Lieutenant Colonel Robert Henry v. Alexander M'Ewan [1834] UKHL 7_WS_411

UKHL
Lieutenant Colonel Robert Henry v. Alexander M'Ewan
[1834] UKHL 7_WS_411 · 1834-08-09
A landlord and tenant entered into missives of lease, in which the rent was fixed at a half boll of wheat, three firlots of barley, and six pecks of oats for each Scotch acre, payable by the fiars prices; but the proportions were not expressed which these measures bore to the imperial standard measure; and the landlord, under whose direction the missive of lease had been framed, raised an action, after the tenant had entered into possession, to reduce the lease, libelling upon the act 5 Geo. IV. c. 74., ordaining uniformity of weights and measures. Held (affirming the judgment of the Court of Session) that the act did not apply to the case.

Subject_ Personal Objection. —

Question, whether under the above circumstances the landlord was barred from founding on the statute.On 17th of June 1824 an act was passed, (5 Geo. IV. cap.74.) entitled “An Act for ascertaining and establishing uniformity of weights and measures,” the preamble of which bears, that “whereas it is necessary for the security of commerce, and for the good of the community, that weights and measures should be just and “uniform: And whereas notwithstanding it is provided by the Great Charter that there shall be but one measure and one weight throughout the realm, and by the treaty of union between England and Scotland that the same weights and measures should be used throughout Great Britain as were then established

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The 17th section commences thus:—

“And for the purpose of ascertaining and fixing the payments to be made in consequence of all existing contracts or rents in England and Ireland, payable in grain or malt, or in any other commodity or thing, and in consequence of any toll or rate heretofore payable, according to the weights and measures heretofore in use, certain rules shall be observed.”

The 18th section is expressed in the following terms:—

“For the purpose of ascertaining and fixing the payments to be made of all stipends, feu duties, rents, tolls, customs, casualties, and other demands whatsoever, payable in grain, malt, or meal, or any other commodity or thing, in that part of the United Kingdom called Scotland, or in any place or district of the same,”
certain rules are prescribed.This act was repealed by the 6 Geo. IV. cap. 12., in so far as related to the date of its commencement, which was postponed till 1st of January 1826; and it was amended in some respects not material to the question in the present case.On the 20th of October 1827 the respondent made an offer to the appellant (said to have been written by the latter) in these terms:—yourself, for a lease of nineteen years from the term of Martinmas first, viz. one half boll of wheat, three firlots of barley, six pecks of oats, all of the fiars prices of the county, payable at two terms, viz. Candlemas and Whitsunday, beginning the first payment at Candlemas 1829; but as the fiars prices may not then be fixed, a sum nearly what may then be considered a half year's rent shall then be paid to account, and the balance of the year's rent shall be fully paid up at Whitsunday following, for each Scots acre of arable land; you to give 35 l . to assist in building a house on the farm, deducted off first rent, also the stones of the old office house, near the present dwelling house. I am to put what is now fences in repair, and keep them and leave so at the expiry of the lease; and if any new fences shall be necessary, I agree to make the same, you paying half the expenses thereof, except the fences to protect your plantations, which you shall keep up during the lease. I am to have liberty of watering my cattle and horses in the north east corner of the park, where the dwelling house now stands; also liberty of a road for my cattle to pass and repass through the ground possessed by Mr. Andrew to the low ground of the farm. The rotation of cropping:—First year oats, second barley, third fallow or green crop, fourth barley or wheat sown with grass seeds, fifth hay, sixth and seventh pasture; or, in the tenant's option, first year oats, second year fallow, third wheat, the fourth green crop, the fifth barley, the sixth hay. The dung and fallow at present upon the farm to be allowed me without valuation, at entry of the lease. I am to allow what then may be upon the farm, without valuation, at the expiry of the lease. You are to have liberty of the present road by the west of low ground. The new wheel for the thrashing mill to be put up by you on or before Lammas next. The thrashing mill to be taken at valuation, without any payment at the entry, and left at valuation at expiry of the lease. You shall have the liberty of the thrashing mill for the crop that is now upon Ardbennie. I agree to perform the carriage of four hundred stones of coals from Dollar to your house at Woodend.— I am, &c.
“Woodend, 29th October 1827. Sir,— I make offer of the following yearly rent for the farm of Ardbenny, as now possessed by

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(Signed) Alex. M'Ewan .”

“To Colonel Henry at Woodend.”

This offer was accepted by the appellant in the following terms:—

“I agree to the above terms of lease for the farm of Ardbenny, the mill being left of same value at expiry as at entry. (Signed) Robert Henry .”
The respondent thereupon entered into possession of the farm at Martinmas 1827.Disputes thereafter took place between the parties as to the principle on which the rent was to be converted into money; whereupon the appellant applied for sequestration of the respondent's effects, and raised an action before the Sheriff of Perthshire, concluding for removal of the respondent, in respect the lease made mention of Scotch acre, without specifying the ratio or proportion which it bore to the imperial acre. The Sheriff assoilzied the respondent from the action of removing; and Lord Moncreiff refused a bill of suspension, and issued this note:—constituted by a regular deed and full possession, has any solid foundation; but he does not mean, by refusing this bill, to decide the question, which the complainer may discuss in the reduction which he says he has brought. He is of opinion that the Sheriff judged rightly in holding that that question could not be competently discussed in the form of an action of summary removing in the Sheriff Court. The question would be the same under the statute, if the respondent stood infeft on a feu contract, against the validity of which the same objection could be stated. But it could never be maintained that the Sheriff could, in a process of removing, declare the seisin standing in the record null and void.”
“The Lord Ordinary is not convinced that the complainer's very rigorous construction and application of the statute to set aside a real right of lease,

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In the meanwhile the appellant raised before the Court of Session an action of reduction, on the ground that “the foresaid pretended missive or agreement, containing a special reference to the Scotch acre of land, according to which the rents of the defender's possession were stipulated to be paid, and containing no specification of the ratio or proportion which the Scotch acre bears to the imperial standard acre, and as there are no bolls in the imperial standard measure for grain, is null and void, in terms of the act 5 Geo. IV. cap. 74. sect. 15.”In defence the respondent pleaded, 1. That the clause of the statute had no application to contracts for the sale or lease of lands by the Scotch acre, or to rents payable in Scotland by bolls or other customary measures; and, 2. That the appellant was barred, personali exceptione, from attempting to take advantage of the enactments of the statute, even if they applied to this case, seeing that he had induced the

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The Lord Ordinary, upon advising cases for the parties, reported them to the Court, and issued this note:—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. 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. parties to wave it were sufficient to prevent the nullity being pleaded.
“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.
The question itself appears to the Lord Ordinary to be by no means free from difficulty. The point is short and simple. The parties entered into a contract of lease for nineteen years, by missive letters exchanged, in which the terms and conditions of the lease were definitely expressed, the rent being fixed at a half boll of wheat, three firlots of barley, and six pecks of oats for each Scotch acre, payable by the fiars prices. The contract thus entered into was followed by full possession of the farm, and by the payment of a half year's rent. After this the parties got into litigation. And now the pursuer (the landlord) insists in this action of reduction for setting aside the contract of lease, on the ground that though the missives have fully expressed the terms of the bargain, they have not expressed the proportions which the several measures mentioned bear to the imperial standard measures, whereby he maintains the lease is rendered absolutely void.It is unnecessary to make any remark on the general character of this plea. That is too plain to require observation. But, whatever may be thought of it, it must be dealt with according to law; and

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He is not at present able to enter into the view taken by the defender, that the provisions of the statute do not at all apply to contracts relative to the rents of lands in Scotland. The words of the 15th section appear to be so broad as naturally to comprehend that case. But, considering them in connexion with the 17th and 18th sections, there is very great difficulty in coming to any other conclusion. For the 17th section, which refers to lands in England, is framed for the express purpose of regulating the payment of rents under leases which were then existing; which seems to establish beyond any doubt, that the 15th section was understood to comprehend contracts for the rents of lands; and if the words which relate indiscriminately to every part of the kingdom, were understood to include contracts for rent in England, it would not be easy to reach the conclusion that they do not also comprehend similar contracts in Scotland. The argument is therefore reduced to the narrow point, that in the 18th section, which relates to Scotland, the word ‘existing’ is not used. But the Lord Ordinary has great difficulty in thinking that this circumstance is sufficient to render the scope and purpose of this clause different from those of the 17th, or to convert it into a clause exceptive of rents in Scotland from the general operation of the 15th section.Neither is he satisfied that bolls and firlots and pecks and Scotch acres are not to be considered as

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But although the Court should hold that these pleas of the defender cannot be sustained, the Lord Ordinary still thinks that the case is one of great difficulty. The statute relates altogether to contracts or agreements. But a lease, by the statute law of Scotland, is something more than a contract. When the contract has been clothed with possession it becomes a real right. The decisions of the Court have gone very far in establishing that any writing, however defective in statutory requisites, if followed by possession, constitutes a good lease to give the tenant a real right under the act 1449. The most informal writing, though it should not even express the whole terms of the lease, or in particular the precise rent, has been held sufficient to sustain the title of possession, the terms being otherwise ascertained. But if other statutes which are held to contain sanctions of nullity, are overruled by the force of possession, as constituting the real right, it will be a very serious question whether the right must totally fall, even where there is the most distinct and specific and probative written contract, followed by possession, wherever the provisions of the late statute have not been observed.

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If the plea of the pursuer be good, it must apply to a feu contract or disposition, even after seisin has been taken and recorded. This would be strong enough. But yet even a feu right is not so strong a case as that of a lease; for a feu can only be made by a regular deed, and seisin can only be taken on a technical precept, and can only be made effectual by a technical instrument. But the law is that a real right of lease may be constituted by possession following on the most informal writing. And the question is, whether after a real right is so constituted under all the former laws, it can be annulled by provisions which relate only to simple contracts or agreements.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 landlord and tenants should be made clearly known.The defender has endeavoured to maintain, that the pursuer may be held to be barred from founding on the statute by personal exception; and the plea deserves attention. But it is to be considered, that unless the limits of such a plea could be very specifically determined there would be danger of defeating the statute altogether; and that it is not easy to see how a statutory nullity in an agreement otherwise perfect, can receive its fair effect, if facts inferring the consent of

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With these remarks the Lord Ordinary reports the case for the consideration of the Court.”Thereafter their Lordships appointed the parties, to be farther heard in presentia, by one counsel on each side; and counsel having been accordingly heard, their Lordships, on the 25th of May 1832, repelled the reasons of reduction, sustained the defences, assoilzied the respondent from the conclusions of the libel, and found expenses due. *Colonel Henry appealed.Appellant .— 1. The missives of lease are clearly null and void under the act of parliament, if that act applies to contracts for the lease of lands in Scotland. They constitute an agreement made with reference to the Scotch acre, and the Perth boll, firlot, and peck, and the stone of coals—all these being weights and measures established by local custom; for there is no such thing as a boll, firlot, or stone in the imperial standard, while the peck referred to in the lease is the Perth, not the standard imperial peck. Although it is thus a special agreement with reference to weights or measures established by local custom, the ratio or proportion which such local weights or measures bear to the standard weights or measures is not expressed, which it is imperatively required to be under penalty of being null and void.Considering the general object and spirit of the act, there is afforded a strong presumption that

Footnote

* 10 S. & D., 572.

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The argument of the respondent, that the 15th section only relates to contracts regarding moveables, and where the whole subject of the contract can be stated to be “goods, wares, or merchandize, or other thing” of the same kind, is altogether unfounded. The words of that section, even although their meaning were not fully explained by the terms of the 17th and 18th sections, apply generally to all contracts, bargains, sales, and dealings which shall be made or had for any thing to be sold, delivered, done, or agreed for by weight or measure. But if, by a lease, land is agreed to be delivered to a tenant by the Scotch acre, this is plainly a contract, bargain, or dealing made or had for goods, wares, or merchandize, or other thing

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Even if, in this limited view, the statute might not apply to a lease or contract for a lease of lands, it will be observed that the land to be given to the tenant is only one part of the contract, and that there is the counterpart of it in the rent to be paid by him to the landlord, which is to be paid in a certain quantity of grain, and by the carriage of a specified quantity of coals; therefore, the question remains, whether, although it were conceded that the subject of the contract on the one part might be agreed for by a measure established by local custom, without the agreement being brought under the statutory sanction of nullity, the subject of the contract on the other part, namely, the rent, payable in grain and by the carriage of coals, can be so agreed for withour incurring that penalty.Supposing that the stipulation as to the quantity of land may be made in any measure the parties choose to select, it is enough to bring the contract or lease within the statute, if it further amount to or contain a contract for something to be delivered, done, or agreed for by a local weight or measure, which thing is of a nature comprehended by the act.Accordingly, the words of the 17th section distinctly show that where the rent is made payable in “grain or malt, or in any commodity or thing,” if it be contracted or agreed for by any weight or measure established by local custom, the proportion which such weight or measure bears to the standard weights or

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But the appellant cannot admit that even the delivery of a quantity of land in lease can be validly agreed for by a local measure, without the proportion which that measure bears to the standard measure being specified in the agreement, in the terms of 15th section of the act. Such an agreement falls within the words of the 15th section, when correctly construed with reference to the object and spirit of the act, more especially where the rent is made payable in grain or malt, or in any other commodity or thing embraced by the words of the 15th section.

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2. The plea of personal objection cannot be pleaded in defence to an action upon this statute. It is founded on public policy, and is to be enforced on that ground, and consequently it cannot be met by any personal exception against the party pleading it. If the agreement is legally void the homologation of parties cannot cure its defects.Respondent .—1. The provision of the statute has no relation to contracts for the sale or lease of lands, or for the payment of rents: it relates entirely to contracts for work to be done, or for the sale and delivery of “goods, wares, merchandise, or other thing.” The general phrase, “other thing,” must, according to the well known rule of construction, be confined to things of the same kind with the goods, wares, and merchandise previously mentioned. And in confirmation of this rule, as applicable to the statute, it will be observed, that in the 18th section a rule is given for ascertaining and reducing to the new standard the payment of all “stipends, rents,” or other demands payable in grain or other commodity, in Scotland, and it does so without distinguishing between contracts made for such payments before or after the date of the statute, which is the more remarkable, as in the immediately preceding sections relative to England and Ireland the enactment is confined to “existing contracts or rents,” which limitation seems, ex preposito, to have been omitted as to Scotland.The provisions made in these two sections prove clearly that the 15th applies exclusively to mercantile transactions and to agreements for the performance of work.

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If the argument of the appellant were well founded in regard to a lease of land, it would equally apply to a feu contract; and all feu contracts entered into subsequent to the date of the statute, whereby any part of the feu duty is made payable in grain according to the measures still in use, would be utterly void. It seems impossible, however, that this can be maintained consistently with the express enactment relative to rents, feu duties, and other demands payable in grain, as specified in the 18th section. A lease of land or a feu contract is a complex transaction, not embraced or falling within either the words or spirit of the enactment. It is not an agreement for the performance of work, or for the sale or delivery of goods, wares, or merchandise. It is a contract for the delivery of land; and although the stipulated rent or return may form a part of the agreement, it is not the substantial or main part of the transaction. The delivery of land is the main and principal part of the contract of lease or feu, and the rent is merely the accessory or subordinate part of the contract.Besides, even if the enactment could be held to have such a meaning as that contended for by the appellant, the question would remain, how far the nullity could apply to a lease upon which possession had taken place. Such a lease is a real right, and not an agreement. But independent of this, and supposing the missive was objectionable under the statute, the possession would exclude the objection altogether. Thus, a missive of lease which is not tested in terms of the statute 1681, or which is not holograph, is null; but if possession has followed upon it, it is thereby rendered valid; and it is vain for either of the parties afterwards

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2. Even if the statute applied to this case, the appellant is barred, personali exceptione, from attempting to take advantage of the enactments. The missive of offer was written in the appellant's own presence, and under his direction. He thus entrapped the respondent to make an offer for a lease of a certain endurance, but which, according to his present plea, was to be binding upon him only so long as he thought proper. While the tenant was bound to the landlord for a certain term of years, and while the landlord seemed to be equally bound to the tenant for the same period, he secretly reserved the power of putting an end to the lease whenever he pleased. In short, it was a lease for a term of years so far as related to the tenant, but a lease at will so far as regarded the landlord. Nothing more unjust can be conceived; and whatever the landlord may plead in apology for his conduct, its practical result, so far as the tenant is concerned, involves a fraud, of which he cannot be allowed to avail himself.Lord Chancellor .—My Lords, I do not at present feel it to be necessary to call on the counsel for the respondent, but I propose to take an opportunity of looking particularly into the act of parliament upon

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Before closing the few observations with which I have taken the liberty of troubling your Lordships upon this case, I wish to call your attention, and the attention of the learned counsel on both sides, to the manner in which certain matters have been brought upon the pleadings. The Lord Ordinary, by his interlocutor of the 5th of March 1830, appointed the pursuer to give in a condescendence, framed in terms of the acts of parliament and sederunt, of the facts he avers and offers to prove in support of his action, and the defender to answer the same, framed in like terms. The manner in which that interlocutor has been acted upon is, in averring the existence and the construction of the law. The law is pleaded as a matter of fact. The party pleads an act of parliament,—not a local act, but a general statute, as public as Magna Charta, or the Bill of Rights, or any of the other known statutes of the realm, and yet the 4th article of the revised condescendence states, “That by the act of 5 Geo. IV. cap. 74, entitled an act for ascertaining and establishing uniformity of weights and measures, certain standards of weights and measures are established throughout the kingdom of Great Britain and Ireland; and that by the 15th section of said act it is enacted, that from and after the 1st day of May 1825 all contracts, bargains, sales, and dealings which shall be made and had within any part of the united kingdom of Great Britain and Ireland, for any work to be done, or for any goods, wares, merchandise, or other things to be sold, alienated, done, or agreed for by weight or measure, where no special agreement shall be made to the contrary, shall be deemed, taken, and construed to be made and had according to the

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“The enactment of the statute founded on by the pursuer makes no mention of the sale or lease of land, and by the 18th section of the statute a rule is given for ascertaining or reducing to the new standard the payment of all rents, stipends, or other demands payable in grain or other commodity in Scotland. By the 19th section of the statute the sheriff of each county is appointed to ascertain, in the manner therein prescribed, the amount by the standard measure of all rents, feu-duties, stipends, &c., payable in grain, according to the weights and measures heretofore used, and accurate tables are ordered to be prepared and published, showing the proportions between these weights and measures and those established by the statute.”
To that he pleads his own commentary or argument on the law as a matter of fact, as coming within the terms of the condescendence. But I must say, that the pursuer does not treat

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Adjourned.Lord Chancellor .—I stated at the close of the argument why it appeared to me that the Court below had come to a right conclusion upon this very extraordinary case. It is a case in which the appellant, Lieutenant Colonel Henry, the landlord, sought to set aside, under the 15th section of the 5th George IV. cap. 74., a tack, or an agreement for a lease, which he had given to the respondent. If the law was with him, he had a

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The House of Lords ordered and adjudged, That the said petition and appeal be and is hereby dismissed this House, and that the interlocutors therein complained of be and the same are hereby affirmed: And it is further ordered, That the appellant do pay or cause to be paid to the said respondent the sum of 200 l . for his costs in respect of the said appeal.Solicitors: A. H. M'Dougall— A. and R. Mundell, Solicitors.