The words cum molendinis et multuris, in the clause of tenendas of a vassal's charter, import, per se, a discharge of thirlage.
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The predecessors of Mein had obtained from the proprietors of the barony of Roxburgh, of which their lands were a part, charters containing, in the clause of tenendas, the words “cum molendinis et multuris.” The Duke of Roxburgh, however, having sued Mein in an action of abstracted multures, contended, That the above expression, being confined to the tenendas, and not found in the dispositive clause, was not per se sufficient to confer immunity from the astriction; and urged, in support of his plea, the decision in the case of the Earl of Breadalbane against Macnab, No. 102. p. 16041.
But the Court were clearly of opinion, that the discharge was not less effectual than if the words in question had occurred in the dispositive clause, where, indeed, it was observed, they would not, from the nature of the right, have been so properly ingrossed. It was likewise observed, that the judgment in the case of Macnab, which was contrary to that now given, ought not to be regarded as a precedent.
The Lords assoilzied the defender.
Lord Ordinary, Eskgrove.Act. Solicitor General, H. Erskine.Alt. Cullen, Dalzel.Clerk, Home.
Fac. Coll. No. 221. p. 349.
