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however, was so fixed in favour of the landlord's right to follow (droit de suite); and a considerable desire for a change of the law in this respect seems to have been felt by certain parties for some years after. That desire, however, was not so strong as to produce any effect. Lord Brougham, who was at first disposed to reverse the judgment of the Court of Session, and expressed himself in his opinion very strongly as to the inexpediency of a doctrine “so greatly tending to fetter commerce,”—prepared a bill with the view of protecting the interests of bona fide purchasers, which was withdrawn because it did not receive adequate support in Scotland. This was the case with a bill brought into the House of Lords by Lord Belhaven in 1834 ; with one proposed shortly after in the House of Commons by Mr. Gillon, M.P. for Linlithgowshire, and also with one introduced in 1836 by Mr. Chalmers, M.P. for Montrose. Again, in 1850, Lord Brougham introduced a bill " for the removal of obstructions in the corn trade” in Scotland. This bill called forth an adverse report from the Society of Writers to the Signet, and it was withdrawn. The same fate befell a subsequent bill introduced by the same indefatigable reformer. These efforts seem to have been directed merely to remedy the inconveniences and injustice arising from the landlord's right to recover in the hands of a bona fide purchaser the crop of a year for which the rent is unpaid, or its price. Yet it cannot be said that they proved altogether fruitless; for, in the recent inquiry, the opinions of all classes of witnesses in favour of abolishing this part of the law were almost unanimous.*
The case of Barns v. Allan (June 1, 1864, 2 Macph. 1119), in which it was held that grain could be followed even when converted into meal, and that a sale in a meal-dealer's shop is not a sale in open market, inaugurated (as our readers are aware), the latest movement against the landlord's hypothec. This movement resulted in the report and evidence now before us. The recent controversy involves far larger issues than those which preceded it, for questions are raised not merely as to the obstruction to the corn trade occasioned by the right to follow grain, but also as to the justice and expediency of the landlord's privilege in general. As there are no longer (with the exceptions we have indicated) any who oppose the abrogation of the rule estab
Only Mr. Hare, Mr. Melville, W.S., Colonel Graham, and Colonel MʻInroy, expressed opinions in favour of retaining it.
lished by Dalhousie v. Dunlop, and Barns v. Allan, we propose to confine our remarks to the more general aspects of the question. And we must premise, that the inquiry has been conducted, upon the whole, in a satisfactory manner, and that the report itself is distinguished for terseness and perspicuity beyond most other productions of the same kind, On the whole, the Commissioners are justified in their opinion, that “the information laid before them has been very complete, and is exhaustive of the subject.
It may be said, that those who seek the removal or modification of an existing institution such as the landlords' hypothec, must take the burden of proving that it is either unjust or inexpedient. We doubt whether this rule is in all cases correct. May it not be said with equal truth, that this preference is opposed, prima facie, to the principles of commercial law and the tendency of all recent legislation, that such privileges have of late been giving way before new principles of political economy, and that the presumption which is now, established in favour of the freedom of commercial contracts, and against all class privileges, lays the onus on the defenders of the hypothec? On the question of free-trade this is not perhaps the place to speak; but we may be allowed to examine the landlord's right of hypothec as it stands in connection with the general policy of the law.
The Commissioners say, “there can be no doubt that the law of Scotland on this subject is derived from the law of Rome,” (Rep. p. vii). It is right to inquire a little more narrowly than they have done how this portion of the law of Rome was transferred into our system. The doctrine of the civil law relating to tacit or legal hypothecs has not been regarded as the happiest of its bequests to modern jurisprudence. In most European countries, even in those where that system has been most reverently cherished, modern legislation has left little of the Roman law of Hypothecæ except the name. The older law of Germany, and other continental laws, tended in this direction, by excluding conventional hypothecs over corporeal moveables, and allowing such securities to be constituted, as in our law, only by actual tradition (Faustpfand, Pignus *); while the feudal notions of
* “Pignus appellatum est a pugno, quia res quae pignori dantur, manu traduntur.” Gaius in Dig. 50, 16, 238, s. 2 (de verb sig.) Of course we do not adopt the etymology of Gaius, though that of the German equivalent of Pignus might seem to lend it some countenance.
land tenure have necessarily altered the conception and details of the system of mortgages (Hypotheken). A German would now define Hypothek as that right of pledge which a creditor obtains in an immoveable thing belonging to his debtor by an entry in a public register, thus altogether dissociating the word from its original connection with chattels. Our law very early exhibited a repugnance to conventional hypothecation of moveables (Balfour's Practicks, p. 194); and Lord Stair, after referring to the numerous tacit hypothecs of the Roman law, says—"But our custom bath taken away express hypothecations of the debtor's goods, without delivery, and of the tacit legal hypothecations hath only allowed a few, allowing ordinarily parties to be preferred according to the priority of their legal diligence, that commerce may be the more sure, and every one may more easily know his condition with whom he contracts.” (Stair i. 13, 14; comp. iv. 25, 1). A comparison of our tacit hypothecs with the list of real and spurious tacit hypothecs given in writers on Roman law, sufficiently shows the tendency to discourage such preferences, except in a few cases which the law has considered as peculiarly entitled to favour. Reference may be made to the cases of Hamilton v. Wood. 1788, M. 6269, Hailes 1039, aff. 3 Pat. 148; Wood & Co. v. Weir's Crs., 1 Bell's Com. 527, n. 3, as to hypothec on ships for repairs in home ports; Maxwell v. Wardroper, 1726, Mor. 6266, as to hypothecs on ships for cost of building; Cushney v. Christie, 1676. Mor. 6237, and Muirhead v. Drummond, 1792, 2 Bell's Com. 28, as to the hypothec for the price over goods sold; Maclellan's Crs. v. Burns, 1735, Mor. 6240, Johnston v. Warden, 1778, 5 B.S. 478, as to hypothec of workmen over a house for repairs executed on it, &c.
There is a considerable analogy between the landlord's hypothec and the maritime hypothecs, both tacit and conventional —these are derived from the general law-merchant, and exist only in favour of those without whose aid the ship could not have accomplished its voyage, or even been in a condition to put to sea and earn freight. The landlord's hypothec is in favour of him without whose consent the crop could never have been sown, the fruits of which it is sought by the opponents of the law to make available for the general creditors of the farmer. The term writer's hypothec, is a mere misnomer as regards the claim found on the possession of title-deeds, which is a mere right of retention. The law-agent's hypothec, meaning thereby
the security which he has over the expenses found due to his client in a litigation which he has himself conducted, is a peculiar and anomalous right over a fund called into existence by the agent's own exertions. This can afford no illustration on either side of the present argument. The landlord's right of hypothec seems to have been first firmly established on its present footing by judicial decisions in the early part of the seventeenth century, as a surrogate for that absolute property of “the master of the
ground" in the fruits, which was then gradually becoming a mere theory. Nothing in the history of Scotland is more worthy of attention than the very slow process by which tenants were emancipated first from actual bondage, and then from entire subserviency to the landlord, and dependence on his favour. For the history of the first stages of this process few materials remain ; but its various steps are sketched with sufficient probability by Lord Kames, both in his Law Tracts (Tr. iv. p. 162, foll., 4th edit,) and Elucidations (Art. 10., p. 70, edit. 1800). At first, and even after the system of cultivation by bondsmen had ceased, the landlord seems to have had every right of a proprietor in the fruits of the ground. Each successive step in the progress of improvement lessened this right, and to a corresponding extent conferred a right of property or quasi property on the cultivator. Yet, even after the statutes of 1449 and 1469, which, by making his right real, constituted the tenant's charter, his property in the fruits was far from being exclusive or absolute. Even Erskine, on the principle of the Roman law, says, that all growing fruits belong truly to the proprietor of the ground, and become the tenant's only by reaping; and for many years, as in England to this day, the law of distress was the natural consequence of the landlord's property in the fruits to the extent of his tackduty. It was probably growing partiality for the civil law, and the endeavour after what was considered a more learned, or a
* Mr Dalziel's argument in favour of the landlord's hypothec from the analogy of mercantile liens, or rights of retention (Evid. p. 228) is altogether irrelevant. There seems to be no such analogy. The policy of the law is summed up in the maxim, that possession infers property in moveables (Bell's Com. ii. 22, &c.) Hypothecs are exceptions to that principle, or limitations or infringements of it; while lien is an extension of it. Retention is a right in security over a moveable which “depends on possession, and expires with the loss of it.” (Ibid.) Hypothec is a right in security over a movable which, contrary to principle, is permitted without possession, The one is just the reverse of the other. The one is introduced for the convenience of commerce; the other is, in the ordinary case, proscribed as unfavourable to com
more philosophical expression of the legal institution, which caused the development of the old law of distress into the landlord's hypothec and sequestration.
Various causes have been assigned for the retension in our early law of the landlord's claim upon the fruits beyond what is easily reconcilable with the exercise of the rights which even then an occupier was held to possess. But the necessity of providing the landlord with a stringent and effectual security for his rent, is plainly seen in an institution, of which the name at least survives in our books, and which, we cannot but think, was one of the most powerful motives to the judicial construction of the hypothec to which we have referred. For centuries after tenants became freemen, their condition was so depressed, the capital at their command was so scanty, that few could supply the seed, cattle, and implements necessary for the cultivation of the ground. This the landlord did by way of steelbow; a contract which put tenants in a position similar to that of métayers, but with this difference, that a fixed rent was often paid for the use of the steelbow goods, instead of a fixed proportion of the produce. It was not only natural, but most just and expedient in the state of society in which this custom prevailed, that very ample security should be provided in favour of the "master;" and indeed we cannot but consider its existence a very sufficient warrant for the introduction or continuance of the landlord's hypothec. The contract of steelbow was somewhat peculiar, and lawyers used to have difficulty in deciding whether it was a species of mutuum (Ersk. iii. ], 18) or a location,
a location. Neither was it fixed without hesitation that the steelbow goods became the tenant's property during the lease, nor could it have been so settled but for the hypothec by which the owner was secured (Ersk. l.v., Bankt. i. 12, 2, Mor. Dict. voce Steilbow). Indeed, the property of the tenant was subject to limitations other than the hypothec; for it was found very early that steelbow goods fell under the master's single escheat (Boyd y. Russel, 1609, Mor. 5386) and went to the donatar, and not to the executors of the heritor, though he died before the ish of the tack (Lawson v. L. Boghall, 1628, Mor. 14778). So late as 1764 it was held, though with much division of opinion,* that steelbow.could not be affected by the
* Lord Kames, contending that it was let in assedation as much as the lands, and could not bat be the landlord's property, and others thinking that it was the property of the tenant, who had the free use and power of disposing of it.
VOL. X. NO. CXI.-MARCH 1866.