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James Aitken & Robert Maxwell v The Tenants of Halywood. [1702] Mor 10143 (9 December 1702)
URL: http://www.bailii.org/scot/cases/ScotCS/1702/Mor2410143-081.html Cite as:
[1702] Mor 10143
Teind where the Stock is destroyed. - Multure where the Ground is destroyed.
James Aitken & Robert Maxwell v. The Tenants of Halywood
Date: 9 December 1702 Case No. No 81.
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James Aitken and Robert Maxwell, the Earl of Nithsdale's millers at his mill of Clouden, pursue the Tenants of the Carse of Halywood for their bygone abstracted multures. Alleged, The lands out of which this multure was acclaimed were of old 26 acres; but now, by the overflowing of the water of Nith, they are so drowned and inundated, that there are near 13 or 14 acres turned to a sand-bed, and become a part of the channel of the river per alluvionem, and so wholly lost and useless to the heritors; and as this would be a sufficient ground for a tenant to seek deduction and abatement of his rent, so it is as good a defence against mill-multures. Answered, The duty acclaimed is not so much the hire of service as a dry multure, which is due, whatever become of the land; for when it was lee and in grass, the multure was never denied, though it bore no corn nor multure-grain; and whatever might be pleaded, if there was an interitus totalis of the subject out of which the multure is payable, yet a partial sterility can afford no defence, else this might be obtruded against the feu-duty, or an infeftment of annualrent; for, as long as there remains as much of the subject as will pay these, they remain still due: And if these acres had never been so much improved and meliorated, yet the quantity of the multure would not have been augmented, but continued still the same; so quem sequitur commodum, eundem debet sequi et onus. And here a partial loss can infer no diminution of the multure, seeing the acres remaining will do much more than pay the same, and the river may return to its former channel, and so the ground will be recovered again.—The Lords thought, if it had been only an acre or two overflown, it would not have deserved any consideration; but being an interitus rei to the half of the whole subject, they, before answer, allowed a probation for taking trial, what was the quantity of the loss and damage.
Fol. Dic. v. 2. p. 62. Fountainball, v. 2. p. 164.
