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The clause “cum molendinis et multuris,” in the tenendas of a charter, with a feu-duty pro omnio alio onere, found, in certain circumstances, not to liberate from astriction.
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By contract passed betwixt the umquhile Laird of Innerwick and umquhile Alexander Hamilton of Easterneith, anno 1572, the Laird is obliged to give a feu infeftment of the said land to the said Alexander, who, by his bond, is obliged that he, being infeft, shall bring his corns to the mill of Botehaitt, and pay such a multure thereof. Sir Alexander Hamilton, son and heir to the Laird of Innerwick, contracter, pursues Matthew Hamilton, son to the said Alexander of Easter. neith, for his abstracted multures. It is excepted, that he is infeft by the pursuer in the said lands cum molendinis et multuris, without any relation to the said contract, whereby he is made free from any restriction proceeding by virtue of the said contract. To which it was replied, That seeing the Laird of Innerwick was bound by the said contract to infeft him in the said lands, with the condition of coming to his mill, the posterior infeftment must be ruled by the said contract; except the defender allege that he or his father had got another infeftment for fulfilling of the contract, from the Laird of Innerwick, than this whereupon he founded this exception; but if there was no other, but this was the first granted after the said contract, it must be ruled by the said contract; and the general clause cum molendinis inserted cannot annul the special restriction contained in the said contract, except the said thirl had been discharged per expressum. Which reply the Lords found relevant.
Auchinleck MS. P. 130.
Durie's report of this case is No. 65. p. 10768. voce Prescription.
