268

ON INCLOSING LAND

SECT. VII.

OF THE COMMON LAW OF SCOTLAND IN THESE CASES.

In some Scotch statutes, the Roman or civil law seems to beindicated as the common law of Scotland ; but, in this place,the usage or consuetude is meant. By this usage or practiceof the courts, the principles established by positive statutesare supported and even extended. A landlord gives up thebuildings and fences of a farm to his tenant in proper order,and the tenant is bound to maintain them in the same, du-ring the currency of his lease, and to deliver them up in thesame state when his lease expires. Neither the proprietornor tenant are at liberty to erect new fences, or to take downold ones, during the lease, without the consent of the otherparty, unless there are some clauses in the lease authorisingsuch measures.

SECT. VIII.

OF ARBITRATION, FOR ATTAINING SOME OF THErURPOSES ALREADY MENTIONED.

Arbitration is not unfrequently resorted to in Scotland ,instead of an action at law, for excambing or exchanging smallparcels of land, for drawing the lines of inarch fences, and as-certaining how these shall be erected, and even for effectingthe division of commons. An arbitration bond, or deed of