What Title requisite in the Positive Prescription.
Subject_3 SECT. VII.
What Title requisite for Thirlage?
Bairner v. Coalzier
Date: 23 January 1673 Case No. No 122.
In a thirlage, constituted by act of court, a defender found free of a particular species, nam tanturn prescriptum quantum possessum.
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Bairner being infeft in Cultmill, with the astricted multure of Cults, being a pock of five firlots, pursues Halcroft, being a feuar of the barony, for the multure of his bear abstracted. The defender alleged, Absolvitor; because he was infeft in his lands long anterior to the pursuer's infeftment of the mill for a feu-duty, pro omni alio onere. The pursuer answered, That the defender was thirled by an act of thirlage, in the Regality Court of Culross, conform whereunto the pursuer had been in constant possession past memory of intowns multures; and such acts of thirlage are sufficient titles for prescription, to constitute a thirlage. The defender replied, That a thirlage introduced, not by contract or infeftment, but by act of thirlage, and long possession, could not be extended beyond that possession which did constitute the same; and the defender makes no opposition against the thirlage of oats or of bear, which thole fire and water within the thirle; but as for bear sold to merchants, that never tholed fire and water within the thirle, the pursuer was never in possession of any multure therefor. The pursuer duplied, That it was sufficient for him that the defender was in possession of the intowns multure for bear continually; and albeit the defender did clandestinely abstract some part of the bear, that could not import a liberation; for so there is no thirle, but there is some clandestine abstractions.
The Lords found, that this thirlage being constituted by possession, upon an act of Court, that the defender's allegeances, that he was constantly free of thirle of all the bear that tholed not fire and water within the thirle, which was not as a latent abstraction, but known and avowed, was relevant.
