59. The tacksman's right is limited to the fi uits which spring up annually from the subject set, either naturally, or by the industry of the tacksman ; he is not, therefore, emitd to any of the growing timber above ground, and far less to the minerals, coal, clay, &c. under ground, the use of w Inch consumes the substance. All tacks were, by 1449, e. 7, for the encouragement of agriculture, de clared effectual to the tacksmao for the full time of their endurance, into whose hands soever the lauds might come.
40. Tacks necessarily imply a delectus persona', a choice by the setter of a proper person for his tenant. Hence the conveyance of a tac k, not granted to assignees, is ineffec tual without the landlord's consent.
41. It is not a fixed point whether a tacksman may sub set the lands without an express power of subsettiug. Lord Stair,11. 9. 22, and Mackenzie h I. affirm he cannot ; but it was adjudged, Hare, 95.5, that he might, CVCII where the tack excluded assignees per more ought he to have this power, where the exclusion of assignees is only implied.
42. 11 neither the setter nor tacksman shall properly discover their intention to have the tack dissolved at the tern, fixed for its expiration, they are understood or pre sumed to have entered into a new tack upon the same icons with the former, which is called tacit relocation, and con inues till the landlord warn the tenant to remove, or the tenant tenounce his tack to the landlord. This obtains also in the case of moveable tenants, who possess from year to year without written tacks.
43. In tacks of land, the setter is commonly hound to put all the houses and office-houses, necessary for the farm, in good condition at the tenant's entry ; and the tenant must keep them and leave them so at his removal. But in tacks of houses, the setter must not only deliver to the tenant the subject set, in tenantable repair at his entry, but uphold it in that repair during the whole years of the tack; and if it should become insufficient before the ish, though without the setter's fault, the tack-duty must either be en tirely remitted, or suffer an abatement in proportion to the damage sustained by the tenant.
44. A tenant, if his landlord should refuse to accept the victual-lent when offered in clue time, is liable only for the prices as fixed for the sheriff-fiars of that year ; but if he has not duly offered his rent in kind, he must pay the value at the ordinary prices of the country; and over and above make good to the heritor the damages incurred by him through the non delivery, if, e. g. he should be thereby dis abled from performing a contract with a merchant to whom he had sold his farms. If the inclemency of the weather, inundation, or calamity of war, should have brought upon the crop an extraordinary damage (plus quam tolerabile) the landlord had, by the Roman law, no claim for any part of the 'tack-duty ; if the damage was more moderate, he might exact the full rent. It is nowhere defined what de
gree of sterility or devastation makes a loss not to be borne, but the general rule of the Roman law seems to be made ours, by girl. 108. Tenants are obliged to pay no cesses or public burdens, to which they are not expressly bound by their tacks ; but the law itself divides the burdens of the schoolmaster's salary equally between the proprietor and his tenants, 1696, c. 26.
45. Tacks may be evacuated during their currency, I. In the same manlier as feu-rights, by the tacksman's run ning in arrear of his tack duty for two year's together ; but it may he prevented by the tenant's making payment at the bar before sentence. 2. Where the tenant either runs in arrear of one y ear's rent, or leaves his farm uncultivated at the usual season, the judge-ordinary, when applied to by the proprietor, is required, by the Act S. 14th Dec. 1746, to ordain the tenant to give security for the arrears, and for the rent of the five following crops, if the tack shall subsist so long ; otherwise to decern him to remove, as if the tack was at an end. 3. Tacks may be evacuated at any time by the mutual consent of parties, c. g. by the tacksman's re nunciation accepted by the prop Ietor ; but verbal renun ciations may be resiled front.
46. The tenant who intends to quit his possession at the ish or his tack ought to make a renunciation thereof to his landlord, either in wi iting or otherwise, forty days before the term of the Whitsunday at or immediately preceding the ish. But if a landlord wants to remove a tenant, he is, by 1555, c. 39, required to warn him, upon a precept signed by himself, forty clays preceding the term of the Whitsunday before described. personally or at his dwelling-house, to remove at that term with his family and effects. This pre cept must be also executed on the ground of the lands, and thereafter read in the parish-elmrch where the lands lie, after the morning service, and affixed to the most patent door thereof. Whitsunday, though it be a moveable feast, is, in questions of removing, fixed to the 15th of May, by 1690, c. 39. In warnings from tenements within borough, it is sufficient that the tenant be warned forty days before the ish ofthe tack, whether it be Whitsunday or 'Martinmas; and in these the ceremony or chalking the door is sustain ed as a warning, when proceeding upon a verbal order from the proprietor, though without the warrant of a ma gistrate. Where the tenant is bound by an express clause of his tack to remove at the ish of it, without warning, such attended with any purpose, or causa habilis, of transferring the property to the superior, but is only used as a step to convey to another; consequently the fee remains in the re signer, till the person in whose favour the resignation k made, gets his right from the superior perfected by seisin.