Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 PART AND PERTINENT.
Subject_3 Mills carried by a disposition of the lands with parts and pertinents.

John Ramsay
v.
William Rose

Date: 17 June 1777

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[Faculty Collection, VII. 410; Dict., App. I., Part and Pert., No. 2]

Braxfield. The objection is, that the claimant had no right to the mill, which is a separatum tenementum. Two questions may arise,—1st, Whether any part of the valuation ought to be stated to the mill? 2dly, Whether the complainer has right to the mill? If he has, the first question is unnecessary to be determined. The general rule certainly is, that a mill does not pass as part and pertinent; but I doubt as to the application of it to this case. All such questions are quæstiones voluntatis. So, in the case of teinds, whenever it appears to be the intention of the disponer to convey teinds, they will be held as disponed,—See Dunning against Creditors of Tullibol, in Falconer's Decisions. If once a mill is established as a distinct tenement, it cannot be conveyed as part and pertinent: but here it does not appear that this mill was ever considered as a distinct tenement. Here the proprietor conveyed just what was in his own titles.

On the 17th June 1777, The Lords sustained the complaint, and ordered the claimant to be enrolled.

Act. R. Blair. Alt. A. Elphinston.