regard to the use of the property, the period of the lease, &c., they appoint the judge of the roup, regulate the method of bidding, and the period during which it may continue. They specify whether caution shall be found by the highest bidder, and whether, in the event of his not finding it, the next is to be preferred, &c. The document is on a stamp, and when a minute, specifying the event, is signed by the judge, and the offerer preferred, it is binding.*1

2

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A Rental Right is a method of granting a lease now almost extinct. The tenants were termed Rentallers, or Kindly Tenants, and they were described as those who are either presumed to be lineal successors to the ancient possessors of the land, or whom the proprietor designs to gratify as such." The only peculiarity distinguishing such a right from an ordinary lease seems now to be that an entry in the landlord's rental-books, written or signed by himself, constitutes the right against him and his heirs; but to make it good against singular successors, there must be a lease qualified by possession and rent.3

SECT. 5.-Assigning and Subletting.

When the tenant places another person in his own situation, in regard to the unexhausted portion of a current lease, it is said to be assigned, and the deed transferring it is termed an Assignation, Where the tenant still remains bound to the landlord, while he grants a lease of the whole subject, or any part of it, to another person, he is said to sublet. The tenant has no right to exercise either of these privileges, unless by authority expressed in the lease, or presumed from its nature. The most simple method of conferring them is by granting the lease to the lessee, his heirs, assignees, and subtenants. A power to sublet does not warrant assignation, nor does a power to assign necessarily authorize a sublease. The former privilege holds in agricultural leases of "extraordinary duration;" a term which has not been more accurately defined in reference to this subject than that a lease for nineteen or twenty-one years is not presumed assignable, while one for thirty-eight years, being of "extraordinary duration," is so. But the power to sublet has been held to be presumed in a lease of nineteen years; and it would appear, that where the terms of such a

*See as to Auctions, above, 156.- H. on L. and T. ii. p. 405-407.—2 E. ii. 6, 37.- Ibid.- Ibid. 33, n. H. on L. and T. i. 228,-3 Duff v. Day, 10th March 1769, Hailes, 289.

lease specially exclude assigning, subletting is not understood to be excluded.' Liferent leases are held to imply power to assign and sublet.2 An express exclusion of assignees and subtenants will not affect an assignation or subtack by the tenant to his heir-at-law.3

4

In Urban Tenements, such as houses, shops, &c., where the contract is for simple occupancy, it is now understood that the tenant may assign or sublet unless there is a stipulation to the contrary. The same reason, however, on which the distinction between the two cases rests, will be a ground for prohibiting the tenant of a house or shop from assigning or subletting the premises for a radically different use from that for which they are let to himself, especially if it should be detrimentally so. Thus, a landlord was entitled to pre vent a silkmercer's shop from being sublet for the exhibition of wax figures."

Where the exclusion of assignees is only inferred from the nature of the deed, the right of objecting is competent only to the landlord.6 Where the exclusion is express, the matter was held to be doubtful. "It may be questioned," says Professor Bell, "whether an assignment is, in such a case, null, or whether it is only subj ct to an objection on the part of the landlord."7 It is now held, however, that it is in the latter position, that the landlord only can object, and that if he acquiesce, the assignation is effectual. It is not unusual to insert a clause excluding assignees, "unless with the special consent of the landlord," or admitting them, "if approved of by the landlord;" and though formerly the landlord was held to be under judicial control in objecting, and bound to show cause for doing so, it has been decided that his right to object is purely arbitrary.9

To preserve the interest in an assigned lease from the creditors of the original tenant, or from a posterior assignee, there must be possession under the assignation.10 The possession may be either by the assignee or his subtenants." No assignation of a lease in security can be made effectual against creditors, by an arrangement by which there is no apparent change of ownership, the original tenant becoming nominally the subtenant of the assignee, but continuing to

2

Iv. Er. 368.- E. ii. 6, 32. H. on L. and T. i. 228.-3 E. ii. 6, 31, n. H. on L. and T. i. 237.-B. C. i. 76. H. on L. and T. i. 229.-5 Leechman v. Sievwright, 6th June 1826.- H. on L. and T. i. 241.-7 B. C. i. 77. See E. ii. 6, 31.-8 H. on L. and T. i. 241.-9 B. C. i. 78. H. on L. and T. i. 241.16 Hamilton's Trustees v. Stewart, 25th May 1830.-" B. C. i. 67. See H. on L. and T. i. 487-492,

occupy the premises and pay the rent to the landlord.' When a landlord has given a formal written consent to an assignation of a lease, he is not bound to look to the original lessee as his tenant, on the mere ground of an arrangement between him and the assignee for the restoration of the former to his position as tenant, to which the landlord is not a party. This rule, conjoined with the want of any such system of registration in the case of leases as that which has so long been in practice as to heritable property, prevents the tenant's interest in leases from being easily convertible into a safe security for a loan.†

SECT. 6.-Fixtures.

Fixtures are those adjuncts of the subject of the lease which a new tenant is entitled to consider as part of the commodity he has agreed to hire, and which, on the same principle, an outgoing tenant cannot remove, though they may have been erected at his own expense. There is no class of subjects of which it is more difficult to give a brief definition. They are classed as under:-" Whatever is requisite to render the premises, as such, entire and complete by being either inseparably attached, or so constructed and fitted as necessarily to establish the intention of being for perpetual use, is a fixture; while, whatever is calculated merely to furnish the premises, by being separable and designed to be separated, is not a fixture."3 The cases, however, in which the question has been tried, have been generally those between a landlord and an outgoing tenant, and the law has usually been guided, not so much towards any fixed physical definition, as to a practice which may prevent undue loss on either side. The tenant having spent money on articles which increase the value of the subject, the general aim has been, not to permit the landlord to make profit by his expenditure, on the one side; and on the other, not to allow the tenant to hurt the subject let to him by removing additions which, though unnecessary, when once made, cannot be removed without injuring the subject. In urban or agricultural leases, a building of any description erected by the tenant cannot be removed by him. The tenant is not bound to leave such an erection in good repair;

See Law of Bankruptcy, &c., p. 238.2 Ramsay v. Commercial Bank, 20th January 1842.-+ To remedy this defect a bill was brought in, in the session 1837-8, and again in the session 1838-9. It appears to have been subsequently abandoned.-3 H. on L. and T. i. 290.

but if the landlord objects to its continuance, the tenant is bound to remove it.1 While the edifice of a thrashing-mill is a fixture, it has been judicially admitted that the machinery is not so.2 Where racks, mangers, &c., had been put up temporarily in a cottage not regularly used as a stable, they were held not to be fixtures; but it appears that had the edifice been intended as a stable, the decision would have been different.3

Where premises are let for trading purposes, and the tenement may be less valuable than the adjuncts, a rule more favourable to the tenant has been established than in agricultural leases and those of dwelling-houses. In England, in such cases the established practice has been to consider vats, coppers, furnaces, engines, &c., called "tradefixtures," as moveable. "The inference to be drawn from the several cases is, that a tenant has an indisputable right to remove fixtures which he has annexed to the demised premises for the purpose of carrying on his trade, and that the benefit of the public may be regarded as the principal object of the law in bestowing this indulgence."4 În leases of houses, or ordinary urban tenements, the distinction is ruled to a great extent by local usage, subsidiarily to the general rule that what is part of the building is fixture, what is furniture is moveable. In some districts shrubs in gardens are fixtures; in others they are not so. It is held that hangings, chimney glasses, and pier glasses, although said to be as wainscot, being fixed with nails and screws to the freehold, and that there was no wainscot under them, are matters of ornament, and do not go with the house."

SECT. 7.-Meliorations.

In

195

Meliorations are those improvements of the property let on lease, which either party may stipulate for the performance of, or which must be executed in course of law without stipulation, during the currency of the lease. The tenant is bound, without stipulation, to leave all buildings, fences, &c., in the state in which he got them as to repair, but the landlord cannot increase the tenant's obligation in this re

Thomson v. Oliphant, 8th February 1822. Iv. Er. 372. B. on L. i. 243.- Glassel, &c. v. Howden, 22d February 1825.-3 Scott v. Ewart's Representatives, 1st December 1824. Amos and Ferard on Fixtures, 27. See also Gibbons on Fixtures, 22, et seq.-5 H. on L. and T. i. 301.See as to the difference between Heritable and Moveable Subjects with reference to other questions, above, p. 45.

spect by additions made during the currency of the lease. There is a particular exception, however, in the case of march-fences, which the tenant is obliged to keep in repair, although they should be erected during the currency of the lease. It is a general rule that whatever additions or improvements the tenant may make are held as made to suit his own purposes, and the landlord is not bound to remunerate him at the expiry of the lease, except on stipulation. If the addition is not a fixture, as above defined, the tenant may remove it. It would appear, as above, that the tenant may be compelled either to put it in repair, or to remove it. Destruction by fire, the hand of an enemy, or convulsions of the elements, releases the tenant from his obligation to keep in repair. For the damage done by an ordinary storm he has no such relief. It is difficult to draw the line between the two cases.2

In the case of houses, shops, &c., there are few decisions on the subject of meliorations. The landlord is held bound to keep the subject in proper condition, and if he fail to do so, the tenant may make necessary repairs, and claim remuneration for them at the end of the lease.3

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Stipulation. Where there is a stipulation as to meliorations, it is often a subject of question, 1st, Whether the works claimed as meliorations are more than ordinary management and keeping in repair; and, 2d, Whether the meliorations made agree with those stipulated for. Thus, an expensive and effective course of liming, although permanently beneficial, yet, when applied to land already under cultivation, is management and not melioration. But if moorland be rendered arable, and become a lasting source of benefit to the estate, melioration may be deemed to have been effected. If, however, there shall be no permanent advantage, the contrary will hold." It is a not unfrequent stipulation that the tenant shall be bound to uphold the houses, steading, fences, &c., and that the landlord shall be obliged to pay him any sum to the extent of which they may be more valuable at the termination of the lease than they were at the commencement. In such a case it was decided by the House of Lords, reversing the decision of the Court of Session, that the tenant "is entitled to meliorations for houses and biggings, in so far as the houses and biggings on the farm, at the date of the tack, are improved,

1 B. on L. i. 243. Iv. Er. 371. H. on L. and T. ii. 218.-2 B. on L. i. 239. H. on L. and T. ii. 218.- H. on L. and T. ii. 218.-— Ibid. ii. 236.