Scottish Court of Session Decisions

Subject_1 PART and PERTINENT.

Captain Henry Bruce, Brother to the Laird of Clackmannan,
v.
Mr William Dalrymple of Glenmure, and Alexander Inglis of Murdiston

Date: 23 December 1709
Case No. No 17.

An orchard discontiguous from the mansion house, found to fall under the general words houses and yards.

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In the pursuit at the instance of Captain Bruce against Mr William Dalrymple and Alexander Inglis, for implementing a decreet-arbitral pronounced by Sir Hugh Dalrymple President of the Session, by disponing to the pursuer the house and yards of Clackmannan, who claimed an orchard separated from the house by some arable ground interjected, as falling under the general of yards,

Answered for the defenders; By house and yards joined together uno spiritu, are only meant yards contiguous to the house, for the use and service thereof; whereas, the orchard acclaimed is both discontiguous and differs from a yard, as is clear from all charters wherein yards and orchards are expressed by different words, viz. cum hortis et pomariis.

Replied for the pursuer; The general term yards or horti (so called quod ibi arbores et olera oriuntur) comprehends gardens and orchards; and we are not to think pomarium, an orchard to be a distinct species from hortus, because mentioned together in charters, seeing synonimous words are frequently added in charters.

The Lords found the Captain had right to the orchard libelled, as comprehended under the general word yards in the decreet-arbitral.

Forbes, p. 372. *** Fountainhall reports this case:

Mr William Dalrymple of Glenmuir and Alexander Inglis, having purchased in all the preferable debts upon Bruce of Clackmannan's estate, and resolving to bring it to a roup, Sir John Shaw of Greenock designing to be the purchaser, to facilitate the way, he enters into articles of agreement with Captain Hary Bruce, Clackmannan's brother, whereby, for his consent and other prestations, he obliges himself to let him have the house and yards, and ten chalders of victual most contiguous and adjacent thereto, for continuing and preserving the memory of such an ancient family in the sirname of Bruce; and thereafter having submitted all their differences to my Lord Northberwick, President of the Session, he, by his decreet-arbitral in 1701, decerns Glenmuir and Mr Inglis to denude themselves in favours of Captain Bruce of the house and yards of Clackmannan, and of ten chalders of victual of free rent, the lands of Tilligart estimated at 8 chalders of victual being a part thereof, and the rest out of the superiorities and feu-duties of the said estate, &c. Hary Bruce pursuing for implement, it was alleged for Glenmuir, He was ready to fulfil, by disponing the lands of Tilligart at eight chalers of victual, and as much adjacent land as would make up the remanent two chalders. Answered, I am willing to accept Tilligart in part, but cannot take them at that rental, because he offers to prove they are scarce worth six chalders of victual; and though the decreet-arbitral estimates them at eight, yet that is no part of the decerniture, but a mere guess and conjecture upon Andrew Inglis' information and assertion that they paid so much; and though they were once set at that rent and four bolls more, yet that was only occasioned by strong labouring and liming, which is now worn out, and the tenant became unable to pay it, and broke; and he is willing to take it at whatever it shall be proved that it may pay as a standing rental; but certainly all parties designed to give him ten chalders of victual effectively, and not at a racked imaginary rental; and Vinnius ad tit. Inst. De act. tells us judices compromissarii must proceed as to material justice eodem ordine, that the veri judices do. Replied, There is neither dubiety nor ambiguity in the clause of the decreet-arbitral, for it expressly determines that Tilligart shall be taken for eight chalders of the ten, and Captain Bruce can least quarrel this of any man living; for two years after the decreet-arbitral he set a tack of it for that. The Lords, by plurality, found he behoved to take it for eight chalders of victual, suppose it should now pay less. The next point disputed was, he claimed an orchard at some distance from the house, as falling under the designation of the yards obliged to be disponed to him. Alleged, That word comprehended no more but the yards and gardens adjacent to the house, which they were willing to dispone to him; but there were sundry acres of land interjected betwixt this orchard and the mansion-place; and there is a coal-sink put down in the midst of it, and it is of a great extent; and in the enumeration of charters, cum hortis et pomariis are different things; the first, in our stile signifying a yard, and the other an orchard set with fruit trees. Answered, They are truly synonimous words of the same import and signification. Littleton deriving the Latin hortus from ortus, quia ibi arbores et olera oriuntur. The Lords found the yards comprehended likewise this orchard, and gave Captain Bruce right thereto.

Fountainhall, v. 2. p. 545.