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John Clay - A Scottish Farmer
Chapter X - Part 2 - Notes


Prior to 1880 a tenant had no right to kill game except rabbits, which he might kill as vermin unless expressly prohibited by his lease, which was invariably the case, and he had no claim for damages done to his crop by game unless they had been increased beyond a fair average stock. If the game was materially increased then the tenant had a right to compensation. The Game Act of 1877 provided that a tenant was entitled to compensation, where the sole right of killing rabbits and game was reserved, for damages done to crops in excess of £40 a year unless any other sum was specified in the lease. The Act contained rules for fixing the compensation by arbitration. Tenants found that these claims, however reasonable, were difficult to substantiate and led to a great deal of ill-feeling. The Ground Game Act of 1880 (being the act now in force) conferred on occupiers of land the right to take and kill ground game, hares or rabbits, to be exercised by himself or persons duly authorized by him in writing, but the express purpose of the act is to enable the tenant to protect his crops, and his rights are subject to limitations and restrictions.

The question of game is not referred to in the 1879 Commission, but it is referred to in the 1893 Commission, the final report of which recommends that the right of occupiers to compensation "for damages to their crops by adjoining owners and occupiers, as well as by game preserved by their landlords or the shooting tenants, be recognised and denned and made enforcible by as simple and inexpensive means as possible." No steps have been taken by the legislature to carry out this recommendation. Grievance still exists and may be classified under two heads :

1. The harbouring of ground game in woods to which the tenant has not access or in moorland to which he has not access until nth December, and

2. The laying down by shooting tenants, or else by landlords, of an excessive number of winged game so early in the season as to destroy the corn crops adjoining woods.

On the other hand, tenants now do what Mr. Clay never did in his lifetime — let their rights to the ground game, a proceeding that is probably not warranted by the Act, or engage a trapper to kill them.


The landlord's right of hypothec, so much referred to in Mr. Clay's speeches and writings, had been greatly impaired by legislation beginning early in the Seventies, and by the "Hypothec Abolition Act of 1880 " it was, for all practical purposes, abolished. The landlord's remedy is now an action of ejection for non-payment of rent under the Agricultural Holdings Act of 1883, a procedure which is in practice hardly ever enforced. A fresh iniquity has, however, recently sprung up between the rights of the landlord and the general creditors in respect that it has been decided that under certain clauses of the usual lease, on the bankruptcy of a tenant, the landlord has right to the crops that are at that date growing in the ground. This has not been used oppressively so far, and was not known in Mr. Clay's time, as only recent decisions of our courts have developed the view, but it may come into greater prominence in the future.


This is a subject upon which Mr. Clay latterly devoted the most of his energies and the results of which have been of most practical good to the Scotch tenantry. During the passing of the Agricultural Holdings ( Scotland ) Act 1883 through the House of Commons, he was in almost constant attendance, giving his practical advice and assistance to the Lord Advocate of the day, Mr. G. B. Balfour, who was in charge of the bill.

This matter had been dealt with in England by legislation a considerable period before the Scotch Act was passed. In 1875 an English Agricultural Holdings Act was passed, mainly at the instigation of the Duke of Richmond, who was chairman of the 1879 Commission. It is for this reason that the principal report of that commission deals somewhat tenderly with this act. The act was, however, not compulsory and landlords and tenants could contract out of it. It was also defective in attempting to lay down rules as to the manner in which the sum to be allowed as compensation should be ascertained, with the result that arbiters were restricted in their awards to somewhat hard and fast rules for ascertaining compensation. The principal report in the 1879 commission advises —

1. That the English Act be made compulsory.

2. That the landlord Or incoming tenant should pay for only outlays which were valuable to him in the future cultivation of the farm.

3. That in Scotland the Sheriff should appoint an oversman or arbiter on the failure of the parties to do so.

Mr. Clay in his supplementary report objected (1) that the report did not specify or indicate any sufficient means of affording such absolute security or of giving the tenant that protection to which he is entitled, nor does it recommend any effectual measure to secure the whole interests of the tenant in his improvements, including his interests in his tenure.

(2) That not only tenant's outlays, but his energy and industry in increasing the fertility of the soil, should be allowed for and have legislative protection.

(3) That the then Agricultural Holdings Act did not allow adequate values for improvements and ignored high cultivation, cleanness and condition of the soil.

(4) That the incoming tenant should not be burdened with the sum to be paid as compensation to the outgoing tenant.

(5) That the landlord should be better protected against dilapidations than was done in the then Agricultural Holdings Act.

(6) That the mothod of ascertaining values should be by arbitration, and Arbiters should be selected for each district by Government, or their selection be put under the jurisdiction of the enclosure Commissioners.

(7) He further suggested that a lease might be assigned in special circumstances, the landlord to have the right of one veto and any subsequent attempt to veto should be decided by the Sheriff.

The legislation which followed in 1883 by the passing of the English Agricultural Holdings Act, and the Scottish Agricultural Holdings Act of that year, resulted in a large portion of the English Act of 1875 being adopted, particularly the procedure portion, but the principle of the act was that stated in head 2 of the main report, and accordingly the act allows compensation "for such improvement as fairly represents the value of the improvement to an incoming tenant, provided that in ascertaining the value of any improvement there shall not be taken into account what is justly due to the inherent capabilities of the soil."

The third head of the main report was also adopted, namely, that of applying to the Sheriff failing agreement as to the appointment of an arbiter or oversman, but the Agricultural Holdings Amendment Act of 1900 has come very near Mr. Clay's suggestion of selection of arbiters by the Government, as the Board of Agriculture have now certain recognized experts in various districts whom they will appoint on application being made to them. The 1883 and 1900 Acts have also recognized the justness of the criticism embodied in heads 3 and 6 of Mr. Clay's objections that the method of ascertaining values under the 1875 Act was inadequate, as this is now left entirely to the arbiters. The 1883 acts also embodied in a modified way the suggestion as to the right to assign the lease, this being given in the case of death only and subject to certain protective clauses on behalf of the landlord. The Legislature has, however, not yet recognized what is known as increased fertility, nor provided that the incoming tenant should not have to bear the burden of the compensation to be paid to the outgoing tenant, if the landlord in his conditions of let chooses to stipulate for this.

The 1893 Commission was appointed on 16th September 1893 and reported 25th June 1894. Mr. Clay signed the report but handed in a Supplementary Memorandum. So far as the Agricultural Holdings Act is concerned Mr. Clay's proposals are dealt with under the first head in that Memorandum. These may be summarised as follows :

1. That the procedure of the Act should be simplified and forms provided so that a Tenant might dispense with legal assistance, and that any omission in procedure should not invalidate a claim if the opposite party had not been prejudiced.

2. That the provisions as to giving notice of claim and counter claim should be abolished.

3. That the Schedules appended to the Act detailing the subjects of compensation should be done away with, thus dispensing with the Landlord's consent for drainage and permanent pasture and leaving it to the Arbiter to say what is an improvement and worthy of compensation.

4. That Official Arbiters should be appointed for districts or groups of Counties in Scotland.

5. That the principle of compensation for increased fertility of a holding should be recognised, and that any and every improvement which increases the productiveness of the farm and adds to its letting value should be compensated, and that equally the Landlord should have a claim for decreased fertility.

6. That means should be devised for effectively protecting the interests of the sitting tenant so that his rent is not raised on his own improvements.

7. That with due safeguards the restrictions in Leases with regard to cropping and sale of produce should be swept away.

8. That the practice of saddling the incoming tenant with the burden of paying the compensation due to the outgoing tenant should be declared illegal.

9. That it should be made impossible to contract out of the Act in any way whatever.

10. That a branch of the Board of Agriculture should be established in Scotland.

It was not till 8th August, 1900, that an act to amend Agricultural Holdings Act was passed. The chief changes introduced by this act are as follows:

1. The list of improvements in the schedule for which the tenant is entitled to compensation is considerably enlarged.

Mr. Clay considered that all schedules to the act should be swept away so as to put permanent pasture and drainage on the same footing as the improvements effected by manuring and consumption of feeding stuffs. He would have left it to the arbiter to decide whether the improvements effected by the tenant were real improvements; if not, the tenant would get no compensation for them.

2. Compensation is allowed for the consumption of corn produced upon the holding. Up till the date of the act compensation was only allowed for corn not produced on the holding.

3. Procedure is simplified and a statutory code is provided for the conduct of arbiters under the act.

This improvement, which is a very important one, follows the lines of Mr. Clay's suggestion that the procedure should be made simple and untechnical and that intelligible forms should be provided from which a tenant could prepare any necessary paper without calling in legal assistance. The new procedure provided for by the act combined with the power given to the Board of Agriculture to make up and supply forms has practically given effect to Mr. Clay's recommendation.

4. An appeal is allowed in the form of a stated case to the Sheriff and the Court of Session.

This improvement also follows the suggestion made by Mr. Clay in one of the paragraphs of his recommendations.

Mr. Clay's other recommendations may be briefly disposed of as follows: — The abolition of claim and counter claim recommended by him has not been given effect to. The tenant has still to make his claim, but not now four months prior to the determination of his tenancy, but before the actual determination of his tenancy, thus doing away with a substantial grievance which practically led to the dispute eventually decided by the House of Lords of Black v. Clay. The new act obviates the chance of any such question being again raised. The new act, however, adopts to some extent Mr. Clay's suggestion regarding the Landlord's counter claim, and provides that the landlord must, within a certain time after the appointment of the arbiters to decide the tenant's claim, give notice of his claim. If he does so, then all his claims against the tenant must be decided. If he does not do so, he is left to his common law remedies against the tenant.

No recognition has been made of the principle of increased fertility and, although it is maintained by everyone that arbiters have power under the act to award an additional compensation for the long continued use of manures, a principle which the third recommedation of the main report encourages, the act still continues to be "murdered by the arbiters," as was commonly stated in the evidence given before the last commission.

No compensation has been allowed by the sitting tenant, but this is a matter upon which Mr. Clay felt very strongly, as the manner in which his rent at Kerchesters had been raised brought the matter home to him.

Nothing has been done towards taking away the restrictions on cropping, nor to make it clear that the incoming tenant shall not be bound to pay the compensation of the outgoing tenant.

Contracting out is still the order of the day, and there is hardly any lease now which has not a schedule of amounts to be awarded in compensation appended to it, all of which are under what the tenant might reasonably expect he would receive. The tenant cannot contract wholly out of the act, but if he likes to agree to a substituted compensation which is in the circumstances fair and reasonable he can do so. As a matter of fact, an offerer anxious for a farm usually accepts any such substituted compensation as the landlord's conditions stipulate for, however unfair and unreasonable.

Another important alteration made in the new act, and recommended in the main report, was that a landlord should not now be entitled to claim for any breach of the lease — what is known as a penal rent,—but should only be allowed to receive the actual damages done by such breach. This was a matter of great importance to tenants, as formerly there was always a clause in the lease penalizing them in sometimes as much as five or six pounds per acre for any breach in the provisions as to cultivation, and this could by law be exacted or used as a handle against the tenant at his outgoing, although the breach might have been really in the best interests of the farm and the landlord.


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