Solemnities requisite in the execution of diligence. - Purification of condition debts.
L Innerweik v. Hamilton
Date: 29 July 1634 Case No. No 38.
Although a decree of thirlage is only declaratory; found that a charge of horning might be given upon it.
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A decreet being recovered by the L. Innerweik, declaring the corns growing upon the defender's lands to be thirled to the pursuer's mill of Bancrief; which decreet being suspended, and craved to be reduced by the defender, the reasons thereof were not found relevant; therefore the decreet and letters were found orderly proceeded. And the defender thereafter alleging, That seeing this decreet was only a declarator of the thirlage, whereupon no execution was presently to follow, that therefore no letters of horning ought to be granted thereupon against the party; but that thereupon the pursuer, when occasion should so fall out, might pursue his action for abstracted multures, and not to have liberty whenever he pleased to charge him, under the pain of horning, to come and grind his corns, which he might do at unseasonable times, and put the party always to unnecessary toil and charges of suspensions. The Lords found, that upon this declarator the pursuer might charge the party to grind his corns and pay the multures thereof, conform to the thirlage, at convenient times; and, if the pursuer should execute these charges in malice or unjustly, they would consider thereof and grant the party suspension, and have regard to modify expenses to him; but they found that he might charge him to come and grind, &c., the same being done in due time, and that he ought not to be debarred from the like charges, as if the same could not be permitted in law to proceed so summarily, and as it were merely necessary and only competent in these cases to intent action for abstracting multures; which, albeit it was competent, yet was not found so necessary as if the foresaid charges could not be direct; for, if the contract betwixt the parties which bears thirlage were registrate, charges of horning would pass thereon, so here in the declarator upon the contract, charges may be suspended by obedience and caution to obey.
Act. Nicolson et M'Gill.Alt. Stuart et Lermonth.Clerk, Scot.
Fol. Dic. v. 1. p. 538. Durie, p. 726.
