Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 THIRLAGE - PRESCRIPTION.
Subject_3 Thirlage acquired by Prescription, upon a grant of the Mill and Pertinents.

James Bruce
v.
Robert Stein and Others

Date: 10 March 1769

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[Faculty Collection, IV. 178; Dictionary, 16,061.]

Auchinleck. Here is a proper title; but, in order to make a thirlage, it is necessary to say more than that there is a proper title and payment of out-town multures. There must be a proof of such payment of multures as to show that the coming to the mill was necessitatis, not voluntatis: and so it was found in the case of Bathgate. It is necessary to establish that the multure paid was higher than what the malt could have been grinded for at another mill, with equal conveniency in point of distance.

Hailes. I doubt of the thirlage being established in this case, except as to those feuars who arc expressly astricted by their charters: out-town and in-town multures are relative terms. It is admitted that every one who goes to this mill, pays the precise same multure. How then can any argument thence arise? or, how can there be any in-town multure more than out-town? I lay no great stress on the acts of court: they are not formal: the latest is in 1702. It does not appear that execution ever passed upon them: they are but four in number, and two of them relate to wheat, not malt. As to the steel mills, they are but a late invention at Alloa; and, consequently, the prohibiting the use of them, or exacting multure from the users of them, must also be a late practice. The first steel mill at Alloa appears to have belonged to the proprietor of the mill; and, when he allowed any one to use it, it was natural for him to require some consideration to be paid to his miller, who would otherwise have had reason to complain that his master withdrew customers from the mill.

Kennet. There is no mill so convenient for the people of the barony as this mill. It can have no custom from without; for all the neighbouring estates have mills of their own.

Kaimes. If the mill is more ancient than the feus, (which is admitted to be the case,) this would afford a great circumstance of presumption in favour of the thirlage.

On the 10th March 1769, “the Lords found the defenders astricted.”

5th July 1769, adhered.

15th February 1770, “found defenders liable in abstracted multure for three years preceding citation;” altering Lord Monboddo's interlocutor.

Act. R. M'Queen. Alt. A. Lockhart. Rep. Monboddo.

Diss. Monboddo, Hailes, President.