in leases; but it is presumed, although the point has not been decided, that they are entitled to renew leases if they are not of a fluctuating or precarious nature. Leases may be taken by two or more individuals "jointly," each being entitled to joint possession and management, and being liable in full for the rent. The manner in which such leases will be held, or will descend to heirs on the death of any of the parties, will be decided from the terms of the lease, by rules similar to those which govern the succession to heritable property in a like situation (see above, p. 90); with this distinction, that the feudal doctrine, that there must be a holder of the fee or absolute property, and that the property cannot be nominally vested in a liferenter, does not apply. If the lease is not taken to any distinct series of heirs, the heir-at-law, according to the rules of succession in heritage, succeeds. The deed of lease may contain a clause empowering the tenant to name his successor. When a tenant names a successor other than the heir-at-law, the landlord, not the heir-at-law, is entitled to challenge it."

SECT. 3.-Constitution of Lease.

It is a general rule, arising from feudal usages, that a lease of any heritable subject, as land, houses, mills, woods, &c., must be in writing; but practice has so far modified the rule, that a verbal lease for one year holds good, and a verbal lease for a term of years holds good for one year if possession has been entered on, and becomes annually renewed by possession running into a new year.3 A writing which simply refers to the circumstance of a verbal lease having been entered into, will not make the verbal lease a written one.4 But a verbal lease for a term of years may be made effectual by rei interventus (see p. 127), such for instance as a grassum paid, or money expended to a great amount in improvements or in building." 5 Thus it was held that " a gardener, who had at a very great expense, on the faith of a verbal lease for nineteen years, converted an arable field into a garden, in which he planted fruit-trees and bushes, was entitled to continue his possession until the expiration of the nineteen years."

A written lease must be a distinct and intelligible obligation, containing the requisites of ordinary probative writs.*

1 H. on L. and T. ii. 193.-2 Ibid. i. 195-208.-3 E. ii. 6, 30. H. on L. and T. i. 348.-4 H. on L. and T, 346.—5 B. C. i. 329.-6 B. on L. i 291,See p. 133.

*

An unstamped lease bears no faith in judgment.* If the writing is defective, it may be validated by rei interventus.+ The tenant's simply entering into possession is held as rei interventus in this case. The possession must, in the case of land or houses, be practical, or "natural," displayed in occupation of the houses, tilling the ground, &c., by means of the tenant or his subtenants; or, if the lease is of incorporeal subjects, as feu-duties, rents, &c., by collecting and levying them.1

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Leases good against Purchasers, &c.-A distinction has to be taken between a lease for a term of years, which will be valid against the granter and his heirs, and one which will protect the tenant against a singular successor," such as a purchaser or a creditor who obtains the property in execution for debt. By our early feudal usages, tenants were held to possess only personal rights which they could not make good against any possessor of the land but him who granted them, or his heir. This was remedied by an early statute, which enacted that "the puir people that labouris the ground" should hold their tacks notwithstanding any change of proprietorship.2 To bring the lease within the statute, however, it is necessary that possession, as above defined, should have followed upon it.3 The statute is held to protect only leases of land, or of those rights termed fundo annexa or annexed to land, as mills, minerals, fishings, &c.;* and in this privilege houses have been included, although let without any adjoining land.5 "A lease of the profits of a whole estate already under tenantry is not effectual against singular successors." Possession on a lease is compared to sasine (see p. 55) in the case of property in land; and so, if two leases be granted of the same subject to different individuals, he who first enters into possession is preferred as tenant, although his lease may have been the posterior in date. A perpetual lease is considered as an alienation, and is not protected by the statute. To render it available against singular successors, there must be an Ish, or period fixed or contingent, when it shall terminate. A lease granted to continue until a debt due by the landlord to the tenant shall be repaid, is considered in the same light as a perpetual lease. But it would appear, that if a period is named, though so far distant that to all purposes, in as far

*See p. 141.-+ See p. 127.-1 E. ii. 1, 22. B. on L. i. 303. H. on L. and T. ii. 415.-2 1449, c. 18.-3 E. ii. 6, 25.-4 Ibid. 27.5 M'Arthur v. Simpson, 6th July 1804, M. 15181.- E. ii. 6, 27.—7 Ibid. 25. B. on L, i. 52.8 E. ii. 6, 24. H. on L. and T. i. 455. B. C. i. 68.

as respects the interest of the singular successor, the lease is an alienation, it will be sustained.1

Another statutory requisite is that there shall be a stipulated rent. "The rent may be greatly below the actual value, but must not be altogether elusory;"2 and what will be considered an elusory rent will always depend on circumstances. The rent may be in money, kind, or services. A lease was sustained where the rent stipulated was the performance of the smith-work on the estate.3 Where a lease

is renewed or prorogated, its validity against a singular successor will depend on the question, whether the tenant possessed under the old lease or the new, at the time when the land changes masters. If the former, it will be reducible, because at the termination of the lease the property reverts to the landlord, and the new landlord, though he cannot interfere with possession taken, is under no obligation to give possession; if the latter, it will hold good. If a landlord intimate in writing to his tenants, that he is thenceforth to make a specified deduction on their rents, the obligation, if not of a collusive character, is binding on his representatives, and on his trustee if he become bankrupt.5

Tacit Relocation, or reletting by sufferance, will be considered as having taken place against a party who has allowed the other to act as if the contract were continued. It only renews the contract for a year. It takes place in favour of the landlord if the tenant fail to renounce forty days before the termination of the lease, or (if it be an agricultural lease not ending at Whitsunday) forty days before. the Whitsunday preceding. It takes place in favour of the tenant if the landlord neglect to give warning, or to pursue an action of removing in proper form where warning or action are respectively requisite, or if the landlord have received from the tenant rent in anticipation. Tacit relocation has no place in judicial leases of sequestrated estates, for the court does not warn tenants.7

SECT. 4.-Form of Agricultural Lease.

Agricultural leases, of course, differ from each other according to the nature of the subject and the views of the parties; but the clauses which are most usually employed,

E. ii. 6, 24. H. on L. and T. i. 455. B. C. i. 68.- H. on L. and T. i. 466. Lundy v. the Smith of Lundy, M. 15166.- H. on L. and T. i. 486.-5 Lindsay v. Webster, 9th December 1841.-6 B. on L. ii. 132, et seq. H. on L. and T. i. 519, et seq.-7 Ibid.

N

where there is no specialty in the contract, are the following: -1. Clause of Description of Parties, in which, besides the principal parties, the cautioner, if there be one, is named. 2. Clause of Destination, in which all the limitations and privileges regarding transference of and succession to the lease are specified. 3. Clause of Possession, describing the subject, and conferring a right of possession on the tenant. If there be a measurement, but it is not warranted, the tenant must satisfy himself of its accuracy. 4. Clause of Duration, stating the continuance of the lease, and the point of time from which it is to be calculated. "The term of entry varies in subjects of different kinds, and in different parts of the country. To an arable farm the term of entry is ordinarily Whitsunday as to the houses, fallow lands, and grass, and Martinmas after the separation of the crop of a specified year, or, more generally after that separation itself, with regard to the rest of the farm." Where the entry is at Whitsunday, there is either a provision that the entering tenant shall labour the fallow land from the previous Martinmas, or that the outgoing tenant shall do so on being remunerated by his successor. If the whole is entered at Martinmas, "there is a provision that the incoming tenant shall pay the expense of the labour on the land that had been in fallow the summer before, and also for the wheat sown," "3 unless he have been allowed to labour the fallow, and sow the wheat himself. 5. Clause of Reservation, specifying those adjuncts of the soil which the tenant has not bargained for, e. g. mines and minerals, the right to shoot, &c. 6. Clause of Meliorations obligatory on the landlord (see below, p. 298). 7. Clause of Warrandice, on the same principle as in the disposition to a purchaser (see above, p. 168). 8. Clause of Rent, containing the amount or some criterion by which it is to be fixed (such as the fiars' prices), if it be payable in money, and the description of produce, with the quantity, if it be payable in kind. Where terms of payment are not specified, Whitsunday and Martinmas are understood. Rent paid before the tenant can reap a crop is termed “anticipated or forehand" rent, and when not paid for one crop until another is reaped, it is termed "postponed or backhand" rent. In this clause is inserted any forfeiture or penalty that may be covenanted for in the case of rent lying unpaid. 9. Clause of Meliorations by the tenant, if it be thought expedient to

'Hardi v. Kinloch, 12th November 1842.- H. on L. and T. i. 362.— 3 Ibid.

bind him to make certain ameliorations. 10. Clause of Preservation, stipulating the extent to which the tenant binds himself to keep the buildings, fences, &c., in repair, and restore what may be damaged. 11. Clause of Insurance, by which the tenant may become bound to insure the houses, crop, &c., for the preservation of the landlord's property, and of his security for the rent. 12. Clause of Thirlage, by which the tenant may be bound to have his grain ground at a particular mill. (See above, p. 283.) 13. Clause of Management. This is a very important clause, which must vary with every deed. In its simpler form it is an obligation to cultivate the land according to the rules of good husbandry; and, where there are many complicated stipulations, the aim of the whole is simply to prevent the nature of the property from being altered, or the land deteriorated, at the termination of the lease; and to make provision for enabling the next tenant to commence the cultivation with advantage. 14. Clause of Bankruptcy, generally providing, either that the lease shall become null in case of the tenant's bankruptcy, or that it shall be in the option of the landlord to resume it. 15. Clause of Removal, which dispenses, on the part of the tenant, with some of the formalities of the process of removal. (See below, p. 300.) The stipulation is generally fortified by a penalty. 16. Clause of Reference, referring disputes which may arise between the parties to the decision of arbiters. 17. Clause of Mutual Performance, containing penalties for non-performance on either side. 18. Clause of Registration (see below, Part XIV. Chap. V. §1). 19. Testing Clause (see above, p. 137).1

Articles of Lease are a sort of code applicable to a whole estate, and embodying "under distinct heads the conditions and regulations under and according to which it is the will of the proprietor that his lands should be cultivated, and by the adoption of which, therefore, the tenants bind themselves. to the observance of the course prescribed." 112 The articles are only signed by the landlord. Each tenant enters on a separate lease, which, instead of specifying the routine, &c., refers to the articles, and binds the tenant to adhere to them.

Articles of Roup are the conditions on which the proprietor will allow the lease to be held by the successful bidder at a public auction. Besides specifying the conditions with

1 H. on L. and T.

2 H. on L. & T. i. 397.

359-374. App. No. 1. See Jur. St. i. 672, et seq.