270
Through the currency of the lease, the interest of both pro-prietor and tenant must evidently concur in the same measure, ofrendering the land as productive as possible. There is a period,nevertheless, towards the close of the lease, in which these inte-rests begin to diverge; and therefore, restrictions as to the lastthree or four years, may be necessary to keep the tenant to themode of management, which his own interest would effectuallybind him to during the currency. During these years, a manage-ment may be properly enforced by penalties, corresponding to thesystem understood as the best for that species of farm at the com-mencement of the lease. But as it were absurd to suppose thatany system is perfect, and incapable of improvement, in orderthat the farm may not be debarred from such improvement as maybe found out during the currency of the lease, it should be in thepower of the tenant to manage and to leave the farm in any wayhe pleases, without incurring the penalty, provided he can makeit appear, to impartial arbiters, that the farm, in the condition inwhich he leaves it, is in no worse state than it would have beenhad the management prescribed in the restricted years been ob-served.
To avoid this unimproving period, when the tenant may con-ceive it for his advantage to draw as much from the land as it canyield, rendering nothing to it that he can withhold, it might beof use (at least on supposition of the possessing tenant beingpreferred) to renew the lease three or four years before the ex-piration of the existing one; the entry to the second to commenceat the expiration of the first. As, however, a lease, to be effec-tual, must, in consistency with the maxims of Scots law, be clothedwith possession, it is uncertain if, without an express alteration ofthe law, such a lease would be good against a succeeding heir ofentail; or even a purchaser, if either come to be vested in theproperty before the expiration of the current lease. -|-
The late Lord Karnes, whose original, comprehensive, and ver-satile genius, was well calculated to throw light upon every ques-tion which he made the subject of his investigation, and who wasprobably the first agricultural writer who paid much attention tothe moral excitements of agricultural industry, was well aware of•the futility of the substitution of enforcement, under penalty, tothe tenant's sense of his own interest. To impart, therefore, tothe tenant a continual and unceasing interest in the improvementof his farm, he fell upon the contrivance-of the perpetual lease, bywhich the tenant was either sure of a preference at re-leasing,
t As it would be highly inconvenient that leases of this kind should be abso-lutely invalid, our Courts have decided that such a lease is valid, if granted tothe ordinary course of administration. The length of term seems not, however,fixed. The framers of act 10th, Geo. Ill, seem to point at one year previousto the expiration of the current lease, which is by much too short a period t®prevent the want of interest in improvement.