^^^ Review of Air Be IPs Treat if e on Leafs, Augy 



matter was not allowed to reft here ; and the qiieftion being brought 

 ■under review, and urged on this point, whether the tenant might not 

 appoint a manager ? the Court continued the tenant in poffeffion. 



* The point was again canvaffed in a cafe, Laird & Co. v. Grindlay, 

 30th June 1 79 1. This was the cafe of a mill let to Grindlay and his 

 heirs, fecluding afiignees and fubtenants, without the confent of the 

 landlord. Grindlay the tenant died ; and his affairs being in diforder, 

 his creditors endeavoured to make an agreement with the landlord, by 

 which they might have enjoyed the benefit of the leafe during the pe- 

 riod then to run : But, finding this impracticable, they applied to the 

 tenant's brother, and prevailed with hin^., in the charafter of heir, to 

 give a letter, empowering one of the creditors to manage and fuperin- 

 tend the mull, and to aft as freely, in all refpedls, as if the heir were 

 perfonally pi-efent ; and he was taken bound to account to the heir for 

 his intromiifions, after deducing his neceiTary expences. On giving 

 this letter to the manager chofen by the creditors, the heir received an 

 obligation of relief from the creditors, freeing him from the confequen- 

 ces of thus reprefenting his brother ; and the profits of the leafe were 

 to go exclufively to the creditOi-s. 



* When this manager began to aft, a removing was brought before 

 the Sheriff, who (in refpeft it appeared that the heir was in pofTeflion 

 by means of his fervants or mandataries, and that there is no claufe fn 

 the deed requiring refidence on the part of the tenant) difmiffed the 

 aftion. The Lord Juflice-Clerk (M'Queen) remitted the caufe y/w- 

 f /idler, that is to fay, adhered to the judgment of the Sheriff, and 

 this judgment the Court confirmed. 



* If, therefore, this power is to be taken away, it muft be done by 

 an expi\.'fs claufe, declaring the bankruptcy of the tenant to be an ir- 

 ritancy of the leafe ; But, certainly, where fuch a claufe is to be in- 

 troduced, it were a piece of juftice to provide for the proper letting of 

 the farm, and the appropriation of the furplus rent to the tenant or 

 his creditors. 



* The great difficulty in devifing a plan of this kind, will confifl in 

 uniting the intcrefls of landlord and tenant ; for, on the one hand, it 

 is obvious, that to difpofe of the leafe to the highefl advantage, it ought 

 to be put up to public roup ; whereas, by this manner of difpofing of 

 it, the very thing happens which the landlord is anxicus to guard a- 

 gainft, and he is deprived of the privilege of choofing his tenant : per- 

 haps it might reconcile thefe jarring intcreils, were the creditors to have 

 a power of offerinn- a ;;ew tenant (and which new tenant would pay a 

 premium to the creditors, and be preferred at a public roup, or in any way 

 agreeable to the creditors) ; the landlord, on the other hand, poflefTmg 

 a power of retaining the farm, on paying the fame premium to the 

 creditors which the new tenant would have paid, had he been received 

 by the landlord. In this way, the creditors would receive the full va- 

 lue of the leafe, while the landlord, without fuffering any lofs, would 

 be able to exclude an improper tenant. ' 



In 



