HYPOTHEC. 119 



89. Hypothec. — In arable farms a landlord's hypothec is 

 now of very little importance, on account of recent legisla- 

 tion ; the Acts of 18G7 and 1880, which do not affect urban 

 leases, having practically abolished it. The right extends 

 over horses upon the farm, and at common law could not be 

 made eftectual after the expiry of three months after the last 

 conventional term of payment. (a) The Act of 1867(6) con- 

 firmed this, and further provided that the stock of a third 

 party, taken to graze for a bona fide payment, should be 

 liable up to the amount of the rent to the landlord's hypo- 

 thec.(c) The Act of 1880((:Z) provides that, from and after 

 11th November, 1881, "the landlord's right of hypothec for 

 the rent of any land, including the rent of any buildings 

 thereon, exceeding two acres in extent, let for agriculture or 

 pasture, shall cease and determine." Thus, in all leases of 

 urban tenements, all agricultural leases entered into prior to 

 11th November, 1881, and all leases of lands, under two 

 acres in extent, the law of hypothec is still in force. Where 

 a landlord has not authorised or assented to a sub-lease, the 

 sub-tenant's horses are liable for the principal tenant's rent ; 

 but if he has, the hypothec only extends to the amount of 

 the sub-tenant's rent, and not even to that extent, if there is 

 nothing in arrear.(e) Where horses and corn have been 

 sequestrated, it is lawful to consume the corn thrashed, or 

 part of it, in feeding the horses. (/) 



In urban leases — i.e., leases of buildings, whether in town 

 or country, if not accessory to a farm, the landlord's hypothec 

 extends over invecta et illata. It has not been decided 

 whether horses fall within this category or not ; but if they 



(a) Ersk. ii. 6, 56 ; B.C. ii. 27 ; Kankine on Leases, 322, et seq. ; Heplurn v. 

 Richardson, 1726, M. 6205 ; Napier v. Kissock, 1825, 4 S. 304 ; Henderson v. 

 Warden, 1845, 17 Sc. Jur. 271. 

 (6) 30 & 31 Vict. c. 42, § 4. 



(c) Ibid., § 5 ; Stcuart v. Stables, 1878, 5 R. 1024. 



(d) 43 Vict. c. 12, § 1. 



(e) Ersk. ii. 6, 63. 



(/) Gordon v. Suttie, 1836, 14 S. 954 ; Miller v. Paterson, 1831, 9 S. 792. 



