What Title requisite in the Positive Prescription.
Subject_3 SECT. VII.
What Title requisite for Thirlage?
Henderson v. Arnot
Date: 7 December 1677 Case No. No 126.
Infeftment in a mill bearing per expressum the multures of the defender's lands, with 40 years possession, found a sufficient constitution of thirlage, though flowing a non hahente potestatem.
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Robert Henderson having obtained a decreet for abstracted multures against Arnot of Greenside, before the Sheriff, he suspends, and raises reduction on this reason, That he is infeft in the lands of Greenside for a feu-duty, pro omni alio onere; and yet the Sheriff sustained the astriction upon the charger's infeftment, which was posterior to the suspender's; and albeit it bear an infeftment in the mill, with the multures, &c. of the suspender's lands per expressum, yet being posterior to the suspender's right, ab eodem auctore, it could not prejudge the suspender, being a non habente potstatem; and as for the long coming to that mill, which is the other ground of the decreet, it was meræ voluntatis, and could infer no astriction. It was answered for the charger, 1mo, That the suspender's infeftment, granted by the Abbot of Balmerino, though it bear a feu-duty proomni alio onere, that could not import that the lands which before were thirled to the Abbot's mill, which mill paid a duty, that the mill-multures were past from, which behoved to infer an alteration in the rent of the mill, which is never presumed but when it is expressed by the clause cum molendinis, &c. For the superior's jurisdiction is not taken away by the clause pro omni alio onere 2do, Though the suspender's charter had made him free, yet he is now become astricted by 40 years possession by a title, viz. the charger's express infeftment in the multures of his lands, which, being posterior to the suspender's infeftment, would not be sufficient alone, but it is a sufficient title for prescription, much more than an act or enrolment of a baron court, which with 40 years possession doth unquestionably constitute a thirlage. It was replied, That the possession was only of out-sucken multures, viz. a peck of six firlots, which could not import thirle multures, and the suspender did oftimes go to other mills.
The Lords sustained the decreet proceeding upon an infeftment in the mill, with the multures of the suspender's lands, per expressum, and 40 years possession proved, seeing there was nothing alleged or proved of interruption, by going to other mills for some whole years; for a clandestine going to other mills with a part for several years, would not be relevant; and, though the multures be small, yet there was nothing proved of a greater in-sucken multure, neither did the charger's infeftment express a special quantity of multure, which therefore behoved to be regulated according to use and wont; but the Lords found not the thirlage constituted, because the lands were thirled after they were feued, and did not bear cum molendinis, &c. but found the feu pro omni alio onere did import liberation from the thirlage. See Thirlage.
In the suspension of the decreet for multures at the instance of Henderson contra Arnot, decided the 7th instant, the suspender further alleged, That seeing the thirlage was found perfected by prescription of the charger's possessing the multures in question 40 years; the suspender offered to prove interruption, in so far as he went oft-times to other mills, and, that this might not appear clandestine, he offers to prove that he took his sacks unground out of the pursuer's mill. The charger answered, 1mo, That this allegeance is competent and omitted; 2do, That it is contrary to his libel and probation of a constant possession 40 years; 3tio, That it is not relevant, because this mill being a burn-mill, did oft-times want water, at which time the suspender might be suffered to go to other mills, but no less could be relevant than abstraction for some whole years. The suspender replied, That competent and omitted is not sustainable as to decreets of inferior courts, especially where the point is not understood by ordinary procurators, such as the constitution of thirlage by possession, or interruption thereof, neither is their any contrariety; but if the suspender be reponed, the pursuer having libelled 40 years possession, he may propone interruption, and both would be admitted to prove, because the defence doth not acknowledge the libel; so here the charger having proved his possession, the suspender should be admitted to prove his interruptions, either via facti by intermission or hinderance, or via juris.
The Lords sustained the allegeance of interruption, not by abstraction of a part of several crops, but by abstracting of whole crops, one or more, when the mill was in case, but not till the suspender or his procurator deponed de calumnia & cum onere maximarum expensarum, seeing in effect the charger was put to a new process; but the Lords allowed the charger to produce his testimonies taken by the Sheriff of his possession, or produce new ones.
Fol. Dic. v. 2. p. 107. Stair, 2. p. 573, & 575.*** Fountainhall reports this case:
One pursues for abstracted multures. Alleged, He is infeft by the Abbot of Balmerino for payment of a feu-duty pro omni alio onere, without mention of any astriction, and prior to the feu of the mill. Replied, Mitchell Balfour stands infeft in this mill of Denmiln, and in the multures of these lands per expressum, and has been 40 years in possession. The Lords repelled the allegeance, in respect of the reply; and found it actually prescribed; and found such an infeftment of greater force than an act of thirlage or a rollment of Court clad with possession, unless it can be proven the defender had paid a less quantity of multure. Further alleged, The prescription was interrupted, because they went publicly and in the day-time to other mills, and did all that other outsuckeners used to do. Answered, Competent, and omitted before the Sheriff; 2do, Non relevat, unless it were a continued abstraction of the hail corns together, and at a time when the mill would serve. The Lords repelled competent and omitted, being in apicibus juris, and not known to ordinary inferior procurators; and found this relevant, that he had abstracted his whole corns for a whole year together; and found the abstraction of single bolls in a clandestine way, or when the mill was not able to serve, was not sufficient to elide the thirlage.— bill was given in shewing the impossibility of proving this; but offered to prove abstraction for 20 years together of great quantities, as 20 bolls together. Many of the Lords were convinced by this bill; yet it was on the of January 1678 refused, by a plurality of votes.
