What Title requisite in the Positive Prescription.
Subject_3 SECT. VII.
What Title requisite for Thirlage?
Stuarts v. Abstracters of Multures
Date: 3 January 1662 Case No. No 118.
In a thirlage to the King's mill, where no writ was shown, but the thirlage constituted by possession, the teind was found not to be thirled, which belong, ed not to the King when he granted the infeftment of the mill.
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In an action for abstracted multures pursued by James and Robert Stuarts, against the Heritors and Tenants of the lands astricted to his mill of Aberlemnock, it was alleged for the defenders, That there was no astriction shown, and that they were infeft in their lands cum molendinis et multuris, long before the pursuers or their authors their infeftments in the mill. It was answered, That the mill is a mill of the King's property; and the pursuer offered to prove, that he and his authors have been in immemorial possession of the astricted multures libelled; so that in molendino regio, possession immemorial is equivalent to a legal constitution of a thirlage, by the law and practice of this nation, whatever be the law of other mills.
The Lords repelled the allegeance.
It was also further alleged, That the teinds should not be astricted by any such possession; because teinds being separatum jus from the stock, though tenants have been in use to carry their whole grains in cumulo to the mill, during the time of tacks, or otherwise; that could not prejudge the titular to draw his teind, or carry it away after apprising of tacks, or when he had power otherwise to do the same; so that, unless the titular had thirled the teinds, either by a constitution, or that he and the tenants had carried the teinds to the mill co nomine, and not confusedly with the stock, without distinction of stock and teind, they could not be thought thirled by never so long a possession. It was answered, That there is eadem ratio in the matter of thirlage, as to the teinds and as to the stock. It was replied, That there is diversa ratio, as in the exception.
The Lords sustained the allegeance, and found teinds free, unless they suffer fire and water within the lands of the thirlage: They found also horse-corn free, for sustentation of horses that labour the ground. In præsentia. See Thirlage.
Fol. Dic. v. 2. 107. Gilmour, No 12. p. 11.*** Stair reports this case:
1662. January 8.—James Stuart, as being heritably infeft in the mill of Aberlemnock, pursues the feuars of the barony for abstracted multures of their corns growing within the barony, or which tholed fire and water within the same. The defenders alleged absolvitor, because they are infeft in their lands feu of the King, long before the pursuers infeftment; which infeftment bears cum molendinis et multuris in the tenendas. The pursuer replied, That albeit that clause were sufficient liberation amongst subjects, yet this is a mill of the King's property, whereunto thirlage is sufficiently constituted by long possession, of coming to the mill, and paying in-town's multures and services, (as in Craig's opinion) and hath been so found by the Lords, 5th February 1635, Dog contra Mushet, No 109. p. 10853. The defender answered, That albeit thirlage to the King's mills may be constituted without writ, yet cannot take away an express exemption granted by the King.
The Lords repelled the defence in respect of the reply; because they thought that this clause being but in the tenendas, past of course, and when signatures are past the King's hand, or Exchequer's, they bear only tenendas, &c. without expressing the particular clause, which is afterwards extended at the Seals.
The defenders alleged further absolvitor from the multure of the teind, because that was not thirled, nor had the King any right thereto when he granted the infeftment of the mill. The pursuer replied, The defence ought to be repelled, in respect of the long possession in molendino regio, because the defenders, and their tenants, past 40 years, paid multures of all their corns promiscuously, without exception of teind; likeas there are several decreets produced, for abstracted multures of all the corns without exception. The defender answered, That the reply non relevat; for albeit long possession may make a thirlage of the King's own barony, yet that cannot be extended to other mens rights of their lands and teinds, which cannot be thirled without their own consent, or decreets against themselves called, nor do the decreets bear teind per expressum.
The Lords found the defence relevant, notwithstanding of the reply, except such teinds that thole fire and water within the barony; and likewise sustained the defence for the corns eaten by the defenders upon the ground, in the labouring, &c.
