Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. reported by JAMES BURNETT, LORD MONBODDO.

Lord Kilkerran
v.
Blair

Date: 18 June 1755

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This was a question about the extent of a thirlage of lands, that had been feued out by the abbacy of Crossreule, with a clause of astriction in these words, “reddendo inde annuatim multuras et sequelas dictarum terrarum.” In order to fix the extent of this thirlage, a proof was taken of the custom, by which it appeared that the tenants had been in use to carry all their corns to the mill, and to pay about an eighth part by way of multure ; but these corns at that time were no other than oats and bear, and no more than were sufficient for the consumption of the tenants' families. Hence it was contended by the defender, lmo, That this heavy thirlage should be restricted to these grains, so as not to comprehend pease, wheat, &c. 2do, That it was only of what was necessary to be grinded for the use of the tenants, and would not go the length of omnia grana crescentia. The Lords unanimously overruled both these defences, and found the restriction to be of omnia grana crescentia. It is believed they would have given the same judgment, merely upon the words constituting the thirlage, without any proof at all of the custom, because an astriction of the lands is an astriction of the corns growing upon the lands, as Spottiswood hath explained it under the words milns and multures; and so it is said in the papers to have been explained by the Lords in the noted case of Waughton, where a charter, in general words, astricted, to the mill of Linton, terras de Ford.