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Scottish Court of Session Decisions >>
The Earl of Marr v Gabriel Rankin of Orchyard-head. [1708] 4 Brn 700 (27 February 1708)
URL: http://www.bailii.org/scot/cases/ScotCS/1708/Brn040700-0194.html Cite as:
[1708] 4 Brn 700
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
The Earl of Marr v. Gabriel Rankin of Orchyard-head
Date: 27 February 1708
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The Earl of Marr against Gabriel Rankin of Orchyard-head. [Orchyard-head] holding his lands of the Earl for the reddendo of decern hollas frumenti in his charter, the debate arose anent the legal sense and import of the word frumentum; the superior alleging it signified wheat, and the vassal, that it was only ten bolls of oats, no wheat growing in that ground.
It was alleged for the Earl,—That frumentum, though sometimes in the general it signified any corn, yet, in its strict and proper signification, it was restricted to wheat, as appeared by the glossators and lexicographers on that word: and, esto no wheat grew there, that could not be the rule, because, in many places where wheat grew not, they were in use to pay the price of it, though not the ipsa corpora; and he and his predecessors had, for a long time, paid the sheriffs fiars, or current country rate for wheat; which sufficiently explained the charter, if there were any ambiguity in it. And Beza, in his translation of the Greek New Testament into Latin, has understood it so, being a great critic in the languages, at the 27th chap, of the Acts, v. 38. “They threw the wheat into the sea;” he renders it projecerunt frumentum in mare, ad exonerandam navem: and, in French, froment signifies wheat.
Answered,—What the gloss or lexicon say is not much to be regarded, for they give the sense of the barbarous and degenerating times of the Latin tongue: and it is not true even as to them either; for they make frumentum to come a frumine, and to be a generic term for any kind of segetes, as hordeum, avena, triticum, as contradistinct from the legumina and pulse, such as pease and beans: and the true Latin word for wheat is triticum. The common use of speaking and the consuetudo regionis explain this. If any man, on the road, call for corn to his horse, what stabler will bring him wheat? If I bargain for a chalder of corn, would I not be laughed at if I demanded wheat? Now, the custom of the country must overrule this; why seek you wheat where there is none? And though I, and others in my circumstances, have for sundry years paid wheat, at least the value of it, shall that error wreath a perpetual servitude on my land: For law says, error communis dat nullum jus profuturo. And though Jrumentum may signify wheat in those places where it grows, yet that cannot be stretched to my country, where it uses not to be sown.
The Lords thought the use of payment would go far here to explain the meaning of parties; and, therefore, allowed a conjunct probation, before answer, as to the manner that this feu duty has been paid.
