A feu-charter bearing a certain feu-duty pro omnia alio onere, but with no clause cum molendinis et multuris, imports no exemption from thirlage. See Newliston, No. 20. supra.
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The Earl granting bond to Mr. William, obliging him to infeft him in some oxen-gates of his lands, of the barony of Strabrock, and to subscribe a charter of feu-holding, for a certain duty therein mentioned, to be paid therefor allenarly, which was also under reversion; and the Earl being charged to give him such a feu-charter, and suspending, upon production of a feu-charter, bearing, “payment of the feu-duty convened on, nomine feudifirmæ tantum pro omni alio onere, demanda, vel servitio, quod de dictis terris exigi poterit;” the Lords found, That this charter satisfied not the tenor of the bond, because the charter bore not a clause therein, cum molendinis et multuris, whereby, if the same had been inserted, the receiver might be free of all astriction and thirlage of the lands disponed to the mill of that barony whereof the said lands disponed were a part; for the Lords found, that the bond being of this tenor, obliging the maker thereof to dispone the lands in feu, to be holden of him for payment of a feu-duty allenarly, albeit the bond bore no more, neither made mention of mill nor multures, but only proported “the payment of the foresaid feu-duty therefor allenarly,” ought to import freedom and liberation of the feuer from all thirlage of these lands to that mill of the barony, either already made before the bond, or to be made any time after the same; and that that word “allenarly” ought to produce that effect; and therefore that the charter ought to be made with that clause foresaid, which may import the same: Neither was it respected what the suspender alleged, that this charter was conform to the bond in every point, and that it was not now time to dispute what that clause anent the payment of the feu-duty only appointed to be paid should import; for, seeing the charter bore that clause, it was free to him to claim the extent and effect of that clause, when any question should arise upon any deed contrary or different therefrom, which at this time was not proper to be agitated; notwithstanding whereof, the Lords found, that he ought to have liberation from all thirlage, and that the charter ought to bear a disposition of the lands cum molendinis et multuris, albeit the bond bore nothing of thirlage, mills, nor multures, but only that word, “allenarly,” as said is.
Act. Præsens.Alt. Nicolson.Clerk, Hay.
Durie, p. 603.
*** See Monteith, 4th December, 1716, infra, h. t.
