Scottish Court of Session Decisions

Subject_1 MULTURES, (THIRLAGE.*)

Lockhart
v.
His Vassals

Date: 27 July 1736
Case No. No. 2.

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A Charter thirling all corns growing upon the lands which the tenants should happen to grind, found to comprehend not only what the tenants should grind for the use of their families, but what they should happen to grind for whatever use, 10th January, 17th February 1736.

2do, A clause thirling all grindable corns growing upon the lands, or, (as it was expressed in the later charters) omnia grana mobilia, was found of the same import as all corns or grindable corns which the tenants should happen to grind, and to comprehend what they should grind for whatever use and no more. And the charters being recent, a proof allowed that the tenants de facto paid dry multures for what they sold, 17th January 1736.

3tio, Where a mill having only a gathered dam is insufficient for the sucken, the Lords found, that the vassals, after waiting 48 hours, and the mill not capable to serve them in that time, may carry away as much of their corns to other mills as shall be necessary for the use of their families, 21st January 1736. And upon petitions for the other party, adhered with this variation, that the vassals carrying their corns to the mill after waiting 48 hours, and the mill not capable to serve them in that time, may carry their whole corns to other mills without paying any thing to their own mill on account of said corns, 3d July 1736. But upon a new petition for Carnwath, they adhered to the above interlocutor, 21st January, with this addition, “and the mill not capable to serve them through want of water or other defect of the mill,” 27th July 1736.—Vide 15th December 1736, Earl of Wigton, infra. Some of the papers here are very ingenious.

4to, The astriction being constituted by writ, found, that, by the very nature of thirlage services are due. The interlocutor is, that thirlage comprehends services where there is no immunity by prescription, 16th January and 25th June 1736.

5to, Where the vassal's charter expressly bears services, immunity cannot be acquired by prescription, 25th June 1736.

6to, Some also thought, that where the astriction was by the vassal charters, though without mention of services, immunity could not be prescribed; but this not determined.

7mo, It was also thought, (but not determined) that payment of services by some of the vassals in the thirl, though as a gratuity, would interrupt the prescription of immunity as to the whole, like payment of an annualrent out of one or more tenements burdened with the annualrent. (See Dict. No. 75. p. 16016.)