Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES DALRYMPLE OF STAIR.

Captain Guthery
v.
M'Kerstoun

Date: 8 December 1671

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Captain Guthery having married the Lady M'Kerstoun, who was infeft in the miln of M'Kerstoun, with the astricted multures; and the tack of the miln is from Whitsunday to Whitsunday, for farm, whereof the one half is payable at Candlemas, and the other half at Whitsunday;—the liferenter died after Martinmas, but before Whitsunday; and the question having arisen, whether the liferenter had right to the whole rents of the miln that year, 1669, having died after Martinmas 1669; which having been decided before, upon a petition, it was taken to consideration again. Some were of opinion that miln-rents had no legal terms as land-rents, but were due de die in diem, as the rent of a salt-pan, coal-heugh, or fishing; because the rent was due for the service of the miln; so that, if the liferenter had been in possession of the miln, and had died so, the heritor would enter to possession, and have the benefit of the whole multures till Whitsunday. But whatsoever might be the case of a miln without land or thirl,—yet, in this case, the Lords adhered to their former interlocutor, and found, that, there being here astricted multures, the same had legal terms, as farms of land, which are Whitsunday and Martinmas: and that the liferenter, surviving both terms, had right to the whole; albeit, by the conventional terms, the one half was due after her death, which, though it delayed her payment till Whitsunday, yet took not away her right established by the running of the legal term at Martinmas:—and therefore adhered to their former interlocutor.

Vol. II, Page 19.