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that which the statute in practice has received." (Lord Rutherfurd, in Cullen v. Smeal, July 12, 1853.) "Writ or

oath of his party" requires the oath of the actual debtor, and excludes that of, e.g., his business manager. (Bertram and Co., 1874, 2 R. 255.)

1294. [In the case of a wife's debts, the constitution and resting owing of debts incurred by her before marriage may both be referred to the husband's oath. But as to those incurred by her after marriage, a judicial opinion has been expressed, that, while the constitution may competently be referred to the wife's oath, the resting owing must be referred to the husband's. (Mitchells, 1882, 10 R. 378.)]

1295. Numerous cases of the triennial prescription of shop accounts occur every day in the Small Debt Courts; and it is for the judge to say whether the statement made by the defender, which is seldom directly either negative or affirmative, does or does not amount to an admission of resting owing. If his statement be simply that he remembers nothing of the special debt in question, it does not amount to an admission of resting owing, and consequently will not support the claim. If he add that his habit is to settle such debts at the time, the statement will be still more clearly negative; but it does not follow that an admission of a contrary habit will suffice as a proof of resting owing: for the meaning of the rule is, that after the expiry of the three years the tradesman shall not only raise a presumption, but shall positively prove the subsistence of the debt, either out of the mouth or by the handwriting of the defender.

1296. A previous statute of the same year, 1579, c. 81, had applied the same prescription to actions of spoilzie and ejectment; and by c. 82 it is extended to actions of removing, which are ordained to be pursued within three years after the warning, otherwise a new warning must be given.

1297. By 1707, c. 6, actions for wrongous imprisonment

prescribe after three years, computed from the last day of imprisonment.

1298. By 7 Will. III. c. 3, sec. 5, high treason prescribes unless a true bill be found by a grand jury within three years. This statute applies to the three kingdoms.

1299. By 1 and 2 Vict. c. 114, sec. 22, it is provided that arrestments shall prescribe in three years instead of five; and that arrestments which shall be used upon a future or contingent debt, shall prescribe in three years from the time when the debt shall become due.

CHAPTER V.

OF THE CONTRACT OF LETTING AND HIRING.

1300. Location, or letting and hiring, is a contract between the proprietor of a subject or lessor, and the hirer, tenant, or lessee; whereby the former conveys to the latter a right to the temporary possession of the subject, and its fruits and profits, for a certain rent or periodical payment in money, grain, or services. (Stair, i. 15. 1; Ersk. iii. 3. 14; Bell's Prin. 133; 1 Bell's Com. 5th ed. 255.)

1301. The principles applicable to the contract of sale are, in general, applicable also to the contract of letting, which is in reality a sale of the temporary use of a certain subject. (Stair, ib.; Ersk. ib.; Bell's Prin. ib.)

1302. When the subject is land, more especially if it be let for a considerable time, the contract is called a lease or tack ; when it is a house or shop, for the ordinary period of one year, it is commonly called an agreement; and when services, an engagement. The latter branch of the subject has already been treated of under the head of Master and Servant.

OF THE AGRICULTURAL LEASE.

1303. [The recent Agricultural Holdings Act, 1883 (46 and 47 Vict. c. 62), whose provisions, so far as coming within the scope of this work, are considered in their appropriate places in the following sections, applies to any holding that is "either wholly agricultural or wholly pastoral, or in part agricultural, and as to the residue pastoral, or in whole or in part cultivated as a market garden, or to any holding let to the tenant during his continuance in any office, appointment, or employment of the landlord" (sec. 35). The landlord may himself be a tenant, and the tenant a sub-tenant (sec. 42). It came into force on 1st January 1884.]

1304. "The writ requisite to constitute a tack," says Lord Stair, "requireth not many solemnities; but if the thing set, the parties, the rent, and the time be clear, the tack will be valid." (Book ii. tit. ix. sec. 5.) Such are still the essentials of all leases.

1305. Verbal Lease.-A lease of land cannot be proved by ordinary parole evidence if for more than one year, and a verbal lease entered on for a longer period will not be effectual even for that period. But verbal leases for terms of years have been sustained to the extent of rei interventus following on them. A verbal lease, in the absence of rei interventus, may be proved by the writ or oath of the party calling it in question. (Stair, ii. 9. 4, and More's Notes, ccxliv.; Ersk. ii. 6. 30; Bell's Prin. 1187 et seq.; Hunter, Landlord and Tenant, i. 349; M'Rory, Dec. 1810, F. C.; Gibson, 1875, 3 R. 144.)

1306. Written Lease.-A formal lease must be written on stamped paper, and regularly authenticated as a probative deed. (Stair, More's Notes, ccxliv.; Ersk. ii. 6. 24; Bell's Prin. 1190; Hunter, i. 357; M'Niven, March 10, 1836, 14 D. 685; Hutchison, March 4, 1837, 13 D. 837; Forsyth, December 13, 1853, 16 D. 197.)

1307. But where one or even both of these requirements are awanting, it does not follow that the lease may not be rendered effectual; for the stamp may be adhibited at any time on payment of certain penalties, and the want of authentication may be supplied by rei interventus or homologation. (Stair, More's Notes, ccxlv. (Ivory's ed., note 96), and iii. 3. 47; Bell's Prin. 1192.)

1308. A lease may be in the form of a mere offer, if followed by evidence of acceptance (Bell's Prin. 1190; Cairns, June 18, 1833, 11 S. D. 737; Russel, May 14, 1835, 13 S. D. 752; Burnet, Nov. 27, 1835, 14 S. D. 74); or it may consist of general regulations for the letting and management of an estate, proved to have been accepted by the parties (Bell's Prin. 1190; M'Cra, June 7, 1828, 6 S. D. 935); or it may be simply a written. obligation to grant a lease (Garrioch, Feb. 8, 1750, M. 15177; Grant, July 10, 1788, M. 15180).

1309. By a very enlightened enactment, so early as the reign of James II., leases in Scotland were rendered effectual, not only against the granter and his heirs, but against purchasers or other singular successors. "It is ordained," 1449, c. 18, "for the safetie and favour of the puir people that labouris the ground, that they and all utheris that hes taken, or sall take, landes in time to come fra Lordes, and hes termes and yeires thereof; that suppose the Lordes sell or annaly (alienate) that land or landes, the takers (tack-holders) sall remaine with their tackes, unto the isschew of their termes, qhais handes that ever thay landes cum to, for sic like mail as they took them for." This statute, which we have given in full, is interesting when viewed in connection with contemporary legislation on the same subject in other countries, and the high relative position in agriculture which Scotland has now attained.

1310. In order to bring a lease within the provisions of the statute, it must have a definite rent and a definite term. (Stair, ii. 9. 26 and 29; Ersk. ii. 6. 24; Bell's Prin. 1194; Hunter, i.

429; Hamilton, 1626, M. 15188; Oswald, 1688, M. 15194; Redpath, Nov. 22, 1737, M. 15196.)

1311. A lease to endure "whilst grass groweth up and water runneth down," will be effectual against the granter and his heirs, but not against singular successors. (Ersk. ii. 6. 24; Bell on Leases, i. 44; Bell's Prin. 1194; Kerr and Waugh, 1752, M. 10307; Fraser, 1758, M. 13196; Irvine, 1760, M. 15199.) But such a lease will be effectual against a purchaser also, if he has either been made aware of its nature, and accepted it as part of the bargain, or if he homologates it by his conduct after purchasing the estate (Wight, 1763, M. 15199; Scott, 1771, M. 15200); and leases for any number of years that shall be stipulated are similarly protected, if registered under the provisions of the recent statute, 20 and 21 Vict. c. 26, such registration being prior to the completion of the purchaser's title.

1312. The ancient statute referred to will not cover leases for a period greatly beyond that for which, according to the custom of the country, they are commonly granted, even though the period should be definite. A lease for 400 years is invalid (Allison, Feb. 3, 1730, M. 15196; Jordanhill, Feb. 13, 1752, M. 10307); but an agricultural lease, if granted expressly for purposes of improvement, will be good though it exceed very considerably the customary period of nineteen years. On the same principle, building leases, and, above all, mining leases, will be sustained for periods of any reasonable duration, so long as no attempt is made to create estates in perpetuity by means of lease. This restriction the recent statute, to be presently referred to, has removed, perhaps inadvertently. Liferent leases are effectual. (Bell's Prin. 1195.)

1313. Though the terms of the statute 1449 limit it to lands, it has been held to apply not only to minerals, but to mills, fishings, and the like, on the ground that these are annexed to land-fundo annexa. The rule by which objects have been

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