Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 RUN-RIG.
Subject_3 The Statute found not to authorise exchanges to a larger extent than four acres at one place.

Margaret, Lady Gray
v.
Mrs Isobel Blair

Date: 18 January 1780

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[Fac. Coll. IX. 37; Dict 14,151.]

Elliock. The thing proposed is for the advantage of the parties as to the small parcels; but, as to the large parcels, I think that the law will not admit of the division: it is in truth an excambion.

Monboddo. If the legislature has made a statute for a certain purpose, and if that purpose is not thereby answered, the legislature must make a new statute; we cannot. The only thing which embarrasses me, is the series rerum similiter judicatarum, which gives a very wide interpretation to the statute.

Hailes. This course of decisions may be said to have been interpreted by the decision, Buchanan against Clark, which put a strict interpretation on the statute. In truth, most of the decisions are not inconsistent with the tenor of the statute. The Court gradually enlarged the interpretation. The former decision was always an authority for enlarging the next. In the case of Bruce of Kinnaird, the judges made a wider stretch: they did not mean to hurt Mr Bruce, when out of the country, but they consulted his interest when out of the country; and went farther for his benefit than perhaps they would have done had he been present. It is high time to stop; and it is better to go back into the limited interpretation of the statute than to go forwards into an interpretation which will render all property insecure.

Kaimes. We must not interpret run-rig to mean merely single ridges. It relates to cases where agriculture cannot be profitably carried on without division. This, however, will not extend to fields of twenty or thirty acres. I would limit the excambion to five acres.

Justice-Clerk. The legislature could not have meant to allow the division of great parcels; for it does not mention the Court of Session as judges: it never meant to make over large parcels of ground from one heritor to another.

Covington. Such a process of excambion would not have been sustained at common law: the action is on the statute. Run-rig means interjected lands, whereby agriculture is prevented from improvements; but when the parcels are large, the purpose of the statute, which is improvement in agriculture, may be attained without division.

On the 18th January 1780, “The Lords found that the Act of Parliament does not extend to large fields, belonging to different proprietors; and remitted to the Ordinary to consider how far the division can proceed as to lesser parcels;” altering Lord Elliock's interlocutor.

Act. W. Nairne. Alt. Ilay Campbell.