HENRY v M'EWAN (Court of Session)

The Lord Ordinary took the cause to report on cases, and added to his interlocutor the following note:

‘The great importance of the question raised in this cause to the proprietors and tenants of this country, renders it necessary that it should be decided by the Court in a deliberate manner, and as speedily as circumstances will admit of.

It is unnecessary to make any remark on the general character of this plea. That is too plain to require observation. But, what-ever may be thought of it, it must be dealt with according to law; and, when the Lord Ordinary reflects on the extent to which leases liable to the same objection may have been entered into, he must feel the importance of carefully weighing the merits of it.

Neither is he satisfied that bolls and firlots and pecks and Scotch acres are not to be considered as local measures in the sense of the statute. He thinks that they certainly are so. As to the bolls, &c. indeed, it might perhaps be held that they are to be taken as meaning imperial bolls, firlots, and pecks, or the measures defined in the Sheriff's books as corresponding thereto, nothing to the contrary being expressed. But the Scotch acre is a measure so plainly peculiar and local, that if the 15th section is to have any effect, it seems clearly to apply to it.

The Lord Ordinary sees very well that there are dangers and difficulties connected with this view of the question. But the difficulty of supporting the pursuer's plea, consistently with the established law of Scotland, appears to him to be very great; and the danger of it is manifest. At least, if a lease so circumstanced is null and void, it is full time that a matter of law, which must so constantly and deeply affect the practice and good faith of both landlords and tenants, should be made clearly known.