A charter from a subject cum molendinis in the tenendas liberates from astriction.
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William and Andrew Harrowers, joint proprietors of the mill of Milnathort, pursued Andrew Horn of Shanwell in a declarator of astriction of his said lands to the said mill; and founded on a charter 1697, from the Lord Burleigh, of the mill, with the multures, &c. of the barony of Burleigh and Shanwell; and the defender insisted on a charter 1540, granting his lands tenendas cum molendinis, multuris, &c. reddendo a feu-duty, pro omni alio onere.
By the proof it appeared the defender had come to the will, and paid a less duty than the sucken; and had assisted in repairing the dam and mill-house, part of which was allotted to him; and also that he had gone to other mills.
Pleaded for the pursuers: This is no mill of a barony, which presumes astriction; and the grant, cum molendinis in the tenendas, has not the effect to liberate the defender’s lands, who has come to the mill and paid services; and the abstractions have not been such as to acquire a liberation.
Pleaded for the defender: A grant cum molendinis, in a subject’s charter, is an effectual liberation; the reason why it is not so in the King’s being that the signature goes no further than the word tenendas; and the rest is filled up in the charter by the writer: The defender has come to the mill, but has not paid in-town multure; and he has gone to other mills; and the assisting to repair the mill and dams, has been done out of good will, or for some favour granted by the miller.
The Lords found the defender’s lands not astricted.
See 28th June, 1751, Russel against Harrowers, voce Warrandice.
Act. Boswell & Bruce.Alt. Lockhart and A. Pringle.
D. Falconer, v. 2. p. 132
