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Nevertheless, this work is expensive, so in order to keep providing this resource, we liave taken steps to prevent abuse by commercial parties, including placing technical restrictions on automated querying. IV* The obligation on the Tenant to pay the &mi, : 175 Considerations in regard to the term of payment, as affecting the landlord's succession ; -the case of a liferenter or heir of entail, when the rent has been anticipated, considered; effects pro* duced on th^ hypothec, by anticipating or postponing the conventional to the legal ierms ; particulars propter for the consideration of both parties ; irritancy from the tenant's falling in arrear,. The use and enjoyment of the farm, ,.., 329 Thie question, whether the tenant can exclude the landlord from hunting on the farm....... quodqae primo ab Arew Jio totoratani MB«M«l Hfe*a«a* • Stair, B. 21 ^e bondsmen as its hms^ represents the progress of the lease as the natural result of a recovery from that state. found to be null, at the i Hst Aiice of the huslxuid'i beit, * because it contained no tack-duty:** * An^ oth^, of a lease in which there was no yearly rent, and which was allowed to subsist, until re^ duced by way of action, merely in consideration of the landlord's havii^ acknowledged that he had received a large sum for the lease from the tacks^ man:^*--^Perhaps, in a question with the grantor^ or his heirs, this lease ought to hate been effec* tudl ; but the decision tends, at least, to show the rule of law, that a lease, in order to be effectual^ must have a stipulated yearly rent.

We encourage the use of public domain materials for these purposes and may be able to help. Nommati&n of an Helr^ ; 125 The question how far the tenant, where assignees aiid sub-tenants are excluded, can regulate bis succession by a destination^ or appoint a mana- ger for his heirs ; or whether such a power be placed in those acting for the heirs 6( the tenant, ...i ,,. CHAR It ^F TH5 LEASE AS AFFECTJTD BY STATUTE, OF THE SCOTTISH AND ENGLISH LEASE. Erskine is dear does not fall under the protection of the statute; viz. Grange-Durham v, his Brother's Relict, 7ih June 1575.' Mor.

+ Maintain attribution Tht Goog Xt "watermark" you see on each file is essential for informing people about this project and helping them find additional materials through Google Book Search. + Keep it legal Whatever your use, remember that you are responsible for ensuring that what you are doing is legal. In Ihe preceding chapter I have endeavoured to give some notion of the ancient state of the lease: We are now to proceed to a period of its history, in whidi it is affected by regulations still in force, and in this view, we are led to com- pare the. 29 But in a Botber point, the bp^nce turned in fa- vour of tha Secditish tenaiit ; for a form of proce* ^ure faadlaieea Q permitted in th^ English courts; de- ^tiuetive, in one reject, of th^ interests ^f the tenant* to whieh there was nothing analogona in our law. a lease of rents : Where» for example, an estate is who Hy set to tenants, and the proprietor gives to a third par- ty a right to draw the rents from the respective tenants, for a rent payable by this interposed in- dividual, such a lease is not protected against purchasers ; because, *^ such tacksman neither la- ** hours the ground, nor is indeed tenant of any *^ land; but barely farmer of the rents and profits ^ payable by the tenants on the estate."* There are other reasons why such a right ought not to affect a purchaser. annexumt n entitled to die piotection of the statute.

Do not assume that just because we believe a book is in the public domain for users in the United States, that the work is also in the public domain for users in other countries. uses to which the deed has been applied in this coyntry, with those which it has served in England. The lease in Scotland has been, almost exelu* sivel j» confined to the object of securing the rights of landlord and tenant; whilst in England, it ap- pears to have been applied to the constitution of mortgages and family settlements. th6 termor, (tliat is, he who is entitled to the tex A of yean) was protect- ed against fictitioms recoyerits, and his interest ^* rendered secure and permanent, long terms be- ^* gan to be more frequent than before ; and were afterwards extensively introduced, being found extremely convenient for family settlements and ** mortgages ; continuing subject, however, to the *^ same rules of succession, and with the same infe- " riority to freehold, as when they were little bet* *^ ter than tenancies at the wi B of the landlord." * It is not difficult to see how this has happened. This form is termed a ^ common " reeovsnry;" it is a mere fiction of law, by whieh- a person, pretending to have a preferable title to the estate, enters a ehiim ; and the proprie- tor, by fraud and oo En^ioi^ making no defence, the claimant recovers the land, by sentmoe of law, on a title supposed to be preferable to that of the pro- prietor. It is a right which may be concealed, even where possession has followed on it ; a thing which cannot happen in a lease entitled to the protection of the statute. SL In oidter tbat tlie lease may enjoy liie Iiene* it of Ae act, it must be in writing.

Whether a book is still in copyright varies from country to country, and we can't offer guidance on whether any specific use of any specific book is allowed. In England, the lease was held to be a Chattel interest, which went to the executor ; but, at the same time, it gave to the tenant a claim for im-» plement against the granter, and all deriving right from him ; of course, it protected the tenant against a purchaser. The effect of this was, to vacate all grants whidi the proprietor might have made, and, of ur8e,an hisleases fel L In these actions i^recove- Ty» jbhe tenant was not allowed to appear ; and his interest, although effectual against a purchaser, and ^^Igainst all deriving right from his landlord, was not protected against aperson who, in law, was held to possess under a title {Nreferahle to the landlord's, and who, in no diape» could be supposed to repre- $e»t hirn^ or be bound to implement his obliga- tions. Such a conveyance, indeed, can scarcely be con- sidered as of the nature of ^ lease; it is rather a sort of general assignation to the rents, which could not prejudice a singular successor, even al- though the real leases upon the estate, upon which such a right must obviously depend, were to be held effectual. This vises firmn the joatore of the right, which is s conttaet affinsttng land; and no light aflfeoting laud can be oonstitiited witiu Kit writnigt die pardes, where it ia wanting, being endded to resile. The payment of rent is essential to the nature of a leasje; and, aceonlingly, there are many cases, where: no xent having been stipulated, it was questioned, whether it could be held that there was a lease.

Google This is a digital copy of a book that was preserved for generations on Hbrary shelves before it was carefully scanned by Google as part of a project to make the world's books discoverable online. The landlord's right of hypothec, 275 1st, Over the crop,.« 277 for what year's rent the crop can be hypothe- cated ; it may be hypothecated for the rent - , of the year of which it is the crop ; can it be hypothecated for the rent of the preced- ing year ? 288 The extent of this right, and the rents secured by it ; in what manner it is called into ac- tivity, and within what period this must be SX -CONTENTS. The proceedings necessarj for rendering the right of hypothec effectual, 480 1st, Of the latidlord^s right of retention. Actions competent to the creditors of the tenant from the exercise of the landlord's powers, ib» 2d, Of the landlord's right of recovering the subject of the hypothec when carried off, ..••••• ^^ 1. f To this the proprietor trusted for the per* formance^ of the obligation on the tcmant,, and * See Mu RATo&i^ Dissert, ilmo.-— Bio NOKiufl's Notes on Marcttlftu H-find Do CAifos. and by admitting any rent, however inadequate, to be a sufficient compliance with the act, it may seem that a great hardship is imposed upon him.

It has survived long enough for the copyright to expire and the book to enter the public domain. The Testing Clause, ...., 214 Examples of th^ usual forms of this clause; parts of which it consists; which of these are statu. obscurity arising from the man- ner in which the conventional terms are fix-^ ed ; can the crop be hypothecated for the rent of the year following ? Pagt B, done; the effect produced on this right bj the carrying off of the stocking within the three months ; sequestration . Form of the assignation, 339 1st, Of the granter^s title, 337 2d, The narrative of the assignation, 341 3d, Of the dispositive clause, A. The nature of the title in the person of the Heir of the Tenant, 399 Possession transfers the full right in the lease to. on the conditions of the Lease, or on Statute, • 414 Summons of declarator of irritancy, A ib, . t These reddenda bear a stnmg Nsem Uanoe tn tibc toddenda of the dwrtev of wycb Muratori lakes nolioe. This evil, however, is more than counterbalanced by thosd which would result from a contrary rule.

A public domain book is one that was never subject to copyright or whose legal copyright term has expired. Clause of Registration, ^ 212 Short history of this clause ; the effect produced by it, ib. a distinction, in this case, between hypothecation and reten- tion ; the effect of the landlord's right of retention on the diligence used by the credi- tors of the tenant; 1. required to render this hypothec special; but the cre- ditor of the tenant cannot carry off the cat- tle from the landlord by diligence, more than he can carry off the crop by diligence, S88 3d, Over the furniture belonging to the tenant, S92 Doubts as to the existence of such a hypothec ; the landlord's right to retain the farnilure recognised without fixing, whether it was a right of hypothec op of retention that he pos- sessed, , ib. The question considered, whether the original tenant is relieved by the assignation, the assignee coming into bis place, as in the transference of a feu, , • 342 4th, Clause of warrandice, 344 6th, Clause of delivery, 346 3. Of the case where the tenant assigns ; where the tenant subsets, and is not in th^ natural possession of the farm, and then assigns ; where the right is given by the sub^tenant; caution against trusting to an intimation to the principal tenant, or to the landlord, ib. The role of succession to the rents, 366 Consideration of the question, by what rule the rents due to aiandlord divide between his heir and executor; in a corn farm ; in a grass farm ; rents of houses ; where . the heir of the tenant, without service ; case of a lease given to the tenant and his heir, and for a certain number of years after the ' death of the heir; whether any distinction is made between heir^s right of possession. Pages, and his right of conveying the lease; the heir^s title to pursue a redaction of a convey- ance of the lease to his prejudice, 399 CHAPTER VIII. Actions for enforcing the conditions in the Lease, or supporting the rights of the Landlord, 407 1. 411 D^ence against this action, 412 Action for cutting wood, proceeding on the terms of the lease, ^ 413 Sect. AAer renu Bldli^ that in f^dal grants^ a small aasaal tribute is iaqposed in efldntoe of the vassalage, as a pair of spun, a hawk, or hawk^bell, le |io« ceeds in these words : ^' Kon disaimiles ftierasit interdinn eemns ^* Emphyteumbos impositi^ t M quad al^oid l^p&di quandoqnie ia iis '^ pnescribendis immiscebatur;^ he then gi TSa hislancea 0^ tibese reddeiida annis *^ singulis sftlto dfe ad mensam Abbatii Emphytcato aooedsfcat, oqp- ^^ ^em e ftvi Fenti af«a traotam et doaliii potmis indnsu A ds Ar* '^ ens qnem exinde detegebat^ ita ut demvm tanas asoenderee ; " ^uo pa«eto ille a Mbat f^euhim ipram vspanmi, et satis soo '* nranere flimitus." Another is mentioned in tisese wwrds, ** T^iina ANCIENT STATE (XT THE LEASE.

Whether a book is in the public domain may vary country to country. Hypothec over furniture in urban tenements, Note^i 294 4th, Effect of hypothec where the lands are subset, 395 Where the sub-tenant has been approved of by the landlord ; a bona Jide payment by 9uch subtenant effectual; the rule where the sub-tenant has not been received,*... Case of cattle taken into graze, « 302 5th, The landlord's power in bringing back the hypothecated goods, r ib. Crises where the subject let is actually destroy- ed; cases :i! Of the means by which the tenant's in- tebest in the lease is tbansferred, 335 Sect. Recapitulation of what relates to the form of intimating the assignation, 354 3. the rents are fore-mailed ; where they are after- mailed, ib, 2. The Tenants succession^ 390 The rules of succession to the lease; a table of th^ lines of succession; right of collation; rule of division between the heir and executor of the tenant ; case where, by the terras of the lease, therents have been anticipated,. Of the actions abisikg on the lease, 404 Arrangement of the subject treated of in this chap- ter,.. Letters of homing for, enforcing implement of the conditions of the lease, t6. Action to force the tenant to possess, stock, and labour the farm, A. Action on the tenant's having deserted his possession, 409 3. 9 i&ere are still preserved ancient decrees^ by which it appears tliat the Judges reduced the r^ht ef the tenant where he appeazed to have wasted tha gtoimd, or to have infringed the conditions of the right.* That the form of the lease was known in an- cient Ganl^ while a Roman provmo^ will not be. That this contract was retained by the Church Comrts^ will also be admitted; and it is d, id o Biu ineiimbi^ Ut ad cob arborem Mqalem t de£srat (noi majo appellamus, in quo reliquias adhuc oendmus Geleberrime ** apud Etfanicos festivitatls coi majtmitf nomen) non poncia tenua ^ omataui^ atncxia tribsi picb finementia. which, firom favour to the poor labourers of the ground, secured them in the possession of then: farms^ during the period of their leases.

Public domain books are our gateways to the past, representing a wealth of history, culture and knowledge that's often difficult to discover. Obligatw Tu relative to the management of the Farmj 195 The conditions necessary for the security of the landlord; Lord Kaims^ plan recommended by Dr. Obligation to remove^ , 205 The effect of the Act of Sederunt on this obligaw tion; effect of a double rent; of making the lease endure for a year longer than the period intended, and fixing a high rent for the last year, with a power to the tenant to give up that yearns possession; comparison of these plans ; power given to the incoming tenant ta remove the former tenant, by assigning to him the clau^ in the old lease, i5« Sect. Mutual obligations on the Parties to fulfil the conditions of the Lease to each other^ 310 The effect of this clause ; it resolves into a claim of damage, in which the actual damage must be proved, ,. Where the hypothecated goods have been car- ried off by the private act of the party; within what time the goods may be brought back brcm manu; the measures neces^ry where they have been carried off by the le- gal diligence of the tenant's creditors,... 303 6th; The rule of pr'eference between the land- lord's hypothec and other diligence,..,.... Recapitulation of the subject of hypothec, 315 Rights acquired by the tenant,, t 319 1. rhere it is not 6asy to ascertain, whether it be the siriyject, or the produce of , the subject, that is destroyed ; the case of a salmon-fishing, or of a coaliery ; has the tenant, whose improvements have fallen by the destruction of the subject, any claim of recoui'se against the proprietor, ib. Competition of the assignation, with other con- veyances, ;.... Of the Sub Jease, : 356 The form of the sub-lease ; the subject of it ; the granter ; the manner of completing the sub- lease ; the rule in regard to the payment of rent hy a snb-tenant ; with the sub-tenant's power of removing possessors, 357 CONTENTS. Pages, The rules oit succession to the interests of ^ landlord and tenant, with an explanation OF THE NATURE OF THE TITLE REOUIRED IN THE PERSON OF THE HEIR OF THE TENANT, 365 Sect. The rule of succession, where the lands have been in the natural possession of the landlord, 383 The case of a crop, partly sown and partly un- sown, with the claim upon the executors for rent; the case of sown grass, to whom it belongs, ib. Si istft abonant Em« '^ p Uyteuto a bemeflcti poaiefisione statuo decident Quave opus est '' terrain in apnco positam diligenter excolere, eamque adbibere " curam^ ne umqnam eo die spies tridti desiderentor.** In thia lliere seems tobaye besa some ol^ect, and the attention d P the te* nant would aatunlly be turned to the culti Tation of his fields. 20 ANCIENT STATE 09 THE CEASE; of a purchaser; and the lease being a meri^ personal obligation, conld not compete with the* purchaser's real right constituted by diarter and sasine* It was to put the two rights on the same footing that sasine was taken on the lease. M'Kenzie, in his obser-^ vations on the act, says, ^^ The reason they ** used sasine before the aet,.

Marks, notations and other maiginalia present in the original volume will appear in this file - a reminder of this book's long journey from the publisher to a library and finally to you. Anderson; the means of enforcing the plan of management; additional rents and penal- ties considered; recent eases, ib. 305 Competition with the prerogative process of the Crown, ^.... 2d, Where the produce of the subject only has been destroyed, 327 The difference where the loss arises before, or after the separation of the crop, ib. r 334 The effect of tn obligation to remove before the lexpiration pf the lease, t^. 355 With voluntary conveyances ; with diligence ; adjudications; arrestments, ..• ib. But I shall add one more^ as a strange instance of the whim and Tanity of thoie ttme& *^ Ruralem quamdam conlhitemita tem nesdo quia ** saoerdoa heredem f Sd institoit, ea conditioile a4iecta, ut efl%iem '' auem in tabula pictam perpetuo ibi custodirent^ Annis singulis recurente stato die, qms est sigil Utim^ nomine et cognomine ex« press Of aodales eos in aula congregates interrogaie, ad adsint. When* liiis practice was first introduced, the device cer- tainly must have been sustained ; but although the expense, which would thus be incurred, might in certain cases be submitted to, the custom could not have become general, because the profits of s(n ordinary farm could not in those times have bom the expense of that xiethod of constituting, transmitting, and extinguidiing the right. was to make the tack ^^ real, and to defend against singular successors; ^ this was no more used after the act of Parlia- ^ ment, which makes the tack a real right." This brii^ the history of the lease down to the period at which that contract begins to be recog- nised by the authorities of our law.

Usage guidelines Google is proud to partner with libraries to digitize public domain materials and make them widely accessible. 307 In competition with farm servants' claim for wages, Notesi,,.. 3d, Where the lands have not been produc- tive, - ib. In regard to the purchaser of the estate, 333 The effect of stipulating a less rent in a sepa- rate deed; or by a verbal agreement, \ ib. In« terrqgandufl quoque est idem Presbyter, tamdiu postremo &t» ''fimetus. quai " audiens alter, in hec verba erumpit ; quare non adest 9 En U* *' lum : Inspiciie ; et pictam in tabelk ^us fiudem ostendit." * I give in the Appendix, an example of a decree of this kind. In theses observations, I have endeavouted to give such a notiixi of the ancient lease, as the very imperfect state of the records, and the slender materials we possess tor such a history, will per* mit.

Public domain books belong to the public and we are merely their custodians. Obligations relative to the Houses an thefarm^ 166 The consequence of the tenant^s enlarging or im- proving the houses ; methods of estimating \kt subjects, for asc^taining their value at the commencement and expiration of the lease; ordinary repairs only included under the obli- gation to uphold the houses on the farm; cases of destruction of houses by accidental fire^ ib. The extent of that loss which will have the effect of freeing the tenant from rent; where the loss affects part qf the farm only,, ^2S 2. f Majoma festnm qnod stimaiis inipentis, conviviis et 8pectacttli% iwque ind Ccoris ac procacis Hceotiaa celebrabattir. — What has been said authorises us to dissent from the hypothesis, which, assuming the slavery of ;&NCI£NT STATE OF THE LEASE.

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