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Scottish Court of Session Decisions >>
Colonel Stewart of Sorbie v William Agnew of Castlewigg. [1701] 4 Brn 582 (23 July 1701)
URL: http://www.bailii.org/scot/cases/ScotCS/1701/Brn040582-0077.html Cite as:
[1701] 4 Brn 582
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
Colonel Stewart of Sorbie v. William Agnew of Castlewigg
Date: 23 July 1701
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Colonel Stewart of Sorbie, brother to the Earl of Galloway, pursues William Agnew of Castlewigg, for the multures of his lands, on this ground:—That, by a bond, his predecessors had thirled his lands to his mill, and obliged himself to pay the thirteenth corn for all oats growing on the said lands, seed and horse corn excepted.
Alleged,—Multure is due for service of grinding; but I have no grindable corn growing on my lands, because I have parked it, and turned it into grass; and, by the Act of Parliament 1661, in favour of inclosed grounds, all such lands are declared exempt and free from all manner of burdens; and when he thinks fit to till his land again, he will be liable for the multure, but not till then.
Answered,—The bond bears to have been given for onerous causes, and obliges him to abide thereat, renouncing all exceptions; so no voluntary deed of his can evacuate the thirlage, and render it altogether elusory; and he cannot so change the nature of the ground as to frustrate it totally. Law encourages improvements, but not to the prejudice of others; and, if your land-rent be thereby bettered, you may the more freely pay a consideration for your multures; and the Acts of Parliament exeme from cess for a time, but never meant such private transactions as a bond of thirlage: and, by casting their lands into grass, they might as well plead to be free of parsonage-teinds, because they have no arable ground bearing corn.
The Lords saw inconveniencies on either hand. Every heritor ought to have the free disposal of his own property for his own advantage; and yet you ought not to use it so as to deprive me of that which is reputed a fixed rent, and uses to be bought and sold. For clearing the case, and fixing marches, the Lords declared they would hear the cause in their own presence. A partial abatement of multure would be less regarded, where one converts a part of his ground from arable to pasturage, for his own advantage, and not in œmulationem vicini vel domini superioris; but a total extinction deserves a farther inspection.
