The Heirs of Russel of Gartness, and More, their Assignee, v. Waddel of Easter Moffat
1723.
December. Case No. No. 69.
Implied discharge of a thirlage.
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The pursuers insist in a process of abstraction against the said Waddel of charge of a Easter Moffat, and as their title produce a disposition from Anna Duchess of Hamilton, in October, 1657, not only of the mill of Gartness, with the multures and sequels, but per expressum disponing the multures and sequels of several tenements of lands, as thirled and astricted to the mill of Gartness, and, amongst others, the multures and sequels of the lands of Easter Moffat. It was pleaded for the defender, That he derived right by progress from Cunningham of Gilbert. field, who, as appears by the transumpt of a charter from the family of Hamilton, in the year 1611, had the right of the lands of Gilbertfield, whereof Easter Moffat was a part, ” Tenendas per omnes rectas metas prout jacen. in longitudine et latitudine, in omnibus æificiis, molendinis, multuris et eorum sequelis, &c. reddendo denarium nomine albæ firmæ, si petatur tantum, pro omni alio onere.” And they contended, That their authors having a charter cum molendinis et multuris in the tenendas, and likewise bearing in the reddendo a blench-duty pro omni alio onere, long before the disposition of the lands of Gartness and mill, this imported a liberation and discharge of any former astriction; and therefore the astriction of the lands of Easter Moffat, by the disposition, charter, and infeftment 1657, was a non habente potestatem.
“ The Lords sustained the defence of immunity, by virtue of the defender’s charter cum molendinis et multuris in the tenendas, and a feu-duty pro omni alio onere.
