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the ship's furniture,-as by recapture from the enemy, rescuing from shipwreck, or recovering after abandonment by the master and crew. The master and crew have no claim for salvage in the case of their own ship, because they are bound by their contract to use all exertions for the safety of the property committed to them. Passengers, while they are only considered as exerting themselves for the common safety, in which their own is involved, are not entitled to salvage; but when they make exertions beyond those necessary to their own safety, for the protection of the ship and cargo (as where they could have abandoned the ship, but stay behind and lend their aid), they are entitled to salvage.2 Nice questions often arise between the right of joint-salvors. It would appear that where a third party gives assistance, the necessity of his so doing, from the apparent impossibility of the first salvor succeeding by his own exertions, requires to be proved; but a curious exception exists in the case of recapture, a ship-of-war being entitled to a proportion of salvage if merely in sight at the time of its accomplishment; "the fate of the capture being often determined by the hopelessness of successful defence; and it being consistently with the duty of a king's ship, the presumption of law, that she has the animus capiendi."

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The master and crew of a vessel engaged in saving another are the persons properly entitled to salvage, but an allowance is made to the owners on account of risk.5 In one case a half was awarded to the owners, their vessel having incurred risk by taking the additional cargo on board, and having been so strained as to render repairs necessary.6 The whole crew of a vessel is entitled to share in salvage, along with those who may be selected to assist the vessel in danger. An act of Queen Anne, if it be not repealed by the act regulating salvage in England, makes provision for obtaining the arbitration of three neighbouring justices as to the amount of salvage in the case of wreck on the coast. Where parties do not agree in such reference, the Sheriff Court or the Court of Session must be resorted to. Where the salvage has occurred on the high seas, the Court of Session is the proper tribunal. In England salvage is regulated by statute 9 & 10 Vict. c. 99. In Scotland, it is left to the operation of the common law.

1 B. C. i. 593. Br. St. 1011.-2 Abbot, 560. B. C. i. 594.-3 B. C. i. 594.- Ibid. 595.-5 Ibid. Br. St. 1011.- The Waterloo, 27th June 1820. 2 Dods, 433.-7 The Baltimore, 28th February 1817. 2 Dods, 132. - 12 Anne, c. 18, § 2.

CHAPTER III.

LANDLORD AND TENANT.

SECT. 1.-Subjects.

THAT branch of the contract of letting and hiring which generally receives the denomination of " the law of landlord and tenant," may be said in general terms to embrace all those portions of property which, from their forming part of the surface of the earth, or being permanently attached to it, can only be enjoyed on the spot where they are. The usual subjects of the contract are,

1. Land, either in the form of arable or pastoral farms, or in the minor divisions of parks for grazing, &c., gardens, and orchards.

2. Mills, some of which have attached to them an exclusive privilege of grinding the grain of a particular district, termed the thirl or sucken. The remuneration or tax to the miller is termed the multures; it is divided into insucken multures, which is the taxed remuneration for grinding; outsucken multures, or the remuneration paid by those who, not being astricted, send their corn voluntarily to the mill; and dry multures, or a tax paid to the miller whether the grain be ground or not. Knaveship or sequels are a customary allowance to the miller's assistant. There are different grades of thirlage, as constituted by the original gift, or by prescription, viz. 1st, Of Grana crescentia, or all corns grown on the lands, not including purchased corn. 2d, Grindable corn, or the corn which it is requisite to grind for the uses of the thirl. 3d, Invecta et illata, or all grain growing within the thirl, as well as all that is brought within its bounds.' By statute, the proprietors of lands thirled, or of mills, may, on application to the Sheriff, have the tax commuted into an annual payment in grain, or by the fiar prices, struck by a jury of heritors or tenants of £30 of rent, or of heritors occupying lands of £30 Scots valued rent. Landlords paying the commuted tax may recover it from their tenants.2

3. Minerals, of which those most commonly leased are granite, freestone, slate, marble, coal, lime, iron, lead, &c.

1 E. ii. 9, 18-38.- 39 Geo. III. c. 55.

Independently of the bare right to work the minerals themselves, such leases generally include appurtenances necessary to facilitate the working, viz. machinery, storehouses, workmen's residences, water for driving wheels, roads, &c. There may likewise be included in such a lease the running of a contract which the lessor has made with the workmen. Leases of salt-works are, in many respects, of the same description as those of minerals.1

4. Woods. It is, however, a matter of doubt among lawyers whether a conveyance of a right to cut wood is a lease or a sale; and it is only in the case of coppice-wood, and others set off in allotments for periodical cutting, that the contract seems to be decidedly considered as a lease.2

5. Fisheries, which may also be accompanied by the moveable adjuncts of the property, such as nets, cobles, &c., and with roads and edifices. The restrictions under which the right must be held, and the extent to which the exclusive privilege can be appropriated, belong properly to the department of Public Law.

6. Dwelling-houses and Shops, which may be let with or without ground attached to them, and accompanied by furniture or otherwise.

7. Manufactories. These may be let simply as buildings, or along with machinery, or with machinery and a waterfall to drive a wheel, &c. Steam-power, with the use of the steam-engine itself, is a not unusual concomitant of a lease of manufacturing premises. "The proprietor of a manufactory and steam-engine leases the manufactory, either as a whole or in flats, to dealers, together with looms and similar machinery, or who themselves supply such machinery, while he retains the steam-engine, and, as part of the contract of lease, stipulates to supply them during the currency with the power requisite." 3 In the agreement the quantity of power to be given and required, as connected with the purposes for which it is to be used, should be accurately specified. In the case of two contiguous manufactories, of which the owner of one has, agreed to let the other have the surplus power of a steam-engine at a certain rate, it has been questioned whether the contract is a lease or a mere agreement for a supply of power. The question was tried in a case involving pecuniary consequences. The person hiring the power failed, and it was a question whether the proprietor should

Hunter on Landlord and Tenant, i. 261-264.-2 Ibid. 265-268. Paul v. Cuthbertson, 3d July 1840.- H. on L. & T. i. 278.

continue to supply him while he was in arrear (as would be the case in a lease), or was entitled to give up his part of the contract, when the other party ceased to perform his. The decision was according to the latter alternative, and inimical to the doctrine of the contract being a lease."

SECT. 2.-Parties.

Should

Lessor or Landlord.-The absolute and unlimited proprietor of land is entitled to grant a lease of it, on any terms he may think fit. Although he is not infeft (see above, p. 55), the lease will be good against himself, or against his heirs, but not against a singular successor, as a purchaser or a person who has attached the property for debt. the lessor become infeft after granting the lease, the infeftment will have the same effect in validating the contract as if it had existed previously.2 Inhibition does not bar a proprietor from granting leases.3 A liferenter cannot grant leases to endure beyond his own life, and it is held that his tenants may be removed at the Whitsunday immediately following his death. In other respects, if his right is not particularly limited, he can grant such leases as will not reduce the permanent value of the property. On this principle the right to lease minerals is so far limited that it may be said not to exist; and unless the liferent be by reservation, it would appear that the only woods which can be validly leased are those allotted for annual cutting. A wife cannot grant a lease of her own property without her husband's concurrence. A lease of such property granted by the husband alone, as his wife's administrator, is only good during his administration. (See above, p. 24.) A lease, like any other contract, when entered into by a madman or idiot, is null; while, at the same time, the tutors of such a person cannot grant a lease to extend beyond the period of their own administration. (See above, p. 40.) A trustee appointed by a party to manage his estate, or judicially appointed on a bankrupt estate, or appointed by the creditors, is entitled, in leasing the property, to act in the most advantageous manner for preserving its value to those interested, unless his powers are limited by the conditions of the trust." Where the Court of Session appoints a Judicial Factor, in

Auld v. Baird, 31st January 1827.-2 Bell on Leases, i. 99, et seq.3 Gordon v. Milne, 29th February 1780, M. 7008.-E. ii. 6, 21. H. on L. and T. i. 105.- E. ii. 9, 57, 58. B. on L. i. 131. H. on L. and T. i, 106-107.- H. on L. and T. i. 146.-7 Ibid. 149.- Ibid. 111-112.

the case of a pupil not having tutors, of a person absent who has no authorized agent, and other like cases, the factor is specially entitled to grant a lease, which will last so long as the property is under the inspection of the court, and one year longer. A factor duly empowered by his constituent is in the place of the proprietor, and, except in as far as his commission is limited, is entitled to grant leases to any extent. His commission ought to be in writing.2

The right to grant a lease is, in the general case, limited by the rules which apply to individuals or communities in the ordinary administration of their other property. Information on the subject will therefore be found under these heads: Husbands and Wives (p. 23, et seq.); Minors and their Tutors and Curators (p. 38, et seq.). The limitations placed on heirs of entail, and the statutory bounds placed to these limitations, will be found under the subject of Entails (p. 120). Where the proprietor is insolvent or bankrupt, leases granted by him may be challenged under the law which prohibits alienation of his property to the prejudice of his creditors. To make the lease objectionable there must be fraud or inadequacy in the rent.3 The limitations on the authority to grant leases by public bodies belongs in some measure to the subject of Public Law.

*

Tenant or Lessee. The persons who are capable of entering on any ordinary contract are entitled to become tenants or lessees. ( (See p. 124, et seq.) In the case of a lessee being subject to any legal disability, such as insanity or idiocy, the lease may be reduced for his interest, but not for that of the lessor. It was formerly held that a lease to an unmarried female, excluding assignees, would be void on her marriage, becoming by that act assigned to the husband; but it is now held that if not otherwise stipulated, he can merely become, in so far as the landlord is concerned, the "managing steward" of the tenant.5 It appears to be questioned whether a wife separated from her husband can become a lessee. The right of aliens to hold leases, formerly in a doubtful state, is now regulated by statute. They may hold leases for a term not exceeding twenty-one years, with all the privileges enjoyed by natives, except that of voting at elections. It would appear that tutors of minors, lunatics, &c., are not entitled to embark the property of their pupils

1 A. S. 13, February 1730.-2 E. ii. 6, 21. B. on L. i. 134.-* See Part XIII. Chap. II.-3 H. on L. and T. ii. 537.- Ibid. i. 171.—3 E. ii. 6, 31. Gillon v. Muirhead, 9th March 1775, M 15286.- H. on L. and Ț. i. 190.-7 7 & 8 Vict. c. 66, § 5.

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