Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, collected by JAMES BURNETT, LORD MONBODDO.
Subject_2 MONBODDO.

Walter Stuart of Urchilberg
v.
John Stuart of Urrard

Date: 20 November 1739

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In the year 1556 the Earl of Athole feued the lands of Urchilberg, cum molendinis, multuris, et earundem sequelis, in the tenendas of the charter; and, in the reddendo, there are mentioned eight bolls of multure-victual, with the clause pro omni alio onere. In the year 1667 the Earl of Athole grants a charter of the mill of Auldlune, cum servitiis et sequelis of several lands, and particularly of the lands of Urchilberg. The question comes betwixt Walter Stuart, proprietor of the lands, and John Stuart, proprietor of the mill, about knaveship and service, which John Stuart pretended the lands of Urchilberg were obliged to pay to his mill. For the proprietor of the mill it was said, 1mo, That the clause cum molendinis, &c. being only in the tenendas, and not in the dispositive clause of the charter, was not a sufficient immunity from the thirlage altogether, but only a liberation from multures. 2do, That the tenants of Urchilberg were in the constant practice of coming to the mill, and grinding their corns there; which, together with the infeftment in the mill, cum servitiis et sequelis, was enough to constitute prescription, and establish a servitude of paying sequels and services, to which the thirlage in this case only extended.

To this it was answered, That the clause cum molendinis, &c. even in the tenendas, was a sufficient discharge of thirlage, according to the opinion of our most eminent lawyers, and numberless decisions; and especially in this case, where there is so much due by the reddendo for multures. As to the charter of the mill, cum servitiis, the Earl of Athole had no power to grant these services, having discharged them so long before in the charter of the lands. 2do, As to the prescription, their coming to the mill was meræ voluntatis, the mill being conveniently situated for the tenants of Urchilberg, and their corn ground there as cheap, or cheaper than it could be any where else, for they payed no outsucken multure, but only the hire of the servants; so that no prescription could be inferred from thence.

The Lords seemed to think there was no astriction in this case, and could hardly conceive a thirlage of sequels and services without multures; but, at the desire of the pursuer, before answer, they allowed a proof, whether the tenants of Urchilberg were in use to perform services to the mill, such as repairing the mill-dam, carrying millstones, &c. which the Lords thought could not be presumed to be meræ voluntatis, and so might remove the objection to the prescription.