What Title requisite in the Positive Prescription.
Subject_3 SECT. VII.
What Title requisite for Thirlage?
Colonel James Montgomery v. Wallace and Bouie
Date: 24 June 1665 Case No. No 120.
Thirlage found constituted by an old decree, against tenants, with 40 years possession conform, though the heritor was not called.
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The Colonel, as heritor of the mill of Tarbolton, having pursued Bouie for abstracted multures of Drumlie. It was alleged for Bouie and Wallace of Garricks, who had disponed to him with warrandice, absolvitor; because Wallace and his authors were infeft in the mills and multures, before the pursuer's infeftment of the mill. The pursuer replied, That the thirlage was constituted by a decreet in anno 1569, against the tenants of Drumlie therein mention. The defender answered, 1st, That the heritor was not called; 2dly, That it did not appear that these tenants did dwell in Drumlie Wallace, there being two Drumlies lying contiguous, one called the Dinks Drumlie, the other called Drumlie Wallace; 3dly, That for any possession, they offered them to prove that it was interrupted from time to time by going to their miils. The Lords ordained witnesses to be examined, binc inde, whether the tenants in the old decreet did possess Drumlie Wallace or the Dinks Drumlie; 2dly, What possession the pursuer and his authors had; 3dly, What interruptions the defender and their authors had—Many witnesses being examined, hinc inde; it was clear, that since the year 1653, when Caprington the pursuer's author died, there was no possession, and there was not above 28 years possession proved before, because there was no witness of that age that could have been of discretion 40 years before the year 1653; but they found it proved, that the persons mentioned in the old decreet, or some of them, were possessors of Drumlie Wallace; and also there was a tack produced, set by the pursuer's author to one of the tenants of Drumlie, wherein it was provided, that the tenant should relieve him of the multures, and did not express what mill.
The Lords found the old decreet, although the master was not called thereto, was not sufficient alone; yet with a long possession thereafter, they found the same was sufficient to constitute the astriction, and found the interruptions by going to other mills were not so frequent and long but they might have been private and clandestine, and the probation during memory, before this controversy, was found to instruct anterior possession, to complete prescription. See Proof.
Fol. Dic. v. 2. 106. Stair, v. 1. p. 286.*** Newbyth reports this case:
In an action of abstracted multures pursued by Colonel James Montgomery of Collfield against the Tenants of Drumlie, the Lords found the depositions of the witnesses adduced for proving of Colonel James and his authors, their possession, albeit they did not prove 40 years possession fully, yet being joined with decreets of the date 1569, and other subsequent decreets, sufficient ad victoram causæ, to decern against the tenants in the multures libelled, and found the astriction thereby sufficiently proved.
