Scottish Court of Session Decisions

Subject_1 MULTURES, (THIRLAGE.)

Low of Brackley
v.
Beatson of Mawhill

1740, Dec. 16.
Case No. No. 5.

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In a question of bygone abstractions, the Lords had such a regard to the constant possession, that in the process they found the defender liable for bygone abstractions from the time he discontinued going to the mill in 1730 to the commencement of the process in. 1735 and thereafter;—notwithstanding it was as easy a multure as that the defender paid at other mills, or as he could have got his corns ground for so that it was really no more than the merces operarum,,—and 2dly, that the defender had reason to believe he was not thirled, there being no such servitude in his charters, or any other writing known to him,—3dly, that he and his predecessors had been in use to take their tenants bound to go to any mill the heritor pleased, as appeared from tacks produced from 1686 down-wards,—4thly, that the pursuer first founded his claim of thirlage on the defender's rights, and when he failed in that, produced a bond of thirlage as old as 1645, never till then heard of, and which upon report the Lords once found null, and afterwards only sustained it upon a proof of possession conform,—and 5thly, that they thought him so far in bona fide as to find him not liable in the expenses of process;—for they thought he should have continued going to the mill till the point had been determined,—sed quidam renit. inter quos ego, 2dly, They found the miller bound to carry the victual to the mill upon his own horses, and to send as many horses as are commonly kept in the mill for that use, and the defender bound to lay the loads on the horses.