Distinction between thirlage constituted so as to affect the lands, and a personal contract relative to the multrues.
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Mr. Alexander Adair pursues M'Culloch of Mooll for abstracted multures from the mill of Drumore, and produces a contract betwixt him and Thomas Kennedy of Mooll, the defender's author, bearing, “Thomas to be obliged to bring his corns growing upon the third part of Mooll to that mill, paying the twenty-fourth grain, and not to hinder his tenants to come to the said mill, and to pay the sixteenth grain, as accords, with the mill services and knaveship used and wont;” and on the other part, Mr. Alexander, as donatar to the ward of Kinhilt, “grants liberty of fuel and heather to the possessors of Mooll out of a roum of Kinhilt's adjacent, according to which there was possession before this Mooll's right, which did perfect the thirlage as a real burden effectual against the singular successor, and does acknowlege use and wont, knaveship, and mill-services. The defender alleged absolvitor, because there can be here no real constitution of a real servitude of thirlage, because the pursuer's right was but temporary as donatar, and therefore it is but a personal contract of coming to the mill, during the donatar's right for fuel and heather, which is the mutual obligement, and presumed to be the cause, though the contract bears not expressly, for the which cause, seeing it bears no other cause of Mooll's obligement: And as to the tenants, it is but a permission as accords, which must relate both to the multures, knaveship, and services; and use and wont cannot constitute the service, except in the King's mills, neither is this thirlage completed by prescription. The Lords found there was no thirlage constituted, but a personal contract; and therefore assoilzied the defender as singular successor. The said Mr. Alexander did also insist for the teinds of the mill, conform to a tack by way of contract betwixt him and the said Thomas Kennedy, whereby the said Mr. Alexander set the teind of Mooll for £.100 yearly. The defender alleged absolvitor, because he had no right to the teind, and could not be burdened with his author's tack, which his author might have renounced, if it had not been by contract, and his personal obligement cannot burden his singular successor, but he is content to be liable to the fifth part of the payable rent till a valuation.
The Lords found the defender liable only for the fifth part of the payable rent till the valuation, and not by the tack-duty, unless he had been in use of payment of it, whereby he would be liable by use of payment till interruption.
