Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.

Henry Bardiner of Cultmiln
v.
William Colziar of Halcroft

Date: 26 November 1672

Click here to view a pdf copy of this documet : PDF Copy

Henry Bardiner having a feu of the Miln of Cults, with the astricted multures of all grindable corns, whereupon he was infeft, and confirmed by the superior, and did obtain decreet against Colziar; who did suspend, upon this reason;— That he could not be liable for the multures of any bear not tholing fire and water, because he stood infeft in the lands of Halcroft, free of all restriction; which were feued long before any infeftment or confirmation granted to the charger, of all grindable corns; and had never been in use of paying any multures, but of oats and bear, which were ground for the suspender's use; but never for any bear sold to a merchant.

It was answered, That the charger standing infeft in the miln, with the astricted multures of all grindable corns; and being confirmed, and having acts of thirlage, and decreet conform, the suspender, by payment of multure for his oats, must be liable for all other grindable corns, seeing his possession of a part gives him right to the whole: as was found by a decision betwixt the Laird of Waughton and Foord, in anno 1635;—whereby it was expressly found, That omnia grana crescentia, being thirled, albeit the feuar of the miln had not been in possession of the multures of all corns growing by the space of 40 years; it being sufficient that, by virtue of the astriction, they had been in possession of a part.

The Lords, notwithstanding, did find the reason relevant to assoilyie from the multures of bear sold to merchants, or not tholing fire and water; in respect that the defender's authors were infeft by the Abbots of Culross, without any restriction to the miln of Cults, long before the Abbots' confirmation of the charter granted to the charger's authors, bearing all grindable corns:—and found, That the acts of thirlage or decreets could not infer payment of the multure for such bear as was sold, unless that either the heritor had consented thereto, or made payment of the multures of bear, in obedience of the said acts or decreets; without which the superior and vassal could not collude to bring so grievous a servitude upon him, not being obliged thereto by his own infeftment.

Page 279.