Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION. 1686 and 1687.
Alexander Hamilton v. Sir John Ramsay of Whitehill and David Plenderleith of Blyth
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See the prior part of the Report of this case, Dictionary, page 16,404.
1686. December 17.—Alexander Hamilton against Ramsay and Blyth, mentioned 1st December 1686. The Lords, on a bill given in by the defenders, allowed Alexander the pursuer, in fortification of his writs, to prove that the defenders, their tenants, or authors, had been these 40 years bygone in use to come to his mill; and allowed the defenders to prove interruptions: for he did not condescend on the usual ways of constitution of thirlage; for their lands were not astricted by his charter per expressum; and their own charters did not mention any thirlage, but in the tenendas bore cum molendinis et multuris, though not in the dispositive part; and their feus from the Convent and Abbot of Newbottle were older than the feu of the mill; and he had no bond of thirlage, nor any acts, or rolls of Court, nor decreets against them for abstracting; but only pretended it was the mill of the barony, and he was in possession. The use to come to a mill is meræ facultatis; et nunquam præscribit jus astrictionis except in molendino regio; which some also extend, with Craig, to ecclesiasticum. Vide 1st December 1687.
Vol. I. Page 438.
1687. December 1.—The probation led at Alexander Hamilton's instance, against Sir John Ramsay and David Plenderleith, as mentioned 17th December 1686, for proving their astriction to his mill, was debated; and the President was of opinion, that his rights of the mill from the Abbots of Newbottle not thirling expressly the lands of the barony, and their feus being prior, without any mention of astriction; they were not liable, seeing there was not forty years' uninterrupted possession, but they had gone and come pro libitu; and there being no writ to constitute the thirlage, nor sentences nor other compulsitors, the possession should be very full and clear. And, accordingly, this case being advised on the 16th of December, the Lords assoilyied them from the thirlage; finding no constitution of it, either in the charter of the dominant or servient tenements, nor by bonds of thirlage, sentences, seizures, and interruptions via facti, nor so much as Acts of Court. See Stair, 12th December 1673, Pittarow; and the other cases in his Index, voce Thirlage. But, on a bill of Alexander's, read by the Lords on the 23d of December, when the Session was up, and when they were only meeting about the cleansing of the streets, and their other public business, they stopped extracting of the decreet absolvitor till the 12th of January: and on that day, upon his allegeance, that, in the register of the Abbacy of Newbottle, in my Lord Lothian's custody, there were decreets of thirlage or Acts of Court, they granted a diligence for recovery thereof; though he was pursuer, and should come paratus, and know his author's rights, and not seek new diligences and propone new allegeances in a concluded and advised cause.
