or others suitable to the farm built in lieu of the same, and better than the same, at the expiration of the tack; and that he is not entitled to meliorations for houses and biggings built of new, except as aforesaid." This decision having been applied to the specialties of the case by the Court of Session, after a proof, the difference in value was awarded where old buildings had been repaired or new ones substituted. Thus, in the case of the dwelling-house, the estimate of the original house being calculated at £150, and the value of the house left at the termination of the lease at £254, the difference was allowed.2 The meaning of the terms used in clauses of melioration will depend on the usage of the district. Where a lease in Aberdeenshire specified that the dwelling-house was to be entered at so much in the "lying inventory," or the landlord's general inventory, and "to be valued at his [the tenant's] removal," the court, on a proof, the result of which was that no district-practice as to such cases could be identified, allowed the tenant the difference in value.3 SECT. 8.- Various Methods in which Leases may be Terminated. A lease may be brought to a conclusion before the stipulated period by the mutual agreement of parties. It is then said to be renounced. The consent of the parties should be in writing. It cannot be proved by witnesses, but it would appear that it may be referred to oath. Renunciation may be implied by the tenant possessing on another lease of the same lands differing from the former in some material point, as rent, duration, &c. It is an essential of the presumed renunciation of the prior tack that the new one is valid and effectual.5 66 Leases sometimes contain a clause allowing some one, or either of the parties to resign at a certain stage of the lease on warning, the condition being fortified by formalities, as the presence of a notary-public and witnesses," and provision being made for the interest of the landlord by the farm being left in good condition, should the tenant be the person who takes advantage of the clause; and for the Graham v. Jollie, 29th June 1831, 5 W. and S. 280.- Same parties, 24th June 1834.- Gammell v. Andersons, 9th December 1836.- H. on L. and T. ii. 25, 26.5 Ibid. ii. 104, 105. interest of the tenant, should it be the landlord who does so.1 Irritancy.-A lease may be brought to a close by its being forfeited or irrited to the landlord through the conduct or circumstances of the tenant. Irritancies are legal or conventional. Legal Irritancy.-In ordinary leases if a tenant has run a full year's rent in arrear (the amount of a year's rent, made up either of the whole of one, or of parts of several years' rents), or if he desert his farm, and leave it unlaboured, the landlord may raise action before the sheriff, who may decern the tenant within a limited time to find caution for arrears, and for the rent of the five following years, or, if the lease is of shorter duration than five years, for its currency; failing in which the tenant is summarily decerned to remove.2 It was found that a tenant might suspend a decree of removing, he having in the mean time got decree against his landlord for damages, which placed him in the position of not being due the year's rent.3 The dubious clause as to deserting the ground has been generally interpreted favourably to tenants, and has been found to infer a real intentional desertion, or such desertion, if arising from accidental circumstances, as may have been really detrimental. Where two years' rent shall have been suffered to "run into a third," or lie in arrear, an irritancy may be declared before the sheriff, who, on finding it to have been incurred, decerns in a removing.5 A Conventional Irritancy is founded on the terms of the lease, and is generally more strictly interpreted than a legal irritancy. It is frequently stipulated that an irritancy shall take place "if one whole year's rent shall remain unpaid after the term of payment specified," or "if two years' rent shall be allowed to run into the third unpaid." The advantage which a landlord may have by a conventional irritancy of the same terms with the legal irritancies is, that it is not purgable at bar," or that the tenant cannot be reponed by fulfilling the conditions after the process against him has commenced, and before decree has been extracted for execution. There are various other conventional irritancies, such as non-residence, departure from the assigned method of management, the bankruptcy of the tenant, &c. Without 1 Jur. St. i. 677. H. on L. and T. 502.-2 A. S. 14th December 1756, § 5. R. L. ii. 545.-3 Graham v. Gordon, 16th June 1843.—1 R. L. ii. 546.-5 A. S. 1756, § 4.- H. on L. and T. ii. 136-142. such a clause bankruptcy does not affect the contract; the bankrupt must assign for behoof of his creditors if the lease is assignable, and if not, he may continue as tenant, and manage the farm for their behoof. SECT. 9.-Obligations to Remove. It is not unfrequent for the tenant to come under an obligation to remove, either as a stipulation in the lease, or by a separate agreement. It is an engagement which can apparently be proved by the oath of party, but, like a renunciation, not by the testimony of witnesses.2 The effect of this obligation is not to render unnecessary a process of removing, but simply to be a substitute for the warning. (See below, p. 301.) Where the obligation to remove has been engrossed in the lease, the landlord presents to the Court of Session a bill or petition accompanied by the lease, praying for letters of horning, containing a charge to remove in terms of the act of sederunt, 14th December 1756. Where a tenant without a written lease had intimated more than forty days before Whitsunday that he was to leave the farm, it was found that he might be removed without warning.3 Letters of horning are granted, the will or judicial command of which directs the proper officer, forty days before the Whitsunday of the year in which the lease is to terminate, to warn and charge the tenant personally, or at his dwellingplace, to flit and remove with his wife, bairns, &c., certifying that if he do not remove at the proper term, he will be liable to penalty as a violent possessor. On the arrival of the term the landlord produces his tack and horning, with the officer's execution to the sheriff, who, within six days after the term, grants warrant to the proper officer to go to the house of the tenant and turn out the inhabitants and furniture, and extinguish the fires.4 It may be a subject of question how far the procedure admitted by the late act, amending the form of diligence (1st and 2d Vict. c. 114), may be applicable to the enforcement of obligations to remove. The alteration which that act has made in cases of ordinary diligence for recovery of debts and enforcement of obligations, is considered elsewhere.* As, however, the new act only makes an alternative, leaving H. on L. and T. ii. 127, 537.- Iv. Er. 382.-3 Heddle v. Baikie, 16th January 1841.-A. S. 14th December 1756, § 1. R. L. ii. 541. H. on L. and T. ii. 33, 34.-* See below, Part XIV. Chap. V. parties to follow the old form in cases of difficulty, the lawagent who may doubt how far it is applicable, will have it in his choice to adopt the accustomed form. The special provision in the act of sederunt does not deprive the landlord of his right at common law to raise an action on the obligation to remove, which he may pursue in the Sheriff Court,-where the obligation to remove is separate from the lease, indeed, he can only employ it as a ground of action, as it cannot be a foundation for a charge of horning.1 SECT. 10. Judicial Removings. The process of judicial removal, now in almost universal operation, was introduced by the above-mentioned act of sederunt of 1756. It did not abolish the previous practice of removings under the statute 1555, c. 39; but that process requiring many petty formalities, any imperfection in which invalidated the proceeding, it has fallen into general desuetude. By the ancient form the landlord grants a precept of warning, which is executed against the tenant personally or at his dwelling-place, and at the ground of the lands; and must be affixed to the church-door, and read to the people attending service. This warning must be executed forty days before the Whitsunday of the year in which the lease is to expire; and if the lease should terminate at any other term than Whitsunday, the warning must be made forty days previous to the Whitsunday preceding the term of removal. If the tenant do not obey, the landlord raises action against him before the Court of Session or the Sheriff, concluding that the tenant shall be decerned to remove. If the action be before the Court of Session, the decree will be made effectual by a Charge and Letters of Ejection. If it be in the Sheriff Court, the decree will be put in force without delay, by a Precept of Ejection.2 Under the Act of Sederent of 1756, the landlord raises an action by summons before the Sheriff, which must be called in court forty free days before the Whitsunday at which the lease expires, or if it expires at a different term, before the Whitsunday previous to that term. This action comes Stevensons v. Baird, 23d June 1821. c. 39. E. ii. 6, 45. R. L. ii. 529, et seq. H. on L. and T. ii. 37.- 1555, in place of the warning of the old statute, and the Sheriff having given decree in the action, followed by a decree of ejection, the removal of the tenant is completed as in the other cases.1 Summary.-Persons who have been tenants, but whose leases have expired, are entitled to warning or action of removing, but not so those who are merely accidentally on the premises of which they have not been tenants. So the heir of a liferent tenant may be removed summarily, immediately on the death of the liferenter, though between terms.2 But if the lands have been sublet, warning must be given.3 The tenant of a manse or glebe may be removed on the incumbent's death. By a late act summary removings may be brought before the Sheriff, in the case of houses or lands let for less than a year at a rent not exceeding the rate of £30 per annum. The tenant is cited to appear, decree is given in his absence if he do not, and if he have any defence, it can only be pleaded, in such case, on his paying expenses.5 Burgal. The removings from tenements within burgh are generally termed summary, because the act 1555, and act of sederunt 1756, do not apply to them, and the formality, if any, is chiefly regulated by the custom of the burgh. It is necessary that there should be warning, verbal or written, and (it would appear) this warning ought to be given forty days before the term of removal. It is customary in some burghs for a burgh-officer, forty days previously to the term, to warn the tenant, and mark the door with chalk. If the tenant do not remove, a complaint or summons of removing must be raised against him before the magistrates. Upon the decree a charge is sometimes given, and thereafter a warrant of ejectment, but the procedure appears in general to be very irregular.6 The rules as to solemn warning do not apply to country houses without land attached to them, nor does it appear that formal warning of any sort is requisite, if timely notice be given. Small tenements with patches of ground are in the same position, though the line is not precisely drawn ; formal warning was found unnecessary where there was a garden less than a quarter of an acre, and the rent was £5.7 1A. S. 14th December 1756, § 2. R. L. ii. 542. 79.- H. on L. and T. ii. 82-84.-3 Ibid. ii. 63, 64.— 2 Vict. c. 119, §§ 8, 9.-6 R. L. ii. 551, et seq. H. on L. - Chirnside v. Park, 8th March, 1843. H. on L. and T. ii. Ibid. ii. 84.- 1 & and T. ii. 86, et seq. |