Scottish Court of Session Decisions

Subject_1 MULTURES, (THIRLAGE.)

Bruce
v.
Colonel Erskine, &C

1741, Nov. 19.
Case No. No. 7.

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In this process, several points worth observing were determined: 1st, The pursuer's infeftments in the mill from the Abbots of Culross, specified indeed all the lands in question, but in such a way as led us to think some of them were only outsucken, and not thirled, for the tenants of the haill lands were bound for a peck for a boll of insucken, and one peck for six firlots of outsucken without telling what lands were insucken and, what lands were outsucken. Now Kincardine, Lurg, &c. paid the 21 peck which was less than the insucken, and more than the outsucken, yet the constant immemorial use of coming to the mill being proved, the lands were found astricted, but only at the 21 peck of multure; 2dly, immemorial use being also proved of paying out of Kincardine, and some other lands, one firlot of bear yearly for every malt barn, how soon the same was built, only none was paid when they did not malt for a whole year, this dry multure was also sustained out of these lands where that custom was proved, and that for barns built or to be built. Some of us indeed (Kilkerran) was against the interlocutor for barns to be built, but agreed as to barns already built;—but as the interlocutor was agreeable to the proof, so it seems impossible to distinguish betwixt barns built and to be built, because there can hardly occur a prescription as to any one malt barn, since few of these country malt barns last much more than 40 years. 3dly, We found the superior's feu-duty on oats not astricted. 4thly, Some of the lands mentioned in the charter never came to the mill, but paid a small dry multure in bear;—and there was also in the charter a general mention aridæ multura, without saying out of what lands,—and those lands we found no further astricted than for payment of that accustomed dry multure. 5thly, The lands of Balgownie in general were thirled by the charter, and the lands passing by that name were still in use of bringing their oats to the mill, and paying insucken multure; but some parts of that tenement, viz. Wester Drumhole and Bogside,. by the proof, immemorially did not come to that mill;—yet we found they had not prescribed an immunity, since Balgownie part (and the special part) of that tenement, and belonging to the same heritor, still came to the mill. 6thly, Some of the lands, which were clearly thirled as to their oats, and also were in use to bring what bear and peas they used in their families, for which they paid insucken multure, paid also a dry multure in bear, though a small one, whereas other lands in the same circumstances paid no such dry multure. The question was, Whether the bear of both, or of either of these was thirled? And we were all clear that this last class that paid no dry multure was thirled, but thirled only for what they used in their families. But as to the lands that paid the dry multure, we were divided,. Some thought the dry multure must be instead of the thirlage of bear, particularly the President. Others again thought, since they were in use of bringing their bear thither, paying insucken multure, that behoved to be in consequence of thirlage; and upon the vote this last carried. 7thly, The measures by which the multures and miller's dues were paid were sustained according to the proven use, notwithstanding complaints had been made. 8thly, The lands found liable only for dry multure and no further astriction, were found not liable for any services, since none had ever been performed. But though it was proved that some others of the lands had never paid any services, yet the sucken having paid the services, so that the services were always performed to the mill by one or other, that was found sufficient to preserve the services of the hail sucken, so as none of them could prescribe an immunity, like the payment of an annualrent out of one or more tenements liable.