cattle belonging to a grazier who had taken grass- 
 parks from the tenant for the season and had prepaid his sub- 
 rent to him, it was held that the grazier on consigning his rent 
 (and thus paying it over again) was not entitled to demand an 
 assignation of the hypothec, since he was unable to show that the 
 landlord would not be prejudiced thereby .''^ It was held, in a 
 case of very special circumstances, that a creditor who paid his 
 debtor's rent, and on his absconding let the premises for the rest 
 of the term to a third party, was entitled to sequestrate the goods 
 of the latter for rent ''^ — probably on the ratio that the creditor's 
 assumption of the powers of a lessor could not be quarrelled by a 
 party who had no title except through him.*" A liferenter in 
 
 ^ Stewart v. Bell, 31st May, 1814, (everything except one harrow was on the 
 
 F.O. 638, and next vol. p. 499 ; 2 B.C. entailed portion). 
 
 33 ; B. Pr. 1238, 1243, and infra, p. 361. ■" See Guthrie v. Smith, 1880, 8 E. 
 
 " St. . Ersk. «» ; B. Pr. 1243 ; E. Pan- 107, per L.P. Inglis, p. Ill ; B. Pr. 557, 
 
 mure v. Collison, 1675, M. 14088 (an and cases there. 
 
 intimated assignation and an arrestment '* Steuart v. Stables 1878 5 E. 1024 
 
 preferred). (on the contrary, he would have heen 
 
 '3 Railton v. Muirhead, 1834, 12 S. prejudiced by losing the nexus for second 
 
 757. In Hoods v. Martin's Oreds., 1835, half-year's rent). 
 
 13 S. 923, the process should have been '^ Bannatyne v. Finlayson, 1824, 2 S. 
 
 a poinding of the ground, since the debtor 751 (N.E. 625), apart from an assigna- 
 
 himself was in possession. tion, which did not affect the decision. 
 
 " Stewart v. Wand, 1842, 4 D. 622. so The judgment is open to grave 
 
 '* Ibid, (though the ooncurrer). doubt. 
 
 '■" Meek v. Smith, 1832, 10 S. 652 
 
HYPOTHEC : PARTIES IN RIGHT. 325 
 
 possession, not the fiar, is in the ordinary case the holder of the 
 right of hypothec ; but it was different where the subjects life- 
 rented were under lease at the opening of the succession, and the 
 rents were directed, so long as the lease endured, to be paid to 
 the fiar, who was burdened with an annuity to the liferenter in 
 lieu of the rents. ^^ 
 
 But in order to the establishment of hypothec, there must in Parties to a 
 bond fide exist between the parties the relation of landlord and 1^86. 
 tenant, not a mere device to create a security over moveables, 
 such as is not otherwise recognised in the law of Scotland. 
 Money was lent to shipbuilders on — (1) an absolute disposition 
 of their building-yard and moveable property therein, duly 
 recorded in the Register of Sasines ; (2) a personal bond for 
 payment of interest on the loan, and for repayment of the 
 capital by instalments ; (3) a lease back to the borrowers at a rent 
 much higher than the annual value of the subjects as appearing 
 in the Valuation Roll ; and (4) an agreement setting forth that 
 the disposition was only in security, and that the rent was not 
 to be paid over and above the interest and instalments, but was 
 to be ascribed to payment of these pro tanto. There was no 
 change of possession. The borrowers became bankrupt ; and the 
 lenders sequestrated the invecta et illata, as coming under their 
 alleged right of hypothec. A majority of the Second Division 
 denied them this remedy, either for the exorbitant rent as it 
 stood, or for a fair rent such as might be fixed. Lord Young 
 dissented, and regarded the transaction as a legitimate mode of 
 obtaining possession over and above the symbolical possession 
 achieved by infeftment.*^ The view taken by the majority seems 
 to be the more consonant with the Scottish law of securities over 
 moveable property.®^ 
 
 III. Leases under which Hypothec is and is not Available. 
 
 Leases of urban subjects — dwelling-houses in town or country. Urban tene- 
 shops, factories, and warehouses ^ — and of mines, quarries,^^ and 
 fisheries,*^ being unaffected by recent legislation, tacitly convey eries, 
 or reserve to the landlord a right of hypothec or security for 
 payment of rent. There can be little hesitation in accepting 
 the view of a majority of the Court in a case decided near the 
 end of last century, that there is no hypothec implied in a con- 
 
 ^' ZuiUr. Buchanan, 1833, 11 S. 682. (decided on ratio of excessive rent). 
 
 *^ Heritable Sec. Investment A^soc. v. ^ Supra, p. 168. 
 
 Wingate & Co.'s Tr., 1880, 7 R. 1094. ^4 jnfra, p. 332. 
 
 The English case referred to by L. Craig- *' Infra, p. 333. 
 
 hill is Jackson o. Bowes, 14 Ch.D. 725 ^ Infra, p. 334. 
 
326 
 
 REMEDIES FOE RECOVERY OF RENT. 
 
 Timber. 
 
 Steam-power. 
 
 Game. 
 
 tract of wood-cutting, which only differed from an ordinary sale 
 in contemplating the continuance of the work for years, and 
 providing for the payment of the price by annual instalments.^'^ 
 
 w.iter-power. It may be assumed that a lease of water-power merely — not as 
 adjunct to a mill or factory let together with it and for a lump 
 rent — would not, and it has been decided that a lease of steam- 
 power in similar circumstances does not, carry with it a right of 
 hypothec — the contract in each case being location, not lease, 
 and separable.^ But if the two contracts are one and indivisible, 
 and especially if one rent only is reserved, the accessorial follows 
 the principal right, and the hypothec applies to the whole. ^^ It 
 would appear that game rents are not secured by hypothec,'*' 
 where the right conveyed in the lease is merely a privilege of 
 sporting over lands occupied for other purposes by other persons ; 
 but the contrary would probably be held, if the lands themselves 
 are let, though the known or avowed purpose be to occupy them 
 as a deer-forest or solely or mainly for other sporting purposes. 
 There is neither authority nor, it would seem, analogy in favour 
 of the existence of a hypothec in leases of ferries, customs, and 
 similar jura incorporalia.^^ 
 
 The right of hypothec which was the landlord's principal 
 security for payment of rent in all leases of agricultural or pas- 
 toral subjects was unrestricted in its range (though the severity 
 of its operation was in 1867'^ relaxed in the interests of the 
 ordinary creditors of a tenant) down to the year 1880. In that 
 year the result of long-continued agitation was the passing of the 
 
 Hypothec Hypothec Abolition (Scotland) Act,*"^ which (so far as not repealed) 
 
 Abolition Act, runs in the following terms :— 
 
 'From and after the 4th day of November 1881, hereinafter called 
 ' the commencement of this Act, the landlord's right of hypothec for the 
 ' rent of land, including the rent of any buildings thereon, exceeding two 
 ' acres in extent let for agriculture or pasture, shall cease and determine ; 
 ' provided that nothing herein contained shall apply to any claim for rent 
 ' due or which may hereafter become due under any lease, writing or 
 ' bargain current at the date of the commencement of this Act ' (sect. 1). 
 
 Other incor- 
 poreal sub- 
 jects. 
 
 Farms. 
 
 ^ Muirhead v. Drummond, 1792, 2 
 B.C. 28. The case of mines is closely 
 analogous, but see infra, p. 333 ; and Mr. 
 Hunter's doubts, ii. 361 ; but the reason- 
 ing of L.J.-C. Macqueen is cogent, and 
 sufficiently distinguishes the cases. 
 
 ^ Catterns v. Tennant, 1834, 12 S. 
 686, rev. 1 S. and M'L. 694 (rubric erron- 
 eous). See sujira. p. 254 ; Sandeman v. 
 
 Thomson, 1866, Guthrie's Dec. 75. 
 
 s» Ibid. 
 
 '" Infra, chap, xviii. 
 
 '' Edinburgh Townu Provan's Creds., 
 1665, M. 6235, even if sound was not a. 
 case of hypothec ; but see More's Notes, 
 84. 
 
 ^'' 30 & 31 Vict. c. 42. 
 
 ^ 43 Vict. c. 12 (24th March 1880). 
 
HYPOTHEC : FARM LEASES. 327 
 
 This enactment was followed by provisions (sects. 2, 3) for acceler- 
 ating and facilitating the removal of tenants in arrear with their 
 rents under leases to which the Act applied. These provisions 
 have now been repealed and others substituted by the Agricul- 
 tural Holdings (Scotland) Act, 1883,'* as will be more fully 
 explained in the sequel.'^ 
 
 The scope of the abolition is restricted in three directions, its scope. 
 (1) The extent of the subjects to which alone the Act applies is Size of farms, 
 over two acres. (2) The purposes for which they are let must Purpose of 
 be agriculture or pasture ; and, since in the eye of the law a farm '^**™S' 
 must be either one or the other,'" farms which as matter of fact 
 are occupied for both of these purposes are unquestionably 
 included. It is no bar to the operation of the Act that the rent 
 is partly paid for the occupation of buildings on the farm. But Policies, 
 it would probably be held that premises attached to dwelling- 
 houses, as lawns, policies, parks, and the like, not let for, but 
 actually used in, the rearing of stock or raising of crops and 
 intended purely as accessories to the dwellings are outwith the 
 statute, even though extending beyond two acres. The question 
 may be one of circumstances ; but the analogy of gardens and 
 orchards used for raising fruits and vegetables (which are un- 
 doubtedly exempted) seems stronger than that of farm-holdings. 
 It would be to run counter to the ordinary use of words and to Nursery and 
 the nomenclature of a later Act in pari materia ^^ to regard a^ns.^ ^"' 
 nursery or market gardens, however extensive, as agricultural or 
 pastoral subjects, and (though the point has been considered 
 doubtful '^) practice and sound theory seem to concur in holding 
 that the landlord of such gardens retains his right of hypothec.'' 
 (3) The act does not apply to any claim for rent due under a Date of lease, 
 lease, writing, or bargain current at Martinmas 1881. There are, 
 therefore, many agricultural and pastoral leases which are still 
 affected by hypothec ; and it is still necessary to examine a large 
 mass of lease law which must in a few years become obsolete. 
 The only question which has caused difficulty has been whether 
 hypothec subsists where there has been possession on a verbal or 
 informal bargain or on an understanding at and from a date before 
 Martinmas 1881, while the formal lease is dated subsequently to 
 that term-day, though with a declaration that ' notwithstanding 
 ' the date hereof the duration shall be held as running from 
 
 9* 46 & 47 Vict. 0. 62, sect. 27. Vict. c. 62, sect. 30. 
 
 95 Jnfra, chap. xx. '= Begbie v. Boyd, 1836, 16 S. 232. 
 
 ^ Supra, p. 303. ^^ See 2 Hunter, 352 ; and infra, p. 
 
 97 Agricultural Holdings Act, 46 & 47 336. 
 
'S2'8 REMEDIES FOR EECOVEBY OF KENT. 
 
 the actual term of entry. Leases of this description are not 
 uncommon. The words of the section are probably wide enough 
 to allow the Court to give effect to the real date of the com- 
 mencement of the relation of tenancy, though the lease ' under ' 
 which possession is held bears to be executed at a later period. 
 The question has arisen in the Sheriff Court whether hypothec 
 subsists where a lease dated before Martinmas 1881 has run out 
 and the tenant sits on by tacit relocation. The sound view 
 seems to be that an affirmative reply would enable landlord 
 and tenant (in agreement and it may be on terms) to evade 
 the Act to the prejudice of the ordinary creditors of the 
 latter. 
 
 IV. Subject-Matter of Hypothec. 
 1. In Urban Tenements. 
 
 Beginning with the simplest and now also the most important 
 case, the subjects affected by the landlord's right of hypothec in 
 urban tenements — dwelling-houses, shops, mills, factories, ware- 
 houses, and buildings generally which are not merely accessories 
 to more important holdings — are all the invecta et illata, goods 
 brought into the premises.-''"' 
 Invecta et '^^® main illustrations of this rule have arisen under leases of 
 
 illata. dwelling-houses. Its universality is indicated but not confined 
 
 by the statement that hypothec extends to all furniture, books, 
 paintings, plate, jewels, and other moveable property brought into 
 the house and not belonging to the landlord, ^"^ the presumption 
 from possession being that they belong to the tenant.-'"^ The 
 chief difficulty has been in determining whether certain excep- 
 tions exist, and whether, if so, these exceptions apply in 
 particular cases. The exemptions which have been recognised 
 result either from peculiarities in the nature of certain articles, 
 or from their being proved not to be the property of the 
 tenant. 
 Cash and doou- "^^^ Statement has long stood unchallenged in a book of 
 ments of debt, authority, that ' cash, bonds, bills, and other documents of debt ' 
 are not comprehended in the invecta et illata ; ^*^ and this view 
 seems to spring naturally from the circumstance that, being 
 no part of the plenishing of the house, these articles do not add 
 
 ™ St. 1.13.15; 4.26.2; Mack. 2,6.12; 1885, 12 E. 961, 962. Blackwood u Alex- 
 
 Bankt. 2. 17.10 ; Brsk. 2.6. 64 ; 2 B.C. 30 ; auder, 1678, 2 B.S. 228, which gave effect 
 
 B. Pr. 1275. to an iustrument of possession, reientd 
 
 '°^ See supra, p. 257 seq., as to fixtures. possessionc, is not now law. 
 
 "2 St. 2.1.42; Ersk. 2.1.20; 1 B.C. 254 i»3 b. Pr. 1276 ; and see 2 Hunter, 
 
 seq.; B. Pr. 114, 1313; Bella. Andrews, 354. 
 
HYPOTHEC : SUBJECTS THEREOF. 329 
 
 to the tenant's visible wealth situate on the premises.''''* The 
 same authority lays down broadly that wearing apparel is not 
 comprehended,^"^ and the understanding of the country is said 
 to be to that effect. ■'"^ The reason given is insufficient, being 
 rejected in the case of shop goods, viz., that, as in the Roman 
 law, only those articles are affected which are meant to remain 
 permanently in the house.'^"^ In the only Scotch case in which 
 any question regarding apparel was raised, the objection taken 
 was not as regarded the nature of the articles, but that a guest 
 and not the tenant was their owner. ^"^ It seems to follow that in 
 the beginning of last century it would have been hopeless to 
 argue for the total exemption of wearing apparel. Probably, if the 
 question arose, an attempt would be made to discriminate between 
 clothes necessary or proper for the daily use of the tenant and 
 his family, taking into consideration their station in life, and 
 superfluous clothing, curious or intrinsically valuable garments 
 laid by, and the like. 
 
 Delicate questions have arisen regarding the liability of goods Bes aiknce. 
 belonging to persons other than the tenant, but brought into the 
 premises let. Though there is a presumption from possession 
 that moveables belong to the possessor, the contrary may be 
 proved, and then since ' a man cannot pledge property which is 
 ' not his own — res aliena pignori dari non potest — all the cases 
 ' in which hypothec is admitted are exceptions from that rule, 
 ' and proceed on the presumption of the consent of the real 
 ' owner by the possession voluntarily given, -""^ and the title of 
 ' such possession as implying such consent.' ^■''' This consent, 
 which really means that the owner agrees to keep the law, is an 
 unsatisfactory explanation ^'^ involving a petitio prindpii, but no 
 
 '"* The two main channels through differ in the same directions, Voet, ut 
 
 which the law of hypothec seems to have sup. '" ; Pothier, § 245. English law 
 
 reached Scotland differ. French custom admits distress of everything not in 
 
 rejects, Dutch custom admits hypothec actual use at the time, though laid aside 
 
 as applicable to these articles, Pothier, only during sleep, Bisset v. Caldwell, 
 
 Louage, § 250 ; Voet, Pandec. 20.2.4. Peake's Ca. 36 ; Baynes v. Smith, 1 Esp. 
 
 The English law is said to be against 206. 
 
 distraint of money, 'except it is in a bag, '"* Cs. Callander v. Campbell, 1703, M. 
 
 ' for then the knowledge of the bag 6244. 
 
 ' secures the several pieces of money '"' Not if the goods were detained 
 
 ' therein, so as the same injiividual pieces against their owner's will, Jaffray v. Car- 
 
 ' may be restored,' Gilbert, Distress, 34. rick, 1836, 15 S. 43. 
 
 ^"^ B. Pr. 1276. "" Per Lord Moncreiff (I.) in Jaffray 
 
 106 Jlore's Notes, 83 (the words are v. Carrick, "'. 
 ambiguous, however). '" Per L. Shand in Bell v. Andrews, 
 
 i"' 2 B.C. 30 ; 7 § 1 D. (20.2)— u{ ibi supra, ^^ 12 R. 964. 
 sint. Dutch custom and French again 
 
330 REMEDIES FOR RECOVERY OF RENT. 
 
 better is forthcoming ; "^ and the safest course is to follow, as 
 closely as possible, the decided cases without too close a scrutiny 
 into principles. The three leading categories are loan on hire, 
 loan gratuitously, and ownership by inmates. 
 
 Loan for hire. The case of loan for hire is the most favourable for the land- 
 lord, there being the further presumption that the lender's risk 
 was calculated in fixing the hire ; ^^^ and such is said to be the 
 understanding of furniture brokers."* The rule of liability 
 applies most strongly where the whole,^^^ and with sufficient 
 force when a substantial part, of the furniture is hired, "^ the ratio 
 being that the landlord looked to the plenishing as a whole to 
 secure the rent, and would have been entitled to call for suffici- 
 ent plenishing, if there had been any deficiency in that respect. 
 It is thought that this reason does not extend to single articles, 
 not in the nature of ordinary furniture ; especially if there is a 
 known custom of hiring out similar articles by themselves and 
 as part of a business different from furniture-broking, as in the 
 case of sewing-machines ^^'^ and musical instruments such as 
 pianofortes.^^* Another exception has been suggested by a high 
 authority, as arising in cases where the hiring is purely occasional 
 and transient. ' I am not aware,' says Lord Deas, 'of any authority 
 ' for holding that forms hired for an evening party or china for a 
 ' dinner party, may be sold for payment of the rent, although they 
 ' happen to be in the house on the day sequestration is used.'^^' 
 
 Deposited or The case for the landlord is weaker when the goods are merely 
 
 gratuitously . . .i-i-,! 
 
 lent. deposited in the premises let, or lent gratuitously. But there 
 
 seems to be nothing in the mere absence of consideration passing 
 from the tenant of the premises to the owner of the invecta et 
 illata to distinguish such a case from those already noticed. ■'^° 
 In the earliest case where the point occurred, the reporter (Foun- 
 
 "= Bankt. 1.17.10; B.Pr. 1276; 2 B.C. "« Stewart v. BeU, 31st May 1814, 
 
 31 ; per L.P. Inglis in Bell v. Andrews, F.C. 638, and 18 F.C. 499. 
 
 12 K. 962. L.J.-C. Moncreiff's criterion ™ See Sheriff Court cases cited in 
 
 of subserviency to the tenant's use seems B. Pr. 1276 (8th ed.), from 25 Joum. of 
 
 too vague for practical purposes — Grade Jurisp. 499 ; ibid. 26, 445 ; 28, 277, 498, 
 
 V. Pulaometer Co., 1887, 24 Sc.L.R. 239. 658; 30, 658 ; and the rules as to custom 
 
 Sheriff Guthrie's epitome of the law there in Maraton v. Kerr's Tr., 1879, 6 R. 898. 
 
 may be consulted with advantage. iis Pengon, 6th June 1820, F.C. 147, 
 
 '" 2 B.C. 31 ; Wauohope v. Gall, 1805, which is contra is (it is thought justly), 
 
 there and in Hume 227. doubted by L. Shand in BeU v. Andrews, 
 
 "* Ibid. ; see Cowan v. Perry there. 12 R. 964. 
 
 In France and England the law is the "^ jjj ^Jam v. Sutherland, 1863, 2 M. 
 
 same, Pothier, Louage, § 241 ; Woodfall, 6, 8. 
 
 p. 435. "» See Pothier, Louage, 246, Voet ad 
 
 "5 -Wauohope, supra, "' ; Nelmes & Pand. 20.2.5 ; Woodfall, 445. 
 Co. V. Ewing, 1883, 11 R. 193. 
 
HYPOTHEC : SUBJECTS THEREOF. 331 
 
 tainhall) gives an opinion in favour of exemption, but his words are 
 wide enough, and he probably meant, to apply the exemption to 
 all goods not being the tenant's property.^^^ In the next case, 
 furniture lent without hire, and placed in a country house along 
 with hired furniture, was held not to be affected by hypothec ; 
 but in the note of the case, which has been preserved, the 
 grounds of judgment are not given.^'^ A later judgment 
 subjected to hypothec furniture gratuitously allowed by the 
 creditors of its bankrupt owner to remain in the house which he 
 held on lease, and this conclusion was reached, after a reference 
 to all the earlier cases, and as a decision on the general question 
 apart from specialties. ^^^ If, as seems to be the case, this 
 decision be sound, the general rule would doubtless be subject to 
 the qualifications, set out in last paragraph, in regard to single 
 specific articles and to casual use; since the same grounds — the 
 credit given to the possession of visible goods and the necessity 
 for a sufficient plenishing — are open to the same exceptions in 
 both cases. And circumstances may reveal special cause for 
 exemption. Thus, where previous to a sale of furniture under 
 Crown diligence, the debtor absconded, and after the sale the 
 purchaser allowed it to remain for the use of the debtor's wife 
 and family, it was held to have been freed from hypothec by the 
 sale, and not to have been reaffected with it when nine weeks 
 later the landlord sequestrated it for the rent of the current 
 year.^^* The ratio was that no false credit could be created 
 in the circumstances (which were known to the landlord), 
 whether the furniture was left out of compassion, or for the con- 
 venience of the purchaser, or for the common convenience of 
 him and the debtor's family. 
 
 The case for the landlord is weakest where the goods sought property of 
 to be attached are the property of inmates — children, guests, """**es. 
 lodgers, servants, and the like. It is thought that in no circum- 
 stances which are easily conceivable would the landlord have 
 any right of hypothec therein. In most cases the effects are 
 isolated specific articles of personal rather than of household use, 
 not part of the plenishing to which credit is usually given ; and, if 
 
 1=1 1672, 2 B.C. 670. F.C. 494 ; 12tli Nov. 1814, F.C. 3. The 
 
 ^^ Cowan V. Perry, 1804, 2 B.C. 31. point was raised but not decided in JafE- 
 
 Tn the next case it is said that the ground ray v. Carrick, 18th Nov. 1836, F.C. 40 ; 
 
 was that the hired furniture (the owner 15 S. 43 ; 9 Sc. Jur. 22 ; see L.O.'s note. 
 
 of which raised no question) suf&ced. If Wilson's case is approved by L.P. Inglis 
 
 this were so, the sequestration was in Bell u. Andrews, jupra, '"^j 12 Tl. 963; 
 
 nimious. and B. Pr. 1276 ; but see 2 B.C. 31, note. 
 ^^ Wilson V. Spankie, 17th Dec. 1813, ^^ Adam v. Sutherland, 1863, 2 M. 6. 
 
832 
 
 REMEDIES FOR RECOVERY OF BENT. 
 
 Business 
 
 premises. 
 
 Furnishings. 
 
 a so-called lodger brings in furniture materially different and more 
 various, the question will arise whether he be not rather a sub- 
 tenant, subject to all the obligations springing out of a sublease. 
 There could be no doubt now, as there was in the beginning of 
 last century, whether a guest's clothes were or were not attach- 
 able. ^^^ A pianoforte, which belonged to the daughter of a 
 tenant, and was kept within the premises let, was decided not to 
 be affected by the landlord's hypothec.^^" 
 
 Where the subject let is a shop, warehouse, mill, or factory, 
 the rule is that the hypothec extends not only to the furnishings, 
 utensils, machinery, and instruments of trade and manufacture 
 belonging to the tenant or to persons other than the landlord, 
 but also to the materials intended to be made up, and the goods 
 in stock intended for sale or hire ;^^'^ provided that, at the time 
 in question, that relation of landlord and tenant subsisted on 
 which alone hypothec can be claimed. ^^^ The rules regulating 
 the liability -to attachment of the first class of subjects (furnish- 
 ings) do not seem to differ from those which obtain in the case of 
 Goods in stock, dwelling- houses. But, in regard to the second class, a modifica- 
 tion of the strict rule naturally results from the circumstance 
 that the goods are on the premises for no other purpose than to 
 be disposed of by sale or hire, either without or after some process 
 of manufacture or repair. The reasonable result seems to be : — (1) 
 With regard to goods not belonging to the tenant, that ' though 
 ' found in a manufacturer's house, or workshop, or warehouse, 
 'they are not included in the hypothec ;i^' that the effects 
 ' belonging to travellers in an inn or hotel are not subject to 
 ' hypothec for the rent of the inn ' i'^^" and that the stricter rule 
 suggested above as to deposits here falls away along with the 
 presumption on which it is founded. (2) Goods, whether 
 belonging to the tenant, or intrusted to him for sale, are freely 
 vendible till landlord's sequestration takes place, bond fide 
 purchasers being secured from the operation of the hypothec 
 till then. It has been well suggested that they would be safe 
 
 1^5 Cs. Callander „. Campbell, 1703, 
 M. 6244 ; see Ersk. 2.6.64 ; 2 B.C. 30, 
 note. 
 
 ^^ Bell V. Andrews, 'supra, '"-. Lodgers' 
 goods are specially exempted from distress 
 in England by 34 k 35 Vict. o. 79, on 
 declaration made. 
 
 127 Bankt. 1.17.11 ; Ersk. 2.6.64 ; 2 
 B.C. 31 ; B. Pr. 1276 ; 1 Bell, Leases, 
 387. 
 
 128 Girdwood & Co. v. Wilson, 1834, 
 12 S. 576 (machinery left after ish). 
 
 128 In Girdwood & Co. v. Pollock, Gil- 
 mour & Co., 1827, 5 S. 507 (N.E. 477) 
 the question of hypothec was not 
 reached. 
 
 ™ 2 B.C. 31 ; B. Pr. 1276 ; Ivory's 
 Note to Ersk. 2,6.64 ; 2 Hunter, 358 ; 
 Pothier, Louage, § 245. 
 
HYPOTHEC : SUBJECTS THEREOF. 333 
 
 even after sequestration, and that tbe only trustworthy mode of 
 preventing dilapidation of the security would be by obtaining the 
 closing of the premises under judicial warrant or removal of the 
 sequestrated goods.^^^ And (3) where large quantities of goods 
 (relatively to the whole contents of a shop), are entrusted to a 
 shopkeeper for sale, so as to induce a false credit, the stricter rule 
 as to deposits may be presumed to hold as strongly as in regard 
 to household furniture.^^^ Business books are not subject to 
 hypothec to the effect of entitling the landlord to levy the 
 debts. 1S3 
 
 2. In Mines and Quarries. 
 
 There can be little doubt that the ordinary contract of letting 
 mines and quarries is regarded as a lease to the effect of inferring 
 the right of hypothec,^^* and that these subjects are regarded as 
 manufacturing concerns, so that not only the produce (as to 
 which no doubt has ever been moved), but the machinery and 
 implements (as to which Mr. Hunter was more than doubtful), i^° 
 are liable to attachment. ^'^ Thus, where not only minerals 
 output, and goods in a shop leased along with a mine, l^ut 
 machinery and implements were sequestrated, no doubt was 
 expressed as to the comprehension of the hypothec, the only 
 question being whether the terms of the petition for sequestra- 
 tion were wide enough to include the invecta et illata}^'' And, 
 a tenant of a quarry having delivered waggons to a creditor to 
 be retained till payment of the debt, while it was held that the 
 landlord could not revindicate and sequestrate them in virtue of 
 his hypothec, on the grounds that his diligence came too late and 
 that the delivery and receipt were in bond fide with no intent to 
 disappoint the hypothec, yet it was taken to be ' clear from the 
 ' authority of the text-writers and the decisions in analogous 
 ' cases that the landlord of a quarry has a hypothec over the 
 ' implements used by the tenant in working it, as invecta et 
 
 '^ More's Notes, 83 ; 2 Hunter, 358. the unfounded assumption that in order 
 
 132 2 Hunter, 358. It is thought, how- to come under the rule, these subjects 
 ever, that fraud, or gross negligence ap- must be prcedia urbana, and on the 
 preaching to fraud, in letting down the hazardous view that machinery, railway 
 effective stock in hand would have to be plant, barges, and ships could not be in- 
 shown, as well as the depositor's cognis- recta et illata. These doubts were ad- 
 ance thereof ; and something might turn duced and ignored in Lindsay v. E. 
 on the custom of trade {e.g., jeweller's Wemyss, 1872, 10 M. 708. 
 goods sent on sale or return). ^^ They are classed with mills and 
 
 ™ B. Pr. 1276 ; 2 Hunter, 358. breweries in Ersk. 2.6.64 ; followed in 1 
 
 131 Weir's Exrs. v. Durham, 1870, 8 Bell, Leases, 387. 
 
 M. 725, 728, 730, per L. Deas. ™ Lindsay r. E. Wemyss, supra, i^. 
 
 1^ ji. 359. Tbe doubt proceeded on 
 
334 
 
 REMEDIES FOR EECOVEEY OF RENT. 
 
 Articles ex- 
 cluded by 
 Amendment 
 Act, 1867. 
 
 Produce and 
 stacking. 
 
 ' illata for payment of his rent.' ^^^ For reasons adduced on 
 another page, it seems very questionable whether a royalty can 
 be secured by hypothec beyond the amount of the fixed rent.^^^ 
 
 3. In Fisheries. 
 
 It is undoubted that here also hypothec obtains, and that it 
 affects the produce — the fish taken.^*" It may be fairly argued 
 on the analogy of the foregoing paragraphs that it extends also 
 to the boats and other utensils. 
 
 4. In Agricultural and Pastoral Subjects}*^ 
 
 By the 6th section of the Hypothec Amendment (Scotland) 
 Act, 1867,"^ the following articles were excluded from sequestra- 
 tions for the rent of any farm or lands i*^ — viz., absolutely, house- 
 hold furniture or furnishings and agricultural implements ; ^** 
 and, if not brought upon the premises in fulfilment of a specific 
 obligation in the lease, imported manure, lime, drain-tiles, feed- 
 ing-stuffs, and other material not being the produce of or made 
 upon the farm or lands and not at the time incorporated with 
 the soil or consumed or otherwise applied to the purposes for 
 which such material may have been procured.^*' It was perhaps 
 intended by the legislature to confine the scope of the hypothec 
 in such subjects to the produce and stocking of the lands. If 
 so, the term ' agricultural implements ' was ill chosen for the 
 purpose of including such buildings, fences, and other erections 
 as are neither implements in the ordinary sense of the word, nor 
 by annexation the property of the landlord."^ If it had been 
 intended to confine the right to produce, it would have been easy 
 to say so; and the fair conclusion seems to be that tenants' fix- 
 tures are not exempt from hypothec. 
 
 However this may be, the moveables which are most readily 
 
 138 Tennent v. M'Brayne, 1833, 11 S. 
 471 (per L.O. Corehouse, and not repudi- 
 ated by the Inner House in adhering to 
 his judgment). 
 
 "» Supra, p. 323. 
 
 i*" St. 1.13.15 ; Bankt. 1.17.10 ; Mere's 
 Notes, 84 ; Cumming v. Lumsden, 1667, 
 M. 6237 (intromitter with fish liable) ; 
 MoUison V. Smith, 1687, M. 6239. 
 
 '*i Under leases current at 11th Nov. 
 1881. See supra, p. 326. 
 
 i« 30 & 31 Vict. t. 42. Appx. No. 
 iii. 
 
 1*3 For the definition of these words see 
 sect. 1. Shortly stated, they mean sub- 
 jects the primary use of which is the 
 raising of agricultural produce or the 
 
 raising and rearing of live-stock. 
 
 1** See an interesting discussion, thus 
 superseded in 2 Hunter, 348. The autho- 
 rities there cited are to be found in Dirl. 
 222 ; St. 1.13.15 ; 4.25 ; Mack. 4.6.12 ; 
 Bankt. 1.20.10; Ersk. 2.6.57; 1 Bell, 
 Leases, 385 ; 2 B.C. 29 ; B. Pr. 1235 ; D. 
 (1.4); Voet, Pand. 20.2.2; Pothier, 
 Louage, 228 ; Gilbert, Distress, 36 ; 
 Woodfall, 449 ; and cases in Mor. 6188, 
 6203, 6205, 6221, 6246 ; Elch. Hypothec, 
 10, 13, and Ann. to Stair, 79 ; 16th 
 Jan. 1810, F.C. 487 ; 10 D. 1489 ; 12 D. 
 65 ; 17 Sa Jur. 271. 
 
 1*3 The last clause seems redundant. 
 
 1*5 _4^g to which see supra, on Fixture 
 p. 260. 
 
HYPOTHEC : SUBJECTS THEREOF. 335 
 
 available are the produce and stocking of the farm ; in dairy 
 farms (including farms where there is a bowing of cows), the 
 stock and the cheeses ;^*^ in pastoral farms, the stocking (and 
 crop if there be any) ; in arable farms, the crop and stocking. 
 In regard to the stocking it is now provided by statute "^ that if stocking of 
 sheep, cattle, or other live stock belonging to any person other than " ^"'^ '^'" 
 the tenant have been received on any farm or lands to be grazed 
 or fed for a bond fide payment equal to the just value of such 
 grazing or feeding they shall be liable to hypothec to the extent 
 of the amount of such payment and no further ; that, so long as 
 any portion of them remains on the farm or lands the hypothec 
 shall continue over it to the full extent of that payment ; and 
 that in the event of the removal of the stock or any portion 
 thereof the hypothec shall, so long as the payment or any part 
 thereof shall remain undischarged, continue to apply to the stock 
 to the extent of the amount of the payment or such part thereof 
 as shall be unpaid. ^*^ The effect of this enactment is to recog- 
 nize the existence of a right of hypothec over such stock ; to 
 confine it to securing payment to the landlord of the whole grass 
 (or turnip) maill ; to continue it in force for the full maill, whether 
 prepaid or not, over any alien stock so long as it remains on the 
 land ; and to continue it in force for unpaid maill even after the 
 stock is removed. In so far as it recognizes a right of hypothec 
 over such stock, this enactment seems to be merely declaratory 
 of the previously existing law — which had been erroneously sup- 
 posed to deny right of hypothec over alien stock and to reach 
 an equivalent result by feigning a preference over the grass maill, 
 secured by a supposed communication of the tenant's Hen over 
 that stock ^^^ — and to be in full conformity with the rules as to 
 subleases.^^^ The only live-stock on a farm about which a doubt ■work-horses. 
 has been moved, are the work-horses ; but it is now settled that 
 they are subject to the hypothec, though if there were plenty of 
 other effects, the Court might interfere to prevent the sale of 
 such horses as were necessary for the proper working of the 
 farm.^^^ The right of hypothec infers a preference over the 
 whole stock for the time being, though not applied in the con- 
 
 "7 Goldie V. Oswald, 1839, 1 D. 426. 6204 ; M'Kye v. Nabony, 1780, M. 6214. 
 
 ■■" 30 & 31 Vict c. 42, sect. 5, infra, See the cases as to obligation to plenish, 
 
 Appx. No. iii. infra, p. 351. The sound view (adopted 
 
 '^ See Steuart v. Stables, 1878, 5 R. by the statute) is taken in Bankt. 1.17.10; 
 
 1024. see Boss v. Williamson, 1817, Hume 232. 
 
 i5» Ersk. 2.6.63 ; 2 B.C. 29. These "' Infra, p. 350. 
 
 passages are not supported by the cases '°' Henderson v. Warden, 1847, 17 Sc. 
 
 referred to— Brown v. Sinclair, 1724, M. Jur. 271, 
 
336 EEMEDIES FOB BECOVERT OF BENT. 
 
 Crete to individual animals, and any creditor other than the land- 
 lord attaches by diligence the estate of the tenant tantum et tale 
 as it stands in his person.^^^ The young of animals in utero at 
 sequestration and not entered in the inventory may on attaining 
 a separate existence be sold in virtue of the hypothec.^^* On 
 the assumption that steelbow goods are the property not of the 
 landlord but of the tenant, ^^' they are liable to hypothec. ^^^ 
 
 Crop. The hypothec extends over the inanimate produce — crop or 
 
 fruits of every kind — whether natural or industrial.^" Two 
 modifications on this rule have been suggested, and with reason. 
 
 Green feeding. ' In the neighbourhood of great towns grass farms are frequently 
 ' cut in large patches and the grass carried daily to market. The 
 ' nature of the subject so far deprives the landlord of the exercise 
 ' of his hypothec, that he will not be entitled to insist on keeping 
 ' the produce on the land. He must trust chiefly to cautioners 
 ' for the security of his rent and to the effect of his right in com- 
 ' petition for what may remain on the land. In a competition 
 ' with creditors in bankruptcy or doing diligence individually, the 
 
 Pasture. ' hypothec would of course be effectual.' ^^^ Again 'it is true that in 
 
 ' treating of hypothec our authors say generally that it affects all the 
 ' fruits of the soil ; but still it is plain that they mean to speak of 
 ' those fruits only which are preserved and may thus be retained or 
 ' recovered [crops white, black, and green, and cut grass or hay] ; 
 ' and not of grass which is in the course of daily consumption,'^*^ 
 and is turned into a different shape — and a far more profitable 
 one for the landlord — on the increased value of the cattle. 
 5. In Horticultural Subjects. 
 
 Subjects of this sort — orchards and nursery and market gardens 
 — are not struck at by the Amendment Act of 1867 ; ^^^ nor (it 
 has been submitted) by the Abolition Act of 1880,"^ so that if 
 the right of hypothec prevails in regard to them, it must be 
 governed by the rules of the common law. Of course, in so far 
 as the plants, trees, hothouses, and the like, are the property of 
 the landlord, the hypothec cannot subsist. But in so far as they 
 are tenants' fixtures, removeable by them in the course of their 
 trade or at ish, there seems to be no reasonable ground for 
 
 1S3 M'Dowal u Jamieson, 1781, M. ii^^ gt. 1.13.15. 4.25 ; Mack. 2.6.12; 
 
 6215. See Kames' Eluo. 75. Bankt. 1.17.8; 2.9.21; Karnes' Eluc. 75; 
 
 i=< Lamb v. Grant, 1874, 11 ScL.R. Ersk. 2.6.67 ; 2 B.C. 29; B. Pr. 1235. 
 
 672 (calf). 158 2 B.C. 29; see infra, as to' gardens. 
 
 1=5 Supra, p. 256. 1=9 Per Baron Hume in Ross v. WiUiam- 
 
 "« Butter 1'. M'Vioar, 1764, M..6208 ; son, supra, 1™. 
 
 see Crawford v. Stewart, 1737, M. 6193, "» Supra, p. 334. 
 
 10531, Elch. Hypothec, 7. i«i Supra, p. 327. 
 
HYPOTHEC : ITS DURATION. 337 
 
 doubt "2 ttiat the hypothec would obtain, whether the closer 
 analogy be to agricultural or to business premises. 
 
 V. Duration of Hypothec. 
 
 Following the same order of exposition, it is settled that the o^'er mvecta et 
 right of hypothec over invecta et illata operates as security for ' " "' 
 each year's rent successively, and no further,"^ either for 
 arrears, 1^* or for payment of rent for a year during no part of 
 which the effects were situated on the premises.^^^ But the right 
 expires as to each year's rent, if it is not made effectual by 
 sequestration within three months after the last term of pay- 
 ment. ^^^ If that has been done, the preference is complete, 
 though sale of the sequestrated goods does not take place till 
 after the three months, provided there has not been undue 
 delay or other evidence instructing abandonment, i^'' 
 
 Similarly, live-stock — not being as a whole the produce of Live-stock, 
 any one year — are held to be hypothecated for the rent of each 
 year successively ;i^^ and the period allowed by the law to the 
 landlord for making his right effectual by sequestration is three 
 months after the last conventional term of payment in each 
 year.i"^ The landlord loses his preference if he do not take pro- 
 ceedings before the lapse of that period ; ^""^ there is no record of 
 any relaxation of this strict rule ;^"^ and it is adopted in the 
 Amendment Act of 1867.^^^ This liability for the rent of the 
 current year may be very inconvenient in practice where the 
 conventional terms are postponed for an unusually long period ; 
 but there seems to be neither authority nor principle in favour of 
 any exception being made in such cases.^'^ 
 
 ^52 See it raised in Begbie v. Boyd, 1837, Hume 226. 
 
 16 S. 232 ; and see supra, as to fixtures, ^^s Crawford v. Stewart, 1737, M. 
 
 p. 264. 6193, 10531, Elch. Hypothec, 6. 
 
 IK" St. 1.13.15, 4.25; Mack. 2.6.12; "» Bankt. 1.17.8; Karnes' Eluc. 70 ; 
 
 Bankt. 1.17.10 ; Ersk. 2.6.64 ; 2 B.C. Ersk. 2.6.62 ; 2 B.C. 33 ; B. Ft. 1240 ; 
 
 33 ; B. Pr. 1240, 1277 ; Hunter v. N. of More's Notes, 81. The period was first 
 
 England Banking Co., 1849, 12 D. 65 fixed down in 1726, Hepburn v. Kiohard- 
 
 (forehand). son, M. 6205. 
 
 1" Dicks V. Lands, 1630, M. 6243 "" Rorison v. Shaw, 1766, M. 6211 s 
 
 (poinding stopped). Ross v. Williamson, 1817, Hume 232. 
 
 ^^° Thomson v. Barclay, 1883, 10 R. ^'^ The suggestion of a reasonable ex- 
 
 694 ; M'Intyre v. M'Nab's Trs., 1829, 8 tension of time in Cathcart v. Mitchell, 
 
 S. 237, aff. 5 W. and S. 299 ; Donald 1775, M. 6212, is only in the rubric 
 
 V. Leitch, 1886, 13 R. 790. (delay of eight months). See 1 Bell, 
 
 '^^ Authorities in "^ ; Christie v. Mao- Leases, 380. 
 
 pherson, 14th Dec. 1814, P.O. 95 (in com- '^^ See next paragraph, 
 
 petition with landlord who had let for a "'^ Ersk. 2.6.62 throws out the su^'- 
 
 new year to the sequestrator's subtenant). gestion. It is repudiated by Hunter 
 
 '67 M'Leod V. Thomson's Creds., 1805, (ii.366) and cannot withstand the statute. 
 
 T 
 
338 REMEDIES FOB EECOVEEY OF RENT. 
 
 Crop. Agricultural produce — crops of all kinds and the farmyard 
 
 manure, of which they are ingredients — is hypothecated for 
 the rent of the year of which it is the product, and of that 
 year only,'^''* whether the rent be payable at the legal terms, 
 or backhand,!''^ or forehand.^^^ The crop of one year cannot 
 be sequestrated for the rent of the preceding year, though 
 it grew from seed which had itself been sequestrated for the 
 last rent."'' The old rule was that ' the crop and corns growing 
 ' any year remain ever affected and subject to the master for 
 ' that year's farm's [rent], wherein he ought to be preferred to 
 ' all creditors or donatars.'"* To tie up moveable property thus 
 for an indefinite period was so serious a curtailment of freedom 
 of commerce, that it may be regarded as astonishing that the law 
 so remained till the Amendment Act of 1867."^ That statute 
 extends to all cases of hypothec for the rent of farms or lands 
 the limitation in time which already obtained in regard to 
 inveda et illata and stock. It enacts in effect that, if pro- 
 ceedings for making effectual by sequestration the right of 
 hypothec are not commenced within three calendar months 
 after the conventional (or failing such, the legal) term at which 
 the year's rent or the last portion due thereof is payable, the 
 right of hypothec shall cease. ^^^ 
 In hortioultur- There is no authority in regard to the duration of hypothec in 
 ai subjects. horticultural Subjects. In some cases the crops are annual, or 
 succeed each other at shorter intervals — as in the case of market- 
 gardens — and there the analogy to farm crops is close. In other 
 cases the crop requires several years to be fit for market, in that 
 respect resembling live-stock. Probably these analogies would 
 be followed as closely as the circumstances might admit. 
 Combined It follows from this description of the duration of the hypothec, 
 
 hypothec over that where there are invecta et illata or stocking to attach, there 
 and orop."*^^' ^^ ^ period of three months during which payment of two years' 
 rents may be assured (so far as the value of the effects goes) — 
 the rents of the past year which are due, and the rents of the 
 current year which are growing due. In most cases where 
 
 1" Dirl. 222 ; St. 1.13.15 ; 4.25 ; Mack. "^ Crawford v. Stewart, supra, ^^. 
 
 2.6.12 ;Bankt. 1.17.8; Karnes' Eluc. 70; ^'^ Taylor -d. Davidson, 1740, M. 
 
 Ersk. Prin. 2.6.26 (of. Inst, 2.6.58, where 6197. 
 
 the author falls into error) ; 2 Ross' "' E. Cassilia v. Ramsay's Creds., 
 
 Lect. 404 ; 2 B.C. 33 ; B. Pr. 1239 ; 1816, Hume 230. 
 
 Wardlaw v. Mitchell, 1611, M. 6187 ; "» Hay v. Keith, 1623, M. 6188 
 
 Fairlie i-. Johustoun, 1636, 1 B.S. 359 ; (seven years). 
 
 Stewart v. Rose, 1816, Hume 229 ; "" 30 & 31 Viot. c. 42, sect. 4. 
 
 Horn V. M'Lean, 1830, 8 S, 454. w A saving of current leases is adc^ed 
 
HYPOTHEC : EIGHTS PEEFEEEED TO IT. 339 
 
 sequestration is required at all, and the lease is running on, it is 
 prudent to combine the two — to sequestrate for payment and in 
 security. If crop be also available, it only secures the rent of 
 the year in which it was raised, but it thus leaves the other 
 subjects 'pro tanto free to satisfy the claim for the other year. 
 In the ordinary case the crop pays the rent of the earlier, the stock- 
 ing secures the rent of the later year, as where the rent of crop 
 1885 is payable at the legal terms, "Whitsunday and Martinmas 
 1885, and thus till 11th February 1886 the stocking secures 
 the rent for 1886, and the crop and it together pay the rent of 
 1885. But postponement of payment of rent may bring about 
 the opposite result. If the rent for crop 1885 is conventionally 
 payable at Candlemas and Lammas 1886, till 1st November 1886 
 the stocking pays that rent, while the crop then extant secures 
 the rent of 1886, payable at Candlemas and Lammas 1887.^^^ 
 
 VI. Rights to which Hypothec is postponed in Competition. 
 
 The nature of the right is best observed when it is viewed as 
 coming into competition with the rights of third parties. To 
 certain rights the landlord's hypothec is postponed in competition; 
 to others it is preferred, if, according to the rules set down above, 
 it is timeously made effectual by sequestration. The simpler 
 case is here taken up in the first place. The other falls within 
 the next division of this chapter. 
 
 1. Crown Debts. 
 
 When procedure by arrestment, poinding, and imprisonment 
 superseded the old writs of extent^^^ for the recovery of Crown 
 debts, it was provided that nothing in the Court of Exchequer 
 Act of 1856 (which put the matter on the new footing) should 
 impair, injure, or affect any preference of the Crown in com- 
 petition with other creditors ; the execution of a charge, or, if 
 the debtor was dead, of any arrestment or poinding being made 
 equivalent to the teste of a writ of extent according to the old 
 practice.^^ By that practice, it was established,-'** that Crown 
 process gave a preference over the landlord's hypothec, as and 
 because it did so over the landlord's distress in England, ignoring 
 the difference between a real right, like hypothec, and a right 
 not real, like distress. ■'^^ This preference subsists, so long as the 
 
 ™ This case is figured in 2 Hunter, 1^4 2 B.C. 34, 54 ; B. Pr. 1241, 1247, 
 
 367. 1277 ; More's Notes, 85 ; Ersk. 1.3.31, 
 
 182 19 & 20 Vict. c. 56, sects. 29-36— 2.6.64, notes ; Brodie's Stair, 2.9.43. 
 
 C. of Exchequer (Scotland) Act, 1856. i^s Ogilvie v. Wingate, 1791, M. 6884, 
 
 As to the law of extents, see 2 B.C. rev. 3 Pat. 273, following as near an 
 
 41 seq. analogy as possible, as had been done by 
 
 ^^ Ibid. the House of Lords in adapting the Eng; 
 
rates, 
 
 340 REMEDIES FOR RECOVERY OF RENT. 
 
 tenant's effects are not sold in pursuance of a sequestration, and is 
 rendered operative by issue of Crown process before that time ; ^** 
 if not indeed (as was held in one case)/*^ before the warrant had 
 been granted ordering the sheriff-clerk to pay the landlord the 
 amount due to him out of the price. ^^^ 
 Extended to The landlord is excepted from the liability, to which other 
 creditors are exposed, to pay the arrears for a year of income tax, 
 inhabited house-duty, and land tax, due by their debtor in the 
 event of their meddling with his goods by diligence. ■'^^ Although 
 it would appear that this exception is now, by the repeal of 
 earlier Acts which contained no such limitation,^^" and their 
 supersession by the Taxes Management Act,^^^ imported into the 
 Poor Law Act, which gives for collection of the poor-rate ' the 
 ' whole powers and right of issuing summary warrants and pro- 
 ' ceedings, and all remedies and provisions enacted for collecting, 
 ' levying, and recovering the land and assessed taxes, or either 
 ' of them, and other public taxes ;'^'^ yet the preference con- 
 tained in the close of the same section seems not to be thereby 
 impaired, viz., that poor-rates ' shall in case of bankruptcy or 
 ' insolvency be paid out of the first proceeds of the estate and 
 ' shall be preferable to all other debts of a private nature due by 
 ' the parties assessed.'^^^ The same preference is conferred by 
 certain other statutes which contemplate the raising of rates.-^®* 
 
 2. Superior's Hypothec. 
 
 A superior, it is now settled, has a hypothec for recovery of his 
 feu-duties, not only over the produce and stocking of agricultural 
 and pastoral subjects, but also over invecta et illata introduced 
 into other premises.^^^ And where the subjects are let the 
 
 lish treason law to Scotland, in Gordon of i'" 43 Geo. III. c. 150, sect. 33; 52 
 
 Park's case, 1 Pat. 508, 558 ; Kames' Eluc. Geo. III. c. 95, sect. 13. 
 
 381. The C. of Session reluctantly ac- ™ 43 & 44 Vict. o. 19, supra, ^^s. 
 
 cepted the reversal, Leslie's Factor v. ^'^ 8 & 9 Vict. c. 83, sect. 88. 
 
 Tweedie, 1793, M. 7889. No question iss Ibid., and School Rates, 35 & 36 
 
 as to the priority of the Crown's right was Vict. u. 78, sect. 44. 
 
 attempted in Adam v. Sntherland, 1863, ^^ e.g., County Police, 20 & 21 Vict. 
 
 2 M. 6. c. 72, sect. 32, and Acts incorporating its 
 
 ^8" Robertson v. Jardine, 1802, M. procedure ; County General Assessment, 
 
 7891. 31 & 32 Vict. o. 82, sect. 7 ; Poor Rates, 
 
 '87 The King v. Johnston, 1809, in 2 Adamson v. Ambrose, 1858, Guthrie's 
 
 B.C. 56, note. Dec. 315. SeeRankiue, Landownership, 
 
 '*^ This seems to be the view proceeded 663 seqq. 
 
 on in practice, Tait's J.P. 175, founded 195 Cr. 2.9.11; St. 2.4.7; Mack. 2.6.12; 
 
 on reports of sheriff-clerks in Robertson, Ersk. 2.6.63; 2 B.C. 27; B. Pr. 698; 
 
 supra, 186. Yuille v. Lawrie, 1823, 2 S. 155 (N.E.' 
 
 183 43 & 44 Vict. 0. 19, sect. 88 ; see 140) ; V. Stormont v. Andersons, 1675, 
 
 sect. 97 for procedure in Scotland. M. 10514. 
 
HYPOTHEC : RIGHTS PREFERRED TO IT. 341 
 
 superior's right prevails, since the landlord cannot let his land 
 otherwise than under burden of the feu-duties.^®* The preference 
 — still known as a hypothec though different in many respects 
 from landlord's hypothec — is worked out in the following way. 
 The superior cannot sue his vassal's tenants in an action of maills 
 and duties for he has no right to enter into possession. ■'^^ His 
 remedies against them are the real action (or diligence) of poind- 
 ing of the ground ; and a personal claim against them as 
 intromitters with the fruits, limited to the recovery of such feu- 
 duties only as have accrued during the intromitter's possession, ^^^ 
 preferable to the landlord's claim for rent and elided by bond 
 fide payment of the rent to the landlord. 
 3. Servants' Wages. 
 
 It is settled that a farTn servant has a claim for his current 
 (i.e., a year's or a half-year's)-*^®® wages, which is preferable to the 
 landlord's hypothec.^"" A judgment to the contrary effect had 
 been given prior to the case which finally established this propo- 
 sition ; but the point did not properly arise for decision f°^ and 
 opinions in favour of the law as now settled were delivered in a 
 case which was decided on specialties.^"^ The reasons adduced 
 in the first-cited case were that the crop was created by the 
 labour of the servants directly, and not merely indirectly like the 
 labour of the plough-wright ; that otherwise the landlord would 
 be better off than if the lands were in his own possession ; that 
 in the old law they were really the landlord's own servants ; and 
 that the hypothec could not deprive them of their food from the 
 fruits of the farm. The dangerously wide ground that their 
 labour was in rem versum of the landlord was also adduced. ^"^ 
 There seems to be no reason for confining their preference to the 
 proceeds of the crops, ^°* and excluding the proceeds of the 
 
 19S Ersk.: B. Pr. : B.C., sup»-<i,i«5. Leases, 414; 2 B.C. 35, 158; B. Pr. 
 
 ™ Prudentiallns. Co. v. Cheyue, 1884, 1241, 1404 ; Mora's Notes, 85 ; notes to 
 
 11 R. 871. Ersk.2.6.58,3.9.43! Brodie's Stair, 2.9.43. 
 
 ^^ Ibid., esp. p. 880, per L. Euther- Their privilege over arresters on the 
 
 furd Clark ; Hollo v. Murray, 1629, M. produce was established earlier — Melville 
 
 4185; Cockbum -v. Trotters, 1639, M. «. Barclay, 1779, M. 11853; A. S., 23rd 
 
 4187 ; Winerham v. Ly. Idington, 1665, Jan. 1779 ; and this applied to harvesters 
 
 M. 4188 ; Hamilton v. L. Burleigh, 1712, as well as regular farm-servants— Lock- 
 
 M. 4189 ; Biggar v. Scott, 1738, M. 4191, hart v. Paterson, 1804, M. Privileged 
 
 Elch. Teu-duty, 2, and Superior and Debt, 2. 
 
 Vassal, 4 ; and see Kincardin's Creds. v. ™ White v. Christie, 1781, M. 11853 ; 
 
 Tacksmen, 1699, 5 B.S. 3. 1 Bell, Leases, 412. 
 
 199 In White v. Christie, infra, ™ half- 202 Crosbie v. Bell, 1818, 1 Bell, Leases, 
 
 year ; in M'Glashan, ^""f a whole year. 415. 
 
 2<» M'Glashan v. D. Athole, 29th June ^ 1 Bell, Leases, 415 seq. 
 
 1819, F.C. 765, ops. reported in 1 Bell, -"* Per L.P. Hope, 1 Bell, Lease.«, 417. 
 
342 REMEDIES FOR RECOVERY OF RENT. 
 
 stocking, to the rearing of which their services are equally 
 essential. 
 Other ser- The reasonable view has been taken in a book of authority, 
 
 "'*"*'■ and in certain Sheriff Courts.^"^ that the rule extends to domestic 
 
 servants, and, through them, to clerks, shopmen, other servants, 
 and workmen — domestic servants for their current wage ; clerks, 
 shopmen, and these other servants for four months' wages (up to 
 £50) prior to the sequestration or, failing that, prior to the con- 
 course of diligence for distribution of the estate of the tenant being 
 notour bankrupt ; and workmen for two months' wages.^"' This 
 view is based on ' humanity or charity or expediency or [servants'] 
 ' hypothec ; ' on the generality of the postponement of other 
 claims to debts technically known as privileged ; ^"^ on the use of 
 the term ' hypothec ' with regard to such debts ; and on the 
 example of France ^"^ and England.^" The only ground of doubt 
 is the special nature of part of the above argument in favour 
 of farm servants. 
 
 4. Death-Bed and Funeral Expenses of Tenant. 
 
 Death-bed and funeral expenses, long recognised as preferable 
 to ordinary debts, ^^^ are now also recognised as preferable to the 
 landlord's hypothec. ^'■^ The claim is only allowed in so far as it 
 is fair and reasonable ; it is not barred by the circumstance that 
 sequestration was instituted prior to the tenant's death ; it may 
 be made effectual though an order be pronounced (and without 
 recall thereof) to pay the proceeds of the sale of the sequestrated 
 effects to the landlord or even by reclaiming the money from 
 him ; and, if for death-bed expenses, it is not restricted to such 
 as have been contracted within sixty days of the death.^^^ 
 
 VI. Mode of making the Hypothec effectual. 
 
 A. Retention of the Subjects attached. 
 
 In order to prevent dilapidation of his security, the landlord 
 is entitled to prevent the tenant and any third party from dis- 
 
 2«5Fraaer, Master and Servant, 149; see ^u pgter -v. Monro, 1749, M. 11852 
 
 2 Hunter, 384. (d.-bed) Lawson v. Maxwell, 1784, M. 
 
 -"^ Boag V. M'Laine, 1880, 24 J. o£ 4473 (do,, excluded by lex loci contractus 
 
 Juriap. 163 ; Debbie v. Thomson, 1880, being in England). Ly. Dunipaoe v. 
 
 7 E. 983. "Watson, 1750, M. 11452 (funeral ex- 
 
 ^°' 38 & 39 Vict. u. 26, sect. 3. This penses), and other cases in B. Pr. 1403 ; 
 
 is not affected by the saving of hypothec St. 3.8.72 ; Bankt. 1.2.55 ; Ersk. 3.9.43 ; 
 
 in the Bankrupt Act, 19 & 20 Vict. c. 2 B.C. 156 ; Eloh. Fun. Charges, 2. 
 
 79, sect. 119. 212 Rowan v. Bar, 1742, M. 11852 ; 
 
 2»s Authorities in Fraser, p. 149. Drysdale v. Kennedy, 1835, 14 S. 159 
 
 =»9 Pothier, Louage, 256. (doctor's bill) ; B. Pr. 1241, 1277, 1403. 
 
 2i» 46 & 47 Vict. c. 52, sect. 40 (the 213 Drysdale, supra, 212, esp. L. Mon- 
 
 analogy halts). creiff's opinion. 
 
HYPOTHEC : RETENTION. 343 
 
 plenishing the premises.^^* This is known as his right of reten- 
 tion or detention. There is an obvious distinction between 
 cases in which the rent sought to be secured is only growing 
 due, the term of payment not having come, and cases in which 
 the rent is due and payable. 
 
 1. Retention 'previous to Term of Payment. 
 
 The rule is that the landlord is entitled in this case to retain Till caution 
 on the premises the whole crop and stocking or invecta et illata °™ ' 
 (as the case may -be), until he obtains security for payment.^^^ 
 This he accomplishes by obtaining interdict against the tenant 
 and all others acting for him or under his instructions from 
 interfering with or removing the subjects of the hypothec or any 
 part thereof till caution be found ; or by stopping a poinding by To stop poind- 
 creditors.^^® It is no answer that a sufficiency of goods has™"' 
 been left on the ground to answer the hypothec.^^^ The land- 
 lord should state his title to stop the poinding, so as to give the 
 tenant an opportunity of finding caution at once.^^^ The land- 
 lord may proceed for either of these objects, whether the tenant 
 is vergens ad inopiam, or in arrear of rent, or on the contrary, 
 perfectly solvent and owing nothing to him — the right of reten- 
 tion being absolute and not founded on imminent peril of loss.^" 
 If ample security be offered or found, the application for inter- 
 dict, besides making it clear what particular acts are to be 
 forbidden, must, in order to be relevant, bring the case up to 
 displenishment inconsistent with good management. Thus, 
 where the alleged purpose of a tenant was to turn a dairy-farm 
 into a pastoral farm, an application was held to be too vague 
 which sought to have him interdicted from displenishing the 
 farm and from selling the whole stock and implements ; or 
 otherwise from selling such stock and implements as might be 
 requisite and necessary for the proper management of the 
 farm.^^o 
 
 An offer of caution or consignation is a relevant answer, and Caution or 
 the removal or poinding may then proceed.^^^ The landlord is <"»^^'snation. 
 
 2" Dirl. 222 ; St. 1.13.15 ; 4.25.2 ; 6193, 6216, Elch. ibid. 6, overruling 
 
 Mack. 2.6.12; Bankt. 1.17.8.12; Brsk. Sharp v. MaxweU, 1731, M. 6216. 
 
 2.6.68 ; 2 B.C. 32 ; B. Pr. 1239. ^'^ Halkerton v. Kadie, 1628, M. 3426. 
 
 215 Donald v. Leitoh, 1886, 13 R 790 ; ^^^ Preston v. Gregor, 1845, 7 U. 942. 
 Small V. Boyds, 1877, Guthrie's Deo. ^-o Cathoart v. Sloss, 1864, 3 M. 76, 
 307. 621. 
 
 216 Hay V. Keith, 1623, M. 6188. =^1 Crawford v. Stewart, supra, ^i' ; see 
 2" Swinton v. Seton, 1627, M. 6218 ; a doubtful modification where rent pay- 
 Hay V. Elliot, 1639, M. 6219 ; Pringle able in victual, the very corn reaped, 
 V. Scott, 1736, M. 6126, Elch. Hypothec, HaU v. Nisbet, 1 748, M. 6228. 
 
 5 ; Crawford v. Stewart, 1737, M. 10531, 
 
344 REMEDIES FOR EECOVEET OF RENT. 
 
 bound on receiving payment from the cautioner to assign to him 
 his right to the rent and hypothec. ^22 j^ seems doubtful whether 
 the doctrine — stated as general but reached in a case into which 
 clandestine removal entered — that the privilege of removal on 
 caution or consignation is only bestowed on creditors, not on the 
 tenant himself, can be justified since tutius est rei incumbere 
 quam personceP^ The caution guarantees payment of the current 
 rent, interest, and penalties.^^* 
 
 2. Retention after Term of Payment. 
 
 For year's rent This right attaches only such plenishing as in value is equiva- 
 
 and seed. j^^^ ^^ ^^^ £^^ll year's rent (and seed; if the premises be agricultural). 
 
 Therefore a poinding creditor must satisfy the Court that he has 
 
 left as much; ^^^ otherwise he renders himself liable for the rent 
 
 as an intromitter.^^" It is no excuse that he proceeded in his 
 
 diligence according to the forms of law and had in hand fide 
 
 consumed the fruits.^^'' An early decision in which it was held 
 
 that crops are first and principally hypothecated, and that it was 
 
 no defence to allege that suflScient cattle were upon the farm to 
 
 pay the rent, is probably explicable on the supposition that the 
 
 landlord's security over the cattle not for past due but current 
 
 rent would have been unduly impaired if the whole burden had 
 
 been thrown on the stock.^^^ 
 
 To be paid, not In contrast to the case of rent growing due, rent due and 
 
 secure . payable must, if sufficient hypothecated subjects be not left, be 
 
 paid,^^' and not merely caution found ; and the proper voucher 
 
 is a discharge, not an assignation, the landlord not being bound 
 
 to assign his right to the hypothec.^^" 
 
 B. Recovery of Hypothecated Subjects when Removed. 
 It is a corollary to this right of retention, ^^^ that when the 
 hypothecated subjects have, in spite of the landlord's right, been 
 
 2^2 Crawford, supra, ™ ; Butter v. 6222 ; see a device defeated in Selkrig r. 
 
 Riddel, 1792, BeU, Oct. Ca. 154 (arrested French, 1708, M. 6224. 
 
 stock). 228 Dun „_ j)„„^ jg2g_ ]yj_ g2]i7_ 
 
 223 L. Salton v. Club, 1701, M. 1821, 229 Crawford v. Stewart, supra, ™. 
 
 6216. See Cathcart, supra, 220, where the 230 ^ ,^_ -q^ ^^ ip^^ ,^_ Montgomery, 
 
 oifer was made by the tenant and is 1743, M. 6228, Elch. Hyp. 11 ; Graham 
 
 founded on by the L.O. u. Gordon, 1841, 3 D. 479, rev. 2 Robins. 
 
 22^ Appropriate conclusions for inter- 251, 4 D. 903 (not <> cautioner) ; 
 
 diet against removing plenishing are to M' Arthur v. Forbes & Co., 1822, 2 S. 91 
 
 be found in Lees, Styles, 194. (N.E. 74) seems contra, but only passed 
 
 "^ Hay V. Keith, 1623, M. 6188 ; the note to try the question. 
 
 Philips V. Easson, 1807, Hume 228 ; 231 jt cannot have a wider scope than 
 
 Lamington v. Oswald, 1688, M. 6224; the right of retention ; cf. Ersk. 2.6.58.60, 
 
 Rutherford v. Scot, 1736, M. 6226. which maintains the contrary, with ivory's 
 
 226 L. Polwarth, 1 642, M. 6221. Notes, and E. Cassilis v. Ramsay's Creds 
 
 22' Ruthven v. Arbuthnot, 1673, M. 1816, Hume 230, ' 
 
HYPOTHEC : EECOVEEY. 345 
 
 carried away, he has a right of recovery. At one time, recovery, 
 if de recenti, might be made by the landlord at his own hand 
 without judicial authority ; ^^^ but the danger of a breach of the 
 peace and the readiness with which judicial assistance can be 
 called into play, would now make it prudent, if not imperative, 
 to apply to the Judge Ordinary. At any rate, if the seizure 
 took place after the property had passed by means of a poind- 
 ing, ^^^ or ex intervallo, the landlord would expose himself to 
 a counter-claim for damages of the nature of the ancient 
 spuilzie.^'* In either case he would have a claim for the rent 
 against any one wrongously intromitting with the hypothecated 
 subjects.^^' 
 
 The landlord has the further safeguard that where there is a Fraudulent 
 case of fraudulent bankruptcy involving the clandestine removalof * ™^ °^' 
 sequestrated effects, the aid of the criminal law may be called in. 
 If statute be resorted to by the prosecutor, the tenant himself 
 alone can be charged. ^^® If the common law be relied on, he and 
 his accomplices may all be accused.^^''' 
 
 c. Hypothec in Competition. 
 
 The mode in which the preference thus conferred on and 
 practically insured to the landlord, operates in competition with 
 other rights may now be indicated, before passing on to the pro- 
 cess of sequestration, which converts a real security over the 
 tenant's effects generally into a real security over specific sub- 
 jects. The competing rights to be noticed are those which 
 reside in : (1) personal creditors of the tenant doing diligence ; 
 (2) purchasers ; and (3) intermediate lessees. 
 
 (1) Tenant's Creditors in Competition. 
 
 The landlord is preferred to all unprivileged ^^^ poinding and Creditors doing 
 arresting creditors of the tenant. This rule prevails apart 
 altogether from the particularising of the security brought about 
 by sequestration.^^^ The creditors are of course free to do dili- 
 
 ^ Crichton v. E. Queeneberry, 1672, ^36 Debtors Act, 43 & 44 Vict. c. 34, 
 
 M. 6203 (within twenty-four hours) ; sect. 13, A. 3 and 5 ; Robertsons v. Caird, 
 
 Ersk. 2.6.58. In Donald v. Leitch, 1886, 1885, 13 R. Just. 1. 
 
 13 R. 790, the furniture had onlyreached ^ M'Alister v. On, 1822, 1 S. 339 
 
 a lorry at the door and the landlord got (N.E. 317) ; M'Donell v. Cameron, 1824, 
 
 the aid of a sheriff -officer. 3 S. 131 (N.E. 88), which were com- 
 
 ^ Currie v. Crawford, 1745, M. 6206. plaints to the Court of Session. Two 
 
 ^** See Park v. Cockburn, 1676, M. unreported justiciary cases are mentioned 
 
 6203. in Macdonald, Grim. Law, 4. 
 
 ^* Ibid. See appropriate conclusions ^^ Swpra, p. 339. 
 
 in Lees, Styles, 173. See the conse- ^' M'Dowal v. Jamieson, 1781, M. 
 
 quences of contumacy in an old case — 6215. 
 Jackson v. Lind, 1746, M. 6245. 
 
346 REMEDIES FOE EECOVERT OF RENT. 
 
 gence against subjects not affected by the hypothec ; ^^^ or so far 
 as it is attempted to enforce the landlord's preference beyond its 
 legal scope. 2*1 Therefore as arrears of rent are not secured by 
 hypothec, diligences by the landlord and by a creditor of his 
 tenant are preferred according to the ordinary rules of priority f^ 
 and it is immaterial in such a question whether the subjects of 
 the diligence have to be given over to the landlord at outgoing or 
 not, since this obligation is of a personal nature only, importing 
 no real right in favour of the landlord.^*^ Other illustrations 
 of the landlord's preference in virtue of his hypothec have been 
 cited in the foregoing paragraphs. 
 
 (2) Purchasers. 
 
 Purchasers of hypothecated goods being intromitters, the land- 
 lord's right prevails against theirs j^** and they have either to 
 restore what they have removed 2*' or pay the value in name 
 of rent.^*^ Under the old law, though doubtless by the aid of 
 ' some specialty ' the landlord's claim for rent was not barred 
 by a delay in one case of nineteen year.s.^*'^ The validity of the 
 purchase depends on the rules already explained — on the rent 
 being due or only current ; and the consequent admissibility 
 or irrelevancy of a plea that sufficient goods remain unsold.^' 
 A purchase, which might otherwise be good against the land- 
 lord's hypothec, is ineffectual if not followed by delivery.^*" 
 Therefore, where spirits kept in a bonded warehouse let along 
 with a distillery were sold by the distiller, the hypothec was not 
 affected, since nothing had followed on the sale except an order 
 for delivery to the purchaser granted to him and by him 
 intimated to the warehouseman. 2^" 
 Eule modified. This Strict rule is so prejudicial to commerce, that it has 
 received modifications in two directions. 
 
 (a) Sale by Bulk in Open Marlcet. 
 
 If the hypothecated effects are sold by bulk in open market 
 the purchaser is safe. This exception was not at first re- 
 
 2« Gibson v. May, \U\, 3 D. 974. =« St. Andrew's Commissary v. Wat- 
 
 "1 Deas V. Walker, 1830, 8 S. 670; son, 1677, ibid. ; M'Ghier. Mather, 1824, 
 
 Campbell v. Brown, 1831, 9 S. 258. 3 S. 337 (N.E. 239) ; and see 3 S. 339. 
 
 2^2 Tulloch V. Willoughby D'Eresby, -« Lamington *. Oswald, 1688j M. 
 
 1834, 12 S. 764, 14 S. 198 ; Young v. 6224. 
 
 Welsh, 1833, 12 S. 233. 248 i^id.; Rutherfurd v. Scott, 1736, M. 
 
 ^ Stewart v. Rose, 1816, Hume 229 ; 6226 (rent due), 
 
 followed in M'Gregor o. Hunter, 1850, ^49 KinneU v. Menzies, 1790, M. 4973. 
 
 13 D. 90. Would delivery of the key of premises 
 
 ™ Swinton v. Seton : Hay d. Elliot, let be enough ? — B. Pr. 1277. 
 
 mpra, 2". 250 -v^yid & Qo. v. Richardson, 1832, 
 
 2« Scot, 1678, M. 6223. 10 S. 538. 
 
HYPOTHEC : EXCEPTED SUBJECTS. 347 
 
 cogiiised,^^^ though clearly politic and elsewhere adopted. ^'^ It 
 established itself more by professional dicta and practice ^^^ than 
 by judicial decision. ^^* It was not extended to purchase in open In bulk, 
 market by sample. In one such case the landlord's preference 
 was enforced in an action which was raised nineteen months after 
 the sale and fifteen months after the rent became due, and 
 in spite of the fact that most of the commodity purchased (it was 
 grain) had been delivered and paid for.^^' In another case of 
 sale by sample the grain was all delivered and the price paid, but 
 there was no unusual delay in asserting the landlord's right; and 
 the strict rule of law was maintained amid a general chorus of 
 regret at the result.^^" Public roup would, probably, be regarded, 
 for the purposes of this part of the law, as open market. If 
 hypothecated effects be sold in this way or in any of these 
 ways, and before delivery the purchaser receives warning from 
 the landlord of his right of hypothec, he ought not to take 
 delivery ; and, if delivery takes place, the landlord is entitled to 
 have the effects brought back.^^'' 
 
 (b) Agricultural Produce protected by Statute. 
 
 The inconveniences caused to farmers and dealers by the deci- 
 sions just cited, and especially by a startling judgment, which in 
 entire conformity with law and practice established that oats do 
 not cease to be liable to hypothec by being converted into meal, 
 and that the purchase of meal by a meal-dealer in his own 
 premises was not purchase in open market,^^^ led to the appoint- 
 ment of a Royal Commission and eventually to the passing of the 
 Hypothec Amendment Act, 1867,^^' some of the provisions of 
 which have been already cited. It will be remembered that this 
 statute applies only (with a single exception) to lands held for 
 grazing or agricultural purposes. The third section enacts (in 
 effect) that — (1) when agricultural produce has been bond fide 
 purchased for its fair marketable value from a tenant of any farm 
 or lands, and removed therefrom and paid for ; and (2) when 
 
 251 Hay V. Elliot, supra, ^i' ; Molieon =55 Smart v. Ogilvie, 1796, 3 Pat. 490 
 
 r. Smith, 1687, M. 6239. 6 Br. Pari. Ca. 498 (rubric). 
 
 2«3 Pothier, Louage, § 265 ; Code Civil, ^ E. Dalhousie v. Dunlop & Co., 1828, 
 
 2102; L. Brougham in 4 W. and S. 428 ; 6 S. 626, a£E. 4 W. and S. 420 ; 2 B.C. 
 
 WoodfaU, p. 435. 698. 
 
 253 Dirl. 222; St. 1.13.15, 4.25.2.6; 2=7 Cooper v. Bone, 1823, 2 S. 598 
 
 Ersk. 2.6.60 ; 2 B.C. 34 ; B. Pr. 1242 ; (N.E. 511). 
 
 More's Notes, 82 ; Brown on Sale, 421. ^ Bams ■„. Allan & Co., 1864, 2 M. 
 
 Mack. (2.6.12) is contra. 1119 (dealer had to pay price over 
 
 25* See Gunnison v. Stevf^art, 1723, M. again). 
 6225 ; assumed in E. Dalhousie v. Dun- =69 30 & 31 Viot. <;. 42. Infra, Appx. 
 
 lop & Co., infra, '^^. No. iii. 
 
348 
 
 EEMEDIES FOR EECOVERY OF RENT, 
 
 Mercantile 
 Law Amend- 
 ment Act, 
 1856. 
 
 Bankruptcy 
 Act, 1856. 
 
 Personal 
 Diligence Act, 
 1838. 
 
 Sublease not 
 sanctioned. 
 
 such produce has been bond fide purchased at public auction from 
 a tenant or any person holding his authority so to sell, after seven 
 days' written notice of the intention to sell given to the landlord 
 or person entitled to the rent, or his or their factor or known 
 agent, without sequestration being obtained and registered before 
 the lapse of the notice ; the hypothec ceases. The Act does not 
 apply either to produce which the tenant is not entitled to sell or 
 remove ; or to produce which has been affected by a registered 
 sequestration before its removal and the payment of its price, or 
 after ^^ said notice. 
 
 The landlord's hypothec is expressly saved in the Mercantile 
 Law Amendment Act, 1 856,^^1 which provides (sect. 1) that 
 goods sold but not delivered are not to be attachable by the seller's 
 creditors to the effect of preventing the purchaser from enforcing 
 delivery; that (sect. 2) a purchaser from a purchaser not in 
 possession shall be entitled to demand delivery direct on pay- 
 ment and implement, without being exposed to a counter-claim 
 due to the seller by the intermediate purchaser; and that (sect. 
 3) a seller may attach goods in his own hands by arrestment or 
 poinding prior to intimation of such sale (as above) to a subse- 
 quent purchaser, to the same effect as if the diligence were done 
 by a third party (sect. 4). By the Bankruptcy Act, 1856^^^ 
 hypothec is also saved. So that landlord's sequestration may go 
 on alongside of sequestration in bankruptcy, the landlord's right 
 to be paid or secured prevailing over that of the trustee. The 
 Personal Diligence Act of 1838^^^ also leaves hypothec as it 
 found it. 
 
 (3) Intermediate Lessees. Effect of Sublease. 
 
 Where there is a sublease two rights of hypothec may consist : 
 the right of the landlord, and the right of the lessee. 
 
 (a) Hypothec as between Landlord and Sublessee. 
 
 The leading rule is that where there has been no consent to 
 or recognition of the sublease by the landlord, either imported 
 into the original contract by law (as in leases of houses), or by 
 express stipulation in the principal contract, or by ex post facto 
 concurrence or acknowledgment, the landlord's right is unim- 
 
 ^^ This seems to be an inaccurate way 
 of saying ' before or during the currency 
 ' of ; ' or perhaps the words ' and before 
 ' sale by public auction ' have been 
 dropped out. 
 
 261 19 & 20 Vict. c. 60, sect. 4. 
 
 2«2 19 & 20 Vict. 0. 79, sect. 119. It 
 is not wonderful, therefore, that the land- 
 
 lord is preferred to the donatary of his 
 tenant's escheat— St. 1.13.15, 4.25 ; Ersk. 
 2.6.60 ; Hay v. Keith, 1623, M. 6188 ; 
 Gumming v. Lumsden, 1667, M. 6237 
 (against argument on higher right of 
 Crown). 
 
 » 1 & 2 Vict. .;. 114, sect. 31. 
 
HYPOTHEC : SUBLEASE. 349 
 
 paired by anything his lessee may have done in the way of 
 subletting. He is entitled to attach such effects, patient of 
 hjrpothec, as he may find on the subjects let, in security or for 
 payment of the rent due to him by his own tenant.^^* The 
 leading example of a lease, subject to the delectus personce, and 
 unassignable, is a tack of agricultural land ; ^^^ and it supplies 
 illustrations of this rule. The landlord is preferred to a pur- 
 chaser from a subtenant of agricultural produce, since the fruits 
 remain hypothecated to him, whoever may intromit with them, 
 and he is not bound in the first place to discuss his own tenant ;^''^ 
 to an arrester of funds due by the subtenant to the tenant ; ^^'' 
 and to the tenant himself ;^^^ unless the remedy be lost by 
 delay,^^^ or otherwise. It may be taken as settled both on 
 principle ^"" and by authority ; ^'^^ though some doubt,^''^ and even 
 a contrary view,^'^^ have been expressed, that a sublessee of part 
 only of the subject let in the principal lease has his effects 
 hypothecated for the whole of the principal tenant's rent. The Liability not 
 sublessee is not protected by having paid all the subrents due to '™i'®j *° ^"^ 
 the tenant. Attention has been already caUed to a modification 
 of this rule in the case of graziers,^''* who may be regarded as in 
 a manner sublessees. On payment to the landlord after payment 
 already made to the tenant, sublessees (including graziers) have 
 no right to demand an assignation to the hypothec, unless they 
 can demonstrate that the landlord's rights would not be thereby 
 prejudiced.^^^ It seems the better opinion that such a demand 
 can be enforced in no case except where there has been a promise 
 to assign.^'^^ 
 
 Where in any of the ways above mentioned, the tenant has sublease 
 power to sublet (as for example in leases of urban subjects), the ^'^°<=''™«'J- 
 landlord's hypothec extends only to secure payment to him (in- 
 stead of the tenant) of the subrents which are resting-owing ; or 
 which (it is submitted) have been paid before the stipulated 
 term of payment. The sublessees (except in the latter case) 
 
 ^ Bankt. 1.17.9, 2.9.17 ; Ersk. 2.9.63; where there has been no allocation of the 
 
 2 B.C. 31 ; B. Pr. 1237 ; More's Notes, over feu-duty agreed to by the over- 
 
 83. superior. 
 
 26-5 Supra, p. 158. ^ L. Salton v. Club, supra, ^^ ; Ersk. 
 
 ^ Fowler v. Cant, 1630, M. 6219. 2.9.63, and Ivory's Note. 
 
 ^ Cs. Traquair v. Cranstoun, 1667, M. =72 2 B.C. 31. 
 
 6221. ^' 1 Bell, Leases, 396. 
 
 268 L. Salton v. Club, 1700, M. 1821, 274 30 & 31 Vict. 0. 42, sect. 5, supra, 
 6224. p. 335. 
 
 269 Ross V. WiUiamson, 1817, Hume "' Steuart v. Stables, 1878, 5 E. 1024. 
 232. 276 Supra, p. 335. 
 
 2'° £!.g., the cognate case of subfeus, 
 
350 REMEDIES FOE EECOVEEY OF KENT. 
 
 cannot be compelled to pay a second time.^" But the right to 
 full recourse may be reserved, as by a stipulation that the sub- 
 tenant is to be liable for the principal rent.^''^ 
 
 (6) Aa between Lessee and Sublessee. 
 
 A lessee has a right of hypothec over his subtenant's effects 
 for payment or in security of the subrents, if he have power to 
 sublet. An assignation of all the landlord's remedies is said to 
 be implied in that power. ^'^ A case of competition is a strong 
 illustration of this doctrine. A lessee was held entitled to en- 
 force his hypothec super inveeta et illata within three months 
 after the ish of the subtenant's lease in preference to the land- 
 lord's claim against the quondam subtenant who had then 
 become principal tenant, for his first term's rent due in this 
 new capacity. ^^^ 
 
 (c) As bettveen Lessor and Lessee. 
 
 In the case just cited the tenant had paid all the principal 
 rent due by him, and had ceased to be tenant, so that the land- 
 lord had no counter-claim or interest to interfere. But, if that 
 be not so, the tenant's sequestration of his subtenant's effects will 
 not be allowed to go on unless the tenant finds security for the 
 rent due by him to the landlord, not only up to the value of the 
 effects but for the whole. ^^^ ' The principal tenant is primarily 
 ' liable to the landlord, not a mere cautioner for rent. If the 
 ' landlord have proceeded to sequestrate the effects of the sub- 
 ' tenant, he may abandon that proceeding without discharging 
 ' the principal, who has it in his power to sequestrate, or on 
 ' paying the rent to take up the landlord's sequestration. But 
 ' if the landlord should not only abandon his diligence, but give 
 ' time to the subtenant, the principal tenant will be freed.' ^^^ 
 
 D. Plenishing Order. 
 
 Apart from the ordinary obligations to repair and maintain 
 in repair, to conform to the rules of good husbandry, to refrain 
 from diversion of the use of premises let, there is in cases 
 where the right of hypothec still subsists an obligation to 
 
 ^' Blane v. Morison, 1785, M. 6232 ^o 2 B.C. 31 ; Ivory's Note to Ersk. 
 
 (special authority ; the long usage does swpra, "'^ ; see Scott v. Anderson, 1865, 
 
 not seem necessary to the decision) ; Guthrie's Dec. 305 (a case of bonus on 
 
 Bankt. 2.9.17 ! 2 B.C. 31 ; B. Pr. 1237. assignation). 
 
 The rule is different in subfeus, and "^ Christie n. Macpherson, 14th Dec. 
 
 in spite of these dicta, there may be 1814, P.O. 95. 
 
 room to doubt whether the rule in Blane ^si Stevenson i: Cooper, 1822, 1 S. 312, 
 
 can be carried further than to cases of (N.E, 288). 
 
 express authority. 282 B. Pr. 1237 ; Williamson v. Forbes, 
 
 ^8 B.C. supra, '^^ . 1830, 8 S. 405. 
 
HYPOTHEC : PLENISHING. 351 
 
 stock, furnish, or — to use the widest term — plenish the pre- 
 mises to such an extent at least as will make the full right 
 of hypothec practically available. ^^^ Thus, in the case of a 
 pastoral farm, there must be sufficient stock to satisfy the stock, 
 hypothec ; and it will be no answer to a demand for plenishing 
 to allege that there is enough stock on the farm, if cattle, sheep, 
 or other bestial belonging to others and brought in to graze 
 be taken into computation ; the reason being that the landlord's 
 security is materially weakened by this otherwise legitimate mode 
 of occupation. 28* So also in the case of urban subjects, the 
 tenant of a house is bound to furnish it to an extent adequate to Fumishingo. 
 the same end.^^^ Similarly, the tenant of a shop is bound to 
 furnish it, so as not to deprive the landlord of the security he is 
 entitled to have at common law for his rent, and to keep it dry, 
 but not to open it and carry on business in it, unless, as com- 
 monly happens, there be a special stipulation to that effect. ^^^ 
 The plenishing order is granted by the sheriff on petition, which in 
 the case of urban subjects usually contains as sanction a prayer for 
 caution,^*' or, failing that, for summary ejection, in the event of 
 failure to plenish at the sight of an auctioneer or valuator ; and 
 thereafter for power to relet and to remove the ejected tenant's 
 effects to neutral custody. ^^ The time allowed for implement- 
 ing the order varies according to circumstances and the discretion 
 of the Judge.28^ The effect of an ejectment is, not to bring the 
 lease to an end, but merely to call into play the remedy of 
 reletting in aid of the recovery of bygone rents. If the defaulter 
 at any time during the currency of the lease, when reinstatement 
 was consistent with new arrangements, offered to pay up arrears 
 and plenish he would apparently be entitled to demand restor- 
 ation.^'" It seems to follow that the landlord would not be 
 entitled to make such arrangements in reletting as unreasonably 
 to exclude locus posnitenticB. Such an order of ejection is 
 
 ^^ B. Pr. 1273. to air the premises and keep off damp, 
 
 ^ M'Kye v. Nabony, 1780, M. 6214 ; ibid.) ; Whitelaw, supra, ^ ; Cunningham 
 
 M'Dougall V. Buchanan, 1867, 6 M. 120. v. Black, 1883, 10 E. 441, where a de- 
 
 ^^ B. Pr. 1273 ; Thomson v. Handy- fence of abandonment acquiesced in was 
 
 side, 1833, 12 S. 557 (factor). See Adam held relevant, but was not made out on 
 
 V. M'Dougall, 1828, 6 S. 978. the facts. Wright : Robertson, infra, 
 
 ^ Whitelaw v. Fulton, 1871, 10 M. ^, ^\ 
 27. ^ In Thomson, supra, '^, 24 hours 
 
 "^ Only for rent to which hypothec was said to be the ordinary time in Edin- 
 
 applies, not arrears or hire of moveables burgh ; Wright (10 days). 
 —Wright, infra, ^. =«» Wright v. Wightman, 1875, 3 E. 
 
 '^ See appropriate conclusions in Lees, 68. 
 Styles, 255, 451, 456 (there may be order 
 
352 REMEDIES FOR RECOVERY OF RENT. 
 
 competent to the sheriff, since it does not involve a rescission of 
 the contract. ^'^ 
 
 E. Sequestration and Sale. 
 (1) Sequestration. 
 Attaching The mode in which the landlord's real right of hypothec — a gen- 
 
 specifio effects. ^^,^j attachment entitling him to retain and recover — is converted 
 into a real right over specific subjects is by the process of seques- 
 tration — known as landlord's sequestration, to distinguish it from 
 the wider bankruptcy process. If this remedy be insufficient it is 
 followed by sale, out of the proceeds of which the landlord receives 
 what is due to him or a part thereof. Since these remedies are 
 devised simply for the purpose of rendering the right of hypothec 
 effectual, they are only competent to holders of that right. ^^^ 
 Limit in time. The period within which proceedings may be commenced for 
 the recovery of the rent of a particular term or year is that 
 which has already been mentioned in treating of the duration of 
 the hypothec. ^^^ It will be remembered, that hypothec covers in 
 certain cases not only rents past due, but also current rents. 
 Consequently sequestration may then take place not only for 
 payment of rents past due but also currente termino in security 
 of rents growing due. The two conclusions are usually combined. 
 If not, it would probably (even now that amendments are more 
 easily admitted than formerly) be incompetent to convert the 
 one into the other, there being an essential distinction between 
 the two, involving different defences. ^^* A distinction is, however, 
 made in regard to the date of sale. Crop and stock are subject 
 to frequent fluctuations of price, and there is more or less risk of 
 loss in the keeping of them ; while invecta et illata of all kinds 
 do not vary much in price and are not expensive or troublesome 
 to keep. The consequence is that while all sorts of hypothecated 
 articles may currente termino be sequestrated,^^^ invecta et illata 
 may not,^^^ while crop and stock may, be sold before the term of 
 payment.^'^ In the latter case, the part of the proceeds effeiring 
 to the current rent remains in Court subject to the orders of 
 the sheriff; 2^^ and the landlord must face the consequences of 
 
 2" Ibid. ; M'Dougall v. Buchanan, '^^ See Miller v. Paterson, 1837, 9 S. 
 
 sufra, ^^ ; see Robertson v. Cookbum, 792, per L. Corehouse. 
 
 1876, 3 R. 21. A declarator of irritancy 295 Bankt. 1.17.11 ; 2 B.C. S3 ; Erak. 
 
 must be within the Sheriff Court limit of 2.6.61. 
 
 £1000 value or £50 a year— 40 & 41 ^ Wells ». Proudfoot, 1800, Hume 
 
 Vict. c. 50, sect. 8. Is imprisonment also 225 ; Duffy v. Gray, 1858, 20 D. 580. 
 
 competent, the obligation being ad /ocfam 297 Grant v. Sherria, 1784, M. 6201; 
 
 prcEstandum ? See M'Dougall, supra, ^. Dow v. Hay, 1784, M. 6202 ; see Dods f. 
 
 ^ Supra, p. 323. Fortune, 1854, 16 D. 478. 
 
 ^^ Supra, p. 337. 29s n,id. 
 
HYPOTHEC : SEQUESTRATION : PEOCEDUEE. 353 
 
 unwarrantable process, if he have been hasty in taking his 
 remedy. ^^^ 
 
 The procedure may be best studied in treatises on Sheriff Petition. 
 Court practice.^"" The petition prays the Court to sequestrate 
 and grant warrant to officers of Court to inventory and secure 
 the whole effects [as the case may be] so far as subject to the 
 pursuer's hypothec in security and for payment (1) of rent due, 
 (2) of current rent, with interest from the term of payment and 
 expenses ; and thereafter to grant warrant to sell by public roup 
 the whole or so much of the sequestrated subjects as will pay the 
 said rents, interest, and expenses ; ^"^ and to appoint payment out 
 of the proceeds or any consigned sum to the landlord.^"^ Every 
 petition may now ' contain a prayer for a decree for payment of 
 ' the rent with reference to which the petition is presented,' and 
 the sheriff may pronounce such decree for the rent or any part 
 thereof extractable in common form.^"^ If hypothecated subjects 
 have been removed before the date of the petition, a crave is 
 prefixed for warrant to officers to search for, take possession of, 
 and carry back the effects which had been on the premises since 
 the beginning of the period for which hypothec is available.^"* 
 In following the course of a petition for sequestration, an attempt 
 will be made to eliminate and consign to a note^°^ points of 
 general procedure which have arisen in such cases, and to confine 
 attention to the distinctive features of this process for recovery of 
 rent. 
 
 ^ Infra, p. 357. See Robertsons v. ^os ig g^ 17 yict. c. 80, sect. 27, foUow- 
 
 Boswell, 1777, 5 B.S. 477. ing and extending A.S., 11th July 1839, 
 
 ^"^ M'Glashan, s.v. ; Dove Wilson, p. sect. 161 ; see Stewart v. Wand, 1842, 4 
 
 431 ; forms in Lees, Styles, 326. As to D. 622, per L.P. Hope. 
 
 Debts Recovery and Small-Debt Courts, ^"^ Lees, 328 ; M'Lellan v. Graham, 
 
 see infra, p. 358. The procedure in Burgh 30th June 1841, F.C. 1209. 
 
 Courts was the same (A.S., 12th Nov. ^"^ Henderson v. Warden, 1845, 17 
 
 1825) but is now obsolete in this matter Sc. Jur. 271 (honorary sheriff-substi- 
 
 (Law Courts Commission, 4th Report, p. tute) ; M'Lellan, supra, ^"^ (misnomers, 
 
 38). The baron-bailie's process is said indudce) ; Thomas v. Dumbreok, 1834, 
 
 to be also obsolete (ibid., p. 39) ; but see 12 S. 285 (effect of admission on record); 
 
 Tulloch V. D'Eresby, 1834, 12 S. 754. Scott v. Erskines, 7 S. 794 (do.) ; Robert- 
 
 2°' The term of payment of the current son v. Bryce, 1834, 12 S. 893 (wakening, 
 rent being first come and bygone (in the obsolete) ; Bennie v. Mack 1832, 10 S. 
 case of invecta et iUata) or, the residue 255 (restriction of conolu»ions) ; M'DoneU 
 after payment of rent due being to remain o. Cameron, 1827, 2 W. and S. 595 (con- 
 under orders of the Court (in the case of ' tingency) ; M'Kechnie v. D. Montrose, 
 stock and crop). 1853, 15 D. 623 (forimi) ; Lawson v. Low, 
 
 ™2 If the result of sale will be to reduce 1845, 7 D. 960 (expenses and abandon- 
 
 the subjects below value sufficient for ment) ; Torry v. Adam, 1839, 2 D. 56 
 
 hypothec a prayer for a plenishing order (advocation), 
 follows, ut supra, p. 351. 
 
354 REMEDIES FOE EECOVEEY OF BENT. 
 
 Procedure. On the petition being presented, the sheriff at once 
 
 sequestrates, grants warrant to inventory, and orders service 
 and answers.^"^ In virtue of this warrant an officer of Court, in 
 presence of a witness, makes an inventory, setting forth each 
 article of furniture, and the number and description of stock and 
 grain according to nature and locality,^"' and returns an execution 
 signed by himself and the witness. It is the invariable practice 
 that the officer should visit the lands, and the practice must be 
 followed ; but in a case where, after visitation, an inventory of 
 crop instead of stock was made up, and thereafter, without a 
 second visit, a correct inventory of the stock was framed from 
 information given by the tenant, the latter was held to be 
 personally barred from objecting. ^"^ The inventory is the only 
 legal evidence of what has been sequestrated, so that nothing 
 omitted from it is held to be attached,^"' and the execution 
 proved by the return completes the sequestration.^^" When a 
 sequestration is known by the tenant to be impending, and he 
 desires to be heard, he may lodge a caveat. If sequestration be 
 threatened, and the tenant desires to have questions between 
 himself and his landlord settled without waiting for the latter to 
 move, he may apply for interdict.^^^ In both cases consignation 
 or caution will, as a rule, be ordered.^^^ If articles which ought 
 not to have been included in the inventory have been entered 
 therein, the proper course is for the tenant or other party 
 interested to apply in the process of sequestration to have them 
 withdrawn therefrom ; not to proceed by way of a separate 
 process of interdict against their being sold.^^* The Court in 
 1839 provided that a judicial manager may be appointed 'to 
 ' take charge of the sequestrated subjects ; ' as an alternative to 
 requiring caution to be found that they shall be afterwards forth- 
 coming.^" The risk remains with the tenant ; and it had been 
 laid down, at an earlier date, that if, after sequestration, the 
 tenant cannot afford to cut down his crop or is careless about it, 
 the landlord may step in for the benefit of both parties without 
 
 3»8 A.S., 11th July 1839, sect. 150. Lamb v. Grant, 1874, 11 Sc. L.R. 672. 
 
 ^ Robertson v. Galbraith, 1857, 19 D. sio gee Robertsons v. Boawell, 1777, 5 
 
 1016 ; M'Kinnon -u. Hamilton, 1866, 4 B.S. 477. 
 
 M. 852 ; Le Conte v. Douglas, 1880, 8 R. ^u M'Glashan, 421 ; Dove Wilson, 435 ; 
 
 175 (poinding). Gray v. Renton, 1840, 3 D. 203. 
 
 3»8 Taylor v. Macknight, 1882, 9 R. ^^ Ibid. 
 
 857. 313 Linijsay „ j;. Wemyss, 1872, 10 M. 
 
 ^ Horsburgh v. Morton, 1825, 3 S. 708 ; see M'Kechnie v. D. Montrose, 
 
 596 (N.E. 409), except offspring in ventre, supra, 2°*. 
 which when produced go with the mother, ^u ^g^ ^jj j^jy jggg^ ^^^^^ jg2. 
 
HYPOTHEC : SEQUESTRATION. 355 
 
 liability for loss, unless it be caused through negligence. ^^* But 
 the landlord is not entitled in the ordinary case to make use of 
 the sequestrated effects in prosecuting the business which his 
 tenant had carried on.^^^ 
 
 The sequestration will be recalled on caution being found for Eeoall. 
 the rentj or consignation of it being made, or on payment with 
 expenses. It has been decided that the landlord must pay his 
 own expenses when he has used sequestration in security and 
 the rent is punctually paid when due.^^' The caution covers 
 expenses of process. ^^^ And recall may be obtained, if the sum 
 sought to be recovered is not rent in the ordinary sense,^^® or be 
 rent for a period greater than the tenant's tenure,^^" or for a 
 subject partly withdrawn by the landlord, ^^^ or never possessed,^^^ 
 or justly abandoned,^^^ without such delay as involves liability for 
 rent.^^* Eecall may be obtained, if the sequestration has been 
 illegal, from the judge who granted it without the necessity for a 
 reduction, since it was granted de piano without inquiry. The 
 recall should be made by interlocutor of the sheriff; not by a 
 mere certificate of the sheriff-clerk. ^^^ 
 
 By the sequestration the effects come to be in Tnanibus curicB Breach, 
 and secure from being intermeddled with except on judicial 
 authority. Breach of sequestration is, therefore, a contempt of 
 Court — a delict or g'uasi- criminal offence,^^^ cognisable in the first 
 instance only by the sheriff ; not by the Court of Session^^' except • 
 incidentally.^^^ It is no breach to take sequestrated grain for 
 the use of the servants on the farm^^^ or of the stock or horses. ^^^ 
 In a very special case, where there was loose practice in the 
 
 *'* Brims v. Ferrier, 31st May 1815, ^^ See oases of Kippen a Oppenheim, 
 
 F.C. 384 ; 2 B.C. 34 ; More's Notes, 85 ; ^^, and many others, svpra, pp. 204, 221, 
 
 Ivory's Note to Ersk. 2.6.41. which are d/ortiori, being ordinary actions 
 
 316 Lindsay, supra, ^^. for rent, 
 
 31' Gordon v. Suttie, 1836, 14 S. 954 ; ^ Campbell v. BoswaU, 1839, 1 D. 
 
 Shaw V. Browne, 1885, 1 Sh. Ct. Rep. 341 ; 1023. 
 
 but see the judicious remarks in Lees, '^^^ Kippenj). Oppenheim,1846, 8D. 957. 
 
 SmaU Debt, 40. 326 g p, i244. 
 
 ™ Clark V. Duncan, 1833, 12 S. 158. 327 Monro v. Robertson's Trs., 1834, 12 
 
 3" E.g., as in Glen v. Roy, 10 R. 239 S. 788. 
 
 (only annual value). See in/ro, p. 397, as 328 jjuir v. Downie, 1839, 2 D. 166 
 
 to liquidate penalties. (in a bankruptcy sequestration). 
 
 320 Tennent's Trs. f. Maxwell, 1880, 17 329 obs. in M'Glashan v. D. Athole, 
 Sc.L.R. 463. 29th June 1819, F.C. 765, 1 Bell, Leases, 
 
 321 Kilmarnock Gaslight Co. v. Smith, 414. If the views supra, p. 342, are 
 1872, 11 M. 58 ; see Davie v. Stark, 1876, sound, this rule would apply to domestic 
 3 R. 1114. as well as farm servants. 
 
 322 Guthrie v. Shearer, 1873, 1 R. 181 ; 33o MjUer „. Paterson, 1831, 9 S. 792 ; 
 cf. Tennent's Trs. v. Maxwell, 320 ; Hoggs Gordon v. Suttie, 1836, 14 S. 954. 
 
 I.. CaldweU, 1882, 19 Sc.L.R. 452. 
 
356 EEMEDIES FOR EECOVEEY OF RENT. 
 
 Sheriff Court, leading to a removal of sequestrated effects before 
 the nexus was judicially loosed, the bona fides of the tenant 
 saved him from punishment.^^^ Breach of sequestration involves 
 liability for all loss and damage caused, as well as such penalties 
 as the Court may direct. Where there has been a plain breach 
 (as where an ofi&cer of Court armed with a warrant to sell makes 
 a return that he has found the premises void,^**^ or the tenant 
 fails to disclose what he had done with sequestrated effects which 
 have been removed^^^) the sheriff is entitled summarily to grant 
 warrant of imprisonment till the goods are restored or caution 
 be found or consignation be made. The rules regulating 
 procedure in breach of interdict^^* will probably be enforced 
 •mutatis mutandis, the contempt of Court being similar in most 
 respects. ^^® 
 Breaohbythird Where the breach is committed by a third party, and there is 
 P*"^?- no participation in a fraud, the usual penalty imposed on him 
 
 is liability to restore the goods if still within his power, with 
 damages, or to pay the rent with damages to the full extent of 
 the loss and injury caused to the landlord, or, at least, up to the 
 value of the effects removed.^'* It has been pleaded that 
 ignorance of the fact that sequestration had taken place is a 
 sufficient defence, and it was held so to be in one case.^^^ But 
 this view seems to be inconsistent with the cases of purchasers 
 already cited ; ^^ and, as to certain sorts of moveable property 
 at least, with the universal knowledge of the risk an intro- 
 mitter runs of coming iuto collision with the hypothec. In 
 a case where furniture was poinded in ignorance of a prior 
 sequestration, sold at the instance of the creditor after intimation 
 of the nexus had been given to the auctioneer just before the sale, 
 knocked down (in most part) to the creditor, and by him removed, 
 the creditor was held liable for the appraised value,^^* on the 
 ground that though in bond fide when he poinded and advertised 
 the sale, he was in maid fide when he removed the goods. But 
 it was clearly pointed out that the excuse of bona fides could not 
 
 ^' Kippen -d. Oppenheim, supra, ^^ ™ Jack v. M'Caig, 1880, 7 R. 465 
 
 (no expenses to either party). (the former would be the safer alternative, 
 
 332 Love V. Foster, 1832, 11 S. 280. leaving the iutromitter to work out his 
 
 ^ Goldie V. Oswald, 1839, 1 D. 426 remedy against the tenant), 
 (cheeses partly sold). ^ Harper v. Laing, 1829, 4 F.C. 
 
 33* See the oases collected in Rankine, 440. 
 Landownership, 16, and add Macleod's 338 Sup^a^ p_ 345^ Ly j)^^ ^ -^ j)^^ 
 
 Trs. V. Macpherson, 1883, 10 R. 792. 1624, M. 6217. 
 
 335 E.g., with concurrence of the Crown 339 xhe landlord restricted the claim so 
 
 when penalties are asked to be imposed. far. 
 
 Goldie, supra, 333 ; but see Love, supra, 
 
 332 
 
HYPOTHEC : WRONGFUL SEQUESTRATION. 357 
 
 be trusted to by a poinder of furniture, who, knowing like every- 
 body else of the existence of a law of hypothec, did not make 
 diligent inquiry whether the vendor was or was not a tenant in 
 arrear of rent.^*° 
 
 If a sequestration has been carried through without title,^*^ or Damages for 
 has been nimious — ^not being reasonably required for the protec- sequestration, 
 tion of the landlord's interests ^^ — or, being justifiable, has been 
 conducted without a due regard to the tenant's interests,^*^ a claim 
 lies for damages for wrongful sequestration. It is not necessary 
 to clear the way for such a claim by first reducing the diligence.^^* 
 The proper form of issue asks a verdict that the sequestration 
 was taken or proceeded with ' wrongfully,' not ' wrongously and 
 ' oppressively,' nor ' maliciously and without probable cause.' ^^ 
 The question so put is purely a jury question, as to which it is 
 difficult to lay down any useful proposition of law. Where the 
 objection is that sequestration should never have been resorted 
 to, it is usually founded on the averment of counter-claims by the 
 tenant against the landlord and of the solvency of the former, ^*^ 
 and the usual answer is that he is vergens ad inopiaTn, and that 
 the counter-claims are illiquid and therefore incompensable.^*'^ Or 
 an alleged error as to the term's rent which is secured may be the 
 basis of the claim. ^*^ Where the objection is to the mode of seques- 
 trating, it is usually founded on gross over-inventorying beyond 
 what was required to pay the rent,^*® or on needlessly raising 
 successive sequestrations.^^" The question has been raised but 
 not solved, whether the landlord is responsible for the proceed- 
 ings of the auctioneer who carries out the sale.'^^ Euinous and 
 illegal conduct in carrying through a sequestration in security, 
 though it may found a claim of damages is not necessarily a bar 
 to a warrant of sale being granted under the same original 
 petition.^^^ 
 
 (2) Sale. 
 
 If the sequestration be not refused or recalled, the next step 
 
 3« Jack V. M'Caig, supra, ^^ (the '*' Watson v. M'CuUoch, supra, ^. 
 
 landlord's mora in intimaiting his seques- *^ Oswald, supra, ^ 
 
 tration was net enough to put him out of ^'' Oswald, supra, ^^ ; Grainger v. D. 
 
 Court). Hamilton, 1822, 2 S. 100 (N.E. 93). 
 
 «i Of. Lyon v. Reid'.s Trs., 1835, 13 S. ^ M'Intyre v. M'Nab's Trs., 1829, 
 
 984. 8 S. 237, aflF. 5 W. and S. 299. 
 
 ^ See Oswald ». Grseme, 1851, 13 T>. ™ Robertson v. Galbraith, supra, ^. 
 
 1229 ; Watson v. M'CuUoch, 1878, 5 R. ^^ Grainger, supi-a, 3^7. 
 
 843. **^ Robertson v. Galbraith, supra, ^. 
 
 ^ Robertson v. Galbraith, 1857, 19 D. 352 Dugy „. (jray, supra, »« ; as to 
 
 1016 ; Duffy v. Gray, 1858, 20 X). 580. measure of damages, see Mackenzie v. 
 
 =" M'Leod V. M'Leod, 1829, 7 S. 396. Lovat, 1883, 20 ScL.R. 694. 
 
358 REMEDIES FOE RECOVERY OF RENT. 
 
 is to obtain from the sheriff a warrant to sell. When obtained, 
 it mast ' be carried into execution at the sight of the clerk of 
 ' Court or other person authorised by the sheriff ; ^^^ and in every 
 ' case where a sale follows on such warrant, the sale shall be 
 ' reported within fourteen daiys after the date of the roup ; and 
 ' the principal roup-rolls or copies regularly certified must, within 
 ■ the same, period, be lodged in process, together with an account 
 ' of the expenses incurred in the sequestration and sale, and also 
 ' a state of the debt due by the defender, showing the difference 
 ' between the debt and the proceeds of the effects sold.' ^^* The 
 gross proceeds may, if the sheriff see fit, be consigned. The 
 accounts are taxed ; the sale approved ; the landlord paid in full 
 or pro tanto ; and the balance if any, after allowing for expenses, ^^^ 
 commission, and discounts on payments made by bill,^^^ paid 
 over to the tenant. The balance is open to the diligence of 
 ordinary creditors, including the landlord.^^'^ The sale may 
 go on, where interim execution is granted pending an appeal, 
 but only on caution being found.^^^ After a sale the appro- 
 priate mode of setting aside the proceedings is by action of 
 reduction.^^' 
 In Sheriff In the Sheriff Small-Debt Court, ^^^ sequestration may be 
 
 Court! * obtained by a landlord {i.e., any person having a right to exact 
 rent, whether as owner, liferenter, heritable creditor in possession, 
 principal tenant or otherwise ^^^) or other person having right to 
 rent and hypothec, provided the rent or balance of rent claimed 
 do not exceed £12.^^^ The officer when he executes the warrant 
 gets the effects appraised by two persons ^^^ who may also be 
 witnesses to the sequestration. An inventory and appraisement 
 are given to the tenant who is cited conform to the third section 
 of the Act. An execution of the citation and sequestration with 
 the appraisement is returned within three days. On hearing the 
 
 ^^' Auctioneer in Love v. Foster, 1832, '*' M'Lellan v. Graham, supra, ^ 
 
 lis. 280 ; and M'Lellan v. Graham, 30th See a case where a poinding creditor sold 
 
 June 1841, F.O. 1209. the goods and entered into possession 
 
 "" A.S., 11th July 1839, sect. 150, of a farm and became liable for rents 
 
 repeating A.S., 12th Nov. 1812, 2.2.1. past-due and accruing— Cooper v. E. 
 
 ss" Galloway v. M'Pherson, 1830, 8 S. Eglinton's Trs., 1829, 7 S. 831. 
 
 539 (though a little too much has been 3™ 1 Vict. c. 41, sect. 5, amended by 
 
 sold)' 16 & 17 Vict. c. 80, sect. 26 ; Lees, Small- 
 
 25S Cargill V. Baxter, 1829, 7 S. 662. Debt, p. 36. 
 
 ^ M'Farlaue v. Forrester, 1823, 2 S. ^a Sect. 37 (principal Act). 
 
 505 (N.E. 445) ; E. Morton v. SomerviUe, ^^ See forms of application and warrant, 
 
 1765, M. 6197. sohed. B, annexed to the Act. 
 
 ^ Pentland ■<*. Booth, 1831, 9 S. 510 ^ On oath— Le Conte v. Douglas, 
 
 (bondholder). 1880, 8 E. 175. 
 
HYPOTHEC : SALE. 359 
 
 application the sequestration may be recalled in whole or part, 
 or decree pronounced for the rent found due and warrant granted 
 for sale.^^ If after sequestration the rent and expenses be paid, 
 or the rent and £2 to cover expenses be consigned, the sequestra- 
 tion is ipso facto recalled on the clerk endorsing ' payment made ' 
 or 'consignation made,' and intimation being given to the 
 sequestrating creditor (sect. 5). The Act is extended by a later 
 statute to sequestrations applied for (ywrrente termino or in 
 security ; ^^* but separate summonses must be given for rent 
 current and rent past due. It is enough if the term's rent 
 payable termly (for half-year, month, or week) be no more than 
 £12, without regarding the rent for the cumulo period. ^^^ By 
 the 20th section it is enacted, that the overplus of the price ^^' 
 must be returned to the owner of the goods, or consigned if he 
 cannot be found. If the effects have not sold, they are de- 
 livered over to the creditor at the appraised value to the amount 
 of the rent due and allowances. A report is made to the sheriff- 
 clerk within eight days. Breach of sequestration infers summary 
 punishment by fine or imprisonment, as for contempt of Court, 
 besides liability otherwise as accords of law. 
 
 In the Debts Recovery Court sequestrations are competent for in Debts Re- 
 pajrment of the rent of houses (house-maiUs) where it or the """^^ 
 balance claimed is over £12 and not over £50. By an incor- 
 poration of the 5th and 20th sections of the Small-Debt Act the 
 procedure is assimilated. ^^^ The question whether this process is 
 competent for sequestrations in security depends on the other 
 question whether the 28th section of the Act of 1853, referred to 
 in last paragraph, is really declaratory. If so, it would be held 
 that the incorporation in the Debts Recovery Act of the 5 th 
 section of the Small-Debt Act carries with it the declaratory 
 extension ; and this seems the sounder view.^^^ 
 
 Every sequestration must be entered in a register kept by the Kegistration of 
 Sheriff-Clerk or other officer of Court having custody of the records sequestrations, 
 of the Court in which it is granted in, or as nearly as may be in, 
 a form prescribed, containing the name of the tenant, the date of 
 sequestration, name or description of the rural or urban subjects, 
 the rent, date when payable, and the party taking out sequestra- 
 tion. The register is open to any one on payment of one 
 shilling.3™ 
 
 3«* On premises or a prescribed place, ^ Subject to expenses (sect. 32). 
 
 according to the mode appointed for '^ 30 & 31 Vict. t. 9Q, sects. 5, 16. 
 
 poindings, &c., by sect. 20. ^ See Dove Wilson, p. 467. 
 
 ^ 16 & 17 Vict. t. 80, sect. 28. '"' 30 & 31 Vict. i;. 42. sect. 7, and 
 
 *» Lees, 37. schedule. 
 
360 REMEDIES FOB RECOVERY OF RENT. 
 
 VII. Forfeiture of Hypothec. 
 
 The right to found on his hypothec may be lost, as to any 
 particular term's rent, by the landlord in other ways besides the 
 lapse of the period within which sequestration must take place. ^^^ 
 Thus, there is no rule regulating the length of the period which 
 may be allowed to intervene between sequestration and sale. 
 Yet there can be no doubt that undue delay in pushing through 
 a sale, as being needlessly embarrassing to creditors and pur- 
 chasers, would raise a personal bar against proceeding with the 
 diligence.^^2 In one case mora of five or six months was not 
 fatal, but there negotiations for a settlement had been going on 
 during the interval, and the delay took place for the benefit and 
 even at the desire of the creditors. ^^^ Acquiescence by the land- 
 lord in a state of matters plainly inconsistent with the existence 
 of hypothec for the time being may also infer abandonment. ''^^ 
 But this will not be readily inferred ; not, for example, from his 
 taking a bill for the rent -f^ or allowing a poinding creditor to 
 sell on condition of being paid out of the proceeds the rent 
 due.^'^ 
 
 Recourse against Cautioner. 
 
 No attempt will be made here to explain the general law of 
 cautionary obligations. It must suffice to point out how that law 
 has affected the relation of landlord and tenant. 
 In writing. The obligation must be reduced to writing,^" even though the 
 
 lease itself be verbal.^^* If improbative it may be set up by rei 
 interventus, as, for example, by allowing the tenant to enter into 
 possession on the faith of it.^'^ The ordinary form binds the 
 lessee as principal and the cautioner as surety and full debtor for 
 him, jointly and severally, and their representatives to make 
 payment of the rent specified for a limited time (one year, three 
 years, &c.), or during the currency. The obligation may, how- 
 ever, be purely subsidiary ex facie. It may be so conceived as to 
 secure performance of other prestations, but is usually confined to 
 the payment of rent. There seems to be no good ground for with- 
 
 m Supra, p. 337. double payment— Stevenson v. M'Cul- 
 
 372 2 B.O. 32. lochs, 1821, 1 S. 30 (N.E. 30). 
 
 ^3 M'Leod V. Thomson's Creds., 1805, ^^ Russel v. Cochrane, 1831, 9 S. 304. 
 
 Hume 226. 377 19 4. 20 Vict. c. 60, sect. 6. 
 
 3''* See Anon. Ca. in 1 Bell, Leases, 392, ^78 nfe^t case, 
 
 note. 379 Grant v. M'Donald, 1827, 5 S. 317 
 
 ^6 Swinton •». Stewart, 1776, 5 B.S. (N.E. 294). 
 477 ; but the landlord cannot thus obtain 
 
CAUTION. 861 
 
 drawing caution in a lease from the operation of the section of No benefit of 
 the Mercantile Law Amendment Act,^«» which abolishes the '^'""''"''°- 
 benefit of discussion unless it is expressly stipulated for.^^^ This 
 provision was not needed where the cautioner was taken bound 
 as full debtor. Nor, according to what appears to have been the Guarantee, 
 better opinion, was it required, in order to subject the granter of 
 a letter guaranteeing payment of rent to immediate and direct 
 liability. ^^^ A guarantee of that sort — ' to see the rents regularly 
 'paid' — does not cover expenses incurred in discussing the 
 tenant by action, for that would be ' to guarantee the litigious 
 ' reasonableness of the tenant over whom the cautioner possesses 
 ' no control whatever,' and be contrary to the words of the 
 guarantee.^*^ 
 
 If the obligation be contained in a lease containing a clause of Remedies. 
 registration for execution it may be enforced not only by action 
 but also by summary diligence, since the cautioner is in pari 
 casu with the principal.^** If not so fortified, the landlord must 
 resort to ordinary action. ' He is not obliged to have recourse 
 ' to the ruinous diligence of sequestration on his hypothec before 
 ' coming on the cautioner, it being the chief use of the cautioner's 
 ' obligation to avoid this necessity.' ^^ But if it be specially 
 stipulated that the right of hypothec shall first be ' exercised,' the 
 stipulation will be given effect to, and it will not be enough for the 
 landlord to show that he had executed a warrant of sequestration. 
 He must have exercised every right vested in him by the hypo- 
 thec, including the right to sell.^*^ 
 
 The cautioner, on paying up, has the usual right of relief Eelief. 
 against his principal and against co-cautioners, if any such there be. 
 He has also a right to demand an assignation of the hypothec, so 
 far as securing payment of rent recovered from him in this way 
 by the landlord.^^'^ It would appear that, though the landlord 
 cannot refuse, and equity regards that as done which ought to be 
 done, the cautioner is not secure against the competition of other 
 creditors of the tenant unless, and until, he actually obtains an 
 
 38" 19 & 20 Vict. 0. 60, sect. 8. "^ B. Pr. 254, 1238, c£. 263 ; Mere's 
 ^' See the point discussed in 2 Hunter, Notes, 108; M'Queen v. ITraaer, lltli 
 147. It arises, only and illegitimately, June 1811, F.C. 286 ; Grant i: Mao- 
 out of the preamble. donald, ^'. 
 
 382 See M'Bwan v. Donald, 1852, 14 ^ss Mackenzie v. Fraser, 1827, 5 S. 597, 
 D. 809 ; Grant v. Fenton, 1853, 15 U. rev. 4 W. and S. 410. 
 
 424. 387 2 B.C. 33 ; B. Pr. 254, 1238 ; 
 
 383 Grant v. Fenton, supra, ^, per L. Stewart v. Bell, Slst May 1814, F.C. 638, 
 Cockburn, p. 427. and next vol. p. 499 ; contrast cases 
 
 38< Supra, p. 316. supra, p. 349. 
 
362 
 
 REMEDIES FOB EECOVEEY OF RENT. 
 
 How ex- 
 tinguished. 
 
 Septennial 
 limitation. 
 
 assignation.^^* If the cautioner have paid only bygone rents the 
 assignation cannot be demanded except under burden of the 
 landlord's preferable claim in security of future rents. 
 
 The obligation comes to an end by discharge of the cautioner 
 himself or the discharge of a co-cautioner without consent of the 
 other, unless the party let out be bankrupt ; ^^ or by expiration 
 of the period for which the caution was given, or of the lease 
 itself, either in the ordinary course, or prematurely, as where an 
 heir abandons claim to a lease. ^*'' It does not expand along 
 with a prolongation of the possession through tacit relocation. ^*^ 
 It does not survive any material alterations in the conditions of 
 the lease (such as a commutation of multure into money, where 
 the subject let is a mill);^'^ or a new lease ;^^' or eviction of 
 part of the subject with consent of the landlord.^^* Like other 
 cautionary obligations it is discharged by the creditor giving the 
 debtor time. Thus where for rent due at Martinmas the land- 
 lord took a bill in the following January, payable at a month's 
 date, and for rent due at the next Whitsunday a bill payable on 
 31st May, the cautioner was relieved of liability for these 
 rents.^^^ 
 
 It seems to have been taken for granted in a case which was 
 ably pleaded, that the septennial limitation of cautionary obliga- 
 tions ^^^ applies to caution for rent.^^' The difficulties which 
 beset the application of the Act which introduced this limitation 
 to leases for years, did not there arise since the lease in question, 
 was for a single year, and there could be no difficulty about ' the 
 ' date of the bond,' which is the point of time from which the 
 seven years run. It seems the better opinion that a continu- 
 ing obligation — such as to pay an annuity ^^* — does not admit of 
 the limitation, even for instalments payable before the period of 
 limitation ; and the same doctrine would probably hold in regard 
 to guarantees of rent. Of course, those defences which, like the 
 
 »8» Garden v. Gregory, 1735, M. 3390 ; 
 1 BeU, Convg. 286. Hunter (ii. 152) 
 thinks this old rule obsolete, but recom- 
 mends the cautioner not to trust to 
 mere payment of the rent, but to get an 
 assignation. 
 
 383 19 & 20 Viot. 0. 60, sect. 9. 
 
 33" Low V. E. Rosebery, 1812, More's 
 Notes, 111. 
 
 391 Porbes v. Ly. Saltoun's Exrs., 1735, 
 Eloh. Cautioner, i ; More's Notes, 104. 
 
 3"' Haddington Mags. v. Howden, 
 1816, Hume 109 (though rent was 
 
 lowered, substantially a new tack). 
 
 ™ Monro v. Cameron, 1821, 1 S. 19 
 (N.E. 20) ; so that new caution could 
 only be proved by writ. 
 
 39* M'DougaU 0. Northern Ass. Co., 
 1864, 2 M. 935. 
 
 '95 Richardson v. Harvey, 1853, 15 D. 
 628. 
 
 398 1695, c. 5. 
 
 39' Cochrane v. Fergusons, 1830, 8 S. 
 324, 9 a 501. 
 
 398 See L. FuUerton's op. in Alexander 
 V. Badenaoh, 1843, 6 D. 328. 
 
CAUTION. 363 
 
 apocha,^^ and the quinquennial prescription *""' may be put forward 
 by the tenant himself are equally competent to his cautioner. 
 
 On the other hand, the cautioner's liability is not terminated Transmissi- 
 by mere withdrawal. ^'^ If he dies, it transmits against his repre- ' ' ^' 
 sentatives, without the necessity of any intimation to them. 
 When a tenant's cautioner held a bond of relief from a third 
 party he was held not precluded from founding on it, through 
 not having intimated that sequestration and sale had taken place, 
 and through not alleging that he had paid the rent.*"^ 
 
 5™ Supra, p. 284. ''" B. Pr. 266. 
 
 *»> DouU V. Home, 1695, M. 2077; ^ Boog r. Jamieson, 1825, 4 S. 117 
 
 Duff V. Innes, 1771, M. 11059 ; 1669, o. (N.E. 118). 
 9. Supra, p. 286. 
 
364 
 
 CHAPTER XVII. 
 
 MANAGEMENT : USUAL CONDITIONS. 
 
 (covenants). 
 
 At common In this chapter it is intended to gather together the rules which 
 ^^' regulate the possession of the various subjects which are ordinarily 
 
 let in Scotland — farms, arable and pastoral, dwellings, shops, fac- 
 tories, mines, and quarries, — either at common law without, the 
 By conditions help of stipulation or by virtue of express conditions — or, as they 
 are sometimes called through the adoption of a term of English 
 law, covenants. It is beyond the province of a treatise on law to 
 canvass the policy or impolicy of making or adhering to any 
 particular covenant.^ It is enough to point out the mode in 
 which certain usual conditions have been interpreted by the 
 Court. The remedies appropriate for the enforcement of these 
 conditions will be separately discussed. And the chapter will 
 close with a few words on the important question what conditions 
 do and what do not run with the land — binding the landlord and 
 tenant, however they may have acquired right, or only personal 
 between the contracting parties and their representatives. 
 
 Cropping 
 clauses. 
 
 A. EuLES OF Management. 
 
 I. hi Agricultural Leases. 
 
 The object of all clauses of management or cropping clauses in 
 agricultural leases is to secure (so far as forethought and system 
 can secure it) in improving leases, the amelioration ; in ordinary 
 leases the preservation, of the capacity of the soil to produce crop 
 and raise stock. These clauses sometimes contain and every 
 
 ^ As to agricultural and pastoral 
 subjects, Mr. Stephens' remarks, like 
 most of his opinions, are full of shrewd 
 advice, §§ 3238 seqq. But the alteration 
 which the Agricultural Holdings Act has 
 already made and will still further make 
 on the tenure of land should be kept in 
 
 mind. It may be anticipated that year 
 to year agreements will gradually super- 
 sede leases for years — as to which see a 
 comparison of the merits and defects of 
 the two systems in § 3250. The balance 
 seems to be turned in favour of short 
 terms by the above Act. 
 
AGRICULTURAL LEASKS : GOOD HUSBANDRY. 365 
 
 lease implies an obligation to conform to the rules of good Good ims- 
 husbandry.^ This is a somewhat vague, though very useful ^"^ ^' 
 phrase, employed to describe generally the duty of a farmer to 
 the land he farms and to the landlord to whom it belongs, vary- 
 ing, as that duty necessarily must, with the nature of the soil, 
 latitude, height above sea-level, previous culture, neighbourhood 
 to or distance from a large town, and even dependent to some 
 degree on the nature of the subdivision of the farm, and the 
 ordinary sett of the district in similar holdings. Deviation 
 from the rules of good husbandry, when alleged, is tested by the 
 report of a man or men of skill acquainted with the mode of 
 cultivation in use in the district on similar farms.^ The custom 
 of the district is culled from individual, unconnected instances, 
 free from the disturbance of special agreement.* These rules 
 apply not only to leases for years but also to tenancies for a year 
 or from year to year.^ Mere alteration in the system pursued 
 during part of a lease may be innocuce utilitatis, not preventible 
 because not prejudicial to the landlord's interests. But where 
 the rules of good husbandry are departed from, these interests are 
 ex hypothesi endamaged, and the Court is bound to interfere. 
 It is not enough that the tenant should leave the lands in as 
 good a state as when he entered, if by adhering to the rules of 
 good husbandry, they ought to have been improved; and in 
 estimating the damage resulting from a departure from these 
 rules, it will be necessary in most cases to fix on some standard 
 of management — such as a particular shift — which may be 
 reasonably held to have been incumbent on the tenant in view 
 of the whole circumstances of each case." 
 
 In aid of this implied obligation, it is the invariable practice Rotation 
 in formal leases and in less formal missives, by reference or at "* *'™^^' 
 large to insert express conditions. These vary in different parts 
 of the country. It may be said that they are in most part con- 
 ceived in enforcement of a particular rotation of crops,^ experience 
 having shown that, except where unlimited supplies of manure 
 are easily to be had, a system must be adopted in the sequence 
 
 = Maxwell u. M'Murray, 1776, 5 B.S. 1025. 
 515. * Thomson's Reps. v. Oliphant, 1S24, 
 
 3 Hunter v. Miller, 1862, 24 D. 1011, 3 S. 275 (N.B. 194)— six-shift coarse 
 
 aff. 1 M. (H.L.) 49, 4 Macq. 560 (express selected. The lease was a long one, but 
 
 obligation to conform to said rules as the rule seems general. 
 ' practised in the county '). ' The best description of rotations, 
 
 ^ M. Tweeddale v. Brown, 1821, 2 Mur. esp. as to Scotland, is in Stephens' 
 
 563. Book of the Farm, sects. 3086 seq. 
 
 5 Fleming v. Macdonald, 1859, 22 D. 
 
366 
 
 management: usual conditions. 
 
 During 
 currency. 
 
 Approaching 
 ish. 
 
 of crops, — white, green fallow, or bare fallow, and grass, with 
 sometimes black crop and other occasional products — in order 
 to preserve the fertility of the land with the least outlay on 
 extraneous manure. Thus (as to the currency of the lease) it may 
 be stipulated that white crops which ripen their seeds shall not 
 be taken in succession ; ^ that a certain proportion shall be under 
 turnip or bare fallow each year, and be sown with grass seeds 
 along with the next white crop thereafter; that farmyard dung, 
 straw, and hay (or part thereof) shall not leave the farm.^ Or 
 the rules of good husbandry may be relied on till within four or 
 five years of the ish, when these or similar rules may come into 
 Eegulations as force. At the ish, the tenant may be taken bound to leave so 
 to outgoing, jjjmjji lamj Jq grass; to leave the whole dung of the penult crop 
 with or without payment, and in the former case, to take payment 
 according to valuation ; to leave the straw then unconsumed, as 
 steelbow or on payment according to valuation ; not to sell the 
 green crop during the last year; and to sell the last crop, which 
 is on the ground at the tenant's removal, to the landlord or 
 incoming tenant at a valuation. If this last condition is not 
 inserted the tenant may stipulate for the use of bams and other 
 accommodation for thrashing out and disposing of the last crop. 
 
 It may be here observed that the ordinary rotation all over 
 Scotland, except near to large tovms and on heavy carse lands, 
 is the five-shift course, which secures the inestimable advantage, 
 on poor soil, of two successive years under grass.^" Near town, 
 where police manure is accessible, a four-shift rotation is usual, 
 if any rotation be adhered to.^^ The six-shift course is in vogue 
 on certain good soils. ^^ And a seven-field system is still known 
 in the wheatlands of the Carse of Gowrie.^^ It is obvious, on a 
 
 oats ; beans, peas, and swedes ; 
 
 Shifts. 
 
 ' The most important of all, almost 
 superseding the others (Stephens, sect. 
 2633 seq.) ; yet it is purposely and quite 
 consistently with good husbandry aban- 
 doned in the seven-shift course of the 
 Carse of Gowrie. 
 
 ° Sometimes as to turnips — not to be 
 carried off, and one-half fed off by sheep 
 in situ. Other occasional conditions re- 
 late to preserving old turf ; forbidding 
 very scourging crops ; pairing and burn- 
 ing ; and breaking up pasture. 
 
 " The series consists of fallow (green), 
 wheat and barley (or oats), grass, grass, 
 oats. 
 
 " Fallow (green), wheat and barley (or 
 oats), grass, wheat and oats. 
 
 " Fallow (green) ; wheat and barley ; 
 
 grass ; 
 wheat. 
 
 '^ Bare (or sometimes green) fallow, 
 wheat, barley, clover, oats, beans and peas, 
 barley or wheat. It is unnecessary to 
 give variants, and shorter or longer shifts. 
 The particulars of each shift in the sett 
 are detailed in Stephens, sects. 3092 seq., 
 and other books on agriculture. See the 
 effect on grass at outgoing of a change 
 from six-shift to five-shift during currency 
 —Taylor v. Duff's Trs., 1869, 7 M. 351. 
 The tenant cannot hark back in the last 
 year— Cs. Stair v. Willison, 1883, 20 
 ScL.B. 314. See a case of impossible 
 conditions — Colvin v. Dunbar, 1871, 8 
 ScL.R. 14fl. 
 
AGEICULTTJRAL MANAGEMENT DURING CURRENCY. 367 
 
 little reflection, that there will often be much difficulty in chang- 
 ing from one rotation to another, especially if the subdivision of 
 the farm has been made in contemplation of the old shift. 
 
 In regard to certain of the rules, it is possible and useful to 
 discriminate between those (of less importance) which apply 
 during the whole currency of the lease, and those which come to 
 the front at or towards the ish, at a time when the relation 
 between the parties is subject to the greatest strain. 
 1. Management dunng Currency. 
 
 The rules of good husbandry and the ordinary conditions as to Functions of 
 cropping receive little if any illustration from our earliest text- * °^ ' 
 writers " and decisions.^^ The Court early reached the sound 
 view of its functions by deciding that it could not make for the 
 parties a contract as to the mode of cultivation which they had 
 not made for themselves, but could only restrain unwarrantable 
 acts when threatened, and indemnify for such acts when com- 
 mitted.^^ If the lease insists on good husbandry but goes on to Good hus- 
 detail what the parties mean thereby, the tenant is absolved from *° ^' 
 liability for proved mismanagement if he have faithfully adhered 
 to the course of cropping so laid down for his guidance.^' A 
 tenant, who was not expressly bound to any rotation but simply 
 to cultivate in a husband-like manner and not to outrun the 
 farm by overcropping or other undue management, and to have 
 one-fourth of the farm in pasturage at the ish, was proved in an 
 action raised during the currency of the lease to have seriously 
 miscropped the lands. He was held to be bound to crop accord- 
 ing to one or other of the rotations in practice in the district, 
 if suitable to his land.^^ A tenant is not entitled to remove Removing of 
 from the farm the straw or fodder ^' (except hay and the straw straw. 
 of the outgoing crop) 'unless he either bargain with the pur- 
 ' chaser for the dung produced from it or purchase as much for 
 ' the use of the farm.' ^'' 
 
 Where two farms are held by the same tenant from different 
 
 " Balf. 535; Cr. 2.9.2; St. 2.9.31 ; >' Stark v. Edmonstone, 1826, 5 S. 45 
 
 Bankt. 2.9.21 ; Ersk. 2.6.39 ; Spottisw. (N.E. 42). 
 367 ; Dallas is silent. '' Carron Co. v. Donaldson, 1858, 20 
 
 15 L. Haddo v. Johnston, 1633, and D. 681. 
 Murray v. Balcanquhal, 1665, M. 15257, " D. Eoxburghe v. Archibald, 1785, 
 seem to have been cases of moM/cJc dila- 5 B.S. 519; E. Northesk v. Rolland, 
 pidation just before removing. But see 1797, M. 15264 (assignees and sub- 
 Hunter V. Miller, infra, ^ ; Hamilton -u. lessees). 
 
 Hamilton, 1825, 4 Mur. 6 ; Grierson v. ^ Pringle v. M'Murdo, 1796, M. 6575. 
 
 Kerr, 1870, 7 ScL.R. 640. See a question raised as to clearing the 
 
 '« Meldrum v. Gibb, 1737, Elch. Tack, ground of stones— Elrick's Trs. v. Dufif, 
 
 4. 1824, 3 S. 343 (N.E. 242). 
 
368 management: usual conditions. 
 
 proprietors, the tenant cannot be allowed to consume the green 
 crop or fodder of the one farm upon the other, even though he bind 
 himself to return an equivalent in dung, since the removal lessens 
 the landlord's security.^^ The rest of the decision in the case 
 just cited — viz., that the tenant may not carry his grain from 
 one of the farms where there is no threshing-machine, to be 
 threshed on the other, though willing to find caution for its 
 return — is at best of doubtful soundness,^^ and the authority of 
 the whole decision will disappear along with the right of hypothec 
 which it was devised to protect.^* 
 
 2. Manfiagement Towards and at Ish. 
 
 There are three different conditions which have frequently 
 come before the Court. 
 (a) Grass at Ish. 
 
 It is sometimes agreed that a certain portion of the land 
 should, at the expiration of the lease, be left in grass. ^* This 
 is a less burdensome obligation than a condition binding to a 
 fixed rotation,^^ and has, so far as it goes, the same purpose — to 
 secure that the outgoing tenant shall not take undue profit out 
 of and to the detriment of the land. It is a definite obligation 
 which can and must be strictly implemented.^^ It is not implied 
 where there are no rules of cultivation prescribed, and the land- 
 lord has during the currency taken no objection to the ploughing 
 Effect of up of grass lands. ^^ Where the parties by verbal agreement 
 change of shift. (;vhich was found sufficient) altered the sett of a farm from a six 
 to a five-shift course, and thereby the amount of land in grass at 
 the ish, it was held to be implied that a condition entered into 
 on the one footing, entitling the tenant to payment for grass 
 land, was to be altered so as to bring it into conformity with the 
 rules applicable to the other footing, and that, therefore, the 
 original claim for payment for second year's grass was super- 
 Haining grass, seded.^^ Where it was the custom of a district, and the practice 
 of a farm in it to hain sown grass for hay from the early part of 
 March till Whitsunday, failure to do so inferred liability for 
 damages, which were estimated on the view that the failure 
 applied to the whole hay-break, and not merely to the acreage 
 
 -' Scott V. Durham, 27th May 1813, donald, 1834, 12 S. 684 ; Hall v. M'Gill, 
 
 ir.C. 305. 1847, 9 D. 1557. 
 
 ^= See Gordon v. Falconer, 1822, 1 S. ^^ LyaU v. Cooper, 1832, 11 S. 96. 
 
 386 (N.E. 361). 27 Eraser v. Maitland, 1824, 2 S. Ap. 
 
 ^ See supra, p. 326. 37. 
 
 ^ See Thomson's Reps. v. Oliphant, ^ Taylor v. Duff's Trs., 1869, 7 il. 
 
 swpra, *. 351. 
 
 2' As to which see Fraser v. Mac- 
 
AGRICULTURAL : WAYGOING CROP. 369 
 
 which the tenant got in hay at entry.^^ These conditions, like Construction 
 all others, are to be construed fairly and rationally and in search ° '^°°'^*i<'"- 
 of the intention of the parties so far as expressed therein. Thus, 
 where as alternative to an obligation to leave so many acres in 
 live-year-old grass at outgoing, the tenant was in the lease 
 permitted during those years to break the ground ' on paying to 
 ' the landlord the sum of £5 of additional rent for each acre 
 ' deficient,' and part of the old grass was lifted in the last year, 
 the liability was confined to payment of £5 for each acre theu 
 ploughed, and was not extended to a similar payment for each 
 of the five years.^" An outgoing tenant bound himself to leave 
 to the incoming tenant in grass certain fields and about twenty- 
 three acres of another field ' consisting altogether of about ninety- 
 ' seven acres.' It was held that he did enough when he gave 
 over ninety-seven acres in grass ; that allowance was to be made 
 for inferiority in the quality of grass growing elsewhere than in 
 the specified fields, and that natural grass land not in use to be 
 ploughed was not to be included. ^^ Where the lands have been 
 sublet, the obligation to leave grass is sufficiently implemented, if 
 the stipulated quantity is left on the whole lands let, without its 
 being divided proportionally among the different portions into 
 which the subleases have divided them.^^ 
 
 (&) Conditions relating to Waygoing Crop. 
 
 These relate almost exclusively to the white crop. Other Green crop, 
 crops may be dismissed in a few words. A tenant is entitled 
 to sell or consupae his last green crop — turnips and the like — off 
 the ground.^^ As shall be shown presently, hay growing from Hay. 
 seed sown with the penult crop and yielding its first crop in the 
 year of removal, is regarded not as ' grass ' but as ' crop.'^* The 
 presumption in favour of ' so many years, so many crops,' has 
 been allowed to override the natural effect of a Whitsunday entry. 
 Where that was the term of entry in a nineteen years' lease inter 
 
 29 M'CuUoch V. Grierson, 1862, 1 M. 611 (N.E. 521) ; Miln v. E. Dalhousie, 
 
 53. 1869, 6 So.L.R. 689. 
 
 ™ Suttie V. Somner, 1828, 6 S. 1122 ^ Keith v. Logie's Heirs, supra, ^, 
 
 (the landlord gained, since the benefit of approved in Lyall v. Cooper, supra, ^ ; 
 
 the long rest would not be exhausted by M'Nee v. Carnie, 1866, Guthrie's Dec. 
 
 the first crop). -345 — the cases between heir and executor 
 
 3> Simpson v. Creighton, 1823, 2 S. and between landlord and life-tenant's 
 
 405 (N.E. 360). representatives (Sinclair v. Balrymple, 
 
 32 Keith V. Logie's Heirs, 1825, 4 S. 1744, M. 5421 ; Wight v. Inglis, 1796, 
 
 267 (N.E. 272). The rules as to entry M. 5446; Ms. Tweeddale ii. Somner, 19th 
 
 to grass parks are stated, supra, p. Nov. 1816, F.C. 213) being regarded as 
 
 30^. erroneous and not to be extended. 
 
 3' Hamilton v. Reid's Trs., 1824, 2 S. 
 
 2 A 
 
370 
 
 MANAGEMENT : USUAL CONDITIONS. 
 
 Fruit. 
 
 White crop. 
 
 Outgoing 
 tenant takes 
 waygoing crop. 
 
 alia of orchards, and it was proved that nevertheless the tenant 
 had not reaped the fruit in the year of entry, he was held entitled 
 to the fruit crop of the year of outgoing. ^^ 
 
 The waygoing (awaygoing, outgoing, or last^^) crop is that which 
 the tenant has sown during the last year of the lease, and which, 
 after his removal at Whitsunday (which is the ordinary case in 
 Scotland) from the houses and grass he is entitled to reap at the 
 ensuing harvest. For this limited purpose he retains right of 
 possession or rather of access until separation or sometimes till 
 Martinmas, while for all other intents and purposes the removing 
 is at the preceding Whitsunday.^' So strong is the association 
 between sowing and reaping that it does not yield to a decree 
 of removing, but only to actual ejection ; ^^ and even one who 
 deserts possession after sowing, is entitled to reap on returning 
 and paying arrears.^^ 
 
 The rule is now settled that a tenant for years, with entry 
 , at Whitsunday and separation (or Martinmas) and corresponding 
 ish, is entitled to the waygoing crop sown before the Whitsunday 
 of the year of removal *" and to the first crop of sown hay reaped 
 shortly after that term-day.*^ The rule was applied though it 
 had the effect in an improving lease, under which land in natural 
 grass at entry had been broken up before the ish, of giving the 
 tenant one more crop than he had been years in possession.*^ 
 Where a lease did not prohibit [though it did not enjoin] a six 
 years' shift and the tenant till the last year followed a four or five 
 years' shift, he was held entitled in the last year to adopt the 
 six-shift course, and thus take a waygoing crop which he would 
 not otherwise have had, on a report by a man of skill that the land- 
 lord would not be prejudiced.*^ But the rule yields to express ** 
 
 '5 Forrester o. Thomson, 1828, 6 S. 
 875, aff. 4 W. and S. 136. 
 
 ^ The equivalence was pointed out in 
 Drysdale v. Wemyss, 1848, 10 D. 467, 
 aff. 6 B. Ap. 455 — a case which other- 
 wise raised a pure question of fact, see 
 6 B. Ap. 467. 
 
 ^ E. Hopetoun v. Wight, 1863, 1 M. 
 1097, aff. 2 M.H.L. 35, 4 Macq. 729; 
 supra, p. 300. 
 
 ^ Gordon ».M'Culloch, 1671, M. 13400, 
 15318. 
 
 ^^ Downie v. Grahame, 1715, M. 
 14729, 15310. 
 
 * Fullarton v. Crawford, 4th March 
 1814, F.O. 581; B. Pr. 1269; Mere's 
 Notes, 251 ; Ivory's Note to Ersk, 2.6.46 ; 
 
 Brodie's Note to Stair, 2.9.43 ; 2 Bell, 
 Leases, 1 02, ignoring the mistaken judg- 
 ment of the House of Lords in Scott v. 
 Brodie, 1802, 4 Pat. 311, see M. Appx. 
 Tack, 8 ; Keith v. Logic's Heirs, supra, 
 ^= ; Harvey v. King's College, 1845, 8 D. 
 151 (equivalent to a Whitsunday and 
 separation outgoing). 
 
 « Keith, supra, ^K 
 
 ^ Ibid. ; Baird v. Harper, 1865, 3 M. 
 543 (lifting old pasture as he was entitled 
 to do) ; it is of no consequence in what 
 year the change is made, ibid. 
 
 '" Hunter v. Miller, 1862, 24 D. 1011. 
 
 ■" M'Michan v. Hutcheson, 1801, 4 
 Pat. 170, 2 Bell, Leases, 201 (leave the 
 whole lands). 
 
AGEICULTUEAL : WAYGOING CROP. 371 
 
 or clearly implied *^ stipulation to the contrary. Thus where the 
 assignee to a lease of grass parks contiguous to and let with 
 a mansion-house, without prohibition against cropping tbem, 
 lifted certain of them, cropped them for five years before the 
 ish, which was Whitsunday for the whole subjects let, without 
 complaint or interruption, and proceeded to till and sow the 
 same quantity of land shortly before the said ish, it was held 
 that not he but the incoming tenant had right to the crop of 
 that year, subject to reimbursement for the expense of seed 
 and labour.*^ 
 
 It is necessary to notice shortly the rules which govern the Liferent 
 right to the last crop in the now uncommon case of a liferent ™°''' ' 
 lease. The heir of a liferent tenant is entitled to reap crop so 
 far as his ancestor had sown it on paying a proportion of the 
 rent.*^ Conversely he is entitled to recompense for the labouring 
 by his ancestor of land which had not been sown by him.*' But 
 hay produced from seed sown with white crop in the year preced- 
 ing the date of a liferent tenant's death goes to the landlord.*' 
 The representatives of a liferent tenant with a Whitsunday and 
 separation entry were by his lease entitled on his death to 
 possess and crop the farm for one year more. He died in 
 September when part of the crop had been reaped and some of 
 the next year's wheat had been sown. It was held that the year 
 of grace was the year of the next crop, not of the crop succeeding 
 it.^" The representatives of a liferent tenant were bound by his 
 lease to remove at the Whitsunday immediately after his death, 
 which occurred in March. They were proceeding to plough up and 
 sow the land as if the lease were still in full operation down to 
 the following Whitsunday when they were interdicted- — with 
 reason, as was held by the House of Lords, since the delay in 
 removal did not per se entitle them to cultivate during the 
 interval, but was intended only for the personal convenience of 
 the possessors.*^ 
 
 It is a not unusual condition that the landlord or incoming Waygoing 
 tenant should have right to take over at a valuation the last crop 0^°?.*'''^^" 
 at any time before it is reaped,*^ or by having the crop measured 
 
 ^^ Brodie v. Murdoch, 1777, M. Appx. ^' Cases in **, supra, of doubtful autho- 
 
 Tack, 3 (Whitsunday the only ish) ; Blair rity. 
 
 V. LyaU, 1826, 4 S. 365 (N.E. 369)— «> M. Tweeddale v. Somner, 1845, 17 
 
 separate pendicle. So. Jur. 198. 
 
 *= Gray v. Goldie, 1800, Hume 804. ^^ Ms. Tweeddale v. Murray, 1846, 8 
 
 ■" As to removing him, see chap. xxi. D. 411, rev. 6 B. Ap. 125. 
 
 ^ Stewart i;. Grimmond's Eeps., 1796, ^^ See Nivison v. Howat, 1883, 11 U. 
 
 M, 13853, Hume 561. 182. 
 
372 MANAGEMENT : USUAL CONDITIONS. 
 
 after cutting ; ^^ the market value being taken, not the value for 
 consumption on the farm.^* The intimation by the landlord or 
 the incoming tenant of his intention to avail himself of a stipu- 
 lated option to take over the outgoing crop on terms need not be 
 in writing. ^^ 
 storage of If this condition be not inserted, there should be express pro- 
 
 '"'°^' vision made for stowing away that crop in the barns and yards 
 
 (which in other respects have passed into the possession of the 
 incoming tenant) and for thrashing it out on the farm prepara- 
 tory to sale or removal. If there be no such provision, it is 
 clear law that an outgoing tenant with a Whitsunday (and 
 separation) ish has no such right, his right of possession (or 
 access) after Whitsunday being confined to the reaping and 
 carrying away of the crop,^^ and, probably also, during this 
 ' transition period ' a continuation of any right he may have had 
 during his lease to destroy rabbits, so far as is necessary in order 
 to protect the crop.^'^ Thus an outgoing tenant in Morayshire 
 (there being no contrary custom in that district) was held not 
 entitled to retain his thrashing-mill on the steading in order to 
 thrash the waygoing crop, nor to use the bam or stackyard for 
 storing it.^'^ And, if a lease prescribes a removing from the 
 arable land at Michaelmas, the tenant must give up the accom- 
 modation for thrashing and storing his last crop at that date and 
 make arrangements otherwise, however awkward and unsuitable 
 the term may be.^^ But if an extraordinary removing be ordered 
 to take place within a short period, the tenant is entitled to a 
 reasonable time thereafter and proper accommodation to thrash 
 out grain still in stack and to dispose of cattle.^^ And the rule 
 yields also to local custom, which naturally springs up, especially 
 in localities where the climate is moist and markets are remote. 
 The grace thus allowed may extend till April, Whitsunday, or 
 even later into the first year of the new lease ; ^^ and an ejection 
 of the tenant before its close involves liability for damages.''^ 
 Bare fallow. Bare fallow,*^ once the stock device for preventing exhaustion 
 
 53 StiU's Trs. V. Chivas, 1829, 8 S. 9. ^8 Anderson „. Tod, 1809, Hume 
 
 " Erskine's Trs. v. Cromble, 1870, 9 842. 
 
 M. 54 ; see Lindsay v. Bell, 1862, 1 M. 53 pinlayson v. Peddie, 1829, 7 S. 617 
 
 39. (3 weeks fixed of consent). 
 
 5= Duke V. Ferguson, 1862, 24 D. 547. «« Gordon „. Robertson, 1825, 2 BeU, 
 
 ^ Gatherer r. Cumming's Trs., 1870, 8 Leases, 388, per L. Gringletie. 
 
 M. 379. In Maoewan v. Pateraon, 1803, " M'Leod v. Crawford, 1816, noticed 
 
 M. 13891, Hume _571, the outgoing in Hume, supra, ^s. 
 
 tenant was allowed to remain till Martin- «2 ggg ^^^ ^^ j^ ^.j^g meaning of the 
 
 ™^5- term ' fallow ' in Thomson v. Jamieson, 
 
 5' Gatherer, supra, ^. infra, ^. 
 
AGRICULTURAL : FALLOW. 373 
 
 of the soil but now only practised (voluntarily) on certain stiff 
 
 clays is a denial of immediate in the hope of speedy advantage, 
 
 — a loss to an outgoing, and a gain to an incoming tenant. The 
 
 loss may have to be set against the corresponding gain which the 
 
 outgoing tenant had obtained through a similar arrangement at 
 
 the beginning of his own lease ; in which case he must leave as 
 
 much fallow when he removes without compensation."^ And if 
 
 the position of the parties is fully set out in the lease its terras 
 
 must be observed though the effect be to exclude a claim for 
 
 recompense which would otherwise have emerged, as where a 
 
 portion of the land let was reserved by the landlord to be at the 
 
 ish in fallow or green crop and the tenant was to receive merely 
 
 a certain sum per acre for ploughing it up."* But, where there Recompense 
 
 is neither antecedent equivalent nor express condition, the rule is 
 
 that, since the outgoing tenant would have been entitled to take 
 
 another crop instead of leaving fallow he has right to recompense 
 
 from the landlord and incoming tenant, there being a direct claim 
 
 against both."^ The measure of the claim is ' the difference 
 
 ' between the return from the farm during the last year with 
 
 ' the fallow so left and what it would have been if a crop had 
 
 ' been taken off the fallow land ; ' "" the main elements in the 
 
 problem being the cost of time, manure, labour, &c., in preparing 
 
 the land for the crops which another is to reap. The rule 
 
 applies only to bare or summer fallow, i.e., land left without a 
 
 crop, and not to green crop or green fallow, which, under the Not for land in 
 
 ■J J rr ■ I, ■ \ I A A g'^^'^ *^^°^- 
 
 improved modern system oi larming has m most part superseded 
 it. So that on general principles as well as on a collation of the 
 whole lease it was held that compensation ' for labouring and 
 ' manuring the fallow-break ' as well as ' for the value of the 
 ' land left in bare fallow ' did not include compensation for 
 expenditure on land from which the tenant (who had a Martin- 
 mas ish) had taken a waygoing crop of turnips, potatoes, and 
 beans."'' The obligation of the incoming to reimburse the out- 
 going occupant is said to be so strong as to apply even where the 
 landlord himself (who has had the land in his own hands) is the 
 disburser ; "^ and probably also where the landlord has reserved 
 
 «3 Brown v. Coll. of St. Andrews, 1851, «' Thomson v. Jamieson,1874, 1 K. 895. 
 
 13 D. 1355. ^ Marshall, mpra, ^, sed qucere, since 
 
 " Shireff v. L. Lovat, 1854, 17 D. 177. the claim then resolves into one by the 
 
 ^ Purves V. Rutherford, 1822, 2 S. 59 landlord qud disburser against himself 
 
 (N.E. 53) ; Simson's Tr. v. Carnegie, qud landlord, and there is no presump- 
 
 infra, ™ ; B. Pr. 1263. tion that the rent was fixed apart from a 
 
 ™ Marshall v. Walker, 1869, 7 M. 833, consideration of this important advantage 
 
 per L.P. Inglip. In the first jear. 
 
374 
 
 MANAGEMENT : USUAL CONDITIONS. 
 
 .Grass seeds. 
 
 Of penulti- 
 mate crop. 
 
 How far com- 
 pensateil for. 
 
 in the expiring lease an option to make the disbursements him- 
 self instead of the outgoing tenant but has not availed himself 
 thereof and they have been made before the new lease is 
 signed.^' 
 
 The same rules regarding compensation apply to the cost of 
 grass seeds sown down by an outgoing tenant with the last white 
 crop.™ If the outgoing tenant is bound to harrow in grass seeds 
 and the failure of the crop of hay can be traced to negligence 
 therein and to no other cause, he will be liable in damages.''^ 
 (c) CondAtions relating to Dung and its Ingredients."''^ 
 The rule that a tenant cannot, unless specially authorised, re- 
 move from his farm any part of the straw ''^ applies as strongly 
 to that which is made of the penultimate, as to that which is 
 made of any earlier crop. It must be consumed on the farm and 
 be made into manure for the waygoing crop.''* Before the intro- 
 duction of turnip husbandry, this straw, as an element of farm- 
 yard dung, was laid on the bear or barley land at some period in 
 April or early in May, and it was only such manure as was made 
 subsequent to that period that belonged to the outgoing tenant 
 and entitled him to recompense, if he was restrained from remov- 
 ing it.''-' In modern practice the dung is laid on the turnip or 
 fallow break, and compensation can only be demanded for such 
 part of it as has been lawfully withheld, or on account of the 
 ish being later in the year than Whitsunday has not been 
 made before the time of preparing the turnip or fallow land. 
 But without express bargain, a different rule may be gathered 
 from the general management of the farm. Thus where the 
 removing was at Whitsunday and separation, and the tenant 
 was bound to consume on the farm the whole fodder except 
 the hay and fodder of the last crop, the practice had been 
 during the whole course of the lease without challenge, and in 
 conformity with the rules of good husbandry as applicable to 
 wheat land, to reserve part of the dung to be laid on the wheat 
 land in autumn instead of using the whole of it for the spring 
 crops. The outgoing tenant was held entitled to compensa- 
 tion, first, for the reserved dung left on the farm unused at 
 
 «» Simson's Tr., ™. 
 
 '■» Simson's Tr. v, Carnegie, 1870, 8 
 M. 811 ; M'Intyre v. Anderson, 1872, 10 
 So.L.E. 69. 
 
 ^' Graham v. Lindsay, 1861, 23 D. 
 440. 
 
 '^ See as to steelbow, supra, p. 256 ; 
 and M.'Neal v. Smith, 1886, 2 Sh. Ct. 
 
 Rep. 331. 
 
 '5 Supra, p. 256. 
 
 " Forrester v. Wright, 1808, M. App. 
 Tack, 16 ; D. Roxburghe v. Roberton, 
 1816, Hume 867, rev. 2 Bligh 156 ; 
 Clerk V. Hamilton, 1801, Hume 867 n. 
 
 '■5 Finnic v. Mitchell, 1767, M. 15260; 
 Forrester v. Wright, '■*. 
 
AGRICULTUEAL : DUNG. 375 
 
 the Whitsunday of outgoing, being no more than he had been in 
 the use of reserving and being wholly employed for the benefit of 
 the landlord and incoming tenant, and secondly, for straw on the 
 farm at the said Whitsunday, being no more than would have 
 been necessary to fodder his bestial till separation.''''' Further, it 
 has been held that where a tenant on entry received, without 
 expressly paying for it, fallow ground prepared with a certain 
 quantity of manure, he was bound to leave the same state of 
 things at ish, and was entitled to payment for surplus manure 
 only."'' 
 
 The common law relating to the fodder of the penultimate Covenarts 
 crop may be either formulated or innovated on by stipulation. * ^'«*"^"*' 
 Thus an obligation incumbent on a tenant ' during the currency Excluding 
 ' of this lease, to consume upon said lands the whole straw and '^^'=°™P^"^^- 
 ' fodder of every kind except hay produced by said lands, and to 
 ' lay the whole dung thereby produced on said grounds,' excludes 
 him from claiming compensation for manure produced from that 
 crop and hained at the ish.'^^ The exclusion is strengthened (if 
 at all) if besides excepting hay there be an exception of the 
 fodder of the waygoing crop, and it is not affected by the fact 
 that at his entry the tenant had paid for the manure taken over 
 by him.'^^ There is a similar exclusion where the obligation is to 
 leave the manure on the farm at expiration of the lease.^" But 
 an alleged usage on a small estate is not allowed to interfere with 
 the common law rules as to compensation.^^ In the unusual case 
 of removing from the houses and grass at the Whitsunday after 
 (not before) the tenant's last crop, he must consume the fodder 
 of that crop during the period between separation and out- 
 going. ^^ 
 
 The meaning of express conditions entitling a tenant to recom- prescribing 
 pense for manure left on the lands at outgoing has not been '^®''°™P®'^^^' 
 much elucidated by decisions. Where the stipulated ish is 
 at Martinmas and Whitsunday after the last crop, and the tenant 
 was bound to consume the fodder on the land, and to leave 
 behind what was not consumed in the last year on getting pay- 
 ment of the • winter dung,' this term was held as including not 
 
 '« Berry v. Allen, 1827, 5 S. 212, aff. '" Greig v. Mackay, 1869, 7 M. 1109 
 
 3 W. and S. 417 (the second point seems (diss. L.J.-C. Moncrei£F). 
 
 open to question). so Stirling v. Yuille, 1827, 6 S. 251 ; 
 
 '" Brown i). CoU. of St. Andrews, supra, see Lyle v. Graham, infra, ^. 
 
 ^ (the lease was lost). s^ Allan v. Thomson, 1829, 7 S. 784 
 
 ™ E. Wemyss v. Wright, 1801, M. (four farms). 
 
 App. Tack, 7 ; Forrester v. Wright, ^^ Stirling, supra, *>. 
 supra, " (a nearly identical condition). 
 
376 
 
 MANAGEMENT : USUAL CONDITIONS. 
 
 quitting 
 tenant, 
 
 only the dung made during the last winter but all the dung 
 made since the waygoing crop was prepared.^^ A lease after 
 providing for consumption of the straw on the ground, and for the 
 straw of last crop being left, with a year's dung and a fallow 
 break, proceeded thus: 'But although the straw is declared steel- 
 ' bow, the tenants are to be allowed the price of the year's dung 
 ' to be left for the fallow-break.' The effect of this was that the 
 tenants were entitled to the full value or market price of the 
 dung, not merely a fractional part thereof corresponding to the 
 benefit of it for one crop.^* 
 Straw of way- In regard to the straw of the waygoing crop, another set of 
 leiongTtoliie Considerations emerges. 'By the custom of Scotland . . . — i.e., 
 'the prevailing usage of a great part of Scotland — where there is 
 ' no stipulation between a landlord and tenant with respect to the 
 ' straw or fodder, the tenants usually enter after the regular ex- 
 ■ piration of the term to reap the crop, and therefore, having the 
 ' crop to reap after the expiration of their term, are entitled, 
 ' where there is no stipulation to the contrary, to take away the 
 ' straw of the waygoing crop. ... In parts of Scotland, parti- 
 ' cularly in East Lothian and Berwickshire, the custom prevails 
 ' that the incoming tenant has the straw of the last crop of the 
 ' outgoing tenant, and then he leaves on the land he is quitting 
 ' the straw of his last crop, and this is called receiving in sfeel- 
 ' bow.' ^^ Consequently, the straw and dung of the last crop 
 are, in the absence of stipulations in the landlord's favour, poind- 
 able by creditors of the outgoing tenant. ^^ 
 
 So strong is the equity of the rule set out in the earlier part 
 of this passage, that the Courts in Scotland have shown the 
 greatest unwillingness to see in any general phraseology applic- 
 able to the whole currency of the lease a displacement of it, and 
 the House of Lords has on no fewer than three occasions had to 
 remind them of their duty to interpret plain words in their plain 
 sense, without reference to local usage or other extraneous cir- 
 cumstances, such as the state of matters at entry.®^ In the 
 earliest case, the lease, after providing for dung being left on the 
 ground at a valuation, stipulated that ' at no time shall ' the 
 tenant ' sell or give away any of the hay or straw of the said 
 
 unless other- 
 wise stipu- 
 lated. 
 
 8' Lyle ■„. Graham, 1824, 3 S. 125 
 (N.E. 84). 
 
 ^ Herrlot v. Halket, 1826, 4 S. 446 
 (N.E. 452). 
 
 ^ Per h. Gifford in Gordon v, Robert- 
 son, 2 W. and S. 133; and see the 
 opinions of the Court of Session Judges, 
 
 ibid., p. 120, and cases there cited. 
 
 ^ Dun V. Johnstone, 1818, Hume 
 451. 
 
 ^ B. Pr. 1261 ; More's Notes, 253. 
 See a case in which there were no stead- 
 ing or offices on the farm— Mitchell v. 
 Adam, 1866, 3 Se.L.E. 247. 
 
AGRICULTURAL : STRAW OF WAYGOING CROP. 377 
 
 ' farm, which shall always be spent on the farm.' The Court 
 of Session allowed the outgoing tenant to sell the straw of the 
 waygoing crop ; but the House of Lords reversed, the only 
 difSculty in construction, viz., that the hay and straw should be 
 spent on the ground (which it was out of the power of the tenant 
 to secure), being overcome by the observation that there was no 
 obligation on the tenant himself so to spend it.^^ In the next 
 case, articles of lease bore as follows : ' The whole fodder to be 
 ' used upon the ground and none sold or carried away at any 
 ' time, hay only excepted ; and all the dung to be laid upon the 
 ' farm the last year of the lease.' The House of Lords, revers- 
 iog a judgment of the whole Court, was unable to distinguish 
 this stipulation from that which came up for construction in the 
 last case.^* The same clauses in the same articles subsequently 
 came before the Court of Appeal with the same result.^" Profit- 
 ing by the hint contained in the Lord Chancellor's opinion,*^ in 
 the first of these cases, that if the obligation had been imposed 
 upon the tenant himself to spend the straw on the farm, the 
 stipulation might have been read as applicable to the straw of 
 all other crops except the last, it has been held that where a 
 tenant was bound ' to consume the whole straw, turnips, and 
 ' other fodder raised on the farm with the exception of clover hay, 
 ' which he is permitted to sell for consumption elsewhere,' he was 
 entitled to sell or carry ofif the straw of the waygoing crop. This 
 doctrine was based on the impossibility of such consumption by 
 the tenant, so far as the waygoing crop was concerned, on the 
 fact that the stipulation about clover hay did not apply to the 
 last crop (since the young grass was to be paid for), and the 
 absence of the emphatic prohibition of removal of straw ' at any 
 ' time.'^^ Though a tenant is prohibited in his lease and has 
 been interdicted from carrying off any of his fodder, it is no 
 breach of interdict to remove part of it, contained in stacks 
 infested with vermin, to a neighbouring farm to be thrashed, 
 provided the straw be returned immediately.^^ 
 
 ^ D. BoxbuTghe v. Roberton, 1820, 2 what may be regarded as an unsound 
 
 Bligh 156, 6 Pat. 614. judgment, 1833, 11 S. 647, aff. 7 W. & S. 
 
 89 Gordon v. Robertson, 1825, 3 S. 545. 
 
 656 (N.E. 458) (L. Crlngletie alone dis- ^i At2Bligh, 166; See L. Cowan's obs. 
 
 sented), rev. 2 W, and S. 115. on the distinction in Greig v. Mackay, 
 
 90 Gordon .,. Anderson, 1825, 4 S. 13 supra, ?', at 7 M. 1111. 
 
 (N.E. 14), rev. 3 W. and S. 1. In the 92 l Elibank v. Soott, 1884, 11 R. 
 
 sequel, the landlord claimed damages, the 494. 
 
 fodder having rotted in the tenant's »' Gordon v. Fiddler, 1823, 2 S. 486 
 
 hands, but was denied his remedy by (N.E. 430). 
 
378 MANAGEMENT: USUAL CONDITIONS. 
 
 Taken over at It is usual to arrange in leases for the landlord and incoming 
 valuation. tg^a^t having the option to take over the last crop— and as part 
 of it the straw — at a valuation.'* 
 
 II. In Pastoral Farms. 
 
 The only items of management which have received illustration 
 from statute or judicial authority relate to ploughing up grass,'^ 
 and to winter-herding, and march fences (the two last of which 
 will be noticed when treating of the relations of landlord and 
 tenant with third parties'^), and to muirbum, which falls more 
 conveniently within the chapter on gsime.^ 
 
 III. In Urban Subjects. 
 
 Express oondi- Enough has been said on an earlier page, when treating of 
 "'"^' right of possession, concerning inversion of possession and the 
 
 limits within which alone structural alterations may take place."* 
 These two subjects embrace all the restrictions which the common 
 law of lease introduces into questions between landlord and 
 tenant. There will be another opportunity of considering the 
 restrictions due to neighbourhood, that is to say, in questions 
 with third parties. "° It remains to collect here such special con- 
 ditions regarding the use of the subjects let, as have occurred, 
 may probably occur again, and have been subjected to judicial 
 interpretation. The views adopted by the Judges in each case 
 require to be studied with care in the light of the whole lease 
 and the whole circumstances before them at the time, and can- 
 not be implicitly relied on in seeking to interpret another deed. 
 There is no difference in the principles of construction between 
 the Scotch and the English law, and between feus and leases. 
 The authorities are, therefore, taken from all these sources indis- 
 criminately. 
 Construed in The rule of interpretation in construing conditions in a long 
 UbTr'u."* lease is unquestionably like that which obtains in regard to 
 feuing conditions — in favour of freedom.^"" The same rule seems 
 to hold in the case of short or ordinary leases, though perhaps 
 with diminished force, since the freedom of the lessee may, within 
 a short period, become the bondage of the landlord on re-entering. 
 The Court, when called on to adjust a formal lease, will decline 
 to add any stipulation at variance with the common law or ordi- 
 
 »* See Nivison v. Howat, 1883, 11 R. ^7 Chap. xviii. 
 
 182. As to set-off by illiquid claim for °^ Supra, p. 214. 
 
 misoropping see Gray v. Forbes, 1872, ^' Chap. xxv. 
 
 Guthrie's Deo. 292. i«» Heriot's Hosp. v. Ferguson, 1773, 
 
 »= M. Tweeddale v. Brovpn, 1821, 9 M. 12817, aff. 3 Pat. 474, and other cases 
 
 Mur. 563 (in last year). collected in Rankine, Landownersbip, 
 
 "" Chap. xxv. 398. 
 
UEBAN LEASES : RIVAL TRADE. 379 
 
 nary style to the conditions contained in concluded missives. ^"^ 
 The lessee, by accepting his lease under conditions, concedes the 
 landlord's interest to enforce them, and cannot escape liability 
 without proving that this interest had ceased to exist in the 
 interval. ^"^ 
 
 The rules which regulate the power to assign or sublet ;"* the Conditions ai- 
 obligation to reside j^"* the redelivery of fixtures ;^°^ insurance '^°' ^ '^° '"^ ' 
 against fire;^"^ the obligation and right to take and maintain 
 possession j^"" with the conventional variations and innovations 
 oa the rights and obligations concerned therewith have been 
 already adverted to. The conditions which remain for discussion 
 are mainly directed, Jirst, against the landlord, to prevent his 
 setting up a rival trade in the neighbourhood, and, secondly, 
 against the tenant, to prevent (a) his building on the subjects 
 let, (6) setting up any trade or business therein, (c) setting up 
 any noxious trade, (cZ) setting up any particular trade, and (e) 
 dealing with particular persons. Of these in order : 
 
 1. Restriction on Landlord setting up a Rival Trade.^"^ 
 It has been already pointed out that it is a breach of warran- Rival trading 
 dice, if the landlord, contrary to the good faith of the contract ^ ^^ 
 and apart altogether from special stipulation, sets up a rival trade 
 in premises so situated that the business for which the subjects 
 were let is materially prejudiced.^"^ An action of damages on 
 this ground having been raised, arrestment and inhibition having 
 been used and recalled on consignation of a sum, and an award 
 of damages having been obtained payable by equal instalments 
 during the remaining years of the lease, the consigned money was 
 held to be repayable to the landlord only on his finding caution 
 for payment of the instalments down to the date of a break, 
 which had been agreed on in the tenant's option, the ratio being 
 that the debt was not in any proper sense either contingent or 
 future. 1^° The common law right may be fortified by special 
 conditions. Thus, where a landlord undertook that an adjoining 
 shop belonging to him should not be let to any person in a 
 particular trade, the restriction was held (or admitted) to pre- 
 clude the landlord himself from using it for that trade, even 
 
 "1 CampbeU •<,. Ralston, 1842, i D. iw Supra, p. 184. 
 
 1310. "" See the general law as to contracts 
 
 ^"^ E. Zetland v. Hislop, 1881, 8 R. in restraint of trade in notes to Mitchel 
 675, rev. 9 R.H.L. 40 ; 7 App. Cas. 427. v. Reynolds, 1 Sm.L.C. 431 ; Pollock on 
 
 '<« Supra, p. 157. Contracts, 326 ; B. Pr. 40. 
 
 iM Supra, p. 213. ii» Supra, p. 201. 
 
 "= Supra, p. 257. ™ Smith <-. Cameron, 1879, 6 R. 
 
 "s Supra, p. 210. 1107. 
 
380 
 
 MANAGEMENT : USUAL CONDITIONS. 
 
 Prohibition 
 against trad- 
 ing. 
 
 Dwellings 
 exclusively. 
 
 though the business conducted by him therein competed with 
 that of the tenant in certain small articles only, the extent of the 
 rivalry being material and substantial. "^ But where the restric- 
 tion was that the landlord should not let any tenements in part 
 of a certain street ' for the purpose of carrying on the trade or 
 ' business of an eating-house ' (not, it is to be observed, ' let or 
 ' permit any of the tenements to be let ' for that purpose), it was 
 held not to be broken where the landlord let premises in that 
 street to a tenant whose assignee exercised there that trade with- 
 out being restrained by the landlord, as it was in the power of 
 the latter to do; since the landlord was not in any sense the first 
 tenant's trustee.^^^ 
 
 2. Restrictions on Tenant. 
 
 (a) Building on the Subjects Let. 
 
 In so far as building or structural alteration is inversion of 
 possession, it may be restrained at common law.^^^ Special con- 
 ditions in regard to building are more commonly to be found in 
 feu-rights than in leases. It would lead too far into that depart- 
 ment of the law to attempt any elucidation of the doctrine in 
 this place. ■'^^ 
 
 (6) Setting up any Trade or Business on the Subjects Let. 
 
 The object of such conditions is to secure that the premises 
 shall not be used in any other way than as dwelling-houses. This 
 end may be obtained directly by explicitly stipulating that they 
 shall only be used for that purpose ; and then the condition will 
 be broken by putting up a blind in a window with a business 
 sign inscribed ; ^^^ or by erecting a studio with the necessary rooms 
 connected therewith in the garden; or by building a stable, 
 though it has a bedroom over it ;^^® or by using a house as a 
 large school for girls, intended to accommodate about twelve 
 boarders and fifty day scholars. '^^ Where feu-rights allowed 
 offices to be built on the background of a building-stance but 
 provided that as the houses were 'intended to continue per- 
 ' manently as dwelling-houses, neither they nor the offices should 
 ' be converted into shops, warehouses, or trading places of any 
 
 1" Davie v. Stark, 1876, 3 K. 1114. 
 
 "2 Kemp V. Bird, 5 Ch.D. 974 ; of. 
 Master v. Hansard, 4 Ch.D. 718. 
 
 ™ Supra, p. 214, 
 
 ^^^ See the authorities collected in 
 Kankine, Landownership, pp. 385 neqq., 
 and add Pocock v. Gilham, 1 G. and E. 
 104 (advertisement hoarding). 
 
 "^ Wilkinson v. Rogers, 2 De G. J. and 
 
 S. 62 ; see a more particular restriction 
 against any outward mark of business 
 in Evans v. Davis, 10 Ch.D. 747. 
 
 "« Patman v. Harland, 17 Ch.D. 353. 
 See the converse case (offices not dwell- 
 ing-houses) Murison v. Wallace, 1883, 
 10 K. 1239. 
 
 ™ Ewirg V. Hasties, 1878, 5 E. 
 439. 
 
URBAN LEASES : PROHIBITION AGAINST TRADE. 381 
 
 ' description,' it was the opinion of two of the Judges that there 
 was no prohibition of the use of the houses as a school ; but the 
 point did not have to be decided.^^^ A condition that no build- 
 ing to be erected on land let ' should be used or occupied other- 
 ' wise than as and for a private residence only, and not for any 
 ' purpose of trade,' was broken by the erection of a building 
 adapted only for use as a school or institution, and intended to 
 accommodate one hundred girls, though the education was gratui- 
 tous and no profits could be made.^^^ And where a house was to 
 be used solely as a dwelling-house and 'any public business' within 
 it was prohibited, the condition was broken by using it as a day 
 school and dancing academy.^^" It is no breach of a prohibition 
 of trade or business to allow a sale by auction of the furniture 
 in the house let ;^^^ but an express prohibition against permitting 
 a sale by auction may be broken by putting a third party in the 
 way of being able to force on such a saJe.^^^ Again, the same Trade pro- 
 end may be attained by prohibiting the carrying on of any trade ^i^ited. 
 or business on the premises without setting out the purpose of 
 the prohibition. It is settled that it is not essential that there 
 should be payment taken in order to constitute a business, and 
 that payment does not necessarily make that a business which 
 without payment would not be a business. ^^^ Thus, a charitable 
 institution called a Home for Working Girls, where the inmates 
 were provided with board and lodging, was a business, whether 
 payment was taken or not ; ■'^* and the same remark applies 
 to a hospital. ^^^ The word ' trade ' has a more restricted raean- 
 ing.^^® It has never been settled, but it would probably be 
 held that the letting of lodgings as ordinarily carried on is 
 a ' business. '^^'^ 
 
 (c) Setting up any Noxious Trade. 
 
 A lease granted knowingly for a purpose which is contra honos Contra bonos 
 mores or otherwise unlawful — as, for example, where a house is 
 let to be used as a brothel — cannot of course give right of action 
 to either party. ^^ But a use, elsewhere and otherwise lawful, 
 
 "8 Colville V. Carrick, 1883, 10 R. '24 jby.^ and cases there. 
 
 1241. '^ Portman v. Home Hospital Lessee, 
 
 ™ Gorman v. Chapman, 7 Ch.D. 271. 27 Gh.D. 81, note ; Bramwell v. Lacy, 
 
 "» Wickenden v. Webster, 6 E. and B. 10 Ch.D. 691. 
 
 387 ; see Johnstone v. HaU, 2 K. and J. '-« 27 Ch.D. 85. 
 
 414. 1'^ See Woodfall, 665. 
 
 121 Beeves v. Cattell, 24 W.R. 485. ^ Smith v. White, L.R. 1 Eq. 626 
 
 1^ Toleman i. Portbury, L.R. 7 Q.B. (assignation in full knowledge) ; and see 
 
 344. the law discussed in Ferret v. Hill, 15 
 
 123 RoUs V. Miller, 27 Ch.D. 71. C.B. 207. 
 
382 
 
 MANAGEMENT : USUAL CONDITIONS. 
 
 Nuisance. 
 
 Prohibition of 
 
 particular 
 
 trades. 
 
 Butcher. 
 
 Inn : public- 
 house. 
 
 may become a nuisance to the neighbourhood; and it is the 
 interest of the landlord to make it plain in the lease that he 
 sanctions no such employment of his property and, if he so desires, 
 to formulate, aggravate, or relax the restrictions which would bind 
 his tenant according to the common or statutory law of nuisance.^^^ 
 The restriction then becomes matter of contract and not merely 
 of implied obligation. Thus a clause which prohibited 'any 
 * works than can be reasonably considered as nuisances by the 
 ' public,' struck at slaughter-housps.^^" To open a cholera 
 hospital is not 'to carry on a business which may be 
 ' considered to be nauseous or hurtful or occasion disturbance 
 ' to the neighbouring feuars.'^^^ A prohibition against the 
 erection of ' steam-engines or any other business which may 
 ' be nauseous,' does not exclude all steam-engines. ^^^ Where the 
 condition restrained against ' carrying on any nauseous chemical 
 ' operations, noxious or noisy manufactures, or anything that may 
 ' be a nuisance, or may occasion disturbance to any of the neigh- 
 ' bouring feuars or proprietors,' the land granted out might never- 
 theless (on the ejusdem generis rule of construction) be used as 
 the site of a hall for cattle shows and cattle sales. ^^^ To use 
 premises as a private lunatic asylum, i^* or as a licensed victualler's 
 shop,^^^ or as a store for lucifer matches, ^^^ is not to carry on in 
 them an ' offensive trade.' 
 
 (d) Setting up a particular Trade. 
 
 In practice, the trades which have been in use to be barred 
 are those of the butcher, the innkeeper, and the licensed victualler. 
 In regard to the first, it has been decided that a prohibition 
 against exercising the trade of a butcher on the premises let is 
 broken by selling raw meat by retail, though no beasts are 
 slaughtered thereon ; ^^' and by exposing carcases on the premises 
 though they were cut up, and the contracts for sale of them were 
 made elsewhere. ^^^ In regard to innkeepers and victuallers, it 
 has been determined, that an inn or hotel containing sleeping 
 room for the accommodation of the public, and a hydropathic estab- 
 
 '^ See as to Nuisance, Eankine on 
 Landownership, 322, 339 ; Wood on 
 Nuisance, passim. 
 
 >=» Lauder, 16th June 1815, "E.G. 450 ; 
 and see a longer clause with the same 
 result in Porteous v. Grieve, 1839, 1 D. 
 561. 
 
 "1 Mutter V. Fyfe, 1848, 11 D. 211, 
 303; see Metropolitan Asylum v. Hill, 
 6 App. Cas. 193. 
 
 "2 Frame v. Cameron, 1864, 3 M..290. 
 
 '^3 Anderson v. Aberdeen Agric. Hall 
 Co., 1879, 6 R. 901. 
 
 1" Doe d. Wetherell „. Bird, 6 C. and 
 P. 195. 
 
 '^' Jones V. Thorne, 1 B. and C. 715. 
 
 i2« Hickman v. Isaacs, 4 L.T. 285 
 (' dangerous ' omitted). 
 
 ''^ Doe d. Gaskell v. Sprv, 1 B. and A. 
 617. 
 
 "^ Doe d. Davis v. Elsam, Moo. and 
 M. 189. 
 
UEBAN LEASES: PROHIBITION AGAINST PARTICULAR TBADE. 383 
 
 lishment, though unlicensed, are ' public-houses or taverns ; ' ^^^ 
 that a place licensed for the sale of liquor to be consumed off 
 the premises, is neither a public-house, nor a beer-house ; but is 
 a beer-shop,^*° and its tenant a vintner. ^*^ The Grangemouth 
 case,"^ which related to licensed premises and eating-houses, 
 turned on the relation of superior and vassal. Similar questions 
 as to interest to sue, acquiescence in contraventions, and anxiety 
 for the public weal might arise in regard to long leases, scarcely 
 in regard to ordiuary leases of town property. 
 
 The provisions enacted for the protection of the owners of 
 licensed premises in English Acts,^^^ have no analogue in the 
 Scotch statutes. There are, moreover, no cases turning on 
 conditions in leases of such premises providing for the case of 
 forfeiture of the licence.'^** In England it has been heldthat there 
 is no implied condition that the lessee will do no act whereby 
 the licence shall be forfeited .-^^^ An express condition to that 
 effect is not broken by a conviction not endorsed.^*® A licence 
 is not ' imperilled ' by the tenant's going to sea.-^*'' It has 
 been held that where a public-house licence has been substituted 
 for a hotel licence, through no fault of the tenant, but on grounds 
 of public policy, the tenant, who declines to throw up his lease, 
 is not entitled to reduction of rent.'^*^ 
 
 (e) Dealing with particular Persons. 
 
 This species of quasi-thirlage is confined in practice ^*^ to Brewer's 
 retailers of beer who are the tenants of premises belonging to "^"^^ '' 
 brewers. The condition is that the lessee shall buy the beer he 
 retails from the lessor only. It is a legal condition, though not 
 a favourite of the law;^^" but it can only be enforced if the land- 
 
 ^ Ewing V. Campbell, 1877, 5 R. 230 ; to be found in 1 Jur. Styles, 685. 
 see Gold v. Holdsworth, 1870, 8 M. 1006, '^ Maw v. Hindmarsb, 28 L.T. 644. 
 
 infra, p. 398. "" Wooler v. Knott, 1 Exoh. D. 265. 
 
 "0 Pease v. Coats, L.R. 2 Eq. 688 
 L.N.W. Ey. V. Garnett, L.R. 9 Bq. 26 
 St. Albans v. Battersby, 3 Q.B.D. 359 
 London Building Co. r. Field, 16 Ch.D 
 645 ; Holt & Co. v. Collyer, 16 Ch.D. 
 718 ; and see Jones v. Bone, L.R. 9 Bq. 
 674 ; Eielden ■,,. Slater, L.R. 7 Eq. 523 
 The enactment 23 & 24 Vict. o. 27, sect, 
 
 "'■ Moore v. Robinson, 48 L.J., Q.B. 
 156. See as to duty to obtain renewal — 
 Linder v. Prior, 8 C. and P. 518. 
 
 i« Donald i: Leitch, 1886, 13 R. 790 ; 
 but see the later case of unavoidable acci- 
 dent— Muir V. M'lntyre, 4th Feb. 1887. 
 
 '^ But see a case of lessee of lime 
 thirled to certain coal — Wight v. Dick- 
 
 44, which relates to this matter does not sons, 1 Dowl. 141, where the rule of 
 
 apply to Scotland (sect. 46). thirlage proper in case of defective ac- 
 
 1" Wells V. Attenborough, 24 L.T. 312. commodation (Ersk. 2.9.37) is followed. 
 
 142 E. Zetland v. Hislop, 1881, 8 R. «» Jordan, 1876, 4 R. 1148; cf. Sun 
 
 675, rev. 9 E. (H.L.) 40, 7 App. Cas. 427. derland Overseers v. Sunderland Guard 
 
 i« 35 & 36 Vict. u. 94, sects. 31, 56, ians, 18 C.B.N.S. 131 ; Wilson v. Hait, 
 
 70 ; 37 & 38 Vict. c. 49, sect. 15. L.R. 1 Ch. 463 ; Catt v. Tourle, L.R. 4 Ch, 
 
 '** A form pf lea§e of public-house is 654, 659; Luker v. Dennis, 7 Ch.D. 227, 
 
384 MANAGEMENT : USUAL CONDITIONS. 
 
 lord supplies good marketable beer/" and (apparently also) such 
 kinds of beer as the tenant requires for his business.^^^ The 
 condition is sufficiently implemented if the tenant purchases 
 through an agent of his own the landlord's beer, though with- 
 out the landlord's knowledge.^^^ 
 
 IV. In Mineral Subjects. 
 
 No attempt will be made to detail the multifarious conditions 
 which are inserted in the ample phraseology of a mineral lease. 
 They differ with difference of policy, material wrought, district, 
 and means of transport. Some of the usual clauses have been 
 already discussed. ^^* The others are to be found in the ordinary 
 style-books.^^^ The terms are usually adjusted by a mining 
 engineer. They relate — shortly stated — to the operations neces- 
 sary for discovering the strata (if the mine be a new one) ; to 
 the carrying on of the works in a proper and workmanlike 
 manner ; support to prevent subsidence ; barriers ; periodical 
 surveys ; communication of levels ; surface damages ; position of 
 pits ; restrictions as to breaking ground ; houses, roads, and rail- 
 ways ; indemnification for damages done to third parties ; restric- 
 tions on mode of working ; fences ; restoration of surface at 
 waygoing, &c. &c. Those conditions only will now be noticed 
 which have come before the Court. The effect of the Coal and 
 Metalliferous Mines Acts of 1872,^^® and the laws which regulate 
 the rights and obligations of the persons interested in mining 
 must be sought in the statutes and in treatises which deal 
 specially with this extensive subject.-^^' 
 
 1. As to Mode of Working. 
 Working. To increase the breadth of a quarry may be proved to be an 
 
 infringement of a general condition to work ' regularly and to the 
 ' dip of the stone.' ^^® Where a pottery was let with adjoining 
 land, and with a privilege of digging clay therein for the 
 purposes of the pottery, the lessee had no right to manufacture 
 bricks for sale, or except in so far as required for the use of the 
 
 1^1 Luker, supra, ^*, and cases there. ^^^ A good selection is given in 1 Jur. 
 
 "2 Edwick V. Hawkes, 18 Ch.D. 199. Styles, 605 seq.; see also 2 Hunter, 616 ; 
 
 '"^ Ibid. The beer was of a better 2 Bell, Leases, 260. 
 
 sort than what the landlord supplied to ^^ 35 & 36 Vict. co. 76, 77, and later 
 
 persons in the trade. See the effect in Acts ; 38 & 39 Vict. c. 39 ; 44 & 45 Vict, 
 
 a sale of the consequent diminution in c. 26 ; 45 & 46 Vict. c. 3. 
 
 value — Jones v. Edney, 3 Camp. 285 ; and "' Bainbridge on Mines; Rogers (do.); 
 
 of transference of the brewer's business — Maoswinney (do.) ; and see Eankine, 
 
 Doe d. Calvert v. Eeid, 10 B. and C. 849. Landownership, sub voce, Mines : Sup- 
 
 ■''* Assignation and sublease, supra, p. port ; Water. 
 
 163 ; warrandice, p. 209 ; rent, p. 277 ; ^'"^ Ferguson v. Galloway, 1821, 1 S 11 
 
 fixtures, p. 271. (N.E. 8). 
 
MINERAL LEASES: SURFACE DAMAGES. 385 
 
 pottery, and at the end of the lease he was not entitled to 
 remove bricks made of that clay without paying the landlord 
 the value of the raw material.^^* And where a coal lease was 
 granted with ample powers of sinking pits, erecting engines, &c., 
 but without express power of charring, it was ruled that the 
 power could not be implied.^*" A lease of all and whole the 
 coal within a barony, excepting the coal lying within the parks, 
 gardens, and enclosures of the barony, unless the consent of the 
 proprietor were obtained, was read by help of the last-cited 
 words, as a lease of the whole coal, the reservation being merely 
 for the preservation of amenity, and not entitling the proprietor 
 himself to work the coal in the reserved space. ■^'^ A stipulation Mode of 
 that if any other pit should be required than two already in ^™ ™^" 
 part sunk, the tenant should have power to sink another pit or 
 pits, but only in such situations as should have been previously 
 approved of in writing by the proprietor, did not entitle the 
 proprietor to refuse approval arbitrarily and without reasonable 
 cause. -^^^ 
 
 2. Surface Damages. 
 
 In a mineral lease the lessee was prohibited from sinking pits Surface 
 or making any surface operations in fields adjoining to the "^ *™''^®'' 
 mansion-house of the estate. He had unrestricted power to 
 work the minerals on every other part of the estate, but on con- 
 dition of paying 'all surface damages whatever occasioned by 
 ' these operations.' In working the minerals in the direction of 
 the mansion-house the underground operations occasioned a sit, 
 by which the stability of certain ofiSces was affected. An engine 
 was erected at the mouth of the pit, but beyond the specified 
 limits. The smoke and ashes from that engine rendered unfit 
 for use a washing-house, bleaching-green, and laundry, adjoining 
 the mansion-house. It was held that surface damages com- 
 prehended damages occasioned by underground as well as by 
 surface operations; that injury to buildings by a sit gave a relevant 
 claim for surface damages under the lease; but that injury to 
 the use of the bleaching-green, washing-house, and laundry by the 
 smoke and ashes of an engine did not give a relevant claim for 
 surface damage; and it was observed ^^^ that such injury was of 
 the nature of injury to the amenity of the mansion-house, which 
 could be protected only by a special provision.^^^ Where a 
 
 ^^ Gordon r. Suttie, 1837, 15 S. 549. ^^^ Montgomerie v. Carrick, 1848, 10 
 
 "» Harriot v. Faulds, 1804, M. 15255. U. 1387. 
 
 !«' E. Wemyss v. Hope, 1796, 3 Pat. '^ Per L.P. M'Neill and L. Kobertaun. 
 
 487. i«* Oswald v. Gordon, 1853, 16 D. 70. 
 
 •2 B 
 
886 
 
 MANAGEiyiENT : USUAL CONDITIONS. 
 
 mineral lease provided for payment of ' damages that should be 
 ' done to the surface or grounds or buildings thereon/ and taxed 
 the amount (after the termination of certain agricultural leases) 
 at so many shillings per acre, over and above the damage to 
 buildings, which was to be fixed by arbitration, it was held that 
 the provision applied only to proper surface damage (i.e., ' damage 
 ' that prevented the ordinary agricultural use of the subjects ') and 
 damage to buildings by subsidence or in some such way ; and 
 not to damage from smoke, affecting the amenity of a mansion- 
 house and injuring the trees and garden. -^^^ A lease provided 
 that the underground workings should not be carried nearer to 
 the mansion-house than 100 yards, to the offices or garden than 
 thirty yards, or to the steadings than twenty yards. It was 
 held that the outside line of buildings was the foundation wall, 
 though it extended beyond the wall as seen above ground, and 
 the outside of the main-door step; that a kitchen, court, and 
 offices formed part of the mansion-house ; that the garden did 
 not include a strip of border-ground and line of trees outside of 
 its wall; and that a dovecot and pond were not ' offices.'^®® By 
 the terms of a lease of ironstone and ore, the lessees were bound 
 to pay all surface damages which might be sustained by the 
 Construction, agricultural tenant or by the proprietor by and through their 
 working. Before the natural expiry, the mineral lease terminated 
 in virtue of a clause in it to the effect that the lessees might 
 abandon when the mines became unworkable to profit. Per- 
 manent damage had been caused by the workings. It was held 
 to be clear that the lessees were liable in damages to the pro- 
 prietor, notwithstanding annual settlements they had made with 
 the tenant ; for there was a diminution in perpetuuTn of the 
 value of the property, and reparation to the landlord thus accruing 
 was contemplated in the lease. -^^^ 
 
 3. Communication of Levels. 
 
 A lease of coal contained a stipulation that in case it should 
 be found necessary to communicate the level of the coal so let to 
 any neighbouring proprietor, it should only be done with the 
 advice and consent of both parties. The interest of the landlord 
 was to prevent the descent of water into his strata, there being the 
 further risk of the lower part of the level being stopped by the 
 heritor to the dip. The express terms of the agreement were 
 enforced by the House of Lords, and a communication having 
 
 Obligation to 
 pay surface 
 
 Communica- 
 tion of levels. 
 
 185 Galbraith's Tr. v. Eglinton Iron 
 Co., 1868, 7 M. 167. 
 "5 Russel & Sou V. Gillespie, 1868, 
 
 6 M. 925 ; alt. 9 M. (H.L.) 130. 
 
 "'■ OgUvy ■„. Devon Iron Co., 1845, 
 8 D. 241. 
 
MINERAL LEASES : LEVELS. 387 
 
 been made into a neighbouring field also let to the tenant with- 
 out the requisite consent, the tenant was ordered to shut it up 
 and pay for the benefit he had enjoyed by the use of it.^*^ So, 
 if there be no permission to communicate levels, it has been held 
 that the lessee of two adjacent coal-fields belonging to different 
 owners is not entitled to communicate the drain or level of the 
 one field to the other. ^^' Nor can a lessee use levels of mines 
 let to him for the benefit of mines which are his own property, 
 except by agreement. A long lease of coal was granted, with 
 an exclusive right to the levels necessary for working 'so far 
 ' as in the lessor's lands or belonging to him.' Under this agree- 
 ment the lessee carried a certain level through coal-fields of his 
 own, situated between the coal-fields thus leased to him. Another 
 agreement was entered into, by which the lessor ratified the 
 communication of the level thus made, and the lessee bound 
 himself to pay therefor in name of compensation such a sum as 
 should be awarded by arbiters. In a suit by the lessor for 
 implement, he maintained that the lessee had no right to use 
 the level of the lower coal-field let except for working the coal 
 let, and that his right to communicate the level was constituted 
 solely by the second agreement, and therefore that he should pay 
 the true value of such communication. The counter-plea was, 
 that as the lessee had a right to use the level of the one field let 
 for the coal of the other, and as he could not do so without the 
 communication through his own intervening coal, he was entitled 
 to carry forward the level without giving a consideration. The 
 Court held that be was not so entitled, and that the agreement 
 must govern. ■^^'' Subsequently, the Court in determining the 
 grounds for estimating the value of the communication of the 
 use of the level, took into consideration not only the facilities 
 afforded for drainage by the possession of an alternative level, 
 but also the porous nature of the strata in the tenant's own 
 field, in so far as it might have drained imperceptibly into 
 the communicated level.^'^ These judgments were affirmed on 
 appeal. ^'^ There being a clause in a coal lease by which it 
 was agreed that either party was to have the power of com- 
 municating the level of the coal to any neighbouring coal-works, 
 the power did not expire with the lease, but continued to be 
 operative so long as the tenant continued to have a right and 
 
 i«8 Wauchope v. Hope, 1773, 2 Pat. "<> Halkett v. E. Elgin, 1826, 5 S. 154 
 
 286 ; 1774, 2 Pat. 338. (N.E. 140) scj., 9 S. 412. 
 
 169 E. Wemysa v. Hope's Tre., 7th Feb. "^ 1832, 11 S. 203, 315. 
 
 1809, F.C. 161. i'^ 1835^ i g. ^^d m'L. 629, 
 
888 
 
 MANAGEMENT : USUAL CONDITIONS. 
 
 Boads. 
 
 Barriers. 
 
 PiUars or 
 supports. 
 
 interest in neighbouring coal- works, and, 'neighbouring' did 
 not merely mean immediately adjacent."^ Similarly, a right 
 to use roads on the landlord's estate to convey minerals from 
 another estate beyond it does not belong to the tenant except 
 through special stipulation.^''* 
 
 4. Barriers. 
 
 In regard to the liability of a lessee to leave a barrier to the 
 rise, it is settled that he is only entitled to exhaust the mineral 
 under the qualification that he so conducts his operations as to 
 leave a barrier against the water of the adjacent mineral."' 
 But the tenant may be released from this liability either expressly, 
 or by plain implication, which will be gathered, for instance, from 
 a combination of such facts as that the lease granted out the 
 whole coal, provided for communication with other mineral fields, 
 and contained no continuing obligation to pump.^''^ 
 
 5. Support. 
 
 The lessee is under implied obligation to leave a part of the 
 mineral for sufficient pillars to support the roof of the mine.^" The 
 law of support is illustrated in three Scottish cases between land- 
 lord and tenant. The proprietor of a coal-field conveyed to 
 a company of alum manufacturers, for a period of sixty-three 
 years, the whole ore in his coal-pits and coal-wastes from which 
 alum could be manufactured. The alum seam lay immediately 
 above the coal seam. The coal-field was let to tenants, who were 
 authorised to work the coal in a fair and regular manner, but so 
 as not to injure the interests of the alum company. The coal 
 was wrought by ' stoop and room.' It was held that the alum 
 company were entitled throughout the duration of the contract to 
 prevent the landlord or his tenant of the coal from removing the 
 pillars, in so far as necessary to support the roof, although all the 
 solid coal should be wrought out."^ Where a mineral lease 
 obliged the tenant to work the minerals in a workmanlike 
 manner, but empowered him to work the coal ' either by stoop 
 ' and room or longwall manner, or otherwise as he should find it 
 ' for his advantage ; ' it was observed that there was nothing in 
 
 "' E. Abercom v. Wallace, 1764, 6 Pat. 
 7o7. 
 
 "^ Mungle V. Young, 1869, 6 Sc.L R. 
 217. 
 
 "= E. Wemyas v. Hope's Trs., 7th Feb. 
 1809, E.G. 161 ; Wavkv. Bargaddie Coal 
 Co., 1856, 18 D, 772, rev. 3 Macq. 467, 
 supra, p. 99. 
 
 I™ Crawford v. Dixon, 1824, 2 S. 667 
 
 (N.E. 560) ; aff. 2 W. and S. 354. See 
 as to the custom, the engineer's report. 
 
 ^'^ E. of Wemyss v. Hope's Trs., supra, 
 "^ ; Davis v. Trehame, 6 App. Cas. 460. 
 See the law relating to support treated 
 in Eankine, Landownership, chap, xxviii. 
 
 "^ Hurlet Alum Co. v. E. of Glasgow, 
 1850, 12 D. 704, aff. 7 Bell's App. 
 100. 
 
i same 
 mine. 
 
 MINERAL LEASES. 389 
 
 the lease itself, apart from evidence of the nature of the seams, 
 to prevent the tenant from causing subsidence of the superincum- 
 bent strata. ^'^^ Again, the tenants under a mineral lease pumped 
 out the water preparatory to working the minerals, thereby caus- 
 ing a sit of the ground, and consequent injury to buildings on the 
 surface. The mineral lease did not stipulate that the tenants 
 should take precautions to prevent the emergence of such an 
 injury. It was held that the party who withdraws a natural 
 support, or the artificial support which has come in place of 
 the natural one, does so at his peril. ^^^ Where a lease of a par- Leases of 
 ticular mineral existing in one and the same mine along with ^jner^g in 
 other minerals gives the tenant a right of working it in the way ti^e ^ 
 most profitable and convenient for him, he is not restrained from 
 working in the way he thinks most beneficial by the circumstance 
 that such way of working will prejudice the interest of the tenant 
 of the other minerals in a lease entered into subsequently to hia^^^ 
 
 6. Miners' Cottages. 
 
 A landlord let to the same tenant the minerals under a farm. Houses for 
 and also, by a separate lease, the surface of the land. The 
 mineral lease expired some years previous to the agiicultural 
 lease. During the currency of both leases the lessee erected 
 certain buildings and houses, which had been chiefly occupied by 
 colliers, or used for the purpose of working the minerals. The 
 mineral lease conferred no power on the tenant to erect such 
 buildings, and the agricultural lease reserved no power either to 
 the landlord or to the mineral tenant to erect them. On expira- 
 tion of the mineral lease it was held that the landlord was not 
 entitled summarily to eject the tenant from these buildings ; but 
 action was reserved to him to compel the tenant to remove from 
 such of them as could be shown fairly to fall within the operation 
 of the mineral lease. A mineral lease does not necessarily imply 
 a right to erect miner's houses on the lands. ^^^ 
 
 7. Restoration of Ground. 
 
 A canal was formed by the tenant of a coal- work through the Eestoration of 
 grounds of a neighbouring proprietor, to whom rent was paid for 
 the ground so occupied. The mineral lease having expired, the 
 proprietor of the coal-work possessed the canal and paid rent 
 
 1™ Muirhead v. Tennant & Co., 1854, liability of landlord and tenant for damage 
 
 16 D. 1106 {sed qucBre, see Davis v. to houses by sits caused by a mineral 
 
 Trehame, supra, '^). The decision turned tenant, see Hamilton v. Turner, &c., 1867, 
 
 on the nature of certain exceptions to the 5 M. 1086 ; Kankine, Landownership, 
 
 charge to the jury. p. 409. 
 
 ™ Bald's Trs. v. Alloa Colliery Co., ™ Hurlet case, lupra, i™. 
 
 1854, 16 D. 870. As to the respective ^^^ Oswald v. Pearson, 1858, 20 D. 440. 
 
390 MANAGEMENT: USUAL CONDITIONS. 
 
 until decerned to remove and found liable for violent profits in 
 an action which did not conclude for decemiture to have the 
 ground levelled or put in an arable condition. After this decree 
 the proprietor of the coal-work and his successor continued to 
 occupy the canal for several years, and paid as rent the sum fixed 
 as due for violent profits. It was held that (whatever might have 
 been the obligation of the tenant) the proprietor was not bound 
 on ceding possession to level the ground to make it fit for agri- 
 cultural purposes. ^^^ 
 
 V. In Fisheries, and Shootings : Mills. 
 
 The mode of conducting fisheries is in great part prescribed for 
 landlords, tenants, and the public by statute.^^* The conditions 
 which are usually inserted in leases of fishings are — to work, fish, 
 and clean the whole waters sufficiently, and to keep the premises 
 in order and repair, including the fishermen's houses. ^*^ 
 
 The clauses of a shooting lease are treated of in another 
 place.^'^ 
 
 The clauses of leases of mills and factories relate more to re- 
 pairs,!^' and the letting of the machinery, ^'^ than to management. 
 
 B. Remedies. 
 
 1. Action of Damages. 
 
 Wherever there has been breach of contract (in the ordinary 
 and legal sense of the word) an action of damages lies ; and 
 breach of the contract of lease forms no exception to this rule, 
 which might be illustrated almost at random from any part of 
 the present book. It is proper, however, to notice (a) a plea in 
 defence which owes its special significance to the circumstance 
 that a lease is a continuing contract, not prestable by a single 
 act, and (6) the mode in which damages have been measured. 
 
 (a) Acquiescence. 
 
 It may be a fair and the only fair inference from the circum- 
 stances of a case, that either party has passed from claims which 
 would otherwise have been competent to him. The question is 
 in every case one of fact. It is possible to illustrate : it is im- 
 possible to lay down any general rule, except that which is of 
 
 183 Steuart v. D. of Argyle, 1857, 19 S. 959, 10 S. 502 (encroachment). 
 
 D. 1076. For special cases on interpreta- ™ Stewart on Fishing ; Kankine, 
 
 tion of terms of leases, &c., of minerals , Landownership, 257, 350, 765, 875. 
 
 see Wight v. Dicksons, 1813, 1 Dow 141 ^^ 1 Jur. Styles, 695 (salmon-fishings), 
 
 (obligation to furnish coal to limework) ; '8" Chap, xviii. 
 
 Cunningham o. Warner, 1823, 3 S. 246 ^87 Supra, p. 220. 
 
 (N.E. 215), rev. 2 S. App. 225 (partner- ^ Supra, p. 234. 
 ship) ; Young v. Cunningham, 1832, 8 
 
damages: acquiescence. 391 
 
 the essence of the plea — that the facts must be sufficient to 
 
 instruct consent to infringement of the contract ; ^^^ and that the 
 
 pursuer must show that he had required the defender or his 
 
 author to fulfil the obligation, at least where both parties are to 
 
 take part in the implement.^'"* 
 
 Where the plea has been adduced by a tenant in answer to In misorop- 
 
 • ■ pins- 
 
 his landlord's claim, the case has usually been one of miscroppmg. 
 
 Thus, thirteen years after the commencement of a tack which 
 (with renewal) had a duration of thirty-five years, the lessor's 
 representatives complained that from entry onwards the tenant 
 had miscropped and mislaboured the land contrary to the stipu- 
 lations of the lease. The landlord's factor was frequently on the 
 farm for the first eleven years, and the landlord lived hard by 
 during part of that time. The renewal contained the same stipula- 
 tions. No complaint was made of the tenant's conduct. It was 
 held that acquiescence in deviations from rotation and from the 
 prescribed proportion in crop was made out, and that no damages 
 were due except for actual exhaustion of the land. A report was 
 ordered as to the mode of bringing the land back into proper 
 condition, and the landlord's right thereafter to insist on the con- 
 ditions of the lease being fulfilled was reserved. ^^^ In entire 
 consistency with this, it was held that where a purchaser allowed 
 a lease which ran out at the date of his purchase to be continued 
 for two years by tacit relocation, he was not barred by the alleged 
 acquiescence of the vendor in gross miscropping from claiming 
 damages for a continuance thereof during that period, though he 
 accepted payment of the rent without reserving any claim. , In 
 instructing the fact of mismanagement it was competent to go 
 back to the state of the farm in the vendor's time.^^^ The claim 
 for damages, in so far as not barred for the past and future, may 
 be met by an offer to put the land in heart during the currency 
 of the lease, if, on account of its not being near its termination, 
 the possibility of doing so is not merely matter of doubtful 
 experiment, but certain ; ^'^ not otherwise."* 
 
 The converse plea by the landlord against his tenant's suit for Short 
 damages has arisen in regard to the non-implement of various 
 
 ^89 See as to the necessary averments, ^'^ HaU o. M'Gill, 1847, 9 D. 1557 
 
 Hunter v. Broadwood, 1854, 16 D. 441, (Hunter's note (ii. 503) seems erroneous). 
 
 infra, p. 399 ; and as to the right of a See in contrast, Baird v. Mount, 1874, 1 
 
 purchaser, Carnegie v. Guthrie, 1866, 5 R. 1119. 
 
 M. 253, infra, p. 409. iss Murray's Tra., supra, '»». 
 
 19" Eeay v. Chalmers, 1834, 12 S. 860. "^^ Carron Co. v. Donaldson, 1868, 20 
 
 I'l Murray's Trs. v. Gordon, 1806, M. D. 681 (4 years from ish). 
 App. Tack, 12, Hume 823. 
 
392 MANAGEMENT : USUAL CONDITIONS. 
 
 obligations incumbent on the landlord.^^^ Thus, where a tenant 
 on the expiry of his lease possessed the farm on tacit relocation 
 for five years during the whole of which he possessed forty acres of 
 moor less than during the lease (this parcel of land having been 
 revindicated by a neighbouring proprietor), all claim for damages 
 was held to be barred by his continuing to possess and pay the 
 full rent at a time when he was at full liberty to remove. ' There 
 Damage by ' was no tacit relocation of a claim of damages.' "^ A. tenant at 
 s*™^- the expiry of his lease brought an action of damages against his 
 
 landlord for injury to crops for the last seven years from excess 
 of game. He stated that each year, when he paid his rent, he 
 claimed a deduction on that ground and that the landlord, while 
 admitting the excess of game, attributed the loss to other causes 
 and allowed no deduction. An issue was refused (except as to 
 the last year's loss, for which claim was reserved in the receipt for 
 rent) on the ground that a tenant, at the conclusion of his lease 
 is not entitled to go back, for the whole or any part of it and 
 claim damages for injury done during his tenure, after paying 
 rent without any effective demur, such as to put the landlord on 
 his guard to abate the injury. ^^'^ Entailed land was let in 1864. 
 There were changes of owner in 1866 and 1873. The lease 
 reserved to the landlord power ' to conduct all water-courses and 
 ' drains on levels necessary for making the same or for the drain- 
 ' age of the said estates ' on paying surface damages. Drainage 
 operations on another part of the estate to the rise in 1867 and 
 1877 flooded the farm drains which were not large enough, or so 
 constructed as, to carry off this surplus water. Complaint was 
 first made by the tenant in 1877. Thereafter a correspondence 
 on the subject went on for two years and was resumed two years 
 later. It was held that the heir in possession was not liable for 
 damage done either before his entry in 1873 or before complaint 
 was made, but that he was liable for damage done thereafter 
 (1878-81), notwithstanding that the full rent had been paid 
 for these years without reservatigp, since he tad been fully 
 certiorated by the correspondence that the claim was to be 
 insisted in.^'^ The circumstances are in strong contrast to 
 
 1^5 See Clugston v. Goold, 1823, 2 S. plaints were merely verbal grumbles, 
 
 308 (N.E. 271) ; Lamb v. Mitchell's Trs., except in one instance when the demand 
 
 1883, 10 E. 640, infra, p. 400. broke down. Contrast Hardie v. D. 
 
 1S6 Baird v. Graham, 1852, 14 D. 615. Hamilton, 1878, 15 S.L.R. 329. 
 
 '^ Broadwood v. Hunter, 1855, 17 D. i^s Macdonald v. Johnstone, 1883, 10 R. 
 
 340; form of issue, 17 D. 1139. The 959 ; of. Barclays. G.N. of Scotland Ry., 
 
 case is narrow but the decision seems to 1882, 10 R. 144 (acquiescence in breach 
 
 be justified by the fact that the com- of statutory obligation on Railway Co.). 
 
MEASURE OF DAMAGES. 393 
 
 those of the foregoing case, but the same rules are applied 
 in both. 
 
 (6) Measure of Damages. 
 
 There is little authority in Scotch law regarding the measure 
 of damages ; and less still is afforded by cases between landlord 
 and tenant. It has been too much the way in this country to 
 ignore rules in respect to a matter which is really a jury ques- 
 tion, though determined usually now-a-days by a Judge, as part of 
 the whole question submitted to him on a closed record.^'^ The 
 following cases may, however, be noted. In a case of eviction of 
 a whole holding, it has been laid down that in proving the loss Total eTiction. 
 sustained by agricultural tenants deprived of their farms, where 
 there was no fault in those liable, three modes of valuation have 
 been adopted — by stating the estimated produce and the price 
 at which it would have sold during the past years, and at which 
 it would probably sell during the future years of the lease, and 
 then deducting the expense of cultivation; or by stating the 
 rent which a sublessee would have given ; or by proving the 
 rent paid under new leases, and putting a value upon additional 
 conditions contained in them. In applying these modes so as to 
 prove quantum, the Court directed (1st) That where the tenant 
 remained on the farm, the difference of rent under the old and 
 new leases, with an allowance for the difference of the conditions, 
 was probably the best rule. {2nd) That where the tenant was 
 removed from the farm, whether the jury took the new rent or 
 the estimated subrent, they must give what they thought a 
 reasonable sum as tenant's profit ; and that this profit should 
 be given, not for the whole years of the lease, but for such 
 a time as they thought necessary to enable the tenant to get 
 another farm. {3rd) That if the jury took the estimated 
 produce, such profit was included in it. {^th) That where the 
 farm had been sublet before the reduction, the subrent was the 
 sum to be given, {oth) That where the stock was sold, the jury 
 must give what they thought was proved as the difference 
 between the sum for which it was sold and that for which it 
 would probably have sold at the end of the lease. And {6th) 
 That there must have been some disturbance of the possession 
 during the dependence of the reduction, the claim upon which 
 ground was of the nature of solatiumJ^"" 
 
 ^ See Crawford v. Dickson, 1824, 2 1827, 5 S. 678 ; and Bell v. Henderson, 
 
 S. 667 (N.E. 560), aff. 2 W. and S. 354 ; 1822, 1 S. 353 (N.E. 331) ; 31 & 32 Viot. 
 
 Monro v. M'Kenzie, 1823, 2 S. 593 (N.E. c. 100, sect. 27 ; Maokay's Practice, i. 35. 
 
 508) ; Hunter v. D. Queeusberry's Exr., =" Dalziel v. D. Queensberry's Exr., 
 
394 
 
 management: usual conditions. 
 
 Mkcropping. The measure of the damage done by miscropping, infringement 
 of rotation, and the like, would appear to be the sum required to 
 put the farm into the condition in which it ought to have ^ been 
 
 Mineraiiease. kept or left.^oi Damages having been found due by mineral 
 tenants for retaining possession, on an erroneous view of their 
 contract, after intimation to them by their landlord that he 
 desired to resume possession, as he was entitled to do in virtue of 
 special agreement, it was held : (1st) that a reasonable time to 
 remove had to be allowed them, and {2nd) that the landlord was 
 entitled to be placed in as nearly as possible the same position in 
 regard to profits as he would have been in if there had been no 
 breach of contract. So that the profits which resulted, or might 
 fairly be held to have resulted, from the tenant's operations 
 during the period of wrongful possession and the loss of an expected 
 increment of lordship under a new lease were both to be taken 
 into consideration ; and allowance had to be made for tear and 
 wear, for interest on cost of machinery, estimated generally, not 
 precisely ; but not depreciation in its market value. ^"^ 
 
 2. Summary Application for Inspection. Miscellaneous 
 Remedies. 
 
 Inspection. It has already been shown that in order to preserve evidence 
 
 of the state of repair of houses and fences, ^"^ or in order to found 
 an application for damages, a summary application for an 
 inspection by a man of skill is competent. The same is true 
 where land let is being miscropped or otherwise mismanaged. 
 The reporter is ordered to advise as to the mode of restoring the 
 land into proper condition ; and the landlord obtains, if necessary, 
 authority to enter and cultivate at the tenant's cost.^"* Thus, 
 where a tenant had by the middle of April made no preparation 
 for laying down the crop, a report was ordered, and the owner 
 was thereafter authorised to cultivate according to the recommend- 
 ations therein contained.^"^ But the application must be made 
 timeously. Therefore, where six months elapsed after the tenant 
 had (between terms) ceded possession before an application was 
 made for an inspection of the turnip fields, with regard to their 
 being insufficiently cleaned and weeded, the delay was fatal.^"^ 
 
 1825, 4 Mur. 10, 25. The damage must 
 be direct, not consequential — Roberts 
 V. E. Rosebery, 1825, 4 Mur. 1. 
 
 2»i Fraser v. Maodonald, 1834, 12 S. 
 684. 
 
 *" Houldsworth v. Brand's Tra., 1877, 
 4 R. 369. As to loss of profits see 
 Douglas V. Walker, 1825, 3 S. 534' (N.E. 
 
 370) ; Watson v. Kidston & Co., 1839, 1 
 D. 1254. 
 
 2»2 Supra, p. 226, and esp. Gordon's 
 Trs. V. Melrose, 1870, 8 M. 906, and 
 cases there. 
 
 =»* Lees, Styles, 183. 
 
 2°5 Brocki). Buchanan, 1851, 13 D. 1069 
 
 2°^ Baird v. Mount, 1874, 1 R. 1119. 
 
SXTMMAET REMEDIES. 395 
 
 As a part of such summary applications, there may be a claim for 
 damages.^" It is dependent on the rest of the petition, and 
 stands or falls with it.^"^ 
 
 There is no noticeable peculiarity in the use of interdict or interdict, 
 suspension and interdict, as a preventive remedy in case of 
 threatened or continuing infringements of a lease.-"* 
 
 Where a litigation is in dependence as to a tenant's title, an interim 
 interim manager may be appointed.^!" If the dispute be as to '""■°*g«''- 
 management, an inspection and interim order to repair, &c., Repair. 
 are granted, as where an action of declarator was in Court 
 to determine the obligations of the tenants regarding the 
 maintenance of levels, and the levels were going out of order 
 and were in danger of being destroyed and of injuring the 
 mines.^^^ Liability to repair the consequences of a breach of a caution. 
 condition in a lease may likewise be enforced by an order to find 
 caution.-^^ The question how far summary diligence is competent 
 has been already considered.^^^ Rescission of the contract is a Rescission, 
 competent remedy, where the breach is persisted in notwith- 
 standing complaint and the contravener maintains his right and 
 intimates his intention so to persist. ^^* Remedies by way of irritancy, 
 irritancy are deferred to that part of this work which deals with 
 the termination of a lease. ^^^ 
 
 3. Interest; Penalty ; and additional Rent. 
 
 It is the usual if not universal practice to insert before the clause of 
 registration clause of a formal lease a clause of implement or ™piement. 
 mutual performance ^^® in these terms : ' And both parties bind 
 ' and oblige themselves and their respective foresaids to imple- 
 ' ment and fulfil their respective parts of the premises to each 
 ' other under the penalty of £ sterUng, to be paid by the 
 
 ' party failing to the party performing or willing to perform, over 
 ' and above performance.' ^^' Rent is usually stipulated to be 
 paid ' with a fifth part more of each term's payment of liquidate 
 ' penalty in case of failure in the punctual payment thereof and Penalty. 
 
 2»^ A.S., loth July 1839, sect. 138; ™ -SMpra, p. 316 ; Hendry t;. MarshaU, 
 
 Fraser v. Macdonald, 1834, 12 S. 684 ; 1878, 5 E. 687. 
 
 HaU V. M'Gin, 1847, 9 D. 1557. ''^* Davie v. Stark, 1876, 3 R. 1114. 
 
 ="8 Baird, supra, ^. -'is Chap. xx. 
 
 ™ See Fraser v. Macdonald, supra, ^^^ In aid of the common law obliga- 
 
 ^''. tion incumbent on both parties, if the 
 
 ^0 Affleck V. Affleck, 1862, 24 D. 291. contract be complete ; see Sproul ■„. 
 
 ^ii E. Hopetonn r. Borron, 1859, 21 D. Wilson, 1809, Hume 920 ; Thomson ti. 
 
 218 (expenses reserved to abide event). Fowler, 1869, 21 D. 453. 
 
 ^^ Strachan ii. Nichol, 1828, 7 S. 20 217 Leases in Jur. Styles, i. 579 et 
 
 (though granted of consent, the rule seq. 
 seems general). 
 
396 
 
 MANAGEMENT : USUAL CONDITIONS. 
 
 Interest on 
 
 improvement 
 
 outlay. 
 
 Annual 
 penalty or 
 additional 
 (pactional) 
 rent. 
 
 ' the interest of each termly payment at the rate of 6 per centum 
 ' per annum, from the respective terms of payment during the 
 ' not payment.' ^^* Further, interest is usually stipulated for on 
 money laid out on improvements, by binding the tenant (besides 
 performing the carriages) to 'pay interest on the sums so ex- 
 ' pended at the rate of 5 per centum per annum from the time 
 ' when the same shall have been expended during the currency 
 ' of this lease.' "^^ Lastly, it is usual to append to special con- 
 ditions or regulations relating to management, a clause such as 
 this : ' And the tenant binds himself and his foresaids in case he 
 ' or they shall act contrary to, or fail to fulfil, any of the pre- 
 ' ceding obligations, to pay to the proprietor £ of additional 
 
 ' rent [or, under the penalty of £ ] yearly for each and every 
 
 ' acre that shall be cultivated or treated in a different manner 
 ' from the plan of management above described.' If tbe sum so 
 stipulated for be called ' additional rent,' the addendum is some- 
 times appended: 'which additional rent shall not be held a penal 
 ' liability but a pactional rent.' And in every case the sum is 
 made payable ' over and above and along with the rent in the 
 ' year or years in which such deviation shall take place.' ^^^ This 
 last sort of penalty (or additional rent) is in practice confined to 
 agricultural leases. ^^^ 
 
 ((x) Interest. 
 
 Whether in default of payment of rent or of the performance 
 of any other continuing pecuniary obligation interest be due ex 
 lege, and, if due, whether from the date of default or of demand 
 has not been expressly determined. The rule is that interest ' is 
 ' not due sine pacto, but may be made good by the Lords, their 
 ' modification of damages and expenses ; ' ^^^ and among the many 
 exceptions noticed by our writers,^^^ in which interest is due ex 
 lege from the date at which the debt becomes due, no mention 
 is made of arrears of rents. There is also the analogy of feu- 
 duties and ground-annuals. The understanding of the profession 
 has been in conformity with this omission. ^^* And there is some 
 support for this understanding in a decision which was special 
 in this respect, that the rent was payable not in money but in 
 
 218 Ibid., pp. 576 et seq. 
 
 213 Ibid., pp. 577, 585 et seq. 
 
 ™ Ibid., pp. 678 et seq. 
 
 221 Additional rent is sometimes re- 
 served in mineral leases where additional 
 facilities (access to and by railway, &c.,) 
 accrue during a lease ; but that is a dif- 
 ferent sort of stipulation. See ibid., pp. 
 
 644, 645. 
 
 222 St. 1.13.10. 
 
 22' Bankt. 1.21.6-9 ; Ersk. 3.3.77-80, 
 82 ; 2 B.C. 647-9 ; B. Pr. 32. 
 
 22^ Arg. in Dawson v. Pringle, 1802, 
 M. App. Annualrent, 6 ; L. Glenlee in 
 L. Dundas v. Moncrieff, 24th Nov. 1835, 
 F.C. p. 42. 
 
INTEREST DUE. 397 
 
 kind.^^^ It has never been decided whether interest runs from 
 the date of a formal extrajudicial demand or from the date of 
 citation in an action or of a charge for payment. The latter is 
 probably the sounder view looking to the analogy of interest on 
 feu-duties.^^^ If — as ought always to be the case — interest on 
 arrears is stipulated for and a dispute arises as to the amount of 
 rent payable at any time, the tenant ought to consign the amount 
 demanded or pay it to account ; for, if not, the existence of a 
 dispute will not prevent interest from running on.^^'^ But 
 the landlord may be barred from demanding interest (though 
 stipulated for) by conforming to a practice in the district of post- 
 poning actual receipt or by irregularities in the time and mode 
 of settling accounts.^^* 
 
 (6) Additional {Pactional) Rent and Penalty.^^^ 
 
 Additional or pactional rent is the form of liquidated damages Discrimin- 
 wbich is usually adopted in leases. ^^^ The cardinal difference '^ 
 between these two modes of enforcing covenants is that a penalty 
 may be modified by the Court so as to be equivalent to the 
 actual damage done through breach, and no more ; ^^^ while 
 liquidated damages are not subject to modification, being the 
 precise liability which the parties themselves have agreed on as 
 following on the adoption of a particular course ^^^ — ' the conven- 
 ' tional value of the different use and possession which the tenant 
 ' may derive from the farm.' ^^ It is not rent in the only proper 
 sense, since it does not infer a right on the part of the deviater 
 to set up or continue deviations, unless there be an express condi- 
 tion to that effect — the lease containing a licence to deviate on 
 terms.^^* In other words, it is not as a rule optional to the 
 tenant to deviate from regulations on paying the pactional rent, 
 which to this extent resembles a penalty. So that it is competent 
 to obtain an interdict against further deviations while exacting 
 the pactional rent for the past.^^' Thus in a case, not of a farm 
 
 ^ Dundas *. Moncrieff, supra, '"*. 1874, 2 R 101. 
 
 226 Of. More's Notes, 78, with Ms. 231 gt. 1.10.14 ; Kames, Equity, 352. 
 
 Tweeddale v. Aytoun, 1842, 4 D. 862. 232 gteen, 1637, M. 8401, 10037 ; John- 
 
 22^ Graham v. Moir, 1821, 1 S. 16 ston v. Forbes, 1639, M. 10037,— taking 
 
 (N.E. 14). the place of damages and caution, Bankt. 
 
 228 M'Leod V. M'Leod, 1799, Hume 800. 2.9.21. 
 
 22« St. 1.10.14 ; Kames, Equity, 352 ; 233 3 pp ^221 ; and see Ivory's Note 
 
 B. Pr. 34, 149, 1221 ; 1 B.C. 655 ; 1 BeU, to Ersk. 2.6.39 ; Brodie's Note (4) to St. 
 
 Leases, 253, note ; 1 Bell, Convg. 254. 2.9.43. 
 
 The English cases (collected in Woodfall, 234 gtration v. Graham, 1789, 3 Pat. 119. 
 
 390) agree in the main with the Scotch, 235 M'Kenzie v. Craigies, 18th June 
 
 and are very instructive. 1811, E.G. 304, aff. 6 Pat. 117 ; M'Kenzie 
 
 22° Per L. GifEord in Baird v. Mount, v. Gilchrist, 13th Deo. 1811, F.C. 419 ; cf. 
 
398 management; usual conditions. 
 
 (as is usual), but of a building-stance, a prohibition against 
 keeping a public-house or selling liquor on the ground without 
 a special yearly licence from the landlord, ' otherways to pay £10 
 ' sterling of additional rent for each time they (the tenants) 
 ' shall be found guilty,' was held to be an absolute prohibi- 
 tion, and the tenants were not entitled to the option of con- 
 travening it on paying the additional rent.^^* 
 Pactional The rule that a pactional rent will not be modified is well 
 
 modified. settled. Wherever the tenant has not an express option, inter- 
 dict against contravention of regulations (if threatened) will be 
 granted; and additional rent for past deviations, and interdict 
 against future deviations will be decerned for. Thus,' where £5 
 of additional rent was payable for each acre mislaboured contrary 
 to the terms of the lease, the tenant was held liable for £75 for 
 having fifteen acres less of green crop in the last year than he 
 ought to have had.^^' Similar results followed in a case of over- 
 ploughing,^^* and in later cases of miscropping.^^^ The actual 
 annual value of the land mismanaged or the damage actually done 
 through mismanagement cannot be relevantly put in evidence.^*" 
 A smaller sum per acre is sometimes named as additional rent in 
 the earlier, and a larger sum in the closing years of the lease ; ^^^ 
 or the additional rent may only be stipulated for in regard to the 
 closing years,^*^ or only as to part (the arable part) of the land.^*^ 
 Where (as is common) additional rent was declared not to be 
 penal but pactional, and the lessee had deviated not only from 
 the sett prescribed in the lease, but also from another substituted 
 in conformity with his own suggestions, full additional rent was 
 found due by him, since all the other conditions remained un- 
 altered and equally applicable to the new rotation.^** If, on the 
 other hand, the new rotation involves what would otherwise have 
 been a contravention of regulations, the landlord must be held as 
 consenting to this as a necessary part of the new system.^*^ The 
 
 Cross V. Muirhead, 1813, Hume 860; ^41 Lawson t>. Ogilvie, 1832, 10 S. 531, 
 
 Campbell v. M'Laurin, 1814, Hume 864. aff. 7 W. and S. 397. 
 
 ™ Gold V. Houldsworth, 1870, 8 M. 242 UiWer ^. l. Gwydir, 1824, 3 S. 65 
 
 1006 ; see a very special case of altera- (N.E. 42), aff. 2 W. and S. 52 ; see inter- 
 
 tion in the ish — Gillanders v. Craig, 1866, pretation of an ambiguous clause of this 
 
 19 D. 116. sort— Suttie v. Somner, 1828, 6 S. 1122. 
 
 -^ Little V. Mutter, 1797, Hume 797, ^ Thrieplaud v. Muuro, 1861, 23 D. 
 
 and M. in note to Maxwell, infra, ™ 1252 (land under cultivation). 
 
 ^^ Pollock V. Paton, 1777, M. App. =44 Morrison v. Blair, 1823, 2 S. 241 
 
 Tack, 4, Hailes 766, 5 B.S. 517. (N.E. 212). 
 
 =®* Stration v. Graham, supra, ^ ; ^45 Taylor v. Duff's Trs., 1869, 7 M. 
 
 Henderson v. Maxwell, 1802, M. 10054. 351, infra, 2=2 ; per L.P. Inglis in Lamb 
 
 2» IbiJ. V. Mitchell's Trs., 1883, 10 R. 640, 645. 
 
PACTIONAL RENT. 399 
 
 additional rent has no relation to anything which has been done 
 in pursuance of a permission or licence not contained in the 
 lease, however wrongful. Thus liability for additional rent was 
 not, though liability for damages was, incurred by an incoming 
 tenant, who, having got access to the farm before entry to sow 
 grass seeds, sowed seeds other than those prescribed. ^*^ 
 
 The consequences of the enforcement of a stringent obligation Abandonment 
 to pay pactional rent — far beyond, it may be, the actual damage ^)ien™o7 
 done — may be so penal, that the Court is not slow to give effect inferred? 
 to a plea of consent or abandonment, when sufficiently made out. 
 It was not sufficiently made out where the only fact on which 
 it was founded was that by an agreement which did not expressly 
 continue the conditions, land was taken from the farm. The 
 conditions were quite applicable to the diminished holding. ^*'^ 
 Nor is the landlord's consent presumed or dispensed with where 
 the deviation is not wilful, but is occasioned by an accidental 
 failure of part of a crop.^*^ 
 
 On the other hand, abandonment of the claim has been when in- 
 gathered from acceptance or discharge of rent without reservation '^"■*<^' 
 of the claim ; and by circumstances inferring acquiescence in the 
 deviations. To the former category belong two cases. In the Discharge of 
 earlier of the two, there were certain cropping regulations, with- "° " 
 out a prescribed rotation ; and a certain acreage had to be left 
 in grass (partly of a particular growth) at ish. In the event of 
 contravention an additional rent of £5 an acre was exigible, nothing 
 being said of the time of payment. The ordinary rents were 
 annually paid and discharged by entries in a pass-book, without 
 reservation, except in the last year of the lease when a discharge 
 of rent reserved all claim for miscropping during the lease. The 
 action was for additional rent on account of miscropping in various 
 years and for lack of grass. It was held, as to the first claim, 
 that for those years in which there was a settlement of rent with- 
 out reservation, the landlord was barred by implied discharge 
 but no further; and, as to the second claim, that the £5 per 
 acre covered every deficiency both in the quantity of the grass 
 land and in the quality of the grass.^^^ In the other case, the 
 rule that a landlord is barred from recovering additional rent 
 stipulated for miscropping, so far as applicable to years, the 
 
 ^ Witham v. White, 1866, 38 So. this portion ploughed up after harvest 
 
 Jur. 586. and sown with barley and grass seeds). 
 
 ^ Hunter v. Caark, 1810, Hume 852. =*> Hunter v. Broadwood, 1854, 16 D. 
 
 ^ Fraser v. Ewart, 25th Feb. 1813, 441. 
 F.C. 223 (grass on 4 J acres out of 6 failed ; 
 
400 management: usual conditions. 
 
 ordinary rent for which has been received and discharged by him 
 without any reservation, was enforced where there was express 
 provision for payment of the additional rent along with the 
 ordinary rent, although there was another stipulation that nothing 
 should liberate the tenant from liability for the additional rent 
 except the written consent of the landlord to departure from the 
 rotation. ^^^ 
 Acquiescence. Kunning parallel to the cases which have already been cited ^^^ 
 to show the operation and the effect of acquiescence in depriving 
 the landlord of his ordinary claim to damages for mismanagement 
 are certain decisions in which the same equitable principle has been 
 brought to bear on demands for pactional rent. A lease referred 
 to regulations of older date in which a seven-shift rotation was 
 prescribed, with relative pactional rent of £10 per Scotch acre 
 in case of miscropping. The lease itself prescribed a six-shift 
 course ; and the tenant several years before the ish changed it 
 to a five-shift. This was done with the landlord's full assent 
 verbally conveyed, and there was ample proof of acquiescence 
 and rei interventus. It was held that the claim for pactional 
 rent on the footing of a six-shift was barred, even if, as was 
 doubtful, it could be read into the lease from regulations applic- 
 able to a different sett.^^^ Similarly, a lease prescribed a six 
 and a seven-shift rotation respectively for different portions of 
 the subject let, with a pactional rent for each acre miscropped. 
 An alteration in the cropping took place early in the currency, 
 and was continued in the knowledge of the landlord and his 
 factor and without serious objection or attempt at restoration. 
 There was admittedly no right to pactional rent except for the last 
 year, since the rents had been paid and discharges granted with- 
 out reservation until that time. It was held that there was also 
 no claim for the last year, since there had been acquiescence in a 
 state of things which it would have taken six years and not one 
 year only to recall. Mere acquiescence was here equivalent to the 
 verbal assent and acquiescence of the foregoing cases. ^^^ In 
 contrast to them must be read a decision of the House of Lords 
 similar in principle though different in result. One mode of 
 management was prescribed for the first sixteen years of a lease, 
 another mode, enforceable by a pactional rent, for the remaining 
 three. The rotation usual on the same estate was substituted 
 
 25» Eaird v. Mount, 1874, 2 R. 101 ; -'32 Taylor r. Duff's Trs., 1869, 7 M. 
 
 and see Lamb u. Mitchell's Tia., infra, 351. 
 
 '^^- ^^ Lamb v. MitohpU's Trs., 1883 10 
 
 251 Supra, p. 390. R. 640. 
 
PENALTY. 401 
 
 by the tenant with the landlord's acquiescence during the earlier 
 years, and for the first of the three last. The rents of all these 
 years was paid and discharged simpliciier, and the farm was 
 in good order at ish. No claim for pactional rent was made till 
 the last year. The tenant was held to be liable therefor in 
 respect of contravention during the two last years, and the 
 necessity for earlier notice in regard to what was really a new 
 contract was expressly repudiated.^** 
 
 Additional rent payable as a condition of a licence to alter the Kemedics. 
 mode of management -^* is undoubtedly rent, and payment may 
 be enforced by means of all the remedies competent for the 
 exaction of rent. If in other cases pactional rent is nothing 
 more than liquidated damages, as has been submitted above,^^^ 
 the remedies specially appropriated for that purpose would be in- 
 applicable. The interest — a waning one — of the question lies in 
 the point whether it may be exacted by means of sequestration 
 on hypothec. The afiirmative has been determined on what 
 seems to be inconclusive reasoning ; ^''' but the question has been 
 subsequently treated as an open one.^*^ 
 
 Where the compulsitor is not pactional rent, but penalty, a Penalty, 
 different set of rules comes into operation. The two agree in 
 this that they are both prestable ' over and above performance,' 
 whether that familiar phrase be used or not,^*^ and that in both 
 cases, it is enough for the pursuer to point to the lease and the 
 contravention without alleging damage.^®" But they differ in 
 this, that if a penalty exceeds the amount of the damage actually 
 caused by non-payment, non-implement, or mismanagement, it is 
 not exigible in full, but will be equitably modified, so as to cover 
 the actual damage only.^^^ This rule has been enforced, where 
 the penalty was due in case of possession not being given, under 
 a lease. ^^^ It includes the expenses incurred in obtaining imple- 
 ment, as for example in executing diligence; but where litiga- 
 tion is resorted to the expenses must be dealt with by the 
 
 ^ Miller V. L. Gwydir, 1824, 3 S. 65 St. 1.17.20 ; Ersk. 3.3.86. 
 
 (N.E. 42), aff. 2 W. and S. 52. ^ See Craig v. M'Beath, 1863, 1 M. 
 
 ^ Stration v. Graham, su^ra, ^^. 1020. 
 
 =56 Supra, p. 397. =6' St. 1.10.T4 ; Karnes, Equity, 352 ; 
 
 ^' Robertson r. Clark, 1842, 4 D. 1317 B. Pr. 34, 149, 1221 ; 1 B.C. 655 ; 1 Bell, 
 
 (declared not penal ; payable with the Cnnvg. 254. 
 
 rent). 26-2 Veitoh v. Paterson, 1664, M. 11383 ; 
 
 ^ Witham V. White, 1866, 38 So. .lur. see Wright v. .M'Gregor, 1826, 4 S. 434 
 
 686. (N. t;. 440), and other cases not connected 
 
 25' Broomfield v. Young, 1753, M. with leases in 1 B.C. 656, and B. Pr. 
 
 9446 ; Beattie r. Lambie, 1695, M. 10039 ; 34. 
 
 2C 
 
402 MANAGEMENT : USUAL CONDITIONS. 
 
 Court. 2«5 The onus lies on the contravener of proving the 
 necessity for and amount of modification.^^* 
 Rules for dis- Much difficulty has arisen in determining whether the exaction 
 bet^eTn'these Stipulated for in any particular case is liquidated damages or 
 compulsitors, penalty, an absolute or a modifiable claim. It is certain that the 
 mere use of these terms in any particular case is not conclusive 
 of the nature of the right or obligation. ^^^ Thus what was really 
 pactional rent has been called penalty f^ and vice versa.^^'' It 
 is a question of intention. ^^^ The fairness or exorbitancy of the 
 demand is regarded as a legitimate element in the determination 
 of the question : so much so that the distinction between liqui- 
 dated damages and penalty seems to have disappeared in our most 
 recent cases, or to have been reduced to this, that a penalty will 
 in no case be respected as the measure of damage, while liquidated 
 damages will in every case be so treated, unless there be prvmd 
 facie evidence of gross and unconscionable discrepancy between 
 the claim and the actual damage.^^^ No such case of oppression 
 has arisen or is likely to arise where the liquidated damages take 
 the form of pactional rent. A rule which solves most of the 
 difficulties that have arisen has been thus formulated : ' When a 
 ' single slump sum is made payable by way of compensation on 
 ' the occurrence of one or more or all of several events, some of 
 ' which may occasion serious, and others but trifling damage, the 
 ' presumption is that the parties intended the sum to be penal 
 ' and subject to modification. The payments stipulated in ' the 
 agreement in question [at the rate of £100 per imperial acre for 
 ground not levelled and soiled over by a certain date after being 
 covered with slag heaps] ' are not of that character : they are 
 ' made proportionate to the extent to which the respondent com- 
 ' pany may fail to implement their obligation, and they are to bear 
 ' interest from the date of the fail u re. '^'^^ 
 4. Arbitration. 
 
 In formal leases of agricultural subjects and minerals, an arbi- 
 tration clause is almost invariably to be found. In the former 
 case, it is mainly of use at ish ; in the latter case it is not only 
 
 263 See 1 B.C. 657 and oases there. =68 gee Dimioh v. Coriett, 12 Moo. 
 
 2" See Craig v. M'Beath, supra, ^. P.C.C. 199, 229. 
 
 265 Johnston V. Robertson, 1861, 23 T). ^69 gee Forrest & Barr, supra, ^, 
 
 646 ; Elphinstonei-.Monkland Co.,1886, Robertson v. Driver's Trs., 1881, 8 R. 
 
 13 R. (H.L.) 98, 11 App. Cas. 332. 555. 
 
 268 Henderson „. Maxwell, 1802, M. 270 p^^ l_ Watson in Elphinstone, 
 
 10054 ; see Craig ». M'Beath, supra, ™. supra, ^^, at 13 R. (H.L.) 106, 11 App. 
 
 2"' See Forrest & Barr v. Henderson, Cas. 342 ; and see English cases cited. 
 1869, 8 M. 1S7, 
 
ARBITRATION. 403 
 
 of value then but practically indispensable during the currency, 
 in order to obviate delay in the working pending the settlement 
 of disputes which are more rapidly and efficiently disposed of by 
 a reference to men of skill than by resort to the ordinary 
 tribunals. ^^^ 
 
 The clause, in the case of an agricultural lease, embodies in agiioultural 
 usually nothing more than a mode of ascertaining the values of 
 such dung, straw, or waygoing crop as the tenant would, at 
 common law or by special stipulation, be entitled to take with him 
 at removal, were it not that the landlord reserves right at his 
 option, or binds himself, to take it over at a valuation.^'^^ Fre- 
 quently also the damages caused by deviations from rules of 
 cropping; the cost of labour on the fallow break, and of grass 
 seeds, or of harrowing and rolling them in ; and the annual value 
 of land abstracted or damaged in pursuance of the landlord's 
 reserved powers are similarly ascertained.^"^ The usual mode of 
 providing for such a reference is by tacking to the clause which 
 introduces a value to be ascertained such words as these : ' As such 
 ' values [damages, &c.J shall be ascertained by two arbiters, one 
 ' to be chosen by each party, or by an oversman, to be named by 
 ' the said arbiters before entering on the reference in case of their 
 ' differing in opinion,' and in subsequent clauses referring to this 
 mode ' as aforesaid.' Or a separate clause may be introduced, 
 providing for devolution to an oversman, for finality of the award, 
 and for the event of a failure to name an arbiter or oversman.^'* 
 
 The function of arbiters under mineral leases is usually much Inmioeral 
 more comprehensive. Besides special and limited duties in 
 relation to the ascertainment of surface damages ; of the value of 
 machinery or buildings to be left behind at removing; of the cost 
 of restoring the surface and fences in statum quo; and in relation to 
 discrepancies between the books kept by the tenant and landlord 
 respectively,^^^ arbiters are entrusted with very extensive powers, 
 with the view of extricating the rights and obligations of the 
 parties under the working clauses of the lease. These clauses are 
 often very complicated and technical ; ^''^ they require immediate 
 elucidation ; and the work is best done if put into the hands of an 
 expert in mining or engineering. Tlie special clauses are similar to 
 
 -^ As to the advantages of Fuch clauses "'^ 1 Jur. Styles, 578, 580, 688, 594, 
 
 see Pearson, infra, -^\ per L.P. M'Ntill, 595, 602, 603. 
 
 21 D. 424 ; Chapman v. Edinbnrgh Prison -'" Ibid. 578, 580, 583, 5S7, 597, 602. 
 
 Board, 1844, 6 D. 3288, ;.CT- L. funnirg- -''^ See ibid. :.95 ; by ai'plicatim to 
 
 hame; Shanks' Exrs. v. Aberdeen Ky. Co., the Jndjje Ordinary. 
 1850, 12 D. 787, per L. Mackenzie (1) -''5 Ibid. 611, 618, 637, 667. 
 
 The two last were contractor^' cases. ^^ Ibid. 621, 652, 658, 676, 680, 682. 
 
404 
 
 MANAGEMENT : USUAL CONDITIONS. 
 
 Ancillary to 
 the lease 
 during its 
 currency. 
 
 those which occur in agricultural leases. Of the general clauses 
 the following may be taken as a specimen : — ' For the various 
 ' purposes before mentioned, in regard to which the appointment 
 ' of a practical arbiter is contemplated for deciding any questions 
 ' arising as to the working of the minerals hereby let or as to 
 ' the interpretation or fulfilment of any condition or obligation in 
 ' this lease or any other matter arising out of the non-fulfilment 
 ' thereof, the parties mutually appoint , whom failing, by death, 
 ' declinature, or inability to act, or otherwise , whom failing 
 
 ' as aforesaid, such person as shall be nominated on the applica- 
 ' tion of both or either of the parties hereto by .'^^' 
 
 It is, of course, out of the question to attempt here a sketch 
 of the law of arbitration. It is only with a sense of misgiving, 
 owing to the necessary inadequacy of the treatment here pos- 
 sible, that the temptation is resisted to refer the reader once and 
 for all to the proper sources of instruction.^"^ It is conceivable, 
 though not probable, that some benefit may be derived from 
 observing what the law of arbitration owes to the law of landlord 
 and tenant. ^^^ 
 
 These agreements to refer disputes which may arise, and these 
 clauses of arbitration or submission are regarded as ancillary to 
 the principal contract ; coeval with it ; ^^^ not evacuated by the 
 death of either party ; ^^^ necessary to the extrication of the 
 lease ; ^^^ and latent till they are called into operation by the 
 emergence of the situation contemplated. Being purely execu- 
 torial, they will not be construed as extending beyond the ish of 
 the lease f^^ unless it plainly appears that they are intended to 
 apply to the mode of removing thereafter. ^^* Therefore, a claim 
 raised subsequently to a removing for damages said to have been 
 caused by contraventions of the lease during its currency, was 
 determined to be beyond the scope of an ordinary arbitration 
 
 «"■ Ibid. 621. 
 
 278 St. 4.2.18, 4..3.I ; Ersk. 1.2.2 ; Menzies, 
 Conv. 393 ; 1 Bell, Conv. 364 ; Mora's 
 Notes, 43, 55 ; and especially Bell on 
 Arbitration (2nd ed.) ; to which add 
 cases collected in Digest 1877-85, s.v. 
 Arbitration. 
 
 ^' See cases of joint - tenants. Mac- 
 kintosh V. Kobertson, 1834, 12 S. 321 ; 
 and of arbiter being disqualified by ac- 
 quiring an interest, Tennent v. Mac- 
 donald, 16th June 1836, F.C. 818, 14 
 S. 976. 
 
 2™ Montgomerie .. Carrick, 1849, 12 
 
 D. 274 (mineral lease) ; Pearson, infra, ^82; 
 per L. Ivory ; see Watmore v. Burns, 
 1839, 1 D. 743 (judicial reference). 
 
 ^1 See E. Selkirk „. Naismith, 1778, 
 M. 627, Hailes 780 (sale); Orrell v. 
 Orrell, 1859, 21 D. 554 (oopa,rtnery). 
 
 ^8'^ Per L. FuUerton in Montgomerie, 
 supra, 280 ; and in Hendry's Trs., infra, 
 ^■, Pearson v. Oswald, 1859, 21 D. 
 419. 
 
 -^ Pearson, supra, ^^, per L.P. 
 M'Neill. 
 
 ^^ Ibid, per L. Ivory. 
 
ARBITEATION. 405 
 
 clause,285 though a similar claim made during the currency might 
 have been deemed to affect the executing of the lease, and therefore 
 to be intra vires.^^^ The clauses are not evacuated or exhausted When 
 till a valid award has been made ; otherwise a condition of the *^ * 
 contract would remain unfulfilled though part and parcel of the 
 whole and never surrendered.^*'^ It would appear that if there 
 be no provision for the appointment of an oversman, the Court 
 cannot supply the defect.^** It may be a question, whether and 
 after what interval either party may demand a reference of 
 new ; or whether the Court would at once order an inquiry after 
 its own methods. 2*^ 
 
 The rule that a submission is invalid which does not name the Arbiter 
 arbiter or arbiters appointed, has no application to these ancillary 
 references, where they relate to disputes (in the proper sense 
 of the word) which are foreseen as probable or possible in the 
 course or at the termination of the lease in regard to special 
 matters, or where they relate merely to the adjustment of a 
 condition or the liquidation of an obligation.^^" Of this nature 
 are the purchase (at entry) and sale (at ish) of machinery ; ^'^ 
 indemnification for surface damages ; ^'^ indemnification for loss 
 to a tenant through resumption of the subjects by the landlord ; ^^^ 
 exhaustion of minerals ;^^* taking over stock or crop, or other 
 subjects on a farm at a valuation ; ^^^ loss of water-power ; ^^^ 
 augmentation of rent after a break ; ^^ and ascertainment of rent.^** 
 But the general rule obtains where the clause of reference, though 
 ancillary to the principal contract, is more general, as for example 
 
 285 Pearson, supra, '^\ Houldsworth v. Brand's Trs., 1876, 4 K. 
 
 28^ Montgomerie v. Carrick, supra, ^s" 369. 
 
 (turned on homologation). In other ^92 Ibid, 
 
 departments of the law, the following ^93 Smith, supra, ^'. 
 
 cases may be consulted : — Alexander's ^94 Dixon, supra, ^87 ; Cochrane t-. 
 
 Trs. V. Dymock's Trs., 1883, 10 R. 1189 Guthrie, 1859, 21 D. 369 ; Merry v. 
 
 (extricating state of accounts) ; Kirkwood Brown, 1859, 21 D. 1337, aff. 1 M. (H.L.) 
 
 V. Morrison, 1877, 5 R 79, and Beattie 14. The referees may proceed by inspec- 
 
 V. Macgregor, 1883, 10 R. 1094 (con- tion or taking evidence or both — Coch- 
 
 tract or execution of the work) ; Ramsay rane ; and cf. Rankin v. Marshall, 1860, 
 
 V. Strain, 1884, 11 R. 527 (surface 22 D, 351. 
 
 damages). ^'^ Munro v. Mackenzie, 1823, 2 S. 
 
 287 Dixon V. Campbell, 1830, 8 S. 970 ; 593 (N.E. 508)— stock; Nivison «. Howat, 
 Smith V. Wharton, 1843, 5 D. 749. 1883, 11 R. 182 ; Gibson's Trs. v. Fraser, 
 
 288 Dixon, supra, ^ ; Merry v. Brown, 1877, 4 R. 1001 (crop) ; Sinclair w. Fraser, 
 1860, 22 D. 1148 ; see 1 M. (H.L.) 14. 1884, 1] R. 1139 (labour, grass, pipes). 
 
 289 Cf. the two last cases. 296 Campbell v. Shaw's Water Co., 
 23" Hendry's Trs. v. Renton, 1851, 1864, 2 M. 1130. 
 
 13 D. 1001, esp. per L. Fullerton, p. ^97 Wallace «. Tacksman, 1715, 5 B.S. 7. 
 
 1007. '-^^ Robertson t'. Boyd, 1885, 12 R. 
 
 291 Wilson r. Douglas, 1868, 7 M. 11^; 419. 
 
406 
 
 MANAGEMENT : USUAL CONDITIONS. 
 
 Scope of 
 reference. 
 
 Procedure. 
 
 where it governs the whole working of minerals let ; ^^ or 
 authorises the arbiters to determine the ' true intent and mean- 
 ' ing ' of the stipulations of the lease i^"" or where the points 
 submitted to the arbiters involve such mixed questions of law 
 and fact as the existence and effect of mora, homologation, or tacit 
 relocation. ^"^ 
 
 The question of the necessity of naming arbiters, and the 
 further question whether the arbiters have or have not strayed 
 ultra fines compromissi depend entirely on the terms used in 
 each particular lease. Some guidance may be obtained from a 
 collation of the clauses which have been subjected to the scrutiny 
 of the Court in the cases cited and in other cases to be found in 
 the books. The Court attempts to discover the intention of 
 the parties from a consideration of the whole of the principal 
 contract, general words being construed in view of the special 
 stipulations thereof, and in view of the special advantages to be 
 obtained from recourse to men of skill rather than to the 
 ordinary tribunals. ^"^ 
 
 Where the aim of a reference is simply the ascertainment of 
 values, considerable laxity of procedure is allowable, provided the 
 valuation is set about fairly.^"^ Thus, where a third party 
 (called an oversman) was called in on account of a difference 
 of opinion between the referees in valuing a waygoing crop, and 
 he without specially applying his mind to the points on which 
 they had agreed, adopted their conclusions thereanent, and settled 
 the points left open, the award was held to be unassailable.^"* 
 It seems doubtful whether in such a case a devolution to the 
 oversman should be preferred to an order to take evidence, where 
 the referees have agreed in most points, but have failed to agree 
 as to some matter as to which one of them has no knowledge or 
 
 -'^ Hendry's Trs., supra, ''■"'. 
 
 ^"^ Pearson v. Oswald, supra, ^- ; Hen- 
 dry's Trs., su^ra, ^^ ; and see contractors' 
 cases in (Jreenock Par. Board v. Coghill 
 & Son, 1878, 5 R. 732 ; Levy v. Thous- 
 sons, 1883, 10 R. 1134 ; and a railway 
 lease case, Caledonian Ry. v. Greenock, 
 &c., Ry., 1872, 10 M. 892, a£E. 1 R. (H.L.) 
 8. 
 
 ^"^ Pearson, supra, ^"^ (meaning and 
 execution) and in other departments — 
 Howden k Co. v. Dobie & Co., 1882, 9 R. 
 758 ; Ramsay v. Strain, supra, -™. 
 
 ^"^ See esp. the oases of Pearson ; 
 Merry ; Alexander's Trs. ; Kirkwood ; 
 IJBittie; Kam^iay; Levy; Greenock Par. 
 
 Board ; Howden & Co. ; and Mungle v. 
 Young, 1872, 10 M. 901. 
 
 303 M'Gregor v. Stevenson, 1847, 9 D. 
 1056. 
 
 "•^ Nivison V. Howat, supra, ^^ This 
 decision runs counter to the law laid down 
 in Frederick v. Maitland, 1865, 3 M. 
 1069 ; which case seems also to err on 
 the side of over-formality in demanding 
 a written devolution where the submis- 
 sion, though formal, was really in extrica- 
 tion uE the lease. But the judgment may 
 be justified on the ground that no decision 
 was ever in fact reached by the mode 
 prescribed. 
 
CONDITIONS REAL AND PEESONAL. 407 
 
 skill.^"* It would appear that the award in such valuations needs 
 not be probative. ^"^ 
 
 G. Real Conditions. 
 
 There is an important distinction between those rights and Conditions 
 obligations of landlord and tenant respectively, which accrue to personal. 
 or bind (as the case may be) on the one hand the owner of the 
 subject let, whoever he may be, and those in his right, whoever 
 they may be, and on the other hand the tenant or those 
 in his right, whatever may be the nature of their title, 
 and those rights and obligations which accrue to or bind 
 (as the case may be) only the lessor and his representatives on 
 the one hand, and the lessee and his representatives on the 
 other. More succinctly stated, the problem for solution is, what 
 rights and obligations transmit in favour of or against singular 
 successors of the landlord^"^ and assignees of the lessee ? or — to 
 adopt the Scotch nomenclature, which is more familiar in the 
 law of feudal than in the law of leasehold tenure — what are and 
 what are not real conditions ? or — to use phraseology of the Eimning -with 
 English law imported into Scotch practice by the dicta of reversion. 
 English lawyers in Scotch appeals, and now in common use — 
 what stipulations or conditions (or covenants) do and what do 
 not run with the reversion or run with the land.^"* The 
 subject has already been noticed in earlier parts of this treatise, 
 in considering the effect of the Act of 1449,^°^ the right to and 
 liability for rent,^^° the law of repair and melioration,^^^ and the 
 rights and obligations of assignees to a lease. ^^^ It will be un- 
 necessary to make any further reference to the rules relating to 
 assignations ; and the cases which illustrate the other topics here 
 referred to will only be used for two purposes, which are alone 
 left for consideration — viz., to set out the general law regarding 
 real conditions in leases, and to explain how that law is observed 
 in dealing with the conditions which have formed the subject of 
 
 ^^ L. Young's dissent in Sinclair v. ^"^ The best repertory of English rules 
 
 Fraser, 1884, 11 R. 1139, is supported by is to be found in the notes to Spencer's 
 
 the First Division in the later case of case, 1 Sm.L.C. 68. See also Woodfall, 
 
 Forbes v. Underwood, 1886, 13 E. 465. 163. The rules which depend on the 
 
 As to homologation of an informal award, presence or absence of the word ' assigns' 
 
 see Robertson v. Boyd, infra, ^*. (so far as they still hold) have no ana- 
 
 ™" Robertson v. Boyd, 1886, 12 E. 419. logue in our law. 
 
 '^ See an abnormal case where in a '™ Supra, p. 130. 
 
 lease the possible sale of the land was ^^° Supra, pp. 281, 313. 
 
 expressly provided for, M'Michan v. ^'' Supra, pp. 226, 233. 
 
 Hutcheson, 1801, 2 Bell, Leases, 101, 4 '^^ Supra, p. 17S. 
 
 Pat 170. 
 
408 
 
 MANAGEMENT : USUAL CONDITIONS. 
 
 Conditions 
 real in the 
 person of the 
 liindlord. 
 
 Implied 
 conditions. 
 Express 
 conditions. 
 
 Inferring 
 obligations on 
 landlord. 
 
 the present chapter. What conditions, then, are capable of 
 transmitting to and against singular successors of a lessor ? 
 
 The rule is thus stated by Lord Ivory (the stipulation in 
 question being an arbitration clause) : — ' The obligation to refer, 
 ' not having reference to any matter merely extrinsic, or which 
 ' can be regarded as in any proper sense foreign to the proper 
 ' object of the lease, but, on the contrary, constituting an express 
 ' condition of the contract and necessary to its extrication, 
 ' according to the modus operandi intended and bargained for 
 ' from the first, it must receive effect as a stipulation essentially 
 ' inseparable from the whole substance of the right.' ^^^ And 
 conditions which are not real are in contradistinction described 
 by Lord Jeffrey in the same case, after a consideration of earlier 
 decisions, as ' stipulations which bear reference to the private 
 ' relation of the contracting parties and do not bear reference to 
 ' the general relation of landlord and tenant.' ^^* The shorter 
 description of these latter stipulations — that they are merely 
 personal and collateral to the subject let^^^ — does nothing towards 
 a further elucidation of the principle. It may be doubted 
 whether the Court is entitled to inquire into the reasonableness 
 of a condition.^^® 
 
 To the class of real conditions belong necessarily all implied 
 conditions; and (of stipulations contrary to the landlord's 
 interests) such express conditions as a landlord's obligation at his 
 tenant's removing to pay the value of enclosures constructed by 
 the tenant and left by him sufificient ; ^^' an obligation to allow 
 a tenant to remove the doors and windows and to reimburse him 
 for the value of the fabric of houses ; ^^^ to pay or allow for 
 meliorations generally ; ^^^ to pay for repairs or for the value 
 of houses erected by the tenant, being sufficient for their 
 purpose and not more than sufficient, though built prior to the 
 purchase ; ^^^ to allow abatement of rent, if binding on the lessor 
 de future ; ^^^ or to give effect to a change in the form of pay- 
 
 ^' In Montgomerie r. Carrick, 1848, 
 10 X>. 1387, 1392. See also per L. Boyle 
 contrasting extrinsic and essential stipu- 
 lations, p. 1395. 
 
 *" 10 D. 1396. 
 
 =15 See Woodfall, 166 ; 1 Sm.L.C. 77, 
 et seq. 
 
 3"= See Stewart v. M'Ra, 1834, 13 S. 4. 
 
 ^^ Arbuthnot v. Golquhoun, 1772, M. 
 10424 ; M'Doual c M'Douall, 1760, M. 
 15259. 
 
 ^^ Bells V. Lament, 14th June 1814, 
 
 F.C. 645. 
 
 3" Stewart v. E. Dunmore's Tr., 1837, 
 15 S. 1059 (provided for specially in the 
 sale) ; Stewart v. M'Ra. supra, ^'^ 
 (heritable creditor). 
 
 320 Fraser v. Maitland, 1824, 2 S. App. 
 37. Rae v. Pinlayson, M. 10211, de- 
 pended on the unusual occurrence of 
 leases in burghs, and probably would not 
 be repeated. 
 
 '21 Riddick v. Wightman ; Grant r. 
 Watt, infra, ''^. 
 
CONDITIONS REAL AND PEBSONAL. 409 
 
 ment of rent.^^^ Of real conditions, which transmit as rights in Conferring 
 favour of the lessor's singular successors, the following may be "s^*' '"' """• 
 cited as illustrations :— right to delivery of mineral in a certain 
 quantity periodically over and above rent or lordship ; ^^^ and 
 right to damages for miscropping^^i ^^ disrepair. ^^^ It seems to 
 be the better opinion that a singular successor is bound by a 
 reference clause in so far and only in so far as it is ancillary to a 
 real condition.^^® 
 
 On a review of these cases in which the present question General rule, 
 actually arose for decision, and looking to the scope of the general 
 rule indicated above, the opinion may be hazarded that, besides 
 the implied and ordinary conditions as to possession, rent, and 
 improvements, all the covenants which have formed the subject 
 of the present chapter transmit for or against singular successors 
 of the landlord as the case may be. If there be no special 
 warrandice, such of them as are burdens on the lessor's right 
 transmit against his singular successors without involving a 
 claim of relief against him.^^' 
 
 Of the conditions which are merely personal to the lessor and Personal 
 his representatives, the typical examples are those abnormal '"""^'*'°"^" 
 stipulations regarding the endurance of a lease and the employ- 
 ment of the rent in payment or security of debt, which, as has 
 akeady been pointed out, carry the whole lease out with the 
 provisions of the Act of 1449.^^* Of the same character, is a 
 stipulation for deduction from rent in consideration of services 
 to be rendered by the tenant to the landlord.^^^ 
 
 The existence of a real condition may be instructed by Real condition 
 the lease itself; by proof of custom ;^^° by supplementary "^""^ p™"'^''- 
 writ in amendment of the lease ; or by proof of a verbal 
 ianovation on the lease, followed by rei interventus.^^^ A 
 .singular successor of the landlord may also be barred from 
 enforcing certain conditions of a lease as they stand by acquiring 
 under circumstances in which due and ample notice of an 
 
 ^ Baillie v. Fraser, 1853, 15 D. 747. ^a Rogg ^. Cs.-Ds. of Sutherland, 1848, 
 
 '^' Walpole V. Beaumont, 1780, M. 16 S. 1179, with which contrast Lundy t'. 
 
 15249. Smith of Lundy, 1610, M. 15166, and see 
 
 '^ Carnegie v. Guthrie, 1866, 5 M. supra, p. 130. The English cases as to 
 
 253 ; Hall v. M'Gill, 1847, 9 D. 1557. real covenants are very numerous, but 
 
 ^^° HaU V. M'Gill, supra, ^*. do not afford a safe guide to a Scotch 
 
 '^ Montgomerie v. Carrick, supra, ^^•, lawyer. See enumerations in 1 Sm.L.C. 
 
 esp. per LI. "FuUerton and Jeffrey, 10 D. 80 ; Woodfall, 163, 165, and 561 ct seq. 
 
 1396. '^" Bells v. Lament, supra, ^''. 
 
 'f Murray v. Selkrig, 26th Jan. 1815, '" Baillie v. Fraser, supra, '^' ; Kirk- 
 
 F C. 176. Patrick v. AUanshaw Coal Co., 1880, 8 
 
 ^28 Supra, p. 130. R. 327. 
 
410 management: usual conditions. 
 
 innovation has been expressly given or may be fairly implied, 
 as where he visited a farm before purchasing and might have 
 seen that it was not being cultivated according to the shift 
 prescribed in the lease — the fact being that a change had taken 
 place with the approval of the former landlord.^^^ The same 
 result is attained in a roundabout way where, the innovation not 
 being good against a singular successor in any of these ways, he 
 is taken bound in his title or otherwise to relieve the vendor of 
 liability to tenants in terms wide enough to strike at the obliga- 
 tion in question. ^^^ But the alteration must be intended as a 
 continuing one ; ^^* and therefore it is not enough in support of 
 a right to abatement of rent for the future ^^^ to prove that the 
 vendor granted receipts for rents lower than those exigible under 
 the lease. 
 Apportion- Difficulties sometimes arise in determining which of two parties 
 
 liability. — the lessor or his singular successor — is primarily or solely 
 
 liable in obligations to the tenant or is in right of obligations 
 prestable by him. Thus — to take the liability first — where 
 a lessor stipulated for the erection of a building by the lessee 
 in consideration of a sum to be deducted from rent and the 
 building was begun and completed in the interval between a 
 sale of the land by the lessor and the term when the last rent 
 due to him was payable, the burden as well as the benefit was 
 held to fall on the purchaser, and the tenant was not entitled to 
 retain from the vendor any part of that rent.^^^ A purchaser in 
 March with entry at Whitsunday was bound in the articles of roup 
 to implement all the conditions and obligations of current leases. 
 Certain leases on the estate ran out at the said Whitsunday and 
 the separation of crop following, these were held to be current 
 Apportion- leases in the sense of the articles. ^^^ It is the same with con- 
 ment of rights, ditions in the landlord's favour. A purchaser who allowed a 
 tenant, whose lease expired simultaneously with the vendor's right, 
 to possess by tacit relocation for two years was held entitled to 
 complain of miscropping during these years and these only, 
 though in order to ascertain the nature of the deviations from the 
 prescribed culture it might be necessary to advert to the state of 
 the crop in the year preceding the purchase. He was also in 
 
 ^'^ Carnegie v. Guthrie, supra, ^^ ; see supra, p. 408 ; Hall v. M'Gill, infra, 5'". 
 
 also Eae v. Fiulayaon, supra, ''". ^^ Morison v. PatuUo, 1787, M. 10425. 
 
 «3' Bruce v. M'Leod, 1822, 1 S. Ap, Contrast Walpole i). Beaumont, 1780, M. 
 
 213. 15249 (arrears of price of rent coal). 
 
 ^^ Lindsay v. Webster, 1841, 4 D. 231. ^' Stewart v. E. Dunmore's Tr., supra, 
 
 ^^ Eiddick v. Wightman, 1790, and ''" ; see Macdouald f. Johnstone, 1883, 
 
 Grant v. Watt, 1802, Hume 776, 777 ; 10 K. 959. 
 
CONDITIONS REAL AND PERSONAL. 411 
 
 titulo to insist on implement of outgoing stipulations as to the 
 repair of houses and fences.^^* For similar reasons, it is 
 established that, where a tenant's obligation is continuous or 
 recurrent, a singular successor is not entitled to damages for 
 a breach which has taken place before his entry, or to specific 
 implement unless his author's right of recourse has been specially 
 assigned to him.^'® 
 
 3^ HaU V. M'Gill, 1847, 9 D. 1557. 
 
 ^ Hamilton v. Fleming, 1793, Hume 787. 
 
412 
 
 CHAPTER XVIII. 
 
 WILD ANIMALS : GAME : BIRDS PROTECTION ACTS. 
 
 Plan of It will be readily understood that no attempt can be made in 
 
 c apter. ^j^.^ work to expound the law relating to the capture and disposal 
 
 of wild animals.1 Attention will, as far as possible, be confined 
 to those parts of that law which are affected by the law of land- 
 lord and tenant. The most convenient arrangement seems to be 
 to keep in view more especially the rights and obligations of 
 tenants, agricultural and sporting, and to proceed according to 
 the following division. I. The rights and obligations of occupiers 
 of land including tenants other than sporting tenants, as affected 
 by the public law relating to wild animals ; II. The rights and 
 obligations of these tenants in questions with their landlord and 
 his game tenants ; III. The rights and obligations of game or 
 sporting tenants in questions with their landlords; and IV. 
 Their rights and obligations in questions with agricultural tenants. 
 Fishings ex- It may be stated in the outset in order to limit the scope of this 
 chapter still further, that there is nothing, either in the statutes 
 or in the decisions ^ relating to fishings, that does not apply to 
 landowners and their fishery tenants equally. Both are equally 
 bound by the public law of fishings ; and questions between them 
 will be determined according to the ordinary law of leases. 
 
 I. Eights and Obligations of Occupiers of Land in 
 
 General. 
 
 A marked distinction is drawn between animals which are 
 and animals which are not protected by statute. To the first 
 class belong certain wild birds ; the class of animals known as 
 
 1 The authorities are oolleoted and ownership, 128, 727. 
 
 commented on fully in Irvine on the ^ ggg Stewart on Fishing, passim; 
 
 Game Laws and Stewart on Fishing ; Rankine on Landownership, 257, 765, 
 
 and more britfly in Rnnkine on Land- 167, 482, 865. 
 
BIKDS PROTECTION ACTS. .413 
 
 game ; and rabbits. To the second class belong all other 
 animals.^ 
 
 (a) The subsisting Wild Birds Protection Acts, 1880 and 1881* Birds Proteo- 
 — while imposing penalties on ' any person who between the first *""" ■*'°*^' 
 ' day of March and the first day of August in any year . . . 
 ' shall knowingly and wilfully shoot or attempt to shoot or shall 
 ' use any boat for the purpose of shooting or causing to be shot 
 ' any wild bird or shall use any lime, trap, snare, net, or other 
 ' instrument for the purpose of taking any wild bird, or shall 
 ' expose or offer for sale or shall have in his control or possession 
 ' after the fifteenth day of March any wild bird recently killed 
 ' or taken' — exempts the occupier of any land or any person 
 authorised by the occupier of any land who kills or takes any 
 wild bird not scheduled (Act 1880, sect. 3). The schedule con- 
 tains eighty-six names of privileged birds ; ^ and the penalty 
 is a fine not exceeding £1 for every such bird (ibid.). The 
 close time may be varied, and districts exempted (sect. 8) by 
 the Secretary for Scotland.^ The complaint is taken to the 
 sheriff (sects. 2 and 6). An additional fine not exceeding ten 
 shillings may be imposed on an offender who refuses to give his 
 real Christian name, surname, and place of abode, or gives an 
 untrue name or place of abode to any person who requires the 
 same (sect 4). 
 
 (h) The other wild animals which are protected by statute are Game and 
 game" and rabbits.^ 
 
 ' Tiune pigeons are dealt with by drake, shoveller, skua, smew, snipe, sulan 
 
 sbitate, ihongh not in the way of protec- goose, spoonbill, stint, stone-curlew, 8tone- 
 
 tion now-&-days, 1617, c. 19 ; Irvine, 23 ; hatch, summer snipe, tarrock, teal, tern, 
 
 Sankine, 129. thick-knee, tyatey, whaup, whimbrel, 
 
 ■* 43 & 44 Vict. c. 35 ; 44 & 45 Vict. widgeon, wild duck, willock, woodcock, 
 
 •:;. 51 ; Irvine, 250 ; Kankine, 129. woodpecker. 
 
 ' Viz., American quail, auk, avocet, * 48 & 49 Vict. o. 61. 
 bee-eater, bittern, bonxie, colin, Cornish ' See the extension of this term, de- 
 chon^, cooltemeb, cuckoo, curlew, diver, scribed in Irvine, 6 et seq. Various pro- 
 dotterel, dnnbird, dunlin, eider duck, tecting Acts still in observance mention 
 fern owl, fulmar, gannet, goatsucker, the following — bustard, capercailzie, 
 godwit, goldfinch, grebe, greenshank, grouse, blackgame, landrail, partridge, 
 guillemot, gull (except black-backed gull), pheasant, quail, snipe, wild duck, wood- 
 hoopoe, kingfisher, kittiwake, lapwing, cock, deer, hare. Qu. as to plover. The 
 lark (this added by Act, 1881, sect. 2), Act founded on ui each case should be 
 loon, mallard, marrot, merganser, murre, examined for its enumeration (if any) ; 
 nighthawk, nightjar, nightingale, oriolf, but the enumeration which seems to be 
 owl, oxbird, oyster-catcher, peewit, accepted in modem legislation is that of 
 petrel, phalarope, plover, plover 's-page, the Night Poaching Act ^ viz., hares, 
 pochard, puffin, purre, razor-bill, red- pheasants, partridges, grouse, heath or 
 shank, reeve or raff, roller, sanderUng, moor game, blackgame, and bustards, 
 sandpiper, scout, sea-lark, seamew, sea- * Kabbits are not game — Moncrieff r. 
 pamit, sea-swallow, shearwater, shell- Amott, 1S28, 6 S. 530. 
 
 rabbits. 
 
414 WILD ANIMALS : GAME : BIRDS PEOTECTION ACTS. 
 
 Landed 
 qualification. 
 
 Night Poach- 
 ing Acts. 
 
 Day Tresjiass 
 Act. 
 
 The landed qualification introdiiced by the old Act 1621, c. 
 3 1 , by enacting ' that no man hunt or haulk at any time here- 
 ' after who hath not a plough of land in heritage,' is not satisfied 
 by the production of a leasehold right ^ however prolonged, or 
 even if virtually perpetual.^" A tenant can therefore escape the 
 penalties of the statute only by obtaining (by lease or otherwise) 
 the permission of a qualified person to pursue and take game on 
 the lands of the latter.^^ 
 
 It is no defence under the Night Poaching Acts ^^ that the 
 accused is the agricultural tenant of the land on which the 
 offence was committed.'^ Occupiers of lands, their servants, 
 and persons assisting their servants are among the persons who 
 are entitled to seize and apprehend offenders against the leading 
 statute, either upon such lands or, in case of pursuit being made, 
 in any other place, and to deliver them over into custody; ^* and 
 where the oifence takes place on a public road the same power 
 is conferred on the occupiers of the adjoining lands and their 
 servants and assistants. ^^ 
 
 The terms of the leading enactment of. the Day Trespass Act ^^ 
 are that ' if any person whatsoever shall commit any trespass by 
 ' entering or being in the day time upon any land without leave 
 ' of the proprietor, in search or pursuit of game, or of deer, roe, 
 ' woodcocks, snipes, quails, landrails, wild ducks, or conies,' he 
 shall incur certain penalties which are enhanced if he had his 
 face blackened, coloured, or otherwise disfigured for the purpose 
 of disguise, or if he was of a party of five or more persons.^" 
 Occupiers of lands, their gamekeepers and servants, and persons 
 authorised by such occupiers are entitled to require offenders to 
 quit such lands, and also to tell their Christian names, sur- 
 names, and places of abode, and, in case of their refusing to tell 
 their real names or places of abode, or giving illusory descriptions 
 of the latter, or wilfully continuing or returning upon the lands. 
 
 9 Ms. Tweeddale r. Soitiner, 1808, in 
 note, 18 F.C. 510. 
 
 " E. Hopetoun v. Wight, 17th Jan. 
 1810, r.C. 507 ; and see Wellwood i.. 
 Husband, 1874, 1 R. 507 ; B. Pr. 953. 
 
 " Trotter r. MacKwan, 8th July 1809, 
 F.C. iOF,. 
 
 12 9 Geo. IV. e. 69 ; 7 & 8 Vict. u. '29 ; 
 Irvine, 175 ; Rankine, 727, 740. 
 
 !•' Smith V. Young, 1856, 2 Irv. 402. 
 Thii policy is carried out in the Ground 
 Game Act, 43 & 44 Vict. u. 47, sect. 6, 
 and ill 11 & 12 Vict, c. 30, sect. 4, which 
 
 relate to shooting by night. 
 
 " 9 Geo. IV. c. 69, sect. 2. The use 
 nf violence by the accused is heavily 
 punished, ibid. 
 
 1^ 7 & 8 Vict. c. 29. 
 
 1" 2 & 3 Will. IV. c. 68, sect. 1 ; Irvine, 
 119 ; Kankine, 733. 
 
 i'' Nothing is said in the aggravations 
 about the proprietor's leave, but probably 
 the want of it is implied in the word 
 'trespass;' see Birrel r. Jones, 1859. 3 
 Irv. 546. 
 
DAY TRESPASS ACT. 415 
 
 to apprehend them, and take them before the sheriff (sect. 2) ; 
 and also to seize the game in their possession for the use of the 
 person entitled to the game upon the lands (sect. 5). 
 
 It was early decided, though by a narrow majority, that the Agricultural 
 statutory trespass could not be committed by a tenant of the lands struck at. 
 on which it was alleged to have taken place. ^^ The decision 
 has been followed ; and the law is now held to be settled.^* The 
 exemption does not extend to farm-servants.^" It is difficult to But servants 
 justify the exemption on any ground of principle,^^ and still more 
 difficult to account for the distinction, for the farmer and his 
 servants are equally entitled to be on the lands in the way of 
 their business ; and their functions in the administration of the 
 statute are the same. It is a sufficient defence for a farm-servant 
 accused of shooting rabbits in contravention of the Act, to prove 
 that he had his master's orders to shoot them, though his master's 
 lease reserved the rabbits on the farm to the landlord. ^^ It may 
 be doubted whether a farm-servant was rightly acquitted, who 
 being lawfully employed by the tenant to snare rabbits, set his 
 dog at, captured, killed, and removed a hare which, having been 
 taken by him from a snare, apparently dead, escaped out of his 
 hands. ^^ Relatives, visitors, boarders, and persons who assist in and inmates 
 the farm-work without wage, are in a less favourable position 
 than farm-servants.^* The legality of their interference with the 
 game or rabbits on the farm depends on the question whether 
 any communicable right is vested in the tenant at common law, 
 under his lease or by statute.^ A game tenant is none the less Title to 
 entitled to take proceedings under the above Acts, though he is °°™^ '^™' 
 also the agricultural tenant ; and the nomenclature of the 7th 
 section of the Ground Game Act ^^ is held to imply, though it 
 does not clearly express, this rule.^^ 
 
 ^8 Smellie v. Lockhart, 18i4, 2 Broun, 131, 6 E. (Just. ) 3 ; Jack v. Naime, 
 
 194. 1887, 24 Sc.L.K. 350. 
 
 1" E. Kinnoull v. Tod, 1859, 3 Irv. 501. =3 Lawrie v. M'Arthur, 1880, 8 R. 
 
 =" B. Selkirk ii. Kennedy, 1850, J. (Just.) 2, 4 Coup. 346. 
 
 Shaw, 463 ; Raper v. Dufif, 1860, 3 Irv. =•" Black v. Bradshaw, 1875, 3 Coup. 
 
 529. As to trespass by a game- watcher, 209, 3 R. (Just.) 18; see Porter v. 
 
 see Landon v. Watt, 1874, Guthrie's Dec. Stewart, 1858, 3 Irv. 57, 499. 
 
 280. ^ Stuart v. Murray, 1884, 12 R. (Jn^t.) 
 
 "' See last paragragh ; Fergusson v. 9 (common law or Ground Game Act) ; 
 
 Shirreff, 1844, 6 D. 1363, 1371, per L. M'Adam u. Lawrie, 1876, 3 Coup. 223, 
 
 Moncreiflf ; Reg. v. Pratt, 4 E. and B. 3 R. (Just.) 20 ; James v. E. Fife, 1880, 
 
 SBO ; Mains v. M'Lullich, 1860, 3 Irv. 4 Coup. 321, 7 R. (Just.) 9. 
 
 533 ; Colquhoun v. Liddell, 3 Coup. 342, =« 43 & 44 Vict. c. 47, sect. 7. 
 
 4 R. (Just) 3; Stoddart v. Stevenson, ^ Ferguson i: M'Nab, 1885, 12 R. 
 
 1880, 7 R. (Just.) 11, 4 Coup. 334. 1083. Gordon v. Morgan, 1884, 29 Journ. 
 
 — Calder r. Robertson, 1878, 4 Conp. of Jurisp. 53. 
 
416 
 
 WILD ANIMALS : GAME : BIRDS PEOTECTION ACTS. 
 
 Game Licences 
 Acts. 
 
 Game Act, 
 1877. 
 
 Gun Licence 
 Acts. 
 
 The subsisting Game Licences Act while requiring a licence to 
 entitle any one to take, kill, or pursue game or rabbits, excepts 
 from its provisions, inter alia, 'the taking and destroying of 
 ' conies [rabbits] in Great Britain by the proprietor of any warren 
 ' or of any enclosed ground whatever, or by the tenant of lands 
 ' either by himself or by his direction or permission.' ^* It also 
 adopts ^' the provisions of an earlier statute ^^ which was princi- 
 pally, though not exclusively or even directly, intended for the 
 benefit of farming tenants. This statute makes it ' lawful for any 
 ' person having at present a right to kill hares in Scotland to do so 
 ' himself, or by any person permitted, directed, or commanded by 
 ' him by any writing under his hand without the payment of any 
 ' such duties of assessed taxes as aforesaid [in the preamble], and 
 ' without obtaining an annual game certificate ; provided always 
 ' that such hares shall be found and killed in or upon his 
 ' own land ; provided also that no person permitted, directed, or 
 ' commanded as aforesaid shall have any power to authorise any 
 ' other person whatever to take or destroy any hare' (sect. 1), or 
 ' shall unless otherwise chargeable be liable to duties of assessed 
 ' taxes as gamekeeper ' (sect 2). Any person may also ' law- 
 ' fully pursue and kill, or join in the pursuit and killing, hares by 
 ' coursing with greyhounds, or by hunting with beagles or other 
 ' hounds without the having obtained an annual certificate ' 
 (sect. 3).'^ Then by the Game Laws Amendment Act, 1877,^^ 
 a lessee in the actual occupation of lands and having the right 
 of killing hares thereon may, by himself or by any person 
 directed or authorised by him in writing, pursue, take, kill, or 
 destroy hares then being in or upon any such land without 
 obtaining any game certificate ; provided he authorises only one 
 person at a time upon land occupied by him in any one parish, 
 and intimates the authority to the landlord or his factor. Lastly, 
 the occupier and persons duly authorised by him and thus 
 entitled under the Ground Game Act^^ to kill and take hares 
 and rabbits may lawfully do so without obtaining a game licence. 
 
 One of the exemptions from liability for penalties under the 
 Gun Licence Act '* is conceived in favour of ' the occupier of any 
 ' lands using or carrying a gun for the purpose only of scaring 
 
 28 23 & 24 Vict. c. 90, sect. 5, excep- 
 tion 2. 
 
 '' Ibid., exemption i and sect. 6. The 
 Act is amended by 46 Vict. c. 10, sects. 
 
 30 11 & 12 Vict. c. 30. 
 
 ^^ Repeated in Game Licence Act, 
 
 sect. 5, exception 3. 
 
 ^ 40 & 41 Vict. c. 28, sects. 8, 9. 
 
 =•' 43 & 44 Vict. c. 47, sect. 4, infra, 
 p. 427. 
 
 « 33 & 34 Vict. c. 57, sect. 7 (4). 
 The Act is amended by 46 Vict. u. 10, 
 sect. 6. 
 
GUN LICENCE: POISON. 417 
 
 ' birds or of killing vermiu on such lands, or any person using or 
 ' carrying a gun for the purpose only of scaring birds or of killing 
 ' vermin on any lands by order of the occupier thereof, who shall 
 ' have in force a licence or certificate to kill game or a licence 
 ' under this Act.* The provisions of this statute are not affected 
 by the Ground Game Act.^^ It is settled that rabbits are vermin 
 in the sense of this section, that is to say, in relation to the crops 
 of a farm.^^ The question has never been decided whether wood- 
 pigeons are vermin which it is lawful under this section not 
 merely to scare but to kill ; but the answer can scarcely be 
 doubtful, since the Revenue authorities did not venture in a case 
 which was free from specialties to press for the penalties.^'^ 
 
 It is proper now to notice two sets of restrictions which, 
 although general and not affected by any specialties in the case 
 of farm tenants, are to them of the greatest importance. 
 
 Two of the statutes already noticed touch upon the use of Use of poison, 
 poison. By the Act of 1848,^ which mainly relates to the 
 capture of hares, it is enacted (sect. 4), that nothing in it shall 
 make it lawful ' for any person, with intent to destroy or injure 
 ' any hares or other game, to put or cause to be put any poison 
 ' or poisonous ingredient on any ground, whether open or enclosed, 
 ' where game usually resort, or in any highway.' By the Ground 
 Game Act,^^ it is enacted under a penalty (sect. 6) that 'no 
 ' person having a right of killing ground game under this Act or 
 ' otherwise . . . shall employ poison.' These enactments stand 
 in the statute-book alongside of two Acts passed in the interval 
 between them. The earlier of the two prohibits the sale and 
 sowing of poisoned grain.*" The enactment relating to sowing 
 (sect. 3) authorises the infliction of a fine not exceeding £10, on 
 ' every person who shall knowingly and wilfully sow, cast, set, 
 ' lay, put, or place, or cause to be sown, cast, set, laid, put, or 
 ' placed into, in, or upon any ground or other exposed place or 
 ' situation any grain seed or meal which has been so steeped or 
 ' dipped in poison, or with which poison or any ingredient or 
 ' preparation has been so mixed, as thereby to render such grain 
 ' seed or meal poisonous and calculated to destroy life.' But 
 ' nothing in this Act shall prohibit . . . the use of any solution 
 
 35 43 & 44 Vict. ^. 47, sect. i. 38 11 & 12 Vict. c. 30. 
 
 36 Gosling V. Brown, 1878, 5 R. 755 -^ 43 & 44 Vict. i;. 47 ; see infra, p. 
 (diss. L. Ormidale). 427, and obs. in Brown v. Thomson, 1881, 
 
 ^ Connacher v. Bryson, 1875, cited in 9 R. 1183, 1188, and Fraser v. Lawson, 
 Irvine, 246, and Kankine, 751. Thecase 1882, 10 R. 396, 408, 411, on the public 
 was dropped on the advice of L. Adv. policy of this enactmeut. 
 Watson. * 26 & 27 Vict. o. 113 (1863). 
 
 2 D 
 
418 WILD animals: game: birds peotection acts. 
 
 ' or infusion, or any material for dressing, protecting, or preparing 
 ' any grain or seed for bond fide use in agriculture only, or the 
 ' sowing of such last-mentioned grain or seed so prepared ' (sect. 4). 
 The later Act, passed in the following year,*i extends the provi- 
 sions of this statute to ' poisoned flesh or meat which has been 
 ' mixed with, or steeped in, or impregnated with poison or any 
 ' poisonous ingredient/ with a similar result (sect. 2). But 
 ' nothing in this Act shall make it unlawful for the occupier of 
 ' any dwelling-house or other building, or the owner of any rick or 
 ' stack of wheat, barley, oats, beans, peas, tares, seeds, or of any 
 ' cultivated vegetable produce, to put or place, or cause to be 
 ' put or placed in any such dwelling-house or other building, or 
 ' in any enclosed garden attached to such dwelling-house, or in 
 ' the drains connected with such dwelling-house, provided that 
 ' such drains are so protected with gratings or otherwise as 
 ' to prevent any dog from entering, or within such rick or stack, 
 ' any poison or poisonous ingredient or preparation for the de- 
 ' struction of rats, mice, or other small vermin ' (sect. 3).*^ 
 Use of firearms Apart from the provisions of the Night Poaching Act,*^ there 
 by night. ^^^ ^^q enactments relating to the use of firearms by night. The 
 above-mentioned Act of 1848,** which permits the killing of 
 hares by certain persons without having a game licence, contains 
 a proviso (sect. 4) that it shall not make it lawful for any person 
 to use any firearms or gun of any description,*^ for the purpose of 
 killing any game or hares by night, i.e., (sect. 5) from the expira- 
 tion of the first hour after sunset to the beginning of the last 
 hour before sunrise. And the Ground Game Act *^ enacts that 
 ' no person having a right of killing ground game [hares and 
 ' rabbits] under this Act or otherwise, shall use any firearms for 
 ' the purpose of killing ground game ' within the same hours. 
 This enactment springs from considerations of public policy.*''' 
 The penalty is a fine not exceeding £2.*^ The prohibition does 
 not extend to the shooting of winged game. 
 Muirburn. -^ number of old statutes regulating muirbum,*^ which were 
 
 apparently intended only for the protection of growing crops, are 
 superseded by a subsisting Act, passed in 1773, for the preserva- 
 
 « 27 & 28 Vict. o. 115 (1864). ^7 gee obs. in Brown and in Eraser in 
 
 *2 See Daniel o. Janes, 2 C.P.D. the passages cited, supra, 3". 
 
 ^®^- * See infra, p. 429, as to interdict. 
 
 « Sujara, p. 414. 49 gtat. Rob. III. c. 2 ; 1424, c. 20 ; 
 
 « 11 & 12 Vict. c. 30. 1477, c. 75 ; 1493, c. 48 ; 1535, c. 11 ; 
 
 "5 As to which see the Gun Licence 1685, i;. 30. See 6 Geo. IIL c. 32, and 
 
 Act, 33 & 34 Vict. ^. 57, sect. 2. the English Act, 4 & 5 Will III c 
 
 ^ 43 & 44 Vict. c. 47, sect. 6. 23. 
 
MUIRBURN. 419 
 
 tion of game in Scotland.^" By sect. 4 it is enacted that every 
 person making muirburn, or setting fire to any heath or muir in 
 Scotland, from the 11th of April to the 1st of November in any 
 one year, shall forfeit and pay 40 shillings for the first, £5 for 
 the second, and £10 for the third or any subsequent offence, or in 
 default of payment suffer imprisonment for six weeks, two months, 
 and three months respectively. The tenant, possessor, or occupier 
 is deemed guilty unless he prove that the fire had spread from other 
 ground, or was raised on his ground by some other person not in his 
 service or family (sect. 5). By subsequent sections every proprietor 
 of high and wet muirlands, the heath upon which frequently 
 cannot be burned so early as the 11th of April, may, when such 
 lands are in his own occupation, burn the heath upon them 
 at any time between the 11th and 25 th of April without 
 incurring any of the penalties specified, and, where such lands 
 are let, the proprietor or his commissioner or factor may by 
 writing previously recorded in the Sheriff-Court books, authorise 
 the tenant to do the same.*^ It is settled that the word ' muir ' 
 is descriptive of the ground and not of its peculiar vegetable 
 products, and that setting fire to any growth on muir ground, 
 as grass, whin, bent, or broom (and not heather only) is struck at 
 by the Act, the only practical test being, that it must be a place 
 which moor game frequent for breeding. ^^ 
 
 There should be express regulation of muirburning in the leases Regulation, 
 both of the pastoral and of the game tenants, for though experience 
 has shown that a judicious course of gradual burning is a common 
 benefit to both, yet it is not easy to find any principle in our law 
 which would prevent the tenant of the land from destroying the 
 whole or the greater part of the heather on his farm in one season, 
 as bond fide believing it to be for his interest, or being desirous 
 to make an experiment, or even out of malice against his land- 
 lord. It would be difficult to find any precedent in the ' rules 
 ' of good husbandry.' A case in which damages were awarded 
 to a landowner against the holder of a servitude of pasturage 
 over his land for extensive muirburn has no analogy.^^ The 
 doctrine of emulation has never obtained a secure footing in our 
 law. And the statutes above mentioned do not apply to questions 
 between landlord and tenant. It may thus be difficult for a 
 landlord to regulate muirburn without express stipulation, where 
 his only immediate or tangible interest is the preservation of 
 
 ™ 13 Geo. III. c. 54 ; see preamble. 78. 
 
 5' Irvine, 106 ; Eankine, 141. ss RobertBon v. D. Athole, 1815, 6 Pat. 
 
 ^- Kodger r. Gibson, 1842, 1 Broun 135. 
 
420 WILD ANIMALS : GAME : BIEDS PROTECTION AOTS. 
 
 game. It would probably be different, however, if he were 
 able to show the certainty or strong probability of deteriora- 
 tion of the farm at the termination of the lease. How far 
 the possibility of a premature termination, as by bankruptcy, 
 might give him an interest may be questioned. In a case 
 between landlord and tenant, the lease of a pastoral farm 
 prohibited the tenant from burning heath or muir, and reserved 
 to the landlord the sole and exclusive right to burn the heath 
 or heather without making compensation for damages.^* The 
 heather was burnt, and an action of damages was raised by 
 the landlord against the tenant, bearing that many acres of 
 heather had been consumed, comprising some of the most 
 valuable covers and beats, and that the value of his property 
 under shooting leases had thus been greatly deteriorated. In 
 adjusting issues the main question was how they might be 
 framed so as to raise the question of the tenant's liability for the 
 acts of his servants and dependents. The form fixed on was, 
 whether the defender on a certain day, in violation of the 
 provisions of his lease, did, by himself or by another or others, 
 set on fire a portion of the muir (the pursuer's property), to the 
 loss, injury, and damage of the pursuer. ^^ 
 
 II. The Rights and Obligations op Occupiers of Land in 
 Questions with their Landlord and his Game Tenants. 
 Fundamental The relation of landlord and tenant in regard to wild animals 
 ru es. — g^^^ especially to game — found upon lands under lease is 
 
 based on three fundamental propositions, — viz., (1) That by the 
 law of trespass no one is entitled to enter lands (except for 
 some purpose which involves a paramount public duty) without 
 the owner's permission, expressed or implied ; (2) that, if lands 
 are let for a limited purpose, they must be used for that purpose 
 alone ; and (3) that the. right to pursue, kill, and take game is 
 an incident to the ownership of land.^^ It follows that a land- 
 owner may prevent all persons from pursuing, killing, or taking 
 
 ^ See Hamilton v. Campbell, 1869, ' scieutious man will observe as to the 
 
 6 Sc.L.R. 426 ; Grierson v. Kerr, 1870, ' interests of his neighbours,' per L. 
 
 7 Sc.L.R. 640. Neaves in Mackintosh v. Mackintosh, 
 =5 Grant v. Gentle, 1857, 19 T>. 992, 1864, 2 M. 1357, 1362. 
 
 29 So. Jur. 456. In questions with "^ The authorities for the first and third 
 
 neighbours, the criterion of the necessary propositions are collected in Rankine, 
 
 care in performing this lawful (and even Landownership, 123, 130. The second 
 
 necessary) operation is ' that which a proposition belongs more particularly to 
 
 ' prudent man will observe in his own the present treatise, 
 affairs, and which a prudent and con- 
 
GAME RESERVED IN LEASES OF FARMS. 421 
 
 game on his lands, inclosed or uninclosed ; ^' that, unless there 
 be stipulation to the contrary, the occupier cannot prevent him 
 from making use of his right to pursue, kill, and take game ; ^^ 
 and that this right may be exercised either by the landowner 
 himself or by such persons as have his authority/^ The nature 
 of the right is best brought out in connection with this authority, 
 when granted in the form of a lease of game, as will be set forth 
 below. Meantime attention will be called to the relation of the 
 landlord and the occupier of the land in regard to wild animals 
 and especially game. 
 
 An ordinary lease of agricultural or pastoral lands is granted At common 
 and taken for the limited purposes of agriculture or pasture or i^Uedly 
 both. Consequently the right of pursuing, killing, and taking f^^^^l^se^ 
 game ^^ or fish of any kind ^^ is reserved to the landlord ex lege 
 without a special clause in the lease. The tenant is entitled 
 neither to take the game or fish, nor to scare them away, nor to 
 use lawful contrivances in such a way as to injure the landlord's 
 right. Thus, where a tenant, for the purpose of keeping down 
 an alleged overstock of game, sent muzzled dogs over his farm, 
 employed men to go about discharging blank cartridges from 
 guns, and set rabbit snares (which he was entitled to set) in such 
 a way as to destroy game, these proceedings were interdicted, the 
 proper remedy being an action of damages.*^ 
 
 One limitation has been admitted to the right of a landlord to Not in policies. 
 pursue game over- his own land. A house was let as a villa 
 along with eleven acres of enclosed ground of which six acres 
 were usually in tillage and the remainder in grass and pleasure 
 ground. Friends of the landlord, with his leave to sport over his 
 property, followed game with harriers through newly sown grass, 
 part of this patch of ground. Damages were found due in an 
 action brought against one of them. The same Judges would 
 undoubtedly have reached the same result if the damage had 
 
 ^ Cr. 2.8.13 ; St. 2.3.76 ; Bankt. 2.1.7; 1809, F.C. 406. 
 Ersk. 2.6.6; B. Pr. 949; Watson v. E. ^ Cases as to leases of g&Tne, infra, p. 
 
 Errol, 1763, M. 4991; M. Tweeddale i: 430. It has never been decided whether 
 
 Dalrymple, 1778, M. 4992, HaUes 790, 5 or to what extent the reservation goes 
 
 B.S. 475 ; E. Breadalbane v. Livingstone, beyond the animals enumerated in the 
 
 1790, M. 4999, Hailes 1084, aff. 3 Pat. Night Poaching Act, supra, p. 414 ; but 
 
 221. see the definition in the Act of 1877, 
 
 58 Ersk. supra, ^ ; B. Pr. 953, 1224, infra, p. 426. 
 
 1226 ; Eonaldson v. BaUantyne, 1804, 6i Maxwell v. Copland, 1868, 7 M. 
 
 M. 15270 ; E. Hopetoun v. Wight, 17th 142, aff. 9 M.(H.L.) 1, L.E. 2 So. Ap. 1U3 
 
 Jan. 1810, E.G. 507, and case of M. (trout in pond). 
 
 Tweeddale v. Somner, there. 62 'v^emyss v. Gulland, 1847, 10 D. 
 
 59 Though not having the landed quali- 204. 
 fioation — Trotter v. M'Ewan, 8th July 
 
422 WILD ANIMALS : GAME : BIRDS PROTECTION ACTS. 
 
 been done by the landlord himself. For the ground of judgment 
 was that ' the spot was allotted for the residence of a family.' "^ 
 Whatever doubt may be felt as to the extension of the appur- 
 tenances of the residence in the particular case, it will hardly be 
 questioned that the principle is sound and would be properly 
 applied so as to prevent a landlord or persons in his right from 
 entering a lawn, shrubbery, orchard, garden, back-green, or yard 
 adjacent to a dwelling-house let to a tenant. 
 
 Vermin. All the wild animals, other than game and fish, which are 
 
 found on a farm are from the occupier's point of view vermin, or, 
 being innocuous and of little value, are at his disposal except in 
 so far as they are protected during a close time by the Wild 
 
 Rabbits. Birds Protection Acts.^* Eabbits are not game*^ and are vermin,^" 
 
 which, at common law, the tenant is entitled to destroy in so far 
 as necessary for the protection of his crops °'' — an empty limita- 
 tion. If he has right of pasturage in plantations he may for that 
 end destroy rabbits there, so long as he uses means by which 
 
 Foxes. game is not caught.^^ Foxes may be pursued and killed by a 
 
 tenant or others with him or by his permission on his farm, and, 
 if it be necessary for the protection of his stock, even beyond its 
 boundaries, subject to liability for damage done in the pursuit to 
 
 Wood-pigeons, alien fences.^^ Wood-pigeons are probably vermin,^" and are at 
 
 Rooks. anyrate at the mercy of the tenant. If a landlord desires to have 
 
 a voice in the management of a rookery, he should make special 
 stipulation in the lease of the farm on which it is situated. If he 
 does not, there seems to be nothing to prevent the tenant from 
 extirpating fowls which, according to a plausible theory, do more 
 harm than good when collected in large numbers. No one doubts 
 
 «3 Grahame v. M'Kenzie, 1810, Hume ^ Gosling v. Brown, 1878, 5 R. 755 
 
 641 (the judgment was partly based on (Gun Licence Act), supra, p. 417. 
 
 threats and intemperate language having ^ Per L. Kutherfurd Clark and L.J.-C. 
 
 been used by the defender). Moncreiff in Eraser v. Lawson, 1882, 10 
 
 ^ Supra, p. 413. R. 396, 406, 412. 
 
 ^ Monorieff v. Arnott, 1828, 6 S. 530. <« Cunninghame d. Webster, 1867, 3 
 
 See North v. Gumming, 1864, 3 M. 173 ; ScL.R. 327. 
 
 Porter v. Stewart, 1858, 3 Irv. 57 ; Inglis 69 Colquhoun v. Buchanan, 1785, M. 
 
 V. Moir's Trs., 1871, 10 M. 204 ; and the 4997. It was the custom o! the country, 
 
 old Act as to ' cunningaires ' (warrens). See English cases cited in Paul v. Summer- 
 
 1474, u. 60. The Act 1457, c. 88, is in hayes, 4 Q.B.D. 9, where it was decided 
 
 desuetude. They are protected by the that fox-hunters for sport may be stopped 
 
 Day Trespass Act, by the Prevention of entering land by the own,er. The same 
 
 Poaching Act of 1862 (25 & 26 Vict. o. right would be recognised as belonging to 
 
 114), and by the Night Poaching Act, the tenant in protection of his crop and 
 
 against being killed (sect. 1), and against fences, 
 
 being pursued by three or more persons ™ Supra, p. 417. 
 together (sect. 9). 
 
DAMAGES. 423 
 
 that the landlord and his friends and game tenant may lawfully 
 
 kill wild animals other than game in the course of pursuing 
 
 game ; but it may be fairly questioned whether they can claim a 
 
 day's rook-shooting as matter of right. It has been held that a 
 
 tenant is not entitled to destroy the tame pigeons of his landlord Tame pigeons. 
 
 (or probably of any one) who holds a qualified dovecot, though it 
 
 be more than six miles off, though the owner refuses to herd 
 
 them off, and though they are destroying the tenant's seeds. '^^ 
 
 The common law rights of landlord and tenant are usually Rights as 
 altered by stipulation in the lease and have been affected by stipulation and 
 recent legislation. The usual stipulation is an express reserva- ^*''*"*^- 
 tion of rabbits along with the game. The recent Acts are the 
 Game Laws Amendment (Scotland) Act, 1877,'^^ and the Ground 
 Game Act, 1880.'^ 
 
 A conflict of interest arises when a tenant observes or believes Damage from 
 that injury is being done to his crops by the game or by the raS)its!^ 
 game and rabbits (as the case may be) to which his landlord has 
 ex lege or by agreement a reserved right. The common law 
 rule was laid down by Lord Fullerton in a passage which 
 has subsequently been frequently recognised as an apt defini- 
 tion. ' A tenant may have a claim of damage for the injurj'^ 
 ' done by game, but in order to support such a claim it is 
 ' necessary to prove not merely a certain visible damage 
 ' arising from game, but a certain and visible increase of the 
 ' game and a consequent alteration of the circumstances con- 
 ' templated in the contract, imputable to the act of the landlord. 
 ' The true ground of damage seems to be, not that the game is 
 ' abundant, but that its abundance has been materially increased 
 ' since the date of the lease, in consequence either of the active 
 ' measures of the landlord or his failure to keep down the 
 ' burden — which last circumstance must be held as equivalent 
 ' to his act, as the right so to keep it down is one expressly with- 
 ' held from the tenant.' ''^ In the case from which this dictum, 
 is cited, the landlord was held not to be liable for damage done 
 by pheasants, where they were introduced for the first time and 
 had increased in numbers through a system of hand-rearing prior 
 to the commencement of the lease, and hand-rearing had ceased 
 
 n Easton r. Longlands, 1832, 10 S. '* In Drysdale v. Jameson, 1832, 11 S. 
 
 542 ; 1617, c. 19, and other Acts referred 147, 149 ; of. L. Barcaple's charge in 
 
 to in Irvine 23, Rankine, 129. The law Syme c. E. Moray, 1868, 5 Sc.L.E. 272. 
 
 of dovecots squares ill with modem (Excessive and unreasonable amount of 
 
 notions. game, i.e., such as to a very great extent 
 
 ™ 40 & 41 Vict. c. 28. to be destructive of the agricultural use 
 
 73 43 & 44 Vict. u. 47. of the land). 
 
of claim. 
 
 424 WILD animals: game: birds protection acts. 
 
 before complaint was made.'^^ In strong contrast, compensation 
 was found due in a later case for damage done through an excess 
 of game created by artificial means (hand-rearing, winter-feeding, 
 destruction of vermin, and collecting brushwood for cover), which 
 had been adopted subsequently to the date of the lease.'^^ 
 Abandonment The tenant wiU not be readily held to have cut himself out of 
 his right to claim compensation in such circumstances by a self- 
 denying clause in his lease, however strongly worded. Thus 
 where a lease reserved to the landlord all game, hares, rabbits, 
 &c., with the exclusive liberty of hunting and shooting on the 
 premises, ' without being liable to compensate the tenant in 
 ' respect of the reservation and liberty herein expressed,' it was 
 held that this clause could not be read as excluding all liability 
 on the part of the landlord caused through increase of game and 
 rabbits, and that, though it might be inferred from the terms of 
 the lease (which contained a stipulation for power to resume land 
 for planting) and the situation of the farm (which was a high 
 pasture farm) that the parties contemplated an increase, compen- 
 sation would have been due if an increase going beyond what was 
 contemplated and therefore extravagant, had been made out.'^^ 
 In conformity with this view, it was later determined that a 
 clause conceived in terms so sweeping as ' that the tenant shall 
 ' have no claim whatever for any damage he may sustain from 
 ' game, hares, or rabbits, this being held to have been calculated 
 ' upon and allowed for by him in offering for the farm,' does not 
 exclude an inquiry into the existence and amount of damage.''^ 
 Of course, the tenant can have no claim for damage by game 
 or rabbits which he is at full liberty and has ample facilities 
 to destroy, either during the full subsistence of his lease, or 
 during the period between Whitsunday and separation, when his 
 waygoing crop is still on the ground,"" unless he can show that 
 he was prevented from so protecting his crop ^^ or that the game 
 or rabbits bred in plantations which he had no right to enter. ^^ 
 
 '■= The usual clause obliging the tenant Kidd v. Byrne, infra, ^ ('without liability 
 
 to warn off sportamen and others, though ' for damages '). 
 
 founded on, does not seem to enter into ™ Cadzow v. Lookhart, 1875, 2 E. 928 ; 
 
 the essence of the judgment. 3 K. 666. 
 
 '« Wemyss B.Wilson, 1847, 10 D. 194; ?i> Wood v. Paton, 1874, 1 R. 868 
 
 followed in Broadwood v. Hunter, 1855, (rabbits). 
 
 17 D. 340, 1139. See 18 D. 674 as to so i^i^ 
 
 expenses. Issues there and in S.vme „. 8i ingjig ^ Moir's Tutors, 1871, 10 M. 
 
 E. Moray, 1868, 6 M. 217; and MiJne 204 (the plantations had been greatly 
 
 V. B. Dalhousie, 1868, 5 Sc.L.E. 268. increased during the lease) ; see Morton 
 
 '' Morton v. Graham, 1867, 6 M. 71 „. Graham, supra, '", as to planting, 
 (the tenant failed in the proof) ; and see 
 
DAMAGE BY GAME. 425 
 
 A tenant, moreover, is not entitled at the termination (or, it is 
 suggested, at any period) of his lease, after paying his rent 
 regularly or full without reservation, to set up a claim of damages 
 for injury through game or rabbits for a number of years bypast, 
 if he can only found on mere grumbling at his losses and on 
 ineffectual proceedings, not on any serious complaint or claim for 
 compensation. His claim is restricted to the injury caused in 
 the year preceding the suit or earliest effective demur.^^ But the 
 principle of this case does not extend to the barring of claims 
 specifically lodged each year.*^ 
 
 The question of liability becomes more involved when the Liability of 
 game tenant is called into the field, either along with the land- tenant!^ 
 lord by the agricultural tenant or by the landlord himself in an 
 action of relief. It is clear, that there being privity neither of 
 estate nor of contract between the two tenants, the one cannot be 
 made liable for damage done to the other unless there be delict. 
 Illustrations have been figured : If the game tenant treads down 
 the farm tenant's corn or breaks the fences, or prevents the latter 
 wrongously from protecting his crops, as by shooting rabbits if he 
 has a right to do so ; or on the other hand if the farm tenant 
 encourages his dogs or hinds to scour the covers to the injury of 
 the game, these are positive wrongs giving rise to actions of 
 damages hinc inde.^ But the one may let the rabbits alone 
 with the effect of increasing the stock and destroying the farmer's 
 crops ; and the other may let the other vermin alone and so 
 damage the game; there is no mutual obligation ad faciendum.^^ 
 Therefore where a farm tenant sued both his landlord and the 
 game tenant for damages caused by rabbits which bred in young 
 plantations reserved, the latter went free on showing that he 
 had done nothing to increase, and somewhat to diminish the stock 
 of rabbits.*^ A claim of relief was given effect to in the follow- 
 ing circumstances. The farm lease reserved to the landlord the 
 sole right to the game, rabbits, and hares without liability for 
 damages. This was held to mean a right to keep up a fair 
 sporting stock, not such a stock as required to be kept down by 
 trapping and netting. The game lease bound the game tenant 
 
 ^ Broadwood v. Hunter, 1855, 17 D. Moir's Tutors, supra, ^^ at 10 M. 206. 
 
 340, 1139, 18 D. 574. The principle of ^ Ibid, and per L. Neaves, p. 210. 
 
 this and other caseB is treated, supra, ^ Ibid. In England a direct action 
 
 pp. 390, 400. by the agricultural against the game 
 
 ^ Hardie v. D. Hamilton, 1878, 15 tenant is allowed for damage from over- 
 
 ScL.R. 327 (action only after seven stocking with game — Farrer v. Nelson, 
 
 years). 15Q. B.D. 258. This would not be com- 
 
 ** Per L. J.-C. Monoreiff in Inglis v. petent in Scotland ; see next case. 
 
426 WILD animals: game: birds protection acts. 
 
 to maintain ' a fair stock of game and rabbits/ and to have such 
 a stock at ish. This was held to mean an obligation not to 
 diminish the stock, not an obligation to refrain from increasing 
 it. The facts were that, more by accident than anything else, 
 the rabbits on the farm were allowed to increase to a large extent 
 and did a deal of damage to the farmer's crops. The actions 
 were two : the first brought by the farmer^'' against his landlord, 
 in which, after a proof, the defender was found liable in damages 
 and expenses ; the second for relief by the landlord against his 
 game tenant, in which, after proof taken at the same time (though 
 the actions were not conjoined), the defender was found liable for 
 these damages and expenses, and the expenses of the defender in 
 the first and of the pursuer in the second action, including the 
 expenses in the Inner House. ^^ And the rule of the earlier case 
 of Inglis was confirmed, that when the game tenant does not 
 individually come into contact with the agricultural tenant, he has 
 nothing to do with the arrangements between the latter and his 
 landlord, whatever be the priority of the lease in date. The game 
 tenant's liability for damages sprang from the implied condition 
 in his own lease that the stock should not be unduly increased.*^ 
 Game Act, Thus Standing the common law, it is obvious that much diffi- 
 
 culty must be experienced in proving the amount of game or 
 rabbits at the commencement of the lease, that being a necessary 
 factor in the question where there has or has not been such an 
 increase as involves liability for damages on the part of the land- 
 lord or his game tenant. The leading sections of the Game Laws 
 Amendment Act, 1877,^° are intended to overcome this difficulty. 
 The Act is printed in the Appendix, and, in so far as it has not 
 been already referred to,'^ may be here explained in a very few 
 words.*^ The Act (in that part of it now in question) relates 
 only to leases made subsequently to 1st January 1878 (sects. 2, 
 4, 5, 12) for a term not less than two years, and to the lessors 
 and lessees therein, and persons in their right (sect. 3). ' Game ' 
 is interpreted in such a way as to include bustards, grouse, black- 
 game, landrail, partridges, pheasants, quail, snipe, wild duck, 
 woodcock, deer, hares, and rabbits ^^ (sect. 3 and Sched. I). 
 
 ^ There were two farmers ; but it is Sheriff under the Game Acts (sect. 10), 
 simpler to take one of them only. and the provision against cumulation 
 88 Kidd V. Byrne, 1875, 3 E.. 255. of penalties (sect. 11) belong to the gene- 
 s'' Per L.J.-C. Moncreiff, pp. 261, 262. ral law of game. 
 
 ™ 40 & 41 Vict. c. 28; infra, Appx. 93 gy ^ pleonasm, the Act speaks of 
 
 No. V. rabbits, hares, and other game ' (sects. 4, 
 
 "1 Styfira, p. 416. 5). Capercailzie, plover, and swans are 
 
 9^ The exclusive jurisdiction of the omitted. 
 
 1877. 
 
GAME ACT, 1877. 427 
 
 ' Crop ' includes grass whether intended for hay or pasture, except 
 where grown upon muirlands.^* 
 
 If under a lease made after the said date or at common law Predetermined 
 on land occupied under such a lease, the lessor has the sole right dSS^e'not 
 of hunting, killing, or taking rabbits, hares, or other game, or any Payable, 
 of them, the lessee is to be compensated for damage done to his 
 crops in each year by them, in excess of a sum set forth in the 
 lease or subsequently agreed to in writiug, ' as the amount of the 
 ' annual damage for which it is agreed no compensation shall 
 ' be due,' or, failing agreement, in excess of forty shillings (sect. 
 4). The year is reckoned from Whitsunday. The tenant's 
 intimation of claim must state his intention, failing agreement 
 as to the amount of such excess, or a reference to arbiters, to 
 recover by action under the Act (sect. 5). The procedure by 
 arbitration of an informal kind is set forth (sect. 6). Action at 
 law is barred by failure to give written notice of intention so to 
 proceed — in the case of damage to growing crop, at least three 
 weeks before reaping or raising ; in the case of damages to crop 
 reaped or raised, one week before removal ; and in case of grass 
 for pasture, fourteen days before any person called as a witness 
 by the lessee to value the damage shall inspect the crop with 
 that view [sect. 7 (1)]. If the amount claimed does not exceed 
 £50, the action must be brought in the Sheriff Small-Debt 
 Court ; if it exceeds that sum, in the ordinary Sheriff-Court. 
 
 In as much as most — according to many authorities the whole Ground Game 
 — of the damage actually done to a tenant farmer by wild ° ' 
 animals is the work of hares and rabbits, the value of this 
 statute is diminished or annihilated, with regard to leases of 
 land or game not current on 7th September 1880, by the passing 
 of the Ground Game Act, 1880,'^ 'in the interests of good hus- 
 ' bandiy, and for the better security for the capital and labour 
 ' vested in the cultivation of the soil.' 
 
 The scope of the leading provisions of the Act ^^ is limited in its scope. 
 four ways. They only relate to the right of killing and taking 
 hares and rabbits, together or separately (sect. 8).^'' They are 
 excluded during the currency of a lease or contract of tenancy ^^ 
 under which an occupier held land at the above date, or of a 
 contract made bond fide for valuable consideration before that 
 
 ^ See definition of muir, supra, p. (sects. 6 and 7) see supra, p. 418, and 
 
 419. ii'fra, p. 421). 
 
 i*5 43 & 44 Vict. c. 47, printed in Appx. ^ Fraser v. Lawson, 1882, 10 E. 386. 
 
 jfo. vi. ^ .£'•?■, A contract for a lease, Allhusen 
 
 ^ As to the more general provisions r. Brooking, 26 Ch.D. 559. 
 
428 WILD ANIMALS : GAME : BIRDS PROTECTION ACTS. 
 
 Occupier's 
 
 unalienable 
 
 right. 
 
 Mode of 
 exercise. 
 
 date entitling any other person than the occupier to take and 
 kill ground game (sect. 5).«^ They do not apply to occupiers in 
 virtue of rights of common or of grazing for not more than nine 
 months [sect. 1 (2)]. And in the case of moorlands and unen- 
 closed lands (not being arable lands) they are confined to the 
 period between 11th December and 31st March, both inclusive, 
 unless these lands be detached portions less than twenty-five 
 acres in extent and adjoining arable lands [sect. 1 (3)]. 
 
 Within these limits of subject-matter, time, title, and space, 
 the statute introduces a conspicuous novelty in legislation — a 
 right which is otherwise capable of alienation and is yet made 
 unalienable. The words are : — ' Every occupier of land shall 
 ' have, as incident to and inseparable from his occupation of the 
 ' land, the right to kill and take ground game thereon, con- 
 ' currently with any other person who may be entitled to kill 
 ' and take ground game on the same land' (sect. 1). The_ in- 
 alienability of this right is guarded by a provision voiding every 
 agreement, condition, or arrangement which purports to divest 
 or alienate it, or gives the occupier any advantage in consideration 
 of his forbearing to exercise it, or imposes any disadvantage in 
 consequence of his exeVcising it ^''° (sect. 3). An occupier entitled 
 otherwise than under the Act to kill and take ground game, in 
 giving to any other person a title to do so, retains nevertheless 
 the right conferred by the Act; and rights more extensive are 
 saved (sect. 2).^"^ 
 
 There are certain limitations on the mode in which the 
 occupier's statutory right may be exercised. He shall kill and 
 take ground game only by himself or by persons duly authorised 
 by him in writing, ^"^ under these conditions — (a) that he and 
 one other person so authorised shall be the only persons entitled 
 to use firearms ; ^"^ (6) that no person shall be authorised by him, 
 except members of his household resident on the land in his 
 occupation ; "* persons in his ordinary service on such land ; and 
 
 ^ Seeper L.Adam in Fraserr.Lawson, which ground game may be destroyed 
 
 10 R. 410. The first part of this section 
 applies to England, where at common 
 law game goes to the tenant, Woodfall, 
 718. As to franchises, see Irvine, p.l33. 
 
 100 What of the case of an owner- 
 occupier, who lets the whole of the ground 
 game, and either continues to keep the 
 land in his own hand or lets it to a farm- 
 ing tenant ? 
 
 ^"^ See per L. Adam in Fraser v. Law- 
 son, supra, ^ 10 E.. 409. It does not, 
 therefore, prescribe the conditions under 
 
 (here a servant had no written authority) 
 where the tenant has a common law right, 
 Jack V. Nairne, 1887, 24 Sc.L.E. 350. 
 
 ^"^ It perhaps need not, but certainly 
 ought to, be signed. 
 
 "3 Not including air-guns, which are 
 specially mentioned in the Gun Licence 
 Act (33 & 34 Vict. c. 57, sect. 2), which 
 was in the mind of the legislature in 
 passing the present Act (see sect. 4). 
 
 ™ Including a friend asked to stay 
 » week and shoot rabbits — per L.J.-C. 
 
GEOUND GAME ACT. 429 
 
 any one other person bond fide employed by him for reward in 
 the taking and destruction of ground game ; and (c) every person 
 so authorised, on demand by a person holding the concurrent 
 right, or any person authorised by him in writing^"' to make 
 such demand, shall produce the document by which he is autho- 
 rised, and in default shall not be deemed to be an authorised 
 person [sect. 1 (1)]. 
 
 As has been already mentioned, the statute contains certain General pro- 
 more general provisions which now claim attention. Associated "^^"^ ■ 
 with provisions against the use of firearms by night and the 
 employment of poison (both conceived in the public interest) ^"^ 
 there is a provision ' that no person having a right of killing 
 ' ground game under this Act or otherivise . . . shall, for the 
 ' purpose of killing ground game, employ spring traps except in 
 ' rabbit holes, and any person acting in contravention of this 
 ' section shall on summary conviction be liable to a penalty not 
 ' exceeding two pounds.'^"'' The purpose of this provision is to 
 protect the landlord's, or the game tenant's, concurrent right 
 under the statute and their right to pursue and kill winged 
 game, against the injury to hares, winged game, and sporting 
 dogs,^"* which would inevitably follow on the setting of traps 
 outside rabbit holes. Proceeding on this view, it was first 
 determined in a complaint for breach of interdict, brought by a 
 game tenant against a farm tenant, that the traps must be set 
 within the roof of the holes, not outside in the scrape,^"* the 
 tenant being in this way neither better nor worse off than at 
 common law ; ^^^ and later (in an interdict brought by the land- 
 lord), that a scrape made under a wire netting used as a fence, 
 and roofless except in so far as it is covered by the base of the 
 netting, is not a rabbit hole in the sense of the statute.-'^^ The 
 
 Moncreiff and L. Young in Stuart v. son, 1882, 9 R. 1183, 1188. His lordship 
 
 Murray, 1884, 12 K. (Just.) 9 — the pur- also suggests danger to foxes and hounds 
 
 pose being to insure respectability. As in a fox-hunting country, p. 1189. 
 
 to a dog-trainer, see Vere v. Mackintosh, ^"^ Brown v. Thomson, supra, "'^. This 
 
 1885, 1 Sh. Ct. Bep. j63. mode of trapping is feasible and usual, 
 
 '"^ The writing is a formality not re- and alone preserves the rights of both 
 
 quired by the Night Poaching, Day Tres- parties. 
 
 pass, or Game Licence Acts — 9 Geo. rV. "» Per L.P. Tnglis, ibid. p. 1191 ; and 
 
 c. 69, sect. 2 ; 2 & 3 "Will. IV. u. 68, sect. see Wemy.ss v. GuUand, supra, p. 421. 
 
 2 ; 23 & 24 Vict. c. 90, sect. 10. "i Fraser v. Lawson, 1882, 10 R. 396 
 
 ^"^ Supra, p. il7. (diss. L. Young). The same result would, 
 
 '"^ 43 & 44 Vict. c. 47, sect. 6. As to according to the view cited in last note, 
 
 the correlation of this section and the have been reached at common law, yet 
 
 I lay Trespass Act, see Gammell v. Winter, dicta in the opinions point to a loss of 
 
 1885, 1 Sh. Ct. Rep. 355. right to the tenant through the Act with- 
 
 '"* Per L.P. Inglis in Brown v. Thom- out equivalent. 
 
430 WILD ANIMALS : GAME : BIRDS PROTECTION ACTS. 
 
 section is general and retrospective in the sense that the limita- 
 tion in sect. 5 to occupiers and others holding under contracts 
 made after the passing of the Act does not apply to it, the 
 words ' or otherwise ' being construable in no other way. There- 
 fore the prohibition in question was held to apply to the tenant 
 of a farm under a lease dated prior to the Act, and containing 
 no reservation of rabbits to the landlord. ^^^ 
 Complaint by It will be convenient to take up here the only other general 
 undeiThe^°*°* provision of the Act which remains to be noticed, though it more 
 Game Acts, properly belongs to the next part of this chapter. It is con- 
 tained in the seventh section, which (shortly stated) gives to a 
 non-occupier having the sole right of killing game (with the 
 exception of the statutory concurrent right of the occupier) the 
 same authority to institute proceedings under any Act authorising 
 the same as if he were owner of an exclusive right to game. 
 This enactment has been thus paraphrased : ' Considering that 
 ' a person who is in occupation of land is clearly one who may 
 ' complain, it is desirable to extend that right to a person who, 
 ' though not in the occupation of the land, is the representative 
 ' of the landlord in his right to kill game.'^^^ It implied, there- 
 fore, the right of a farm tenant, who had also an exclusive right 
 to the game, to prosecute under the Day Trespass Act, though 
 he described himself in the complaint as ' tenant ' only ; and 
 he was, therefore, protected against an action of damages for 
 unjust prosecution by the finality clauses of that Act, and of the 
 Summary Procedure Act, under which the complaint was 
 brought.-'^* 
 
 III. Leases of Game and Fishings. 
 
 Title to grant Since no one can grant a lease of more than he himself has 
 
 leases. j^ right, the lessor must be one who, as owner of the land over 
 
 which the right has to be exercised, or of the fishery in question, 
 
 or as the holder of some franchise or reserved right, has an 
 
 exclusive or concurrent title to the game or fishings, communic- 
 
 Servitude. able to Others. The holder of a servitude of pasturage has no 
 
 Commonty. such right. ^^^ One of several proprietors in a commonty cannot, 
 
 without the consent of the others, grant a liberty to shoot by a 
 
 lease for rent, though he may probably be entitled to shoot over 
 
 it himself, or even gratuitously to grant permission to others. ^^® 
 
 "2 Ibid. {.diss. L. Rutherfurd Clark). "= Forbes v. Anderson, 1st Feb. 1809, 
 
 "^ Per L.P. Inglis in Ferguson v. F.C. 121. 
 
 M'Nab, 1885, 12 R. 1083, 1088. "6 Campbell v. Campbell, 24th January 
 
 1" Ibid. ; 2 & 3 Will. IV. c. 68, sects. 1809, F.C. 100. 
 1, 2, 17 ; 27 & 28 Vict. c. 53, sect. 35. 
 
GAME LEASES. 431 
 
 Wbere any land or fishery is held by joint or common proprietors, Common 
 
 the lessee should take care that his lease is signed by all of them 
 
 or by their authorised agent. The transmissibility of a reserved Transmissi- 
 
 right depends wholly on its terms. Thus, a jiis aucupandi ' ' ^' 
 
 over a forest,, the property of another, is probably incapable of 
 
 being farmed out or converted into a means or engine of profit 
 
 or advantage, though it will entitle the holder to exercise the 
 
 right personally or through his gamekeeper or through his 
 
 friends, either in his presence or not, so long as the right is 
 
 fairly exercised over against the owner's right of stalking and 
 
 his concurrent right of fowling. ^^'' Two cases relating to salmon Of salmon 
 
 fishings stand in strong contrast to each other. In the one, the 
 
 owner in letting these reserved 'to himself and his heirs and 
 
 ' successors, and to the proprietor of the lands of L and to those 
 
 ' having their authority,' the right of angling with the rod in a 
 
 river and loch named and all streams connected therewith. The 
 
 catch was to belong to the lessee. This reserved right was 
 
 held to be communicable by lease.-^-'® In the other, the proprietor 
 
 of a riparian estate sold the salmon and other fishings in the 
 
 river, ' reserving always to me . . . and my successors in the 
 
 ' said lands and estate of the privilege of fishing with the rod 
 
 ' for our amusement only.' This was held, in the absence of proof 
 
 of more extensive use, to be a privilege personal to the proprietor 
 
 of for the time being, and one which he was not entitled to 
 
 delegate or communicate to any other person.-'^^ 
 
 A temporary right to kill and take game and other wild Forms of sport- 
 animals may take one of three different forms. It may be a lease "'s leases, 
 of land out and out, the known use of the land intended by both Lease of land, 
 parties being only or mainly the harbouring and sustenance of 
 game, such as deer. It is now established that this exclusive right 
 is to be regarded in every respect-'^^" as a lease of land — the nature 
 of the stock to be bred on it being of no consequence — and there- 
 fore to be valid against singular successors, such as succeeding 
 heirs of entail.^^^ This was decided in a case where an heir of 
 
 "' E. Aboyne v. Innes, 22nd January See a reservation of deer — Hemming v. 
 
 1813, ¥.G. 384, afif. 6 Pat. 444; esp. D. Athole, 1883, 11 R. 93. 
 
 per L.J.-C. Boyle, 391. L. Glenlee's "« Gemmill v. Eiddell, 1847, 9 D. 727. 
 
 proposed exception (p. 393) in favour of "' D. Richmond v. Duff, 1^67, 5 M. 
 
 the tenant of the lessor's mansion-house 310. The distinction is plain, though 
 
 has been justly controverted — 1 Hunter, fine, but Gemmill'a case seems to have 
 
 323 ; Irvine, p. 37. The point did not escaped observation. There was no pre- 
 
 arise in Carnegie v. L. Kintore, 1829, tension to lease the right. 
 
 8 S. 251, where there was a, reserved '-" Could the deer be gathered, seques- 
 
 right of shooting to two persons, their trated, and sold under hypothec ? 
 
 families, and persons residing with them. ■'-' Farquharson, 1870, 9 M. 66. 
 
432 WILD ANIMALS : GAME : BIRDS PROTECTION ACTS. 
 
 entail in possession petitioned the Court for authority to grant 
 to trustees for her Majesty a long lease of certain lands, ' together 
 ' with the timber, woods, and plantations thereon, and with full 
 ' and exclusive right to occupy and possess the said lands, and 
 ' to shoot, hunt, and sport, and to kill deer and game thereon.' 
 The land was a pure forest incapable of being occupied profitably 
 for any other purpose than sporting. The power was granted. ^^^ 
 Whether the same rule would apply to the more ordinary form 
 of a deer forest lease — which lets the privilege of sporting only 
 and not the lands themselves — on the ground that the possession 
 is really exclusive, has never been determined ; but the tendency 
 of modern decisions is towards the affirmative. ^^^ A forest 
 frequented in the shooting season not by stags but only by 
 hinds, is not a deer forest in the only sense in which the term 
 could properly be used in an advertisement; and it was decided 
 that the question of its real nature could not be shut out by the 
 fact that the lessee, before closing with the offer to let, had sent 
 his gamekeeper to visit the ground. ^^* 
 
 Rabbit- Another temporary right is obtained by the rabbit-catcher 
 
 ca c ing. ^^^ contracts with the person entitled to destroy the rabbits, 
 to trap them at his own risk, paying for the privilege a rent or 
 royalty. Nothing has been done by our Courts in elucidation of 
 the rights and obligations of these parties. 
 
 Ordinary game Intermediate between these extremes is the game lease proper. 
 
 lease. There is no exclusive possession of the corporeal subject — land ; 
 
 therefore the lease runs thus : ' The exclusive right to the shoot- 
 ' ings on the estate of X, but without prejudice to such right as 
 ' the tenants and farmers on the said estate may have by statute 
 ' or at common law to kill hares and rabbits for the protection 
 ' of their crops, and subject to any provisions in existing leases 
 ' relating thereto.' With this right, there may be let a dwellingr 
 house and offices; the rod-fishing for salmon in a river; and 
 right to fish in lochs. Arrangements are usually made for the 
 services, payment, and dismissal of servants, and the use and 
 maintenance of the garden, furniture, and boats. The tenant is 
 taken bound not to unduly increase the game on the lower and 
 arable lands ; to relieve the lessor of claims of damages made by 
 the agricultural tenants ; not to unduly reduce the stock of game, 
 'but to shoot and kill the same in a fair and sportsmanlike 
 ' manner, and leave a fair average stock of game on all parts of 
 
 122 The second diflSoulty in the case is '^4 e_ Wemyss v. Campbell, 1858, 20 
 noticed, supra, p. 64. D. 1090. 
 
 123 Infra, p. 434 ; 1 Jur. Styles, 702. 
 
GAME LEASES. 433 
 
 ' the estate at the termination of the lease, excepting always 
 ' such reduction as may be shown to have been the result of 
 ' disease over which he had no control,' — as fixed in case of 
 dispute, by arbitration.^^^ 
 
 Considerable controversy has raged round the question whether Confers right 
 the leading right thus granted out is to be regarded as the dele- for°land for" 
 gation, assignation, or communication of a personal privilege, °' ^^^^^^ 
 incident to the ownership of land, yet communicable by the 
 owner to others ; ^^^ or as a right of occupation of land for a 
 particular purpose, limited no doubt, but no more so in essence 
 than the right of a farming tenant to possess for the purposes of 
 agriculture. On the one hand, the rule has long been recognised 
 that game leases are not valid in questions with singular succes- 
 sors of the lessor. ^^'' From the nature of the subject let hypothec 
 is inconceivable. But a game lease could only become a real 
 right by a strain which even a statute so flexible as the Act 
 1449, c. 17, could scarcely be expected to bear; and hypothec 
 is not of the essence of a true lease. On the other hand, the 
 return made by the game tenant, and known universally as rent, 
 has been made to play all the parts which the law expects the 
 rent of land to perform. It is computed in estimating the 
 amount of a widow's provision under her marriage contract ; ^^^ 
 in settling the free rent of an entailed estate available for pro- 
 visions ; ^^ in fixing the amount of a widow's locality lands ; ^^ 
 in making up the valuation roll ; ^^^ in assessing for poor-rate 
 against either landlord or tenant ; ^'^ in making up the electoral 
 roll ; ^^ and lastly, in estimating the amount of the composition 
 due by a vassal to his superior.^** In some of these cases, build- 
 ings were let along with the sporting rights, but in principle the 
 circumstance is of no relevance, since the incorporeal was in each 
 case the principal right, and the other merely accessory. Further, 
 
 125 1 Jur. Styles, 699. For adapta- Sinclair v. L. Duffus, 1842, 5 D. 174. 
 tions to the Ground Game Act see Appx. '^ Cases in last note; Leith v. Leith, 
 Nos. idii., xiv. hereto. 1862, 24 D. 1059. 
 
 126 B. Pp. 952, 953 ; and cases in next "» Menzies v. Menzies, 1852, 14 D. 
 note. 651, 17 D. 1090, var. 23 D.(H.L.) 16. 
 
 127 Pollock, GHmonr & Co. ». Harvey, i^i 17 & 18 Vict. c. 91, sect. 42 ; D. 
 1828, 6 S. 913 ; Birkbeck v. Boss, 1865, Montrose, 1863, 1 M. 1197. 
 
 4 M. 272; per L. Chan. Hatherley in ™ Crawford -„. Stewart, 1861, 23 D. 
 
 Campbell v. M'Lean, 1870, 8 M.(H.L.), 44; 965. 
 
 L. Einloch alone maintains the contrary, i^ Paterson v. Johnston, 1879, 7 E- 
 
 Farquharson, supra, ^ at 9 M. 75 ; and 17, overruling Dawson r. Watson, 1869, 
 
 see per L. Ardmillau in E. Fife's Trs. r. 8 M. 10, and displacing dicta in Girvan 
 
 Wilson, 1859, 22 D. 191. v. Campbell, 1875, 3 R. 1 ; see also Kich- 
 
 128 M'Pherson v. M'Pherson, 1839, 1 ardson f. Steuart, 1878, 6 K. 17. 
 
 D. 794, aff. 5 B. App. 280, 5 D. 651 ; ^^ Stewart .-. Bulloch, 1881, 8 R. 381. 
 
 2 E 
 
4 3 4 WILD animals: game: birds protection acts. 
 
 Scope of 
 game lease. 
 
 Hot transfer- 
 able. 
 
 where sporting rights are not let, the mere capacity of the lands 
 to produce an appreciable, or at least substantial, return in that 
 way, is taken into consideration in estimating the amount of free 
 rent,"^ in fixing the amount of locality lands,^^^ in computing 
 composition,^^'^ and now also in compiling the Valuation Roll, and 
 in assessing for poor rate ^^^ — in other words, in all cases where 
 the question could arise for determination. In view of these 
 judgments the words of L.P. Inglis may be cited as laying down 
 the law as it now stands : — ' If, indeed, it were the law that a 
 ' a right of shootings was a mere personal franchise — as at one 
 ' time the Court appeared inclined to hold — there would be a 
 ' great deal to be said against the application of the words of 
 ' the statute [1469, c. 86, as to composition] to a lease of 
 ' shootings ; but I think it has now been laid down in a series 
 ' of decisions that this is not the nature of a right of shootings, 
 ' but that what the tenant receives under such a lease is a right 
 ' of occupation of land, as much as in the case of an agricultural 
 ' tenant. It is for a different purpose, no doubt, but it is not 
 ' the less a right of occupation ; . . . and I know no other 
 ' species of contract which will include the present except the 
 ' contract of lease.' ^^' 
 
 It has been seen that conflict of interest may arise between 
 agricultural and game tenants, where the scope of the title of 
 each is undoubted. In one case the title was disputed. The 
 question arose between a game tenant and his landlord, but Ae 
 substantial interest which the latter sought to protect lay with the 
 farm tenants. The landlord after granting a lease ' of the whole 
 ' game and shooting of every description' granted permission to 
 several of the farmers on the estate to destroy rabbits on their 
 holdings. It was held that the lease gave the game tenant the 
 sole right of shooting rabbits to the exclusion of the landlord and 
 of any one alleging an express right from him.-'*" 
 
 It seems to be a just remark that ' a lease of shootings implies 
 ' delectus personce in a sense perhaps more emphatic than almost 
 ' any other kind of lease.' ^*^ If this be so, it must be incom- 
 
 135 pgy L Brougham in Maopliersou 
 V. Macpherson, 5 B. Ap. 328 ; and L. 
 Barcaple in Birkbeok v. Ross, supra, ^^. 
 
 ^^^ Menzies v. Menzies, supra, ^''. 
 
 '^ Stewart v. Bulloch, supra, ^^^. 
 
 »8 49 Vict. c. 15. 
 
 ''» In Stewart v. Bulloch, at 8 R. 383, 
 384. The decision in D. Athole, 1855, 
 17 D. 1015, that a shooting-lodge is not 
 an entail improvement is displaced by 
 
 38 & 39 Viet. c. 61, sect. 3 (7f). 
 
 "» North V. Gumming, 1864, 3 M. 
 173. The case leaves much unsettled. 
 
 "1 Per L. Kinlooh in E. Fife v. Wilson, 
 1864, 3 M. 323, 324. The effect of an 
 exclusion of assignees and sublessees was 
 raised but not decided in North, supra, 
 '^"j the original tenant being himself a 
 party in the case. 
 
GAME LEASE. 485 
 
 petent for the lessee to sublet or assign without the landlord's 
 permission. 
 
 A tenant who had an express permission to kill off the whole Warren, 
 rabbits in a warren was held to have no claim against the land- 
 lord for a breeding stock which he chose to leave behind at ish."^ 
 
 The usual term of entry to a game lease for a year or years is Miscellaneous 
 at Whitsunday. Nothing has been settled though certain saga- 
 cious suggestions^*^ have been made as to the mutual rights and 
 obligations of the outgoing tenant on the one hand, and the land- Outgoing and 
 lord and incoming tenant on the other, during the period between tenants, 
 the close of a shooting season and the Whitsunday following. It 
 is also not uncommon to let shootings for the season or even for Rent, 
 shorter periods. There is no rule as to the date of payment of 
 rent. It is usual in the case of Highland (and, it may be added, 
 of other) shootings especially if let for a season only or part of one, 
 to stipulate expressly for the payment of rent forehand. Where Short measure, 
 this had not been done and nothing in the shape of a custom 
 was made out, the Court refused a petition brought immediately 
 after the season began for sequestration of the tenant's effects 
 contained in a house let with the shootings.^** Where a pro- 
 prietor let inter alia ' the exclusive right of shooting over ' 
 a grouse moor, . . . ' all as lately occupied by D,' and the rent 
 was paid in advance, the tenant was held entitled to damages on 
 the ground that two of the seven beats were held in common 
 with a neighbouring proprietor, though that had been the case 
 during D's tenancy. The ruling words were ' the exclusive right,' 
 and the decree granted did not interfere with the rule against an 
 actio quanti ininoris, since it was not the duty of the tenant 
 to throw up the lease when he first heard of the defect the day 
 before the Twelfth. i*^ A lease of game does not curtail the Plantations, 
 landlord's right of dealing with plantations in the course of the 
 ordinary administration of his estate, by thinning, cutting down 
 ripe wood, beating up, draining, making new plantations and the 
 like, so long as he does nothing with the purpose of injuring the 
 game tenant's right. ^** 
 
 "2 Lockhart v. Cathcart, 1833, 11 S. 47.5. 
 339. i« Geams v. Baker, L.R. 10 Ch. 355 ; 
 
 i« Irvine, 39. and see Pattisson r. Gilford, L.E. 18 Eq. 
 
 '■" I'raser v. Patrick, 1879, 6 R. 581. 259 (advertisement of sale of estate). 
 »^ Gritchley r. Campbell, 1884, 11 R, 
 
PART III. 
 
 TERMINATION OF LEASES. 
 
 1. Removing Genera.lly (Chap. XIX.). 
 
 2. Termination during Currency (Chap. XX.). 
 
 3. Termination at Ish : Ordinary Removings (Chap. XXL). 
 
 4. Tacit Relocation (Chap. XXII.). 
 
 Crofters Holdings Act (Chap. XXIII.). 
 
439 
 
 CHAPTER XIX. 
 
 KEMOVING GENERALLY. 
 
 By far the largest number of questions in the law of leases have Division of 
 arisen in connection with the termination of the contract. Many ^'"' ' 
 of these have been merely incidental to the dissolution of the 
 relation of landlord and tenant, and have been treated or will 
 still be noticed more conveniently in other parts of this work. 
 It will be attempted in this and the following chapters to describe 
 the mode in which the contract of lease may be brought to an 
 end. In doing so it will be well to deal in the present chapter 
 with the generalia of removings and in the succeeding chapters 
 to adhere as heretofore to the order of time, and to set forth in 
 the first place the modes and circumstances in which a lease 
 is brought to a premature conclusion, or at least to a conclu- 
 sion earlier than the most remote ish contemplated in the con- 
 tract ; and then to proceed to the cases in which leases run out 
 in the ordinary way. 
 
 The technical term for the relinquishment of possession by a NomeDclature. 
 tenant is a removing. It may be either voluntary or compulsory. Kemoving. 
 Where the removing is premature (in the above sense), a volun- Voluntary 
 tary removing is the result either of the tenant's taking advantage '■^™°^'°s- 
 of a breach of contract on the part of the landlord, setting the 
 tenant free if he desires liberty ; or of an agreement between the 
 parties known as renunciation. Of the former mode of termin- Eenvmciation. 
 ating the contract many examples have been adduced in the 
 foregoing pages. ^ The law relating to the latter is set forth in 
 the following chapter. A premature removing may also be the 
 result of the landlord's taking advantage of an irritancy legal or 
 conventional. In the stricter sense of the word a removing is Action of 
 the process at law by which a landlord enforces his tenant's obli- 
 gation to quit possession.^ A removing, which is compulsory and Ordinary and 
 
 extraordinary 
 
 ^ See esp. Chaps, x., ivii. need not be explained here. It is treated 
 
 ' The meaning of the term 'ejection' of infra, p. 494. 
 
440 
 
 REMOVING GENEEALLy. 
 
 withal premature, in the sense of taking effect during the cur- 
 rency of a lease, is known as extraordinary in contradistinction to 
 ordinary removings which take place at the natural ish. In this 
 description of the terminology,^ the tenant's point of view has 
 Breaks. been maintained Still retaining the same standpoint, it is 
 
 obvious that a stipulated break may be either voluntary, or com- 
 pulsory, or mixed, according as the option to break possession 
 rests with the tenant alone, or the landlord alone, or with each of 
 them. 
 
 The general rules which occupy the present chapter may be 
 ranged under three heads. 
 
 Interdict 
 incompetent. 
 
 I. Removing (including Ejection) the Exclusive Remedy. 
 
 A removing (or ejection) is the only legal mode of displacing 
 a sitting tenant. In particular, procedure by interdict or sus- 
 pension and interdict is incompetent so long as the tenant is in 
 possession. Thus, where a lease had fallen in through the 
 bankruptcy and sequestration of the lessee, and the landlord, 
 while declining to allow the creditors to possess, permitted the 
 bankrupt and a partner whom he had assumed to hold on and 
 pay the rent, it was held incompetent to oust the partners by 
 means of the summary remedy of interdict against further occupa- 
 tion raised by the landlord and the trustee in the original 
 tenant's sequestration.* Similarly, a lease having been forfeited 
 through the bankruptcy of the tenants it was held to be incom- 
 petent to interdict them and their trustees from occupying the 
 subjects ; the former, because they were in lawful possession and 
 only to be ousted by a removing ; the latter, because they pre- 
 tended no right and showed no intention to enter.* And the 
 question whether there has been an operative obligation to remove 
 at ish, or on the other hand a right in the tenant to continue 
 possession by tacit relocation, can only be tried in a removing, 
 not in an interdict against interference with the subjects and 
 against preventing the landlord from entering — ' that being a 
 ' process only appropriate if the tenant is not in possession.' ® 
 But questions arising pending a lease or at its termination, with 
 regard to the use of the subjects may be competently raised in 
 the form of an interdict.'^ If ejection has taken place, and in 
 
 ' It is not exhaustive ; but solemn 
 and summary removings will more fitly 
 be noticed farther on. 
 
 * Borrows „. Colquhoun, 1852, 14 D. 
 791, rev. 1 Macq. 691. 
 
 = Rankin <,. M'Lachlan, 1864, 3 M. 
 
 128, — interim interdict. L. Benhohne 
 difiered on the latter point, but the judg- 
 ment seems sound. 
 
 " Johnston v. Thomson, 1877, 4 R. 868. 
 
 ' Rankin r. ll'Lachlan, supra, ^ 
 
TITLE TO SUE. 441 
 
 spite thereof the tenant returns ^ or threatens to return * to pos- 
 session, interdict is the proper remedy. And if third parties 
 allege a legal right to make use of land which is let, the appro- 
 priate remedy of the landlord and tenant is interdict.^" 
 
 II. Title to Sue. 
 
 Different rules apply where the landlord suing an action of 
 removing is, and where he is not, the actual lessor, the party 
 from whom the lessee derived his right. 
 
 A. Title of Lessor Himself. 
 
 In the former case the pursuer is entitled to sue, however Cannot be 
 defective his title to the subjects may be ; and the tenant has no ™P"sne 
 right to object to that title, nor to invert the possession (causam 
 possessionis Tnutare) for the purpose of evading decree,^^ whether 
 the origin of the tenancy be proved by writ or the tenant's oath 
 or by his judicial confession. ^^ The rule has been given effect to 
 where the lessor was principal tenant of the subjects ; ^^ and also 
 where the lessor at the date of the lease was an undischarged 
 bankrupt, left in possession by his trustee who declined to inter- 
 fere with the subjects.^* It follows, moreover, that neither the 
 original lessee nor any assignee of his is entitled to call for pro- 
 duction of the lessor's title merely for the purpose of ascertaining 
 whether the lease is a valid security. ^^ But the rule does not Except on the 
 go so far as to prevent the tenant from producing primd facie divestiture, 
 evidence (a disposition of the property or an assignation of the 
 principal lease, as the case may be) to show that the lessor had 
 denuded himself of his right in the subjects. If, however, there 
 is a dispute as to the existence of such a transfer, the action of 
 removing is not the proper proceeding for trying the question. ^^ 
 A disposition ex f<mie absolute though really in security if com- 
 
 « Boswell's Trs. v. Pearson, 1886, 24 Burns, 1802, Hume 568, goes further, if 
 
 Sc.L.R. 32 (a month's imprisomneut for as seems to be the case the lease was not 
 
 persistent breach of interdict by small granted by the pursuer, 
 farmer) ; Dalgleish v. Henderson, 1887, ^^ Hamilton v. Crawford, 1583, M. 
 
 ScW.N. 83. 13784, 14023. 
 
 " Baillie v. Mackintosh, 1882, 19 " Dunlop & Co. .,. Meiklem, 1876, 4 
 
 ScL.R. 352. K. 11. 
 
 " Macleod v. Davidson, 1886, 24 Sc.L. U. " King ». Wieland, 1858, 20 D. 960. 
 
 69 (pasturage: claim abandoned). '' Dennistoun, Macnair& Co. v. M'Ear- 
 
 " Balf. 459 ; Cr. 2.9.20, 28 ; St. 2.9.41 ; lane, 1808, M. App. Tack, 15. 
 4.26.8 ; Bankt. 2.9.54 ; Ersk. 2.6.51 ; '* King v. Wieland, svpra, " ; see Ly. 
 
 Agnew V. Corcaphie, 1631, M. 13796 Essilmont v. Tenants, 1582, M. 13783, 
 
 (wadsetter) ; Penman v. Martin, 1822, 12046 ; Maxwell v. Glassock Tenants ; 
 
 1 S. 485 (N.E. 452) ; Butter v. M' Donalds, and Nithsdale v. Tenants, 1627, M. 13788, 
 
 1769, M 11999 ; York Buildings Co. v. 1 B.S. 236. 
 Carnegie, 1764, M. 4054; Stewart i>. 
 
44.2 
 
 REMOVING GENERALLY. 
 
 Being an un- 
 limited owner. 
 
 Infeftment 
 required. 
 
 Singular suc- 
 cessors. 
 
 Exceptions. 
 
 pleted by infeftment is a divestiture sufficient to displace the 
 title to sue ; ^"^ but a landlord does not lose his right of action 
 against his tenant by a mere assignation of the rents to a third 
 party, since he cannot thus without his tenant's consent inter- 
 pose an intermediate tenancy and convert his tenant's right into 
 one of subtenancy. ^^ 
 
 B. Title of Pursuer who is not the Lessor. 
 
 Turning now to the question what sort of a title .the pursuer 
 of an action of removing, who is not the original lessor but 
 a third party, must produce, it will be convenient to state 
 in the first place the rules which apply to landlords whose 
 title is not restricted by any concurrent right, and then to 
 proceed to the additional requirements which arise out of limited 
 titles. 
 
 1. Title required where Pursuer is Unlimited Owner: 
 
 The strict rule of law is thus stated by Erskine : " If a pro- 
 ' prietor is to insist against tenants or possessors who derive their 
 ' right from others, sasine is, by our customs, a necessary title 
 ' in removing ; ' ^^ and by Lord Cowan : ' Where an action of 
 ' removing is brought by a party other than the one from whom 
 ' the title of the party sought to be dispossessed is said to have 
 ' flowed, there must be an infeftment in the person of the pur- 
 ' suer.' ^^ This rule, which probably arose out of the feudal 
 jurisdiction of the barons' courts, and may still be of value for 
 the protection of tenants against latent conveyances, can scarcely 
 be arraigned as unnecessarily stringent or inconvenient, now that 
 the process of infeftment has been so materially simplified. 
 After considerable fluctuation of opinion on the Bench and in 
 the study,^^ the rule seems to be fixed,^^ and to be open to only 
 two well-established exceptions, viz., where the pursuer's title is 
 by purchase so notorious as in judicial sales (now nearly obsolete),^^ 
 
 " Traill v. Traill, 1873, 1 E. 61. The 
 point is left in some doubt in this case, 
 but later ■views regarding such disposi- 
 tions tend in this direction. 
 
 18 Wilson V. Wilson, 1859, 21 D. 309. 
 
 " Ersk. 2.6.51. 
 
 2» In Traill v. Traill, supra, i", at 1 R. 
 64. Old cases as to the nature of the 
 requisite infeftment are reported in M, 
 570, 1338, 13789, 13793, 13808, 14319 ; 
 1 B.S. 239, 261. It is enough, though 
 the infeftment be only as ' part and per- 
 ' tinent'— Ly. Boyn 'c. Tenants, 1627, M. 
 9628. 
 
 21 Of. St. 2.9.41 ; Bankt. 2.9.54; Ersk. 
 
 2.6.51 ; Fountainhall in 3 B.S. 151 ; Pax- 
 ton V. Hunter, 1749, M. 16121, with 
 Ersk. 2.6.52; Milne v. Petrie, 1807, 
 Hume 581, M. Appx. RemoTing 5, where 
 Erskine's dicta are echoed, but the lessor 
 was himself not infeft. 
 
 22 Scott V. Fisher, 1832, 10 S. 284. Yet 
 there was much diversity of view in Traill 
 V. Traill, swpra, ^ ; see esp. op. of L. 
 Cowan and L. Neaves. 
 
 ^ L. Adv. V. Ardnamurchan Tenants ; 
 and Alexander v. Dornoch Tenants, 1773, 
 5 B.S. 571 ; Stewart v. Spalding, 1791, 
 noticed in Campbell v. M'Kellar, 1808, 
 M. Appx. Removing, 5. 
 
TITLE TO SUE. 443 
 
 and where the conclusion for removing is only ancillary to a 
 declarator.^* But an instance originally defective for want of 
 infeftment may be cured by registering the title before the 
 calling of the case.^^ Even, during the progress of the cause, 
 time would probably now be given by the Court to get this done 
 when the blot has been detected and founded on.^® If infeftment 
 cannot be taken by a purchaser before action of removing is 
 raised by him, it is a competent and advisable course to join the 
 vendor infeft with him in the instance.^'' 
 
 The rule requiring infeftment applies not only to the case Heks of lessor, 
 of singular successors of the lessor but also to his heirs, ^^ subject 
 to the same modifications. The rule could scarcely be gainsaid 
 where the heir possessed, under the old law, on mere apparency 
 without connecting himself in any way with his ancestor.^' It 
 was ultimately established also in cases where the heir's title was 
 nearly personal, standing on retour or precept of dare constat ; ^ 
 and it would consequently be held to apply to the case of an 
 heir uninfeft but possessing, by the force of modern legislation, a 
 personal right by mere survivance.^^ The modifications referred 
 to proceed on the principle that before the tenant gives up his 
 right, he is entitled to see that the party requiring him to cede 
 possession has a good title. Consequently, if infeftment takes 
 place before decree, the defect is timeously cured.^^ It may be a 
 question whether the Court would now demand the production 
 of an infeftment before granting decree, if the tenant did not 
 seriously impugn the pursuer's title as heir but took the objection 
 for the purpose of delay. The ratio on which it is settled that 
 a' defective instance is sufficiently cured by infeftment before 
 decree applies equally to infeftments proceeding on precepts or 
 writs of dare constat, and to infeftments proceeding on ser- 
 
 « Tennant v. M'Donald, 1836, 14 S. 6273, 13806 ; Sutherland v. Grahame, 
 
 976. 1759, M. 5276 ; of. Morgan v. V. Arbnth- 
 
 ^ Campbell v. M'Kellar, iv,pra, ^ ; not, 1791, M. 5295. 
 
 Stewart v. Spalding, supra, ^. so M'Math v. Hewit, 1606, M. 1.3265 ; 
 
 -^ See MUne v. Young, and Brown v. Davidson i. Gordon, 1626, 1 B.S. 31 ; 
 
 Lang, reported, M. Appx. Removing, p. Tennant v. Auchinleck, 1626, M. 13272 ; 
 
 11, Hume 565; and obs. in Scott v. Scott «. Fisher, ^ ; Mackintosh u Munro, 
 
 Fisher, ^ ; but see the older rule in Ten- 1854, 17 D. 99 ; and see Mackenzie v. 
 
 nant v. M'Donald, supra, ^, per L.O. Gillanders, 1853, 16 D. 158. 
 
 Moncreiff. ^i 37 & 38 vict. u. 94, sect. 9. 
 
 ^ Ferguson v. Morison, 1802, M. '^ Mackintosh v. Munro, supra, '" ; 
 
 13806. Brown v. Lan^, supra, ^ ; Johnston v. 
 
 28 Or. 2.9.28; St. 2.9.41, 4.26.8; Martin, 3rdMarchl810,F.C. 611 ; Camp- 
 
 Bankt. 2.9.54 ; Brsk. 2.6.51, 3.8.58. bell d. M'Kellar, supra, ^ ; Soctt v. 
 
 =0 Calderwood v. Smith, 1626, M. Fisher, supra, ^. 
 13272 ; Patou v. M'Intosh, 1757, M. 
 
444 
 
 REMOVING GENERALLr. 
 
 All concur. 
 
 Concur where 
 lease granted 
 by both. 
 
 vices.^^ In other respects the ordinary rules relating to the trans- 
 fer of right of action pendente processu apply in these cases. ^* 
 
 2. Title of a Limited Owner. 
 
 (a) Joint and pro indiviso Owners. 
 
 Where there are two or more joint or common owners all of 
 them must concur in removing the common tenant,^® however 
 small the interest of any of them may be.^^ Thus, where of four 
 co-owners pro indiviso, who had let a subject through one of 
 them who took the management, this one was dead at the date 
 of an action of removing brought by two of the others, and 
 neither his heirs nor the fourth co-owner who was resident 
 abroad joined in the action, it was held that the pursuers had no 
 title to sue.^' Exceptions to this rule occur, first, where either 
 at common law or by statute joint-owners — such as trustees — 
 may proceed by a majority or a quorum ; ^^ secondly, where it 
 can be shown that the mandate of a managing co-owner who has 
 acted as lessor extends or must be held to extend to the remov- 
 ing of tenants thus in right, the rule against repudiating the 
 lessor's title having no application in this case ; ^® and, thirdly, in 
 the case of coadjudgers, any one of whom may sue for a removing, 
 if he is ready with a more solvent tenant, or a greater rent,*" or 
 with caution for the rent.*^ 
 
 (6) Lifer enter and Fiar. 
 
 Where a lease has been granted by liferenter and fiar acting 
 together, or by their common author, the concurrence of both is, 
 on similar principles, required in a removing.*^ The fiar is after 
 the liferenter's death entitled to carry on alone proceedings 
 begun by both, to the effect of obtaining a removing, but not of 
 
 33 Cf. Hamilton o. Boswell, 1715, M. 
 13803 ; L. Drumquhashill v. Cleland, 
 162S, M. 13274 (reports inconsistent); 
 with Stevenson v. Stevenson, 1623, M. 
 10430, 13268; Elphingston i>. Guthrie, 
 
 1625, j\I. 13270; Wallace v. Tenants, 
 
 1626, M. 13788 ; Jack v. Muirhead, 1679, 
 3 B.S, 151, 403. For authorities on titles 
 of donatars, see 2 Hunter 10. 
 
 *• See L. Drumlanrig v. Scott, 1625, 1 
 B.S. 24; L. Crosbie i. Hume, 1637, M. 
 16153 ; Mackenzie ii. Gillanders, 1853, 
 16 D. 158 ; Hay i). Bandone, 1613, M. 
 10365 ; Ker v. Nisbet Tenants, 1623, M. 
 10367 ; 1 Mackay's Practice, 492, 497. 
 In Barbour v. Bell, 1831, 9 S. 33.4, the 
 action was by assignee's assignee against 
 the cedent of a lease. 
 
 *■' Or. 2.9.45 ; St. 2.9.43, 4.26.10 ; 
 Bankt. 2.9.47 ; Ersk. 2.6.53 ; More's 
 Notes, 258; Stewart i/. Wand, 1842, 4 
 D. 622. 
 
 ^ Bruce v. Hunter, 16th Nov. 1808, 
 F.C. 5 (l-71th part). 
 
 ^ Grozier v. Downie, 1871, 9 M. 826. 
 
 38 24 & 25 Vict. c. 84, sect. 1 ; M'Laren, 
 Wais, ii. 185. 
 
 '" Murdoch v. Inglis, 1679, 3 B.S. 297. 
 Grozier r. Downie, supra, ^. 
 
 « A V. B, 1680, M. 2448. 
 
 *i Halliday v. Bruce, 1681, M. 2449. 
 
 ^^ Buchanan v. Yuille, 1831, 9 S. 843, 
 sequel in 11 S. 682; see M'Christie v. 
 Fisher, 1825, 4 S. 11; CoUart v. Ly. 
 Avandale, 1610, M. 13266. 
 
TITLE TO SUE. 445 
 
 recovering violent profits, these being due to the liferenter.*^ It 
 would probably now be held that an action of removing brought 
 by a fiar without the liferenter's consent would be cured of 
 informality by the death of the latter pendente processu.^ 
 Kenning to her terce seems to be requisite to enable a tercer to Terce. 
 remove or concur in removing tenants not entered by herself ; *^ 
 but it is not necessary to produce an infefbment or the service 
 on which the kenning proceeded.*^ Courtesy gives a title to sue Courtesy. 
 or concur in suing a removing without sasine or other solemnity.*^ 
 A parish minister, on his induction but not till then, may remove Parish 
 from the manse, the glebe, or the minister's grass, the tenant or ™""^ ^'^' 
 tenants of his predecessor, without formal warning, provided he 
 gives reasonable notice ; ** but they are entitled to reap crop 
 sown by them prior to the notice, on the principle Ttiessis semen- 
 tem sequitur.*^ 
 
 (c) Administrators. 
 
 Power to remove is not co-extensive with power to grant Tutors, 
 leases.^" Tutors may sue removings, since these are or may be 
 part of the ordinary administration of the pupil's estate/^ So Judicial 
 
 • j"'ii^j- 1*1 J factors. 
 
 may judicial lactors ; and special powers are unnecessary and 
 therefore inadmissible.^^ But the Court will restrain them from 
 proceeding in maid fide.^^ Power to remove tenants is one of Trustees, 
 the ordinary powers of gratuitous trustees.^* A minor may Curators, 
 remove tenants with the consent of his curators. ^^ It has even 
 been held that he can do so without their consent*® But the 
 curators cannot proceed without obtaining and retaining the con- 
 sent of their minor ward.'^ A private factor or commissioner Private 
 requires express power, contained in his commission or in some ^^ °''^' 
 other writing, in order to have a valid title to sue in a remov- 
 ing ; ^ and proceedings will be reduced which have been taken 
 
 « Eamsay v. Homes, 1629, M. 3173, see ibid. p. 399. 
 13792; St. 2.9.41; Bankt. 2.9.41. «> York Buildings Ccw. Carnegie, 
 
 « But see Ardwell v. M'Culloch, 1632, infra, ^. 
 M. 13798. *' Eraser, P. and Ch. 258. 
 
 *> Balf. 457 ! Cr. 2.9.21 ; St. 2.9.41, ^^ Thomson v. Elderson, 1757, M. 
 
 4.26.8 ; Bankt. 3.9.54 ; More's Notes, 4070 ; Carlyle v. Lowther, 1766, M. 8380, 
 
 258; Fra.ser, H. and W. 1108; B. Pr. 5 B.S. 571. 
 1602 seq. ^' Edgar v. Whiteheads, 1714, M. 4053. 
 
 « Maxwell v. Tenants, 1630, M. 2229, « 30 & 31 Vict. c. 97, sect. 2. 
 
 12014, 15842. =' Ersk. 1.7.16. 
 
 ^' St., Bankt., Ersk, supro,''"; Eraser, ^ Ardross Heirs v. Dishington, 1566, 
 
 H. and W. 1124. M. 8938, questioned in Eraser, P. and C. 
 
 « M'CaUum v. Grant, 1826, 4 S. 527 ; 378, justly. 
 (N.E. 535), supra, p. 30. ^ Allan v. Walker, 1812, Hume 586. 
 
 ^ Cambee Ca., 1807, ».r., but noticed ^ York Buildings Co. i:. Carnegie, 
 
 in Duncan, Paroch. Ecol. Law, 520 ; and 1764, M. 4054. 
 
injrat tenants.' 
 
 446 REMOVING GENERALLY. 
 
 and carried through without such authorisation.^^ It would 
 appear, however, that a written authority granted post, will cure 
 the informality of a verbal authority granted ante, litem mota/m ; 
 and that power to grant leases involves, in the absence of the 
 constituent abroad, power to remove tenants.*" 
 
 (d) Adjudgers. 
 An adjudger who has charged the superior of the lands to 
 
 enter him has not a title to pursue a removing of the tenants, 
 infeftment being necessary in conformity with the general rule, 
 which is not affected by the pari passu ranking of adjudgers 
 within year and day.^^ 
 
 (e) Lessee. 
 In accordance with the rule stated in the outset, a principal 
 
 lessee may remove his subtenant without the concurrence of his 
 landlord, though the consent of the latter was originally required 
 to render the sublease effectual.*^ On the other hand, in order 
 I Output and to entitle a lessee to remove tenants or possessors not holding 
 of him as lessor there must be authority to remove either express 
 or implied. The usual form of express grant is a power ' to 
 ' output and input tenants.' "^ A title to sue is implied if the 
 lease is for life or for more than nineteen, years;** or if the 
 lessor or lessee have been in possession.*^ In other cases the 
 lessee must proceed by declarator and removing, decree in the 
 declarator being necessary to success in the ancillary conclusion.** 
 The Court will look into the lessee's title for the purpose of 
 ascertaining, for instance, whether he is really a lessee or only the 
 factor of a landlord who does not insist in the removing,*'' or 
 whether the defender's subjects are or are not excepted from the 
 lease. *^ 
 
 '' Johnston ^'p Dickson, 1831, 9 S. 452; 1525, since there was no possession. 
 Slowey 1). Robertson, 1865, 4 M. 1. *•' Gentle v. Henry, SKpra, ^* ; Sandi- 
 
 ™ Shinas v. Fordyce, 1777, 5 B.S. 572 ; lands r. Carmichael, 1542, M. 13781. 
 Thomson v. Handyside, 1883, 12 S. 557. "^ 2 Bell, Leases, 61. In a very special 
 
 ^ Chalmers v. Dalrymple, 1701, 4 B.S. case, which was brought by a lessee 
 
 589; 1661, c. 62; St. 19.41, 3.11.24, against the lessor only, to obtain removal 
 
 4.26.8 ; Bankt. 2.9,54. As to right of of cottars, the question as to the nature 
 
 heritable creditors, see p. 45. of the tenure of these persons was not 
 
 *^ M'llreavie v. Smith, 1810, Hume reached, the case being dismissed niainly 
 
 851. on account of their not being called — 
 
 '''3 Balf. 417 ; Or. 2.9.24 ; St. 2.9.41 ; Winana v. Mackenzie, 1883, 10 R. 941. 
 4.26.8 ; Bankt. 2.9.54 ; Ersk. 2.6.51 ; <" Juhnstou v. Dicksun, 1831, 9 S. 
 
 Logic V. Corsie, 1847, 9 D. 11 01 452. 
 (cottars). «« Ritchie v. Dickson, 1857, 19 D. 949 
 
 ^ Last note and More's Notes, 258 ; —as to which proof allowed. Subtenancy 
 
 Gentle V. Henry, 1747, M. 13804 ; and was alleged, so that there could be no 
 
 this must have been the state of the facts doubt of the pursuer's title if this qnes. 
 
 in Galashiels v. Mackerston, 1629, M, tion were decided in his favour, 
 
DEFENDERS. 447 
 
 The right of a lessee to sue a removing is only lost when 
 a decree of removing has been obtained against him by his land- 
 lord — a decree of reduction of his lease not being enough to 
 alter the state of possession.^' An action of removing by a 
 tenant against a subtenant is not a convenient process in which 
 a third party may raise questions of heritable right ; and the 
 removing will be allowed to proceed in spite of his intervention."" 
 Crofters who employed a herd had a right to dismiss him from 
 their employment, but had no right to remove him from the 
 herd's croft, of which they were neither proprietors nor tenants ; 
 and it was questioned whether in any circumstances tenants 
 under verbal leases could pursue a summary removing.'''^ 
 
 III. Defenders. 
 
 The persons who are to be called as defenders are described in Possessors, 
 the Act of 1555''^ as ' the parties warned and possessoures of 
 ' the ground.' The persons who had to be warned under the 
 obsolete procedure set out in that Act were all who had or 
 alleged a right to possession."^ Where the defence set up for 
 a tenant is that he holds under a third party claiming a heritable 
 right, the more convenient, probably the alone competent, course 
 in modem times is to raise a declarator and removing.'^* Where 
 the lease is held jointly or pro indiviso by two or more tenants 
 all must be caUed,'^ if it is intended that all should be removed ; 
 but it is quite competent to oust certain pro indiviso lessees, 
 while allowing the others to sit on.'^^ 
 
 With regard to the calling of assignees and subtenants, the Assignees and 
 rule is partly ascertained by a provision (sect. 3) of the Act of ^" ^ 
 Sederunt of 14th December 1756, which is in substance declara- 
 tory of the common law : — 
 
 Where a tack is assigned and the assignation not intimated by an 
 instrument, or where the lands are subset in whole or in part to sub- 
 tenants, such homing execute as aforesaid," or where process of rcmnv- 
 
 «» Semile—Innesv. Allardice, 1822, 2 S. 2226-9 ; Balf. 457 ; Cr. 2.9.36 ; St. 2.9.43, 
 
 93(N.E. 85) — interdict against poachers. 4.26.5; and for a very special case, 
 
 ™ Shirlaw v. Wilson, 1823, 2 S. 561 Campbell v. D. Argyll, 1836, 14 S. 798. 
 
 (N.E. 485). ■' M'Donald v. M'Donald, 1807, Hume 
 
 '^ Cameron v. Kobertson, 1867, 39 580 (only on passing the note, but the 
 
 Sc. Jur. 256 (Lochiel) ; and see Sinclair doctrine seems sound). As to the mode 
 
 ■u. Leslie, 1887, Sc.W.N. 27. of citing a plurality, see Macdonald <. 
 
 ''^ Infra, chap. xxi. Sinclair, 1843, 5 D. 1253. 
 
 73 Or. 2.9.36 ; Mack. Obs. 155 ; Ross, '« St. 2.9.43, 4.26.10 ; Bankt. 2.9.67. 
 
 Remov. 65. " Under sect. 1 of the A.S., infrri, p. 
 
 "^^ See the older authorities in M- 477. 
 
448 REMOVING GENERALLY. 
 
 in" and decreet is obtained/' or where warning in terms of the Act 1555 
 is used against the principal or original tacksman, the same shall be 
 effectual against the assignees or subtenants, one or more, and the action 
 of removing against the principal or original tacksman and decreet of 
 removing following thereon shall be effectual against such assignees and 
 subtenants as aforesaid, and shall be sufficient ground of ejecting them, 
 anything in the former practice to the contrary notwithstanding/' 
 
 Therefore where the tenant of a farm, who had no express 
 power to sublet, was removed by decree, his subtenant of a mill 
 on the farm was held to be properly ejected by summary process, 
 the landlord's private knowledge of the subtack being an irre- 
 levant circumstance.*" But, if the assignee's right has been 
 intimated to the landlord, '^ or the sublessee has been acknow- 
 ledged, through receipt of rent direct by the landlord or otherwise, 
 they are the proper contradictors.*^ If not thus put in place of 
 the principal tenant, an action of removing brought against a 
 subtenant alone will not avail to oust his author.*^ It is, how- 
 ever, a safe precaution to call all possessors on whatever title as 
 defenders in a removing, and there is no advantage in separating 
 the instance.** But, if possession is held by an assignee or sub- 
 tenant in defiance of an exclusion arising ex lege or by agreement, 
 the intruder may be removed summarily without calling his 
 author.*^ Care should be taken to select the real tenant for 
 attack.*^ 
 
 78 Ibid. sect. 2, infra, p. 484. 83 Laj^g ^. n. 1565, M. 13807 (though 
 
 '' Following B. Marchmont v. Fleem- possessing only on tacit relocation) ; 
 
 ing, 1743, M. 13839— the lease had nin Whiteford j;. Johnston, 1628, M. 13809 
 
 out and the subtenant had not been [do.); Richard v. Kirkland, 1663, M. 
 
 warned. 13812 ; Thomson v. Harvie, 1823, 2 S. 
 
 8" Wilson V. Campbell, 1839, 2 D. 232 ; 581 (N.E. 498). 
 
 D. Queensberry v. Barker, 7th July 1810, 84 Davidson v. Girvan, 1838, 16 S. 
 
 F.O. 743 (substantially an assignation). 1125. 
 
 81 The A.S. demands (too scrupulously 8S j„fra, p. 498. 
 
 it is thought) a notarial instrument ; see 88 grant i,. Grant, 1 753, M. 13841 
 
 supra, p. 166. (stepfather of' pupil tenant) ; Dunbar, 
 
 82 Ross, Remov. 98 ; Ly. Lawriston v. 1582, M. 13819. 
 Tenants, 1632, M. 13810. 
 
449 
 
 CHAPTER XX. 
 
 TERMINATION DUKING CURRENCY. 
 
 Leases come to an end sooner than at the most remote ish 
 contemplated, in three ways — by renunciation ; in pursuance of 
 a break ; and by virtue of an irritancy. 
 
 I. Renunciation of Leases. 
 
 The circumstances in which a tenant is entitled to renounce Eenunciaticn 
 or throw up his lease on account of a breach of the mutual brea™^ °" 
 contract by his landlord must be sought in other parts of the 
 work. The renunciations which are to be noticed here are such Renunciation 
 as are consented to by the landlord, expressly or by necessary ^ ""'^^'^ ■ 
 implication.^ The present subject is further narrowed by reserv- 
 ing to next chapter the law of obligations or agreements to remove 
 at the natural ish, the aim of such obligations being merely to 
 facilitate ordinary removings. 
 
 Where the renunciation is express, the act is so simple that Express re- 
 little difficulty can arise in construing the writ. It is granted 
 by the tenant or by a third party entitled to act for him in the 
 premises.^ The usual form with pedantic pleonasm renounces, 
 discharges, and simpliciter upgives all right, title, interest, and 
 possession which the tenant had by virtue of his lease, and con- 
 tains an obligation to remove.^ Or it simply renounces in favour 
 of the landlord, and his heirs and successors, the lease, and all 
 right therein and to the lands, and all claims under the lease as 
 at a stated term, and obliges the tenant to remove.* The notarial 
 instrument which formerly solemnised the delivery of this writ,^ 
 
 ^ See also the rules as to abandonment though probably relevant in a reduction 
 
 by the tenant's heir, iwpra, p. 153. of the renunciation were out of place in 
 
 ^ Williamson v. Johnstone, 1848, 11 D. a suspension of a charge under it to re- 
 
 332 (trustees for creditors). move — Munro v. Baillie, 1856, 19 B. 127. 
 
 3 1 Jur. Styles (4th ed.), 674 ; Ross * 1 Jur. Styles (5th ed.), 712. 
 
 on Removings, Appx. 163. See a very ' Bankt. 2.9.47 ; Office ot a Notary, 
 
 special case containing allegations, which, 190; 1 Jur. Styles (4th ed.), 657. 
 
 2 F 
 
450 TEKMINATION DURING CUREENCT. 
 
 was never necessary, and is now obsolete.* The landlord, or his 
 factor duly authorised, accepts in writing, which usually contains, 
 per expressum or by reference to the renunciation, a discharge 
 Effect of dis- of bygone rents and other prestations ; '' or his acceptance may be 
 charge of proved bv conduct inconsistent with the maintenance of the lease, 
 such as taking possession.^ Where a tenant had delivered up 
 his missive of lease and with it an improbative renunciation, the 
 landlord was not barred from demanding a removing by the facts 
 that the tenant had possessed during the few months he survived 
 the renunciation, and that thereafter his widow and youngest 
 son had possessed for some years. These facts did not weaken 
 the rei imterventus which consisted in the eldest son's refraining 
 from demanding possession.^ Where there was a question as to 
 whether a renunciation had been accepted, and the tenants who 
 were bound to keep the premises in repair removed, the landlord 
 was held entitled to a judicial inspection of the premises at 
 once and long before the natural ish, since, if the tenants were 
 right in their view that an agreement had been arrived at, he 
 might have lost his claim for repairs by delay. ^^ An express 
 acceptance implies a discharge of all claims otherwise competent 
 hiTic inde ; ^^ and very precise words will be required to instruct 
 an exception to this rule, especially if the claim be for damages 
 through breach of the tenant's contract to possess down to the 
 termination of the lease.^^ 
 Incoming In One case a renunciation was complicated with arrangements 
 
 enan apa y. jj^g^jg ynih. incoming tenants. Coal tenants, with their landlord's 
 consent, renounced their lease. The mineral was in the same 
 deed let to third parties on the terms of an existing lease they 
 had of an adjoining field from the same landlord, subject to an 
 alteration which had been made in its provisions. That lease 
 provided only for regular systematic and proper working, con- 
 tained no obligation to exhaust the field and (as altered) allowed 
 the tenants an option to break at any Martinmas on certain 
 notice. There was a separate agreement made substantially 
 unico contextu between the outgoing and the incoming tenants 
 binding the latter to pay to the former a certain lordship at the 
 terms on which the landlord's lordships fell to be paid. The in- 
 
 " B. Pr. 1271. " Lyons v. Anderson, 1886, 13 R. 
 
 ' IJur. Styles (5th ed.), 712. 1020, per L.J.-C. Monoreiff and L. 
 
 8 Eankt. 2.9.47. M'Laren. 
 
 » MUne V. Forbes, 1830, 8 S. 990. 12 Walker's Trs. v. Manson, 1886, 13 
 
 " Lees V. Marr Typefounding Co., R. 1198. 
 1877, i B. 1088, 
 
EENUNCIATION. 451 
 
 coming tenants ceased to work the coal let to them in their new 
 lease. It was held that, ia the absence of any indication of 
 coUusive arrangement between them and the landlord for their 
 getting rid of this obligation and then being reinstated in posses- 
 sion, they were under no obligation to the outgoing tenants either 
 to exhaust or to continue working the mineral. ^^ If the renun- Effect of lani- 
 ciation is stipulated to take effect at a future date on condition ^^^llj_^^' 
 of payment by the landlord of a fixed sum, his intervening bank- 
 ruptcy puts the tenant to his election either to hold to the lease 
 or to claim in the sequestration.^* 
 
 Renunciation may be implied from facts and circumstances implied 
 inconsistent with the existence of the lease in question. The 
 ordinary case is the acceptance of a new lease differing in some Taking new 
 material respect from the old ; ^^ and the main difficulty is to ^^°^" 
 determine whether there is any real inconsistency, or whether 
 there is on the contrary a mere suspension of the earlier contract, 
 subject to revival in certain events. The presumption is in 
 favour of the latter view of the facts ; " but everything turns on 
 the intention of the parties as set out in the new lease. The 
 cases are all of ancient date ; ^'^ in modern times care is taken to 
 leave no doubt on the matter. These cases are collected below ; 
 it would serve no useful purpose to enter into detail.^^ Another Confusio. 
 and kindred mode of extinguishing a lease is confusione, by 
 merger in the ownership through succession or singular title. 
 Where the confusion takes place through a purchase of the lease 
 by the landlord (or in other words by accepting a renunciation) 
 or by his succession to the tenant there can be little if any doubt 
 that the lease is extinguished. There is greater difficulty where 
 a tenant purchases or succeeds to the land in such a way as to be 
 
 ^ Convery v. Summerlee Iron Co., '^ L. Symington u. Weir, 1566, M. 
 
 1884, 12 K. 191— distinguished from case 342, 5037. 
 
 of sale of a medical practice, &c., where ^ The more recent cases are of no 
 
 maintenance is an implied condition. general value — Hopkirk v. Kelly, 1834, 
 
 See also case of arrangements between 13 S. 223 (special) ; Kennedy v. Cailyle, 
 
 outgoing and incoming tenants on a 1836, 15 S. 102 (unimportant excambion); 
 
 renunciation — Nivison v. Howat, 1883, Summers v. Fairservice, 1841, 4 D. 347 
 
 11 R. 182. (fraud). 
 
 " Ferrier v. Hector, 1822, 1 Sh. Ap. '« Sinclair v. Manderson, 1565, M. 
 
 159. Cf. Harvie v. Haldane, 1833, 11 S. 6424 (liferent and short tacks) ; Min. of 
 
 872; Harkness v. Eattray, 1878, 16 Kirknewton u Balmerino, 1630, M. 6426 
 
 Sc.L.R. 117. As to the rights of parties (higher rent) ; Kennedy v. Jaffray, 1669, 
 
 where only one of two leases has been M. 6427 (from third party), and cases in 
 
 renounced. See Stevenson's Trs. v. Ms. St. 2.9.36. Looking to the parties and 
 
 Tweeddale, 1823, 2 S. 191 (N.E. 169). the date, D. Lauderdale v. E. Tweeddale, 
 
 ^^ Cr. 2.9.3 ; St. 2.9.36 ; Bankt. 2.9.48 ; 1678, M. 6427, seems no authority, and to 
 
 Ergk. 2-6.44, be unsound. 
 
452 TERMINATION DURING CURBENCT. 
 
 entitled to immediate possession on that title ; ^^ but in principle 
 it would seem that the same rule must prevail and that the 
 merger takes place for all intents and purposes. It is settled 
 that where a tenant obtains a feu-charter of his premises, the 
 conditions of his lease are obliterated, and the charter alone can 
 be looked to as embodying his right and obligations ; ^^ and that 
 the real value of the land and not the former rent is to be adopted 
 as the rule in estimating the amount of composition due to the 
 superior. ^^ It is submitted that the lease cannot revive by the 
 act of the purchaser or his successors in the land ; and that if 
 they again let the lands on similar terms or send the fee and the 
 lease along different lines of destination, the result is effected by 
 means of a new, not a restored contract. In regard to the effect 
 of a reduction of the heritable title — if the action be brought by 
 one who does not represent the original lessor, feu and lease are 
 extinguished together. So that the only question remaining is as to 
 the effect of a reduction of the heritable right by the lessor or some 
 one in his right. It is settled (probably on the ground of personal 
 bar in the one case and representation in the other) that the lease 
 revives.^^ The acquisition of a redeemable heritable security over 
 the subjects by the tenant does not of course give rise to confusio.^ 
 Personal ^^ addition to what has been said in the First Part of this 
 
 incapacity. Book regarding the incapacity of certain persons to enter into or 
 to innovate on leases, the disabilities of these persons in respect 
 to renouncing or accepting renunciations of leases must here be 
 Special powers, noticed. The Court has been in the habit, after inquiry by remit 
 or otherwise, of granting special powers to accept renunciations 
 to and in favour of tutors,^* factors loco tutoris, curators bonis, 
 and judicial factors on trust estates,^^ when it is satisfied that 
 the interests of the landlord demand the acceptance. Similarly, 
 power to renounce leases is granted to tutors, ^^ judicial factors, 
 
 '* A third party's liferent in the lands Landownership, p. 369. 
 delays the merger— L. Cauder v. Hainil- ^ Erskine's words in 2.6.44 are there- 
 
 ton, 1610, M. 3082. fore too wide. 
 
 2» Campbell v. M'Kinnon, 1867, 5 M. 24 Brown, 1846, 9 D. 250. 
 
 636, not appealed on this point, 8 M, 
 (H.L.) 40. 
 
 21 L. Blantyreu Dunn, 1858, 20D.1188 
 see Ms. Doviglas v. Somervels, 1674, M. 
 11502 ; Rigg, 1777, M. Teinds, Appx. 3. 
 
 22 M'Dougal V. Campbell, 1566, M, 
 3082 ; E. v. Cs. Dunfermline, 1628, M, 
 3084 ; Lesmore v. Hutcheson, 1634, M, 
 3084 ; BaK. 207 ; Or., St., Bankt., Ersk. 
 supra, '^. See the authorities on con 
 
 fusio in the law of servitudes in Rankine, Hume 888, 
 
 2i> Wink, 1851, 13 D. 952 (inadequately 
 stocked farm ; tenant unable to go on) ; 
 Milne, 1834, 13 S. 222, 14 S. 561, 681 ; 
 see M'Gregor, 1837, 15 S. 1092 ; Russell 
 1840, 2 D. 721 (to relet after a renuncia- 
 tion). 
 
 2^ Cookburn's Tutors v. Cookburn, 1825, 
 3 S. 642 (N.E. 449) ; Turner's Tra., 1862, 
 24 D. 694 ; Blyth v. Craig, 1808, Hume 
 889 ; but see Forman's Tutors, 1805, 
 
BREAKS. 453 
 
 and curators,^^ on whom has devolved the management of estates 
 including the tenant's right to a lease, where on account of 
 insufficiency of capital or any other cause the lease cannot be 
 carried on with a fair prospect of profit; or even, it would 
 appear, where the circumstances are such as to make it more for 
 the tenant's interest to accept a sum down for a renunciation 
 than to carry on a doubtful enterprise.^^ In renouncing and 
 accepting renunciations these officers should not proceed without 
 the sanction of the Court. On the other hand, a minor acting Minors, 
 alone, when he has no curators, or with their concurrence, if he 
 any have, is entitled to proceed without judicial authority, and 
 the Court declines to interfere except by way of reduction within 
 the quadriennium utileP And trustees are equally denied 
 whatever protection special powers may afford, the power of 
 granting or accepting renunciations of leases, being left to the 
 common law by the Trusts Acts of recent years. ^^ 
 
 II. Breaks. 
 
 A break ^^ in the option of the tenant alone is a power to Powers to re- 
 renounce,^^ the landlord's acceptance being predetermined. AreJ^e.^" 
 break in favour of the landlord is a power to resume. It differs 
 from the partial or piecemeal faculty to resume,^^ which is fre- 
 quently reserved by a landlord for the express purpose of planting, 
 feuing out, mining, quarrying, or the like, in being applicable to 
 the whole subject let. A break in favour of each party involves 
 both powers. Breaks are mainly of use in leases of subjects which 
 are in the main of unascertained and at the outset unascertainable 
 value, such as mines and quarries ; but they are not uncommon in 
 leases of houses and farms for reasons more personal to the lessor or 
 lessee. They differ from irritancies ^* and from those clauses in 
 mineral leases which provide for the termination of the contract 
 on the unworkableness of the mine to a profit being ascertained 
 by a submission to men of skill, in depending wholly on the lapse 
 of a stipulated space of time (or the arrival of certain terms) and 
 
 =7 Meikle v. MeiMe, 1823, 2 S. 274 Campbell, 1628, M. 9022. 
 
 (N.E. 242) ; Carrick v. Warden, 1829, 8 ^ li k 25 Tict. t. 84 ; 26 & 27 Vict. c. 
 
 S. 208 ; Robertson, 1841, 3 D. 345 ; 115 ; 30 & 31 Vict. c. 97 ; 47 & 48 Vict. 
 
 Grahame, 1851, 14 D. 312 ; M'Ewan v. c. 63 ; and see Robertson v. Scott, 1834, 
 
 Crearer, 1852, 2 Stu. 137. The case of 12 S. 875 (bankruptcy trustee). 
 
 Ms. Douglas V. Somervels, 1674, M. '^ The term ' breach ' is misleading, 
 
 11502, is special. and obsolete in this connection. 
 
 28 Cf. Blyth, supra, 2«, and Slade, 1831, ^2 Snpra, p. 449. 
 10 S. 167 (substantially or formally sub- ^ Supra, p. 194. 
 sets) with Forman's Tutors, sapra, ^. *■ Infra, p. 458. 
 
 29 See twpra, p. 19 ; and Farquhar v. 
 
454 
 
 TEBMINATION DURING CUEEENCT. 
 
 In whose op- 
 tion? 
 
 a timeous intimation that the option is to be exercised. The 
 clause sets out this period (or these terms), provides for intima- 
 tion being made at or before a certain time prior to the date of 
 the break, and sometimes specially stipulates for a settlement 
 hinc i-Tide of the rights and obligations of the parties. ^^ And as 
 alternative to a break there may be provision made for readjust- 
 ment of rents. ^^ 
 
 Care is usually taken to make it clear which of the parties has 
 the option to break; but in two cases it fell to the Court to 
 determine the meaning of an ambiguous or defective clause. In 
 the earlier of the two, the minute of lease let the land ' for the 
 ' space of seven or thirteen years.' The landlord brought a 
 removing as at the end of the shorter period. But the option was 
 held to vest in the tenant alone, on the rule of construing contra 
 proferentem, — in this case against the party who prepared the 
 minute.^'^ In the other case, according to the landlord's copy of 
 missives executed in duplicate by and between the tenants and the 
 factor of the landlord the break clause ran thus : ' with a break, 
 ' however, at the expiry of the first seven years of the lease,' and 
 ended there. The tenants' copy added ' optional to the tenants.' 
 A proof showed that other additions in the tenants' copy had 
 been sanctioned by the landlord. It was held that, in the 
 absence of fraud, the facts favoured the view that the addition 
 was part of the contract ; that both of the duplicates had to be 
 looked at ; and that the factor, having power to grant a lease, 
 had also power to modify and had modified its original terms.^^ 
 
 Though breaks are found in practice to run more frequently 
 in favour of tenants than of their landlords, all the other cases 
 which can be cited in illustration of the law have arisen in 
 settling disputes regarding the exercise of the option by landlords. 
 The questions, which have arisen, relate — (1) to the parties who 
 may give intimation of the exercise of the option ; (2) the nature 
 of the intimation : and (3) the mode in which the option is made 
 effectual. 
 Party in right. 1. There Seems to be no doubt that unless there be some- 
 thing in the wording of the clause to confine its scope, the option 
 to break being a faculty ' bearing reference to the general relation 
 ' of landlord and tenant,' ^9 is transmissible in favour of singular 
 
 In landlord's 
 option. 
 
 3= 1 Bell, Leases, 214 ; 1 Jur. Styles 
 (5th ed.), 607, 619, 623, 639, 653, 661, 
 678, 699 (sporting lease). 
 
 ^^ But in WaUace v. Tacksmen, 1716, 5 
 B.S. 7, the clause seems to have been 
 
 misconstrued, there being no real alterna- 
 tive in the tenant's favour. 
 
 "^ Johnston v. Gordon, 1805, Hume, 822. 
 
 ^5 Grants v. Sinclair, 1861, 23 D. 796. 
 
 ^ Supra, p. 408. 
 
BREAKS: PARTIES IN BIGHT. 455 
 
 successors of the lessor. This presumption that the option runs 
 with the lands (or rather with the reversion) is so strong that it 
 was given effect to in two cases, in which the terms of the clause 
 might fairly have been read as restricting the right to a personal 
 faculty. In the one, the clause provided that ' in case the said 
 ' E.A. [the lessor], inclines to resume and take possession of the 
 ' subjects hereby let at any time during the currency of this tack 
 ' personally and by herself only,' on her paying up a debt to 
 the lessee and giving a certain premonition, ' this tack in that 
 ' event is declared to cease.' The debt was paid ; the lands 
 were sold ; and notice was given by the purchaser. It was held 
 that in spite of arguments drawn from the use of the words here 
 italicised the purchaser was entitled to take advantage of the 
 break ; but a good deal turned on the obvious aim of the lease as 
 security for payment of debt.*" In the other case, land was let 
 for eleven years ' with a break at the end of five years in favour 
 ' of E. [the landlord], in case he chooses to take the whole or a 
 ' part for himself or his brother.' In a removing brought by a 
 vendor, in order to clear his purchaser's title to possess, the judg- 
 ment was that the option was transmissible to a purchaser of the 
 lands. It was remarked that ' the texture of a clause of resump- 
 ' tion might be such as to make it otherwise ; but there would 
 ' be need of a precise limitation for that purpose ; and where 
 ' such was truly the intention of parties mention was ordinarily 
 ' made of residence or plantation or other the like peculiar 
 ' destination of the land, for the convenience of the individual 
 ' heritor.' « 
 
 In determining questions as to capacity to exercise the option. Trustee for 
 the clause must be fairly construed, and any valid condition it 
 contains must be given effect to. Therefore a lease. by a trustee 
 for creditors stipulating for a break ' optional to the proprietor, 
 ' to be exercised in the event only, however, of his wishing to 
 ' take up his residence there and to resume possession thereof,' 
 bestowed an option not on the trustee but on the bankrupt, who 
 held the radical right of ownership.*^ And where the option was Heir, 
 taken in favour of the landlord's eldest son on a certain premoni- 
 tion, under condition that ' unless such premonition was duly 
 ' made and he entered into and possessed the premises at ' the 
 specified date, he should not thereafter be entitled to resume, 
 
 ^ Murray v. Brodie, 1806, Hume 825. seem to be inconsistent with sound prin- 
 
 " Ross V. M'Finlay, 1807, Hume 832. ciple. 
 
 Mr. Hunter doubts the soundness of these *^ Davidson v. Girvan, 1638, 16 S. 
 
 two decisions (ii. 113); but they do not 1125. 
 
456 
 
 TEKMINATION DURING CURBENCY. 
 
 Intimation. 
 
 "Without 
 reasons given. 
 
 Bemedies. 
 
 Warning. 
 
 and at the said date the son was in active service, it was held that 
 possession by means of servants and managers was not enough to 
 comply with the condition, and that the lease must run on to its 
 natural ish.*^ 
 
 2. The party who seeks to exercise his option cannot be called 
 on to condescend on his reasons for so doing. This was first 
 decided in a case where there was a power of resumption of part 
 of a house and its adjuncts 'in case the Earl [the landlord] shall 
 ' incline.' ** In the next case the irresponsibility of the landlord 
 was explicitly set out., The clause ran that 'in case of . . . 
 ' personal misconduct on the part of the tenant of which the said ' 
 lessor ' shall be the sole judge,' the lease after certain notice 
 given should be cancelled. The notice alleged personal miscon- 
 duct ' of which you [the tenant] are well aware I have had ample 
 ' ground of complaint.' The notice was left unanswered. It was 
 held sufficient in the absence of any allegation of fraud ; but the 
 question was not decided whether, if the tenant had denied mis- 
 conduct and demanded particulars, he could have forced on a 
 proof.*' The law was advanced a step in the latest case, where 
 a minute of agreement modifying a mineral lease provided that 
 in the event of the tenant's death the landlord might resume at 
 a valuation, ' if he should at any time be dissatisfied with the 
 ' working ' [of the colliery, &c.] by the tenant's representatives. 
 Intimation of dissatisfaction was made, without any statement of 
 the grounds for it. There were vague averments of mala fides. 
 It was held that the onus lay on the representatives of instruct- 
 ing that, the landlord not being at the date of the intimation 
 truly dissatisfied, it was not made in bond fide ; that the aver- 
 ments were insufficient to let in proof; and that the landlord 
 must prevail. The tendency of the Court was to regard proof as 
 out of place, whatever averments might be made, the matter 
 being left to the landlord's conscience. At any rate a better offer 
 behind was not sufficient to redargue hoTia fides.^^ 
 
 3. In the ordinary case the landlord's option is given effect to 
 by an action of removing, though if there be a known dispute as 
 to the meaning or effect of the clause declaratory conclusions 
 may be prefixed with advantage.*^ "Wbere, as is usual, a period 
 of premonition is agreed on, a notice conform thereto will be 
 
 « Whitson V. Duncan, 1795, Bell's 
 Pol. Ca. 161. 
 
 ^ B. Bosebery v. Brown, 7th March 
 1811, F.C. 231. 
 
 *^ Stewart v. Rutherfurd, 1863, 35 So. 
 
 Jur. 307. 
 
 ^^ Houlds worth v. Brand's Trs., 1875, 
 2 R. 683 ; sequel in 3 R. 304, 4 R. 369, 
 see next page. 
 
 «^ Ibid. 
 
BEEAKS: REMEDIES. 457 
 
 regarded as sufficient warning and the rules applicable to solemn 
 removings*^ will not be insisted on, though, if the break is 
 stipulated to take place at one of the legal terms, it will be 
 judicious to bring the action of removing in accordance with the 
 Act of Sederunt of 14th December 1756 and the Sheriff Court 
 Act of 1853.*^ Even where there is no stipulation as to the 
 date of removing, it would probably be held in the case of a farm 
 that the tenant could not be called on to quit possession between 
 terms, and that the intimation should demand a removing at the 
 term or terms in use in the district.*" If there be no covenant 
 regarding notice, a reasonable length of time must be allowed to 
 the tenant to make arrangements. Thus a period of three months 
 or thereby was held to be sufficient premonition of intention to 
 resume part of a farm ; *^ but there the tenant continued in pos- 
 session of the rest, and did not require to negotiate for another 
 holding. A subtenant was held to have received ample notice of 
 the lapse of the principal tenant's right and of his own removing, 
 where the intimation to him was made seven months before a 
 petition for summary ejection was raised.*^ In a case of the lease 
 of a colliery, where intimation of an intention to resume was 
 made on 3rd February 1874, and the tenants pending litigation 
 retained possession tiU Martinmas 1875, it was held that the 
 period between the former date and Whitsunday 1874 was a 
 reasonable time for making the necessary arrangements for ceding 
 possession, including the closing of the tenant's colliery engage- 
 ments, disposal of surplus stock, dismissal of employees, and 
 valuation of the plant which the landlord was to take over.*^ A 
 process of removing which has broken down for some reason 
 which does not involve abandonment of the option, may be 
 founded on as sufficient notice in a subsequent action which 
 without it would have come too late.** And, where the clause 
 bore that the ' parties reserved to themselves the power of putting 
 ' an end to the lease by either of them giving twelve months' 
 ' notice to the other of such intention,' it was held that the land- 
 lord had not lost the power by having given a notice some years 
 before the notice in question, without following it up by a re- 
 moving.** 
 
 « Infra, p. 481. =2 Wilson v. Campbell, 1839, 2 D. 232 
 
 * Ibid. ; 16 & 17 "Vict. c. 80, sect. 29 ; (between terms, the subject being a mill), 
 
 see WaUace v. Tacksmen, 1715, 5 B.S. 7 " Houldsworth v. Brand's Trs., 1877, 
 
 —under 1555, c. 39, wfra, p. 481. 4 K. 369. 
 
 «» See Granger v. Geils, 1857, 19 D. " Eoss v. MTinlay, 1807, Hume 832. 
 
 1010. '* Granger v. Geils, supra, ^. 
 
 51 Sharp V. Clark, 1807, Hume 577. 
 
458 TERMINATION DURING CUERENCT. 
 
 Violent The rules which regulate the liability for violent profits or 
 
 ^'° ^' damages where the tenant refuses or delays to cede possession 
 
 Adjustment of will be Considered hereafter.'^ There is little authority in regard 
 gmng! ^ °^' to the adjustment of the rights of parties at the date of the 
 removing. In one case, the tenant erected buildings on land let 
 under a lease which (as renewed) was regarded as terminable on 
 six months' notice by the landlord or on three months' notice by 
 the tenant who, on giving the same, was to be entitled to remove 
 the materials. The lease was terminated by notice on the land- 
 lord's part. The tenant did not give notice of intention to 
 remove the materials ; but it was held that this was unnecessary 
 since the longer superseded the necessity for the shorter premoni- 
 tion.*'^ 
 
 III. Irritancies. 
 
 In the event of breach of contract by a tenant his landlord is 
 entitled to raise an action of damages for the breach,** or, where 
 the breach infers an irritancy either by force of the general law 
 of the land or in virtue of stipulation to bring the lease to an 
 end. He cannot both irritate the lease and claim damages on the 
 ground of premature termination.*^ Irritancies are either legal 
 or conventional. The legal irritancies are few in number, and 
 are regulated or imposed by the Act of Sederunt of 1 4th Decem- 
 ber 1756 as amended by recent legislation — by the Agricultural 
 Holdings Act, and by the Sheriff Court Act of 1853. There 
 is, of course, no limit to the number of conventional irritancies, 
 with which the caprice of a landlord and the necessities of a tenant 
 may encumber a lease ; but the obligations which are ordinarily 
 fenced with an irritancy are also few in number. 
 
 A. Legal Irritancies. 
 
 (a) At GoTnmon Law. 
 In early times. Prior to 1756, there was at common law a well recognised 
 legal irritancy in case of default of payment of rent for two 
 successive years.*" After some fluctuation in the direction of 
 
 ^* Infra,-p, 487; and obs. in next case. Ersk. 2.6.44; 2 Ross' Lect. 497; Eoss 
 
 ^ Laing v. Stephenson, 1848, 11 D. on Removing, 101 ; Alexander v. Jack- 
 
 142. son, 1744, M. 15306. The rule was pro- 
 
 °* See case in which he chose this bably founded on theanalogyof feu-rights, 
 
 alternative — Kinloch v. Mansfield, 1836, and that again on the irritancy 6b non 
 
 14 S. 905. solutum canonem (for three years) in the 
 
 '* Walker's Trs. v. Manson, 1886, 13 Roman law of Emphyteusis. There is 
 
 R. 1198. nothing similar in the Roman law of 
 
 8" Cr. 2.10.7 ; St. 2.9.32 ; Mack. 2.6.11, Locatio. 
 note : Mack. Obs. 297 ; Bankt. 2.9.23 ; 
 
IRRITANCIES. 459 
 
 greater or less severity,^^ the rule, presently to be stated, requir- 
 ing caution where a year's rent is unpaid was finally established, 
 with this difference, that the caution applied to all future rent.^^ 
 There seems to be no trace of a practice to order caution in case 
 of desertion or mislabouring.^^ All the cases prior to 1756 seem Subjects to 
 to relate to agricultural holdings. In regard to urban tenements, ancy applies, 
 it has been already pointed out^* that more summary remedies 
 are competent to a landlord in the' event of his tenant's deserting 
 possession or displenishing the premises ; so that it is probably 
 of no practical consequence to lay down that the common law 
 remedies just mentioned apply to houses as well as to land- 
 ward tenements.^^ These rules of the common law would pro- 
 bably be held to strike at leases of minerals, but in practice they 
 are superseded by conventional irritancies of a stricter description 
 in the event of default in payment of rent.^^ There is in the 
 law of leases of fisheries^" and shootings an equal absence of 
 authority and of any principle potent enough to remove them 
 from the purview of the common law rule. In all cases in which 
 that rule has to be applied without the help of the Act of 
 Sederunt, the remedy, being an extraordinary removing, proceeds 
 by action in the Court of Session.*' 
 
 (h) By Act of Sederunt, 1756. 
 
 The Act of Sederunt of 14th December 1756 '^^ applies only Act of Sede- 
 to leases of agricultural (including pastoral) subjects.'" It pro- '^™*' •^'^''^• 
 ceeds on the preamble that the difficulties that had occurred in 
 actions of removing from lands had been found to be highly pre- 
 judicial to agriculture, and both to masters and tenants, and that 
 the Court had resolved to remedy this great evil. The sections 
 which follow are, some of them (sects. 6 and 7) purely provisions 
 relating to procedure ; others are in part really though not ex- 
 pressly declaratory of the then existing law, and in part novel 
 
 « Traced in Balf. 206 ; St. 2.9.33 ; Leases, 43. 
 
 Bankt., Ersk. supra, * ; Lawson v. Scott, ^ See 1 Jur. Styles, 619, 634, 659, 
 
 1627, M. 15302 ; Stivenson v. Job, 1629, 675. 
 
 M. 15303 (vergens ad vruypiam, but not ^ See ibid. 697. 
 
 due a year's rent) ; Fisher v. TurnbuU, ^ St. 4.18 ; Mack. 2.6 11 ; Ersk. 
 
 1632, M. 15303; Wauchtou v. Aickin, 2.6.44,50; L. Jerviswoode ». Livingston, 
 
 1633, M. 15304 ; E. Murray v. Hume, 1632, M. 7408 ; Bethune v. Tenants, 
 1662, M. 15304 (s;«-jrereg; counter-claims); 1681, M. 7307, 7409 (in spite of alleged 
 Ly. Binning v. Sinclair, 1672, M. 10382, prorogation of jurisdiction) ; Cormack v. 
 15034 (two years' arrear required). Copland, 1754, 5 B.S. 820 ; Niabet v. 
 
 ^ Alexander v. Jackson, supra, ^. Aikman, 1866, 4 M. 284. 
 
 ^ See Lawson : Stevenson, supra, ". ^' Printed in Appx. No. viii. 
 
 ^ Supra, pp. 212, 351. '" 2 Bell, Leases, 43 j Wright v. Wight- 
 
 ^ Cunningham v. Halyburton, 1677, man, 1875, 3 R. 68 ; terms of preamble 
 
 M. 13801, 15305 (subtack); 2 Bell, and sect. 5 of the A. S. 
 
460 
 
 TERMINATION CUBING CURRENCY. 
 
 enactments, such as it was ultra vires of the Court to make.'^ 
 But the force of practice at first and subsequent recognition of 
 the Act in statutes of the realm ''^ have put the validity of the 
 regulations contained in it beyond the reach of dispute. The 
 sections dealing with the matter in hand are the 4th and 5th. 
 Kent two yeara The 4th Section provides that 
 
 in arrear. ^ 
 
 ' where a tenant has irritated liis tack by suffering two years' rent to be 
 ' in arrear, it shall be lawful to the setter or heritor, to declare the 
 ' irritancy before the Judge Ordinary and to insist in a summar remov- 
 ' ing before him ; and it shall be lawful to the sheriff or steward-depute 
 ' or their substitutes to find the irritancy incurred, and to decern in the 
 ' removing, any practice to the contrary notwithstanding.' 
 
 Tt is here assumed that irritancy follows at common law on an 
 arrear of two years' rent ; and the novelty introduced was the 
 exclusive''^ jurisdiction of first instance conferred on the Sheriff 
 Court. 
 
 The 5 th section provides that 
 
 Caution on 
 arrear for one 
 year or deser- 
 tion. 
 
 where a 'tenant shall run in arrear of one f uU year's rent or shall desert 
 ' his possession and leave it unlaboured at the usual time of labouring, 
 ' in these or either of these cases it shall be lawful to the heritor or other 
 ' setter of the lands to bring his action against the tenant before the 
 ' Judge Ordinary, who is hereby empowered and required to decern and 
 ' ordain the tenant to find caution for the arrears and for payment of the 
 ' rent for the five crops following, or during the currency of the tack if 
 ' the tack is of shorter endurance than five years, within a certain time 
 Or removing. ' to be hmited by the judge,'* and, failuig thereof, to decern the tenant 
 ' summarily to remove, and to eject him in the same manner as if the 
 ' tack were determined and the tenant had been legally warned in the 
 ' terms of the foresaid Act, 1555."'^ 
 
 Here again the common law is followed and declared, with these 
 exceptions, first, that the rule of law is extended to the case of 
 desertion or virtual desertion ; secondly, that the remedy is to be 
 by summary procedure before the sheriff; and thirdly, that the 
 amount of caution is to be restricted where more than five years 
 of the lease have still to run at the date of the action. It is 
 incompetent under this section to demand payment of the rent, 
 
 " See A.SS. from 1800, p. 52 ; Alex- o. 62, sect. 27. 
 
 ander's Abridg. of A.SS., 879 ; Graham 
 ■v. Gordon, 1843, 5 D. 1207, 1210, per L.P. 
 Boyle. See similar usurpations of legis- 
 la,tive power in A.SS., 24th June 1665, 
 and 28th Feb. 1662. 
 " 43 Vict, c, 12, sect. 2 ; 46 & 47 Vict. 
 
 '* See Cameron v. M'Donald, 1804, 
 M. 13875, on similar words in sect. 2. 
 
 '< Form of bond of caution, 2 Jur. 
 Styles (5th ed.), 399. 
 
 '^ As to which Act see infra, p. 481. 
 It is printed as Appx. No. vii. 
 
IRRITANCIES: AGRICULTURAL HOLDINGS ACT. 461 
 
 instead of caution,^^ but if the decree corrects the error it would 
 appear that the objection is elided." The caution does not cover 
 more arrears than are concluded for in the action.^^ 
 
 So stood the law till the year 1880, when, as has been already Hypothec 
 shown," hypothec for the rent of land let to the extent of more fg^"*'™ '^°*' 
 than two acres for agriculture or pasture under leases which were 
 not current at Martinmas 1881 was abolished. The statute 
 which wrought this change provided, as some compensation to a 
 landlord who was thus deprived of his hypothec, for an accelera- 
 tion of the date at which an irritancy could be declared or 
 demand for caution made, by cutting down the periods of arrear 
 to one-half, on condition — (1) that in every case fourteen days' 
 notice of intention to raise the action should be given ; (2) that 
 caution should be exigible only for arrears and one year's rent 
 further ; and (3) that the tenant should not forfeit any rights he 
 might have had at an ordinary outgoing, anxious provision being 
 made for the case of a removing between terms.^" 
 
 (c) By the Agricultural Holdings Act. 
 
 But this provision is now repealed, and in its place the 27th Agricultural 
 section of the Agricultural Holdings Act, ISSS.^i enacts that Sss^'"^'^"*' 
 
 ' in any case in which the landlord's right of hypothec for the rent has 
 ' ceased and determined — :when six months' rent of the holding is due 
 ' and unpaid, it shall he lawful for the landlord to raise an action of 
 ' removing before the sheriff against the tenant concluding for his removal 
 ' from the holding at the term of Whitsimday or Martinmas next 
 ' ensuing after the action is brought, and unless the arrears of rent then 
 ' due are paid or caution is found to the satisfaction of the sheriff for the 
 ' same and for one year's rent further, the sheriff may decern the tenant 
 ' to remove and eject him at such term in the same manner as if the 
 ' lease were determined and the tenant had been legally warned to 
 ' remove. A tenant so removed shall have the rights of an outgoing 
 ' tenant to which he would have been entitled if his lease had naturally 
 ' expired at such term of Whitsunday or Martinmas. . . . The provisions 
 ' of the 5th section of the Act of Sederunt anent Eemoving of lith 
 ' December 1756, shall not apply in any case in which procedure under 
 ' this section is competent.' 
 
 The effect of these enactments is briefly this, that the Act of Effect of these 
 Sederunt is left untouched as the sole rule in regard to legal enactments, 
 irritancies under farm leases current on 11th November 1881; and 
 
 78 Urquhart v. Mackenzie, 1824, 3 S. '^ j;. Morton v. Murray's Reps., 1793, 
 
 84 (N.E. 56). M. 13872. 
 
 " M'AIUster v. Sprot, 1825, 4 S. 353 " Supra, p. 326 ; 43 Vict. u. 12. 
 
 (N.E. 357) ; M'Christie v. M'Kea, 1825, so 43 yiot. c. 12, sects. 2, 3. 
 
 4 S. 11, decides nothing. 81 45 j. ^y vict. 0. 62. 
 
the A.S. 
 
 462 TEEMINATION DUEING CUEEENCY. 
 
 that in respect to leases not then current, the 4th section of the 
 Act of Sederunt (providing for irritancy on arrears of rent for two 
 years) is still a competent remedy, though in most cases its opera- 
 tion will be anticipated by a resort to the modern remedy which, 
 if and when it applies (1) supersedes the 5th section of the Act 
 of Sederunt ; (2) gives an earlier recourse to the sheriff; and, on 
 the other hand, (3) safeguards the tenant against confiscation 
 of improvements, &c., and against removal between terms ; ^^ and 
 (4) withholds the remedy of caution and removing from a land- 
 lord who finds his land deserted or unlaboured. 
 
 No cases can be cited in illustration of the modern statute, 
 though some light may be obtained from the decisions which have 
 been given in construing the Act of Sederunt. These have 
 related mainly to two matters : the ascertainment of arrears and 
 the nature of desertion. 
 
 Cases under The title to sue rests only in a landlord to whom the arrears 
 
 are due and therefore not in an heir to the land, when the arrears 
 belong to the ancestor's executors.*^ The sums in arrear must 
 consist of fixed periodical payments — including converted kain — 
 not of illiquid obligations sounding in damages, such as liabilities 
 for repair of fences.^ The Act of Sederunt applies to leases from 
 year to year, to leases kept up by tacit relocation, and to leases 
 on the point of expiry.*^ 
 
 Ascertainment If the fuU amount — two years' rent or one year's rent, as the 
 case may be — is due and unpaid, it is of no consequence whether 
 it be the rent of a single crop or of two consecutive crops, or 
 be made up of the rents of several years.^® As the arrear must 
 exist not merely when the action is brought but at the date of 
 the decree, ^^ a tenant might evade the operation of the Act of 
 Sederunt, were it not that his landlord is not bound to accept 
 partial payments.*^ The landlord does not lose his remedy under 
 the Act of Sederunt by obtaining payment of the arrears or part 
 thereof by legal diligence *^ or from a cautioner,^'' since such a 
 mode of recovery says nothing in favour of the tenant's credit. 
 
 ^^ The provision for 14 days' notice in ^ Campbell v. Kobertson, 1763, M. 
 
 the Act of 1880 is not repeated. 13867 ; Low v. Knowles, 1796, M. 13873. 
 
 83 L. Elibank v. Hay, 1780, M. 13869, 88 Lq^ ^ Knowles, supra, «' ; Car- 
 
 Hailes 847. ruthers v. M'Garrooh, 1780, M. 13869 ; 
 
 ^ E. Morton v. Murray's Reps., 1793, B. Pr, 1251, Mora's Notes, 219. 
 
 M. 13872. 89 Marshall v. Read, 1803, Hume 569 ; 
 
 85 Munro ». Brown, 1827, 5 S. 807 B. Pr. 1251 ; see 2 Bell, Leases, 43. In 
 
 (N.B. 747) — there is here some confusion Sutherland o. Mackenzie, 1854, 26 Sc. 
 
 between the sections of the A.S. Jur. 466, the question arose but was not 
 
 88 Urquhart v. M'Kenzie, 1824, 3 S. 84 decided. 
 
 (N.E. 56). i>» Low V. Knowles, supra, ". 
 
 of arrears. 
 
IREITANCT : CASES UNDEK A.S. 1756. 463 
 
 While a tenant cannot in estimating the amount of arrears claim 
 deduction of landlord's debts paid by him without the debtor's 
 authority ,'1 he may deduct debt due by the landlord to himself 
 {e.g., for improvements) ascertained though not yet constituted,^^ 
 and may resist an irritancy on the ground that he has been 
 interpelled from paying his rent by the diligence of the landlord 
 or of parties claiming through him.^^ 
 
 The question of what amounts to desertion and want of Desertion, 
 labouring at the proper season in the sense of the 5 th section has 
 been answered by the Court in a fair and equitable spirit. On 
 the one hand, it plainly does not point to mere defect of stock- 
 ing ; ^* nor to delay in labouring caused by an unusually pro- 
 tracted and stormy winter ; ^^ nor to absence from a farm for a 
 few weeks owing to imprisonment ; ^^ nor to the permanent 
 absence of one of two joint-tenants, while the other (for whose 
 behoof the farm was taken) resided, managed, and paid the rent.^^ 
 On the other hand, caution must be found on peril of removing, 
 if the tenant withdraws himself from the jurisdiction of the Courts 
 of Scotland and the land is to a material extent unlaboured by 
 those whom he has left behind ; '^ or where a tenant becoming 
 bankrupt flees the country and leaves his farm displenished and 
 abandoned.^^ Since desertion and want of labouring must concur 
 in order to let in the Act, cases of mere desertion of possession 
 must be brought up to abandonment in order to entitle the land- 
 lord to re-entry.^"" 
 
 The petition addressed to the sheriff in enforcement of these Form of appli- 
 legal irritancies differs in accordance with the provisions in the 
 Act of Sederunt or statute on which it is founded. If there be 
 arrear of rent for two years, it prays for a finding that such is 
 the case, for declarator that an irritancy has been thus incurred, 
 and for an order on the defender summarily to remove and to pay 
 
 ^^ Carruthers v. M'Garroch, supra, ^. ants, and the latter obtained exemplary 
 
 '- Urquhart v. M'Kenzie, supra, ^ ; damages from the landlord). 
 
 eojitra in a counter-claim of damages — ^6 Jamieson „. Gordon, 1828, 6 S. 788 
 
 Hamilton v. Cuthill, 1831, 9 S. 926 (in- (for revenue penalties), 
 
 hibltion). " Honeyman v. Gordons, 1806, Hume 
 
 93 Gordon v. E. Fife, 1825, i S. 229 824 (the other went to England). 
 
 (N.B. 232)— heritable creditors holding ^ Amot v. Bell, 1805, Hume 576. 
 
 decree of maills and duties. ^ Cossar v. Home, 1847, 9 D. 617 (not 
 
 '* Abercromby v. Finlay, 1816, Hume overruled in this point by OUver t'. Weir's 
 
 587 (see there as to common law). Trs., 1870, 8 M. 786. 
 
 ^ Brown v. L. of C, 1758, in Ross on ^'"' See an instance in E. Dalhousie v. 
 
 Removing, 104, (the incoming tenants Wilson, 1802, M. 15311, where the tenant 
 
 made up for lost time, and secured a profit, granted a deed (ultra vires) which was 
 
 which they bestowed on the ejected ten- substintially an assignation. 
 
464 
 
 TERMmATION DUEING CUBRENCr. 
 
 Purgation. 
 
 Time for 
 purgation. 
 
 arrears of rent and taxes, with expenses.^"^ If the 5th section 
 of the Act of Sederunt is relied on, the prayer is for an order to 
 find caution for specified arrears and for rents for the five suc- 
 ceeding crops (or for the remaining rents of the lease, if its 
 endurance be then less than five years) ; and failing caution for 
 an order of , 'summary removing, with expenses. ^"^ If the remedy 
 sought be that which is furnished by the 27th section of the 
 Agricultural Holdings Act, the prayer is for removing at a speci- 
 fied term of Whitsunday or Martinmas, being the next term after 
 the action is brought, with expenses. It is probably also in the 
 discretion of the sheriff, in the other two applications here men- 
 tioned, to allow a similar postponement to the next term day, 
 instead of ordering a removing between terms. ^"^ 
 
 The doctrine of purgation applies to all these legal irritancies. 
 That is to say, extract of the decree of declarator provided for by 
 the 4th section of the Act of Sederunt cannot go out, if, prior to 
 its date, payment has been made of the arrears due. Extract of 
 the decree ordering caution on pain of removing cannot go out if 
 prior to its date the arrears are paid, or the desertion or neglect 
 of the farm has bond fide ceased. And, similarly, it is suggested, 
 a tenant cannot be ejected under the provisions of the J^gri- 
 cultural Holdings Act, if before the decree of removing is 
 extracted he has paid up the arrears, or found caution for them 
 and for one year's rent further. 
 
 At common law and before the Act of Sederunt, the first of 
 these rules was established ; ^"^ and the second was carried into 
 effect by allowing the tenant a fixed period within which to 
 purge before caution was ordered, or, when the order to find 
 caution was pronounced, by superseding extract for a given 
 time."^ Since the Act of Sederunt these rules have been given 
 effect to by purgation being allowed before extract ; ^"^ provided, 
 of course, the whole ^*^ and not merely part ■^"^ of the arrears is 
 
 "' Lees, styles (2nd ed.), 209. See a 
 case in which a thrashing-mill was taken 
 over in part payment of arrears — Sharpe 
 V. Smyth, 1832, 11 S. 38. 
 
 "2 Lees, 297. 
 
 "3 See M'Niven v. Murray, 1847, 9 D. 
 1138 ; Williamson v. Johnstone, 1848, 
 11 D. 332 ; Stewart v. Watson, 1864, 2 
 M. 1414, for analogous cases of summary 
 removing. 
 
 "4 Burden v. Dick, 7184, 7234, 15306 ; 
 Bankt. 2.9.23 ; Ersk. 2.6.44 ; see Seton 
 V. Seton, 1610, M. 7201. 
 
 "= Hamilton v. Tenants, 1629, 1 B.S. 
 377 ; Phin v. Phin, 1682, M. 7234, 15305 ; 
 Burden v. Dick, supra, ^"^ ; Alexander v. 
 Jackson, 1744, M. 15306 ; Blair v. Brown, 
 1671, M. 2728, is not hujusloci. 
 
 "" Knowles v. Bings, 1826, 4 S. 530 
 (N.E. 538) ; M'Christie v. M'Kea, 1826, 
 4 S. 11 (N.E. 11) ; M'Donald v. Jardine, 
 1825, 4 S. 227 (N.E. 230). 
 
 i<^ Glen V. M'Kenzie, 1824, 2 S. 763 
 (N.E. 634) ; Knowles v. Bings, supra, i"". 
 
 "* Carruthers v. M'Garroch and other 
 cases, supra, ^, 
 
IKRITANCY : PURGATION. 465 
 
 paid up or consigned,^®* after allowing for payments to account 
 duly accepted and counter-claims duly instructed. After extract, 
 purgation comes too late, and this rule is justly held to be d, 
 fortiori of the similar rule of irritancy of feus ob nan solutum 
 canonem, since the loss to a tenant is usually less than to a 
 feuar, as the rent ordinarily represents the full annual value 
 of the land, while the feu-duty frequently does not.''^'' This rule 
 has never been doubted where the decree extracted has been 
 obtained inforo; so that an offer of caution in the Court of Session 
 in a suspension of an extracted decree is not timeously made.^^^ 
 Where the extracted decree is obtained in absence, the rule holds 
 where the defender has been properly cited and has had due 
 opportunity of purging before decree is pronounced. ^^^ The 
 specialties in the cases cited do not affect the rule of law.^^^ 
 
 (d) By Sheriff GouHs Act, 1853. 
 
 The remaining legal irritancy in our law is an application of in long leases 
 the irritancy of feus oh nan solutuTii canonem for two years to °ects!* 
 ' leases for a longer endurance than twenty-one years, where the 
 ' subjects let do not exceed £25 in annual value.' ^^ The land- 
 lord has then the like remedies in the Sheriff Court against his 
 tenant, in case of the non-payment of rent as are given to a 
 superior against his vassal. The action sets forth the value of the 
 subject and the arrear, and concludes for removing. The warrant, 
 when granted, is executed at the first term of Whitsunday or 
 Martinmas, which shall occur four months after its issue, and 
 has the effect of a decree of irritancy ob non solutum canonem,;^^'^ 
 and purgation may be made by payment of the arrears and 
 expenses. Challenge of the landlord's title if not instantly 
 
 109 M'Donald r. Jardine, svpra, ^"*. ^^ Duncan v. Welsh and Duncan v. 
 
 Even intimated consignation in hands of Thomson, 1805, Hume 575 (farm relet 
 
 a third party has in certain circumstances and therefore some rei interventus) ; E. 
 
 been held equivalent to payment — Camp- Hopetoun v. Low, 1806, Hume 577 
 
 bell r. M'Allister, 1777, M. 7252, and (though rent recovered and secured by 
 
 Appx. Irritancy, 1, Hailes 72. poinding and sequestration) ; Kennedy 
 
 "» Bankt. 2.9.23 ; 2 Boss' Lect. 498 ; v. Alison, 1807, Hume 578 (ejection, but 
 
 see Ersk. 2.6.44, note ; 2 Bell, Leases, tenant allowed to remain ex gratid for a 
 
 17 ; and see the learning on irr. ob non year). 
 
 sol. can. in Sandeman v. Sc. Property ^'^ And in Campbell v. M'Allister, 
 
 Investment Co., 1883, 10 K. 614, rev. supra, "*, and Junes v. Clark, 1780, M. 
 
 12 R.H.L. 67; Cassels r. Lamb, 1885, 13871, Hailes 876, where the proceedings 
 
 12 R. 722. were suspended and reduced, the decrees 
 
 "1 Hunter v. Badenoch, 1800, M. being unsound. 
 
 Appx. Removing, 1 ; Kinloch v. Mac- "* 16 & 17 Vict. u. 80, sect. 32 (Sheriff 
 
 comie, 16th June 1812, F.C. 681. The Courts Act). 
 
 decision in M'Christie, supra, "", is not "•' Therefore involving abandonment 
 
 contra. of the claim for arrears. 
 
 2 G 
 
466 TERMINATION DURING CURRENCY. 
 
 verifiable must take the form of a declarator in the Court of 
 Session within a year of the removal. Though the scope of this 
 irritancy is very general, it will in practice be found to apply 
 mainly to building leases of small subjects.^^^ 
 B. Conventional Irritancies. 
 
 It is impossible to give, and it would be useless to attempt, 
 an exhaustive enumeration of the conventional irritancies which 
 may be found in leases, since the parties in each case may, if 
 they choose, add this sanction to any of the express obligations 
 of the lease and enforce it in case of breach. The only useful 
 plan seems to be to deal with such irritancies as have actually 
 come before the Court. Of these, the two leading groups will 
 be dealt with separately, and the others classed as miscellaneous. 
 And the exposition naturally falls under these two heads — the 
 usual irritancies, and the mode of enforcing them. 
 I. The usual Irritancies. 
 1. Irritancy for Non-Payment of Rent}^'' 
 Chiefly in The object of this irritancy is to curtail the period of arrear 
 
 tenement™™^ of rent, which at common law or under the Act of Sederunt of 
 1756, entitles a landlord to get rid of his tenant. In the case 
 of agricultural leases dated subsequently to Martinmas 1881, this 
 object is adequately (and, it is thought, as stringently as the 
 Court would be inclined to sanction) attained by the 27th section 
 of the Agricultural Holdings Act,^^^ which gives the landlord a right 
 to remove his tenant or obtain caution when six months' rent of 
 the holding is due and unpaid. In cases to which that provision 
 does not apply a conventional irritancy may be usefully inserted in 
 leases for years. As has been shown elsewhere,^^® the same 
 object is more readily attained by procedure in virtue of the 
 landlord's right of hypothec, where security for the said right is 
 summarily obtainable under pain of removing. So that in leases 
 of dwelling-houses and other urban tenements, it has not been 
 customary to insert a special irritancy for non-payment of rent. 
 Form of In old leases, the usual form of irritancy was in case that 
 
 two years' (or terms') rent be allowed to run into the third 
 ' unpaid.' ^^* It was settled after some controversy that the 
 irritancy might be here taken advantage of on the expiration 
 of two years (or terms) in arrear without waiting for the ter- 
 
 "' The'authoritiesonirr. o6«o)i.soZ. can. "^ 46 & 47 Vict. c. 62, swpra, p. 461. 
 
 are referred to, supra, "". ii^ Supra, pp. 212, 351. 
 
 "' It seems the better course to con- ^^° The phrase is still known to con- 
 fine the phrase irr, 6b non solutum canonem veyanoers. 
 to feus, 
 
 clause. 
 
IRRITANCY : NON-PAYMENT OF KENT. 467 
 
 mination of a third year or term.^^' Or, the clause ran in more 
 modern fashion, thus : ' if one year's rent shall remain unpaid 
 ' after the expiration of the term of payment.' ^^^ Care is always 
 taken to declare the irritancy not to be purgeable. In one 
 reported case, the legal irritancy was expressly relaxed. The 
 tack was a perpetual one, and irritancy was stipulated to follow 
 ipso facto on failure to pay the tack-duty for three years. 
 Failure to pay and desertion of the premises were succeeded 
 by re-entry on the part of the landlord and possession by him 
 for twelve years. One of the alleged tenants (heirs of a former 
 tenant) then raised an action of declarator, removing, and account- 
 ing ; but the landlord was assoilzied in respect that the desertion 
 by the tenants entitled the landlord to enter brevi manu. If, 
 however, the heirs had been ignorant of their rights and had 
 appeared and made claim soon after the desertion and forfeiture, 
 the landlord would probably not have been permitted to rely on 
 his re-entry without warrant.^^' The remedy of irritancy is only 
 available when there is arrear for a sufficient period at the date 
 of the action. ^^* 
 
 The modem clause of style in agricultural leases provides for Effect of Agri- 
 irritancy without declarator or process of law, and without pre- ini^^^'t.^"'*^" 
 judice to the landlord's claim for past-due or current rents in 
 case the tenant ' shall allow one term's rent to remain unpaid 
 ' when the next term's rent shall have become due'^^^ — a less 
 stringent remedy than that which is provided by the Agricultural 
 Holdings Act, and therefore doomed to disappear. Mineral Mineral leases. 
 leases vary considerably in the terms in which this irritancy 
 is couched. Irritancy is, in the Style Book, variously incurred 
 ' on failure to pay the fixed rents or balance of lordships within 
 ' six months after the same shall respectively become due;'^^^ or 
 if there be arrear thereof for 'two consecutive years '^^' or terms;^^"* 
 or if there be arrear of ' four terms' rent.'^^^ 
 
 2. Bankruptcy of Tenant. 
 
 The familiar term is retained for the sake of convenience. No effect at 
 But it is proposed to group under this heading all those cases in an irritancy. 
 
 '21 Ly. Barraeh v. Reisgill Tacksmen, i*» Hog v. Morton, 1825, 3 S. 617 
 
 1729, M. 7186, following L. Gfosford, (N.E. 433). 
 
 1587, M. 7181, and ignoring the distinc- '^s j j^. Styles, 579, 588, 603. As 
 
 tion in Seton v. Seton, 1611, M. 7184 ; to fishing lease, see ibid. p. 697. 
 
 Smith V. E. MarishaJ, 1673, M. 7185. '2« Ibid. 619. 
 
 See Bankt. 2.9.23 ; 2 Ross' Lect. 498. '^ Ibid. 634. 
 
 '23 Eraser v. Ms. Abercom, 1835, 14 S. '^s n,id. 675. 
 
 77 ; 2 Boss' Lect. 497. '^ Ibid. 659, 
 
 123 Ogilvie V. Buff, 1834, 12 S. 857. 
 
468 TERMINATION DURING CURRENCY. 
 
 which a lease makes provision for its termination if and when the 
 tenant stands before the world as involved in pecuniary embarrass- 
 ments. It is possible to separate a consideration of this clause 
 from the learning on the general effect of a tenant's bankruptcy;^^" 
 and it is useful to make the separation, since everything turns 
 on the clause itself, and the irritancy is its sole object. It is 
 only necessary to premise that neither the insolvency of a tenant 
 nor his notour bankruptcy, nor landlord's sequestration nor 
 sequestration in bankruptcy, nor decree of cessio, nor the granting 
 of a trust-deed for creditors gives the landlord a right to annul 
 a lease, unless there be stipulation to that effect. 
 
 Formofclause. The clause is variously worded. The hypothesis may run 
 thus : 'If the tenant and his foresaids shall at any time during 
 ' this lease become bankrupt or be sequestrated, or shall volun- 
 ' tarily divest themselves of their estate or effects by trust-deed 
 ' for behoof of creditors or otherwise,''^' or (alternatively) 'shall 
 ' possess the lands hereby let either directly or indirectly for the 
 ' benefit of their creditors though nominally for themselves ; '^^^ or, 
 more briefly, 'in the event of bankruptcy or declared insolvency;'^^^ 
 or of bankruptcy or sequestration or of poinding for debt above a 
 certain minimum sum, or of landlord's sequestration.^^* And the 
 result is variously stated, as for instance that ' it shall be in the 
 ' power of the proprietor to put an end to this lease without any 
 ' declarator or process of law to be used for that effect and 
 ' without prejudice to the proprietor's claim for past-due and 
 ' current rents ;'^^^ or that ' the lease shall thereupon ipso facto 
 ' come to an end, at the option of the proprietor, without any 
 ' declarator,' &c.^^'' 
 
 Cases. In the interpretation of such of these clauses as have been 
 
 submitted to the Court, some points have been decided which 
 are of general interest. There is no general rule of construction 
 in favour of or hostile to either party. The Court, as in the 
 interpretation of most documents, endeavours to arrive at the 
 intention of the parties as appearing from the terms of the 
 clause. ^^'' A clause declaring that 'in case of the bankruptcy of 
 ' the tenant his creditors shall have no power under it to appoint 
 ' a manager, or in any manner to interfere with the subjects let, 
 
 "" As to which, infra, chap. xxiv. i»-'* Ibid. 579, 589, 603, 635, 683. 
 
 "1 1 Jur. Styles (5th ed.), 578, slightly "« Ibid. 619, 659, 675, 697 (the varia- 
 
 varied, p. 588. tions are slight). 
 
 i''2 Ibid. 603, 682. "■"■ See Bankt. 2.9.23; Ersk. 2.6.44; 
 
 133 Ibid. 619. Brodie's note to St. 2.9.43 ; Moncreiff v. 
 
 i« Ibid. 635, Hay, 1842, 5 D. 249, 253, 259. 
 
IRRITANCY ON TENANT'S BANKRUPTCY. 469 
 
 ' or the tenant himself to continue his possession directly or in- 
 ' directly for behoof of his creditors,' does not infer an irritancy.*'* 
 In all cases the option to terminate or keep up the contract rests in Umiioid 
 with the landlord alone.*^^ It is not held to be abandoned by a °^ 
 mere reference of all questions between him and his tenant, if 
 by declinature of the arbiter (or, it is thought, through any other 
 cause for which the landlord is not responsible), the reference 
 falls through."" The option must be declared within a reason- Declared iu 
 able time ; and where the stipulation was that the landlord time, 
 should be entitled to remove his tenants within six months after 
 their bankruptcy, an intimation of intention to re-enter made 
 within six months of their sequestration was held to be a 
 sufficient declaration of the option."* If from some accidental Temporary 
 pressure of circumstances a tenant becomes bankrupt and imme- ment. 
 diately thereafter is in a position to retrieve the misfortune, the 
 Court may hold that he has not incurred an irritancy in the 
 sense of the ordinary irritant clauses.*''^ It is different if 
 there be proof of total incapacity to carry on the lease ; and it 
 is no answer to a demand for a removing to aUege that in the 
 meantime the tenant has obtained his discharge under a com- 
 position contract,**^ or has been inhibited by a creditor.*** 
 
 There is no difficulty in ascertaining whether an irritancy has insolvency, 
 been incurred, when the fact on which it is founded is a trust- 
 deed,"^ or notour bankruptcy,**® or sequestration in bankruptcy,**^ 
 or landlord's sequestration,*** or cessio; and where there is only 
 a single tenant. But where, as sometimes happens, the fact 
 founded on is the tenant's insolvency, doubts may well arise as to 
 the existence thereof. In one case, it was clearly made out that 
 the tenant was insolvent, since there had been landlord's seques- 
 tration, a meeting of creditors called by him, at which his 
 inability to satisfy their claims was admitted, and a sale of his 
 
 ^^ Bruce v. Kinloch, 1S31, 9 S. 831. '« Gordon, 1805, il. App. Tack, 11 ; 
 
 ™ Kinloch v. Mansfield, 1836, 14 S. Hall v. Grant, 1831, 9 S. 612 ; Tennent 
 
 905 (sequel of last case). See there as u. M'Donald, supra, "'. 
 
 to the evidence of exercise of the option. ^■^ Fraser v. M. Abercom, 1835, 14 S. 
 
 "" Lindsay v. Hogg, 1855, 17 D. 788. 77 ; and see Rankin v. M'Lachlan, 1864, 
 
 In so far as this case goes beyond this 3 il. 128; Lyon v. Irvine, 1874, 1 K. 
 
 statement, it is open to grave doubt. 512. 
 
 1^ Tennent v. M'Donald, 1836, 14 S. "^ Hall r. Grant, supra, i«. 
 
 976; see Ea,e v. Henderson, 1837, 15 S. "« Forbes v. Duncan, 2nd June 1812, 
 
 653. Y.C. 662. 
 
 '■^ Anstruther i: Greenshields, 1855, ^" See cases in last paragraph. 
 
 18 D. 59 ; see Scott v. Wotherspoon, '^ Stewart v. Watson 1864, '' M 
 
 1829, 7 S. 481; Horn v. M'Lean, 1830, 1414. 
 8 S. 329. 
 
470 TERMINATION DURING CURRENCY. 
 
 effects."^ In another case, where a sale of sequestrated stocking 
 paid the arrears and nearly liquidated the current rent, it was con- 
 More than one sidered very doubtful whether insolvency was made out.^^" And 
 tenant. difficulty may arise if there are more tenants than one. Where, of 
 
 four tenants, three became bankrupt, and the fourth, who remained 
 solvent, had quitted the concern (a dye-work), though without 
 withdrawing his name from the lease, it was decided quite soundly 
 that the lease had been wholly forfeited. ^^^ But where a lease 
 was granted to two persons and their respective heirs and 
 successors, with irritancy 'in the event of the bankruptcy of the 
 ' said tenants,' and one of the tenants became bankrupt and 
 renounced the lease, and the other died, as was alleged, insolvent, 
 it was held that the representatives of the latter were entitled 
 to possession of the whole subjects let, since, so far as their 
 ancestor was concerned, there had b^en no forfeiture. ^"^ 
 Subjects— how -A. case already cited affords an illustration of a special provision 
 ove^^^'^^" being made for the state of the subjects when resumed. The 
 clause gave the landlord the ' sole right to the lands in the state 
 ' they might then [at the first term subsequent to the insolvency] 
 ' be in,' and to the straw and chaff of all the crop then on the 
 ground or in the farmyard. The said first term was a Martinmas. 
 It was held that the farm must be given up then, including parts 
 of it sown with wheat and grass seeds, without any claim for 
 indemnification from the landlord, since the terms of the clause 
 were quite explicit. ^*^ 
 3. Miscellaneous. 
 
 The other clauses to which an irritancy is sometimes appended 
 require little notice. They have all been referred to in more 
 appropriate parts of this treatise. The chief of them — that 
 which seeks to insure residence by the tenant on the subjects let 
 — is part of the law of possession under leases.^^* An obligation 
 to possess a farm with the lessee's own stock falls naturally 
 under the law of hypothec ; ^^^ and prohibitions against assigning 
 and subletting have been already under consideration.^^" 
 II. Mode of Enforcement. 
 Declaratory— It is now settled that where the fact on which an irritancy 
 
 when dis- 
 pensed with. 
 
 "" MonoreifE v. Hay, supra, ^. On such and see the converse case — Burns v. Mar- 
 questions see Goudy on Bankruptcy, 15 tin, 1885, 12 E. 1343, rev. 14th Feb. 1887. 
 seq., and L. Alloway's obs. in the next '■'* MonoreifE v. Hay, supra, ^''. 
 case. 154 Supra, p. 213. 
 
 i«» Hog V. Morton, 1825, 3 S. 617 ^'^ Supra, p. 351. Stonefield v. M'Ar- 
 
 (N.E. 433). thur, 1800, M. Appx. Removing, 3. 
 
 1'' Tennent v. M'Donald, supra, "'. i^" Supra,-p. 161 ; Lyon v. Irvine, 1874 
 
 J'- Young V. Gerard, 1843, 6 D. 347 ; 1 R. 512. 
 
REMOVING ON IRRITANCY. 471 
 
 depends is admitted, or is instantly verifiable (as, for instance, in 
 the ordinary case of sequestration in bankruptcy,^^" notour bank- 
 raptcy,^^^ landlord's sequestration, ^^^ or the granting of a trust- 
 deed for creditors-'*'), and the lease contains the usual addendum 
 that declarator or other process at law should not be necessary, a Removiug in 
 competent and the proper form of enforcing the forfeiture is by " 
 action of removing before the shertfif without declarator. *^^ It 
 seems to be established, further, that the addendum referred to is 
 not necessary to get rid of the necessity for a declarator and con- 
 sequently for action in the Court of Session;^*'- and that it is 
 enough if there be a provision for ipso facto nuUity at the land- 
 lord's option.^*^ And a sheriffs interlocutor is not vitiated if in 
 the findings of fact it Tised declaratory words. ^** K, on the other 
 hand, the decisive fact is not admitted, and (as in the case of 
 insolvency) requires to be made out by a proof at large, a 
 declarator must be deemed necessary to support the conclusion 
 for removing.^^ An attempt has been made to draw a distinction p^ and penal 
 between irritancies which are fair conditions of a lease and ""**""'**• 
 irritancies which are penal,^^ and to found thereon a denial of 
 the sheriff's jurisdiction in the latter case. But the distinction 
 is non-existent, for every irritancy runs the risk of being penal, 
 and it is barren, since the question could not be decided in the 
 outset of a suit. The modem doctrine is that aU irritancies will 
 be enforced according to their tenor, as read in no judaical spirit, 
 but that the Court (inferior or supreme) may step in to prevent 
 gross abuse or oppression.^*' While in the case of renunciation 
 
 ^^ Gordon, 1805, M. Appx. Tack, 11 : subjects worth £58 annnally or £1000 
 
 Scott V. Wotherspoon, infra, ^^. of capital, may be held to extend to 
 
 ^ Forbes v. Duncan, 2nd June 1812, snch questions — 40 i 41 Vict li 50, 
 
 F.C. 662 ; Taylor r. Boyle, 1824, 2 S. Ap. sect. 8. 
 
 30 (mines). "=■ Gordon ; Forbes, supra, "", ^. In 
 
 i»» Stewart v. Watson, 1864, 2 M. HaU ; K Mansfield, i», ^, the clause 
 
 1414, .ind case of E. Mansfield v. Hender- ignored declarator and expressly protided 
 
 son, 2nd March 1815, F.C. 301, therein for removing, 
 
 expounded. '** HaU v. Grant, supra, '*. 
 
 IS" Hall V. Grant, 1831, 9 S. 612. ^^ Hog v. Morton, supra, i*>. In 
 
 "1 In Lyon v. Irvine, supra, '*, pro- Moncreiff v. Hay,- supra, i', the sheriff 
 
 cedure before the Judge Ordinary was made what were in effect declaratory 
 
 expressly provided for. The older cases findings ; but when an ulterior question 
 
 left the question doubtful — Stevenson r. emerged no one had an interest to take 
 
 Barclay, 1629, il. 2725 ; Boswel r. exception. 
 
 Tenants, 1631, M. 2726— and in 2 BeU, i«« Per L. Corehouse in Scott r. 
 
 Leases, 16, declarator is made the rule. Wotherspoon, 1829, 7 S. 481, approved 
 
 "^ Except in so far as the extension of by L. Balgray in Horn r. M-Lean, 1830 
 
 the sheriff's powers to grant declarator 8 S. 329. 
 
 as to heritable right or title in regard to '«' Stewart r. Watson, supra, ^'>. 
 
472 TERMINATION DURING CURRENCY. 
 
 of a lease by the tenant (involving instant loss of title to possess) 
 the landlord is entitled to demand instant removing/^^ it seems 
 to be in the discretion of the sheriff or of the Court to refuse a 
 Not between removing between terms and to decern that the tenant shall 
 terms. ^^^^ possession at the ensuing legal term or terms. ^^^ And if 
 
 removing at a term is provided for in the irritant clause — as by 
 a stipulation that it shall proceed ' in the same manner as if 
 ' the lease were expired ' — a decree for instant removal is 
 unwarranted and will be suspended. ^'^^ Forms of summonses 
 appropriate for the enforcement of conventional irritancies are 
 given in the Style Books.^^' 
 Not purgeable. It is now Settled law that a conventional irritancy, so long as 
 it is not a mere copy of a legal irritancy, once it is incurred 
 cannot be purged by payment of the arrears of rent^"^ (where 
 arrear is the cause of forfeiture), or cesser of the status or 
 diligence or other fact on which the landlord founds.^^^ The 
 Court may step in to prevent a misuse of the irritancy, as where 
 there was an excusable error on the point whether each of 
 several lessees was liable for the whole or only for an undefined 
 proportional part of the rent,^'* or the tenant or persons in his 
 right had been wrongfully ousted from possession, ^'^^ or where pay- 
 ment had been offered to the landlord or to some one authorised 
 by him to levy rent,^"" or where, the irritancy depending on the 
 landlord's sequestrating in virtue of his hypothec, that remedy was 
 sprung on the tenant without due notice. ^'^'' But where, in a case 
 of this last sort, rent was due on 29 th September ; sequestration 
 was obtained on 3rd October ; action of removing in pursuance of 
 the irritancy was raised on 23rd November ; and the rent was paid 
 next day — it was held that purgation came too late, the conduct 
 
 MS 'Williamson v. Johnstone, 1848, 11 nent, "', compared with Anstruther, '*■'. 
 D. 332. "* Old College, Aberdeen v. E. North- 
 
 ™ Stewart u. Watson, supra, i^s ; esk, 1678, M. 7230 (teinds, the purgation 
 
 Waugh V. Nisbett, 1882, 19 ScL.Il. 427. ordered was in duplum). In Dick v. 
 
 1™ Lyon V. Irvine, 1874, 1 R. 512 Skaills, 1706, i B.S. 642, no irritancy 
 
 (amendment of the decree being un- had really been incurred, 
 fortunately incompetent in a suspension), ''* Dick v. Skaills, supra, ''■'. 
 
 and see D. Hamilton v. Warnock, 1872, "^ L. Wedderburn v. Nisbet, 1612, M. 
 
 Guthrie's Dec. 294. 6322, 7181. L. Torphichen ■„. L. Pit- 
 
 1" 3 Jur. Styles (3rd ed.), 67; Lees, fodels, 1610, M. 7291 (feu) would not 
 
 Sheriff Court Styles (2nd ed.), 211. now be followed. In such a penal matter 
 
 ^'2 Sinolare v. Sinclare, 1672, 1 B.S. parole would probably now be admitted, 
 
 659 (though the landlord arrested future contrary to Romano i: Nisbet, 1609, M. 
 
 rents); Clark v. Bennet, 1759, M. 7237 ; 12355; Calpie v. Kennedy, 1631, M 
 
 Finlayson v. Clayton, 1761, M. 7239. 12360 (feu). 
 
 1" Cases of Gordon, i-w. Hall, !«», Ten- 177 obiter in following case. 
 
IRRITANCY : PURGATION. 
 
 ^ 473 
 
 of the landlord being quite reasonable, the notice fair, and the 
 interval between sequestration adequate. And it was pointed out 
 that if purgation had been allowed after the sequestration, either 
 by payment of money down or by recovering the rent by sale of 
 the crop or stocking, there might be a recurrence of similar events 
 during the whole course of the lease.^'^^ 
 
 ^'8 Stewart v. Watson, 1864, 2 M. ]il4. 
 
474 
 
 CHAPTER XXI. 
 
 TERMINATIOK AT ISH : ORDINARY REMOVINGS. 
 
 In this chapter an attempt will be made to set forth the mode 
 in which the dissolution of the contract of lease is worked out at 
 the natural termination of the relation between landlord and 
 tenant, or, if there be a break or breaks, at the most remote ish 
 Voluntary re- Contemplated. If at the close of the contract the tenant removes 
 moving at ish. without demur, nothing remains to be done, except to settle 
 the claims of the parties hinc inde with regard to repairs, im- 
 provements, deterioration, &c., in the mode described in earlier 
 parts of this work. If, however, the tenant declines to remove 
 voluntarily, the aid of the Courts of the country must be called 
 in to compel him to quit. The action is known as an Action of 
 Removing. It is called an ordinary removing, as opposed to the 
 extraordinary removings described in the foregoing chapter. And 
 it may be solemn or summary according as the remedy requires 
 greater or less deliberation in its operation. 
 
 Removings in 
 form of law. 
 
 Solemn and 
 summary. 
 
 Clause of re- 
 moval. 
 
 I. PeOCEDUEE WHERE THEEE IS EXPEESS OBLIGATION TO 
 
 Remove or an Equivalent. 
 
 In formal leases, the following clause (or some equivalent) is 
 invariably inserted : — 
 
 And the tenants bind and oblige themselves and their foresaids to flit 
 and remove themselves, their wives, bairns, f amdies, servants, goods, and 
 gear furth of and from the subjects hereby let at the expiry of this lease, 
 and that without any previous warning or process of removing to be used 
 against them to that elfect.' 
 
 And sometimes there is added this clause — 
 
 And in case of their faihng to do so, the tenants bind and oblige them- 
 selves and their foresaids to pay to the landlord the yearly rent of £ 
 sterling for every year or part of a year they shall occupy any part of the 
 
 1 1 Jur. Styles (5th ed.), 669, 579, 589, 596. 
 
CLAUSE AND LETTER OF REMOVAL. 475 
 
 said lands and others after the respective terms of removal above 
 specified." 
 
 Unless there be something special in the wording of this 
 addendum, it is read not as a licence to the tenant to sit 
 on at the increased or penal rent against his landlord's will, 
 but as a provision entirely in the landlord's favour enabling 
 him more easily to enforce a removing at the term con- 
 templated.^ 
 
 The obligation to remove may also be contained in a writing, Letter of re- 
 other than the lease,* executed usually within some short period ™°^*^' 
 before the time of removing.^ The latter form is the earlier in 
 date,'' but has been practically superseded by the almost invari- 
 able use in solemn leases of clauses of removing such as the 
 above.^ The ' letter of removal,' as it is sometimes called, may 
 form part of an arrangement for a short prorogation of the lease, 
 and in that case terms which would probably not have been held 
 as sufficient to absolve the other party from proceeding in a 
 formal manner have been given effect to, as part of a mutual 
 contract acted on by both parties.* The granter of such a letter 
 must be in a position to grant it effectually ; so that assignees, 
 whose right had been intimated to and approved by the landlord 
 and who paid the rent, though they allowed their cedent — origi- 
 nally the tenant — otherwise to act as still tenant, were not bound 
 by their cedent's obligation to remove.^ 
 
 There may be a converse obligation by the landlord to permit Landlord's 
 the tenant to remove without the usual formalities. move.^ '" '^^ 
 
 These obligations may be instructed by writ. They may also How proved, 
 be proved by oath of party ; i.e., the oath of the landlord where 
 the tenant desires to remove and thus escape the obligations 
 involved in tacit relocation ; i" and the oath of the tenant where 
 the landlord desires to oust him at a particular term, and to 
 
 8 Ibid. 579, 604, 620. 118 (N.E. 119). 
 
 ' Cross u Muirhead, 1813, Hume 860 ; , « Cr. 2.9.1; St. 2.9.34,38; Bankt, 
 
 CampbeU u M'Laurin, 1814, Hume 864. 2.9.37,47; Erak. 2.6.54; Ross, Remov 
 
 In both cases this rule was enforced in ing, 163. 
 
 spite of certain specialties pointing the ' St. supra, ^ ; Spottisw. Styles, 365 
 
 other way ; cf. Gold v. Houldsworth, Ross, Removing, 91. 
 
 1870, 8 M. 1006 ; Mackintosh v. Mao- ' M'Nair v. L. Blantyre's Tutors, 1833 
 
 donell, 1798, M. Tack, Appx. 5. 11 S. 935 ('I must just submit to quit '). 
 
 * Not requiring a stamp— Maclaren v. " Bett i. Murray, 1845, 7 D. 447 ('a 
 
 Ms. Breadalbane, 1831, 10 S. 163 ; Bain sharp advantage '). 
 
 V. Stewart, 1852, 14 D. 1007. "> Carlisle i-. Lawson, 1734, Eloh. Tack, 
 
 ■'Ibid.,andBrowniJ. Peacock, 1822, IS. No. 1, and referred to in Edmonston f. 
 
 359 (N.E. 337) ; Heron v. RoUo, 1825, 4 S. Bryson, infra, ". 
 
476 TERMINATION AT ISH : ORDINAEY REMOVINGS. 
 
 prevent the supervening of tacit relocation." But a verbal 
 promise by a tenant to quit, or by a landlord to allow his 
 tenant to sit in spite of process to remove him or to quit 
 without warning, cannot be proved by parole ;^^ for to admit 
 such proof would be a dangerous tampering with those 
 precautions against hasty action, which the law has set 
 up. Thus decree of removing was refused where the 
 only facts founded on by the landlord were that the tenant 
 admitted that he had declared he would not keep the lands 
 unless he got an abatement of rent, and that he knew of adver- 
 tisements for a new lease being published ;^^ and where a farm 
 was advertised and let to a new tenant with the cognisance of 
 the old tenant, who showed the other over the farm, sold a con- 
 siderable part of the stock, and dismissed a number of the farm 
 servants.^* But the party who resists a removing (whether land- 
 lord or tenant) may be barred 7'ei interventu from resiling from 
 his informal promise, e.g., where something so material has 
 followed on it, as quitting part of the subjects,^^ receiving pay- 
 ment in consideration of removing, getting another farm on that 
 footing, being allowed to depart from a prescribed course of crop- 
 ping,^^ or possessing on a new bargain of which an obligation to 
 remove forms a part.^'' 
 Warning dis- The obligation to flit and remove ' without warning or process 
 penso wit . , ^£ jg^^ . jg literally construed and enforced, in the sense that 
 warning is unnecessary and that the landlord may apply for 
 summary ejection, in all cases where the obligation, whether 
 contained in the lease ^^ or otherwise instructed,-'^ is dated within 
 the year of removal. If there be more than one term of remov- 
 ing it will be sufficient that the date is within the year preceding 
 the earliest of them.^" 
 
 ^' L. Craigmillar v. Chalmers, 1639, '* 2 BeU, Leases, 117, citing unre- 
 
 M. 6090, 12308 ; Edmonstou r. Bryson, ported cases ; Ivory's Note to Ersk. 
 
 1744, M. 12il5, 13884, Elchies, Tack, 2.6.50. 
 
 No. 10 ; Heddle v. Baikie, 1841, 3 D. ^^^ Blain v. Ferguson, 1840, 2 D. 546. 
 
 370, rev. 15 So. Jur. 559 (assumed) ; B. The case of D. Argyle v. Kussel, 1799, 
 
 Pr. 1271, Ivory's note to Erak. 2.6.50. M. Appx. Removing, 2, probably turned 
 
 I- Balf. 356 ," St. 2.9.36 ; Bankt. 2.9.37 ; on the real tenant having been warned ; 
 
 Ersk. 2.6.44 ; B. Pr. 1271 ; Shaw i: if not, it seems to be overruled by the 
 
 Palmer, 1605, M. 12301 ; Cs. Argyll v. later cases. 
 
 Sheriff of Moray, 1583, M. 12300. '^ Brown v. Peacock, 1822, I S. 359 
 
 13 E. Haddington v. Campbell, 1693, (N.E. 337); Paxton v. Slack, 1803, Hume 
 
 4 B.S. 86 (though he acted 'fraudulently, 568. 
 
 ' at least craftily '). ^ Heron v. Hollo, 1825, 4 S. 118 
 
 " Gordon v. Bryden, 1803, M. 13854. (N.E. 119) ; Maclaren v. M. Breadalbane, 
 
 I'* Jamieson v. Thomson, 1802, Hume 1831, 10 S. 163. 
 
 807. ^° Brown v. Peacock, supra, "'. 
 
OBLIGATION TO REMOVE. 477 
 
 The same literal construction seems originally to have been Not if obiiga- 
 put on such obligations in all cases.^^ But before the end of the the"year^^°° 
 seventeenth century it had come to be settled that some intima- 
 tion must be made before proceeding to an ejection ; and the 
 shortest period suggested as fair and safe, though not perhaps 
 compulsory, was forty days before the term ; ^^ and this dichoTn, 
 of Lord Stair may be taken as embodying the rule of law as then 
 established.^^ In the middle of the next century, this rule was 
 declared and the procedure ascertained by the first section of the 
 Act of Sederunt of 14th December 1756,^* in regard, at least, to Notice under 
 leases of landward subjects. Under that section the heritor or other gent', i. ' 
 setter of a tack may upon such an obligation obtain letters of 
 horning and charge the tenant thereon forty days before Whit- 
 sunday, in the last year of the tack or in any year thereafter ; 
 and, on production of due execution thereof, the sheriff is author- 
 ised and required, within six days after the term of removal, to 
 eject the tenant. This enactment was construed as embodying 
 the only and invariable rule of removing in cases to which the 
 Act of Sederunt applied. ^^ But the Act of Sederunt need not be 
 expressly libelled, since it is only declaratory of the law.^" 
 
 The procedure in accordance with this section of the Act of Procedure 
 Sederunt may be briefly described.^" Along with the lease a ™ ^'' ' " ' ■ 
 bill is presented to the Court of Session praying for letters of 
 horning conform to the Act of Sederunt. The letters are issued 
 charging the tenant to remove on pain of liability for violent 
 profits. On or after Whitsunday the executed horning is pre- 
 sented to the sheriff along with a petition for warrant to eject.^* 
 The warrant is executed in presence of the landlord or a pro- 
 curator for the landlord and witnesses, by turning out the tenant 
 and his belongings, extinguishing the fires, and delivering the 
 keys to the landlord or procurator. A notary is usually present 
 
 -^ Cr. 2.9.11 ; Freeland v. Monteith, ^3 pgptjj jj^g^ j. Andrew, 1798, Hume 
 
 1586, M. 13877 ; Craighall v. Kinnin- 562 ; Lookhart it. Twaddle, 1800, Hume 
 
 month, 1610, M. 13879 (though there 564 ; cf. dicta in E. Eglinton v. Fulton, 
 
 had been more than a year's mora). supra, ^. 
 
 22 St. 2.9.38. 26 stevensons v. Baird, 1821, 1 S. 84 
 
 2= See Bankt. 2.9.57; Ersk. 2.6.50; (N.E. 87); More's Notes, 260. 
 
 KosB, Kemoving, 91 ; E. Eglinton v. 27 xhe authorities are 3 Jur. Styles 
 
 Pulton, 1771, M. 13886. Cf. Dicksons i: (1st ed.), 634, 687 ; Koss, Removing, 92, 
 
 Tweedie, 1736, M. 13880 (where it may 164 ; More's Notes, 260 ; 2 Dallas, 84 ; 
 
 be gathered that there had been forty St. 2.9.45, 4.47.36 ; 2 Bell, Leases, 77 ; 
 
 days' notice), with Bartlet v. Stewart, Ersk. 4.3.17 ; Bankt. 4.41.17. 
 
 1742, M. 13882, where there was no ^ Or this may be got from the Court 
 
 notice. of Session ; and on it the sheriff issues 
 
 -* Printed, infra, Appx. No. viii, a precept to remove. 
 
478 
 
 TERMINATION AT ISH : ORDINARY REMOVINGS. 
 
 Prooeclure 
 under Sheriff 
 Courts Act, 
 1853. 
 
 Probative 
 lease with ish. 
 
 Letter of 
 removal. 
 
 to take instruments and inventories. No return of the execution 
 is made. The remedy against evasion by suffering a third party 
 to intrude is a summons of succeeding in the vice.^" The tenant 
 can object to the proceedings in no other form than by suspen- 
 sion.^" The procedure before the sheriff is summary, answers 
 being usually ordered to be given in within forty-eight hours 
 after service of the petition for warrant to eject.*' 
 
 These remedies are not abrogated ; but they are superseded in 
 practice by the important enactments contained in the 30th and 
 31st sections of the Sheriff Courts Act of 1853.^2 These 
 sections contain a convenient imitation of the system of decree 
 following on a consent to registration for execution, and con- 
 template two different cases. The 30th section applies to 
 probative leases of lands or heritages which specify a term of 
 endurance, this definite ish being regarded as equivalent to an 
 obligation then to remove. Such a lease or an extract thereof 
 is armed with the same force and effect as an extract decree 
 of removing obtained in any ordinary action of removing ** by 
 the lessor, or any one in his right against the party in possession 
 under the lease ; and such lease or extract shall, along with 
 a written authority signed by the landlord or his factor or agent, 
 be a warrant to any sheriff-officer or messenger-at-arms to remove 
 and eject the party in possession on the elapse of the term 
 specified ; provided notice to remove shall have been given at 
 least forty days before the ish (or the ish first in date if there 
 be more than one), personally or at his ordinary dwelling-house 
 or through the post-office in the statutory form by an officer. A 
 certificate of service, endorsed on the lease or extract, signed by 
 an officer, and attested by one witness (also in a statutory form), 
 or an endorsed acknowledgment signed by the party in posses- 
 sion or his agent, is made sufficient evidence of the service. The 
 removal or ejectment must take place not later than six weeks 
 after the ish (or last ish). And liberty to suspend is saved. 
 
 The .31st section imparts the same force and effect Tnutatis 
 mutandis to a letter of removal ** in a statutory form granted by 
 
 ^ St. 2.9.45. 
 
 ™ Ross, Removing, 93 ; and infra, pp. 
 494, 504. 
 
 ^' As to competency of sheriff before 
 and after the A.S., see Nisbet v. Aik- 
 man, 1866, 4 M. 284, a case on a different 
 point ; Bethune's Tenants v. Bethune, 
 1681, M. 7307 ; Cs. Rothes „. Campbell, 
 1693, 4 B.S. 55. 
 
 '2 16 & 17 Vict. 0. 80 ; the sections 
 with . relative schedules are printed in 
 Appx. No. X. 
 
 ^^ As to which see supra, p. 475. 
 
 ^ Refusal to grant this letter does not 
 appear necessarily to entail on tenant 
 
 liability for expenses of removing 
 
 Keegan v. Robertson, 1862, Guthrie's 
 Deo. 298. 
 
UNDER AGRICULTURAL HOLDINGS ACT. 479 
 
 a tenant in possession either at entry or at any other time and 
 holograph or tested by one witness. It is a sufficient warrant to 
 a sheriff-officer to remove and eject the tenant or any one in his 
 right on the lapse of the term or terms specified in the letter. 
 If the letter is dated more than six weeks before the term of 
 removal or the ish first in date notice must be given at least forty 
 days before the same, and a certificate or acknowledgment en- 
 dorsed as above; and the same provisoes are added regarding 
 vfiora and suspension. 
 
 These sections are general in their scope ; and, though they Scope thereof, 
 contain references to ' the county within which such lands and 
 ' heritages are situate ' and to different terms of removal from 
 lands and houses, there seems to be no sufficient reason for 
 excluding leases of burgal subjects from their operation ; alongside 
 of and alternatively to the exclusively burgal processes for 
 removing or ejection. ^^ They apply also to removings of sub- 
 tenants.^^ 
 
 An important alteration in the law with regard to leases of Agricultural 
 subjects to which the Agricultural Holdings Act^'' applies ^^ has °""^^ 
 been introduced by the 28th section of that statute. As the 
 majority of such leases are probative and contain a definite ish, 
 and this section refers to the enactments which have just been 
 noticed, this seems the appropriate place to insert its terms. 
 
 28. Notwithstanding the expiration of the stipulated endurance of any Notice of 
 lease, the tenancy shall not come to an end unless written notice has been tei™™ation of 
 given by either party to the other of his intention to bring the tenancy 
 to an end — 
 
 (a) In the case of leases for three years and upwards, not less than one 
 year, nor more than two years, before the termination of the 
 lease : 
 
 (J) In the case of leases from year to year, or for any other period less 
 than three years, not less than six months before the termina- 
 tion of the lease. '* 
 
 Failing such notice by either party the lease shall be held to be 
 renewed by tacit relocation for another year, and thereafter from year to 
 year. 
 
 Notice by the landlord to the tenant under this section shall be 
 given in the form and manner prescribed by the Sheriff Courts (Scot- 
 
 ** Hunter is contra, ii. 76. p. 239. 
 
 ^ Logan V. Brown, 1871, 8 Sc.L.R. ^9 Though the Act had not been in 
 
 556. operation for that period — L. Macdonald 
 
 "^ 46 & 47 Vict. u. 62 ; printed in v. Finlayaon, 1884, 12 R. 228, The game 
 
 Appx. No. ii. question cannot now arise. 
 
 ^ As to which see sect. 35 and supra, 
 
480 TERMINATION AT ISH : OKDINARY EEMOVINGS. 
 
 land) Act, 1853, and shall come in place of the notice required by the 
 said Act. 
 
 Provided that nothing contained in this, section shall affect the right 
 of the landlord to remove a tenant who has been sequestrated under the 
 bankruptcy (Scotland) Act, 1856, or who by failure to pay rent or 
 otherwise has incurred any irritancy of his lease, or other liability to be 
 removed : 
 
 The provisions relative to notice herein contained shall not apply to any 
 stipulation in a lease entitling the landlord to resume land for building, 
 planting, feuing, or other purposes, or to subjects let for any period less 
 than a year. 
 
 Some points seem to be clear ; others obscure. It is clear 
 that the section applies (1) to leases entered into either before or 
 after the passing of the Act, (2) not to probative leases only but 
 to all ' agreements for the letting of land ' (sect. 42) in the sort 
 of holding described elsewhere in the Act (sect. 35); and (3) to 
 such leases only as are approaching or have outlived their natural 
 expiration, not to such as come to a premature conclusion, as set 
 forth in last chapter. The section is not so clear in other respects. 
 (1) Leases entered into subsequently to the passing of the Act may, 
 it would appear (since the section (36) which provides against 
 contracting out of the statute only applies to the compensation 
 sections), contain a valid provision ousting the statutory rule and 
 providing for some other form or length of notice, while express 
 provisions as to notice of termination in leases current at the 
 date of the passing of the Act are superseded by the statutory 
 rule, which can only be itself superseded by the subsequent 
 agreement of parties. (2) The ' form and manner ' of notice, 
 or at least of instructing the fact that notice has been given, as 
 set forth in the 30th and 31st sections of the Act of 1853 *" are 
 applicable only to cases in which there is a written lease or a 
 letter of removal ; so that in cases where, under the present section, 
 there is no writ on which the certificate may be endorsed, it will 
 probably be held sufficient for the officer to return a certificate 
 either by itself or appended to a copy of the notice. (3) The 
 ' right of the landlord to remove a tenant who has been seques- 
 ' trated ' is not one which the landlord possesses at common law,*^ 
 though the wording of the proviso above may suggest the con- 
 trary ; and (4) No form is given by the section for the tenant's 
 notice of intention to remove. The form and mode of authenti- 
 cation of the letter of removal set out in Schedule K of the Act 
 of 1853 may be recommended for imitation: though the Court 
 
 « Supra, p. 478. *i Supra, p. 468. 
 
SOLEMN KEMOVINGS. 481 
 
 would probably demand no great formality, provided the notice 
 be in writing and duly delivered. Finally, the section seems to 
 apply only to cases in which the parties are proceeding at arm's 
 length ; and there is nothing to prevent their changing their 
 minds during the long periods of premonition, and agreeing either 
 to be rid of each other or to enter on tacit relocation or a new 
 lease. 
 
 II. Solemn Removings. 
 
 In most cases where valuable subjects are let, the contract is Available in 
 reduced to probative form, and the writ contains a stipulation ^^ ''''^'^• 
 fixing a definite ish. So that it has been thought convenient to 
 begin this chapter with an explanation of the rules which regulate 
 ordinary removings in the large majority of cases in which 
 purely summary procedure is incompetent.*^ Following the 
 order of time and logic, it would have been better to start with 
 the ' solemn ' or ' formal ' removings now to be described, had it 
 not been that the old statute of 1555, which first restrained the 
 caprice of landlords and was general in its scope, is now obsolete 
 in practice, and that the alternative allowed by the Act of 
 Sederunt of 1756, as amended by the Sheriff Courts Act of And, as simpli- 
 1853 and by the Agricultural Holdings Act of 1883, is limited f^^^'j^^J^™" 
 in its scope to certain classes of subjects. The Act of 1555 has 
 never been repealed. The opinion may be hazarded that it still 
 affords a competent remedy in all cases of removing whatsoever ; 
 and that it or the alternative procedure referred to furnishes the 
 only competent remedy in certain cases. In regard to the old 
 Act, it will be sufficient to refer to its terms,*^ and to the older 
 authorities in the briefest possible way in so far as its distinctive 
 method of attaining the great aim of all solemn removings — due 
 notice to the tenant — by precept from the landlord is concerned. 
 The modern equivalent in the form of action and its sequels will 
 demand and receive more detailed treatment. 
 Act 1555, c. 39. 
 
 The Act 1555, c. 39, was passed in order to rid the country of 1555, c. 39. 
 the violence which was a usual accompaniment of the older remov- 
 ings (often of the most wholesale kind) on verbal warning only.*'' 
 
 ■•2 As to which, fee infra, 498. which see the error.s of Stair, 2.9.33 ; 
 
 *'■ Printed in Appx. No. vii. Mack. Obs. 69 ; and Ersk. 2.6.45. The 
 
 *• BaK. 472 ; Cr. 2.9.1 ; Koss on Ke- lanx was used as a symbol in old Komaii 
 
 moving, 20. The symbol was the break- law for a different purpose. Gaius iii. 
 
 ing of a dish {lanx), Cr. 2.9.4 ; as to 192. 
 
 2H 
 
482 
 
 TERMINATION AT ISH : ORDINARY BEMOVINGS. 
 
 To what sub- 
 jects it applies, 
 
 To wliat 
 leases. 
 
 Not to leases 
 for a year or 
 under. 
 Or of grass 
 parks. 
 
 But to leases 
 from life- 
 renter, &o. 
 
 It provides for removings from ' lands, mills, fishings, and 
 ' possessions whatsomever.' It is thus a competent remedy in 
 regard to all sorts of subjects. In the earlier part of this chapter 
 it has been shown that another procedure is provided, if an 
 obligation to remove, express or implied, exists. Farther on it 
 will be shown in what cases summary procedure is competent. 
 In other cases the procedure of the Act or the alternative after- 
 wards introduced is not only competent but imperative in the 
 absence of consent of parties. This is true mainly of rural 
 tenements, meaning thereby land, fishings,*^ shootings, and the 
 like, whether in town or country, as distinguished from buildings 
 in either locality.*^ Where land and houses are combined in the 
 same holding, the question whether a solemn removing is requisite 
 depends on the further question, which of the two is accessory to 
 the other, as the farm-house to a farm ; *'^ or a moderate garden,*^ 
 policy, or allotment,*^ to a villa, mansion-house, or cottage. 
 They are regarded as indivisible, except in regard to the day of 
 the removing.^" 
 
 But even where by reason of the nature of the subjects 
 let the tenant would otherwise be protected against summary 
 removing, the operation of the statute and Act of Sederunt will 
 probably be ousted by the circumstance that the lease is for a 
 year only,*^ and will certainly be excluded by the ordinary tenure 
 of grass parks. °^ By an extension of the principle of an old 
 Act relating to ward holdings (1491, c. 26),^^ tenants holding 
 from a liferenter, or for the life of their lessor,^* or for the life 
 of a third party,'''' are entitled to formal warning. Subtenants 
 (and probably also assignees) of a liferent lessee have the same 
 
 « Gordon v. Burnet, 1783, M. 13859 
 (under A.S. 1756, but turning on Act, 
 1555) ; Ersk. 2.6.47 ; More's Notes, 257. 
 
 ^« Infra, p. 499. 
 
 «' Hay V. Kerse, 1740, M. 13837 ; L. 
 M'Nanghton v. Wilson, 1765, M. 13857, 
 5 B.S. 568. 
 
 ^ Chimside v. Park, 1843, 5 D. 864. 
 
 «3 Brown v. Hill, 1798, Hiime 563. 
 
 ™ 49 & 50 Vict. c. 50, as to which, 
 infra, p. 501. 
 
 =' Dunlop & Co. u. Meiklem, 1876, 
 4 R. 11 ; Bell, Leases (2nd ed.), p. 504, 
 quoted ibid. p. 18. (The view in note to 
 ii. 121 of the 3rd edition is contra.) 
 There is no help to be obtained from 
 Forsyth v. Bruce, 1827, 6 S. 101 ; M'Nair 
 r. L. Blantyre's Tutors, 1883, 11 S. 935 ; 
 
 D. Argyll v. Russell, 1799, M. Appx. 
 Removing, 2 ; Brown v. Peacock, 1822, 
 1 S. 359 (N.E. 337), which all went on 
 specialties. The area of the practical 
 interest of the question is circumscribed 
 by the 28th section of the Agricultural 
 Holdings Act of 1883, supra, p. 479. 
 
 ''" Macharg, 1805, M. Appx. Removing, 
 4 ; Hume in Brown r. HiU, supra, •"< ; 
 Ersk. 2.6.27, note. 
 
 '^ Balf. 458 ; St. 2.9.23, 28 ; Bankt. 
 2.9.38 ; Ersk. 2.6.49 ; Mack. Obs. 104. 
 
 ^^ Johnston's Trs., 1803, M. 15207, and 
 Udny V. Brown there ; 2 Bell, Leases, 
 111 ; More's Notes, 257 ; Ersk. 2.6.49, 
 note; Hermistoun v. Butler'sRelict,1631, 
 1 B.S. 321. 
 
 °= Ross V. Ross, 1805, Hume 573. 
 
ACT 1555, C. 39. 483 
 
 privilege,*'' though his heir and d fortiori his widow*" have not; *** Not to liferent 
 since in the one case there was a title to possess, though defeas- ^"^^^^ 
 ible ; while in the other case no title to possess could ex hypothesi 
 come into existence.*^ 
 
 The obsolete provisions of the Act 1555, c. 39,*" required that Procedure 
 lawful warning should be made — (1) upon a precept"^ from the"" ^^ ^ 
 landlord ; (2) any time within the year forty days before Whit- 
 sunday ; ®^ (3) according to certain stringent rules for personal 
 or equivalent execution of the writ ; ''^ and (4) with certain 
 publication within and on the parish church.** If the tenant 
 did not remove at the term, the landlord might obtain from the 
 Courts of the land letters or precepts calling the parties warned, 
 and possessors to appear ; in other words, might bring a summons 
 of removing. 
 
 The only one of these requisites for a regular warning which Time of 
 requires further notice here is the second, which relates to the '^^''"^"s- 
 time of warning. It has been decided, contrary to the opinion 
 of text-writers both before and after the decision was given,** 
 that it was enough if the warning took place on the fortieth day 
 (5 th April) before Whitsunday, not counting the term-day, and 
 that forty free days did not have to intervene between the term 
 and the date of the warning.** The term from which in every 
 case the forty days were counted back was Whitsunday — that 
 either being itself the term (or the first term) of removing, or 
 the Whitsunday preceding that term or first term ; *'^ and the 
 requirement that the warning should be within the year of the 
 removing was relaxed or ignored accordingly.*^ 
 
 =8 Carmichael v. Bertram, 1711, M. 13829-30, 13860-61 ; Elch. Removing, 1; 
 
 13833 ; and Obs. in Jolmston's Trs., Hume 571. 
 
 supra, *• ; Ms. Tweeddale v. Murray, " Cases in M. 13826, 13836, 13849 ; 
 
 1846, 8 D. 411, rev. 6 B. Ap. 125. 1 B.S. 227. 
 
 ^ Rowallan v. Boyd's Relict, 1630, M. ^ Balf. 457 ; Cr. 2.9.2 ; Ersk. 2.6.46, 
 
 13825, 1 B.S. 306, notwithstanding. who does not seem to have been aware 
 
 ^ Infra, p. 505. of the decision. 
 
 ^^ B. Pr. 1269 is too widely stated. ^ Ds. Bucoleuch v. Davidson, 1715, 
 
 «» See Cr. 2.9.5; St. 2.9.40, 4.26.6; M. 13836, 13861 ; see More's Notes, 257. 
 
 Mack. 2.6.11, Obs. 155 ; Bankt. 2.9.50 ; The decision runs counter to the view 
 
 Ersk. 2.6.45 ; 2 BeU, Leases, 62 ; B. Pr. taken in the Act of 1853, infra, p. 484. 
 
 1267. 87 Balf. 475 ; Cr. 2,9.5 ; St. 2.9.40, 
 
 ^ As to the form thereof, see Spottisw. 4.26.7; Mack. 2.6.11, Obs. 155; Bankt. 
 
 65 ; Ross, Remov. 61 ; cases in M. 3756, 2.9.56 ; Ersk. 2.6.46 ; More's Notes, 257 ; 
 
 and Elch. Removing, 1 and 2. and see Kames' Eluc. 278, and Ross on 
 
 "2 I.e., After 1690, c. 39, and 1693, t. Remov. 34 ; cases in M. 13837, 13855- 
 
 24— 15th May. The aim was to give 60; Elchies, Removing, 3.5.6, 8. 
 
 farmers time to look elsewhere before the "8 Cases in Elchies, Removing, 3 and 
 
 ordinary term of entry. 6 ; 5 B.S. 207, 568. 
 
 «* Cases in M. 2182, 3756, 13820, 
 
484 TERMINATION AT ISH : ORDINARY REMOVINGS. 
 
 Defects of These rules of the old statute laboured under two disadvantages. 
 
 the Act. ^^^ ^^^^ unnecessarily postponed the inception of judicial pro- 
 
 ceedings till after the term for removal had come and gone, and 
 involved delay in reacquiring possession as landlord, or in obtain- 
 ing possession as incoming tenant ; and (2) Whitsunday was the 
 only date to be looked to in giving notice of removing. The 
 former defect was amended by the Act of Sederunt of l7o6 ; 
 the other was only done away with in 1853. 
 
 Act of Sederunt, 1756, sect. 2, and Amendments. 
 
 A.s.,1756, The 2nd section of the A.S., I7th December 1756, runs 
 
 =«■=*• 2- thus :— 
 
 Where the tenant hath not obliged himself to remove without wam- 
 ing,''* in such case it shall be lawful to the heritor or other setter of the 
 tack in his option either to use the order prescribed by the Act of 
 Parliament made in the year 1555, intituled 'Act anent the Warning 
 ' of Tenants,' and thereupon pursue a warning and ejection, or to bring 
 his action of removing against the tenant before the Judge Ordinary ; 
 and such action being called before the Judge Ordinary at least forty 
 days before the term of Whitsunday shall be held as equal to a warning 
 execute in terms of the foresaid Act ; and the Judge shall thereupon 
 proceed to determine in the removing in the terms of that Act in the 
 same manner as if a warning had been executed in terms of the afore- 
 said Act of Parbament. 
 
 Sheriff Courts The term of Whitsunday was thus retained as the only date 
 ^ct. 29^^' t° ^® looked to in giving notice of removing,'^'' and such remained 
 the state of the law till the passing of the Sheriff Courts (Scot- 
 land) Act of 1853,^^ whose 29 th section provides that — 
 
 It shall be competent to raise a summons of removing at any time, 
 provided there be an interval of at least forty days between the date 
 of the execution of the summons and the term of removal, or, where 
 there is a separate ish as regards land and houses or otherwise, between 
 the date of the execution of the summons and the ish which is first in 
 date. 
 
 Agricultural Then, in regard to subjects falling under the scope of the 
 
 sect. 28?^ " ' Agricultural Holdings Act there must be written notice by 
 
 either party, in the case of leases for three years and upwards, 
 
 dated not less than one year nor more than two years before the 
 
 termination of the lease ; in the case of leases for shorter periods, 
 
 ™ Supra, p. 474. ooners v. Smith, 1770, 5 B.S. 569 ; Gor- 
 
 ™ See Macnaughton v. Wilson, 1765, don v. Burnet, 1783, M. 13859 (fishings). 
 
 M. 13857, 5 B.S. 568 ; M'Nabr. Annexed ''i 16 & 17 Vict. o. 80. 
 
 Estates Conira, 1770, 5 B,S, 568 Fal- 
 
ACTION OF REMOVING. 485 
 
 not leas than six months before the termination.'^ In the cases 
 which fall under this provision without having the advantage 
 of the shorthand remedy provided for bringing to an end leases 
 with an express or implied obligation to remove, the only com- 
 petent procedure for the landlord is to bring an action of remov- 
 ing in the mode now to be explained. 
 
 Action of Removing. 
 1. Petition and Defences. 
 
 Whatever be the preliminaries, and whatever the length of Action of 
 notice — under the Act of 1555, the Act of Sederunt of 1756, ''^""'""S' 
 the Sheriff Courts Act of 1853, or the Agricultural Holdings 
 Act — a landlord can carry out a solemn or formal removing only 
 by applying to the proper Court, in the form of an action (now 
 of a petition) of removing. It has been already shown who are 
 the proper parties in all processes for removing.''^ The progress 
 of the action itself, when properly raised, will now be traced. 
 
 Under the Act 1555 the action could, and may conceivably Tribunal, 
 still, be brought either before the Court of Session or the sheriff. 
 Under the Act of Sederunt and the statutes which recognise it 
 as law and amend it, the Sheriff Court is the only competent 
 tribunal.'* Under the new procedure, introduced in 1876,'* 
 the initial writ is a petition,'^ consisting of a short preamble. The petition, 
 a prayer, an articulate condescendence, and a note of pleas in 
 law. The prayer asks the Court to ordain the defender 
 to flit and remove himself, his family, subtenants, cottars, 
 and dependants, with their cattle, goods, and gear (or as 
 the case may be) from the subjects let (giving their name 
 or otherwise defining the holding) at a stated date, and then 
 to leave them ' void and redd to the end that the pursuer or 
 ' others in his name may then enter thereto and peaceably possess 
 ' and enjoy the same; and that under the pain of ejection.'" 
 Since 1853 (whatever may have been the case formerly),'^ 
 neither the Act of Sederunt nor any of the statutes has to be 
 specially libelled on.'^ The ordinary regulations of the Sheriff 
 
 '2 46 & 47 Vict. c. 62, sect. 28, printed 1810, F.C. 677 ; Mere's Notes, 260 ; 2 
 
 and analysed, supra, p. 479, and see the BeU, Leases, 79 ; B. Pr. 1268 ; Tait v. 
 
 Act in Appx. No. ii. Gordon, 1828, 6 S. 1065 (want of stook- 
 
 '■' Supi-a, p. 441. ing.) 
 
 '4 Cameron v. M 'Donald, 104, M. '" Lee?, Sheriff Court Styles, 296. 
 
 13875 ; B. Pr. 1268 ; Ersk. 2.6.48, note. 'S Oarruthers v. V. Stormont, 1764, M. 
 
 75 39 & 40 Vict. c. 70, sect. 6, and 13868. 
 
 Bched. (A). ''' Granger v. Geils, 1S57, 19 D. 1010; 
 
 '" See the old rule in Hoy, 2nd June Lyon r. Irvine, 1874, 1 R. 512. 
 
486 
 
 TERMINATION AT ISH : OEDINAEY EEMOVINGS. 
 
 Defences. 
 
 Prescription. 
 
 Ju& quwsituni 
 tertio. 
 
 Court Act regarding the inducioB,^ and mode of citation (sects. 
 8-12) decrees in absence (sects. 14, 15); and making up the 
 record (sects. 16-24)^1 are to be followed. The calling in Court 
 must take place forty free days before the term (or first term) 
 of removal. ^^ 
 
 Many sorts of defences have been figured in the books, such 
 as objection to the pursuer's title ;^^ a subsisting lease or a cur- 
 rent obligation not to eject ;^ a conditional tenure where the 
 condition of removing has not arrived f^ a possessory judg- 
 ment ;^^ or a preferable heritable right in the defender's author f 
 but such an enumeration is valueless, since it is impossible to set 
 limits to the diversity of circumstances or the ingenuity of 
 lawyers. It is proper, however, to notice here two pleas in 
 defence which have not found a place elsewhere. 
 
 The old Act (1579, c. 82) which introduces 'prescription in 
 ' causes of removing,'*^ does not affect modern practice, for it only 
 provides that ' all actions of removing be pursued within three 
 ' years after the warning, with certification an they failzie, the 
 ' Warners shall never be heard thereafter to pursue the same 
 ' upon that warning' — a provision which only applies to the 
 procedure under Act 1555. The later enactments (1669, c. 9 : 
 as explained or corrected by 1685, c. 14) do, however, apply to 
 actions of removing apart from the old form of warning. They 
 provide that all actions proceeding on warnings, spuilzies, and 
 ejections shall prescribe in five years if they be not wakened 
 within that time, minorities being excepted.*' The terminus a 
 quo is, notwithstanding the clear wording of the Acts, the term 
 of removal.'" In modern practice, much may have happened in 
 the interval to disturb the operation of this prescription. 
 
 Two cases have occurred in which a tenant has been found 
 entitled (it has been said)'^ to defend himself on stipulations 
 made in his favour in deeds executed between other parties — 
 
 ™ As to edictal citation, see 1 Mackay, 
 Practice, 398. 
 
 ^^ Amendments are now allowed more 
 freely than of old ; see E. March r. 
 Dowie, 1754, M. 13843; Camphell v. 
 Johnston, 1793, M. 13849. 
 
 *^ Supra, p. 484. 
 
 ^ Supra, p. 441. 
 
 84 Balf. 459 seqq. ; Cr. 2.9.33 seqq. ; St. 
 2.9.43, 4.26.10 ; Brak. 2.6.54. Cases in 
 M. 12302, 13784, 13797 ; acceptance of 
 herezeld, M. 6419 seqq., 7195, 11609. 
 
 8' Hardie v. Wilson, 1673, 1 B.S. 690 ; 
 Thomson v. Terney, 1791, Hume 780 (pur- 
 
 chaser bound) ; M'Craei). M'Kenzie'sTrs., 
 1831, 9 S. 392 (meaning of an agreement. 
 
 ^ St. supra, ^i Bankt. 2.9.66. 
 
 ^^ Cr. 2.9.36 ; St. supra, ^ ; Bankt. 
 2.9.65 ; Annand v. Tenants, 1628, M. 
 13808. 
 
 88 St. 2.9.43, 2.12.30, 4.26.10 ; Mack. 
 Obs. 195, 249; Bankt. 2.12.34; Ersk. 
 3.7.18 ; Ross on Remov. 114 ; Napier, 
 Prescription, 712. 
 
 8" St. 2.12.30; Bankt. 2.12.27,34. 
 
 ™ Ly. Borthwiok v. Scot, 1629, M. 
 6422, 11076 ; Ersk. 3.7.18, 36. 
 
 "1 2 Hunter 68. 
 
JUS QUjESITVM TERTIO : VIOLENT PROFITS. 487 
 
 under the doctrine of jiis qucBsitv/m tertio. In the earlier case, 
 which is obscurely noted, ^^ the point does not seem to have really 
 arisen, the real question being as to the title of a lessor to let 
 excambed lands beyond the period during which the excambion 
 existed. The tenant had his own ' tacks and assedations ' to rely 
 on. In the later case, however, the rule of jus qucesituvi 
 was raised purely. In a long lease the landlord took the 
 tenant bound to allow a cottar and his wife ' to continue into 
 ' possession of the sit - house and yard presently occupied by 
 ' them,' at a stated rent during life or at least during 
 the currency of the long lease ; and it was declared that it should 
 not be in the power of the tenant to remove them or raise their 
 rents during that period. Five years later landlord and tenant 
 combined in raising an action of removing against the cottars. 
 The Court gave effect to the plea of jus qucesituTn, without 
 demanding any other proof than the lease that the landlord had 
 contracted with or bound himself to the crofters in the terms 
 recorded in the lease.^^ It is difficult to see any justification in 
 law for adopting this view, and, as has been pointed out, the only 
 authority cited'* is not in point. It would have been different 
 if the landlord had not concurred in ousting them ; but then the 
 proper remedy would have been for them to obtain the use of his 
 name in defending the suit or suspending the decree. 
 2. Violent Profits. 
 
 The old Act of 1555, c. 39, points out, not obscurely though introduction 
 in archaic form, the course of an action of removing both then violent profits, 
 and now. There is provision for decree in absence if the defenders 
 ' compeir not ; ' for absolvitor or dismissal, ' gif they compeir and 
 ' instantly schawls sufficient title to bruik [possess] the landes ; ' 
 and for the third possible case of compearance, without a title 
 to exclude but mere ' allegeance ' and ' offer to improove the 
 ' indorsation. In that case he sail not be heard in judgment, 
 ' bot if he find sufficient caution to the warner then instantly 
 ' that gif his allegeance, being foundin relevant, be not sufficiently 
 ' verified and prooven by him that the profites, damnage, and 
 ' interest whilkis the said warner or ony uthers having interest 
 ' hes susteined or sail happen to susteine by the delay of the 
 ' foresaide allegeance be refounded to him.' These words are the 
 warrant for ordering what is called ' caution for violent profits,' 
 — the first important peculiarity of a process of removing. The 
 same specialty is thus briefly prescribed in a modern Act of 
 
 5= Wood V. Moncur, 1591, M. 7713 ; ^ Craigie ». Eeid, 1807, Hume 830. 
 
 1 B.S. 126. "* Wood V. Moncur, supra, "-. 
 
488 TERMINATION AT ISH : ORDINARY REMOVINGS. 
 
 Sederunt -.^^ — ' In action of removing and in summary appli- 
 ' cations for ejection,'" the defender shall come prepared with a 
 ' cautioner for violent profits at giving in his defences or answers, 
 ' unless he instantly verify a defence excluding the action.' 
 Violent Violent profits (so called because they are due in respect of 
 
 violent possession) are penal damages, exigible as a preventive 
 against unwarrantable taking or keeping of possession, ' for what- 
 ' ever is done without proper warrant or authority is by the law 
 ' accounted violence.' ^" The title to demand them is the same 
 as the title to pursue a removing.'* Thus an assignee to a 
 warning and action of removing which has proceeded to litis- 
 contestation is not affected, so far as his claim for violent profits 
 is concerned, by any plea emerging thereafter and sufficient to 
 meet the conclusion for a removing. '^ An assignation to a lease 
 carries right to a claim for violent profits made in an action of 
 removing (against the lessor, who refuses to cede possession) 
 which was depending at the date of his assignation, and to a 
 bond of caution for them lodged in the action.^"" The liability 
 extends to all possessors without sufficient title ; and, a fortiori, 
 to possessors — such as subtenants holding from tenants having 
 no right to sublet — whose title is ab initio void.^"^ Liability 
 is not escaped by raising an action to enforce an alleged bargain 
 for a new lease. ^"^ 
 Title to Difficulty may arise in regard to the question whether there 
 
 ®^° " ^' h-as been ' instant verification ' of a title to exclude. Thus, 
 
 during the currency of a liferent lease, the landlord by missive 
 letter bound himself to the tenant to renew it in favour of the 
 tenant's son at the first term of Whitsunday after its expiration. 
 The landlord died, and then the tenant. In counter actions of 
 removing and implement, raised before the Whitsunday, between 
 the landlord's heir and the tenant's son, caution for violent 
 profits was demanded, and by the Lord Ordinary ordered to be 
 found ; but the Inner House reversed on the broad ground that 
 the obligation was not the inception of a new lease, but sub- 
 stantially a prorogation of the old, leaving, therefore, no interval 
 of possession without titlc^'^ But a plea that there had been 
 no warning and that tacit relocation had therefore set in, is not 
 
 »5 A.S., lOth July 1839, sect. 34. loi Cromar v. D. Gordon, supra, »'. 
 
 ^^ Cromar v. J). Gordon, 1830, 8 S. "^ Flemings. Morrison, 4th June 1835, 
 
 353. F.G. 629, 13 S. 859. 
 
 "7 Ersk. 2.6.54. los Wilson v. Henderson, 1823, 2 S. 
 
 S8 Supra, p. 441. 380 (new ed.), which corrects 2 S. 428 
 ^ Boss V. Ly. Fowlis, 1595, M. 16459. (old ed.). 
 1" Barbour v. BeU, 1831, 9 S. 334. 
 
VIOLENT PROFITS. 489 
 
 a defence capable of being instantly verified.^"^ If the landlord 
 has himself something to prove in order to establish a title to sue, 
 both parties are in pari casu, and he cannot demand caution.^"" 
 
 The rule requiring caution for violent profits holds in all cases no title 
 where there never was a right to possess or where a right once P'" "°® ■ 
 in existence has reached its natural termination ; and it is of no 
 consequence whether the remedy asked is a solemn removing or a 
 summary ejection.^"^ Where there never was a right the possessor 
 can show no title to oppose the pursuer's infeftment; in the other 
 case he may produce his lease but it bears on the face of it the 
 lapse of the right. It is different in some cases where the removing Desertion, 
 is extraordinary in the sense that it cuts short a current right ; 
 for there the lease instructs a subsisting contract and the landlord 
 must prove something extrinsic thereof and of his infeftment in 
 order to succeed. ^"'^ Therefore, for example, an action founded 
 on desertion by a tenant in the sense of the 5 th section of the 
 Act of Sederunt of 1756,^"^ is not (at all events in its first stage) 
 an action of removing to which the rule as to violent profits 
 applies : it is, on the contrary, an action of irritancy and the fact 
 of desertion has to be proved. So that it is of importance 
 to discriminate between this caution for violent profits and the 
 caution which is provided for in the A.S. of 1756.-"'^ But, just irritancy, 
 as in the case of alleged desertion, an admission of abandonment 
 would entail liability to find caution, ^i" and just as where the 
 right to remove a tenant before the ish is in the absolute discre- 
 tion of the landlord and he exercises that discretion violent 
 profits are due by a tenant who refuses to quit after intimation 
 thereof ; ^^^ so in the usual cases of removing founded on irritancy, 
 the absence of receipts (where there is alleged arrear of rent) or 
 the production of an extract of the deliverance awarding seques- 
 tration or cessio against the tenant (where the cause of irritancy 
 i.s bankruptcy) would let in the demand. Such documents are 
 
 ^0* Johnstone v. Maxwell's Trs., 1845, "^ Supra, pp. 460, 463. 
 
 7 D. 1066. See Robb v. Menzies, 1859, '™ The distinction was ignored in 
 
 21 D. 277. Cossar v. Home, 1847, 9 D. 617 ; given 
 
 "5 St. Clare v. Grant, 1687, M. 13893 ; effect to in Mackenzie v. Mackenzie, 1848, 
 
 Oliver v. Weir's Trs., 1870, 8 M. 786, 1 D. 1009, and was clearly in view in 
 
 per Ij. Cowan. Oliver v. Weir's Trs., supra, ^*'^. See Mr. 
 
 ^"^ Robb V. Menzies, supra, "'^. Hunter's view contra in 12 Journ. of 
 
 '"^ Oliver v. Weir's Trs., supra, '"^j Jurisp. 363, in a case decided before 
 
 see esp. per L. Neaves ; see Douglas Oliver. 
 
 „. Idington, 1628, M. 13892 (back-tack "« Cossar r. Home, i»» ; Oliver r. Weir's 
 
 and wadset). In Rae v. Henderson, Trs. ^'^ 
 
 1837, 15 S. 653, no decision on the point ^^^ Houldsworth v. Brand's Trs., 1876, 
 
 was reached ; see op. of L.O. Corehouse. 3 R. 304. 
 
490 TERMINATION AT ISH : ORDINARY REMOVINGS. 
 
 instantly produceable and prove themselves, and their existence 
 or non-existence (as the case may be) is really part of tl;ie land- 
 lord's title to re-enter. 
 Bona fides- I* is a good answer to a claim for violent profits that the 
 
 tenant possessed in good faith ; so that liability only supervenes 
 at and from the time at which hona fides ceases and conscientia 
 rei alienee begins. The determination of this point of time 
 depends wholly on the circumstances of each case,^'^ subject to 
 certain rules which have been thus laid down by L.J.-C. Mon- 
 creiff : ^^^ ' First, when the possession has commenced in good 
 ' faith, it lies with the true owner to show when it ceased to be 
 ' so before the right to demand violent profits can prevail. 
 ' Secondly, when possession has been continued during a litiga- 
 ' tion regarding the title of the possessor, it is sufficient to 
 ' support the possessor's plea of bona fides that he had probabilis 
 ' causa litigandi. And third, the principle is equally applicable 
 ' whether the possession be challenged in respect of want of title 
 ' in the possessor's author or in respect of the nature and condi- 
 ' tions of his own right.' It may be added that the passage from 
 bona to mala fides must be taken as having occurred at some 
 stage of a judicial process, not through private intimation. It 
 may be useful, however, to refer shortly to the cases which have 
 arisen in the law of landlord and tenant, and which illustrate the 
 doctrine of bond fide perception and consumption. 
 Cases. Sublessees, not recognised by the landlord, refused to remove, 
 
 after the principal lessee had given up his lease and agreed to 
 quit, their reason being that, though reasonable notice had been 
 given to them, they had not received regular warning. Violent 
 profits were held to be due for the period during which they had 
 opposed decree of ejection."* Where warrant of ejection follow- 
 ing on decree of removing was obtained but not executed, the 
 tenant who kept possession in opposition thereto for a year was 
 found liable in violent profits for the period subsequent to the date 
 of the decree.ii* In cases which took their rise in the Court of 
 Session, the turning point has been the date of a Lord Ordinary's 
 interlocutor subsequently adhered to ; "« or the date of a judg- 
 
 "2 The oases are collected in Rankine, 1629, M. 1742; M'Tavish v. M'Lauch- 
 
 Landownership, p. 72 ; and see Barbour Ian, 1748, M. 1736 ; Leslie-Grant v. 
 
 V. Bell, ™. Dundas, 1765, M. 1760, were not cases of 
 
 "^ In Houldsworth v. Brand's Trs., violent profits. 
 
 1876, 3 R. 304, 310. us Watt v. Bell, 1822, 1 S. 556 (N.E. 
 
 "■i Ramage v. Briggs, 1831, 9 S. 281. 509). 
 
 The cases noted in 2 Hunter 494-5 of "6 Houldsworth r. Brand's Trs., sw^jra, 
 
 King's Adv. v. Some Excommunicants, ^". 
 
VIOLENT PROFITS. 491 
 
 ment of the Court subsequently affirmed by the House of Lords/^^ 
 or from the first term thereafter, eveu (in special circumstances) 
 though there had been difference of opinion in the Court of 
 Session.^^^ Or it has been the date of the presentation of 
 an appeal to the House of Lords, the success of which was 
 assured by the result of earlier cases in pari maferm."' Or it 
 has been the date of a judgment of reversal by the House of 
 Lords. ^^^ And if prior to the date so determined the lease comes 
 to a termination, nothing is due in name of violent profits.^^^ 
 Where a tenant was in possession, but a jury had found that 
 the lease had been obtained by fraud, and certain questions of 
 accounting remained behind for disposal, the finding of caution 
 for violent profits was made a condition of leave to appeal to the 
 House of Lords.^-- 
 
 The date at which wrongful possession comes to an end is that End of maid 
 at which the subjects are restored, ' void and redd ' of the tenant, «P°^^«^5'°"- 
 his family, dependants, and subtenants,^^^ and also of new occu- 
 pants coUusively intruding before or within a short period after 
 the tenant ceased to possess. ^^* 
 
 The bond of caution ^^" proceeds on the narrative of an action Bond of 
 of removing having been raised and of an order on the principal °*" '""■ 
 debtor to find sufficient caution for violent profits and lodge 
 the bond in process, and binds the defender as principal debtor 
 and another party as cautioner, surety, and full debtor with and 
 for him and their heirs, executors, and representatives all jointly 
 and severally to pay to the pursuer whatever sums shall be 
 decerned to be paid by the defender in name of violent profits in 
 case it shall be found in the course of the said action that he 
 has not been well-founded in his defences. 
 
 The amount which in that event may become exigible as Measure of 
 violent profits, is, by an old custom, fixed at double the amount violent profits. 
 
 "7 Henderson, 14th Dec. 1815, T.C. 5), aff. 2 S. Ap. 43 ; E. VVemyss r. D. 
 
 53. Queensberry's Exr., 1823, 2 S. 107 (N.E. 
 
 "8 D. Gordon v. Innes, 1828, 6 S. 996, 101), aff. 2 S. Ap. 70 ; Carnegy r. Scott, 
 
 aff. 4 W. and S. 305. (The lease was 1827, 6 S. 206, aff. 4 W. and S. 431. 
 
 granted to one who took advantage of ^-^ Brisbane's Trs. «. Lead, 1828, 7 S. 
 
 the distresses of the lessor to dilapidate 65. 
 
 the estate ; and the view was expressed ^^^ Gardner v, Beresford's Trs., 1877, 
 
 that mala fides might have been thrown 4 R. 1091. 
 
 stiU farther back.) i^ E. Argyle v. M'Naughton, 1674, M. 
 
 "9 Stirling v. Dun, 1831, 9 S. 276. 13889. 
 
 120 Turner v. Turner, 3rd March 1820, ^'^* Greenlaw v. Adamson, 1624, M. 
 
 F.C. 118, rev. 1 Dow 423 ; Elliot v. Pott, 13888 ; Budge v. Sinclair, 1713, M. 13890; 
 
 1822, 1 S. 445 (N.E. 413), aff. 2 Sh. Ap. St. 2.9.43, 4.26.10 ; Ersk. 2.6.54. 
 
 181 ; D. Buccleuch v. Hyslop (Queens- ^=5 2 Jur. Styles (5th ed.), 397. 
 berry Leases cases), 1822, 2 S. 6 (N.E. 
 
492 TERMINATION AT ISH : ORDINARY REMOVINGS. 
 
 of the rent, where the subjects are houses within burghs-royal, 
 burghs of regality, or considerable burghs of barony ; ^^e but no 
 rule is indicated in the books for estimating the amount of rent 
 and the deductions, if any, allowable. lu the case of all other 
 subjects, though Lord Stair has attempted to lay down special 
 rules for estimating the amount of liability,'^*^ it is perhaps safer 
 to follow his general indication and confine violent profits to 
 ' the greatest profits that the pursuer can prove he would have 
 ' made.' ^^^ To these must be added reparation for ' all damages 
 ' which the subject may receive at the hands of the defender.' ^^^ 
 Nothing is allowed for meliorations or the interest of money 
 spent thereon during the subsistence of mala fides}^ If there 
 be a sublease, the subrent is not conclusive of the value in a 
 question between the landlord and the principal tenant. ^^^ 
 Violent profits There may thus be a considerable discrepancy between the 
 .images. Qp(j^jjg^j.y Tent Or Ordinary damages on the one hand and violent 
 profits on the other; and the excess may be of importance, 
 though claim for it prescribes in three years. ^^^ In a recent 
 case, the scope of these two remedies was elaborately canvassed. 
 A colliery lease entitled the landlord to resume on being dis- 
 satisfied with the working of the coal by the lessee's representa- 
 tives after his death. The landlord intimated dissatisfaction, but 
 the representatives refused to quit till after litigation on the 
 purport and exercise of the power. The landlord claimed violent 
 profits for the period of the delay so caused, or alternatively 
 damages. The latter alternative was chosen by the Court on the 
 ground that the representatives had not been mere intruders but 
 had been guilty of breach of a purely mercantile contract, a 
 mining lease being, in this relation at least, distinguished from a 
 lease of subjects yielding periodical produce.^'^ The measure of 
 damages was held to be the profit which resulted or might fairly 
 be held to have resulted from the tenant's operations during the 
 period of wrongful possession along with the loss of an increase 
 on the lordship which would have been obtained under a new 
 
 128 Hope, Min. Prao. 13.33 ; St. 1.9.27, v. Innes, 1832, 10 S. 616. 
 
 2.9.44, 4.29.3 ; Mack. 2.6.11 ; Bankt. ™ D. Buccleuoh v. Grierson, 1827, 5 
 
 1.10.133, 147 ; Ersk. 2.6.54 ; "WeddeU v. S. 676 (N.E. 631). As to the eflfeot of a 
 
 Buchan,1611,M.16460; 2 Bell, Leases, 83. remit to a man of skill, see D. Buccleuoh 
 
 ™ St. 1.9.27. V. M'Murdo, 1827, 5 S. 677 (N.E. 632). 
 
 128 St. 2.9.44. 132 1579^ ^ g^^ ^a construed in St., 
 
 12' Per L.P. Inglis in Gardner t'. Beres- supra,'^^; Mack. Obs. 195 ; Ersk. 3.7.16; 
 
 ford's Trs., 1877, 4 R. 1091, 1092 ; Mor- Gases in M. 11067-74 and 1 B.S. 36. 
 
 ton & Co. V. Colquhoun, 1783, M. 13893. ^ Houldsworth v. Brand's Trs., 1 870, 
 
 1™ D. Gordon v. Inues, 1828, 6 S. 996, 3 K. 304, esp. op. of L.J.-C. Moncreiff, 
 
 aff. 4 W. and S. 305 ; D. Gordon's Trs. p. 312. 
 
DECKEE OF REMOVING. 493 
 
 lease, subject to deduction for tear and wear and interest on cost 
 of machinery estimated generally.^'* And the commencement of 
 the wrongful possession was held to be, neither the date of in- 
 timation of the landlord's intention to resume, nor any point in 
 the original action raised to enforce this intention, but after the 
 lapse of a reasonable time (about three months and a-half) sub- 
 sequent to that intimation, allowed for arranging for the ceding 
 of possession, including the closing of colliery engagements, dis- 
 posal of surplus stocks of coal, dismissal of employees, and valua- 
 tion of the plant which was to be taken over.^^^ 
 
 Action for recovery of violent profits may be raised, as an Action for 
 alternative to proceeding on the bond of caution, or where no ^^° ^^ ^™ 
 caution has been or could have been obtained. ^^^ 
 3. Decree of Removing. 
 
 Where decree of removing is granted in the Court of Session Decree of re- 
 it must be either in a proceeding under the old Act of 1555, c.™ ' ^ 
 39 — an obsolete remedy of which nothing further need be said — Session. 
 or in cases where a conclusion for removing follows, is ancillary 
 to, and carries into practical operation, conclusions for declarator 
 or reduction. With the charge on such a decree for removing, 
 the function of the Supreme Court comes to an end. It leaves 
 the ejection to be carried out by the Judge Ordinary, on a 
 petition, as in the other cases now to be noticed. 
 
 In the Sherifif Court — which in most cases is the only com- in the Sheriff 
 petent tribunal — decrees of removing (other than those obtained 
 under 1 & 2 Vict. c. 119, sects. 8-13)^^'^ may be extracted forty- 
 eight hours after the interlocutor is signed. The extract ^^^ 
 (shortly stated) decerns and ordains the defender to flit and 
 remove himself, his family, &c., from the subjects libelled at a 
 given term, ' and then to leave the same void and redd to the 
 ' end that the pursuer or others in his name may then enter 
 ' thereto, and peaceably possess and enjoy the same ; ' ordains 
 officers to charge the defender accordingly, ' and that at the said 
 ' term of if the charge to remove be given forty- eight 
 
 ' hours before that term,^^' or within forty-eight after the charge, 
 ' in case the same is not given forty-eight hours before that 
 ' term, under the pain of ejection ; wherein if the defender fail,' 
 
 '34 1877, 4 R. 369— a jury question— Jany. 1830 Sched. (C), for ' Decreet of 
 
 (not for depreciation in its market value). Removal ; ' Sellar, Forms, 384, 398. 
 
 '^ Ibid. '3' It may be given long before, to 
 
 "^ Last case ; and Queensberry and come into effect at, tlie term — Riddel r. 
 
 other eases, SMpro, p. 491. Zinzan, 1671, M. 13828; Ly. Chatto i. 
 
 137 As to which, infra, p. 503. Haliburton, 1681, M. 8130. 
 
 '2^ Short form prescribed in A.S., 27th 
 
494 
 
 TERMINATION AT ISH : ORDINARY REMOVINGS. 
 
 Kjection. 
 
 Not executed 
 by niglit. 
 
 Title to eject. 
 
 Persons 
 ejected. 
 
 that the said officers eject him, his family, and others foresaid, 
 and keep them furth thereof, and enter the pursuer and maintain 
 him in peaceable possession ; and to cause inventory the goods 
 and gear so to be ejected ; and to open lockfast doors if 
 need be. 
 
 There is thus an order on the defender to remove ; and failing 
 his doing so on being charged,^*" there is an order on the officers 
 of Court to eject him and his. Where, as in such ancillary re- 
 movings as have just been referred to, an order of the former 
 sort already exists ; and where, as will be shown hereafter, ^*^ 
 it is not required, the form of extract warrant of ejection ^*^ de 
 piano grants warrant to officers of Court summarily to eject the 
 defender, &c., from the premises, and to make the same void and 
 redd as before. In both of these cases, if expenses are decerned 
 for, decree for expenses and warrant to arrest and poind fall to 
 be added. 
 
 ' It is clear that the occupant of a dwelling-house cannot law- 
 ' fully be ejected from it during the night-time. Humanity, as 
 ' well as law, forbids it.' But the limits of day and night in 
 each case will depend on the whole circumstances. Sunrise and 
 sunset are not accepted as such without inquiry, and the ques- 
 tion is one for a jury.^*^ It is plainly expedient (though, 
 perhaps, not on the ground of humanity) that the same rule 
 should obtain in all ejections whatever, as in other proceedings 
 in execution. 
 
 The rules regulating the title to sue have been already 
 detailed. If the landlord die after obtaining decree of removing, 
 it was formerly the law that his heir could not, while possessing 
 on mere apparency, follow up the decree and obtain ejection.^** 
 The vesting by mere survivance, which has been introduced by 
 the Conveyancing Act of 1874,"^ would probably be held to 
 transfer a title to sue in such a case. If it be the tenant who 
 dies after a decree of removing has been obtained against him, 
 his heir may be ejected without any transference."" Where 
 decree of removing against a subtenant had been obtained by 
 the principal tenant and the landlord, and the latter died, the 
 
 "" See the older practice in Ly. Stain- 
 hiU V. Burd, 1675, M. 13894 ; Pringle v. 
 E. Hume, 1739, ibid., and Elch. Re- 
 mov. 4. 
 
 '" Infra, p. 504. 
 
 "2 A.S., and Sellar, supra, ^^. 
 
 "^ Macgregor v. Vt. Stratliallan, 1864, 
 2 M. 1339 (finished after sunset). See 
 
 Gordon v. Hope, 1703, M. 3739; 2 Foun- 
 tainhall, 189. 
 
 1" Mackenzie v. Gillanders, 1853, 16 
 D. 158. 
 
 "■'' 37 & 38 Vict. M. 94, sect. 9. 
 
 "« E. Kintore v. Watt, 9th Dec. 1809, 
 F.C. 442. See 2 Bell, Leases, 124, note. 
 
SUSPENSION. 405 
 
 principal tenant was held entitled to enforce the decree without 
 the concurrence of the deceased's heir.^*" 
 
 Writ or oath seems to be the only competent mode of proof Eight to eject 
 that a decree of removing has been passed from by the landlord ; 
 but probably (on the analogy of other departments of the law) 
 an informal writ may be set up by rei interventus. Thus, oath 
 was required where the tenant alleged verbal agreement and (as 
 was admitted) that he had laboured, manured, and sowed the 
 land just as if he were to sit on for another year ; and the land- 
 lord alleged that this was done on his behoof and on promise by 
 him of recompensed^ Receipt by a landlord of all arrears of 
 rent due under a lease, and also of an additional term's rent, may 
 instruct that a decree of removing has been passed from to the 
 extent of that term, but no further. ^^^ 
 
 4. Review by Suspension. 
 
 The only competent mode of obtaining a review of a decree of Review, 
 removing or ejection, or of putting a stop to the execution of such 
 a decree by charge or threatened ejection, is suspension in the 
 Bill Chamber and Court of Session. ^^^ Appeal is incompetent, 
 .since, within the usual period allowed for appealing, extract may 
 have gone out, and a charge taken place.^^^ It has all aloDg 
 been recognised that actions of removing demand despatch ; ^^- 
 and the necessity of finding caution in a suspension puts the 
 tenant in a very different position from that which he would 
 occupy if appeal were competent. If actions of removing and of 
 interdict have been combined, appeal (formerly advocation) is com- 
 petent in regard to the conclusions for interdict alone; '^^ and if a 
 suspension of the removing be raised alongside of the appeal, the 
 Court is entitled to consider it on its merits, and is not bound to 
 pass the bill ob contingentiam of the appeal. ^^* It would be going 
 beyond the plan of this treatise to set forth the procedure in 
 suspensions.^''^ It will be enough to show (1) how suspensions 
 of removings have been specially provided for by enactment, and 
 
 "' Fraser v. Fraser, 1833, 11 S. 5ti5 A.S., 10th July 1839, sect. 147; but the 
 
 (and question moved whether landlord's new process under the Sheriff Court Act 
 
 concurrence was originally necessary). 1876 (39 & 40 Vict. c. 70) in effect 
 
 ^^ Hunter v. Dun, 1809, Hume 584. streeps away the distinction (in the 
 
 '** Grierson, 17th Nov. 1812, F.C. 3. Ordinary Court) between ordinary and 
 
 '"^ 6 Geo. IV. c. 120, sect. 44 ; Gibson sinimary process. 
 
 r. Scott, 1826, 4 S. 404 (N.E. 407); Roy ''^ M'Kair r. L. Blantyre's Tutors, 
 
 V. E. Wemyss, 1840, 2 D. 1345; Fletcher 1833, 11 S. 651. 
 
 V. Davidson, 1874, 2 K. 71 ; Ross i,. "* Id. v. Eosd., 11 S. 935. 
 
 Brims, 1878, 15 ScL.R. 438. ^^ See 2 Mackay, Practice, 482, 491 . 
 
 1°' WUson, Practice, 560, 582. Parker, Suspensions, &c., passim. 
 
 i^-i 1555, 0. 39; A.S., 14th Dec. 1756 ; 
 
496 
 
 TERMINATION AT ISH : ORDINARY EEMOVINGS. 
 
 Form of sus- 
 pensions. 
 
 Caution- 
 juratory. 
 
 (2) how the rules of procedure have been illustrated by cases 
 relating to removing and ejection. 
 
 Regulations relating to the form of suspensions of removings 
 were promised in the Judicature Act of 1825;^^^ but the 
 promise was not fulfilled. The modern rules are contained in 
 the proviso of the 4 th section and in the 6 th section of the Act 
 1 & 2 Vict. c. 86 (1838), which require that there shall be 
 annexed to the Note an articulate statement of the facts on which 
 the suspension is founded and a note of pleas in law. Formerly 
 such suspensions could only be heard by the whole Court, or in 
 vacation by three judges ; ^^^ but now they proceed before the 
 Lord Ordinary on the Bills without the concurrence of any other 
 judges. ^'^ Suspension of a decree of removing is competent 
 immediately on its being issued; either before or after extract;-'*^ 
 before or after the reclaiming days in the inferior Court ; ^^^ but 
 not after the decree has been carried into execution by actual 
 ejection,!^^ or after the tenant. has ceded possession. ^^^ After dis- 
 possession the appropriate remedy is reduction of the proceedings 
 complained of.-'*^ Execution of a decree of removing will not be 
 allowed to be stopped by a sist in an incompetent appeal, ^^* nor 
 by a claim of damages (as for non-repair of premises), unless in 
 certain cases where the removing is extraordinary and grounded 
 on alleged arrear of rent. In such cases the rules explained on 
 earlier pages come into operation. ^^^ 
 
 In the matter of the caution to be offered and exacted,^^^ the 
 question which has been chiefly debated is in what circumstances 
 the note shall be passed ^^^ on juratory caution only,^^^ that is, 
 caution which though not sufficient is sworn to be the best the 
 suspender can find. It is a privilege available to him only if he 
 
 156 6 Geo. IV. 0. 120, sect. 44. 
 
 1=' A.S., 14th Dec. 1756, sect. 6. 
 
 "8 6 Geo. IV. c. 120, sect. 46. 
 
 i^i* Graham v. Gordon, 1843, 5 D. 1207. 
 
 "» Ross V. Webster, 1833, 12 S. 200 ; 
 Greig v. Boyd, 1827, 6 S. 250. 
 
 !«' M'Intosh V. Robertson, 1830, 9 S. 
 75. 
 
 "2 M'Djugall V. Gait, 1863, 1 M. 
 1012. 
 
 16^ The old rule refusing suspension 
 and prescribing reduction, where the 
 landlord required to resort to parole 
 obtains no longer ; see Johnston v. Ten- 
 ants, 1628, M. 15151. 
 
 «" Wight V. Sutherland, 1823, 2 S. 
 462 (N.E. 414). Cromar u. D. Gordon, 
 
 1830, 8 S. 353, is special, the subtenant's 
 title being derived o non Jiabente potesta- 
 tem. 
 
 58= Supra, pp. 201, 220, 294, 462 ; see 
 Graham r. Gordon, supra,^'^; Mackintosh 
 v. Watt, 1821, 1 S. 194 (N.E. 183); 
 Shanks v. Grant, 1829, 7 S. 573; Scott v. 
 Christie, 1850, 18 D. 859. 
 
 ^^ If neither caution nor consignation 
 is ordered, the silence means that none 
 is to be exacted — Graham v. Gordon, 
 supra, 1^". 
 
 11" A.S., 14th Deo. 1756, sect. 6 ; 1 & 2 
 Vict. c. 86, sects. 4, 6 ; A.S., 24th Dec. 
 1839, sect. 4. 
 
 1"^ The procedure is set forth in 2 
 Mackay, Practice, 184. 
 
SUSPENSION : CAUTION. 497 
 
 has a probabilis cavsa litigandi. The circumstances which 
 have induced the Court to pass the bill on juratory caution 
 are — the fact that the resting-owing of one year's rent (that 
 being the reason of the removing under A.S., 14th December 
 1706, sect. 5), was a matter sub judice in another depending 
 process ; ^^^ that, in a case of alleged irritancy on account of two 
 years' arrear of rent, there were counter claims in another process 
 in respect of non-repair of premises, and abatement in respect of 
 drainage expenditure and of land compulsorily taken by a rail- 
 way company ;^™ that there had been no opportunity of appeal 
 (on a question of the admissibility of an essential witness) from the 
 sheriff-substitute to the sheriff, and that the farm had come to 
 no harm, but on the contrary was alleged to have been greatly 
 ameliorated by the tenants, on the faith of missives granted by 
 the landlord's factor ; ^'^ and that the landlord's answer to a 
 circumstantial statement in the tenant's pleadings regarding the 
 granting of an additional lease was so curt and unsatisfactory as 
 to lead to the impression that the denial was merely formal. ^^^ 
 It is always a make-weight in determining the Court to allow 
 juratory caution, that the inventory shows the security not to be 
 illusory. ^''^ 
 
 However much the sheriff may vary in his interlocutor the Decree cannot 
 terms of the decree of removing craved in the petition, the 
 Court in a suspension has no other function than either to refuse 
 or sustain it ^''^ — a limitation of discretion which does not exist 
 in regard to appeals and is often productive of injustice. ^^* 
 
 5. Wrongous Ejection. 
 
 If ejection takes place without order of law, a claim of damages Damages for 
 for wrongous ejection emerges.^™ Thus, where a landlord wish- ti^n^^°"' ^^^' 
 ing to eject his tenant illegally seized his effects, reparation for 
 the spuilzie (including the profits the tenant might have got 
 thereafter from the land) was awarded ; but a claim in a new 
 action of damages for ejection was refused on the ground that 
 the landlord had well paid for the spuUzie.^" If a tenant 
 
 ^^ MarshaU v. Gartshore, 1850, 12 D. "* Lyon v. Irvine, 1874, 1 K. 512. 
 
 946. ^'* As to interim execution pending 
 
 "' Scott V. Christie, 1856, 18 D. 859. appeal to House of Lords, see Mackay i. 
 
 I'l Aiidrewi;.Colquhoun,1852,15D.164. 612, ii. 428 ; andesp. Gray v. Low, 1859, 
 
 i''2 Logan „. Weir, 1870, 8 M. 1009 21 D. 723. 
 
 ('irrelevant and denied'). M'Allister u. "^ See case which failed — Thomson r. 
 
 Sprot, 1825, 4 S. 353 (N.E. 357), was no Handyside, 1833, 12 S. 557. 
 
 more than a compromise on the Bench ; '^ Russel v. Clark, 1749, M. 15265. 
 
 see Logan v. Brown, 1871, 8 Sc.L.R. 656. Hunter (ii. 508) doubts the decision, but, 
 
 "^ Marshall v. Gartshore, supra, ^^" ; looking to the measure of damages in the 
 
 Logan V. Weir, supra, '''. earlier case, it seems right. 
 
 2 1 
 
498 
 
 TERMINATION AT ISH : ORDINARY REMOVINGS. 
 
 is summarily ejected without orde^^'of law and his furniture 
 thrown into the public road, he is entitled to reparation for the 
 injury done to the furniture, expenses incurred through the 
 ejection, and loss of trade (if any), besides solatium for wounded 
 feelings. ^'^^ It has been shown that ejection in the night-time is 
 illegal, and will therefore give rise to a claim for damages. ^^^ 
 Even applying for and obtaining an illegal warrant of ejection is 
 a ground of damages, though it have not been executed."" But 
 right of action was refused to a tenant ousted from dwelling 
 in a barn and barnyard, which he was entitled to occupy after 
 the (in the cited case premature) termination of his lease only for 
 the purpose of stacking and thrashing the waygoing crop.^^^ Nor 
 does any claim for damages arise from the goods of a tenant 
 being attached by sequestration and thus made unavailable for 
 furnishing other premises, at least if the sequestration has been 
 removed before the ejection. ^^^ When a tenant voluntarily 
 quitted possession on intimation of a warrant of ejection obtained 
 against his immediate predecessor by a party claiming a right 
 preferable to that of his author, there was no claim for damages 
 by the tenant against his author since there had really been no 
 disturbance of possession. ^^^ 
 
 Summary re- 
 movings. 
 
 From urban 
 tenements. 
 
 III. KeMOVINGS TO WHICH ACT 1555 AND A.S. 1756 DO NOT 
 
 Apply — Summary Removings. 
 
 It has been the unfortunate habit of Scottish lawyers to apply 
 the term 'summary' to all removings which are not regulated 
 by the Act of 1555 and the Act of Sederunt of 1756. In one 
 sense all removings are summary, and have been so treated in 
 Acts of Sederunt."* In another sense the first class of removings 
 now to be described is only summary from the circumstance 
 that, though warning is required, and the period thereof is norm- 
 ally the old space of forty days, yet the provisions of the old Act 
 relating to the form of warning and the necessity of keeping Whit- 
 .sunday in view, were not compulsory. "= The necessity for action 
 
 I's Douglas V. Walker, 182.5, 3 S. 634 
 (N.E. 370). 
 
 "' Macgregor v. E. Strathallan, 1864, 
 2 M. 1339, mpra, p. 494. 
 
 "« Bisset V. Whitson, 1842, 5 D. 5. 
 
 "' Tait V. Paton, 1825, 4 S. 208 (N.E. 
 211). 
 
 182 Ibid. ; and the better opinion seems 
 
 o be that even if the sequestration had 
 
 subsisted, the landlord's only obligation 
 
 would have been to find the furniture 
 
 house-room. See case of detention of 
 tenant's goods after his ejection — David- 
 son V. Dunbar, 1826, 4 Mur. 40. 
 
 '83 Anderson v. Abel, 1854, 16 D. 796. 
 
 18* Supra, pp. 493, 495. 
 
 '8'' An early illustration is Ker v. 
 Fowlis, 1623, M. 13855 ; and the distinc- 
 tion is succinctly drawn in Hart ?'. 
 Tenants, 1674, M. 3783 ; and see Ker v. 
 Muirhead, 1632, 1 B.S. 192. 
 
URBAN TENEMENTS. "^99 
 
 of removing exists equalh^in both cases, and, now that all actions 
 in the Sheriff Ordinary Court are treated in the same fashion, 
 the term ' summary ' is no longer distinctive, so far as the pro- 
 ceedings in Court are concemed.^^^ This is the case of remov- 
 ings from urban tenements at common law. But provision has 
 been made for summary removings in the more obvious sense of 
 the words by a statute which brings the procedure of the Sheriff From^s^i^«c^t3 
 Small-Debt Court to bear on removings from inconsiderable 
 subjects held for short periods. This is the reform embodied in 
 the Sheriff Court Act of 1838.^^' And in certain cases summary 
 ejection appears as a substantive process — not merely as opera- 
 tive of a decree of removing. Of these in their order : 
 
 1. Urban Tenements and the like at Gommon Law. 
 
 These are chiefly buildings and their pertinents — tenements Urban tene- 
 ' having no relation to a country farm.'^^* Except in one respect, 
 the rules as to removings from these are wholly customary, 
 and vary with the locality in which the buildings are situated. 
 
 In burghs, whether burghs royal, of regality, of barony, or In burghs-- 
 parliamentary,^^' the common practice^'" is that a burgh 
 officer — authorised thereto at one time by special warrant 
 from a magistrate ; then by general warrant annually 
 issued ;^^^ and now simply virtute offidi^^^ — chalks the 
 most patent door of the building, ^^^ in the presence of one 
 witness,^^* forty days before the term of removing,^'^ which was 
 of old, and is still, usually Whitsunday. The order of the land- 
 lord or his agent to the officer may be merely verbal ; but the 
 proper, though not the only available,"^ evidence of a warning is 
 the execution sent in by the officer, which should be in writing or 
 in print or partly in both.^^' The form of execution varies according 
 as the warning has,^^^ or has not,^'^ been accompanied with intima- 
 
 186 Sherifi Lees (Styles, p. 296) points "M & 2 Vict. c. 114, sect. 32 ; 9 & 10 
 
 oat modes of acceleration, where the cir- Vict. c. 67 ; Robb v. Menzies, supra, ^^K 
 
 cumstances demand it. iss Riddell v. Zinzan, 1671, M. 13828 
 
 18'' 1 & 2 Vict. c. 119. (before 30th November). 
 
 '88 Ersk. 2.6.47. "« Per L. Deas in Eobb v. Menzies, "» ; 
 
 189 3 & 4 Will. IV. c. 77, sect. 30. Hart v. Tenants, 1634, M. 3783 ; Scott v. 
 
 IS" The procedure of A.S. 1756 was Boyd, 1829, 7 S. 592 (parole allowed ; 
 
 adopted in Shinas v. Fordyce, 1777, 5 error corrected in execution). 
 
 B.S. 572. 197 1 & 2 Vict. c. 114, sect. 32. 
 
 191 Bartounr. Duncan, 1709, M. 13832. i98 Boyd, Jud. Proc. 326 ; Frazer, Jud. 
 
 192 Jolly V. Stevenson, 1781, M. 13865 Proc. 337 ; Boss on Remov. 119. 
 
 (even extra fines burgi). '99 jjobb v. Menzies at 21 D. 278, 281 
 
 193 Cr. 2.9.9 ; St. 2.9.40 ; Bankt. —after the warning to flit follow the 
 2.9.52 ; Ersk. 2.6.47 ; Ross on Remov. words— 'I also chalked.' V.R. 1858, 'at 
 115 ; B. Pr. 1278 ; More's Notes, 256 ; ' and upon the most patent door of the 
 Robb V. Menzies, 1859, 21 T>. 277. ' said tenant's premises,' 
 
500 
 
 TERMINATION AT ISH : ORDINARY REMOVINGS. 
 
 Acknowledg- 
 ment. 
 
 Registered 
 letter. 
 
 Period of 
 warning. 
 
 tion to the tenant personally. The better opinion seems to be that 
 chalking is sufficient warning, without further intimation ; ^'"' and 
 a dictum, delivered obiter, which throws upon singular successors 
 of a lessor though not on the lessor himself the duty of proving 
 the tenant's actual knowledge of the waming,^"^ seems to rest on no 
 valid distinction of principle. It is not necessary that warning 
 should be given on the premises, provided it be made to the 
 party, either by personal service or at his dwelling-house. There- 
 fore a warning to the tenant of a house and shop (separate 
 subjects) given in the shop where the tenant resided was held 
 good with regard to both.^''^ As equipollent to chalking are, at 
 common law, an acknowledgment by the tenant that intimation 
 had been made to him timeously f°^ and, by statute, in any case of 
 removal from a house (other than a dwelling-house or building 
 let along with land for agricultural purposes) the posting within 
 the United Kingdom of a registered letter, signed by the person 
 entitled to give notice of removal,^"* in time to admit of its 
 being delivered on or prior to the last date upon which by 
 law such notice of removal must be given, addressed to the 
 person entitled to receive such notice, and bearing the particular 
 address of such person at the time, if the same be known, or, 
 if the same be not known, then the last known address of 
 such person.^°5 
 
 There is a general agreement in the custom of removings that 
 the period of notice or warning should be at least forty days ; and 
 the rule seems to be invariable where the warning is given not 
 by the landlord ousting, but by the tenant 'overgiving,' though 
 the customary intimation by the landlord is made earlier (1st 
 January or Candlemas).^'"' And now by statute, ' Where a 
 ' house (other than a dwelling-house or building let along with 
 ' land for agricultural purposes) is let for any period not exceeding 
 • four calendar months, notice of removal therefrom shall, in the 
 ' absence of express stipulation, be given as many days before the 
 
 =»» Ibid. 
 
 2" Hamilton v. Harper, 1669, M. 
 13827 (the case was one of liferent and 
 fee not of singular succession) ; but see 
 Robertson v. Draffan, 1885, 1 Sh. Ct. 
 Rep. 81. 
 
 2»2 Scott V. Cook, 1886, 2i Sc.L.R. 34. 
 
 203 Tait V. Sligo, 1766, M. 13864, 
 Hailes 88 (the notice had been acted on ; 
 and chalking was not so firmly settled in 
 Aberdeen as in Edinburgh). 
 
 *" £.^. factor — Thomson v. Handyside, 
 
 infra, 20° ; (he had let and his principal 
 was abroad). 
 
 «» 49 & 50 Vict. e. 50, sect. 6, infra, 
 p. 501 ; Appx. No. li. ; in imitation of the 
 Citation Amendment Act of 1882, 45 & 
 46 Vict. c. 77. See case of sufficient 
 citation, where the tenant had left the 
 premises but had returned and got the 
 writ in time under the door— Thomson v. 
 Handyside, 1833, 12 S. 557. 
 
 2»« Nicol V. Grosset, 1736, M. 13862 ; 
 Jack V. E. Kelly, 1795, M. 13866. 
 
FROM URBAN TENEMENTS. 501 
 
 ' date of ish as shall be equivalent to at least one-third of the 
 ' full period of duration of the lease.' ^"^ 
 
 To houses outside of burghs ^"^ the same rule applies, that the Extra burgal 
 mode of warning and removing is regulated by local custom,^"* or 
 by equivalent safeguards against oppression, and now partly by 
 the above statute. The statutory mode of sending warning by 
 registered letter gets over the difficulty of proving actual and 
 timeous receipt of the notice by the tenant. If the intimation 
 be made verbally, there must be proof that it reached him,^^" or 
 some one entitled to bind him by receiving it, at some time 
 beyond the period of warning. ^^^ If intimation be made by 
 ordinary post letter, a presumption of delivery in course of post 
 may be raised, but nothing more.^^^ Proof of delivery of written 
 notice timeously at the tenant's dwelling-house is sufficient to 
 fix him with notice, and it is very doubtful whether he would be 
 entitled to proof that the warning did not actually reach him in 
 time.^^^ The period of warning, where the lease is for a year at 
 least, is the customary forty days,^i* and probably the same would 
 be held in regard to half-yearly leases. 
 
 In respect to the day of removing from houses let with regard Term-days for 
 to the ordinary terms, an uniform rule was introduced by an Act ^0™°^^ *'^''™ 
 passed in 1881,^^* but its scope was confined to houses within 28th May 
 burgh. This statute was repealed, and its provisions extended November, 
 to the whole country, by the Removal Terms (Scotland) Act, 
 1886.^^® The word ' house ' means in the Act, a dwelling-house, 
 shop, or other building, and their appurtenances, and includes a 
 dwelling-house or building let along with land for agricultural 
 purposes. The definitions of ' lease,' ' tenant,' and ' person ' are 
 of the widest kind, including all tacks, however constituted, all 
 tenants under the same, and companies and corporations.^^' The 
 mischief which the Act seeks to abate is that a custom has 
 
 =»' 49 & 50 Vict. c. 50, sect. 5, follow- =" Slowey v. EobertsoD, 1865, 4 M. 1. 
 
 ing, extending, and repealing 44 & 45 ^^^ Ibid. 
 
 Vict. c. 39, sect. 4. '^ Lambert, supra, ^'^ 
 
 =™ See supra for composite subjects, p. ™ Morris v. Allan, 1839, 1 D. 667 
 
 482. obiter (the notice was served personally ; 
 
 ^'^ Cr. 2.9.17; St. 2.9.38; Mack. 2.6.11; see per L.J.-C. in Lambert); Lambert, 
 
 Obs. 165 ; Bankt. 2.9. 52.58 ; Ersk. 2.6.47 ; ^", Slowey, 2". 
 
 B. Pr. 1278 ; Lundin v. Hamilton, 1758, ^^^ 44 & 45 Vict. c. 39. See Thomson 
 
 M. 13845. See Frendraught v. Seton, v. Barclay, 1883, 10 K. 694. 
 1699, M. 13832 ; Kamsay v. Conheath, ^^ 49 & 50 Vict. t. 50, infra, Appx. 
 
 1630, M. 13826 (not a case of tenancy). No. xi. 
 
 ™ Lambert v. Smith, 1864, 3 M. 43 ™ Sect. 3. There is a superfluous 
 
 (to wife who communicated the fact too definition of 'burgh.' 
 late). 
 
502 
 
 TERMINATION AT ISH : ORDINARY REMOVINGS. 
 
 existed in Scotland whereby, for the purpose of a tenant's entry 
 to, and removal from a house, a period beyond the date of the 
 legal term of entry or removal is allowed within which such entry 
 or removal may take place, and that the period so allowed has 
 not been uniform, but has varied according to local usage ; and 
 the leading enactment is as follows : — 
 
 Terms of entry 4. Where under any lease entered into after the passing of this Act, 
 from houses ^^^ ^^^^ *°^ ^ tenant's entry to, or removal from, a house shall be one or 
 other of the terms of Whitsunday or Martinmas, the tenant shall, in the 
 absence of express stipulation to the contrary, enter to, or remove from, 
 the said house (any custom or usage to the contrary notwithstanding) at 
 noon on the twenty-eighth day of May, if the term be Whitsunday, or at 
 noon on the twenty-eighth day of November, if the term be Martinmas, 
 or on the following day at the same hour, where the said terms fall on a 
 Sunday. 
 
 Notwithstanding anything in this Act contained, in all cases in which 
 warning is required forty days before a Whitsunday or Martinmas term 
 of removal, such warning shall be given forty days before the fifteenth 
 day of May and the eleventh day of November respectively. 
 
 MisoeUiineous 
 subjects. 
 
 One result of this is that furniture which has been removed by 
 a tenant in the interval between 15th and 28th May (or 11th 
 and 28th November) is not attachable for the rent due for the 
 half-year succeeding under a prorogation of a lease which is then 
 expiring, since the new term of possession only begins to run on 
 the later dates.^^' 
 
 It has been uniformly held that the solemnities of the old 
 Statute of 1555 and of the Act of Sederunt of 1756 are not re- 
 quired in removings from other non-agricultural subjects, such as 
 factories,^!^ malt-kilns and barns, 2^*' salt-pans, ^^^ and mines and 
 quarries.222 ^jj ^j^^^ -g demanded by the Courts is that there 
 shall have been fair warning of the intention to remove the 
 tenant or of his intention to quit ; and in almost all this class 
 of cases the terms of the lease bring it under the rules relating 
 to probative tacks containing a definite ish.^^' 
 
 2'* Thomson v, Barclay, supra, -^'. 
 
 2" Riddell ■„. Ziuzan, 1671, M. 13828 
 (chiefly, however, as being in burgh). 
 
 -"^^ Waugh V. Abercromby, 1684, M. 
 13830. 
 
 221 Wallace v. Tenants, 1715, 5 B.S. 7. 
 
 222 Wauchope v. Hope, 1767, M. 13847; 
 Udny V. Brown, 1802, Hume 566. 
 
 Stair's view (2.9.38) of Preston v. L. 
 Cockpen, 1610, M. 13820 (liferent) seems 
 right. Tor 'to' in first line of report 
 read ' by.' 
 
 223 Supra, p. 474. As to leases of feu- 
 duties, customs, &o., see E. Darnley v. 
 Campbell, 1742, M. 13839; E. Elgin r. 
 Ms. Tweeddale, 1831, 9 S. 901. 
 
FROM SMALL HOLDINGS. 503 
 
 If the warning be not obeyed, action of removing must be 
 raised in common form. 
 
 2. Removing from Small Holdings. 
 
 In the year after the passing of the Sheriff Small-Debt Act/^* sheriff Court 
 a Sheriff Court Act ^^^ became law, which contains provisions " ' 
 (sects. 8-14) for summary complaint for removing being presented 
 by any person authorised by law to pursue a removing ^^^ to the 
 sheriff of the territory, if the premises are ' houses or other 
 ' heritable subjects in Scotland let for any shorter period than 
 ' a year at a rent of which the rate shall not exceed £30 per 
 ' annum.' Provision is made for service of the complaint and 
 for the inducicB being fixed (sect. 8) ; for procedure in absence, 
 care being taken to preserve the defender's effects, if necessary, 
 and for reponing (sect. 9); for the citation of witnesses and 
 havers and the scale of fees allowed to the clerk and officers and 
 of travelling expenses (sect. 10). The citation and further pro- 
 cedure are directed to be the same (so far as unaltered in the Act) 
 as those established for small-debt causes, ^^' and ' where decree of 
 ' removing is pronounced it shall be in the form or to the effect 
 ' of Schedule (A), and shall have the full force of a decreet of 
 ' removing and warrant of ejection ; ^^^ and the judgments to be 
 ' pronounced in such summary actions of removing shall be final 
 ' and not subject to review, either in the Circuit Court of Justi- 
 ' ciary or in the Court of Session' (sect. 11). Adjournment and 
 written answers may be allowed of consent or on cause shown ; 
 caution for violent profits is exigible as in other removings^^^ 
 (sect. 12); and, where it is found, written answers must be 
 admitted (sect. 1 3). ' In all cases where written answers shall 
 ' be ordered, such cases shall thereafter be conducted, as nearly 
 ' as may be, according to the forms in use in ordinary processes 
 ' of removing, and the judgment of the sheriff therein shall be 
 ' subject to review in common form ' (ibid.). 
 
 The appropriate forms of summary complaint ; warrant thereon; Forms, 
 citation; execution thereof; and decree are set forth in Schedule 
 A appended to the Act. The form of the complaint adapts 
 it either to an expired or to an expiring lease. It has been 
 shown that the complaint is to be ' in the form or to the effect 
 
 ^ 1 Vict. c. 41 (1837). 227 See =^, '^. 
 
 '•^ 1 & 2 Vict. c. 119. The sections ^ Supra, T^.i9i. So that on failure to 
 
 now to be noticed are annotated in Sheriff remove himself, the tenant may at once 
 
 Lees' Small-Debt Handbook, p. 129 seq., thereafter be ejected by the ofBcers of 
 
 and they are printed infra, Appx. No. Court, 
 
 ix. ^ Supra, p. 487. 
 
 22" Supra, p. 441. 
 
504 
 
 TEEMINATION AT ISH : ORDINARY REMOVINGS. 
 
 Servant 
 tenants. 
 
 Irritancies. 
 
 Executory of 
 a removing. 
 
 Independent 
 remedy. 
 
 ' of the schedule.' In order to comply with this provision, it is 
 enough if, in describing the nature of the tenancy, there is suffi- 
 cient to show that the complaint is properly brought under the 
 statute. For instance, instead of inserting the dates of entry and 
 of ish (as the statutory form prescribes) it is sufficient if a tenancy 
 dependent on the hire of the tenant as the landlord's employee 
 is described as from fortnight to fortnight (or other period) 
 pending employment ; and the termination of the tenancy (along 
 with the employment) is stated to have occurred on a particular 
 date.^^" Moreover, the statute is put to a use which involves a 
 further strain on the elasticity of its forms — a strain which is 
 only justified by strong convenience. It is common in letting 
 small urban subjects for a fixed period and monthly (fortnightly 
 or weekly) thereafter, to stipulate that, if the tenant shall fall 
 in arrear of rent, his lease shall thereupon terminate. In such 
 cases the statutory form is varied so as to state the fact that 
 arrears are due and that the defender refuses or delays to remove, 
 although the period of his lease has expired. ^^^ This is in effect 
 the enforcement of a petty irritancy, probably not contemplated by 
 the legislature in passing the Act, and scarcely justified by its terms. 
 
 3. Ejection. 
 
 The function of the process known as ejection, as the mode of 
 carrying out a removing where the tenant delays or refuses to quit, 
 has been already described.^^^ It is there a purely accessory pro- 
 cedure. It would have been well if the term had been confined 
 to use in this sense only, more especially as quite enough of 
 confusion is necessarily caused by the employment of the phrase 
 ' action of ejection ' in our old law to mean the suit which arises 
 out of an ejection. Unfortunately the term has been further 
 used in many instances, as equivalent to summary removings as 
 above described. It is possible to minimise the inconvenience 
 and at the same time to mark a distinct difference of principle 
 by using the term ■ summary removing ' as applicable only to the 
 procedure described in the foregoing pages, and by here confining 
 the use of the word ' ejection ' in its third sense (denoting a 
 substantive, not a merely accessory process) to such cases as on 
 the face of them disclose] that possession is held m, clam, aut 
 
 precano ; ^^s or (to take a practical test) that tacit relocation is 
 ex hypothesi inadmissible. 
 
 ^2 Supra, p. 494. 
 
 ^'^ See 1457, c 78, and Mack. Oba. 
 thereto ; St. 2.9.38 ; Bankt. 2.9.57 ; see 
 authorities on possessory remedies col- 
 lected in Rankine, Landownership, 8 seq. 
 
 ^ Shotts Iron Co. v. Paton, 1857, 19 
 D. 755 ; see as to similar cases, infra, p. 
 506. 
 
 '^ Following the second alternative of 
 Sehed. A, No. 1.— Lees, Small-Debt, 133. 
 
SUMMARY EJECTION. 505 
 
 (a) Heir of Liferent Tenant. 
 
 When a liferent tenant dies, his heir is not entitled to the Heir of life- 
 benefit of that relaxation of the strict law which is allowed to 
 a tenant holding of a liferent owner on the death of his land- 
 lord.^** The heir is deprived of all right of possession by the 
 terms of the only title to which he could ascribe it. He 
 may therefore be ejected summarily as a vitious possessor.^*^ 
 The point was long debated, and was at last settled ' on the 
 ' general ground,' in a case where, though the lease was 
 taken to a minister during his incumbency,^** the rule was 
 held to apply to all cases of tenant for life.^*^ An express 
 extension of the right of possession to the heir or representa- 
 tives for a year or so is not unknown : and the effect of it is 
 merely matter of interpretation, from which no general rule can 
 be elicited. ^*^ 
 
 In all these cases, however, the maxim applies — messis Eight to crop 
 sementem sequitur. Thus where the tenant for life died on ™'"'' 
 19th April, his heir was held entitled to reap the crop so far 
 as then sown, on paying a proportion of the rent ; to be recom- 
 pensed for the value of work done on the land not then sown, 
 either before or after his death ; and to be allowed a day's time 
 to remove the effects ; but to no other right of reaping, grazing, 
 or residence.^*^ It may, however, be of some importance to 
 note that an obligation imposed on the tenant and his heirs 
 in a long lease ending with a liferent, to remove ' the Whit- 
 ' Sunday next and immediately after the expiration of their 
 ' tacks ' did not entitle the representatives of the last (the life- 
 rent) tenant who died in March, to sow in the interval, and 
 thereafter to reap what was so sown, their right in the interval 
 being merely to personal occupation.^*" 
 
 =M Supra, p. 482. 527 (N.E. 535) ; More's Notes, 256 ; 
 
 235 Balf. 458 ; Cr. 2.9.13 ; St. 2.9.38 ; Duncan, Paroch. Eccl. Law, 399, 517. 
 Mack. 2.6.11, Obs. 155; Bankt. 2.9.57. ^ Stewart u Grimmond's Reps., 1796, 
 Ersk. 2.6.49 is contra, and founds on M. 13853 ; cf. Johnston's Trs., 1803, M. 
 Rowallan v. Boyd's Relict, 1630, M. 15207, in contrast. 
 
 13825, 1 B.S. 306, where a widow was ^38 jig Tweeddale v. Somner, 1845, 17 
 
 allowed warning, but the point is settled Sc. Jur. 198. 
 
 as above ; see supra, p. 482, and Tennent ^° Stewart, supra, ''^. In Tennent, 
 
 V. Tennent, 1760, M. 13845 ; Crawford sup^-a, ^^, the death was in December, 
 
 V. Whiteford, 1778, 5 B.S. 620 ("per L. and no question as to crop arose. In 
 
 Braxfield). Gordon, supra, '^^, it was in June, and 
 
 236 Gordon v. Michie's Reps., 1794, M. the right to the crop was admitted. 
 13851. The same as to tenants of manse 240 ]yia_ Tweeddale v. Murray, 1846, 
 or glebe — Couper v. Bruce, 1692, M. 8 D. 411, rev. 6 B. Ap. 125. 
 
 13831 ; Macoallum r. Grant, 1826, 4 S. 
 
506 
 
 TERMINATION AT ISH : OEDINART EEMOVINGS. 
 
 Occupancy in- 
 ciSent to 
 
 Cases. 
 
 (6) Employees. . . .t, • i 241 
 
 Many officials have house-room as part of their salary. 
 Menial servants frequently live beyond the walls of the house 
 in or about which they are employed. And on large farms, near 
 factories and mines, and in other places where a number of 
 workmen are employed, it has long been not unusual, and, since 
 the increase of industrial enterprise in the present century began, 
 it has become common, to make possession of a house in the 
 neighbourhood of the work a part of the wage ; or for the 
 employer to let out to his servant suitable accommodation at a 
 fixed rent. In the former case it is implied, and in the latter 
 case it should be expressly stipulated (if such be the intention), 
 that on ceasing to be employed at the work, the right to possess 
 (as servant or tenant ^^^) should cease also. And the employer's 
 remedy, in case of the servant's refusal to remove, is by petition 
 for instant ejection presented to the sheriff, or for summary 
 removing under the Sheriff Court Act of 1838.^*^ 
 
 Thus, where a lease of mineral came to an end, the miners 
 were allowed by the landlord to remain for three months beyond 
 in the cottages which they had either built themselves or got 
 from the tenant without rent. The landlord charged, on letters 
 of horning, both the tenant and the miners to remove. It was 
 held to be clear that no formal warning forty days before Whit- 
 sunday was necessary for ejecting the miners. At the same time 
 it might have borne hard on these poor people to turn them out 
 summarily without any premonition, and fifteen days' warning 
 was allowed them.^** This indulgence was evidently allowed 
 ex gratia, probably on account of the unusual difiiculty in a 
 remote hill village (Wanlockhead) of obtaining other accommoda- 
 tion. A later case, though it related only to workmen engaged 
 by the piece or job, may be taken as laying down the rule 
 applicable to all cases in which the possession of houses is 
 terminable with and parcel of a contract of service, though, as 
 already mentioned, the most convenient form of process in modern 
 times is that which is prescribed by the Sheriff Court Act of 
 
 2^1 Whyte V. Haddington, Sch. B, 
 1874, 1 E. 1124 (summary ejection of a 
 schoolmaster dismissed from office). 
 
 '■"2 As to the distinction see Fraser, 
 M. and Servant, 7, 332. In the case of 
 menial servants, whether resident under 
 separate roof or within the mansion-house, 
 the ejection may take place md facti, 
 provided no unnecessary violence be used 
 
 —Scott V. M'Murdo, 1869, 6 Sc.L.E. 
 301 ; cf. Scougal v. Crawford, 1819, 
 2 Mur. 110. 
 
 '^^■> 1 & 2 Vict. c. 119, sects. 8 seq., 
 supra, pp. 503-4, and Shotts Iron Co. i: 
 Paton there. 
 
 ^ D. Queensberry v. Telfer, 1756, 
 M. 13843 (reserving any right those who 
 had built might have for recompense). 
 
SUMMARY EJECTION. 507 
 
 1838.^*^ Calico-printers, engaged by the piece, were, as part 
 of their contract, accommodated with houses near the print-field, 
 for which they paid a fixed rent by way of deduction from their 
 wages every four weeks. Some of them being dismissed, others 
 intimated their resolution to leave on the completion of the jobs 
 then on hand, and the manager acquiesced. In spite of this 
 termination of their service, many of the workmen refused to 
 remove from their houses and yards, and a petition praying for 
 their immediate removal was presented to the sheriff, who 
 granted decree for summary removing. A suspension of the 
 decree was refused, overruling the contention on behalf of the 
 workmen that they held the premises not as part of their wages 
 but for specific rents ; that they were entitled to the benefit of 
 a lawful warning for the ensuing Whitsunday ; and that other 
 dwelling-houses could only be had at the legal term days.^*" 
 
 (c) Squatter. 
 
 A third case in which a petition for summary ejection is the 
 appropriate remedy is where the defender is a mere squatter, 
 possessing (or rather occupying) with no shadow of title. But 
 to examine the rules which regulate the right to take proceedings 
 at law or via facti against such intruders would be to stray 
 beyond the scoi^e of this work into the law of landownership.^*" 
 It need only be added that the proprietor does not have to make 
 up his mind in what capacity the person he seeks to oust may 
 pretend a right to possess ; he may call him as ' tenant or 
 ' possessor or pretended tenant or possessor,' since it may turn 
 out in the course of the proceedings that an alleged title of 
 tenancy is open to objection. 2*^ If the proprietor discards the 
 alternative he had formerly to stand or fall by the instance he has 
 chosen ;^*^ but the form of pleadings is now elastic enough to 
 allow of amendment 'pendente processu, so that complete justice 
 may be done. 
 
 (d) In Enforcement of Obligation to Plenish. 
 
 Ejection in the cases noticed above is a definitive process 
 depriving, once aud for all, the defender of right and title to 
 possess. Mention has, however, been made of another application 
 
 ^"^ Supra, p. 503. ship, pp. 9 seqq. As to lease without 
 
 =^ Young & Co. V. Paton, 1808, Hume ish, see Orr «/. Kannie, 1872, 9 Sc.L.E. 
 
 582. 337. 
 
 ^ See Macdonald v. Ds. Leeds, 1860, ^ Nisbet v. Aikman, 1866, 4 M. 284. 
 
 22 D. 1075; Hally v. hang, 1867, 5 M. ^» Waterstone 1,. Mason, 1864, 8 D. 
 
 951 ; Macdonald v. Watson, 1883, 10 B. 944 ; Hally v. Lang, supra, ^. 
 
 1079, and cases in Rankine, Landowner- 
 
508 TERMINATION AT ISH : ORDINARY REMOVINGS. 
 
 of the remedy, in which the right to possession is held to be 
 only suspended till an obligation incumbent on the tenant with 
 its sequels is fulfilled. This is the result where ejection is 
 ordered on failure of the tenant of a house to furnish it sufficiently 
 in compliance with a decree.^™ 
 Jurisdiction. In all cases of summary ejection (in spite of an antiquated 
 doubt founded on their being in certain circumstances extra- 
 ordinary remedies) the Sheriff Court has jurisdiction.^*^ And 
 within burgh, the Burgh Court is equally competent. ^=^ Even 
 where immediate or instant ejection is demanded, the judge may 
 allow some short period at his discretion,^*' usually till noon 
 forty-eight hours after decree. 
 
 Notice by Tenant of Intention to Quit. 
 
 Such being the powers of a landlord in the matter of removing 
 a tenant and the mode prescribed by the law for effecting that 
 purpose it only remains to state in a few words what is incumbent 
 on a tenant desiring to quit at the natural termination of his 
 lease. The rule is that he must give notice or warning to his 
 landlord of his intention to quit ; and the period of warning must 
 be equivalent to that which his landlord would have been bound 
 to allow, if the initiative came from him.^** It has been shown 
 that the notice of termination of a tenancy prescribed by the 
 Agricultural Holdings Act ^** is treated in the same way, whether 
 it is given by landlord or by tenant. 
 
 Unless the landlord warns or the tenant notifies in due time, 
 tacit relocation takes place.^*^ 
 
 '®'' Supra, p. 351 ; esp. Wright v. 253 xi,e alternative is allowed in 1 & 2 
 
 Wightman, 1875, 3 R. 68; Cunningham Vict. c. 119, Sched. A, No. 5; and may 
 
 ■11. Black, 1883, 10 K. 441 ; and Thomson be followed as declaratory of the law or 
 
 V. Handyside, infra, ^''. by analogy. 
 
 ^1 See Nisbet -o. Aikman, 1866, 4 M. ^ Mackintyre v. Macnab's Trs., 1829, 
 
 284, for the literature and close of the 8 S. 237, aff. 5 W. and S. 299. 
 
 controversy. 265 4g 4 47 yjgt, „. 62, sect. 28, supra, 
 
 =52 Thomson v. Handyside, 1833, 12 S. p. 479. 
 
 557 ; Kobb v. Menzies, 1859, 21 D. 277. '^ See next chapter. 
 
509 
 
 CHAPTER XXII. 
 
 TACIT RELOCATION. 
 
 The rule of the Roman law, ' taciturnitate utriusque partis Origin in 
 
 ' colomLS reconduxisse videtur,' ^ is a special application of a rule ^°™^^ ^""■ 
 
 whicli obtains in other departments of the law,^ and, in the law 
 
 of landlord and tenant, not to rustic subjects only, but to tenants 
 
 of all subjects capable of being let. The doctrine of the Roman 
 
 law, which has also been adopted in France^ and Germany,* has 
 
 descended to us under some modifications of little importance, 
 
 and under the name of tacit relocation.* In England the civil 
 
 law is not followed ; but similar results accrue from the right to 
 
 sue on use and occupation against one who ' holds over ' after the 
 
 close of his term.^ 
 
 After the exposition which has just been given of the law of when it sets 
 removings, it will be enough to say that tacit relocation — a '°' 
 constructive renewal of a lease — operates wherever (1) summary 
 ejection (in the sense described at the close of last chapter) is 
 incompetent, and (2) efifectual steps have not been taken for 
 removing,^ or, after having been taken, have been abandoned or 
 passed from.* 
 
 ' 13, § 11 D. (19.2) and next fragment. 2.9.23, 4.26.14 leq. ; Mack. 2.6.7 ; Bankt. 
 
 See also 16 C. (4.65). See the commen- 2.9.32 ; Brsk. 2.6.35 ; B. Pr. 1265. 
 
 tary on these texts in Vangerow, Pan- ^ Woodfall (13th ed.), 542. The ' ten- 
 
 dekten, iii. 456. ' ant-right of renewal ' is not analogous — 
 
 ' ^.y.. Partnership — Clark on P. iL 657; see ibid. p. 373. 
 
 Neikon v. Mossend Iron Co., 1884, 12 R. ^ Bp. Argyll v. Commissary, 1669, 1 
 
 499, rev. 13 E.(H.L.) 50, 11 App. Cas. B.S. 576. See case of it new bargain, 
 
 298. Hiring of servants— agricultural, Macbrair v. Eomes, 1682, M. 15320. 
 
 domestic, and the like, Fraser, Master ^ Ersk. 2.6.35 ; Bruce v. Bruce, 1610, 
 
 and Servant, 58 ; Lennox v. Allan, 1880, M. 15314 ; Bp. of Argyll v. Walker, 
 
 8 R. 38. 1672, M. 15318 ; Camousies </. Keith, 
 
 ^ Code Nap. 1738 ; Pothier, Lonage, 1616, M. 15315 ; and as to prescription, 
 
 p. 182 (under the name 'reconduction,' supra, p. 486, and see E. Aboyne v. 
 
 which is the more classic term). Vassals, 1679, M. 15319 (removing of 
 
 * Preuss. Landrecht, i. 21.325. vassals after forfeiture). 
 
 » Balf. 208; Or. 1.11.4, 2.9.10; St. 
 
510 
 
 TACIT RELOCATION. 
 
 Not in judioia 
 
 leases. 
 
 Subjects. 
 
 Parties. 
 
 If these circumstances concur, tacit relocation sets in, what- 
 ever may have been the mode in which the original lease was 
 constituted, by writ or verbally, with or without the help of rei 
 interventus.^ There is one exception : judicial leases granted 
 under the authority of the Court by which an estate has been 
 sequestrated. So that lessees holding over after the lapse of 
 the period for which the Court let the subjects, are accountable 
 for the proceeds, not as tenants, but as factors or stewards. For 
 the Court of Session never warns a .tenant; and the caution, 
 which is essential to a judicial lease, lapses with the expiration 
 of the fixed period.^" 
 
 Whatever may be subject of a lease may fall under tacit 
 relocation. ^^ 
 
 It is no bar to tacit relocation that the party who would have 
 had an interest to arrest it is incapacitated from doing so by 
 insanity,^^ or nonage, or death.^^ On the other hand, the right 
 to found on a plea of tacit relocation is not lost by the death of 
 the person entitled to claim it, since it descends to his heir.^* 
 Where there is subtenancy, it is not enough for the landlord to 
 warn a subtenant alone, if the latter has not been recognised as 
 tenant directly responsible to the landlord, or if the principal 
 tenant is still bound for the rent, though he has given up the 
 natural possession.'^ If so recognised,'^ or if a new title has been 
 acquired,''^ the principal tenant, being thus ignored, need not be 
 warned. There is neither reason nor modem authority for the 
 proposition that 'there can be no tacit relocation where the 
 ' tacksman had, before the contemplated ish, quitted the natural 
 ' possession in favour of a subtacksman.' '^ There seems, on the 
 
 ^ Supra, p. 89 seq. ; St. 2.9.23 ; Bankt. 
 2.9.32; Ersk. 2.6.36; 2 BeU, Leases, 
 133 ; E. Errol v. Ury Parishioners, 1663, 
 M. 15318. 
 
 1" Ersk. 2.6.36. As to leases of grass 
 parks see supra, p. 482 ; M'Harg, 1805, 
 M. Kemoving, Appx. 4. 
 
 '' Eeu-duties, teinds, and the like — 
 Bp. of Argylei). Walker, 1672, M. 15318 ; 
 Dunfermline's Creds. v. GfErs. of State, 
 1806, M. 15320 ; B. Darnley ». Campbell, 
 1741, M. 16322. The case of York Build- 
 ings V. Stewart, 1742, Elch. Tack, No. 7, 
 seems bad law. 
 
 12 Cr. 2.9.11 ; 2 Bell, Leases, 133 ; 
 ct. the distinctions in 14 D. (9.2) ; Voet. 
 apud. 2 D. (9.2) ; Pothier, Louage, 184. 
 
 13 Dirl. 342. Of the cases of L. 
 Bargenie v. Stuart, 1621, M. 15167, and 
 
 Hill V. Wright, 1628, M. 16477, the 
 one turned on a benefit being taken by 
 a curator to himself in a roundabout way, 
 and the other was a question of real or 
 personal right. 
 
 " Hume V. Maoleod's Reps., 1808, 
 Hume 583 (death of tenant unwarned on 
 19th April). 
 
 1^ Thomson v. Harvie, 1823, 2 S. 581 
 (N.E. 498) ; Lockhart v. Ogston, 1745, 
 M. 13814. 
 
 1' Ly. Lauriston o. Tenants, 1632, M. 
 13810 ; D. Queensberry, 7th July 1810, 
 E.C. 743. 
 
 " Richard v. Kirkland, 1663, M. 
 13812. 
 
 " Ersk. 2.6.36. See Balf. 208 ; St. 
 2.9.23; E, Morton v. Scot, 1580, M. 
 15314. 
 
HOW BARRED. 511 
 
 contrary, to be no reason for refusing to the principal tenant, who 
 is in civil possession by levying the subrents, the benefit of the 
 natural possession had by his subtenant with all its advantages. 
 
 Either party is barred from setting up tacit relocation by Barred- 
 entering into a fresh agreement, since that becomes the footing a^e'eTent ; 
 on which possession is continued ; ^^ or by not actually taking or By abandon 
 keeping possession (civil or natural) after the ish. Thus, where 
 a tenant died about twelve months before the ish, and the heir 
 living in London never interfered with the farm, which was 
 managed by his younger brothers, these possessors were held not 
 to be entitled to plead tacit relocation either in their own right 
 (which was naught) or as managers for their brother, who had 
 never taken possession or even been heard of by the landlord.^" 
 And neither party can support a claim to sit on or to prevent 
 removal in a question with the singular successors of the other 
 by founding ou a merely personal obligation, inferring an extra- 
 ordinary privilege in regard to warning. ^^ 
 
 Conversely, singular successors of a tenant — assignees whose objection 
 title has been intimated to the landlord — are not bound by their """^ " 
 cedent's obligation to remove dated subsequently to their title ;^^ 
 and either party is barred from objecting to a plea of tacit 
 relocation by paying or accepting forehand rent applicable to any 
 period subsequent to the date with reference to which removing 
 is sought to be enforced :^^ and in this respect services performed 
 are in the same position as rent paid, provided they have been 
 performed at the order or sight of the landlord or of some one 
 entitled through him to exact them.^* Or, as has been said 
 above, the plea may be taken that by continued possession (had 
 rf)r allowed) or otherwise, the right to quit or to oust has been 
 passed from. A strong instance of this is to be found in a case 
 in which the landlord sequestrated in security grain in the lofts 
 he had let. The sequestration being recalled on condition of 
 caution being found, and no caution having been actually found, 
 the grain remained in the lofts until after the term. The tenant 
 was held liable for the rent of the year following, there having 
 been no compulsion to retain the grain on the premises.^'' 
 
 IS Blain v. Ferguson, 1840, 2 D. 546. St. 2.9.25 ; Bankt. 2.9.35 ; A v. B, 1616, M. 
 
 2» Wilson V. Stewart, 1853, 16 D. 106. 15315 ; Ogiivy v. Maims, 1 618, M. 15315. 
 
 " Trotter <>. Lanceman, 1804, Hume ** Therefore Loohinvar, 1633, M. 
 814. But qy. whether the privilege of 15317, would probably be otherwise 
 six months' warning ought to have been decided now. See Maokintyre x>. Mac- 
 held to run with the lands. nab's Trs., supra, p. 608. 
 
 22 Bett V. Murray, 1845, 7 D. 447. ^ Robertson & Co. v. Drysdale, 1834, 
 
 ^ Or herezeld, Balf. 208 ; Cr. 2.10.11 ; 12 S. 477. 
 
512 
 
 TACIT EELOCATION. 
 
 Nature of the In a recent case relating to partnership/^ the operation of 
 ^^^- tacit relocation is thus succinctly described by Lord Watson : ^ 
 
 ' When the members of a mercantile firm continue to trade as 
 ' partners after the expiry of their original contract without 
 ' making any new agreement, that contract is held in law to be 
 ' prolonged or renewed by tacit consent, or, as it is termed in the 
 ' law of Scotland, by " tacit relocation." The rule obtains in the 
 ' case of many contracts besides that of partnership ; and its 
 ' legal effect is that all the stipulations and conditions of the 
 ' original contract remain in force, in so far as these are not 
 ' inconsistent with any implied term of the renewed contract.' 
 The same remarks apply mutatis mutandis to the contract of 
 lease.^^ 
 Duration. As in partnership law, so in the law of leases, whatever be the 
 
 other implied innovations on the original contract, there must, 
 ex hypothesi, be a change in the duration of the contract as 
 renewed. In partnership, the copartnery becomes determinable 
 at will. In leases, the tenure cannot be left so precarious — in 
 some cases because the course of the seasons, in others because 
 the system of letting at terms, are essential elements in the 
 convenient disposal, acquisition, and holding of the subjects let. 
 Hence has sprung the rule which obtains, irrespective of the 
 nature of the subject let, that a lease for a year or for a longer 
 period is prolonged by tacit relocation for a year, and thereafter 
 from year to year ; and that a lease for a shorter period is 
 prolonged for a like period, and so on from time to time.^^ 
 This prolongation is such an innovation on the contract, as 
 liberates a cautioner for the rent.^° 
 
 ^ Neilsonv. Mossend Iron Co., s«pro,^. 
 
 ^ At 13 Il.(H.L.) 54, 11 App. Cas. 
 308. 
 
 ^ The same rule is put in other words 
 by L. Chan. Cottenham in Wemyss v. 
 Drysdale, 1849, 6 B. App. 455, 461, 
 ' It is gone as to time, but it remains 
 ' obligatory as to the special provision.' 
 
 ^ The first part of this rule is amply 
 vouched— Balf. 208 ; Cr. 1.11.4, 2.9.10 ; 
 St. 2.9.23, 4.26.14 ; Mack. 2.6.7 ; Bankt. 
 2.9.32 ; Ersk. 2.6.35 ; B. Pr. 1265. The 
 latter part is implied therein and in the 
 nature of the right. 
 
 *• -Supra, p. 362; Forbes B.Ly.Saltoun's 
 Exrs., 1735, Elohies, Cautioner, 4. 
 
513 
 
 CHAPTER XXIII. 
 
 THE CEOFTEES HOLDINGS (sCOTLAND) ACT, 1886. 
 
 This Act^ relates to a class of holdings so peculiar, and deals 
 with them in a way so novel, that it has been thought expedient 
 to keep an examination of its provisions separate from the rest 
 of this work, rather than to introduce a notice of the innovations 
 it operates into those pages which deal with the rights of landlord 
 and tenant at common law that are thus affected. The statute 
 followed in time and in spirit the Irish land legislation, of which 
 the principal monuments are the Landlord and Tenant Act of 
 1870 and the Land Act of 1881 ; and it followed, in time at 
 least, a Report of a Royal Commission appointed in 1883 to 
 inquire into the condition of the crofter population in the High- 
 lands and Islands of Scotland. The object of the Act is to create 
 a new tenure, or to give the force of enacted law to an existing 
 custom, whereby certain classes of tenants in certain parts of 
 Scotland are secured against disturbance and enhanced rent, so 
 long as they fulfil certain conditions. And the machinery pro- 
 vided for this limited interference between landlord and tenant 
 is a permanent body called the Crofters Commission. 
 
 The scope of the Act may best be studied in the definitions it Scope— ter- 
 contains or incorporates. A crofter^ is one who at the passing ™"'°°^' 
 of this Act is tenant of a holding from year to year, who resides 
 on his holding, the annual rent of which does not exceed £30 
 in money and which is situated in a crofting parish,* and the 
 
 ^ 49 & 50 Vict. t. 29. It is printed ceived invaluable information from Sheriff 
 
 along with Rules in Appx. No. xii. Soon Brand, but he has no responsibility for its 
 
 after the Act passed it was most ably and contents. 
 
 acutely analysed and annotated by Mr. ^ The question whether an applicant 
 
 C. N. Johnstone, Advocate, who added a holds this character may be determined 
 
 set of suggested forms, many of which summarily by the Commission (sect. 21). 
 
 have not been superseded by the official ' Defined, sect. 34 ; and determined by 
 
 forms issued by the Commission. In the the Commission subject to confirmation 
 
 preparation of this chapter I have re- by the Secretary for Scotland. The coun- 
 
 2 K 
 
514 THE CBOFTEES HOLDINGS (SCOTLAND) ACT, 1886. 
 
 Cottar. 
 
 Holding. 
 
 successors of such person in the holding being his heirs or lega- 
 tees. A cottar is the occupier of a dwelling-house situate in a 
 crofting parish, with or without land, who pays no rent to the 
 landlord; as also the tenant from year to year of a dwelling- 
 house situated in a crofting parish, who resides therein and who 
 pays to the landlord therefor an annual rent not exceeding £6 
 in money, whether with or without garden ground, but without 
 Permanent arable or pasture land (sect. 34). Permanent vmprovements are 
 improvements, dwelling-houses, farm offices, subsoil or other drains, walls and 
 fences, deep trenching, clearing the ground, planting trees, making 
 piers or landing-stages, roads practicable for carriages from the 
 holding or holdings to the public road or the seashore ; and all 
 other improvements, which in the judgment of the Crofters Com- 
 mission shall add to the value of the holding to an incoming tenant 
 (sect. 34 and schedule). A holding is any piece of land held by 
 a crofter consisting of arable or pasture * land or of land partly 
 arable and partly pasture and which has been occupied and used 
 as arable or pasture land (whether such pasture land is held by 
 the crofter alone or in common with others) immediately preced- 
 ing the passing of this Act, including the site of his dwelling- 
 house and any offices or other conveniences connected therewith, 
 but does not include garden ground only, appurtenant to a house 
 (sect. 34). Lease means a letting of or agreement for the letting 
 land for a term of years or for lives, or for lives and years, or 
 from year to year. Landlord, in relation to a holding, means 
 any person for the time being entitled to receive the rents and 
 profits of or to take possession of, any holding.^ Tenant means 
 the holder of land under a lease. Landlord or tenant includes 
 the executors, administrators, assignees, legatee, disponee, or 
 next-of-kin, guardian, curator bonis, or trustees in bankruptcy of 
 a landlord or tenant. Person includes a body of persons and a 
 
 Lease. 
 
 Landlord. 
 
 Tenant. 
 
 Person. 
 
 ties are Argyll, Inverness, Hoss and 
 Cromarty, Sutherland, Caithness, Orkney 
 and Shetland (sect. 19) ; and all the 
 parishes in these counties, with the ex- 
 ception of seventeen, have been deter- 
 mined by the Commissioners to be ' crof- 
 ' ting parishes,' their determination being 
 in every case confirmed by the Secretary. 
 The seventeen parishes in regard to which 
 the information has not enabled the Com- 
 missioners as yet to come to this finding 
 are (in Argyll) Campbelltown, Craignish, 
 Dunoon and Kilmun, Gigha and Cara, 
 Killean and Kilkenzie, Kilmartin, Kil- 
 
 modan, Saddell and Skipness, Southend ; 
 (in Inverness) Cawdor, Grey ; (in Koss 
 and Cromarty) Cromarty, Team, Kose- 
 markie ; (in Orkney) Kirkwall and St. 
 Ole, Stromuess. 
 
 ■* As to pastoral holdings tinder the 
 Irish Acta see Carr v. Nunn, Ir. R. 1 
 Reg. 89; O'Brien v. White, 16 L.B.. (Ir.) 
 15 ; Harper v. Davies, 12 L.K. (Ir.) 23 ; 
 Westropp V. BlUgott, 9 App. Caa. 815. 
 Including servitudes appertaining, — see 
 ex parte Hutchison, 12 L.R. (Ir.) 79. 
 
 ' Including a lessee— Keith (Suther- 
 land) 26th March 1887. 
 
DEFINITIONS AND MACHINERY. 515 
 
 corporation. And sheriff includes sheriff-substitute.^ The scope Sheriff. 
 of the Act is further narrowed by saving from its operation (1) Savings, 
 holdings or buildings (a) let to a person during continuance in 
 any office, appointment, or employment '' of the landlord, (6) let at 
 a nominal rent or without rent as a pension for former service 
 or on account of old age or poverty, (c) let to a person during 
 his tenure of any office such as that of a minister of religion or 
 schoolmaster ; and (2) any innkeeper or tradesman placed in the 
 district by the landlord for the benefit of the neighbourhood 
 (sect. 33). 
 
 The only one of these definitions which has been solemnly Meaning of 
 construed by the Commission is that of ' crofter.' A person who 
 relies on and pleads the terms of a lease in support of his applica- 
 tion places himself beyond the purview of the Act.^ A person 
 who admitted he took possession in terms of written ' conditions 
 ' for a lease ' — which contemplated a tenure for years — and who 
 in consistency with bis expectation to hold under them for years 
 applied lime to the land in large quantity was held to be a lease- 
 holder not a crofter.^ A person who occupied along with his son 
 land feued to the latter was held not to have proved himself to 
 be a tenant of the superiors.^" A tenant from year to year is 
 none the less a crofter because he possesses on tacit relocation 
 after the close of a lease for years, either on account of no pro- 
 ceedings having been taken for then removing him or on account 
 of proceedings not having been effectually carried out ; ^^ nor 
 because bis lease has been reduced to writing.^^ 
 
 The Crofters Commission consists of three Commissioners ^^ — Machinery of 
 one of them a person who can speak Gaelic, and one ,an advocate 
 of ten years' standing — and is empowered to appoint officers, 
 such as valuers, assessors, clerks, &c. (sect. 17). It has to report 
 annually to the Secretary for Scotland (sect. 18), who also pre- 
 scribes the place, order in time, and rules for its sittings (sect. 
 17). No limit is set to the duration of the Commission ; but 
 its powers in one respect (the enlargement of crofts) lapse in five 
 years after 25th June 1886 (sect. 22). It may delegate any 
 of its duties to two of its number, subject to review by all three 
 
 ® The definitions of the Agricultural ^^ Mackenzie, Dornoch, 14th Oct. 1886. 
 
 Holdings Act (46 & 47 Vict. o. 62, sect. ^^ Tulloch, ibid. 
 
 42) so far as here applicable (Crofters ^' The first CommisBion consists of Mr. 
 
 Act, sect. 34). David Brand, Advocate, Sheriff of Ayr- 
 
 ^ Not merely occasional jobs — Keith,'. shire ; Mr. W. Hosack, Oban ; and Mr. 
 
 8 Maoleod, Dornoch, 30th Dec. 1886. P. B. M'Intyre, Mains of Findon, Eoss- 
 
 " Robertson, ibid. shire. 
 
 1" Mackenzie, ibid. 
 
516 THE CEOFTEKS HOLDINGS (SCOTLAND) ACT, 1886. 
 
 Kulcs of the 
 Commission. 
 
 Subject of 
 the Act. 
 
 Statutory 
 conditions. 
 
 (sect. 23). Or it may be ousted by the parties agreeing on a 
 sole arbiter, whose award has the effect of one of its orders (sect. 
 30). Any party may demand and the Commission may order 
 that the evidence be taken on oath (sect. 24). The Commission 
 may, subject to the approval of the Secretary for Scotland, frame 
 and issue forms of application and procedure ; make rules 
 with reference to proceedings; and with the approval of the 
 Treasury fix a scale of costs and fees and provide for taxation 
 thereof (sect. 29). It has full discretion in regard to expenses (sect. 
 24) ; and its decision ' in regard to any of the matters committed 
 •to its determination' is final (sect. 25). The sheriff-clerk 
 keeps the 'Crofters' Holdings Book' for recording every order 
 of the Commission, along with the application and any other 
 proceedings the Commission directs to be entered. Applications 
 are to be addressed to him for transmission to the Commission 
 (sect. 27). The Sheriff-Court houses and the ofScers of the 
 Court are at their disposal when not required by the sheriffs 
 (sect. 28). And decree conform to any order may be pronounced 
 by the sheriff on being satisfied of its conformity with the pro- 
 visions of the Act (sect. 28). Such is the machinery provided 
 by the Act. 
 
 The rules i* issued by the Commission provide for a central 
 office in Edinburgh ; the fixing, variation, and adjournment of 
 sittings ; the forms of application, their authentication, lodging, 
 and amendment ; representation through a law-agent or friend ; 
 intimation ; custody and exhibition of the process ; stamping ; 
 the conjoining of applicants and respondents ; the massing and 
 sisting of processes ; and the rehearing of cases decided by two 
 Commissioners. 
 
 The ' matters committed to the determination ' of the Com- 
 mission are to be found in the first half of the statute. This — ■ 
 the substantive — part of the Act deals with six different matters, 
 viz., security of tenure, rent, renunciation of tenancy, compensa- 
 tion for improvements, enlargement of holdings, and bequest of 
 holdings. 
 
 1. Security of Tenure. 
 
 A crofter although he cannot assign his tenancy, cannot, on the 
 other hand, be removed from his holding except in consequence 
 of the breach of a statutory condition, i.e., by failure to pay rent 
 when payable ; or executing an assignation ; or persistently 
 dilapidating buildings ; or, after specific notice to desist, deterio- 
 
 " The rules, forms, and scale of fees issued by the Commission follow the 
 Act in Appx. No. xii. 
 
STATUTORY CONDITIONS. 517 
 
 rating the soil ; or, without the landlord's consent in writing, 
 subdividing the holding, subletting it or part of it, or erecting 
 or suffering to be erected on it any dwelling-house otherwise 
 than in substitution for those already there on 25th June 1886 ; 
 or violating any condition legally applicable to the holding, and 
 by the Commission found reasonable ; or becoming notour bank- 
 rupt or executing a trust-deed for behoof of creditors ; or obstruct- 
 ing the landlord or persons authorised by him in the exercise of 
 any right reserved or conferred as in the Act ; or, without the 
 landlord's consent, opening a house on the holding for the sale of 
 intoxicating liquors. The right reserved to or conferred on the Rights 
 landlord, subject to compensation for damage, is to enter for any of [^^^j^Jj '" 
 the following purposes : — mining or taking minerals, or digging or 
 searching for miaerals ; quarrying or taking workable mineral ; 
 cutting or taking timber or peats, except timber planted by the 
 crofter or his predecessors, being of the same family, or timber 
 necessary for ornament and shelter, or peat required for the hold- 
 ing ; opening or making roads, fences, drains, and water-courses ; 
 access to and from the shore in exercise of right ; inspection ; 
 and taking game, fish, wild birds, or vermin (sect. 1). The Resumption. 
 Commission may, on the application of the landlord and upon 
 being satisfied that he desires to resume the holding or part 
 thereof for some reasonable purpose having relation to the good 
 of the holding or of the estate — of which some examples are 
 given — authorise resumption upon such conditions as it thinks 
 fit, and upon adequate compensation being made, in land, reduc- 
 tion of rent, money down or otherwise (sect. 2). A year's arrear 
 of rent lets in the procedure for removing contained in the 
 27th section of the Agricultural Holdings Act ; ^^ arrear of two 
 years' rent lets in the procedure of the 4th section of the A.S. 
 of 1756.16 
 
 2. Rent. 
 
 This boon of fixity of tenure would have been purely delusive 
 if a landlord had still been entitled, as at common law, to raise 
 the rent whenever and to whatever height he chose on the lapse 
 of a current bargain. It has been seen that the payment of rent 
 is one of the statutory conditions. The amount is fixed as 
 follows. It is the rent (including money and prestations other Rent, agreed 
 than money) payable for the year current on 25th June 1886,°"" 
 unless altered in one of two ways (sect. 4); either (1) by agree- 
 ment, to last for the period stated therein and thereafter until a 
 new agreement is made or the second mode is adopted (sect. 5) ; 
 
 15 Supra, p. 461. " Supra, p. 460. 
 
518 THE CEOFTERS HOLDINGS (SCOTLAND) ACT, 1886. 
 
 Fixed (fair) 
 rent. 
 
 Arrears. 
 
 Criteria of fair 
 rent. 
 
 or (2) by the fixing of a fair rent — known as the fixed rent — by 
 the Commissiou on the application of either party after he has 
 given intimation to the other party, and after the Commission has 
 appointed a time and place for hearing and has heard the parties 
 with or without assessors, and, if it thinks fit, after a visitation of 
 the holding or after consideration of a report from a valuer or 
 valuers (sects. 6, 20). The rent thus 'fixed' is payable as from 
 the first term of Whitsunday or Martinmas next succeeding the 
 decision, and cannot be altered, except through agreement, for 
 seven years after such term [sect. 6 (2)]. If the fixed is less 
 than the old rent, over-payments may be deducted in respect of 
 the period between the date of the application and the date when 
 the rent was fixed i'' [sect. 6 (3)]. 
 
 Under an application for a fixed rent, arrears of rent may be 
 dealt with in either of two ways : (1) They may be let alone ; or 
 (2) the Commission may take evidence of all the circumstances 
 which have led to such arrears, and decide whether the whole or 
 what part of them should be paid, and whether in lump or by 
 instalments fixed in amount and date [sect. 6 (5)]. But in each 
 case there is the proviso that the Commission may sist all 
 proceedings for the removal of a crofter in respect of non-payment 
 of rent till the application is finally determined [sect. 6 (4)]. 
 
 This determination of a fixed rent payable for seven years, and 
 this interference with arrears in the discretion of the Commission 
 make up the principal part of the ordinary work of the Commis- 
 sion. The mode in which arrears are dealt with will principally 
 depend on the fairness of the rent of which they are an accumula- 
 tion. So that it is important to observe what light is thrown on 
 the cardinal question — how a fair rent should be fixed — by the 
 Act itself. The sole hints are contained in the definition of 
 what are reasonable terms of letting lands available for enlarge- 
 ment of holdings, viz., terms such 'as are usually obtained in the 
 ' letting of land of the like quality, and similarly situated in the 
 ' same district for other purposes than that of a deer-forest, or of 
 ' a grouse-moor, or other sporting purpose' (sect. 11), and in the 
 more direct injunction that the determination is to be made by 
 ' the Commission after considering all the circumstances of the 
 ' case, holding, and district, and particularly after taking into 
 ' consideration any permanent or unexhausted improvements on 
 ' the holding and suitable thereto, which have been executed or 
 ' paid for by the crofter, or his predecessors, in the same family ' 
 
 " This probably means the date when this rent became ■ current. See last sub- 
 sect, and Johnstone, Crofters, 25 n. 
 
FIXED BENT. 519 
 
 [sect. 6 (1)]. These improvements are, of course, ' taken into 
 ' consideration ' for the purpose of securing that the crofter shall 
 not pay twice for them, — once when they were executed and 
 again in the form of enhanced rent.^^ 
 
 The only indication of the view which the Commissioners take ZHcta of Com- 
 of this section, read in connection with the ordinary meaning ™'^^'°°- 
 of a fair rent, is given in a judgment which raised the further 
 question whether improvements made by an applicant or his 
 predecessors in pursuance of a written agreement, — contained for 
 example in a lease which has lapsed — could be taken into con- 
 sideration. ' The answer is that they (the Commissioners) are 
 ' to consider all the facts as between man and man. Their 
 ' object is to get at a rent which in point of fact is fair, and in 
 ' attaining that object to have in view everything which affects 
 ' its fairness as between the parties. Such matters as the wealth 
 ' of the landlord and the poverty of the tenant do not touch the 
 ' fairness of the rent.' '^ As to the question of improvements 
 made under written agreement, ' there is no exception made of 
 ' such improvements,' as there is in the 8th and 9th sections of 
 the Act. ' A clear distinction is drawn between the provision in 
 ' sect. 6 and the provisions in sects. 8 and 9, but no injustice is 
 ' done by this, because the Commissioners are allowed to take into 
 ' consideration how far the tenant has already in substance been 
 ' paid for what he did, . . . and the agreement forms one of the 
 ' circumstances to be kept in view.' ^^ 
 
 In regard to arrears, it has been strenuously argued that an Action for 
 application to the Commission to fix a fair rent and deal with the arrears not 
 matter of arrears, made incompetent an action for the recovery of^*"^?^^? , 
 
 1 ■ • o T i~t • • -I application to 
 
 arrears raised before the determmation of the Commission and Commission, 
 after the passing of the Act, since non constitit what amount 
 would turn out to be payable. But the argument was repelled 
 on the ground that the Act did not either expressly or by plain 
 implication deprive the landlord of his common law right to sue 
 for recovery of debt.^^ The arrears contemplated in the 5th 
 subsection as due, are those which are due at the time when 
 
 ^ As to valuation of improvements, and see Holt v. Harberton, Ir.R. 1 Reg. 
 
 see next page. 82, there criticised. 
 
 '' Opinion delivered at Dornoch, 20th ^' Fraser v. Macdonald, 1886, 14 R. 
 
 Dec. 1886. 181. L. Rutherfurd Clark agreed that 
 
 ^ The Irish Judges in full Court decree should go out, but was not clear 
 
 arrived at the same result in regard to how far it could be enforced. The other 
 
 the somewhat different words of the Judges seem to have thought removing 
 
 Irish Land Act, 1881, sect. 8 (9), in the only ordinary remedy that was incom- 
 
 Adams v. Dunseath, 10 L.E. (Ir.) 109 ; petent. 
 
520 THE CROFTERS HOLDINGS (SCOTLAND) ACT, 1886. 
 
 Common 
 privileges. 
 
 To,crofters 
 and cottars. 
 
 the Commission proceeds to consider the application and are such 
 as ' the tenant's circumstances do not enable him to pay volun- 
 ' tarily or the landlord to recover although all his remedies were 
 ' to be in force.' Otherwise the tenant would delay applying to 
 the Commission as long as possible. ^^ 
 
 Lastly, the Commission may draw up a scheme regulating the 
 use by crofters on the same estate, of sea-weed, peat bogs, heather, 
 or grass for thatching, and include the charge for these in the 
 fixed rent (sect. 12 ad fin.). 
 
 3. Renunciation of Tenancy. 
 
 A crofter shall be entitled upon one year's notice in writing to 
 the landlord to renounce his tenancy as at any term of Whitsun- 
 day or Martinmas (sect. 7).^^ 
 
 4. Gompensation for Improvements. 
 
 It has been shown that improvements made by crofters are to 
 be taken into consideration in fixing the fair rent, where the 
 crofters intend to remain on the land. They and cottars are 
 entitled also to compensation for such improvements on quitting. 
 This termination of the relation between the parties may be the 
 result, in the case of a crofter, of a renunciation by him or of a 
 removing ; and, in the case of a cottar, of a removing if he 
 pays no rent, or of a renunciation or removing if he pays rent. 
 The improvements must be permanent ;^'' suitable to the holding ; 
 executed or paid for by the crofter (cottar) or his predecessors 
 in the same family ;^^ not executed in virtue of any specific 
 agreement ^^ in writing under which the crofter (cottar) was 
 bound to execute such improvements ; and not buildings erected 
 in violation of an interdict or other judicial order (sects. 8, 9). 
 The value of an improvement is its value to an incoming tenant, 
 under deduction of the value ' of any assistance or consideration 
 ' which may be proved to have been given by the landlord or his 
 ' predecessors in title,' and ' of any deterioration committed or 
 ' permitted by the tenant within the four years preceding ' (sect. 
 10). The Agricultural Holdings Act, 1883, is saved, ' provided 
 ' that, where any improvements are valued under the said Act 
 ' with a view to compensation to be paid to a crofter, such valua- 
 ' tion shall be made, unless the landlord and crofter otherwise 
 'agree, by the Crofters Commission' (sect. 31). It has been 
 
 ^ Per L. Young, ibid. 25 See infra, p. 523. 
 
 23 See next paragraph. 2« See sect. 5 of the Agricultural 
 
 ^ See supra, p. 614, the definition Holdings Act, supra, p. 245, and infra, 
 
 thereof, and contrast the 'permanent or Appx. No. ii. 
 
 ' unexhausted ' improvements in sect. 6 (1). 
 
ENLARGEMENT OF HOLDINGS. 521 
 
 pointed out^^ that this limited direction and the fact that among 
 permanent improvements are by the schedule ^^ included such as, 
 in the judgment of the Commission, add to the value of the 
 holding to an incoming tenant, are the only indications in the 
 statute that the Commission has any powers or functions in 
 regard to the fixing of compensation for improvements ; and it 
 has been forcibly suggested that they are insufficient to oust the 
 ordinary tribunal, the Sheriff Court. 
 
 5. Enlargement of Holdings. 
 
 Five or more crofters resident on neighbouring holdings,^' if any On appiioation 
 landlord refuses to let them available land on reasonable terms crofters™ """"^"^ 
 for enlarging their holdings, may apply to the Commission, setting 
 forth that in their parish or an adjacent one there is available 
 land, that they are willing to take it on lease, and that the land- 
 lord or landlords refuse to let (sect. 11). After intimating the 
 application to the landlord or landlords, giving the parties an 
 opportunity of being heard, ascertaining how far the small size of 
 the holdings is due to either party, and making other inquiry, the 
 Commission, on being satisfied of the availability of land, the 
 refusal to let it, the will and ability of the applicants to pay a 
 fair rent for it and to cultivate and stock it, may make an order 
 for a lease of the said land or part of it to the applicants or one 
 or more of them at a fair rent and on just conditions. Or it 
 may admit the applicants to participate with other crofters in 
 common pasture, or confer on them inter se rights of common 
 pasturage over available land. 
 
 Land is not 'available' (1) unless it lies contiguous or near to Land not 
 land already occupied by the applicants and belongs to their 
 landlord or landlords'" [sect. 13 (1)]; (2) if subject to a lease 
 for years entered into before 25th June 1886 for other than 
 sporting purposes, unless consent is obtained [13 (2)]; (3) if it 
 be part of a garden, policy, park, plantation, or wood ; of a farm 
 the letting value of which would be materially damaged by the 
 severance, or the rent or value of which does not exceed £100 ; 
 or of a deer forest, the use of which would be seriously impaired, 
 to the loss of the inhabitants of the district; or (4) if it be 
 arable land or improved pasture in the immediate vicinity of a 
 residence or farm steading, or its assignment would substantially 
 impair the amenity thereof. The value of the land assigned 
 shall not exceed one-third of the value of the farm or other 
 holding from which it is taken if between £100 and £150 ; 
 
 "' Johnstone, Crofters Act, p. 10. ^ Defined supra, p. 514. 
 
 ^ Supra, p. 514. ^'' FrohaMj applicando singulos singulis. 
 
522 THE CROFTERS HOLDINGS (SCOTLAND) ACT, 1886. 
 
 one-half if above £150 and below £300; two-thirds if above 
 £300.^1 And the enlargement is not to raise the value of the 
 holdings to more than £15 each (sect. 13). If land be so 
 assigned out of land let for sporting purposes, the Commission 
 fixes the deduction to be allowed from the rent (sect. 14). The 
 land assigned becomes part of the holdings for all purposes (sect. 
 
 Procedure. In regard to procedure for enlargement, intimation is made to 
 
 landlords, tenants, persons in occupation of or otherwise interested 
 in the land applied for, including heritable creditors, with notice 
 of the times and places at which parties will be heard. The 
 Commission may visit the locality and get the assistance of 
 assessors or valuers. They may make orders regarding the 
 erection and maintenance of fencing and the expense thereof. 
 They are empowered to decide summarily questions relating to 
 boundaries between holdings and between these and adjoining 
 lands. ^^ 
 
 6. Succession and Bequest. 
 
 It has been seen^' that the term 'crofter' includes the 
 successors of a person to whom the definition applies, being his 
 heirs or legatees. The heir here referred to is the heir-at-law, 
 subject only to the exceptions that, in the event of the heirs-at- 
 law being heirs-portioners, the eldest succeeds without division 
 (sect. 19), and that certain distant heirs may be displaced, as 
 
 Bequest. will be presently shown. The succession of a legatee is elabor- 
 
 ately provided for in the 16th section of the statute.'* It 
 permits a crofter to bequeath his right to one person being a 
 member of the same family (i.e., his wife or any person who, 
 failing nearer heirs, would succeed to him in case of intestacy), 
 provided always, that, in the case of any legatee or heir-at-law 
 more distant than wife, son, grandson, brother, or son-in-law, the 
 landlord may, on his own part or on the part of neighbouring 
 crofters, represent that, for the purpose of enlarging their hold- 
 ings, the holding in question should be added to them, and the 
 sheriff may so determine, subject to compensating the heir or 
 legatee for improvements ; and, if the landlord fails to make the 
 addition within six months after that determination, the neigh- 
 bouring crofters may apply for an order assigning the holding 
 to one or more of them. Intimation to the landlord or his 
 
 Intestate 
 succession. 
 
 ^' The section ia here hastily drawn. 
 
 What if the rent were exactly £300 ? 
 
 3„ •; s — "'""'aiJJ-uiuings Act, 1883, 
 
 But this power does not seem to be sect. 29 {sup,-a, p. 150, and infra Addx 
 
 incidental to enlargements only. No. ii.). 
 
 '= Supra, p. 514 (sect. 34). 
 
 '^ Cf. Agricultural Holdings Act, 1883, 
 
SUCCESSION AND BEQUEST. 523 
 
 known agent must be made within twenty-one days after the 
 death of the crofter, unless prevented by some unavoidable cause. 
 It imports acceptance by the legatee. Within a month the 
 landlord or his agent may intimate objection to receive the 
 legatee ; if he does not, the transfer takes place as at the date 
 of the crofter's death. If objection is taken, the legatee may 
 petition the sheriff for decree declaring him the crofter as from 
 that date, and give the landlord due notice thereof. If the 
 objection is established, the sheriff declares the bequest null 
 and void ; if not, he declares in terms of the prayer of the 
 petition ; and his decision is final. Pending the proceedings, the 
 legatee is to be in possession unless the sheriff otherwise directs 
 on cause shown. A legatee accepting and not effectually objected 
 to possesses on the same terms and conditions as if he had been 
 heir. If a legatee does not accept or is effectually objected to, 
 the holding descends to the heir in the same manner as if the 
 bequest had not been made. 
 
 The mention of 'son-in-law' in the above proviso throws some 'Same family.' 
 doubt on the meaning of the expression ' same family ' in the 
 present section and in sections 6 (1), 8, and 9, and suggests a 
 looser construction of the term with regard both to predecessors 
 and to successors than one which would confine it to persons from 
 or to whom intestate succession might operate. It may be 
 argued that the benevolent intention of the statute is to favour 
 persons who in their occupancy have maintained an unbroken 
 household of near kin, or desire still to maintain it. There is 
 nothing in the earlier sections inconsistent with right to com- 
 pensation for improvements executed by a father-in-law or step- 
 father. It is, however, hard to read the definition in the outset 
 of the present section as inclusive of succession in right of the 
 claimant's wife. Yet that seems to be the only way to make 
 the section consistent with itself, and, if so, other cases of relation- 
 ship by affinity, to which the same reasoning would apply, may 
 easily be figured. 
 
PART IV 
 
 QUESTIONS WITH THIRD PARTIES. 
 
 1. Questions with Creditoks of Tenant (Chap. XXIV.). 
 
 2. Questions arising out of Neighbourhood and Public 
 
 Right (Chap. XXV.). 
 
 3. Public Privileges and Public Burdens (Chap. XXVI.). 
 
527 
 
 CHAPTER XXIV. 
 
 QUESTIONS WITH CREDITORS OF A TENANT. 
 
 It seldom happens that creditors of a landlord require to inter- Topic defined, 
 vene either singly or through a trustee in bankruptcy between 
 their debtor and his tenant ; and, if such intervention take place, 
 the rules set forth passim in the foregoing pages may be found 
 a sufficient guide to a determination of any questions that may 
 arise.^ It will suffice, therefore, to confine attention here to 
 questions arising between the other creditors of a tenant — inter se 
 or with his landlord. Most of these questions have come up in 
 connection with the bankruptcy of the tenant ; so that they are 
 on one side complicated, on another side simplified, by the subsist- 
 ence of a trust created either by a private trust-disposition for 
 behoof of creditors, or by proceedings in bankruptcy sequestration, 
 or in cessio honorura. 
 
 I. Effect of Tenant's Bankruptcy on the Lease. 
 
 On earlier pages of this treatise the effect of conveyances to 
 creditors, diligence, and bankruptcy on the power of a proprietor 
 to grant leases,^ and the operation of a clause of irritancy in the 
 event of a tenant's bankruptcy or insolvency,^ have been fully 
 explained. The effect of diligence against a tenant and of his 
 bankruptcy — where no such clause exists — is the subject of the 
 present chapter. The existence of well-established recent treatises 
 on the subject of bankruptcy makes it superfluous to enter into 
 much detail.* 
 
 1 E.g., Davidson v. Boyd, 1867, 7 M. for the balance — Bertram v. Guild, 1880, 
 
 77 ; Harvie v. Haldane, 1833, 11 S. 7 K. 1122. 
 
 872 ; Harkness v. Rattray, 1878, 16 = Swpra, p. 44. 
 
 Se.L.R. 117 ; and see a curious case, ^ Supra, p. 467. 
 
 •where compensation money annually * Goudy on Bankruptcy, esp. pp. 256, 
 
 due by the landlord for land taken 280, 356, 450 ; Murdoch, esp. pp. 41, 67, 
 
 greatly exceeded the rent, and the 77, 276, 282. 
 tenant was held to have no preference 
 
528 
 
 QUESTIONS WITH CREDITORS OF A TENANT. 
 
 Bankrui^toy 
 not termina- 
 tion of a lease. 
 
 Assignation 
 of lease in 
 bankruptcy. 
 
 Voluntary 
 trust-deed. 
 
 Disposition 
 omnium bon- 
 
 Vesting in 
 sequestration. 
 
 It has been already remarked ^ that the bankruptcy of a lessee 
 does not ipso facto and without stipulation to that effect, put an 
 end to a lease. The bankrupt may continue in possession if he 
 pay the rent and perform the other prestations ; " and the land- 
 lord can only resort to the ordinary means of bringing the lease 
 to a premature conclusion,'' which were described in a former 
 chapter. The only exception at common law arises where the 
 sole lessee is a company, for by becoming bankrupt it is dissolved, 
 and the lessee no longer exists.^ But there is a strong distinction 
 between the liability for arrears and for rents current at the date 
 of the bankruptcy on the one hand, and the liability for rents 
 which begin to be current thereafter. For the former the bank- 
 rupt cannot be sued, since the only remedy is by claiming in his 
 sequestration ; for the latter he may.* 
 
 As has been already seeUj^" the tenant's part of a lease may be 
 either transmissible by way of assignation or of sublease, or both, 
 or intransmissible in either or both of these ways ; and the bar 
 to free disposal, if it exists, may be set up by force either of the 
 common law or of agreement. Whatever be the mode in which 
 a bankrupt tenant dispossesses himself of his estate, an assigna- 
 tion of his leasehold rights, effectual or ineffectual, is involved in 
 the transfer. And the principal question is whether, and if so 
 to what effect, such an assignation actually results. 
 
 Prior to the Bankruptcy Act of 1856,^^ a voluntary trust-deed 
 for creditors was the only mode of making a lease available to the 
 general body of creditors of a farming tenant who was not also 
 a trader,^^ and it is still a competent mode in all cases. Similar 
 in effect (though couched in a short prescribed form ^^) is the 
 disposition omnium bonorum, in favour of the trustee in a cessio, 
 which is necessary to vest in him the heritable property of the 
 bankrupt. In both cases, there being no statutory force ascribed 
 to the words of conveyance, an ordinary assignation only is in- 
 ferred, valeat quantum, of any leases which the debtor may 
 happen to hold. The vesting clause in the Bankruptcy statute, 
 where the estates have been sequestrated, is in strong contrast. 
 
 ^ Supra, p. 468. 
 
 « 1 B.C. 80 ; Crawford v. Maxwell, 
 1758, M. 15807, infra, p. 530 ; and see 
 Dobie V. M. of Lothian, 1864, 2 M. 788, 
 800 ; Burns v. Martin, 1885, 12 R. 1343, 
 rev. 14tb Peb. 1887. 
 
 ' And the bankrupt is not required to 
 find caution in order to defend — Taylor 
 V. Fairlie's Trs., 1830, 8 S. 666, rev. 6 W. 
 and S. 301. 
 
 ' 1 B.C. 82, and case of Campbell v. 
 Calder Iron Co., 1806, there ; Walker i: 
 M'Knight, 1886, 13 R. 599. 
 
 ^ Fraser v. Robertson, 1881, 8 R. 347. 
 
 10 Supra, p. 167. 
 
 " 19 & 20 Vict. c. 79, sect. 2. 
 
 1= See 54 Geo. III. o. 137, sect. 15 ; 
 2 & 3 Vict. 0. 41, sect. 5. 
 
 ^= A.S., 22nd Dec. 1882, Sohed. A; 
 Adam's A.SS. p. 136. 
 
EFFECT OF TENANT'S BANKRUPTCY. 529 
 
 It enacts ^* that — 
 
 the act and warrant of confirmation in favour of the trustee shall ipso 
 jure transfer to and vest in him or any succeeding trustee for hehoof 
 of the creditors ahsolutely and irredeemahly as at the date of the seques- 
 tration, with all right, title, and interest, the whole property of the 
 debtor to the eifect following. . . . The whole heritable estate belong- 
 ing to the bankrupt in Scotland to the same effect as if a decree of 
 adjudication in implement of sale, as well as a decree of adjudication 
 for payment and in security of debt, subject to no legal reversion, had 
 been pronounced in favour of the trustee, and recorded at the date of 
 the sequestration, and as if a poinding of the ground had then been 
 executed, subject always to such preferable securities as existed at the 
 date of the sequestration, and are not nidi and reducible, and the 
 creditor's right to poind the ground as hereinafter provided. 
 
 The tenant's part of a lease is ' heritable estate belonging to ' 
 him ; and the vesting is here inter alia declared to be equivalent 
 to a decree of adjudication for debt. 
 
 The only practical distinction, however, between the vesting carries ad- 
 in a private trustee for creditors or a trustee in a cessio on the jidgeabie 
 one hand, and this vesting under the sequestration statute on the 
 other, seems to be, that the former does not, while the latter 
 does, carry to the trustee right to such leases (e.g., agricultural 
 tacks) as are unassignable only presumptione juris and not by 
 express agreement, and accordingly are adjudgeable.^^ What 
 immediately follows may, therefore, be taken as applicable to all 
 cases of divestiture for behoof of creditors. 
 
 1. Leases excluding Assignees and Subtenants. 
 
 It has been already shown that an exclusion of assignees and Landlord's 
 subtenants imports nothing more than a veto on the part of the 
 landlord against assigning and subletting — a veto which he is 
 entitled to forego if he chooses. 
 
 (a) Where the Landlord enforces the Clause. 
 
 Where the landlord insists on enforcing the exclusion, and Tenant to 
 declines to receive the trustee^* as tenant, the only mode ofb^ofof 
 making the lease available for the payment of debt is for the cre<iitorS' 
 trustee to arrange with the bankrupt to carry on for behoof of 
 his creditors. The tenant's consent must be obtained. Thus 
 an agreement may be made with him to supersede diligence, give 
 him the use of his stocking, and make him an allowance for his 
 
 ^^ 19 & 20 Vict. c. 79, sect. 102. spoken of in the sequel as ' trustee,' what- 
 
 " Sv/pra, pp. 48, 162. ever be the origin of the trust or the 
 
 18 For the sake of convenience the number of the trustees. 
 assignee or assignees for creditors are 
 
 3 L 
 
530 
 
 QUESTIONS WITH CREDITORS OF A TENANT. 
 
 Subletting 
 open. 
 
 Irritancy. 
 
 Transmission 
 on terms. 
 
 maintenance and services, the profits going to the liquidation of 
 his debt ; and such an arrangement will be supported on the 
 ground that it is ' material justice ' to allow a tenant to possess 
 when assisted by his creditors.^'' Moreover, on the tenant's death 
 his heir may enter into a similar arrangement.^^ Actual posses- 
 sion by the tenant himself is indispensable towards this mode of 
 dealing. Transactions involving surrender of possession by him 
 and devolution of the management on another person are invalid, 
 as being nothing better than covert assignations.^^ But mere 
 non-residence is not enough to infer his renunciation of possession. 
 To have that effect, it must be combined with some more decisive 
 circumstance, such as his departure beyond the realm, or taking 
 up another business, or abandonment of all concern in the matter.^" 
 If, on the other hand, the tenant deserts the subjects, and third 
 parties enter, they are not liable to account to the trustee for 
 their intromissions.^^ 
 
 If under a lease subletting is admissible and assignation is not, 
 the purpose of the partial veto is easily defeated by a sublease 
 (to the trustee or any other person) of the whole subjects let — 
 a transfer which is in effect equivalent to an assignation, and may 
 be demanded from the bankrupt tenant by his trustee.^^ Creditors 
 can, on the chance of no objection being taken by the landlord, 
 demand an assignation or sublease in their favour, though there 
 be a clause excluding both, provided only that the clause is not 
 fenced with an irritancy.^^ 
 
 (6) Where the Landlord waives Objection. 
 
 If in the exercise of his discretion in the management of his 
 property the landlord does not object to the trustee entering into 
 possession as tenant, the result is the same as if there had been 
 no exclusion, with this exception, that the landlord is in a position 
 to make terms with the trustee. It is true that in a case where 
 
 '' Durham c. Livingston, 1774, in 
 1 B.C. 80, note ; Dobie v. M. of Lothian, 
 1864, 2 M. 788. See per L. Deas at p. 
 800 ; Lyon v. Irvine, 1874, 1 E. 512. 
 
 ^8 Laird 'v. Grindlay, 1791, M. 1529, 
 Bell, Pol. Ca. 296, 1 B.C. 80 ; E. Gallo- 
 way V. M'Hutcheon, 1807, S Pat. 169, 
 1 B.C. 80. 
 
 " Durham v Henderson, 1773, M. 
 15283, 1 B.C. 80, and note at 5 Pat. 175 ; 
 Monro v. Miller, 11th Dec. 1811, E.G. 
 384 ; Watson u Douglas, 13th Deo. 1811, 
 E.G. 412 ; Lyon v. Irvine, supra, ''. 
 
 *» Gf, with cases in last note E. Dal- 
 
 housie V. Wilson, 1802, M. 15311; 
 Sydserf v. Todd, 8th March 1814, E.G. 
 583 ; and see clause enforcing residence in 
 Young's Trs. v. Anderson, 1809, Hume 
 843. 
 
 ^ Roberts v. Wallace, 1843, 5 D. 760. 
 
 ^ Crawford v. MaxweU, 1758, M. 
 15307 (to trustee), and case of Ogilvie 
 V. Eullarton's Trs. there ; 1 B.C. 77 79 
 and case of Niven v. Macfarlane there. 
 But if the tenant is under a removing, 
 there is nothing, to sublet. E. Aboyne 
 ■V. Grant, 1794, BeU, FoL Ca. 43. 
 
 ^ I B.C. 79, and Niven, supra, --, 
 
EFFECT OF TENANT'S BANKRUPTCY. 531 
 
 the lease excluded assignees, whether legal or voluntary, and all 
 subtenants without the special consent and approbation of the 
 proprietor, and the tenant's trustee entered into a transaction 
 with a third party granting him the right to crop the farm for 
 the year current at the date of the bankruptcy, a very high 
 authority was of opinion that the lease did not pass by the 
 confirmation of the trustee subject to the landlord's right and 
 objection, but that on the contrary a lease which expressly 
 excludes assignees cannot pass by legal assignation any more 
 than by voluntary assignation without the landlord's consent.^* 
 But this view was negatived in a later case, in which the whole 
 Court was consulted. A tenant, under a lease excluding assignees 
 and subtenants without the consent of the proprietor, was seques- 
 trated. The landlord gave his consent to the judicial assignation 
 in favour of the trustee on condition of his renouncing the lease 
 in terms of an arrangement by which the landlord was to pay a 
 certain sum for the stock and lease. The transaction was 
 approved by the Accountant in Bankruptcy and by the creditors, 
 but was challenged by the tenant on the grounds that the lease 
 was not carried by the sequestration ; that a conditional consent 
 to the assignation to the trustee was ineffectual; and that a 
 private sale of the estate under circumstances which implied 
 that there could be but a single offer, was not a compliance with 
 the provisions of the Bankrupt Act. The decision was that the 
 exclusion of assignees only operated in favour of the landlord ; 
 that it did not prevent the lease from vesting in the trustee, 
 provided the landlord did not object ; that the conditional assent 
 was effectual; and that there was no infringement of the Act.^^ 
 The distinction between the two views is perhaps little more 
 than verbal; it is the distinction between a suspensive and a 
 resolutive condition — the latter being preferred. 
 2. Where there is no Operative Eaxlusion. 
 
 Where a lease vests in a trustee in bankruptcy either on Election to 
 account of there being nothing to exclude him at law or by^^^^^Pj*"^ 
 compact, or because a power of exclusion has been waived by 
 the landlord, he has in the first place to consider (provided there 
 be no condition, as in the foregoing case, binding him to 
 
 ^ Fleming v. Macdonald, 1860, 22 D. =5 Dobie v. Ma. Lothian, 1864, 2 M. 
 
 1025, per L.J.-C. (now L.P.) Inglia at p. 788. See case where allegations of 
 
 1030. The decision of the case was the collusion between the trustee and the 
 
 perfectly sound one — that the trustee landlord came too late fourteen years 
 
 could not convey a higher right than had after the trustee's discharge — Eobertson 
 
 been in the bankrupt, who was bound by v, Scott, 1834, 12 S. 875, 
 estate regulations, 
 
532 QUESTIONS WITH CREDITOKS OP A TENANT. 
 
 Persona] surrender the lease) whether he should take it up or not. If he 
 truS°^ does he makes himself personally liable (like other adjudgers^^ 
 and intrpmitters without benefit of inventory) to pay the rent 
 due, whether in arrear^'' or for the future,^^ and to fulfil all the 
 prestations of the lease, past, present, or to come.^' The liability 
 is not confined to the extent of the bankrupt's funds in his 
 hands.^" The ratio is that if a trustee remains in possession 
 longer than is necessary to ascertain what is the value of the 
 asset, he renders himself liable in aU the covenants of the lease.^^ 
 It is no answer that he adopted the lease in excusable ignorance 
 of the existence of arrears, provided nothing has been done by 
 or on behalf of the landlord to stifle inquiry or induce a belief of 
 immunity. Nor is it enough for him to prove that bills had 
 been granted for the arrears, if these bills have not been paid.^^ 
 And the landlord's claim is not merely to be ranked preferably 
 on the bankrupt estate ; it is a personal claim against the trustee 
 and the creditors on whose instruction, express or implied, he 
 acted, of the same sort as is created by an ordinary assignation.^^ 
 But the adoption need not be absolute. A case of conditional 
 adoption has been already mentioned.^* A condition that there 
 shall be no personal liability for arrears of rent has also been 
 spelt out of the actings of the landlord.^' It is also competent 
 to limit the adoption in time — as, for example, to the current 
 year and crop and subject to the landlord's preferential right to 
 the rent for the same.^" 
 Fact of adop- It is always a question of circumstances whether a trustee has 
 adopted a lease — that being an act of extraordinary administra- 
 tion — or, in dealing with it, has only proceeded in the ordinary 
 course ' to manage, realise, and recover ' this part of the estate of 
 the bankrupt and to ' convert the same into money,' ^' and to do 
 so in the mode which is best for all concerned, as, for example, 
 by tilling the land, sowing or reaping a crop, keeping mining or 
 manufacturing machinery going, making trial of the concern or 
 working out short contracts ; and thereby throwing liability 
 
 25 Lamington v. Oswald, 1688, M. 1831, 9 S. 596, aff. 6 W. and S. 340. 
 
 15277, makes an untenable distinction. 32 Dun^as o. Morrison 1857 20 D 
 
 ^ Ross V. Monteith, 1786, M. 15290. 225. 
 
 28 Nisbet's Tr., 1802, M. 15268 ; Laing 33 ibi<j. ; Kirkland v. Cadell. 1838 ^6 
 V. Duff, 1845, 7 D. 656, 17 So. Jur. 272. S. 860. 
 
 29 cuthiii ^_ Jeffrey, 21st Nov. 1818, 34 Do^ie v. Ms. Lothian, supra, "K 
 
 ^f; ^^^- '' M'Gregor v. Hunter, 1850, 13 D. 90. 
 
 Fairlie v. Nelson, 1821, 1 S. 222 36 ^^^^^ ^_ ^^ ^ 21 j) 103 
 
 <Y;.^V|- ^^ 19 & 20 Viot. .. 79, sect 82.' ' 
 
 «' Kirkland v. Wijson ^ Son's Tr., 
 
EFFECT OF TENANT'S BANKRUPTCY. 533 
 
 nowhere except on the sequestrated estate.^^ If the subjects be 
 retained for a considerable length of time and under circum- 
 stances which are incapable of any other construction than adop- 
 tion, the lease will be held to have been taken up.^' On the 
 other hand, a trustee may (it is true) render himself liable 
 in damages, but he will not be held to have adopted a lease and 
 made himself responsible for the rent, by retaining possession 
 pending the determination (adversely to him, as it turns out) of a 
 question of property in important fixtures, and by refusing to 
 concur with the landlord in arranging for letting the subjects to 
 some third party; for so long as he made no use of the subjects 
 himself there was no possession in the proper sense of the term.*" 
 And, where trustees for creditors, with the acquiescence of the 
 landlord, entered into the management of a farm prior to seques- 
 tration, their intromissions, being merely tentative and liable to 
 interruption at any moment, were held not to be such as to 
 render them personally liable. *i 
 
 If instead of adopting, the trustee abandons, the lease,*^ and Damages for 
 the tenant himself refuses to remain, and loss accrues thereby to '' ^" onment. 
 the landlord, the latter is entitled to claim and rank for damages, 
 the measure of damage being, as a rule, the difference between 
 the old rent and the new rent or annual value for the number of 
 years the lease has still to run, subject to discount for immediate 
 payment of the whole. *^ If there be an irritancy in the event of 
 bankruptcy, it would probably be held that the landlord would 
 only be entitled to damages if he were willing, in spite of the 
 irritancy, to let the tenant or his trustee continue possession, and 
 not if he took advantage of the irritancy without giving them 
 the alternative.** 
 
 II. Competition among Tenant's Ceeditoes. 
 
 1. Landlord's Hypothec. 
 
 Except in so far as a landlord has a preference in virtue of his Hypothec, 
 hypothec,*^ or may have a right to carry off steelbow goods *^ as 
 his property and not the tenant's, his position in a competition is 
 
 ^ See Kirkland v. Cadell, 1838, 16 S. Goudy, p. 279. See the converse case— 
 
 860, esp. 881. non-adoption of an onerous lease by the 
 
 '^ Kirtland v. Wilaon & Son's Tr., landlord's trustee — Bertram v. Guild, 
 
 supra, ^\ 1880, 7 R. 1122. 
 
 « Stead V. Cox, 1835, 13 S. 280 ; cf. ^ 1 B.C. 80 ; 2 B.C. 413. 
 
 Richardson v. Scott, 1835, 13 S. 972 " See Kinlooh v. Mansfield, 1836, 14 
 
 (irritancy through bankruptcy). S. 905 ; Walker's Trs. u. Manson, 1886, 
 
 " Dundas v. Hood, 1853, 15 D. 752. 13 R. 1198. 
 
 ■■^ The rule is general with regard to ^ Supra, p. 322 seq. 
 
 all continuing onerous contracts ; — see * As to which question see supra, 256. 
 
534 
 
 QUESTIONS WITH CREDITORS OF A TENANT. 
 
 Poinding. 
 
 Of growing 
 corns. 
 
 in no way different from that of an ordinary creditor.*'' The 
 landlord's hypothec is not affected by the Bankruptcy Act.*^ 
 The two processes of sequestration need not interfere with each 
 other. The landlord does not give up his preference or his 
 separate proceedings by claiming in the bankruptcy process ; *' 
 nor by allowing another creditor to poind the tenant's effects on 
 condition of receiving payment out of the proceeds.^" And the 
 most convenient course usually is for the trustee to realise the 
 hypothecated goods under obligation to pay or credit to the land- 
 lord the proceeds so far as lawfully secured by the hypothec. ^^ 
 
 2. Poinding. 
 
 Without entering into the general law of ordinary poinding/^ 
 it is right to refer in this place to certain rules which are special 
 to the occupiers of land and their creditors. They relate to 
 growing corns and plough goods. 
 
 (a) Growing Corns. 
 
 Growing corns, though in one sense partes soli, are, after they 
 have reached a certain stage of growth regarded as moveable 
 and therefore poindable.^^ A poinding in December of wheat 
 just brairded and of new grass sown for a crop next season is 
 premature.^* The same may be said of a poinding of growing 
 wheat in January.** And the only rule which can be laid down 
 is that the corn must be ripe or nearly ripe.** The diligence is, 
 however, incomplete till severance has taken place, so that it is 
 annulled by the death of the debtor in the interval.*' Where a 
 tenant was removed through the operation of a conventional 
 irritancy, it was held that a recently sown crop of wheat belonged 
 to the landlord, and that a poinding of it by a creditor of the 
 tenant was not an effectual mode of attaching the tenant's claim 
 to be recompensed for seed and labour.*^ 
 
 *' Illustrations of the doctrine of illegal 
 preferences within sixty days before bank- 
 ruptcy are to be found in Maofarlane v. 
 Greig, 1831, 9 S. 529 ; "Wright j;. Walker, 
 1839, 1 D. 641 ; Morrison v. Carron Co., 
 1854, 16 D. 1125. 
 
 * Salvo in 19 & 20 Vict. o. 79, sect. 
 119. See as cases under similar clause 
 in the older Acts — Dickson v. Watson, 
 1779, M. 1246; Baird v. Brown, 1772, 
 M. 6271 ; Anderson v. Kerr, 1780, M. 
 6272, Hailes 857; Euchan v. Nisbet, 
 1781, M. 6272. 
 
 ** Wilson V. Holme, 15th Feb. 1828, 
 F.C. 577. 
 
 •* Russel V. Cochrane, 1831, 9 S. 304. 
 
 =1 Davidson v. Falconer, 1826, 5 S. 131, 
 (N.E. 121), shows the practice under the 
 old Acts. 
 
 ^ See as to poinding after sequestra- 
 tion—Thorn V. Jack, 1834, 12 S. 612. 
 
 53 Ersk. 3.6.22; Ballantyne v. Watsons, 
 1709, M. 10526 ; Ferguson v. Dick, 1734, 
 Mowbray v. Drummond, 1736 ; and Kirk- 
 land V. Miller, 1741 ; Eloh. Poinding, 
 Nos. 1, 5, and 7. 
 
 " Elder v. Allen, 1833, 11 S. 902. 
 
 ^ Dun V. Johnston, 1818, Hume 451. 
 
 5" Elder v. Allen, supra, =*. 
 
 ^' E. Morton v. SomerviUe, 1765, M 
 6197. 
 
 '^ Dun V. Johnston, supra, ^\ 
 
POINDING PLOUGH GOODS. 535 
 
 (6) Plough Goods. 
 
 The statute 1503, c. 98, prohibits all officers of the law from Of plough 
 poinding or distraining horses, oxen, and other goods pertaining ^°° °' 
 to the plough, and that labour the ground, during the time of 
 such labouring, where there are other goods or land to be apprised 
 [adjudged] or poinded. The enactment applies to work-horses ^^ 
 and cattle,''" used for ploughing, though not actually yoked at the 
 time,^^ or even within the year.^^ The labouring time is that of 
 the farm in question, not of the district ; so that a poinding 
 on the evening of the last day of actual work,*^ or at a season 
 when the debtor had not begun to plough, though some of his 
 neighbours had,^* was held good; while a poinding at a season 
 (middle of June) when the neighbours had long ceased labouring, ^^ 
 but the debtor was late with his work, was found to be 
 incompetent.^'' Actual use in the plough before or after the 
 usual time of labouring does not give the privilege.''^ And only 
 use for the plough confers it.°^ 
 
 The prohibition fails if there be proof that there were not Where other 
 other goods on the ground sufficient to meet the rent and the f^^t! '°™ 
 poinder's debt f^ but the debtor is not bound to point out the 
 other poindable goods — it is enough that such exist. ^^ It appears 
 that the other exception — if apprisable lands belonged to the 
 tenant — soon fell into desuetude. ^^ With this exception the 
 statute is still in observance ; and the execution should always 
 bear, under sanction of nullity, that search had been made in 
 vain for sufficient poindable goods to which the privilege did 
 not apply .^^ 
 
 3. Poinding of the Ground}^ 
 
 A superior or heritable creditor in suing an action of poinding Poinding of 
 of the ground conjoins with his vassal or debtor the tenants and ^ ^°""' ' 
 possessors of the ground (if such there be), ' but, in so far as relates 
 
 ™ Gibson v. L. Corsbie, 1630, M. Stewart, 1678, M. 10516. 
 
 10512. «'' A. V. Duncan, 1617, 2 Fol. Diet. 94 ; 
 
 «» Drumkilbo Tenant v. The Laird, GuUan v. Dunmuir, 1627, M. 10508. 
 
 1629, ibid. ^ Turner v. Blackadder, 1558, M. 
 
 *' Gibson, supra, ^. 10505 (carting coals). 
 
 «2 A. V. B., 1681, 3 B.S. 402. «» Wemyss u. Goodsire, 1684, M. 
 
 K! Watson V. Reid, 1628, M. 10510. 10520. 
 
 ^ Irvine v. Aberdeen Coll., 1683, M. '" Gibson, supra, ^ ; but see Lawson 
 
 10519. «. Brown, 1703, M. 10524. 
 
 ^ Arnot V. Greig, 1712, M. 10527 " Turner v. Scott, 1692, M. 10523. 
 
 (there were also other poindable goods. '^ j^ Adv. v. Forgan, 20th Feb. 1811, 
 
 The denial of the privilege here to F.C. Appx. p. 1. 
 
 ploughing for lea seems devoid of ^ As to maills and duties see supra, p. 
 
 principle and authority). 319. 
 
 ^ These cases overrule Wood v. 
 
536 QUESTIONS WITH CEEDITOES OF A TENANT. 
 
 ' to the said tenants, to the amount of the rent only, which may 
 ' be due and payable by them respectively at the time or from 
 ' time to time for each of their respective possessions of the said 
 ' lands and others or parts thereof, the terms of payment of said 
 ' rents being first come and bygone.'''* For in that sense is 
 construed the prohibition of the old Act 1469, c. 36, against 
 ' distraining for the lordes' debtes further then his termes mailles 
 ' extendis to, , . . and gif the creditour takis the termes maill 
 ' be virtue of the briefe of distresse it sail not be leifful to the 
 ' lorde to tak it againe.'^^ Not only the last due rent for a year, 
 and, as they come due, future rents, but all arrears may thus be 
 attached.'^^ The diligence does not affect the goods of third 
 parties which may happen to be on the land or other subjects 
 let.'^' The decree passes against the tenants in general terms, 
 leaving the pursuer to work out his remedy at his own risk.^^ 
 If the tenants do not appear, decree in absence passes against 
 them though the landlord defends."^ Mere citation of tenants 
 in the action does not operate as an intimation that the rents 
 have been assigned, so as to interpel them from paying future 
 rents to their landlord ; ^ but if the poinding has been put in 
 execution against them, and if it ex facie proceeds on an express 
 assignation of rents, it is equivalent to intimation thereof. ^^ If 
 certain tenants have been omitted, or tenants cited have assigned 
 their rights, the proper course is to raise a fresh summons.^^ 
 
 4. Other Diligence. 
 
 No specialties arise in the use of other forms of diligence and 
 in competition between different forms thereof, out of the nature 
 of the contract of lease.*^ 
 
 '* 3 Jur. Styles (3rd ed.) 203, 377 ; 's pitfoddlee, supra, ^^ 
 
 St. 4.23.10, 14 ; Mack. 2.8.14 ; Bankt. ™ Buchan v. Scott, 1829, 7 S. 296. 
 
 2.5.7; Ersk. 2.8.33; 4.1.12; Eosa, Lect. so Roy^i ^^^^ ,^_ Dixon, 1868, 6 M. 
 
 ii. 392 ; 1 B.C. 683 ; B. Pr. 914, 922, 995— the poinding was not carried out. 
 
 2285 ; Mackay, Practice, u. 313 ; Thur- si L^ng v. Hislop, 1854, 16 D. 908. 
 
 stone's Creds., 1676, 3 B.S. 61. Both elements were present ; but pro- 
 
 '« Limitation enforced, Ly. Pitfoddlea bably the latter would be sufficient ; see 
 
 II. Pitfoddles, 1674, M. 10548 ; Pothering- last case. 
 
 ham V. Bahuerino, 1676, M. 10549, over- 82 gu^ ggg ^j^g ^^^^^ practice, Forrester 
 
 ruling Ly. Ednam v. Heir, 1628, M. 8129, v. A., 1612, M. 10543 ; Watson v Reid 
 
 10545, 1 B.S. 265, 376. 1628, M. 10510, 10545 ; Adamson v. 
 
 ™ Ersk. su^TO, 7^. Balmerino, 1662, M. 3246 10547- 1 
 
 ■ "" CoUet V. Balmerino, 1679, M. 10550, B.S. 376. 
 
 overruling Ly. Ednam, supra, '=; and ** Mr. Hunter refers to cases of arrest- 
 
 Paterson v. Adamson, 1622, M. 10543. ment in M. 761 ; 7 S. 72 ; 9 S. 754. As 
 
 But see the rules regarding hypothec, to adjudication, see supra, pp. 46, 48. 
 supra, p. 343. 
 
)37 
 
 CHAPTER XXV. 
 
 QUESTIONS ARISING OUT OF NEIGHBOURHOOD AND 
 PUBLIC EIGHT. 
 
 The reader must go elsewhere for an exposition of those rights interest of 
 
 and duties which may be compendiously described as arising out ienanTrespeo- 
 
 of the circumstance that the parties with whom a tenant is ti'^'eiy. 
 
 brought into contact are neighbours or persons asserting a public 
 
 right. The most important of the problem's of private law, in 
 
 which the public have an interest, or in which the cardinal 
 
 element is neighbourhood — not necessarily contiguity — pertain 
 
 to the law of ownership. But the temporary interest of a tenant 
 
 is sufficient to entitle him to a remedy where it is injuriously 
 
 affected or threatened by the acts of a third party, and the longer 
 
 his term the greater his interest. Ou the other hand, it is 
 
 sufficient to expose him to attack, if, in the exercise of his right 
 
 of possession, he infringes the rights of others. In one sense this 
 
 right and this liability are derivative, for they are acquired by 
 
 that temporary and (it may be) partial transfer of the rights 
 
 and duties of an owner, which is of the essence of a lease. In 
 
 another sense, they are independent in as much as a tenant is 
 
 free to pass from the full assertion of his own rights on the 
 
 one hand, or on the other hand to respect or infringe the rights 
 
 of others. 
 
 Shortly stated, the questions here contemplated may be Culpa. 
 arranged under these heads — cvlpa, nuisance, servitude, and public 
 right. The division is convenient, though not ideally perfect. 
 By culpa, fault or negligence is meant, specific fault on the part 
 of a tenant towards a party other than his landlord, in doing or 
 leaving undone some act, which act or omission, but for the fault, 
 could not have been effectually complained of at law. By 
 nuisance is meant an infringement of that natural right, in suo, Nuisance, 
 to comfortable possession to which each owner or possessor is 
 
538 
 
 NEIGHBOURHOOD AND PUBLIC EIGHT. 
 
 entitled over against a neighbouring owner or possessor. By 
 Servitude. servitude is meant a derivative or acquired right (or obligation) 
 in alieno competent or incumbent betvreen owners only, and 
 through them to or on their tenants in certain cases. The sort 
 Public right, of public right which is here contemplated is that in virtue of 
 which members of the public are entitled to enjoy certain definite 
 uses of heritable property in private ownership and possession. 
 Though there is a rich literature dealing with all these matters 
 as part of the law of property, there is a singular dearth of 
 authority in Scotch law regarding the part which a tenant may 
 choose or be forced to take in questions arising out of them. 
 Some assistance may, however, be derived from English and 
 American jurisprudence. It may be necessary here and there in 
 what follows to point out distinctions of principle on the lines of 
 the above division of the subject ; but the most convenient mode 
 of expounding the rules applicable to the questions with third 
 parties now to be treated seems to be to look to the instance and 
 deal (1) with actions brought by a tenant (with or without his 
 landlord's concurrence) against third parties, and (2) with actions 
 brought by third parties against a tenant alone or in conjunction 
 with his landlord. Under the latter head will be treated cases 
 between tenants of different landlords, and actions of relief 
 between landlord and tenant, where either has had decree given 
 against him. The third possible sort of case is (3) that of 
 actions between tenants of the same landlord. 
 
 Title to sue 
 depends on 
 interest. 
 
 Transitory 
 acts. 
 
 I. Action by Tenant against Third Parties. 
 
 The title of a tenant to sue a neighbour in respect of actual or 
 threatened injury caused through the fault of the latter, or 
 through nuisance, or infringement of an alleged servitude, or to 
 prevent a member of the public from trespassing, depends solely 
 on the amount of his interest in the subjects let to him. It is 
 necessary to distinguish between transitory and continuous 
 injuries ; between cases in which the act complained of (such as 
 a trespass or an act or acts of nuisance which can be at once 
 abated) affects the possession only, and cases in which the injury 
 extends so far as to make the subjects unlettable or materially to 
 affect their letting value, or impairs their substance, or takes place 
 in the assertion of an adverse private or public right. In the 
 case of transitory injuries involving no assertion of adverse rio-ht, 
 the tenant or occupier has the only title to sue, no injury having 
 been done or threatened to the landlord's interest or reversion. 
 Consequently, an act which would otherwise be a trespass is 
 
PEEMANENT INJURY BY THIED PAETIES. 539 
 
 secured against being impugned by a landlord if it was done with 
 the tenant's permission.^ 
 
 In the case of more permanent injuries there has never been Permanent 
 any doubt of an occupying tenant's title to sue for declarator, '"J""^^- 
 damages, interdict, removing, or restitution,^ in so far as his 
 interest extends ^ or otherwise to protect his holding.* Thus a 
 tenant may at his own hand vindicate his right to set up swing- 
 gates across a public or servitude footpath in the course of fencing 
 his farm,^ or his right to exercise servitudes let to him along with 
 the corporeal subjects in his lease " so far as thus acquired by 
 him " and no further.^ The Court has gone so far as to sustain 
 a tenant's title to sue, though the sole question was one of 
 ownership, raised, however, in the form of a declarator of right to 
 act on a lease. A proprietor leased out minerals in certain lands, 
 which had been feued out by his predecessors in title, so far as he 
 had right to them. The tenants brought a declarator against 
 him and the feuars that they had the sole and exclusive right 
 during the currency of their lease to work the mineral in and 
 under the lands so feued out. The lessor did not defend, but 
 certain of the feuars appeared in support of their exclusive right 
 to the minerals under their feus. Their titles were produced, and 
 after argument satisfied the Court that they were right in their 
 contention. The judgment was absolvitor, since the objection to 
 the title to sue could only be dealt with after consideration of the 
 merits, and not dismissal; and this decision seems to establish 
 the doctrine that a tenant is entitled at his own hand to vindi- 
 cate his temporary right, and that in considering his claim the 
 Court will not inquire too narrowly whether a question of owner- 
 ship is or is not involved ; whether the action is declaratory or 
 
 1 Stewart v. Stephen, 1877, 4 K. 873 ; G.N. Sc. By., 1882, 10 R. 144 (insufficient 
 
 see Winans v. Macrae, 1885, 12 E. 1061 level crossing, acquiesced in), 
 
 (pet Iamb case) ; and for the effect of * See recent case of herding cattle, 
 
 termination of the tenancy see Brown v. M'Arthur v. Jones, 1878, 6 R. 41 ; and 
 
 Notley, 3 Exch. 219, andcaaes there; and see Robertson v. Wright, 1885, 13 R. 
 
 of a lease before entry, Wheeler v. Monte- 174. 
 
 fiore, 2 Q.B. 133. ^ Sutherland v. Thomson, 1876, 3 R. 
 
 ^ The actions (springing from posses- 485 ; Wood ti. Robertson, 9th March 1809, 
 
 siou) of ejection and intrusion are super- F.C. 241. 
 
 seded by modem forms, and action of * B. Pr. 1224 ; Knockdolian v. Par- 
 abstraction of multures is nearly obsolete thick Tenants, 1583, M. 14540 ; Weir v. 
 along with the multures themselves. See Glenny, 1832, 10 S. 290, rev. 7 W. and 
 Hunter ii. 136, seqq. for the old law. S. 244. 
 
 ^ Of modern cases, see Hamilton v. ' Carstairs v. Brown, 1829, 7 S. 607. 
 
 Teimant & Co., 1839, 1 D. 502 (smoke) ; ^ Stewart v. Caithness ; Stewart n. 
 
 Chalmers v. Dixon, 1876, 3 R. 461 (nuis- Smart, 1788, Hume 731 ; E. Wemy»s v. 
 
 ance from burning bing) ; Barclay v. Hope's Trs,, 7th Feb. 1809, F.C. 161. 
 
540 NEIGHEOUEHOOD AND PtJBLIC RIGHT. 
 
 only possessory ; and what may be the effect of the judgment as 
 res judicata.^ There is also no doubt that landlord and tenant 
 may in such cases as involve the rights and interests of both sue 
 in the same action. Thus where a petition for interdict was the 
 form of action, it was held competent for the proprietor of an 
 estate to join with a tenant on it in proceeding against the 
 working of coal and the committing of other trespasses on the 
 estate, and in particular on the tenant's farm ; and further com- 
 petent in the same petition to complain of breaches of former 
 interdicts obtained partly by the landlord and partly by the 
 tenant, in respect they to a certain extent had a common interest, 
 and that the acts of the respondents formed a continued and 
 connected series of depredations. i" The joinder of all persons 
 who have an interest, whether immediate or in reversion, is for 
 the advantage of all parties, especially because a judgment so 
 obtained is of greater value as res judicata ; " and it is invari- 
 ably attempted in practice. 
 Injuries affect- But difficulties have frequently arisen across the Border on the 
 infeiesf"'^'' question whether in certain circumstances the landlord has any 
 interest or title to sue, — whether, in other words, his reversion is 
 affected by the matter he complains of. If permanent harm has 
 been done or threatened to the subjects let (as where a house is 
 cracked or rent through subsidence of its site,^^ is structurally 
 injured by flooding, ^^ or its doors and windows are partly blocked 
 by raising the pavement to a higher level than before ; ^* or if 
 encroachments are made by a neighbour beyond boundary),^* the 
 landlord has a good title to sue for damages,^^ — the amount to 
 be awarded being such as shall be thought by the jury sufficient 
 to bring about an abatement of the nuisance ^'' — or to take other 
 proceedings. He has also an interest and title to sue if the 
 injury in question, though transitory, is dealt to him in assertion 
 of a right adverse to his own, or operates in denial of his 
 right.'^ And the interest is sufficiently made out if it be shown 
 
 ' Baird & Co. v. Kilsyth Feuars, 1878, " Leader v. Moxon, 3 Wils. 461. 
 
 6 K. 116. 15 Tucker v. Newman, 11 A. and E. 
 
 1" Jolly V. Brown, 1828, 6 S. 872. 40 (a case to go to a jury). 
 
 " See Young v. Cunningham, 1830, 8 '^ Shadwell v. Hutchinson, 2 B. and 
 
 S. 959 ; and Baird & Co., supra, " ; Ad. 97 ; Thomson v. Gibson, 7 M. and 
 
 where the proper course would have been W. 456. 
 
 to conjoin the lessor with the lessees as ^^ Battishill v. Keed, 18 C.B. 696. 
 
 a pursuer. ^^ Jackson v. Pesked, 1 M. and S. 234; 
 
 1'^ Raine v. Alderson, 4 Bing. N.C. Hopwood v. Schofield, 2 Moo. and R. 34 ; 
 
 702 ; Bonomi v. Backhouse, 9 H.L.C. KidgiU u Moor, 9 C.B. 364. The view 
 
 503. taken in Baxter v. Taylor, i B. and Ad. 
 
 " Bell V. Twentyman, 1 Q.B. 766. 72, that a claim of right by a third party 
 
INJUEY TO THIRD PAETIES. 541 
 
 that the things complained of Tnay (not Tnust) operate injuriously 
 to the reversion.^* 
 
 But if no denial of right is involved and if the injury be merely injuries to 
 to the possession — by noise, smoke, or vibration from machinery oniv!'^'°" 
 on neighbouring ground, — the landlord has no title to object, so 
 long as his possession is suspended by the lease.^" Thus though 
 a landlord may object to the digging of pits iu his soil his tenant 
 alone can object to third parties trespassing on the subjects. ^^ 
 It seems to be fixed law in England ^^ (though the contrary seems 
 to be the case in parts of America ^^) that if the injury be transi- 
 tory only, the landlord has no remedy even though he can show 
 that it lost him his tenant, or has lowered the letting value of 
 his premises, or has made them unlettable. It may be conjec- 
 tured that the Scotch Courts would not allow themselves to be 
 bound or guided by any such rule. 
 
 II. Action bt Third Parties against Landlord and 
 Tenant. 
 
 Where the act or omission of which a third party complains, Against tenant 
 or the point he desires to raise, clearly involves possession alone 
 without raising questions permanently affecting the subjects let, 
 his only competent course is to call the tenant alone as defender.^* 
 On the other hand, if the question raised be purely one of herit- Against land- 
 able title — a competition about ownership — the tenant has no 
 interest in the issue and the owner alone should be called. But 
 between these extremes lies a multitude of cases in which there Against both, 
 may be grave doubt as to the immediate or ultimate liability of 
 landlord and tenant, or in which the pursuer concludes for a de- 
 cree which would affect the interests of both; and then the proper 
 course is to call both. If he does not, and if he calls the tenant 
 only, he runs the risk of attacking the wrong party ; or the decree 
 he obtains must be limited so as not to affect that interest in the 
 land which has not been represented. These general rules may 
 
 could not harm a reversioner, since the ^^ Simpson v. Savage; Jones «. Chappel, 
 
 latter could not meet it, would probably ™ ; Mumford v. Oxford, &c., Ey., 1 H. and 
 
 not be followed in Scotland. N. 34. 
 
 '^ Metropolitan Assn. v. Petch, 5 ^ Cases in Wood, Nuisance, 946. 
 
 C.B.N.S. 504 ; Cooper v. Crabtree, 45 ^ Kinloch v. Robertson, 1756, M. 
 
 L.T.N.S. 587 ; Dobson u. Blackmore, 9 13163 ; Murray v. Buchanan, 1776, M. 
 
 Q.B. 991 ; Kidgill v. Moor, supra, i^. 16636 ; Robertson v. Campbell, 1802, M. 
 
 ^ Jones V. Chappell, L.E. 20 Eq. PubUo Police, App. 3. As in Fairfax 
 
 539, 543, per Jessel, M.R.; Battishill v. v. Greenshields, 1828, 7 S. 184, the com- 
 
 Reed, supra, ^'^ ; Simpson -o. Savage, 1 plaint was only of the Mse of the premises 
 
 C.B.N.S. 347. for smelting, the principle on which the 
 
 "' Cox V. Glue, 5 O.B. 533 (common). decision proceeded seems unsound. 
 
542 NEIGHBOURHOOD AND PUBLIC EIGHT. 
 
 probably be a sufficient guide in framing the instance in all 
 actions of interdict or for decree ad factuTn prcestandvmi. But 
 the whole subject may be fitly illustrated by a brief account of 
 the cases in which claims of damages have been raised. Either 
 Liability of in this shape or in the form of an action of relief between the 
 tenant's acts, landlord and tenant themselves, the substantial question is with 
 whom the ultimate liability for damages lies. As the tenant 
 has possession, the direct acts or omissions out of which the 
 question arises are his ; so that the point raised may be stated 
 more specifically thus : In what circumstances is a landlord 
 liable along with or in relief of his tenant where damages are 
 due to third parties ? 
 Cu'p"- If the injury complained of be due to the specific culpa or 
 
 negligence of the tenant alone, he alone is liable ; ^^ the doctrine 
 of respondeat superior has no application between persons so 
 independent of each other as are landlord and tenant. ^^ Thus, 
 where damage to neighbouring land was caused by an overflow 
 of water on it through the choking up of a drain, which if kept 
 clear would have been amply sufficient to carry off the water 
 innocuously, the landlord, who had done his part, was held to 
 be free from liability. ^^ And, where a lessee had, as permitted 
 by his lease, erected a reservoir for his own purposes, and it burst 
 during the tenure of an assignee, the assumed cause thereof being 
 defective repair, the landlord was assoilzied from liability for the 
 injury caused to neighbouring land by the flood which thus 
 escaped. 28 '-When a proprietor lets his house or land to a tenant 
 ' with the view that he use or enjoy it without injury to his 
 ' neighbour, which he will do if the ordinary care is taken, why 
 ' should the landlord and not the tenant be answerable for this 
 ' want of care on the part of the tenant ? ' ^' 
 forTp"a*rf ^ ^^^'^ *^® question turns on the use made of premises which 
 premises. are m good repair — as, where a grating or trap-door in a public 
 place, in itself sufficient (if properly kept) is left open and injury 
 IS thereby caused to a neighbour or member of the public, the 
 
 „o? "^tlf^ f °''' ^^^^' " ^ ' ^^^*' " "" Henderson v. Stewart, 1818, Hume 
 
 231 ; 1681, 0. 4, and 1685, c. 24. making 522, 15 S. 868, note, 3 Sh. and M'L 
 
 landlords responsible in certain cases are 367. (There was a stipulation that the 
 
 m desuetude. lessee should indemnify neighbours, but 
 
 See per L. Medwyn in Weston v. the decision did not depend on this). See 
 
 Potterrow Tailors, 1839, ID. 1218, 1224; also Thomson ■.. Gray 1842 5 T> 377 
 
 but see the different position of one who Rankin r. Dixon & Co , 1847 '9 D 1048* 
 
 has only a revocable licence-White v. raised but did not decide the point 
 
 Jameson, L.R. 18 Eq. 304. .. p,, L. ^edwyn, 1 D. ^226 '{over- 
 
 ^' Lyons .. Anderson, 1886. 13 R. ruling L. Meadowbank's charge, p. 1220). 
 
 The example given is cattle straying. 
 
INJUEY TO THIRD PARTIES THROUGH DISREPAIR. 543 
 
 liability of the tenant alone can scarcely be doubted.^" Where, on 
 the other hand, the cause of the damage is the disrepair of the 
 premises, the question comes to be on whom lies the responsi- 
 bility of putting or maintaining them in order. ^^ This question 
 does not seem to have been sufficiently before the minds of the 
 Judges who decided a case,^^ probably with entire justice in the 
 result, but apparently on wrong grounds. A horse lawfully sent 
 to graze in a park was killed by falling during the night into an 
 old mine shaft, covered with rotten boards in which a hole had 
 been for some time observable but otherwise unfenced. The 
 owner of the park when sued for damages pleaded that the shaft 
 was in the custody of his mineral tenants, whose lease was still 
 current. The shaft contained water, and had been long disused ; 
 and the Court in mulcting the defender in damages might well 
 have proceeded on this circumstance as practically throwing the 
 pit-mouth back on the landlord's hands. But the judgment was 
 variously based on the difficulty of ascertaining what person was 
 tenant, on the analogy of a master's liability for his servant's neg- 
 ligence, and on the landlord's right of relief against his tenant, 
 if the latter were primarily liable. These views are displaced 
 in a later case, where damage was caused to a shop through 
 water overflowing from a water-closet in a flat above it, and 
 action for damages was brought against both the landlord 
 and tenant thereof; and the law was thus compendiously 
 stated : — 'If the jury were satisfied on the evidence that 
 ' the landlord has been guilty of any fault or negligence,^^ either 
 ' by himself or any one employed by him from which the damage 
 ' arose, he is liable; or if they were satisfied that the water- 
 ' closet in question when let with the house to [the tenant] was 
 ' so constructed as necessarily or in strong probability from its 
 ' ordinary use to lead to the damage sustained, the landlord 
 ' would also be liable ; but if the water-closet was constructed 
 ' in the usual way and not in its construction such as to lead 
 ' to what occasioned the damage, except from the negligence, 
 ' ignorance, or mischievous conduct of those who used it, then 
 
 2" Hnghes V. Macfie, 2 H. and C. 744, v. Warnock, 1883, 10 R. 1052. The con- 
 
 and cases collected in Rankine, Land- flict of decisions in America is brought 
 
 ownership, 312. out in Wood, Nuisance, 952. 
 
 21 Supra, pp. 219, 222. See Weston, "> ^ Mack v. AUan, 1832, 10 S. 349. 
 
 (overflow from water-closet on upper The case is noted as departing from the 
 
 floor) ; and see the cases collected in Ran- rule in Wood, Nuisance, 954, and the 
 
 kine, Landownership, 521, in which, how- dicta are doubted in Weston, supra, -". 
 ever, the respective liability of landlord '' Non-feasance or misfeasance — Todd 
 
 and tenant did not arise ; and add M'Lean v. Flight, infra, H 
 
544 
 
 NEIGHBOUEHOOD AND PUBLIC BIGHT. 
 
 Nuisance. 
 
 Dunn V. 
 Hamilton, 
 
 ' the landlord of this tenement could not be held responsible for 
 ' what happened.'^* 
 
 The same rules apply to cases in which nuisance (in the 
 narrower sense) is committed, to the injury of the neighbour- 
 hood. If the nuisance existed at the time when the subjects 
 on which it is caused were let, the landlord will be liable for 
 upholding and continuing it, if it be not abated,^* but the tenant 
 is not thereby absolved from liability. ^^ If the nuisance come into 
 existence during the lease the landlord is liable only if it must 
 necessarily or by strong probability result from the ordinary use 
 of the premises let, or of the use for which they were let, or if 
 the obnoxious operations are carried on under his authority. ^^ 
 
 The leading Scotch case is Dunn v. Hamilton. ^^ The action 
 concluded for interdict against the landlord, tenant, and sub- 
 tenants of a turkey-red dye-work on a stream, from polluting 
 it with dye stuffs which were said to be poured into it by the 
 subtenants. The landlord set up in defence a prescriptive use 
 of the premises as dye-works; acquiescence of the pursuer, an 
 inferior riparian proprietor ; filtration of the outflow ; denial of 
 the nuisance ; and non-responsibility for occasional injury which 
 might be caused through the negligence or misconduct of the 
 occupants. The tenant denied that during his occupation he 
 had polluted the water or that in subletting he had authorised 
 pollution. The subtenants set up substantially the same pleas 
 as the landlord, with the exception of the last. The lease bore 
 that the premises were let to be used for the purpose of bleach- 
 
 ^ Per L. J.-C. Boyle in Weston, supra, 
 2", at 1 D. 1230 ; Caledonian Ry. Co. 
 r. Greenock Sacking Co., 1875, 2 K. 
 671 ; Langwill v. Mackay, 1885, 29 Journ. 
 of Jurisp., 222. See foreign cases in 
 illuatration — Nelson v. Liverpool Brewery 
 Co., L.R. 2 C.P.D. 311, and Todd v. 
 Flight, 9 C.B.N.S. 377 (fall of chimney- 
 pot) ; Chauntler v. Robinson, i Exeh. 
 163 (fall of wall between houses) ; Cheet- 
 ham V. Hampson, 4 T.R. 318 (fences) ; 
 Russell V. Shenton, 3 Q.B. 449 (drains) ; 
 Gandy v. Jubber, 5 B. and S. 78, and 
 undelivered judgment, 9 B. and S. 15, 
 with which of. Pretty v. Bickmore, L.R. 
 8 C.P. 401 (insufficient gratings over 
 areas on street) ; Gwinnell v. Earner, 
 L.R. 10 C.P. 658 (coal-shoot out of 
 repair at time of lease without landlord's 
 knowledge) ; American cases in Wood, 
 Nuisance, 953. 
 
 3= Rex V. Pedly, 1 A. and E. 822, 
 per L. Denman ; Rosewell u. Prior, 
 12 Mod. 639 ; Leslie v. Pounds, 4 Taunt. 
 649 ; Bishop v. Bedford Charity Trs., 
 1 E. and E. 697 ; though he cannot enter 
 to abate the nuisance — Thomsons Gibson, 
 7 M. and W. 456, per Parke P. ; Wood, 
 Nuisance, 950. 
 
 3" Brown v. Russell, L.R. 3 Q.B. 251 ; 
 Wood, ibid. 
 
 3' Fleming d. Ure, 1720, M. 13159 ; 
 "Vary v. Thomson, 1805, M. Public 
 Police App. 4 ; Collins v. Hamilton, 
 26th Jan. 1836, F.C. 291 (issue) ; 1837, 
 15 S. 895 ; M'Callum v. Forth Iron 
 Co., 1861, 23 D. 729 ; Saxby v. Man- 
 chester, &c., Ry., L.R. 4 C.P. 198. 
 
 ^ 1837, 15 S. 853, aff. 3 Sh. and M'L. 
 356 ; Rich o. Basterfield, 4 C.B. 805 ; 
 Wood, Nuisance, 958. 
 
THIRD PARTIES INJURED THROUGH NUISANCE. 545 
 
 ing, dyeing, or printing, and any other operations connected with 
 bleaching, dyeing, or printing, or for agriculture. The issue 
 regarding the landlord and tenant put it to the jury whether they 
 by themselves or another or others authorised by them polluted 
 the water. The presiding Judge (Lord Jeffrey) directed the jury 
 (in substance) that, as there was nothing but the lease and 
 sublease to connect these defenders with the supposed nuisance, 
 they were not answerable unless they had sanctioned it ; that the 
 lease did not imply a licence to commit nuisance ; and that, if a 
 dye-work could without much extra expense be carried on without 
 nuisance, these defenders were entitled to a presumption that 
 such was the import of the lease. There was a verdict for all 
 the defenders. The Inner House sustained a bill of exceptions 
 against these directions, on the special ground that the landlord, 
 having in substance made common cause with the subtenants, 
 was barred — in an action of interdict as distinguished from an 
 action of damages — from pleading that he had only authorised 
 a legally conducted manufacture.^^ The House of Lords, in 
 afiSrming the judgment, did not proceed on this ratio — since 
 denial of the existence of a nuisance was part of the landlord's 
 case, and did not involve him in a maintenance of all the 
 subtenants did — but on the circumstance that an erroneous 
 direction as to the nature of a nuisance affected the issue in 
 question as well as that with which the subtenants were concerned; 
 and on the view that the presiding judge's reference to the lease 
 restricted too greatly the landlord's liability, since the connection 
 between the lease and the nuisance was a fact to be determined 
 by the jury not only from the lease itself, but aliunde. ' If 
 ' the operations connected with bleaching, dyeing, or printing 
 ' would in the ordinary course of business create a nuisance, is 
 ' the landlord to be irresponsible because the tenant might by 
 ' possibility have avoided the nuisance and yet have obtained 
 ' a reasonable profit, or have prevented the injury without much 
 ' expense ? ' *" An action of damages was brought at the same 
 time by a manufacturing tenant of the pursuer in this case. 
 The verdict here also was given for the defenders, and an excep- 
 tion against Lord Cockbum's charge, which substantially agreed 
 with this dictum, was not persisted in.*^ 
 
 The distinction between what is the natural and necessary Necessary and 
 
 casual injury. 
 
 ^ In a similar interdict against water M'L. 379, citing Rex v. Moore, 2 B. 
 pollution this doctrine was given effect to and Ad. 184 (pigeon shooting), Rex i . 
 —Robertson v. Stewart, 1872, 11 M. 189. Redly, supra, ^. 
 
 '>" Per L, Chan. Cottenham, 3 Sh. and ^' Collins v. Hamilton, supra, ^. 
 
 2 M 
 
546 NEIGHBOURHOOD AND PUBLIC RIGHT. 
 
 consequence of letting subjects for a particular purpose and 
 what a consequence which it is optional to the tenant to bring 
 about or avoid in the course of his occupancy is well established 
 in England*^ and America.'*^ It is also fixed that, though a land- 
 lord is not liable for a nuisance which has commenced after the 
 inception of a lease and without his authority (in the sense now 
 explained), yet, if thereafter he renews the lease, he renews it 
 with the nuisance, and liability supervenes.** But there is some 
 doubt whether this consequence follows on the English equivalent 
 for tacit relocation. The affirmative was held in a delivered 
 judgment ; ^ the negative in an undelivered judgment of a higher 
 Court in the same case*^ — the ratio of the latter view being that 
 the relation ' is a springing interest arising from the first contract 
 ' and parcel of it ; so that if the lessee occupies for a number of 
 ' years, these years, by computation from the time past, make 
 ' an entire lease for so many years.' It is not the duty of a 
 landlord to obtain abatement of a nuisance for the origin or 
 continuance of which he is nowise responsible.*^ 
 Relief against The question whether, in the event of proceedings being 
 eviction^ *" successfully taken for the abatement of a nuisance, the tenant 
 shall have recourse against his landlord, as for eviction, under the 
 warrandice,*^ will probably depend in every case on special 
 circumstances showing that the risk was meant to be thrown 
 wholly on one or other of the parties or on both together. If 
 the lease gives authority to prosecute on the subjects let some 
 business known to be necessarily attended with nuisance, if carried 
 on in the usual way with a view to profit, in such a locality as 
 that chosen,*^ the common law rule of warranty arising from 
 grant for a special purpose would probably be applied. In other 
 cases, and if there be no element of partnership, and especially if 
 there be no indication in the lease of the purpose for which the 
 tenant takes the premises, the risk of all the consequences of his 
 own acts, and, among others, of entering on a lease under a 
 
 «Cf.Harri3i>. Jamea, 45L.J.Q.B.545, ^7 E. „. Barrett, 32 L.J.M.C. 36 ; R. 
 
 per L. Blackburn, with Rich *. Raster- v. Stannard, 33 L.J.M.C. 61 (brothels)! 
 
 field, i C.B. 783, R. v. Pedly, supra, In these cases and in Wood, Nuisance 
 
 35 ; R. V. Moore, supra, «. 39, see what constitutes the ' keeper of a 
 
 « Wood, Nuisance, 77 ; and see p. 78 ' brothel.' 
 
 as to the efiect of aHenation by, or ^ As to which see supra, p. 196. 
 
 succession to, the offending landlord. 49 gee the (doubtful) distinction be- 
 
 « Rich V. Basterfield, supra, «; Wood, tween known and other nuisances with 
 
 Nuisance, 78, 950; Rosewell o. Prior, examples, in Rankine, Landownership 
 
 '"P^"'''- 334; and RoseweU v. Prior, 12 Mod! 
 
 Gandy v. Jubber, 5 B. and S. 78. 639 ; Wood, Nuisance 543 
 
 « 9 B. and S. 15. 
 
SERVITUDES. 547 
 
 mistaken idea of his powers in the management of the subjects, 
 will lie with the tenant alone.^" 
 
 Where there is no eviction letting in warrandice, and no Relief for 
 express obligation of relief, and especially if liability for relief jue""'"*^ "°* 
 has been repudiated ab ante, the landlord is not bound to repay 
 to his tenant sums found due by the latter to a third party under 
 a decree which in the event turns out to have been incompetently 
 or erroneously granted in an action raised against the tenant. ^^ 
 
 The same rules as those which obtain with regard to nuisance Servitude- 
 regulate the vindication of servitudes by neighbours and of public 
 rights by members of the public ; the prevention of infringement 
 of these ; the liability for damages in case of injury being caused 
 through their infringement ; and the relief which a tenant may 
 have where the pursuer succeeds in his action or the third party 
 enjoys his right. The tenant may be barred from recourse 
 against his landlord through his own remissness in allowing 
 encroachment or trespass, as where he had without demur allowed 
 third parties for several years to encroach on a privilege of 
 pasturage let with his farm.^^ But, if the landlord steps in, and 
 himself exercises, for the benefit of the lessee and of the subjects 
 let, the privilege conveyed in a servitude right, but in such a way 
 as to deteriorate the subjects, he must either restore them to their 
 former condition or exercise the privilege to their advantage/^ 
 
 III. Questions between Tenants of the same Landlord. 
 
 Where questions between tenants holding of the same land- 
 lord turn on nuisance or on the specific culpa of either, no 
 specialty is involved in the circumstance that they have a 
 common author.^* Where the dispute arises, on the other hand, 
 in regard to such incorporeal privileges across the march, as 
 would, in the case of separate ownership, have been known as 
 servitudes, it is important to observe that the rules regulating 
 servitudes are inapplicable. The subject has been already 
 noticed in the chapter on Possession.'^ 
 
 «> Murray v. Buchanan, 1776, M. " Stewart v. Wand, 1838, 16 S. 408. 
 
 16636, Hailes 677. As to cases between '' Dudgeon v. M'Leod, 1830, 8 S. 349 
 
 landlord and tenant, in which third (weir repaired, but drawn too low), 
 
 parties have had no concern, see supra, ^ See a case in which the landlord was 
 
 p. 214. relieved of, and the fellow-tenant saddled 
 
 °' Stephen v. L. Adv., 1878, 6 R. 282 with, the responsibility for irregularity of 
 
 (salmon fishing facilities). The Crown water-power in a stream, Tassie v. Mage. 
 
 (landlord) had in the interval obtained of Glasgow, 1822, 1 S. 503, 505 (N.E. 
 
 a decree against the third party, which 467, 469). 
 
 involved the untenability of his claim ** Supra, p. 189. 
 against the tenant. 
 
548 
 
 CHAPTER XXVI. 
 
 PRIVILEGES AND PUBLIC BURDENS INCIDENT TO TENANCY.^ 
 
 There are certain public privileges incident to tenancy which 
 are not, and certain others which are, associated with strictly 
 correlative public burdens. It will be convenient to begin with 
 privileges of the former sort — viz., the right to church sittings 
 and burial-places, the parliamentary franchise, and the municipal 
 franchise in royal burghs ; and, as to the others, to treat burden 
 and privilege together. 
 
 I. Privileges Independent of Strictly Correlative 
 Burdens. 
 
 A. Right to Church Sittings and Burial-places. 
 Church. In the division of the area of a landward parish church, and of 
 
 the landward portion of the area of a landward-burgal ^ parish 
 church, after sittings have been allocated to the minister, elders, 
 and poor, and family seats have been allotted to the heritors, the 
 rest of the available space is divided among the heritors for the 
 accommodation of their servants and tenants.^ It then falls to 
 each heritor to allot this area (which for convenience is provided 
 with seats or pews) among his tenants and dependents and the 
 residenters on his estate, qua inhabitants of the parish. The 
 
 ' The author has elsewhere (Law of a brief statement of the liability involved 
 
 Landownership, chaps, xi., xii., xiii., in the occupation of heritable property 
 
 xxxvi.-xlii.) attempted to explain the will be here inserted, 
 
 rules which regulate the system of valu- = As to the letting by magistrates or 
 
 ation, rating, and taxing, from the point commissioners of seats in a burgal church 
 
 of view of the owner of land, and the see Clapperton v. Edinburgh Mags I84o' 
 
 privileges which ownership confers on 2 D. 1385, and cases there, 
 
 him. Many of the statutes deal equally 3 See authorities collected in Duncan 
 
 with tenants. In order to avoid repetition, Par. Eccl. Law, 222; Raukine Land- 
 
 the reader will here be presumed in such ownership, 168; B. Pr. 1224 • 'More's 
 
 cases to know the purview and scope of Notes, 254 ; Connell, Parishes, Suppl. 76 ■ 
 
 these Acts, and the machinery for assess- Dunlop, Par. Law 46. ' 
 ing and collecting the imposts ; and only 
 
CHURCH SITTINGS : BURIAL PLACES. 549 
 
 accommodation being frequently (or usually) insufficient, this 
 allocation ought to be so equitably conducted as not to call for the 
 interference of the sheriff, who is entitled, on application being 
 made, to rectify gross disproportion at any time, and not merely 
 when he proceeds to divide the whole area of the church.* On 
 the analogy of the principal division of the area, it may be 
 assumed (though there seems to be no direct authority) that the 
 rule in apportioning among the tenants would be to look to the 
 amount of rent they pay.^ On cause being shown by any person 
 interested, the division may be readjusted ; and, though it would 
 be the policy of the Court, and should be in the interest of the 
 heritor, to make as little alteration as possible on ancient, and 
 often hallowed, possession, it can scarcely be held that that 
 possession can ever operate a prescriptive dedication of a 
 particular pew or part of a pew to the use of the inhabitants of 
 any particular part of an estate. It is certain that no heritor 
 can alienate, with or without consideration, any part of the area 
 allotted to him for his servants and tenants, so long, at least, as 
 they require accommodation :^ and that the letting of such 
 church sittings as are here in view is illegal. '^ 
 
 The parish churchyard belongs to the heritors in trust for churchyard, 
 themselves and all the inhabitants of the parish — including, of 
 course, resident tenants. The allocation usually takes place in a 
 less orderly way than that which has just been referred to. ' And 
 no question seems to have arisen in regard to the right of a 
 tenant as such.^ 
 
 B. Parliamentary Franchise? 
 
 Every male tenant, not disqualified^" by insanity, peerage, ^^ Household and 
 alienage, ^^ office,^^ or under the Corrupt Practices Act,^* is en- franchises! 
 titled to vote in county or burgh, if he complies with the 
 
 * L. Kinnaird v. Matthewaon, 1802, 4 ^ See Nioolson on Elections, and his 
 
 Pat. 429, 441, 442. Analysis of Election Statutes ; 48 & 49 
 
 5 See Duncan, p. 223. Vict. c. 3, sect. 10. 
 
 6 Skirving i. Vernor, 1796, M. 7930 " Nicolson, Elections, 20-28, 83-86. 
 (the decision did not depend on the " See 2 & 3 Will. IV. c. 65, sect. 37, as 
 specialty). to eldest sons of peers. 
 
 ' Per L.P. Inglis in D. Koxburghe, '^ See 33 Vict. c. 14, as to naturalisa- 
 
 1876, at 3 E. 734 ; Clapperton, supra, ' ; tion. 
 
 L.O. Manor in D. Abercorn v. Edinburgh i' 2 & 3 Will. IV. c. 65, sect. 36 ; 19 
 
 Presbytery, 1870, 8 M. 733; and see & 20 Vict. c. 58, sect. 8 ; 24 & 25 Vict. 
 
 Hamilton Mags. j). T>. Hamilton, 1846, c. 83, sect. 13 ; 20 & 21 Vict. c. 72, sect. 
 
 per L.J.-C. Hope, 8 D. 852. 17 ; 31 & 32 Vict. c. 48, sect. 8. 
 
 8 See the authorities in Duncan, Par. " 46 & 47 Vict. o. 51, sects. 4-6, 10-21, 
 
 Eccl. Law, 231 ; Rankine, Landowner- 36-39 ; 31 & 32 Vict. u. 48, sect. 49. 
 ship, 163. 
 
550 PRIVILEGES AND PUBLIC BURDENS INCIDENT TO TENANCY. 
 
 conditions laid down in the Representation of the People (usually 
 called the Eeform) Act, 1884/s which assimilates the county 
 with the burgh franchise. He may be put on the roll, qud 
 tenant, in virtue either of the household or of the occupation 
 franchise. 
 
 (a) Household Franchise. 
 Extended to The 2nd section of the Reform Act, 1884, enacts that 'a 
 
 counties. . ^^j^j.^ household franchise . . . shall be established in all 
 
 ' counties and boroughs throughout the United Kingdom, and 
 ' every man possessed of a household qualification . . . shall, if 
 ' the qualifying premises be situate in a county in . . . Scot- 
 ' land, be entitled to be registered as a voter, and when registered 
 ' to vote at an election for such county.' A later section [7 (4)] 
 defines the expression ' household qualification ' to mean ' the 
 ' qualification enacted by the 3rd section of the Representation 
 ' of the People (Scotland) Act, 1868,i« and the enactments 
 ' amending or affecting the same ; and the said section and 
 ' enactments shall, so far as they are consistent with this Act, 
 ' extend to counties in Scotland.' 
 
 The 3rd section of the Act of 1868, thus extended to counties, 
 runs in the following terms : — 
 
 ■^b 
 
 31 & 32 Vict. Every man" shall in and after the year 1868 be entitled to be regis- 
 
 48, sect. 3. tgred as a voter, and when registered, to vote at elections for a member 
 
 01 members to serve in Parliament for a burgh, who, when the sheriff 
 
 proceeds ^^ to consider his right to be inserted or retained in the register 
 
 of voters is qualified as follows, that is to say : — 
 
 1. Is of full ag6^° and not subject to any legal incapacity ;"" and 
 
 2. Is, and has been for a period of not less than twelve calendar months 
 
 next preceding the last day of July,^' an inhabitant occupier" 
 
 '^ 48 & 49 Vict. 0. 3. Earlier qualifi- various shrewd suggestions as to the 
 
 cations are saved (sect. 10) — see infra, p. amount of continuity of residence. The 
 
 556. only points decided are (in regard partly 
 
 IS 31 & 32 Vict. 0. 48. to cognate cases) that the claimant must 
 
 " Bxcludingwomen — Brown v. Ingram, possess at least a sleeping apartment on 
 
 1868, 7 M. 281. the premises ; that uninterrupted abiding 
 
 ^^ Thereafter the qualification cannot is not requisite ; that the animiis revcr- 
 
 be altered — Dove v. Reid, 1868, 7 M. 287. tendi and power to return at will must 
 
 ^' One who was a minor when the be shown (Powell v. Guest, 34 L.J.C.P. 
 
 assessor made up his list, but came of age 69; Ford v. Hart, L.K 9 C.P. 273- 
 
 before it came before the sheriff, was Taylor v. St. Mary Abbot, L.E. 6 C.P. 
 
 held qualified — Campbell v. Richardson, 311 ; Gray v. Swanson, 1868, 7 M. 328 • 
 
 1879, 7 R. 32. Manson v. Sinclair, 1868, 7 M. 329 ; 
 
 2» Last page, foot. Stewart v. DouU, 1868, 7 M. 330) ; that 
 
 ^1 Of the year in which the claim was residence six times in the year for periods 
 
 made-Davidson v. Gray, 1868, 7 M, 293. varying from two days to a fortnight on 
 
 22 Mr. Nicolson (Analysis, p. 8) makes business and without famUy does not 
 
PARLIAMENTARY FRANCHISE HOUSEHOLD. 
 
 551 
 
 as owner, °' or tenamt, of any dwelling-house'* within the 
 
 burgh. 
 Provided that no man shall, under this section, be entitled to be 
 registered as a voter who at any time during the said period of twelve 
 calendar months shall have been exempted from payment of poor-rates 
 on the ground of inability to pay f^ or who shall have failed to pay on 
 or before the 1st day of August in the present, or the 20th day of June 
 in any subsequent year all poor-rates (if any) that have become payable 
 by him in respect of said dwelling-house, or as an inhabitant of any 
 parish in said burgh up to the preceding 15th day of May j"^ or who 
 shall have been in the receipt of parochial relief within the twelve 
 calendar months next preceding the said last day of July.^' Provided 
 also that no man shall, under this section, be entitled to be registered 
 as a voter by reason of his being a joint-occupier of any dwelling- 
 house. 
 
 The ' inhabitant occupier ' need not have resided in the same successive 
 dwelling-house during the whole year ; for ' different premises oo^pat'on- 
 ' occupied in immediate succession^' by any person as owner or 
 
 qualify (Kennard f. Allan, 1879, 7 R. 1 — 
 but it is difficult to distinguish this case 
 from Bond v. St. George Parish, L.R. 6 
 C. P. 312) ; and^that it is not enough to 
 have a residence if the claimant does not 
 actually reside (Cay, Elections, 431, 436, 
 442) ; nor to have a room in the house of 
 a relative (Adair ». Murray, 1874, 2R. 11). 
 
 ^ Including tenants for not less than 
 fifty-seven years exclusive of breaks — 
 31 & 32 Vict. M. 48, sect. 59. 
 
 ^* I.e., 'any house or part of a house 
 ' occupied as <> separate dwelling ' [Act 
 1884, sect. 7 (4)] — thus omitting the 
 requirement in Act 1868, sect. 59, that, 
 where poor-rates are levied, the occupier 
 should be separately rated. 
 
 '^ Exempted on his own application 
 (Sutherland v. Sinclair and Sharp v. 
 Smith, 1868, 7 M. 323, 324), not on ap- 
 plication by an unauthorised agent 
 (Sinclair v. Harper, 1868, 7 M. 324) ; nor 
 if not rated only through absence of his 
 name from the valuation roU (Ross </. 
 Gilchrist, 1868, 7 M. 323). Exemption 
 during any part of the year suffices 
 (Stewart v. Bainetson, 1868, 7 M. 324). 
 The remedy, where persons have been 
 improperly or erroneously omitted from 
 the list on the ground of exemption, is 
 given in Act 1868, sect. 17. 
 
 ™ See Boss o. Gilchrist, supra, ^. 
 
 Not including arrears due for earlier 
 years (Hewat v. Henderson, 1874, 2 R. 
 12). As to the form of the ' demand- 
 ' note,' see Act 1868, sect. 18, and Mac- 
 kenzie V. King, 1875, 3 R. 8. 
 
 ^ Receipt of relief for an idiot child 
 does not exclude the father (Gilmour «. 
 Cannon, 1873, 1 R. 12) ; nor is a voter 
 excluded by receiving relief after 31st 
 July in the year of the claim (Davidson 
 I. Cannon, 1879, 7 R. 41) ; nor does 
 medical or surgical relief to the claimant 
 or any member of his family disqualify 
 (48 & 49 Vict. u. 46); and it is not 
 enough to call a dole from the poor's 
 funds a ' donation ' to make it charity 
 instead of relief (Douglas ii. BaUingall, 
 1885, 13 R. 78). A person on the elec- 
 toral roU may vote, though a pauper — 
 Anstruther v. WUliamson, 1886, 13 R. 
 577. 
 
 ^" In the same burgh, though not 
 necessarily in the same division of it (48 
 
 6 49 Vict. u. 23, sect. 10) : or in the 
 same county and also in the same division 
 of it, if it is divided for the purposes of 
 representation (Stewart v. Allan, 1868, 
 
 7 M. 315). It seems the better reading 
 of the definition of ' burgh ' in Act 1868, 
 sect. 59, to admit of successive occu- 
 pation in difEerent burghs in a district of 
 burghs as qualifying. An interval of 
 
552 PRIVILEGES AND PUBLIC BURDENS INCIDENT TO TENANCY. 
 
 ' tenant during the twelve calendar months next previous to the 
 ' last day of July in any year shall have the same effect in quali- 
 ' fying such person to vote for a burgh or county respectively as 
 ' a continued occupancy of the same premises in the manner herein 
 ■ provided' (Act 1868, sect. 13). The rule of burgh franchise 
 law prior to the Keform Act of 1884^9 is now general — that 
 occupancy of the same or of different premises within the same 
 ambit under the title of owner for one part of the qualifying 
 period and of tenant for another part gives a good qualification. 
 It is probably competent to combine this ' household ' occupation 
 and the 'service' inhabitancy, which qualifies under the 3rd 
 section of the Act of 1884.30 
 (6) Occupation Qualification. 
 Assimilated in The occupation qualification in counties and burghs is assimi- 
 bu"gh'!^^" lated by the 5th section of the Keform Act of 1884,8i in the 
 following terms : — ' Every man occupying any land or tenement ^^ 
 ' in a county or borough in the United Kingdom of a clear yearly 
 ' value ^^ of not less than ten pounds shall be entitled to be 
 ' registered as a voter, and when registered, to vote at an elec- 
 ' tion for such county or borough in respect of such occupation, 
 ' subject to the like conditions respectively as a man is at the 
 ' passing of this Act entitled to be registered as a voter and to 
 ' vote at an election for such county in respect of the county 
 ' occupation franchise, and at an election for such borough in 
 ' respect of the borough occupation franchise.' The effect of 
 this enactment in regard to the county occupation qualification 
 is simply to reduce the value of the qualification from £14 to 
 £10, and, in regard to the burgh occupation qualification, to 
 leave it exactly as it was. For the ' county occupation franchise ' 
 means ' the franchise enacted by the 6th section of the Repre- 
 
 about a fortnight in which the claimant 315 ; Greig v. MacCreath, 1882, 10 K. 11. 
 resided in an inn disqualified (Adair v. ^^ See Nicolson, Analysis, p. 13. 
 Kay, 1874, 2 R. 9). The claim should =' 48 & 49 Vict. c. 3. 
 narrate the whole of the qualifying oocu- ^^ These words include ' any part of a 
 pancies (Hill o. Collins, 1868, 7 M. 283 ; ' house separately occupied for the pur- 
 Wilson v. Kerr, 1878, 6 R. 21). The ' pose of any trade, business, or profes- 
 assessor'a list requires only to have the ' sion,' and ' lands and heritages ' (sect, 
 last (Adshead v. Wright, 1868, 7 M. 283). 11). The last expression is defined in 
 But it the applicant have changed his the Valuation- Act, 17 & 18 Vict. c. 91, 
 occupancy before the sheriflt considers his sect. 42 ; and includes shootings apart 
 claim he must claim on his new occu- from as well as together with buildings— 
 pancy in order to get on the roll— Smith Paterson v. Johnston, 1879, 7 R. 17— and 
 V. M'Donald, 1886, 14 R. 125. salmon-fishings— Dunn i: Cotesworth 
 29 Hannah i. Dodds, 1875, 3 R. 7. 1874, 2 R. 5. ' 
 The old county rule contra is laid down ^ I.e., • the annual value as appearing 
 in Moncrieff i. Dalgleish, 1868, 7 M. ' in the Valuation Roll ' (ibid.). 
 
PARLIAMENTARY FRANCHISE: OCCUPATION IN COUNTIES. 553 
 
 ' sentation of the People (Scotland) Act, 1868:' and the 
 ' borough occupation franchise ' means ' the franchise enacted 
 ' by the 11th section of the Act of the session of the second 
 ' and third years of the reign of King William the Fourth, 
 'chapter sixty-Eve [the Reform Act of 1832].' ^^ And these 
 enactments are as follows : — 
 
 (1) County Occupation Franchise. 
 
 The Act of 1868, sect. Q?^ provides :»'' — 
 
 Every man shall be entitled to be registered as a voter, and when 
 registered to vote at elections for a member to serve in Parliament for a 
 county, who, when the sheriff proceeds to consider bis right to be inserted 
 or retained in the register of voters is qualified as foUow.s, that is to 
 say:— 
 
 1. Is of full age and not subject to any legal incapacity ; and 
 
 2. Is and has been during the twelve calendar months immediately 
 
 preceding the last day of July ''' in. the actual personal occupancy *' 
 of lands and heritages within the county, of the annual value of 
 
 ^ Ibid., sect. 7 (6 and 7). 
 
 »= 31 & 32 Vict. y>. 48. 
 
 ^^ See the notes on pp. 550, 551, to 
 which the following are merely supple- 
 mentary. 
 
 ^ Waddell v. M'PhaU, 1865, 4 M. 130. 
 A tenant with a Whitsunday and separa- 
 tion ish cannot claim on possession of the 
 whole farm in the year of removal j 
 though perhaps he might claim on the 
 arable part — MUler v. Robertson, 1878, 
 6 R. 15. As to non-beneficial possession 
 during repairs at entry, see Donaldson v. 
 Arrol, 1879, 7 K. 8. 
 
 ^ If the occupant be a tenant, it will 
 not aSect his claim that he has become 
 bankrupt, since he is left in possession — 
 Sutherland v. Forbes, 1868, 7 M. 316 ; 
 Halley v. Eadie, 1878, 6 R. 11. But his 
 right must be other than fiduciary or 
 in security — (see Gaims v. Blackwood, 
 1882,10 R. 1) ; or defeasible at the will 
 of the landlord — (Damley v. Stewart, 
 1868, 7 M. 313 ; Brown v. Smith, 1873, 1 
 R. 5). This occupancy does not apply to 
 a sporting privilege reserved to the land- 
 lord and his friends — Girvan v. Camp- 
 bell, 1875, 3 R. 1. If a tenant assign 
 who is not entitled to assign, the act 
 probably disables both himself and his 
 assignee from getting on the roll till the 
 landlord intimates bis intention to re- 
 cognise the transaction or not — Andrew 
 
 V. Smith, 1868, 7 M. 312 ; see Young v. 
 Newbigging, 1873, 1 R. 1. The old rules 
 regarding defeasibility with office are 
 superseded by the service franchise. As 
 to the qualification of non-occupant ten- 
 ants (mainly principal lessees) see Nicol- 
 son, Elections, 46, 64, and infra, p. 556. 
 The phraseology here is equivalent to the 
 expressions ' personal possession,' ' actual 
 ' occupation ' in the Reform Act of 1832, 
 sect. 9, and means natural possession in 
 the technical sense, differing from resid- 
 ence on the one side, and civil possession 
 on the other (through subtenants, for ex- 
 ample). SeeWeatherhead^!. Moffat, 1878, 
 
 6 R. 20 ; Johnston v. Buchanan, 1879, 7 R. 
 
 7 ; Lunan v. Allan, 1880, 8 R. 13. The 
 qualification is not, however, lost, though 
 during a part of the qualifying period, 
 not exceeding four months on the whole, 
 the claimant has, by letting or otherwise, 
 permitted the qualifying premises to be 
 occupied as a furnished house by some 
 other person (43 & 44 Vict. c. 6). In 
 the case of a bowing of cows (supra, p. 
 255) everything will turn on the question 
 whether in the actual case there is 
 occupation of land ; and in the case 
 of grass parks, continuity of possession 
 throughout the year will have to be 
 proved (see Campbell v. Marshall, 1868, 
 7 M. 312). 
 
554 PRIVILEGES AND PUBLIC BURDENS INCIDENT TO TENANCY. 
 
 fourteen pounds or upwards, as appearing on the valuation roll of 
 
 such county.^' 
 Provided that no man shall under this section be entitled to be registered 
 who at any time during the said period of twelve calendar months shall 
 have been exempted from payment of poor-rates on the ground of in- 
 ability to pay; or who shall have failed to pay on or before the 1st day 
 of August in the present or the 20th day of June in any subsequent 
 year, all poor-rates (if any) that have become payable by him in respect 
 of said lands and heritages up to the preceding 15th day of May; or who 
 shall have been in the receipt of parochial relief, within twelve calendar 
 months next preceding the said last day of July. 
 
 Proof of In registration questions the title of a tenant is proveable 
 
 enancy. prout de jure, except in cases where personal occupancy is by the 
 Reform Act of 1832, sect. 9, dispensed with or the claim is laid 
 on payment of a grassum.""" But the rule (in order to avoid 
 fictitious qualifications) is practically the same as that which 
 holds generally in regard to the constitution of leases, since in 
 cases where the alleged title is a lease for more than a year some 
 writ instructing such a right seems to have always been required." 
 Where writs are produced, not merely to instruct the requisite 
 possession, but to prove title, they will not be looked at if not 
 appropriately stamped.*^ The title must be such that it does 
 not suffer from ex facie invalidity,*^ and, except -sphere there has 
 been an excamb of possession,** it must have been dated and 
 delivered and the title otherwise completed prior to the enfran- 
 chising period.*' 
 
 Joint tenancy. Joint tenants have each a vote provided the annual value of 
 the subjects held by them be sufficient when divided by their 
 
 ^ If part of a. subject is sublet, the <2 Tait v. Haldane, supra, " ; Miller 
 
 value of the part retained may be proved v. M'Curraoh, 1878, 6 K. 10 ; and see 
 
 extrinsecus — Eeid v. Mathieson ; Donald- later cases of ownership— Skeete v. Tum- 
 
 Bon V. M'Farlane, 1869, 8 M. 14, 22. As buU, 1879, 7 R. 14 ; Blackvirood v. Ruick- 
 
 to grass maill— Thomas v. M'Naughton, bie, 1881, 9 R. 8, and cases there. As to 
 
 1870, 9 M. 10. See interruption of con- the question how far the vaUdity of the 
 
 tinuity through subletting, though the landlord's title may be inquired into, see 
 
 subtenant's possession was only for two Stewart v. Phimister, 1868, 7 M. 313 ■ 
 
 days— Brown v. Blackwood, 1869, 8 M. Douglas v. Adair, 1874, 2 R.' 10. 
 
 ^- ^ See Nicolson, Elections, 71 ; King 
 
 « Infra, p. 556. r. Mitchell, 1870, 9 M. 15. As to the 
 
 " Cay, 291, 362 ; Tait v. Haldane, 1865, question, whether it is jus tertii to object 
 
 3 M. 416 ; Rutherford v. Laidlaw, 1863, see cases there, and Skeete v. Buchanan' 
 
 2 M. 174 ; Rutherford J). Dunn, 1872, U 1879, 7 R. 15. ' 
 
 M. 4 ; CampbeU v. MarshaU, 1868, 7 M. « Paterson v. Millar, 1878, 6 R 22 
 
 312, but see Hilson v. Fairs, 1870, 8 « Duncan v. Smith,' 1869, 8 M. 12 ; 
 
 Sc.L.R. 39, and Skeete v. AUan, 1879, 7 Rea v. Thomas, 1870, 9 M. 8.' 
 R. 15 (joint-tenant). 
 
COUNTY OCCUPATION FRANCHISE. 555 
 
 number to give each of them the money qualification,*^ and ' pro- 
 ' vided always that no greater number of persons than two shall 
 ' be entitled to be registered as . . . joint tenants of the same 
 ' lands and heritages unless their shares or interests in the same 
 ' shall have come to them by inheritance, marriage,*'^ marriage- 
 ' settlement, or mortis causa conveyance, or unless such . . . 
 ' joint tenants shall be bond fide engaged as partners carrying on 
 ' trade or business *^ in or on such lands and heritages.' *' The 
 operation of the 13th section of the Act of 1868 with regard to 
 successive occupancy has been already noticed. It is necessary 
 to add that (joint tenancy being available here, though not under 
 the household franchise) continuous occupation partly as sole and 
 partly as joint tenants of the same subjects is enough if the 
 joint interest be adequate under the above rule.^" Seeing that 
 the statutory period is different in the ownership and in the 
 occupation sections of the Act of 1868 successive occupation as 
 owner and tenant cannot be combined.*^ The same rules apply 
 to the combination of occupancies held simultaneously ; *^ but a 
 long leaseholder is not regarded as an owner in this relation.'^ 
 The provision in the 9 th section of the Reform Act of 18.32 for 
 enfranchising one who inherits or obtains by marriage-settlement 
 or mortis causa disposition right to a qualifying lease within the 
 qualifying period is carried over to the new constituency by the 
 Act of 1884.5* 
 
 (2) Burgh Occupation Franchise. 
 
 The 11th section of the Reform Act of 1832,*^ so far as 
 relevant to the present matter, runs as follows : — 
 
 Every person pot subject to any legal iacapacity shall be entitled to 
 be registered as hereinafter directed, and to vote at elections for any 
 
 *^ Not the actual value of their interest ^ Blackwood v. Moffat, 1870, 9 M. 7. 
 
 (Blair v. Torrance, 1868, 7 M. 319). (Question as to different subjects and 
 
 f The insertion of this word here and successive joint tenancies of these not 
 
 in Act 1832, sect. 9, does not qualify a decided). 
 
 husband either as sole or joint tenant of ^' Mouorieff v. Dalgleish, 1868, 7 M. 
 
 premises of which the real tenant is his 315 ; Greig v. M'Creath, 1882, 10 R. 11. 
 
 wife (Blair v. Baptie, 1865, i M. 124 ; '"- Stewart v. ScouUer, 1S69, 8 M. 11 ; 
 
 M'Queen v. Dunn, 1874, 2 E. 3). Blackwood v. Moffat ; and Hilson v. 
 
 ^ Including farming (Semple v. Laidlaw, 1870, 9 M. 7, 12. 
 
 M'Kirdy, 1868, 7 M. 317) ; and though ^^ Kirk v. M'Gowan, 1870, 9 M. 11. 
 
 the claimant reside furth of Scotland *' Sect. 7 (8) ; Stalker v. Young, 1885, 
 
 (Stewart v. Smith, 1868, 7 M. 318) ; and 13 K. 77. 
 
 his alleged partner be a minor (Black- ^ 2 & 3 Will. IV. c. 65. Many of the 
 
 wood V. Thorburn, ibid.). Seethe sec- expressionsaresimilar to those illustrated 
 
 tion observed on in Thomas v. M'Nab, in the above notes, which are therefore 
 
 1870, 9 M. 9. here only referred to generally. 
 
 « Act 1868, sect. 14. 
 
556 PRIVILEGES AND PUBLIC BURDENS INCIDENT TO TENANCY. 
 
 of the cities, burghs, or towns, or districts of cities, burghs, or towns here- 
 inbefore mentioned, who when the sheriff proceeds to consider his claim 
 for registration, shall have been for a period of not less than twelve 
 calendar months next previous to the last day of . . . July in any future 
 year in the occupancy . . . as . . . tenant of any house, warehouse, counting- 
 house, shop, or other building =« within the limits of such city, burgh, or 
 town which either separately or jointly with any other house, warehouse, 
 counting-house, shop, or other building within the same limits, or with 
 any land owned and occupied by him or occupied under the same land- 
 lord and also situate within the same limits, shall be of the yearly value 
 of ten pounds : Provided always that the claimant shall have paid on or 
 before the 20th day of . . . July in any future year, all assessed taxes,"' 
 which shall have become payable by him in respect of such premises, 
 previously to the 6th day of April then next preceding : Provided also 
 that no such person shall be entitled to be registered or to vote in . . . any 
 future year unless he shall have resided for six calendar months next 
 previous to the last day of . . . July in any future year within such city, 
 burgh, or town, or within seven statute miles of some part thereof : ^' . . . 
 Provided also that no person shall be entitled to be registered or to vote 
 for any city, burgh, or town, who shall have been in the receipt of 
 parochial relief within twelve calendar months next previous to the last 
 day of . . . July in any succeeding year. 
 
 (3) Franchises Saved in the Reform Act of ISSJ/.. 
 Tenancy quaii- The Keform Act of 1884^9 by its 10th section saves the 
 ficationof j.jgjj^ ^jf g^jjy person who, on 6tli December 1884, was on the 
 roll, to be from time to time registered and to vote, as if the 
 Act had not passed. But if that Act would also qualify him, the 
 new qualification is alone entered on the roll. In the present 
 connection, it is only necessary to refer in a few words to the 
 tenancy qualification (apart from occupancy and residence) con- 
 ferred by the Reform Act of 1832, sect. 9, on tenants holding 
 under leases for not less than fifty-seven years (exclusive of 
 breaks at the option of the landlord),^" or for life, where the 
 clear yearly value to them is not less than £10, or for not less 
 than nineteen years, with a clear yearly value of £50 ; or where 
 they have paid a grassum of £300. Cases such as these seldom 
 
 ^' As to a pig-sty, not constantly to form the same parliamentary burgh 
 
 tenanted, and situated on a farm partly (48 & 49 Vict. o. 23, sect. 13 [3]). 
 
 within a burgh, see Johnston v. Guild, ^' 2 & 3 Will. IV. c. 65. 
 
 1884, 12 R. 42. ^ These are 'owners,' and if holding 
 
 ^ Now inhabited house duty, 13 & 14 jointly, are joint tenants in the sense of 
 
 Vict. c. 36, and later Acts. See Gray v. the Act 1884, sect. 4 (2), which qualifies 
 
 Stewart, 1868, 7 M. 285. only one of them to vote — Cunninghame 
 
 ^ For the purposes of measurement v. Grossart, 1886, 14 R. 121. 
 all the divisions of a burgh are deemed 
 
MUNICIPAL FEANCHISE. 557 
 
 occur in modem practice, and it will be enough to refer here to 
 the statute and the most recent commentary on it.^^ 
 
 c. Municipal Franchise in Royal and Parliamentary 
 Burghs. 
 
 In these burghs the municipal is the same as the parlia- 
 mentary franchise.^^ In royal burghs it is besides conferred on 
 persons who possess the qualifications within the royalty but 
 beyond the parliamentary boundary, or within any extension of 
 the municipal boundary beyond the royalty or parliamentary 
 boundary, or in burghs which do not send or contribute to send 
 a member to Parliament : in parliamentary burghs, also on 
 those who possess the qualifications within the municipal bound- 
 aries where these extend beyond the parliamentary limits. To 
 this constituency are now added females who are not married 
 and married females not living iu family with their husbands, 
 provided in each case they are otherwise qualified.*^ 
 
 II. Public Burdens of Tenants and the Coerelative 
 Privileges. 
 
 A. Parochial. 
 
 1. Parochial Ecclesiastical Burdens. 
 
 No part of these burdens — which are connected with the 
 provision and maintenance of parish churches, manses, glebes, 
 and ministers' grass — is thrown on tenants, since the word 
 ' parochiners ' in the old Acts which regulate the burdens has 
 been from the first read as meaning ' heritors ' only.^* And 
 though under the 6 th section of the Valuation Act ^^ a lessee of 
 lands and heritages for more than twenty-one years, or in the 
 case of minerals for more than thirty-one years, ' shall be deemed 
 ' and taken to be also the proprietor of such lands and heritages 
 ' in the sense of this Act,' it has been determined that that 
 statute was not intended as a taxing Act, introducing a liability 
 where it did not before exist, and therefore did not throw these 
 burdens on persons in that position. ^^ 
 
 *^ Nicolson, Election?, 46, 71. sect. 24 (continued annually). 
 
 «2 3 & 4 Will. IV. cc. 76, 77 ; 20 & 21 « Act of Secret Council, 1563, in 13 S. 
 
 Vict. c. 70; 24 & 25 Vict. c. 36; 31 & 158; 1572, c. 54; 1597, c. 232; 1617, 
 
 32 Vict. c. 108 (the leading Act). c. 6. 
 
 ^ 44 Vict. c. 13, sect. 2. As to dia- i" 17 & 18 Vict. c. 91. 
 
 qualification through corrupt or illegal ™ M'Laren v. Clyde Trs., 1865, 4 M. 
 
 practices at elections, see 31 & 32 Vict. 58, afif. 6 M. (H.L.) 81 ; and see Tra- 
 
 c. 43, sect. 8 ; 46 & 47 Vict. o. 51, sects. quair's Trs. u. Innerleithen Her., 1870, 
 
 6, 9, 10, 36, 37 ; 35 & 36 Vict, c, 33, 9 M. 234. 
 
558 PRIVILEGES AND PUBLIC BCJBDENS INCIDENT TO TENANCY. 
 
 On owners and 
 occupiers. 
 
 Classification. 
 
 Deductions. 
 
 2. Poor-Rates. 
 
 These, when levied under the Poor Law Act of 1845,«^ can 
 now^s be levied only in one mode, viz. : to the extent of one- 
 half from the owners, and to the extent of the other half from 
 the tenants or occupants of all lands and heritages within a 
 parish or combination, rateably according to the annual value of 
 such lands and heritages (Act 1845, sect. 84). Under the 
 head of ' owners ' are included tenants of land whereon bouses 
 have been or shall be built by them under building leases (sect. 
 44) ; and tenants under long leases generally, where substantially 
 the ownership had passed to the lessee.''^ The term ' occupant''" 
 is wider than ' tenant ' ; yet in one case the tenant is not an 
 occupant, for the lessor of a house let furnished remains the 
 occupant and pays the rates and taxes. ''^ The assessment is made 
 in such a way that half of it is laid on the owners as a class, 
 and the other half on the tenants or occupants as a class ;^^ so 
 that it may easily happen that on account of there being much 
 unoccupied property, or much poverty, the amount per pound 
 laid on the former may be less than the rate laid on the latter 
 class. '^^ 
 
 The rental '* is taken to be the ' annual value ' of subjects 
 let, whatever be the nature of the premises. This is a fallacious 
 criterion of income where they are put to uses so diverse as are 
 farms, dwelling-houses, shops, factories, and mines. It is, there- 
 fore, 'lawful for the Parochial Board, with the concurrence of the 
 ' Board of Supervision, to determine and direct that the lands 
 ' and heritages may be distinguished into two or more separate 
 ' classes according to the purpose for which sucb lands are used 
 ' and occupied, and to fix such rate of assessment upon the 
 ' tenants or occupants of each class respectively, as to such 
 ' Boards may seem just and equitable' (sect. 36) — the aim being 
 to reach the probable means of the ratepayer, so far as to be 
 gathered from the rent he pays.''^ 
 
 Another element of variation emerges where the deductions, 
 which must be made from the gross value in the valuation roll 
 
 «? 8 & 9 Vict. c. 83. 
 
 «a 24 & 25 Vict. c. 37. 
 
 '' Barrhead Ky. v. Caledonian E,y., 
 1855, 17 D. 1148, rev. 22 D. (H.L.) 1. 
 
 ™ See L.N.-W. By. „. Buckmaster, 
 L.R. 10 Q.B. 70. 
 
 '"■ Macome v. Dickson, 1868, 6 M. 
 898 — at least in a question of relief. 
 
 ''' See questions between outgoing and 
 
 incoming tenants in Guthrie's Dec. 340, 
 342. 
 
 '= Galloway v. Nioolson, 1875, 2 R. 650; 
 but see Macdonaldi). Armour, infra, p. 568. 
 
 '* As to established usage retainable, 
 see sect. 35, and CroU v. Sc. Central Ey., 
 1861, 23 D. 747. 
 
 '^ B. of Supervision's Circular, 30th 
 April 1868. 
 
POOR-RATES. o 5 9 
 
 on account of repairs, insurance, and other expenses necessary to 
 maintain the lands and heritages in their actual state, differ in 
 regard to different classes of subjects, as must necessarily be the 
 case (sect. 37).^^ The rates, taxes,"'^ and public charges payable 
 in respect of the subjects rated are also deducted from the gross 
 rent ; and no mine or quarry can be assessed, unless it has been 
 worked during some part of the year preceding the day on which 
 the assessment is ordered to be levied (ibid.). 
 
 The actual levy does not necessarily follow these rules. For, incidence of 
 on the one hand, the collector of such assessment may ' levy the ^'^' 
 ' whole thereof from the tenants or occupants, who shall be 
 ' entitled to recover one- half thereof from the owners, or to retain 
 ' the same out of their rents, on production of a receipt granted 
 ' by the collector ' (sect. 43); but this mode of collection is only 
 available when the rate laid on owners and occupiers is equal.''* 
 On the other hand, ' where any lands or heritages shall be 
 ' separately let at a rent not amounting to £4 per annum, and 
 ' the names of the occupiers thereof shall not have been entered 
 ' on the valuation roll, the proprietor of such lands and herit- 
 ' ages shall be charged with and have to pay the whole of the 
 ' assessments on such lands and heritages separately let as afore- 
 ' said ' — with relief for reimbursement so far as they are tenant's 
 charges. ^^ And, apart altogether from the amount of the rental,^" Exemptions, 
 the Parochial Board may ' exempt from payment of the assess- 
 ' ment or any part thereof, to such an extent as may seem proper 
 ' and reasonable, any person or class of persons on the ground of 
 ' inability to pay.' *^ 
 
 The correlative privilege conferred on tenants and occupants is Vote for Paro- 
 the right to vote at the election of the elective members of the " °^'^ ' 
 Parochial Board. In burgal parishes and combinations, occupants 
 (like owners) have votes rising in number from one to six each 
 according as the annual value of the subjects they occupy is less 
 than, or exceeds £20, or exceeds £40, £60, £100, or £500, 
 ' and when any occupant shall also be the owner of lands and 
 
 '^ In regard to public worka — see *' 8 & 9 Vict. n. 83, sect. 42. As to 
 
 Smith, Poor Law, p. 167 ; Eeid, Poor other exemptions, see Smith, 114, 182 ; 
 
 Law Digest, 66 seqq. Reid, 94 ; Rankine, Landownership, 94, 
 
 '^ Not income tax, which is a personal the principal of these in the present 
 
 impost, Ed. and Gl. Ry. v. Hall, 1866, 4 connection being in favour of premises 
 
 M. 1006. occupied purely for religious, charitable, 
 
 ™ Galloway v. Nicolson, ttipra,^' scientific, or fine art purposes. The sub- 
 
 T' 17 & 18 Vict. 0. 91, sect. 31. ject is well treated by D. Crichton in 9 
 
 »> Douglas V. Dickie, 1868, 1 Poor L. Poor L. Mag., N.S. 393, 449. 
 Mag., N.S. 365. 
 
560 PRIVILEGES AND PUBLIC BURDENS INCIDENT TO TENANCY. 
 
 ' heritages and assessed in both capacities, he shall be entitled to 
 ' vote as well in respect of his ownership as of his occupancy. . . : 
 ' Provided always that no person shall for himself have more 
 ' than six votes in all, and that no person shall be entitled to 
 ' vote who shall have been exempted from payment of his rates 
 ' or assessment for relief of the poor on the ground of inability 
 ' to pay, or who shall not have paid all such rates and assess- 
 ' ments assessed upon and due from him at the time of so 
 • voting ' ^2 (sect. 1 9). In parishes not burgal or combined, 
 the elective members of the Board are determined by the votes 
 of the persons assessed under the Poor Law Act, not being 
 owners of subjects assessed at £20 a-year, or members of the 
 Board as representing a town council or the kirk-session. The 
 number of votes rises according to the value of the laud occupied, 
 conform to the above scale, and subject to the same provisoes 
 (sect. 24). Corporations, companies, and joint occupants vote 
 through a member or oflScer, or one of the joint occupants (sect. 
 25).«3 The qualification of a candidate is, in the case of burgal 
 parishes and combinations, fixed by the Board of Supervision at 
 a sum (for ownership or occupancy) of not more than £50 a-year 
 (sect. 17). In other parishes it consists simply of belonging 
 to the electorate (sect. 23). The tenure of office is for one year 
 (sects. 18, 23). 
 3. School Rates.^ 
 School rates. The expenses of the School Board are paid out of the school 
 fund, any deficiency in which is met by a local rate called the 
 school-rate (sects. 43 and 44 of the Act of 1872). The School 
 Board annually, not later than 12th June, certifies the deficiency 
 to the Parochial Board, or other authority** charged with the duty 
 of levying the assessment for the relief of the poor, and the sum 
 is then added to the next poor-rate levied and collected with it 
 and paid over to the School Board, without deducting anything 
 for the expense of levying and collection (ibid. sect. 44).^^ If 
 the ambit of the School Board includes two or more parishes or 
 parts of two or more parishes, it certifies to each Parochial Board 
 the amount of the rate on each pound of rental which they are to 
 collect as school rate along with the poor-rate in their respective 
 districts. If no poor-rates are levied, the School Board assesses 
 
 *^ As to division into wards, see sect. c. 46 ; 46 & 47 Vict. c. 56. 
 
 20. ^ This refers to oases where the Poor 
 
 *' See the rules for elections, Smith, Law Act has never been adopted. 
 
 Poor Law, 20, 26. *" Amended by 41 & 42 Vict. e. 78. 
 
 " 35 & 36 Vict. u. 62 ; 41 & 42 Vict. 
 
SCHOOL-EATES. 561 
 
 for and levies the school-rate as if it were poor-rate, and with all 
 the powers of a Parochial Board, ' and the school-rate shall in all 
 ' cases be levied and collected in the same manner as poor's 
 ' assessment, and the laws applicable for the time to the imposi- 
 ' tion, collection, and recovery of poor's assessment shall be 
 ' applicable to the school-rate ' (ibid.).^''^ But the exemption of 
 parish ministers from liability, either as owners or occupants, for 
 poor-rate in respect of their manses and glebes does not extend 
 to school-rates.^^ 
 
 The corresponding privilege is the right to vote in a School Vote for 
 Board election. It is bestowed on ' all persons being of lawful " °° °^ ' 
 ' age and not subject to any legal incapacity, whose names are 
 ' entered on the latest valuation roll applicable to the parish or 
 ' burgh for which the Board is to be elected, made up and com- 
 ' pleted not less than one month prior to the election as owners 
 ' or occupiers of lands and heritages of the annual value of not 
 ' less than £4, situated within such parish or burgh.'^^ An 
 opinion, issued'" soon after the passing of the Act, and gener- 
 ally acted on since, reads this clause as including unmarried 
 women, joint occupants (where the value when rateably divided 
 is sufficient for all), and occupants of subjects separately entered 
 and coming up to the qualifying value on the aggregate ; and as 
 excluding corporations, companies, and firms, persons occupying 
 in a fiduciary capacity only, tenants not in occupation, lodgers, 
 bankrupts, and married women. 
 
 B. Paeochial-Buegal Burdens. 
 
 There are certain burdens, which are distributed among the 
 ratepayers according to parish areas in landward districts, and 
 according to burgal areas elsewhere. In the former case the 
 Local Authority — as the managing body is termed — is the 
 Parochial Board ; in the latter case it consists of the Town 
 Council or Police Commissioners (or Trustees), as the case may 
 be. The aims of the statutes thus administered are very various. 
 
 1. The Public Health Acts.^^ 
 
 In the case of burghs having a population of 10,000 or in large 
 upwards according to the census last taken, or having a local '""^''°" 
 Act for police purposes which makes suitable and sufficient pro- 
 
 '^ As to borrowing see sect. 45. * Per Sol. -Gen. Rutherfurd Clark, 
 
 ^ Hogg V. Auchtermuchty Sch. B., 1873, in Marwick, Sch. B. Elections, 
 
 1880, 7 K. 986 ; Gillanders v. Campbell, 13 ; Sellar, 158. 
 
 1884, 12 R 309. '^ 30 & 31 Vict. u. 101 (the principal 
 
 89 35 & 36 Vict. c. 62, sect. 12 (2) ; Act); 34 & 35 Vict. c. 38 ; 38 & 39 Vict. 
 
 see also sects. 1, 8-11 ; and 41 & 42 Vict. c. 74 ; 45 Vict. c. 11. 
 
 c. 78, sects, 29 and 30. 
 
 3N 
 
562 PRIVILEGES AND PUBLIC BURDENS INCIDENT TO TENANCY. 
 
 visiou for domestic water supply,^^ the assessment is levied by 
 the Local Authority along with, but as a separate assessment 
 from, any other assessment which they may be entitled to levy, 
 i.e., the police assessment, or (if there be none such or where 
 the Local Authority is a Parochial Board) the assessment for the 
 relief of the poor, or an assessment laid on in like manner thereto 
 (Act 1867, sect. 95). The value for this purpose of certain 
 subjects (canals and railways apart from buildings used in con- 
 nection therewith ; underground water and gas pipes and works ; 
 woodland, arable, meadow, pasture, or other land used for agri- 
 cultural purposes ; mines, minerals, and quarries ^^) is taken at 
 the nearest aggregate sum of pounds sterling to one-fourth of the 
 entry in the valuation roll (ibid.).^* A special drainage assess- 
 ment may be imposed under the same rules (sects. 98-5). 
 In small In other cases — i.e., where the area is a burgh with a popula- 
 
 parfshes.^'"' *" tion of less than 10,000 and not having a local Act for police 
 purposes or having one which does not sufficiently provide for 
 domestic water supply, or is a parish, so far as not situated out- 
 with the district of the Parochial Board, the same rules apply, 
 with the following modifications. The classification of subjects 
 extends only to cases where the Local Authority are a Town 
 Council, Police Commissioners (or Trustees), or a Parochial 
 Board having a district including a burgh or police burgh. And 
 a special water supply rate, if resolved on, is levied under the 
 same rules (sects. 89, 94).'* 
 2. Similar Burdens. 
 Registration of The expenses connected with the registration of births, deaths, 
 births, &0. g^jj^j marriages ®^ are defrayed, so far as not otherwise provided 
 for, by an assessment made and levied in the same manner as 
 and along with but separate from the poor-rate (where such a 
 rate exists) in non-burgal parishes, and where it does not exist 
 according as the sheriff shall direct (sect. 50) ; and by assess- 
 ment on the real rent of lands and heritages within burgh (sect. 
 66). 
 Burial The assessment leviable under the Burial Grounds Act, 
 
 grounds. 1855,8^ whether laid on by the Town Council in burghs, or by 
 
 ^ 30 & 31 Vict. 0. 101, sect. 95, burghs, as to drainage and water supply, 
 
 amended by 34 & 35 Vict. u. 38, sect. 1. in the Lindsay Act, 25 & 26 Vict. c. 101, 
 
 '"' Quoad domestic water supply rating sects. 182 seqq., and Edmonstone v. Kil- 
 
 manufaotories in burgh have the same syth Comrs., 1882, 9 E. 917. 
 
 privilege— 34 & 35 Vict. i>. 38, sect. 1. "= 17 & 18 Vict. c. 80 ; amended by 18 
 
 " As to the maximum rate per pound & 19 Vict. 29 ; 23 & 24 Vict. u. 85 ; 42 
 
 see ibid, and 34 & 35 Vict. c. 38, sect. 1. & 43 Vict. o. 8. 
 
 '' See the ftlterpative powers in police ^ 18 & 19 Vict. c. 68. 
 
PAEOCHIAL-BURGAL BU1!DENS. 563 
 
 the Parochial Board elsewhere, is to be raised ' in the same way as 
 ' that which may be in force for the time being for the relief of the 
 ' poor within the parish ' (sect. 26).^^ 
 
 The expenses incurred under the Smoke Nuisance Acts are Smoke nuis- 
 defrayed by means of a rate leviable along with and in like *"''^' 
 manner as the poor-rate.^" 
 
 Bakehouses are regulated by the Local Authority which ad- Bakehouses, 
 ministers the Public Health Act at the charge of the rate which 
 it is entitled to raise. ^'•'' 
 
 The expenses — not exceeding a penny in the pound of yearly Public 
 rent — which may be raised under the Public Libraries Acts.i"! •fUbianes. 
 they are adopted by the householders/**^ are payable out of the 
 Police Rate, where that rate is levied in a burgh or populous 
 place, and in parishes elsewhere out of a rate leviable in the 
 same way as the poor-rate (sect. 5). 
 
 There is a long series of statutes which deal with lodging- Housing of 
 houses for the labouring classes, ^°^ dwellings for artizans and^asses.^ 
 labourers,^"* the improvement of these dwellings,^"^ and the 
 housing of the working classes. ^"^ It is enough to say that the 
 administration of these Acts lies with the Local Authority under 
 the Public Health Acts, and that the necessary funds are levied 
 along with, but as a separate assessment from, the Public Health 
 Assessment.^"" 
 
 Any expenses incurred by a Local Authority in the execution Rivers 
 of the Rivers Pollution Act, 1876,^°^ are payable as if they were ^ " "*"■ 
 expenses properly incurred under the Public Health Act. 
 
 The local rate under the Public Parks Act, 1878,1"^ is levied Public parks, 
 and recovered along with, but as a separate assessment from, the 
 public health rate. 
 
 G. County and Similar Burgh Assessments. 
 
 The next set of public burdens are those in regard to which 
 the county is the typical area, and the burgh, as far as possible, 
 follows the type. The leading assessment in each case is the 
 
 ^ For fees of lairs and interment see c. 28 ; 30 & 31 Vict. o. 28 ; adoptable in 
 
 sects. 18, 24, and 44 & 45 Vict. t. 27. Scotland (48 & 49 Vict. c. 72, sect. 16). 
 
 «* 20 & 21 Vict. 0. 73, sects. 12-14 ; "* 31 & 32 Vict. u. 130 ; 42 & 43 Vict. 
 
 24 & 25 Vict. c. 17 ; 28 & 29 Vict. c. 102. c. 64 ; 43 Vict. c. 8 ; 45 & 46 Vict. c. 
 
 "» 26 & 27 Vict. 0. 40, sect. 7. The 54, part ii. 
 
 P.H. Act comes in place of the Nuisance '"^ 33 4 39 yigj ^ 49 . 43 Vigt c. 2 
 
 Removal Acts there referred to. (Scotch Acts). 
 
 "1 30 & 31 Vict. c. 37, amended by 34 "« 48 & 49 Vict. c. 72. 
 
 & 35 Vict. c. 69 ; 40 & 41 Vict. c. 54. ^<" See 38 & 39 Vict. c. 49, sect. 20. 
 
 102 Sect. 3 of first Act amended by the i«8 39 & 40 Vict. u. 75, sect. 8. 
 
 last. "' 41 & 42 Vict. c. 8, sect. 13. 
 
 1"= 14 & 15 Vict. i;. 34 ; 29 & 30 Vict 
 
564 PRIVILEGES AND PUBLIC BURDENS INCIDENT TO TENANCY. 
 
 police rate. Most of the couaty expenses, other than those 
 involved in the support of the constabulary, are defrayed out of 
 the county general assessment. In burghs, the police rate 
 provides for these miscellaneous expenses. 
 1. Police Assessment, 
 (a) In Counties. 
 County poUce. In counties and in such burghs as are, for the purposes of the 
 Act, consolidated with them, the County Police Act, 1857,"" 
 throws the burden of providing and maintaining a constabulary 
 on all lands and heritages according to their yearly value as 
 established by the valuation roll ; ' and the said assessment so to 
 ' be laid on in each year shall be payable, as for the period from 
 ' Whitsunday in such year to Whitsunday in the year immediately 
 ' following, and may be levied either on the proprietor or tenant 
 ' of all such lands and heritages ; but such tenant, in case of his 
 ' paying such assessment, shall be entitled to deduct the amount 
 ' from the rent payable by him ' (sect. 29)."^ So that this 
 impost is an owner's burden, leviable from tenants only for 
 facility of collection. ^^^ 
 (6) In Burghs. 
 Burgh PoUoe : The General Police (or Lindsay) Act of 1862,"^ authorises the 
 general rate, imposition of a general rate called the Police Assessment on ' all 
 ' occupiers of lands or premises within the burgh according to 
 ' the valuation made up and completed in terms of the Valua- 
 tion Acts, as from 15th May yearly, with a limit of 2s. 6d. or 
 Is. 6d. in the pound of the gross yearly value, according as 
 the enactments of the statute with respect to water have or have 
 not been adopted (sect. 84). Existing classifications of subjects 
 according to rental may be retained (ibid.). The rate may be 
 remitted on the ground of poverty or inability to pay (sect. 88). 
 Owners in place of occupiers are assessed where the premises are 
 let at a rent under four pounds, and a deduction of one-fourth of 
 the assessment is then allowed (sect. 87). Deduction is also 
 allowed for any period during which the premises are not let or 
 occupied for three months consecutively in any one year, and 
 owners as well as occupiers are responsible for the assessment 
 applicable to any period less than a year (sect. 89), though the 
 
 "0 20 & 21 Vict. >;. 72 ; amended by Viet. c. 79, sects. 29-34. 
 
 21 & 22 Vict. c. 65. "3 25 & 26 Vict. c. 101. The older 
 
 "1 This and the subsequent sections Act, 13 & 14 Vict. c. 33, is left standing 
 
 deal with deductions, remissions, and where it was adopted before 1862. As to 
 
 recovery. the correlative franchise, see Rankine, 
 
 ^'"' The powers are carried over into Landovraership, 187. 
 the Sheriff Court-houses Act, 23 & 24 
 
POLICE ASSESSMENT. 565 
 
 premises had never been vacant during the year.^^* A classifica- 
 tion of premises similar to that which is contained in the Public 
 Health Act^^^ is also prescribed, with the exception that mines, 
 minerals, quarries, and manufactories are only classified with 
 respect to water supply (sect. 90).^^^ 
 
 Of the special assessments authorised by the Act, the special Special assess- 
 rate leviable for meeting claims for damages caused by riot is 
 laid on occupiers), or the Commissioners may resort to the Police 
 Rate (sect. 85). The General Improvement Rate is imposed on 
 owners and occupiers in equal proportions, and may be levied in 
 that form or wholly from the occupier, subject to right to deduct 
 from his rent the owner's proportion (sect. 102). The 'Private 
 ' Improvement Assessment ' is imposed on the owner or occupier, 
 as the case case may be, who has failed or delayed to execute 
 work required of him under the Act, or has caused the Com- 
 missioners expense (sect. 103).^^^ The Gas Contingent Guarantee 
 Rate is similar in all respects to the Police Rate.^^^ 
 
 2. County General Assessment.^^^ 
 
 The incidence of this rate is precisely the same as that of the 
 County Police Assessment ; tenants may be assessed but they 
 have right of total relief by deduction of rent (sect. 4). 
 
 3. Burdens thrown on the Police or General County 
 Assessment. 
 
 The expenses connected with the administration of the follow- 
 ing statutes are thrown on the Police or County General Assess- 
 ment in counties, and on the Police Rate, or, it may be, on any 
 other funds in the hands of the Local Authority in burghs : viz., 
 the Dogs Act, 1871 ; i^" the Pedlars Act,i2i and the Petroleum 
 Act ^^2 of ti^e same year ; the Explosives Act, 1875 ;i^^ the Sale 
 of Food and Drugs Acts, 1875 and 1879 ; ^^* the Prisons i^s and 
 Reformatories 12^ Acts, and the Weights and Measures Act, 
 1878.127 
 
 "* Paisley v. MarshaU, 1881, 8 K. 480. this and the next Act see 24 & 25 Vict. 
 
 ^ Supra, p. 562. c. 47 ; 25 & 26 Vict. c. 69 ; 26 & 27 Vict. 
 
 "« See Edmonstone v. Kilsyth Comra., c. 81 ; 29 & 30 Vict. cc. 30, 72. 
 
 1882, 9 R. 917, supra, p. 562. ^=3 33 & 39 yict. c. 17. 
 
 "' Mode of collection (sects. 107-8). ^^ 38 & 39 Vict. c. 63, sects. 11, 33 ; 
 
 "8 39 & 40 Vict. c. 49, sect. 39. 42 & 43 Vict. c. 30. 
 
 "» 31 & 32 Vict. c. 82. ^ iO & il Vict. o. 53, sects. 18-21, 
 
 1^ 34 & 35 Vict. u. 56, sects. 1, 5, and 26, 43, 65 ; 41 & 42 Vict. c. 63. 
 
 Sched. 126 40 & 41 Vict. u. 53, sect. 67 ; 17 & 
 
 "1 34 & 35 Vict. c. 96, sects. 20, 21, 18 Vict. c. 86 ; 29 & 30 Vict. c. 118 ; 43 
 
 and Sched. I ; 44 & 45 Vict. c. 45. & 44 Vict. c. 18 ; 41 & 42 Vict. c. 40, 
 
 1^ 34 & 35 Vict. c. 105, sects. 8, 11, and Acts there referred to. 
 
 12 ; 42 & 43 Vict. c. 47 ; 44 & 46 Vict. ^'" 41 & 42 Vict. c. 49. 
 c. 67. As to the harbour authority in 
 
566 PRIVILEGES AND PUBLIC BURDENS INCIDENT TO TENANCY. 
 
 Incidence, 
 
 Local Anth 
 ority. 
 
 4. Contagious Diseases (Animals) Acts, 1878-1886.^^* 
 The local rate under these statutes is payable to the Commis- 
 sioners of Supply on behalf of the Local Authority in counties, and 
 to the Local Authority itself in burghs, one-half by the proprietor 
 and one-half by the tenant, or wholly by either with relief against 
 the other for half, according to the real rent of lands and herit- 
 ages as appearing in the valuation roll (sect. 70).^^" The Local 
 Authority in parliamentary burghs consists of the Magistrates and 
 Town Council. In counties (excluding such burghs) it consists 
 partly of members i^o elected by a meeting of occupiers of agri- 
 cultural subjects valued at £100 a-year, and of owners and 
 occupiers of such subjects valued at £50 and under £100 a-year; 
 or, failing an election, nominated by the Lord Lieutenant from 
 among persons of that description (sect. 69, sched. vii.) : These 
 Authorities act by committees. ^^^ 
 
 The pecuniary liability thus thrown on tenants is frequently 
 the smallest part of the burden which the Act for the common 
 good throws on their shoulders. The restrictions which the Act 
 and under it the Privy Council impose on the disposal and move- 
 ment of live stock must be sought in the statute itself. They 
 may, however, be briefly summarised as follows : — It is the duty 
 of every person having in his possession or under his charge 
 an animal affected with 'disease' (i.e., cattle-plague, contagious 
 pleuro-pneumonia, foot-and-mouth disease, sheep-pox or sheep- 
 scab), to separate it from the other stock, and with all practic- 
 Cattle-plague. able Speed to give notice to a constable ^^^ (sect. 31). If an in- 
 spector under the Act finds that cattle-plague exists or has within 
 ten days existed in any place, he so declares, serves a notice 
 thereof on the occupier, and thereby constitutes the place (cow- 
 shed, field, &c.) with contiguous lands and buildings in the same 
 occupation a place infected with cattle-plague. He may serve a 
 like notice on occupiers of premises within a mile of that place, 
 or any of them, with the same result. The Privy Council may 
 confirm the declaration and prescribe the limits of the infected 
 place, or refuse so to do (sect. 10). And it may make the 
 declaration on receipt of any evidence whatsoever (sect. 11); 
 
 Rules as to 
 disposal and 
 movement of 
 live stock. 
 
 Intimation of 
 disease. 
 
 128 41 & 42 Vict. c. 74 ; 47 & 48 Vict, 
 cc. 13, 47 ; 49 & 50 Vict. c. 32. 
 
 i'^» The last Act [sect. 9 (3 and 7)] 
 throws the expenses incurred under sect. 
 34 of the principal Act on the Public 
 Health Rate. 
 
 130 4.15^ and as many as those nomi- 
 nated by the Commissioners of Supply. 
 
 There are also rules subject to which by- 
 laws may be made for retiring, &c. 
 
 ^^^ Sched. vi. gives the rules. 
 
 122 Robertson v. Perthshire L.A., 1883, 
 10 R. (Just.) 68 (owner of cows bowed 
 out). See Huggins v. Ward, L.R. 8 Q.B. 
 521 ; and Nichols v. Hall, L.R. 8 C.P. 322, 
 on a similar provision in the Act of 1869 
 
CONTAGIOUS DISEASES (ANIMALS) ACT. 567 
 
 constitute an infected area (sect. 1 2) or infected circle ; ^^' alter 
 their limits (sect. 13); or declare them free from plague (sect. 
 14). It shall cause to be slaughtered all animals affected or 
 having been in the same shed, stable, herd, flock, or in contact 
 with them, and may cause to be slaughtered all animals suspected 
 of plague, or being in an infected place, and all animals being 
 in such parts of an infected area as are not comprised in such 
 a place. The compensation (paid out of money provided by 
 Parliament) is one-half of an infected animal's value before 
 infection, but not more than £20, and the whole value of an 
 animal not infected before it was slaughtered, but not more 
 than £40 (sect. 16). Similar rules are laid down for the stamp- Pleuro-pneu- 
 ing out of pleuro-pneumonia, with the exceptions that the limit 
 of time is fifty-six days ; that the Local Authority (subject to 
 control) takes the management ; and that the compensation for 
 an infected animal is three-fourths of its value, and not more than 
 £30 (sects. 16-21). In the case of foot-and-mouth disease the Foot-and- 
 limit of time is ten days ; there are variations in the period after 
 which a clean bill of health can be given ; and there are no pro- 
 visions for slaughter (sects. 23-26).^^* The Privy Council is orders of 
 empowered to make orders regarding animals affected with either "^^ '"""'' " 
 of the last two maladies, and found in market, lair, transit, wharf, 
 slaughterhouse, common-land, or (generally) out of control of their 
 owner, and regarding the consequences of being so found (sect. 
 27). It may make general orders with regard to other maladies 
 putting them on the same footing as these (sect. 28) ; or directing 
 slaughter in other cases besides those mentioned above. ^^^ An 
 animal liable to be slaughtered may be reserved for observation 
 and treatment, subject to compensation as above. When slaughter 
 takes place the carcase is buried, sold, or otherwise disposed of 
 according to circumstances, by the Privy Council or Local Autho- 
 rity (sect. 30).^^" The powers conferred on the Privy Council in 
 regard to the issuing of General Orders are very extensive, 
 especially with regard to the movement of animals (sects. 32, 34, 
 58) ;^^'^ and the duties and powers of the Local Authority are 
 correspondingly wide (sects. 37-45).^^^ These powers of the 
 
 1^ 49 & 50 Vict. c. 32, sect. 2. insurance, excess of price over compensa- 
 
 ^^ Sects. 20 and 26 are amended by tion, &c., are very minute (ibid.). 
 
 49 & 50 Viet. c. 32, sect. 4 ; sects. 17 ^ Sect. 32 is amended by 49 & 50 
 
 and 23 by sect. 3 of the same Act ; and Vict. c. 32, sect. 8. All the subsisting 
 
 sect. 20 by sect. 5. orders are dated in 1884 and later 
 
 ^^ 49 & 50 Vict. c. 32, sect. 6, repealing years, 
 
 sect. 29 of the principal Act. i^' Sect. 39 is amended, last Act, sect. 
 
 136 The directions as to place of burial, 10. 
 
568 PRIVILEGES AND PUBLIC BURDENS INCIDENT TO TENANCY. 
 
 In burgha. 
 
 In counties. 
 
 Voting for 
 Road Trust. 
 
 Privy Council may be partly delegated to Local Authorities, ^'^ and 
 are partly transferred to the Board of Supervision."" The func- 
 tions of the police (sect. 50) and inspectors (sect. 51) are defined; 
 and provision is made for dealing with offences against the Act 
 (sects. 60-66, 74).i" 
 
 5. Roads and Bridges Act}^'^ 
 
 The assessment in burghs is (1) on occupiers, so far as it is in 
 lieu of causeway maill (sect. 34) ; and (2) on proprietors and 
 tenants or occupiers, one-half on each, or on proprietors only, 
 where the names of the tenants or occupiers do not appear on the 
 valuation roll (with relief), so far as the maintenance and repair of 
 streets and roads (sect. 54)^*^ and the construction of new roads 
 and bridges (sect. 58) are concerned. The whole of this second 
 assessment may be levied from other occupiers or tenants (with 
 relief) ; and poverty is the only excuse for non-payment, and 
 that only where the rent is under £4 a-year (sect. 86). In 
 counties, tenants and occupiers have no responsibility for the 
 expense of new roads and bridges (ibid.), but the expenses of 
 managing, maintaining, and repairing the roads and bridges 
 within or partly within the county, a road district thereof, or a 
 parish (as the case may be), and a fair contribution to the 
 general expenses of the system are met by an assessment at a 
 uniform rate laid half on the proprietor "* and half on the tenant 
 and occupier of lands and heritages. If the rated premises stand 
 at £4 or less on the roll, the whole rate is levied from the land- 
 lord, reserving his relief (sect. 52). Poverty of occupiers of such 
 premises is the only ground of exemption from liability for the 
 rate (sect. 84). The year runs from Whitsunday to "Whitsunday 
 (sect. 82), and provision is made for relieving outgoing tenants 
 of the proportion of rate effeiring to that part of a broken year 
 during which they did not possess (sect. 52). Neither in burgh 
 nor in county is a tenant or occupier assessable for the payment 
 of debt (sect. 74). 
 
 The correlative privilege of tenants is in burghs the municipal 
 franchise, inferring representation through the Local Authority 
 
 "» Ibid. sect. 7. 
 
 "» Ibid. sect. 9. 
 
 ^*' Rules are added in schedules ap- 
 plicable to pleuro, foot-and-mouth disease, 
 foreign animals (as to which see also 
 sects. 27, 35, 38, 52). 
 
 "2 41 & 42 Vict. 0. 51. 
 
 '^ As to retaining old modes and 
 assessment, see sect. 65. 
 
 ^^ Though the premises are unoccu- 
 pied— EusseU V. Lanarkshire Middle 
 Ward Trs., 1884, 12 R. 298. The rate is 
 to be equal per pound on owners and 
 occupiers, distinguishing between this 
 burden and poor-rates (Galloway, supra, 
 p. 558)— Macdouald v. Armour, 1887, 24 
 Sc.L.R. 324. 
 
ROAD MONEY. 569 
 
 the Town Council or Police Commissioners (sects. 3, 11) ; and, in 
 counties, the right of the ratepayers in each parish once in every 
 three years to elect a part of the Road Trust corresponding to 
 the population of the parish (sect. 12). 
 
 A person^*' causing extraordinary expenses to a Local Authority Extraordinary 
 through damage done to a highway by the carriage of ' excessive *''^ °" 
 ' weight,' or by ' extraordinary traffic,' is liable for damages sum- 
 marily assessed (sect. 57). The liability is incurred not through 
 an unusual amount of traffic of the description usual in the 
 locality and on the particular road (as in building an ordinary 
 dwelling-house,^*^ or in quarrying, so long as usual loads only are 
 carried,^*') but by conveying goods (though of the usual sort, such 
 as manure or grain) in extraordinary loads or by means of traction 
 engines, or in modes not contemplated in the making or main- 
 taining of the particular road which is damaged."* 
 
 6. Miscellaneous. 
 
 The remaining burdens which fall on burgh or county may be 
 briefly dismissed. The expenses connected with militia stores,^*' 
 and providing, altering, repairing, and furnishing district asylums ^^'^ 
 are thrown, in burghs, one-half on owners and one-half on tenants 
 or occupiers, or the whole on the latter with right of relief as to 
 half, with remissions on the ground of poverty where the value 
 is £5 a-year or under.^^^ The expense of the valuation roll 
 may be thrown on the Treasury under certain conditions. ■'^^ If 
 this is not done it may be levied with the poor-rate, or on pro- 
 prietors or occupiers equally, or along with any assessment laid 
 on real rent.^^^ The expense of registration of voters (1) in 
 burghs represented before 1868 is met in the same way ;^^* (2) 
 in new burghs it is thrown on the police rate so far as payable for 
 premises within the burgh ;i^^ and (3) in counties it is levied 
 along with any county rate.^^^ 
 
 1*5 Not being a body of Road Trustees Vict. c. 42, sect. 40 ; 23 & 24 Vict. c. 105, 
 
 (sect. 3)— Perthshire Koad Trs. v. Forfar- sect. 1. 
 
 shire Road Trs., 1884, 11 E. 1070. "^ 40 & 41 Vict. o. 53, sect. 63. 
 
 i« Pickering Board v. Barry, 8 Q.B.D. "» 20 & 21 Vict. c. 58, sects. 1, 3. 
 
 59 ; Raglan Board v. Monmouth Steam ^' 17 & 18 Vict. c. 91, sect. 18 ; along 
 
 Co. , 46 J.P. 498. with expense of printing the roU- — 30 & 
 
 i» Wallington v. Hoskins, 6 Q.B.D. 31 Vict. c. 80, sect. 10. 
 
 20(3. 1" 19 & 20 Vict. v;. 58, sect. 42. 
 
 •1*8 L. Aveland v. Lucas, 6 C.P.D. 211, ^^^ 31 & 32 Vict. c. 48, sects. 46-48. 
 
 351 ; The Queen ■„. EUis, 8 Q.B.D. 466. i=« 24 & 25 Vict. c. 83, sect. 41 ; 31 & 
 
 The legality of using locomotives is 32 Vict. u. 48, sect. 42. As to salmon 
 
 irrelevant ; and see obs. on measure of fishery assessment see 25 & 26 Vict. c. 
 
 damages, L. Aveland, supra. 97, sect. 23 ; 31 & 32 Vict. c. 123, sect. 
 
 "3 17 & 18 Viet. c. 106, sect. 37. 14. 
 
 i^" 20 & 21 Vict. c. 71, sect. 54 ; 2 & 3 
 
570 PRIVILEGES AND PUBLIC BURDENS INCIDENT TO TENANCY. 
 
 D. Imperial Taxes. 
 
 The incidence and operation of the Inhabited House Duty and 
 of the Income Tax (Schedule B) have been so fully discussed 
 elsewhere,"'^ that nothing need be added here, except a reference 
 to the most recent cases. ^^* 
 
 III. Relief by Agreement. 
 
 Ou\y inter se. g^^jj being the incidence of these public burdens, it has 
 appeared that in many cases the immediate is, or may be, 
 different from the ultimate liability, the overpaying party being 
 entitled to indemnify himself to the extent of the overpayment 
 out of, or by addition to, the rent, as the case may be."" 
 But there is nothing to prevent the parties to a contract of lease 
 from contracting in it or otherwise for a disturbance inter se of 
 the normal state of liability for rates or taxes. They do not 
 thereby alter their liability — imposed by statute — in a question 
 with the rating or taxing authority; but inter se they have 
 rights or obligations of relief.^'" 
 
 Contents of re- Care should then be taken to preserve evidence of the mode 
 
 ceipts. in which payment to the authorities was actually made ; and also 
 
 to discriminate in receipts for rent or in rental books and similar 
 documents between allowances by way of relief and cash paid 
 down. Thus it was decided in an early case that where the 
 tenant had a clause of relief of all public burdens and yet paid 
 certain of these and his rent subject to no deduction so far as 
 appeared ex facie of the receipts, the only mode of proving that 
 the landlord had received full payment of the rent was by his 
 writ or oath.^"^ 
 
 Interpretation. The interpretation of such clauses of relief has frequently given 
 rise to important and subtle questions between superior and 
 vassal.i''^ But very few disputes have arisen between landlord 
 
 '=' Rankine, Landownership, 694, 705, stations), is disapproved in Coomber t. 
 
 983. Berks Justices, 9 App. Cas. 61. Other 
 
 1'' Inhabited House Duty— Nisbet d. cases of less interest to occupiers are to 
 
 M'Innes, 1884, 11 R. 1095 ; Clerk v. be found in 13 Q.B.D. 9 ; 8 App. Cas. 
 
 British Linen Co., 1885, 12 R 1133 ; 891. 
 
 Smiles v. Crooke, 1886, 13 R. 730 ; 1=9 As to stipend see 2 Connell, Tithes, 
 
 Weguellin v. Wayall, 14 Q.B.D. 838— all 95, and cases there. See a case in which an 
 
 on the 13th section of the Act of 1878. obvious mistake was rectified Donald 
 
 IncoHie Tax— Brown v. Watt 1886, 13 v. Leitch, 1886, 13 R. 790. 
 
 R. 590 (losses in farming. Schedule B, leo g^g ^he old Act, 1597, c. 281 ; 2 
 
 cannot be set against profits on trade, Ross, Lect. 495. 
 
 Schedule D, though the farm was taken i6i Veatch f.Pater8on,1664, M. 11383. 
 
 as accessory to the trade). Clerk v. Dum- ica See authorities collected in Ran- 
 
 fries Comrs., 1880, 7 R. 1157 (as to police kjne, Landownership, 715 seqq. 
 
RELIEF OF BURDENS. o7l 
 
 and tenant. Where an obligation on a, tenant to pay all the 
 public burdens due in respect of the subjects let was admitted, 
 the income tax prestable by the landlord was held not to be 
 included in that category.^"^ On the principle ' noscitur a sociis ' 
 an obligation to pay rent ' free of cesses, ministers' stipends, poor's 
 ' money, and all other public burdens and other deductions what- 
 ' somever ' was held not to throw the payment of feu-duties or 
 ground annuals on the tenant.^^* A tenant, bound to pay along 
 with his rent ' the minister's stipend . . . imposed or to be im- 
 ' posed during the currency of the tack,' paid stipend as fixed by 
 an interim locality prior to his entry. It turned out that there 
 was overpayment, and his landlord got credit for that in a ques- 
 tion with the other heritors. The tenant claimed repetition of 
 the overpayments and obtained it, on the ground that he had paid 
 more than was due by him ; that the landlord must be taken to 
 have been lucratus by the rectification of liability ; and that the 
 rent was not proved to have been fixed with special reference to 
 the interim locality.^^^ 
 
 183 Wilson V. Holmes, 1828, 6 S. 551 M. 15338. 
 (writ or oath required). ii^' Crawford v. Boyle, 1849, 11 T>. 714. 
 
 i« York Buildings Co. i,. Grant, 1737, 
 
 [Appendix. 
 
APPENDIX 
 
 STATUTES AND FORMS. 
 
APPENDIX. 
 
 No. I. 
 
 20 & 21 VICTORIA, c. 26. 
 
 An Act to provide for the Registration of Long Leases in Scotland, and 
 Assignations thereof — [10th August 1857.] 
 
 BE it enacted by the Queen's most Excellent Majesty, by and with 
 the advice and consent of the Lords Spiritual and Temporal, and 
 Commons, in this present Parliament assembled, and by the autho- 
 rity of the same, as follows : — 
 
 1. From and after the passing of this Act, it shall be lawful to record Long leases, 
 in the General Register of Sasines in Scotland, or in the particular ^d assigna- 
 Register of Sasines for the district iu which the lands and heritages re'^terable^' 
 leased are situated, probative leases, whether executed before or after Register of 
 the passing of this Act, for a period of thirty-one years, and for any Sasines. 
 greater number of years that shall be stipulated, of lands and heritages 
 
 in Scotland other than lands and heritages held by burgage tenure, and 
 to record in the several Burgh Registers of Sasines probative leases for 
 the period foresaid of lands and heritages within the burgh for which 
 such register is kept, and held by burgage tenure, and to record 
 respectively iu the register in which any such lease as aforesaid shall 
 have been registered the assignations, and assignations in security of 
 such lease, and translations thereof, all hereinafter mentioned. 
 
 2. Leases registerable under this Act, and vaUd and binding as in a Recorded 
 question with the granters thereof, which shall have been duly recorded, leases effectual 
 as herein provided, at or subsequent to the date of entry therein "samst 
 stipulated, shall, by virtue of such registration, be effectual against any successors 
 singular successor in the lands and heritages thereby let, whose infeft- >» ^^« 1*"^^ 
 ment is posterior in date to the date of such registration : Provided 
 
 always, that, except for the purposes of this Act, it shall not be 
 necessary to record any such lease as aforesaid, but that all such leases 
 which would, under the existing law prior to the passing of this Act, 
 have been valid and effectual against any such singular successor as 
 aforesaid, shall, though not recorded, be valid and effectual against such 
 singular successor, as well as against the granters of the said leases. 
 
 3. When any such lease as aforesaid shall have been recorded as Assignations 
 
 herein provided, it shall be lawful for the party in right of such lease, °f recorded 
 
 leases. 
 
576 20 AND 21 VICTOEIA, CHAPTEB 26. [appx. 
 
 and whose right is recorded in terms of this Act, but in accordance 
 always with the conditions and stipulations of such lease, and not other- 
 wise, to assign the same, in whole or in part, by assignation, in the 
 form as nearly as may be of the Schedule (A) to this Act annexed ; and 
 the recording of such assignation shall fully and effectually vest the 
 assignee with the right of the granter thereof in and to such lease to 
 the extent assigned : Provided always, that such assignation shall be 
 without prejudice to the right of hypothec, or other rights of the 
 landlord. 
 Assignations in 4. It shall be lawful for the party in right of any such lease recorded 
 security. as aforesaid, and whose right thereto is recorded in terms of this Act, 
 
 but in accordance always with the conditions and stipulations of such 
 lease, and not otherwise, to assign the same, in whole or in part, 
 in security for the payment of borrowed money, or of annuities, or of 
 provisions to wives or children, or in security of cash credits or other 
 legal debt or obligation, in the form as near as may be of the Schedule 
 (B) to this Act annexed ; and the recording of such assignation in 
 security shall complete the right thereunder ; and such assignation in 
 security so recorded shall constitute a real security over such lease to 
 the extent assigned. 
 ■Where party 5. Where the party in right of any such lease or assignation in 
 presenting for security as aforesaid is not the original lessee in such lease, or the 
 no?orig^ai original assignee in such assignation in security, he shall, before 
 lessee or presenting such lease or assignation in security for registration, expede 
 
 assignee. ^^^ instrument, under the hand of a notary-public, in the form as nearly 
 
 as may be of the Schedule (C) to this Act annexed ; and the keeper of 
 the register, on such notarial instrument being produced to him, but not 
 otherwise, shall thereupon record such lease or assignation in security, 
 together with the said instrument. 
 Translation of 6. All such assignations in security as aforesaid shall, when 
 irseomity ^ recorded, be transferable, in whole or in part, by translation, in the form 
 as nearly as may be of the Schedule (D) to this Act annexed ; and the 
 recording of such translation shall fully and effectually vest the party in 
 whose favour it was granted with the right of the granter thereof in 
 Creditor's such assignation in security to the extent assigned ; and the creditor or 
 possessfonin "^^^^^ ^^ "S^t of such assignation in security, without prejudice to the 
 default of exercise of any power of sale therein contained, shall be entitled in 
 payment. default of payment of the capital sum for which such assignation in 
 
 security has been granted, or of a term's interest thereof, or of a term's 
 annuity, for six months after such capital sum or term's interest or 
 annuity shall have fallen due, to apply to the sheriff for a warrant to 
 enter on possession of the lands and heritages leased ; and the sheriff, 
 after intimation to the lessee for the time being, and to the landlord, 
 shall, if he see cause, grant such warrant, which shall be a sufficient title 
 for such creditor or party to enter into possession of such lands and 
 heritages, and to uplift the rents from any subtenants therein, and to 
 sublet the same, as freely and to the like effect as the lessee might have 
 done : Provided always, that no such creditor or party, unless and until 
 he enter into possession as aforesaid, shall be personally liable to the 
 landlord in any of the obligations and prestations of the lease. 
 Heir may 7. It shall be competent for the heir of any party who shall have died 
 
 by'^H^of "'* ""'^^^^^ }'°- "Slit of any such lease or assignation in security, recorded as 
 aoknowledg- aforesaid, to make up his title thereto by a writ of acknowledgment 
 ment. " 
 
NO. l] KEGISTEATION of leases (SCOTLAND) ACT, 1857. 577 
 
 from the proprietor infeft in the lands and heritages leased by such lease, 
 or from the party appearing on the register as in absolute right of such 
 lease of or over which such assignation in security has been granted, 
 respectively, ui the form as nearly as may be of the Schedule (E) to this 
 Act annexed; and the recording of such -writ in the register in -vrhich 
 such lease or assignation in security is registered shall complete the title 
 of such heir to such lease or assignation in security aforesaid : Provided 
 always, that no defect in the title of the proprietor or party granter of 
 such writ shall affect the right or title of such heir. 
 
 8. It shall be competent to the heir who shall have been served by Heir of 
 general or special service, or to the general disponee of any party who •i'spon^e ™.^y 
 shall have died fully vested in right of any such lease or assignation in by recording 
 security, recorded as aforesaid, to expede a notarial instrument in the notarial instru- 
 form as nearly as may be of the Schedule (F) to this A.ct annexed; and ™™*' 
 
 the recording of such instrument in the register in which such lease is 
 recorded shall complete the title of such heir or disponee to such lease 
 or assignation in security. 
 
 9. Where any assignation, assignation in security, or translation Where 
 granted in pursuance of this Act shall not have been registered as afore- j?^?P^-?^*\ 
 said in the lifetime of the grantee in such writ respectively, it shall be recording 
 competent to the heir or general disponee of such grantee to make up assignation, 
 his title by expeding an instrument under the hand of a notarv-public ™°?? °* 
 
 in the form, as nearly as may be, of the Schedule (F) to this Act title. 
 annexed ; and the keeper of the register, on such notarial instrument 
 being presented to him, but not otherwise, shall thereupon record such 
 assignation, assignation in security, or translation, together with the 
 said instrument. 
 
 10. When an adjudication of any such lease or assignation in security Adjudgers 
 recorded as aforesaid shall have been obtained against the party vested *? complete 
 in the right thereof respectively, or against the heir of such party, the recording 
 recording of the abbreviate of adjudication in the register in which the abbreviate, 
 lease is recorded shaU complete the right of the adjudger to such lease 
 
 or assignation in security. 
 
 11. It shall be lawful for the trustee on the sequestrated estate of any Trustees on 
 party in right of any such lease or assignation is security as aforesaid to sequestrated 
 expede a notarial instrument in the form as nearly as may be of the entere™on 
 Schedule (F) to this Act annexed ; and the recording of such instrument register. 
 
 in the register in which such lease is recorded shall complete the right of 
 such trustee to such lease or assignation in security. 
 
 12. All such leases executed after the passing of this Act, and all Preferences 
 assignations, assignations in security of any such lease recorded as afore- r^g^t^d 
 said, and translations thereof, and all adjudications of such leases recording 
 recorded as aforesaid, or assignations in security, shall in competition transfer. 
 be preferable according to their dates of recording. 
 
 13. On the production to the keeper of the register of a renunciation Eenunciationa 
 of any such lease as aforesaid recorded therein, or of a discharge of any to berecorded^ 
 such assignation in security, as aforesaid therein recorded, by or on 
 
 behalf of the party appearing on the register as in right of such lease or 
 assignation in security, which renunciation or discharge may be in the 
 form of the Schedules (G) and (H) respectively to this Act annexed, 
 and may be endorsed on such lease or assignation in security, he shall 
 forthwith duly record the same. 
 
 14. On the production to any such keeper of an extract of a Entry of 
 
 decree of 
 8 O reduetioij, 
 
578 
 
 20 AND 21 VICTORIA, CHAPTER 26. 
 
 [appx. 
 
 Mode of 
 registering. 
 
 Extracts to 
 make faith as 
 writs re- 
 gistered. 
 
 Registration - 
 equivalent to 
 possession. 
 
 Leases, witli 
 obligation to 
 renew, re- 
 gisterable. 
 
 No lease 
 executed after 
 date of Act to 
 be register- 
 able where 
 name of lands 
 and bound- 
 aries not 
 
 Extracts 
 registerable 
 where leases 
 recorded in 
 Court of 
 Session or 
 Sheriff Court 
 Books prior 
 to Act. 
 Clauses in 
 schedules to 
 be held to 
 import and to 
 
 decree of reduction of any such lease, assignation, assignation m 
 security, translation, adjudication, instrument, discbarge, or renuncia- 
 tion recorded in the register of which he is the keeper, he shall 
 forthwith duly record the same. 
 
 15. Leases, assignations, assignations in security, translations, 
 adjudications, instruments, discharges, renunciations, and other writs, 
 duly presented for registration in pursuance of this Act, shall be forth- 
 with shortly entered in the minute-book of the register in common 
 form, and shall, with all due dispatch, be fully registered in the register 
 book, and thereafter redelivered to the parties, with certificates of due 
 registration thereon, which shall be probative of such registration, such 
 certificates specifying the date of presentation, and the book and folio 
 in which the ingrossment has been made, and being subscribed by the 
 keeper of the register ; and the date of entry in the minute-book shall 
 be held to be the date of registration ; and extracts of all such writs 
 registered in pursuance of this Act shall make faith in all cases in like 
 manner as the writs registered, except where the writs so registered are 
 offered to be improven. 
 
 16. The registration of all such leases, assignations, assignations in 
 security, translations, adjudications, writs of acknowledgment, and 
 notarial instruments as aforesaid, in manner herein provided, shall 
 complete the right under the same respectively, to the effect of 
 establishing a preference in virtue thereof, as effectually as if the 
 grantee, or party in his right, had entered into the actual possession of 
 the subjects leased under such writs respectively at the date of registra- 
 tion thereof. 
 
 17. Leases containing an obligation upon the granter to renew 
 the same from time to time at fixed periods, or upon the termination of 
 a life or lives, or otherwise, shall be deemed leases within the meaning 
 of this Act, and registerable as such, provided such leases shall by the 
 terms of such obligation be renewable from time to time so as to endure 
 for a period of thirty-one years or upwards. 
 
 18. No lease of lands and heritages other than subjects held by 
 burgage tenure executed after the passing of this Act, unless where the 
 same shall have been executed in terms of an obligation to renew 
 contained in a lease renewable as aforesaid, and of date prior to this 
 Act, shall be held to fall within the same or to be registerable there- 
 under, unless the name of the lands of which the subjects let consist or 
 form a part shall be set forth in such lease ; and no such lease of such 
 lands and heritages as aforesaid, except where the same consist of mines 
 or minerals, shall be held to fall within this Act or to be registerable 
 thereunder, unless the extent of the land let shall be set forth in such 
 lease, and shall not exceed fifty acres. 
 
 19. Where any such lease as aforesaid registerable under this Act 
 shall, before the passing thereof, have been recorded in the Books of 
 Council and Session, or in the Books of any Sheriff or Burgh Court, the 
 production to the keeper of the register of an extract of such lease shall 
 be a sufficient warrant for him to record the same, and he shall there- 
 upon duly record it, and the recording thereof shall be as valid and 
 effectual as if the original lease had been presented to him. 
 
 20. The several clauses in the schedules to this Act annexed shall 
 be held to import such and the like meaning and to have such and the 
 like effect as is declared by the Act of the tenth and eleventh of Queen 
 
NO. I.] REGISTRATION OF LEASES (SCOTLAND) ACT, 1857. 579 
 
 Victoria, chapter fifty, sections second and third, to belong to the have effect 
 corresponding clauses in the schedule to the said recited Act annexed,' ^y^g^^^jj^ 
 and the procedure thereby prescribed for a sale under a bond and Vict. c. 50. 
 disposition in security shall be applicable to a sale of any such lease as 
 aforesaid under any such assignation in security as is hereinbefore 
 mentioned. 
 
 21. This Act may be cited for all purposes as ' The Kegistration short titlf . 
 of Leases (Scotland) Act, 1857.' 
 
 Schedule (A). 
 
 Form of Assignation of Lease. 
 
 I, A.B. \designation\, in consideration of the sum of now paid 
 
 to me [or otherwise, as the case may 6e], assign to CD. \designatiori\, a 
 lease, dated , and recorded in the Register of Sasines 
 
 at , of date , granted by E.F. [designation], in 
 
 my favour [or if not in assignor's favour, name and design grantee], of 
 
 E shortly mention subjects] in the parish of and county of 
 
 and (when the assigner is not the grantee in the lease) my title to which 
 is recorded in the said register, of date ], [but {where tlie lease 
 
 is assigned in fart only) in so far only as regards the following portion 
 of the subjects leased ; viz. (specify particularly the portion),] with entry 
 as at (term of entry). And [where sublease] I assign the rents from 
 [<er»»] ; and 1 gjant wai-randice ; and I bind myself to free and relieve 
 the said CD. of all rents and burdens due to the landlord or others 
 at and prior to the term of entry in respect of said lease ; and I consent 
 to registration for preservation and execution. 
 
 [Testing-clause in common form.] 
 
 Schedule (B). 
 
 Form' of Bond and Assignation in Security. 
 
 I, A.E. [designation], bind myself, my heirs and executors, without 
 the necessity of discussing them in their order, to make payment, at the 
 term of [date and place of payment], to CD. [designation] or his heirs, 
 executors, or assignees, of the sum of , being money borrowed 
 
 by me from him [or as a provision to the said CD., or of the yearly 
 annuity of during his lifetime, as the case may be], with the 
 
 interest of the said capital sum at the rate of per cent, per annum, 
 
 payable by equal portions half-yearly at Whitsunday and Martinmas, 
 beginning the first payment at . And, in security of the 
 
 personal obligation before written, I assign to the said CD. and his 
 foresaids, heritably but redeemably as after mentioned, yet irredeemably 
 in the event of a sale by virtue hereof, a lease of [shortly mention subjects 
 leased] in the parish of and county of , which lease was granted 
 by E.F. [designation], of date , and recorded [insert register, with date 
 of recording], and [where cedent not the original lessee] my title to which is 
 registered therein [date of recording]; [but (where only a portion of the 
 subjects are assigned) in so far only as regards the following portion of the 
 subjects leased ; viz. (specify pa/rticularly the portion)]. And I assign the 
 rents; and I assign the writs; and I grant warrandice; and I reserve 
 power of redemption ; and I oblige myself and my foresaids for the 
 
580 20 AND 21 VICTORIA, CHAPTER 26. [appx. 
 
 expenses of assigning and discharging this security ; and, on default of 
 payment, I grant power of sale ; and I consent to registration for pre- 
 servation and execution. 
 
 [Testing-clause.] 
 
 Schedule (C). 
 
 Forms of Nota/fial Instruments in favowr of a Pa/rty not the Original 
 
 Grantee. 
 
 No. 1. — Case of Lease. 
 Be it known, that by lease, dated , A.B. [designation] let to 
 
 CD. [designation] that piece of ground [or as the case may be, shortly 
 describing the property leased] in the parish of and county 
 
 of , to which lease E.F. [designation] has made up title by 
 
 service as eldest son [or as the case may be] and heir of the said CD., 
 dated [insert date of service] before the [specify the Court before which 
 the heir has been served], and duly retoured to Chancery [or as the case 
 may he, as general disponee or assignee of the said C.D. in virtue of 
 (here mention the writs or decreets instructing the right, with the dates 
 thereof, and, if recorded, the register, and date of recordingY] : 
 "Wherefore this instrument is taken by the said E. F. in the hands of 
 G.H. [designation of notary-public], in te^s of the Registration of Leases 
 (Scotland) Act, 1857. 
 
 [Testing-clause. ] 
 
 * If the person in whose favour the instrument is taken is not the heir or disponee of 
 the original grantee, but of one who has acquired right to the lease or assignation in 
 security, here specify shortly the series of titles by wMch the predecessor acquired the 
 right. 
 
 No. 2. — Case of Assignation in Security. 
 
 Be it known, that by bond and assignation in security of date , 
 
 C.D. [designation] assigned to J.K. [designation], in security of a sum 
 of [or as the case may be], a lease granted by A.£. [designation] 
 
 of [shortly describe the subjects leased], in the parish of and 
 
 county of , which lease is dated , and recorded [register, 
 
 and date of recording], to which assignation in security E.F. [designation] 
 has acquired right as eldest son [or as the case may be] and heir of the 
 said J.K., dec. [as in Form Ifo. 1]. 
 
 Schedule (D). 
 Form of Translation of Assignation in Security. 
 I, A.B. [designation], in consideration of the sum of now 
 
 paid to me [or as the case may be], assign and transfer to C.D. [desig- 
 nation], a bond and assignation in security for the principal sum of 
 [or as the case may be], granted by E.F. [designation] 
 m my favour [or if not in granter's favour, name and design the party 
 %n whose favour granted], dated and recorded 
 
 register and date of recording] of and over a lease granted by 9 H. 
 designation] of [shortly describe subjects leased], in the parish' of 
 , and county of , whicli lease is dated 
 
 , and IS recorded in the said register of date 
 
NO. I.] REGISTEATION OF LEASES (SCOTLAND) ACT, 1857. 581 
 
 [and (if the granter is not the assigTiee in said bond) my title to which 
 bond and assignation in security is recorded in said register (date of 
 recording)], [but [where the translation is partial) only to the extent of 
 (insert sum), and to the effect of giving pari passu preference to the said 
 G.D. over the said lease with me, my heirs and assigns, as regards the 
 remainder of the said principal sum and corresponding interest], with the 
 interest from [c^afe]. 
 
 ITesting-dause.] 
 
 Schedule (E). 
 
 Forms of Writs of Acknowledgment. 
 
 No. 1. — Acknowledgment of Heir in Lease. 
 
 I, A.B. [designation^, proprietor infeft in the lands of C, by infeft- 
 
 ment recorded [register, and date of recording'], acknowledge D.E. 
 
 designation], as [specify relationship], and heir of the deceased F.O. 
 
 dsignatiori], to be in right of a lease granted by H.J. [designation], 
 
 of [shortly mention subjects], in the parish of and county of 
 
 , being a portion of the said lands of C, which lease 
 
 is dated and recorded [register, and date of record 
 
 ing], and [where the deceased not the original lessee] the title of the said 
 
 F.G. being recorded in the said register, of date 
 
 [Testing-clause.] 
 
 No. 2. — Acknowledgment of Heir of Creditor in Assignation 
 in Security. 
 
 I, A.B. [designation], being in right of a lease granted by CD. 
 [designatioii], of [shortly specify subjects], in the parish of , 
 
 and county of , which lease is dated , 
 
 and recorded [register, and date of recording], and [where granter not 
 the lessee named in the lease] my title to which is recorded in said register 
 [date of recording], acknowledge F.F. [designation], as [specify relation- 
 ship], and heir of the deceased G.H. [designation], to be in right of a 
 bond and assignation in security for the sum of [or 
 
 as the case may be], granted hj I.K. [designation], over said lease, which 
 bond and assignation in security is dated , and 
 
 recorded in the said register on [date], and [where the deceased not the 
 original creditor] the title of the said G.H. to which bond and assignation 
 in security is recorded in the said register on [date]. 
 
 [Testing-clause.] 
 
 Schedule (F). 
 
 Form of Notarial Instrument in favour of Heir in recorded Lease or 
 Assignation in Security, or of Trustee on Sequestrated Estate. 
 
 No. 1. — Case of Lease. 
 
 Be it known, that by lease dated , A.B. [designation], 
 
 let to CD. [designation], that piece of ground [or as the case may be, 
 shortly describing the property leased], in the parish of 
 
582 20 AND 21 VICTOKIA, CHAPTER 26. [aPPX. 
 
 and county of , whicli lease is recorded [register and 
 
 date of recording], and to which H.F. [designation'] has made up title 
 by service as [specify relationship], and heir of the said CD., dated the 
 [insert date of service], before the [specify the Court before which the hei/r 
 has been served], and duly retoured to Chancery [or as the case may be], 
 as general disponee of the said CD., or as heir (or general disponee) of 
 L.M., in an assignation by the said CD., of date , 
 
 or as trustee confirmed on the sequestrated estate of the said CD., in 
 virtue of {here mention the writs or decreets, instructing the rights, with 
 the dates thereof, and if recorded the register and date of recording)]. 
 Whereupon this instrument is taken by Vke said KF., in the hands of 
 G.H. [designation of notary-public], in terms of the 'Registration of 
 'Leases (Scotland) Act, 1857.' 
 
 [Testing-clause.] 
 
 No. 2. — Case of Assignation in Security. 
 
 Be it known, that by bond and assignation in security, of date 
 
 , CD. [designation], assigned to I.K. [designatioji], in security of a 
 sum of [or as the case may be], a lease granted by A.B. 
 
 [designation], of [shortly describe the subjects leased], in the parish of 
 
 and county of , dated , and recorded [register, 
 
 and date of recording], to which bond and assignation in security E.F. 
 [designation], has acquired right as [specify relationship], and heir of the 
 said I.K., &c. [as in Form No. 1]. 
 
 Schedule (G). 
 
 Renunciation of Lease. 
 
 I, A.B. [designatioti], renounce as from the term of in 
 
 favour of CD. [designation], a lease granted by the said CD. [or as the 
 case may be], of [shortly set forth subjects], in the parish of and 
 
 county of , which lease is dated , and recorded 
 
 [register, and date of recording], and [where the party renouncing not the 
 original lessee], my title to which is recorded in the said register on 
 [date]. " 
 
 [Testing-clause.] 
 
 Schedule (H). 
 For7ii of Discharge of Bond and Assignation in Security. 
 I, A.B. [designation], in consideration of the sum of now 
 
 paid to me by CD. [designation], discharge a bond and assignation in 
 security for the sum of , granted by the said CD. in my 
 
 favour [or as the case may M], and which is dated and 
 
 recorded in the [reg s er, mid dote of recording] ■ and I declare to be 
 disburdened thereof a lease granted by E.F. [designation], of [shortly 
 mention subjects leased], in the parish of and coimty of 
 
 , , . '7^^^^'^ ^^^'^ ^' '^'•'^''^ ' and recorded [register, and 
 
 date of recording]. '- '^ ' 
 
 [Testing-clause. ] 
 
 1 If granter not original creditor, liere state his title, and date of recording the same. 
 
NO. II.] AGRICULTUKAL HOLDINGS (SCOTLAND) ACT, 1883. 583 
 
 No. 11. 
 
 46 & 47 VICTORIA, c. 62. 
 
 [AGRICULTURAL HOLDINGS (SCOTLAND) ACT, 1883.] 
 
 Arrangement of Sections. 
 
 Compensation for Improvements. 
 Section 
 
 1. General right of tenant to compensation. 
 
 As to Improvements executed before the Commencement of Act. 
 
 2. Restriction as to improvements before Act. 
 
 As to Improvements executed after the Commencement of Act. 
 
 3. Consent of landlord as to improvements in first part of schedule. 
 
 4. Notice to landlord as to improvements in second part of schedule. 
 
 5. Reservation as to existing and future leases. 
 
 Eegulations a^ to Compensation for Im2yrovements. 
 
 6. Compensation for improvements. 
 
 Procedure. 
 
 7. Notice of intended claim. 
 
 8. Compensation agreed or settled by reference. 
 
 9. Appointment of referee or referees and oversman. 
 
 10. Requisition for appointment of oversman by the sherifi". 
 
 11. Mode of submission to reference. 
 
 12. Power for referee, &c., to require production of documents, adminis- 
 
 ter oaths, &c. 
 
 13. Power to proceed in absence. 
 
 14. Form of award. 
 
 15. Time for award of referee or referees. 
 
 16. Reference to and award by oversman. 
 
 17. Award to give particulars. 
 
 1 8. Expenses of reference. 
 
 19. Day for payment. 
 
 20. Appeal to sheriff. 
 
 21. Recovery of compensation. 
 
 22. Appointment of guardian. 
 
 23. Expenses in Sheriff Courts. 
 
 Charge of Tenant's Compensation. 
 
 24. Power for landlord on paying compensation to obtain charge. 
 
 25. Advance made by a company. 
 
 26. Duration of charge. 
 
 Removing for Non-Payment of Rent. 
 
 27. Tenants to be removed only at legal terms. 
 
584 
 
 46 AND 47 VICTORIA, CHAPTER 62. 
 
 [appx. 
 
 Notice of Termination of Tenancy. 
 Section 
 
 28. Notice of termination of tenancy. 
 
 29. Bequest of lease. 
 
 Fixtures. 
 
 30. Tenant's property in fixtures, machinery, &c. 
 
 Grown Lands. 
 
 31. Application of Act to Crown land?. 
 
 Ecclesiastical and Charity Lands. 
 
 32. Consents in case of glebes, &c. 
 
 33. Provision as to limited owners. 
 
 General Provisions. 
 
 Commencement of Act. 
 Application of Act, 
 
 34. 
 35. 
 36. 
 37. 
 
 Avoidance of agreement inconsistent with Act. 
 Right of tenant in respect of improvement purchased from outgoing 
 tenant. 
 
 38. Compensation under this Act to be exclusive. 
 
 39. Provision as to change of tenancy. 
 
 40. General saving of rights. 
 
 41. Consents, &c., not subject to statutes regulating execution of deeds. 
 
 42. Interpretation. 
 
 43. Short title of Act. 
 Schedule. 
 
 General right 
 of tenant to 
 compensation. 
 
 Restriction as 
 to improve- 
 ments before 
 Act. 
 
 An Act for amending the Law relating to Agricultural Holdings in 
 Scotland.— [25th August 1883.] 
 
 BE it enacted by the Queen's most Excellent Majesty, by and with 
 the advice and consent of the Lords Spiritual and Temporal, and 
 Commons, in this present Parliament assembled, and by the authority 
 of the same, as follows : — 
 
 Compensation for Im,provements. 
 
 1. Subject as in this Act mentioned, a tenant who has made on his 
 holding any improvement specified in the schedule hereto, shall, from 
 and after the commencement of this Act, be entitled on quitting his 
 holding at the determination of a tenancy to obtain from the landlord as 
 compensation under this Act for such improvement such sum as fairly 
 represents the value of the improvement to an incoming tenant : 
 Provided always, that in estimating the value of any improvement in 
 the schedule hereto there shall not be taken into account as part of the 
 improvement made by the tenant what is justly due to the inherent 
 capabilities of the soil. 
 
 As to Improvements executed before the Commencement of Act. 
 
 2. Compensation under this Act shall not be payable in respect of 
 improvements executed before the commencement of this Act with 
 these exceptions, namely, — 
 
 (1) Where a tenant has within ten years before the commencement 
 of this Act executed an improvement specified in the third part of 
 
NO. II.] AGRICULTURAL HOLDINGS (sCOTLAND) ACT, 1883. §85 
 
 the schedule hereto which he was not under an express obligation 
 to make, and he is not entitled under any contract or custom to 
 compensation in respect of such improvement ; or, 
 (2) Where a tenant has executed an improvement mentioned in the 
 first or second part of this schedule within ten years previous to 
 the commencement of this Act, and he is not entitled under any 
 contract or custom to compensation in respect of such improvement, 
 and the landlord, within one year after the commencement of this 
 Act, declares in writing his consent to the making of the improve- 
 ment. 
 In either of these cases the tenant, on quitting his holding at the 
 determination of the tenancy after the commencement of this Act, may 
 claim compensation under this Act in respect of the improvement which 
 he has executed in the same manner as if this Act had been in force at 
 the time of the execution of such improvement. 
 
 As to Improvements executed after the Commencement of Act. 
 
 3. Compensation under this Act shall not be payable in respect of any Consent of 
 improvement specified in the first part of the schedule hereto, and landlord as to 
 executed after the commencement of this Act, unless the landlord, or his ;„ gj.gt p^rt of 
 agent duly authorised on that behalf, has, previously to the execution of schedule. 
 the improvement, and after the passing of this Act, consented in writing 
 
 to the execution of such improvement, and any such consent may be 
 given by the landlord unconditionally, or upon such terms as to com- 
 pensation, or otherwise, as may be agreed upon between the landlord 
 and the tenant, and in the event of any agreement being made between 
 the landlord and the tenant, the compensation payable thereunder shall 
 be deemed to be substituted for compensation under this Act. 
 
 4. Compensation under this Act shall not be payable in respect of any Notice to 
 improvement specified in the second part of the schedule hereto, and landlord as to 
 executed after the commencement of this Act, unless the tenant has, not i^gecond'part 
 more than three months and not less than two months before beginning of schedule, 
 to execute such improvement, given to the landlord, or his duly author- 
 ised agent, notice in writing of his intention so to do, and of the manner 
 
 in which he proposes to do the intended work, and upon such notice 
 being given, the landlord and tenant may agree on the terms as to com- 
 pensation or otherwise on which the improvement is to be executed, and 
 in the event of an agreement being made, that the improvement is to be 
 executed by the tenant, the compensation payable thereunder shall be 
 deemed to be substituted for compensation under this Act, or the land- 
 lord may undertake to execute the improvement himself, and unless the 
 notice is previously withdrawn, proceed to do so in any reasonable and 
 proper manner which he thinks fit, and charge the tenant with a sum 
 not exceeding five pounds per centum per annum on the outlay incurred 
 in executing the improvement, or not exceeding svich annual sum pay- 
 able for a period of twenty-five years, as will repay such outlay in the 
 said period, with interest at the rate of three per centum per annum, 
 such annual sums to be recoverable as rent. In default of any such 
 agreement or undertaking, and also in the event of the landlord failing 
 to comply with his undertaking within a reasonable time, the tenant 
 may execute the improvement himself, and shall, in respect thereof, be 
 entitled to compensation under this Act. 
 
 Where in the case of a tenancy under a lease current at the passing 
 
586 46 AND 47 victoria, chapter 62. [appx. 
 
 of tlis Act there is in such lease, or in any relative writing made prior 
 to the passing hereof, an express stipulation limiting the outlay on any 
 improvement specified in the second part of the schedule hereto, 
 the tenant shall have no claim to compensation under this Act for any 
 such improvement in excess of the sum provided for in such stipulation. 
 The landlord and tenant may, if they think fit, dispense with any 
 notice under this section, and come to an agreement in terms of the 
 lease or otherwise between themselves in the same manner and of the 
 same validity as if such notice had been given. 
 Reservation as 5- Where, in the case of a tenancy under a lease current at the 
 to existing and commencement of this Act, any agreement in writing or custom provides 
 future leases, gpggjgg compensation for any improvement specified in the schedule hereto, 
 compensation in respect of such improvement, although executed after 
 the commencement of this Act, shall be payable in pursuance of such 
 agreement or custom, and shall be deemed to be substituted for compen- 
 sation under this Act. 
 
 Where, in the case of a tenancy under a lease beginning after the 
 commencement of this Act, any particular agreement in writing secures 
 to the tenant for any imjjrovement specified in the third part of the 
 schedule hereto, and executed after the commencement of this Act, fair and 
 reasonable compensation, having regard to the circumstances existing 
 at the time of making such agreement, then in such case the compen- 
 sation iii respect of such improvement shall be payable in pursuance of 
 the particular agreement and not under this Act. 
 
 The last preceding provision of this section relating to a particular 
 agreement shall apply in the case of a tenancy under a lease current at 
 the commencement of this Act in respect of an improvement specified 
 in the third part of the schedule hereto, specific compensation for which 
 is not provided by any agreement in writing or custom. 
 
 Regulations as to Compensation /or Improvements. 
 
 Compensation 6. In the ascertainment of the amount of the compensation under 
 for improve- this Act payable to the tenant in respect of any improvement there 
 shall be taken into account in reduction thereof : 
 
 (a) Any benefit which the landlord has given or allowed to the 
 tenant in consideration of the tenant executing the improvement ; 
 and 
 (6) In the case of compensation for manures the value of the manure 
 that would have been produced by the consumption on the holding, 
 according to the rules of good husbandry or according to the terms 
 of any written contract specifying such rules, of any crops sold 
 off or removed from the holding within the last two years of the 
 tenancy or other less time for which the tenancy has endured, 
 except in so far as a proper return of manure to the holding has 
 been made in respect of such produce so sold off or removed. 
 The amount of compensation payable to the tenant shall be subject to 
 deduction of any sums due to the landlord : 
 
 (1) For rent payable in respect of the holding ; 
 
 (2) For any taxes, rates, or public burdens, or interest, moneys 
 payable in respect of drainage, premiums of insurance payable in 
 respect of the holding for which the tenant is liable as between him 
 and the landlord ; 
 
NO. II.] AGEICULTURAL HOLDINGS (SCOTLAND) ACT, 1883. 587 
 
 (3) For the breach of any stipulation of the lease, or of any contract 
 : relative to the lease, committed by the tenant ; 
 
 (4) For any deterioration committed or permitted by the tenant ; 
 There shall be added to the tenant's compensation any sum due to 
 
 the tenant for compensation in respect of a breach of any stipulation of 
 a lease, or other contract relative to a lease, committed by the landlord. 
 Nothing in this section shall enable a landlord to obtain under this 
 Act compensation in respect of deterioration by the tenant or of breach 
 of any stipulation by the tenant committed or permitted in relation to 
 cultivation or management more than four years before the determina- 
 tion of the tenancy. 
 
 Procedure. 
 
 7. Notwithstanding anything in this Act, a tenant shall not be Notice of 
 entitled to compensation under this Act unless four months at least int^iKied 
 before the determination of the tenancy he gives notice in writing to 
 
 the landlord of his intention to make a claim for compensation under 
 this Act. 
 
 Where a tenant gives such a notice the landlord may, before tlie 
 determination of the tenancy, or within fourteen days thereafter, give a 
 counter-notice in writing to the tenant of his intention to make a claim 
 for compensation under this Act. 
 
 Every such notice and counter-notice shall state, as far as reasonably 
 may be, the particulars and amount of the intended claim. 
 
 8. The landlord and the tenant may agree on the amount and mode Compensa- 
 and time of payment of compensation to be paid to the tenant or to the or°settled 
 landlord under this Act. by refer- 
 
 If in any case they do not so agree the difference shall be settled by a ^n"®- 
 reference. 
 
 9. Where there is a reference under this Act, a single referee or two Appoint- 
 referees and an oversman, shall be appointed as follows : — '"^i* °f 
 
 (1) If the parties concur, a single referee may be appointed by them referees 
 jointly : and overs- 
 
 (2) If before an award is pronounced the single referee dies or ""*"■ 
 becomes incapable of acting, or for seven days after notice from 
 the parties of his appointment he fails to accept the reference and 
 
 to act, the proceedings shall begin afresh, as if no referee had been 
 appointed : 
 
 (3) If the parties do not concur in the appointment of a single 
 referee, each of them shall appoint a referee : 
 
 (4) If before an award is pronounced one of two referees dies or 
 becomes incapable of acting, or for seven days after notice from 
 the party appointing him of his appointment fails to accept the 
 reference and to act, the party appointing him shall appoint 
 another referee : 
 
 (5) Notice of every appointment of a referee by either party shall be 
 given to the other party : 
 
 (6) If for seven days after notice by one party to the other to 
 appoint a referee, or failing a referee appointed, another referee, 
 the other party fails to do so, then, on the application of the party 
 giving notice, the sheriff shall within fourteen days appoint a com- 
 petent and impartial person to be a referee : 
 
 (7) Where two referees are appointed they shall before they enter 
 on the reference appoint an oversman : 
 
888 
 
 46 AND 4? VICTORIA, CHAPTER 62. 
 
 [appx. 
 
 Requisition 
 for appoint- 
 ment of overs- 
 man by the 
 sheriff. 
 
 Mode of 
 submission to 
 reference. 
 
 Power for 
 referee, &c., 
 to require 
 liroduction of 
 documents, 
 administer 
 oaths, &c. 
 
 Power to 
 proceed in 
 absence. 
 
 Form of 
 award. 
 
 Time for 
 award of 
 referee or 
 referees. 
 
 Reference to 
 and award by 
 oversman. 
 
 (8) If before an award is pronounced an oversman dies or becomes 
 incapable of acting, the referees shall appoint another oversman : 
 
 (9) If for seven days after request from either party the referees fail 
 to appoint an oversman, or failing an oversman appointed, another 
 oversman, then, on the application of either party, the sheriff shall 
 •within fourteen days appoint a competent and impartial person to 
 be the oversman : 
 
 (10) Every appointment, notice, and request under this section shall 
 be in writing. 
 
 The powers of the sheriff under this section shall be exerciseable by 
 him although he may not be at the time within the county. 
 
 10. Where two referees are appointed, an oversman may be 
 appointed, as follows : 
 
 If either party on appointing a referee requires by notice in writing 
 to the other that the oversman shall be appointed by the sheriff, 
 then the oversman and any successor to him shall be appointed, on 
 the application of either party, by the sheriff. 
 
 11. The delivery to a referee of his appointment shall be deemed a 
 submission to a reference by the party delivering it, and neither party 
 shall have power to revoke a submission, or the appointment of a 
 referee, without the consent of the other. 
 
 12. The referee or referees or oversman may call for the production 
 of any sample or voucher or other document or evidence which is in the 
 possession or power of either party, or which either party can produce, 
 and which seems to the referee or referees or oversman necessary for 
 the determination of the matters referred, and may take the examina- 
 tion of the parties and witnesses on oath, and may administer oaths and 
 take affirmations ; and if any person so sworn or affirming wilfully 
 and corruptly gives false evidence he shall be guilty of perjury. 
 
 13. The referee or referees or oversman may proceed in the absence 
 of either party where this course appears to him or them expedient after 
 notice given to the parties. 
 
 14. The award shall be in writing, signed by the referee or referees 
 or oversman as the case may be. 
 
 15. A single referee shall pronounce his award and have the same 
 ready for delivery within twenty-eight days after his appointment. 
 
 Two referees shall pronounce their award and have the same ready 
 for delivery within twenty-eight days after the appointment of the last 
 appointed of them, or within such extended time (if any) as they may 
 from time to time jointly have fixed by writing under their hands, so 
 that they have their award ready for delivery within a time not exceed- 
 ing in the whole forty-nine days after the appointment of the last 
 appointed of them. 
 
 16. Where two referees are appointed and act, if they fail to pro- 
 nounce their award and have the same ready for delivery within the 
 time aforesaid, then, on the expiration of that time, their powers as 
 referees shall cease and determine, and thereupon the matters referred 
 to them shall stand referred to the oversman. 
 
 The oversman shall pronounce his award and have the same ready for 
 delivery within twenty-eight days after notice in writing given to him 
 by either party or referee of the devolution of the reference to him, or 
 within such extended time (if any) as the sheriff, on the application of 
 the oversman, or of either party, may fix, so that the oversman pro- 
 
NO. II.] AGRICULTUfiAL HOLDINGS (SCOTLAND) ACr, 1883. 58 9 
 
 nounce his award and have the same ready for delivery within a time 
 not exceeding in the whole forty-nine days, after notice to him as 
 aforesaid. 
 
 The powers of the sheriff under this section shall be exerciseable 
 by him although he may not be at the time within the county. 
 
 In any case provided for by sections three, four, or five, if compen- 
 sation is claimed under this Act, such compensation, as under any of 
 those sections, is to be deemed to be substituted for compensation under 
 this Act, if and so far as the same can consistently with the terms of the 
 agreement, if any, be ascertained by the referees or the oversman, shall 
 be awarded in respect of any improvements thereby provided for, and 
 the award shall, when necessary, distinguish such improvements, and 
 the amount awarded in respect thereof, and an award given under this 
 section shall be subject to the appeal provided by this Act. 
 
 17. The award shall not find due or decern for a sum generally for Award to give 
 compensation, but shall, as far as reasonably may be, specify — particulars. 
 
 (a) The several improvements, acts, and things in respect whereof 
 compensation is awarded, and the several matters and things taken 
 into account in reduction or augmentation of such compensation ; 
 
 (6) The time at which each of the improvements, acts, or things was 
 executed, committed, permitted, or omitted ; 
 
 (c) The sum awarded in respect of each improvement, act, matter, or 
 thing; and 
 
 (d) Where the landlord desires to charge his estate with the amount 
 of compensation found due to the tenant, the time at which, for 
 the purposes of such charge, each improvement, act, or thing 
 in respect of which compensation is awarded is to be deemed to 
 be exhausted. 
 
 18. The expenses of and connected with the reference, including the Expenses of 
 remuneration of the referee or referees and oversman, and other proper •■«f«'^s'"!e- 
 expenses, shall be borne and paid by either party in whole or by the 
 
 parties in such proportions as to the referee or referees or oversman 
 appears just, regard being had to the reasonableness or unreasonableness 
 of the claims of the parties or either of them, and to the whole circum- 
 stances of the case. 
 
 The award may decern for the payment of the whole or any part of 
 the expenses by either party to the other, and in that case the award 
 shall specify the amount to be so paid. 
 
 The amount of the expenses shall be subject to taxation by the 
 auditor of the Sheriff Court, on the application of either party, but that 
 taxation shall be subject to review by the sheriff. 
 
 19. The award shall fix a day, not sooner than one month after the Day for 
 delivery of the award, for the payment of the money awarded for payment. 
 compensation, expenses, or otherwise. 
 
 20. Where the sum claimed for compensation exceeds one hundred Appeal to 
 pounds, either party may, within seven days after delivery of the award, sheriff. 
 appeal against it to the sheriff on all or any of the following grounds : 
 
 (1) That the award is invalid ; 
 
 (2) That the award proceeds wholly or in part upon an improper 
 application of, or upon the omission properly to apply, the 
 special provisions of sections three, four, or five of this Act. 
 
 (3) That compensation has been awarded for improvements, acts, or 
 things, or for breaches of stipulations or agreements, or for 
 
590 
 
 46 AND 47 VICTOEIA, CHAPTER 62. 
 
 [appx. 
 
 Recovery of 
 compensation. 
 
 Appointment 
 of guardian. 
 
 Expenses in 
 Sheriff Courts. 
 
 committing or permitting deterioration in respect of which the 
 party claiming was not entitled to compensation ; 
 (4) That compensation has not been awarded for improvements, acts, 
 or things, or for breaches of stipulations or agreements, or for 
 committing or permitting deterioration in respect of which the 
 party claiming was entitled to compensation ; 
 and the sheriff shall hear and determine the appeal, and may, in his 
 discretion, remit the case to be reheard as to the whole or any part 
 thereof by the referee or referees or oversman, with such directions as 
 he may think fit. 
 
 If no appeal is so brought the award shall be final. 
 The decision of the sheriff on appeal shall be final. 
 
 21. Where any money agreed or awarded or ordered on appeal to be 
 paid for compensation, expenses, or otherwise, is not paid within one 
 month after the time when it is agreed or awarded or ordered to be 
 paid, it shall be competent to record the agreement or award in the 
 books of the Sheriff Court, to the effect of enabling execution to pass 
 thereon in common form as upon an extract registered bond or decree 
 arbitral ; and any order for payment made by a sheriff on appeal shall 
 be enforced in the same manner as a decree for payment made under his 
 ordinary jurisdiction is enforced. 
 
 22. Where a landlord or a tenant is a pupil or minor, or is of unsound 
 mind, not having a tutor, curator, or other guardian, the sheriff, on the 
 application of any person interested, may appoint to him a tutor or 
 curator for the purposes of this Act, and may recall the appointment of 
 such tutor or curator and appoint another tutor or curator if and as 
 occasion requires. 
 
 23. The Court of Session may by Act of Sederunt from time to time 
 prescribe a scale of expenses for such proceedings in the Sheriff Court, 
 and such expenses shall be taxed by the auditor of the Sheriff Court. 
 
 Power for 
 landlord on 
 paying com- 
 pensation to 
 obtain charge. 
 
 Charge of Tenant's Compensation. 
 
 24. A landlord on paying to the tenant the amount due to him in 
 respect of compensation under this Act, or in respect of compensation 
 authorised by this Act to be substituted for compensation under this 
 Act, or on his defraying himself the cost of improvements proposed to 
 be executed by the tenant, shall be entitled to obtain from the sheriff 
 authority to charge the holding, or the estate of which it forms part, in 
 respect thereof. 
 
 The sheriff shall have power, on proof of the payment, and on being 
 satisfied of the observance in good faith by the parties of the conditions 
 imposed by this Act, to grant authority to the landlord to charge the 
 holding, or the estate of which it forms part, by executing and register- 
 ing in the Register of Sasines a bond and disposition in security over it 
 for repayment of the amount paid, or any part thereof, with such 
 interest, and by such instalments, as the sheriff may determine ; or, if 
 the landlord has only a leasehold interest in the holding, by executing 
 and duly registering in the Register of Sasines an assignation of the 
 lease in security and for repayment of the amount paid, or any part 
 thereof, with such interest and by such instalments, as the sheriff may 
 determine. 
 
 But, where the landlord obtaining the charge is not absolute owner 
 
NO. II.] AGRICULTUEAL HOLDINGS (SCOTLAND) ACT, 1883. 591 
 
 of the holding for his own benefit, no instalment or interest shall by 
 such bond and disposition in security or assignation be made payable 
 after the time when the improvement in respect whereof compensation 
 is paid will, where an award has been made, be taken to have been 
 exhausted according to the declaration of the award, and in any other 
 case after the time when any such improvement will in the judgment of 
 the sheriff, after hearing such evidence (if any) as he thinks expedient, 
 have become exhausted ; and such bond and disposition in security or 
 assignation shall specify the times at which the total amount charged 
 and each instalment thereof shall be payable. 
 
 The instalments and interest shall be charged in favour of the land- 
 lord, his executors, administrators, and assignees. 
 
 Any charge under this section shall rank after all prior charges and 
 burdens heritably secured upon the holding or estate. 
 
 Where a holding or estate is charged by the landlord under this 
 section, such charge shall not be deemed to be a contravention of any 
 prohibition against charging or burdening contained in the deed or 
 instrument under which the holding or estate is held by the landlord. 
 
 The price of any entailed land sold under the provisions of the Entail 
 Acts, where such price is entailed estate within the meaning of those 
 Acts, may be applied by the landlord in respect of the remaining 
 portion of the entailed estate, or in respect of any other estate belonging 
 to him, and entailed upon the same series of heirs, in payment of any 
 expenditure and costs incurred by him in pursuance of this Act for 
 executing or paying compensation for any improvement mentioned in 
 the first or second parts of the schedule hereto, or in discharge of any 
 charge with which the estate is burdened in pursuance of this Act in 
 respect of such improvement. 
 
 25. Any company now or hereafter incorporated by Parliament, or Advance made 
 incorporated under the Companies Acts, and having power to advance ^y ^ company, 
 money for the improvement of land, or for the cultivation and farming 
 
 of land, may make an advance of money upon a bond and disposition in 
 security, or upon an assignation, as the case may be, executed by 
 authority of the sheriff' under the provisions of this Act, upon such 
 terms and conditions as may be agreed upon between such company and 
 the person entitled to such charge ; and such company may assign any 
 charge so acquired by them to any person or persons whomsoever. 
 
 26. The sum charged by the order of a sheriff under this Act shall be Duration of 
 a charge on the holding or the estate of which it forms part for the "charge, 
 landlord's interest therein, and for all interests therein subsequent to 
 
 that of the landlord ; provided that the charge shall not extend beyond 
 the interest of the landlord, his executors, administrators, and assignees 
 where the landlord has only a leasehold interest in the holding. 
 
 Removing for Non-Payment of Bent. 
 
 27. In any case in which the landlord's right of hypothec for the rent Tenants to be 
 has ceased and determined— ItT'lHems 
 
 When six months' rent of the holding is due and unpaid, it shall be 43 viot. c. 12. 
 lawful for the landlord to raise an action of removing before the sheriff' 
 against the tenant, concluding for his removal from the holding at the 
 term of Whitsunday or Martinmas next ensuing after the action is 
 brought, and unless the arrears of rent then due are paid, or caution 
 
592 46 AND 47 victoria, chapter 62. [appx. 
 
 is found to the satisfaction of the sheriff for the same, and for one year's 
 rent further, the sheriff may decern the tenant to remove, and eject him 
 at such term in the same manner as if the lease were determined, and 
 the tenant had been legally warned to remove. 
 
 A tenant so removed shall have the rights of an outgoing tenant to 
 which he would have been entitled if his lease had naturally expired at 
 such term of Whitsunday or Martinmas. 
 
 The second and third sections of the Hypothec Abolition (Scotland) 
 Act, 1880, are hereby repealed, and the provisions of the fifth section 
 of the Act of Sederunt anent removing of the fourteenth day of 
 December one thousand seven hundred and fifty-six shall not apply in 
 any case in which the procedure under this section is competent. 
 
 Notice of Termination of Tenancy. 
 
 Notice of 28- Notwithstanding the expiration of the stipulated endurance of 
 
 termination of any lease, the tenancy shall not come to an end unless written notice 
 tenancy. j^^^g been given by either party to the other of his intention to bring the 
 
 tenancy to an end — 
 
 (a) In the case of leases for three years and upwards, not less than 
 one year, nor more than two years, before the termination of the 
 lease : 
 
 (b) In the case of leases from year to year, or for any other period 
 less than three years, not less than sis months before the termina- 
 tion of the lease. 
 
 Failing such notice by either party the lease shall be held to be 
 renewed by tacit relocation for another year, and thereafter from year 
 to year. 
 
 Notice by the landlord to the tenant under this section shall be given 
 in the form and manner prescribed by the Sheriff Courts (Scotland) 
 l6&17Yiot. Act, 1853, and shall come in place of the notice required by the said 
 "■ 80- Act. 
 
 Provided that nothing contained in this section shall affect the right of 
 the landlord to remove a tenant who has been sequestrated under the 
 Bankruptcy (Scotland) Act, 1856, or who by failure to pay rent or 
 otherwise has incurred any irritancy of his lease, or other liability to 
 be removed : 
 
 The provisions relative to notice herein contained shall not apply to 
 any stipulation La a lease entitling the landlord to resume land for 
 building, planting, feuing, or other purposes, or to subjects let for any 
 period less than a year. 
 Bequest of 29. A tenant may by will, or other testamentary writing, bequeath 
 
 ^^^- his lease to any person (hereinafter called 'the legatee'), subject to the 
 
 following provisions : — 
 
 (a) The legatee shall intimate the testamentary bequest to the land- 
 lord or his known agent within twenty-one days after the death of 
 the tenant, unless he is prevented by some unavoidable cause from 
 making intimation within that time, and in that event he shall 
 make intimation as soon as possible thereafter. 
 (6) Intimation to the landlord or his known agent by the legatee 
 shall import acceptance of the lease by the legatee. 
 
 (c) Within one month after intimation has been made to the land- 
 lord or his known agent, he may intimate to the legatee that he 
 objects to receive him as tenant under the lease ; 
 
NO. II.] AGBICULTUEAL HOLDINGS (SCOTLAND) ACT, 1883. 593 
 
 If the landlord or his known agent makes no such intimation within 
 one month, the lease shall be binding on the landlord and the 
 legatee respectively as landlord and tenant as from the date of the 
 death of the deceased tenant. 
 
 (d) If the landlord or his known agent intimates that he objects to 
 receive the legatee as tenant under the lease, the legatee may 
 present a petition to the sheriff, praying for decree declaring that 
 he is tenant under the lease as from the date of the death of the 
 deceased tenant, of which petition due notice shall be given to the 
 landlord, who may enter appearance, and state his grounds of 
 objection ; and if any reasonable ground of objection is established 
 to the satisfaction of the sheriff, he shall declare the bequest to be 
 null and void; but otherwise he shall decern and declare in terms 
 of the prayer of the petition. 
 
 (e) The decision of the sheriff under such petition as aforesaid shall 
 be final. 
 
 (/) Pending any proceedings under this section, the legatee shall 
 have possession of the holding, unless the sheriff shall otherwise 
 direct on cause shown. 
 
 (g) If the legatee does not accept the bequest, or if the bequest is 
 declared to be null and void as aforesaid, the lease shall descend to 
 the heir of the tenant in the same manner as if the bequest had not 
 been made. 
 
 Fixtures. 
 
 30. Where after the commencement of this Act a tenant affixes to Tenant's 
 his holding any engine, machinery, fencing, or other fixture, or erects property in 
 any building for which he is not under this Act or otherwise entitled to fi^*'^^^. 
 compensation, and which is not so affixed or erected in pursuance of &c. ' 
 
 some obligation in that behalf or instead of some fixture or building 
 belonging to the landlord, then such fixture or buildiug shall be the 
 property of and be removeable by the tenant before or within a reason- 
 able time after the termination of the tenancy : 
 
 Provided as follows : — 
 
 1. Before the removal of any such fixture or building the tenant shall 
 
 pay all rent owing by him, and shall perform or satisfy all his 
 other obligations to the landlord in respect to the holding : 
 
 2. In the removal of any fixture or building the tenant shall not do 
 
 any avoidable damage to any other building or other part of the 
 holding : 
 
 3. Immediately after the removal of any fixture or buildiug the 
 
 tenant shall make good all damage occasioned to any building or 
 other part of the holding by the removal : 
 
 4. The tenant shall not remove any fixture or building without giving 
 
 one month's previous notice in writing to the landlord of the 
 intention of the tenant to remove it : 
 
 5. At any time before the expiration of such notice the landlord, by 
 
 notice in writing given by him to the tenant, may elect to 
 purchase any fixture or building specified in the notice given by 
 the tenant as aforesaid, and any fixture or building thus elected 
 to be purchased shall be left by the tenant, and shall become the 
 property of the landlord, who shall pay the tenant the fair value 
 thereof to an incoming tenant of the holding ; and any difference 
 
 2 P 
 
594 46 AND 47 victoria, chapter 62. [appx. 
 
 as to the value shall be settled by a reference under this Act, as 
 in case of compensation (but without appeal). 
 
 Crown Lands. 
 
 31. This Act shall extend and apply to land belonging to Her 
 Acfto Cro™* Majesty the Queen, her heirs and successors, in right of the Crown. 
 lands. With respect to such land, for the purposes of this Act, the Com- 
 
 missioners of Her Majesty's Woods, Forests, and Land Revenues, or 
 one of them, or other the proper officer or body having charge of such 
 land for the time being, or in case there is no such officer or body, then 
 such person as Her Majesty, her heirs or successors, may appoint in 
 writing under the royal sign manual, shall represent Her Majesty, her 
 heirs and successors, and shall be deemed to be the landlord. 
 
 Any compensation payable under this Act by the Commissioners of 
 Her Majesty's Woods, Forests, and Land Revenues, or either of them, 
 in respect of an improvement of the first class, shall be deemed to be 
 payable in respect of an improvement of land within section one of the 
 Crown Lands Act, 1866, and the amount thereof shall be charged and 
 repaid as in that section provided with respect to the costs, charges, and 
 expenses therein mentioned. 
 
 Any compensation payable under this Act by those Commissioners, or 
 either of them, in respect of an improvement of the second class, or of 
 the third class, shall be deemed to be part of the expenses of the 
 management of the Land Revenues of the Crown, and shall be payable 
 by those Commissioners out of such money and in such manner as the 
 last-mentioned expenses are by law payable. 
 
 Ecclesiastical and Charity Lands. 
 
 Consents in 32. The powers by this Act conferred on a landlord shall not be 
 
 case of glebes, exercised by ministers in respect of their glebes, except with the previous 
 
 ^"^ approval in writing of the Presbytery of the bounds, and shall not be 
 
 exercised by trustees for ecclesiastical, educational, or charitable 
 
 purposes, except with the previous approval in writing of one of Her 
 
 Majesty's principal Secretaries of State. 
 
 Provision as 33. Subject to the provisions of this Act in relation to Crown, 
 
 to limited ecclesiastical, and charity lands, a landlord, whatever may be his estate 
 
 or interest in his holding, may give any consent, make any agreement, 
 
 or do or have done to him any act in relation to improvements in respect 
 
 of which compensation is payable under this Act which he might give 
 
 or make or do or have done to him if he were absolute owner of the 
 
 holding. 
 
 General Provisions. 
 
 34. This Act shall come into force on the first day of January one 
 thousand eight hundred and eighty-four, which day is in this Act 
 referred to as the commencement of this Act. 
 
 AppUoation 35. Nothing in this Act shall apply to a holding that is not either 
 
 wholly agricultural or wholly pastoral, or in part agricultural, and as 
 to the residue pastoral, or in whole or in part cultivated as a market- 
 garden, or to any holding let to the tenant during his continuance in 
 any office, appointment, or employment of the landlord. 
 
 Avoidance of 36. Any contract or agreement made by a tenant by virtue of which 
 
 hfconSsTent ^^ ^' deprived of his right to claim compensation under this Act in 
 
 with Act. 
 
 owners. 
 
 Commence- 
 ment of Act. 
 
NO. II.] AGRICULTURAL HOLDINGS (SCOTLAND) ACT, 1883. 595 
 
 respect of any improvement specified in the schedule hereto (except an 
 agreement providing such compensation as is by this Act permitted to 
 be substituted for compensation under this Act) shall, so far as it 
 deprives him of such right, be void. 
 
 37. Where an incoming tenant has, with the consent in writing of his Eight of 
 landlord paid to an outgoing tenant any compensation payable under or refneot of 
 in pursuance of this Act in respect of the whole or part of any improve- improvement 
 ment, such incoming tenant shall be entitled on quitting the holding to purchased 
 claim compensation in respect of such improvement or part in like tenant!^ ^""^ 
 manner, if at all, as the outgoing tenant would have been entitled if he 
 
 had remained in the tenancy, and quitted the holding at the time at 
 which the incoming tenant quits the same. 
 
 38. A tenant shall not be entitled to claim compensation by custom Compensation 
 or otherwise than in manner authorised by this Act in respect of any y^er this Act 
 
 ■ • . to bs GxclusiVG 
 
 improvement for which he is entitled to compensation under this Act, 
 but where he is not entitled to compensation under this Act he may 
 recover compensation under any agreement or custom in the same 
 manner as if this Act had not passed. 
 
 39. A tenant who has remained in his holding during a change or Provision as to 
 changes of tenancy shall not thereafter on quitting his holding at the ^hange of 
 determination of a tenancy be deprived of his right to claim compensa- 
 tion in respect of improvements by reason only that such improvements 
 
 were made during a former tenancy or tenancies, and not during the 
 tenancy at the determination of which he is quitting. 
 
 40. Except as in this Act expressed, nothing in this Act shall take General saving 
 away, abridge, or prejudicially affect any power, right, or remedy of a °^ rights, 
 landlord, tenant, or other person vested in or exerciseable by him by 
 
 virtue of any other Act or law, or under any custom of the country, or 
 otherwise, in respect of a lease or other contract or of any improvements, 
 deteriorations, away-going crops, fixtures, tax, rate, teind, rent, or 
 other thing. 
 
 41. It shall be no objection to the validity of any consent in writing Consents, &o., 
 or agreement in writing within the provisions of this Act signed by the not subject 
 party or parties thereto or by any person or persons authorised by him reg^iltin^^ 
 or them that such consent or agreement has not been executed in exeoutioiTot 
 accordance with the statutes regulating the execution of deeds in deeds. 
 Scotland. 
 
 42. In this Act — Interpre- 
 ' Lease' means a letting of or agreement for the letting land for a t^tion. 
 
 term of years, or for lives, or for lives and years, or from year to 
 year : 
 
 A tenancy from year to year under a lease current at the commence- 
 ment of the Act shall for the purposes of this Act be deemed to 
 continue to be a tenancy under a lease current at the commence- 
 ment of this Act until the first day after the commencement of 
 this Act, on which either the landlord or tenant of such tenancy 
 could, the one by giving notice to the other, cause such tenancy 
 to determine, and on and after such day as aforesaid shall be 
 deemed to be a tenancy under a contract of tenancy beginning 
 after the commencement of this Act : 
 
 ' Determination of tenancy ' means the termination of a lease by 
 reason of effluxion of time, or from any other cause : 
 
 ' Landlord ' iii relation to a holding means any person for the time 
 
596 46 AND 47 VICTOEIA, CHAPTER 62. [appx. 
 
 being entitled to receive tlie rents and profits of or to take 
 possession of any holding : 
 ' Tenant ' means the holder of land under a lease : 
 ' Landlord ' or ' tenant ' includes the executors, administrators, 
 assignees, legatee, disponee, or next-of-kin, husband, guardian, 
 curator bonis, or trustees in bankruptcy, of a landlord or tenant : 
 ' Holding ' means any piece of land held by a tenant : 
 ' Absolute owner ' means the owner or person capable of disposing, 
 by disposition or otherwise, of the fee-simple or, dominium utile, 
 of the whole interest of or in land, although the land or his 
 interest therein is burdened, charged, or encumbered : 
 ' Person ' includes a body of persons and a corporation : 
 ' Sheriff Courts (Scotland) Act, 1853,' means an Act passed in the 
 sixteenth and seventeenth year of Her present Majesty's reign, 
 chapter eighty, intituled ' An Act to facilitate procedure in the 
 ' Sheriff Courts in Scotland ' : 
 ' Companies Acts ' means the Companies Acts, 1 862 to 1880, and any 
 
 Act amending the same : 
 'Sheriff' includes sheriff-substitute. 
 
 The designations of landlord and tenant shall continue to apply to the 
 parties until the conclusion of any proceedings taken under this Act in 
 respect of compensation for improvements. 
 Short title of 43. This Act may be cited for all purposes as ' The Agricultural 
 Aot- ' Holdings (Scotland) Act, 1883,' and shall apply to Scotland only. 
 
 Schedule. 
 
 PART I. 
 
 Improvements to which Consent of Landlord is required. 
 
 (1) Erection or enlargement of building. 
 
 (2) Formation of silos. 
 
 (3) Laying down of permanent pasture. 
 
 ^4) Making of water meadows or works of irrigation. 
 
 (5) Making of gardens. 
 
 (6) Making or improving of roads or bridges. 
 
 (7) Making or improving of water-courses, ponds, wells, or reservoirs, 
 
 or of works for supply of water for agricultural or domestic 
 purposes. 
 
 (8) Making of permanent fences. 
 
 (9) Reclamation of waste land. 
 
 (10) Weiring or embanking of land and sluices against floods. 
 
 PART II. 
 
 Improvement in respect of which Notice to Landlord is required. 
 
 (11) Drainage. 
 
 PART III. 
 
 Improvements to which Consent of Landlord is not required. 
 
 (12) Boning of land with undissolved bones. 
 
 (13) Claying of land or spreading blaes upon land. 
 
 (14) Liming of land. 
 
 (15) Marling of land. 
 
NO. III.] HYPOTHEC AMENDMENT (SCOTLAND) ACT, 1867. 597 
 
 (16) Application to land of purchased artificial or other purchased 
 
 manure. 
 
 (17) Consumption on the holding by cattle, sheep, or pigs of cake or 
 
 other feeding stuff not produced on the holding. 
 
 No. III. 
 
 30 & 31 VICTORIA, c. 42. 
 
 An Act to amend the Law relating/ to the Landlord's Right of Hypothec 
 in Scotland, in so far as respects Land held for Agricultural or 
 Grazing Purposes. — \\5th July, 1867.] 
 
 WHEREAS it is expedient to amend the Law relating to the 
 landlord's right of hypothec in Scotland, in so far as respects 
 land held for grazing or agricultural purposes : 
 
 Be it enacted by the Queen's most Excellent Majesty, by and with 
 the advice and consent of the Lords Spiritual and Temporal, and 
 Commons, in this present Parliament assembled, and by the authority 
 of the same, as follows : 
 
 1. This Act shall apply only to Scotland, and may be cited for all Act to apply 
 
 purposes by the title of the ' Hypothec Amendment (Scotland) Act, °^7 to 
 iTobni ^ ■'^ ^ ' ' Scotland, and 
 
 „ . . . short title. 
 
 2. This Act shall be construed as applying only to farms or land Act to apply 
 with the buildings thereon occupied for farming purposes, and shall not only to land 
 apply to dwelling-houses, shops, and other subjects, though the same ^ f°^ 
 may be in rural districts, where the primary or chief purpose of thcpm-posea; 
 occupation shall be other than the raising of agricultural produce or the 
 
 raising and rearing of live stock, saving and excepting always the save as 
 provision hereinafter contained for the keeping of a Register of Seques- ^^peets 
 trations which shall be held as applicable to all sequestrations for rent Sequestra- 
 whether of rural or urban subjects. tions. 
 
 • 3. Whensoever any agricultural produce shall have been bond fide Com, &c., 
 purchased by any person for its fair marketable value from the tenant F"^'^?^^'^ 
 or lessee of any farm or lands, and shall have been actually delivered to delivCTedand 
 the purchaser, and removed from such farm or lands, and the price removed, to be 
 thereof shall have been paid, or whensoever agricultural produce shall ^J^^® ^™™ 
 have been bond fide purchased at public auction from the tenant or 
 lessee, or any party holding his authority so to sell, after seven days 
 written notice of the intention of the tenant or lessee, or party holding 
 his authority to sell by public auction, shall have been given to the 
 landlord or lessor, or person or persons entitled to the rent of such farm 
 or land, or his or their factor or known agent, and sequestration shall 
 not have been obtained and registered in manner hereinafter provided 
 previous to or during the currency of such notice, then in either of 
 these cases all right of hypothec competent to the landlord, lessor, or 
 person or persons entitled to the rent of such farm or lands over such 
 agricultural produce shall cease and determine : Provided always, that 
 nothing herein contained shall apply to any agricultural produce which 
 the tenant is not entitled legally or by the terms of his lease to sell or 
 carry off the land, or which previous to the completion of the purchase 
 thereof by the removal of the same from the farm or lands, and by 
 
>9S 
 
 30 AND 31 VICTORIA, CHAPTER 42. [appx 
 
 payment of the price, or after such notice as that above referred to has 
 been sequestrated at the instance of such landlord, lessor or other 
 person, and the sequestration whereof has been registered in the 
 register of sequestrations for rent, to be kept as hereinafter provided, 
 and is in force at the time of such purchase. . , •, , .i, 
 
 Hvnotheo 4. In the event of the landlord, lessor, or person entitled to the 
 
 not to he rent of any farm or lands failing to commence proceedings lor making 
 
 available effectual by sequestration his right of hypothec within three calendar 
 
 monSia after months after the conventional term at which the year's rent or the last 
 rent is pay- portion due thereof is made payable under the terms of the lease, 
 ^^^^- writing, or bargain under which such farm or lands are possessed, or it 
 
 no conventional term for payment of the rent or any portion tliereof 
 has been agreed upon then within three calendar months after the legal 
 term at which such year's rent or the last portion due thereof is pay- 
 able, then all right of hypothec for the rent or portion thereof payable 
 at such term, conventional or legal, shall cease and determine: 
 Provided always, that the provisions of this section shall not apply to 
 the landlord's right of hypothec, or to his right to use sequestration for 
 rent payable under any lease, writing, or bargain current at the date of 
 the passing of this Act. 
 Stock of third 5- In the event of the tenant or lessee of any farm or lands having 
 party taken on received and taken thereon to be grazed or fed any sheep, cattle, or 
 a fo"n.*o g™2;e Q^jjgj, jj^^g g^Q^jj. belonging to any other person, and having agreed 
 only^toae with the owner of the same for a bond fide payment equal to the just 
 amount of value of such grazing or feeding, such sheep, cattle, or stock shall be 
 Tabk forThe ^^^^^'^ *° *h® hypothec of the landlord, lessor, or person entitled to the 
 gracing. °^ ^ rent of the farm or lands, to the extent of the amount of such payment, 
 and no further : Provided always, that so long as any portion of such 
 sheep, cattle, or other live stock shall remain on the farm or lands, the 
 hypothec over such portion shall continue to the full extent of the pay- 
 ment originally agreed upon for the grazing or feeding of the whole of 
 such sheep, cattle, or other live stock ; and that in the event of the 
 removal of the sheep, cattle, or other live stock, or any portion thereof, 
 from the farm or lands, the right of hypothec shall, so long as the pay- 
 ment or any part thereof shall remain unpaid, continue to apply to such 
 sheep, cattle, or other live stock to the extent of the amount of the 
 payment, or such part thereof as shall be unpaid. 
 When agri- ^- "'"'^ ^^^ sequestration for the rent of any farm or lands, as 
 
 cultural pro- defined by this Act, it shall not be competent to include any household 
 (luce or stock furniture or furnishings or any agricultural implements, nor shall it be 
 inoompeten/to competent, except as hereinafter provided, to sequestrate for the rent 
 sequestrate any imported manure, lime, drain tiles, feeding stuffs, or other material, 
 furniture, im- j^^^^ being the produce of or made upon the farm or lands, and not at 
 ported man- tbe time incorporated with the soil or consumed or otherwise applied to 
 ures, &c. the purposes for which such material may have been procured : Provided 
 
 always, that where manure of any kind, or lime, or drain tUes, feeding 
 stuffs, or other material have been brought upon the farm or lands for 
 the purpose of being used thereon in fulfilment of any specific obligation 
 imposed by the lease, such manure, lime, drain tiles, feeding stuffs, or 
 other material may competently be included among the sequestrated 
 effects : Provided also, that nothing herein contained shall be held as 
 affecting either the right of using sequestration or the description of 
 acticles which may be sequestrated, in so far as respects premises 
 
NO. III.] HYPOTHEC AMENDMENT (SCOTLAND) ACT, 1867. 599 
 
 and occupations of buildings or of lands to which this Act does not 
 apply. 
 
 7. At each sheriff's or other Court where sequestration for rent Eegister of 
 is or may be granted a register, entitled the ' Register of Sequestra- sequestrations 
 ' tions for Rent' for the particular Court, shall be kept by the sheriff- kept""" ""^ 
 clerk, sheriff-clerk-depute, or other officer of Court having custody of 
 the records thereof, in the form set forth in the schedule appended 
 hereto, or as nearly in that form as may be, and on the granting of any 
 sequestration for rent there shall be forthwith entered in such register 
 the name or names of the tenant or lessee whose agricultural produce, 
 live stock, or effects are sequestrated, and the several particulars detailed 
 in the schedule appended hereto ; and every person shall be entitled, on 
 payment of a fee of one shilling, to search the said register during office 
 hours of every day on which the office of the sheriff-clerk, sheriff-olerk- 
 depute, or other officer of Court having the custody thereof shall be 
 open ; and all such fees shall be duly accounted for and shall be paid 
 by the sheriff-clerk, sheriff-clerk-depiite, or other officer receiving the 
 same to the credit of Her Majesty's Exchequer at such times and in 
 such manner as the Commissioners of Her Majesty's Treasury shall 
 from time to time direct. 
 
 Schedule referred to in the foregoing Act. 
 Register of Sequestrations for Rent for tlie County of— 
 
 Name and residence of 
 
 tenant or lessee whose 
 
 produfie, stock, or eflPects 
 
 are sequestrated. 
 
 Date of se- 
 questration. 
 
 Name or de- 
 
 Bcription of 
 
 rural or urban 
 
 subjects. 
 
 Rent for 
 which seques- 
 tration 
 granted. 
 
 Date when 
 payable. 
 
 Landlord or 
 person taking 
 out seques- 
 tration. 
 
 i 
 
 
 
 
 
 
600 43 VICTORIA, CHAPTER 12. [appx. 
 
 No. IV. 
 
 43 VICTORIA, c. 13. 
 
 An Act to abolish the Landlord's Eight of Hypothec for Rent in Scotland. 
 —\;2Uh March 1880.] 
 
 BE it enacted by the Queen's most Excellent Majesty, by and -with 
 the advice and consent of the Lords Spiritual and Temporal, and 
 Commons, in this present Parliament assembled, and by the authority 
 of the same, as follows : — 
 Landlord's 1. From and after the eleventh day of November one thousand eight 
 
 hypothec to hundred and eighty-one, hereinafter called the commencement of this 
 UtrNov-'^ Act, the landlord's right of hypothec for the rent of land, including the 
 ember, 1881. rent of any buildings thereon, exceeding two acres in extent, let for 
 agriculture or pasture, shall cease and determine : Provided that 
 nothing herein contained shall apply to any claim for rent due, or which 
 may hereafter become due, under any lease, writing, or bargain current 
 at the date of the commencement of this Act. 
 La dlord's 2- B'rom and after the commencement of this Act the landlord of any 
 
 remedies when land exceeding two acres in extent, and let for agriculture or pasture, 
 rent is due shall, subject to the provisions of the preceding section of this Act, 
 ^Repealed' " have the same rights and remedies against his tenant when six months' 
 supra, p. 592.] rent is due and unpaid as is now provided by the law of Scotland when 
 twelve months' rent is due and unpaid, and shall also have the same 
 rights and remedies against his tenant when twelve months' rent is due 
 and unpaid as is now provided by the law of Scotland when two years' 
 rent is due and unpaid, but subject always to the following provision ; 
 (that is to say), it shall not be lawful for the sheriff or sheriff-substitute 
 to entertain any action for caution and removing or for irritancy and 
 removing, unless such action has been preceded by fourteen days' written 
 notice by registered post-office letter or otherwise to the tenant that 
 such action is intended, nor in an action for caution and removing to 
 decern the tenant to find caution for more than the arrears of rent and 
 one year's rent further. 
 
 Provided also, that in the event of the removal or ejection of a tenant 
 from such land in any year under the provisions of the Act of Sederunt 
 anent removings of the fourteenth day of December one thousand seven 
 hundred and fifty-six, and of this Act, on account of being in arrear of 
 rent for six months or twelve months, as the case may be, the following 
 further provisions shall have effect : 
 
 (1) A tenant so removed or ejected shall not thereby forfeit the 
 rights of an outgoing tenant to which he would have been entitled if his 
 lease had naturally expired at the date of removing or ejection, or at the 
 last preceding term of Whitsunday or Martinmas in the event of the 
 removing or ejection taking place between these terms : 
 
 (2) When the removing or ejection takes place between the before- 
 mentioned terms, the tenant shall be entitled to payment of or credit for 
 the expenditure made by siich tenant since the last preceding term on 
 the labour, seed, and manure applied to any crop, other than an away- 
 going crop, falling within the immediately preceding provision : 
 
 (3) Where a tenant is removed or is ejected between the before- 
 mentioned terms, he shall not, except as hereinafter provided, be 
 liable to pay for the occupation of such land after the immediately 
 
NO. v.] GAME LAWS AMENDMENT (SCOTLAND) ACT, 1877. 601 
 
 preceding term of Whitsunday or Martinmas more than a proportion of 
 the rent eflfeiring to the period between such term and the date of 
 removing or ejection : Provided always, unless otherwise expressly 
 stipulated, that where any away-going crop to which the tenant is 
 entitled is immature at the date of such removing or ejection, neither 
 the tenant nor any one deriving right through him shall be entitled to 
 carry away such crop at maturity until payment shall have been made 
 to the landlord of the proportion of rent effeiring to the land under such 
 crop for the period between the date of removing or ejection, and the 
 next term of Martinmas, the rent of such land being estimated accord- 
 ing to the average rent of the whole land from which the tenant has 
 been so removed or ejected. 
 
 3. The provisions of the second section of this Act shall not apply in Provisions 
 tmy case in which the landlord's right of hypothec has not ceased and °^ section 2 
 
 dptpvminpd not to apply in 
 
 aeterminea. addition to 
 
 4. This Act may be cited as ' The Hypothec Abolition (Scotland) Act, hypothec. 
 
 ' 1880.' [Repealed, 
 
 supra, p. 592. 
 
 No. V. 
 
 40 & 41 VICTORIA, c. 28. 
 
 An Act to amend the Laws relating to Game in Scotland. — [2nd August, 
 1877.] 
 
 WHEREAS divers Acts of Parliament have from time to time been 
 passed relating to the preservation of game in Scotland, and 
 certain of these Acts are enumerated in Schedule I. to this Act 
 annexed, and are in this Act referred to as the ' Game Acts ' : 
 And whereas it is expedient that these Acts should be amended : 
 Be it enacted by the Queen's most Excellent Majesty, by and with 
 the advice and consent of the Lords Spiritual and Temporal, and 
 Commons, in this present Parliament assembled, and by the authority 
 of the same, as follows : 
 
 1. This Act may be cited for all purposes as 'The Game Laws Short title and 
 ' Amendment (Scotland) Act, 1877,' and shall apply to Scotland only. «^*ent of Act. 
 
 2. This Act shall commence and come into operation on the first day Commcnce- 
 of January, one thousand eight hundred and seventy-eight, which day is meut of Act. 
 hereafter referred to as the commencement of this Act. 
 
 3. In this Act, unless there be something in the subject or context interpreta- 
 repugnant to such construction : ^°^- 
 
 (1) The word ' lessor ' shall mean the grantor of any lease of land 
 
 for any term not less than two years, and also the person or 
 persons for the time in the right and subject to the obligations of 
 the grantor with respect to such lease ; 
 
 (2) The word 'lessee' shall mean the grantee of any lease of land for 
 
 any term not less than two years, and also the person or persons 
 for the time in the i-ight and subject to the obligations of the 
 grantee with respect to such lease ; 
 
 (3) The word 'sheriff' shall include sheriff-substitute ; 
 
 (4) The word ' game ' shall include all the animals enumerated in the 
 
 Game Acts or any of them ; 
 
602 
 
 40 AND 41 VICTORIA, CHAPTER 28. 
 
 [appx. 
 
 (5) 
 (6) 
 
 (7) 
 
 entitled to 
 compensation 
 for excessive 
 damage to 
 crops by game. 
 
 In case of 
 excessive 
 damage, lessee 
 to intimate 
 the same to 
 lessor. 
 
 Provisions as 
 to arbi- 
 trations for 
 settling 
 claims of 
 damage 
 between 
 lessor and 
 
 The word 'crop' shall include grass, whether intended for hay 
 or pasture, except where grown upon muirlands ; 
 
 The term ' Small-Debt Acts ' shall mean the Act of the seventh 
 year of William the Fourth and the first year of Victoria, 
 chapter forty-one, and any Acts amending the same ; 
 
 The term 'Sheriffs Small-Debt Court' shall mean the Court 
 established under the Small-Debt Acts. 
 
 4. Where under any lease made subsequently to the commencement 
 of this Act, or where by presumption of common law upon any land 
 occupied under a lease made subsequently to the commencement of this 
 Act, the lessor shall reserve or retain the sole right of hunting, killing, 
 or taking rabbits, hares, or other game, or any of them, the lessee shall 
 be entitled to compensation for the damage done to his crops in each 
 year by the rabbits and hares or other game to which the lessor may 
 have reserved or retained the sole right, in excess of such sum as may^ 
 have been set forth in the lease as the amount of annual da,mage 
 for which it is agi-eed no compensation shall be due; and if no 
 such sum shall be set forth in the lease, then in excess of the sum 
 of forty shillings. 
 
 During the currency of any lease the parties thereto may from time 
 to time, by any agreement in writing, increase or diminish the estimated 
 amount of the annual damage aforesaid. 
 
 5. In the event of a lessee in occupation of land under a lease made 
 subsequently to the commencement of this Act being of opinion that the 
 damage done to his crops by rabbits or hares or other game to which 
 the lessor may have reserved or retained the sole right, in any one year 
 during the lease, such year being reckoned from Whitsunday to Whit- 
 sunday, has exceeded the sum named in the lease, or if no sum is 
 therein named, the sum of forty shillings, he shall intimate this opinion 
 to the lessor in writing, stating at the same time that it is his intention, 
 failing agreement as to the amount of such excess of damage, or a 
 reference to arbiters to settle the same, to take steps to recover 
 the amount of such excess of damage in the form and manner herein- 
 after provided. 
 
 6. When a lessor and lessee agree in writing to refer to arbitration 
 any claim of damage arising under this Act, or have agreed so to do in 
 any lease made subsequently to the passing of this Act, the following 
 provisions shall have effect : — 
 
 1. Either party having in writing named an arbiter, and given notice 
 of the nomination to the other party, and called on him to name an 
 arbiter, and the other party having for fourteen days after such call 
 failed to comply therewith in writing, the arbiter nominated may 
 settle the claim as if he had been appointed by both parties, and 
 his award shall be final. The office of every such arbiter shall be 
 held to endure until the term of Whitsunday next following the 
 date of his appointment, and thereafter until he shall have given 
 his award or awards with reference to all claims for any damages as 
 aforesaid arising during the year ended at the same term. 
 
 2. Where two arbiters are named by the parties the arbiters shall, 
 before proceeding to the arbitration, name in writing an oversman 
 or umpire who shall be entitled finally to decide on the claim in 
 case of their disagreement. 
 
 3. The reference, the claim, the nomination of an arbiter or overs- 
 
NO. v.] GAME LAWS AMENDMENT (SCOTLAND) ACT, 1877. 603 
 
 man, and the award may be validly made by any writing, however 
 informal, admitted or proved to be genuine. 
 
 4. No proceedings under this section shall be void for want of form. 
 In an arbitration under this section the course of the procedure and 
 the inquiry shall be such as the person or persons acting therein 
 shall direct, and the award therein shall be final, and though 
 informal may be enforced by action in any Court of law, according 
 to the true construction and tenor thereof. 
 
 5. Any notice under this section shall be in writing, and may be 
 served on the person to whom it is to be given either personally or 
 by leaving it for him at his last known place of abode in Scotland, 
 or by sending it through the post in a registered letter addressed 
 to him there ; and if so sent by post it shall be deemed to have 
 been served at the time when the letter containing it would be 
 delivered in ordinary course, and in order to prove service by letter 
 it shall be sufficient to prove that the letter was properly addressed 
 and posted and that it contained the notice to be served. 
 
 7. With regard to actions for the recovery of damages under this Provisions 
 Act, the following provisions shall have effect : *| *° actions 
 
 1. No such action at the instance of a lessee against a lessor shall be between 
 competent unless the lessee shall have given to the lessor notice in lessor and 
 writing of his intention to bring the same, in the case of damage 1^^^^®- 
 done to growing crop, except grass for pasture, at least three weeks 
 before the crop is reaped or raised, and in the case of damage done 
 
 to crop reaped or raised, at least one week before it is removed 
 from the land, and in the case of damage done to grass for pasture 
 at least fourteen days before any person to be called as a witness 
 by the lessee to value the damage shall inspect the crop with the 
 view of valuing such damage : 
 
 2. Any such action may be brought in the Sheriffs Small-Debt Court 
 of the county within which the lands or any part thereof are 
 situated, without regard to the amount sued for in name of 
 damage, provided that such amount shall not exceed the sum of 
 fifty pounds sterling, exclusive of expenses and fees of extracts, and 
 all the provisions of the Small-Debt Acts shall apply to any such 
 action so brought in the same manner as if such action were 
 brought for a sum not exceeding twelve pounds sterUug : Provided 
 always, that the sheriff-substitute shall, whenever required to do so 
 by either party, take and record the evidence led before him, in 
 which case an appeal shall lie to the sheriff, whose judgment shall 
 be final. 
 
 3. Where the amount sued for exceeds the sum of fifty pounds the 
 action shall be brought in the ordinary Sheriff Court. 
 
 8. From and after the commencement of this Act, it shall be lawful Lessee in 
 for any lessee, being in the actual occupation of lands and having the '"■"tual 
 right of killing hares thereon, by himself or by any person directed or may kill hares 
 authorised by him in writing according to the form in Schedule II. to without game 
 this Act annexed, or to the like effect, to pursue, take, kill, or destroy certificate. 
 any hare then being in or upon any such land without obtaining any 
 
 game certificate. 
 
 9. Provided always, and be it enacted, that no lessee shall be Limit of 
 authorised to grant or continue, under the provisions of this Act, J'^*^?,"'^ 
 authority to more than one person at one and the same time to kill tares. 
 
604 
 
 40 AND 41 VICTORIA, CHAPTER 28. 
 
 [appx. 
 
 Prosecutions 
 under Game 
 Acts. 
 
 No person to 
 be prosecuted 
 again for the 
 same offence. 
 
 Existing leases 
 or agreements 
 about game 
 not to be 
 affected. 
 
 hares upon the land occupied by him within any one parish : Provided 
 also, that the lessee shall intimate to the lessor of the said lands, or his 
 factor, or any one to whom he may have instructed the lessee to trans- 
 mit such intimation, the name of the person so authorised by the lessee. 
 
 10. From and after the commencement of this Act, all offences 
 against the Game Acts shall be prosecuted subject to the following 
 provisions ; that is to say, 
 
 (1) Any prosecution which is at present competent either before the 
 
 sheriff or the justices of the peace for the county shall, from and 
 after the passing of this Act, be competent only before the sheriff : 
 
 (2) Any prosecution which is at present competent only before the 
 
 justices of the peace for the county shall, from and after the 
 passing of this Act, be competent only before the sheriff, who 
 shall have all jurisdiction, authority, and power necessary for 
 entertaining and determining the same ; and all forms, procedure, 
 and provisions applicable to prosecutions before justices of the 
 peace shall, except as hereinafter provided, be applicable, 
 mutatis mutandis, to prosecutions before the sheriff as aforesaid : 
 
 (3) Where in any county there is more than one resident sheriff-sub- 
 
 stitute any prosecution under the Game Acts shall be brought 
 before the Court of a sheriff-substitute within whose district the 
 offence is alleged to have been committed, or before the sheriff 
 sitting in such Court : 
 
 (4) Offences which are now cognisable only by the Court of Justiciary 
 
 shall hereafter be prosecuted only before such Court. 
 
 11. From and after the commencement of this Act, any person who 
 has been or shall be prosecuted for any act or acts as constituting an 
 offence under any one or more of the Game Acts shall not be liable to be 
 again prosecuted for the same act or acts as constituting an offence 
 under any other of the Game Acts : Provided always, that nothing in 
 this section shall apply to any prosecution under any enactment 
 relating to the Inland Revenue. 
 
 12. This Act shall not prejudice or affect any lease of land or any 
 lease or agreement about game existing at the date of the commencement 
 of this Act. 
 
 Schedules. 
 
 An Act of the Parliament of Scotland, passed in the year 1587, 
 chapter 43, intituled ' Aganis slayeris of deir and utheris wyld beastis.' 
 
 An Act of the Parliament of Scotland, passed in the year 1621, 
 chapter 31, intituled 'Anent hunting and baulking.' 
 
 An Act of the Parliament of Scotland, passed in the year 1707, 
 chapter 91, intituled ' Act for preserving the game.' 
 
 An Act for the more effectual preservation of the game in that part of 
 Great Britain called Scotland, and for repealing and amending several 
 of the laws now in being relative thereto. 13 George III. chapter 54. 
 
 An Act for repealing two Acts passed in the thirty-sixth year of the 
 reign of His present Majesty, which limit the time for killing partridges 
 in England and Scotland, and for amending so much of an Act passed in 
 the second year of the reign of His present Majesty, as relates to such 
 limitation within that part of Great Britain called England, by making 
 other provisions for that purpose. 39 Geo. III. chapter 34. 
 
NO. VI.] GROUND GAME ACT, 1880. 605 
 
 An Act for the more effectual prevention of persons going armed by 
 night for the destruction of game. 9 George TV. chapter 69. 
 
 An Act to amend the laws in England relative to game. 1 & 2 
 Wniiam IV. chapter 32. 
 
 An Act for the more effectual prevention of trespasses upon property 
 by persons in pursuit of game in that part of Great Britain called 
 Scotland. 2 & 3 WiUiam IV. chapter 68. 
 
 An Act to extend an Act of the ninth year of King George the 
 Fourth for the more effectual prevention of persons going armed by 
 night for the destruction of game. 7 & 8 Victoria, chapter 29. 
 
 An Act to enable all persons having at present a right to kill hares in 
 Scotland to do so themselves or by persons authorised by them, without 
 being required to take out a game certificate. 11 & 12 Victoria, 
 chapter 30. 
 
 An Act to repeal the duties on game certificates, and certificates to 
 deal in game, and to impose in lieu thereof duties on excise licences and 
 certificates for the like purposes. 23 & 24 Victoria, chapter 90. 
 
 An Act to amend the laws relating to the Inland Revenue. 24 & 25 
 Victoria, chapter 91. 
 
 An Act for the prevention of poaching. 25 & 26 Victoria, 
 chapter 114. 
 
 I, A.B., do authorise CD. to kill hares on the lands occupied by me 
 within the (Jiere insert tlie name of the parish or other place, as the case 
 may he). 
 
 Dated this day of 
 
 (here insert the day, month, and year). 
 
 A.B. 
 Witness. 
 
 No. VI. 
 
 43 & 44 VICTORIA, c. 47. 
 
 An Act for the Better Protection of Occupiers of Lcmd against Injury to 
 their Crops from Ground Game. — \lth September 1880.] 
 
 WHEREAS it is expedient in the interests of good husbandry, and 
 for the better security for the capital and labour invested by the 
 occupiers of land in the cultivation of the soil, that further provision 
 should be made to enable such occupiers to protect their crops from 
 injury and loss by ground game : 
 
 Be it enacted by the Queen's most Excellent Majesty, by and with 
 the advice and consent of the Lords Spiritual and Temporal, and 
 Commons, in this present Parliament assembled, and by the authority 
 of the same, as follows : 
 
 1. Every occupier of land shall have, as incident to and inseparable Occupier to 
 from his occupation of the land, the right to kill and take ground game ^„*;^,^^;^^^* 
 thereon, concurrently with any other person who may be entitled to f^^ra his occu- 
 kill and take ground game on the same land : Provided that the right pation to kill 
 
606 
 
 43 AND 44 VICTORIA, CHAPTER 47. [aPPX. 
 
 ground game conferred on the occupier by this section shall be subject to the following 
 
 concurrently limitations ' 
 
 pirtn°nStled (1) The occupier shall kill and take ground game only by himself or 
 to km the same by persons duly authorised by him in writing : , . , . 
 
 on land in his ig\ rphe occupier himself and one other person authorised in 
 
 occupation. ■ ^^.j^j^g ^y s^gh occupier shall be the only persons entitled 
 
 under this Act to kill ground game with firearms ; 
 
 (b) No person shall be authorised by the occupier to kill_ and 
 
 take ground game, except members of his household resident 
 on the land in his occupation, persons in his ordinary 
 service on such land, and any one other person bond fide 
 employed by him for reward in the taking and destruction 
 of ground game ; 
 
 (c) Every person so authorised by the occupier, on demand by 
 
 any person having a concurrent right to take and kill the 
 ground game on the land or any person authorised by him 
 in writing to make such demand, shall produce to the person 
 so demanding the document by which he is authorised, and 
 in default he shall not be deemed to be an authorised person. 
 
 (2) A person shall not be deemed to be an occupier of land for the 
 
 purposes of this Act by reason of his having a right of common 
 over such lands ; or by reason of an occupation for the purpose 
 of grazing or pasturage of sheep, cattle, or horses for not more 
 than nine months. 
 
 (3) In the case of moorlands, and uninclosed lands (not being arable 
 
 lands), the occupier and the persons authorised by him shall 
 
 exercise the rights conferred by this section only from the 
 
 eleventh day of December in one year until the thirty-first day 
 
 of March in the next year, both inclusive ; but this provision 
 
 shall not apply to detached portions of moorlands or uninclosed 
 
 lands adjoining arable lands, where such detached portions of 
 
 moorlands or uninclosed lands are less than twenty-five acres in 
 
 extent. 
 
 Occupier en- 2. Where the occupier of land is entitled otherwise than in pursuance 
 
 titled to kill pf ^his Act to kill and take ground game thereon, if he shall give to any 
 
 onTand fnhis other person a title to kill and take such ground game, he shall never- 
 
 occupation not theless retain and have as incident to • and inseparable from such 
 
 to divest hira- occupation, the same right to kill and take ground game as is declared 
 
 such right. by section one of this Act. Save as aforesaid, but subject as in section 
 
 six hereafter mentioned, the occupier may exercise any other or more 
 
 extensive right which he may possess in respect of ground game or other 
 
 game, in the same manner and to the same extent as if this Act had not 
 
 All agreements 3. Every agreement, condition, or arrangement which purports to 
 in oontraveu- divest or alienate the right of the occupier as declared, given, and 
 oocupie"to ° reserved to him by this Act, or which gives to such occupier any advan- 
 destroy ground tage in consideration of his forbearing to exercise such right, or imposes 
 game void. upon him any disadvantage in consequence of his exercising such right, 
 
 shall be void. 
 Exemption 4. The occupier and the persons duly authorised by him as aforesaid 
 
 from gajje li- shall not be required to obtain a licence to kill game for the purpose 
 ViYiat. 0. 57. °^ killing and taking ground game on land in the occupation of such 
 
 occupier, and the occupier shall have the same power of selling any 
 
NO. VI.] GROUND GAME ACT, 1880. 607 
 
 ground game so killed by him, or the persons authorised by him, as if 
 he had a licence to kill game : Provided that nothing in this Act 
 contained shall exempt any person from the provisions of the Gun 
 Licence Act, 1870. 
 
 5. Where at the date of the passing of this Act the right to kill and Saving clause, 
 take ground game on any land is vested by lease, contract of tenancy, 
 
 or other contract bond fide made for valuable consideration in some 
 person other that the occupier, the occupier shall not be entitled under 
 this Act, until the determination of that contract, to kill and take 
 ground game on such land. And in Scotland, when the right to kill 
 and take ground game is vested by operation of law or otherwise in 
 some person other than the occupier, the occupier shall not be entitled by 
 virtue of this Act to kill or take ground game during the currency of any 
 lease or contract of tenancy under which he holds at the passing of this 
 Act, or during the currency of any contract made bond fide for valuable 
 consideration before the passing of this Act whereby any other person 
 is entitled to take and kiU ground game on the land. 
 
 For the purposes of this Act, a tenancy from year to year, or a tenancy 
 at will, shall be deemed to determine at the time when such tenancy 
 would by law become determinable if notice or warning to determine 
 the same were given at the date of the passing of this Act. 
 
 Nothing in this Act shall affect any special right of killing or taking 
 ground game to which any person other than the landlord, lessor, 
 or occupier may have become entitled before the passing of this Act by 
 virtue of any franchise, charter, or Act of Parliament. 
 
 6. No person having a right of killing ground game under this Act Prohibition of 
 or otherwise shall use any firearms for the purpose of killing ground night shooting, 
 game between the expiration of the first hour after sunset and the com- abov?CTouiKl 
 mencement of the last hour before sunrise ; and no such person shall, or poison. 
 
 for the purpose of killing ground game, employ spring-traps except in 
 rabbit holes, nor employ poison ; and any person acting in contravention 
 of this section shall, on summary conviction, be liable to a penalty not 
 exceeding two pounds. 
 
 7. Where a person who is not in occupation of land has the sole right As to non- 
 of killing game thereon (with the exception of such right of killing and occupier hav- 
 taking ground game as is by this Act conferred on the occupier as inci- yfiing game 
 dent to and inseparable from his occupation), such person shall, for the 
 
 purpose of any Act authorising the institution of legal proceedings by 
 the owner of an exclusive right to game, have the same authority to 
 institute such proceedings as if he were such exclusive owner, without 
 prejudice nevertheless to the right of the occupier conferred by this 
 Act. 
 
 8. For the purposes of this Act — Interpretation 
 The words ' ground game ' mean hares and rabbits. clause. 
 
 9. A person acting in accordance with this Act shall not thereby be Exemption 
 subject to any proceedings or penalties in pursuance of any law or f™™ penalties. 
 statute. 
 
 10. Nothing in this Act shall authorise the killing or taking of Saving of 
 ground game on any days or seasons, or by any methods, prohibited by ^^!*PS pro- 
 any Act of Parliament in force at the time of the passing of this ' ' '°'^' 
 Act. 
 
 11. This Act may be cited for all purposes as ' The Ground Game Act, short title. 
 ' 1880.' 
 
608 ACT 1555, CHAPTER 39. [appx. 
 
 No. VII. 
 
 1555, c. 39. 
 
 Anent the Warning of Tennentes. 
 
 (In Thomson's Acts, u. 12, II. 494.) 
 
 IT is statute and ordanit that in all tymes cumming the warning of 
 all tennentis and uthers to flit and remove fra landis mylnis fischingis 
 and possessionnis quhatsumever sail be usit in manor following : That 
 is to say, lauchfuU warning being made ony time within the zeir xl. 
 dayis befoir the feist of Witsonday outher personallie or at thair 
 dwelling placis and at the ground of the landis and ane copie deliverit 
 to the wyfe or servandis and failzeing thaireof to be affixit upon the 
 yettis or duris of the dwelling placis of the saidis landis gif ony be and 
 thairefter the samin precept of warning to be red in the paroch kirk 
 quhair the landis lyis upone ane Sonday befoir nune the tyme of the hie 
 messe and ane copie left and affixit upone the maist patent dure of the 
 kirk xl. dayis befoir the terme and na forther laying furth of stressis 
 and removing upone Wednisday to be usit in tyme to cum : And gif the 
 partie wamit in maner foirsaid removis not at the terme in that 
 caice the wamar sail incontinent or sa sone as plesis him cum to the Lordis 
 of Counsall or to the schiref of the schire or uthers jugeis ordinaris 
 havand jurisdictioun schawand his precept of warning orderlie execute 
 and indorsat and sal have letters or precept to charge the parteis 
 wamit and possessouris of that ground to compeir befoir the saidis Lordis 
 Schireffis or thair deputis or uthers jugeis ordinaris foirsaidis havand 
 jurisdictioun upone sax dayis warning or langar at the vi^ill and desyre 
 of the persewar to heir and see thame decernit to remove desist and ceis 
 conform e to the precept of warning and executioun thairof or els to 
 schaw ane reisonabill cause quhy thay sould not do the samin with 
 certificatioun to thame and thay failzie that letters sail be direct simplic- 
 iter upone thame in the said mater ; at the quhilk day gif they compeir 
 not the Lordis Schereffis or uthers jugeis ordinar havand juris- 
 dictioun sail deceme thame to remove desist and ceis fra thay landis ; 
 and gif thay compeir and instantly schawls sufficient ty till to bruke the 
 landis in that caice the samin juge to proceid and do justice as accordis 
 of the law : and gif the partie compeiris and schawls na thing bot makis 
 allegeance and oflferis him to impreif the indorsingis in that caice he sail 
 not be hard in jugement bot gif he find sufficient cautioun to the wamar 
 than instantlie that gif his allegeance being fundin relevant be not 
 sufficientlie verifeit and provin be him that the proffeittis dampnage and 
 interes quhilkis the said warnar or ony uthers havand interes hes 
 sustenit or sail happen to sustene be the dilay of the foirsaid allegeance 
 be refoundit to him. . . .' And als that na advocatioun of causis be 
 taken be the Lordis fra the juge ordinar except it be for deidlie feid or 
 the Schiref principall or the juge ordinar be the partie or the causis of 
 the Lordis of Counsall and their advocattis, scribis and members. 
 
 ' The part omitted enforces the holding of Courts by the Ordinaries on each of the 
 fifteen days after Trinity Sunday — an obsolete provision. 
 
NO. VIII.] ACT OF SEDERUNT ANENT EEMOVINGS. 609 
 
 No. VIII. 
 
 Act of Sederunt anent Eemovings. — \\i.th December 1756.] 
 
 WHEREAS tile difficulties that have occurred in actions of 
 removing from lands have been found to be highly prejudicial 
 to agriculture, and both to masters and tenants in respect that during 
 the dependence of such actions the lands are neglected and deteriorated 
 by the defender, and the heritor's security for his rent brought into 
 danger, and tenants are discouraged from entering into tacks by the 
 uncertainty of their attaining to possession, and by their finding the 
 subject of their tack much deteriorated during the dependence of the 
 process of removing against the preceding tenant : The Lords of Council 
 and Session, resolving to remedy this great evil, do make the following 
 regulations, viz. : — 
 
 1. That where a tenant is bound by his tack to remove without 
 warning, at the issue or determination of his tack, it shall be lawful to 
 the heritor or other setter of the tack, upon such obligation, to obtain 
 letters of horning, and thereupon to charge the tenant with horning 
 forty days preceding the term of Whitsunday in the year in which his 
 tack is to determine, or forty days preceding any other term of Whit- 
 sunday thereafter : And upon production of such tack and horning duly 
 executed to the deputy-sherifi' or steward or their substitutes of the shire 
 or stewartry where the lands lie, they are hereby authorised and 
 required within six days after the term of removal appointed by the 
 tack, to eject such tenant, and to deliver the possession void to the setter 
 or those having right from him. 
 
 2. Where the tenant hath not obliged himself to remove without 
 warning, in such case it shall be lawful to the heritor or other setter of 
 the tack in his option either to use the order prescribed by the Act of 
 Parliament made in the year 1555, intituled 'Act anent the warning of 
 ' Tenants,' and thereupon pursue a warning and ejection, or to bring his 
 action of removing against the tenant before the judge ordinary : And 
 such action being called before the judge ordinary at least forty days 
 before the term of Whitsunday, shall be held as equal to a warning 
 execute in terms of the foresaid Act : And the judge shall thereupon 
 proceed to determine in the removing in the terms of that Act in the 
 same manner as if a warning had been executed in terms of the foresaid 
 Act of Parliament. 
 
 3. Where a tack is assigned and the assignation not intimated by an 
 instrument, or where the lands are subset in whole or in part to sub- 
 tenants, such horning execute as aforesaid, or where process of removing 
 and decreet is obtained, or where warning in terms of the Act 1555 is 
 used against the principal or original tacksman, the same shall be 
 effectual against the assignees or subtenants, one or more, and the 
 action of removing against the principal or original tacksman, and 
 decreet of removing following thereon, shall be effectual against such 
 assignees and subtenants as aforesaid, and shall be sufficient ground of 
 ejecting them, anything in the former practice to the contrary notwith- 
 standing. 
 
 4. Where a tenant has irritated his tack by suffering two years' rent 
 to be in arrear, it shall be lawful to the setter or heritor to declare the 
 irritancy before the judge ordinary, and to insist in a summar removing 
 
 2 Q 
 
610 1 AND 2 VICTORIA, CHAPTER 119. [appx. 
 
 before him ; and it shall be lawful to the sheriff or steward-depute or 
 their substitutes to find the irritancy incurred, and to decern in the 
 removing, any practice to the contrary notwithstanding. 
 
 5. Where a tenant shall run in arrear of one full year's rent, or shall 
 desert his possession and leave it unlaboured at the usual time of 
 labouring, in these, or either of these cases, it shall be lawful to the 
 heritor or other setter of the lands to bring his action against the tenant 
 before the judge ordinary, who is hereby empowered and required to 
 decern and ordain the tenant to find caution for the arrears, and for 
 payment of the rent for the five crops following or during the currency 
 of the tack, if the tack is of shorter endurance than five years, -within a 
 certain time to be limited by the judge, and failing thereof, to decern the 
 tenant summarily to remove, and to eject him in the same manner as if 
 the tack were determined and the tenant had been legally warned in 
 terms of the foresaid Act 1555. 
 
 6. and 7. Superseded. 
 
 No. IX. 
 
 1 & 2 VICTORIA, c. 119. 
 
 Sheriff Court Act, 1838. 
 
 Summary 8. And whereas it is expedient to diminish the expense and delay 
 
 complaint for with which the process of removing from houses and other heritable 
 
 "^rem^s^ler"" Subjects of the rent hereinafter provided, let for any shorter period than 
 
 for less than a year, in Scotland, is attended ; be it enacted, that where houses or 
 
 a year. other heritable subjects in Scotland are let for any shorter period than a 
 
 year, at a rent of which the rate shall not exceed thirty pounds per 
 
 annum, it shall be competent for any person, authorised by law to 
 
 pursue a removing therefrom, to present a summary complaint to the 
 
 sheriff of the territory, who shall order it to be served, and the defender 
 
 to appear on such day as he may in each case think proper, in the form 
 
 or to the effect of Schedule (A) annexed to this Act. 
 
 Defender 9- -^^^ ^® i* enacted, that if the defender shall fail to appear after 
 
 may repone being duly cited, the sheriff shall proceed to determine the cause in the 
 
 against decree game manner as if the defender had been personally present : Provided 
 
 always, that where the decree shall have been pronounced in absence, 
 
 and shall not have been carried into execution, the defender may present 
 
 a petition to the sheriff for a further hearing of the cause, with evidence 
 
 of intimation thereof having been made to the opposite party written 
 
 thereon : and the sheriff, if he shall see cause, and upon payment by the 
 
 defender to the complaiuer of such expenses as the sheriff may judge 
 
 reasonable, may recall his decree, and proceed to hear and determine the 
 
 cause as on the original complaint without delay ; and provided also, 
 
 that where decree shall be pi'onounced in absence, the sheriff may give 
 
 such order for preservation of the goods and effects of the defender as he 
 
 may deem proper. 
 
 Warrant to 10. And be it enacted, that the complaint or copy thereof served on the 
 
 cite -witnesses, defender shall be a sufficient warrant to any sheriff-officer to cite witnesses 
 
 asto^fe™'"" °^ havers for either party to appear on the day of trial, and give 
 
 evidence in such summary cases of removing ; and the fees allowed to 
 
 the clerk or officers of Court on such complaint and proceedings shall be 
 
NO. IX.] SHERIFF COURT ACT, 1838. 611 
 
 tlie same as those allowed on summonses and similar proceedings in 
 small-debt causes in Sheriff Courts in Scotland, under an Act passed 
 during the last session of Parliament, intituled ' An Act for the more 7 Will. IV. & 
 ' effectual recovery of small debts in Sheriff Courts, and for regulating the ^ '^'°*- "■ ^^• 
 
 * establishment of Circuit Courts for the trial of small-debt causes by the 
 
 * sheriffs in Scotland ' : Provided always, that the travelling expenses of 
 officers and their assistants under the said recited Act, and this Act 
 shall not be allowed for more than the distance from the residence of 
 the officer employed to the place of execution or service, in case such 
 distance shall be less than from the Court-house to such place, and the 
 sheriff shall have power to modify such expenses in case the officer 
 residing nearest to the place of execution or service shall not be 
 employed ; and provided also, that such travelling expenses shall not be 
 a,llowed against an opposite party for a greater distance than twelve mUes. 
 
 11. And be it enacted, that the citation and further procedure in citation 
 such summary removings shall, in so far as not provided for by this and further 
 Act, be the same as those established by the said recited Act, procedure 
 for the trial of small -debt causes in Sheriff Courts ; and where to be the 
 decree of removing is pronounced it shall be in the form or to the same as 
 €ffect of the said Schedule (A) and shall have the full force of a decreet Sj^lfbt"'' 
 of removing and warrant of ejection; and the judgments to be causes. 
 pronounced in such summary actions of removing shall be final, and not Judgments 
 subject to review, either in the Circuit Court of Justiciary or in the *° ^^ ^'^si. 
 Court of Session. 
 
 12. And be it enacted, that the sheriff may, of consent of parties, sheriff may 
 or where the ends of justice require it, adjourn the further hearing of adjourn the 
 or procedure in any summary pi-ocess of removing raised under the ''^^^^• 
 authority of this Act, and he may likewise order written answers to be 
 
 given in to the complaint ; and all such orders shall be final, without 
 being subject to appeal or advocation : Provided always, tTiat the sheriff 
 shall in all such cases where the defences cannot be instantly verified 
 ordain the defender to find caution for violent profits. 
 
 13. And be it further enacted, that in all cases where the defender Where 
 
 lias found caution he shall be allowed to give in written answers to the p^^^l^^^^ 
 complaint ; and in all cases where written answers shall be ordered such j^g m^y give 
 cases shall thereafter be conducted, as nearly as may be, according to in written 
 the forms in use in ordinary processes of removing, and the judgment of ^°^i^^° 
 the sheriff therein shall be subject to review in common form. 
 
 14. And be it enacted, that no person shall be exempt from the Members 
 jurisdiction of the sheriff in any process of removing raised under the °f j°^jf| 
 authority of this Act, on account of privilege, or being a member of the not exempt. 
 College of Justice or otherwise. 
 
 Schedules referred to in the foregoing Act. 
 
 Schedule (A). 
 
 No. 1. 
 
 Form of Summary Complaint. 
 
 Unto the honourable the sheriff of the county of 
 
 Complains A.B. [name and design the complainer] against CD. 
 [name and design the defender'], that the complainer [or his author, as 
 the case Tnay he] let to the said defender [w- his author, as the case may 
 
612 1 AND 2 VICTORIA, CHAPTER 119. [appx. 
 
 hel a dwelling-house, garden, and pertinents [or other subjects, as the 
 case may be], situate in , for the period from to 
 
 • that the said defender is bound to remove from the said 
 subjects at the date last mentioned, and it is necessary to obtain decree 
 of removing against him [or as the case may be, refuses or delays to 
 remove therefrom, although the period of his lease has expired]; 
 therefore decreet ought to be granted for removing and ejecting the 
 said defender, his family, subtenants, cottars, and dependants, with 
 their goods and gear, furth and from the said subjects [here insert the 
 date at which the removal or ejection is sought for, as the case may be\ 
 that the complainer or others in his. right may then enter to and 
 possess the same. [If expenses are sought, add, and the said defender 
 ought to be found liable in expense of process and dues of extract.] 
 
 [Signature of the party or agent.] 
 
 No. 2. 
 Form of Warrant thereon. 
 The sheriff grants warrant to cite the said defender to compear 
 personally before him at the Court-house [or elsewhere, as the case may 
 be], upon the [insert the day of the month and hour, if need be], to 
 answer the foregoing complaint, under certification of being held as 
 confessed ; ordains such citation to be made at least [state the period 
 which the sheriff may fix to intervene betwixt the citation and diet of 
 comjxarance], previous to the said diet of compearance; and grants 
 warrant to cite witnesses for both parties to appear, time and place 
 foresaid, to give evidence in the said matter, under the pains of law. 
 Given under the hand of the clerk of Court at the 
 
 day of . Sheriff-clerk. 
 
 No. 3. 
 
 Form of Citation for Defender. 
 
 CD., defender above designed, you are hereby summoned to appear 
 
 and answer before the sheriff in the matter complained of, and that at 
 
 [here specify time and place], under certification of being held as 
 
 confessed. 
 
 This notice is served upon the day of by me, 
 
 Sheriff-oflScer. 
 
 No. 4. 
 
 Form of Execution of Citation. 
 
 Upon the day of I duly summoned the above- 
 
 designed CD., defender, to appear and answer before the sheriff in the 
 matter, and at the time and place, and under the certification above set 
 forth. This I did by delivering a copy of the above complaint, with a 
 citation thereto annexed, to the said defender personally [or otherwise, 
 as the case may be]. 
 
 Sheriff-officer. 
 
 No. 5. 
 
 Form of Decreet and Warrant of Ejection. 
 
 At , the day of , the which day the 
 
 sheriff [in absence of the defender, or having heard parties, as the case 
 may be], decerns and grants warrant for removing and ejecting the said 
 
NO. X.] SHERIFF COURT ACT, 1853. 613 
 
 CD., defender, and others mentioned in ttie complaint, from the subjects 
 therein specified, such ejection not being sooner than \liere insert the 
 time appointed, for removal, and whether after a charge on such inducice 
 as may be deemed proper, or instantly], finds the said defender liable in 
 expenses [or otherwise, as the case may 6e], and decerns. 
 
 [Sheriff's signature.] 
 
 Note. — The whole of the above to be in the same paper. 
 
 No. X. 
 
 SHERIFF COURT ACT, 1853 (IG &. 17 Vict. c. 80, sects. 29-31). 
 
 29. And with respect to actions of removing at any time, be it proceedings 
 enacted as follows : — actions of 
 
 It shall be competent to raise a summons of removing at any time, removing, 
 provided there be an interval of at least forty days between the date 
 of the execution of the suaimons and the term of removal or where there 
 is a separate ish as regards lands and houses, or otherwise, between the 
 date of the execution of the summons and the ish which is first in date. 
 
 30. Where any lands or heritages are held under a probative j^^^^ oon- 
 lease, specifying a term of endurance, such lease, or an extract thereof taining 
 from the books of any Court of record, shall have the same force and obligation 
 efiect in every respect as any extract decree of removing obtained equivalent 
 iu any ordinary action of removing at the instance of the party to decree 
 sranter of such lease, or in the risht of the granter of such lease, ?^ remov- 
 against the party in possession \inder such lease, whether such party vided forty 
 in possession be the lessee named in such lease or not, decerning days' 
 such party in possession, his family, su btenants, cottars, and dependants, ^^^^ 
 with their goods and gear, to be removed and ejected from the said 
 
 lands or heritages at the term or terms corresponding to the expiration 
 of the term or terms of endurance specified in such lease ; and such 
 lease or extract thereof shall, along with a written authority signed by 
 tlie landlord or his factor or agent, be a sufficient warrant to any 
 sherifi"-officer or messenger-at-arms of tlie county within which such lands 
 or heritages are situate to remove and eject such party in possession, 
 and his foresaids, from such lands or heritages on the elapse of such 
 specified term or terms respectively, and to return an execution thereof 
 in common form : Provided always, that previous notice to remove 
 shall be given to such party in possession at least forty days before the 
 expiration of the term of endurance specified in such lease, or where the 
 lease has a separate ish as regards land and houses or otherwise, at 
 least forty days before that ish which is first in date, by causing to be 
 ■delivered to such party in possession, or to be left at his ordinary 
 dwelling-house, or to be transmitted to his known address through the 
 post-office, previous to the commencement of such period of forty days, 
 a notice by a sherifi'-offioer of the county in which such lands or 
 heritages are situate, or messenger-at-arms, in the form in Schedule (I) 
 annexed to this Act ; and a certificate endorsed on such lease or extract 
 that such notice has been duly given, signed by a sheriff-officer 
 of such county, or messenger-at-arms, and attested by one witness, 
 in the form in Schedule (J) annexed to this Act, or an acknowledgment 
 to that efiect endorsed thereon by such party in possession himself, or 
 
614 
 
 16 AND 17 VICTORIA, CHAPTER 80. 
 
 [appx. 
 
 Letter of 
 removal 
 granted by 
 tenant 
 equivalent 
 to decree 
 of remov- 
 ing, pro- 
 vided forty 
 days' notice 
 be given. 
 
 by his known agent on his behalf, shall be suflScient evidence that such 
 notice has been given : Provided also, that no such removal or eject- 
 ment by virtue of this enactment shall be competent after six weeks 
 have elapsed from the expiration of the term of endurance specified in 
 such lease, or where the lease has a separate ish as regards land and 
 houses or otherwise, after six weeks have elapsed from that ish which is 
 last in date ; and provided further, that nothing herein contained shall 
 be construed to prevent any proceedings under this enactment from 
 being brought under suspension in common form. 
 
 31. Where any tenant in possession of any lands or heritages 
 shall, whether at the date of entering upon his lease, or at any other 
 time, grant a letter of removal, either holograph or attested by one 
 witness, in the form in Schedule (K) annexed to this Act, such letter of 
 removal shall have the same force and effect in every respect as any 
 extract decree of removing obtained in any ordinary action of removing 
 at the instance of the party to whom such letter of removal is granted, 
 or of the party in his right against the party granter of such letter of 
 removal, or the party in his right as tenant, decerning such party 
 granter of such letter, or such party in his right, as the case may be, his 
 family, subtenants, cottars and dependants, with their goods and gear, 
 to be removed and ejected from the said lands and heritages at the term 
 or terms of removal respectively specified in such letter of removal; 
 and such letter of removal shall be a sufficient warrant to any sheriff- 
 officer of the county within which such lands or heritages are situate to 
 remove and eject such party granter of such letter of removal, or such 
 party in his right, and his foresaids, from such lands and heritages, on 
 the elapse of such specified terra or terms respectively, and to return an 
 execution thereof in common form : Provided always, that where 
 such letter of removal shall bear date more than six weeks before 
 the term of removal, or the ish first in date, specified in such letter of 
 removal, previous notice to remove shall be given to the party granter of 
 such letter of removal, or to such party in his right, at least forty days 
 before such term of removal, or where such letter of removal specifies a 
 separate ish as regards lands and houses or otherwise, at least forty days 
 before that ish which is first in date, by causing to be delivered to such 
 party granter of such letter of removal, or to such party in his right, or to 
 be left at his ordinary dwelling-house, or to be transmitted to his known 
 address through the post-office, previous to the commencement of such 
 period of forty days, a notice by a sherifi'-officer of the county in which 
 such lands or heritages are situate, in the form of Schedule (I) annexed 
 to this Act ; and a certificate endorsed upon such letter of removal that 
 such notice has been duly given, signed by a sheriff-officer of such 
 county, and attested by one witness, in the form of Schedule (J) annexed 
 to this Act; or an acknowledgment to that effect endorsed thereon by 
 the granter of such letter of removal, or other party in his right, or by 
 the known agent of the granter of such letter of removal, or other party 
 on his behalf, shall be sufficient evidence that such notice has been 
 given : Provided also, that no such removal or ejectment by virtue of 
 this enactment shall be competent after six weeks have elapsed from 
 the expiration of the term of endurance specified in such letter of 
 removal, or where such letter of removal has a separate ish as regards 
 lands and houses or otherwise, after six weeks have elapsed, from that 
 ish which IS last in date ; and provided further, that nothing herein con- 
 
NO. XI.] REMOVAL TEEMS (SCOTLAND) ACT, 1886. 615 
 
 tained shall be construed to prevent any proceedings under this enact- 
 ment from being brought under suspension in common form. 
 
 Schedule (I). 
 Notice to Bemove. 
 
 [Place and date.] 
 You are required to remove from the farm of [insert name by which 
 usually known], at the term of next, as to the houses and 
 
 grass, and at the separation of the crop from the ground as to the arable 
 land [or as the case may he], in terms of the lease thereof [or in terms 
 of your letter of removal], dated 
 
 r ^ , , ^ E.F., sheriff-officer. 
 
 [Address] G.H. [design him]. 
 
 Schedule (J). 
 Certificate of Notice to Remove. 
 
 I., E.F., sheriff-officer of the county of , certify that 
 
 on the day of , notice to remove, in terms of this lease 
 
 [or letter of removal] at next [according to the terms of the notice], 
 
 was, in presence of L.M. [design him], subscribing witness, given by me 
 to G.H., the tenant, by delivering such notice to him personally [or by 
 leaving such notice at his ordinary dwelling-house at , or by 
 
 transmitting such notice to him through the post-office to his known 
 address, as follows : {insert address to which notice sent)]. 
 
 L.M., witness. E.F., sheriff-officer. 
 
 Schedule (K). 
 Letter of Removal. 
 
 [Place and date.] 
 
 Sir, — I am to remove from the farm of [insert name hy which 
 
 usually known], at the term of , eighteen hundred and 
 
 , as to the houses and grass, and at the separation of 
 
 the crop from the ground as to the arable land [or as the case may he]. 
 
 — I am, your obedient servant [signed hy the tenant]. [Address.J 
 
 Note. — If this letter is not holograph of the granter of it, it must be attested by one 
 witness, thus,— i.ilf., witness. 
 
 No. XI. . 
 
 49 & 50 VICTORIA, c. 50. 
 
 An Act to amend the Law relating to the Terms of Removal from 
 Houses in Scotland. — [2bth June 1886.] 
 
 WHEREAS in many counties and burghs in Scotland a custom 
 exists whereby for the purpose of a tenant's entry to or removal 
 from a house a period beyond the date of the legal term of entry or 
 removal is allowed within which such entry or removal may take place : 
 And whereas the period so allowed is not uniform but varies according 
 to local usage : 
 
616 49 AND 50 VICTORIA, CHAPTER 50. [apEX. 
 
 And whereas sucli want of uniformity is productive of great incon- 
 venience, and it is expedient that the terms for such entry and removal 
 should be uniform : 
 
 Be it enacted by the Queen's most Excellent Majesty, by and with the 
 
 advice and consent of the Lords Spiritual and Temporal, and Commons, 
 
 in this present Parliament assembled, and by the authority of the same, 
 
 as follows : 
 
 Short title and 1- This Act may be cited as the 'Removal Terms (Scotland) Act, 1886,' 
 
 extent of Act. and shall extend to Scotland only. 
 
 Repeal of 44 2. The Removal Terms (Burghs) Scotland Act, 1881,is hereby repealed. 
 *^ 45 Vict. 3_ Jn this Act the following expressions shall have the following 
 
 ■ „■. . meanings : 
 
 ' House ' shall mean a dwelling-house, shop, or other building and 
 their appurtenances, and shall include a dwelling-house or build- 
 ing let along with land for agricultural or other purposes : 
 ' Burgh ' shall mean royal burgh, parliamentary burgh, or any popu- 
 lous place, the boundaries whereof have been fixed and ascer- 
 tained under the General Police and Improvement (Scotland) 
 Act, 1862, and subsequent Acts : 
 ' Lease ' shall include tack and set, and shall apply to any lease, tack, 
 or set, whether constituted by writing or verbally, or by tacit 
 relocation and of whatever duration : 
 ' Tenant ' shall mean a tenant under any lease as defined by this 
 
 Act : and 
 'Person' shall mean any person or individual, and shall apply to 
 and include companies and corporations. 
 Terms of entry *■ Where under any lease entered into after the passing of this Act, 
 and removal the term for a tenant's entry to, or removal from, a house shall be one 
 from houses. ^^ Q^her of the terms of Whitsunday or Martinmas, the tenant shall, 
 in the absence of express stipulation to the contrary, enter to, or remove 
 from, the said house (any custom or usage to the contrary notwith- 
 standing) at noon on the twenty-eight day of May, if the term be "Whit- 
 sunday, or at noon on the twenty-eighth day of November, if the term 
 be Martinmas, or on the following day at the same hour, where the said 
 terms fall on a Sunday. 
 
 Notwithstanding anything in this Act contained, in all cases in 
 which warning is required forty days before a Whitsunday or Mar- 
 tinmas term of removal, such warning shall be given forty days 
 before the fifteenth day of May and the eleventh day of November 
 respectively. 
 Period of 5. Where a house, other than a dwelling-house or building let along 
 
 moval "n ''^" ""^^^ ^^^'^ ^°^ agricultural purposes, is let for any period not exceeding 
 certain cases. ^°^'^ calendar months, notice of removal therefrom shall, in the absence 
 of express stipulation, be given as many days before the date of ish as 
 .shall be equivalent to at least one-third of the full period of duration of 
 the lease. 
 Notice of re- 6. Notice of removal from a house, other than a dwellino'-house or 
 tere™\eUer°'" '^l^^^'^^S '«* ^'°'^g ^i*^^ laud for agricultural purposes, may hereafter be 
 given by registered letter, signed by the person entitled to give such 
 notice, or by the law-agent or factor of such person, posted at any 
 post-office within the United Kingdom, in time to admit of its being 
 delivered at the address thereon, on or prior to the last date upon which 
 by law such notice of removal must be given, addressed to the person 
 
}J0. XII.] CKOFTERS HOLDINGS (SCOTLAND) ACT, 1886. 617 
 
 entitled to receive such notice, and bearing the particular address of 
 such person at the time, if the same be known, or, if the same be not 
 known, then the last known address of such person. 
 
 No. XII. 
 
 49 & 50 VICTORIA, c. 29. 
 
 [CROFTERS HOLDINGS (SCOTLAND) ACT, 1886.] 
 
 Arrangement op Sections. 
 
 I. Security of Tenure. 
 Section 
 
 1. A crofter shall not be removed except for breach of statutory 
 
 conditions. 
 
 2. Provision for resumption by landlord. 
 
 3. Removal of crofter for breach of conditions. 
 
 II. Eent. 
 
 4. Present rent. 
 
 6. Rent altered by agreement. 
 
 6. Fixed rent. 
 
 III. Renunciation of Tenancy. 
 
 7. Renunciation of tenancy. 
 
 IV. Compensation for Improvements. 
 
 8. Compensation to crofter for improvements on removal. 
 
 9. Compensation to cottar for improvements on removal. 
 
 10. Principle of valuation. 
 
 V. Enlargement of Holdings. 
 
 1 1. Application by crofters for enlargement. 
 
 12. Intimation to landlords. 
 
 13. Available land. 
 
 14. Deduction from rent in case of lands held for sporting purposes. 
 
 15. Assigned land. 
 
 16. Bequest of holdiag. 
 
 VI. Crofters Commission. 
 
 17. Appointment of three Commissioners. 
 
 18. Commission to make report of their proceedings. 
 
 19. Area covered by tlie Act. 
 
 20. Procedure in fixing fair rent. 
 
 21. Procedure in enlarging holdings. 
 
 22. Duration of powers as to enlargement of holdings. 
 
 23. Delegation of Commissioners' duties. 
 
 24. Taking evidence and expenses before Crofters Commission. 
 
 25. Finality of Commissioners' decision. 
 
 26. Use of SheriflF Court-houses. 
 
618 49 AND 50 VICTORIA, CHAPTER 29. [appX. 
 
 27. Eecord of proceedings; transmission of applications by sheriff-clerk ; 
 
 sheriff-clerk's remuneration. 
 
 28. Execution of orders made by Commission. 
 
 29. Forms of procedure. 
 
 30. Sole arbiter may be chosen. 
 
 31. Saving of 46 & 47 Yict. c. 62. 
 
 32. Loans for the purchase and equipment of fishing-boats. 
 
 33. Saving in case of holdings in possession of servants. 
 
 34. Definitions. 
 
 35. Short title. 
 Schedule. 
 
 An Act to amend the Law relating to the Tenure of Land hy Crofters in 
 the Highlands and Lslands of Scotland, and for other purposes relating 
 thereto. — \26th June 1886.] 
 
 WHEREAS it is expedient to amend the law relating to the tenure 
 of land by crofters in the Highlands and Islands of Scotland : 
 Be it enacted by the Queen's most Excellent Majesty, by and with 
 the advice and consent of the Lords Spiritual and Temporal, and 
 Commons, in this present Parliament assembled, and by the authority 
 of the same, as follows : 
 
 I. Security of Tenure. 
 A crofter shall 1. A crofter shall not be removed from the holding of which he is 
 'exce-Diior° tenant except in consequence of the breach of one or more of the 
 breach of stat- conditions following (in this Act referred to as statutory conditions), 
 utory con- but he shall have no power to assign his tenancy. 
 
 (1) The crofter shall pay his rent at the terms at which it is due and 
 
 payable : 
 
 (2) The crofter shall not execute any deed purporting to assign his 
 
 tenancy : 
 
 (3) The crofter shall not, to the prejudice of the interest of the land- 
 
 lord, persistently injure the holding by the dilapidation of build- 
 ings or, after notice has been given by the landlord to the crofter 
 not to commit, or to desist from, the particular injury specified 
 in such notice, by the deterioration of the soil : 
 
 (4) The crofter shall not, without the consent of his landlord in writ- 
 
 ing, subdivide his holding or sublet the same or any part thereof, 
 or erect or suffer to be erected thereon any dwelling-house other- 
 wise than in substitution for those already upon the holding at 
 the time of the passing of this Act : 
 
 (5) The crofter shall not persistently violate any written condition 
 
 signed by him for the protection of the interest of the landlord 
 or of neighbouring crofters which is legally applicable to the hold- 
 ing, and which the Crofters Commission shall find to be reason- 
 able: 
 l9&20Tiot. (6) The crofter shall not do any act whereby he becomes notour 
 %^i'A* yr- 4. bankrupt within the meaning of the Bankruptcy (Scotland) Act. 
 
 4^ & 44 Vict. 1856, and the Debtors (Scotland) Act, 1880, and shall not 
 
 execute a trust-deed for behoof of creditors : 
 (7) The landlord, or any person or persons authorised by him in that 
 behalf (he or they making reasonable compensation for any 
 
NO. XII.] CEOFTEES HOLDINGS (SCOTLAND) ACT, 1886. 619 
 
 damage to be done or occasioned thereby), shall have the right 
 to enter upon the holding for any of the purposes following 
 (that is to say) : 
 
 Mining or taking minerals, or digging or searching for minerals ; 
 Quarrying or taking stone, marble, gravel, sand, clay, slate, 
 
 or other -workable mineral ; 
 Cutting or taking timber or peats, excepting timber and other 
 trees planted by the crofter or his predecessors in the hold- 
 ing, being of the same family, or that may be necessary for 
 ornament or shelter, and excepting also such peats as may 
 be required for the use of the holding ; 
 Opening or making roads, fences, drains, and watercourses ; 
 Passing and repassing to and from the shore of the sea or any 
 loch with or without horses and carriages for exercising any 
 right of property or other right belonging to the landlord ; 
 Viewing or examining at reasonable times the state of the 
 
 holding and all buildings or improvements thereon ; 
 Hunting, shooting, fishing, or taking game or fish, wild birds, 
 or vermin. The word ' game ' for the purposes of this sub- 
 section means deer, hares, rabbits, pheasants, partridges, 
 quails, landrails, grouse, blackgame, capercailzie, ptarmigan, 
 woodcock, snipe, wild duck, widgeon, and teal ; 
 And the crofter shall not obstruct the landlord, or any person 
 or persons authorised by him in that behalf as aforesaid, in the 
 exercise of any right reserved or conferred by this subsection. 
 (8) The crofter shall not on his holding, without the consent of his 
 landlord, open any house for the sale of intoxicating liquors. 
 
 2. Notwithstanding the provisions contained in the preceding Provision for 
 section, the Crofters Commission may, on the application of the land- ?"^^"™P*'°i ''y 
 lord, and upon being satisfied that he desires to resume the hold- 
 ing or part thereof, for some reasonable purpose, having relation to 
 
 the good of the holding or of the estate, including the using, letting, or 
 feuing the land proposed to be resumed, for the building of dwellings, 
 or for small allotments for fishermen, or for harbours, piers, boat 
 shelters, or other buildings connected with the fishing industry, or for 
 churches or other places of religious worship, or for schools, or for 
 planting or for roads practicable for carriages from the croft or crofts to 
 the high-road or the sea-shore, authorise the resumption thereof by the 
 landlord upon such terms and conditions as the Crofters Commission 
 shall think fit, and may require the crofter to surrender his holding, in 
 whole or in such part, to the landlord, upon the landlord making 
 adequate compensation to the crofter, either by letting to him other 
 land of equivalent value in the neighbourhood, or by reduction of rent, 
 or by compensation in money, or otherwise as the Crofters Commission 
 shall determine. 
 
 3. When one year's rent of the holding, but less than two years' rent. Removal of 
 is due and unpaid, the crofter shall be liable to be removed in manner ?''°**'F *?'' 
 provided by section twenty-seven of the Agricultural Holdings conditions. 
 (Scotland) Act, 1883. 46 & 47 Vict. 
 
 "When two years' rent of the holding is due and unpaid, or when the "■ •'^■ 
 crofter has broken any other of the statutory conditions, he shall forfeit 
 his tenancy, and shall be liable to be removed in manner provided 
 by the fourth section of the Act of Sederunt anent removing of 
 
620 
 
 49 AND 50 VICTORIA, CHAPTER 29. 
 
 [appx. 
 
 tlie fourteenth day of December one thousand seven hundred and 
 fifty-six. 
 
 II. Rent. 
 
 Present rent. 4. The rent payable, as one of the statutory conditions, shall be the 
 present rent, that is to say, the yearly rent including money and any 
 prestations other than money, payable for the year current at the 
 passing of this Act, unless and until the present rent is altered in 
 manner provided by this Act. 
 
 Rent altered 5. The rent may be altered by agreement between the landlord and 
 
 by agreement, the crofter to such amount and for such period as may be agreed on ; 
 and the rent so agreed on shall be the rent payable by the crofter so 
 long as such agreement subsists, and after the expiry thereof so long as 
 no different rent shall have been fixed by the Crofters Commission 
 upon the application of the landlord or the crofter, and so long as 
 no new agreement between the landlord and the crofter shall have 
 been made. 
 
 Fixed rent. 6. (1) The landlord or the crofter may apply to the Crofters 
 
 Commission to fix the fair rent to be paid by such crofter to the land- 
 lord for the holding, and thereupon the Crofters Commission, after 
 hearing the parties and considering all the circumstances of the case, 
 holding, and district, and particularly after taking into consideration 
 any pei'manent or unexhausted improvements on the holding and 
 suitable thereto which have been executed or paid for by the crofter or 
 his predecessors in the same family, may determine what is such fair 
 rent, and pronounce an order accordingly. 
 
 (2) The rent fixed by the Crofters Commission (in this Act referred 
 to as the fixed rent) shall be deemed to be the rent payable by the 
 crofter as from the first term of Whitsunday or Martinmas next 
 succeeding the decision of the Crofters Commission, and shall come in 
 place of the present rent, and, save by mutual agreement, the fixed rent 
 shall not be altered for a period of seven years from such term. 
 
 (3) Where the Crofters Commission shall fix a rent which shall be 
 less in amount than the present rent, the crofter shall be entitled, at 
 the next payment of rent, to deduct from the amount of the fixed rent 
 such sum or sums as he may have paid over and above the amount 
 of the fixed rent in respect of the period between the date of the 
 notice of application to fix the fair rent and the date when such rent 
 was fixed. 
 
 (4) When an application is lodged with the Crofters Commission to 
 fix a fair rent, it shall be in the power of the Crofters Commission, 
 either under the same or under another application of the crofter, to 
 gist all proceedings for the removal of the crofter in respect of non- 
 payment of rent till the said application is finally determined, upon 
 such terms as to payment of rent or otherwise as they shall think fit. 
 
 (5) In the proceedings on such application the Crofters Commission 
 shall take an account of the amount of arrears of rent due or to become 
 due before the application is finally determined, and may take evidence 
 of all the circumstances which have led to such arrears, and shall 
 decide whether, in view of such circumstances, the whole or what part 
 of such arrears ought to be paid, and whether in one payment or by 
 instalments, and at what dates the same should be paid, and the 
 amount and dates so fixed shall be deemed to be the total amount 
 
NO. XII.] CROFTIiES HOLDINGS (SCOTLAND) ACT, 1886. G21 
 
 of such arrears due by the crofter, and the terms at which the same 
 become payable. 
 
 III. Renunciation of Tenancy. 
 
 7. A crofter shall be entitled, upon one year's notice in -writing to Eenuncia- 
 the landlord, to renounce his tenancy as at any term of Whitsunday or *'"'' °* 
 Martinmas. ' t^^<>.-^<^. 
 
 IV. Compensation for Improvements. 
 
 8. When a crofter renounces his tenancy or is removed from his Compensation 
 holding, he shall be entitled to compensation for any permanent *° crofter for 
 improvements, provided that- ^Tem^vaT*^ 
 
 (a) The improvements ai-e suitable to the holding ; 
 
 (6) The improvements have been executed or paid for by the crofter 
 
 or his predecessors in the same family, 
 (c) The imjirovements have not been executed in virtue of any 
 
 specific agreement in writing under which the crofter was bound 
 
 to execute such improvements. 
 
 9. When a cottar if not paying rent is removed from his dwelling and Compensation 
 any land or buildings occupied by him in connection therewith, or if }° "ottar for 
 paying rent renounces his tenancy or is removed, he shall be entitled to ^^emova™ * 
 compensation for any permanent improvements, provided that — 
 
 (a) Such improvements are suitable to the subject ; 
 
 (6) Such improvements shall have been executed or paid for by the 
 
 cottar or his predecessors in the same family ; 
 (c) Such improvements have not been executed in virtue of any 
 specific agreement in writing under which the cottar was bound 
 to execute such improvements. 
 The provisions of the preceding section and of this section shall not 
 apply to any buildings erected by a crofter or a cottar in violation of any 
 interdict or other judicial order. 
 
 10. Improvements shall be valued under this Act at such sum as principle of 
 fairly represents the value of the improvement to an incoming tenant, valuation, 
 provided that in fixing the amount of compensation payable, the value 
 
 of any assistance or consideration which may be proved to have been 
 given by the landlord or his predecessors in title, in respect of such 
 improvements shall be taken into account, and deducted from such 
 compensation, and the value of any deterioration committed or permitted 
 by the tenant within the four years preceding shall also be deducted 
 from the said compensation. 
 
 V. Enlargement of Holdings. 
 
 11. It shall be lawful for any five or more crofters resident on Application by 
 neighbouring holdings in a crofting parish, where any landlord or land- crofters for 
 lords after application made to him or them have refused to let to such «°l'''^sement. 
 crofters available land on reasonable terms for enlarging the holdings of 
 
 such crofters, to apply to the Crofters Commission setting forth that in 
 the said parish or in an adjacent crofting parish there is land available 
 for the enlargement of such holdings which they are willing to take oji 
 lease, but which the landlord or landlords refuse to let on reasonable 
 terms; that is to say, on such terms as are usually obtained in tie 
 letting of land of the like quality, and similarly situated in the same 
 
622 49 AND 50 VICTORIA, CHAPTER 29. [appx. 
 
 district, for other purposes than that of a deer forest, or of a grouse moor, 
 or other sporting purpose. 
 Intimation to 12. The Crofters Commission shall, upon receiving such an appli- 
 landlords. cation as aforesaid, intimate the same to the landlord or landlords 
 therein alleged to have refused to let available land for the enlargement 
 of such holdings as aforesaid, and shall afford such landlord or landlords, 
 and the crofters by whom the application is made, an opportunity of 
 being heard thereupon, and shall ascertain as far as possible how far the 
 small size of the holdings has been due to the action of the landlord or 
 of the crofters, and shall make such other inquiry as to them shall appear 
 necessary or proper ; and if they are satisfied — 
 
 (1) That there is land in the parish, or in an adjacent crofting parish, 
 
 available for enlarging the holdings of the said crofters, but that 
 the landlord or landlords refuse to let the same for that purpose 
 on reasonable terms ; 
 
 (2) That the applicants are willing and able to pay a fair rent there- 
 
 for, and that in the event of an order for the letting thereof being 
 made, the applicants are able properly to cultivate the same in so 
 far as it consists of arable land, and properly to stock the same 
 in so far as it consists of pasture land ; 
 the Crofters Commission may make an order for a lease of the said land, 
 or such part or parts thereof as they may think proper, to the applicants, 
 or one or more of them, at a fair rent, and upon such terms and con- 
 ditions as the Crofters Commission shall consider just. 
 
 It shall be competent for the Crofters Commission by an order under 
 this section to provide, if this shall appear to them to be just and 
 expedient, for admitting the crofters who have applied as aforesaid, to 
 participate in common pasture occupied by other crofters, or for 
 conferring upon the applicants rights of pasturage common as among 
 themselves over available land specified in the order, upon such terms 
 and conditions as the Crofters Commission shall determine. 
 
 It shall be competent for the Crofters Commission to draw up a 
 scheme regulating the use by the crofters on the same estate, of sea- 
 weed for the reasonable purposes of their holdings, peat bogs, and 
 heather or grass used for thatching purposes, and to include the charge 
 for all these in the fixed rent. 
 Available land. 13. (1) Land shall not be deemed available land for the purposes 
 of this Act unless it lies contiguijus or near to land already in the 
 occupancy of the crofters making the application, and belongs to the 
 same landlord or landlords as the land occupied by the said crofters : 
 (2) If the land is subject to an existing lease for a term of years, 
 entered into prior to the commencement of this Act (not being 
 a lease for the purposes of a deer forest, or of a grouse moor, or 
 for other sporting purpose), it shall not be competent to assign 
 any part thereof for the enlargement of the holdings of the crofters 
 who have made the application, unless with the assent of the 
 landlord or landlords and of the tenant or tenants of such 
 land, and upon such tetms as such landlord or landlords and 
 tenant or tenants shall voluntarily agree to. 
 (.3) It shall not be competent for the Crofters Commission to assign 
 land for the enlargement of the crofters' holdings — 
 
 (a) If the land forms part of any garden, policy, park, 
 plantation, or other wood ; or, 
 
NO. XII.] CROFTERS HOLDINGS (SCOTLAND) ACT, 1886. 623 
 
 (6) If the land forms part of any farm, whether subject to a 
 lease or not, unless the Crofters Commission are satisfied 
 that the part proposed to be assigned for the enlargement 
 of the crofters' holdings, can be so assigned without material 
 damage to the letting value of the remainder ; 
 
 (o) If the land forms part of an existing farm or other hold- 
 ing, unless the rent or annual letting value of such farm or 
 holding shall exceed one hundred pounds ; 
 
 (d) If the land is arable or improved pasture in the immediate 
 vicinity of a residence or farm steading, or is land which 
 could not be assigned for the enlargement of the crofters' 
 holdings without substantially impairing the amenity of 
 such residence or farm steading ; 
 
 (e) If the land form part of a deer forest, and if the assig- 
 nation of such land for the purposes of this Act would 
 seriously impair the use of the remainder as a deer forest, 
 and would act injuriously on the prosperity of the inhabit- 
 ants generally of the district in which such deer forest is 
 situated. 
 
 (4) The aggregate value of the land assigned for the enlargement of 
 
 the crofters' holdings shall not exceed one-third of the rent or 
 annual letting value of the farm or other holding from which it 
 is taken, when the annual value of the holding is between one 
 hundred pounds and one hundred and fifty pounds, or one-half 
 when the annual value is above one hundred and fifty pounds 
 and below three hundred pounds, or two-thirds when the annual 
 value of the holding is above three hundred pounds. 
 
 (5) It shall not be competent for the Crofters Commission to grant 
 
 the application of the crofters for the enlargement of their hold- 
 ings, to the extent or effect of raising the annual value of their 
 holdings respectively to a higher amount than fifteen pounds each. 
 
 14. Where a portion of any land held under lease for the purposes Deduction 
 of a deer forest or of a grouse moor, or for other sporting purpose, is from rent in 
 assigned by the Crofters Commission for the enlargement of the holding ^^j^ for'sport- 
 or holdings of a crofter or crofters under this Act, the Crofters Com- ing purposes, 
 mission shall, when they so assign such land, fix the amount of the 
 deduction (if any) which in their judgment ought to be made from the 
 
 rent payable by the tenant under the lease to the landlord, in respect of 
 the portion of the land held under the same having been assigned as 
 aforesaid, and thereafter the tenant under the lease shall be liable to 
 the landlord only in the balance of the rent thereby stipulated, after 
 deduction of the sum so fixed. 
 
 15. Land assigned by the Crofters Commission under the authority Assigned land. 
 of this Act shall be deemed to be part of the holding or holdings to 
 
 which it is so assigned, and shall be subject to the provisions of this 
 Act relative to crofters' holdings. 
 
 16. A crofter may, by will or other testamentary writing, bequeath Bequest of 
 his right to his holding to one person, being a member of the same holding, 
 family ; that is to say, his wife or any person who, failing nearer heirs, 
 
 would succeed to him in case of intestacy (hereinafter called the 
 ' legatee '), subject to the following provisions : 
 
 (a) The legatee shall intimate the testamentary bequest to the land- 
 lord or his known agent within twenty-one days after the death 
 
624 49 AND 50 VICTORIA, CHAPTER 29. [appx. 
 
 of the crofter, unless he is prevented by some unavoidable cause 
 from making intimation within that time, and in that event he 
 shall make intimation as soon as possible thereafter : 
 (6) Intimation to the landlord or his known agent by the legatee 
 shall import acceptance of the crofter's right to the holding by 
 the legatee : 
 
 (c) Within one month after intimation has been made to the land- 
 
 lord or his known agent, he may intimate to the legatee that he 
 objects to receive him as crofter in the holding : 
 
 If the landlord or his known agent makes no such intimation 
 •within one month, the legatee shall come into the place of the 
 crofter in the holding as from the date of the death of the 
 deceased crofter : 
 
 (d) If the landlord or his known agent intimates that he objects to 
 
 receive the legatee as crofter in the holding, the legatee may 
 present a petition to the sheriff, praying for decree declaring 
 that he is the crofter therein as from the date of the death of the 
 deceased crofter, of which petition due notice shall be given to 
 the landlord, who may enter appearance and state his grounds 
 of objection ; and if any reasonable ground of objection is 
 established to the satisfaction of the sheriff, he shall declare the 
 bequest to be null and void ; but otherwise he shall decern and 
 declare in terms of the prayer of the petition : 
 • (e) The decision of sheriff under such petition as aforesaid shall be final : 
 (/) Where the legatee shall have presented a petition to the sheriff 
 as aforesaid, the legatee, pending any proceedings, shall have 
 possession of the holding unless the sheriff shall otherwise direct 
 on cause shown : 
 (g) If the legatee shall accept the bequest, and the bequest is not 
 declared to be null and void as aforesaid, the legatee shall be 
 entitled to possess the holding on the same terms and conditions 
 as if he had been the nearest heir of the crofter ; 
 (h) If the legatee does not accept the bequest, or if the bequest is 
 declared to be null and void as aforesaid, the right to the holding 
 shall descend to the heir of the crofter, in the same manner as if 
 the bequest had not been made. 
 Provided always, that in the case of any legatee or heir-at-law more 
 distant than wife, son, grandson, daughter, grand-daughter, brother, or 
 son-in-law, it shall be competent to the landlord on his own part, or on 
 the part of neighbouring crofters, to represent that, for the purpose of 
 enlarging their holding or holdings, the holding ought to be added to 
 them ; and in all cases in which the sheriff shall determine in favour of 
 such representation, the heir, or the legatee, as the case may be, who, 
 but for such determination, would have succeeded to the holding, shall 
 have right to any claim of compensation for improvements thereon 
 which would have been competent to the deceased crofter if he had been 
 removed at the date of his death : Provided further, that if in any such 
 case the landlord shall fail, within six months after the determination of 
 the sheriff, to add the holding to one or more of the adjoining holdings, 
 it shall be competent to the neighbouring crofters to apply to the 
 Crofters Commission, who shall make an order assigning the holding to 
 one or more of the neighbouring crofters for the enlargement of his or 
 their holding or holdings. 
 
NO. xn.] CROFTERS HOLDINGS (SCOTLAND) ACT, 1886. 625 
 
 VI. Crofters Commission. 
 
 17. With a view to the execution of this Act, it shall be lawful for Appointment 
 Her Majesty to appoint three Commissioners, in this Act designated ?f *'^'^^.* . 
 'the Crofters Commission.' CommisBion- 
 
 One of the said Commissioners shall be a person who can speak the 
 Gaelic language. 
 
 One of the said Commissioners shall be a person who at the date of 
 his appointment shall be an advocate of the Scottish bar of not less than 
 ten years' standing. 
 
 If any vacancy occurs in the office of Commissioner, by death, 
 resignation, incapacity, or otherwise. Her Majesty may by -warrant 
 under the royal sign manual appoint some other qualified person to 
 fill the vacancy. 
 
 It shall be the duty of the Crofters Commission to hold sittings in 
 such places to which this Act applies, and in such order and subject to 
 such regulations as the Secretary for Scotland may prescribe. 
 
 The Crofters Commission may appoint such officers, including valuers 
 and assessors, as also clerks or persons holding inferior situations, at 
 such remuneration as the Treasury may sanction, and the Commis- 
 sioners shall receive such remuneration as the Treasury may sanction 
 out of moneys to be provided by Parliament. 
 
 18. The Crofters Commission shall once in every year after the year Commission to 
 one thousand eight hundred and eighty-six make a report to the ^^^ report 
 Secretary for Scotland as to their proceedings under this Act, and every proceedings, 
 such report shall be presented to Parliament. 
 
 19. The Crofters Commission after due inquiry shall ascertain what Area covered 
 parishes or islands or districts forming aggregates of parishes, within ^ e c . 
 the counties of Argyll, Inverness, Ross and Cromarty, Sutherland, 
 Caithness, Orkney, and Shetland, are crofting parishes, or aggregates of 
 crofting parishes, and shall determine that this Act shall apply to such 
 parishes. 
 
 Such determination shall be reported to the Secretary for Scotland 
 in one or more reports, and may be confirmed by him with or without 
 modification. 
 
 From and after the date of such confirmation, this Act shall apply to 
 the parishes included in the determination. 
 
 Every such determination, when confirmed, shall be laid before 
 Parliament. 
 
 Within the parishes to which this Act is determined to apply as afore- 
 said, this Act shall apply to every crofter who is the tenant of a holding 
 at the passing of this Act, and to his heirs and legatees, in the same 
 manner as if the tenancy were a lease. 
 
 In the event of the heirs-at-law of the crofter being heirs -portioners, 
 the eldest of such heirs-portioners shall succeed to the tenancy without 
 division. 
 
 20. When an application is made to the Crofters' Commission to fix Procedure in 
 
 a fair rent, intimation thereof shall be given to the other party inter- adng fair rent, 
 ested in the holding, landlord or crofter, as the case may be, and the 
 Crofters Commission shall appoint a time and place at which parties 
 shall be heard in reference to the matter of the application. 
 
 It shall be competent for the Commissioners in case of such applica- 
 tion to visit the holding, if they think fit, as also to call in the aid of an 
 assessor or assessors, specially qualified by local knowledge or otherwise, 
 
 2 R 
 
626 
 
 49 AND 50 VICTORIA, CHAPTER 29. 
 
 [appx. 
 
 Procedure in 
 enlarging hold- 
 ings. 
 
 Duration of 
 powers as to 
 enlargement 
 of holdings. 
 Delegation of 
 Commis- 
 sioners' duties. 
 
 Taking evid- 
 ence and 
 expenses before 
 Crofters Com- 
 
 Finality of 
 Commis- 
 sioners deci- 
 sion. 
 
 Use of Sheriff - 
 Court-houses. 
 
 and to hear the case wholly or partially with the aid of such assessor 
 or assessors, or they may obtain a valuation or report from a competent 
 valuer or valuers appointed by them for the purpose. 
 
 21. When an application for an enlargement of crofters' holdings is 
 made to the Crofters Commission, they shall intimate such application 
 to the landlord or landlords, as also to the tenant or tenants, and any 
 other person or persons in the occupation of or otherwise interested in 
 the land proposed to be added to the crofters' holdings, including herit- 
 able creditors holding securities over the sam6, and shall give notice 
 of the time or times, and place or places, at which parties will be heard 
 in regard to the matter of the application. 
 
 It shall be competent to the Commissioners to visit the place to 
 which the application relates, and also if they shall think fit, to call 
 in the assistance of an assessor or assessors, or of a valuer or valuers, as 
 hereinbefore provided. 
 
 In assigning land for the enlargement of crofters' holdings, it shall be 
 competent for the Commissioners, if they think fit, to make such order 
 or orders with respect to the erection and maintenance of fencing of the 
 said land as they shall consider necessary or expedient, and to decern 
 that the expense of such erection and maintenance shall be paid by the 
 person or persons interested, as the Crofters Commission shall consider 
 just, having regard to the advantage accruing to the said person or 
 persons respectively from such fencing. 
 
 It shall also be competent to the Commissioners to decide summarily 
 any questions relating to the boundaries or marches between crofters' 
 holdings, including grazings, or between crofters' holdings, including 
 grazings and adjoining lands. 
 
 In the event of any dispute arising as to whether a person is a 
 ' crofter ' within the meaning of this Act, it shall be competent for the 
 Commissioners to determine such question summarily. 
 
 22. The powers of the Crofters Commission with respect to the 
 enlargement of crofters' holdings, shall continue for a period of five 
 years from the passing of this Act. 
 
 23. In executing the provisions of this Act, it shall be competent for 
 the Crofters Commission to delegate the duties thereby prescribed, to 
 two of their number, but any determination arrived at by such two 
 Commissioners shall be subject to review, upon appeal, by the whole 
 three Commissioners. 
 
 24. In any application under this Act it shall be competent to any 
 of the parties thereto to demand, and for the Crofters Commission to 
 order that the evidence shall be taken upon oath, and it shall also be 
 competent to the Crofters Commission to make such order as to 
 expenses as they think fit. 
 
 25. The decision of the Crofters Commission in regard to any of 
 the matters committed to their determination by this Act shall be 
 final. 
 
 26. The Crofters Commission may use, free of charge, for holding its 
 sittings the Court-houses commonly used as Sherifi" Courts, when the 
 same are not required by the sheriffs, and the officers of such Courts shall 
 be bound to attend the sittings of the Crofters Commission, and perform 
 similar duties to those which they are required to perform on the 
 occasion of sittings of the Sheriff Court, with right to exact the same fees 
 as are exigible by them for service at the sittings of the Sheriff Court. 
 
NO. xn.] CROFTERS HOLDINGS (SCOTLAND) ACT, 1886. 627 
 
 27 There shall be kept in the sheriff-clerk's office of the county to Record of pro 
 which, or to any part of which this Act applies, a book to be called the ceedings; 
 ' Crofter s Holdings Book.' In this book the sheriff-clerk shall record ^^'^™^°}' 
 every order of the Crofters Commission with the application on which by sherS^-*"'"" 
 it proceeds, and any other proceeding in the case which the Com- ^l^^k ; sheriff- 
 missioners may think necessary to be recorded. It shall be the duty ^^0^"""' 
 of the Crofters Commission to send such orders and applications to the 
 sheriff-clerk to be recorded. 
 
 In any county to which this Act applies which is divided into districts 
 for judicial purposes, the ' Crofters Holdings Book,' applicable to the 
 holdings within any district in which there is a resident sheriff-clerk or 
 sheriff-clerk-depute having an office, shall be kept by the sheriff-clerk 
 or sheriff-clerk-depute resident with^ the district. 
 
 Every application shall be addressed to the Crofters Commis- 
 sion at the sheriff-clerk's office, and it shall be the duty of the 
 sheriff-clerk to transmit the same to the Crofters Commission, 
 according to such regulations as the Secretary for Scotland may 
 prescribe. 
 
 The sheriff-clerks shall receive such remuneration as the Treasury may 
 sanction out of moneys to be provided by Parliament. 
 
 28. Any order of the Crofters Commission, or two of their number Execution of 
 acting as hereinbefore provided, may be presented to the sheriff, and orders made by 
 the sheriff, if satisfied that the order has been made in conformity with Commission- 
 the provisions of this Act, and has been duly recorded, may pronounce 
 
 decree in conformity with such order on which execution and diligence 
 shall proceed. 
 
 29. The Crofters Commission may, subject to the approval of the Forms of 
 Secretary for Scotland, frame and issue such printed forms of application procedure, 
 and other forms of procedure as they shall think proper. 
 
 It shall be in the power of the Crofters Commission to make rules 
 with reference to proceedings before the Commission, and also with the 
 approval of the Treasury, to fix a scale of costs and fees to be charged 
 in carrying the Act into execution, and the taxation of such costs and 
 fees, and the persons by whom, and the manner in which, such costs and 
 fees are to be paid. 
 
 30. Where, in any proceeding under this Act, the Crofters Com- ^ole arbiter 
 mission is empowered to pronounce an order, the landlord and the may be chosen, 
 crofter may agree to accept the decision of a sole arbiter mutually 
 
 chosen instead of the decision of the Crofters Commission, and in 
 that case any order pronounced by such sole arbiter shall, when 
 recorded in the 'Crofters Holdings Book' along with the agreement 
 to accept his decision, be as effectual to all intents and purposes 
 as an order of the Crofters Commission; and all regulations appli- 
 cable to the Crofters Commission, and to the orders pronounced by 
 them, shall apply to any sole arbiter and the orders pronounced by 
 him. 
 
 31. ITothing in this Act shall affect the provisions of the Agricultural Saving of 
 Holdings (Scotland) Act, 1883, provided that : 46 & 47 Tiot. 
 
 Where any improvements are valued under the said Act with a "" 
 view to compensation to be paid to a crofter, such valuation shall 
 be made, unless the landlord and the crofter otherwise agree, by the 
 Crofters Commission, according to the procedure prescribed by this 
 Act. 
 
 c. 62. 
 
628 
 
 49 AND 50 VICTORIA, CHAPTEE 29. 
 
 [appx. 
 
 Loans for the 
 purchase and 
 equipment of 
 fishing bonts. 
 
 27 & 28 Vict. 
 c. 53. 
 
 44 &'45 Vict, 
 c. 33. 
 
 45 & 46 Viot. 
 c. 78. 
 
 48 & 49 Vict. 
 o. 61. 
 
 Saving in case 
 of holdings in 
 possession of 
 servants. 
 
 32. Tor the purpose of enabling tbe Fishery Board for Scotland, 
 established under the Fishery Board (Scotland) Act, 1882, to make 
 advances by way of loan to persons engaged in the prosecution of the 
 fishing industry, whether crofters or others, in crofting parishes in all 
 or any of the counties to which this Act applies, and abutting upon 
 the sea, it shall be lawful for the Treasury to advance to the Fishery 
 Board such sums as may from time to time be placed at their disposal 
 by Parliament for the purpose. 
 
 The purposes to which the sums advanced as aforesaid shall be 
 applied by way of loan shall be deemed to include the building, purchase, 
 or repair of vessels, boats, and gear for fishing purposes, and any 
 other purpose of the like nature, for the benefit or encouragement 
 of the fishing industry within the localities above specified, which may 
 be sanctioned by the Fishery Board, with consent of the Secretary for 
 Scotland. 
 
 The loans in making which the said sums shall be applied, shall 
 be made by the Fishery Board upon such terms as to repayment, 
 security, rate, and payment of interest, and otherwise, as the Secretary 
 for Scotland, with the consent of the Treasury, shall determine. 
 
 All moneys due in respect of loans made under this Act may be 
 recovered by the Fishery Board summarily, in manner provided by the 
 Summary Jurisdiction Acts, and the Secretary of the Board for the 
 time being shall have power to sue for and recover such moneys in 
 name of the Board. 
 
 A certificate, purporting to be signed by the chairman and secretary 
 of the Fishery Board, stating the amount due from any person in 
 respect of any loan made to him under this Act, together with the 
 interest thereon, shall, until the contrary is proved, be evidence of the 
 amount due and of the liability of the person therein named to pay 
 the same. 
 
 If at any time while any part of a loan under this Act remains 
 unpaid, the Fishery Board are satisfied that the borrower is not carry- 
 ing into effect the undertaking for which the loan was made, they may 
 forthwith sue for and recover summarily the loan and all moneys due 
 by him in respect thereof. 
 
 All moneys recovered by the Fishery Board in repayment of such 
 loans, and interest thereon, shall be paid by the Fishery Board to the 
 account of Her Majesty's Exchequer, as the Treasury may from time to 
 time direct. 
 
 The Fishery Board shall, in the annual report to be made by them 
 to the Secretary for Scotland, in terms of the Fishery Board (Scot- 
 land) Act, 1882, and the Secretary for Scotland Act, 1885, give an 
 account of their intromissions under this Act during the preceding 
 year. 
 
 33. Nothing in this Act shall apply to any holding or building let to a 
 person during his continuance in any oflS^ce, appointment, or employment 
 of the landlord, or of any tenant of the landlord, nor to any holding or 
 building let at a nominal rent, or without rent, as a pension for former 
 service, or on account of old age or poverty, nor to any holding or 
 building let to a person during his tenure of any office such as that of 
 minister of religion or schoolmaster, nor to any innkeeper or trades- 
 man placed in the district by the landlord for the benefit of the neigh- 
 bourhood. 
 
NO. XII.] CROFTERS HOLDINGS (SCOTLAND) ACT, 1886. 629 
 
 34. In this Act ' crofter ' means any person who at the passing Definitions. 
 of this Act is tenant of a holding from year to year, who resides on his 
 holding, the annual rent of which does nob exceed thirty pounds in 
 money, and which is situated in a crofting parish, and the successors of 
 such person in the holding, being his heirs or legatees. 
 
 ' Crofting parish ' means a parish in which there are at the com- 
 mencement of this Act, or have been within eighty years prior thereto, 
 holdings consisting of arable land held with a right of pasturage in 
 common with others, and in which there still are tenants of holdings 
 from year to year, who reside on their holdings, the annual rent of 
 which respectively does not exceed thirty pounds in money, at the 
 commencement of this Act. 
 
 ' Cottar ' means the occupier of a dwelling-house situate in a crofting 
 parish with or without land who pays no rent to the landlord, as also 
 the tenant from year to year of a dwelling-house situated in a crofting 
 parish who resides therein, and who pays to the landlord therefor an 
 annual rent not exceeding six pounds in money, whether with or 
 without garden ground, but without arable or pasture land. 
 
 ' Permanent improvements ' means the improvements specified in the 
 schedule to this Act. 
 
 ' Holding ' means any piece of land held by a crofter consisting of 
 arable or pasture land, or of land partly arable and partly pasture and 
 which has been occupied and used as arable or pasture land (whether 
 such pasture land is held by the crofter alone, or in common with 
 others) immediately preceding the passing of this Act, including the 
 site of his dwelling-house and any offices or other conveniences con- 
 nected therewith, but does not include garden ground only, appurtenant 
 to a house. 
 
 ' Treasury ' means the Commissioners of Her Majesty's Treasury. 
 
 Other expressions have the same meanings as in the Agricultural 46 & 47 Vict. 
 Holdings (Scotland) Act, 1883. <=• "2- 
 
 35. This Act may be cited as the ' Crofters Holdings (Scotland) Short title. 
 ' Act, 1886.' 
 
 Schedule. 
 
 Permanent Improvements. 
 
 1. Dwelling-house. 
 
 2. Farm offices. 
 
 3. SnbsoU or other drains. 
 
 4. Walls and fences. 
 
 5. Deep trenching. 
 
 6. Clearing the ground. 
 
 7. Planting trees. 
 
 8. Making piers or landing stages. 
 
 9. Roads practicable for carriages from the holding or holdings to the 
 
 public road or the sea-shore. 
 10. All other improvements which, in the judgment of the Crofters 
 Commission, shall add to the value of the holding to an incoming 
 tenant. 
 
630 49 AND 60 VICTORIA, CHAPTER 29. [appx. 
 
 Rules and Regulations issued by the Crofters Commission 
 
 UNDER THE ABOVE AcT. 
 
 At Edinburgh, the 21s< day of Septetnber, 1886. 
 
 It is this day ordered that the following general rules and regulations 
 shall henceforth, until further order, take effect and be in force under 
 the Crofters Commission in relation to all proceedings before the Com- 
 mission, taken under the Crofters Holdings (Scotland) Act, 1886. 
 
 1. When in any rule the words ' the Act ' are used, they shall mean 
 the Crofters Holdings (Scotland) Act, 1886, unless some other Act is 
 expressly mentioned. 
 
 2. The word 'order' shall include decree, award, or ruling of the 
 Commission in any proceeding under the Act. 
 
 3 . The expression ' principal clerk ' shall include the person who 
 for the time being shall discharge the duties of the principal clerkship 
 of the Crofters Commission. 
 
 4. The expression 'assistant clerk' shall include the person who 
 for the time being shall discharge the duties of the assistant clerkship 
 of the Crofters Commission. 
 
 5. The expression ' sheriff-clerk ' in these rules and in the table of fees 
 appended hereto shall include sheriff-clerk-depute. 
 
 6. The expression ' crofting parish ' shall include all parishes in any 
 of the counties specified in section 19 of the Act to which the Com- 
 mission have determined that the Act shall apply, and which determina- 
 tion has been duly confirmed by the Secretary for Scotland. 
 
 7. In the computation of time for the purposes of the Act, and of 
 these rules, the word ' month ' shall mean calendar month, and when the 
 time limited for any proceeding before the Commission expires on a 
 Sunday or Fast Day it shall be extended to the next lawful day. 
 
 8. The central office of the Crofters Commission in Edinburgh shall be 
 open throughout the year on every lawful day from 10 o'clock a.m. till 
 4 o'clock P.M., except on Saturdays, when it shall close at 1 o'clock p.m. 
 
 9. The sittings of the Commission will be held for the purpose of 
 hearing all competent applications which may be made to the Commis- 
 sion, and of rehearing before all the Commissioners applications or pro- 
 ceedings delegated to two of their number under section 23 of the Act. 
 Of consent of parties, or on special grounds, the Commissioners may 
 direct a rehearing of any application or proceeding to be taken at any 
 place they may fix. The Commissioners hereby reserve to themselves 
 full power to vary or adjourn any sittings announced, and to adjourn or 
 postpone any proceedings before them. 
 
 10. The procedure under the Act shall be by the forms appended 
 hereto, or as nearly in accordance therewith as possible, and by such 
 other forms as the Commissioners may hereafter issue. All applications 
 shall be on paper of medium folio size. 
 
 11. All applications to the Commission must be signed by the appli- 
 cants or their law-agent or agents, and in any case where an applicant 
 who is not represented by a law-agent catinot write, he shall adhibit a 
 X, and have the same duly witnessed by one witness of not less than 
 twenty-one years of age. In the case of a landlord, an application may 
 be signed by his factor. In the event of there being more than one 
 respondent, or party interested, the applicant, or applicants, shall send 
 
NO. XII.1 CROFTERS HOLDINGS (SCOTLAND) ACT, 1886. 631 
 
 as many forms or copies, duly filled up, signed, and stamped, as there 
 are respondents or parties interested. 
 
 12. When an applicant cannot write, the witness to his X must also 
 certify in writing on the application, that the said application, statement 
 of facts (if any), and relative schedule or schedules have been read over 
 and explained to the applicant in his presence. 
 
 13. All applications under cover shall have the nature of the 
 application written legibly on the cover, as for example, ' Application 
 to fix Fair Rent,' or as the case may be. 
 
 14. Whenever any competent application has been received by the 
 principal clerk from a sherifi"-clerk, the matter shall be deemed to be in 
 Court as an application to be decided, and shall not be withdrawn save 
 by leave of the Commission, given after such intimation as the 
 Commissioners may direct. 
 
 15. The Commission may at all times amend, or allow the amend- 
 ment of applications, or intimations, or other proceedings, and may if 
 they think fit extend any time which may be allowed for taking any 
 steps in any proceeding under the Act. 
 
 16. Parties applying to the Commission or appearing in answer to 
 any application intimated to them may attend the Commission by 
 themselves or by a law-agent, with or without counsel, or by a friend. 
 
 17. In every case in which a party is represented by a law-agent 
 intimation to such law-agent at his address shall be a sufficient mode of 
 making intimation of any steps in any proceedings to such party, and 
 intimations may either be made by being left at such address, or 
 transmitted thereto by registered post letter. 
 
 18. When the person to whom intimation of any application or 
 other proceeding to be made is the landlord, intimation to the factor or 
 agent to whom the crofter's rent has been usually paid, shall be deemed 
 sufficient intimation to the landlord. 
 
 19. Any intimation by letter or other written or printed communica- 
 tion shall be deemed to have been duly addressed to the party intended 
 to be communicated with, when it has been directed to him at the 
 address given in the application to which such letter or written or 
 printed communication may refer. 
 
 20. After an order and relative application have been recorded by 
 the sheriff-clerk of the district in the Crofters Holdings Book he shall 
 retain the same as the proper custodier thereof, but exhibit it when 
 called upon by any party to the application. In the event of any such 
 party desiring that such order be presented to the sheriff, in terms of 
 section 28 of the Act, the same shall be made forthcoming by the 
 sheriff-clerk. 
 
 21. The sheriff-clerk shall allow any party to an application to make 
 a copy thereof, and of the relative order or orders from the Crofters 
 Holdings Book, during office hours, free of charge. 
 
 22. Every application to the Commission under the Act, and every 
 copy for a respondent, must have upon it a postage or Inland Revenue 
 adhesive stamp of the amount provided by Part I. of the Table of Fees 
 annexed hereto. All adhesive stamps must be placed on the outer page 
 of each form, and copy form, at the placed indicated thereon. 
 
 23. Crofters in townships contiguous or near to each other, may 
 unite in the same application for fair rent, provided all the applicants 
 have right to the same common pasture. In the event of the number 
 
632 49 AND 50 VICTORIA, CHAPTEE 29. [apPX. 
 
 of crofters thus combining in one application being so large as to occupy 
 more than the available space on Form 2, then a second copy will be 
 added, and the matter inserted on page one -will be continued on page 
 nine, and the matter inserted on page two will be continued on page 
 ten, and so forth. 
 
 24. In the event of a landlord applying to fix fair rents for a number 
 of crofters so large as to occupy more than the available space in Form 
 4, then a second copy will be added, and the matter inserted on pages 
 two and three will be continued on pages ten and eleven, and so forth. 
 
 25. A landlord or his factor, on receiving information of an applica- 
 tion for enlargement of holdings, shall communicate to the principal 
 clerk of the Commission the names and addresses of all persons in the 
 occupation of, or otherwise interested in, the land proposed to be added 
 to the holdings of the applicants, including heritable creditors having 
 securities over the same. 
 
 26. Where the same or a similar question is raised in two or more 
 cases before the Commission, or where it shall for any reason seem 
 expedient to the Commission, then the Commission may by order direct 
 that such cases shall be heard together, or that process in any one or 
 more of such cases may be sisted, and the Commission may exercise the 
 power of conjoining proceedings in any two or more cases whenever 
 they think fit. 
 
 27. Any person aggrieved by any order pronounced under section 23 
 of the Act, by two Commissioners, to whom any matter has been 
 delegated by the Crofters Commission, may, by himself or his agent, 
 within fourteen days after the date of such person having received from 
 the sheriff-clerk intimation of such order, intimate an appeal for 
 review of such order by the whole three Commissioners, either by 
 registered post letter to the sheriff-clerk, or by writing below such order 
 the date, and the words, ' I appeal against the above order,' together 
 with his signature. 
 
 28. The Commissioners shall, as soon thereafter as may be, fix by an 
 order a time and place for hearing such appeal and reviewing the order 
 of the delegated Commissioners, and the principal clerk shall at once 
 intimate such order to all the parties to the proceedings under appeal. 
 
 29. The Commission ^hall have power, as authorised by section 24 of 
 the Act, to make any order as to expenses which they think fit in any 
 proceeding before them. 
 
 30. Landlords or crofters who desire to make application to the 
 Crofters Commission, will be supplied free of charge with forms of 
 application and relative copy forms on applying for them to the sheriff- 
 clerk, or to the principal clerk of the Commission. 
 
 [Here follow the forms, with relative schedules, issued by the Com- 
 missioners and applicable to the following cases, viz.: — 
 Form 1. Application by a crofter to fix a fair rent. 
 Form 2. Application by crofters to fix fair rents. 
 Form 3. Application by a landlord to fix a fair rent. 
 Form 4. Application by a landlord to fix fair rents. 
 Forms 5, 6, and 7. Applications by crofters for enlargement of 
 holdings. 
 
 5. By taking land from a deer forest. 
 
 6. By taking land from a farm occupied by the 
 
 proprietor. 
 
 7. By taking land from a farm let to a tenant. 
 
NO. XII.] CROFTERS HOLDINGS (SCOTLAND) ACT, 1886. 
 
 633 
 
 Form 8. Application by a crofter to sist proceedings for his 
 removal. 
 To the applications (1-4) for the fixing of a fair rent, are appended 
 schedules A and B, which have to be accurately filled up. Schedule 
 A ascertains the names and addresses of the landlord and crofters 
 concerned, and the names of the estate and croft or township. Schedule 
 B sets out the area of the arable land, outrun and pasturage, to which 
 the application refers, the stock which the crofter is entitled to keep, 
 his rent, other payments and services ; the permanent or unexhausted 
 improvements executed or paid for by the crofter or his predecessors in 
 the same family, and the permanent or unexhausted improvements 
 executed, paid for, or contributed to, by the landlord or his predecessors 
 in title. The schedule appended to Forms 5, 6, and 7 is substantially 
 the same as this Schedule B, omitting the entries of arrears and 
 improvements. And part of the Forms 5-8 consists of skeleton state- 
 ments of fact.] 
 
 Table op Fees approved by the Tkeasurt. 
 
 PART I. exchequer pees. 
 
 Note. — The Exchequer fees are payable to the sherifi'-clerk. Every 
 principal and copy Form lodged with him must bear Postage or Inland 
 Revenue adhesive stamps of the values specified in this Table : — 
 
 A. Applications to fix Fair Bent. 
 Form 1. 
 
 Principal, . . . . . .£010 
 
 Copy for landlord, . . . .006 
 
 Form 2. 
 
 Principal (each applicant), . 10 
 
 Copy for landlord, . . .010 
 
 Form 3. 
 
 Principal, . . ... 1 
 
 Copy for crofter, . . .006 
 
 Form 4. 
 
 Principal, . . . . . .010 
 
 Copy (each crofter therein named), . . . 6 
 
 B. Applications to enlarge Holdings. 
 
 Forms 5, 6, and 7. 
 
 Principal (each applicant), .... 
 
 Copy for landlord (each applicant). 
 
 Copy for agricultural or pastoral tenant, if any, 
 (each applicant), ..... 
 
 Copy for shooting tenant, if any (each applicant), . 
 
 Copy for any other respondent named in the 
 application (each applicant). 
 
 Copy for any other party not named in the applica- 
 tion, to whom the Commissioners may, under 
 section 21, direct intimation to be made, on 
 appearing before the Commission (each applicant). 
 
 £0 
 
 
 
 
 
 6 
 
 6 
 
634 49 AND 50 VICTORIA, CHAPTEE 29. [appx. 
 
 C. Appeals under Section 23. 
 Intimation of appeal (each appellant), . . . £0 2 6 
 
 D. Miscellaneous. 
 All other applications — 
 
 Principal (each applicant), .... £0 1 
 Copy (each respondent), . 6 
 
 PART II. law-agents' fees. 
 
 1. In all proceedings under the Act before the Commission, the fees 
 stated in the following Table shall be the standard fees and emoluments 
 chargeable by, and payable to, law-agents for all professional services 
 from the application to the final order of the Commission ; but the 
 Commission at the same time reserve to themselves full power to deal in 
 such manner with expenses in each case as to them shall seem just. 
 All accounts of expenses may be remitted by the Commissioners for 
 taxation by the principal clerk of the Commission. 
 
 2. The fees specified shall include all outlay except postages, 
 telegrams. Exchequer fees, and citation and other expenses of witnesses 
 (if any). 
 
 3. When two or more applications involving similar questions, and 
 arising with respect to holdings held under the same landlord, are heard 
 at the same place and sittings, and have been conjoined by the 
 Commissioners, they shall have power to award to the law-agent con- 
 ducting the same a slump sum for his expenses in respect of all the 
 applications in which he so appears, and, if necessary, to settle the pro- 
 portions in which the same shall be borne and received respectively. 
 
 A. Applications to fix Fair Rents. 
 Forms 1 and 3. 
 
 Where the present rent does not exceed £5, 
 Where it exceeds £5, but does not exceed £10, 
 Where it exceeds £10, but does not exceed £20, 
 Where it exceeds £20, 
 
 Forms 2 and 4. 
 
 Tlie fees under these Forms payable to or by each crofter will be in 
 the same proportion to the rent as under Forms 1 and 3 ; but 
 when the number of applicants (Form 2) or of respondents 
 (Form 4) is above 4 and not exceeding 10, there shall be a 
 deduction at the rate of 10 per cent., and where the number 
 exceeds 10, a deduction at the rate of 20 per cent. 
 
 B. Applications to enlarge Holdings. 
 Forms 5, 6, and 7. 
 
 Where the present average rents do not exceed £5 
 
 (for each crofter making the application), . . £0 10 
 
 Where the present average rents exceed £5 (for 
 
 each crofter making the application), . . 10 
 
 Note. — Where there are more respondents than one in any applica- 
 tion under Forms 5, 6, and 7, the Commissioners may make such orders 
 for additional expenses as to them shall seem just, against such 
 respondents jointly and severally, or against the applicants, as the case 
 may be. 
 
 £0 10 
 
 
 
 1 
 
 
 
 1 10 
 
 
 
 2 
 
 
 
NO. XIII.] CONDITIONS OF LEASE. 6.S5 
 
 C. Citation of Witnesses. 
 
 The fees payable under the Act 45 & 46 Vict. c. 77, second 
 schedule, for citing witnesses to Small-Debt and Debts Recovery 
 Courts, otherwise than by registered letter. 
 
 No. XIIl.i 
 
 CONDITIONS OF LEASE of the Arable and Grazing Farms and 
 Possessions upon the Estate of A. 
 
 THE farms are let according to the marches pointed out, without 
 reference to measurement or advertisement, for the period, and 
 with entry as stipulated in the respective offers. The tenants shall be 
 bound to i-eside constantly on their farms and possessions, unless they 
 shall have the written consent of the landlord to do otherwise, and 
 to have them at all times fully and completely stocked. All assignees, Assignees and 
 whether legal, voluntary, or conventional, and possessors for behoof ^^"^^"P"'*'™" 
 of creditors, and subtenants, except where they shall have the special 
 consent of the proprietor in writing, are expressly excluded and 
 debarred; also heirs-portioners are expressly excluded and debarred, 
 the eldest daughter succeeding without division : but power is given to 
 tenants having children to appoint any one of them, whether son or 
 daughter, to succeed them in their leases, but such appointments must 
 be made in writing, and approved of by the proprietor, before the 
 decease of the tenant, declaring that this arrangement shall supersede 
 the provisions of the Agricultural Holdings (Scotland) Act, 1883, as to 
 the tenant's right to bequeath his lease. 
 
 The proprietor expressly reserves all woods and plantations of every Reservations— 
 description, with the grass therein, and none such are included in any ™^']j™gg^ 
 let ; he also reserves all dwelling-houses and cottages, with the gardens 
 or yards attached, if any, on the farms, with the exception of the 
 dwelling-house of the tenant, and the cottages of the ordinary farm- 
 servants; and the occupants of such reserved dwelling-houses and 
 cottages are to hold the same directly from the proprietor. He also 
 reserves all mines, metals, minerals, lime, slate, marl, fossils, and Minerals, &o. 
 quarries of every description, with full power to search for, work, \^'in, 
 manufacture, and carry away the same, and to erect buildings, 
 workmen's houses, and furnaces, to sink pits, and to make connection 
 with other lands, and generally to do everything necessary in connection 
 with said minerals, and others, and the working thereof; the tenants 
 being entitled to compensation for any surface damage sustained 
 
 1 In order to keep down the bulk of this volume, it has been thought sufBcient to give 
 in the succeeding pages onlv such forms as are necessary to supplement the useful 
 coUeotion contained in the Juridical Styles (i. rSo seq.) and therefore, easily accessib e. 
 The Appendix to Hunter on Landlord and Tenant also contains a full set of forma. Ihe 
 Hist form (No. XIII.), sets out conditions of lease of a mixed arable and grazing farm, 
 "and contains provisions for 'substituted compensation' in view of the Agricultural 
 Holdings Act. The second form (Ko. XIV.), is a lease drawn in contemplation of that 
 Act, and without any attempt to oust its operation. The third form (No XV ), deals 
 elaborately with the provisions of the Act. A form of lease of a shop-not to be found 
 in the Style Book— is added (No. XVL). 
 
636 
 
 CONDITIONS OF LEASE 
 
 [appx. 
 
 Power to plant 
 and to alter 
 marches. 
 
 To regulate 
 water and 
 make drains. 
 
 Beads. 
 
 Eailway or 
 tramway. 
 
 Fishings and 
 game. 
 
 through such operations, as the same shall be fixed by arbitration, in 
 manner hereinafter mentioned. The proprietor also reserves power to 
 plant and enclose any portion of the lands let, at any time, the tenant 
 being allowed an annual abatement from his rent for any ground thus 
 planted and enclosed ; but where such plantations shall be merely as 
 sheep stalls, or in clumps or strips for shelter, no allowance or deduction 
 shall be made to the tenant. The proprietor also reserves power to 
 excamb with neighbouring proprietors, or to alter and straighten the 
 marches of the different farms and possessions, and to settle all disputed 
 marches, or to take ground from any farm and add it to any adjoining 
 farm, the rents being increased or diminished accordingly, as the case 
 may be, as may be settled by arbitration. The proprietor also reserves 
 to himself the power of regulating and conducting away springs 
 and streams of water for meal-mUls or other machinery, or for 
 watering lands, or for other purposes. He also reserves power to 
 make drains, and open cuts and ditches through any part of the lands, 
 either for the drainage of the respective possessions, or of the lands 
 contiguous, and shall not be liable to pay any surface damages therefor, 
 nor shall the tenant be entitled to demand any abatement of rent in 
 consequence thereof; he also reserves to himself the power of 
 draining, redraining, and thorough draining the lands of any 
 farm or grazing, at any time he may see' proper, and carrying 
 out the drainage in such a manner as he may see to be right, without 
 being liable for any surface damages in respect thereof. He also 
 reserves all roads of every description on the lands let, and full power 
 to alter or widen the same, or to make new roads in any direction, and 
 to take all materials for that purpose, without giving any deduction 
 from the rent, or allowance of any kind in respect thereof, unless such 
 roads, or the operations connected therewith, shall happen to injure or 
 come upon corn or grass fields or enclosed ground, in which case the 
 tenant shall be allowed surface damages as the same shall be ascertained 
 by arbitration ; but where a road shall be made for the special use of a 
 tenant, in terms of his lease or otherwise, no surface damages shall be 
 allowed, and in this case the tenant shall be bound to perform all 
 carriages necessary in connection with the work, without being entitled to 
 compensation. And in the event of a railway or tramway being formed 
 through any part of the estate of A, the proprietor specially reserves 
 the ground upon which such railway or tramway shall be formed ; and 
 it is specially understood and agreed that such ground shall be excluded 
 from the lease of any lands of which the same, or any part thereof, mav 
 form part; and the tenant of such surrounding or adjoining lands shall 
 be bound, whenever required, to cede possession of such ground, without 
 any claim for compensation or deduction from his rent in respect thereof, 
 whether the said ground be arable, pasture, grazing, or of whatever 
 other nature. And subject to the provisions of the Groitnd Game Act, 
 1880, the proprietor reserves all salmon and other fishings, and all game, 
 deer, roe-deer, hares, rabbits, and wild-fowl on his estates ; and also the 
 right of hunting, shooting, coursing, and sporting generally, with men, 
 horses, and dogs, over the lands not under grain crop, and of fishing in 
 the waters, by nets, boats, or otherwise, by himself, his servants, tenants, 
 or others having his permission, and that without liability for damages 
 to the tenants, in respect of any injury they may sustain in the occupa- 
 tion of the lands. And it is hereby agreed, with reference to the terms 
 
NO. XIII.] OF ARABLE AND GRAZING FARMS. 637. 
 
 of the Game Laws Amendment (Scotland) Act, 1877, that the amount 
 of annual damage done to the tenant's crops by game other than ground 
 game (for which no compensation shall be due) shall be such sum as may- 
 be specified in the respective agreements or missives, or failing such 
 specrfication shall be the sum of £15 for each farm, and any claim of 
 damages beyond such amount arising under the said Act shall be referred 
 to arbitration. The tenants shall also, so far as in their power, protect 
 the game on their respective farms, and prevent all poachers and others 
 from trespassing thereon, and shall be bound to give timely warning to 
 the proprietor of any trespass. The proprietor further reserves the Timber, 
 whole wood and trees, including broom and underwood of every descrip- 
 tion, whether natural or planted, growing or to grow on any part of the 
 lands let, with full power to prune, dress, cut, sell, and carry away the 
 timber at pleasure, and by whatever means he may think proper, and 
 with full liberty of access through the lands for this purpose, the tenant 
 to be indemnified for any damage his corn or young grass lands or crops 
 may sustain thereby ; and with power also to plant additional trees 
 round the yards and along subdivision fences, or on any part of the 
 lands, to alter and make roads and leanings, and to quarry and carry 
 materials for repairing public and private roads, all without compensa- 
 tion. Eight to feu or let on long lease any part of the lands is also Right to feu. 
 reserved, the tenants in this case being entitled to compensation for any 
 ground taken from them, as the same shall be settled by arbitration. 
 
 The rents and services specified in the oifers, tacks, or minutes of Rents, how to 
 lease, entered into with reference hereto, shall be paid and performed by ^^ P^'*- 
 the respective tenants, their heirs, executors, and successors, to the 
 proprietor, his heirs, executors, and successors or assignees, in such 
 proportions and at such terms as are stated in said ofiers, tacks, or 
 minutes of lease, — the rents being payable at such place or places as the 
 factor on the estates shall appoint, with one-fifth part more thereof of 
 liquidate penalty in case of failure, and interest on each term's payment, 
 at the rate of five pounds per centum per annum, from the time the 
 same falls due till paid. The rent of the last year shall be payable 
 before his removal, or he shall be bound to find security therefor before 
 that event, to the satisfaction of the landlord or his factor. The tenants Burdens, 
 shall also pay road-money and other public and parochial burdens now 
 imposed, or which may hereafter be imposed on their possessions in 
 respect of the tenancy thereof. They shall also be bound, when required, 
 to give the free use of horses and carts yearly, in the proportion of five 
 days' work of one horse to every £100 sterling of rent, for the benefit 
 of the proprietor, for such purposes and at such times as he or his factor 
 may deem necessary, the tenant to receive one week's notice whenever 
 such service shall be required, and the same not to extend beyond the 
 limits of the property. 
 
 The tenants at their entry shall accept all the buUdings on the Buildings, 
 respective farms and possessions in the condition that they may then 
 happen to be, and shall relieve the proprietor of any allowances 
 or meUorations which the outgoing tenants may be entitled to receive at 
 their removal. The buildings shall be given over to the tenants on 
 dead inventory; and they shaU be bound to keep the said builduigs on 
 their respective farms and possessions at all times in thorough repair, 
 and uphold the proprietor's inventory, or pay for deterioration as the 
 same shall be ascertained by arbitration, the ordinary decay of material 
 
638 
 
 CONDITIONS OF LEASE 
 
 [appx. 
 
 Fences. 
 
 Hedges and 
 ditches. 
 
 Permanent 
 improve- 
 ments. 
 
 Tenants to 
 
 perform 
 
 carriages. 
 
 to be taken into account ; and if at any time during the lease the 
 tenants shall fail in keeping said buildings in repair as aforesaid, after 
 being required by the proprietor or his factor to do so, the proprietor 
 shall be entitled to repair the same at the tenant's expense, and 
 without their consent. The tenants at their entry shall be obliged to 
 accept of the hedges, dykes, palings, wire-fences, gates, ditches, and all 
 other fences on their respective possessions, in the condition they may 
 then happen to be, and shall repair these from time to time as may be 
 necessary to keep them in proper condition ; and they shall prune and 
 clean the hedges once every year, and at the proper season, and shall 
 scour and clean the ditches, and open cuts at least once in every period 
 of three years, or whenever the proprietor or his factor shall deem such 
 work to be necessary. Plantation fences shall be kept up at the 
 expense of the proprietor, the tenant being bound immediately to report 
 all injuries to the fences, and being liable for damages if he allow his 
 beasts to trespass in the woods or plantations. All march fences shall 
 be kept up at the mutual expense of the conterminous tenants; and 
 the tenants are expressly prohibited from cutting any underwood or 
 bushes for the purpose of erecting or repairing fences, without the 
 consent of the proprietor or his factor, in writing. The proprietor 
 reserves power to make a periodical inspection of all the buildings and 
 fences on the respective farms and possessions. 
 
 In the event of any of the tenants desiring to effect any permanent 
 improvements, of the nature authorised by the Acts of any of the 
 Lands Improvement Companies, or by the Enclosure Commissioners, 
 they shall be entitled to do so, with the sanction of the proprietor or 
 his factor, on observing the procedure requisite for obtaining money 
 from such Impi-ovement Companies ; and in that case, or in the event 
 of the proprietor himself making any such permanent improvements, or 
 expending money in building or repairing houses, or in draining or 
 fencing any part of the farms or possessions, or otherwise, the tenants 
 shall be bound to pay interest at the rate of five per centum per annum, 
 or in the option of the proprietor an annual rent-charge at the rate 
 allowed under section four of the said Agricultural Holdings Act on all 
 such outlay on improvements as before mentioned, which interest or 
 rent-charge shall be payable along with their respective rents, 
 commencing payment thereof at the first payment of rent after the 
 outlay has been incurred. The tenants shall be bound to perform all 
 carriages and cartages connected with any buildings, draining, or other 
 improvements executed or sanctioned by the proprietor as aforesaid on 
 their respective farms or possessions, and shall have no claim, nor be 
 allowed any compensation in respect thereof, on any pretence what- 
 ever ; and the amount expended on building or repairing houses shall 
 be added to the existing dead inventory, together with the value of 
 any timber taken from the woods or plantations for that purpose, and 
 the tenant shall be bound to keep up the whole in the same maimer 
 as the original dead inventory. Tenants shall have no claim for 
 meliorations or improvements unless the same shall be stipulated for 
 and specified in their respective missives or offers, and agreed to by the 
 proprietor or his factor in such missives, or in some separate writing 
 under the hand of the proprietor or his factor, and then only in the 
 event of the particular erections or improvements being specially 
 authorised and approved of in writing by the landlord or his factor, 
 
NO. SIII.] OF ARABLE AND GRAZING FARMS. 639 
 
 and made under his inspection. The claims of tenants for such No claim for 
 
 meliorations or improvements, and the amount due to each during the meliorations 
 
 lease, or at the expiry thereof, shall be ascertained by arbitration ; but Stld for'^"" 
 
 the arbiters, in estimating the value of the work, shall exclude carriages 
 
 of every description, and the proprietor's inventory shall be deducted. 
 
 All houses so valued must consist of good mason-work, and be built of 
 
 stone and lime, snecked and pinned with lime, with a set-on roof, and at 
 
 the time be in a good state of repair. The tenants are specially prohibited 
 
 from building any additional houses or dykes, without the written 
 
 consent of the proprietor, and in the event of such being done contrary 
 
 to his wishes, he reserves power to have the same removed at pleasure 
 
 at the tenant's expense. The tenants shall be bound to keep in repair Farm roads to 
 
 without charge the roads leading to their farms or possessions from the ^^ ^?P* ™ 
 
 public highways, or they shall be assessed by the proprietor to such an tenants!*' 
 
 amount as he may consider necessary for that purpose ; and the tenants 
 
 shall prevent all persons making new roads or footpaths through the 
 
 lands, or trespassing thereon or in the plantations, to the utmost of 
 
 their power. 
 
 The tenants shall be bound to cultivate, manure, and improve the Mode of 
 arable lands of their respective farms and possessions according to the cultivation, 
 most modern and approved system of husbandry ; and, in particular, 
 they shall be bound to manage the same under a sixth shift rotation. Sixth shift to 
 Such rotation shall consist of — 1st year, oats after lea ; 2nd year, green ^^ observed, 
 crop, potatoes or turnips, properly and sufficiently manured, cleaned, 
 and dressed j 3rd year, barley, oats, or wheat, sown down with a proper 
 proportion of grass seeds ; 4th year, hay, to be cut only once, and after- 
 wards pasture ; and 5th and 6th years, pasture. And should any tenant 
 depart from the rotation of cropping fixed as aforesaid, he shall subject 
 himself in payment of an additional rent of £5 sterling per acre for 
 whatever quantity of land he may crop differently, which additional 
 rent shall be pactional, not penal, and shall become due and payable 
 with the first moiety of the rent of the crop wherein such contravention 
 shall take place, and shall continue to be so paid so long as said contra- 
 vention shall continue, but without prejudice to the landlord's right to 
 enforce the cultivation of the farm in the manner above prescribed. 
 The whole straw and green crop produced on the respective farms shall 
 be consumed thereon, and the manure made thereof, and on the farm, 
 shall be applied annually to the division under green crop. The tenants 
 shall be bound at entry to accept of the manure for that division of the 
 faUow-break intended for green crop, and of the whole crop growing on 
 the respective farms, including hay and pasture-grass, and pay for the 
 same at the valuation of arbiters in manner before mentioned, and at 
 their removal they shall be bound to give, and their successors shall be 
 entitled to take, the fallow-break manure and whole crop at valuation in 
 manner aforesaid ; and the tenants shall be bound to allow the proprietor 
 or incoming tenant to sow grass-seeds at the proper season, along with 
 the last crop, in the division of the respective farms properly adapted 
 for the same, and to harrow in and roll the same in a proper manner, all 
 without any compensation. The tenants shall be bound to have the 
 fallow-break ploughed by the 1st January in the year of their removal, 
 for the benefit of the proprietor or incoming tenant, for which they shall 
 be paid as the value of such labour shall be fixed by arbiters. The 
 tenants shall cut down, at least twice every year, all ragweed, docks, 
 
640 
 
 CONDITIONS OF LEASE 
 
 [appx. 
 
 thistles, and all other weeds on their lea or pasture, as -well as on the 
 sides of roads, dykes, or ditches on their respective possessions, — once 
 before they come into flower, and again before the 1st of September ; 
 and in case of the tenants' failure, the proprietor reserves the right of 
 having this done at the tenants' expense. And with respect to manures 
 and feeding stuffs not produced at the farms, but purchased by the 
 tenants and applied thereto, or consumed thereon, the tenants shall, on 
 leaving the farms at the determination of their tenancies, respectively 
 receive compensation for the same from the incoming tenants or 
 proprietor in terms of the schedule annexed and signed as relative 
 hereto, such compensation, failing agreement, to be ascertained by 
 arbitration as after mentioned, and the compensation specified in the said 
 schedule (which is agreed to by the tenants as fair and reasonable 
 compensation under the foresaid Agricultural Holdings Act), shall be 
 accepted by the tenants as full compensation in lieu and place of the 
 compensation that would, but for these presents, be claimable by them 
 in respect of the improvements specified in Part III. of the schedule 
 annexed to the said Act, but without prejudice to the provisions of 
 sections 6 and 7 of the said Act, which shall be specially applicable 
 hereto, and to any claim for compensation following upon this pro- 
 vision. 
 Sheep-stook on The tenants shall be bound at entry, if required by the proprietor, to 
 grazing. take over at valuation from the outgoing tenant the sheep stock on the 
 
 respective grazing farms, or so much thereof as shall correspond to the 
 extent of the grazing land on any possession ; and it shall be in the 
 option of the proprietor or next incoming tenant to take over such stock, 
 and the tenant shall be bound at removal to give over the same at 
 valuation, provided notice in writing is given to him, at least six months 
 previous to the date of his removal from the grazing, that it is the 
 intention of the proprietor or next incoming tenant to take such stock 
 as aforesaid at valuation. No tenant shall be allowed to change the 
 stock of sheep on the farm without the express consent of the proprietor 
 or his factor in writing ; nor to dispose of any of the usual breeding 
 stock; and in the event of any tenant taking two or more farms or 
 grazings, he shall be bound to keep and have separate and distinct 
 marks and brands on the stock of each farm or grazing. 
 
 The tenants are also bound to use every means in their power 
 to protect the whole woods and plantations on their respective posses- 
 sions, and shall be answerable for any damage done to the same, in such 
 cases where the proprietor considers that the tenants should have used 
 more precaution. The tenants are bound not to burn heather on any 
 part of the lands let to them, without the special written consent of the 
 proprietor or his factor, under the penalty of forfeiting their leases, or, 
 in the proprietor's option, of paying a penalty of £5 for every acre 
 burnt, or such other penalty as the proprietor may impose, in addition 
 to any damage the proprietor may sustain by such burning ; and all 
 muirburning allowed shall be done at the sight of the proprietor's 
 gamekeeper, or other person authorised for that purpose. 
 
 The tenants are to have liberty of casting, winning, and leading home 
 peats for the use of their families, and servants residing on their farms, 
 but for no other purpose, from such moss or mosses, or parts of the same 
 as the proprietor shall set apart to them yearly for that purpose, but no 
 claim shall lie against the proprietor in the event of the mosses becoming 
 
 Woods. 
 Heather-burn- 
 ing. 
 
 Peats and 
 mosses. 
 
so. XIII.] OF ARABLE AND GEAZIXG FARMS. 641 
 
 exhausted. The proprietor reserves the power of making new roads to 
 the mosses, and of keeping them, as well as the old ones, iij proper repair, 
 and of assessing the tenants frequenting such roads in the expense of 
 making or repairing the same. 
 
 The proprietor will insure the buildings on the respective possessions Insurance of 
 in some reputable office for such sums as he or his factor may consider ''"'lyings and 
 necessary. The policies to be taken in the name of the proprietor, and ™^^' 
 the premiums to be paid by the tenants, together with the rents, &c. 
 The proprietor shall, in case of loss by fire, have power to uplift the 
 sums insured, and to apply the same in rebuilding or repairing the 
 buildings destroyed ; and the tenants are further bound to insure their 
 crops and stock in the same way, if required by the proprietor at any 
 time to do so ; and the money received by the proprietor, in the case of 
 accident by fire to such crops and stock, shall be applied in extinction 
 of the rents that may happen to be due or current at the time, and the 
 balance, if any, shall be paid to the tenant. 
 
 The situation and arrangement of farm-steadings, as well as of all Farm- 
 other houses and of the fences, shall in all respects be subject to the steadings, 
 approval and control of the proprietor ; and the greatest cleanliness and 
 order and regularity shall be observed by each tenant about his premises. 
 The tenants shall not at any time admit cottars or other residents or Cottars, 
 subtenants into houses on their possessions, nor shall they remove 
 cottars who have once been admitted, without having in both cases the 
 express authority of the proprietor or his factor, in writing, declaring 
 that it shall always be in the power of the proprietor to remove cottars, 
 and dispose of cottages and gardens, other than those occupied by the 
 tenant, his family, and ordinary servants, without the consent of the 
 tenants, or being liable in any claim on the tenant's part ; and no 
 tenant shall be entitled, without the express permission of the proprietor 
 or his factor, in writing, to let for lodgings the whole or any part of any 
 dwelling-house or cottage on his possession. 
 
 It is hereby specially provided and declared, that if a tenant shall 
 at any time become insolvent, or be made legally bankrupt, or shall 
 execute any trust-conveyance of his property or effects for behoof of 
 creditors, or if his estates be seqviestrated under any statute in force at Conventional 
 the time, or if a poinding of his effects shall take place, or if the tenant irritancies, 
 shall fail in the performance of all or any of the services, obligations, 
 prestations, conditions, and regulations, or shall transgress any of the 
 prohibitions imposed hereby, or by his offer with reference hereto, then, 
 and in all or any of these cases, the lease shall, in the option of the pro- 
 prietor, be forfeited, and the proprietor shall be entitled to remove such 
 tenant from his farm or possession at the first term of Whitsunday after 
 such event shall have happened, in the same manner as if the lease then 
 expired : It being hereby declared that a decreet of removal obtained 
 from the sheriff of the county shall in every respect be held to be 
 equivalent to a decreet of declarator, and it shall not be competent to 
 bring the matter under review of the Court of Session, by appeal, 
 suspension, or otherwise. And it is hereby further specially provided Power to 
 and declared, that if the tenant shall at any time during the currency of ^*^'^°^''^ *° 
 the lease allow the rent to fall into arrear, so as to be owing a full year's drears, 
 rent three months after the last half falls due, the proprietor shall be 
 entitled to apply for and obtain a warrant of sale, and to dispose not 
 only of the tenant's stock, implements of husbandry, and household 
 
 2 S 
 
642 
 
 CONDITIONS OF LEASE 
 
 [appx. 
 
 How arbiters 
 to be named. 
 
 Bemoval. 
 
 furniture, but also of the crops of every description then on the farm, 
 not only to the extent of rent and arrears then due or current, but also 
 for a further sum adequate to cover wages due to servants, taxes, poor- 
 rates, road-money, or other claims in which the proprietor may by law be 
 liable as intromitter with the tenant's effects, together with all expenses 
 of sale and other expenses connected therewith, it being understood that 
 the usual credit will be given at such sale : and in the option of the 
 proprietor, the lease shall cease and terminate at the first term of Whit- 
 sunday immediately after such sale without any action, or process of 
 declarator before the Court of Session, or any other procedure, further 
 than an application to the sheriff of the county, who is hereby empowered 
 to pronounce decree against the tenant decerning him to remove, which 
 judgment shall not be removeable to the Court of Session by appeal, 
 suspension, or otiierwise. 
 
 And it is hereby provided and declared, with regard to all matters 
 herein mentioned as being to be settled by arbitration, or submitted or 
 referred to the decision of arbiters or of third parties, and with regard 
 to any disputes or questions that may arise between the proprietor and 
 tenants, or any of them, with reference to the import of these conditions, 
 or the stipulations, obligations, or prohibitions herein contained, or the 
 meaning or terms of any missives of lease, or offers having reference 
 hereto, and generally in regard to all matters that may require to be 
 adjusted or ascertained between the proprietor and the tenants, that 
 every such dispute, and all such questions and matters, shall be referred 
 to an arbiter to be agreed on by the parties, or in the event of their not 
 agreeing upon a single arbiter, then to two arbiters, one to be named by 
 either party, or to an oversman to be appointed by such arbiters, which 
 they shall have power to do in case of their differing in opinion ; 
 and in case of the parties not agreeing on or naming an arbiter or 
 arbiters, or in case of such arbiters differing in opinion and failing to 
 appoint an oversman, then to an arbiter or oversman to be appointed 
 by the Judge Ordinary, such arbiter or arbiters and oversman 
 being neutral persons, skilled in the matter to be referred to them ; 
 and the decision to be pronounced by the said arbiter or arbiters 
 or oversman shall be final and binding on both parties; and the 
 said arbiter or arbiters or oversman shall have full power to decide 
 all questions of expenses connected with such reference, and to decern 
 therefor. 
 
 Upon the expiry of the term of years specified in the offers, minutes, 
 or leases referring hereto, the tenants and their foresaids shall be bound 
 to flit and remove themselves, their families, servants, and others, from 
 the houses, lands, grazings, and others, let to them respectively, without 
 any warning or process of removal being used against them for that 
 purpose. And it is hereby declared that, whatever the term of entry 
 may be, the terms of removal in the last year of the lease (unless other- 
 wise stipulated for and agreed to by the proprietor or his factor) shall 
 be — from the garden ground and fallow-break on the 1st day of March ; 
 from the houses and natural pasture at Whitsunday ; from the arable 
 land under hay and grass on the 1st of September; and from the rest 
 of the arable lands under crop, at the separation of the crop from the 
 ground of each respective field. 
 
NO. xm.] OF ARABLE AND GliAZING FARMS. 643 
 
 Schedule of Compensation for Unexhausted Manures, (Sec, referred to in 
 foregoing Begulations, dtc. 
 
 1. LiTne applied' to land. 
 
 Eight- tenths of cost after first crop ; five-tenths after second crop ; 
 three-tenths after third crop, and one-tenth after fourth crop. Exhausted 
 fifth year. 
 
 2. Crushed hones, bone meal or bone dust, and farmyard manure. 
 Purchased by the tenant. One-half of cost after first crop; and one- 
 fourth of cost after second crop. Exhausted third year. 
 
 3. Dissolved bones, bone phosphates, pure guano, and police manure. 
 One-fourth of cost after first crop. Exhausted second year. 
 
 4. Oth&r artificial manures. 
 Exhausted by first crop, no compensation. 
 
 5. Feeding stuffs. 
 
 For linseed, cotton, and rape cakes, or other purchased substances of 
 equal manurial value consumed on the farm by cattle and sheep during 
 the last year of the lease, one-third of the value thereof, provided the 
 quantity shall not exceed the average of the preceding two years. 
 
 General Regulations. 
 
 1. Vouchers in all cases to be produced, and also an analysis by a 
 competent analytical chemist if required. 
 
 2. No allowance to be made for carting lime, manure, or feeding 
 stufis, or applying the lime or manure to the land. 
 
 3. No nitrate of soda, sulphate of ammonia, or other such 
 stimulating manures to be applied to the lands in the last year of the 
 lease. 
 
 4. In cases of arbitration the arbiters to be entitled in fixing the 
 compensation to make such deductions as they think fit, if, in their 
 opinion, the manurial value of the substances used has been reduced 
 through the tenant's fault or negligence, or if through his fault or 
 negligence the land is in such a state of cultivation as to prevent the 
 substances having their proper beneficial effiect on the soil.^ 
 
 I do hereby ofier the sum of as 
 
 yearly rent for in the parish of and 
 
 county of upon the estate of A, on a lease for 
 
 years, from the term of eighteen hundred and 
 
 , in terms of the preceding printed conditions of lease. 
 The rent to be payable half-yearly, in equal portions, at 
 and commencing the first payment at eighteen 
 
 hundred and and the next payment at 
 
 thereafter; and that for the first year's possession, and for crop 18 , 
 and so on thereafter. And I consent to registration hereof, and of the 
 foregoing printed conditions of lease, for preservation and execution. In 
 witness whereof, this ofier, written, in so far as not printed, by 
 
 and the printed conditions of lease contained on the 
 preceding pages, are all subscribed by 
 
 > Other forms for substituted compensation and scales of compensation are to be found 
 in PhiKp, Agricultural Holdings Act, pp. 44 seq. It is very doubtful whether any scale, 
 however carefully prepared, should be preferred to the unimpaired discretion of arbiters 
 under the Act. 
 
644 
 
 FAEM LEASE DATED SUBSEQUENTLY TO THE 
 
 [appx. 
 
 Farm. 
 
 Years. 
 
 Reservations. 
 Minerals. 
 
 No. XIV. 
 
 FAEM LEASE DATED SUBSEQUENTLY TO THE 
 AGRICULTURAL HOLDINGS ACT, 1883. 
 
 IT is contracted and agreed between A (hereinafter designated 'the 
 ' landlord ') on the one part and on the other part in 
 
 manner following : — That is to say, the said A, in consideration of the 
 rent or tack-duty and other prestations after written, and under the 
 reservations, conditions, provisions, and declarations after expressed, 
 hereby lets to the said and his heirs, but always without 
 
 division (the eldest heir female, when the succession would devolve by 
 law on heirs-portioners, succeeding exclusively), and also expressly 
 excluding assignees, whether legal or conventional, and all subtenants 
 of every description, and creditors or managers for creditors, in anyway 
 or shape, unless with the consent of the landlord : Declaring that the 
 said or the person in right of this lease at the time, is here- 
 
 inafter designated ' the tenant ' : All and whole lying in 
 
 the parish of barony of and county of , 
 
 and that for the period of years and crops from and after the 
 
 term of Martinmas, eighteen hundred and as to the lands for 
 
 tillage and the term of Whitsunday immediately thereafter as to the 
 houses and pasture grass, which terms respectively are hereby declared 
 to be the terms of the tenant's entry to the premises under this lease, 
 notwithstanding the date hereof; but excepting always from this lease 
 the whole ground damaged, occupied, or taken off the farm prior to the 
 tenant's entry under this lease : Reserving always to the landlord the 
 whole coal, ironstone, shale, marie, clay, sand, limestone, stone, and all 
 other mines, metals, minerals, and fossils of every description in the 
 farm hereby let, with full power and liberty to him, by himself, or his 
 tacksmen or servants, to do everything necessary for working, raising, 
 quarrying, sinking, winning, smelting, burning, charring, manufacturing, 
 storing, transporting, selling, and carrying away the same or any other 
 article of that description found in any other lands belbnging to the 
 same or any other proprietor, and that at pleasure : Declaring that, in 
 the event of any damage being caused to the said farm in consequence 
 of subsidence or otherwise through the working of the said minerals, 
 the same shall be referred to arbitration, as after provided ; but it 
 shall not in any case be competent to the arbiters to award a larger 
 sum as compensation for damage than three times the rent of the 
 lands injured by the said operations, such rent being calculated accord- 
 ing to the extent of these lands as compared with the whole extent 
 of the farm : And further declaring that any claim by the tenant 
 against the landlord for compensation in respect of the working of 
 the said minerals shall be rendered to the landlord in writing, and 
 shall contain a statement of the nature of the alleged damage and 
 the amount of compensation claimed, and the said claim shall be 
 rendered within a reasonable time and not exceeding one year after 
 the damage therein referred to has been occasioned, and at a time 
 when the damage can be seen and esstimated ; and in the event of the 
 tenant failing to comply with these requirements, he shall have no 
 claim against the landlord in respect of any damage for which he 
 shall have failed to render a claim in manner above expressed : Also, 
 
NO. XIV.] AGRICULTURAL HOLDINGS ACT, 1883. 
 
 645 
 
 reserving to the landlord full power and liberty to resume and take Power to 
 possession of any part or parts of the lands and others hereby let resume, 
 he may at any time desire for the purposes before mentioned or any 
 of them, or for erecting manufacturing premises, engines, and machinery 
 for fitting or carrying on any manner of works, and for providin<^ 
 houses, yards, and other accommodation for the use of the workmen 
 and others employed thereat, as also to take off ground for the purpose 
 of making excambions, with other proprietors, straightening marches, 
 mating, altering, or widening roads, making canals and reservoirs,' 
 letting out on building leases or granting feus, or for making planta- 
 tions, or for any purpose whatsoever for which the landlord may 
 desire the same; and also reserving to the landlord full power to 
 make railways and tramways of every description upon the lands 
 hereby let, and also drains, water runs, ditches, or aqueducts and 
 conduits for any of the above purposes or for the drainage of other 
 farms or a district of the estate, the landlord being bound to make 
 fences around all ground so resumed that may be so appropriated 
 as to render a fence necessary, the value of any ground that may be 
 added to the farm by excambions or alterations of marches being 
 added to the rent hereinaftei- stipulated, and the value of any ground 
 that may be taken ofl' the farm or damaged by any of the operations 
 before mentioned being deducted from the said rent, the damages 
 and values of ground so added or taken away being ascertained by 
 arbitration, as after provided, but it shall not be competent to the 
 tenant to make any claim for damages alleged to have been done 
 in any year of this lease whereof the rent has been paid and uncon- 
 ditionally discharged; and declaring that no damages shall be due 
 to the tenant for any sand pits or quarries to be opened or roads made 
 to the same for the purpose of improving the farm hereby let with 
 respect to building, fences, roads, or drains; and reserving also all 
 plantations, trees, and plantation pastures on the said farm, and also Plantations, 
 free access to and from the same, for the purpose of inspecting, prun- 
 ing, dressing, cultivating or cutting down, selling or rouping and 
 carrying away any part of the trees on the said farm or in the neigh- 
 bouring plantations, or in the hedges and marches, and planting others 
 in their places, without any compensation being payable to the tenant 
 therefor ; and reserving also to the landlord full power, either by 
 himself or those acting for him or having his authority, to visit and 
 perambulate the said farm at all reasonable times : Reserving also all 
 water in streams and springs rising in or traversing the lands hereby Water, 
 let subject to the proper use thereof, or of such parts thereof as may 
 be required, by the tenant for the purposes of the farm only ; reserving 
 also to the landlord the whole game on the lands hereby let other than Game, 
 the ground game thereon, and, with reference to the ground game, 
 reserving to him a concurrent right thereto, along with the tenant, 
 in terms of the provisions of the Act 43 & 44 Vict. c. 47, and 
 reserving full power also to the landlord and those having his per- 
 mission to shoot, hunt, course, and sport over the said lands, and to 
 see that the game and ground game are not improperly destroyed; 
 and also reserving to the landlord the fish in the waters on the said lands, 
 with the exclusive liberty by himself or others having his permission of 
 fishing for the same: Which tack, with and under the conditions, reserva- Warrandice, 
 tions, provisions, restrictions and declarations, before and after written. 
 
646 
 
 FARM LEASE DATED SUBSEQUENTLY TO THE 
 
 [appx: 
 
 Kent. 
 
 Insurance. 
 
 Residence. 
 
 the said A binds and obliges himself , and his heirs and successors 
 to warrant to the said and his foresaids at all hands : For 
 
 which causes, and on the other part, the tenant binds and obliges him- 
 self, his heirs, executors, and successors whomsoever to content and pay 
 to the landlord, or to his commissioner or factor, and that at any place 
 he or they may appoint, the sum of sterling, of yearly 
 
 rent for each crop, and that at two terms of the year, Martinmas and 
 Whitsunday, by equal portions, beginning the first half-year's payment 
 thereof at the term of Martinmas, eighteen hundred and 
 and the second at the term of Whitsunday following, and that in 
 full for the crop and year eighteen hundred and , 
 
 and so forth half-yearly and termly during this lease : But declaring, 
 that if the landlord shall see fit, he shall have full power to exact pay- 
 ment of the rent of each crop at the legal terms of Whitsunday and 
 Martinmas in the year in which it is sown : And further declaring that 
 the rent of the last crop shall be paid in full, or caution to the satisfac- 
 tion of the landlord or his factor for the payment thereof shall be found, 
 at the term of Martinmas in that year, and before the removal of any 
 part of the crop and stocking from the ground : As also, to pay along 
 with the rent at Martinmas, yearly, one-half of the premium on a 
 policy or policies of insurance against fire already efiected or to be 
 efiected by the landlord in name of himself and his successors on the 
 houses and buildings on the said farm, the amount of said insurance 
 being their full value, as the same shall be determined by the landlord 
 or his factor : And further, the tenant shall insure in his own name 
 with a respectable insurance company to be approved of by the land- 
 lord, and shall exhibit at the term of Martinmas yearly receipts for the 
 premium on a policy of insurance on the crop and stocking on the said 
 farm to the amount of not less than one year's rent, and, failing his 
 doing so, the landlord may insure the said crop and stocking at the 
 tenant's expense : And, in the event of accident by fire, the landlord 
 shall have the power of settling with the insurance company or com- 
 panies and receiving for himself the compensation for any damage that 
 may have been sustained by the buildings, and the amount received for 
 damage done to the crop or stocking shall be applied towards extinction 
 of the rents due or current at the time, and the balance, if any, shall be 
 paid to the tenant ; with a fifth part more of each termly payment of 
 the said rent and premiums of insurance of penalty in case of failure, 
 and interest at the rate of five per cent, per annum during the not pay- 
 ment : And, further, the tenant binds himself to relieve the landlord of 
 all claims by the outgoing tenant for work and knanure given by him to 
 any summer fallow-ground, including the unexhausted value of what- 
 ever lime may have been purchased and laid thereon by the outgoing 
 tenant during the last two years of his lease, and also for the grass or 
 herbage seeds sown in the last year, if furnished by the outgoing tenant, 
 and also the value of the dung or manure made after sowing the last 
 crop and left upon the farm, and to pay the landlord the price of the 
 grass or herbage seeds sown in the last year, if the same shall have been 
 furnished by him : Further, the tenant binds and obliges himself to 
 reside personally upon the farm, and to have and keep continually a 
 sufficient stocking of every kind thereon, which shaU be hondfde his 
 own property, and to labour and manure the lands in a proper husband- 
 manlike manner, so as not to run out or deteriorate the same; and 
 
NO. XIT.] AGRICULTURAL HOLDINGS ACT, 1883. 647 
 
 particularly, without prejudice to the forgoing generality, to follow and 
 observe the rotation and mode of cropping after specified, viz. : Rotation. 
 
 From which course of cropping the tenant shall not deviate without the 
 written consent of the landlord or his factor : And further, the tenant 
 shall not, without the consent in writing of the landlord or his factor, 
 sell or send off from the farm any of the crops which may be grown 
 thereon, but shall consume the whole thereof upon the farm, excepting 
 corn, including wheat, barley, oats, pease, and beans, in a thrashed 
 state, and potatoes, or hay of the first year raised from sown grass 
 seeds, and wheat straw, but subject to the provision hereinafter 
 mentioned, and in the last year, as in the other years of this lease, the 
 tenant shall be bound to adhere to the rotation of croping above Grass seeds 
 prescribed, and accordingly to sow down with a proper assortment of 
 grass and clover seeds the portion of the lands falling to be sown 
 down that year, unless the landlord shall have given him three weeks' 
 notice of his desire to sow in such gi-ass and clover seeds himself, 
 and which he shall have power to sow in, not only with the prescribed 
 portion of white crops, but with any other white crops on the farm 
 he may see fit, without compensation; and in either of these cases 
 the tenant shall, without charge, properly harrow, roll, and cover in 
 the seeds, and shall afterwards preserve the land so sown from being 
 hurt or pastured by live stock of any kind ; and for which grass or 
 herbage seeds sown in the last year, if furnished by the tenant, 
 as well as for work and manure given by him to any summer 
 fallow-ground in the last year of the lease, if not of greater extent 
 than the average of former years, and also the unexhausted value 
 of whatever lime he may have purchased and laid upon the fallow- 
 ground during the last two years hereof, the tenant shall be paid 
 for the same by the landlord or incoming tenant, as may be fixed 
 by arbitration, as after mentioned : And further, the tenant shall Waygoirg 
 be bound, during the year before the last of this lease, to consume "''"P' 
 upon the farm the whole fodder grown thereon that year, and to 
 apply the dung made therefrom in manuring the ground for the last 
 crop, and in the option of the landlord, either to sell the last growing 
 crop of corn and hay to the incoming tenant at a valuation to be fixed 
 by arbitration, as after mentioned, or to consume the same upon the 
 farm, and to leave thereon the dung or manure to be made after 
 sowing the last crop ; for which dung the tenant shall be paid by Manure. 
 the landlord or the incoming tenant, as the value thereof may be 
 fixed by arbitration, as after mentioned, or to consume the same 
 upon the farm, and to leave thereon the dung or manure to be made 
 after sowing the last crop ; for which dung the tenant shall be 
 paid by the landlord or the incoming tenant, as the value thereof 
 may be fixed by arbitration, as after mentioned ; and the tenant 
 obliges himself, in the first three weeks of July yearly, to cut "Weeds. 
 down all thistles, dock, ragwort, and other weeds of every descrip- 
 tion growing on the farm, and, if he neglects so to do, the landlord 
 shall have power to do it at the tenant's expense ; and it is hereby 
 provided and declared that if the tenant shall depart from the 
 regulations before specified as to the treatment and management of 
 the land, he and his foresaids in that case hereby became bound to pay 
 yearly the sum of ten pounds of additional rent for each acre treated 
 or cropped differently from the mode before mentioned, and which 
 
648 
 
 FARM LEASE DATED SUBSEQUENTLY TO THE 
 
 [appx. 
 
 Heather, 
 
 Carriage for 
 repairs. 
 
 Buildings, 
 fences, &c. 
 
 Hedges. 
 
 additional rent, as the same shall be ascertained by arbitration, shall 
 not be considered penal but as pactional, and shall be payable to 
 the landlord, at the same terms, with the original rent, and with 
 the like interest and penalty as stipulated in case of failure in 
 payment thereof, without prejudice, nevertheless, to the landlord's 
 right to put a stop to irregular cropping or mismanagement : 
 And further, where there is any heather, heath, or moss on the farm, 
 the tenant binds and obliges himself not to burn the same except 
 with the permission, in writing, of the landlord, or those acting for 
 him, and under the direction of the landlord's gamekeeper, or any 
 other person to be appointed by the landlord : And further, the tenant 
 shall defray the expenses of all carriages necessary for repairs or 
 additions to the houses, embankments, drains, and fences, or for 
 any new houses, embankments, drains, and fences which may be erected 
 or formed during the lease, and where young hedges may be planted 
 upon the lands he shall also defray the expense of making or putting 
 up any railing or paling necessary for defending the same, and 
 of preparing a compost of earth and dung or lime to be laid 
 on the thorn beds before the thorns are planted, provided the ground 
 shall appear to the landlord, or those acting for him, to require 
 such manure, the landlord always furnishing wood for such paling, 
 the tenant paying for cutting, carrying, and setting it up; and 
 the landlord, at his own option, shall either furnish the necessary 
 quicksets for the hedges or repay the tenant the prime cost of 
 the same upon his procuring them himself : And further, 
 the tenant accepts the buildings, fences, hedges, gates, roads, water 
 runs, ditches, drains, mill-dams, sluices, water lades and trows, lead 
 pipes, stop-cocks, pumps, and watering places on the farm, as sufficient 
 for the farm and in good and tenantable condition, and which buildings 
 and others now built and made, or hereafter to be built and made, as 
 aforesaid, the tenant binds and obliges himself and his foresaids to keep 
 in good tenantable condition during the currency of this lease, and to 
 leave in like condition at the expiry thereof : And the tenant shall be 
 bound to paint once in every four years, with one coat of good oil paint, 
 the whole outside wood and iron work of all the buildings on the farm ; 
 but the landlord reserves power, if he sees fit, to cut, prune, and keep 
 all the hedges on the farm by his own labourers or others, and charge 
 the tenant with one-half of the expense thereof, which shall be payable 
 six months after the work has been performed ; and, in case the tenant 
 shall at any time or times neglect to keep the houses and others in 
 proper order, then the landlord, or those acting for him, shall be at 
 liberty to cause the necessary repairs to be made, and to charge the 
 expense thereof to the tenant, who shall be bound to pay the same 
 along with his next term's rent, but which obligation on the tenant as 
 to fences shall not be held to apply to any fences round any plantations 
 on the lands, which last the landlord shall maintain at his own expense, 
 the tenant being bound, however, as aforesaid, to defray the expenses 
 of all carriages necessary for the upkeep of the said plantation fences : 
 And the tenant binds and obliges himself and his foresaids to preserve, 
 so far as in his power, all woods and plantations presently on or that 
 may be on the premises from all damage during the currency of this 
 lease, and to give information against persons who may be found 
 injuring them : And the tenant shall not be entitled to keep any dogs 
 
NO. XIV.] AGEICULTUEAL HOLDINGS ACT, 1883. 649 
 
 other than collie dogs required for sheep, and he shall give information 
 against all poachers and trespassers : And further, if the tenant shall 
 execute any improvements on the lands specified in the first or second 
 parts of the schedule annexed to ' The Agricultural Holdings (Scotland) 
 ' Act, 1883,' he shall be bound on the completion of such improvements, 
 or when required by the landlord, to furnish a detailed statement 
 giving particulars of the cost of such improvements, and shall, along 
 ■with the said statement, be bound to produce vouchers as far as 
 practicable therefor for the inspection of' the landlord, and the tenant 
 shall be bound to jiroduce for the inspection of the landlord at any time, 
 and from time to time, all accounts incurred by him in connection with 
 improvements specified in the third part of the schedule to the said Act, 
 and, if required, analyses of all manures and feeding stufis not produced 
 on the holding referred to in said accounts, but nothing herein contained 
 shall be held as authorising the tenant to make any of the improve- 
 ments specified in the schedule annexed to the said Act, nor shall the 
 production of any statement, voucher, analysis, or other document, or 
 any demand by the landlord therefor, as before provided, be held as a 
 consent or acquiescence by the landlord in any outlay to which such 
 documents may apply : And further, in the event of any dispute Arbitration, 
 arising between the landlord and the tenant under this lease, whether 
 hereinbefore specially referred to arbitration or not, the same is hereby 
 referred to the final sentence and decree arbitral of two neutral persons 
 to be mutually chosen as arbiters, or, in the event of their differing in 
 opinion, of an oversman to be named by them, and the decision of such 
 arbiters or oversman shall be final and binding on the parties, and it 
 shall be lawful for either party, when such difierence shall arise, to call 
 upon the other immediately to name an arbiter on his part, and in the 
 event of either party faiUng to concur with the other in the nomination 
 of arbiters within six days after being called on to name an arbiter as 
 aforesaid, it shall be lawful for the sheriff of the county or his 
 substitute, on the application of either party, to name an arbiter for the 
 party so falling, and the arbiters so appointed shall, in the event of 
 their differing in opinion, appoint an oversman, and the award of such 
 arbiters or oversman so appointed shall have the same force and efficacy 
 as if both parties had concurred in the nomination ; and both parties 
 bind themselves to fulfil the award of the arbiters or oversman so 
 appointed in the same way as they have already bound themselves to 
 fulfil the award of persons mutually chosen as aforesaid : And it is Irritancies, 
 hereby provided and declared that if the tenant shall at any time 
 during the currency of this lease become bankrupt, or if his estate and 
 effects shall be sequestrated in terms of any Act of Parliament in force 
 at the time, or if he shall voluntarily divest himself of his property by 
 trust-disposition or otherwise for behoof of his creditors, or shall fail to 
 reside personally on the farm hereby let, then, and in any of these 
 events, it shall be in the power of the landlord to put an end to this 
 tack, and to resume possession of the subjects hereby let without any 
 declarator or process of law to that effect, either at the first term of 
 Whitsunday or the first term of Martinmas thereafter as he may see fit: 
 And, in the event of the death of the tenant, leaving an arrear exceed- 
 ing one half-year's rent, it shall not be in the power of the heir or 
 successor to take up the lease, except with the consent of the landlord, 
 but the same shall, in the landlord's option, come to an end at the first 
 
650 
 
 FARM LEASE IN VIEW OF 
 
 [appx. 
 
 Removing. 
 
 term of Martinmas thereafter : And it is hereby stipulated that, in the 
 event of this lease being in consequence of the bankruptcy or insolvency 
 of the tenant, or his voluntary divestiture, brought to a termination 
 before the natural issue, then the whole straw of the crop and the whole 
 dung on the farm, in the year when the lease is so terminated, and also 
 all the grass on the farm, and also all the grass and clover seeds sown 
 with the crop of that year, shall become the property of the land- 
 lord, who shall be entitled thereto without payment : And further, 
 the tenant binds and obliges himself to give the incoming tenant 
 possession of the ground to be under crop the following year and the 
 new-sown grass, on the separation of the last crop from the ground, and 
 also the use of as much of the houses and barnyard as may be necessary 
 for enabling his servants and horses to plough the land, and his horses 
 and cattle to consume any part of the crop he may have acquired from 
 the outgoing tenant, in manner before mentioned, during the last half- 
 year of this lease, and to flit and remove himself and his family, 
 servants, goods, and effects furth and from the lands and others hereby 
 let at the expiry of this lease without any warning or process of 
 removing ; and failing their doing so, then the tenant binds and obliges 
 himself and his foresaids to pay the yearly rent of pounds 
 
 sterling for each year he or they shall possess after the expiry hereof 
 without a new agreement in writing, and at that rate for any shorter 
 period, and that not as a penal, but as a pactional rent, and that 
 without prejudice to the right of the landlord to insist in a summary 
 removal or ejection in course of law : And both parties bind and oblige 
 themselves and their foresaids to implement and perform their parts of 
 the premises to each other under the penalty of pounds 
 
 sterling, to be paid by the party failing to the party observing or 
 willing to observe the same over and above performance : And they 
 consent to the registration hereof and of the decree or decrees arbitral 
 to be pronounced in virtue of the provisions herein contained, for pre- 
 servation and execution. — In witness whereof these presents written, in 
 so far as not printed, on this and the preceding pages. 
 
 No. XV. 
 
 Landlord. 
 Tenant, 
 
 LEASE OF FARM IN VIEW OF AGEICULTURAL 
 HOLDINGS ACT. 
 
 IT is contracted and agreed between A, heritable proprietor of the 
 lands and others hereinafter let, on the one part, and on 
 
 the other part, in manner following : — That is to say, the said A, in 
 consideration of the rent or tack-duties and other prestations after 
 written, and under the reservations, conditions, provisions, and declara- 
 tions after expressed, hereby lets to the said and 
 heirs, excluding heirs-portioners (the eldest heir-female, when the 
 succession would devolve by law on heirs-portioners, succeeding without 
 division), and also excluding subtenants and assignees, legal or voluntary, 
 and creditors, or managers for creditors, in any way or shape, unless 
 
NO. XV.] AGRICULTURAL HOLDINGS ACT. 651 
 
 with the consent of the proprietor of the lands hereby let, but with 
 power to the tenant to destine this lease, by will, to any member of his 
 family, or to his widow, subject to the approval of the proprietor, to be 
 expressed in writing under his hand: Provided always that he shall 
 provide the legatee with the necessary means of stocking the farm, if 
 the legatee has not adequate means for that purpose : Declaring that 
 this arrangement shall supersede the provisions of the Agricultui-al 
 Holdings (Scotland) Act, 1883, as to the bequest of the lease, which are 
 hereby dispensed with by mutual consent : Declaring that the said A, 
 the proprietor of the subjects hereby let, and his successors, are herein- 
 after designated ' the landlord,' and that the said , or the 
 person in right of this lease for the time, is hereinafter designated ' the 
 ' tenant,' — All and whole the farm of lying in the parish Possession, 
 of , and county of , and that for the period Endurance, 
 of years from and after the term of Whitsunday eighteen Entry, 
 hundred and as to the houses, grass, and fallow, and to the 
 land under white crop, at the separation of that year's crop from the 
 ground, which is hereby declared to the term of the tenant's 
 entry to the premises under this lease, notwithstanding the date of these 
 presents : Reserving always to the landlord the whole coal, lime, marie, Reservations, 
 stone, clay, slate, sand, or gravel, and all other minerals, metals, and 
 fossils in the said farm, and all the sea-ware and shell-sand which may 
 be found on the estates, with full power and liberty to him, by himself 
 or his tacksmen or servants, or others having his authority to search for, 
 work, win, manufacture, and carry away the same, and to make all pits, 
 mines, quarries, roads, railways, aqueducts, buildings, and works 
 necessary therefor, and for the working, storing, and carriage of 
 minerals from adjoining and neighbouring lands and estates, and to 
 carry said minerals under or over the lands hereby let, on payment 
 of surface damages to be ascertained in manner after mentioned : 
 And also reserving to the landlord power to spread, dry, and burn 
 into kelp the whole of the said sea-ware, without being liable in any 
 damages therefor : As also reserving power to the landlord to resume 
 any part or parts of the said farm, not exceeding acres 
 imperial measure in whole, he being at the expense of making and 
 upholding fences around all ground so resumed, that may be planted or 
 otherwise appropriated so as to render a fence necessary, and allowing 
 to the tenant an abatement from the rent, to be fixed, in the event of 
 diflerence, by arbiters, in manner after provided ; and also reserving 
 to the proprietor power to take off or resume any portion of the 
 unimproved land and moss at pleasure without any payment therefor : 
 As also to straighten or alter marches, and excamb ground with any 
 neighbouring proprietor or tenant ; and to make, alter, use, or close up 
 roads upon the said farm, the value of any ground that may be added 
 to the said farm by excambions, or alterations of marches, being added 
 to the rent hereinafter stipulated, and the value of any ground that 
 may be taken off the said farm, or damaged by any of the operations 
 before mentioned, being deducted from the said rent, the damages and 
 value of ground so added or taken away being ascertained by arbitration 
 as after provided ; but the tenant shall not be allowed any damages or 
 reduction of rent for materials taken off the farm in making or repair- 
 ing roads : And it shall not be competent to the tenant to ma,ke any 
 claim for damages alleged to have been done in any year of this lease 
 
652 
 
 FARM LEASE IN VIEW OF 
 
 [appx. 
 
 WaTrandice. 
 
 Bent. 
 
 Terms of 
 payment. 
 
 Fire 
 insurance. 
 
 Repairing 
 churclies, &c. 
 
 whereof the rent has been paid, and unconditionally discharged : 
 Reserving also to the landlord all trees, woods, and plantations, grass 
 therein, and fences surrounding the same, with access thereto at all 
 times, and right to use them at pleasure, as well as to prune, cut, and 
 remove them, and to plant others in their place, or in the hedges and 
 marches, without any compensation therefor : "Reserving also all water 
 in streams or springs rising in or traversing the lands hereby let, subject 
 to the proper use thereof by the tenant for the purposes of the farm 
 only : And also, so far as not inconsistent with the Ground Game Act, 
 1880, reserving the rabbits, hares, and other game on the said lands, 
 and the fish in the rivers and streams, and in the sea, with the exclusive 
 privilege of hunting, fowling, and fishing on the same by himself, 
 or by others having his authority ; the tenant being hereby bound to 
 protect the plantations and fences, and also the game on the lands, and 
 to warn off intruders : Reserving also to the landlord all the mosses on 
 the estates, with full power to improve and cultivate the same, and to 
 dispose of and let such portions thereof as he may think proper : Which 
 tack, with and under the conditions, reservations, provisions, restric- 
 tions, and declarations before and after written, the said A binds and 
 obliges himself and Ms successors to warrant at all hands : for which 
 causes, and on the other part, the tenant binds and obliges himself, his 
 heirs, executors, and successors whomsoever, to pay to the landlord, and 
 his successors or representatives, or to his or their assignees, or to the 
 proprietor of the said lands and others hereby let for the time, or to his 
 or their factor for the time being, at , or such other place 
 
 as they may appoint, the sum of sterling in name of yearly 
 
 rents and that half-yearly during the currency hereof, in equal portions, 
 at Whitsunday and Martinmas after entry, beginning the first term's 
 payment at the term of Whitsunday eighteen hundred and , 
 
 and the next at the term of Martinmas following, in full of the first 
 year's rent under this lease, and so forth half-yearly and termly during 
 this lease : Declaring that the whole of the rent of the last year 
 and crop under this lease shall be payable at the term of 
 Whitsunday in that year before any part of the crop or stock has 
 been removed from the ground : As also, to pay, along with the 
 rent, at Whitsunday yearly, one-half of the premiums on a policy or 
 policies of insurance against fire to be effected in name of the 
 landlord and his successors, on the full value — as the same may be 
 determined by the landlord or his factor — of the houses, mUls, and 
 other buildings on the said farm ; and further, the tenant shall insure, 
 in his own name, with a respectable Insurance Company to be approved 
 of by the landlord, and shall exhibit at the said term of Whitsunday 
 yearly receipts for the premiums on a policy of insurance on the crop 
 and stocking on the said farm to an amount of not less than one yeai-'s 
 rent, the whole premium on the last-mentioned policy being paid by the 
 tenant himself, and failing his doing so, the landlord may insure the 
 said crop and stocking at the tenant's expense ; with a fifth part more 
 of each termly payment of the said rent and premiums of insurance of 
 penalty, in case of failure, and interest thereon at the rate of five per 
 centum per annum during the not-payment : As also, to perform his share 
 of carriages of all materials necessary for rebuilding or repairing the 
 ch\irch and churchyard dyke, manse, and oflBces, and minister's garden- 
 walls in the said parish, or, in the option of the landlord, to pay a 
 
NO. XV.] AGRICULTURAL HOLDINGS ACT. 653 
 
 proportion of the expense of performing the same corresponding to the 
 rent of the farm hereby let : Further, the tenant binds and obliges him- Residence and 
 self to reside personally upon the farm, and to have and keep continually stocking, 
 a sufficient stocking of every kind thereon, which shall be bond fide his 
 own property, and to labour and manure the lands in a proper husband- 
 manlike manner, so as not to run out or deteriorate the same; and 
 particularly, without prejudice to the foregoing generality, to follow and 
 observe the rotation and mode of cropping after specified, viz. : — The Cropping. 
 farm is to be divided into five divisions, as nearly equal as may be con- 
 sistent with the best manner of subdividing and enclosing the same ; 
 and each division, upon being broken up from grass, shall be the first 
 year in oats; the second year fallow, or drilled turnips, or potatoes, 
 properly dunged and dressed (not more than one-third being in 
 potatoes) ; the third year wheat, barley, or oats, sown down with a 
 sufficient quantity of grass and clover seeds, and the next two years in 
 grass : Or, a six-course shift may be followed, in which case the farm is 
 to be divided into six divisions, and each division, upon being broken 
 up from grass, shall be the first year in oats ; the second year fallow, 
 or drilled turnips, or potatoes, properly dunged and dressed (not more 
 than one-third being in potatoes) ; the third year wheat, barley, or oats, 
 sown down with a sufficient quantity of grass and clover seeds, and the 
 next three years in grass ; declaring that, whether under the five or the 
 six-course shift, the grass shall be cut only once in each rotation, and 
 shaU be pastured in the other year or years ; and the tenant having 
 selected either of these courses, each division shall be laboured, manured, 
 and cropped accordingly each year successively during this lease, unless 
 any modification or sSteration shall be specially sanctioned in writing by 
 the landlord, or by those acting for him ; but declaring that the tenant 
 may allow the land to lie in grass for a longer period than three years, 
 but in that event he shall be bound to put the whole farm into proper 
 rotation, prior to the termination of his lease, by breaking up a fair 
 proportion in each year, and failing his doing so, he shall leave the extra 
 land in pasture without payment therefor : And further, the tenant shall Cutting 
 out down, at least twice every year, all rag- weeds, docks, thistles, and ""^^e s. 
 all other weeds on the farm, once before they come into flower, and 
 again before the first of September : And further, the tenant binds and 
 obliges himself to consume the whole fodder and turnips upon the said 
 farm, and to apply thereto the whole manure made therefrom yearly. Manure. 
 and not to sell or carry ofi" any manure or article capable of producmg 
 manure, excepting only potatoes and hay, the tenant purchasing and 
 applying to the farm an equivalent value of manure : As also in the last Grass seeds. 
 year of this lease, to allow the landlord, or incoming tenant, to sow 
 grass seeds in such divisions of the farm as fall to be sown out in the 
 year of the tenant's removal, and the tenant shaU harrow and roll in the 
 seeds without payment, and protect the young grass from bemg 
 pastured by cattle or sheep, or otherwise injured, and pasture the rest 
 of the grass during the last year of the lease with only the average 
 quantity of stock kept on the farm during the previous years ot this 
 lease: Provided always that the grass seeds shall be sown withm five 
 lawful days after written notice given by the tenant to the landlord or 
 incoming tenant that the ground is ready for being sown : And tne 
 tenant binds and obliges himself, in the last year of the lease, to give ^a^ygomg 
 the land intended for green crop one ploughing before the winter 1- 
 
654 
 
 FARM LEASE IN VIEW OF 
 
 [appx. 
 
 Last year's 
 ploughing. 
 
 Payment by 
 
 incoming 
 
 tenant. 
 
 Penalty for 
 miscroxjping. 
 
 Improve- 
 ments. 
 
 preceding tte expiry of the lease, for the use of the incoming tenant, 
 who shall have right to enter on and work the said land after the same 
 has been ploughed, and, at latest, on the fifteenth day of April ; and 
 the incoming tenant shall have right of access to the garden ground on 
 the first day of March preceding the expiry of this lease for the purpose 
 of working and cropping the same : And further, the tenant obliges 
 himself to make over to the landlord or incoming tenant the whole 
 manure on the farm made after the last green crop under this lease 
 shall have been sown, for which manure, and for first year's grass, and 
 for the ploughing of the land intended for green crop, the landlord or 
 incoming tenant shall pay according to the valuation of arbiters 
 mutually chosen, as after mentioned ; but declaring that if a seven or 
 eight course shift shall be arranged between the proprietor and outgoing 
 tenant, the incoming tenant shall also have access at the Whitsunday 
 term to all other grass ; but the waygoing tenant shall, in addition to 
 the payment he is to receive for first year's grass sown out with the 
 preceding year's crop, be entitled to payment of the value of second, third, 
 and fourth year's sown grasses at such value as shall be ascertained by 
 arbiters or an oversman to be appointed as after mentioned, and such 
 payment for the value of second, third, and fourth year's grasses shall 
 be in full of compensation to the waygoing tenant for all improvements 
 specified in the third schedule of ' The Agricultural Holdings (Scotland) 
 ' Act, 1883 : ' And further, on receiving intimation on or before the first 
 day of July in the last year of this lease, the tenant shall be obliged to 
 leave, and the landlord or incoming tenant shall be bound to take, the 
 whole or one-half of the waygoing grain crop, at the fiars' prices of the 
 county of for that crop — the quantity and quality of the 
 
 grain and the value of the fodder to be ascertained within fourteen days 
 befoi'e the same is ready for harvesting, by arbiters, or an oversman to 
 be appointed as after mentioned — one-half of the value, as nearly as may 
 be, and as the arbiters or oversman shall fix, to be paid at Martinmas 
 after reaping, and the remainder when the fiars of the crop shall have 
 been struck ; but declaring that the expense of harvesting the crop, if 
 done by the landlord or incoming tenant, as the same shall be fixed by 
 the arbiters or oversman, shall be deducted from the sum to be paid to 
 the tenant, and the incoming tenant shall, previous to taking possession, 
 pay the price thereof, or give satisfactory security therefor & required ; 
 all the straw remaining unconsumed on the farm (except the straw of 
 the last crop under the lease) shall become the property of the landlord, 
 without any allowance for the same, and the landlord or incoming 
 tenant shall be entitled to any bushes, trees, and flowers in the garden, 
 which the tenant may be legally entitled to remove, at a valuation not 
 exceeding, in any case, three pounds sterling : And further, it is hereby 
 declared, that if the said farm shall be cropped or managed in a manner 
 contrary to the before-written regulations, or any of them, the tenant 
 shall pay ten pounds sterling of additional rent, along with the rent 
 hereinbefore stipulated, for every acre so cropped in the year or years 
 in which the deviation from the prescribed course of management shall 
 take place, and that not as a penalty, but as additional rent, which shall 
 be recoverable in the some way as the foresaid rent of the farm, without 
 prejudice nevertheless to the landlord's right to put a stop to irregular 
 cropping or mismanagement : And further, the tenant binds and obliges 
 himself, whenever the landlord shall expend money on buildings, 
 
NO. XV.] AGRICULTURAL HOLDINGS ACT. 655 
 
 drainage, or other improvements or repairs, to perform the carriage of 
 materials free of charge, the cost of all such carriages being in all cases 
 excluded from the valuations, and in the case of buildings, to take out 
 the foundations also free of charge, and to pay half-yearly, along with 
 his rent, interest on the outlay on buildings and other improvements, 
 except drainage, at the rate of five per centum per annum : And it is 
 hereby specially agreed with reference to the Agricultural Holdings 
 (Scotland) Act, 1883, that during the currency of this lease a sum not 
 exceeding may be expended in drainage on the lands Drainage, 
 
 hereby let, and no more ; and on any sum so expended by the landlord, 
 the tenant hereby binds and obliges himself and. his foresaids to pay 
 interest at the rate of live per centum per annum half-yearly, such 
 interest to run from the date or dates at which such expenditure shall 
 have been m.ade ; and for the purpose of ascertaining the amount of 
 such interest, a statement under the hand of the landlord or his factor, 
 showing the amount due, shall be sufficient; and it is specially 
 provided and agreed to that the interest shall be deemed and dealt 
 with as part of the rent, and shall be recoverable as rent in 
 the same manner as if the amount thereof had been added to the 
 rent of above specified; and it is hereby agreed that 
 
 notices in terms of section 4 of said Act are hereby dispensed with, 
 and declared to be of no force Or avail between the parties hereto, 
 this arrangement being substituted for compensation for improvements 
 specified in Part II. of the schedule appended to said Act : And it is Biuldings. 
 agreed that when buildings are to be erected by the tenant at his own 
 cost, the plan of said buildings shall, previous to their being commenced, 
 be approved of, in writing, by the landlord or factor : And further, 
 the tenant shall be bound to keep the houses and steadings now on 
 the farm, and also any additions which shall be made thereto during 
 the lease, constantly in good repair, and to paint with two coats of best Repairs. 
 oU paint the external doors and windows once at least every five years ; 
 failing in which, the landlord may order all needful repairs and paint- 
 ing, and charge the expenses of the same to the tenant ; 
 
 and the tenant having received the houses, fences, roads, ditches, Unteep of 
 and drains on the said farm in sufficient tenantable condition, binds ^°^«^^ ^''^'^ 
 and obliges himself and his foresaids to uphold the whole houses, 
 roads, bridges, dykes, fences, ditches, and drains, made or to be 
 made, on the said farm, in good and sufficient tenantable condition 
 during this lease, and to leave them in the like condition at the 
 expiry thereof: and particularly to uphold the dykes, made or to be 
 made, on the said farm, in a sufficient fencible state during this lease, 
 and to leave them at the expiry thereof slap free, and with the coping 
 on, and to keep the said drains and ditches, made or to be made, 
 properly scoured during this lease, and to leave them at the expiry 
 thereof in good order; and in case the tenant shall fail to keep the 
 said houses, roads, bridges, dykes, fences, ditches, and drains, or any of 
 them, in good repair and order, as aforesaid, it shall be lawful for 
 the landlord to execute the necessary repairs thereon at the expense 
 of the tenant; and the tenant binds and obliges himself to pay the 
 landlord such sum as he may disburse for putting the said houses, 
 roads, bridges, dykes, fences, ditches, and drains, or any of them in 
 good order, as the same shall be ascertained by the receipts of the 
 tradesmen employed by him or his commissioners or factors to do the 
 
656 
 
 FARM LEASE IN VIEW OF 
 
 [appx. 
 
 Outgoing ten- 
 ant's claim. 
 
 Compensation 
 clause. 
 
 Arbitration 
 clause. 
 
 Irritancies. 
 
 work : iLnd further, the tenant shall be bound to relieve the landlord of 
 all claims which may be competent to the outgoing tenant under the 
 Agricultural Holdings (Scotland) Act, 1883 : And further, in the event 
 of the land being farmed on the five or sixth course shift, and the 
 whole land left in regular rotation, it is hereby agreed, with reference 
 to the said Agricultural Holdings (Scotland) Act,1883, that the compen- 
 sation, if any, payable to the tenant at the termination of this lease, in 
 respect of improvements specified in Part III. of the schedule appended 
 to the said Act shall not exceed the rates and proportions of unexhausted 
 value specified in the schedule annexed and signed by the parties as 
 relative hereto, and which shall form the basis of and regulate the 
 award to be issued in the arbitration, if any, which may follow in 
 terms of the Act, and it is hereby declared that the compensation thus 
 fixed on the basis of this schedule shall be deemed to be substituted for 
 compensation under the Act ; but the tenant shall be bound never- 
 theless to give the landlord the notice required by section seven of the 
 Act should he determine to claim compensation: And the tenant hereby 
 binds and obliges himself and Ms foresaids not to use, or at any rate 
 not to claim for having used, a greater quantity of purchased manures 
 and feeding stuff's on the said farm in the last year of this lease than 
 the average quantity thereof used during each of the two preceding 
 years : Provided always that, in fixing the amount of compensation 
 payable to the tenant, the arbiters and oversman shall be entitled to 
 make such deductions as they think fit, if in their opinion the manurial 
 value of the substances used has been reduced through the fault or 
 negligence of the tenant, or if through his fault or negligence the land 
 is in such a state of cultivation as to prevent the substances having 
 their proper beneficial effect on the soil : And further, in the event of 
 any dispute or difference arising between the landlord and tenant under 
 this lease, whether hereinbefore specially referred to arbitration or not, 
 the same isliereby referred to the final sentence and decree-arbitral of 
 two neutral persons to be mutually chosen as arbiters, or, in the event 
 of their differing in opinion, of an oversman to be named by them, and 
 the decision of such arbiters or oversman shall be final and binding on the 
 parties; and it shall be lawful for either party, when such difference shall 
 arise, to call upon the other immediately to name an arbiter on his part ; 
 and in the event of either party failing to concur with the other in the 
 nomination of arbiters within six days after being called on to name 
 an arbiter as aforesaid, it shall be lawful for the sheriff of the county, 
 or the Judge Ordinary of the district for the time, on the application of 
 either party, to name two persons as arbiters, who shall have power to 
 appoint an oversman, and the award of such arbiters or oversman so 
 appointed shall have the same force and efficacy as if both parties had 
 concurred in the nomination ; and the award of the parties or party so 
 appointed shall be final and binding on the landlord and tenant, and ful- 
 filled in the same way as the award of persons mutually chosen as afore- 
 said : And it is hereby provided and declared that if the tenant shall, at 
 any time during the currency of this lease, become bankrupt, or if his 
 estate and effects shall be sequestrated in terms of any Act of Parlia- 
 ment in force at the time, or if he shall voluntarily divest himself of 
 his property, by trust-disposition or otherwise, for behoof of his 
 creditors, or shall allow one half-year's rent to remain unpaid when 
 the next half-year's rent shall have become due, or shall fail to reside 
 
NO. XV.J AGRICULTURAL HOLDINGS ACT. 657 
 
 personally on the farm hereby let, or admit lodgers, except of his 
 own family, or shall keep any tavern or public-house on the premises 
 hereby let, or permit others to do so, then, and in any of these 
 events, it shall be in the power of the landlord to put an end to 
 this tack, and to resume possession of the subjects hereby let, without 
 any declarator or process of law for that effect ; and in the event of 
 the death of the tenant leaving an arrear exceeding one half-year's 
 rent, it shall not be in the power of the heir or successor to take 
 up the lease, except with the consent of the landlord, but the 
 same shall, in the landlord's option, come to an end at the first term 
 of Whitsunday thereafter ; and it is hereby stipulated, that in the 
 event of this lease being, in consequence of the bankruptcy or insol- 
 vency of the tenant, or his voluntary divestiture, brought to a termina- 
 tion before the natural issue, then the whole straw of the crop, and the 
 whole dung on the farm in the year when the lease is so terminated, 
 and also all the grass on the farm, whether of the first or any year, 
 shall become the property of the landlord, who shall be entitled thereto 
 without payment : And further, the tenant binds and obliges himself Removal, 
 to flit and remove himself and his family, servants, goods, and effects, 
 furth and from the lands and others hereby let at the expiry of this 
 lease, without any warning or process of removing; and failing his doing 
 so, then the tenant binds and obliges himself to pay the yearly rent 
 of pounds sterling for each year he shall possess after 
 
 the expiry hereof without a new agreement in writing, and at that rate 
 for any shorter period, and that not as a penal but as a pactional rent, 
 and without prejudice to the right of the landlord to insist in a sum- 
 mary removal or ejection in course of law: And the landlord and Penalty, 
 tenant bind and oblige themselves and their foresaids to imple- 
 ment and perform their respective parts of the premises to each 
 other, under the penalty of pounds sterling, to be paid by 
 
 the party failing to the party observing, or willing to observe the same, 
 over and above performance; and they consent to the registration 
 hereof, and of any decree-arbitral to be pronounced in virtue of the 
 provisions herein contained, for preservation and execution. — In Testing-clause, 
 witness whereof, these presents, consisting of this and the 
 preceding pages, are subscribed by the parties hereto as follows, 
 videlicet : — 
 
 Schedule keferred to in the Foregoing Lease. 
 
 1. Lime applied to the land. 
 
 Six-tenths of cost after first crop ; five-tenths after second crop ; four- 
 tenths after third crop; three-tenths after fourth crop; two-tenths 
 after fifth cost ; and one-tenth after sixth crop. Exhausted in seven 
 years. 
 
 2. Crushed bones and bone meal. 
 
 Half of cost after first crop, and one-fourth of cost after second crop. 
 Exhausted in three years. 
 
 3. Dissolved bones, bone phosphates, guano, and police manure. 
 One fourth of cost after first crop. Exhausted in two years. 
 
 4. Other artificial manures. 
 
 Exhausted by first crop ; no compensation. 
 
 2 T 
 
658 
 
 LEASE OF A SHOP. 
 
 [appx. 
 
 5. Feeding stuffs. 
 
 For linseed, cotton, and rape cakes, or for other purchased sub- 
 stances of equal manurial value, consumed on the holding by cattle 
 and sheep during the last year of the lease, one-third of the value 
 thereof. 
 
 1 VoucLers ia all cases to be produced, and also an analysis by a competent analytical chemist, if 
 required The arbiters and overaman may take such other evidence as they may think necessary. 
 
 2 No allowance to be made for carting lime, manure, or feeding stuffs, or for applying the lime or 
 manure to the land. 
 
 No. XVI. 
 
 LEASE OF A SHOP.' 
 
 Parties. TT is contracted, agreed, and ended by and between Mrs. A B or C, re- 
 
 X siding at , widow of the deceased Thomas C, merchant in 
 
 , as sole accepting tutrix of A 0, her son, proprietor of the sub- 
 jects and others after mentioned, conform to deed of nomination by the 
 said deceased Thomas C in favour of her, and of certain other parties 
 who declined to accept, dated the day of in the year 
 
 , and recorded at upon the day of , on 
 
 the one and first part, and D, E, F, and G, all merchants in 
 and carrying on business there as merchants, under the firm of H & 
 
 Letting. Company, on the other and second part : That is to say, the said first 
 
 party, as tutrix foresaid, has set, and subject to the conditions, provisions, 
 and declarations after mentioned, and in consideration of the tack-duty 
 and other prestations after specified, she hereby sets, and in tack and 
 assedation lets to the said D, E, F, and G, and the survivors and sur- 
 vivor of them, in trust for behoof of their said firm of H & Company, 
 and partners thereof, present and future, according to their respective 
 
 Subject let. rights and interestst herein. All and whole the warehouse and shop 
 belonging in property to the said A 0, situated upon the south side of 
 I Street of I, and entering by No. of that street, together with the 
 
 counters, shelving, fittings, and whole other fixtures of the said ware- 
 house and shop belonging to the said A C, conform to inventory thereof 
 endorsed hereon, and signed as relative hereto, all as presently possessed 
 by the said second parties, and that for the space of ten years from and 
 
 Duration. after the term of Whitsunday in the year 18 , which is hereby declared 
 
 Entry. to have been the term of entry of the said second parties to the premises 
 
 in virtue hereof; but subject always to this express condition, that as 
 before the expiry of the said period of ten years the said A will have 
 attained fourteen years of age, and my tutory will then have expired, it 
 shall be in his power on attaining that age, either to confirm this lease 
 for the remainder of the said period of ten years, in which case it shall 
 subsist and continue, or to repudiate this lease, in which case it shall 
 terminate at the term of Whitsunday next ensuing his attaining the 
 said age of fourteen years : Tn the peaceable possession of which subjects 
 the said first party, as tutrix foresaid, hereby binds and obliges the said 
 A C to maintain and defend the said second parties until he shall attain 
 
 1 Taken from 2 Hunter, 614. 
 
NO. SVI.] LEASE OF A SHOP. 6o9 
 
 the said age of fourteen years : But providing and declaring always, as it Assignation 
 is hereby expressly provided and declared, that the said second parties ""^i sublease 
 shall not be at liberty, without the previous consent in writing of the ^'^°™'^^''- 
 said A 0, or his heirs or assignees, to assign this lease or any part 
 thereof, or to subset the premises hereby let, or any part thereof; or in 
 case of the second parties taking other premises during the currency of 
 this lease, to leave the premises hereby let, or any part thereof, vacant. Inversion, &c. 
 or to use the premises hereby let for any other purpose than that for 
 which they are at present used, or to deposit any goods or merchandise 
 therein of a more hazardous kind than those presently placed therein, 
 so as to affect the insurance of the subjects against fire ; and in the 
 event of the said second parties contravening all or any of the said pro- 
 hibitions, not only shall they be liable to the said A C or his foresaids 
 for all loss and damage he or they may thereby sustain, but over and 
 above exacting the said loss and damage the said A C and his foresaids 
 shall be entitled, if he or they see fit, forthwith upon such contravention 
 to put an end to this lease : For which causes, and on the other part, Rent, 
 the said D, E, F, and G hereby bind and oblige their said company of 
 H & Company, and themselves as partners thereof and as individuals, 
 and their respective heirs, executors, and representatives whomsoever, 
 all conjunctly and severally renouncing the benefit of discussion, to con- 
 tent and pay to the said A C and his heirs and assignees the sum of 
 £ sterling of yearly rent or tack-duty for the said subjects 
 
 hereby let, and that half-yearly at two terms in the year, Whitsunday 
 and Martinmas, by equal portions, beginning the first payment at the 
 term of Martinmas next in the year 18 for the half-year immediately 
 preceding, and the next payment thereof at Whitsunday thereafter, and 
 so forth half-yearly and termly thereafter during the continuance of the 
 lease, with a fifth part more of each term's payment of liquidate 
 penalty in case of failure in the punctual payment thereof, and the legal 
 interest of each term's payment from the time the same becomes payable 
 during its non-payment : And further, the said second parties hereby Maintenance, 
 accept of the premises as in good tenantable repair, and bind and oblige 
 themselves to keep them during the currency of this lease, and to leave 
 them at the termination thereof, in the like good tenantable repair, 
 ordinary tear and wear only excepted : And it is hereby expressly Alterations, 
 provided and declared that the said second parties shall have no right "' 
 to make any alterations or improvements on the premises hereby let 
 without the previous consent in writing of the said A or his foresaids, 
 and that any such alterations or improvements, as well as any ordinary 
 repairs which the said second parties may make, shall be done at their 
 own expense, and at the sight and to the satisfaction of K, architect in 
 , whom failing, of any other architect to be named by the 
 said A C or his foresaids, such architect being hereby specially em- 
 powered to see to the due execution thereof: And further, the said Eemoval. 
 second parties hereby bind and oblige themselves to remove themselves, 
 their servants, and dependants, goods and gear, furth and from the 
 whole premises hereby let at the expiration of the foresaid period of ten 
 years, or at the earlier termination of this lease, as aforesaid, and to 
 leave the same void and redd, to the end and intent that the said A 
 or his foresaids may then enter thereto, and peaceably possess and enjoy 
 or let the same at pleasure, and that without any warning or process of 
 removal for that effect ; and in the event of the second parties failing sn 
 
660 LEASE OF A SHOP. [appX. NO. XVI, 
 
 to remove, they shall be bound, and hereby bind and oblige themselves, 
 Additional to pay to the said A C or his foresaids the sum of £, sterling of 
 
 rent. yearly rent for each and every year or part of a year they shall continue 
 
 so to possess the said subjects after the expiry of the said period of ten 
 years, or the earlier termination of this lease, as aforesaid, with interest 
 and penalty corresponding thereto, as aforesaid, but without prejudice 
 to the said A C or his foresaids enforcing the second parties' removal by 
 summons of removing and ejection, or other legal proceedings : And 
 lastly, the said first party binds and obliges the said A C and his fore- 
 saids, and the second parties bind and oblige themselves, to implement 
 and fulfil their respective parts of the premises to each other, under the 
 penalty oi £ , to be paid by the party failing to the party observ- 
 
 ing or willing to observe the same, over and above performance. And 
 they consent to the registration, <fec. 
 
INDEX. 
 
 Abandonment, by heir of lessee, 153 ; dam- 
 ages thereby involved to landlord, liability 
 for, 154 ; damages for a., 212. 
 
 A. of objection to inversion, 216 ; of claim 
 for improvement compensation, 232 ; a. 
 where infringement of lease persisted in, 
 395 ; a. of claim for pactional rent, 399 ; 
 of right to compensation for damage 
 through increase of game, 424 ; of right 
 to eject, 495 ; a. of possession under lease 
 bars tacit relocation, 511. 
 
 A. of possession in case of disrepair, 221. 
 A. of lease by bankrupt tenant, 530 ; by 
 his trustee, 533. 
 
 Abatement of rent by tutor requires special 
 powers, 12 ; a., how instructed, 100 ; u,. 
 agreed on, 296. 
 
 Stipulation as to o., a real condition, 408, 
 410. 
 
 Abatement of nuisance, 537, 542, 546. 
 
 Absolute disposition with back bond, 45. 
 
 Acceptance of renunciation, express or im- 
 plied, 450. 
 
 Accessorium seguitm' principale, 159, 482. 
 
 Accident, iu questions of repairs, 220, 223 ; 
 a. no defence to claim for improvement 
 compensation, 229. 
 
 Accountant of Court, report by, 13. 
 
 -Acknowledgment of intimation of assignation, 
 167 ; of intimation of warning to remove 
 from house, 500. 
 
 Acknowledgment, writs of, registerable, 144, 
 173, 174, 576. 
 
 Acquiescence by landlord in miscropping, 
 391 ; by tenant in short quantity, 391 ; by 
 tenant in damage by game, and by flood- 
 ing, 392 ; in deviations from cropping 
 regulations, inferring abandonment of claim 
 for pactional rent, 400. 
 
 A. of landlord in assignation or sub- 
 lease, 163, 165 ; in inversion, 216. 
 
 A. showing departure from sequestra- 
 tion, 360. 
 
 Act 1449, c. 17, 117 seq. 
 
 Act of God, see Damnum fatale. 
 
 Act of Sederunt, 1756, 459, 461, 477, 484 ; 
 and see after List of Statutes. 
 
 Action by tenant and (or) landlord against 
 third parties, 538 ; by third parties against 
 tenant and (or) landlord, 541 ; by tenants 
 on same estate inter se, 547. 
 
 Action of removing, see Removing. 
 
 Ad factum prcestandvm, obligation, summary 
 diligence on, 318-9. 
 
 Additional rent, whether secured by hypothec, 
 323 ; and see Penalty. 
 
 Adjudication of landlord's estate, effect on 
 his powers, 46; litigiosity,46 ; recording, 46. 
 
 Adjudication of lease, 48 ; imless assignees 
 or adjudgers are excluded, 48 ; operated 
 by bankruptcy sequestration, 529. 
 
 Adjudger, infeft, preferred to lessee of 
 uninfeft debtor, 43 ; title to sue removing, 
 446 ; common adjudgers suing a removing, 
 75. 
 
 Administration, rules of good, 6 ; husband's 
 right of u.., 23 ; ordinary and extra- 
 ordinary o. under entails, 51 ; a. by trustees, 
 25 ; and see Trustees. 
 
 Administrators, of landlord or tenant, 
 affected by Agricultural Holdings Act, 
 240, 596. 
 
 Admiralty leases, 28. 
 
 Admission, judicial, in proof of yearly lease, 
 104 ; in proof of reduction of rent, 296. 
 
 Adoption of lease by tenant's trustee in 
 bankruptcy, 532-3. 
 
 Advance, payment of rent in, collusive, 280. 
 
 Advertisement as foundation for m inter- 
 ventus, 108 ; a. of burgh leases, 33. 
 
 After-stamping, 92. 
 
 Agreements saved in Agricultural Holdings 
 Act, 240, 595. 
 
 Agricultural leases by trustees, 39; ffl. sub- 
 jects in questions of hypothec, 326, 334, 
 347 ; irritancy in leases of the same, 459, 
 466 ; a. management, 364. 
 
 Agbicdltukal Holdings Act, 1883, 237 
 seq., 583 seq. 
 
 Passed 25th Aug. 1883 ; commencement 
 1st Jan. 1884 ; the mischief to be remedied 
 —exhaustion of the soil periodically, 238, 
 584. Remedy — compensation for improve- 
 ments, 239, 584. 
 
662 
 
 INDEX. 
 
 Agricultural Holdings Act, 1883 — eontmued 
 
 Subjects, holdings — agricultural or pas- 
 toral, or mixed, or in whole or part a 
 market-garden, 239, 594 ; not an inn with 
 adjoining ground, 239 ; not if held during 
 continuance in landlord's employment, 239, 
 594 ; and onli/ if let for years, lives, lives 
 and years, or from year to year, 239, 595. 
 
 Persons affected — 
 
 Landlords (those receiving rents and 
 profits) including a body of persons or cor- 
 poration, 239, 596 ; and therefore includ- 
 ing an over-lessee, 239 ; though limited 
 owners, 239, 590, 594; or the Crown, 239, 
 594 (through the Woods and Forests Office); 
 or a parish minister (with presbytery's 
 approval), 240, 594 ; or public trustees (with 
 Home Secretary's approval), 240, 594. 
 
 Tenants (holders of land under a lease), 
 240, 596. 
 
 Representatives and guardians of both 
 parties, 240, 596. 
 
 Interference vnth existing rights, 240. 
 Rights saved; Act exclusive where avail- 
 able, 240, 595 ; agreement or custom going 
 beyond -its scope not affected, 240, 595. 
 Agreement as to compensation, if not for 
 substituted compensation, is void, probably 
 including agreement that there shall be 
 none, 240, 594 ; ousting of the statute in 
 old and new leases, 241. 
 
 Compensation for improvements, 241 seq., 
 684 seq. 
 
 ' Inherent capabiUties of the soil,' 241 ; 
 scheduled improvements, 241, 596 ; (1) 
 Landlord's improvements (building, silo, 
 permanent pasturage, irrigation, gardens, 
 roads and bridges, water-supply, fences, 
 reclamation of waste, embankment), 241, 
 696. (2) Drainage, 241, 596. (3) Tenants' 
 improvements (bones, claying, blaes, lime, 
 marl, artificial manure, feeding-stuffs con- 
 sumed by cattle, sheep, or pigs), 242, 596. 
 
 Rule of compensation — on quitting at the 
 determination of the tenancy, the value of 
 the improvement to an incoming tenant, 
 apart from what is due to the inherent 
 capabilities of the soil, 242, 584. As to im- 
 provements made during more than one 
 tenancy, 242, 595 ; relief to incoming tenant 
 paying instead of landlord, 242, 595. 
 
 Ij executed before \st Jan. 1884, compen- 
 sation only if within ten years before that 
 date (Sched. III.), and also provided (as to 
 Soheds. I. and II.) landlord consented to 
 the improvement before 1st Jan. 1885, 
 243, 584. 
 
 // new im,provem,ents : — 
 
 Sched. I. Only if landlord before the 
 execution consented to the improvements, 
 unconditionally or on terms of substituted 
 compensation, 248, 585. 
 
 Sclied. If. Only if tenant gives landlord 
 3-2 months' notice of, before beginning, 
 draining, 243, 585 ; when (a) tenant may 
 agree to proceed for substituted compensa- 
 tion, or (6) landlord may proceed and charge 
 
 Agricultural Holdings Act, 1883 — continued. 
 five p.c. on outlay or twenty-five years' ter- 
 minable annuity ; or (c) tenant may pro- 
 ceed and rely on the Act, 244 ; respecting, 
 however, any existing limitation of outlay 
 in an old lease, 244. What of expense of 
 carriages and servants' wages ? 244. 
 
 Substituted compensation, 244 : (a) Where 
 in old leases specific compensation is pro- 
 vided for in them or by custom, 244, 585 ; 
 (6) in other cases, where a particular agree- 
 ment secures ' fair and reasonable compen- 
 'sation,' 245, 586; scales of compensation 
 issued by Farmers' Societies, their value, 
 245 ; period of exhaustion, 245 ; remanent 
 value, 245. 
 
 Reductions.- — by benefit allowed in consid- 
 eration of executing the improvements, 245, 
 586 ; by value of manure which would have 
 been produced by consumption of crops sold 
 off during last two years, 245, 586. 
 
 Deductions —rent, taxes, rates, drainage 
 money, insurance premiums ; breach of 
 contract ; deterioration (in certain cases 
 within the last four years), 246, 586. 
 
 Procedure, 246 seq., 587 seq. : — 
 
 Notice of claim by tenant four months be- 
 fore determination of tenancy, 246 ; coun- 
 ter-notice, 246 ; reference to referee, or 
 two referees and oversman, 247 ; vacan- 
 cies) 247 ; revocation, 247 ; proof on oath, 
 247 ; award in writing, within limited 
 time, specifying the improvements, the 
 time of executing them, the value of each 
 and date of exhaustion (if estate to be 
 charged), 247; expenses subject to taxa- 
 tion, 247 ; date of payment of sum awarded, 
 247 ; recovery thereof, 248 ; duty of sheriff 
 (without appeal, 247-8, 250), failing agree- 
 ment to appoint referee or oversman, 247 ; 
 extend time for award, appoint guardians, 
 determine appeals taken within seven days 
 of the award on certain grounds, 248. 
 
 Determination of substituted improve- 
 ments, 248, 589. 
 
 Charging compensation on estate, 248, 
 590 ; by bond and disposition in security 
 or bond and assignation in security, 248 ; 
 preferences ; borrowing from Land Im- 
 provement Companies, 249. 
 
 Miscellaneous, 249 ; — 
 
 No restriction as to size of holdings, 
 249 ; not concerned with leases at will or 
 for less than a year, 249 ; no direct benefit 
 to a sitting tenant, 249 ; other rights 
 saved, 249 ; measure of compensation, 249 ; 
 procedure exclusive, 250 ; great expense 
 in working, 250. 
 
 A. H. Act — As to bequest, 150, 592 ; see 
 Succession. As to fixtures, 267, 593 ; see 
 Fixtures. As to irritancies, 461, 591 ; as to 
 removings, 479, 484, 592 ; as to notice of 
 intention of tenant to remove, 508, 592 ; 
 Act saved in Crofters Act, 520, 627. 
 Ale-house,an inversion undera farm lease,214. 
 Alien may now grant and take leases, 19. 
 ' AKenate,' in entails, 49. 
 
INDEX. 
 
 663 
 
 Alienation, prohibition against, in entails, 
 49 ; strikes at leases, 49. 
 
 Allowances given in apportioning rent, 312. 
 
 Alteration, on contract, subsequent to its 
 date, how proved, 98 ; a. on premises, 
 when an inversion, 215. 
 
 Ambiguity in lease, how cleared up, 97. 
 
 Andermas, entry, 301. 
 
 Annexation of fixtures, a physical fact, 259. 
 
 Annual lease, 103. See Proof. 
 
 Apocha trium annorum, 284. 
 
 Apparent heir, receiving rent, 280 ; his right 
 to rents, 305. 
 
 Appeal baurred under Agricultural Holdings 
 Act, except from referee to sheriff, 247-8, 
 250, 590 ; incompetent in cases of remov- 
 ing, 495. 
 
 Appoktionment op Rent, 304 seq. 
 
 1. Of liability for rent, among tenant's 
 successors, 304 ; uhi commodum ibi incom- 
 modumj according to the legal terms, and 
 according to the enjoyment of fruits and 
 possession by heir and executor, cedent and 
 assignee, 304 ; crops, annual and not ; hay 
 of second crop, 304-5 ; rules altered by 
 will of deceased tenant, 305. 
 
 2. Of right to rent, among lessor's suc- 
 cessors, 305. 
 
 {a) At common lair, right of apparent heir, 
 305,nowsuperseded by law vesting personal 
 right through survivance, 306. By legal 
 terms, 306 ; except where rents are fore- 
 hand and therefore in bonis dcfvncti at his 
 death, 306 ; rule applied between fiar and 
 liferenter's executors, fiar's heir and 
 executors, widow and fiar's executors, 306; 
 unless altered by will of deceased, 306. 
 Examples in farm leases — according to 
 crop and survivance of Whitsunday (half), 
 and Martinmas (whole), 307 ; grass-parks, 
 mills, houses, 307 ; mines (lordship), 308. 
 The exception in case of forehand rents, 
 its meaning, 309. Examples as between 
 fiar's heir and executor, heir of entail and 
 widow's locality, heir and executor of heir 
 of entail in possession, 309. Heir of entail 
 cannot alter the sett so as to benefit his 
 executors, 309. Survivance of the term- 
 day means living into any part of it, 
 309. 
 
 (6) Under the Apportionment Acts, 1834 
 and 1870, 310. 
 
 Old Act, of limited scope, superseded by 
 the new Act, 310. Kents, like interest on 
 money lent, are now considered as accruing 
 from day to day, 310 ; the apportioned 
 part is recoverable when the whole be- 
 comes payable, 310 ; the whole is recovered 
 by the person in right, if there had been 
 no a., and the apportioned part to be re- 
 covered from him, 311 ; this gives right to 
 part of rent of broken term, effeiring to 
 survivance of the proprietor, &c., into it, 
 311 ; legal terms still to be looked to, 311 ; 
 question whether Act takes away from 
 defunct and his personal representatives 
 any benefit they would have had {e.g., to 
 
 Apportionment of rent — continued. 
 
 rent of houses), 311. Examples in grass- 
 farms, arable farms, and forehand rent, 312. 
 
 Just allowances to be made, 312 ; of a 
 jointure, if not paid in advance, 312-3 ; 
 improvement money, iuterest on a bond or 
 ecclesiastical assessments, 313. 
 
 (c) Between vendor and purchaser, 313 ; 
 according to date of entry and legal terms, 
 
 313 : unless forehanded, 314 ; and looking 
 to the words of the contract itself alone, 
 
 314 ; whether apportionable, 314-5. 
 
 A. where land taken compulsorily, 203. 
 A. of liability, arising out of real con- 
 ditions, 410 ; of rights so arising, 410. 
 Approval by landlord, of assignee or sub- 
 tenants, 163, 165. 
 Arable farms, entry to, 300 ; payment of 
 
 rent of, 303, 306, 312. 
 Aebitration, 402. 
 
 In agricultural leases, to discover values 
 of dung, straw, waygoing crop, deviations 
 from course of cropping, of labouring 
 fallow break, grass seeds, resumed land, 
 403. 
 
 In mineral leases wider scope, given to 
 the interpretation and fulfilment of the 
 lease, 403-4. 
 
 Ancillary to the lease, coeval with it, 
 not going beyond ish, 404 ; exhausted only 
 by award, 405 ; oversman, 405 ; arbiter 
 unnamed, no objection where values only 
 to be ascertained, or as to foreseen dis- 
 putes, 405 ; but fatal if powers are wider, 
 406. 
 
 Procedure: in valuations not strict — 
 e.g., devolution to oversman of points only 
 as to which arbiters differed, 406. 
 
 A. to ascertain compensation for re- 
 sumption, 195 ; as to repairs, 223 ; to 
 ascertain improvement compensation, 232 ; 
 to assess damage through increase of 
 game, 427 ; a. in the Crofters Holdings 
 Act, 516, 627 ; in Agricultural Holdings 
 Act, 247. 
 
 A. clause a real condition, 409. 
 Argyll's, D. of. Entail Act, 236. 
 Aries, in bargain for yearly lease, 104. 
 Arrear, assignee liable for, 178 ; involving 
 irritancy or caution, 459-67 ; dealt with 
 under Crofters Holdings Act, 518-9, 620. 
 Arrestment, 536 ; a. of rent, 282. 
 Articles, of lease, 96 ; u. of roup of lease, 
 90 ; a. of roup, as foundation for rei in- 
 ten-entus, 108. 
 Artificial manure, a tenant's improvement in 
 
 Agricultural Holdings Act, 242, 596. 
 Artizans and Labourers Dwelling Acts, 36, 
 
 563. 
 Artizans and Labourers Dwellings Improve- 
 ment Acts, 36, 563. 
 Assessments allowed for in apportioning 
 
 rent, 313 ; and see Burdens. 
 Assign, see Assignation. 
 Assignation, 156 seq. See also Sublease. 
 The proper mode of transmitting the 
 tenant's right, 156; defined; effect of 
 
664 
 
 INDEX. 
 
 Assignation — contmued. 
 
 offer to assign ; distinguished from sub- 
 lease, 156. 
 
 1. Power to assign and sublet, 157 ; 
 delectus personce makes a presumption 
 against the power, 157. 
 
 Express power, 157 ; effect of power to 
 ' output ' and ' input ' tenants, 157 ; power 
 not gathered from presumed intention, 
 157. Sublease may embrace whole subject 
 let, 157. Neither power involves the 
 other, 157-8. 
 
 Implied power; in liferent leases, 158 ; 
 farm leases of extraordinary duration, 
 158 ; what is ordinary duration — nineteen 
 or twenty-one years, 158 ; thirty-seven or 
 thirty-eight years extraordinary, 158 ; 
 leases of urban tenements, 159 ; what are 
 urban and what rural, 159 ; accessories to 
 principal subject, 159. Does the exception 
 apply to shops, factories with machinery 
 great and small, 159-60 ? where house 
 accessory to an exclusive privilege, 160 ; 
 houses let for year or less, 160 ; furnished 
 houses, 160 ; mines, 160 ; game, 161. 
 
 Express exclusion of assignees and sub- 
 tenants, 161 ; does not prevent propulsion 
 to tenant's heir, 161 ; or exclude Crown 
 and its donatary, 161 ; and may be 
 waived by the landlord, 161. Exclusion of 
 assignees does not exclude subtenants, and 
 vice versd, 162. The exclusion strikes at 
 bankruptcy as well as voluntary trustees 
 162 ; and at partners, 162. Express ex- 
 ception in case of landlord's approval does 
 not alter the position, 162-3 ; ' without 
 'landlord's consent,' 'unless specially 
 ' approved,' 163 ; the landlord has stiU the 
 absolute control, 163. Evasion of the 
 exclusion by covert a., under name of 
 trust or management, 164. Irritancy, 164. 
 Exclusion given up by landlord, expressly 
 or by acquiescence, or conditionally, 165 ; 
 jus tertii of tenant or a third party to 
 object, 165. 
 
 2. Completion of ass{gnations,1S5; form of 
 a., 165; translation, 165 ; retrocession, 165. 
 
 (a) As between cedent and landlord, 166 ; 
 by intimation, 166 ; bond fide, 166 ; form 
 of intiination, 166 ; old forms, before 
 notary, by schedule and protest, letters of 
 supplement, and edictal intimation, 166 ; 
 new forms — ^by notary, or by post followed 
 by acknowledgment, 166-7; equivalents — 
 acknowledgment, citation, charge, pro- 
 duction in Court, not private knowledge, 
 nor recording, nor parole, nor reference to 
 oath, 167. 
 
 (6) ]n questions with third parties, 167. 
 When subjects are under sublease — levy- 
 ing the rents, &c., 167. In other cases 
 actual possession requisite, 168 ; being a 
 real right, 168 ; whether assignation be 
 absolute, in trust, or in security for debt, 
 168 ; devices for evasion of this rule — 
 back sublease without change of possession, 
 169 ; entry in rental book, 169 ; back 
 
 Assignation — continued. 
 bond or back letter, 170 ; instrument of 
 possession, 170 ; assignation to trustees for 
 debenture-holders, 171. Kule does not 
 exclude petitory claims, 171. Pact of trans- 
 fer of possession, 172 ; latent and overt 
 acts, 172. 
 Registration of Leases Act, 172, q.v. 
 3. Sights and obligations arising out of 
 a., 177. Substitution of assignee for 
 cedent liberating the latter from future 
 obligations, 177 ; unless there be contrary 
 stipulation, 177 ; giving a personal right 
 of relief if he pays, 177 ; assignee liable 
 for arrears, 1 78 ; cedent's UabiUty remains 
 if landlord's consent is necessary and not 
 given, 178 ; effect on creditor obtaining 
 an assignation in security, 178. 
 
 A. of rents, clause of, its effect in a herit- 
 able bond, 44. 
 
 A. of joint or common lease, 75. 
 A. of long leases, registerable, 173. 
 A. to rent, in competition with infeftment 
 in the subjects, 281 ; gives action of maills 
 and duties, 320 ; carries hypothec, 323. 
 
 A. of hypothec, 324, 344, 349 ; to 
 cautioner, 361. 
 
 Prohibition against a., fenced by 
 irritancy, 470. 
 
 A. of right to a removing, carries right 
 to violent profits, 488. 
 
 A. prohibited by Crofters Holdings Act, 
 516. 
 
 A, through trust for creditors, 528 ; 
 through cessio, 528 ; through sequestra- 
 tion in bankruptcy, 529. 
 
 Assignability of lease of furnished dwell- 
 ing not presumed, 252. 
 Assignee, see Assignation. Exclusion of, 
 effect, 48. 
 
 A. may not invert possession, 216. 
 A. of tenant, his liability to improve 
 subjects, 237. 
 
 A, of landlord or tenant, affected by 
 Agricultural Holdings Act, 240, 596. 
 A. to rent, his right to hypothec, 323. 
 A. as defender in action of removing, 
 447-8. 
 Astriction to thirl, 81. 
 Asylums, 569 ; as nuisances, 382. 
 Auction of burgh leases, 33, 34, 36; old 
 mode of letting, 90. 
 
 Sale by a. allowable in a shop, 215. 
 Auctioneer, landlord's responsibility for, in 
 
 sale of sequestrated effects, 357. 
 Auctor in rem, suam, rule applied to tutors, 
 &c., 14 ; to curators, 21 ; to trustees, 40, 
 41 ; profits accruing to ward, 15. 
 Avail, just, 55. 
 
 Award, exhausting reference, 405 ; under 
 Agricultural Holdings Act, 247, 589. 
 
 Back-bond, or back-letter, explaining ab- 
 solute disposition, 45 ; grantor of disposi- 
 tion left in possession, 45 ; in assignation 
 for security of debt, 170. 
 I Backhand rent, 304. 
 
INDEX. 
 
 665 
 
 Back-letter, see Back -bond. 
 
 Bakehouses — rate, 563. 
 
 Bankbdpiot, of tenant, 48, 527 seq. 
 
 Does not terminate lease, 527; unless 
 tenant be a copartnery, 528. 
 
 Assignation of lease in bankruptcy, 528 ; 
 by voluntary trust, 528 ; by disposition 
 omnium bonorum in cessio, 528 ; by vesting 
 in trustee in sequestration, 529 ; the last 
 operating adjudication, 529. 
 
 1. As to teases excluding assignees and 
 s^ibtenants, 162, 529 — 
 
 (a) Where landlord enforces the ex- 
 clusion, 529 ; tenant may consent to sit on 
 for benefit of creditors, 529 ; provided he 
 bond fide possess, 530 ; and there be not 
 abandonment and covert assignation, 530 ; 
 subletting, 530 ; irritancy, 530. 
 
 (b) Where landlord vs-aives exclusion, 
 530 ; equivalent to no exclusion, except 
 that the waiver may be conditional, 530-1 ; 
 and tenant cannot object to the condition, 
 631. 
 
 2. As to leases where there is no ex- 
 clusion, 531 — 
 
 Trustee may elect to take lease up or 
 abandon, 531 ; if the former he becomes 
 personally liable (along with the creditors 
 supporting him) for the rent and presta- 
 tions, 532 ; excusable ignorance, 532 ; bills 
 granted, 532 ; adoption conditional, with- 
 out personal liabilaty, or for current year, 
 532 ; proof of fact of adoption, 532-3. 
 
 In case of abandonment, damages due ; 
 measure thereof, 533 ; irritancy taken 
 advantage of gives no claim for damages, 
 533. 
 
 B. made a conventional irritancy, 468 ; 
 an irritancy under Crofters Holdings Act, 
 517,618. 
 
 B. of lessor, 47 ; does not prevent 
 him leasing, 47 ; trustee in sequestration 
 has option to take subject up or not, 47 ; 
 removing by landlord, if not, 47 ; leases to 
 conjunct and confident persons, 47 ; after 
 diligence, 47 ; fraudulent and undue pre- 
 ferences, 47 ; sequestration of landlord's 
 estate, 48 ; powers of landlord's trustee, 
 48 ; liabilities if he takes up the subjects, 
 48. Retention of rent in balancing 
 accounts therein, 289. 
 
 Bams, as fixtures, 260 ; removing from, 502. 
 
 Barony, burghs of, leases by, 35. 
 
 Barriers, in mines, 388. 
 
 Bed, as a fixture, 263. 
 
 Beer-house prohibited, 383. 
 
 Beer-shop prohibited, 383. 
 
 Bell, of factory, as a fixture, 260. 
 
 Beltane, entry at, 301. 
 
 Bequest of lease, in general words, 149 ; 
 statutory b. in Agricultural Holdings Act, 
 sect. 29, 150, 592 ; in Crofters Holdings 
 Act, 522, 623. 
 
 Bill, undischarged, presumption of debt by, 
 not redargued by the apocha, 285 ; not 
 subject to hypothec, 328 ; taking a 6. no 
 proof of departure from sequestration, 360. 
 
 Bill — continued. 
 
 B. granted for rent by tenant who be- 
 comes bankrupt, 532. 
 
 Blaes, spread, a tenant's improvement in 
 Agricultural Holdings Act, 242, 596. 
 
 Toll, measure of grain rent, 277. 
 
 Bona fides in payment of rent, 279 ; in lease 
 necessary to carry hypothec, 325 ; a defence 
 to claim for violent profits, 490 ; when it 
 ceases, 490-1. 
 
 Bonce fidei contract, lease a, 88. 
 
 Bond and assignation in security, charging 
 estate under Agricultural Holdings Act! 
 249, 590. 
 
 Bond and disposition in security, rights of 
 landlord and creditor under it, 44 ; effect 
 of clause assigning rents, 44 ; maills and 
 duties founded on it, 44, 45 ; possession 
 taken by creditor, 44, 45 ; no right to 
 remove debtor's tenants or debtor, 45 ; 
 charging estate under Agricultural Hold- 
 ings Act, 248. 
 
 Bonds not subject to hypothec, 328. 
 
 Bones, a tenant's improvement under Agri- 
 cultural Holdings Act, 242, 590. 
 
 Book-case, as a fixture, 263. 
 
 Books, business, not subject to hypothec, 
 333. 
 
 Boring, as rei inlerventus, 115. 
 
 Bowing of cows, 255. 
 
 Box-border, as a fixture, 262. 
 
 Breach of condition in lease, how legalised, 
 99 ; of sequestration, 355. 
 
 Breaks, 440, 453 seq. 
 
 Power to renounce or resume optional 
 to landlord or tenant, or both, 453 ; dis- 
 tinguished from irritancies, 453 ; intima- 
 tion of the option, 454 ; settlement of 
 rights, 454 ; provision for readjustment of 
 rent, 454. 
 
 Cases where option was doubtful, 454. 
 Landlord's option, 454 ; a real condition 
 of the lease, transmissible to singular suc- 
 cessors, 454 ; option to bankrupt though 
 under trust for creditors, 455 ; to heir, 
 455 ; intimation, 456 ; no reason need be 
 given, 456. 
 
 Remedy by removing on stipulated or 
 sufficient warning, 456, 457 ; at a usual 
 term as a rule, 457 ; what is a reasonable 
 time ? 457. 
 
 Violent profits, 458. 
 
 Adjustment of rights at outgoing, 458. 
 
 Brewers' monopoly, 383. 
 
 Bridge, a landlord's improvement in Agricul- 
 tural Holding Act, 241, 596. 
 
 Brothel, as a nuisance, 381. 
 
 Building as rei interventus, 115 ; b. as subject 
 of lease, 80 ; as subject of real right of 
 lease, 120 ; b. on farm, insurance of, 210 ; 
 6. a landlord's improvement in Agri- 
 cultural Holdings Act, 241, 596 ; b. as 
 fixture, 260, 270 ; tenants' b. on farm, 
 whether subject to hypothec, 334 ; b. 
 under Montgomery Act, 59 ; i. on farm 
 must be tenantable, 222, 
 Kestriction on 6. , 380. 
 
666 
 
 INDEX. 
 
 Building — continued. 
 
 B. leases, legal irritancy under, 466 ; 
 under Entail Acts, 62, 64. 
 BuKDENS, Public, 557. 
 
 A. Parochial. 
 
 1. P. Ecclesiastical, 657. 
 
 2. Poor-rate, 558 ; classification, 558 ; 
 deductions, 558 ; incidence of Jevy, 659 ; 
 exemptions, 659 ; correlative right to vote 
 for part of parochial board, 559. 
 
 3. School-rate, 560 ; correlative right to 
 vote for School Board, 661. 
 
 B. Parochial-iurgal. 
 
 1. Public health rate, 561 , in large burghs; 
 in small burghs and parishes, 562. 
 
 2. Kegistration of births, &;c., 562. 
 Burial grounds, 562. 
 
 Smoke nuisance, 563. 
 
 Bakehouses, 563. 
 
 Libraries, 563. 
 
 Housing of working-classes, 563. 
 
 Artisans, &c., dwellings, 563. 
 
 Pollution of rivers, 563. 
 
 Parks, 563. 
 
 C. County, and similar burgh rates, 563. 
 
 1. Police assessment, 
 [a] In counties, 564. 
 
 (6) In burghs, 564 ; special assess- 
 ments, 565. 
 
 2. County general assessment, 565. 
 
 3. Rates thrown on these, 565. 
 Dogs Act, 565. 
 
 Pedlars Act, 565. 
 Petroleum Act, 565. 
 Explosives Act, 565. 
 Food and Drugs Acts, 565. 
 Prisons Acts, 565. 
 Reformatories Acts, 565. 
 Weights and Measures Act, 565. 
 
 4. Contagious Diseases (Animals) Acts, 
 566-8. 
 
 5. Roads and Bridges Act, 668 ; extra- 
 ordinary traffic, 669. 
 
 6. Militia stores, 669. 
 Asylums, 669. 
 Valuation roll, 569. 
 Registration of voters, 569. 
 
 D. Inhabited house duty and income 
 
 tax, 570. 
 And see Relief. 
 
 Rent retained to pay p. b., 130 ; p. i. on 
 furnished dwellings, 252. 
 Burgage subjects, leases of, registerable, 
 
 173, 575. 
 Burgh, royal, as lessor, 33 ; on Act of Coun- 
 cil, 33 ; or judicial authority given to 
 factor, 33 ; auction, advertisement, notices, 
 33, 34 ; adequate consideration stipulated, 
 34 ; duration, 35; no grassum, 35. Parlia- 
 mentary B., 35. B. of regality, 35. B. of 
 barony, 35 ; Act of Council, 36 ; public 
 roup, 36 ; subject to public uses, 36. 
 Removing from premises in 6., 499. 
 B. Court, competent in ejections, 508. 
 Eurying-ground, land for, in Entail Sites 
 Acts, 66 ; rate, 562 ; right to burial-place, 
 549. 
 
 Business, prohibition of, 380-1. 
 Butchers no longer prevented being graziers, 
 18 ; b. shop prohibited, 382. 
 
 Cake, consumed, a tenant's improvement in 
 
 Agricultural Holdings Act, 242, 596. 
 Candlemas entry, 301. 
 
 Cardinal obligation of possession, effect of 
 failure to fulfil in question of retention of 
 rent, 291, 292. 
 Carriages, done by tenant, as rei interventus, 
 115 ; in regard to Agricultural Holdings 
 Act, 244, 585 ; c. as rent or condition of a 
 lease, 273. 
 Cash, not subject to hypothec, 328. 
 Caution for rent, 360 seq. 
 
 In writing, probative, or set up by rei 
 interventus, 360 ; foriri, 360 ; no benefit of 
 discussion, 361 ; guarantee to see rent 
 paid, 361 ; remedies, 361 ; relief, 361 ; 
 assignation to hypothec, 361 ; extinguished 
 by discharge, or close of tenancy, 362 ; 
 not kept up by tacit relocation, 362, 512 ; 
 material alterations in lease or its sub- 
 jects, 362 ; giving time, 362 ; septennial 
 limitation inappropriate, 362 ; transmitted 
 against representatives, 362. 
 
 C. for rent in arrear, and future rent — 
 at common law, 459 ; under A.S. 1756, 
 460 ; under Agricultural Holdings Act, 
 461, 591. 
 
 C. in suspension of charge for rent, 
 where counter-claims exist, 294 ; c. en- 
 forced by retention of hypothecated sub- 
 jects, 343 ; in landlords' sequestration, 354 ; 
 payment on obligation of c. does not elide 
 irritancy, 462. 
 
 C. in A.S. 1766, sect. 5, distinguished 
 from c. for violent profits, 489. 
 C. in suspension of removing, 496. 
 C. in application for a plenishing order, 
 351. 
 
 G. in cases of mismanagement, 396. 
 C. for violent profits. See Violent 
 profits. 
 Cautioner, on paying rent entitled to assig- 
 nation of hypothec, 323. 
 Cedent, see Assignation. 
 Cessio, made a conventional irritancy, 468 ; 
 c. of tenant as proof of title to remove 
 him, in question of violent profits, 489. 
 Change of business, inversion under lease, 
 
 215. 
 Charge for compensation expenditure under 
 Agricultural Holdings Act, 248, 592. 
 
 0. as equivalent to intimation of assig- 
 nation, 167. 
 Charity, establishment, a place of business, 
 
 381. 
 Check-grieve in ascertainment of lordship, 
 
 277. 
 Cheese, in questions of hypothec, 335. 
 Chimney-piece, as a fixture, 263. 
 Church : right of parish minister to manse 
 and glebe, 29 ; Manses, lettable only for 
 short periods, 29, and without injury, 30 ; 
 Glebes, duration of leases thereof, 30 ; 
 
INDEX. 
 
 667 
 
 Church — continued, 
 messis aementem sequitur, 30 ; statutory 
 powers to let glebe — for eleven years, 
 leaving out five acres, without grassum, 
 with consent of heritors and presbytery, 
 3 1 ; also to let on long building lease, ninety- 
 nine years, 31. Minerals under manse and 
 glebe, 31. Lands mortified to church, 32. 
 Land for c. under Entail Acts, 66. 
 C. rates, 557. 
 C. sittings, 548 ; lease or hire of, 2. 
 
 Cider-null, as fixture, 265. 
 
 Citation, as equivalent to intimation of 
 assignation, 167. 
 
 Olam, possession held, ejection from, 50i. 
 
 Claying, tenants' improvement in Agricul- 
 tural Holdings Act, 242, 596. 
 
 Clothes, not subject to hypothec if in ordinary 
 use, 329 ; guests' c, 332. 
 
 Co-adjudgers, title to sue removing, 444. 
 
 Collateral conditions, not real conditions, 
 408, 409. 
 
 C. obligation, effect of failure to fulfil, in 
 regard to retention of rent, 291, 293. 
 
 Comfort, no fixed standard of, in dwellings, 
 219. 
 
 Commission, Crofters, 515. 
 
 Commissioner, as lessor or lessee, 41 ; title 
 to sue removing, 445. 
 
 Common lease, see Joint lease. 
 
 Common property ; each owner has a veto, 
 74 ; in re communi melior est conditio 
 prohibentis, 74 ; in granting leases, 74 ; 
 and in removings, except by adjudgers, 75, 
 or of squatters, 75. 
 Pupil interested in c.p., 8. 
 O.p. in regard to leases of game, 430. 
 
 Commons, in Ground Game Act, 428, 606. 
 
 Commutation of grain, &o., rent, 275-6. 
 
 Company, see Partnership. 
 
 Compensation between rent and counter- 
 claims, personal and real, 131-2; v., as 
 discharging rent, 288 — see Kent II. 
 
 C. of debts, in question of irritancy, 
 463 ; c. pleaded in crave for juratory 
 caution being allowed, 497 ; c. for resump- 
 tion, 194-5 ; c. under Lands Clauses Act, 
 202 ; c. for waygoing crop, 371 ; for bare 
 fallow, 373 ; for dung of penultimate crop, 
 374 ; c. for damage through increase of 
 game or rabbits, 423. 
 
 C. for improvements. See Improve- 
 ments, Agricultural Holdings Act ; v. in 
 Crofters Holdings Act, 519, 520. 
 
 Completion of assignation, 165 ; of sublease, 
 174. 
 
 Composition, superior's, rent and value of 
 game included in estimating, 433-4. 
 
 Compubory sale, see Lands Clauses Acts. 
 
 Concourse of debit and credit, in compensa- 
 tion, 288 ; in retention, 289. 
 
 Conditions, not agreed to, in negotiating 
 lease, 84 ; c. attached to waiver of exclu- 
 sion of assignees, £30. 
 
 0. real and personal, see Real condition. 
 
 Conditional approval of assignee by landlord, 
 165. 
 
 Confusion of sublease in lease, 165, 176 ; 
 c. of lease with ownership, has no effect on 
 sublease, 177 ; c. causing relinquishment 
 of lease, 461. 
 
 Conjunct and confident persons, leases to, 
 47 ; in leases of entailed lands, 64. 
 
 Conjunctly and severally, liable for rent, 
 &c., among representatives, 155. 
 
 Conquest abolished, 144. 
 
 Consensus in idem pladtum, 84. 
 
 Consent of curators to minor's lease, 20 ; 
 of husband to wife leasing, 22 ; to leases 
 under entails, 61 ; of landlord to assigna- 
 tion for sublease, 162-5 ; of landlord to 
 sublease, 176 ; of landlord to assignation 
 withheld, effect of, 178 ; to inversion, 216. 
 
 Conservatory, as fixture, 262, 264, 269. 
 
 Consignation in suspension of charge for 
 rent where there are counter-claims, 294 ; 
 c. or caution enforced by retention of 
 hypothecated subjects, 343 ; in landlord's 
 sequestration, 354 ; of proceeds of sale, 
 358. 
 
 Constitution of Lease, 89 seq. 
 
 By probative writ, 89 ; missives, minute, 
 89 ; articles of roup, 90 ; promise to grant 
 or take lease, 90 ; one party bound by 
 probative writ, the other by possession 
 thereon, 91 ; rules as to probative writ, 
 91 ; stamping, 92 q.v. 
 
 Articles of lease, 96 ; how incorporated 
 in a lease, 96 ; not stamped, 97 ; binding 
 on all parties, 97 ; not inchoate agree- 
 ments, 97. 
 
 Parole not allowed to control written 
 contract, 97 ; except to clear up patent 
 ambiguity, or explain a technical meaning, 
 or show state of premises at date of lease 
 
 97 ; or to instruct alteration subsequently, 
 
 98 ; or permission to do something con- 
 travening the lease, 100, followed by rei 
 interventus, 98, 99, unequivocally referable 
 to it, 100 ; reduction or abatement of rent, 
 how proved, 100. 
 
 Cardinal parts of the contract : parties, 
 subject, rent, duration, 101 ; rent elusory, 
 in services, for payment of debt, or dis- 
 charged in whole or part ; presumed rent, 
 101. Duration, perpetual, long, uncertain. 
 If no ish, supply it if needed ; otherwise, 
 probably, the lease is only revocable 
 licence, 102 ; pumped-up water, 102. 
 
 C. of a renewal or prorogation, 133 ; of 
 sublease, 174 ; and see Proof. 
 
 Constructive annexation of fixtures, 259. 
 a trust, 14, 21, 40. 
 
 Contagious Diseases (Animals) Acts, 566. 
 
 Continuing contract, effect of lease being a, 
 in regard to retention of rent, 290. 
 
 Contra proferentem, rule of interpretation, 
 87. 
 
 Contract, Lease eegaedbd as a. 
 
 1. Consensus in idem pladtum required, 
 84 ; conditions not accepted, 84 ; parties 
 having different conditions in mind, 84 ; 
 difference between such a. suspensive 
 condition and a term of the contract, 85. 
 
668 
 
 INDEX. 
 
 Contract — continued. 
 
 2. Voidable for fraud dans causarp, 
 contractui, as to terms of contract, 85 ; 
 state of a mineral field, 85 ; challenge lost 
 by mora, 86 ; as to amount of subject ; as 
 to title of lessor, 86. 
 
 3. All parties must be bound, 87 ; 
 joint lessees, father and son, 87. 
 
 4. Interpretation — as a whole ; to find the 
 intention ; contra proferentem, 87 ; ionce 
 fidei, or stricti juris ? 87, 88. 
 
 5. Homologation and mora, objections 
 to voidable leases cut off by, 88 ; minority, 
 88 ; receipt of rent as homologation where 
 reduction is or is not necessary to remov- 
 ing tenant, 88. 
 
 6. Personal contract, becoming real by 
 statute, 88. 
 
 Contravention of entail, remedies, 57 ; of 
 
 lease, how sanctioned, 99. 
 Convenience, in questions of fixture, 262. 
 Conventional irritancies, 466 ; c. reservations, 
 
 194 ; c. terms, 303. 
 Conversion, see Inversion. 
 Conveyance to creditors by landlord, 44 
 
 seq. 
 Coppers, as fixtures, 263, 264. 
 Coppice, 69, 73. 
 Copy as foundation for rei interventus, 
 
 108. 
 Corn, growing, poinding of, 534. 
 Cornice, as a fixture, 263. 
 Corporations, as lessors, 32, 77 ; as lessees, 
 
 37 ; c. under Agricultural Holdings Act, 
 
 239, 596. 
 Cottages, workmen's, ejection from, 506. 
 Cottar defined in Crofters Holdings Act, 
 
 514, 629. 
 Council, Act of Burgh, preliminary to 
 
 leasing, 33, 36. 
 County General Assessment, 565. 
 Courtesy, title to sue removing, 445. 
 Covenant, see Condition. 
 Cover of well, as a fixture, 259. 
 Coverture, see Marriage. 
 Cows, bowing of, 255. 
 Creditors of landlord, effect on power to 
 
 lease of conveyance to or diligence by 
 
 such, 44 aeq. ; bond and disposition in 
 
 security, 44 ; effect of clause of assignation 
 
 of rents, 44 ; maills and duties, 44, 45 ; 
 
 possession taken by creditor, 44, 45 ; 
 
 removing, 45. 
 Absolute disposition with back-bond, 46 ; 
 
 disponee's powers, 46 ; disponer's powers 
 
 if left in possession, 45. 
 
 Inhibition, 46 ; does not strike at leases 
 
 of ordinary administration, 46 ; but at 
 
 others and grassums, 46. 
 
 Adjudication, efifeot depends on litigi- 
 
 osity, 46 ; statutory notice recorded, 46. 
 Ranking and sale, 47. 
 Insolvency and bankruptcy, 47 ; see 
 
 Bankruptcy. 
 Tenants secured against, by Act 1449, 
 
 118. 
 
 C. of tenant, questions with, 527 seq. 
 
 Cboptees Holdings Act, 513 seq., 617 seq. 
 
 Its origin, 613, 
 
 Definitions — Crofter, 513, 515 ; cottar, 
 514, 629 ; permanent improvements, 514, 
 629 ; holding, 514, 629 ; lease, 514, 595; 
 landlord, 514, 595 ; tenant, 514, 596 ; 
 landlord and tenant, 514, 596 ; person, 
 
 514, 696 ; sheriff, 515, 596. 
 Exceptions — Holdings during con- 
 tinuance of employment of landlord, 615, 
 628 ; as pension, 515, 628 ; as minister 
 or school-master, 515, 628 ; as innkeeper or 
 tradesman for benefit of neighbourhood, 
 
 515, 628 ; leaseholder, 515 ; feuar, 515. 
 Crofters Commission, 515, 625 ; its con- 
 stitution, 615 ; ofScers, 515 ; reports, 515, 
 625 ; sittings, 615 ; permanence except 
 that its powers to enlarge crofts expire in 
 June 1891, 515, 626 ; power to act by two 
 of their number, 515, 626 ; alternative 
 arbitration, 516, 627 ; evidence on oath, 
 616, 626 ; rules and forms, 516, 630 ; scale 
 of costs and fees, 516, 633 ; expenses of 
 cases, 516, 626, 634. 
 
 Crofters Holdings Book, 516, 627 ; Sheriff- 
 clerk, 516, 627; Sheriff - Court ( houses 
 used, 516, 626 ; decrees conform, 516, 627. 
 
 1. Security of tenure, 616, 618 ; except 
 on breach of statutory conditions, 516, 
 618 ; i.e., non-payment of rent ; assigning, 
 persistently dilapidating, deteriorating 
 soil, 516 ; subdividing, subletting, erect- 
 ing new dwelling, violating condition 
 thought reasonable by Commission ; bank- 
 ruptcy, obstructing landlord in exercising 
 reserved right, opening public-house, 517, 
 618. 
 
 Rights reserved to landlord — to mine, 
 quarry, cut timber or peats, open roads, 
 make fences and drains, reach shore, 
 inspect, take fish, game, wild birds and 
 vermin ; resume for purpose relating to 
 the good of holding or estate on com- 
 pensation, 517, 619 ; irritancy on two 
 years' arrear, or on six months' arrear, and 
 default of caution, 517, 619. 
 
 2. Fixed rent, 517, 620. 
 
 Fixed by agreement or commission for 
 seven years, 518 ; arrears dealt with, 518, 
 620 ; criteria of fairness, 518 ; taking into 
 consideration improvements, 518, 620 ; 
 though made under written agreement, 
 519 ; arrears may still be recovered 
 though removing on irritancy barred, 519 ; 
 rent to cover charge for privileges, appur- 
 tenant, 520. 
 
 3. Renunciation of tenancy, 520, 621. 
 
 4. Compensation for improvements to 
 crofters on quitting voluntarily or by 
 compulsion, and to cottars on being 
 removed, 520, 621 ; improvements being 
 permanent, suitable made by claimant or 
 a predecessor in the same family, not on 
 obligation or in violation of order of Court, 
 520, 621 ; deductions, 520, 621 ; Agri- 
 cultural Holdings Act saved, 52C, 627 ; 
 fixed by sheriff, 521 . 
 
INDEX. 
 
 669 
 
 Crofters Holdings 'Book— continued. 
 
 5. Enlargement of holdings, 521, 621. 
 On application of five or more crofters ; 
 
 by adding available land, i.e., contiguous, 
 not on farm lease, nor part of garden, 
 policy, &c., nor of small farm, nor of deer 
 forest which would be seriously impaired 
 to the loss of the district, nor land in 
 immediate vicinity of a steading, 521, 621 ; 
 value of enlargement, 522, 622 ; pro- 
 cedure, 522, 626. 
 
 6. Succession and bequest, 522j 623. 
 Eldest heir-portioner to succeed, 542, 625. 
 
 Bequest to member of same family, 522, 
 623; 'family,' quid? 522-3. If remote 
 relative, landlord may prefer to use croft 
 to enlarge other crofts, 522, 624 ; pro- 
 cedure for defeating and maintaining the 
 bequest, 522-3, 624. 
 
 Title of crofter to sue removing, 447. 
 'Crofter' defined, 513, 629. 
 Crop, criterion of right to rents, 302-304, 
 307 ; annual or not, 304 ; in questions of 
 hypothec, 335, 338, 347, 352. 
 
 Rotation of c, 365, 367 ; waygoing, 369, 
 391. 
 Cropping clauses, 364, 391, 394. 
 Crown, as lessor of land, 25 ; through Woods 
 and Forests Department, 26 ; leases 
 for thirty-one years, 26 ; leases of mines, 
 26 ; grassum, 26 ; building leases, 26 ; 
 royalties, 27 ; distraint, 27 ; foreshore in 
 management of Board of TVade, 27 ; re- 
 cording, 27 ; leases of salmon fishings, 27 ; 
 to landholder ex adverso the first offer, 27 ; 
 duration, 27 ; leases of foreshore, oyster 
 and mussel fisheries, 28 ; Admiralty, 28 ; 
 War CMfiee, 28. 
 
 C. as lessee ; through Woods and 
 Forests, 28 ; or donatary, 28 ; forfeiture, 
 escheat, ultima heres, 28 ; exclusion of 
 assignees, 29. 
 
 0. affected by 1449, c. 17—118. 
 
 C as ultima heres, 146. 
 
 C. under Agricultural Holdings Act, 
 239, 594. 
 
 0. preferred to landlord's hypothec, 331, 
 339 ; not barred by exclusion of assignees, 
 161. 
 Crows, right to destroy, 422. 
 (Mpa, 537, 542. 
 Cupboard, as a fixture, 263. 
 Curator to minors, see Minor. 
 
 Title to sue removing, 445 ; as to re- 
 nouncing leases or accepting remuneration, 
 452. 
 
 C. ad litem to minor, 21. 
 
 0. bonis to incapaces, IS ; reduction of 
 lease by him, 16 ; is only administrator 
 not assignee, 16 ; c.i. to minor pubes, 21. 
 
 C. of landlord or tenant affected by 
 Agricultural Holdings Act, 240, 596 ; c. 
 renouncing lease or accepting renunciation, 
 451. 
 Custom, in favour of improvement com- 
 pensation, 230, 236 ; saved in Agricultural 
 Holdings Act, 240, 244, 585, 586. 
 
 Custom — continued. 
 
 0. of district, as to waygoing crop, 372 ; 
 
 of removing from houses in burgh, 499 ; 
 
 and elsewhere, 501. 
 Customs, not subject of lease, 80, 83 ; no 
 
 hypothec, 326. 
 
 Damage, in removing fixtures, 272. 
 
 Damages, distinguished from violent profits, 
 492 ; for abandonment of lease by tenant 
 and his creditors, 333 ; by heir of tenant, 
 154 ; for breach of conditions of lease, 
 
 390 ; for contravention of entail, 58 ; for 
 disrepair, 220, 226 ; for failure to enter, 
 212; for not retaining possession, 212; for 
 outlay on faith of lease for years, 105, 115 ; 
 in eviction of sublease, 182 ; for wrongous 
 ejection, 498 ; surface d., 192. 
 
 Right passed from by acquiescence, 
 390, coming up to consent to infringe- 
 ment, 391 ; e.g., by miscropping, 391 ; 
 offer to put the land in heart before ish, 
 
 391 ; acquiescence by tenant in short 
 quantity, 391 ; and in damage by game, 
 
 392 ; or flooding, 392. 
 
 Measure of damages, 393 ; in case of 
 total eviction, 393 ; for miscropping, 394 ; 
 for retaining possession of mine after time 
 for removing, 394. 
 
 D., action of, by tenant against third 
 parties, 538 ; by third parties against 
 tenant, 541 ; by tenants on same estate, 
 inter se, 547. 
 
 Damnum fatale, in questions of repair, 220, 
 223 ; no defence to claim for stipulated 
 improvement compensation, 229. 
 
 Day Trespass Act, 414 ; tenant not struck 
 at by Act, 415 ; but farm servants and 
 inmates are, 415 ; title to complain, 415. 
 
 Deaf-mutes, as lessors or lessees, 15. 
 
 Death-bed expenses preferred to hypothec, 
 342. 
 
 Debenture, not secured on lease without 
 possession, 171. 
 
 Debt secured by reservation of rent, 101 ; 
 rent retained to pay d., 130 ; lease as 
 security for d. requires possession, 168. 
 
 Debts Recovery Court, in sequestration and 
 sale, 359. 
 
 Declarator, when required in pursuance of 
 irritancy, 470 ; d. and removing, 442, 447. 
 
 Decree of removing, 493 ; bars purgation of 
 irritancy, 465 ; obligation to remove on a 
 definite ish equivalent to, 478 ; under 
 suspension, cannot be varied therein, 497. 
 
 D. for rent, not redargued by the 
 apocha, 285. 
 
 De die in diem, rents accrue under Appor- 
 tionment Acts, 310. 
 
 Deductions from tenant's claim under Agri- 
 cultural Holdings Act, 246, 586. 
 
 Deer forest, in Crofters Holdings Act, 521, 
 622-3. 
 
 Defenders, in action of removing, 447. 
 
 Definition of lease, 1 ; a personal contract, 1 ; 
 real right arising, 1 ; lease distinguished 
 from feu, 1 ; from sale, 1 ; from family 
 
670 
 
 INDEX. 
 
 Definition of lease — continued. 
 
 settlement, 1 ; from licence, 1 ; lease of 
 ohuroh-sittings, 2 ; hire of sittings at 
 entertainments, 2 ; licence to take mineral, 
 2 ; licence to use pumped water, 2. 
 
 Delay, see Mora. 
 
 Deliberandi, tempus, 152. 
 
 DeUotus persona, 87, 88, 143; in game lease, 
 344. 
 
 Deposited articles, whether subject to hypo- 
 thec, 330. 
 
 Desertion, in questions of violent profits, 
 489 ; d. involving caution or removing, 
 460, 462, 463. 
 
 I), by a spouse, effect on power to 
 let, 24. 
 
 Destinations, 128, 147 ; in joint leases, 73. 
 
 Deterioration, set against tenants' claim 
 under Agricultural Holdings Act, 246, 
 587 ; forbidden under Crofters Holdings 
 Act, 516, 618. 
 
 Determination of tenancy, in Agricultural 
 Holdings Act, 242, 595. 
 
 Devolution to oversman, 405, 406, 587. 
 
 Dilapidation, forbidden under Crofters 
 Holdings Act, 516, 618. 
 
 Diligence, by creditors of landlord, 44 seq. ; 
 by creditors of lessee, 48. 
 
 Diminution of rental, 55, 67 ; by tutor 
 requires special powers, 12 ; under Mont- 
 gomery Act, 60. 
 
 Disability to grant or take leases, personal 
 and official, 5 seq^.; d. of heir succeed- 
 ing, 146 ; management for him or virtual 
 assignation, 146. 
 
 Discharge, in bankruptcy, of debtor does not 
 elude conventional irritancy, 469. 
 D. of caution for rent, 362. 
 D, of debt general or special, whether 
 including rent, 283. 
 
 2). of obligations inferred in renuncia- 
 tion accepted, 450. 
 
 D. of rent, see Kent II.; in questions 
 of real right, 131 ; involving abandomnent 
 of claim for pactional rent, 399 ; does not 
 vitiate lease, 101 ; by minor, 21. 
 
 Discount, whether allowed on prematurely 
 due. improvement compensation, 229. 
 
 Discussion, no benefit of, in caution for 
 rent, 361. 
 
 Dispone, prohibition in entails, 49. 
 
 Disponee of landlord or tenant affected by 
 Agricultural Holdings Act, 240, 596. 
 
 Disposition, absolute, with back-bond, 45. 
 
 Disrepair, see Repairs ; liability for d. a real 
 condition, 409 ; liability to third parties 
 for, 542. 
 
 Dissolution of partnership, effect on lease to 
 it, 78. 
 
 Distraint, in Crown leases, 26. 
 
 Diversion, see Inversion. 
 
 Divorce, effect on power to let, 24. 
 
 Dogs Act, 565. 
 
 Donatary, takes lease falling to Crown, 28, 
 29 ; d. succeeding to a lease, 146 ; d. not 
 barred by exclusion of assignees, 161. 
 
 Draft, as foundation for m interventus, 108. 
 
 Drainage, as m interventus, 115 ; d. out of 
 order, 221 ; under Agricultural Holdings 
 Act, 241, 685. 
 
 Dues, not subject of lease, 80, 83. 
 
 Dung of penultimate crop, 374. 
 
 Duration of lease, 101 ; definite d. ior lease 
 as a real right, 124 ; ordinary d. in farm 
 and other leases, 158, 298 ; extraordinary, 
 158 ; clause of d., 298 ; an unusual period 
 of d. throws onus on asserter thereof, 
 103. 
 
 D. of lease by tutors, 6; extended by 
 special powers, 6 ; of lease by minor, 20 ; 
 of lease by wife, 22 ; of lease by husband, 
 22 ; of lease by trustees, 37 ; of mortified 
 land, 38 ; by liferenter, 71 ; by Crown, of 
 salmon fishings, 27 ; by burgh, 35 ; under 
 entails, 51 ; under Kosebery Act, 58 ; 
 under Montgomery Act, 69, 60 ; under 
 Rutherfurd and later Acts, 64. 
 
 i). of sublease, 176; of leases under Agri- 
 cultural Holdings Act, 239, 595 ; of tacit 
 relocation, 512. 
 Dwelling-house, insurance of, 210 ; service 
 of warning at d., 600-1. 
 
 Earnest, in yearly lease, 104. 
 
 Edictal service of assignation, 166. 
 
 ' Effects,' in wiU, does not carry leases, 149. 
 
 Ejection, summary, as a substantive 
 remedy, 404 sej. ; different from e. as 
 executorial of a removing, 493-4; and 
 from action of ejection, 604 ; vi, clam aut 
 precario, 504. 
 
 (a) Heir of liferent tenant, 605, a vitious 
 possessor ; minister during incumbency, 
 505 ; messis sementem sequitur gives right 
 to crop actually sown and to be recom- 
 pensed for work done, 505 ; time given 
 for removing, 505. 
 
 (6) Employees or servants, 506 ; work- 
 men in factories or mines, 506. 
 
 (c) Squatters, 507. 
 
 (d) In enforcement of obligation to 
 plenish, 351, 507 ; merely suspends posses- 
 sion, 508. 
 
 Jurisdiction in Sheriff or Burgh Court, 
 608 ; discretion in allowing time to quit, 
 608. 
 
 Summary e. of assignees and subtenants 
 not acknowledged by landlord, 448. 
 
 E. where there is obligation to remove, 
 477, 478. 
 
 E. of subtenant, 182. 
 Damages for wrongous e., 497. 
 Action of e., 504. 
 Election, see Franchise. 
 Elusory rent, 101 ; in questions of real right, 
 
 129. 
 Embankment, a landlord's improvement in 
 
 Agricultural Holdings Act, 241, 596. 
 Employee, ejection of, 504, 506. 
 Employment by landlord excludes tenant 
 from Agricultural Holdings Act, 239, 594 ; 
 in Crofters Holdings Act, 615, 628. 
 Enclosing, as rei interventus, 115. 
 Endurance, see Duration. 
 
INDEX. 
 
 671 
 
 Engine, steam, as a nuisance, 382 ; as a 
 
 fixture, 264. 
 Enlargement of holdings under Crofters 
 
 Holdings Act, 521, 621, 624. 
 Entail, heir of e. in possession, powers to 
 lease, 49 seq. 
 
 Entailable subjects, 49 ; not including 
 leases, 49. 
 
 Prohibition against alienation, strikes 
 at leases, 49 ; ' alienate, dispone, put 
 ' away,' 48, 49. 
 Relaxations, 50. 
 
 (1) In the entail itself ; blundered pro- 
 hibitions, 50. 
 
 (2) Leases of ordinary administration, 
 61 ; of ordinary duration, 51 ; long leases, 
 51 ; liferent leases, 52 ; not reducible 
 merely quoad excessum, 52 ; alternative 
 duration, 53 ; new leases granted before 
 ish of old, with or without renunciation of 
 latter, 53 ; in virtue of statute, 54 ; fair 
 rent, 54 ; rent unfair fraudulently or 
 through culpable negligence, 54— as to a 
 conjunct or confident person, 54 ; diminish- 
 ing rent, 58 ; ' below the just avail, ' 55, 
 56 ; without diminution of rental, 55, 57 ; 
 without grassum, 55 ; grassum, quid ? 55 ; 
 Queensberry leases, 56 ; lease of uni- 
 versitas of large estate — a simulate trans- 
 action, 56-7. 
 
 Remedies, 57 ; irritancy : reduction : 
 purgation : damages, 57-8. 
 
 (3) Relaxations by statute. 
 
 Ordinal^ statutory powers, 58 — under 
 Xosebery Act, for twenty -one years (lands) 
 or thirty-one years (mines) without 
 grassum, omitting mansion-house and 
 policies, 58. Under Montgomery Act, for 
 agricultural improvement, 59 ; for build- 
 ing, 59 ; on certain conditions, 60 — as to 
 amount of land, enforcement of building, 
 inclusion of mansion-house, diminution of 
 rent, grassums, and date of granting, 60. 
 Under Rutkerfurd and later Acts, with 
 consents, 61 ; without consents — long 
 leases, associated with feus, 61 ; especially 
 for building, 62 ; on a continuing petition 
 to the Court of Session, 62 ; or sheriff, 63; 
 presented though the heir be a pupil, or his 
 service be contested, if he be infeft, 63 ; 
 power from sheriff to grant building leases 
 associated with feus, 64 ; for ninety-nine 
 years, reserving minerals the mansion- 
 house and policies, and without grassum, 
 after notice to next heir or his guardian 
 and report by man of skill, 64 ; subject to 
 appeal to Court of Session ; invalidity it 
 certain value of buildings be not erected, 65. 
 For public purposes, scientific or otherwise 
 publicly useful, 66 ; church, burying- 
 ground, school, playground, manse, school- 
 house, 66. Compulsory powers, 67. See 
 Minerals : Woods. 
 
 R of lease, by destination, 151 ; in 
 estate entail, 152. 
 
 Improvements under e., 233, 235-6 ; 
 Entail Sites Act, 66, 
 
 Entail — contin ued. 
 
 _ E. heir of, cannot f orerent for benefit of 
 his executors, 309 ; preferred to lessee of 
 uninfeft predecessor, 43 ; not to tenants 
 protected against him by Act 1449, 118. 
 
 Entertainment, licence to attend, 2. 
 
 Entry, in books, as foundation for rei inter- 
 ventus, 109. 
 
 H., terms of, see Terms of entry. Effect 
 of postponed e. as against singular suc- 
 cessor of landlord, 123. 
 
 Equipollents to intimation, 167. 
 
 Escheat, single, of tenant, 17 ; of rentals, 
 18. 
 
 K, liferent, of landlord, 16 ; of tenant, 
 18, 28. 
 
 Estate, books, entry in, as foundation for rei 
 interventus, 109. 
 
 B. under administration, 7 ; Pupils Pro- 
 tection Act, 7 ; e. regulations, 96. 
 
 Evasion of exclusion of assignees, 164. 
 
 Eviction, partial, acquiescence by tenant in, 
 391 ; in game lease, 435. 
 
 E, total, measure of damage for, 893. 
 B., liability for, through abatement of 
 nuisance, 546. 
 
 E. of sublease, 177, 181. 
 
 Ex lege reservations, 191. 
 
 Bxoambiug, resumption for, 194. 
 
 Exclusion of assignees and (or) subtenants, 
 161 ; if implied does not, if express does 
 prevent adjudication, 48 ; in cases of ten- 
 ant's bankruptcy, 529. 
 
 Exclusive privilege, not assignable, 160. 
 
 Execution of peace-warning, 499. 
 
 Executors of landlord, right to rents, 306, 
 309 ; to fixtures, 259. 
 
 E. of tenant ignored in destination of 
 lease to heirs and e., 144 ; liable for failure 
 of heir to enter, 212 ; for apportioned rent, 
 364. 
 
 E. of landlord or tenant affected by 
 Agricultural Holdings Act, 240, 596. 
 
 Exhaustion of agricultural improvements, 
 245. 
 
 Expenses of obtaining implement included 
 in penalty, 401 ; of reference under Agri- 
 cultural Holdings Act, 247, 250, 589. 
 
 Explosives Act, 565. 
 
 Extracts of long leases, &c., registerable, 
 173, 578. 
 
 Extraordinary administration by tutors, 10 ; 
 e. duration, 127, 158 ; e. removing, 439. 
 
 Factor as lessor and lessee, 41 ; scope of 
 authority, 41 ; 'output and input' tenants, 
 41 ; rental rights, 41 ; termination of 
 factory, 41 ; /. modifying terms of lease, 
 42. 
 
 F.'s writ, as foundation for rei inter- 
 ventus, 108 ; in proof of sublease, 176-7 ; 
 title to sue removing, 445. Factor loco 
 tuloris, see Tutor. 
 
 Factories, with machinery and steam supply, 
 leases of, 253-4 ; include a contract of 
 services, 254 ; steam supply alone, 254 ; 
 or as accessory to lease of factory, 254 ; 
 
672 
 
 INDEX. 
 
 Factories — continiied. 
 hypothec, 254, 332, 350 ; making up stop- 
 pagea, 255 ; greater and smaller gearing, 
 256 ; lease assignable and sublettable, 
 159 ; insurance, 210 ; repairs in leases of, 
 226 ; removing, 502. 
 
 Fair rent, under entails, 54 ; in Crofters 
 Holdings Act, 517, 620. 
 
 Fallow, bare, 372 ; green, 373. 
 
 Family, residence of, does not satisfy a resid- 
 ence clause, 214 ; /.in Crofters Holdings 
 Act, 522-3, 620, 621, 623, 624. 
 
 Farm-houses, removing from, at same terms 
 
 ' as from other houses, 501. 
 
 Fee, see Liferent. 
 
 Feeding-stuffs, a tenant's improvement under 
 Agricultural Holdings Act, 242, 597. 
 
 Fees fixed by Crofters Commission, 633. 
 
 Female, see Marriage. 
 
 Fences, must be tenantable, 222 ; march 
 and divisional /., 223 ; as fixtures, 266 ; 
 tenant's /. on farm, whether subject to 
 hypothec, 334 ; /. in Crofters Act, 517, 
 521, 626, 629. 
 
 Ferry, as subject of lease, 83 ; as subject of 
 real right of lease, 120 ; no hypothec, 326. 
 
 Feu distinguished from lease, 1 ; associated 
 with buUding leases of glebe-land, 30 ; 
 with long leases under Entails, 61 ; taken 
 in place of lease, 452. 
 
 Feuing, resumption for, 194. 
 
 Fiar, power to lease, 71 ; right to let mines, 
 73 ; and timber, 73 ; title to sue remov- 
 ing, 444 ; /. and liferenter's representa- 
 tives' right to fixtures, 259. See Liferenter. 
 
 Fiars prices, 277. 
 
 Fire, in questions of repair, 220, 223. 
 
 Firearms, by night, use of, 418 ; in Ground 
 Game Act, 428, 606, 607. 
 
 Firlot, measure of grain-rent, 277. 
 
 Fish, as rent, 276 ; /. reserved in Crofters 
 Holdings Act, 517, 619. 
 
 Fishery, as subject of a lease, 80, 81 ; entry 
 to, 301 ; in questions of hypothec, 334 ; 
 irritancy in lease of, 459 ; repairs in leases 
 of/., 226. 
 
 F. loans in Crofters Act, 528. 
 
 Fittings of machinery, as fixtures, 259. 
 
 Fixed rent, in Crofters Holdings Act, 517, 
 620. 
 
 Fixity of tenure under Crofters Holdings 
 Act, 616, 620. 
 
 Fixtures, 251, 257 seq. 
 
 Distinguished from repairs, improve- 
 ments, furnishings, plenishing, 218, 257 ; 
 landlord's /. : tenant's /., 258. 
 
 General law of /. : incedificatum solo soh 
 cedit — a universal rule, 258 ; severance by 
 one holding a limited interest unlawful — 
 a rule with exceptions, 258 ; questions 
 between heir and executor, iiar and life- 
 renter's representatives, landlord' and 
 tenant, 259. 
 
 1. Annexation, a physical fact, 259 ; 
 constructive annexation, 259 ; keys, title- 
 deeds, well-covers, loose appurtenances of 
 machinery, 259 ; bell, 260. 
 
 Fixtures — continued. 
 
 (a) Not disannexed without injury to 
 fixtures or premises, or both, 260; buildings, 
 large vessels, sheds in brickwork, posts; 
 not barns, &c., which are not built in, 260. 
 
 (i) Special advantage or adaptation 
 from the annexation, 261 ; salt-pans, 
 machinery,, parts of ornamental design, 
 not by merely being screwed in for steadi- 
 ness, 261. 
 
 2. Intention, of primary importance, 
 261 ; intention in using not as to disposing 
 of the article, 261-2; improvement of 
 premises or for better enjoyment of the 
 fixture, 262. 
 
 A. In non-agricultural subjects. 
 
 (a) Ornament, convenience, or domestic 
 use, 262 ; e.g., shrubs, turf, box-border, 
 trees, conservatory, 262 ; verandah, kitchen 
 range, oven, hangings, tapestry, pier-glass, 
 cornice, chimneypiece, window blind, 
 marble-slab, wainsoote, grate, stove, 
 coppers, pump, cupboard, bookcase, bed, 
 garden steps, 263 ; fastening by screw or 
 ordinary nails, 263. 
 
 (5) For trade or manufacture, 263 ; re- 
 moveable unless not so by custom or stipu- 
 lation, 263 ; accessories to things remove- 
 able, 264, e.g. ovens, vat, coppers, table, 
 partition, engine, salt-pan, stove, tub, blind, 
 varnish house, machinery, safe, spinning- 
 mule, trees, &c., in nursery garden, con- 
 servatory, 264, strawberry-bed, kilns, 
 mills, shops, 265, machinery, 265, cider 
 mill, 266. 
 
 B. In Agricultural Subjects, 266. Before 
 Agricultural Holdings Act, 266 ; land- 
 lords' fixtures which tenant could not 
 remove and need not leave in repair, and 
 tenants' /. which he must either remove 
 or leave in repair, 266. 
 
 Under Agricultural Holdings Act, sect. 
 30, 267 ; engines, machinery, fencing, 
 buildings affixed, &c., without title to 
 compensation after 1st January 1884, 
 removeable, it voluntary, not in substitu- 
 tion on paying rent due, doing no avoidable 
 injury, indemnifying for damage, and on 
 giving notice ; landlord's option to pur- 
 chase, 267-8; relation to scheduled im- 
 provements, 267 ; applies to all fixtures, 
 not merely /. for agricultural purposes, 
 268. 
 
 3. Stipulations as toJixtures,2(i9. Thrash- 
 ing-mill includes machinery ; dwelling- 
 house includes wooden ckdlttj trees 
 removed to make way for conservatories, 
 269 ; mill-stones, buildings, 270; salt-pans, 
 verandah, green-house, machinery, 271. 
 
 4. Time and mode of removal, 271. Time, 
 during leaseorwithin reasonable time after, 
 271 ; where ish is premature, 271 ; where 
 ish is natural, 272. Mode — doing no avoid- 
 able damage, and making good damage 
 done ; restoration of fixture for which 
 article removed had been substituted,. 272 ; 
 repair of /. at ish, 224. 
 
INDEX. 
 
 673 
 
 Floods, damage by, acqiiiesoenoe of tenant in, 
 392. 
 
 Flying customs (kain), as rent, 276. 
 
 Fcetus in utero, in questions of hypothec, 336. 
 
 Food and Drugs Act, 565. 
 
 Forehand rent, 304, 306, 309, 312 ; in game 
 leases, 435 ; /. payment of rent by collu- 
 sion, 280. 
 
 Foreshore, managed by Board of Trade, 27, 
 28. 
 
 Forest, deer, lease of, 431 ; in Crofters Act, 
 521, 622, 623. 
 
 Forfeiture, effect of, 16, 28, 118. 
 
 Foxes, right to destroy, 422. 
 
 Fkanohise, 549 seq. 
 
 I. Parliamentary, 549. Disqualifica- 
 tions — insanity, peerage, alienage, corrupt 
 practices, &c. 
 
 1. Houstlwld franchise in counties and 
 burghs assimilated, 550 ; ' inhabitant 
 'occupier,' 550, as tenant of a dwelling- 
 house, not exempted from paying poor- 
 rates, not in arrear of poor-rates, not in 
 receipt of poor relief, and not a joint 
 occupier, 550-1 ; though of different 
 premises in immediate succession, 552 ; 
 j«. as to combining with it the service 
 qualification, 552. 
 
 2. Occupation franchise, 552. Of land 
 or tenement worth ^10 a-year or more, 
 652. 
 
 (a) In counties. If in actual personal 
 occupancy, 553 ; and not exempted, &c., 
 ut sup^a, 554. Tenancy proved prout de 
 jure, but substantially as in other cases, 
 564 ; joint tenants, 554 ; successive occu- 
 pancy, 555 ; simultaneous occupancy, 555 ; 
 joint tenancy coming by inheritance, or 
 marriage contract, or partnership, 555. 
 
 (6) In burghs. If tenant of a house, 
 warehouse, counting-house, shop, or other 
 bmlding, along (if necessary) with land 
 under same landlord, and if not exempted, 
 &c., ut supra, 556. 
 
 3. Old franchises, 556. 
 
 Tenancy under lease for fifty-seven years 
 
 or more, or for life, or with grassum of 
 
 £300 or more, 556. 
 11. Municipal. 
 
 In royal and parliamentary burghs, 557. 
 Fraud, renders lease voidable, 85 ; as to 
 
 terms of contract, 85 ; as to state of 
 
 mineral field, 85 ; or other subject, 86 ; 
 
 as to title of lessor, 87 ; objection lost by 
 
 mora, 86. 
 Fraudulent bankruptcy, and removal of 
 
 hypothecated subjects, 345. 
 Free rent, rent and value of game included 
 
 in, 433, 434. 
 Fruit, at waygoing, 370. 
 Pugce warrant, in aid of summary diligence 
 
 for rent, 317. 
 Fugitation of landlord, 16 ; of tenant, 16 ; 
 
 no excuse for non-residence, 214. 
 Pundo annexa, subjects of a real right of 
 
 lease, 120. 
 Funeral expenses preferred to hypothec, 342. 
 
 Furnished dwellings, 252 ; proof of lease of, 
 105 ; leases not assignable or sublettable, 
 160, 252 ; incidence of public burdens, 
 252 ; inventory of furniture, 253 ; fore- 
 renting, 253 ; obligations of parties, 253 ; 
 hypothec, 253. 
 
 Furnishings, landlords', what they are, 251- 
 7 ; distinguished from repairs, 218 ; from 
 fixtures, 257 ; of shop, &o., /., how far 
 subject to hypothec, 332, 360. 
 
 Furniture hired, how far subject to hypothec, 
 330 ; household /. on farms not subject 
 to hypothec, 334 ; and see Furnished Dwell- 
 ings. 
 
 GrAME, 413 seq. 
 
 1. The general public law affecting ten- 
 ants : — 
 
 Babbits are not game, though protected 
 by some statutes, 41.3. 
 
 Landed qualification : plough of laud in 
 heritage, not in lease however long, 414. 
 
 Night Poaching Acts : tenant may con- 
 travene : powers as to apprehending, &c., 
 414. 
 
 Day Trespass Act: powers as to appre- 
 hending, 414 ; agricultural tenant not 
 struck at by Act, but servants, if without 
 his authority, and inmates, 415 ; title to 
 complain of poaching, 415. 
 
 Game Licence Acts, 416 ; licence not 
 required by tenant for killing rabbits and 
 hares on his land ; coursing ; authority 
 given by him to others, 416. 
 
 Gun Licence Acts, exception for scaring 
 birds and killing vermin (including rabbits 
 and wood pigeons) by occupier, or on his 
 order, if he have a game or gun licence, 
 416-7. 
 
 Poison : where game resort or on high- 
 way ; poisoning ground game : Poisoned 
 Grain Act, 417 ; Poisoned Flesh Act, 418. 
 
 Firearms by night, 418. 
 
 Muirburn, 418. 
 
 2. Relation of farm tenant to landlord and 
 his game tenant, 420. 
 
 Law founded on (1) trespass, (2) limited 
 use for farming, (3) taking game an incident 
 to landownership, 420. 
 
 G. reserved (and fish), ear lege, in farm 
 lease, 193, 421; nor may this rule be evaded 
 by merely scaring away the game : excep- 
 tion in case of policies of a house, 421. 
 
 Other animals — wild birds, rabbits — 
 which tenant may at common law, unless 
 barred, destroy as vermin, even in planta- 
 tions of which he has the pasturage, 422 ; 
 foxes : wood-pigeons : rooks, 422 ; tame 
 pigeons, 423. 
 
 Rabbits reserved : Damage caused by 
 game and rabbits at common law : when 
 their numbers are increased, 423 ; espec- 
 ially through artificial rearing, 424. 
 
 Abandonment by tenant of claim for 
 compensation : not readily construed out 
 of clause in lease, 424 ; no damage if ten- 
 ant has full opportunity to kiU, 424 ; nor 
 2 TJ 
 
674 
 
 INDEX. 
 
 Game — continued. 
 
 for past damage if he has paid rent with- 
 out effectual demur, 392, 425. 
 
 Liability of game tenant, 425 ; not 
 direct but by suing landlord and leaving 
 him to get relief from game tenant, if in 
 fault, 425-6. 
 
 Damage ascertained under Game Act, 
 1877, 601 : as to leases dated after 1877 for 
 two years at least, 426, 601 ; damage to be 
 concerted in the lease, if not then forty 
 shillings, 426, 602 ; procedure after notice 
 for excess by arbritation, 427, 602. 
 
 Ground Game Act, 427, 605 ; as to leases 
 not current on 7th September 1880, 427, 
 607 (except where it is retrospective, sect. 
 6, 428, 607) ; applies to taking hares and 
 rabbits together or separately, 427, 607 ; 
 not by tenants of commons or grass parks, 
 nor of non-arable land, moorland, and 
 unenclosed between 11th December and. 
 31st March, 428, 606. Inalienable right 
 concurrently with any other person, 428, 
 606. Mode of exercising right ; persons 
 whom occupier may authorise with or 
 without firearms, 428, 606. Spring traps, 
 except in rabbit holes (not the scrape nor 
 a hole under a wire fence), 429, 607. 
 Complaint by sporting tenant under the 
 Game Acts, though he is also the agricul- 
 tural tenant, 430, 607. 
 
 3. Leases of game and fishings, 80, 430. 
 
 Granted by owner of a communicable 
 right to these : not by holder of servitude 
 ■of pasturage : as to common proprietors, 
 430 ; as to transmissibility or personal 
 piivilege, 431 ; jus aucupa/ndi, 431 ; salmon 
 fishings, 431. 
 
 Form of game lease : lease of land : its 
 only use being for sport, 431 ; deer forest — 
 a real right, 431 ; a hind forest is not a 
 ■deer forest, 432. 
 
 Rabbit-catching contract, 432. 
 
 Ordinary game lease, 432 ; it confers 
 right of occupation of land for a limited 
 purpose, not a mere personal privilege 
 involving the use of land, 433 ; not real 
 right, 121, 433 ; no hypothec, 396, 433. 
 Kent treated now for all purposes as the 
 rent of land, 433 ; in estimating widow's 
 provision : free rent of entailed estate : 
 amount of locality lands : value in valua- 
 tion roll : for poor-rates : registration : 
 composition, 433. Where not let their 
 value swells the free rent : locality land : 
 composition and entry in valuation roll 
 . and for poor-rate, 434. 
 
 ' Game and shooting ' includesrabbits, 434. 
 
 Delectus personw, 161, 434. 
 
 Warren, 435. 
 
 Entry at Whitsunday, 435 ; rights of 
 outgoing and incoming servants, 435 ; for 
 year or years, or season : forehand pay- 
 ment, 435 ; case of two beats on a moor 
 being held in common, 435 ; lease does 
 not interfere with ordinary management 
 of plantations, 435. 
 
 Game — continued. 
 
 G. Acts enumerated, 426. 
 Irritancy in lease of g., 459. 
 G., reserved in Crofters Holdings Act, 
 517, 619. 
 
 Gardens, entry to, 301; how affected by 
 hypothec, 327, 336, 338 ; a landlord's 
 improvement in Agricultural Holdings 
 Act, 241, 596 ; not available for enlarge- 
 ment of holding under Crofters Holdings 
 Act, 521, 622. 
 
 Gates, must be tenantable, 222. 
 
 Gearing, great and small, in hire of machinery 
 and steam supply, 255. 
 
 Glebe, limit of leases thereof in time, 30 ; 
 statutory power to let for eleven years ; 
 and to let on building lease, 30. 
 Burden of providing g., 557. 
 
 God, act of, see Damnum fatale. 
 
 Goods, in shop for sale, how far subject to 
 hypothec, 332, 350. 
 
 Grain, as rent, 275 ; agreement for commu- 
 tation of, a real condition, 409. 
 
 Grass, as pasture, not affected by hypothec, 
 336 ; how to be left at ish, 368. 
 
 Grass farms, payment of rent of, 303, 306, 
 312. 
 
 Grass-main, the limit of hypothec over 
 grazier's stock, 335, 349. 
 
 Grass parks, entry to, 301 ; apportion- 
 ment of rents of, 307 ; ploughed up, 
 371 ; in Ground Game Act, 428 ; Act 
 1555 does not apply to ordinary leases 
 of, 482. 
 
 Grass seeds, 374. 
 
 Grassiim: not to be taken by tutors, 12 ; in 
 Crown leases, 26 ; not allowed in letting 
 glebe, 31 ; inadmissible in burgh leases, 
 35 ; in leases under entail, 55 ; in Rose- 
 bery Act, 58 ; in Montgomery Act, 60 ; in 
 later Entail Acts, 64 ; as rd interventus, 
 116 ; in questions of real right, 129 ; 
 giving right to vote, 556. 
 
 Grate, as a fixture, 263. 
 
 Gratuitous trustees, power to let, 37. 
 
 Grazier, how far liable to hypothec, 335, 
 349. 
 
 Greenhouse, as a fixture, 262, 271. 
 
 Ground Game Act, see Game. 
 
 Growing corns, poinding of, 534. 
 
 Guarantee, to see rent paid, 361. 
 
 Guardian, of landlord or tenant affected by 
 Agricultural Holdings Act, 240, 596 ; ap- 
 pointed under that Act, 248, 590 ; In 
 Infants Act, 1886, 6. 
 
 Habitable, dwellings must be, 219. 
 
 Haggs, 69, 73. 
 
 Haining grass, 368. 
 
 Hangings, as fixtures, 263. 
 
 Harbour, subject of real right of lease, 
 
 120. 
 Hay, of second crop, how apportioned, 304 ; 
 
 h., at waygoing, 369. 
 Heir of landlord, liable for improvement 
 
 compensation, 234 ; power to break lease, 
 
 455 ; title to sue removing, 443. 
 
INDEX. 
 
 675 
 
 Heir — continued. 
 
 S. of tenant, see Succession. Liability 
 for rent apportioned, 304 ; right to tacit 
 relocation, 510. Institution of k., in wiU 
 carries leases, 150. 
 
 jr. and executor of landlord, right to 
 fixtures, 259 ; right to rents, 306, 309. 
 
 ' ff., executors and successors, ' meaning 
 of, in rent and management clauses, 154. 
 ^.-apparent, right to rents, 305. 
 M. -at-law, entitled to succeed to lessee, 
 144. 
 
 Heirs-portioners, 145. 
 
 Heriot, an obsolete return, 278. 
 
 ' Heritages,' in will carries leases, 149. 
 
 Heritor's consent required to statutory lease 
 of glebe, 31 ; power to check lease of 
 manse, 29. 
 
 Hire, coupled with lease, 252 ; Ti. no safe- 
 guard against hypothec, 330. 
 
 Holdings, under Agricultural Holdings Act, 
 239, 596 ; under Crofters Holdings Act, 
 514, 629. 
 
 Homologation, barring challenge by minor, 
 20 ; preventing objection to voidable lease, 
 88 ; receipt of rent, as A., 88. 
 
 Homing, in summary dihgence for rent, 318 ; 
 old mode of carrying out obligation to re- 
 move, 477. 
 
 Horses, plough, poinding of, 535 ; 7i. subject 
 to hypothec, 335. 
 
 Horticultural subjects, how affected by hypo- 
 thec, 336 ; and see Gardens. 
 
 Hospital, as a nuisance, 382. 
 
 House, entry to, 301-2 ; apportionment of 
 rent of, 307, 311 ; removing from, 499. 
 
 Household franchise, 550. 
 
 Housing of Working' Classes, 36, 219, 563. 
 
 Husband and wife, see Marriage. 
 
 IT., burdened with locality or annuity — 
 power to lease, 71. 
 
 S. of a tenant affected by Agricultural 
 Holdings Act, 240, 596. 
 
 Husband^, good, 365, 367, 391, 394. 
 
 Hydropathic establishment, a public house, 
 382. 
 
 HypoTHEC, 322 seq. 
 
 I. Nature of h. : origin : attaches pro- 
 duce and in some cases other effects 
 situated on premises let, 322 ; inter 
 naturalia of lease, 322 ; distinguished 
 from pledge, lien, retention, 322 ; other 
 hypothecs, conventional and legal, 322 ; 
 notorious and not interfering with ordinary 
 use of article attached, 323 ; to secure pay- 
 ment of rent ; qu. of pactional (additional) 
 rent and of improvement interest, 323, 401. 
 
 II. Parties having right : landlord, 
 assignee to rent, cautioner on paying up, 
 323 ; creditor in possession, 324, 361 ; joint 
 proprietors ; as to land held by landlord 
 on different titles ; not third parties (other 
 than cautioners) unless they can demon- 
 strate impossibility of injury to landlord, 
 324 ; liferenter in possession, 325 ; on a 
 bond fide lease, not a device to attach move- 
 ables without possession, 325. 
 
 Hypothec — continued. 
 
 III. Leases under which h. competent 
 urban tenements, mines, fisheries, 325 
 not of furnished dwellings, 253 ; timberi 
 water-power, or steam-power, 254, 325 
 unless conjoined with heritable estate, 326 
 nor game, 326, 433 ; ferries, customs, 326 
 nor farms (Hypothec Abolition Act, 1880), 
 as to leases, &c., not current at 11th Nov. 
 1881, of agricultural or pastoral subjects, 
 two ac. or more in extent, 326-7, 600 ; 
 but of policies, gardens, lawns, market or 
 nursery gardens. Qu. as to leases dated 
 after Martinmas 1881, but current then, 
 327-8 ; and as to leases current then and 
 kept up by tacit relocation, 328. 
 
 IV. Subject matter of hypothec. 
 
 1. In urban tenements; invecta et illata, 
 328 — goods brought into the premises. 
 
 Exceptions : — Cash, bonds, bills, 328 ; 
 wearing apparel, so far as proper for daily 
 use, 329 ; res alienee — for the rule only 
 applies to tenant's effects, and these effects 
 of others are only attached by a sub- 
 exception In virtue of presumed consent 
 of owner, 329 ; e.g. [a) articles lent on hire, 
 330 ; furniture making up the plenishing, 
 not single articles as to which there is a 
 known custom of hiring out (pianos, sew- 
 ing-machines), 330 ; or transient hire, 
 330 ; (J) articles deposited or gratuitously 
 lent (same observations), 330 ; in question 
 with Crown, 330-1 ; (c) property of inmates, 
 331, no hypothec, easily conceivable, 331; 
 guest's clothes, daughter's pianoforte, 332 ; 
 (d) articles in shop or factory, for sale and 
 as furnishings, or customers* goods to be 
 repaired or made up, 332 ; goods for sale 
 freely vendible till actual sequestration 
 and then they should be locked up or 
 removed, 332-3 ; large stock on sale and 
 return, 333 ; not business books, 333. 
 
 2. In mines and quarries. 
 
 Produce, machinery, implements, e.g. 
 waggons, 333. Qu. whether lordship so 
 secured, 334. 
 
 3. In fisheries. 
 
 Fish and utensils, 334. 
 
 4. In farms. 
 
 By Amendment Act, 1867, excluded are 
 household furniture, agricultural imple- 
 ments, imported manure, and othermaterial 
 not produce of the faim, 334, 597. Qu. as 
 to buildings and fences set up by tenant, 
 334. 
 
 Included are — produce and stocking, crop, 
 cheeses, 335 ; stocking of third parties, to 
 extent of the grass (or turnip) mail, 335 ; 
 workhorses not excluded though not to 
 be taken unless necessary, 335 ; fostus in 
 utero at sequestration, 336 ; and steelbow, 
 336 ; crop, except green-feeding cut in 
 patches, and grass, which is available in 
 another shape, 336. 
 
 5. In horticultural subjects. 
 (Orchards and nursery or market gar 
 
 dens), 336, 338. 
 
676 
 
 INDEX. 
 
 Hypothec — eontirmed. 
 
 V. Duration of hypothec, 337 ; over 
 inveeta et illata for each year's rent suc- 
 cessively if made effectual within three 
 months after last term of payment ; sale 
 may be later, 337 ; over live-stock, same 
 rule, conventional term taken if post- 
 poned, 337 ; over crop and manure, for 
 rent of year of which it is product, if made 
 effectual within three months after last 
 term of payment, 338, 598 ; combined effect 
 of these ; during three months two years' 
 rents may be secured, 338-9. 
 
 VI. Rights preferred to hypothec in com- 
 petition, 339. 
 
 1. Crown debts, 339 ; and rates, 340. 
 
 2. Superior's hypothec, 340. 
 
 3. Servants' wages, 341 ; farm servants, 
 341 ; as to others, 342. 
 
 4. Death-bed and funeral expenses of 
 tenant, 342. 
 
 VII. Mode of making hypothec ^ectual, 
 342 seq. 
 
 A. Retention, 342. 
 
 If previous to term of payment, till 
 caution found or consignation made, 343 ; 
 interdict against removal and stopping 
 poindings till then, 343 ; an absolute 
 right not depending on insolvency, 343 ; 
 cautioner on paying up entitled to assigna- 
 tion of h., 344. If after term of payment, 
 up to full year's rent and seed, bo that 
 poinder must leave as much, 344 ; caution 
 not found but payment of rent made, 344. 
 
 B. Recovery of subjects removed, 344 ; 
 by judicial authority if ex intervallo, 345 ; 
 criminal proceedings for fraudulent bank- 
 ruptcy, 345. 
 
 C. Hypothec preferred in competition'. 
 
 1. To tenant's unprivileged creditors, 
 345 ; so far as it extends, 346. 
 
 2. To purchasers, 346 ; unless [a] on 
 sale by bulk in open market, 346, or 
 public roup, 347 ; or (6) so far as agri- 
 cultural produce is freed by statute, 347, 
 597 ; being iond fide purchased, paid for, 
 and removed, 347 ; or purchased at public 
 auction after seven days' written notice to 
 landlord, 348 ; h. saved by the Mercantile 
 Law Amendment and Bankruptcy Acts, 
 1856, 348, 533-4 ; and by the Personal 
 Diligence Act of 1838, 348. 
 
 3. Effect of sublease, 180, 182, 348. 
 
 H. Aa between landlord and sublessee, 
 348 ; if sublease not recognised, landlord's 
 h. is unimpaired, 348 ; he is not bound to 
 discuss the tenant ferst ; though there is 
 subtenancy only as to part ; not limited 
 tn subrents due, 349 . modification in case 
 of graziers, 349 ; no 'right to assignation 
 of h. on paying up, 349. If sublease be 
 recognised, h. only extends to amount of 
 subrents resting-owing or paid prema- 
 turely, 349. 
 
 5. Between lessee and sublessee, 350. 
 JS. Between lessor and leasee, 350 ; 
 
 sequestration by latter only on giving 
 
 Hypothec — continued. 
 
 security to former for whole principal 
 rent, 350 ; abandonment of sequestration 
 by landlord of subtenant's effects does not 
 relieve tenant though giving time does, 350. 
 
 D. Plenishing order, 350 ; to stock, 
 furnish, &c., to such an extent as to make 
 h. fully available, 351 ; with the tenant's 
 own stock, &c., not merely res alienw, 351 ; 
 shop must be furnished and kept dry, but 
 need not be kept open for business, 351 ; 
 petition contains prayer for caution, or 
 summary ejection and power to relet and 
 remove effects, 351 ; lease not thus ter- 
 minated, there being locus pcenitentice on 
 payment of arrears and plenishing, 351, 
 507 ; before sheriff, 352. 
 
 E. Sequestration and sale, 352 seq. ; 
 sequestration converts general attachment 
 into real right over specific subjects, 352 ; 
 limitation of time, three months. Both for 
 payment of rent due and in security of 
 rent accruing ; crop and stock in latter 
 case may be sold currenie termino ; inveeta 
 et illata may not, 352 ; price of stock and 
 crop so sold is consigned, 352 ; liability of 
 landlord for wrongful diligence, 353. 
 
 Petition for sequestration, 353 ; to 
 inventory and secure, and thereafter to 
 sell and take payment out of proceeds, 
 353 ; conclusion for payment of rent, 363 ; 
 for recovery of articles removed ,353. 
 
 Procedure, 354; granted de piano; 
 inventory made by officer of Court ; execu- 
 tion returned ; visitation invariable, 354. 
 Inventory the only evidence of subjects 
 sequestrated, 354. Caveat or interdict, 
 on consignation or caution, 354. Prayer 
 for withdrawal of articles wrongly entered, 
 354. Judicial manager may be appointed 
 to take charge of inventoried effects, or 
 landlord, the risk lying with tenant, 
 except for negligence of custodier, 354-5. 
 
 Recall, 355 ; on caution, consignation, 
 or payment, with expenses, or, if rent not 
 due, without reduction of the sequestra- 
 tion, 355. 
 
 Breach of sequestration, 355 ; a con- 
 tempt of Court, 355 ; not by taking grain 
 for use on farm, 355 ; hona fides in breach, 
 366 ; breach involves indemniiBcation and 
 penalties — e.g., imprisonment, where 
 premises stript, 356. If by a third party 
 and without fraud, he must make good the 
 loss at least up to value of the goods taken, 
 356 ; ignorance of the sequestration no 
 defence, 356. 
 
 Wrongful sequestration, damages for, 
 357 ; obtainable without reducing the 
 diligence, 357; 'wrongfully' the proper 
 qualification, 357 ; founded on counter- 
 claims, or error as to term's rent secured, 
 (met by plea of vergens ad inopiam) ; or on 
 mode of sequestrating, over-inventorying, 
 or accumulation of diligences, 357 ; respon- 
 sibility for auctioneer, 357 ; action may not 
 stop the sale, 357. 
 
INDEX. 
 
 677 
 
 Hypothec — continued. 
 
 Sale, 357. At sight of officer of Court, 
 358 ; reported within fourteen days ; 
 account of expenses and state of debt 
 between parties, 358. Consignation if 
 necessary ; taxation ; sale approved ; 
 landlord paid ; balance to tenant ; open 
 to his creditors' diligence, 358 ; sale 
 pending appeal, on caution, 358 ; reduc- 
 tion of sale, 358. 
 
 Sequestration and sale in Small -Delt 
 Court, 358 ; in Debt's Recovery Court, 
 359. 
 
 Registration of sequestrations, 359. 
 
 VIII. Forfeiture of hypothec, 360 ; by 
 mora, or acquiescence in inconsistent con- 
 duct, 360 ; not merely by taking bill, or 
 allowing poinding creditor to sell on con- 
 dition of being paid out of proceeds, 360. 
 
 H. over sum obtained from insurance 
 over moveables, 211. 
 
 Idiocy, of lessor or lessee, 15. 
 
 Implements, on farms, not subject to hypo- 
 thec, 334. 
 
 ImpHed consent, of landlord to sublease, 177. 
 
 Imprisonment, in cases of breach of sequestra- 
 tion, 356. 
 
 Impbovements. See also Agricultural Hold- 
 ings Act. 
 
 Distinguished from repairs and fixtures, 
 218, 224, 228, 257; not set against 
 them, 224. Laid on landlord, who gets 
 i. interest, 228 ; (luantum thereof, 228 ; 
 added to rent in valuation roll, 229 ; 
 mora, 229. Or laid on tenant and sum 
 given him in aid, 229 ; construction of the 
 stipulation, 229 ; sum exigible though 
 subjects perish by accident, 229 ; and 
 though lease terminate prematurely, 229. 
 Or laid on tenant without compensation 
 stipulated, 229 ; none due at common law, 
 
 229 ; though there be a premature termina- 
 tion, 230 ; custom, 230. 
 
 Stipulations for compensation to tenant, 
 
 230 seq. .— 
 
 For i. in contemplation in the lease, 
 230 ; not therefore for unreasonably large 
 house or offices, 231 ; subject to land- 
 lord's control, so as not to endanger the 
 premises, 231 ; claim renounced or aban- 
 doned, 232 ; inspection, 232-3 ; measure of 
 compensation, 232 ; in quantum lucratus, 
 232 ; arbitration, 232 ; other remedies, 
 233 ; limited owners, 233 ; Improvement 
 of Land Act, 228, 233 ; Kntail Acts, 233 ; 
 hferenter's powers, 233. 
 
 Transmission of obligation to landlord's 
 successors, 234 ; his representatives, 234 ; 
 ultimately against heir, 234 ; 'runs with 
 ' the lands,' 234 ; confusio, 235 ; under 
 entails, heir now liable under Duke of 
 Argyll's Act, 1878, 235-6 ; a real con- 
 dition, 236, 408 ; custom of district, 236 ; 
 liability according to date, 237 ; to 
 tenant's successors, 237 ; continuing obU- 
 gatiou, 237. 
 
 Improvements — continued. 
 
 I. as rei interventus, 114 ; how affected 
 by Agricultural Holdings Act, 115, 584. 
 
 /., when indemnified for, where lease 
 cut down to yearly lease, 105. 
 
 /. in Crofters Holdings Act, 614, 518, 
 520, 620-1 ; under Montgomery Act, 69. 
 
 Interest on improvement outlay, 396 ; 
 whether secured by hypothec, 323. 
 
 T. money allowed for in apportioning 
 rent, 313. 
 
 /., repair of, at ish, 225. 
 
 /. Commissioners, as lessors, 36. 
 In quantum lucratus, the measure of improve- 
 ment compensation, 225. 
 In re communi melior est conditio prohibentis. 
 
 Inalienability, of occupier's right under 
 Ground Game Act, 428. 
 
 xnoedificatum solo solo cedit, 258. 
 
 Incapacity, personal, in renouncing lease and 
 accepting renunciation, 451 ; generally, 5 
 seq. 
 
 Incapax, in relation to tacit relocation, 510 ; 
 generally, 5 seq. 
 
 Incidence of liability for damages caused 
 through heir abandoning lease, 164 ; and 
 see Apportionment. 
 
 Income tax, 570. 
 
 Incoming tenant, right to repairs against 
 outgoing tenant, 223. 
 
 Indefinite ish, lease only personal, 126 ; i. 
 services abolished, 130. 
 
 Inducise of summary diligence, 317. 
 
 Industrial societies, 36. 
 
 Infeftment of lessor required to secure lessee 
 in possession, 43 ; against an heir of entail, 
 purchaser or adjudger, 43 ; inchoate right 
 of lessor, 44 ; required for title to sue re- 
 moving, 442; modifications of the rule, 442. 
 
 Inhabited house duty, 570. 
 
 Inherent capabilities of the soil, in Agricul- 
 tural Holdings Act, 241, 585. 
 
 Inhibition, of landlord, 46 ; does not strike 
 at leases of ordinary administration, 46 ; 
 but at others and grassums, 46 ; i. of 
 tenant, 48 ; does not avoid conventional 
 irritancy, 469. 
 
 Injury to tenant by third parties, 638 ; to 
 third parties by tenant, 541 ; by tenants 
 on same estate inter se, 547. 
 
 Inmates, property of, exempt from hypothec, 
 331. 
 
 Inn, prohibited, 382 ; under Agricultural 
 Holdings Act, 239 ; under Crofters Hold- 
 ings Act, 515, 517, 628. 
 
 Innkeeper as holder of a croft, 616, 617, 628. 
 
 Innovation on contract after its date, how 
 proved, 98. 
 
 ' Input and output,' tenants, 41, 157. 
 
 Insanity of lessor or lessee, 15. 
 
 Insolvency of tenant made a conventional 
 irritancy, 468, 470 ; and see Bankruptcy. 
 
 Inspection, 394 ; ordered where mismanage- 
 ment {e.g., misoropping) is alleged, 394 ; 
 report as to reinstating matters ; entry by 
 landlord to do so, 394 ; mora, 394 ; claim 
 
678 
 
 INDEX. 
 
 Inspection — continued. 
 for damages, 395 ; i. to ascertain improve- 
 ments, 232, 233 ; in case of doubt as to 
 validity of a renunciation, 450 ; to ascertain 
 state of repair, 226 ; in Crofters Holdings 
 Act, 517, 619. 
 
 Instrument of possession useless, 170. 
 
 Insurance of dwellings, shops, mills, 210 ; of 
 farm buildings, 210; no obligation at 
 common law to insure, 210 ; obligation to 
 lay out the money, 211 ; taken in land- 
 lord's name, liability for premiums, 211 ; 
 i. of moveables, 211 ; hypothec over the 
 sum obtained, 211 ; i. premiums deducted 
 from tenant's claim under Agricultural 
 Holdings Act, 246, 586. 
 
 Intention in questions of fixture, 261. 
 
 Interdict, incompetent form for obtaining a 
 removing, 440 ; but competent as to use 
 of the subjects let ; against re-entry after 
 removal, 440 ; and against third parties, 
 441 ; i. against removal of hypothecated 
 subjects, 343 ; against sequestration, 354; 
 against infringements of lease, 395 ; in 
 sublease, 183. 
 
 I. and removing, review of,- 495. 
 
 Interdiction, 16. 
 
 Interest, 396 ; on arrear of rent and on im- 
 provement outlay, 396 ; whether due ex 
 lege, 896 ; from what date, 397 ; on im- 
 provement expenditure, 228, whether 
 secured by hypothec, 323. 
 
 Rent retained to pay i. on debt, 130. 
 I, to complain of injury to tenant by 
 third parties, 538. 
 
 Interim manager of farm, 15. 
 
 Intimation of assignation of lease, 166 ; form, 
 166 ; equivalents, 167 ; of assignation to 
 rents, 282 ; of option to break lease, 456. 
 
 Intoxication a ground of avoiding a lease, 16. 
 
 Invecta et iUata as subjects of hypothec, 328, 
 337, 352. 
 
 Inventory of furniture, fittings, machinery, 
 253 ; for ascertainment of liability for 
 repair, 223 ; in landlord's sequestration, 
 353-3, 357 ; of ejected goods, 494. 
 
 Inversion of possession, 214 ; not by isolated 
 acts, 214 ; ale-house on farm, 214 ; posting- 
 station on farm, 214 ; railway siding for 
 general traffic on farm, 214 ; building on 
 flower-plot, 215 ; changed use of factory, 
 215 ; market-garden changed into place of 
 entertainment, 215 ; shop into exhibition- 
 room, 216 ; sales by auction in a shop, 
 215 ; apothecary's into grocer's shop, 216. 
 Structural alterations, 215. Nuisance so 
 caused, 216. Rule applies to assignees 
 and subtenants, 216. Objection abandon- 
 ed, 216, by acquiescence or consent, 216. 
 Res merce facultatis, 217. 
 
 Irrigation, a landlord's improvement in Agri- 
 cultural Holdings Act, 241, 596. 
 
 Ieeitanot, 458 seq. 
 
 Legal and conventional, 458. 
 I. Legal, 
 
 1. At common law, 458. 
 
 On two years' arrear of rent, 458 ; 
 
 Irritancy-:- coraiOTMcd. 
 
 caution for future rent on one year's 
 arrear, 469. As to urban tenements, 
 minerals, fisheries, shootings, 459, 
 
 2. A.S. 1756. 
 
 As to agricultural subjects only, 459 ; 
 partly declaratory, partly novel, 469 ; the 
 latter now recognised as law, 460. 
 
 Rent two years in arrear, 460 ; caution 
 where rent one year in arrear, or land 
 deserted and unlaboured, 460 ; caution 
 being for five years, if the lease has so 
 much to run, 460. 
 
 Hypothec Abolition Act amended the 
 A.S. in sections now repealed, 461. 
 
 3. Agricultural Holdings Act, 461. 
 Where hypothec abolished, on six months' 
 arrear, removing raised and decreed unless 
 arrears be paid or caution found for them 
 and one year's rent further, tenant to have 
 rights of an outgoing tenant at ish. This 
 in lieu of A.S. 1767, sect. 5, 461. 
 
 /. not affected by the Act as to ordinary 
 removings, 480. 
 
 Cases wnder A.S., 462. Title to sue ; 
 prestations to which it applies ; arrear 
 made up of several years' deficits ; partial 
 payment need not be accepted ; payment 
 operated by diligence or resort to a 
 cautioner does not bar the remedy, 462 ; 
 compensation by landlord's debt, 463 ; 
 desertion and want of labouring, 463 ; 
 form of application, 463. 
 
 Pwrgation before extract, 464 ; time 
 given for caution, 464 ; by full caution or 
 payment of all arrears, 464 ; not after 
 decree whether inforo or in absence, 465. 
 
 4. Sheriff-Courts Act, 1853, sect. 32, 465 ; 
 as in feus, if lease be for more than twenty- 
 one years and subjects worth not more 
 than £25 a-year,, 465 ; especially applic- 
 able to building leases, 466. 
 
 II. Conventional. 
 
 1. The usual irritancies. 
 
 (a) For non-payment of rent, 466. In 
 agricultural leases this i. will be mainly 
 superseded by I. 3, supra; not usual in 
 urban leases, 466 ; usual form, stipulated 
 to be non-purgeable, 467 ; case of exten- 
 sion of the period of arrear, 467 ; arrear at 
 date of action, 467 ; in mineral leases, 467. 
 
 (J) On hankruptcy of tenant, 467, 530, 533. 
 Unless stipulated, bankruptcy, insolvency, 
 sequestration of either sort, cessio or trust- 
 deed for creditors does not irritate lease, 
 468. 
 
 Form of clause, 468. 
 
 Intention of parties to be looked to, 468. 
 /. lies in landlord's option, 469 ; must be 
 declared in reasonable time, 469 ; may be 
 elided if embarrassment only temporary, 
 469 ; not by discharge of debtor or inhibi- 
 tion, 469. Insolvency, how established, 
 469 ; where there are more tenants than 
 one, 470 ; state of subjects at re-entry, 470. 
 
 (c) Residence, 213, 470; obligation to 
 possess with tenant's own stock ; pro- 
 
INDEX. 
 
 679 
 
 Irritancy — continued. 
 
 hibition against assigning and subletting, 
 164, 470. 
 
 2. Mode of enforcement, 470. Declarator 
 not required where the blot is instantly 
 verifiable, 471 ; whether there be an ex- 
 press dispensation from raising it or not, 
 471 ; removing in Sheriff -Court, 471 ; no 
 valid distinction between fair and penal i., 
 471 ; function of Court of Session to pre- 
 vent gross oppression, 471 ; removing may 
 be postponed to a legal term, 472. 
 
 Not purgeable, 472 ; but Com-t entitled 
 to prevent abuse of the remedy, 472. 
 
 /. of sublease, 182. 
 
 /. distinguished from break, 453. 
 
 /. in small holdings, removing sum- 
 marily, 504. 
 
 /. in Crofters Holdings Act, 517, 519. 
 
 /. ob non solutum canonem, 455-6. 
 
 /. of entail, declarator of, 57. 
 Ish, 102 ; not fixed in lease, supplied cxtrin- 
 secus,'^ lease be not a revocable licence,102. 
 
 Definite i. for lease as a real right, 124 ; 
 indefinite, 126 ; alternative, 126. 
 
 Premature i., as to fibctures, 271 ; nat- 
 ural, as to do., 272. 
 
 Effect of definite i. in a removing, 478. 
 
 Joint lease, 75 ; involves joint possession and 
 management, 75 ; joint liability : trans- 
 mission on death or by assignation, 75. 
 Destination to A and B and their heirs, 
 76 ; to A and B and the longest liver and 
 their heirs, 76 ; to A and B in conjunct 
 fee and liferent and their heirs, 77. All 
 tenants must be bound or none, 87. 
 
 Joint property, see Common property. 
 
 Joint proprietors, their right to hypothec, 
 324 ; title to sue removing, 444 ; quorum, 
 majority, 444. 
 
 Joint tenants, in cases of irritancy on bank- 
 ruptcy, 470 ; right to the franchise, 554. 
 
 Judicial factor, see Tutor. J.f, in burgh, 33. 
 Title to sue removing, 445 ; renouncing 
 lease or accepting renunciation, 451. 
 
 Judicial leases, no tacit relocation of, 510. 
 
 Judicial sale gives title to sue removing with- 
 out infeftment, 442. 
 
 Juratory caution in suspen-sion of removing, 
 496. 
 
 Jurisdiction in ejections, 508. 
 
 Jus administrationis excluded, 23. 
 
 Jus aucupandi, 431. 
 
 Jus mwriti excluded, 22, 23, 25. 
 
 Jus quasitum iertio, 486-7. 
 
 Jus tertii, in cedent or third party to object 
 to approval of assignee by landlord, 465. 
 
 Kain, or kain-fowLs, as rent, 275, 276; in 
 
 questions of real right, 130. 
 Kelp-shores, reserved in farm leases, 193 ; 
 
 h. as subject of lease, 82. 
 Key, as a fixture, 259. 
 
 Kilos, as fixtures, 265 ; removing from, 602. 
 Kind, rent in, 275-6 ; delivery proved prout 
 
 dejure, 283. 
 
 Kindly tenants, 137, 139. 
 Kitchen range, as a fixture, 263. 
 
 Lade, making, as rei interventus, 115. 
 Land, subject of lease, 80 ; subject of a real 
 
 right of lease, 120. 
 Land Improvement Company, lending money 
 under Agricultural Holdings Act, 249, 591. 
 Landlord, a pupil, 5 ; a lunatic, 15 ; a for- 
 feited person, 16 ; a minor, 19 ; a married 
 woman, 23 ; the Crown, 26 ; parish minis- 
 ter, 29 ; an university, 32 ; a burgh, 33 ; 
 a trustee, 37 ; a factor or commissioner, 
 41 ; uninfeft, 43 ; a debtor by bond and 
 disposition in security, 44 ; a disponer in 
 absolute disposition with back-bond, 45. 
 
 L. , under inhibition, 46 ; under adjudica- 
 tion, 46 ; under a ranking and sale, 47 ; 
 insolvent or bankrupt, 47 ; a bankruptcy 
 trustee, 48 {see Bankruptcy) ; an heir of 
 entail in possession, 49 seq. ; a partnership 
 or company, 77. 
 
 L., under Agricultural Holdings Act, 
 239, 595 ; under Crofters Holdings Act, 
 514. 
 
 L.'s furnishings, 251-7 ; fixtures, 258. 
 
 Lands Clauses Acts, 202 ; compensation 
 where lease is for years, 202 ; apportion 
 ment of rent, 203 ; no lien, 203. Lease 
 for year or under, 203 ; or not disclosed, 
 203. Effect of notice to treat, 203. 
 
 Lease, in Agricultural Holdings Act, 240, 
 596. 
 
 Legal irritancies, 458. 
 
 Legal terms, 303-4, 306, 311, 313 ; irritancy 
 suspended till, 472. 
 
 Legatee under Agricultural Holdings Act, 
 150, 240, 692, 596 ; under Crofters Hold- 
 ings Act, 522, 612. See Succession. 
 
 Leasee, title to sue removing of sublessee, 
 446 ; I. and lessor as to sublease, 180 ; 
 I. and sublessee do., 180. 
 
 Lessor and lessee — as to sublease, 180 ; I. and 
 sublessee, 181. 
 
 Lettable subjects, see Subjects of lease. 
 
 Letter of removal, 475, 478 ; I. serving a 
 warning, 501. 
 
 Levels, communication of, in mines, 387. 
 
 Levying rent, proof of civil possession, 167. 
 
 Liability, among representatives, for obliga- 
 tions in lease, 154 ; for damage caused by 
 heir abandoning, 154. 
 
 Libraries, public — rate, 563. 
 
 Licence, revocable, 102. 
 
 Licence to fish, 82. 
 
 Licence, 1 ; to use church sittings, 2 ; to 
 attend entertainment, 2 ; to take mineral, 
 2 ; to take pumped water, 2. 
 
 Licence — Game, not required by tenant to 
 
 kill hares and rabbits on his land, nor any 
 
 one for coursing : authority to others, 416. 
 
 Gun, exception as to scaring birds and 
 
 killing vermin, 416-7 ; rabbits, 417. 
 
 Licenced premises, as a nuisance, 382-3. 
 
 Lien, distinguished from hypothec, 322 ; 
 none on Lands Clauses compensation 
 money, 203. 
 
680 
 
 INDEX. 
 
 Liferent and fee, 71 ; liferenter and fiar 
 leasing together, 71. Husband burdened 
 with annuity or locality leases, if in tond 
 fide, 71. Liferenter not beyond his life- 
 time, 71 ; and until the Whitsunday after 
 his death, 72 ; widow with locality, 72 ; 
 though at an under-value, 72 ; and alter- 
 ing terms o£ payment, 72 ; the phrase not 
 properly applicable to leases, 77. 
 L. escheat of landlord, 16. 
 L. leases falling under I. escheat, 18 ; 
 under entails, 52. 
 
 X., as a real right, 124. 
 L., in questions of assignation and sub- 
 lease, 158. 
 
 L., giving right to the franchise, 566. 
 Liferent-tenant, in questions of waygoing 
 crop, 371. 
 
 Act 1555 does not apply to, 482. 
 Ejection of heir, 505. 
 Liferenter, powers of leasing, 71. 
 
 L., right to let timber, 72 ; fruit, under- 
 growth, windfalls, and estate wood, 72. 
 Bight to let mines, 73. 
 Improvements by I., 233. 
 Kight to hypothec, 325. 
 Title to sue removing, 444. 
 Lease from I. requires solemn removing, 
 482. 
 L.'s representatives, and fiar, right to fix- 
 tures, 259. 
 Lime, a tenant's improvement in Agricul- 
 tural Holdings Act, 242, 596 ; as rei inter- 
 ventus, 115. 
 Limitation of title, 43 seq. 
 Limited owners, liability for improvement 
 compensation, 233 ; title to sue removing, 
 444 ; in renunciation of lease and accept- 
 ing renunciation, 451. 
 Liquid and illiquid, in compensation, 289. 
 Litigiosity, in adjudications, 4Q. 
 Loan, whether subject to hypothec, 330 ; 
 ' coupled with lease, 252. 
 Lodgings, letting of, 253 ; including house 
 (or part of house), furniture, and services, 
 253 ; usually verbal, 254. 
 Local Authorities, 561 seq. 
 Locality, rent and value of game included in 
 
 estimating, 433-4 ; l. and lease, 72, 118. 
 Loohmaben kindly tenants, 139. 
 Lockfast doors, opening, in ejection, 494. 
 Locus pcenitentice, left on surrender of arles, 
 
 104 ; where lease is informal, 106. 
 Long leases, 126 ; by trustees, 39 ; under 
 
 Entail Acts, 51-61 ; registerable, 172. 
 Lordship, form of mineral rent, 277. See 
 Kent I. Absence of, in lease of mineral in 
 entail lands, 68 ; whether secured by 
 hypothec, 334. 
 
 Machinery let with factory in question of 
 assignation, 160 ; as fixture, 261, 264, 271. 
 
 Maills and duties, action of, 319 ; action for 
 rents generally, 319 ; petitory or posses- 
 sory, 319 ; title to sue, especially in 
 incumbrancers with assignation to rents, 
 44, 45, 320 ; not, a superior ; infeftment 
 
 Maills and duties — continued. 
 
 not required, action not necessary, even 
 incompetent to proprietor infeft, 320. 
 Courts — Court of Session, Sheriff Court, 
 J.P. Court (Burgh and Baron Courts), 
 320-1. Conclusions ; continuing action, 
 and for future instalments of debt, 321. 
 
 Maintaining of premises in repair, 220, 222, 
 225. 
 
 Mala fides, when it supervenes in a question 
 of violent profits, 490-1. 
 
 Malicious mischief to woods, 193. 
 
 Management, 364 seq. 
 
 1. Agricultural. 
 
 Cropping clauses, 364 ; good husbandry, 
 365, 367 ; rotation of crops, 365, 367 ; 
 shifts, 366 ; during currency and approach- 
 ing ish, 366 ; grass, dung, straw, green 
 crop at ish, and last crop, 366-7. 
 
 (a) During currency, 367 ; on two farms, 
 367-8. 
 
 (5) Towa/rds and at ish, 368. 
 
 (1) Qrass, change of shift, 368 ; failure 
 to hain, 368 ; construction of condi- 
 tions, 369. 
 
 (2) Waygoing crop, 369 ; green crop, 
 369 ; hay, 369 ; fruit, 370 ; white crop, 
 370. Taken by outgoing tenant, 370 ; 
 change of shift, 370 ; grass parks, 371 ; 
 liferent tenant, 371. Or it may be taken 
 over at a valuation, 371 ; if not, provision 
 for storing and thrashing, 372 ; custom of 
 district, 372 ; premature removing, 372 ; 
 bare fallow, 372 ; recompense for it, not 
 for green fallow, 373 ; land in lessor's own 
 hands, 373 ; grass seeds, 374. 
 
 (3) Dung and its ingredients, 374 ; of 
 peniiltimate crop, 374 ; how far compen- 
 sated for, 374 ; recompense excluded ex- 
 pressly, 375 ; or prescribed, 375. Straw of 
 waygoing crop, 376 ; belongs to outgoing 
 tenant unless otherwise provided, 376. 
 
 2. Pastoral, 378. 
 
 3. Urlan, 378. 
 
 Restrictions construed in favour of free- 
 dom, 378. 
 
 Against rival trade or business by land- 
 lord, 379. 
 
 Against building, 380. 
 
 Against any trade or business, 380 ; 
 business sign, studio, school, 380 ; auction 
 of household furniture, charity, 'trade,' 
 'business' — meaning of the words, 381. 
 
 Against noxious trade, 381 ; brothel, 
 381. Nuisance, slaughter-house, cholera- 
 hospital, steam-engine, cattle -show pre- 
 mises, asylum, licenced shop, match-store, 
 382. 
 
 Against particular trade, 382 ; butcher's, 
 inn, public-house, 382; licence kept up, 383. 
 
 Against buying from other than lessor — 
 brewers, 383. 
 
 4. Mineral, 384. 
 
 (a) Mode of working, 384. 
 
 (6) Su'rface damages, 385; including 
 subsidence, 385 ; damage that 
 prevents the ordinary agricul- 
 
INDEX. 
 
 681 
 
 Management — continued. 
 
 tural use of the subjects, 386 ; 
 obligation to pay, 386. 
 
 (c) Comiunnication of levels, 386 ; 
 
 and roads, 387. 
 
 (d) Barriers of mineral, 388. 
 
 (e) Support, 388 ; different minerals 
 
 in same mine, 389. 
 (/) Miners' houses, 389. 
 [g) Restoration of ground, 389. 
 5. Fishery, shooting, mill, factory, 390. 
 See also Damages : Inspection : Interest : 
 Penalty : Arbitration ; Real condition. 
 
 Manager, judicial, in landlord's sequestration, 
 364 ; in dispute as to tenant's title, 395 ; 
 or his management, 395 ; landlord as m. 
 for tenant miscropping, 394. 
 
 Mandate to grant leases, 41. 
 
 Manse, burden of providing, &c., 557 ; land 
 for m. under Entail Acts, 66 ; m. lettable 
 only for short periods, 29. See Church. 
 
 Mansion-house, let by tutors, &c., 12 ; in 
 Rosebery Act, 58 ; under Montgomery 
 Act, 60 ; minerals for use of, in entailed 
 lands, 73. 
 
 Mantelpiece, as a fixture, 263. 
 
 Manufactory, let by tutors, 10. 
 
 Manure, artificial, a tenant's improvement 
 in Agricultural Holdings Act, 242, 245 ; 
 imported m. not subject to hypothec, 334. 
 
 March-fences, must be upheld by tenant, 
 though new, 223. 
 
 Market, sale in open, exempts from hypothec, 
 346. 
 
 Market-garden, under the Agricultural Hold- 
 ings Act, 239, 694. Plants, as fixtures,' 
 264. Hypothec not abolished, 327 ; how 
 affected by hypothec, 336, 338. 
 
 Marl, reserved in farm leases, 192. 
 
 M. tenant's improvement in Agricultural 
 Holdings Act, 242, 696. 
 
 Marriage (coverture) of female lessor, 22 ; 
 consent of husband required to leasing, 
 22 ; Married Women's Property Act, 1881, 
 22 ; duration of wife's lease, 22 ; lease by 
 husband, 22 ; its duration, 22 ; exclusion 
 of jug mariti, 22 ; minor wife, 22 ; exclu- 
 sion of husband's jus administrcUionis, 23 ; 
 on separation, 23, 24 ; effect of exclusion 
 of both rights, 23 ; effect of separation of 
 spouses, 23 ; protection order, 23 ; deser- 
 tion, 24 ; divorce, 24. 
 
 ■ M. of female lessee, does not forfeit the 
 lease, 24 ; jus mariti over plenishing, 25 ; 
 Married Women's Property Act, 1881, 25. 
 
 Married Women's Property Act, 1881, 22, 25. 
 
 Martinmas, beginning of agricultural year, 
 303 ; as term of entry, 299-302 ; and see 
 Removing. 
 
 Meadow, a landlord's improvement in Agri- 
 cultural Holdings Act, 241, 596. 
 
 Measurable timber, 193. 
 
 Measure of damages, 393 ; for abandonment 
 of lease by tenant and his creditors, 533 ; 
 for wrongous ejection, 498 ; m. of improve- 
 ment compensation, 232 ; of violent profits, 
 491 ; of damages, 492. 
 
 Melioration, quid ! 218. 
 
 Memoranda, as foundation for rei interventus, 
 109. 
 
 Merger, of sublease in lease, 165, 175 ; of 
 lease with ownership, 451 ; has no effect 
 on sublease, 177. 
 
 Messis sementem scquit/ur, 506 ; appUoable to 
 tenants of glebe, 30. 
 
 Militia stores, 569. 
 
 Mill, as subject of lease, 80 ; subject of real 
 right of lease, 120 ; insurance of, 210 ; 
 repairs in lease of, 226 ; as fixture, 266 ; 
 entry to, 301 ; apportionment of rent of, 
 307. 
 
 MUl-stones, as fixtures, 270. 
 
 Mineral : reduction of rent by tutor in m. 
 lease, 13; m. leases by trustees, 39 ; m., 
 subject of real right of lease, 120 ; re- 
 served in farm and other leases, 192 ; in 
 Crofters Holdings Act, 517. See Mines. 
 
 Miners, ejection of, 506 ; m. houses, 389. 
 
 Mines and minerals, under entails, 67 ; heir 
 in possession entitled to win mineral, 67 ; 
 and lease it, 66 ; unless fraudulently or 
 with gross culpable negligence at the date 
 of the lease, 68 ; lordship and fixed rent, 
 68 ; restraint only so as to preserve the 
 estate for whole heirs, 69. 
 
 Under liferent: liferenter has no right 
 to let m., 73 ; unless liferenter by reserva- 
 tion as to a going mine, 73 ; or m. be for 
 use of estate or mansion, 73 ; or there be 
 contrary intention, 74. 
 
 M., let by tutors, 10, 11 ; let by 
 Crown, 26 ; as subject of lease, 80, 81 
 leases of m. assignable and sublettable, 
 161 ; leases of m. registerable, 173 ; re 
 pairs in leases of m., 225 ; leases of m. 
 with machinery, 253. Entry to, 301 ; ap- 
 portionment of rent, 308 ; removing from, 
 502 ; in questions of hypothec, 325, 333 
 irritancies in leases of, 459, 467 ; licence 
 to take mineral revocable, 2 ; management, 
 see Management (4). 
 
 Minister, parish, power as to letting manse 
 and glebe, 29 ; under Agricultural Hold- 
 ings Act, 240, 594 ; tenant during incum- 
 bency, ejection of, 505 j as holder of a. 
 croft, 515, 628. 
 
 Minor : may grant lease if without curators, 
 19 ; and discharge rents, 19 ; if having 
 curators, with their consent, 19, 20 ; if 
 without it, lease challengeable, unless suit 
 be barred by mora or homologation, 20 ; 
 curators are only consenters : with con- 
 sents, leasing not limited in duration, 20 ; 
 lease not grantable by curators alone, 21 ; 
 and no special powers obtainable to that 
 end, 21 ; curator ad litem, 21 ; auctor in 
 rem suam, 21 ; special powers refused to 
 minor, 21 ; curator bonis to minor, 21. 
 
 M. as lessee, 22 ; quadriennium utile, 
 22 ; holding himself out as major, 22 ; 
 trade contracts, 22. 
 
 M. renouncing lease or accepting re- 
 nunciation, 452 ; married woman a m., 
 22. 
 
682 
 
 INDEX. 
 
 Minority, not deducted in triennial pre- 
 scription, 285 ; but in quinquennial, 287. 
 
 Minute, as foundation for rd mterventus, 
 107. 
 
 Minute of lease, 89. 
 
 Mischief, malicious, to woods, 193. 
 
 Miscropping, 364, 391, 394, 398; liability 
 for, a real condition, 409. 
 
 Missives of lease, 89 ; as foundation for m 
 mterventus, 107. 
 
 Modification of penalties, 401. 
 
 Money, as rent, 275. 
 
 Monopoly, not assignable, 160. 
 
 Montgomery Act, 59. 
 
 Moorland, in Ground Game Act, 428, 606. 
 
 Mora, barring challenge by minor, 20 ; pre- 
 venting objection to voidable lease, 88 ; 
 minority, 88 ; in claiming on disrepair, 
 224 ; in claiming improvement interest, 
 229 ; in following out sequestration on 
 hypothec, 360 ; in declaring an irritancy, 
 469. 
 
 Mortifications, eases of mortified lands, &c,, 
 38. 
 
 Muirbum, 418. 
 
 Multiplepoinding, where doubt as to right to 
 rent, 275. 
 
 Multures, as subjects of lease, 80. 
 
 Municipal election, see Franchise. 
 
 Mussel fishings, let by Crown, 28. 
 
 Mutuality of obligation, ground of retention 
 of rent, 290. 
 
 Nails used in attaching fixtures, screw and 
 ordinary, 261, 263. 
 
 Naturalization, effect on leasing, 1 9. 
 
 Negligence, 537, 542 ; n. of tenants, in ques- 
 tions of repair, 220. 
 
 Neighbourhood, questions arising with third 
 parties out of, 637 seq. 
 
 Not necessarily contiguity, 537 ; culpa, 
 
 537 ; nuisance, 537 ; servitude, 537. 
 
 1. Injury to tenant by third parties, 538. 
 Title to complain depends on interest, 
 
 538 ; which the tenant alone has, if injury 
 be transitory — e.g., trespass, 538. If per- 
 manent injury, tenant has title to sue, 
 even though he thereby raises questions of 
 heritable title, 539. 
 
 Action by landlord and tenant together, 
 54C. 
 
 Action by landlord alone ; title depends 
 on question whether his reversion is 
 affected by conduct of the third party, 
 540 ; as by subsidence, structural changes ; 
 or the injury is done in vindication of an 
 adverse right, or in denial of landlord's 
 right, 540 ; not if merely transitory, 541. 
 Qu., if loss of a tenant or diminution of 
 letting value gives interest ? 541. 
 
 2. Injury to third parties by landlord 
 amd {or) tenant, 541. 
 
 Action against tenant alone, 541 ; 
 against landlord alone, 541 ; against both, 
 541. Liability of landlord to relieve 
 tenant of damages due to third parties, 
 642:— 
 
 Neighbourhood — continued. 
 
 Not if injury caused by tenant's sole 
 culpa, 642 ; choked drain ; reservoir over- 
 flowing, 542. Nor where he alone is 
 liable for disrepair, 542-3 ; badly fenced 
 shaft ; overflowing water from w.c, 543. 
 Nor where nuisance came into existence 
 after the letting, unless it must necessarily 
 or by strong probability result from the 
 ordinary use of the premises, or from use 
 for which they were let, or he gave his 
 authority, 544 ; pollution of stream, 
 544-6 ; what is and what is not a natural 
 and necessary result of letting subjects 
 for a particular purpose, 545-6 ; nuisance, 
 546 ; tacit relocation, 546. 
 
 KeHefr to tenant as for eviction, 546 ; 
 brothel, 646 ; relief of payments made by 
 tenant which turn out not to have been 
 actually due, 647. 
 
 Servitude, 547 ; effect of allowing 
 infringements to go on, 547 ; mode of 
 exercise by landlord, 547. 
 
 3. Injuries between tenants of same estate, 
 547. 
 
 New lease implies renunciation of old, 451. 
 
 Next-of-kin of landlord or tenant affected 
 by Agricultural Holdings Act, 240, 596. 
 
 Night, ejection by, unlawful, 494, 498. 
 
 Night Poaching Act, 414. 
 
 Nineteen years' leases, 158. 
 
 Non-entry to feu suspends the lease, sub- 
 ject to revival, 118-9. 
 
 Notarial instrument, of intimation and pro- 
 test, 166, 167 ; title by n.l. under Kegistra- 
 tion of Leases Act, 174 ; n.i. notifying 
 renunciation of lease, 449. 
 
 Notes, in books, as foundation for rei 
 interventus, 109. 
 
 Notice to treat, under Lands Clauses Acts, 
 effect of, on landlords' power to let, 203. 
 
 N. of commencement of draining in 
 Agricultural Holdings Act, 243 ; of claim 
 by tenant under Agricultural Holdings 
 Act, 246; of counter-claim, 246; of inten- 
 tion to remove, 508. 
 
 Nuisance, 537, 544, 646 ; occasioned by 
 structural alterations, 216. 
 
 Nursery-garden, plants as fixtures, 264 ; hypo- 
 thec not abolished, 327 ; how affected by 
 hypothec, 336, 338. 
 
 Oath on reference in proof of yearly lease, 
 104. 
 
 In proof of payment of rent, 283. 
 
 As foundation for rei interventus, 111. 
 
 Not evidence of intimation, 167. 
 
 Under Agricultural Holdings Act, 247. 
 
 Eliding triennial and quinquennial pre- 
 scriptions of rent, 286, 287. 
 
 In proof of reduction of rent, 296. 
 
 In proof of obligation to remove, 475. 
 
 Instructing abandonment of right to 
 eject, 495. 
 Obligation to remove, 135, 474, 478. 
 Occupation franchise, 552. 
 Of&oes, public, not subject of lease, 80. 
 
INDEX. 
 
 683 
 
 Old style, 302. 
 
 Option as to breaks, 453-6 ; landlord's o. to 
 
 declare irritancy, 469. 
 Oral evidence, see Parole. 
 Orchards, how affected by hypothec, 336. 
 Ordinary, administration by tutors, &c., 9. 
 0. leases, 127. 
 0. duration, 158. 
 0. removing, 439. 
 Ornament in questions of fixture, 262. 
 Outlawry of landlord, 16. 
 'Output and input,' meaning of, 41, 157, 446. 
 Oven, as a fixture, 263, 264. 
 Oversman, 405, 406 ; under Agricultural 
 
 Holdings Act, 247, 587. 
 Owner, lessee in long lease as, in Valuation 
 
 Act, 557. 
 Oyster-fishings let by Crown, 28. 
 
 Pactional rent, whether secured by hypothec, 
 323 ; on breach of obligation to remove, 
 474 ; and see Penalty. 
 
 Papistry, no longer a bar to enjoy leases, 18. 
 
 Parks, public, rate, 563. 
 
 Parliamentary burghs, leases by, 35. 
 
 Parliamentary election, see Franchise. 
 
 Parochial Board, 559. 
 
 Parole evidence, how it affects a written 
 contract, 97 ; p. and documentary evidence 
 in proof of yearly lease, 103 ; of inti- 
 mation incompetent, 167. 
 
 Particular agreement in Agricultural Hold- 
 ings Act, 245, 586. 
 
 Partition, as a fixture, 264. 
 
 Partner, barred by exclusion of assignees, 
 162 ; right to the franchise, 554. 
 
 Partnership, as lessor, 77 ; corporations, 77 ; 
 as lessee, 78; effect of dissolution, 78, 528. 
 Tacit relocation in jj., 509-12. 
 
 Passive title, not incurred by lessee's heir, 
 151, 152. 
 
 Pastoral, or arable, criterion, 303. 
 
 Pastoral farms, entry to, 301 ; under Agri- 
 cultural Holdings Act, 239, 594; payment 
 of rent of, 303, 306, 312 ; in questions of 
 hypothec, 334, 347 ; p. management, 378. 
 
 Pasturage, in plantations, gives right to 
 destroy rabbits, 422 ; servitude of p. gives 
 no right to grant lease of game, 430. 
 
 Pasture, permanent, a landlord's improve- 
 ment in Agricultural Holdings Act, 241, 
 596. 
 
 Payment of rent, see Kent II. Partial p. 
 so as to evade irritancy, need not be 
 accepted, 462. 
 
 Peace warning, 499. 
 
 Peats, in Crofters Holdings Act, 517, 520, 
 619, 622. 
 
 Peck, as measure of grain rent, 277. 
 
 Pedlars Act, 565. 
 
 Penal rent, in question of stamping, 93. 
 
 Penalty and pactional (additional) rent, 397. 
 
 Modes of enforcing conditions of lease, 
 
 397 ; distinguished, former modifiable, 
 
 latter not, 397 ; neither is a licence to 
 
 deviate, 397. 
 
 Pactional rent for mislabouring, mis- 
 
 Penalty — continued. 
 
 cropping, not modified, 398 ; where sett 
 changed, 398 ; not if in pursuance of 
 licence not contained in lease, 399. 
 
 Abandonment of claim not interred from 
 merely resuming part of farm, 399 ; nor 
 by the deviation being owing to accident, 
 399 ; but from discharge of rent without 
 reservation of claim, 399 ; and from 
 acquiescence in deviations, 400. 
 
 Kemedies; whether hypothecapplies,401. 
 Penalty modified to actual damage, 
 including expenses in obtaining implement, 
 401. 
 
 Discrimination between penalty and 
 pactional rent, 402 ; looking to their 
 nature, not to the name given, 402 ; fair- 
 ness : lump sum for many contingencies 
 or proportionated to extent of injury, 402. 
 
 Pension, croft as, 515, 628. 
 
 Permanent improvements defined in Crofters 
 Holdings Act, 514, 629. 
 
 Perpetual lease, 101 ; how far a real right, 
 124. 
 
 Perpetuities barred by Eutherfurd Act as to 
 long leases, 152. 
 
 Personal contract, lease a, 1, 88. 
 
 P. claim set off against rent, 131. 
 P. condition, see Heal condition. 
 
 Perversion, see Inversion. 
 
 Petition to Court of Session under Entail 
 Acts, 61 ; to Sheriff Court under do., 63, 
 64. 
 
 Pianoforte, hired, whether subject to 
 hypothec, 330 ; belonging to inmate, 332. 
 
 Pier-glass, as a fixture, 263. 
 
 Pigeons, tame, destruction of, 423. Wood- 
 p., 417, 422. 
 
 Plantations, killing of rabbits in, 422. 
 Management of p. not interfered with by 
 game lease, 435. 
 
 Planting, as reiinterventus, 115 ; resumption 
 for, 194. 
 
 Pledge distinguished from hypothec, 322. 
 
 Plenishing of house or shop enforced, 213, 
 350, 507 ; tenant's p., 251 ; distinguished 
 from repairs, 218 ; from fixture, 257. 
 P. order to secure hypothec, 213, 350, 507. 
 
 Ploughgate, landed qualification for killing 
 game, 414. 
 
 Plough-goods, poinding of, 535. 
 
 Poinding of hypothecated articles inter- 
 dicted, 343 ; of tenant's goods, 534. 
 
 Poinding of the ground, 535 ; attaches only 
 for rents due and to become due, so far 
 as tenants are concerned, 536 ; not goods 
 of third parties, 536 ; decree in absence, 
 536 ; citation, 536. 
 
 Poison, game and rabbits protected against, 
 417 ; Poisoned Grain Act, 417 ; Poisoned 
 Flesh Act, 418. 
 
 Police assessment, 564. 
 
 Policy, game not reserved in lease of, 421 ; 
 not available for enlargement of holding 
 under Crofters Holdings Act, 521, 622. 
 
 Pollution of rivers rate, 563 ; of water, 
 liability for, 544. 
 
684 
 
 INDEX. 
 
 Pond, a landlord's improvement in Agri- 
 cultural Holdings Act, 2il, 596. 
 Poor-rates valuation, rent and value of game 
 
 included in, 433-4, and see Burdens. 
 Portiouers, heirs, 145. 
 
 Possession defined, 121 ; detention and 
 animus or intention, 121 ; guasi-possession, 
 121; natural possession; civil p. 121. 
 Right and obligation of tenant in regard 
 to, 184 seq. The primary right to be put 
 and maintained in possession, 184. 
 
 A. Tenants' right to possession: — By re- 
 moving possessors, 184 ; conditional right, 
 184 ; gives right to inhibit, 185 ; and in- 
 hibition not recalled on consignation of 
 damages, 185 ; to be given timeously, 
 185. 
 
 Of whole subject let, 185 seq. ; house ; 
 machinery ; farms, 185 ; general descrip- 
 tion, 186 ; of what was lettable, 186 ; cus- 
 tom of trade, 186; state of possession, 186; 
 measurements, imperial or metric, 186 ; 
 Soots measures, 187 ; mistake in extent, 
 187; demonstrative and taxative, 187; 
 'or thereby,' 188; prior possession, 188; 
 sheep farms, 188 ; delivery over at entry, 
 189 ; shootings, 189 ; incorporeal subjects 
 or privileges, 189 ; servitude ; access, 189 ; 
 ' as possessed by,' 190 ; remedies — reduc- 
 tion, abatement of rent, withholding rent, 
 damages, 191. 
 
 Reservations in landlord's favour. See 
 Eeservations. 
 
 To he maintained in possession, 195 
 seq. : — 
 
 Warrandice, 196 ; absolute, 196 ; of 
 what is really let, 196 ; as matter of right 
 and at landlord's risk, 196 ; ascertainable 
 servitude, 196 ; water-supply, 196. Only 
 in case of eviction, 197 ; notice thereof, 
 
 197 ; gives claim to complete indemnity, 
 
 198 ; title to sue on warrandice in the 
 lessee, his heirs and assignees, not sub- 
 tenants, 198. Against representatives, 198. 
 Not if eviction caused by a supervenient 
 law, 198 ; or the illegal act of a third 
 party, 199 ; or his legal act of which ten- 
 ant took the risk, 199 ; prescription of 
 claim on warrandice, 199. 
 
 1. Eviction partial and temporary, 199 ; 
 damages due, 199 ; whether operations took 
 place on same or neighbouring subject, 
 200 ; negligence, 200 ; in altering sub- 
 jects, 200 ; stoppages in steam machinery, 
 200. 
 
 2. Eviction pa/rtial and permanent, 200 ; 
 abatement of rent due, 201 ; if by land- 
 lord's act, 201 ; rival establishment, 201 ; 
 resumption, 201 ; sequestration for full rent 
 refused, 201 ; tenant taking the risk, 201 ; 
 water-supply, 201 ; thirlage, 201 ; lease of 
 rents, 201 ; claim barred by arrangement 
 or mora, 202. Eviction by act of third 
 party, 202 ; damnum fatale, pure accident, 
 or public calamity, 202 ; gives claim for 
 abatement of rent. Compulsory sale — 
 Lands Clauses Act, q.v. 
 
 Possession — con tin ued. 
 
 3. Total eviction, 204 seq. 
 
 By reduction, 204. 
 
 By damnum fatale or pure accident, 204 ; 
 d.f. defined, 204 ; accident defined, 204 ; 
 fault or negligence excepted, 204 ; neither 
 party bound to restore, 205 — fire, 205 — 
 nor relieved of counter-obligations, 206 ; 
 tenant's right to abandon or to get abate- 
 ment of rent, 206 ; sterility, inundation, 
 fire, change of stream, exhaustion of 
 mineral, war, rebellion, riot, 206-7 ; phi^s 
 quam. tolerahUe, 207 ; state of markets, 
 207 ; rei interitus, 207 ; restoration 
 within reasonable time, 207 ; ' consider- 
 ' able inconvenience,' 208. In mineral 
 leases, exhaustion, not workable to profit, 
 209. Mora in abandoning, 209 ; in arbi- 
 trating, 209. 
 
 Insurance, q.v. 
 
 Interdict against interfering with ten- 
 ant's possession, 211. 
 
 B. Tenant's obligation to take and retain 
 possession, 212 seq. 
 
 Damages for breach, 212 ; liability of 
 executors, 212 ; obligation not to abandon, 
 
 212 ; landlord's right to terminate the 
 contract, 212; to get damages, 212; to 
 enforce possession, 212 ; and plenishing, 
 
 213 ; residence required, 213 ; in farm 
 leases, 213; irritancy, 213; fugitation, 
 public service, residence of family or others, 
 no excuse, 214. 
 
 Inversion, q.v. 
 
 P. is not rei interventus, 114 ; its func- 
 tions — to clinch an o£Eer binding on land- 
 lord, convert personal into real right, 
 perfect an assignation, 114. 
 
 P. taken by creditor in a bond, 44, 45. 
 P. during period at which old and new 
 leases overlap, 134. 
 
 P. necessary to render assignation effec- 
 tual against third parties, 168. 
 
 Proof of transfer of possession, 172. 
 Registration of long lease, &c., equivalent 
 to p., 173. 
 
 P. as criterion of right to rents, 302, 
 313. 
 Post, as fixture, 260, and see Letter. 
 Postponement of entry, effect of, 123. 
 Powers, ordinary, of trustees, 37, 39 ; special, 
 of trustees, 39. P. to grant or take lease, 
 limited by disability, 5 seq.; or limitation 
 of title, 43 seq. P. to landlord to break 
 lease, 146 ; to assign and to sublet or 
 either, 157. 
 Statutory p. to let, see Entail : Church. 
 Precario, possession held, ejection from, 504. 
 Precept of landlord, in Act 1655, 483. 
 Preference, fraudulent and undue, in bank- 
 ruptcy, 47 ; according to date of registra- 
 tion or possession, 173 ; in sublease, ac- 
 cording to priorities, 175. 
 Premature removing, waygoing crop, 372 ; 
 improvement compensation due at, 229, 
 230. 
 Premium, of insurance, liability tor, 211. 
 
INDEX. 
 
 685 
 
 Presbytery, consent required to statutory 
 lease of glebe, 31 ; control of letting of 
 manse, 30 ; under Agricultural Holdings 
 Act, 240, 594. 
 
 Prescription, triennial, 285 ; quinquennial, 
 286 ; of removings, 486. 
 
 Presumption, of liability to rent, from pos- 
 session, 101. 
 
 Prince of Scotland, heritable property treated 
 as Crown property, 25. 
 
 Prisons Acts, 565. 
 
 Privilege, exclusive, not assignable, 160. 
 
 Pro indiviso proprietors, title to sue remov- 
 ing, 444 ; right to hypothec, 324. 
 
 Prohabilis causa litigandi instructing bona 
 fides in a question of violent profits, 490 ; 
 in regard to juratory caution in suspen- 
 sions, 497. 
 
 Probative writ, clinched by possession, 91 ; 
 and see Constitution : Proof. 
 
 Procedure under Agricultural Holdings Act, 
 246, 587 ; under Crofters Holdings Act, 
 625. 
 
 Production in Court an equivalent to 
 intimation of assignation, 167. 
 
 Prohibitions in entails, 49. 
 
 Promise to let, 91 ; as to stamping, 94-5. 
 
 Proof of Lbase when not constituted by 
 probative writ, 103 seq.: — 
 Verbal leases, 103. 
 
 (1) One-year leases, 103 ; relation of 
 documentary and parole evidence, 103 ; 
 unusual period of endurance, 103. Aries, 
 184 ; locus pcenitentue on surrender of the 
 arles, 104 ; oath on reference : admission 
 on record, 104 ; tacit relocation, 104 ; 
 how deviations from the principal con- 
 tract are proved, 104 ; if lease for longer 
 period not good, even for year, 104 ; unless 
 possessed on, and then good for year only, 
 105; furnished premises, 105; improve- 
 ments, 105 ; damages for outlay where 
 lease ruled to be only good for a year, 105. 
 2. Verbal leases for more than a year, 
 106 seq.; general rule as to agreement 
 proved by writ or oath and resiling barred 
 by rei interventus, 106. 
 
 (a) Writ, 107; minute, missives, 107; 
 factor's writ ; articles of roup ; advertise- 
 ments, drafts, copies, 108 ; memoranda or 
 entries in estate-books or rent-roll, 109, 
 of a considerable estate, 111; entry sent 
 to Valuation Roll assessor. 111 ; effect of 
 receipts for rent. 111. 
 
 (6) Oath : of whom, 112 ; not affecting 
 singular successors, 112; only if there be 
 relevant statement of ret interventus, 112. 
 
 (c) Eei interventus defined, 112 ; pre- 
 venting repudiation of an express contract, 
 113 ; by acts of either party, 113 ; follow- 
 ing the agreement, 113 ; though not 
 actually known to the other, 113 ; unequi- 
 vocally referable to the agreement — one 
 for years, 114 ; possession not enough, 
 114; its proper functions, 114; tenant's 
 improvements, 114 ; if extensive, 115 ; 
 e.g. carriages, liming, enclosing, trenching, 
 
 Proof of Ijease— continued, 
 
 planting, cutting whins, draining, making 
 out-house, boring for mineral, making lade, 
 avenue, building, 115 ; effect of Agri- 
 cultural Holdings Act on this rule of rei 
 interventus, 115 ; damages, 115 ; grassum, 
 116 ; paying increased rent before ish of 
 old lease ; sublease for years, 116 ; corre- 
 spondence of agreement and r.i., 116 ; r.i. 
 before possession on the agreement, 116 ; 
 whether of ordinary length or not, 116. 
 
 P., instructing a renewal or prorogation, 
 133 ; a sublease, 174. 
 
 Propulsion to heir, notwithstanding exclusion 
 of assignees, 161. 
 
 Prorogation of lea.se in question of violent 
 profits, 488 ; and see Renewal. 
 
 Protection order, effect of, on power to let, 23. 
 
 Prout de jure, proof of delivery of rent 
 in kind, and of rent less than £100 Scots, 
 under verbal lease, 283-4. See Proof : 
 Parole. 
 
 Provisions, widows, &o., rent and value of 
 game included in calculating, 433-4. 
 
 Public burdens, see Burdens, public. 
 
 PubHo-house, prohibited, 282-3. 
 
 Public purposes, land for, in Eutail Acts, 66. 
 
 Public right, questions arising out of, 637 seq. 
 Right of public to enjoy particular uses 
 of heritable property, 638. 
 
 Public uses, of burgh lands, 36. 
 
 Pump, as a fixture, 263. 
 
 Pupil, cannot grant a lease, 5 ; may become 
 tenant, 14 ; but cannot take a lease, 14. 
 See Tutor : Judicial factor. 
 
 Pupils Protection Act, 7. 
 
 Purchase, of lease by landlord, 451 ; of land 
 by lessor, 451. 
 
 Purchaser barred from challenging lease, 
 which is real right under Act 1449, 118 ; 
 preferred on infeftment to lessee of unin- 
 feft author, 43 ; liability for repairs, 227 ; 
 apportionment of rent between him and 
 vendor, 313 ; in questions of hypothec, 
 346. 
 
 Purgation, of contravention of entail, 57 ; 
 of legal irritancies, 464 ; not of conven- 
 tional irritancies, 466, 472. 
 
 ' Put away,' prohibition in entails, 50. 
 
 Quadriennium utile, applicable to leases by 
 tutors, 5 ; and leases to and by minors, 
 20, 22. 
 
 Qualification to vote, see Franchise. 
 
 Quarries, repairs in leases of, 226 ; removing 
 from, 502 ; and see Mines. 
 
 Quinquennial prescription, 286. 
 
 Rabbits, see Game. 
 
 Not game, 413, 422 ; but vermin, 417. 
 Rabbit-catching, contract for, 432. 
 Rabbit-hole, in Ground Game Act, 429, 
 
 607. 
 Railway, as subject of lease, 82 ; siding, an 
 
 inversion under a farm lease, 214. 
 Range, kitchen, as a fixture, 263. 
 Ranking and sale, 47. 
 
686 
 
 INDEX. 
 
 Rates, 557 seq. ; deducted from tenant's 
 claim under Agricultural Holdings Act, 
 246 ; on furnished dwellings, 252. 
 
 Heal claim, set off against rent, 131. 
 
 Real condition, 407. 
 
 Quid ? Running with the land or with 
 the reversion, 407. 
 
 'Essential, inseparahle from the whole 
 ' substance of the right,' 408 ; bearing 
 reference to the general relation of land- 
 lord and tenant, 408 ; not merely personal 
 and collateral, 408. 
 
 Including — implied conditions, express 
 conditions as to improvements and repairs, 
 227, 236, 408 ; abatement of rent, 297, 
 408 ; commutation of victual rent : delivery 
 of mineral : damages" for miscropping or 
 disrepair : arbitration, 409 ; break, 454 ; 
 no relief against vendor, 409. 
 
 Personal are rent against debt ; deduc- 
 tion from rent for services, 409. 
 
 Proved, like lease itself, 40 ; or suc- 
 cessor barred personali exceptione from 
 objecting, 410 ; or by being bound to 
 relieve author, 410 ; abatement of rent, 
 410. 
 
 Apportionment of liability, 410 ; of 
 rights, 410. 
 
 Real contract, lease a, 89, and see Real right. 
 
 Real Rirht, lease as, 1, 11786?. Act 1449, 
 c. 17, tor protection of tenants against dis- 
 turbance before ish, 117 ; by purchasers, 
 creditors, heirs of entail, widows with 
 locality, superiors and the Crown, 118 ; 
 forfeiture of owner, 118; non-entry, 118 — 
 a temporary suspension of the lease, 119. 
 Requisites of Act 1449 : — 
 
 1. Writing, 119. 
 
 2. Land or fundo annexa, 120; mills, 
 minerals, salmon-fishings, houses, feiries, 
 harbours, 120 ; not services, game, 431, 
 433, fishing (unless use of whole land 
 absorbed), mansion-house, 121. 
 
 3. Possession, 121, 168 {see Possession) ; 
 as the outward sign of a lease or of its 
 being transferred, 122; in questions vrith 
 competing leases, 122 ; with singular suc- 
 cessor of lessor, 123 ; leases with postponed 
 entry, 123. Registration of Leases Act, 
 1857, registration made equivalent to pos- 
 session, ] 23 ; according to dates of registra- 
 tion, 123-4. 
 
 4. Definite ish (or duration), 124. For 
 years, or lives, or both, 124. Perpetual 
 lease invalid, 124 ; renewable leases good 
 for current period at least, 125. Leases 
 with indefinite termination — e.g., till debt 
 be paid off, invalid, 126; alternatively 
 to fixed ish, the latter then good, 126 ; 
 long leases, 126; ordinary and extraordi- 
 nary leases, 127. Destinations in ish, 128. 
 
 6. Fixed rent, 129 ; not elusory, 129 ; 
 though grassum taken, 129 ; form of rent, 
 129 ; royalty, kain, services, &c., 130 ; 
 indefinite services abohshed, 130 ; rent 
 retained to pay burdens, to pay debt or 
 interest on debt, 130 ; rent discharged. 
 
 Real right — continued. 
 
 131 ; allowance for wage, 131 ; counter 
 claim only personal, 131 ; and counter 
 claim arising out of the lease by conven- 
 tion, custom, or statute, 131-2 ; Registra- 
 tion Act, 1857, secures against challenge 
 on head of rent not fixed, 132. 
 
 Receipt of rent, as homologation, 88. 
 
 S. from subtenant as instructing land- 
 lord's consent, 176. 
 
 B. for rent, as foundation for rei inter- 
 ventus, 111. 
 
 R. absence of, in application for caution 
 for Violent profits, 489. 
 
 S. in proof of payment of rates or taxes, 
 570. 
 
 Record, see Registration. 
 
 Recording, see Registration. 
 
 Recovery of sums awarded under Agri- 
 cultural Holdings Act, 247, 590 ; of hypo- 
 thecated subjects removed, 344, 353. 
 
 Reduction of lease, as contravention of entail, 
 57 ; proper remedy after removing is 
 carried out, 496. 
 
 JR. of rent by tutor requires special 
 powers, 12 ; how instructed, 100 ; agreed 
 on, 296 ; stipulation, a real condition, 
 408, 410. 
 
 H. of tenant's claim under Agricultural 
 Holdings Act, 245, 586. 
 
 Re-entry after removal, competently inter- 
 dicted, 440. 
 
 Referee, see Arbitration. 
 
 Referee, under Agricultural Holdings Act, 
 247, 587. 
 
 Reference, see Arbitration. 
 
 Reference, under Agricultural Holdings Act, 
 247, 587. 
 
 Reformatories Acts, 565. 
 
 Regality, burghs of, leases by, 35. 
 
 Register of Sasines, for long lease, 123, 172. 
 
 Registered letter, warning by, 500, 501. 
 
 Registration of Leases Act, 1857, 123, 172 
 seq.; to make long leases a source of credit, 
 172 ; in Register of Sasines, 172 ; of pro- 
 bative leases for thirty-one years or more, 
 set forth by name, of fifty acres, or mines 
 or burgage, 173 ; and of these all assigna- 
 tions, translations, writs of acknowledg- 
 ment, adjudications, renunciations, and 
 reductions, 173 ; extracts, 173 ; effect of 
 registration, 173 ; determines preferences, 
 173 ; equivalent to possession, 123, 173 ; 
 title made up by notarial instrument, 174 ; 
 or writ of acknowledgment, 174 ; Act 
 applies though there is no definite rent, 
 132. 
 
 a. is not equivalent to intimation of an 
 assignation, 167. 
 
 E. for execution, founding summary 
 diligence, 316. 
 
 £. of adjudications, 46. 
 E. of births, deaths, and marriages — the 
 rate, 562. 
 
 iJ. of sequestrations, 35P. 
 
 R. of voters, 569. See Franchise. 
 
 Regulations, estate, 96. 
 
INDEX. 
 
 687 
 
 Eei interventws. See Proof. 
 
 Defined, 112; prevents repudiation, 112 ; 
 acta of either party, 113 ; following the 
 agreement, 113 ; though unknown to the 
 other, 113 ; unequivocally referable to 
 it, as lease for years, 114; distinguished 
 from possession, 114; corresponding with 
 the agreement, 116 ; though before posses- 
 sion on it, 116. 
 
 S. i. setting up an innovation in the 
 contract, 48 ; in proof of a renewal or 
 prorogation, 133 ; setting up informal 
 guarantee of rent, 360 ; instructing re- 
 nunciation of lease, 450 ; instructing 
 obligation to remove, 475 ; instructing 
 abandonment of right to eject, 495. 
 Relaxations, in entail prohibitions, 50. 
 Relief, to cedent paying rent due also by 
 assignee, 177. 
 
 S. of liability for repairs, 227 ; and dam- 
 ages through disrepair, 227. 
 M. of cautioner, 361. 
 B. of landlord by game tenant of liability 
 for damage through increase of game, 425. 
 H. to tenant by landlord of claims by 
 third parties, 542. 
 
 R. of public burdens by agreement be- 
 tween landlord and tenant, 570 ; proof of 
 payment of rates and taxes by receipts, 
 570. Interpretation of clauses of relief, 
 570-1 ; overpayment of stipend, 571. 
 Relocation, tacit, see Tacit relocation. 
 Removal of fixtures, 271. 
 Removing. 
 
 I. Removing Gbnekallt, 439 seq. 
 Voluntary r. on breach by landlord or 
 renunciation agreed on, 439. Irritancy, 
 legal or conventional, 439. Action of r., 
 
 439. Ordinary and extraordinary r., 439. 
 Break, 440. 
 
 1. Removing, the sole remedy, 440. 
 
 Not interdict, since tenant is in possession, 
 
 440. Interdict in questions as to use of 
 subjects and against re-entry after r., 440 ; 
 and against third parties, 441. 
 
 2. Title to sue, 441. 
 
 (a) Of lessor, cannot be impugned by 
 lessee except on ground of transfer of right 
 to sue posterior to lease, 441. 
 
 (6) Of one not the lessor. 
 
 (1) Unlimited owner, 442. 
 Infeftment required, 442, unless title be 
 
 by judicial sale, 442 ; or there be a de- 
 clarator, 443. Defect cured before decree, 
 443. Heirs of lessor, 443. 
 
 (2) Limited owner, 444. 
 
 Joint or pro indhiso', all must concur, 
 444 ; unless they act by majority or quorum, 
 444 ; or managing owner, 444 ; or are co- 
 adjudgers, 444. 
 
 Liferenter and fiar, 444-5. Teroe and 
 courtesy, 445. 
 
 Administrators, 445. Tutors, judicial 
 factors, trustees, curators, factors, or com- 
 missioners, 445. Defect, how cured, 446. 
 
 Adjudgers, 446. 
 
 Lessee, 446. 'Output and input' tenants, 
 
 Removing — continued. 
 
 446. Lost by decree of removing against 
 him, 447. Crofters, 447. 
 
 3. Defenders, 447. 
 
 When declarator necessary, 447 ; joint 
 tenants, 447 ; assignees and subtenants, 
 447 ; on summary ejection if not sanctioned 
 by landlord, 448 ; all possessors should be 
 called, 448. 
 
 II. Removing during Cdrrbnot. 
 See Renunciation : Break : Irritancy. 
 
 III. Removing at Ish — Ordinary Re- 
 moving. 
 
 Voluntary, 474. Action of r. solemn 
 and summary, 474. 
 
 A. Where express obligation to remove. 
 
 Form of obligation in lease, 474 ; with 
 or without additional rent on breach, 474 ; 
 this not being a licence to sit on, but a 
 compulsitor to remove, 475. Letter of re- 
 moval, 475. Licence to remove without 
 usual formalities, 475. 
 
 Proved by writ or oath, 475 ; not by 
 parole — e.g., cognisance of new lease to 
 another, unless set up rei interventu, 476. 
 
 Warning dispensed with if obligation 
 granted within year, 476. Porty days' 
 warning required if older, 477 ; ascertained 
 by A.S. 1756, sect. 1, 477 ; under which 
 rule the forty days must precede Whit- 
 sunday, and procedure by homing and 
 sheriff's order to eject in six days, 477. 
 Succeeding in the vice, 478. Suspension, 
 478. Summary procedure before sheriff, 
 478. 
 
 Sheriff Courts Act 1853, sects. 30, 31, 
 478, appUcable — (1) to probative leases 
 specifying term of endurance (which is 
 equivalent to obligation to remove), and 
 (2) to letters of removal, 478. These are 
 given the force of a decree of removing, 
 and are, along with landlord's written 
 authority, warrant to remove and eject, 
 provided iiotioe is given forty days before 
 ish, and it be carried out within six weeks 
 of the ish, 478-9. Probably applicable 
 to urban subjects, 479. Notices in 
 schedule, 479. 
 
 Agricultural Holdings Act, sect. 28. 
 Notice required of 1-2 years if lease be for 
 three years and upwards, or six months if 
 for less ; otherwise tacit relocation, 479 ; 
 notice as under above Act of 1853 ; irritan- 
 cies not affected, 480 ; nor landlord's 
 power to resume, 480. This provision 
 may be superseded by agreement, 480. 
 Difficulty as to notices where lease not in 
 writing, 480. 
 
 B. Solemn [or Formal) Remomngs, 481 seq. 
 The sources: — 
 
 (a) 1555, c. 39 : The general rule of re- 
 movings, though in great .part obsolete, 
 481-2; but mainly apphcable to rural 
 subjects, 482 ; the rule in determining their 
 character being that accessory follows 
 principal, 482; not to yearly leases, or 
 leases of grass parks, or liferent leases. 
 
688 
 
 INDEX. 
 
 Kemoving — continued. 
 
 482; but to leases from a literenter and 
 the like, 482. 
 
 Procedure — precept, execution thereof, 
 publication, time of warning — forty days 
 before Whitsunday (not free days between), 
 483 ; being itself the earliest ish or the 
 Whitsunday before that ish, 483. 
 
 (6) A.S. 1756, sect, g: Action of remov- 
 ing raised at least forty days before that 
 Whitsunday, 484. 
 
 (c) Sheriff Court Act, 1853, sect. 29 : 
 Same forty free days between execution of 
 summons and the term of removal (or first 
 ish) whenever that might fall, 484. 
 
 (d) Agricultural Holdings Act, sect. 28 : 
 See supra {A); longer warning, 484. 
 
 Action of Removing, 485 seq. 
 
 1 . Petition and answers in Sheriff Court, 
 
 485 ; cases in Court of Session, 485. De- 
 fences, 486 ; prescription of removings, 
 
 486 ; jus qucesitum tertio, 486-7. 
 
 2. Caution for violent profits, 487. See 
 Violent profits. 
 
 .3. Decree of removing, 493. 
 
 In Court of Session where ancillary to 
 other decrees, ejection carried out by 
 sheriflt, 493. 
 
 In Sheriff Court extractable in forty- 
 eight hours. Order to remove on pain of 
 ejection, 493. 
 
 Ejection, inventorying goods, opening 
 lockfast doors, by officers of Court ; not at 
 night, 494. Transference of right to eject 
 and of liability to ejection, 494-5. Eight 
 to eject passed from, 495 ; this proved by 
 vrrit or oath, or informal writ with m 
 interventus, 495. 
 
 4. Suspension, 495. 
 
 The only mode of review, 495 ; not 
 appeal, 495 ; interdict and removing kept 
 separate in this matter, 495. 
 
 Form of suspension, 496. Competent 
 till removing is carried into execution ; 
 thereafter remedy is by reduction, 496. 
 Caution ordered, when juratory caution 
 suificient, 496 ; if there be prohabilis causa 
 litigandi, 497 — e.g., where denied that rent 
 was due, 497 ; or counter claims existed, 
 
 497 ; or landlord's pleadings were unsatis- 
 factory, 497. 
 
 Decree cannot be varied by suspension, 
 497. 
 
 Damages 'for wrongous ejection, 497. 
 Spuilzie, 497. Measure of damages, 498 ; 
 ejection by night, 498 ; not for ejection 
 from dwelling in outbuildings possessed 
 for storing, &c., crop, 498 ; nor where 
 goods attached by landlord's sequestration, 
 
 498 ; nor where removing voluntary, 498. 
 C. Summary removings, 498 seq. 
 Nomenclature, 498. Urban tenements, 
 
 498. 
 
 1. From urban tenements at common 
 law, 499. 
 
 In burghs, custom : peace-warning : 
 chalking door on verbal order to officers : 
 
 Removing — continued. 
 
 execution, 499 ; service personally or at 
 dwelling-house, not necessarily on subjects 
 let, 500. Acknowledgment of intimation, 
 500. Service by registered letter timeous- 
 ly, 500. Period of warning — at least forty 
 days, 500 ; if house let for four months or 
 less, one-third of the duration, 500. 
 
 Extra-iurgaZ houses, 501. Custom, re- 
 gistered letter, ordinary post letter, delivery 
 at dwelling-house, period usually forty 
 days, 501. 
 
 Term-day for removing. Act 1886. As 
 to all houses, including farm-houses, 501 , 
 28th May and 28th November at noon; 
 
 502 ; but warning forty days before 15tb 
 May and 11th November, 503 ; effect on 
 hypothec, 502. 
 
 From factories, barns, salt-pans, mines, 
 quarries, 502. 
 
 2. From small holdings — by Sheriff Court 
 Act, 1838, 503. 
 
 Subjects let for less than a year at rate 
 not more than £30 a-year, 508 ; procedure, 
 
 503 ; forms, 503 ; in the case of servant- 
 tenants, 504 ; and irritancies, 504. 
 
 Notice by tenant of his intention to quit, 
 at common law, 508, and under Agricul- 
 tural Holdings Act, 508. 
 
 See also Ejection : Tacit relocation. 
 
 R. raised by tutor, 7 ; not competent to 
 bondholders, 45 ; raised by a bankrupt 
 landlord, 47 ; from common property, 74 ; 
 in sublease, 182. 
 
 Actual r. bars tacit relocation, 509. 
 Kenewable leases, how far real rights, 125. 
 Kenewal of leases distinguished from pro- 
 rogation, 133 ; constitution according to 
 the ordinary rules, 133 ; probative or 
 verbal with rei interventus, 133 ; successor 
 of landlord, 134 ; leases tandem, 134 ; 
 knowledge by the singular successor of the 
 renewal, 134 ; obligation to renew, 135 ; 
 teinds, shooting, 135. 
 
 R. of lease expiring during tutory, 14. 
 
 Tacit relocation a constructive r., 509. 
 Rent, 273 et seq. 
 
 Defined, 273 ; services, carriages, wages, 
 273 ; due by stipulation, 274 ; annual 
 value due for possession vnlthout agree- 
 ment, 274 ; mode of computing it then, 
 274. 
 
 I. FoBMS OP Rent, 274. 
 
 Money, 275 ; ascertained or ascertain- 
 able by valuators on probative award or 
 informally with rei interventus, 275 ; risk 
 of payment, the tenant's, 275 ; multiple- 
 poinding, 2'75. 
 
 Grain, victual, hain, 275 ; advantages 
 and drawbacks, 275 ; flying customs, 
 custom-wethers, fish : risk, whether of 
 same grain : commutation, 276 ; Weights 
 and Measures Acts, rent according to the 
 old measures — boll, firlot, peck, tron-stone, 
 276-7 5 fiars' prices, 277. 
 
 Royalty or lordship, 277 ; the price in a 
 sale of minerals, payable by instalments. 
 
INDEX. 
 
 689 
 
 Rent — continued. 
 in shape of part of the produce, 277 ; or a 
 money rate per ton of output, with or 
 without a sliding scale according to market 
 price, 278 ; books to be kept and exhibited: 
 weighing to be accurate : check -grieve 
 admitted, 278 ; the claim is liquid : errors 
 owing to tenant's misstatements to be 
 corrected : mora in calling for books no 
 excuse, 278 ; making up shorts, 279. 
 Services, fees, heriots, stall dues, 279. 
 
 II. DiSOHAKGE OF OBLIGATION TO PaY, 
 279 seq. 
 
 1. Payment, 279. 
 
 (0) Mode : In full, by debtor to creditor 
 or persons on their- behalf, and in bond fide, 
 279 ; e.g., to unattainted traitor, to a life- 
 renter in possession, 279 ; to an apparent 
 heir, if tenant be unconscious of want of 
 title, and though in advance, provided 
 there be an established system, 280 ; not 
 to landlord in non-entry after action by 
 superior against tenants, or after citation 
 in action of maills and duties, or in ad- 
 vance casually (forehand for the occasion) 
 which presumes collusion, 280 ; trustee on 
 landlord's sequestrated estate cannot get 
 second payment, 281 ; though persons not 
 representing hiTn may, 280-1. 
 
 (6) Parties, 281. Landlord, his repre- 
 sentatives and assignees to rents have the 
 right ; effect of assignation by personal deed 
 and by infeftment in the subjects let, 
 latter preferred, 281 ; effect of intimation 
 of an assignation, 282 ; of arrestment, 
 232. Tenant, his representatives and 
 assignees liable, 282. 
 
 (c) Proof of payment, 282. 
 
 (1) Express discharge, 282. 
 Subscribed writing, not necessarily 
 
 holograph, if granted debito tempore, 283 ; 
 old cases where no subscription doubted, 
 
 283 ; general or special discharge, 283 ; 
 whether rents included, 283 ; delivery of 
 rent in kind or payment of money under 
 £100 Scots on verbal lease proveable 
 prout de jure, 283-4 ; otherwise writ or 
 oath, though rent be under £100 Scots, 
 283 ; receipt stamp, 284 ; may be after- 
 stamped within month on penalties, 
 284. 
 
 (2) Tacit discharge, 284. 
 
 By the so-called apocha trium annorum, 
 
 284 ; three discharges of consecutive term- 
 ly payments in writing of landlord or 
 factor, 284 ; and though paid piecemeal 
 as to any or all of the terms, 285 ; and 
 though by different tenants, 285 ; no 
 effect against an undischarged bill or a 
 decree, 285. 
 
 (3) Prescription, of house maiUs — 
 Triennial : 1579, u. 83 ; runs against 
 
 minors, 285 ; course of the prescription, 
 286 ; writ or oath eliding it, of constitu- 
 tion and subsistence (resting-ovring), 286 ; 
 oath of heir, 286. 
 
 quinquennial : 1669, c. 9 ; five years 
 
 Rent — continued. 
 
 after removing, 286 ; scope of the pre- 
 scription, 287. 
 
 4. Compensation, 287. 
 
 In sense of 1592, o. 143 ; as distinguished 
 from retention {infra), 288. Parties, debtor 
 and creditor to each other, not for rents 
 due after citation, adjudgers, assignees, 
 arresters, factors, 288 ; partners, 289. 
 Debts of same quality, 289 ; both liquid or 
 at once liquidable. O. operates ipso facto 
 extinction on being pleaded, 289. 
 
 5. Retention of rent, 289 seq. 
 
 (a) In balancing accounts in landlord's 
 bankruptcy, 289 ; where the debt set off 
 against rent can be ranked for and the 
 concourse of debit and credit existed before 
 the bankruptcy, 289 ; i.e., against arrears 
 of rent, the sequestration being an inter- 
 pellation, 290 ; preferential claim against 
 landlord, 290. 
 
 (6) Apart from bankruptcy, on the 
 ground of mutual obligation, 290 ; i.e,, 
 rent not exigible till landlord fulfils his 
 obligations under the lease, 290 ; differing 
 from compensation in being means of 
 enforcing, not extiiiguishing, an obli- 
 gation, 290 ; effect of lease being a con- 
 tinuing contract, 290 ; retention on failure 
 to fulfil a cardinal obligation, not an 
 obligation collateral to putting and main- 
 taining the tenant in possession, 291 ; 
 especially towards iah, 291 ; failure to put 
 or keep tenant in possession justifies 
 retention, 292 ; bam pulled down by land- 
 lord : dock buUt on a fishing station : water 
 diverted from mill with landlord's per- 
 mission : obstruction to supply of chemical 
 let with lands, 292 ; failure to give road 
 to quarry, 293 ; similarly, selling goods 
 against stipulated monopoly, 293. Col- 
 lateral obligation contra, 293 ; unless at 
 close of lease, e.g., for meliorations, 293 ; 
 or value of manure, 294. If these col- 
 lateral claims arise during lease, caution 
 or consignation ordered in passing note of 
 suspension, or note refused, 294 ; especially 
 if the damage be immaterial, 295. Sub- 
 tenant has no right to retain on ground of 
 threatened reduction of principal lease, 
 295 ; or by tenant of minerals become 
 unworkable to profit : Dryburgh's case, 
 295-6. 
 
 6. Stipulated abatement or reduction of 
 rent, 296. 
 
 Powers of limited owners to make, 296 ; 
 proof thereof, vmt, oath, or judicial ad- 
 mission of landlord, 296 ; temporary 
 abatements or continuing reductions, 296 ; 
 conditional agreements, 296 ; affects aU 
 successors and landlord's bankruptcy 
 trustee, 297. 
 
 See also Terms : Apportionment : Sum- 
 mary Diligence ; Maills and Duties : 
 Hypothec : Caution. 
 
 R. clause, 298. 
 
 Fair r., under entails, 54. 
 
 3 X 
 
690 
 
 INDEX. 
 
 Kent — continued. 
 
 Fixed r., in Crofters Holdings Act, 620. 
 Definite r. an essential of lease as real 
 right, 129. See Real right. 
 
 R. in game lease treated as rent of land, 
 433. 
 
 R,, interest on arrears of, 396. 
 Rent-roll, 169 ; entry in, as foundation for 
 
 rei interventus, 109. 
 Rental, diminution of, 55, 57. 
 Rental-book, entry in, as foundation for 
 
 rei interventus, 109. 
 Rental rights, described, 137 ; not grantable 
 by tutors, 12 ; fall under single escheat, 
 18 ; factor cannot grant r.r., 41. 
 Rentallers, 137. 
 Rental-book, entry in, 169. 
 Renunciation, 439, 449. 
 
 By consent of parties, 449. 
 
 Express r., form thereof, 449 ; notarial 
 instrument, 449 ; acceptance : discharge 
 of obligations : implied acceptance : rei 
 interventus : inspection : discharge himo 
 inde implied, 450; incoming tenant a 
 party, 450. 
 
 Implied r., 451 ; where new lease is 
 taken, 451 ; and confusione or succession 
 or merger, by purchase of lease by land- 
 lord, and purchase or succession by ten- 
 ant, 451 ; his taking feu, 452 ; if feu 
 reduced by one who does not represent the 
 lessor, both it and the lease go : if reduced 
 by lessor or his representative, the lease 
 revives, 452. 
 
 Limited owners and incapacitated per- 
 sons, special powers to accept and grant 
 r., 452 ; e.g., to tutors, judicial factors, 
 curators, 452 ; if for the benefit of estate, 
 453 ; minors and trustees cannot get 
 special powers, 453. 
 
 R. accepted by tutors, &c., 12. 
 
 R. by tutor, 14. 
 
 R. not necessarily barred by inhibition, 
 48. 
 
 R. of old, in accepting new, lease under 
 entails, 53. 
 
 R. paving the way to a renewal, 134. 
 
 R, of compensation for resumption, 195. 
 
 Break in favour of tenant is power of r., 
 453. 
 
 R. under Crofters Holdings Act, 520. 
 And see Abandonment. 
 Rhpaibs, 218 seq. 
 
 Distinguished from improvements, 
 fixtures, furnishings, 218, 257 ; and plen- 
 ishing, 219 ; warranty of reasonable fitness 
 for purpose of the letting, 219. 
 
 1. In whan leases, 219 ; subjects to be 
 put in habitable and tenantable condition, 
 219 ; Housing of Working Classes Act, 
 219 ; no standard of comfort, 219. And 
 so upheld, 220; 'wind and water tight,' 
 220 ; unless for damnum fatale, pure 
 accident, or tenant's neghgenoe, 220 ; 
 tenant's right to repair at landlord's ex- 
 pense at sight of Court, 220 ; to get 
 damages, 220 ; or refuse, abandon, or 
 
 Repairs — continued. 
 
 suspend possession, 221 ; vermin, 221 ; 
 unhealthy, 221 ; drains bad, 221 ; or 
 retain rent, 221. These rules altered by 
 stipulation, 221. 
 
 2. In agricultv/ral leases, 222 ; ' tenant- 
 ' able repair,' 222 ; as to buildings, fences, 
 and gates, 222 ; and the furnishing of 
 such, 222 ; unless the lease be one of 
 rents, 222 ; tenant's obligation to main- 
 tain or uphold, and leave tenantable, 222 ; 
 except new subdivision (not march) 
 fencei, 223, and the result of damnum 
 fatale or pure accident (fire), 223 ; or tear 
 and wear, 223. 
 
 Rules altered by stipulation, 223 ; 
 arbitration, 223 ; inventory, 223 ; assigna- 
 tion of landlord's claim to incoming ten- 
 ant, 223 ; improvements not set against 
 want of repair, 224 ; wood used, 224 ; 
 mora in making claim against tenant, 224 ; 
 vouchers, 224 ; what is repair and what is 
 improvement, 224 ; repair of improvements 
 and of fixtures at ish, 225. 
 
 3. In leases, (be., of mines, quarries, mills, 
 shootings, fishings, 225-6. 
 
 Remedies, 226 ; inspection, 226 ; liability 
 of successors, 226 ; a real condition, 227 ; 
 no relief, 227 ; liability for damages caused 
 disrepair does not transmit except to re- 
 presentatives, 227. 
 
 Stipulation as to r., a real condition, 
 408. 
 
 Liability to third parties for want of r., 
 542. 
 
 Representatives, of landlord, liability for 
 improvement compensation, 234 ; of ten- 
 ant, liability to improve, 237 ; of cautioner, 
 liability of, 363. 
 
 Res merai faeultatis, 217. 
 
 Reservations, in landlord's favour, 191 seq., 
 especially in farming leases, 191. 
 
 Ex lege, 191 ; minerals, 192 ; svirface 
 damages, 192 ; marl, 192 ; soil removed, 
 192; subsidence, 192; woods, 192; 
 willows, 193 ; measurable timber, 193 ; 
 old penalties for injury to woods, 193; 
 riot, 193 ; malicious mischief, 193 ; kelp- 
 shores, 193 ; game, &c., 193, 421 ; fish, 
 421. 
 
 Conventional )•., 194 ; resumption sub- 
 ject to compensation, 194 ; for planting, 
 
 V feuing, exoambing, 194 ; at landlord's 
 discretion, 194. The compensation ascer- 
 tained by arbitration, 195 ; unless re- 
 nounced, 195 ; taken as at date of resump- 
 tion, 195. 
 
 R., under Crofters Holdings Act, 517, 
 619. 
 
 Reservoir, a landlord's improvement in 
 Agricultural Holdings Act, 241, 596 ; 
 flooding from r., 542. 
 
 Residence, clause of, 213 ; obligation of 
 fenced by irritancy, 470. 
 
 Restoration of ground, at ish of mineral 
 lease, 389. 
 
 Restrictions, on use of urban subjects, 378. 
 
INDEX. 
 
 691 
 
 Resumption, of land by landlord, 194 ; does 
 not infer abandonment of claim for pac- 
 tional rent, 399. 
 
 Break in favour of landlord is power of 
 r,, 453. 
 
 Not affected by Agricultural Holdings 
 Act as to removing, 480, 592. 
 
 S.f in Crofters Holdings Act, 617, 619. 
 
 Retention, of moveables, distinguished from 
 hypothec, 322 ; a mode of making hypothec 
 effectual, 322, 342. 
 
 R, of rent, distinguished from compen- 
 sation, 288 ; in questions of real right, 130 ; 
 to pay public burdens, 130 ; to pay debt 
 and interest, 130 ; and see Rent II. 
 
 Retrocession, 165. 
 
 Review, in cases of removing, 495. 
 
 Riot, destroying woods, 193. 
 
 Risk, of delivery of rent, 275, 276. 
 
 Rival trade, 201, 379. 
 
 Road, a landlord's improvement in Agricul- 
 tural Holdings Act, 241, 596 ; r., in 
 Crofters Holdings Act, 517, 619. 
 
 Roads and Bridges Act, 568. 
 
 Rooks, right to destroy, 422. 
 
 Rosebery Act, 58. 
 
 Rotation of crops, 365, 367, 391, 394. 
 
 Roup, public, of burgh leases, 33, 34, 36 ; 
 how far roup exempts from hypothec, 347, 
 348 ; articles of r. a foundation for rei 
 interventus, 108 ; summary diligence 
 thereon, 318. 
 
 Royal burgh, see Burgh. 
 
 Royalty, form of mineral-rent, 277. See 
 Rent I. ; in Crown leases, 26 ; in ques- 
 tions of real right, 130 ; whether secured 
 by hypothec, 334. 
 
 ' Running with ' the land or reversion, said 
 of real conditions, 407. See Real condi- 
 tion. 
 
 Rules of Crofters Commission, 630. 
 
 Rural tenement, defined, 159 ; Act 1555 
 mainly applies to leases of, 482. 
 
 Rustic tenement, defined, 159. 
 
 Rutherfurd Act and its amendments, 61. 
 
 Safe, as a fixture, 264. 
 
 Sale distinguished from lease, 1 ; in land- 
 lord's sequestration, see Hypothec VI. ; 
 sale by bulk in open market, exempts from 
 hypothec, 346. 
 
 Salmon fishings, let by Crown, 27 ; subjects 
 of real right of lease, 120 ; personal right 
 of, 431. 
 
 Salt-pans, as fixtures, 261, 264, 271. 
 
 Sasine, possession as the s. of a lease, 122 ; 
 register of s. for long leases, 172. 
 
 Scales of exhaustion of improvements, 245. 
 
 Scaring birds, exemption from Gun Licence, 
 417 ; scaring game, 421. 
 
 School, and schoolhouse, land for in Entail 
 Acts, 66 ; compulsory powers under Edu- 
 cation Act, 67 i s. a place of business, 380. 
 
 School Board, 561. 
 
 Schoolmaster, as holder of a croft, 515, 628. 
 
 Scientific purposes, land for, in Entail Acts, 
 
 Season, in game lease, 435. 
 
 Seats in church, 548. 
 
 Secretary of State, in Agricultural Holdings 
 
 Act, 240, 594. 
 Security for debt, a lease is not, unless pos- 
 sessed on by creditor, 168. 
 
 Rent as s. makes lease a personal con- 
 tract only, 409. 
 Seed, retention of, in hypothec, 344. 
 Seeds, grass, 374. 
 Seller, see Purchaser. 
 Senility, of lessor or lessee, 15. 
 Separation of spouses, effect of, on powers to 
 let, 23. 
 
 & of crop, date of entry to crop land 
 in Whitsunday entry, 300 ; the beginning 
 of year, 303. 
 Septennial limitation of caution for rent, 362. 
 Sequestrated landed estate, factor on, 7. 
 Sequestration in bankruptcy, effect of, where 
 assignees are excluded, 162 ; made a con- 
 ventional irritancy, 468 ; of tenant, as 
 proof of title to remove, in question of 
 violent profits, 489. See Bankruptcy. 
 
 Landlord's s. made a conventional irrit- 
 ancy, 468, 472 ; no bar to ejection, 498. 
 See Hypothec III. ; landlord's s. and s. 
 in bankruptcy contemporaneous, 534. 
 Servants, farm, may contravene Day Tres- 
 pass Act, 415 ; s. as tenants, removing of, 
 504, 506. 
 Service, part of rent, 101 ; not capable of 
 sustaining a real right, 121, 130. 
 Indefinite s. abolished, 130. 
 Hire of s., in letting lodgings, 253 ; in 
 letting steam-supply, 254 ; as rent or con- 
 ditions of a lease, 273, 279 ; set against 
 rent, a personal contract, 409. 
 
 S., public, no excuse for non-residence, 
 214. 
 
 S., edictal, of assignation, 165. ' 
 
 S., lease vests without, 144 ; «. under 
 Registration of Leases Act, 144 ; s. of 
 peace- warning, 500. 
 Servitude, 189, 637, 547 ; same rules as in 
 
 regard to nuisance, 547. 
 Session, Court of, function in cases of irrit- 
 ancy, 471 ; in removings, 485. 
 Settlement, in form of lease, 1 ; carrying 
 
 lease by general words, 149. 
 Sewing machine, hired, whether subject to 
 
 hypothec, 330. 
 Shaft, badly fenced, liability for injm:y to 
 
 third party from, 643. 
 Sheds, as fixtures, 260. 
 
 Sheriff, jurisdiction as to small estates of 
 wards, 13 ; judges of ' reasonable ground 
 ' of objection ' to legatee of agricultural 
 tenant, 151 ; and final thereanent, 151, 
 593 ; powers and duties under Agricul- 
 tural Holdings Act, 247, 589, 590 ; com- 
 petent in ejections, 608. 
 
 S., competent to eject on failure to 
 plenish, 362; competent in questions of 
 irritancy, 471. 
 
 Procedure before s., where there is an 
 obligation to remove, 478 ; where none, 484. 
 
692 
 
 INDEX. 
 
 Sheriff — continued. 
 
 S., duty under Crofters Holdings Act, 
 515, 621, 624. 
 
 Sheriff-clerk, duties under Crofters Holdings 
 Act, 627. 
 
 Shifts, 366, 368, 370, 398. 
 
 Shootings, promise of lease of, in question 
 ■with singular successor, 135 ; repairs in 
 leases of s., 226 ; and see Game. 
 
 Shop, lease of, assignable and sublettable, 
 159 ; insurance of, 210. 
 
 Lease of s. with fittings, 253. 
 Furniture and goods in s., how far sub- 
 ject to hypothec, 332, 350 ; s. to be kept 
 dry, 351. 
 
 Shorts, making up, in paying lordship, 278. 
 
 Shrubs, as fixtures, 262, 264. 
 
 Silo, a landlord's improvement in Agricul- 
 tural Holdings Act, 241, 596. 
 
 Silvas cwduce, 69, 73. 
 
 Singular successors, of lessor, possession by 
 lessee necessary to secure against, 122. 
 
 How affected by prorogation or re- 
 newal of leases, 134 ; their knowledge 
 thereof immaterial, 134. 
 Liability for repairs, 226. 
 Liability for improvement compensa- 
 tion, 234. 
 
 Slaughter-house, as a nuisance, 382. 
 
 Sliding scale, in ascertaining lordship, 277. 
 
 Sluice, a landlord's improvement in Agricul- 
 tural Holdings Act, 241, 596. 
 
 Small-Debt Court, in sequestration and sale, 
 358. 
 
 Small holdings, removing from, 503. 
 
 Smoke nuisance, — rate, 563. 
 
 Soil, can it be shifted by farm-tenant ? 192. 
 
 Solemn removing, see Removing IIL (2). 
 
 Special powers, to tutors, to let on ordinary 
 terms but ultra vires of them, 7, 10 ; 
 expediency or evident utility, 8, 10 ; not 
 to do ordinary duty, 9 ; but to let beyond 
 term of guardianship, 10, 11 ; to take 
 diminished rent, 12 ; to allow abatement, 
 12 ; or reduction of rent, 12 ; continuing 
 powers, 8 ; refused to minors, 21 ; granted 
 to trustees to let, not at common law, 38 ; 
 but by statute, 39 ; to renounce lease or 
 accept renunciation, 452. 
 
 Specific compensation, in Agricultural Hold- 
 ings Act, 244, 586. 
 
 Spring traps, in Ground Game Act, 429, 
 607. 
 
 Spuilzie, 497. 
 
 Squatter, in common property, removeable 
 by any owner, 75 ; ejection of s., 507. 
 
 Stabling, hired out, an inversion under a 
 farm lease, 214. 
 
 Stamp, receipt in proof of payment of rent, 
 284. 
 
 Stamping, 92 seq.; each separate agreement, 
 
 92 ; after-stamping, 92 ; amounts of dues, 
 
 93 ; agreements for lease treated in same 
 way, 94 ; agreements for a conversion of 
 rent, 94, 95 ; penal rent, 95 ; substantial 
 improvements, 95 ; lease for year and 
 imder 95 ; penalties, 95. 
 
 Steam engine, as a nuisance, 382. 
 
 Steam-power, as subject of lease, 82 ; no 
 hypothec under, 326 ; hire of «., 254. 
 
 Steelbow, 256 ; ownership of the moveables, 
 256-7 ; in questions of hypothec, 336 ; 
 whether landlord has preference for, in 
 tenant's sequestration, 533. 
 
 Stipend, over payment of, 571. 
 
 Stipulation, required to create rent proper, 
 274. 
 
 Stock in trade, how far subject to hypothec, 
 332-3, 350. 
 
 Stocking on farms, subject to hypothec, 335, 
 337, 347, 352. 
 
 Stoppage, making up, in hire of steam- 
 supply, 255. 
 
 Storage, of waygoing crop, 372. 
 
 Stove, as a fixture, 263, 264. 
 
 Straw, of waygoing crop, 376. 
 
 Structural alteration, when an inversion, 
 215. 
 
 Strwti juris, contract, how far lease is, 
 88. 
 
 Studio, a place of business, 380. 
 
 Subdivision, prohibited under Crofters Hold- 
 ings Act, 517, 618 ; is., fences not to be 
 upheld by tenant if new, 223. 
 
 Subjects op Lease, 80, 101 ; land, build- 
 ings, water, fishings, game, mines, woods : 
 not offices, customs, &c., 80 ; mUls and 
 multures, 80 ; thirlage, 81 ; minerals, 81 ; 
 meaning of words in lease describing min- 
 erals, 81 ; fishings, 81 ; personal licence, 
 82 ; kelp, 82 ; steam-power, water-power, 
 82 ; tolls, 82 ; railways, 84 ; ferries, 83 ; 
 dues and rents, 83. 
 S. of sublease, 176. 
 
 Sublease. 
 
 1. Power to sublet, see Assignation, 
 from which it is distinguished, 156. 
 
 2. Oompletion of sublease. 
 
 Merging in lease, 165, 175 ; sublease 
 constibuted and proved in the same way 
 as lease, 174 ; and preferences according 
 to priority of possession the same, 175 ; 
 retrocession, 175. Porm of sublease, 175 ; 
 subject, duration, 176 ; questions with 
 landlord, 176 ; if landlord does not con- 
 sent to sublease, 176 ; consent how in- 
 ferred, 176 ; receipt of rent, writ of factor, 
 176, 177 ; consent implied, 177 ; intima- 
 tion of challenge of principal lease, 177; 
 desertion by principal tenant; merger in 
 the ownership, 177. 
 
 3. Eights and obligations a/rising out of 
 5., 180. 
 
 As between lessor and lessee, 180 ; as 
 between lessee and sublessee, 180; hypo- 
 thec, 180 ; payment of subrent, 180 ; 
 claims in case of eviction, 181 ; on war- 
 randice, 181. 
 
 As between lessor and sublessee, 181 ; 
 no direct action, 181 ; circuity of action 
 in case of eviction, 181 ; claim of damages 
 on eviction, how barred, 182 ; removing, 
 violent profits, hypothec, ejection, arrest- 
 ment of subrents, irritancies, 182 ; to fulfil 
 
INDEX. 
 
 693 
 
 Sublease — continued. 
 the prestations involves indemnity, if 
 they are not fulfilled, 183: interdict, 
 188. 
 
 iS. as m interventus, 116. 
 
 S. taken from persons substituted for 
 heir, an abandonment by him, 153. 
 
 S. back from assignee to cedent, with- 
 out change of possession, gives no security 
 to assignee, 169. 
 
 Effect of s. in questions of hypothec, 348. 
 
 Prohibition against s. fenced with irrit- 
 ancy, 470. 
 
 S. prohibited under Crofters Holdings 
 Act, 517, 618. 
 
 S. where tenant is bankrupt, 530. 
 Subsidence, 192 ; compensation for, 385, 388, 
 
 540. 
 Substitute, for fixture, 272. 
 Substituted compensation, in Agricultural 
 
 Holdings Act, 240, 243, 244, 248, 585. 
 Substitution of assignee for cedent in assig- 
 nation, 177. 
 Subtenant, may not invert possession, 216 ; 
 cannot retain rent on ground of threatened 
 reduction of principad. lease, 295 ; as de- 
 fender in action of removing, 447-8 ; in 
 relation to tacit relocation, 510 ; and see 
 Sublease. 
 Succeeding in the vice, 478. 
 Succession to Lessee, 143 seq. 
 
 Delectus personm, 143 ; old rule against 
 succession, 143 ; vests without service, 144 ; 
 completion of title under Registration Act 
 by service or writ of acknowledgment, 
 144. In heir-at-law, 144 ; even though 
 executors are added in the destination, 
 144 ; addition of ' successors ' does not 
 seem to give power to bequeath, 145 ; heirs- 
 portioners, 145 ; heir under disability, 146 ; 
 management for him or virtual assigna- 
 tion, 146 ; Crown as ultima heres, donatary, 
 146 ; succession displaced, by lease being 
 liferent, by assignation, and by landlord 
 ousting it, 146. 
 
 Succession direried from heir-at-law, 147; 
 
 (1) by special destination in lease, 147 ; 
 
 (2) by permitted alteration or bequest, 
 148 ; words in general bequest which do 
 and do not carry leases, 148 ; ' effects 
 ' heritable,' ' heritages,' 148 ; 'charge of the 
 'farm,' 'heir,' 'business,' 149; date of 
 settlement, 149 ; landlord's veto, it inti- 
 mated, lets in heir-at-law to claim at his 
 own hand, (150) ; (3) statutory bequest 
 under Agricultural Holdings Act, 160; 
 to a ' legatee,' 150 ; intimation by him to 
 landlord within twenty-one days, 150 ; 
 importing acceptance, 150 ; counter-notice 
 of refusal to receive, 150 ; adjudicated on 
 by sheriff, 151 ; 'reasonable ground of 
 ' objection,' 151 ; sheriff final, 151 ; failing 
 legatee, heir succeeds, 151. 
 
 Entail of lease by destination involving 
 no passive title, 151 ; leases embraced in 
 entails, 152 ; perpetuities checked by 
 Rutherfurd Act, 152. 
 
 Succession to lessee — continued. 
 
 Tempus deliberandi, 152 ; provisional 
 possession, 152. 
 
 Abandonment by heir, express or implied, 
 153 ; e.g., taking sublease from trustees 
 put in his place, 153 ; being abroad and 
 subjects relet, 153 ; no tacit relocation, 
 153 ; not so readily gathered, if a member 
 of deceased's family possesses, 153 ; 
 possessors as managers or as tenants, 153. 
 Damages thereby caused : liability for the 
 same, 154 ; on heir prima loco but also on 
 personal representatives, 154. 
 
 Incidence of obligations in lease among 
 representatives, 154; 'heirs, executors 
 ' and successors,' 154 ; interpreted, 155 ; 
 'conjointly and severally,' 155. 
 Terce : courtesy : collation, 155. 
 S. to common lease, 75. 
 S. of landlord to lease, 451 ; of tenant 
 to the land, 451. 
 
 S. in Crofters Holdings Act, 522, 751. 
 
 'Successors' added to destination to heirs 
 does not give lessee title to bequeath, 145. 
 Singular s., see Singular successors. 
 
 Summary diligence, 316. 
 
 For recovery of rent under clause of 
 registration for execution, 316 ; form of 
 warrant, 317 ; to arrest and poind, 317 ; 
 indumie of six or fourteen days, 317 ; 
 fugce warrants, 317 ; horning, 318 ; charge 
 for each term's rent as it becomes payable, 
 318 ; under deduction of what is recovered 
 by hypothec, 318 ; articles of roup, 318 ; 
 suspension. Charge ad factum prccstandum 
 when competent, when too vague and not 
 to enforce specific acts, 318-9. 
 
 Summary ejection as sine titulo, 504 ; a sub- 
 stantive remedy, 504 ; power of s.e. bars 
 tacit relocation, 509. 
 
 Summary removings, 498 seg. See Removing 
 III. C. 
 
 Superior cannot challenge lease as a real 
 right, 118 ; not entitled to maiUs and 
 duties for feu-duties, 320 ; his hypothec, 
 340. 
 
 Supplement, letters of, 166. 
 
 Support of land, 192, 388. 
 
 Surface damages, 192, 385. 
 
 Suspension of possession in case of disrepair, 
 221 ; in case of want of plenishing, 351, 
 508. 
 
 S. of summary diligence, 318 ; where 
 counter-claims exist, 298 ; s. of removing, 
 see Removing III. ii. 4 ; where there is an 
 obligation to remove, 478-9. 
 
 Table, as a fixture, 264. 
 Tacit Relocation, 609 seq. 
 
 Origin in Roman law, 509 ; operates a 
 constructive renewal of the lease if sum- 
 mary ejection is incompetent, and remov- 
 ing has not been raised or carried through, 
 509. 
 
 Not applicable to judicial leases, 510. 
 
 Subjects, 510. 
 
 Parties, 510 ; though party interested 
 
694 
 
 INDEX. 
 
 Tacit relocation — eontmued, 
 
 to remove the tenant be incapax, 510 ; 
 right descends to tenant's heir, 510 ; 
 cases of subtenants, 610. 
 
 Barred by new lease, 511 ; or by- 
 abandonment of possession, 511 ; personal 
 privilege relating to warning, 511. 
 
 Objection to plea of t.r. barred by 
 accepting rent for future possession, 511 ; 
 or by actually continuing possession, 511. 
 
 All the stipulations remain in force so 
 far as not inconsistent with an implied 
 term of the renewal, 612. 
 
 Duration, in leases for year or more, a 
 year : in shorter leases their endurance : 
 cautioner liberated, 362, 512. 
 
 Proof of deviation from original bargain 
 during t.r., 104. 
 
 T.r. not pleadable where heir never 
 possessed, 163. 
 
 Effect on leases, as to hypothec, 328. 
 In relation to liability for a nuisance, 
 546. 
 
 Tapestry, as a fixture, 263. 
 
 Taxes deducted from tenant's claim in Agri- 
 cultural Holdings Act, 246, 586 ; t. on 
 furnished dwellings, 252. 
 
 ' Tear and wear,' 223. 
 
 Technical meaning, how proved, 97. 
 
 Teinds, renewable lease of, 135. 
 
 Tenant : a pupU, 14 ; a lunatic, 16 ; a 
 person forfeited, 16 ; a minor, 22 ; a 
 married woman, 24 ; the Crown, 28 ; its 
 donatary, 28 ; a corporation, 37 ; a trustee, 
 40 ; a, partnership or company, 77 ; in 
 Agricultural Holdings Act, 240, 696 ; t.'s 
 fixtures, 258; i.'s plenishing, 218, 251, 
 257. 
 
 Tenantable, houses and fences must be, 
 219, 222. 
 
 Tempus deliberandi, 152. 
 
 Tekms op Entet, 299 seq. 
 
 Presumed at date of lease, or following 
 Whitsunday or Martinmas, or close of 
 prior tenure, 299 ; entry prior to date of 
 lease, 299. 
 
 To arable farm ; Whitsunday as to 
 houses, fallow, and grass, and separation 
 (or Martinmas) following as to crop land 
 — known as a Whitsunday entry, 300 ; 
 the right of outgoing tenant to hold crop 
 land till separation does not extend to 
 landlord in possession himself and letting 
 with Whitsunday entry, 300 ; Martinmas 
 entry : entry at other dates, 300. 
 
 To pastoral farms : Whitsunday : 
 houses : mines : mills, &c. : Whitsunday 
 and Martinmas, 301 ; fisheries shortly 
 before end of close time, 301 ; gardens, 
 grass-parks, according as let is for year or 
 seasoii, 301. 
 
 Whitsunday of old moveable, then 15th 
 May, O.S. : then 15th May, new style : 
 Martinmas, 11th November, O.S. and 
 N.S., 302 ; old styles still kept up. As to 
 houses, now 28th May and November, by 
 Statute, 302, 501. 
 
 Tkbms or Payment of Rent, 302 seq. 
 Rent of land payable for year in two 
 instalments, for crop and possession, 
 302-3 ; of other subjects, 303. Beginning 
 of year at separation or Martinmas, 303. 
 
 ' Legal terms — Whitsunday after crop sown, 
 and Martinmas after reaping, 303 ; in 
 arable farms ; in pastoral farms, examples, 
 303 ; arable or pastoral, according to chief 
 source of income, 303 ; conventional terms, 
 303 ; forehand rent, backhand rent, 304 ; 
 Candlemas, Lammas, Yule, 304 ; legal 
 terms govern apportionment of rent, 304. 
 Break usually fixed for an ordinary t., 457. 
 Irritancy not enforced till legal t., 472. 
 See Apportionment. 
 
 Term-day, survived by entering it, 309. 
 
 Termination, see Ish. 
 
 T. of lease, following on abandonment 
 by tenant, 212 ; none ipso facto on bank- 
 ruptcy of tenant, 527. 
 
 Tercer, title to sue removing, 445. 
 
 Thinnings of wood, on entailed lands, 69. 
 
 Third parties, see Neighbourhood : Public 
 Right. 
 
 Thiriage, 81. 
 
 Thrashing of waygoing crop, 322. 
 
 Thrashing-mill, as a fixture, 269. 
 
 Timber, see Woods. 
 
 Reserved in farm leases, 193 ; how far 
 let in these, 193 ; used for repairs, 224 ; 
 no hypothec under lease of *., 326 ; t. in 
 Crofters Holdings Act, 517, 619. 
 
 Time, in regard to leases, see Terms. 
 
 Title, limitation of, affecting power to grant 
 lease, 43 seq. ; questions as to, involved in 
 action in vindication of tenant's interest, 
 539 ; t. to sue, a removing, 441 ; on an 
 irritancy, 462 ; for violent profits, 488. 
 
 Title-deeds, as fixtures, 259. 
 
 Tolls, as subject of lease, 82. 
 
 Trade, prohibition of, 380-1. 
 
 Lease as implement of t. in case of 
 minor lessee, 22. 
 
 Transfer of possession, 171. 
 
 Translation, 166 ; of long leases registerable, 
 173, 676. 
 
 Transmissibility of right to eject, 494 ; of 
 liability to ejection, 494. 
 
 Transmission of tenant's right in a lease, by 
 assignation or sublease, 156. 
 
 Treason of landlord, 16 ; of tenant, 17. 
 
 Trees, see Woods ; as fixtures, 262, 264, 269. 
 
 Trenching, as rei interventus, 115. 
 
 Trespass, 414, 420 ; by third parties, 538. 
 
 Triennial prescription, 285. 
 
 Tron stone, measure of dairy rent, 277. 
 
 Trust, administration, 25 ; see Trustees. Con- 
 structive t., 14, 21, 40 •, t. for creditors of 
 tenant made a conventional irritancy, 468. 
 
 Trustee, in landlord's sequestration, 48, 528 
 seq. ; personal liability on adopting a lease, 
 632 ; see Bankruptcy. Excluded by ex- 
 clusion of assignees, whether voluntary or 
 in bankruptcy, 162. T. of landlord or 
 tenant affected by Agricultural Holdings 
 Act, 240, 696. 
 
INDEX. 
 
 695 
 
 Trustees, as lessors, 37 ; gratuitous trustees, 
 37 ; for the ordinary endurance, 37 ; in 
 furtherance of the truster's intention, 37 ; 
 special powers not granted at common 
 law, 38 ; mortifications, 38 ; duration of 
 leases of mortified land, 38. i 
 
 Statutory powers of trustees — ordinary, 
 for twenty-one years in farm and thirty- 
 one in mineral leases, 39 ; special, to grant 
 long leases, 39 ; not to lease out an 
 unopened mineral field, 40 ; not if con- 
 trary to intention that the subjects should 
 be let, 40. 
 
 Auctor in rem xuam, as applicable to 
 trustees, 40. 
 
 T., as lessees, 40 ; auctores in rem suam, 
 41, constructive trust for the benefici- 
 aries, 41 ; trust for a copartnery, 41. 
 Turf, as a fixture, 262. 
 Turuip-maill, the limit of hypothec over 
 
 grazier's stock, 335, 349. 
 Tutor, and factor loco tutoris, 5 ; may grant 
 leases, 5 ; subject to reduction within 
 quadriennium utile, 5 ; duration of their 
 grants, 5 ; extended, 6 ; tutors-nominate, 
 6 ; rules of good administration, 6 ; A.S., 
 1730, 6 ; factors on sequestrated estate, 7 ; 
 recovery of rent, 7 ; removings, 7 ; letting 
 by public auction or private bargain, 7 ; 
 Pupils Protection Act, 7 ; special powers 
 to let, 7 ; on proof of strong expediency, 
 8, 13 ; continuing powers, 8 ; where pupil 
 is a co-owner, 8 ; no special powers given 
 as to matters of ordinary doty, 9 ; the 
 usual powers, 9 ; but given to do acts of 
 ordinary administration, otherwise ultra 
 vires, 10 ; if expedient, 10 ; or of evident 
 utility, 10 ; mineral lease for twenty-five 
 years, 10 ; lease of cotton-miU, 10 ; of 
 farms, 10, H ; nineteen years' leases, H ; 
 change in length of tenure, 11 ; mineral 
 leases for thirty-one years, 11 ; new mineral 
 field, 11 ; water power, 11 ; mansion- 
 house, 12 ; renunciation of leases by 
 tenants to tutor, 12 ; grassum, 12 ; rental 
 rights, 12 ; special power to take dimin- 
 ished rental, 12 ; special power to allow 
 abatement of rent, 12 ; or permanent 
 reduction of rent, 12 ; fixed by the Court 
 definitely or by way of maximum, 13 ; in 
 mineral lease, 13 ; report by Accountant 
 of Court, 13 ; jurisdiction of sheriff in case 
 of small estates, 13. 
 
 T. as lessee ; is he bound or at liberty 
 to renew expiring lease, 14 ; liability to 
 ward for loss, and surrender to him of 
 profits, 14 ; renunciation, 14. ' Auctor in 
 rem suam, 14 ; rights presumed to accrue 
 to ward, 14 ; renewing a renounced lease 
 in tutor's name, 15 ; interim manager, 15. 
 Under Entail Acts, 64. 
 Title to sue removing, 445 ; renouncing 
 lease or accepting renunciation, 451. 
 
 Ubi commodum, ibi incommodum, 304. 
 Ultimo heres, 28, 146. 
 Unhealthy dwelling, 221. 
 
 Universitas of estate, lease of, 56. 
 
 Universities as lessors, 32 ; as lessees, 37. 
 
 Unworkableness to profit no ground for re- 
 taining rent, 295. 
 
 Upholding of premises in repair, 220, 222, 
 225. 
 
 Urban leases, assignable and sublettable, 159 ; 
 repairs, 219; hypothec under, 325 ; irri- 
 tancy under, 459, 466 ; management, 378 ; 
 removing, 499. 
 
 Urban tenement defined, 159. 
 
 Usual powers of tutors, 9. 
 
 Vacancy in reference, under Agricultural 
 Holdings Act, 247, 587. 
 
 Valuation, by referees to ascertain amount of 
 rent to be paid, 275 ; waygoing crop 
 taken at, 371. 
 
 Valuation Act, 557. 
 
 Valuation Koll, 569 ; entry sent for, taken 
 as foundation for rei interventus. 111; im- 
 provement interest added to rent in, 229 ; 
 includes rent and value of game, 433-4. 
 
 Valuator, see Arbitration. 
 
 Value, annual, in place of rent where there is 
 possession without agreement, 274. 
 
 Vats, as fixtures, 264. 
 
 Vendor, see Purchaser. 
 
 Verandah, as a fixture, 263, 271. 
 
 Verbal lease, 103 ; for year or under, 103 ; 
 for longer period, 106. See Proof. Pay- 
 ment of rent under, how proved, 283-4. 
 V. prorogation or renewal, 133. 
 
 Vergens ad inopiam, a plea for fairness of 
 sequestrating, 367. 
 
 Vermin, 422 ; a cause of disrepair, 221 ; v. 
 in Gun Licence Act, 417 ; in Crofters 
 Holdings Act, 517, 619. 
 
 Vessels, as fixtures, 260. 
 
 Veto in leases of common property, 74. 
 
 Landlord's v. against alteration in 
 succession to lease, 150. 
 
 Vi, possession held, ejection from, 504. 
 
 Vice, succeeding in the, 478. 
 
 Victual, as rent, 275. 
 
 Violent profits, caution for, 487 seq. Exigible 
 in actions of removing in virtue of Act 
 1555, where a defence is not instantly 
 verified, and yet relevant, 487 ; being 
 penal damages for unwarrantable taking 
 or keeping possession (which is regarded 
 as violence), 488. 
 
 Title to sue, e.g., in an assignee, 488 ; 
 defenders, 488. Instant verification of a 
 defence excludes claim for caution, 488 — 
 e.g., bargain for new lease, 488 ; or the 
 fact that landlord has himself something 
 to prove, 489. But caution due where no 
 lease existed, or it has, ex facie, lapsed, 
 489 ; distinguishing between caution here 
 and that of A.S. 1756, sect. 5 ; desertion. 
 But absence of receipts and extract deliver- 
 ance awarding sequestration or cessio 
 leave landlord nothing to prove, 489-90. 
 
 Bona fides, a defence against claim for 
 v.p., 490 ; date at wliich bona fides ceases 
 must be proved by landlord, may be shown 
 
696 
 
 INDEX. 
 
 Violent profits — continued, 
 
 by a prohahilis causa litigandi, and whether 
 want of title in author or defect in tenant's 
 own right be alleged, 490 ; passage to 
 tnaUi fides takes place during litigation, 
 490 ; various points of litigation taken 
 according to circumstances, 490. Close of 
 maid fide possession, 491. 
 Bond of caution : form, 491. 
 Measure of up., 491; double rent within 
 burgh : greatest profit and any damage 
 to the subject, to landward, 491-2. 
 
 Distinguished from damages — eg'., in a 
 commercial contract like a, mineral lease, 
 latter taken, 394, 492 ; measure thereof, 
 492-3 ; and period of liability, 493. 
 
 Action for v.p., apart from caution, 493. 
 V.p. in sublease, 182, in case of infringe- 
 ment of break, 458. 
 
 Vis major, see Damnum fatale. 
 
 Vouchers for repairs, 224. 
 
 Voluntary removing, 439 ; no ground for 
 damages for wrongous ejection, 498. 
 
 Vote for Parochial Board, 669 ; and see 
 Franchise. 
 
 Wages and rent, 131 ; servants' w., how far 
 preferred to hypothec, 341-2 ; rent of 
 house part of iv., 273. 
 
 Wainscote, as a fixture, 263. 
 
 Warning of intention to break lease, 456 ; 
 where there is obligation to remove within 
 year, not required, 476 ; where older, 477, 
 
 478 ; under Agricultural Holdings Act, 
 
 479 ; under Act 1555, 483 ; later Acts, 
 484 ; peaoe-w., 499 ; period of w. for re- 
 moving from houses, 600-2. 
 
 W. by tenant, 508. 
 
 War Office, leases, 28. 
 
 Warrandice, in subleases, 177, 181 ; of rea- 
 sonable fitness for purpose, 219 ; whether 
 extending to upholding a nuisance, 546 ; 
 and see Possession. , 
 
 Warrant, of summary diligence, 317. 
 
 Warren, 435. 
 
 Water, revocable licence to take, 2. 
 
 JF.-closet, liability to third parties for 
 injury caused by badly kept, 543. 
 
 W.-power, let by tutors, &c., 11 ; as 
 subject of lease, 80, 82 ; no hypothec, 
 326. 
 
 I-f.-supply, a landlord's improvement in 
 Agricultural Holdings Act, 241, 596 ; from 
 pumping of pit, 102. 
 
 Waygoing crop, 369, 376. 
 
 Weights and Measures Acts, 565 ; how far 
 binding in ascertainment of rent, 276. 
 
 Weir, a landlord's improvement in Agricul- 
 tural Holdings Act, 241, 696. 
 
 Well, a landlord's improvement in Agricul- 
 tural Holdings Act, 241, 596. 
 
 Wethers, custom, as rent, 276. 
 
 Whins, cutting, as rei interventus, 115. 
 
 White crop, waygoing, 370. 
 
 Whitsunday, after liferenter's death, the ish 
 of lease granted by him, 72 ; as term of 
 entry, 299-302 ; as term for warning in 
 old law, 483, 
 
 Widow, vested with locality, power to lease, 
 72 ; right to rents, 306, 309. 
 
 Wife, see Marriage. 
 
 Wife, vested with locality, no power to lease, 
 71. 
 
 Wild Birds Protection Acts, 413 ; in Crof- 
 ters Holdings Act, 617, 619. 
 
 Will, carrying lease by general words, 149. 
 
 Willows, when reserved in farm leases, 
 193. 
 
 Wind and water tight, 220. 
 
 Window-blind, as a fixture, 263, 264. 
 
 Woods : — under entails : heir entitled to 
 lease out ripe wood, and thinnings, 69 ; 
 but it breaks off with his death, 69 ; 
 planted and natural ; planted by heir or a 
 predecessor ; haggs of coppice, 69. 
 
 Under liferent: Liferenter entitled to 
 fruit, underwood, ordinary windfalls, and 
 wood for estate and mansion, 72 ; coppice 
 wood in haggs, 73 ; fiar takes the rest, and 
 lets it, 73. 
 
 W,, as subject of lease, 80 ; no hypo- 
 thec, 326 ; reserved in farm leases, 192 ; 
 used for repairs, 224. 
 
 Woods and JForests Department, as lessors, 
 25 ; as lessees, 28 ; for Crown in Agricul- 
 tural Holdings Act, 239, 594. 
 
 Wood-pigeons, killing, exemption from gun 
 licence, 417 ; farmer's right to destroy, 
 422. 
 
 Working-Class Dwelling-houses Act, 1, 36. 
 
 Working classes, housing of, 36, 219, 663. 
 
 Workmen, ejection of, 506. 
 
 Writ required for formal leases ; being pro- 
 bative, 89, 91, 103, 107 ; how aflfected by 
 parole evidence, 97 ; an essential to lease 
 being a real right, 119 ; in proof of obliga- 
 tion to remove, 475 ; required to prove 
 payment of rent, 283 ; eliding triennial 
 and quinquennial prescriptions of rent, 
 286, 287 ; in proof of reduction of rent, 
 296 ; required for caution for rent, 360 ; 
 instructing abandonment of right to eject, 
 495. 
 
 Writ of acknowledgment under Registration 
 Act, 144 ; registerable, 173, 174. 
 
 Writing, see Writ. 
 
 Wrongful sequestration, 357. 
 
 Wrongous ejection, 497. 
 
 Yearly lease, how stamped, 95 ; proveable 
 proutdejure, 103. Sec Proof . Of house 
 assignable, 160. Compensation under 
 Lands Clauses Acts, 203. Act 1556 does 
 not apply to them, 482. 
 
 Young of animals in utero, in questions of 
 hypothec, 336. 
 
 LOKIMEE AND GILLIES, PRINTERS, 31 ST. ANDREW SQUARE, EDINBURGH. 
 
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