Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Sir David Carnegie of Pittarrow, v. Sir Alexander Falconer of Glenfarquhar
Date: 6 July 1694
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July 6.—Sir David Carnegie of Pittarrow against Sir Alexander Falconer of Glenfarquhar, upon a decreet of miln multures, and astriction of Sir Alexander's lands of Scotston and Powburn, to Pittarrow's miln of Conveth, which was feued out to the Wishearts of Pittarrow, by the abbots of Aberbrotheck in 1225. Sir Alexander craved to be reponed; in regard the point of right was not deductum in judicium, nor the declarator of astriction insisted in on the one side, nor the declarator of exemption and immunity on the other. Sir David opponed his decreets; and though, at first, it was only an action for abstracted multures, yet the point of right came in to be determined in the debate. The Lords found it proper, ere they would decide, to name two of their number, with the reportei, to essay an understanding between the parties.
Vol. I. Page 628.
July 19.—The case of Pittarrow against Glenfarquhar, mentioned 6th current, was again reported: and, after perusal of the decreets, the Lords, by the plurality of five against four, found the point of right of the constitution of the thirlage was not deductum in judicium; and, therefore, opened the decreet, and allowed Glenfarquhar's lawyers to be heard on the material justice of the cause, and whether his lands were thirled or not, or if he had prescribed an exemption and immunity.
In this process, it had been debated, whether the master's farm was thirled with the omnia grana crescentia, seeing it excepted nothing but seed and teind. —See, for this, Durie, 11th July 1621, Keith.
