amiHitiiWPliMI ■jrT\i^'vm HG7 G^orneU Sam ^rljnol Eibrai^ Cornell University Library KDC 580.H67 Lectures on agricultural law. includlni 3 1924 024 628 459 The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924024628459 LECTUEES AGRIGULTUBAL LAW. LECTURES AGRICULTURAL LAW INCLUDING AN EXAMINATION OF THE GROUND GAME ACT, 1880; AND THE AGRICULTURAL HOLDINGS (SCOTLAND) ACT, 1883, WITH DIGEST OF CASES, NOTES, &c. ROBERT HIS LOP, B.L. Edin., Solicitor, Auchterardee. GLASGOW: WILLIAM HODGE & CO. MDCCCIiXXXVI. Glasgow : Printed by Wm. Hodge & Co., 123 Hope Street. PREFACE. The following Lectures were delivered in January, February, and March of this year to the members of the Strathearn Central Agricultural Society, with the design of aiding them in considering projected legislation on subjects connected with the cultivation of land. In response to many requests, I have consented to their publication, though not without some reluctance, being sensible of their fragmentary character. In some parts they have been condensed ; in others re-cast and amplified ; while foot-notes explanatory of the text have been added throughout. As originally delivered, they embraced an examination of certain measures of reform which have in recent years been under discussion in Parliament and among agriculturists ; but as that part of the subject possessed, to some extent, only a temporary interest, it was not thought expedient to include it in the present publication, though references are made in the foot-notes to one or two points connected with proposed amendments of the Land Laws. That the Lectures might prove not altogether unacceptable to those of my professional brethren who may be concerned in agricultural matters, the leading authorities have been cited and commented on ; while the principles established by the various decisions have been arranged in the form of an Analytical Digest. VI PREFACE. I am fully aware of the inconvenient and too common practice of swelling the size of books on legal topics by appendices of statutes; but in this instance it has been thought necessary to print in the appendix the Ground, Game and Agricultural Holdings Acts, for the use of lay readers who might not otherwise have ready access to these statutes. R. H. AUCHTERARDEE, Ut J\dy, 1886. CONTENTS. PAGE Preface, ... ... ... ^ Index op Cited Cases, ... ... ... jx List op Abbeeviations, ... ... ... xi LECTURE L The Game Laws — Game Laws as aflfecting occupier of land — Common law rights of occupier — in Game — and Rabbits — Landlord's implied rights — Reservations in leases — Eiiect of prior Game lease — Limitations of occupier's rights at common law — Ground Game Act — Contrast between occupier's common law and statutory rights — Persons to whom occupier may delegate statutory right — Gun licence — Statutory prohibitions in methods of killing Game — Spring traps in rabbit holes, ... ... ... ... 1-28 LECTURE n. The Game Laws — continued — Offences against Game Laws — Day Trespass Act — Extent to which occupier and those acting by his authority liable in contraventions — Circumstances in which relatives, visitors, managers, and servants may commit offences — Development of doctrine of servant's liability — Compen- sation for Game damage — Rights of occupier at common law — Game Laws Amendment Act — Question as to right to compensation of occupier possessing privileges of Ground Game Act, ... ... ... ... ... 29-47 LECTURE in. The Agbicultueal Holdings (Scotland) Act, and Tenant's Obligations as to Farm Management — New principle of law introduced by Holdings Act — Tenant's obligations giving rise to counter claims — Vlll CONTENTS. Common law rules as to management and cultivation of lands — Additional rents for miscroppiiig — How far enforceable by landlord — Exposition of doctrine and examination of authorities — Implied discharge of pac- tional rent — Acquiescence of landlord in miscropping — Tenant's obligation to consume produce and manure — In absence of contract — Where expressly stipulated — Implied exception of waygoing crop — History of the law as to obligation — Conflict between Court of Session and House of Lords — Ultimate rejection of doctrine as to waygoing crop — Principles affecting manure obligation — In absence of contract — Where obligation express — Special provisions in leases as to manure — Recent revival of old doctrine of implied exception of waygoing crop, ... ... ... 48-78 LECTUEE IV. The Agricultueal Holdings Act — Classification of improvements — General principle of compensation — Improvements prior to commencement of Act — Improvements subsequent thereto — Classification in schedule — Drainage — Agreements superseding statute — Reduction of tenant's compensation — Landlord's counter claims — Procedure under Act — Notice of claims and counter claims — Decisions as to notice — Appointment of referees and oversman — Miscellaneous provisions — Appeal to Sheriff — Voidance of agreements destructive of tenant's right to compensation, ... ... ... ... 79-105 Analytical Digest of Cases — Parti. — The Game Laws, ... ... ... ... 107 Part II. — Tenant's obligations as to farm management, ... 114 Part III. — The Agricultural Holdings Act, ... ... 123 Appendix — Ground Game Act, 1880 (43 & 44 Vict. cap. 47), ... 127 Agricultural Holdings (Scotland) Act, 1883 (46 & 47 Vict. cap. 62), ... ... ... ... ... 130 Index, 149 INDEX OF CITED CASES. N.B. — Sheriff Court Gases are pi-inted iii. Italics. Allen V. Berry, 52, 74, 122. Anderson v. Tod, 71. Baird v. Mount, 55, 57, 58, 117. Black !'. Bradahaw, 30, 112. Broadwood v. Hunter, 36, 114. Brown v. Thomson, 20, 22, 110. Byrne v. Johnson, 35, 40, 114. Cadzow V. Lockhart, 35, 38, 41, 113. Calder v. Robertson, 32, 112. Carron Co. v. Donaldson, 54, 115. Cathcart v. Sloss, 56. Clerk !•. Hamilton, 65, 119. Colquhoun i\ Buchanan and Others, 28. Colquhoun v. Liddell and Another, 34, 113. Donald v. Boddan, 28. Drysdale v. Jameson, 35, 113. Easton v. Langlands, 28. Elibank, Lord, v. Scott, 71, 75, 77, 95, 120, 121. Erskine's Trustees v. Crombie, 74, 122. Ferguson v. M'Nab, 130. Flnnie v. Trotter, 73, 119. Flemings. Macdonald, 51, 114. Forrester r. Wright, 73, 119, 121. Fraser v. Ewart, 55, 116. Eraser ?;. Lawson, 18, 19, 26, 110, 111. Fraser 1). Maitland, 59, 118. Fraser v. Petre, 65. Oaimmel^. Winier, 34, 111, 113. Gordon v. Anderson, 72. Gordon v. Falconer, 65. Gordon v. Fiddler, 65. Gordon v. Robertson, 65, 67, 68, 69, 73, 75, 119, 120, 121. Gosling V. Brown, 17. Governors of Gillespie's Hospital v. Pen- man, 98, 102, 125, 126. Graham «. Straiten, 53, 115. Greig v. Mackay, 73, 76, 77, 122. Hall V. M'Gill, 53, 54, 62, 116, 119. Hamilton v. Reid's Trustees, 65. Hannan v. Ramsay, 98, 125. Harrison v. Audey (English County Court case), 47. Henderson v. Maxwell, 53, 115. Hendry D. Marshall, 56, 115. Herriot v. Halket, 74, 122. Hunter v. Barron's Trustees, 96, 124, 125. Hunter v. Broadwood, 56, 57, 58, 59, 117. Hunter u Clark, 53,- 116. Hope Vere v. M'Intosh, 13, 109. Hopetoun, Earl of, r. Wight and Others, 125. Inglis V. Moir's Tutors, 7, 35, 46, 113, 114. James v. Earl of Fife, 31, 112. Jamieson v. Pringle, 65, 119. Kidd V. Byrne, 35, 40, 114. Kinnoull, Earl of, v. Tod, 29, 111. Lamb v. Mitchell's Trustees, 60, 62, 118. 119. Lawrie v. M'Arthur, 32, 112. Lawson v. Ogilvie, 53, 116. Lyall V. Cooper, 54, 115. Lyle V. Graham, 74. Maxwell, 51, 114. Miller v. Gwydir, 53, 55, 59, 116. Milne v. Earl of Dalhousie, 35. Moncrieff v. Amott, 4, 107. Moncrieflfi). Hay, 72. Morrison v. Blair, 53, 116. Morton v. Graham, 35, 38, 113. Murray's Trustees v. Gordon, 59, 118. M'Adam v. Laurie, 30, 112. M'Ewan v. Patterson, 71, Macdonald, Lord, v. Finlayson, 141. Macdonald v. M'Lean and Others, 33, 112. Mackenzie v. Craigies, 56, 117. Mackenzie v. Gilchrist, 56, 117. Mackenzie v. Munro, 54, 1 1 5. Mackintosh v. Gosling, 44. M 'Murray v. Maxwell, 64, 119. Nivison v. Howat, 78, 121. North V. Cumming, 7, 108. INDEX OF CITED CASES. Osier, V. Marchioness of Lansdowne, 83, 89, 123. Philp V. Morton, 72. Pollock 1). Paton, 53, 115. Porter v. Stewart, 31, 112. Pringle v. M'Murdo, 64, 119. Reapers. Duff, 31, 112. Ritchie ii. Wemyas, 53, 54, 116. Robertson v. Clark, 53, 56, 116. Ronaldson v. Ballantyne, 4, 107. Roxburghe t). Archibald, 64, 119. Roxburghe v, Roberton, 65, 68, 73, 74, 75, 76, 120, 121. Stark V. Edmonstone, 52, 115. Stirling v. Yuille, 74, 122. Stoddartand others «. Stevenson, 34, 113. Stuart V. Murray, 12, 34, 109. Suttie V. Somner, 53, 116. Syme v. Earl of Moray, 35. Taylor v. Duflfs Trustees, 59, 118. Taylor v. M'Laren, 5, 7, 13, 14, 108, 109, 110. Thomson's Representatives v. Oliphant, 51, 114. Thriepland v. Munro, 53, 56, 116. 70, 71, Tweeddale v. Brown, 54, 115. Scott i'. Durham, 65. Scott V. Ritchie, 74, 122. Selkirk v. Kennedy, 31, 112. Smellieti. Lockhart, 29, HI. Smith V. Young, 30, 111. Soot's Trustees v. Lord WharncUffe, 94, 123. Wemyss v. Drysdale, 72. Wemyss v. Gulland, 8, 20, 35, 109. Wemyss v. Wilson, 35, 37, 41, 113. Wemyss v. Wright, 73, 121. Witham v. White and Young, 53, 56, 116. Wood V. Paton, 46, 114. LIST OF ABBKEVIATIONS. M. . Fac. Coll. Hume. S. D. . Macph. . R. . R. (Just.) D. & A. . J. . S.L.E,. . Syme's Just. Rep. Broun. Shaw's Just. Rep. W. & S. . Sh.C. Rep. (Scot. Law Rev. Morison's Dictionary of Decisions (reference by page). Faculty Collection of Decisions. Baron Hume's Decisions — 1781-1822. Shaw's Reports— 1821-1838. Dunlop's Reports— 1838-1862. Macpherson's Reports — 1862-1873. Rettie's Reports — from 1873. Rettie's Reports — Justiciary Section. Deas and Anderson's Decisions — 1829-1832. Scottish Jurist Reports— 1829-1873. Scottish Law Reporter — from 1871. Syme's Justiciary Reports— 1826-1829. Broun's Justiciary Reports — 1844^1846. Shaw's Justiciary Reports — 1848-1852. Wilson and Shaw's Appeal Cases (House of Lords)— 1825-1835. Sheriff Court Reports (Scottish Law Review). LECTURE I. Introductory — The Game Laws. Game Laws as affecting occupier of land — Common law rights of occupier — in Game — and Rabbits — Landlord's implied rights — Reservations in leases — Effecrt of prior Game lease — Limitations of occupier's rights at conunon law — Ground Game Act — Contrast between occvipier's common law and statutory rights — persons to whom occupier may delegate statutory right — Gun licence — Statutory prohibitions in methods of killing Game — Spring traps in rabbit holes. The present course of lectures is intended to embrace Aim of the certain of the more prominent branches of the law of Scotland affecting the occupation of land for agricultural purposes, and the object aimed at is to afford to tenant farmers some materials for intelligent discussion of pro- jected reforms. It must be admitted by every one who has paid any attention to the present position of Scottish agriculture that the system of laws which regulates it will ere long suffer modification. Whatever view may be taken of the wisdom of many of the remedies advocated by land- law reformers, it wiU be generally conceded that changes in the land laws are imminent. The depression of the agricultural interest heis reached an acute stage, and re- forms in the tenure of land in all its aspects, and especially as it affects the cultivator, are being regarded as capable of affording at least some relief from the pressure. It can be easily understood that a clear notion of the leading principles of the existing law will be a useful preparation for a satisfactory study of the measures of 2 LECTURE I. reform which may from time to time be proposed. A suggested reform will be better appreciated with a clear apprehension not only of the precise rule of law which it is intended to amend, but of the principle on which it pro- ceeds. What is primarily had in view, then, in the present course is to expound, in as simple a style as the subject will admit of, the principles and rules of one or two of the more prominent departments of agricultural law, anything like a complete course being beyond the aim of these lectures. Two leading subjects will be treated — the Game Laws, so far as they concern the agriculturist; and that general department of our law which has been so materially aifected by the Agricultural Holdings Act of 1883. Game rpj^g general system of laws protective of those animals Laws as ° •' -"^ affecting usually denominated "game" lies beyond the scope of these tural lectures. What we have to do with here is merely that ^'^^^ ■ aspect of the Game Laws as they affect the occupier of land in his relations with his landlord on the one hand, and with the interests of the public on the other. The agricultural tenant finds his liberty restricted in various ways by the operation of these laws; and the hardships of such restrictions, along with the evils arising from the undue protection and preservation of certain animals, has elevated the game question into one of the standing griev- ances of the agricultural class, which, it is generally con- ceded, recent legislation has only partially abated. Classifica- It is perhaps difficult to adopt any perfect cla,ssification principles, of the principles we will have to consider ; but, for our present purpose, they may be conveniently treated under three heads, namely — (1) the rights which the tenant farmer has to deal with the game and other wild animals on his lands, and the limitations and restrictions by which his action is fettered ; (2) the liability of tenant farmers, and those acting by their authority or in their service, to THE GAME LAWS. 3 be brought within "the sweep of the Game Laws so far as they are criminal in their character; and (3) the claims which the tenant farmer has against his landlord in consequence of the existence on his lands of such animals. In treating of the first of these heads, we must look Common at the occupier's rights of controlling the game, and the o^^ "^ ^ ^ restrictions fettering his action, first, as they exist at °°''"^^^'^' common law, and then a.s they have been created by statute. When lawyers speak of the "common law," they mean unwritten, customary, or case-made law, as distinguished from the positive enactments of the Legislature in statutes or Acts of Parliament; and it is essential, in order thoroughly to comprehend a legal rule or decision, to bear this distinction clearly in view. By the common law of Scotland, wild animals, so long as they remain undomesticated or uncaptured by man, belong to nobody ; in their wild state they cannot be the subject of private property. When captured, they become the property of the captor, whoever he may be. It is the fact of capture, alive or dead, which gives rise to the idea of property. In England the principle is different, the law of that country recognising a qualified right of property in wild animals in the owner of the land on which they are found. The theory of the Scottish law makes it incorrect to say that the game or other wild animals on an estate belong to the proprietor of the lands : all that he has is the right of shooting or capturing the animals, which do not become his till he has brought them into his possession or under his control by capture or slaughter. This principle may be said to be the germ out of which the whole system of our game laws has sprung, and to a proper understanding of that system it is necessary to have a clear conception of this underlying principle. LECTURE I. Land- jn most agricultural leases the landlord reserves all his lord's re- n i • i i j.- served rights in the game and his rights of hunting and shooting "^ ^ ^' over the lands ; but it must be borne in mind that without such reservation the landlord has by law an inherent right to enter upon the lands for the purpose of shooting game. It is not necessary to make any special reservation to that effect, as it is implied in every contract of lease that the In game, landlord does not part with any of his game rights in letting the lands for agricultural purposes. This was decided by the Court of Session in a case occurring about the beginning of the century. ^ It will be noticed that this right of the landlord's of shooting and hunting applies to rabbits as well as to what are strictly known as game ; and here may be pointed out the broad distinction, in most of the questions of interest to the agriculturist, between animals which are known to the law as " game " and animals which are not within that category. Generically, rabbits are not game, ^ and they are not dealt with as such in questions between landlord and tenant. For most other purposes rabbits and game are governed by very much the same principle, and in some of the Game Acts — notably the Poaching Prevention Act of 1862 — rabbits are expressly included in the definition of " game," and in the most recent Act of Parliament on the subject — the Ground Game Act — " rabbits " are embraced in the term " ground game." Rabbits, then, occupy this peculiar position, that while in certain matters of public policy they are practically 1 Ronaldson v. Ballantyne, Nov. 21 , 1804, M. 15270, Fac. Coll. 407. Here the tenant occupied enclosed lands under an improving lease for 21 years, with obligations to maintain the fences and follow specified rotations of cropping. He sought to interdict the landlord from hunting over the lands, on the ground that, by letting them without reservation of hunting, the latter had relinquished his right to the surface. I'he interdict was refused, but the tenant's claim against the landlord for the actual damage done was reserved. 2 Moncrieff v. Arjwtt, Feb. 13, 1828, 6 S. 530. Kabbits not game, THE GAME LAWS. 5 indistinguishable from those animals propei'ly denominated " game," in farmers' questions they are always dealt with on different principles. Accordingly, when a lease contains Effect of a reservation to the landlord of all rights to the game, vation^of without any mention of rabbits, the result is that rabbits amkiul-™ are not reserved ; and in the ordinary case the tenant is turallease. entitled (without excluding the landlord's inherent right of shooting them also) to kill them by himself or any person he may authorise, and in any manner he chooses, subject only to certain limitations as to the methods of killing, which will be explained below. This is what may be called the common law right of the tenant farmer to protect his crops from the depredations of rabbits. Of course, an express reservation of rabbits in the lease effectually de- prives the tenant of any right to kill them. It has just been stated that, in the absence of a reserva- Where TIT*! CYV C^fljTTI ^ tion of rabbits in the lease, the tenant is entitled, in the lease ordinary case, to kill them ; but it has been held that ^bbits.^ there may be circumstances in which the tenant is pre- cluded from such privilege even where there is no reservation of rabbits. An example of this occurs where, prior to the date of the agricultural lease, the landlord has effectually parted with his own rights over the rabbits, as, for instance, where he has assigned such rights to a game tenant holding under a lease entered into before the agricultural lease. This point came up recently in the Sheriff Court of Forfarshire.^ Lord Wharncliffe granted a game lease, in which he made over to the lessee the sole right of killing rabbits and game on Belmont estate, including the hill of Kinpurnie, for two years, but without prejudice to the right of the occupier of the lands to kill ground game in conformity with the provisions of the Ground Game Act. He afterwards granted a lease 1 Taylor v. M'Lctren, Oct. 22, 1885, 2 Sh.C. Rep. (Scot. Law Rev.) 21. 6 LECTURE I. of the lands, which contained no reservation of rabbits. Both these leases were subsequent to the Ground Game Act of 1880, which gives a right to kill and take ground game to the " occupier" of the lands, as incident to and insepar- able from his occupation. The agricultural tenant sub-let the pasture and grazings of the hill of Kinpurnie for one year, and during the currency of the sub-lease he granted authority to two of his sons to kill and take the ground game on the hill in terms of the Ground Game Act. The game tenant applied for interdict to prevent them killing rabbits on the hill, and the Sheriif-Substitute (Robertson), whose judgment was acquiesced in, decided in his favour, and granted the interdict craved on the following grounds : — (1) That the agricultural tenant had ceased to have any rights under the Ground Game Act, because the sub-tenant was " occupier " in the sense of that Act, and there could not be two occupiers entitled to destroy ground game on the same lands ; and (2) that the agricultural tenant had no common law rights to kill rabbits (though these were not reserved in the lease), because, prior to the agricultural lease, the landlord, from whom any right the tenant had necessarily flowed, had parted with his right to the rabbits to the game tenant. It is in the second of these points that we are interested at present, and it will be seen that it is one of considerable importance. Being only a Sheriff" Court judgment, it does not, of course, authoritatively settle the law, so that the question must be regarded as still an open one. There is a good deal to be said in favour of the soundness of the decision, though some authorities which can be cited rather negative the view that a tenant can, under any circumstances, be deprived of his right to kill rabbits in the absence of an express reservation in the lease. For example, in a case decided in THE GAME LAWS. 7 1864,^ a landlord was prevented by his game tenant from conferring on the agricultural tenant by express grant a right to kill the rabbits, because they were included in a prior lease to him; but the judges seemed to indicate that this decision did not touch the common law right of the agricultural tenant to destroy rabbits if they were not reserved in his lease;, and the Lord Justice-Clerk (Moncreiff), in a subsequent case, decided in 1871,^ laid it down as a general proposition that rabbits not being game, it necessarily followed " that, if a tenant is put " under no restriction by the terms of his lease he is entitled " to destroy rabbits as an ordinary agricultural operation " necessary to the cultivation of the farm"; and in the same case Lord Cowan said, " It must be held to be quite fixed " that, where there is no stipulation to the contrary, and no " obligation, express or implied, to the effect that the land- " lord has reserved to himself the rabbits on a farm, the " agricultural tenant is entitled at common law to kill them, " and so to protect himself against damages to the crops." These opinions seem at first sight to confiict with the deci- sion in Taylor v. M'Laren; but all they point to is the existence, in the absence of express reservation, of a common law right to kill rabbits as an ordinary agricultural opera- tion, vested in the person actually occupyiag and cultivating the land, and independent of any right communicated by the landlord through the lease. In Taylor v. M'Laren the person from whom the defenders derived their authority was not in the actual occupation of the lands, and accordingly the principle of an inherent right to destroy rabbits as an ordinary act of farm management could have no place. This common law right on the part of the agricultural tenant to kill rabbits is of some importance, because, as we 1 Jforth V. Cumming, Dec. 1, ]864, 3 Macpli. 173, 37 J. 70. 2 Inglis V. Moir's Tutors, Dec. 7, 1871, 10 Macph. 204, 44 J. 123. 8 LECTURE I. shall see when we come to consider the Ground Game Act, the privileges thereby conferred on the tenant are much more restricted, and subject to more limitations than the right enjoyed at common law. Restric- Some of these limitations and restrictions may be briefly occupier's examined. If the landlord authorise the tenant to kill "^ *^' " game " to any extent, he must of course do so under such conditions and restrictions as the landlord may prescribe. In the absence of authority or permission from the Scaring landlord, the tenant is not at liberty to scare or capture game. the game by discharging fire-arms with blank cartridge, by pursuing them with muzzled dogs, or by setting rabbit snares or traps of such a nature or in such a manner as to be calculated to entrap game. These points were all settled by a case decided in 1847,^ in which an interdict was granted against the tenant doing any of these things. The Lord President (Boyle), in the course of his judgment, observed that the tenant was quite entitled to protect himself by fences, by putting up scarecrows, " and " if necessary for the protection of his crops, he may make " use of boys with rattles, in a fair and legitimate manner." Occupier's There is really no restriction on the tenant in exercising common , . , , . . law right the common law right of killing rabbits, with the exception rabbitsun- °^ *^^ ^^^ °^ snares and traps in the manner forbidden by restricted, ^^g ^ase just noticed, and always subject, of course, to the important change operated on the common law by the Ground Game Act, which we have yet to consider. The tenant may at common law employ any number of persons 1 Wemyss v. Gulland, December 3, 1847, 10 D. 204, 20 J. 55. The interdict against the tenant was ' ' from hunting, pursuing or scaring game on the farm "of Newton, by means of muzzled dogs, or by discharging fire-arms loaded ' ' with blank cartridges, and likewise from entrapping, killing, or injuring ' ' game on the said farm, or the marches thereof, by means of snares set for " the purpose of killing rabbits, but of a description, or in a manner, or in "places truly calculated to entrap, injure, or destroy game, or without all " due and usual precautions against injury to, or destruction of, game." THE GAME LAWS. 9 he chooses. He may select any mode of destruction he finds most effective, provided there is nothing in his methods and instruments which may cause injury to the game, over which, it need scarcely be said, the law always exercises a jealous guard. It sometimes happens that rabbits are held to be reserved in a lease, though not expressly mentioned in it. For example, it is occasionally stipulated in leases that the landlord reserves game as defined in the Poaching Prevention Act of 1862, without any allusion to rabbits. The tenant under a lease in these terms would be apt to suppose that rabbits were not reserved, and that he had accordingly a right to destroy them. But it so happens that rabbits are included in the definition of game in that Act, and therefore in such a lease, rabbits would be embraced in the reservation. Cases are on record where such a result has actually occurred, and it is only one of the many things constantly happening which should impress on farmers the necessity of carefully considering the effect of the provisions of their leases before they finally accede to them. No attempt was made till the year 1880 to abate the Ground ■■^ , J! Game Act, evils and hardships alleged to be due to the ravages ot game isso. and rabbits, by giving to the occupier of the land a control over the animals themselves. The Game Act of 1877 was mainly designed to facilitate the enforcement of tenants' claims against their landlords for compensation for injury done to their crops by game, and it will receive attention when we come to that part of the subject. Proceeding on the sound principle that prevention is better than cure — that to give the tenant power to destroy the game is more rational than to allow the game to destroy the tenant's crops, and then try to make up his loss by compensation in money — the Legislature in 1880 passed a great measure of 10 LECTURE I. relief to tenant farmers in this respect, because, whatever may be the failures and shortcomings of the Ground Game Act of 1880,' that statute must be acknowledged to be a step, at all events, in the direction of a fair and equitable settlement of this long-standing grievance. The leading feature of the Act, which applies to Scotland and England alike, is the conferring on the occupier of land an inalienable right to kill and take hares and rabbits on his holding. In explaining its main provisions, we shall contrast the common law rights of the occupier Math those conferred on him by statute, for the purpose of shewing in what manner and to what extent the Ground Game Act has altered and restricted the previously existing rights of the agricultural tenant. Section 1. The first section confers on every occupier of land the Right cou- right to kill and take ground game ^ thereon concurrently f erred on f . occupier With any other person who may be entitled to do so, and ground ^^^ right SO given him is not only declared by this same game. section to be incident to and inseparable from his occupation, but section 3 nullifies any agreement, condition, or arrange- ment purporting to alienate it. This indefeasible right, however, is not absolute; on the contrary, section 1 Restrio- surrounds it with several very important limitations. If the occupier delegate his right to others, the requisite authority must be in writing, which must be produced, when required, to those having the concurrent right. Then Persons the persons whom the occupier is entitled so to authorise occupier are confined to members of his household resident on the authorise, ^^^^d, persons in his ordinary service thereon, and one other person bond fide employed by him for reward for the Use of destruction of ground game. The use of fire-arms for the fire-arms. = ° purpose of destroying the game is further limited, being 1 43 & 44 Vict. c. 47— passed 7th September, 1880. 2 Declared by the interpretation clause to mean "hares and rabbits," THE GAME LAWS. 11 confined to the occupier himself and one other person. Grazing tenants for periods of less than nine months and holders of a mere right of commonty are excluded from the privileges of occupiers, and for the first time in the history of the game laws a close time is introduced for hares and Close time rabbits, sub-section 3 of section 1 enacting that the right i^d^°°''" conferred by the statute is only to be exercised from 11th December to 31st March in the case of moorlands (except detached portions of moorlands of less than 25 acres adjoin- ing arable lands), and also in the case of unenclosed lands not being arable lands, except where such unenclosed lands adjoin arable lands and are less than 25 acres in extent.^ It will be noticed that the right here given to the ^°°^P^®'^'^ ° ° statutory occupier is very much restricted compared with his right at and com- common law. Where the occupier has the common law rights con- right he may, except in so far as he is limited by the terms ^^^ ^ ' of his lease, empower any number of persons to shoot rabbits, written authority being unnecessary ; and, sub- ject always to the limitations already explained, any method of destruction may be chosen.^ Under the statute he is limited to a somewhat narrow circle in his choice of 1 This close time, however, only affects the persons who acquire the right to kill ground game under the Act. Those whose rights exist at common law, e.g., proprietors, game tenants, and agricultural tenants who have right to kill hares and rabbits otherwise than under the statiite, are not restricted in any way by the provision. 2 So far as hares are concerned, the occupier can only, apart from the statute, have a right to shoot them by express authority in his lease, and of course the authority so granted is the measure of his right. It is a little surprising to find in a work of such deservedly high repute as Professor Bell's "Lectures on Conveyancing," a misleading statement of the law on this point. It is there laid down (2nd Ed., p. 1190) that "the tenant, if " not prohibited, can kill hares, these not being now game If, " therefore, the right of killing hares is not to be allowed to the tenant, " the lease must expressly say so." There 'is no authority for this view, which is obviously unsound. Though game licences for the killing of hares have long since been abolished, as we shall see presently {infra, p. 16), these animals are still game, and must be held to be embraced in the implied reservation of the landlord's right. Where the occupier has the 12 LECTURE I. persons whom he can authorise, and these persons must always be possessed of the statutory credentials in the shape of a written authority. At common law any of those having the occupier's authority can use fire-arms ; under the statute only himself and another can do so. With reference to those who may be competently authorised, it has been decided that a person specially invited by the occupier to visit him for a week to have some shooting is to Visitor be regarded for the time being as a member of his household, authorised a-^d consequently a person who may receive authority under person, ^jjg Act.' A visitor in such circumstances was, while shooting, accosted by a policeman, and his gun taken from him, and afterwards brought before the Sheriff of Midlothian charged with an offence under the Day Trespass Act. He was acquitted by the Sheriff- Substitute (Rutherfurd), whose decision was upheld by the Court of Justiciary. The judgment of the Supreme Court rather went on the ground, that, so far as the case disclosed the facts, there might have been power on the tenant's part at common law to kill rabbits, and this was sufficient for the decision. But the judges were asked to give an opinion on the question as it stood under the Act, and two of them — the Lord Justice- Clerk (MoncreifF) and Lord Young — did so. Lord Young said, " I think a visitor may very well be a member of a " man's household, and resident in his house in the sense of " the statute. To what length the visit must extend I should " not like to define, nor is it necessary. But I think that a " man who was bond fide invited to stay for a week with " this farmer may be regarded as a member of his household " to whom permission may be given, and unless you are to right of destroying hares, he must, under the Game Laws Amendment Act of 1877 (40 & 41 Vict. c. 28), sec. 9, intimate to the landlord the name of the person to whom he delegates his right, and the authority must be in writing. Only one person can be so authorised. 1 Stuart V, Mmray, Nov. 13, 1884, 12 R. 9 (Just.). THE GAME LAWS. 13 " say that such a visitor is not to get leave at all, I should " like to know to what length the visit is to extend." The Lord Justice-Clerk said, "I am very clearly of opinion " that a tenant is entitled to ask a friend to come to reside " with him for a time and shoot rabbits under the provisions " of the Ground Game Act." ^ With reference to that part of section 1 vsrhich permits the tenant to employ one outsider to destroy ground game for payment, an interesting point has been decided in the Sheriff Court of Lanarkshire, where the Sheriff-Substitute (Birnie) and the Sheriff-Principal (Clark) both held that a Who may farmer was quite entitled under this section to engage arisedfor trainer of sporting dogs to kill hares and rabbits on his^*^""™*" farm, giving him as his wages whatever he killed, but reserving to himself occasionally a hare or rabbit when he wished it. The view the Sheriffs took was that the use of the word " reward " in the statute plainly indicated that the remuneration need not necessarily be in the shape of money, and that the ground game which the hired trapper was able to capture was fairly to be taken as "reward" boriA fide given in the sense of the Act.^ Another important difference between the common law right and that bestowed by the statute is the existence of the annual close time — extending from 31st March to 11th December — which must be observed by occupants of moor- lands having only the right under the Act. Sheriff Robertson, in the case of Taylor v. M'Laren, already What is a " moor- noticed,^ decided that the expression "moorlands" in the land"? 1 A recent commentator on the Act (Mr. C. N. Johnston) disputes the soundness of these opinions on the ground that the statute was meant to furnish the tenant with the means of protecting his crops, but not to provide opportunities of sport for him and his friends. The protection of the crops is doubtless the end aimed at, but why should not sporting proclivities be used as the means ? 2 Hope Fere v. M'Intosh, Doc. 29, 1884, 1 Sh.C. Rep. (Scot. Law Rev.) 63. 3 Supra, p. 5. JAIV Z f IbOj 14 LECTURE I. sense of the Act does not include a hill covered with permanent pasture, but without heather, and consequently such a hill would not be subject to the close time. He expressed his reasons for the judgment as follows: — "I " think that the Act intended the close time to apply to " heather land where grouse are a part of the crop and " form a principal part of the rent. For the close time " commences when the grouse begin to nest, and ends when " the grouse cease to be shot." This appears to be a sound reading of the statute, but it remains to be seen whether it will be upheld by the Supreme Court, should the question ever find its way there. It will be kept in view with regard to all these restrictions and limitations that they only apply to those persons who have no right to kill rabbits or hares apart from the statute. Those farmers whose leases do not reserve rabbits, or confer on them the right to kill hares, are not bound by these restrictions, and may exercise the rights which they had before, so far as the section under consideration is concerned, as if the Act had not passed. For this reason, farmers, in negotiating new leases, would do well to endeavour to procure for themselves the common law right which, so far as rabbits are concerned, they get by the absence of express reservation in the lease. They will thus relieve themselves of a great many vexatious limitations and formalities in the exercise of their right ; but, as will be seen afterwards,^ the possession of the common law right will not relieve them of all the restrictions imposed by the Act. Section 2. An important provision occurs in section 2, under which an occupier who has a right otherwise than by virtue of the Act may alienate such right, and nevertheless retain and have as inseparable from his occupation the right conferred by the Act. The broad distinction is here kept 1 Infra, p. 19. THE GAME LAWS. 15 up between the common law right and the statutory right, the latter being preserved intact notwithstanding the alienation of the former. An occupier may, if he chooses, divest himself of his common law right to kill rabbits or game ; he cannot divest himself of his statutory right ; and if a man has both rights, any divestiture will be held to apply only to the former. The distinction is further emphasised in the latter part of the section, which declares that the indefeasible right which the statute gives to the occupier shall not deprive him of any other or more extensive right which he may possess, excepting always the limitations on the common law right imposed by section 6, which is still to be considered. Section 3 nullifies any agreement, condition, or arrange- Section 3. ment made with a view of alienating the statutory right of Agree- 1 -n 1 mi i- J ments de- the occupier to kill ground game. ihe question as tostruotive whether this section affords an absolutely complete protec- tc,™ ^ght tion to the tenant against attempted agreements destructive "^H- of his right does not seem to have been raised. The clause is well framed, and it would certainly tax the powers of any conveyancer, however ingenious, to create a provision which would effectually serve the purpose, and this is probably the reason why the attempt has not been made. At the same time, it is held by some lawyers that an agree- ment would be competent which obliged the tenant to submit the names of the persons he proposed to authorise for the approval of the landlord. No such point, however, has yet been raised, and it remains to be seen how far the Court would sanction any agreements limiting the tenant's powers. Section 4 exempts the occupier and those authorised by Section 4. him from the licence necessary to kill game, and it also gives the occupier the same right to sell the game killed by him and the persons authorised by him as if he had a game 16 LECTUEE I. Occupier licence. The exemption, however, is declared not to apply exempt .in t . from game to the gun licence. It may be mentioned that tenants, having but'not the common law right of killing hares or rabbits, previously §.™ enioved by statute a similar exemption from the game licence. j j j i. o licence. An Act was passed in 1848^ to enable persons having a right to kill hares to do so themselves, or by persons authorised by them, without taking out a game certificate ; and by the Game Licence Act of 1860,^ tenants of lands, and those acting by their direction or permission were, as regards the killing of rabbits, excepted from its provisions. An interesting but somewhat difficult point, which has apparently not been raised hitherto, occurs in connection with the proviso at the end of section 4 declaring that nothing in the Act will exempt any person from the pro- visions of the Gun Licence Act. This statute ^ imposes an excise duty on all persons who shall use or carry a gun, * Gun except in a dwelling-house or the surroundings thereof. Licence i i • i ^ Act, 1870. There are several exemptions which it does not concern us here to particularize, but one is in favour of the occupier of lands who uses a gun for the sole purpose of scaring birds or killing vermin thereon. The exemption also applies to a person authorised by the occupier, provided the latter has a game or gun licence.^ An interesting question arose about eight years ago as to whether " rabbits " are included 1 11 & 12 Vict. c. 30— passed 22nd July, 1848. 2 23 & 24 Vict. c. 90— passed 13th August, 1860. This Act, which substi- tuted excise licences to kill game for the previous duties on game certificates, and also the Game Laws Amendment Act, 1877, repeated the exemption in favour of persons having the right to kill hares. 3 33 & 34 Vict. c. 57— passed 9th August, 1870. 4 The English Courts have included pocket pistols in the definition. 6 Section 7. The terms of the exemption are " The occupier of any lands " using or carrying a gun for the purpose only of scaring birds or of killing "vermin on such lands, or any person using or carrying a gun for that ' ' purpose by order of the occupier, who shall have either a game or a gun " licence." THE GAME LAWS. 17 in the term " vermin," so as to enable the occupier to shoot them without a gun licence, or, having such licence or a game licence, to authorise his servant to do so without taking out a separate licence for him. A farmer who was Rabbits entitled to shoot rabbits and who held a gun licence "venniit" instructed his son to take his gun and shoot vermin with it. ^^^^ ^° ° gun The son had no gun licence, and was prosecuted by the licence Excise for the penalty imposed by the Act. The Petty and shoot Quarter Sessions of Justices both acquitted him. An appeal *''^™' was taken to the Court of Session,' and the decision of the Justices was affirmed, though not unanimously. The majority consisted of the Lord Justice-Clerk (Moncreiff) and Lord Gifford, who held (although there were other grounds for the judgment) that the word " vermin " must be interpreted from the stand-point of the farmer, who undoubtedly regarded rabbits as coming within the category of " vermin." The difficulty to which reference was made is this — Is Does .. ^7. r. exemption the principle established by Goshng v. Brown applicable to apply to those persons who have the right of killing rabbits byrightof^ virtue of the Ground Game Act only ? In other words, '^^l^s •^ 'rabbits? is a tenant who has no right of killing rabbits, except under the Act, bound to take out a gun licence for himself before he can shoot rabbits, and must a servant have a gun licence before carrying out the orders of a master who has only the statutory right of killing rabbits, even though the master himself has a gun licence ? Different opinions prevail among lawyers, but it is difficult to see how the principle decided in Gosling v. Brown could be pled by an occupier who has only the right to take ground game under the Act. To an occupier who has the 1 Gosling v. Brown, March 9, 1878, 5 R. 755. In 1875 it was decided by the Justices of Ayrshire in an Excise prosecution, under the Gun Licence Act, that wood pigeons were ' ' vermin " so as to entitle the occupier to shoot them without a licence. The case was not appealed. C 18 LECTURE I. common law right to destroy rabbits, these animals, according to that decision, are " vermin " merely ; to an occupier who has only the statutory right, rabbits are not vermin, but game. They are treated in the Act as game, not only by being so designated, but also by a certain measure of protection thrown over them, as was indeed pointed out by Lord Craighill in a case to be examined afterwards.^ Accordingly, it would scarcely do to stretch the exemption from gun licence, declared by the statute to apply to the shooting of "vermin," so as to cover the destruction of "game." The terms of the proviso itself bear out this view. If the intention of , the Legislature had been to exempt from the gun tax occupiers possessing, by virtue of the Act alone, the right to kill rabbits, instead of the proviso leaving open the provisions of the Gun Licence Act, there would have been a clause expressly enacting the exemption. The proviso must be read as expressly declaring that there shall be no exemption, — that, notwithstanding the conferring of a right on every occupier of killing ground game, he shall be subject to the gun licence. The result is anomalous. If an occupier of land shoots a rabbit by virtue of the Act of Parliament only, he must take out a gun licence ; whereas if he shoots it by virtue of the common law, he escapes the licence. This inconsistency should be removed ; and in any projected legislation on the game question, the exemption ought to be extended to all occupiers, whatever be the nature of their right, and there seems little reason why it should not also be made to include hares as well as rabbits. Section 5. One of the most prominent features of the Ground Game Current Act occurs in the 6th section, under which current leases excluded, are excepted from its operation. One point in this section is apt to be overlooked. If the section is referred to, it will 1 Frase,r v. Lmoson, infra, p. 26. THE GAME LAWS. 19 be noticed that not only must the privileges of the Act be postponed till the termination of the current agricultural lease, but there must also be a lapse of any game leases in existence at the passing of the Act. If there were a lease of the shootings and an agricultural lease both current when the Act passed, and the game lease was of longer duration than the other, the result would be that the occupier of the land might enter upon a new lease subsequent to the passing of the Act, and at the same time not be in possession of its privileges. The 6th section is in some respects the most important ^^''*'°'^ ^• provision in the Act. It enacts three prohibitions of some moment — (1) the use of fire-arms at night ; (2) the use of spring-traps, except in " rabbit holes ; " and (3) the use of poison; and it declares any person contravening the prohibitions to be liable in a penalty not exceeding £2. The principal thing to notice regarding these prohibitions Prohibi- tions uni- is that they do not merely apply to those persons whoversally acquire the right of killing ground game by the Act, but ^^^ ^°^ ^' they apply to all who have the right, no matter in what way it may have been acquired. They are universally applicable — to proprietors, game tenants, and agricultural tenants alike. This appears from the first part of the section, which sets forth the parties who are to be affected by the prohibition as persons "having a right of killing " ground game under this Act or otherwise." ' 1 In the case of Fraser v. Lawson (infra, p. 26), a somewhat ingenious and fanciful interpretation was given to this part of the section both by the Sheriff-Substitute (Dove Wilson) and by Lord Rutherfurd Clark, who held that the common law right of an agricultural tenant occupying under a lease prior to the Act, and which contained no reservation of rabbits, was not affected by the prohibition, in respect that his common law right being limited to rabbits, he had consequently no right to kill ground game otherwise than under the Act, because ground game included both hares and rabbits. In other words, a person having only the right to kill rabbits had not, properly speaking, a right to kill ground game, because "hares" were embraced in the term "ground game." This view was re- 20 LECTURE I. Prohibi- The first of these prohibitions which restricts the use of tion of the ■,-,••, r. i use of fire- fire-arms to the daytime, is not new, so tar as hares are niXt.^* concerned ; because, by the Act of 1848, already noticed,^ it is provided that no person must use fire-arms by night for the purpose of killing any game or shares — " night " being defined as in the recent statute, that is, between the expiration of the first hour after sunset and the commence- ment of the last hour before sunrise. As regards rabbits, however, the prohibition is new, for previously these animals could be killed by fire-arms at any time of the day or night. To this extent, therefore, the common law right of the occupier has been encroached on. Prohibi- The second part of the section places restrictions on the spring- use of spring-traps as a means of killing ground game, except ill 'w^liich involves the famous question as to what constitutes rabbit ^ " rabbit hole." The provision of the Act is that no person shall be entitled to employ spring-traps for the purpose of killing ground game except in " rabbit holes." Eeverting to the principles of the common law on the subject of trapping rabbits, already explained, it must not be thought, because the statute • expressly prohibits the use of traps except in the places indicated, that therefore occupiers before the Act passed had very much larger rights than they now possess. It was decided nearly 40 years ago ^ that the tenant might be interdicted from using traps. How far though designed only to catch rabbits, in such a way as enactment . , . ., , . . merely a might possibly injure the game, and m one oi the cases to ' tion^or ^^ considered below,' the Lord President (Inglis) laid down, common law. pudiated by the Court, and accordingly it may be taken as settled law that every person who has the right to kill either hares or rabbits, in whatever way that right may have been acquired, is subject to the restrictions imposed by this section. 1 Supra, p. 16. 2 In Wemyss v. Ghdland {supra, p. S). 3 Brown v. Thomson, (infra, p. 22. ) THE GAME LAWS. 21 with considerable distinctness, that even before the Ground Game Act passed, an occupier could have been prevented by the landlord from placing spring-traps in the scrape of rabbit holes. The provision in question is accordingly, so far as occupiers are concerned, more a declaration of the common law than the enactment of a new principle. The common law, however, is so far changed that the prohibition affects not only the agricultural tenants, but game tenants and landlords as well. Previously, there was nothing to prevent a proprietor placing traps where he chose, so long as he did not violate any contract he made with his game tenant or with the occupier of the land. The game tenant was not restricted in his employment of traps unless by the express or implied conditions of his contract. Now, how- ever, the three classes of persons are in the same position, and are all equally liable in the statutory penalty if the prohibition is disregarded. It should also be noticed that the provision can be enforced in the public interest, for the use of spring-traps in forbidden places is not merely a question among the parties having an interest in the game. The necessity of obeying it cannot be obviated by the consent of any or all of these parties. This matter is an important one in connection with possible arrangements between landlord and tenant. It may be that tenants feeling the hardships of the restrictions, especially in view of the decisions still to be explained, and that landlords in their desire to concede rights not vouchsafed to the tenants by law, may arrange that the latter shall have larger rights in this matter of trapping rabbits than is allowed by the Act. Such arrangements would effectually prevent the landlord doing anything, in the face of his agreement, to tie the tenant down to the restrictions imposed by the Act ; but it must be borne in mind that the tenant would not thereby escape from the consequences of 22 LECTURE I. an infringement of the statute. The Legislature has seen fit, for purposes of public policy, to make an absolute prohibition against certain methods of killing the game; and no private contracts, though they may limit the action of the contract- ing parties, will have any effect in abrogating the positive provision, or in relieving those parties who violate it from the penalty it imposes, or from the consequences which the violation may entail on any private interest, apart always from those who have become bound by such contracts. rabwV^ ^ '^^^ question now arises, "What is a rabbit-hole ?" Simple hole? though this question appears, it has given rise to a great amount of discussion in our Courts, and to much learned exposition from the Bench. Does the expression "rabbit "hole," as used in the Act, mean any scraping or hollow made in the ground by the rabbit, or has it a less extensive signification ? As everyone knows who has any practical experience in such matters, these ingenious animals make a variety of marks on the surface of the earth in the course of their wanderings in search of food, all of which may be said in one sense to come under the connotation of the term " rabbit holes." The expression, as used in the Act, has been interpreted in two cases decided in the Supreme Court, and it is now settled law that the term " rabbit holes," in the sense of the Ground Game Act, is to be taken as referring only to those cavities or burrows in the ground which the animal uses as its home, and not the scrapings in front of the burrow or any tunnels or perforations made by the animal elsewhere. In such scrapings or timnels accordingly, the use of spring-traps is not permissible. The cases which establish this important principle are worthy of a little Case of study. The first was from the Stewartry of Kirkcudbright.^ Brown v. . . ° Thomson. An interdict had been obtained by the game tenant against the agricultural tenant (who held under a lease containing 1 Brown v. Thomson, July 20, 1882, 9 E. 1183. THE GAME LAWS. 23 no reservation of rabbits), prohibiting the use of spring- traps except in rabbit holes. The agricultural tenant had made an arrangement with a rabbit-trapper to destroy the rabbits, and in the course of doing so, he placed spring-traps in the scraping or hollow in the front of a rabbit burrow, about 18 inches from the mouth of the "hole" or cavity. The game tenant brought a complaint for breach of inter- dict before the Sheriff of Dumfries, and the question had to be determined as to whether the trap was placed in a " rabbit hole " in the sense of the Act or not. After the case had gone through several stages, the Court of Session ordered proof to be led as to the practicability of setting- rabbit traps within the burrow or cavity of rabbit holes — that is to say, in such a way as that the earth covered the trap. The evidence which was led is interesting. The witnesses were confined to gamekeepers, rabbit-trappers, and farmers. The gamekeepers, without exception, swore that it was not only practicable to place a rabbit trap within a burrow, but the only proper way of trapping them. The farmers, on the other hand, had as little difficulty in saying that such a method of placing traps was not practicable. One point on which there was no conflict was that a trap of ordinary dimensions could not easily be inserted into the mouth of a rabbit hole without enlarging the entrance of the hole by artificial means.' The Sheriff-Substitute (Nicolson) decided in favour of the agricultural tenant. He held that the Act was one designed for the protection of tenant farmers against the 1 One of the farmers, a Mr. Jardine, made some judicious remarks in the course of his evidence — a sentence from which may be quoted : — "It is not " possible to set a rabbit trap under the roof, because the trap is generally " broader than the hole. Rabbit holes don't get much enlarged except by " artificial means. If you widen a rabbit hole with a spade, so much as to " be able to set a trap in it, it won't be a rabbit hole then." 24 LECTURE I. ravages of ground game, and that the advantage to the occupier must outweigh the risk of danger to the game. He pointed out, as the result of the evidence, that pheasants seldom come near rabbit holes, though partridges at times bask themselves in the dust in frgjit of the holes, and thereby incur some little risk. "If the facilities for "trapping rabbits," he continued, "were meant to be so " restricted as the pursuer thinks, it would seem that the " protection of a few partridges from untimely injury or " death was considered by the Legislature of more im- " portance than the effectual repression of rabbits. I " cannot believe that, or accept an interpretation of the " most important restriction in the Act which, if correct, " would, indicate that the Act had been misdescribed in its " title, and might be called instead ' An Act for the better " ' protection of sportsmen against injury to their game " ' from occupiers of land.' " And again, " The rabbit hole " contemplated by the Ground Game Act must be the hole " made by the rabbit itself, and not the hole as widened by " trappers, dogs, or any other means. The Act cannot be " held to have meant that, to obviate the risk of a straggling " hare or partridge putting its foot in a trap, it must either " be thrust uselessly into the darkness of a narrow tunnel, " or be set in a carefully widened hole which the rabbit " never made, and will naturally regard with just suspicion. " Such an interpretation of the Act, instead of additional " protection to the farmer, gives great additional protection " to the weak but cunning creatures which are his great " enemies, and against whose ravages the Act was expressly " intended to protect him." The Sheriff-Principal (Macpherson) took the same view ; but the First Division of the Court of Session unanimously overturned the judgment, holding that the scrape in front of the cavity or burrow was not a " rabbit hole " in the THE GAME LAWS. 25 sense of the Act. The Lord President (Inglis) delivered the leading opinion, and held that whatever rights the occupier had under the Act must be exercised in such a way as not to affect injuriously sporting rights in the hares and rabbits. "If," his Lordship said, "the traps in any " held are put, not in, but outside of, the rabbit holes, how is " the game tenant to set his dogs to hunt that field ? The " dogs would certainly get into the traps and be seriously " injured, and similarly pheasants and partridges would be " injured by traps set outside the rabbit holes. So that to " construe the statute in the way for which the respondent " contends would be to sacrifice the interests of the one " party to the interests of the other, and that is a mode of " dealing with concurrent rights which the law rejects " altogether." On the question of the practicability of setting rabbit traps inside the holes, his Lordship said, " We have a " quantity of evidence to the effect that spring-traps cannot " be properly set inside rabbit holes in the strict sense, and " that rabbits cannot be caught in that way. Now, if that " is so in the Stewartry of Kirkcudbright, I venture to say " that it is not the case in any other part either of Scotland " or England, and therefore I can give no effect to it. Any " one who knows the matter practically knows quite well " that rabbits can not only be caught by means of traps set " inside the holes, but that it is the most effective way of " catching them. Rabbits are usually caught when coming " out of their holes, and if the trap is set, as I think the " statute intends that it should be set, inside the hole, it is " sure to catch the- rabbit, whereas if it is set at some " distance from the mouth of the hole, in the open ground, " the rabbit may turn to the right or to the left and so " avoid it. If the farmers of Kirkcudbright are incapable " of setting spring-traps in the holes so as to catch rabbits. 26 LECTURE I. " then they must just suffer for it, but I cannot extend the " recognition of their incapacity to other parts of Scotland." Case of What was practically the same principle was applied LawsoH. in a case from Aberdeenshire/ which was decided in the Second Division of the Court of Session about six months after the Kirkcudbright judgment. A landlord sought to interdict an agricultural tenant (who held under a lease commencing in 1874, and reserving game, but not rabbits) against the use of spring-traps in the following circum- stances: — The tenant's crops were being much injured by rabbits, many of his fields being close to covers in the possession of the landlord where the rabbits burrowed, and from which they issued periodically for food. As a precautionary measure, the tenant erected a fence of wire- netting designed to keep the rabbits out of his fields. But these animals, with their proverbial cunning and ingenuity, tunnelled passages below the fence by which they obtained an entrance to the fields, and also a speedy exit as soon as the farmer approached with his gun. In many cases there was no roof to these tunnels except the netting, and they varied in size from three to six inches in depth, and about the same in width. It was brought out in evidence that the passages were too small to allow hares to run through, but that pheasants and partridges had sometimes been caught in the traps. The Sheriff-Substitute (Dove Wilson) and the Sherifi'-Principal (Guthrie Smith) both held that the tunnels were not rabbit holes in the sense of the Act, and the interdict was granted. The judgment was upheld by the Second Division of the Court of Session, though only by a majority of the judges. Lord Young entering a vigorous dissent. Lord Adam, who had been called in as a consulted judge, dealt with the question of defining a rabbit hole as follows: — 1 Fraser v. Lawson, Dec. 21, 1882, 10 R. 396. THE GAME LAWS. 27 " Speaking from one's knowledge of such matters, it never " could have occurred to me to have called this a rabbit hole " at all. In ordinary country language this would be called, " as it really is, a rabbit run. It is a rabbit run, just as we " have a hare's run. Every scrape in the ground that a " rabbit may make, however shallow, is not a rabbit hole in " the sense of the Act. A hole is in the ground and under " the ground, and that in my opinion is what the Act means." Lord Young, who dissented, expressed his view as follows : — " I think the words ' rabbit holes ' in their " common meaning are also fitly used to express and " signify perforations and openings made by rabbits, and " used by them for their passage through any solid " obstruction in order to reach their food, according to their " iustincts and habits, and I know of no statute or rule of " the common law which entitles me to limit the title to " one description of rabbit holes." It may be mentioned that the Lord Justice-Clerk (Mon- creiff), while agreeing with the majority in their view of the law, expressed himself strongly as to the hardship inflicted on the tenant, who was thus prevented from adopting the only available means of protecting himself from the ravages of these animals, which, while they fed on his crops, were securely sheltered in the landlord's covers. The remaining prohibition contained in the sixth section Prohibi- „ . ■ ji 1 -IT tionofuse is that directed against the use oi poison m the killing of of poison, ground game. The Act of 1848 ^ contained a provision against destroying or injuring hares or other game by laying poison on any ground where game usually resort, or in any highway. There are other statutes making it criminal to lay down on any land poisoned grain or poisoned flesh in such a way as is calculated to destroy life.^ 1 11 & 12 Vict. c. 30, sec. 4. 2 26 & 27 Vict. c. 113 ; 27 & 28 Vict. c. 115. 28 LECTURE I. These six sections contain all the provisions in the Act of practical interest to the agriculturist. ' Killing of ^ The occupier of land has, at common law, the right not only to kill foxes foxes. (which are not in any sense game), but to enter neighbouring enclosed lands for the purpose of pursuing and destroying them, provided they have been started and the pursuit begun on his own lands. This is only, however, for the purpose of preventing depredations to sheep, not for purposes of mere sport, and the occupier incurs no liability further than for the damage he may actually cause. See Colquhoun v. Buchanan and Others, August 6, 1785, M. 4997, Fao. Coll. 354, where an immemorial custom to that effect was distinctly recognised. It seems that a, contrary principle has been laid down in England. Hares in By certain old Scots Acts (1457 c. 80, & 1621 c. 32), the killing of hares time of vvas prohibited in time of snow ; but it has been decided that these statutes snow. have fallen into desuetude and are not now enforceable. Donald v. Boddan Jan. 11, 1828, Syme's Just. Eep., 303. Pigeons. The occupier can kill wild pigeons just as he may any other unprotected animals ; but he cannot destroy the pigeons belonging to the landlord on the plea that they injure his crops. See Easton v. Longlands, May 18, 1832, 10 S. 542, 4 J. 434, where it was also decided "that the landlord was under no obligation to scare his pigeons away from the tenant's crops. Lord Balgray took occasion to correct an erroneous idea prevailing in the country that a pigeon six miles from its dovecot may be shot. LECTURE II. The Game Laws — continued. Offences against Game Laws — Day Trespass Act — Extent to which occupier and those acting by his authority liable in contraventions — Circum- stances in which relatives, visitors, managers, and servants may commit offences — Development of doctrine of servant's liability — Compensation for game damage — Rights of occupier at common law — Game Laws Amendment Act — Question as to right to compensation of occupier possessing privileges of Ground Game Act. An aspect of the Game Laws which is of some importance Relation to the occupier of land is the liability which may attach to pier, &c., him or those acting by his authority to be prosecuted for ^(jry certain statutory offences against the laws designed to protect offepes the game. Attention may be confined to the Day Trespass Game Act of 1832,' because it may be said that only in respect of contraventions of that statute are occupiers and those I'^y Tres- pass Act, connected with them in any different position from the 1832. general public. The Act (sec. 1) makes it criminal for any one to be on lands, without leave of the proprietor, in pursuit of game or any of the other animals specified therein.^ The ofi'ence consists not in capturing the animals, but merely entering the lands for the purpose of pursuing them. The first point which may be noted is that the tenant Occupier himself cannot be convicted of being on lands in his own convicted. occupation in pursuit of game.' 1 2 & 3 Will. IV. c. 68— passed 17th July, 1832. 2 " Coneys " {i.e., rabbits) are specially mentioned in the enumeration. 3 Smdlie v. Lockhart, June 1, 1844, 2 Broun 194 ; Ea/rl of Kinnoul v. Tod, Dec. 15, 1859, 32 J. 154. A tenant may, however, be convicted 30 LECTURE 11. This principle of exemption, so far as it protects the tenant himself, is free from all dubiety, but when we pass to other persons acting with his permission or authority, such as visitors, relatives, managers, and servants, we enter upon a much more uncertain region where difficult How far questions sometimes arise. Take the case, for example, of manager • -, ^ for tenant a manager to whom is delegated the duty of carrying on convicted ^^^ farm in the absence or abstention of the tenant. In of day gyg}^ g^ gj^gg vsrhere there is a clear delegation of authority, trespass. _ _ ° ■' and express permission is given to kill the hares or rabbits (should these be under the control of the tenant), the manager will be regarded in the same position as the tenant himself as to his non-liability in the offence of day trespass. This point was decided in 1876.^ A tenant, holding under a lease which did not reserve rabbits, installed his son-in-law as manager of the farm in his absence, and gave him written permission to kill rabbits. The son-in-law was acquitted of a charge of contravening the Day Trespass Act. On the other hand, where there is not such an absolute delegation of authority, a person even though he should have practically a share in the management of the farm will be liable in the offence.^ The tenant of a farm (a widow) had her brother residing with her, assisting her in the management but receiving no wages. He was convicted of day trespass, and the conviction was upheld by the Court of Justiciary on the ground that he was more like a visitor who could come and go as he liked than a manager vested with full authority. It has even been held that a Occupier under the Night Poaching Act (9 Geo. IV. u. 69). See Smith v. Young, may con- March 8, 1856, 28 J. 338, where the High Court of Justiciary, by a majority, wavene j^gj^ ^^^^ ^ tenant might be guilty of the offence of unlawfully entering by Poaching "ig^*> °" lands in his own occupation, for the purpose of destroying game, Act. though they quashed the conviction under review in consequence of an informality. 1 M'Adam v. Laurie, March 1, 1876, 3 R. 20 (Just.) 2 Black V. Bradshaw, Dec. 16, 1875, 3 R. 18 (Just.) THE GAME LAWS. 31 person having a beneficial interest in the farm, though not nominally the tenant, can be convicted of the offence.' The eldest son of a deceased tenant, under a lease containing no reservation of rabbits, carried on the farm under an arrangement for behoof of himself and the rest of the family, and a younger son was found guilty.^ It may be added that in 1880'' a son who resided with and assisted his father holding under a lease giving him power to kill hares and rabbits was convicted of being on the lands in pursuit of game. It was proved that he had shot a grouse. Some nice and difficiilt questions have arisen in convicting servants under the Day Trespass Act of entering on lands Farm in their master's occupation in pursuit of game. In 1850* can be the general doctrine was affirmed that a farm servant was "ouvicted. guilty of a contravention of the Act by being on his master's lands in search of game as specified in the statute. Since then, however, that principle has suffered several encroachments in consequence of successive judgments of the Court of Justiciary, and it can scarcely now be taken as an absolute proposition. Two recent cases may be mentioned as showing indications of something like a new General principle in course of gradual development in our law, which qualified tends to limit the application of such a iudgment as that^y™°®"* '^^ JO cases. 1 Porter v, Stewart, March 22, 1858, 30 J. 518. 2 The ratio decidendi was that the Justices in convicting had held, as matter of fact, that the accused was on the lands in pursuit of game, a, finding which the Court could not review. This disposed of the plea urged in defence, that -the accused had the permission of the tenant, who possessed the right to kill rabbits. At the same time, there were obiter dicta to the effect that the right of a tenant to kill rabbits, which he had in the absence of a reservation in his lease, was pei'sonal to himself, and could not be communicated to others. This view cannot be looked on as sound. The decision in Stuart v. Murray {supra, p. 12) is in direct conflict with it. All the judges in the latter case dealt with the tenant's common law right to kill rabbits as involving the power of unrestricted delegation to others. 3 James v. Sari of Fife, Jan. 28, 1880, 7 R. 9 (Just.). * Selkirk V. Kennedy, Dec. 14, 1850, Shaw's Just. Rep. 463. See also Beaper v. Buf, Feb. 6, 1860, 32 J. 478. 32 LECTURE II. given in 1850. The first of tjiese cases was decided in 1878.^ The tenant held under a lease which reserved to the landlord the right to kill game according to the definition contained in the Poaching Prevention Act o£ 1862.^ In this Act " rabbits " are included in the temn " game," and the consequence was that in the lease in question rabbits were reserved to the landlord, and the tenant had no right to shoot them himself or authorise others to do so. With the view of protecting his crops the tenant instructed his ser- vant, who resided on the farm, to kill the rabbits, and supplied him with a gun for that purpose. The servant was charged with a contravention of the Day Trespass Act, but was acquitted by the Sheriff. The Court of Justiciary afiirmed the judgment. In the course of his opinion. Lord Young observed that a farm servant could not be expected to ask his master to show him his lease before he obeyed an order to shoot rabbits. A more recent and still stronger case was decided in 1880.' A tenant had right under his lease to snare rabbits, but he had no right to kill hares, which were specially reserved. He gave instructions to his servant to attend to the snaring of the rabbits. While carrying out these instructions, the servant took a wounded hare out of one of the rabbit snares and set a doff after it. The doo' caught it, and it was killed by the servant and taken possession of by him until a policeman, who had been lying concealed, dispossessed him. The servant was charged with being on the lands in pursuit of game. The Sheriff acquitted him, and the judgment was affirmed by the Court of Justiciary, Lord Adam, however, dissenting. Lord Young held that the servant was not on the lands for the purpose 1 Oald&r V. Bobertsmi, Nov. 6, 1878, 6 R. 3 (Just.). 2 25 & 26 Vict, 0. 114— passed 7th August, 1862. 3 Lawrie v. M'Arthur, Oct. 29, 1880, 8 R. 2 (Just.). THE GAME LAWS. 33 of pursuing the game. " Though it has been decided," his Lordship remarked, " that a farm servant who is on lands " where he is entitled to go for a lawful purpose, may yet be " on these lands with another and unlawful purpose it has " not been decided, and it is contrary to my opinion, that a " servant, who did not enter the lands with an unlawful " purpose, committed any trespass by setting a dog on a " wounded hare. The statute was not directed against such " a case as that. This man was not a trespasser at all ; he " was not on the lands for an unlawful purpose.'' It would appear from this, that the mere fact of a farm Servant servant pursuing game on his master's lands is not sufficient, lands with taken by itself, to warrant a conviction under the Day^gg^^]^^ Trespass Act, because if he is at the time on the lands for a lawful purpose, as, for example, engaged in his master's service, he is not guilty of the offence even though he captures or kills game. The fair principle deducible from the last-mentioned case — if it is to be considered a sound judgment — is, that there must be the positive act oi entering on the lands with the unlawful design of pursuing game. A farm servant is considered to have no right to be on the land at all except while engaged in his master's work, so that the going on the lands, designedly in pursuit of game, is clearly a contravention.' 1 One or two recent decisions may be noted as helping to indicate more clearly the precise nature of the acts which go to constitute the ofifence of day trespass. The entering on lands for the purpose of taking dead game has been held not to be a trespass in pursuit of game in the sense of the Act— {Macdonald v. M'Lean and Others, Feb. 28, 1879, 6 R. 14, Just.) — " A man trespassing in search or pursuit of game, &c. , within the mean- " ing of this provision," said the Lord Justice-Clerk (Moncreifif) " is a man " whose object is to capture or destroy a living wild animal. . . . The " trespass, not unico contextii but after an interval of time, to secure a wild " animal which another has killed, may go to show complicity, but is not " the offence set out in the statute." In order to the commission of the offence there must be actual corporeal entering on the lands, and not merely such a constructive presence as might be inferred from a person on a public D 84 LECTURE II. The Ground Game Act has, of course, considerably lessened the risks of infringing the Day Trespass Act by those who are acting by the instructions of the occupier, because where the person entering on the lands in pursuit of ground game is an authorised person in terms of the Act, he is not Servant arujlty of the statutory offence.^ It has been held in the capturing ° "^ ,.„■,,, n s game by Sheriff Court of Kincardineshire,^ that where the son ot a of Tabbit'^ tenant who had the privileges of the Ground Game Act, the?eb^°* was authorised to trap rabbits, and caught a partridge in guilty of a trap placed in a manner struck at by section 6, there was pass. no contravention of the Day Trespass Act. The Sheriff (Guthrie Smith) held that the landlord, who raised the proceedings, ought to have brought a complaint for an infringement of the Ground Game Act, because the offence was not day trespass at all, being committed by a person who was lawfully upon the lands. Compen- JSTotwithstanding the effect of recent legislation in giving tenant for^^e occupier to some extent the opportunity of protecting game himself, the subiect of compensation for iniury done by damage. > j r j j j game is still one of considerable importance, because to those farmers who are not yet in possession of the privileges road acting in concert with the real trespasser, and aiding him by prevent- ing the escape of the game {Golquhomi v. lAdddl and Another, Nov. 16, 1876, 4 R. 3, Just.). Lord Young dissented from the judgment on the ground that bodily presence was not essential, and that, in the circum- stances of the case, the persons on the road were as guilty of the trespass as the man who actually went upon the lands. A conviction without actual corporeal entering occurred a few years after in the case of Stoddart and Others v. Stevenson, June 8, 1880, 7 E,. II (Just.). Here the accused remained on the public road, but sent dogs into the lauds to pursue the game, and they relied on the judgment in Colquhoun v. Liddell for acquittal. The Court, however, unanimously upheld the conviction. The Lord Justice- Clerk (Moncreiff) distinguished between the cases, holding that in the earlier case it was sought to make one person a participant in the act of another person as constitutiag the offence of day trespass ; while in the later case the despatching of the dogs into the field was simply the using of machinery or animals for the purpose of trespassing. 1 See Stuart v. Murray {supra, p. 12). 2 Gammel v. Winter, Oct. 7, 1885, 1 Sh. C. Rep., (Scot. Law Rev.), 355. THE GAME LAWS. 35 of the Ground Game Act, the only remedy open is to demand such reparation from their landlords as the law may allow them. As will be seen afterwards, this subject of game damage is, moreover, not without its interest even to those occupiers who come within the scope of that Act. Attention will first be directed to the tenant's rights to compensation as they exist at common law, and then as they have been affected by statute. The principles of the common law by which a tenant is ^-^^^^ enabled to obtain reparation at the hands of his landlord oompeu- 1 1 c T 1 • 1 sation at tor game damage have been formulated with some clearness common in a series of decisions in the Supreme Court, ranging in date ^"^ from about the year 1832 to nearly half a century later. ^ The legal principles established by these decisions may be summarised as follows : — In every agricultural lease it is implied that there is and will remain on the farm a fair stock of game and rabbits, which must inevitably do a certain amount of injury. This certain amount of damage the occupier must be content to suffer without getting compensation, as it is a natural incident of his occupation and entered as an element into his contract. The criterion of what constitutes a fair stock of game is the stock which 1 Drysdale v. Jameson, Nov. 30, 1832, 11 S. 147 (see dictum by Lord Fullerton to the effect that in order to establish the tenant's claim, there must be, not merely a certain visible damage, but a certain and visible increase of game imputable to the landlord and not contemplated in the contract). Wemyss v. WUsm, Dec. 2, 1847, 10 D. 194, 20 J. 51 ; Morton V. Graham, Nov. 27, 1867, 6 Macph. 71, 40 J. 37; Syme v. Earl of Moray, Jan. 14, 1868, 6 Macph. 217, 40 J. 133 ; Milne, v. Earl of Dalhousie, Feb. 18, 1868, 5 S.L.R. 268; Inglis v. Moir's Tutors [supra, p. 7); Kiddv. Byrne et Byrne v. Johnson, Dec. 16, 1875, 3 R. 255 (here it was held that in the absence of a direct contract between the agricultural tenant and the lessee of the shootings, the former had no claim against the latter for damage caused by game)'; Cadzow v. Lockhart, May 19, 1876, 3 K 666. In the case of Wemyss v. Gulland {sujrra, p. 8), a question was suggested as to whether a tenant could competently prevent the landlord, by means of an interdict, from increasing the game beyond the average stock. The point does not appear to have been decided. 36 LECTURE II. Examina- tion of cases as showing develop- ment of prin- ciples. was upon the place when the lease was entered into, unless it appears from the terms of the lease that a larger stock was in the contemplation of the parties. The landlord's implied obligation, apart from special contract, is that this normal stock" shall not be increased to the detriment of the tenant, who accordingly is entitled to claim compensation for whatever damage is done by game in excess of it. Should the tenant bind himself in his lease to suffer all damage without making any claim for compensation, this does not necessarily exclude a claim on his part, though it puts him in a much worse position for obtaining redress than if he had come under no such obligation. If he can show that the landlord increased the game to an unreason- able and extravagant extent, through which he has been injured greatly in excess of what might have been fairly anticipated — even in the face of such an obligation — his claim will not be barred. These are, in substance, the leading principles of the common law on the subject of compensation for injury by game.^ The various cases in which these doctrines are- illustrated contain many features of interest. On examina- tion it will be observed that those occurring within the last quarter of a century or so indicate a change in the terms of the game clauses in agricultural leases, consequent apparently 1 It should be borne in mind that a tenant may lose his right to compen- sation for game damage by paying his rent without making any claim against Ms landlord. It was held in the case of Broadwood v. Hunter, Feb. 2, 1855, 17 D. 340, that the tenant was not entitled at the end of the lease to go back for several years and claim damages for injury by game, seeing there was no reservation of his claim in the rent receipts granted to him. There was such a reservation for the last year of the lease, and in regard to it the tenant was held not foreclosed. "We cannot hold," said the Lord Pre- sident (M'Neill), "that the tenant at the conclusion of the lease is entitled " to go back for the whole or any number of years of the lease and claim " damage for alleged injury done by game during the whole currency of " his incumbency, he having paid the rent without deduction and without ' ' making any claim for damage or any reservation of such claim. '' THE GAME LAWS. 37 on changes in the modes by which game was preserved, and the extent to which preservation was carried on. It is interesting to see an economic change, which is part of the history of land cultivation, so faithfully reflected in the records of our law courts. It was, roughly speaking, about the period indicated that the existence of game on a landed estate ceased to be regarded as exclusively a means of ministering to the sporting tastes of the landlord, and was beginning to be reckoned as an addition to the rental, having a definite money equivalent which might be increased or diminished according as the game was fostered or neglected. It is not necessary to inquire whether this economic change was for the better or the worse of the country, or particular communities, as a whole; but it is instructive to observe the effect which it had on the character of the game cases coming before the Supreme Court. For example, if the decisions occurring about half a century ago are examined, it will be found that agricultural leases did not contain any very peculiar clauses on the subject of the preservation of game or rabbits, or on the question of the tenant's compensation for damage. In one of the leading cases, Wemyss v. Wilson,^ there was no stipulation at all on the subject of game, and the case is valuable on that account as illustrating the doctrine already explained of the tenant's obligation, apart from contract, to suffer a certain amount of game damage. A sentence or two may be quoted from the opinion of Lord Jeffrey in that case, as it expresses the principle very clearly : — " The common law declares that though the " landlord gives up in terms the entire occupation of the " farm to the tenant, there is a tacit reservation of a right " to keep and feed on it a certain amount of the wild " animals that naturally resort to it. That being the 1 See note p. 35, 38 LECTURE II. " ordinary condition, the tenant agrees to keep on the " existing stock of game, and engages to feed, besides his " own cattle, the game that is on the farm when he takes it. " But the landlord cannot increase the obligation by multi- " plying his stock." On the other hand, when more recent cases are examined, — cases in which the leases commence about 25 or 30 years ago — quite a different atmosphere is entered. The leases now begin to reveal schemes of game preservation. Thus in the case of Morton v. Graham, ^ the tenant was held not entitled to compensation, notwithstanding the very con- siderable amount of injury he had sustained, on the ground that by his lease (which contained a reservation of game and rabbits) it was stipulated that the landlord was to be under no liability to compensate him, and also that from the general terms of the lease a large increase in the stock of game and rabbits appeared to have been within the contemplation of the parties. The opinion was expressed that, even in the face of such a clause, the tenant could get damages if he proved an unreasonable and extravagant increase, the Lord President (Inglis) adding : — " I can " imagine a case of such extravagant and unscrupulous " use of means to increase the game as would amount to " a fraud on the agricultural tenant, and open to him such " a remedy as he here seeks." But this was nothing to what followed in 1876 in the case of Gadzow v. Lockhart,^ where the lease contained the following extraordinary clause : — " Reserving also to the " proprietor and his foresaids the sole right to the whole " game, including hares and rabbits, of every kind, and to "all the fish in the rivers and burns within the lands " hereby let, with full power to himself and those having " his permission to hunt, shoot, or fish and sport on the 1 See note p. 35. ^ Ibid. THE GAME LAWS. 39 " farm, without liability in damages ; and the tenant shall "be bound to preserve the game of all kinds, including " hares and rabbits, to the utmost of his power, to interrupt " poachers and unqualified persons, and to give information " of them to the proprietor and his foresaids, or those acting " for him or them ; and it is hereby expressly declared and " agreed that the tenant shall have no claim whatever for " any damage he may sustain from game, hares and rabbits, " during the lease, this being held to have been calculated " upon and allowed for by him in offering for the farm." The tenant here claimed £600 for damage done in four years by rabbits, which had greatly increased in number by the conversion of a narrow strip of ground lying between the farm and the river Clyde into a plantation which, with its growth of copse and brushwood, soon afforded excellent cover for harbouring game. The Lord Ordinary (Shand) held that the terms of the lease excluded any claim on the part of the tenant, though he found as matter of fact that great damage had been done in consequence of an increase in the stock of rabbits much beyond what the tenant could reasonably have contemplated, adding — "The injury has "been so great during several years as to render it im- " possible for the pursuer to pay the stipulated rent from "the produce of the farms." The First Division (Lord Ardmillan dissenting) reversed this judgment, and held that the clause in the lease, notwithstanding its extra- ordinary stringency, did not necessarily form an absolute barrier to the tenant's claim, but found, looking to the natxire of the clause, that the tenant had not made out such an extravagant increase as to entitle him to compensation for the injury. The Lord President (Inglis), in the course of his judgment, said — "I can quite understand that damage " may have been sustained by the tenant to such an extent " that a claim for reparation would not be barred. If, for 40 LECTUBE II. " instance, the landlord had deliberately proceeded to convert "the farm or a part of it into a rabbit warren, so as to "make the land barren altogether, and to leave no green " thing remaining, I cannot have any doubt that the tenant " would have then had a remedy. I go further than that, "because I think that if the landlord systematically, and " not by mere oversight and partial neglect, had omitted the " ordinary precautions necessary for keeping down vermin, " it would be difficult to say that a tenant, after warning " him of it and bringing it under his notice, would not have " a claim against him. Mere inaction in the case of rabbits " is a most dangerous principle on which to proceed ; they " are a class of animals, as everbody knows, of a very fecund " nature, and in the absence of repressive measures, increase " at a most rapid rate. If a case of that kind were to occur " where the landlord had permitted the rabbits to multiply " without check, the claim of the tenant would not be barred, " nor would the landlord be protected, by such a clause as "this." It will be observed that the result was the same in the end for the tenant, who, while he had as matter of fact sustained loss to the extent of £600, was found disentitled to any part of that sum because of the terms of the lease he had entered into. The case is a good illustra- tion of what farmers will sometimes sign in the shape of leases. In the conjoined cases of Kidd v. Byrne and Byrne v. Johnson,'^ occurring about the same time, a tenant holding under a lease which reserved to the landlord the game and rabbits, and liberty to shoot "without liability in damages," was found entitled to compensation for injury done by an increase of the stock of rabbits ; and the game tenant was found liable in relief to the 1 See note p. 35. THE GAME LAWS. 41 landlord, the increase in the rabbits being due to his negligence. It would appear from the terms of the agricultural lease that the stipulation for non-liability in damages on the part of the landlord referred rather to the injury which he might do in the course of exercising his reserved right of hunting and shooting than to the damage which an increased stock of game might occasion. The Game Laws Amendment Act of 1877^ was designed C^ame to effect some improvement on the common law concerning Amend- compensation to tenants for game damage. That statute 2877 '^ ' had been passed in great measure in consequence of the cases just examined, especially the ease of Gadzow v. Lockhart, which naturally attracted public attention. One of the judges in the case of Wemyss v. Wilson^ sug- gested that landlords and tenants should expressly agree in each case as to what was to be considered a fair stock of game which the tenant was bound to tolerate. To introduce Object of . . . Act this idea into our law seems to be the leading object of the Act of 1877, which undoubtedly effects some useful reforms. It applies only to leases, with a duration of not less than two years, entered into after 1st January, 1878. By the fourth section it is provided that where a lease reserves the Section 4. right of killing or himting rabbits, hares, or other game, or where such right i's, by presumption of the common law, held to be retained by the landlord, the tenant is to be Statutory entitled to compensation for the damage done in excess of tenant to such sum as may be set forth in the lease as the amount of '=°™P^"" annual damage for which it was agreed that no compensation should be due. If there is no such sum set forth in the lease, then the sum of £2 is to be held to be the amount of damage which the tenant must suffer without getting compensation. The reference to the reservation of hunting and shooting by presumption of common law 1 40 & 41 Vict. c. 28— passed 2nd August, 1877. ^ Supra, p. .35. 42 LECTURE II. meets the case of the lease being silent on the subject of game, in which case, as already explained,^ the pre- sumption of common law would be, in the case of game, that it would be reserved to the landlord, just as if it had been expressly mentioned in the lease. The effect of section 4 is that, if the parties do not make a bargain for themselves as to what amount of game the tenant must tolerate, the Act steps in and makes it for them, the bargain so made by the Act being that the annual damage which a fair stock of game and rabbits is supposed to occasion is £2, and anything beyond that amount is held to be committed by an excessive stock for which the landlord is responsible. The remainder of the Act, so far as it deals with this subject, merely Statutory provides a machinery for the ascertainment of the amount machinery for of compensation due by the landlord. The year under the damage. -^^^ i® reckoned from Whitsunday to Whitsunday, and the tenant is bound to give notice to the landlord of his intention to make a claim, and, if the claim is to be made good by an action in Court, the notice must be given in writing, — in the case of damage done to growing crop (except grass for pasture), at least three weeks before the crop is reaped or raised ; 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 pasture, at least fourteen days before any person to be called as a witness by the tenant to value the damage shall make an inspection with the view of valuing such damage. Compensation can be obtained under the Act for damage done to all kinds of crops, including grass, whether intended for hay or pasture, but excluding grass grown on muirlands. Provision is made for having claims settled by arbitration, should both parties signify their consent to this mode of settlement, in writing, either in the lease or by a separate document. Should 1 Supra, pp. 4, 5, THE GAME LAWS. 43 arbitration be agreed to, each party must give notice to the other of the arbiter he names, and if one fails to nominate an arbiter within fourteen days after the other has appointed one, the single arbiter may act as if he had been appointed by both parties. Where two arbiters are chosen, they must appoint an oversman before beginning the proceedings. The arbiters deal with all claims which may arise during the year ending at the Whitsunday following their appoint- ment. Should the parties resort to law instead of arbitration, claims up to £50 can be brought in the Sheriff's Small Debt Court, the limit for ordinary claims in that Court being £12. Provision is also made for an appeal to the Sheriff- Principal if the evidence is recorded — which can be done at the request of either party. This procedure is also unknown in the Small Debt Court in any other kind of claim. Since the Ground Game Act has given to the occupier Is occu- in possession of its privileges the right to kiil riares privileges and rabbits, a very interesting question arises as tOg^^jj^^^^j whether this right deprives him of all claim for com- deprived pensation against his landlord for injury done by those compen- animals which he can lawfully destroy. The landlord gamT might be supposed to say to his tenant in reply to^'''"^S®- such a claim : — '' You have the remedy in your own " hands : if the ground game are destroying your crops, you " must just keep them down, now that you have the power. " The law has given you the right to kill the game, and has " so protected you in the exercise of it as to prohibit you " from parting with it or divesting yourself of it, and the " effect of that inalienable right which you now possess is "to relieve me of any liability to recompense you, if, " notwithstanding your right to kill the game, they continue " injuring your crops." This has an appearance of fairness. 44 LECTURE II. but the question is, Would the tenant's claim be excluded absolutely seeing he is possessed of the statutory right? Would an action for compensation for game damage, at the instance of a tenant holding under a lease entered into since the passing of the Ground Game Act, be an incompetent or irrelevant action irrespective altogether of the extent of injury which might be proved or of the circumstances in which the injury was inflicted? The point does not seem to have been raised,^ so that it must be considered on grounds of principle alone. It is clear that a very strong case would require to be made out by Reasons ^j^g tenant — a case showing an increase in the game to such ing right an extent as to be beyond his power to control or check. pensation Assuming such an increase were established, it would not neces- ra^jjgp appear that the tenant's claim would not necessarily sarily ^'^ •> excluded. Inverness ^ About three years ago an action was decided in the Sheriff Court case. of Inverness-shire, in which the question might have been raised in the most exact form. An agricultural lease was entered into subsequent to the Ground Game Act, expressly reserving to the landlord, however, the game and rabbits, and making no reference to the statutory privileges of the occupier. A game lease was subsequently granted by the land- lord, who took the game tenant bound not only to keep down the hares and rabbits so as to prevent injury to the crops, but also to relieve him of all claim at the instance of the agricultural tenant for injury done by game. The agricultural tenant made a claim against the landlord for damages for an undue increase of game, and this claim was intimated to the game tenant, who attempted to evade responsibility on the ground that the agricultural tenant had the remedy in his own hands. The Sheriff-Substitute decided in favour of the agricultural tenant, and the case went no further. However, the landlord, after paying the amount of damages awarded and the expenses, raised an action against the game tenant to relieve him, and this second case (Mackintosh v. Gosling J was decided in January, 1886, in the Court of Session by the Lord Ordinary (M'Laren), who held the game tenant liable under the obligation of relief in the game lease. This cannot be looked on as an authority on the point with which we are dealing, because the question as to whether the possession of the statutory privilege was an absolute bar to the tenant's claim was evidently not properly raised in the Sheriff Court ; and the judgment of the Lord Ordinary must not be held as necessarily implying that the decision in the Inferior Court was a right one. The decision, which was acquiesced in by the parties, is not reported. THE GAME LAWS. 45 be barred because he possessed the statutory right. It must be borne in mind that there is nothing in the Ground Game Act interposing any absolute bar to such claims, and it can well be conceived that injury might be done to the tenant's crops in circumstances rendering it impossible for him to protect himself by the exercise of the right under the Act, limited as it is by the restrictions already con- sidered. Take, for example, the case of a farm surrounded by covers in the occupation of the proprietor — covers specially designed for the harbouring and propagation of hares and rabbits. What is the occupier of such a farm to do ? The rabbits are sheltered in the covers, and issue forth periodically to feed on the crops. The tenant cannot enter the covers to kill them, and if he tries to protect himself by a rabbit fence, it is known how the rabbits, with their cunning and engineering skill, will perforate tunnels through below the fence, and we have seen how the tenant is by law prevented from trapping them in these tunnels. Their burrows are all inside the cover, and thus trapping as a mode of destruction is not available. In such circumstances the tenant is in an absolutely helpless condition, just as helpless, indeed, as if the Ground Game Act had not passed ; and if that Act, by giving him as a matter of form — for to a tenant so placed the right is nothing but a form — has deprived him of all the rights to compensation which he would have enjoyed before it passed, the result is one involving very great hardship and injustice. There is some reason, however, for holding that in such a case there would be a fair ground of claim for compensation. This view is supported by opinions 'J'hese given in two cases in which the principle was laid down by certain that, where the tenant had the common law right toj"^™"^. kill rabbits, there might be circumstances in which he'^'P'®^- would, notwithstanding, have a good claim for compensation. 46 LECTURE II. In the case of Inglis v. Moir's Tutors,'- the tenant, though he had the right to kill rabbits, was found entitled to damages for the injury done by them, on the ground that the landlord had specially reserved covers on the lands and that in these covers the rabbits had increased. The Lord Justice-Clerk (Moncreiff), in giving judgment, said — " I am " very clearly of opinion that a landlord cannot both reserve '' covers for game preservation within or around the land " which he has let for agricultural purposes, and, at the " same time, answer such demands as this in regard to " depredations by rabbits by the plea that the tenant had " the remedy in his own hand. If there be one fact which " is clearly proved in the course of the evidence in this case, " it is that the covers sheltered the rabbits, and that the " rabbits multiplied in the covers. . . . I arn of opinion, " therefore, that in the present case the reservation of the " covers on the farm rendered the landlord as much respon- " sible for an unreasonable stock of rabbits as if he had " reserved them along with the game in the lease." Again, in the case of Wood v. Paton,^ the tenant, who was possessed of the right to kill rabbits, made a claim for compensation for injury done after he had removed from the houses at Whitsunday, but while he still held the arable land. The Court decided against him, but it was made clear from the bench that the ground of judgment was that he could not show he was prevented in any way from killing the rabbits, notwithstanding that he was no longer resident on the farm. Lord Neaves indicated that a diffe- rent result would have followed supposing there had been an extraordinary increase of rabbits in the plantations and policies which adjoined the farm, and the Lord Justice- Clerk (Moncreiff) laid down a similar principle. These eases, of course, had to do with the common law right, but 1 See Supra, p. 7. ^ March 20, 1874, 1 R. 868. THE GAME LAWS. 47 it is difficult to see why the same principle should not be equally applicable where the occupier has the statutory right under the recent Act. •' 1 In September, 1885, the question was raised in an English County English Court [Hamson v. Audey, Co. Ct. Barnsley). An occupier who had the County privileges of the Ground Game Act, raised an action against the game *^"^" tenant for £50 of damages done to his crops by rabbits, which, it was alleged, had been allowed to increase to an excessive extent. The judge decided in favour of the occupier, though he modiiied the damages to £15. He held that the excessive stock of rabbits was due to the encouragement of the game tenant, for not only had he allowed them to increase im- moderately, biit he had promoted their visits to the tenant's lands by netting the sides of the plantations, which did 7iot adjoin the farm. The judge is reported to have further held that the Ground Game Act made no difference in the occupier's rights, if regard was had to the broad proposi- tion, that a man was bound to use his property so as not to injure his neighbour. LECTURE III. The Agricultural Holdings (Scotland) Act, and Tenants' Obligations as to Farm Management. New principle of law introduced by Holdings Act — Tenant's obligations giving rise to counter claims — Common law rules as to management and cultivation of lands — Additional rents for miscropping — How far enforceable by landlord — Exposition of doctrine and examination of authorities — Implied discharge of pactional rent — Acquiescence of landlord in miscropping — Tenant's obligation to consume pro- duce and manure — In absence of contract — Where expressly stipulated — Implied exception of waygoing crop — History of the law as to obligation — Conflict between Court of Session and House of Lords — Ultimate rejection of doctrine as to waygoing crop — Principles affecting manure obligation — In absence of contract — Where obligation express — Special pi'ovisions in leases as to manure — Recent revival of old doctrine of implied exception of waygoing crop. General The central theme of this and the concluding lecture will Agricul- bs the new doctrine recently introduced into the law of *]J™^. Scotland affecting the agricultural occupancy of land, which Act. finds expression in the Agricultural Holdings Act of 1883. That measure reverses, or at least largely modifies, a theory which entered into the very genius of our law of landed property. Theoretically, the rights of the owner of land extend downwards to the centre of the earth and upwards to the heavens ; and consequently, our common law recognises in the cultivator no proprietary interest in any- thing lying embedded in the soil, physically incorporated with it, or standing afiixed to it. Till the recent statute, he who tilled the land might carry off' the fruits resulting from his OBLIGATIONS AS TO FARM MANAGEMENT. 49 labour and skill, though, as will be seen afterwards, the carrying off was even under limitation ; but if that labour or skill produced changes in the structure and elements of the soil itself which added to its value, and which were as much the fruits of the cultivator's operations as those things he was allowed to carry oif, the law recognised no right of property in the cultivator and no right to claim any equivalent or consideration for what had passed directly from his hand into the soil of the landowner. The historical method, applied to many of the problems that arise in considering the laws affecting agriculture, would yield plentiful results ; and if it were applied to the principle just stated, the historic basis of the rule by which, in virtue of a presumption of the common law, the landlord was able to appropriate the fruits of the tenant's skill and industry without compensation would probably be found in those features of the feudal system whereby the lord himself farmed his land, not by means of free tenants working under voluntary contracts, but through the medium of cultivators, who first appear on the stage of history in the garb of semi-bondage, with no rights whatever in the fruits which the land produced, in the cattle which it reared, or even in the rude implements which then enabled them to labour it. The feudal lord possessed every- thing, and had even a qualified right of property in the humble cultivator, and in his goods and chattels. But with the progress of centuries, and the decline of strict feudalism, the servile husbandman gradually developed into the free tenant, whose relationship to the lord was one arising from contract and not dependent on his status in the feudal order. It is interesting to notice how many of our reforms, and notably those connected with the land laws, really consist in the substitution of equitable principles for the archaic remnants of feudalism. E 50 LECTURE III. Such considerations indicate the importance of the con- cession by the Legislature of the cardinal principle which underlies the Agricultural Holdings Act, and in expounding the nature and limits of that concession, it is necessary to explain a few of the leading principles of the common law relating to land cultivation in Scotland, because, as will be seen, the passing of that Act has brought into prominence certain doctrines not much heard of in the normal relation between landlord and tenant. The Act gives to tenants the right, subject to certain conditions, of claiming com- pensation for specified kinds of improvements effected on the holding; and, unlike some of the statutes which were dealt with in the two previous lectures, current leases are not excepted from its operation; so that land- lords now find themselves obliged to meet demands on the part of tenants quitting their holdings to be compensated for the statutory improvements. This will naturally lead landlords to scrutinize their leases to see whether there are not stipulations binding on the tenants which may give rise to counter-claims, so as to reduce to a minimum, or extinguish altogether, the tenant's compensation; and this in turn will result in the enforcement of conditions which, but for the passing of the Act and the consequent claim by the tenant, might possibly have lain dormant. The actual Method of experience of the operation of the Act has so far confirmed rea men . ^j^j^ view ; and it will thus be proper, before treating of its provisions, to explain the principles regulating the enforce- ment of some stipulations in leases, which have formed, and may be expected to form, the subject matter of counter- claims under the Act. Two such stipulations will be selected, for special treatment, to illustrate, rather than exhaust, the matters which may give rise to counter-claims by the landlord — (1) the tenant's obligation to pay additional rent for miscropping; and (2) his obligation, express or OBLIGATIONS AS TO FARM MANAGEMENT. 51 implied, to consume on the holding certain parts of the produce, and to apply to the lands the manure made thereon. A good many of the detailed stipulations, which in the course of the development of the Scottish agricultural lease came to be expressed with great fulness, were really part of the old common law of Scotland, and governed the relation- ship between the owner and the occupier of the soil before Tenant's the contract of lease assumed so elaborate a form. This tions at principle we shall find illustrated in the tenant's obligation fawaTto to consume the produce and manure ; but meanwhile it may manage- be noticed that, where a lease of lands for agricultural pur- poses is silent as to the manner of cultivation, the common law Must rule is that they must be laboured according to the methods mies of of good husbandry, and that the lands must not be wasted f andn'"^^' or deteriorated ; and the tenant is liable in damages for a breach of that obligation.^ The common law does not go the length of formulating specific rules of cultivation: these must depend on the general state of agricultural science at the time, and must consequently vary with changed methods and extended knowledge.^ " It is impossible that any 1 This rule applies in the case of yearly leases. See Maxwell, July 12, 1776, 5 Brown's Supplement 515 ; Fleming v. Macdonald, March 16, 1860, 22 D. 1025, 32 J. 445, and Lord Cowan's dictum in the later case. There a trustee on a sequestrated estate had assigned the right of cultivating the farm, occupied by the bankrupt, till the expiry of the year current at the date of the bankruptcy, and it was held that the assignee was bound by the rules of good husbandry in his management, and liable in damages for an infrmgement. See also Thomson's Reps. v. OUphant, Nov. 12, 1824, 3 S. 275, where a tenant under a, lease of 68 years was found liable in damages for failing to cultivate according to the rules of good husbandry, the lease containing a general obligation to labour the lands properly, but prescribing no definite system of management. The Court held that it was not enough for the tenant to leave the farm in the state in which he received it. 2 The opinion has frequently been expressed that the Scottish system of leases, whatever benefits it may have bestowed on agriculture, has had in this respect, an opposite tendency, by stereotyping the modes of cultivation, and by confining the limits of " good husbandry " to certain definite rules 62 LECTURE III. "judgment of the Court, applicable to the mode of agri- " culture forty years ago, can regulate it now when the " system is greatly improved, nor that a judgment applicable Special " to one sort of land can govern the management of a soil rules pre- scribed in " totally different."^ Of course, if the lease prescribes must be definite methods of management and cropping, these must be followed, obeyed irrespective of the requirements of good husbandry ; and should the lease, in addition to the prescription of a Even if at positive system, also stipulate for the observance of good ■with husbandry, the tenant will not be liable in damages for bandrv"^ transgressing the rules of good husbandry if he has obeyed the special rules laid down, supposing the general and special systems do not coincide. This point was decided more than half a century ago.^ 1. Stipu- We shall now consider the obligation in the tenant to additional P^-y additional miscropping rent, or " pactional rent " as it miscrop- ig usually called.^ pmg or •' "paction- Apart from special contract, there is no principle in our law affecting agricultural leases by which extra rents for miscropping can be exacted. Such rents are the special creation of contract, because where the parties make no bargain for them, the landlord's remedy is a claim of damages against the tenant for deterioration of the land or for breach of contract. It was, roughly speaking, about one hundred years ago that it became the general practice instead of allowing it to suffer inodifioation by altered circumstances and improved methods. It is interesting to remember that the advocates of what is known as "free cultivation" are in fact agitating for the compul- sory application to the farming of land of what is really the common law of Scotland, unmodified by contract, which, there is good reason to suppose, was practically in operation in this coimtry a little over a century ago. 1 Lord Cringletie in Allen v. Berry (infra, p. 74). 2 StarTc v. Edmonstone, Nov. 28, 1826, 5 S. 45. 3 For a more detailed examination of the law of ' ' pactional rent " in agricultural leases, reference may be made to two articles by the writer in the Scottish Law Review for September and November, 1885, vol. i. pp. 129, 161. OBLIGATIONS AS TO FARM MANAGEMENT. 63 to prescribe in leases a definite system of cropping, and to stipulate for payment by the tenant of an additional rent per acre in the event of his departing from it. The stipulation was a device ingeniously contrived to secure, with absolute certainty, compliance with the prescribed systems of cultivation. During the present century the practice of resorting to that device has become universal, and it may be said that such stipulations exist in nine- tenths of the leases in Scotland at the present day.' The doctrine of our law on the subject may be stated thus : — Where a contract of lease prescribes rules to regulate the course of cultivation, and stipulates for the payment of additional rent in the event of their non-observance, such additional rent is exigible without modification, provided it is made clear that it is not of the nature of a penalty but is truly pactional.^ 1 It has only been in very recent times that it has occurred to land reformers that there might be an aspect of mjustice in the stipulation and enforcement of such bargains, and the first effort to amend the law in this respect was when the Agricultural Holdings Act was passing through Parliament. The effort was inefi'ectual, but in most measures dealing with this phase of the land question there are attempts to limit the power of landlords to make such stipulations or to enforce them if made. 2 The chief authorities on the general subject of " pactional rent " are : — Note of Pollock V. Paton, July 24, 1777, M. App. l^ach 4 ; Graham, v. StraUon, authorities 1787; Henderson v. Maxwell, Feb. 24, 1802, M. 10054; Hunter v. Clark, on "pac- June 27, 1810, Hume, 852; Morrison v. Blair, Feb. 22, 1823, 2 S. 241 ; tio^al Miller v. Gwydir, May 26, 1824, 3 S. 65 ; aff. March 8, 1826, 2 W. & S. 52 ; '■®"*- Suttie V. Somner, July 10, 1828, 6 S. 1122 ; Lawson v. Or/ilvie, May 16, 1832, 5 D. & A. 278, 10 S. 531 ; Bobertson v. Clark, June 1, 1842, 4 D. 1317 ; Hail V. M'Gill, July 14, 1847, 9 D. 1557, 19 J. 650 ; Thrieplandv. Munro, July 6, 1861, 23 D. 1252, 33 J. 629; Ritchie v. Wemyss, November 10, 1863, 2 Macph. 137 ; Witham v. White atid Young, June 12, 1866, 38 J. 586. It was here decided that a tenant getting possession and contravening a provision in the lease before the term of entry is not liable in pactional rent, though he may have to pay damages if the act is in itself a wrongful one. In Miller v. Gwydir the tenant was bound by his lease to follow a specific mode of cropping for the last three years, but he adopted the method followed by the other tenants on the estate, and which was admittedly a better system and more beneficial to the lands. The landlord had accepted the ordinary rent for one of these years, and in 54 LECTUEE III. Exposi- tion of doctrine of "pac- tional rent. " Agricultural leases usually take the tenant bound to observe a specified course of cropping or management, and failing his doing so, to pay a certain sum for each acre cultivated in a different manner, and that over and above the ordinary rent. Such additional rent is almost invariably declared to be " pactional and not penal," which means that the additional payment is not to be a penalty or punishment for wrong-doing or compensation for breach of contract (which by the principles of our law would, in the ordinary case, be modified according to the actual damage done), but that it is to be a covenanted or bargained payment, just as the ordinary rent is, and consequently not subject to modification. It accordingly follows, that where the tenant binds himself to pay an additional rent per acre in the event of a departure from the prescribed system of cropping, and Damages "where no pactional rent. respect of that he was held not entitled to any additional rent for the deviation which occurred that year, but with regard to the two remaining years he was found entitled to the pactional rent stipulated for at the rate of £4 per acre, which amounted in all to nearly £150, and that in the face of skilful management and excellent farming. It was pled for him in the House of Lords that, instead of loss having arisen to the landlord from his management, the system adopted by him had been most beneficial and advantageous, and much more tlian could possibly have been the case under the directions in the lease, which were absurd and unintelligible. The tenant seems to have been a skilled agriculturist, and actually received premiums for good farming from the landlord himself. The case is one of the best illustrations in our law reports of the operation of the principle of pactional rent. The following cases may be consulted on the question of damages for mismanagement in the absence of a stipulation for pactional rent : — Twe,e.ddaU v. Brown, Sep. 18, 1821, 2 Murray's Jury Reports, S63 ; LyaU V. Cooper, Nov. 27, 1832, 11 S. 96 ; Carron Company v. Donaldson, Feb. 25, 1838, 20 D. 681, 30 J. 347 (here it was held that the landlord was entitled to damages for miscropping during the currency of the lease against a plea by the tenant that the deterioration could be repaired before the expiry of the lease) ; and Mackenzie v. Munro, Dec. 7, 1860, 23 D. 144, 33 J. 54. Even with an express stipulation for pactional rent, the landlord may content himself with a claim of damages for the actual loss sustained through the miscropping. See Hcdl v. M'Oill (supra) and Lord Cunning- hame's judgment therein ; see also Ritchie v. Wemyss (supra), where the landlord was found entitled to damages for general deterioration of the farm in addition to pactional rent for the actual miscropping. OBLIGATIONS AS TO FARM MANAGEMENT. 00 where such additional rent is declared to be " pactional and "not penal," it becomes due and payable to, the landlord, should a deviation take place, even though the deviation causes no damage whatever to the land. The addi- tional rent is looked on as the value of the different use and possession the tenant gets from adopting a system of cultivation of his own choosing in preference to the system laid down in the lease. Even should the departure from the prescribed rotation be shown to have benefited the land, . the pactional rent will, nevertheless, be exigible,^ and it will be no answer to the landlord's demand, that the tenant was practically forced by circumstances to adopt the altered system.^ The principle is, that the tenant has bargained to pay an additional rent if he deviate from the prescribed method of cultivation, and the advantage or disadvantage to the landlord, from such deviation, is of no consequence. The landlord does not require to allege or prove damage or deterioration : he has only to show that the stipulated rent is really pactional and that there has been a departure from the precise system which the tenant became bound to follow. Accordingly, the notion of loss or damage has not neces- sarily any place in the doctrine, the real subject matter of the stipulation being as much the benefit which the tenant is to derive or supposes he is to derive, as the injury which the landlord dreads or will actually sustain. It is rent and not damage which is bargained for. The tenant, if he contravenes the cropping regulations, is supposed to take something more out of the land than what is covered by the ordinary rent ; this " something more " is to be paid for by the additional rent. In accordance with this principle, it has been held that additional pactional rent is covered by 1 See dictum of Lord Deas in Baird v. Mount, infra, p. .37 ; also j\Hller v. Gwydir, supra, p. 5.3. 2 Fraser v. Ewart, Feb. 25, 1813, Fao. Coll. 223. 56 LECTURE III. the landlord's hypothec, and must, in a question with the trustee on the tenant's sequestrated estate, be regarded as a preferable debt just like ordinary rent.^ Tenant The tenant is not at liberty to deviate from the specified option to system of cultivation on tendering the additional rent, tendering" unless such option is given him by the lease. He cannot additional gg^y ^ j^jg landlord, " I prefer a system of my own to that " laid down in the lease, but I am quite willing to pay the " additional rent, and that is all you can ask." In such a ■ case the landlord is entitled to stop the threatened deviation by interdict.^ A single quotation may be given from the judgment of the Lord President (M'Neill) in Thriepland v. Munro,^ as it expresses the general principle of pactional rent very clearly — " Whatever may be the conditions of " this lease as to additional rent, the tenant is bound to " obey them. It will be no answer to a demand founded " on them to allege that the course which was followed was 1 Robertson v. Clark, supra, p. 53. The point was explicitly decided in this case as stated in the text, but in a later case ( Witham v. White and Young, supra, p. 53), where the question was raised but not decided, doubt was thrown on it by Lord Cowan, though no reference was made to the previous judgment. ^ Mackenzie V. Craigies, June 18, 1811, Fac. Coll. SOi {aff. on appeal); Mackenzie v. Gilchrist, Dec. 13, 1811, Fac. Coll. 419. In Hunter v. Broadwood, Feb. 3, 1854, 16 D. 441, 26 J. 295, Lord Ivory held that the principle of denying to the tenant the option of deviating on payment of the additional rent was inconsistent with the view which had been taken of its truly pactional character, and hinted that had the question been an open one he might have hesitated to withhold an option from the tenant. The point, however, was considered as conclusively settled by the early cases. In Cathcart v. Sloss, Nov. 22, 1864, 3 Macph. 76, an application by a landlord to have the tenant interdicted from displenishing a dairy farm in alleged contravention of the rules of good husbandry and of the terms of the lease, was refused on account of its vagueness. It has been held that a landlord cannot enforce fulfilment by the tenant of a general obligation to cultivate in conformity, with good husbandry by means of a charge and im- prisonment proceeding upon the registration of the lease under the Personal Diligence Act. See Hendry v. Marshall, Feb. 27, 1878, 5 R. 687, where the question was reserved as to the competency of such procedure to compel performance of some specific act under a particular clause in the lease. 3 Supra, p. 53. OBLIGATIONS AS TO FAEM MANAGEMENT. 57 " one which is now more approved of than what was " thought good at the beginning of the lease. Nor will it " do to say that it has done no harm to the lands : or that " it has made them better : or that the matter was not " thought of : or that no harm was intended. The answer " to all that is, that it was against the bargain of the parties. " That I apprehend to be fixed law." While the general doctrine aiFecting additional pactional rents for miscropping is thus clearly defined, there are at the same time principles in our law by the operation of which the landlord's attempt to enforce them some- times proves ineffectual. In the first place, there is the Implied implied discharge of pactional rent. For example, a land- of addi- lord who takes payment of the ordinary rent for a par-j.g'^^ ticular year, and grants a receipt for it without reserving his claim for any additional rent which fnay have been incurred during that year, is held to have by implication passed from, and discharged, the additional rent. This was expressly decided in two cases — one occurring in 1854,' and the other twenty years latSr.^ In the first of these cases an Cases additional rent of £5 was stipulated for each acre miscropped. j^g ^gg. There was no specific rotation in the lease, but there weve^^^^- certain prohibitions, and the alleged contraventions were spread over the last four years of the lease. The rents were discharged by means of pass-books between landlord and tenant. In the case of three of the miscropping years, the ordinary rent had been marked as adjusted without any reservation of a claim for the pactional rent, or for any breach of the lease ; but in the case of the fourth year there was such a reservation. It was held that, except for the last year, the landlord was prevented from making any claim for the additional rent, which it appeared had really been incurred by the tenant. 1 Hunter v. Broadwood, supra, p. 56. 2 Baird v. Mount, Nov. 19, 1874, 2 R. 101. 58 LECTURE III. In the later case, which was decided in 1874, thex-e were positive regulations as to cropping, and the tenant was taken bound to pay an additional rent of £5 for each acre miscropped, and in the last year of the lease the additional rent was to be £10 per acre. The clauses in the lease dealing with deviations from the prescribed method were of unusual stringency, as will appear from the following : — " And the said additional rent shall not be considered penal, "or be subject to modification, but shall in each case be " deemed the actual agreed-on rent or value to be paid by " the tenant for the benefit to be derived from the deviation; " and even though there be consent by the proprietor or his " factor to the departure from the rotation, the additional "rent shall nevertheless be paid, nothing liberating the "tenant but the written consent of the proprietor or his " factor agreeing in explicit words to the departure without " payment of extra rent; and the additional rent shall in all " cases be payable at the same terms as the ordinary rent " before stipulated as aforesaid ; . . . . and it shall " continue to be paid year by year so long as the deviation " shall subsist." The additional rent was claimed for the last three years of the lease, and the tenant pleaded in defence that the half-yearly receipts granted by the landlord for the ordinary rents of the two earlier years (which contained no reservation of the additional rent or other claim) operated as a discharge of the additional rents for these years. This view was adopted by the Court, and the landlord was held disentitled to- any part of the additional rent for the two years.^ 1 The precise principle on whicli claims for additional rent are barred by unresei-ved discharges of the ordinary rent does not seem to be very clearly brought out in either of the cases referred to. The judges in both varied in their grounds of judgment. In Hunter v. Broadwood the element of acquiescence was relied on by two of the judges ; a third expressly repudiated that element as a ratio decidendi. In Baird v. Mount stress was laid on the simultaneity of the terms of payment of both kinds of rent ; in the earlier case this did not seem to enter into the judgment. OBLIGATIONS AS TO FARM MANAGEMENT. 59 But in the second place, the landlord may lose his right Aoquies- . . „ . . cenoe in to claim pactional rent if he should acquiesce in the miscrop- deviations — that is to say, if, knowing that the cropping ^i^flor™g regulations were being violated, he should take no means ,1??/°'' , » o ' additional to enforce them, and thus lead the tenant to believe that rent. he did not object. It is always a question of circumstances what constitutes acquiescence sufficient to deprive the landlord of his claim ; but the principle is well established that the landlord cannot permit the tenant to go on transgressing the rules specified in the lease, and then at the end of the day turn round with a claim for additional rent for the miscropping. In a case decided in 1869^ the tenant became bound to Cases il- lustrating. cultivate the lands on a six-shift rotation, and at the expiry of the lease he was to be entitled to payment for the first and second year's grass. During the currency of the lease- it was found that the six-shift system was not very suitable to the nature of the farm, and the tenant, without getting the express consent of the landlord, gradually altered it to a five-shift. The farm consisted of 240 acres of arable land, and the result of the alteration in the system was that, at the end of the lease, there were 16 acres in green crop in addition to what was allowed by the lease, and no third year's grass at all. In order to get the rotation altered from a six to a five-shift, the tenant found it necessary, as he alleged, to take three white crops in succession from a field of about 8 or 9 acres, which was 1 Taylor v. Duff's Trustees, Jan. 13, 1869, 7 Macph. 351, 41 J. 205. See also Miller v. Oioydir {supra, p. 53), and Hunter v. Broadwood [supra, p. 56). Acquiescence also prevents the landlord from claiming damages for miscropping where there is no stipulation of pactional rent. Murray's Trustees v. Gordon, Feb. 26, 1806, Hume 823, Fac. Coll., 1801-7, and Fraser v. Maitland, March 9, 1824, 2 Shaw's Appeals 37. In this latter case there was no specific mode of cultivation, and no stipulation of pactional rent. The landlord was found not entitled, at the end of the lease, to damages for miscropping, seeing that he had made no objection during its currency. The judgment of the Court of Session was affirmed, but there does not seem to be any report of it. 60 LECTURE III. against the express regulations of the lease. The landlord claimed the additional rent of £10 per acre stipulated, both for the alteration of the system and for the miscropping of the small j&eld ; but he was held to have tacitly acquiesced in the alteration of the system by not objecting to it at the time, seeing that both he and his land-steward were quite aware of what was going on ; and as it also appeared that he had acquiesced in the miscropping of the small field, he was held to have no claim whatever for pactional rent. The tenant, on the other hand, was found not entitled to payment for the second year's grass, notwithstanding the provision in the lease, as the alteration of the system of management had deprived the landlord of third year's grass. The most recent case on the subject was decided in 1883,' and is of considerable interest, because for the first time an important principle as to the efiect of acquiescence was distinctly laid down. The lease provided that the lands should be cultivated according to the rules of good husbandry, and that certain portions should be cropped according to the six-shift rotation, and the remainder according to the seven-shift rotation. Pactional rent at the rate of £3 per acre was stipulated for miscropping. At the end of the lease the landlord made over to the incomino; tenant all his claims for pactional rent, and the action was accordingly at the instance of the latter. The alleged miscropping consisted of alterations in the shifts — certain portions of the farms having been taken out of the shifts to which they had originally been assigned. The tenant admitted this, but pleaded that these alterations had been acquiesced in by the proprietor. This plea was sustained, and the tenant was relieved from payment of the additional rent. The ordinary rents for all the years of the lease, except the last, had been accepted without reservation, but 1 Lamb v. Mitchell's Trustees, Feb. 23, 1S83, 10 R. 640. OBLIGATIONS AS TO FARM MANAGEMENT. 61 the decision really turned, not on the principle of implied discharge, but on that of acquiescence. The principle referred to as having been established by the case is the following : — If the deviations committed Acquiea- _ cence in by the tenant necessarily result in other departures certain from a positive system of cultivation, and if the original embraces deviations having that result were acquiesced in ty othe™ re- the landlord, such acquiescence is held to cover the from them. later deviations as well. The landlord cannot, after the tenant has, by homologated deviations, dislocated a whole system of cultivation (which possibly cannot be put right again for a series of years), make him responsible for the consequences of an act which he (the landlord) has condoned. The principle is very clearly expressed in the judgment of the Lord President (Inglis) : — " This," his lordship said, " was a system of cropping " resulting in consequences which could not easily be " undone, and that constitutes the great peculiarity of " this case. It is very unlike a case where the con- " ditions of the lease are violated one year and not " another, and with no evil consequences except for that " year When a system of rotation is put out of " joint it cannot be put right for a great many years. It is " clear upon the evidence that if a system of six or seven- '' shift rotation has once been violated, it will take six or " seven years to put it right The landlord goes " on without taking notice of the violations which were " occurring year by year, and he does not stop them either " by interference or remonstrance until in the last year " of the lease he says — ' I have not claimed an additional "'rent down to 1880, but I do so now.' The answer "is — 'It is by things you yourself have condoned that "'the land cannot be cultivated in the mode prescribed " ' by the lease.' I think that is a good answer, and 62 LECTURE III. 2. Ten- ant's obli- gation to consume produce and man- How far singular successor bound by his author's acquies- cence. " that it is founded on what is established in fact, namely, " acquiescence."' The second of the two species of obligations customarily found in agricultural leases, andwhichmaygiverise to counter- claims on the part of landlords against outgoing tenants, is that by which the tenant is taken bound to consume on the holding certain parts of the produce or apply to the lands the manure collected in the course of management. Some- times the stipulation is in the positive form of an explicit obligation on the tenant to consume the produce or use the manure on the lands, and sometimes it takes the form of a prohibition against removal. Not unfrequently there is given to the tenant the privilege of what is called a waygoing sale, that is to say, the right is conferred on him by express provision of selling certain portions of the waygoing crop, and his obligation to consume is so far limited. Sometimes also there are provisions of a very useful kind, by which the 1 Acquiescence in definite acts of miscropping binds the landlord who acquiesces and his personal representatives, but not a singular successor in the lands, unless the acquiescence is of such a character as to effectually substitute for the original lease a new contract. See dicta in HcUl v. M'CHll (supra p. 53), and particularly the opinion of Lord Cockburn, who, in the course of his judgment, said — "The pursuer was not liable to be affected "by any mere acquiescence by the seller in deviations by the tenant from " the proper course of husbandry. A landlord may overlook or permit a "violation of the lease ; but this will not necessarily bind a singular ' ' successor acquiring from him to do the same. The singular successor is "entitled without any special assignation to enforce the contract. Not ' ' absolutely to enforce the original lease ; because, undoubtedly, an original " lease may be changed during its currency by the parties; and if it be, this ' ' altered lease becomes the" contract between them, and is the one that the " singular successor acquires. If anything, therefore, had occurred which " bound the seller to submit to the infringement of the tack, the acquirer "of his rights might be bound also. But no such permanent obligation is ' ' implied in the original landlord merely acquiescing — as it is called — ^that "is, not objecting to the tenant's miscropping. He may do this once or ' ' twice, or any number of times ; but this will not create a legal obligation ' ' to continue this apathy for ever. " This last dictum must be taken as qualified by the principle adopted in Lamb v. Mitchell's Trustees, [supra p. 60), where the condoned deviations were of such a nature as would probably be held to bind a singular successor. OBLIGATIONS AS TO FARM MANAGEMENT. 63 outgoing tenant is obliged to hand over his waygoing crop, or certain portions of it, and the remanent manure, to the landlord or incoming tenant at a valuation ; and there is a variety of stipulations working out such arrangements with more or less fulness. In other cases, the outgoing tenant becomes bound to deliver to the incoming tenant, without payment or consideration, the fodder of the waygoing crop, and the remanent manure, the latter having in like manner received the fodder and manure from his predecessor without payment. Such an obligation is really the survival of the ancient practice of steelbow, by which , the landlord furnished to the tenant on his entry the whole stocking and implements, under an obligation to hand them back at the termination of the lease. In all such cases, where the parties have expressly stipulated for the disposal of the waygoing crop and the remanent manure, there is no difficulty; and if the various provisions are fulfilled, no claims for contravention of the lease will emerge against the outgoing tenant. But where there are no such express provisions — where there is nothing in the lease but a sub- stantive obligation on the tenant to consume the specified produce and apply the manure, without making any exception, difiiculties at once arise. Our law on the subject of these obligations in agricul- tural leases has undergone some remarkable fluctuations. The old common law of Scotland was, that where theAtcom- . , i.1 i. J. mon law lease contained no stipulation as to how the tenant was ;„ absence to dispose of the manure or the produce, there was an °^^^^^P^^^^ implied obligation on him to place on the lands all the manure made thereon, except what was produced after barley seed-time in the concluding year of his possession, which he was at liberty to sell or dispose of at pleasure ; and with regard to straw and other fodder, there was similarly an implied prohibition against selling any part of 64 LECTURE III. it, except what was produced in the last crop. With the other produce he was, apart from contract, entitled to deal as he chose. These rules grew directly out o£ the general principle of the common law, which, as we have already seen,^ regulated the cultivation of land in the absence of contract. The tenant being bound, where there were no positive regulations as to cropping, to labour the lands according to the rules of good husbandry, it followed that he was not entitled to dispose of the straw and manure as he pleased, but in obedience to these rules, he was obliged to consume the one on the lands, and apply the other to the lands, during his possession. But, at the same time, it was recognised that the tenant could Exception not profitably apply the manure to the lands after the last of way- goingcrop. crop was sown, and could not reasonably be expected to consume the whole straw of the waygoing crop before quitting the holding, and the rules of good husbandry being sufficiently flexible to admit of such exceptions, the obligations of the tenant were accordingly held not to be absolute, but to be subject to the definite limitations which have been stated. These principles were recognised and applied at a comparatively early period in the history of our agricultural law. They had their origin in what was probably an universal custom, coeval with the idea of contract as applied to the cultivation of land ; but it was towards the close of last century that they began to be definitely sanctioned by the judgments of our Courts. At that period there occurred several cases which afford a clear illustration of the general doctrine. ^ 1 Supra, p. 51. , Cases il- 2 in Eoxburghe v. Archibald, March 5, 1785, (noted M. 15263), the general lustrative principle was affirmed and a tenant held bound to consume the fodder on ot common ^j^g lands, and apply the manure to the lands, irrespective of any stipula- tion to that effect. See also M' Murray v. Maxwell, 1776, noted M. ib. In Pringh v. M'Murdo, June .30, 1796, M. 6575, the same obligation OBLIGATIONS AS TO FARM MANAGEMENT. 65 But the most authoritative exposition of the principles of Jo™* , , , , , . , . , „ Opinion of the common law on this subject, as they are unaffected by consulted the specialties of contract, was given by thirteen consulted ^^otdTra™. judges of the Court of Session, in the case of Gordon v. ^obertion. Robertson, which was finally decided by the House of Lords in 1826.1 The question decided in this case was, as will be seen afterwards,^ as to the effect to be given to an express provi- sion in a contract of lease. The judgment of the Court of Session on that point was overturned ; but it was admitted by Lord Cringletie, who alone dissented, and also assumed in the judgment of the House of Lords, that the statement contained in the Joint Opinion of the majority of the consulted judges accurately set forth the rules of the common law as they existed independently of express was enforced against an offer by the tenant to reserve as much fodder as would suffice for the use of the live stock and dispose of the remainder. It was laid down, however, that the obligation could be implemented by importing to the farm purchased manure to an extent equivalent to the fodder removed. The tenant was also found entitled, in the absence of stipulation, to sell the hay and straw of the waygoing crop. The excep- tion of the waygoing crop was recognised in Jamieson v. Pringle, May 16, 1792 (noted M. 15263), and also in Cle-rk v. Hamilton, Feb. 4, 1801 (noted Hume, 867), in which latter case it was also held that the exception was not to be extended to accumulations of fodder of crops prior to the last. Most of these cases were recognised by the judges of the Court of Session in Gordon v. Robertson (infra), as conclusively establishing the doctrine referred to in the text. Reference may also be made to the cases of Fraser v. Petre, March 7, 1823, 2 S. 279, and Hamilton v. Reid's Trunteea, January 15, 1824, 2 S. 611. The tenant's common law obligation to consume the fodder is still further qualified, if there are any circum- stances affording a reasonable excuse for the non-consumption on the lands. In Gordon v. Falconer, March 8, 1822, 1 S. 386, it was held that the rule binding the tenant to consume could not apply where there were no proper steading and appliances on the farm for so doing. This case overruled the earlier one of Scott v. Durham, May 27, 1813, Fac. Coll. 305. See also Gordon v. Fiddler, November 14, 1823, 2 S. 486. 1 March 11, 1825, 3 S. 656: rev. May 19, 1826, 2 W. & S. 115. The opinion of the whole Court was taken in consequence of the decision of the House of Lords in the previous case of Roxburghe v. Roberton (see infra, p. 68). 2 Infra, p. 68. F 66 LECTURE III. stipulation. This Opinion accordingly possesses much value, forming, as it does, an instructive treatise of the common law of Scotland affecting the rights and liabilities of land- lord and tenant on such questions ; and it throws consider- able light on not a few points concerning the origin of the Scottish agricultural lease. The conflicting judgments on the precise question submitted for decision in the case will be examined afterwards ; but meanwhile, attention may be drawn to a few of the principles of the common law expounded in the Opinion, and which, as has been said, were not impugned in the House of Lords or affected by the ultimate judgment. After setting forth that the obligations between landlord and tenant, though not specified in a contract of lease, had been fixed on common law principles and recognised by a long course of practice as well as in judicial decisions, the Joint Opinion goes on to express certain of these principles as follows : — " Among other things, it has been perfectly fixed, that a " tenant, by the nature of the contract, is obliged to use the "power given him over the surface, tanquam, bonus vir, " without running out or wasting the soil, and consequently " he is, under sundry circumstances (which must be left, in " arbitrio judicis), tied down without any express clause, " both with respect to the grounds which he may cultivate " with the plough, and as to the method of cultivation and " husbandry. Following these principles, it has been held " and understood in practice, that a tenant cannot sell any " dung produced on the farm, previously to barley or bear " seed-time in the concluding year of his possession, and that " he is not entitled to sell any part of the straw raised ff om " the farm, except that of the last crop."^ The principle by which the obligation to consume was limited as regards the last crop is expressed still more 1 2 W. & S. p. 118, OBLIGATIONS AS TO FARM MANAGEMENT. 67 definitely in the first .of the four propositions with which the Opinion concludes : — "Although, by the common law and "practice of Scotland, a tenant is bound to consume the " whole fodder on his farm on the lands during the lease, "yet this obligation has never been held to apply to the "waygoing crop, and therefore he is entitled to sell the "fodder of his last crop."^ In modern times, there has not been much scope for the O'^l'ga- ■^ tions to application of these rules of the common law, the disposal consume of the manure and produce being usually made the subject of pressed in express contract. But, as has already appeared, it was not jg^gg *" ° the common practice till nearly the commencement of the present century to make minute stipulations in leases of land as to a variety of matters connected with the manage- ment of the farm and the rights and liabilities of the landlord and tenant, a good deal being left to the operation of the principles of the common law unaided by contract. During the first quarter of this century, the Courts were largely occupied in the interpretation of various clauses in leases which seemed to aim at the expression, as part of the contract, of what had previously been held to govern the relationship of the parties at common law without contract ; ^ and among other cases, there are several bearing on the question of the tenant's obligation to consume the produce and manure on the lands. The chief point which fell to be determined by the Court in construing contracts 1 2 VV. & S. p. 123. 2 See Joint Opinion of consulted judges in Gordon v. Robertson {supra p. 65). The following passage from the Opinion well describes the origin of the existing form of our agricultural lease with its elaborate and anxious provisions: — "The desire to make the written contract as complete as "possible, and the anxiety and often the ignorance of the parties and their "factors and agents, have induced them anxiously to avoid omission, and "to express everything, and consequently to insert in the lease many of "the obligations universally understood to be incumbent on them and " sanctioned by the common law independently of any express stipulation," 68 LECTUBE III. of lease, and which ultimately led to a noted conflict between our Supreme Court and the House of Lords, was Is express the following : — Where the lease by express stipulation to con-'°" bound the tenant during his possession to consume on the duce sub*- ^^^™ Specific parts of the produce, or conversely pro- ject to hibited removal, was this express obligation to be held as exception of way- limited to the same extent, as regards the last crop, as cropf ^^6 obligation to consume which would have lain on the tenant at common law and independently of any positive contract ? This question was the subject of much learned discussion in two leading cases decided upwards of sixty' years ago, in both of which the judgment of the Court of Session was upset by the House of Lords. The first of these cases was decided in 1820, — Roxburghe v. Case of Roherton, — ^ and the second was the case to which Hoxburghe V. reference has already been made, — Gordon v. Robert- son.^ In the earlier case, the landlord, the Duke of Eoxburghe, applied for interdict against his tenant from selling the straw of the waygoing crop in contravention of the terms of the lease, by which the tenant became bound on his removal, " to leave upon the ground all the dung and " manure of the preceding year, but the value thereof shall " be paid to him by the succeeding tenant, as the same shall " be ascertained by two neutral men, one to be chosen by " each party ; and at no time shall the said John Roherton " (the tenant), or his foresaids sell or give away any of the "hay or straw of the said farm, which shall always be " spent on the ground." On the expiry of the lease (the ish of which was at Whitsunday for the houses and grass, and at the separation of the crop for the arable land), it was agreed to continue it for four years. Both the Lord Ordinary and the Second Division of the Court of Session : May 30, 1816, Hume 867 : rev. July 17, 1820, 2 Bligh's Appeals 156, 2 Supra, p. 65, OBLIGATIONS AS TO FARM MANAGEMENT. 69 refused the interdict on the ground that, notwithstanding Court of .,..,,, Session the express stipulation m the lease, the tenant was entitled hold ex- to carry off the straw produced by the crop of the last year, wrygohig On appeal, the House of Lords reversed. The Lord?™^. , . ■^ ^ _ implied m Chancellor (Eldon), who delivered the leading opinion, held obligation, that whatever might be the Scottish common law on the Principle subject of such obligations in the absence of positive ^^^^ ^J' agreement, the express stipulation of the parties, if soundly House of construed, was inconsistent with the right claimed by the tenant to remove the straw of the last crop. " The pro- " vision," his Lordship continued " that the tenant shall at " ' no time ' sell or give away the hay or straw is absolutely " incompatible with the supposition of a right in the tenant "in any manner to eloign those articles during the last " year." The Lord Chancellor hinted at the possibility of a distinction between a direct obligation to consume the produce, and a provision that the produce should he consumed. " The clause," his Lordship said, " stipulates " that the hay and straw of the farm ' shall always be spent " ' on the ground,' not that the tenant shall spend it, — an " expression which might possibly lead to a different con- "struction." This dictum, as will be seen afterwards,^ has had a remarkable effect on the development of the law on this subject. The case of Gordon v. Robertson, ^ which was decided in Case of the Court of Session in 1825, and in the House of Lords RoUrtsm. the following year, involved the same point. The missive of lease under which the tenant occupied the farm, referred to certain Conditions applicable to the whole estate, one of the Articles of which provided as foUows: — "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 lease 1 Infra, p. 76. '■= Supra, p. 65. 70 LECTUEE III. endured for 21 years, and terminated at Whitsunday and the separation of the crop. The tenant did not at his entry receive any fodder from the landlord or the preceding tenant. On the expiry of the lease, the landlord applied to the Sheriff of Aberdeenshire (in which county the farm was situated), for interdict against the tenant proceeding with a threatened sale of the fodder. After certain procedure this was refused, on the ground that in accordance with the established usage of the country, the tenant was entitled to remove the fodder of the waygoing crop. On the case being advocated, the Lord Ordinary (Cringletie), following the judgment of the House of Lords, in the case of Roxburghe v. Roberton, reversed the decision Conflict of the Sheriff. Thereafter, the Second Division ordered a Court of consultation and conference among all the judges, with the and House ^®^^^^' *^^^ *^® tenant's right to appropriate the straw of of Lords, the waygoing crop was sustained by the whole Court, Lord Cringletie, who had decided the case in the Outer House, alone dissenting. The Joint Opinion of the majority of the consulted judges has already been referred to as containing an exposition of the principles of the common law, ^ but it may be well to indicate briefly the grounds on which they arrived at a construction of the provision in the lease, in accordance with what the common law would have implied in the absence of such provision. Considerable stress was laid on the fact, that at the Whitsunday preceding the ingathering of the last crop, the tenant's use and possession of the houses and the pasture land for the accommodation of himself, his servants, and cattle, absolutely ceased ; and that, consequently, there was no opportunity of convenient consumption of the fodder.^ What was 1 Supra, p. 66. 2 Several allusions were made, both in the case under discussion and the previous one of Boxbiirghe v. Roberton, to the supposed existence of a right, OBLIGATIONS AS TO FARM MANAGEMENT. 71 evidently the main ground of the judgment was, that the clause in question, "unaccompanied by any corresponding " relative obligation on the part of the landlord or incoming " tenant, is not more extensive in its application than what " would have been implied from the nature of the contract " ; and an additional argument was found in the consequences resulting from a contrary view, which " would extend the " obligation of the tack against the tenant for nearly a year " after it had expired, after he was removed, and after he " ceased to have right to come on the farm, either by himself, " his servants, or his cattle, all of which he must do, if he is " to use the straw on the farm ; for, as the straw is his " imdoubted property, it is he, the outgoing tenant, who is " entitled to the use of it, and not the incoming tenant or the " landlord without paying value for it." The landlord appealed to the House of Lords, and not- Ultimate withstanding the strong and almost unanimous expression of doctrine of opinion by the Scotch judges, the decision which wasQ^^^" ^^ given in the case of Roxburghe v. Roberton was repeated, and the judgment of the Court of Session was reversed. Lord Giiford, who delivered the leading opinion, went mainly upon the ground that no common law usage could negative a distinct and unambiguous contract ; and that the case could not, either in its circumstances or upon principle, be distinguished from the previous judgment. That judge, and also Lord Cringletie, the only dissentient in the Scotch Court, held that the object the parties had in view in making the stipulation was to set aside the ordinary usage established by usage, on the part of the outgoing tenant, whose ish was Whitsunday and the separation of the crop, to use the barns on the farm for the threshing of the waygoing crop ; but such a, right was expressly repudiated in two early cases — MacEwan v. Patterson, November 19, 1803, M. 13, 891 ; and Anderson v. Tod, November 21, 1809, Hume 842. Lord Craighill, in the course of his judgment in the case of Lord Elibanh v. Scott, (infra, p. 75), referred to these decisions as settling the point adversely to the existence of any such right. 72 LECTURE III. in regard to the removal of the waygoing crop, and to transplant into Aberdeenshire a modified form of the custom of steelbow, which to some extent was prevalent in the counties of East Lothian and Berwick at that period, whereby the outgoing tenant left on the farm, without payment, the straw and manure for the use of the incoming tenant, who in turn did the same for his successor, and so on in perpetuity.^ Consump- ^j^g application to the lands of the manure made from manure in the producB is governed by the same general principles as contract those we have examined. Apart from express contract, the exception tenant's obligation at common law is to apply to the lands of what the whole manure, except what is made after the spring remama after last seed-time. 1 A similar judgment was given in a case relating to the same estate in Aberdeenshire, though there were certain specialties, — Gordon v. Anderson, May 18, 1825, 4 S. 13: rev. February 15, 1828, 3 W. & S. 1. Here the ish was Martinmas for all purposes, but this element was not regarded as affecting the principle. A previous case {Philp v. Morton, January 18, 1816, Hume 865), may also be consulted as showing that the fact of the tenant's removal being wholly at Martinmas, had no effect in depriving him of the right to dispose of the straw of the waygoing crop, even where there was an express obligation to consume. In Wemyss v. Drysdale, Jan. 27, 1848, 10 D. 467, 20 J. 140 : aff. May 7, 1849, 6 Bell's Appeals 455, 21 J. 395, an interesting point was decided as' to the effect of a renunciation of the lease on the provisions as to the waygoing crop. The tenant, under a nineteen years' lease, was bound to consume the whole fodder, straw, and turnips, "hay and fodder of the last crop excepted." In the fifth year of his possession he renounced the lease, and the landlord accepted the renunciation unconditionally. On the tenant's removal at the end of that year a question arose between the landlord and the tenant's creditors, who had attached the straw and fodder remaining on the farm, as to whether the tenant was entitled to the benefit of the exception in the lease as regards the waygoing crop. The opinion of the whole Court was taken, and it was held, though only by a bare majority, that the expression "last " crop," as used in the lease, included the crop of the concluding year of the possession, and accordingly that the tenant was entitled to the fodder. This view was upheld in the House of Lords on appeal. Reference may be made to the case of Moncreiff^. Hay, Deo. 6, 1842, 5 D. 249, as to the mterpretatiou of a special clause in a lease giving the landlord right to the straw of the waygoing crop in the event of the tenant's insolvency. OBLIGATIONS AS TO FARM MANAGEMENT. 73 seed-time in the last year of his possession. ^ But there is in one particular an important difference between this rule and that binding the tenant to consume the produce. The equitable exception under which the tenant, unrestricted by- express stipulation, is relieved of the duty of consuming the fodder of the waygoing crop, gives him absolute liberty of disposal ; but it would rather appear that, in the case of the remanent manure, which, by virtue of the corresponding exception at common law, he does not require to apply to Butteuant the lands, there is a positive obligation, independently of leave it to contract, to hand it over to the incoming tenant on payment at valua- of its value.' *i°"- Where the lease expressly stipulates for the application Express of the whole manure to the lands, during its currency, the tion as to principle established by the cases of Roxburghe v. Roberton^ manure, and Gordon v. Robertson* holds good to the effect of de- priving the tenant of the privilege, which he would have enjoyed in the absence of contract, of disposing of the manure accumulating after the last crop is sown. If this If vio- obligation is not fulfilled by the tenant, but an accumula- remanent tion of manure lies at the end of the lease unapplied ^^™^® ^^ to the lands, it passes to the landlord or incoming tenant landlord . ^ ^ * . without without payment.^ On the other hand, where there is no payment. 1 Finnie v. Trotter, June 27, 1767, M. 15260, and Joint Opinion of con- sulted judges in Gordon v. Eobertson {supra p. 65). 2 Forrester v. Wright, February 19, 1808, M. App. Tack, No. 16. Here, there was an express obligation to lay the whole dung on the farm ' ' at bear " seed-time," but the lease was silent as to the disposal of the manure which was made between seed-time and removal, and it was held that the incoming tenant had a preferable right to it on paying its value. 3 Supra, p. 68. i Supra, p. 65. 6 Wemyss v. Wright, June 16, 1801, M. App. Tack, No. 7; Forrester v. Wright {supra); Oreig v. Mackay, July 20, 1869, 7 Macph. 1109, 41 J. 619. In this last case, the lease, which expired at Martinmas, contained an obligation on the tenant, to use and consume upon the land ' ' the whole "dung, compost, or other manure that should be made thereon.'' The Court, after getting a report from a skilled agriculturist, that it was prac- 74 LECTURE III. positive stipulation in the lease, requiring the tenant to lay the manure on the lands, the landlord or incoming tenant is not entitled to the remanent manure without paying for it, provided there is no failure on the tenant's part to discharge his obligation, whether express or implied, to manure the lands properly.^ tioatle for the outgoing tenant to have used and consumed the dung after the turnip seed-time preceding his removal, held that he vras not entitled to payment for the manure left unconsumed on the farm. The Lord Justice- Clerk (Patton) dissented from the judgment, on the ground that the manure ■was the undoubted property of the outgoing tenant, which he was not bound to part with for nothing. His Lordship, as will be seen afterwards {infra, p. 77), adopted the distinction of the Lord Chancellor (Eldon) in Roxhurqhe, v. Boierton {supra p. 69), between an obligation on the tenant to consume the produce or manure and a provision that the produce or special manure should be consumed. Reference may be made to the following as to cases in which the leases contained special stipulations as to the manure : — manure. ^^^ ^- Graham, June 12, 1824, 3 S. 125 ; Herriot v. Hallcet, February 10, 1826, 4 S. 446 (here there was an express obligation on the tenant to leave the dung at a valuation, and the question being raised as to whether he was entitled to its full value or only to a proportion, looking to the obliga- tion to leave the dung on the farm, the tenant was held entitled to the full value) ; Stirling v. Yuille, December 14, 1827, 6 S. 251 (a positive obligation to leave the dung at removal was held to mean that it was to be left without payment). See also Scott v. Ritchie, December 2, 1869, 7 S.L.E,. 135. The tenant was here bound to have ten acres in turnips in the last year of his possession, and to hand them over at valuation to the land- lord or incoming tenant if required. He was also bound to consume on the lands the fodder, except the straw of the last crop, and the manure, except what was made after turnip seed-time in the last year. The incoming tenant elected to take the turnips, and the question which came before the Court was similar to that in Herriot v. HaXket {supra), namely, whether the out- going tenant was entitled to their full value for removal, or only to their value for consumption on the lands — the oversman's opinion disclosing a difference of 5s. 4d. per ton between these two standards of value. The Court held the outgoing tenant entitled to the value as if for removal, in respect that the incoming tenant derived the full benefit of their consump- tion on the farm. A somewhat similar decision was given in Erskine's Trustees v. Oromiie, November 1, 1870, 9 Macph. 54, 43 J. 24. 1 Allen v. Berry, January 17, 1827, 5 S. 212 : aff. June 10, 1829, 3 W. & S. 417. The principle, as stated in the text, was here affirmed, though the decision really turned on a specialty. The lease expired at Whitsunday quoad the houses, and grass and the separation of the crop quoad the arable land, and the remanent manure consisted of accumulations between the last wheat seed-time and the term of removal. The specialty which had to be OBLIGATIONS AS TO FARM MANAGEMENT. '75 Allusion has been made to the remarkable changes which have taken place in the legal principles affecting such obligations. It has been seen how the old common law and practice of Scotland, as recognised in repeated decisions of the Supreme Court, and as expressed in the deliberate and practically unanimous opinion of the Scottish Bench, was overturned by two successive judgments of the House of Lords ;^ and how the subsequent course of judicial decision and exposition has, for over half-a-century, been in accordance with the principle thus finally adopted. What appears to be a new departure in the history of the doctrine may now be referred to. Two years ago the Second Division of the Court of Session gave judgment in a case,^ which, though formally in accordance with the decent decision of the House of Lords in Roxburghe v. Roberton EUbank v. and Gordon v. Robertson, was practically in direct opposition to it, and apparently is a return to something like the old ^^^^f ^f view. In the case in question, the expiry of the lease was old doc- trine of at Whitsunday as to the houses and grass, and at the implied separation of the crop as to the arable land. The obliga- of way^™ tion on the tenant to consume was in these terms: — "tog°"'S'"'°P- "consume the whole straw, turnips, and other fodder "raised on the farm, with the exception of clover hay, "which he is to be permitted to sell for consumption " elsewhere." On his leaving the farm at the expiry of the lease, the tenant offered to sell the whole crop of the last year to the landlord or incoming tenant, but this offer was declined, and he sold the crop, including the straw, by decided was, whether the landlord could object to such an accumulation of manure as being excessive, in face of a practice on the part of the tenant to preserve the manure for the wheat crop, which was not only unchallenged, but in accordance with the acknowledged rule of good husbandry in the district. This point was decided in favour of the tenant. 1 Supra, p. 68. 2 Lord Elibank v. Scott, February 1, 1884, 11 R. 494. 76 LECTURE III. public roup. The incoming tenant purchased and consumed on the farm 18 acres of it. The remainder was removed by the outgoing tenant. The proprietor raised an action against the outgoing tenant, to have it declared that he was bound to consume the straw, &c., on the farm, and that having failed to implement the obligation, he was liable in damages to the extent of the value of the straw sold by him. The defence was, that the obligation in the lease did not apply to the straw and fodder of the last crop. The Lord Ordinary (Kinnear) decided in favour of the landlord, holding that the question was ruled by the previous cases. This judgment was reversed by the Second Division, who unanimously found that the tenant, notwithstanding the express obligation in the lease, was entitled to remove the straw of the waygoing crop. The main difficulty was to distinguish in principle between the case under review and the two judgments of the House of Lords already referred to. The sole ground of distinction was the difference in the form of the obligation pointed out by Lord Eldon in Roxburghe v. Roberton. In that case, his Lordship said, " The clause which provides what shall be done at the " removal, .... stipulates that the hay and straw of " the farm shall always be spent on the ground, not that " the tenant shall spend it, — an expression which might " possibly lead to a different construction " ; and it was argued on behalf of the tenant, in the recent case, that where the obligation was imjoersoncd, that is to say, where there was a provision that the fodder should be con- sumed on the lands, without indicating by whom it was to be so consumed, the result was different from what would follow where the tenant himself was taken bound to con- sume.^ This view was adopted, and consequently the 1 Precisely the same distinction was considered in the case of Greig v. Mackay (supra, p. 73), and repudiated by Lord Cowan, who held the OBLIGATIONS AS TO FARM MANAGEMENT. 77 decisions of the House of Lords in the two early cases were put aside as ruling precedents, to the effect of enabling the Court to determine the question on its merits. The chief ground on which they proceeded, in relieving the tenant of the literal fulfilment of the obligation was, that he could not possibly consume the whole straw of his last crop before his removal, and as there was no provision for his leaving any part of it to the incoming tenant, the obligation must be limited so as to entitle him to remove such part of the straw as he could not fairly consume. It will be noticed that precisely the same considerations were present in the early cases, and expressly repudiated by the House of Lords ; so that, irrespective of the difference in the form of the obli- gation, the recent decision is in direct conflict with the prin- ciple, which, for over half-a-century has invariably been applied in interpreting similar provisions in agricultural contracts ; though it is unquestionably in accordance with what was recognised and sanctioned as the common law and practice of Scotland, until upset by the House of Lords. ^ It is in reality the resuscitation of a principle which, though repudiated by the House of Lords in 1826, and since neces- sarily discarded by the Scottish Courts, was once firmly fixed as a doctrine of our law, and universally recognised in our agricultural practice. It remains to be seen how far difference to be immaterial, and in this view Lord Kinnear acquiesced in . deciding the recent case. On the other hand, the Lord Justice-Clerk (Patton) in the earlier case, adopted the distinction, and based on it his dissent from the judgment. 1 In Lord EKbanlc v. Scott, Lord Young summarised his opinion as follows : — "I am of opinion that when a tenant binds himself to consume the straw "on his farm, he does not bind himself, when he ceases to be tenant, to "leave any straw to be consumed by another." If this principle is to be held as equally applicable to the consumption of manure, it runs counter to the whole course of decisions, the most recent of which is Greig v. Machay (supra, p. 73), where, as has been seen, the tenant, whose obligation was in terms exactly similar to those put by Lord Young, was compelled, without' payment, to leave the manure to be consumed by his successor. 78 LECTURE III. the revived doctrine will modify the subsequent course of decisions.' 1 Reference may be made to a recent interpretation of the clause in a lease relative to the consumption of straw, — Nivison v.. Howat, November 16, 1883, 11 R. 182. Here the tenant was prohibited from selling or removing any part of the straw, the whole of which he was bound to consume on the lands "for their melioration." He was also bound, if required, to sell to the landlord or incoming tenant at a valuation, ' ' the " last white crop," but if he should not be required to do so, he would then become entitled "to dispose of the same, inclusive of the straw, as he " pleases." The incoming tenant elected to take the crop at valuation, but contended that the straw should not be valued in consequence of the out- going tenant's obligation to consume it. It was held, however, that the outgoing tenant was entitled to the value of the straw as well as of the remainder of the crop. LECTURE lY. The Agricultural Holdings Act. ClassiScation of improvements — General principle of compensation — Improvements prior to commencement of Act — Improvements subsequent thereto — Classification in schedule — Drainage — Agree- ments superseding statute — Reduction of tenant's compensation — Landlord's counter-claims — Procedure under Act — Notice of claims and counter-claims — Decisions as to notice — Appointment of referees and oversman — Miscellaneous provisions — Appeal to Sheriff — Void- ance of agreements destructive of tenant's right to compensation. The Agricultural Holdings (Scotland) Act of 1883 ^ was the result of prolonged agitation among agriculturists, and its passing may be taken as the admission by the Legislature of the important principle, that the cultivator of the soil possesses certain rights in the product of his skill and labour, where that product remains in the soil and is not merely of such a nature as to be carried off by the periodical fruits. The significance of such a concession has already been referred to ; ■' and the various provisions of the Act which bear on the subject will now be examined. It may be explained that the scientific questions as to the substances supposed to affect the fertility of land, which have so vital an influence on the practical working of the statute, lie beyond the scope of these lectures. The leading: feature of the Act may be said to be the Two-fold ° _ _ classmca- classification of the improvements for which compensation tion of improve- 1 46 & 47 Vict. c. 62— passed 25th August, 1883. ™™*^' 2 Supra, pp. 4S, 49, 80 LECTURE IV. First classifica- tion ac- cording to nature of improve- ment. Second classifica- tion ac- cording to time of execution. is allowed. All improvements are not dealt with on the same footing, but a two-fold system of classification is introduced, with a view of assigning to each species what the Legislature deemed to be its efficacy in earning com- pensation to the cultivator. The classification first in importance is according to the nature of the improvement efiected, and is that set forth in the schedule appended to the Act. It proceeds on the principle that while some improvements which the tenant may effect are directly in the line of ordinary agricultural operations, and accordingly are allowed to be performed by the tenant without the consent of the landlord ; there are others which are considered to be of a character lying outside of the ordinary operations of the cultivator, and so to require the express consent of the landlord to their execution, in order to be deemed improvements in the sense of the Act. A third species is considered to occupy a middle position and to require, instead of express consent, certain notice to the landlord before being deemed a statutory improvement. The schedule of the Act specifies in detail the different kinds of improvements belonging to each class. To the first class, which requires the landlord's consent, belong such improvements as the erection or enlargement of buildings, laying down of permanent pasture, making or improving of roads, bridges, water-courses, &c., erection of permanent fences, reclamation of waste land, and such like matters. Drainage is the only improvement in the second class ; and the third class, for which no consent is required, comprises the application of manure and consumption of feeding stuffs, &c.^ The second classification has reference to the time of 1 For a full enumeration of the different species of improvements so classified, reference is made to the schedule to the Act, which will be found in the Appendix, AGEICULTXJEAL HOLDINGS ACT. 81 execution. According to it, improvements are divided into those executed before the passing of the Act, and those executed after its passing. It must be borne in mind, that this statute, unlike certain other statutes we have been considering, makes little or no difference between tenants holding under current leases and those who shall hold under future leases, so far as claims for compensation are con- cerned. All tenants have the same rights to compensation, P^?®^""''® ^ ^ between whatever may be the date when their leases were entered current into — subject to two provisions : (1) one occurring in section leases. 4, limiting compensation for drainage where there is a clause in a lease current at the passing of the Act, by which the drainage outlay is restricted to a specified sum ; and (2) another occurring in section 5, under which current leases are dealt with on a somewhat different footing in the matter of the compensation allowed to be substituted for that under the statute. The date of the passing of the Act thus makes little distinction between leases, but it is a point of import- ance as distinguishing between improvements, according as they have been executed before or subsequent to the Act. The significance of these two sets of classification will appear as we proceed. The 1st section indicates the general principles of the Section i. right to compensation conferred on the tenant. It enacts General that the tenant who has made on his holding any improve- Pf^J^^P^^f^ ment specified in the schedule shall, on quitting at the"S^**° ^ . compen- determination of the tenancy, be entitled to such compen- sation. sation from the landlord as fairly represents the value of the improvement to an incoming tenant, and it concludes with a proviso, that, in estimating such value, what is justly due to the inherent capabilities of the soil shall not be taken into account. Several points may be noticed in this section. In the first place, it is only if he removes, that the tenant becomes entitled to compensation ; if, on the expiry of the G 82 LECTURE IV. Sitting lease, the tenant enters into a new bargain with the tenaut excluded, landlord, no claim emerges. The right to compensation arises on the " determination Should 1 The question of giving the sitting tenant the like compensation for ' privileges improvements is one that has been keenly debated. When the Act viras °^ '*^°* °? passing through Parliament, a strong effort was made to extend its benefits to sitting *° tenants who remain in their holdings, and the question was fully dis- tenant ? cussed. At first sight it seems to be only fair that a tenant who has made improvements should not be deprived of his right to compensation merely because he happens to come to terms with the landlord for a renewal of the lease. But the argument against giving compensation to the sitting tenant is a strong one. In negotiating a renewal of his lease with the landlord, the tenant, it is said, really gets compensation for his improvements — not, indeed, in actual money, but in the more favourable terms he is able to secure by keeping in reserve his power to quit and his consequent claim for compensation. The landlord is supposed to have a strong motive to re-let to the old tenant at a lower rent than a, stranger would give, because by doing so he extinguishes the claim for compensation which would otherwise have to be met. Where, for example, the tenant has executed an improve- ment for which he would be entitled to recover £500 from the landlord if he removed, it may be assumed that the landlord will perceive it to be as much for his interest to give a reduction of £20 to the old tenant and keep the £500 in his pocket, as to find a new tenant at the old rent and lose the £500. Indeed, the former alternative is the more profitable, as probably something would be saved in the expense of testing the tenant's claim. The reduction of rent to the sitting tenant is accordingly taken as repre- senting the compensation due for the improvement ; and hence it is argued that it would neither be wise nor just to give him the benefits of the Act. Is this ai-gument, apparently so strong, a sound one? Theoretically, it appears to be so ; but it may be doubted whether the sitting tenant practi- cally gets the full measure of justice which the theory asserts. There are as strong motives urging him to remain in his holding as those which influence the landlord to keep him. He may consider that he can get better value for his improvements by remaining — even at a sacrifice in the , shape of rent — than by parting with the improvements for what he may think, and very probably is, the inadequate price which he gets under the Act. The tenant's motives to remain probably neutralize those urging the landlord to keep him ; and there is thus no certainty that even the statutory value of the improvement operates in reducing the rent. At this point the theory fails. It makes two assumptions not warranted by the facts — (1) that the value given imder the Act for the improvement is what it would be worth intrinsically to the outgoing tenant if he remained in the holding ; and (2) that the circumstances are such as to afford adequate scope for the operation of the economic principle whereby the rent would suffer a reduc- tion corresponding to the capital value of the improvement, as ascertained under the statute. It may be concluded, therefore, that the sitting tenant practically suffers an injustice in being deprived of the right to claim com- AGRICULTUEAL HOLDINGS ACT. 83 " of the tenancy," which by the interpretation clause ' is Deter- j, •• (.11 mination declared to mean the termination of the lease by the lapse of tenancy. of time or from any other cause. This apparently covers the case of a renunciation of a lease during its currency and of the lease being brought to an end at any time previous to its natural termination.^ An attempt is made by the section to afford some criterion Criterion ,. , 1 • 1 I. 1 • 1 °^ value. 01 the money equivalent of the improvement which is to earn compensation. It is declared to be " such sum as fairly " represents the value of the improvement to an incoming " tenant." This is a somewhat vague indication of value, and does not help much in the formation of an exact estimate, but it points to something like a principle of computation, which can be practically applied. The idea has been entertained — though quite erroneously — that the criterion here given refers to an increase in the lettable value of the holding, that is to say, if the farm is re-let to an incoming tenant at a reduction of rent, there is no im- provement within the meaning of the Act. The obvious answer is, that if there is a reduction of rent with the out- going tenant's improvements, there would, in the absence . of these, have been a larger reduction — the difference representing the extent of the improvement, or rather the extent to which it had been appreciated by the offerers for the farm. If the lettable value were to be taken as an exact test, there could not, in these days of rapidly decreasing rents, be any compensation for improvement at all. \ pensation for improvements. On the other hand, it cannot be shown that the landlord would pay for the improvement twice over if he compensated the sitting tenant. 1 Section 42. 2 Reference may be made to the case of Ode^r v. Marchiouesn of Lans- downe, infra (p. 89), where a decision was given as to the effect on the tenant's claim of certain clauses in a renunciation of a lease. 84 LECTURE IV. Inherent In the proviso at the end of the section it is enacted that, of the soil, what is justly due to the " inherent capabilities " of the soil is not to be taken into account as part of the improvement. This has given rise to a great deal of discussion and to not a little perplexity in the practical working of the Act. " The inherent capabilities of the soil " is an exceedingly vague expression. It is surely superfluous to speak of " inherent capability/' because, in the nature of things, " capability," as applied to such an object as land, must, of necessity, be " inherent." It is a truism to say that before land can be improved it must be capable of improvement, and this quality or capacity for improvement must neces- sarily be inherent. The capacity of difierent holdings for improvement undoubtedly varies; but the direction to refrain from taking into account the " capacity " in estimating the " improvement " does not convey any idea more definite than when it is said that the " improvement " and not something else is to be valued. The " improvement " is something essentially distinct from the antecedent capacity ; and the suggestion may be hazarded, that the proviso was inserted, not with the view of formulating any intelligible principle for the guidance of those who were to estimate the value, but rather to smoothe by an apparent concession the passage of the bill through a Parliament somewhat sensitive regard- ing the rights of landed property. Section 2. The 2nd section deals with improvements executed before the commencement of the Act ; and only in two cases Cases is a tenant entitled to compensation for these. The first of compen- these cases applies to the improvements specified in the sation third part of the schedule, and must have three requisites : improve- (1) the improvement must be executed within ten years prior to before the commencement of the Act ; (2) it must be an '^ ' improvement which the tenant was not under an express obligation to make; and (3) he must not be entitled under AGRICULTURAL HOLDINGS ACT. 85 any contract or custom to compensation in respect of it. These three conditions must all be fulfilled, else the tenant will have no claim. The second of the cases in which compensation is allowed for improvements prior to the Act applies to those specified in the first and second parts of the schedule, and must also have three requisites : (1) the improvement must have been executed within ten years prior to the Act ; (2) the tenant must not be entitled under any contract or custom to compensation ; and (3) the landlord must, within a year after the commencement of the Act, consent in writing to the making of the improverftent. The first of these cases undoubtedly gives the tenant the opportunity of making substantial claims for compensation ; and the claims which have as yet been disposed of under the Act have mostly been in respect of such improvements. With regard to the second of the cases mentioned, however, the advantage to the tenant is plainly illusory. The right to compensation is subject to a declaration by the landlord in writing of his consent to the improvement, within a year after the commencement of the Act. Before any right can emerge, the landlord, in full view of the provision, must consent, knowing that his consent will rear up a claim against him, without which it would have no existence. The 3rd section enters upon the wider subject of im- Section 3. provements executed after the commencement of the Act ; improve- and here the classification of improvements according to™^"e^. their nature as set forth in the schedule comes into opera- quent to tion. The cardinal feature of those specified in the first part of the schedule is that the landlord must consent to Classifica- them before they are executed. This consent must be in schedule, writing, and given after the passing of the Act. It may either be given unconditionally, in which case a claim for compensation will emerge on the tenant's removal ; or it may 86 LECTURE IV. be given conditionally ; and if these conditions embrace an agreement for compensation to the tenant for the improve- ment, this compensation comes in place of that obtained under the statute. Section 4. fj^g ^^^i section treats of drainage, which occupies a Drainage, mid position between those improvements of a permanent nature requiring the landlord's consent, and those which are of the character of ordinary agricultural operations and require no consent. Drainage is supposed to partake of both characters to some extent ; and while the landlord cannot absolutely veto the tenant's execution of drainage work as he can in the case of the improvements under the first part of the schedule ; the tenant, on the other hand, cannot proceed with drainage until he has given the land- lord an opportunity of doing so himself. If the tenant resolves to drain the lands and wishes to preserve his right to claim compensation for so doing, he must, not more than three, and not less than two, months before he commences the work, give written notice to the landlord, stating the manner of execution. At this stage, an opportunity is given to the landlord and tenant to agree as to the execution of the drainage, and should the result of such agreement be that the tenant is to execute the improvement for a certain stated compensation, such compensation comes in place of that provided by the Act. Should no agreement be come to, the landlord, if he chooses, may execute the drainage him- self ; but if he fails to do so within a reasonable time, then the tenant can execute the improvement and claim com- pensation therefor under the Act. Should the landlord, on the other hand, execute the drainage himself, he is entitled to charge the tenant with five per cent, interest on the out- lay, and this interest is added to the rent. A provision occurs in this section having exclusive application to leases current at the date of the passing of the Act, and it is one AGRICULTURAL HOLDINGS ACT. 87 of the two cases before-mentioned' in which current lease- holders are put in a different position from tenants under leases subsequent to the Act. Where a current lease limits the , drainage outlay to a specified sum, no claim can be made in excess of such sum, however extensive may be the drainage carried out by the tenant. This provision is ex- pressly confined to leases in existence when the Act passed. If the landlord should, in a lease subsequent to the Act, prohibit the tenant from spending more than a specified sum on drainage, it would not have the effect of depriving him of compensation for drainage in terms of this section. These four sections express clearly the general principle General of compensation. The first section affirms the main pro- first four position, that the tenant shall be entitled, on quitting his holding, to compensation for the scheduled improvements. The second, third and fourth sections introduce exceptions to the principle, and set limitations to the tenant's claim as regards (a) improvements executed before the passing of the Act (sec. 2) ; (6) improvements subsequent to the Act, and specified in the first part of the schedule (sec. 3) ; and (c) improvements subsequent to the Act and specified in the second part of the schedule (sec. 4). Those executed sub- sequent to the Act and specified in the third part of the schedule are thus the only kind of improvements in which the operation of the general principle expressed in the first section is seen absolutely and unconditionally.^ The 6th section treats of the important subject of agree- Section 5. ments substituting conventional compensation for that pro- Agree- ments ' Supra, p 81. supersed- 2 There Is indeed one instance in which the general principle suffers ing limitation to a slight extent, in the case even of improvements in the third statute. part of the schedule and executed subsequent to the Act. Where the tenant, under a current lease, has entered into an agreement for specific compen- sation for an improvement executed subsequent to the Act, or where compensation for such improvement is provided by custom, such compen- sation by section 5 supersedes that claimable under the statute. 88 LECTURE IV. Decision under section 5. vided by the statute, and its object is to declare how far they are permissible. As already mentioned,^ a distinction is here drawn between leases current at the commence- ment of the Act and leases entered into subsequently. In the case of the former, where any agreement in writing or custom provides specific compensation for an improve- ment executed after the commencement of the Act, it comes in place of the statutory compensation. This applies indis- criminately to the three kinds of scheduled improvements, but the remaining part of the provision has reference solely to those enumerated in the third part of the schedule. If " fair and reasonable compensation " for an improvement in the third part of the schedule is, by a particular agreement in writing, secured to a tenant holding under a lease current at the commencement of the Act, or to a tenant holding under a lease subsequent thereto, such compensation is to come in place of that under the Act, provided, in the case of a current tenancy, there is no specific compensation under written agreement or custom.^ It was decided in a recent Sheriff Court case, that an acceptance by a landlord of a renunciation of the lease in 1 Supra, p 81. 2 A little difficulty has been felt in clearly apprehending the effect of these provisions, occasioned to some extent by the cumbrous style in which the section is framed. The main drift, however, is apparent. The substi- tution of conventional for statutory compensation as regards current leases is confined to improvements executed subsequent to the Act, because prior improvements are dealt with on a like principle in section 2. On the other hand, the narrowing of the conventional compensation to what is "fair and "reasonable," when applied to tenancies subsequent to the Act, is a pro- tection to the occupier against illusory agreements created to supplant the statutory privileges ; while the limitmg of ' ' fair and reasonable " compen- sation to improvements in the third part of the schedule, whether the lease be a current or a future one, leaves the landlord free to adject such conditions as he may deem necessary to the consent which he gives to those in the first and second parts of the schedule, imder sub-section (2) of section 2, and under sections 3 and 4. It is provided in the fifth section that, ' ' fair and ' ' reasonable compensation "is to be determined in relation to the circum- stances existing at the time of making the agreement. AGRICULTURAL HOLDINGS ACT. , 89 which the tenant discharged generally " all claims, interest " and advantage " under it, was not an agreement providing such compensation under the 5th section of the Act as would be substituted for the statutory compensation, and that, accordingly, the tenant was entitled, notwithstanding such renunciation and general discharge, to make a claim under the statute.^ The 6th section, which in some respects is one of the most Section 6. important in the Act, consists of two parts. The first part How sets forth certain principles to be applied in the reduction oompen- of the tenant's claim. One of these principles is that any ^^Y™ ^ r r J reduced. benefit which the landlord has given or allowed to the tenant in consideration of the latter executing the improve- ment must be taken into account so as to reduce the amount of compensation found due.^ If, for example, some privilege Sub-seo- or right is given to the tenant in consideration of his executing the improvement, the value of this benefit must Benefit to . T 1 tenant in be estimated, and the compensation reduced accordingly, considera- The provision does not apply to the case where thej^pyove- lease stipulates for compensation, because where what is™™t. so stipulated for is not of such a nature as to be substituted under section 5 for the statutory compensation, it just falls to the ground and is not taken into account at all. A question of considerable difficulty would arise if a tenant, holding under a lease entered into after the passing of the Act, was thereby bound to execute a certain improvement of the kind specified in the third part of the schedule ; and if it was declared in the lease that, in consideration of the tenant executing the improvement, the rent was lower than it would otherwise have been, the actual reduction beino' indicated. In such circumstances would the tenant o 1 Osier V. Marchioness of Lansdoime, December, 16, 1884, I Sh. C. Rep. (Scot. Law Rev. ) 48. The case was not appealed. 2 Sub-section (a). 90 LECTURE IV. have any claim for compensation in respect of the improvement? If so, would the reduction of rent have to be taken into account, in estimating the amount of compensation, as being a " benefit " which the landlord had allowed him in consideration of his executing the improve- ment ? Such questions are very important, because a great deal of ingenuity has been, and will be, exercised to make agreements for the purpose of getting behind the Act. In Questions g^^j^ g^ ^^^gg j^ would appear that the fact of the tenant under sub- ^^ section (a), being under an express obligation to make the improvement would not deprive him of the right to claim compensation, because it is only in the case of an improvement executed before the commencement of the Act that the tenant is disentitled to compensation, if he has expressly bound himself to execute it. The other question is more difE- cult. A reduction of rent in respect of the tenant's execution of the improvement might be set forth in the lease of such an amount as to extinguish the tenant's claim altogether, and the agreement would in that event probably be regarded as equivalent to one depriving the tenant of his claim for compensation, and accordingly be struck at by section 36 as an invalid agreement. ^ The Court would have to consider whether the ostensible reduction in the rent was fairly an equivalent for the tenant's obligation, and in so far as it was not — in so far as it was illusory — the lease would be looked on as an agreement depriving the tenant of his right to compensation, and be denied effect.^ 1 See infra, p. 103. 2 An opinion has been expressed [by Mr. C. N. Johnston, in his Analysis of the Act] that where in a lease current at the commence- ment of the Act the tenant has come under an obligation to execute a particular improvement without any provision as to compensation specific or otherwise, but does not execute it till subsequent to the passing of the Act, the reduction in the rent, which presumably was the quid pro quo of the tenant's obligation, is a " benefit " given by the landlord to the AGRICULTURAL HOLDINGS ACT. 91 Another principle which operates in reducing the tenant's compensation is laid down in sub-section (b) of this same Sub-seo- clause, and has occasioned a little difficulty in the working ''°"' of the Act. It provides that where compensation is claimed for manures, it must suffer reduction to the extent of the value of the manure that would have been produced by the consumption on the holding according to Compen- the rules of good husbandry, or according to the terms of reduced any written contract specifying such rules, of any crops ^j^?^"; sold off or removed from the holding within the last two °^ produce years of the tenancy, 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. Two difficulties have been felt in this provision. In the first place, it has been thought that the crops referred to are only those which the tenant was not at liberty to sell or remove, and that accordingly where the tenant has consumed everything on the holding which he was bound to do, the direction here laid down would not apply at all. This is obviously not the right tenant, and must under sub-section (aj go to reduce the statutory compensation. The question, doubtless, is extremely difficult, and one on which decided views are scarcely warrantable in the absence of judicial interpretation, but it is thought the above opinion overstrains the statute. Under section 2 sub-section (1) the existence of an express obligation on the part of the tenant to make the improvement disentitles him to any compensation for an improvement specified in the third part of the schedule, and executed prior to the commencement of the Act ; but there is no provision in the statute assigning the same effect to an express obligation in the case of an improvement executed after the commencement of the Act. So important a limit to the general principle of compensation enacted in section 1 would not, it may be presumed, be left to be gathered by implication from the terms of a clause which merely regulates the " ascertainment of the amount of the compensation." The limitations on the tenant's right to be compensated for improvements are all stated in the form of positive exceptions to the general principle enacted in the first section, and the absence of an express limiting clause is surely adverse to the view which has been indicated. Sub-section (a) might fairly be taken as referring only to a benefit which the landlord has expressly given to the tenant. 92 LECTURE IV. view. The sub-section does not mean that cognisance is to be taken of the selling off or removal of produce in violation of the terms of the lease, because provision is made in the second part of the section for the landlord claiming compensation for a breach of the lease com- mitted by the tenant, and getting that compensation in the form of a deduction from the amount payable to the tenant. The sub-section is apparently intended to apply to those crops which the tenant should, in obedience to the demands of good husbandry, consume on the holding, even though there be no express prohibition in the lease against their removal. If he remove such produce he must make a proper return of manure to the holding in respect of it, else his claim will suifer reduction to a corresponding extent. Another difficulty in the sub-section is whether the whole manurial value of the two years' crops sold off against the requirements of good husbandry is to be taken as the extent of the reduction. Must there be a forecast of prospective consumption ? In other words, is it necessary to take into account the manure which would be produced by the consumption after the lease is at an end ? The two years' produce could not be consumed on the holding before the end of the lease, so that if the whole manurial value is taken the outgoing tenant is really made to pay for manure which, in the ordinary course of management, would not be consumed till after the lease had come to an end. In the last lecture it was explained in what circumstances a tenant had by common law the privilege of a waygoing sale, and it is probable some such principle is meant to apply in the working out of the sub-section, and accordingly the reduction would only be to the extent of the manurial value of such portion of the two years' crop as could fairly have been consumed on the holding down to the date of the tenant's removal. AGEICULTURAL HOLDINGS ACT. 93 Under the second part of the section, the counter-claims Land- lord's of the landlord are brought. It provides that the amount counter- of compensation payable to the tenant is to be subject to deduction of any sums due to the landlord for (1) rent ; (2) P^ Taylor v. M'Laren, Oct. 22, 1885, 2 Sh.C. Sep. {Scot. Law Rev.) 21. The occupier is not entitled (1) to scare the game on his lands by pursuing them with muzzled dogs or by firing blank cartridges, and (2) to set rabbit snares in such a way as to entrap or injure game. An agricultural tenant, holding under a 25 years' lease containing no provision respecting game, was in the practice of driving the game off his farm by muzzled dogs, and scaring them by discharging firearms loaded with blank cartridges. He was also in the habit of setting snares under the pretence of killing rabbits, but which, the landlord alleged, were calculated to entrap, injure, and destroy the game. The landlord sought interdict to restrain the occupier from con- DIGEST OF CASES. 109 tinuing these practices. Held they were illegal, and interdict granted. Wemyss v. Gulland, Dec. 3, 1847, 10 D. 204, 20 J. 55. 2. — The Occupier's Rights under the Ground Game Act. A visitor specially invited by the occupier to shoot rabbits is for the time being a member of his household, whom he can authorise to kill ground game under the statute. A person was invited by a farmer (who had the privileges of the Act) to stay with him for a week and shoot rabbits. For doing so, the visitor was charged with the offence of day trespass, and acquitted by the Sheriff. The complaint dis- closed nothing as to the terms of the lease, which was not produced. Held (by the High Court of Justiciary) that no contract being averred interfering with the tenant's common law right to shoot rabbits and authorise others to do so, there was no relevant offence stated ; but opinions expressed by the Lord Justice-Clerk (MoncriefF) and Lord' Young that a visitor in such circumstances is a member of the occupier's house- hold, and may be authorised to shoot ground game under the Act. Stuart V. Murray, Nov 13, 1884, 12 E. 9 (Just.). "Occupier" in the sense of tlie Act excludes a tenant wlio has sub- let and is not in actual occupation. Taylor v. M'Laren, supra, p. 108. A person employed by t/ie occupier to Mil ground game and paid with what he captures is a "person bona fide employed by him for " reward " in the sense of tlie Act. A farmer, with the privileges of the Act, engaged a trainer of sporting dogs to kill hares and rabbits on hin farm, and allowed him as his remuneration to keep what he killed. The lessee of the shootings applied to the Sheriff of Lanarkxhire for interdict against him on the ground that he rva-i not an authorised person in terms of the Act. Inter- dict refused {per Sheriff-Substitute Birnie and Sheriff-Principal Clark) in respect that the trapper paid by his booty was a person bona fide employed for reward, whom the tenant could competently authorise under the Act. Hope Vera r. M'Intosh, Dec. 29, 1884, 1 Sh.O. Sep. (Scot. Law Rev. ) 63. 110 DIGEST OF CASES. A "moorland" in the sense of tlie Act dues not include a hill covered with permanent pasture, hut without heather. Taylor v. M'Laren, supra, p. 108. The expression "rabbit hole," as employed in the 6th section of the Act restricting the use of spring traps, means the part of the cavity or burrow underneath the ground, and does not include the scrape in front of the burrow, or perforations in the ground underneath fences. {a.) An agricultural tenant held under a lease com- mencing in 1872, and containing no reservation of rabbits. The lessee of the shootings obtained an interdict against the agricultural tenant employing spring traps, "except in rabbit "holes," under section 6 of the Act. The latter, notwith- standing the interdict, placed spring traps in the scrape in front of rabbit burrows. The game tenant, with consent of the procurator-fiscal, brought a complaint before the Sheriff of Dvimfries for breach of interdict against the agricultural tenant. Held [reversing the judgments of the Sheriff-Sub- stitute (Nicolson) and the Sheriff-Principal (Macpherson)] that the scrape in front of the burrow was not a "rabbit "hole" in the sense of the Act, and that accordingly a breach of interdict had been committed by placing spring traps there. Broion v. Thomson, July 20, 1882, 9 R. 1183. (&.) A proprietor applied to the Sheriff of Aberdeen- shire for interdict, in terms of the 6th section of the Act, against an agricultural tenant placing on the farm "else- " where than in rabbit holes spring traps calculated to take " and kill game or rabbits." The lease commenced in 1874, and reserved to the proprietor the game, but not the rabbits. Part of the farm was close to the proprietor's covers which contained a number of rabbit burrows. The tenant erected wire netting to protect his crops, but the rabbits burrowed below it, and made a series of tunnels or passages through which they passed to feed on the crops. In these tunnels the tenant placed spring traps, in which besides rabbits, pheasants and partridges were occasionally caught. Held (diss. Lord Young) that the tunnels iu which the traps were placed were not "rabbit holes" in the sense of the Act, and interdict granted accordingly. Fraser v. Lawson, Dec. 21, 1882, 10 R. 396. DIGEST OF CASES. Ill The occupier, under a lease commencing prior to the Act, and consequently not possessed of the statutory right to kill ground game, but who has the right otherwise of killing rabbits, though not hares, falls under the descrip- tion in the 6th section of "a person having a right of " killing ground game under this Act, or otherwise," and is thus bound by the various restrictions contained in that section. Fraser v. Lawson, supra, p. 110. "^ Where the prohibitions in the Qth section are contravened, the person so doing should be proceeded against under the Act, and not prosecuted for day trespass. The son of an agricultural tenant having the statutory right to kill ground game, received authority to trap rabbits, and caught a partridge by means of a trap placed in a jnanner prohibited by the 6th section. The landlord charged him before the Sheriff of Kincardineshire uiith a contravention of the Day Trespass Act. Held {per Sheriff Guthrie Smith) that the complaint ought to have been brought under the Ground Game Act, being an iifringement of that statute and not the offence of day trespass. Gammell v. Winter, Oct. 7, 1885, 1 Sh.O. Sep. {Scot. Law Rev.) 355. 3. — Offences against Game Laws — Day Trespass, &c. The occupier cannot himself be charged with trespassing in pursuit of game on the lands in his occupation. Earl of Kinnoull v. Tod, Dec. 15, 1859, 32 J. 154. See also Smellie v. Lochhart, June 1, 1844, 2 Broun, 194. The occupier may contravene the provisions of the Night Poaching Act. Smith V. Young, March 8, 1856, 28 J. 338. A person managing the farm for an absent tenant, and vested with full authority, is not liable in the offence of day trespass. The son-in-law of an agricultural tenant managed the farm, on which he also resided. The tenant was absent, but had given the other full charge, including authority to kill 1 Lord Rutherfurd Clark, agreeing with Sheriff-Substitute Dove Wilson, dissented. 112 DIGEST OF CASES. rabbits, which were not reserved in the lease. Held that he could not be convicted under the Day Trespass Act. M'Adam v. Laurie, March 1, 1876, 3 E. 20 (Just.). But compare Black v. Bradshaw, Dec. 16, 1875, 3 R. 18 (Just.). The possession of a beneficial interest in the lease by one not nominally the tenant will not protect from conviction. Porter v. Stewart, March 22, 1858, 30 J. 518. The son of a tenant may be convicted of day trespass. An agricultural tenant, holding under a lease conferring on him power to shoot hares and rabbits, was assisted in the management of the farm by his son, who, having shot a grouse on the farm, was charged with day trespass and con- victed. Conviction upheld. James v. Earl of Fife, Jan. 28, 1880, 7 R. 9 (Just.). A farm servant can be convicted of pursuing game on his master's lands. Selkirk v. Kennedy, Dec. 14, 1850, Shaw's Just. Rep. 463. See also Beaper v. Duff, Feb. 6, 1860, 32 J. 478. Circumstances in which farm servant acquitted. (a) An agricultural tenant, whose lease reserved rabbits to the landlord', instructed a servant to shoot them. The latter was charged with day trespass, but acquitted by the SheriiF. Judgment upheld. Calder v. Eohertson, Nov. 6, 1878, 6 R. 3 (Just.). (6) The lease gave the tenant power to snare rabbits. While a servant was, by his master's orders, attending to the snaring, he took a wounded hare out of one of the snares and set a dog after it, and it was ultimately killed. The servant was charged with being on the lands in pursuit of game. Held (aff. judgment of Sheriff; diss. Lord Adam) that he was not guilty, in respect that he was on the lands for a lawful purpose, and not with the design of pursuing game. Lawrie v. M'Arthur, Oct. 29, 1880, 8 R. 2 (Just.). Entering on lands to take dead game is not a contraven- tion of the Day Trespass Act. Macdonald v. McLean and Others, Feb. 28, 1879, 6 R. 14 (Just.). DIGEST Oli- CASES. 113 A servant capturing game hy use of spring-traps in a manner pro- hibited hy the Ground Game Act is not on that account guilty of day trespass. Gammell v. Winter, supra, p. 111. How far persons who remain on public road may contra- vene Day Trespass Act. (a) A person entered on lands to pursue a hare, and two companions remained on the public road and assisted him by preventing the escape of the hare. All three were charged with day trespass, but the two latter were acquitted by the Justices. Held (diss. Lord Young) that a purely statutory offence like trespass in pursuit of game could not be com- mitted constructively by anything short of actual entry on the lands, and acquittal upheld. Colquhoun v. Liddell and Another, Nov. 16, 1876, 4 R. 3 (Just.). (6) Certain persons sent dogs into a field to pursue game, but remained on the public road themselves. Held that they were guilty of day trespass, and previous case distinguished. Stoddart and Others v. Stevenson, June 8, 1880, 7 R. 11 (Just.). 4. — Occupier's Eights at Common Law to Keparation FOR Game Damage. The occupier can only obtain compensation from the landlord for injury done by an excessive stock of game, no damages being recoverable for what may be caused by a normal stock. Drysdale v. Jameson, Nov. 30, 1832, US. 147; Wemyss V. Wilson, Dec. 2. 1847, 10 D. 194, 20 J. 51; Inglis v. Moir's Tutors, Dec. 7, 1871, 10 Macph. 204, 44 J. 123. * A stipulation in a lease obliging the tenant to submit to whatever injury may be caused by game without compen- sation does not necessarily bar all claim, if he prove a grossly excessive and extravagant increase. Morton v. Graham, Nov. 27, 1867, 6 Macph. 71, 40 J. 37 ; Cadzoiu v. Lockhart, May 19, 1876, 3 R. 666. I 114 DIGEST OF CASES. The possession by the occupier of the common law right to kill rabbits does not necessarily bar his claim against the landlord on account of injury done by them. Inglis V. Moir's Tutors, supra, p. 113; Wood v. Paton, March 20, 1874, 1 K. 868. An agricultural tenant has no direct claim against a lessee of the shootings for game damage in the absence of a contract between them. Inglis V. Moir's Tutors, supra, p. 113; Kidd v. Byrne et Byrne v. Johnson, Dec. 16, 1875 ; 3 R. 255. An occupier paying his rent without reservation cannot afterwards claim compensation from the landlord for game damage caused during the year for which the rent is so paid. Broadtvoodw. Hunter, Feb. 2, 1855, 17 D. 340. PART. II.~TENANTS OBLIGATIONS AS TO FARM MANAGEMENT. 1. — General Obligations of Tenant. An agricultural tenant, even in the absence of express stipulation, is bound to observe the rules of good husbandry in cultivating the farm. Maxwell, July 12, 1776, 5 Brown's Supplement, 515; Fleming v. Macdonald, March 16, 1860, 22 D. 1025, 32 J. 445. Where in a lease of more than ordinary duration the tenant comes under a general obligation to labour tlje lands sufficiently, no specific method being prescribed, he does not discharge his duty by merely leaving the farm in the same state in which he received it, but he must follow the rules of good husbandry in his cultivation. Thomson's Representatives v. Oliphant, Nov. 12, 1824, 3 S. 275. DIGEST OF CASES. 115 Where a lease binds the tenant generally to cultivate according to the rules of good husbandry, and also pre- scribes a special system of management and cropping, he is bound to adhere to the special system, though he should thereby violate the rules of good husbandry. Stark V. Edmonstone, Nov. 28, 1826, 5 S. 45. The landlord's remedy for the tenant's failure in im- plementing his general obligation to cultivate properly, or a specific obligation to follow a prescribed system is, apart from contract, a claim of damages for loss sustained. Tweeddale v. Brown, Sept. 18, 1821, 2 Murray's Jury Court Cases, 563; Lyallw. Cooper, Nov. 27, 1832, 11 S. 96; Carron Coy. v. Donaldson, Feb. 25, 1858, 20 D. 681, 30 J. 347; Mackenzie v. Monro, Dec. 7, 1860, 23 D. 144, 33 J. 54. The landlord cannot enforce fulfilment of a general obligation to cultivate properly by registering the lease for execution, and charging the tenant thereupon and incar- cerating him under the Personal Diligence Act. Hendry v. Marshall, Feb. 27, 1878, 5 E. 687. The landlord may claim damages during the currency of the lease, and it is no answer to his demand that the deterioration complained of can be repaired before the lease expires. Carron Coy. v. Donaldson, supra. 2. — Obligation to Pay Additional Kent for MiSCROPPING. Where a lease binds the tenant to pay a specified sum as additional rent in the event of his departing from the pre- scribed system of management, and declares such additional rent to be " pactional and not penal," it is exigible, without modification, and irrespective of the loss sustained, on the tenant's deAriation. Pollock V. Paton, July 24, 1777, M. App. Tank, 4; Grafiam v. Straiton, 1787 ; Henderson v, Maxivell, Feb. 24. 116 DIGEST OF CASES. 1802, M. 10054; Hunter v. Clark, June 27, 1810, Hume, 852; Fraser v. Ewart, Feb. 25, 1813, Fac. Coll. 223; Morrison v. Blair, Feb. 22, 1823, 2 S. 241; Millers. Gwydir, May 26, 1824, 3 S. 65, aff. March 8, 1826, 2 W. & S. 52 ; SuUieY. Somner, July 10, 1828, 6 S. 1122; Lawson v. Ogilvie, May 16, 1832, 5 D. & A. 278, 10 S. 531 ; Bohertson v. Clarh, June 1, 1842, 4 D. 1317 ; Hall v. Jf' (?tZZ, July 14, 1847, 9 D. 1557, 19 J. 650; Thriepland v. Munro, July 6, 1861, 23 D. 1252, 33 J. 629 ; Ritchie v. Wemyss, Nov. 10, 1863, 2 Macph. 137. In a lease stipulating for " pactional rent," as above, the landlord has the option of exacting such rent or claiming damages for the actual loss sustained through the deviation. Hall V. M'Gill, supra. Where there is general deterioration, as well as departures from a specific course of cropping, the landlord is entitled to damages for the former, in addition to " pactional rent " on account of the actual deviations. Ritchie v. Wemyss, supra. Circumstances in which a stipulation for " pactional " rent " held not enforceable against a tenant who had got possession and contravened a prescribed course of manage- ment prior to the term of entry under the lease. A tenant, holding under a lease which prescribed a specified kind of grass seed to be sown out with a particular crop, and contained a stipulation of pactional rent for con- travention, obtained access to the lands before the term of entry (Whitsunday) and sowed down seeds of a different kind. Held that the act, being committed by one who at the time was not tenant under the lease, did not render him liable in the pactional rent, though the act being in itself a wrongful one, he was liable in damages therefor. Witham v. White and Young, June 12, 1866, 38 J. 586. The landlord's hypothec gives him a preference for addi- tional miscropping rent equally with the ordinary rent. Robertson v. Clarh, supra. But contrast dictum of Lord Cowan in Witham v, White and Young, supra. DIGEST OF CASES. Il7 The tenant has no option to deviate on tendering the pactional rent. Mackenzie v. Graigies, June 18, 1811, Fac. Coll. 304 (off. on appeal); Mackenzie v. Gilchrist, Dec. 13, 1811, Fac. Coll. 419. If a landlord accepts the ordinary rent without reserva- tion of any pactional rent which may have been incurred, he is thereby barred from recovering such pactional rent. (a) A tenant, at the end of his lease, was called on to pay additional miscropping rent, claimed for several years. The ordinary rents had been paid half-yearly, and marked as settled in a pass-book kept between the parties. No reserva- tion had been made by the landlord of any claim for mis- cropping rent, except for the last year. Held that except for that year, the landlord had no claim for pactional rent in respect, of the unreserved discharge of the ordinary rent. Hunter v. Broadwood, Feb. 3, 1854, 16 D. 441, 26 J. 295. (6) A tenant possessed under a lease which contained special stipulations as to cropping and a provision for payment, at the same terms as the ordinary rents, of pactional rent at the rate of £5 for each acre miscropped during any year other than the last, in which the additional rent was fixed at £10 per acre. After the expiry of the lease the landlord claimed additional rents for the last three years, which were alleged to be due in respect of miscropping during these years. The ordinary rents for two of these years had been accepted, and receipts granted therefor without reservation ; but the tenant admitted liabihty for the additional rent applicable to the last year. Held that the landlord was barred from recover- ing the additional rents for the two earlier years in respect of the unreserved settlement of the ordinary rents. Baird V. Mount, Nov. 19, 1874, 2 R. 101. Acquiescence by the landlord in the acts of miscropping bars his claim for pactional rent. (a) At the expiry of a nineteen years' lease the tenant sued the landlord for the value of the waygoing crop, which he was bound to leave at valuation. The landlord resisted the claim on the ground that the tenant had infringed the lease by altering the prescribed rotation and taking a third white crop from a field of twelve acres, and had thereby become 118 DIGEST OF CASES. liable in pactional rent at the rate of £10 per acre. In answer the tenant pleaded consent and acquiescence on the part of the landlord ; and the evidence went to show that, for the six-shift rotation prescribed by the lease (which was unsuitable), a five-shift rotation had been gradually intro- duced ; and that the landlord had by his actings sanctioned this, and also the miscropping of the 12-acre field. Held that the landlord was barred by his acquiescence from claiming the pactional rent. Taylor v. Buf's Trustees, Jan. 13, 1869, 7 Macph. 351, 41 J. 205. , (b) A nineteen years' lease contained a general obligation to cultivate according to the rules of good husbandry, and prescribed a six-shift rotation for certain portions of the farm and a seven-shift rotation for the remainder. Additional rent for miscropping at the rate of £3 per acre was stipulated for. Certain parts of the farm had been taken out of the specified shifts at the commencement of the lease, and the alterations so made were continued during its currency. The incoming tenant (to whom the landlord assigned his right to the pac- tional rents) raised an action against the outgoing tenant to recover such rents in respect of the miscropping during the last two years of the lease. Held, on a proof, that the landlord had acquiesced in the miscropping, and that the claim for pactional rent was accordingly barred. Lamb v. Mitchell's Trustees, Feb. 23, 1883, 10 R. 640. The landlord's acquiescence equally bars claims o£ damages for miscropping where the lease does not provide for pac- tional rent. Murray's Trustees v. Gordon, Feb. 26, 1806, Hume 823, Fac. Coll. 1801-7; Fraser v. Maitland, March 9, 1824, 2 Shaw's Appeals, 37. Acquiescence in miscropping may be established by parole proof of facts and circumstances. Taylor v. Duff's Trustees, supra. (Lord Kinloch's judgment). See also Lamb v. Mitchell's Trustees, supra. If a system of miscropping acquiesced in by the landlord necessarily results in other deviations, these will be held as also sanctioned by the original acquiescence. Lamb v. Mitchell's Trustees, supra. DIGEST OF CASES. 119 Acquiescence will not bind a singular successor of the landlord unless its effect is to superinduce a new contract on the original lease. Hall V. M'Gill, supra, p. 116. But contrast judgment of Lord President (Inglis) in Lamb v. Mitchell's Trustees, supra, p. 118. 3. — Obligations to Consume Produce and Manure ON the Farm. In the absence of express contract, the tenant is bound to consume on the lands the fodder grown thereon, with the exception of the fodder of the waygoing crop, and to apply- to the lands the manure made thereon, except what is made between the seed-time of the last crop and the term of re- moval. FinnieM. Trotter, June 27, 1767, M. 15260 ;■ Boxburghe V. Archibald, March 5, 1785 (noted M. 15263) ; M'Murray v. Maxwell, 1776 (noted M. ib.) ; Pringle v. M'Murdo, June 30, 1796, M. 6575; Jamieson y. Pringle, May 16, 1792 (noted M. 15263), Clerk v. Hamilton, Feb. 4, 1801 (noted Hume 867); Gordon v. Robertson, March 11, 1825, 3 S. 656, rev. May 19, 1826, 2 W. and S. 115 (Joint Opinion of Consulted Judges). Where there is no express obligation to apply to the lands the manure made after the last seed-time, the tenant must leave it to his successor on getting payment of its value. Forrester v. Wright, Feb. 19, 1808, M. App. Tack No. 16. Where the lease expressly provides that the fodder shall be consumed on the lands or expressly prohibits removal, the tenant is not entitled to sell or remove the fodder of the waygoing crop. (a) A lease, which expired at Whitsunday as to the houses and grass, and at the separation of the crop as to the arable land, contained the following provision as to the fodder : — " And at no time shall the said John Eoberton (the tenant) " or his foresaids sell or give away any of the hay or straw of 120 DIGEST OF CASES. " the said farm, which shall always be spent on the ground." At the expiry of the lease, the landlord appHed for interdict against the tenant removing, or selling for removal, the straw of the waygoing crop. Held (by House of Lords, reversing judgment of Court of Session) that the tenant was not entitled to the straw, and interdict granted. Hoxburghe v. Roberton, May 30, 1816, Hume 867 ; rev. July 17, 1820, 2 Bligh's Appeals 156. Contrast Lord Elibank V. Scott, infra, '•p. 121. (6) Certain conditions of let imported into a lease expiring, as in the previous case, at Whitsunday and the separation of the crop, contained the following stipulation : — " The whole " fodder to be used upon the ground, and none sold or car- " ried away at any time, hay only excepted ; and all the " dung to be laid upon the farm the last year of the lease." At the expiry of the lease the tenant advertised a sale of the fodder, and the landlord applied for interdict. Held (by House of Lords reversing judgment of Court of Session) that the tenant could not, in face of the provision in the lease, sell or remove the fodder, and interdict granted. Gordon v. Robertson, supra, p. 119. Contrast Lord Elibank v. Scott, infra, p. 121. Where the provision in the lease as to the consumption of the fodder on the lands is in the form of an obligation expressly binding the tenant to consume, he is nevertheless entitled to sell or remove the straw of the waygoing crop. A nineteen years' lease expiring at Whitsunday as to the houses and grass, and at the separation of the crop as to the arable land, contained the following provision as to the fodder: — " Further, the said Walter Scott (the tenant) agrees and " binds himself to consume the whole straw, turnips, and " other fodder raised on the farm, with the exception of " clover hay, which he is to be permitted to sell for con- " sumption elsewhere." At the expiry of the lease tjie tenant ' offered to sell the waygoing crop to the landlord or incoming tenant, but this offer was declined. He thereupon sold the crop, including the straw, by public roup. A portion of it, consisting of 18 acres, was purchased by the incoming tenant, and consumed on the farm. The remainder was removed. The proprietor raised an action of declarator that the tenant was bound to consume the straw on the farm, and that he had failed to implement the obligation : and he concluded for DIGEST OF CASES. 121 the payment of the vahie of the straw removed. Held (by the Second Division, reversing the judgment of Lord Kinnear) that the tenant was entitled, notwithstanding the general obligation to consume the fodder, to sell or remove the straw of the waygoing crop. Lord EKhank v. Scott, Feb. 1, 1884, 11 R. 494. Rox- hurghe v. Roherton, supra, p. 120 ; and Gordon v. Robertson, supra, p. 120, distinguished in respect of the difference in the form of the obligation. Circumstances in which outgoing tenant held entitled to the straw of the waygoing crop, under a special provision in the lease. A tenant was prohibited in the lease from selling or removing the straw, the whole of which he was taken bound to consume on the lands "for their melioration." The lease also contained an obligation on him to sell the last white crop to the proprietor or incoming tenant, if required, at a valua- tion ; and, if the proprietor or incoming tenant declined to take the crop, then the tenant was to be entitled to dispose of it, inclusive of the straw, as he pleased. Held that the outgoing tenant was entitled to get the value of the straw from the incoming tenant, who had availed himself of the option of taking the crop. Nivison V. Howat, Nov. 16, 1883, 11 R. 182. I£ a tenant, under an express and unqualified obligation to apply the whole manure to the lands, leaves an accumu- lation of manure on the farm unconsumed, it becomes the property of the landlord or incoming tenant without pay- ment. Wemyss v. Wright, June 16, 1801, M. App. Tack No. 7; Forrester v. Wright, supra, p. 119. A nineteen years' lease, expiring at Martinmas, bound the tenant to "use and consume the whole of the straw, or fodder " that shall be raised or grown on the farm, in or upon the '' same, and the whole dung, compost, or other manure that " shall be made thereon, excepting always hay and the straw " or fodder of the last or outgoing crop, which the tenant " may dispose of at his pleasure." At the expiry of the lease there was on the farm a quantity of unconsumed manure, of which the incoming tenant took possession. The outgoing 122 DIGEST OP CASES. tenant sued him for the value of the manure, and averred that its consumption by himself was impracticable, owing to the conditions in the lease about the last year's crops. The Court ordered a remit as to the practicability of the outgoing tenant using on the farm the manure made between seed-time and the term of removal ; and it was reported that it was practicable for him to have don^ so. Held (diss. Lord Justice- Clerk Patton) that the outgoing tenant was not entitled to payment for the manure. Greiffv. Mackay, July 20, 1869, 7 Macph. 1109, 41 J. 609. Where the lease contains no express obligation on the tenant to apply the manure to the lands, but merely binds him generally to manure the lands in a suflBcient manner, the landlord or incoming tenant cannot appropriate the remanent manure without payment, provided the tenant has fulfilled his general obligation. Allen V. Berry, Jan. 17, 1827, 5 S. 212; aff. June 10, 1829, 3 W. and S. 417. An obligation on the outgoing tenant to leave manure at valuation entitles him to the full value of the manure so left. Herriot v. Halket, Feb. 10, 1826, 4 S. 446. See also Erskine^s Trustees v. Grombie, infra. Where a tenant is taken bound by the lease to hand over to his successor the waygoing crop of turnips at a valua- tion, he is entitled to have them valued at what they are worth for removal from the farm, and not merely their value for consumption on the farm. Urskine's Trustees v. Grombie, Nov. 1, 1870, 9 Macph, 54, 43 J. 24. See also Scott v. Bitchie, Dec. 2, 1869, 7 S.L.R. 135. Circumstances in which an obligation on the tenant to leave the dung at removal was held to mean that it was to be left without payment. Stirling V. Tuille, Dec. 14, 1827, 6 S. 251. DIGEST OF CASES. 123 PART III.— THE AGRICULTURAL HOLDINGS ACT. A general discharge by the tenant of all " claiins, interest, and " advantage " under t/ie lease, contained in a renunciation thereof, does not bar the tenant's claims under the Act, and is not an agree- ment providing such compensation as is by the Act allowed to be substituted jor the statutory compensation. A tenant, having duly intimated to his landlord a claim for com- pensation for improvements executed by him upon his holding, and having appointed a referee, as required by the Act, made an application to the Sheriff of Perthshire, under section 9, subsection 6, to have a referee appointed for the landlord, who had declined to name one for himself. The latter, in ojjposing the application, founded on a clause in a renunciation of the lease, ivhereby the tenant renounced in the landlord's favour the lease, and "all right, title, and interest therein, " and to the lands and others thereby let, and generally all claims, " interest, and advantage which I have or might pretend to, in or under " the said missives of agreement of tack or otherwise." The landlord founded on this clause as discharging the tenant's claim under the Act, or otherwise as providing fair and reasonable compensation within the meaning of section 5. Held (per Sheriff-Substitute Grahame) that the daiise in question neither imported a discharge of tJie tenant's claims nor was such an agreement as is provided for in the fifth section of the Act. The judgment was acquiesced in by the parties. Osier v. Marchioness of Lansdowne, Dec. 16, 1884, 1 Sh.C. Rep. (Scot. Law Rev.) 48. Where the landlord's counter claim exceeds in amount tJie claim of tlie tenant, tlie statutory referees cannot find the tenant liable in the excess. The trustee's of a deceased tenant made a claim for compensation under the Act for unexhausted manure, tfcc, and the landlord made a counter claim for ordinary rent, and also for additional miscropping rent, and damages for deterioration. The result of the reference ivas that the landlord's claim, as ultimately established, was about £150 in excess of the amount awarded to the tenant's trustees, and for this excess the oversman in the reference gave decree against the latter. The trustees appealed to the Sheriff of Forfarshire on the ground, amongst others, thai the award was invalid in respect that they were found liable to pay the landlord the difference between the sum, found due to them and the landlord's counter claim. Held (per Sheriff-Substitute Robertson) that there was no power, express err implied, in the Act by which a decree in favour of the landlord could be given. Soot's Trustees v. Lord Whamoliflfe, April 7, 1885, 1 Sh. G. Rep. (Scot. Law Rev.) 189. Circumstances in which a suspension of the Sheriffs appointment of a referee refused. 124 DIGEST OF CASES. The tenant of an Aberdeenshire farm, the term of entry and expiry of which was Whitsunday, got possession on the 26th of May (Whitsunday old style), and his testa- mentary trustees, who at his death succeeded him, removed at the corresponding date in the last year of the lease, in pursuance of a custom prevalent in the district. The trustees gave the landlord notice of a claim under the Act on 21st January preceding the term of removal, and thereafter nomi- nated a referee. The landlord having declined to name a referee on the ground of the alleged insufficiency of the notice, the trustees applied to the Sheriff, under section 9, sub-section 6, to have one appointed. The Sheriff made the appointment, without deciding whether the 15th or the 26th of May was to be taken as the "determination of the tenancy." The landlord applied to the Court of Session for a suspension of the appointment, and the Lord Ordinary (Trayner) granted it on the ground that the tenancy came to an end on 15th May, the legal term of Whitsunday, and that accordingly the tenant had no right to have a referee appointed by the Sheriff, his notice not being timeously given under the Act. The tenant's trustees reclaimed. The Second Division ordered a proof as to the prevalence of the alleged custom, and thereafter (recalling the Lord Ordinary's interlocutor) held that the parties, having imported the custom of the district into their contract, the "determination of the tenancy" was on the 26th of May, notwithstanding the use in the lease of the expression " Whitsunday," which, taken by itself, meant 15th May. The suspension was accordingly refused. Hunter v. Barron's Trustees, May 13, 1886, 23 S.L.R. 615.1 Tlie use hy tlie outgoing tenant of tjie hams and barnyards for a few months after the incoming tenant's entry, for the purpose of thrashing his last crop, does not extend the period within which a claim can he made under tlie Act. A tenaTit, whose lease expired at Whitsunday as to the houses and pasture land, and at Martinmas thereafter or the separation q/ the crop as to the arable land, was entitled, under the estate regulations, to use " the bams and barnyards till the \5th day of March immediately sue- ' ' ceeding the incoming tenant's entry to the premises, for thrashing and " disposing of his last crop." Ihe lease, which was continued by mis- sives and also by tacit relocation for several years beyond its nominal expiry, was brought to an end at Whitsunday, 1884, subject to the tenant's continued possession of the arable land for the ingathering, and of the barns and barnyards for tlie thrashing, of the last crop. The 1 The proceedings in the Sheriff Court are reported in 1 Sh.C. Reports (Scot. Law Rev.) 221. DIGEST OF CASES. 12.5 tenant gave notice of a claim under the Act on I3th November, 1884, lehich he maintained was a sufficient intimation, in respect of the con- tinuance of the tenancy till 15th March, 1885. The landlord declined to appoint a referee, and the tenant applied to the Sheriff mider section 9, sub-section 6. Held (per Sheriff-Substitute Campion and Sheriff-Prin- cipal Forbes Irvine) that the me of the bams and barnyards tuas a mere convenience or privilege, which had no effect in X)ostponing the " deter- " mination of the tenancy."'^ Hannan v. Ramsay, Jan. 31 and March 19, 1885, 1 Sh.O. Rep. (Scot. Law Rev.) 232. TJie landlord, who appoints his referee and appears in the pro- ceedings under the reference, cannot afterwards object to the. suffkiency of the tenant's notice of claim, though he should in his counter notice expressly reserve a right to do so. A tenant was one day too late in giving notice of his claim. The landlords duly intimated a counter claim, in which they reserved "all " right of exception competent to them in respect of said notice not " having been tim^oudy given." Both parties appointed referees, and the reference proceeded, and resulted in an award by the over sman finding a certain sum {exceeding £100) due to the tenant for compensation. The landlords, under section 20 of the Act, appealed to the Sheriff of Mid- Lothian In respect of the invalidity of the award, and, among other grounds of objection, founded on the insufficiency of the tenant's notice. Held (per Sheriff-Substitute Rutherfurd) that the landlords ought to have declined to enter into a reference, and that they were barred from objecting to the validity of the notice. 2 Governors of Gillespie's Hospital v. Penman, June 1, 1885, 1 Sh.C. Rep. (Scot. Lavj Rev.) 29$. Circumstances in which the- validity of an oversman's award was sustained against a variety of objections. Governors of Gillespie's Hospital v. Penman, supra. , 1 The Sherifif-Principal chiefly relied on the case of Earl of Hopetoun v. Wight and Others, July 10, 1863, 1 Macph. 1097, .35 J. 623 ; aff. May 27, 1864, 2 Macph. 35, 36 J. 542, where it was held that a tenant, who was entitled to have a. lease renewed every nineteen years on giving notice " twelve months before the expiry," was bound to intimate twelve months before a Whitsunday, notwithstanding that the " ish " was Whitsunday as to the houses and grass, and the separation of the crop as to the arable land. 2 The competency of maintaining the objection before the referees was not raised. The sufficiency of the notice depended on a question similar to the one decided in Hunter v. Barron's Trustees (supra, p. 124) as to whether the term of removal was to be reckoned by the new or by the old style ; but this question did not require to be determined. 126 DIGEST OF CASES. An appeal to the Sheriff-Principal from a judgment of the Sheriff - Substitute disposing of an appeal under section 20 against the referees' or oversman's award is not competent. Governors of Gillespie's Hospital v. Penman, supra, p. 125 {Sheriff Davidson's judgment). Opinion that a simple note of appeal, stating the grounds thereof, is sufficient to enable the Sheriff to review the referees' award, and that a formal petition and defences are unnecessary. Governors of Gillespie's Hospital v. Penman, supra, ■p. 125 (Sheriff Davidson's judgment. ) APPENDIX, ACT OF PARLIAMENT FOE Tlie Better Protection of Occupiers of Land against Injury to their Crops from Ground Game. [43 and 44 Vict., cap. 47 — 1th 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 : I. Every occupier of land shall have, as incident to and insepar- able 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 kill and take ground game on the same land : Provided that the right conferred on the occupier by this section shall be subject to the following limitations : (1.) The occupier shall kill and take ground game only by himself or by persons duly authorised by him in writing : (a) The occupier himself and one other person autho- rised in writing by such occupier shall be the only persons entitled under this Act to kill ground game with firearms ; (6) No person shall be authorised by the occupier to kill or 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 ; 128 GROUND GAME ACT, 1880. (c) Every jDerson 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 demand- ing the document by which he is authorised, and in default he shall not be deemed to be an autho- rised person. (2.) A person shall not be deemed to be an occxipier 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 unenclosed lands (not being arable lands), the occupier and the persons autho- rised 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 unenclosed lands adjoining arable lands, where such detached portions of moorlands or unenclosed lands are less than twenty-five acres in extent. II. Where the occupier of land is entitled otherwise than in pursuance of this Act to kill and take ground game thereon, if he shall give to any other person a title to kill and take such ground game, he shall nevertheless retain and have, as incident to and inseparable from such occupation, the same right to kill and take ground game as is declared 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 galme or other game, in the same manner and to the same extent as if this Act had not passed. III. Every agreement,, condition, or arrangement which pur- ports to divest or alienate the right of the occupier as declared, given, and reserved to him by this Act, or which gives to such occupier any advantage in consideration of his forbearing to exercise such right, or imposes upon him any disadvantage in consequence of his exercising such right, shall be void. IV. The occupier and the persons duly authorised by him as aforesaid shall not be required to obtain a licence to kill game for the purpose of killing and taking ground game on land in the GROUND GAME ACT, 1880. 129 occupation ot such occupier, and the occupier shall have the same power of selling any 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. V. Where, at the date of the passing of this Act, the right to kill and take ground game on any land is vested by lease, contract of tenancy, or other contract bond fide made for valuable conside- ration in some person other than 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 con- tract 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 kill 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 warn- ing 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. VI. No person having a right of killing ground game under this Act or otherwise shall use any firearms for the purpose of killing ground game between the expiration of the first hour after sunset and the commencement of the last hour before sunrise ; and no such person shall, 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. VII. Where a person who is not in occupation of land has the sole right of killing game thereon (with the exception of such right of killing and taking ground game as is by this Act conferred on the occupier as incident to and inseparable from his occupation), such person shall, for the purpose of any Act authorising the insti- tution of legal proceedings by the owner of an exclusive right to game, have the same authority to institute such proceedings as if K 130 AGRICULTURAL HOLDINGS ACT, 1883. he were such exchisive owner, without prejudice nevertheless to the right of the occupier conferred by this Act.^ VIII. For the purposes of this Act — The words " ground game " mean hares and rabbits. IX. A person acting in accordance with this Act shall not thereby be subject to any proceedings or penalties in pursuance of any law or statute. X. Nothing in this Act shall authorise the killing or taking of ground game on any days or seasons, or by any methods, prohi- bited by any Act of Parliament in force at the time of the passing of this Act. XL This Act may be cited for all purposes as the Ground Game Act, 1880. ACT OF PAELIAMENT Amending the Law relating to Agricultural Holdings in Scotland. [46 and 47 Vict., cap. Q2.—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 Improveinents. I. General right of tenant to compensation. — 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 1 In Ferguson v. M'Nab, June 12, 1885, 12 R. 1083, the tenant and occupant of a fann, who had also the sole right of shooting on the lands under an agreement with the proprietor, was held to come within the purview of this section, and to have authority to prosecute for a contra- vention of the Day Trespass Act, AGRICULTURAL HOLDINGS ACT, 1883. 131 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. II. Restriction as to improvements before Act. — 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 com- mencement of this Act executed an improvement specified in the third part of 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 imder any contract or custom to com- pensation in respect of su.ch improvement, and the landlord, within one year after, the commencement of this Act, declares in writing his consent to the making of the improvement. 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. III. Consent of landlord as to improvements in first part of schedule. — Compensation under this Act shall not be payable in respect of any improvement specified in the first part of the schedule hereto, and executed after the commencement of this Act, unless the landlord, or his agent duly authorised on that behalf, has previously to the execution of 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 compensation, 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, 132 AGRICULTURAL HOLDINGS ACT, 1883. IV. Notice to landlord as to improvements in second part of schedule. — Compensation under this Act shall not be payable in respect of any improvement specified in the second part of the schedule hereto, and executed after the commencement of this Act, unless the tenant has, not more than three months and not less than two months before beginning to execute such improve- ment, given to the landlord, or his duly authorised agent, notice in vfriting 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 compensation 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 com- pensation under this Act, or the landlord 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 such annual sum, payable 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 of this 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. V. Eeservation as to existing and future leases. — Where, in the case of a tenancy under a lease current at the commencement of this Act, any agreement in writing or custom provides specific 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 AGRICULTURAL HOLDINGS ACT, 1883. 133 of such agreement or custom, and shall be deemed to be substituted for compensation 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 improvement 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 compensation in 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 cvirrent 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 for Improvements. VI. Compensation for improvements. — In the ascertainment of the amount of the compensation under this Act payable to the tenant in respect of any improvement there shall be taken into account in reduction thereof — («.) 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 con- sumption 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 ; (3.) For the breach of any stipulation of the lease, or of any contract relative to the lease, committed by the tenant ; 134 AGRICULTURAL HOLDINGS ACT, 1883. (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 determination of the tenancy. Procedure. \IL Fotice of intended claim. — Notwithstanding anything in this Act, a tenant shall not be entitled to compensation under this Act unless four months at least before the determination ot 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 the determination of the tenancy, or within fourteen days there- after, 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. VIII. Compensation agreed or settled hy reference. — The landlord and the tenant may agree on the amount and mode and time of payment of compensation to be paid to the tenant or to the landlord under this Act. If in any case they do not so agree, the difference shall be settled by a reference. IX. Appointment of referee or referees and oversm,an. — Where there is a reference under this Act, a single referee, or two referees and an oversman, shall be appointed as follows : — (1.) If the parties concur, a single referee may be appointed by them jointly ; (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 ; AGRICULTURAL HOLDINCJS ACT, 1883. 135 (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 competent and impartial person to be a referee ; (7.) Where two referees are appointed they shall before they enter on the reference appoint an 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 sheriiF under this section shall be exerciseable by him although he may not be at the time within the county. X. Requisition for appointment of oversman by tlie sheriff. — 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 sherifif, then the oversman and any successor to him shall be appointed, on the application of either party, by the sheriff. XL Mode of submission to reference. — 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. XII. Power for referee, &c., to require production of documents, 136 AGRICULTUBAL HOLDINGS ACT, 1883. administer oaths, (fee— 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 examination of the parties and witnesses on oath, and may administer oaths and take affirmations; and if any person so sworn or affirming wilfully and coiTuptly gives false evidence he shall be guilty of perjury. XIII. Powei- to proceed in absence. — 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. XIV. Form of aioard. — The award shall be in writing, signed by the referee or referees or oversman as the case may be. XV. I'ime for aivard of referee or referees. — 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 iinder their hands, so that they have their award readj' for delivery within a time not exceeding in the whole forty-nine days after the appointment of the last appointed of them. XVI. Reference to and award hy oversman. — Where two referees are appointed and act, if they fail to pronounce 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 applicatioi of the oversman, or of either party, may fix, so that the oversman pronounce 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 AGRICULTURAL HOLDINGS ACT, 1883. 137 compensation 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.' XVII. Award to give particulars. — The award shall not find due or decern for a sum generally for compensation, but shall, as far as reasonably may be, specify — (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 augmenta- tion 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 compensa- tion is awarded is to be deemed to be exhausted. XVIII. Expenses of reference. — The expenses of and connected with the reference, including the remuneration of the referee or referees and oversman, and other proper expenses, shall be borne and paid by either party in whole or by the parties in such pro- portions 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. XIX. Day for payment. — The award shall fix a day, not sooner than one month after the delivery of the award, for the payment of the money awarded for compensation, expenses, or otherwise. 138 AGRICULTURAL HOLDINGS ACT, 1883. XX. Appbal to sheriff. — Where the sum claimed for compensa- tion exceeds one hundred pounds, either party may, within seven days after dehvery of the award, 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 agree- ments, or for committing or permitting deterioration, in respect of which the party claiming was not entitled to compensation ; (4.) That compensation has not been awarded for improve- ments, 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. XXL Recovery of comjiensation. — Where any money agreed or awarded or ordered on appeal to be paid for compensation, ex- penses, or otherwise, is not paid within one month after the time when it was agreed or awarded or ordered to be paid, it shall be competent to record the agreement or award in the books of tlie 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. XXII. Appointment of guardian. — 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. XXIII. Expenses in sheriff courts. — The Court of Session may by act of sedenmt from time to time prescribe a scale of expenses for AGRICULTURAL HOLDINGS ACT, 1883. 139 such proceedings in the sheriff court, and such. expenses shall be taxed by the aiiditor of the sheriff court. Charge of Tenant's Compensation. XXIV. Power for landlord on paijing compensation to obtain change. — 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 com- pensation 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 registering 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 lease- hold 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 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 taten 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 assig- nation shall specify the times at which the total amount charged and each instalment thei'eof shall be payable. The instalments and interest shall be charged in favour of the landlord, 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 140 AGRICULTURAL HOLDINGS ACT, 1883. 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 pur- suance 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. XXV. Advance made hy a company. — Any company now or hereafter incorporated by Parliament, or incorporated under the Companies' Acts, and having power to advance 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 com- pany and the person entitled to such charge ; and such company may assign any charge so acquired by them to any person or persons whomsoever. XXVI. Duration of charge. — The sum charged by the order of a sheriff under this Act shall be a charge on the holding or the estate of which it forms part for the 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 Rent. XXVII. Tenants to be removed only at legal terms. — 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 be 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 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. AGRICULTURAL HOLDINGS ACT, 1883. 141 The second and third sections of the Hypothec Abolition (Scot- land) Act, 1880 [43 Vict., o. 12], are hereby repealed, and the provisions of the fifth section of the Act of Sederunt anent 'Eemoving 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. XXVIII. Notice of termination of tenancy. — Notwithstanding the expiration of the stipvilated endurance of any lease, the tenancy shall not come to an end unless written notice has 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 : (6.) 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 termination of the lease. -^ Failing siich 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 ^hall be given in the form and manner prescribed by the Sheriff' Courts (Scotland) Act, 1853 [16 and 17 Vict., c. 80], 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. 1 See Lord Macdonald v. Finlayson, Dec. 6, 1884, 12 R. 228. 2 The only form of "notice" prescribed by the statute in qiiestion applies exclusively to a tenant who holds under a probative lease specifying a term of endurance or who has granted a letter of removal. A practical difficulty is felt as to the procedure to be adopted where there is neither a probative lease nor a letter of removal ; but there seems to be a consensus of opinion to the effect that the only safe course is to raise an action of removing not less than one year, or six months (as the case may be), prior to the termi- nation of the tenancy. 142 AGRICULTURAL HOLDINGS ACT, 1883. XXIX. Bequest of lease. — A tenant may by will, or other testa- mentary 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 shall make intimation as soon as possible thereafter. (6.) Intimation to the landlord or his known ageilt 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 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 petition. (f.) The decision of the sheriff under such petition as afore- said 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. (jr.) 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. XXX. Tenant's property in fixtures, machinery,