Scottish Court of Session Decisions

Subject_1 PRESCRIPTION.
Subject_2 DIVISION XV.

Interruption of the Negative Prescription.
Subject_3 SECT. I.

What diligence sufficient. - Effect of partial interruption.

Feuars of Gaitmilk-Mill
v.
Feuars of Dunfermline; viz Countess of Rothes, Lady Kinglassie, &c.

Date: 13 June 1688
Case No. No 426.

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In a declarator of the immunity of bear sold, and not ground from a thirlage of grana crescentia omnium terrarum;

Alleged for the defender; That the pursuer must prove positive, that, for the space of 40 years, &c. regularly and openly, the bear was sold without any multure exacted, and not barely negative, that the multure of any bear sold was not exacted, seeing the thirlage was constituted scripto; although such a negative probation were sufficient to hinder or take off a constitution of thirlage by prescription; 2do, The possession of any species of grain constitute scripto ought to preserve and interrupt.

The Lords sustained the first allegeance for the defender, and probation as to the immunity being only negative, they assoilzied from the declarator, and found that the immunity was not proved; and so the second point was not considered. Item, The Lords found, that the master's rents, viz. the Abbot's feu-duties, in victual and horse-corn, paid to the Abbot, (not being converted,) was free of multure. Though it was controverted by several, and not determined, if horse-corns, spent upon labouring horses, should be free.

Thereafter, upon the 14th July 1688, the Lords found, that the ancient barony being now divided into many hands, the decreets of abstraction for both, (in respect of the constitution by writ,) against several of the heritors for diverse years, did interrupt even against the other heritors not contained in the decreets quoad barley. And the Lords inclined to find, that the taking new charters from the Abbot's successor; Lord Tweeddale, within the 40 years, containing the general astriction of corns of all sorts, was an interruption of the freedom, though there was no act or document of the pursuer heritor of the mill, but of the superior.—And 20th July 1688, the Lords adhered to the promiscuous interruption by decreets.—Item, Found that teinds not being decimæ inclusæ, or converted, or valued to money, therefore ought to be free of multure.

This practique is not so very clear.—The pursuer was Thomson of Mildeane.

Fol. Dic. v. 2. p. 129. Harcarse, (Multures.) No 730. p. 206.