Subject_2 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Forrest v. Cleilland and Others
1671.
June13 and14.
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June 13.—This is an action for abstracted multures. Alleged for Cleilland, —No process against him and his tenants, because he was never thirled to the pursuer's mill. Answered,—Ought to be repelled, because in anno 1619, (the mill then belonging to the Earl of Lauderdale,) Cleilland's lands, with the consent of the possessors and tenants, were thirled by an act of the Baron's Court. Replied, —Whatever act was then made, it cannot prejudge him now, in respect thereafter he got from the said Earl a feu charter of the said lands, which charter bore an express clause cum molendinis et multuris; by which deed he was clearly liberated, and the servitude of thirlage discharged. Duplied,—That in anno 1619, when the thirlage was constituted by an act of Court, the Earl was heritor both of the mill and of this piece land now belonging to Cleilland. Some time after he feued the mill to this pursuer's predecessor, with its haill thirlage; then he feued out that piece land now bruiked by Cleilland; will any say, that a charter given by him cum molendinis et multuris will take away the prior thirlage in prejudice of me, who, before that charter, had acquired the heritable right of the mill? and though the same person that constitutes the thirlage grants also this charter, viz. the Earl of Lauderdale; yet he gives it not till after he is denuded of the mill, at which time he has no power to grant it. It is out of question but an express or tacit discharge of thirlage by him who constituted the thirlage, (he being still in that same capacity,) will be sufficient; but that is not our case. However, to exeem all scruple, it is offered to be proven, that this defender has been, past memory of man, he and his predecessors, in use to come to this mill by virtue of that act of thirlage. This was sustained as relevant.
Advocates' MS. No. 169, folio 98.
June 14.—In the said action it was farther alleged, that the act of the Baron Court being only the deed of the clerk, who needs not so much as be a common notary, could never be a sufficient constitution of his lands being thirled; seeing the assertion of a notary, if the party be not also subscribing, will not bind a man above L.100 Scots; whereas this is a matter hugely above that value. Answered,—Ought to be repelled, in respect of his immemorial possession since the said act. Replied,—Possession can never fortify the said act; seeing whatever use and custom they have been in of coming to this mill, the same was altogether voluntary, and so cannot tie them now unless they please. Duplied,—Their custom of coming to this mill, following upon an act of Court astricting them thereto, which is a legal compulsitor, will never be reputed a voluntary act, but must be presumed to be in obedience to that legal compulsitor.
The Lords sustained the act and possession following thereon.
