Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Hoppringle of Torsonce v. James Borthwick of Stow
Date: 9 January 1696
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The Lords advised the debate between Hoppringle of Torsonce and Mr James Borthwick of Stow, anent the privilege of building a mill, which Torsonce impeded, alleging the haill lands within the barony were thirled and astricted to his mill; and Stow had raised a declarator of exemption and immunity. The lands held of the Archbishopric of St Andrews, and neither of the parties produced a clear progress:—Torsonce's first right being in 1543, from Ker of Cesford, who was the Bishop's immediate vassal, disponing the mill cum astrictis multuris: Stow's right was prior some months, being a seasine and charter of confirmation, bearing, in the tenendas, Cum molendtnis et multuris; but the charter confirmed was not produced: so that the Lords found that Torsonce's old charter founded a presumption of a constituted thirlage; and that Stow's charter of confirmation did not supply the want of the charter confirmed, though it was an adminicle thereof; but thought that presumed thirlage might be taken off by more pregnant and stronger presumptions; and allowed them to be farther heard on the nullity of Torsonce's right for not confirmation, neither by the Pope nor King, conform to the Acts of Parliament in 1584, &c. and anent the prescription. Upon a new hearing, the parties enlarged on many grounds,—the one to infer an astriction, and the other to enforce immunity and freedom; out of which the Lords could not fix on a precise relevancy, but allowed either party, before answer, to prove what qualifications they could adduce, either for astricting thirlage or exemption. Stow did much insist on this ground, That the Lords had oft sustained a charter and seasine not bearing astriction sufficient to import the lands were disponed cum omni jure tanquam optimum maximum, and free of any servitude:—see 26th November 1631, Oliphant; 7th December 1677, Henderson; and, though the contrary was once decided, 17th July 1629, L. of Newliston, yet that decision never had a marrow; and this being a church regality, and an ecclesiastic feu, the Lords were always averse to sustain the astriction of such lands without a positive constitution; as appears, 12th July 1621, Douglass; 13th July 1632, The Earls of Morton and Crawford against The Feuars of Muckart.
