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Scottish Court of Session Decisions >>
William Mackie v The Maltsters of Falkirk. [1746] Mor 16023 (18 July 1746)
URL: http://www.bailii.org/scot/cases/ScotCS/1746/Mor3616023-089.html Cite as:
[1746] Mor 16023
The superior of Falkirk having his charters cum astrictis multuris villæ, and having granted charters to the feuers with astriction of the grana crescentia, it was found on proof to be an astriction of invecta et illata, and that the inhabitants could not erect steel-mills.
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William Mackie, tacksman of the mills of Falkirk, pursued some of the distillers and maltsters there in a declarator of astriction, and for abstracted multures, in which the Lords, 21st July, 1744, “Having considered the testimonies of witnesses and writs produced, found that the defenders were only astricted to the pursuer's mill as to their grana crescentia; and found that the defenders their erecting and using steel mills within the town and barony of Falkirk was unwarrantable.”
Each of the parties reclaimed against that part of the, interlocutor whereby they thought themselves aggrieved.
The tacksman founded on a charter, 21st September, 1643, in favours of the Earl of Callendar, of the lands and barony of Callendar, comprehending dimidietatem villæ et terrarum de Falkirk, cum astrictis multuris totius baroniæ de Callendar, et totius villæ et terrarum de Falkirk; as also on a charter 1606 of the lands and barony of Falkirk, comprehending terras de Falkirk, being formerly part of the barony of Abbotskerse then erected into a new barony.
The defenders founded on charters, by the superior to their authors, of certain proportioned parts, in some terrarum, and in others villæ et terrarun de Falkirk, with astriction of the grana crescentia only.
The pursuer contended, That the Town being astricted, this behoved to be understood of the invecta et illata; and the clause in the defenders' charter referred only to the lands.
The defenders, That their charters behoved to be the rule, that by them the lands only were astricted, the house being at first intended for the use of the labouring, but, by building other houses for trades-people, the place had grown to its present bulk; and it was an ordinary way of speaking to express villages of farm houses by town and lands, and yet if such were astricted, it would not infer an astriction of invecta et illata.
The argument concerning the steel mills proceeded on the supposition of the astriction being only of grana crescentia; but this being altered, on consideration of the superior's charter, and the proof, the Lords easily agreed to adhere to that part of the interlocutor.
Cited for the pursuer in this argument, Stair, p. 294. (304.)£ “But though,” &c. 19th December, 1740, Town of Edinburgh against Mrs. Cleghorn, No. 80. p. 16019.
For the defenders, Craig, L. 2. D. 8. § 8.
Some of the Lords declared they would have been of a different opinion, if the astriction had only been of grana crescentia.
The Lords, 9th July, 1744, found the defenders inhabitants of Falkirk thirled and astricted to the mills of the barony, as to the malt only brought in and consumed within the said town; and adhered to the former interlocutor, finding that the defenders their erecting and using steel mills within the town and barony of Falkirk was unwarrantable.
Act. Graham, sen.Alt. Haldane and W. Grant.Clerk, Forbes.
D. Falconer, v. 1. p. 165.
