Stuart of Kincarrochie, and Oliphant, his Grandmother, v. Grant of Bonhard
Date: 26 January 1698 Case No. No. 56.
Whether the benefit of a possessory judgment takes place in multures?
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In this action, Stuart of Kincarrochie, and Oliphant, his grandmother, pursue Grant of Bonhard, for astriction, and for the bygone abstracted multures. The defender alleged, Absolvitor, because both being feus of the Abbacy of Scoon, I stand infeft in my lands cum molendinis et multuris, and accordingly have a mill in my own ground, and have been seven years in possession of my multures before your citation. Answered, The benefit of a possessory judgment takes no place in multures no more than in annual-rents, and other debita fundi and teinds ; seeing it is res incorporea et propriæ possessionis incapax, and a servitude, whereas res sua nemini servit. See Stair’s Institut. Lib. 4. Tit 17. Of Declarator of Servitudes; and the case in 1695, between Duff of Braco and Sinclair of Haddowmilne. The Lords sustained Bonhard’s defence upon a possessory judgment. Then the pursuer alleged, that he had several decreets of declarator against the possessors of Bonhard, finding them thirled, and particularly one in 1668. Answered, These being against my Authors, I, a singular successor, was not obliged to know, and I have prescribed the benefit of a possessory judgment since the last of them. Replied, 1mo, Decreets of astriction need not be renewed against every heritor, but serve though the lands should pass through twenty hands, even as decreets of poinding the ground do. 2do, Decreet for abstracted multures against tenants, wadsetters, or liferenters, will never infer a thirlage against a proprietor not called, See 12th July 1621, Douglas contra The Earl of Murray; No. 113. p. 10851. and 18th July 1632, the Earl of Morton contra the Feuars of Muckart, No. 23. p. 15970. The Lords found this decreet of declarator stopped the septennial prescription even quoad a singular successor as to a possessory judgment in mill-multures. See June 28, 1636, Maxwell, No. 32. p. 10639.
