Scottish Court of Session Decisions

Subject_1 THIRLAGE.

Ramsay
v.
The Town of Kirkaldy

Date: 11 December 1678
Case No. No. 39.

Prescription of multures by long freedom was found not inferred in favour of feuers in the reddendo of whose charters multures were contained.

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Sir Andrew Ramsay being infeft in the west mill of Kirkaldy, with the as tricted multures thereof, the same being the mill of the barony belonging to the Abbot of Dunfermline, whereby the feus of the Abbacy about Kirkaldy were feued; there was thereafter a posterior thirlage of the Town of Kirkaldy to that mill, whereby multure was due for all victual which was brought within the Town, and tholled fire and water there, Sir Andrew pursues the feuers for abstracted multures of their corns, and likewise the townsmen for the multures of the victual that tholled fire and water within the Town, by being made malt, brewed or baked. It was alleged for the inhabitants of the Town, that they could not be liable for multure for the corn that grew in the ancient thirle, especially of those corns which grew upon their burrow roods, which could not be said to be invecta, having grown within the Town's liberties, and if they should be liable for multures of these, as invecta, they would necessarily be liable for double multures of the same corns, viz. one multure, as grana crescentia, within the first thirle, and then as invecta within the Town, being brewed or baked there; 2do, They could not be liable for the multure of meal, which they bought in their markets, albeit baked within their town, to which the clause of invecta et illata was never extended, but only to malt, which was either made in the Town, or brewed in the Town; 3tio, All multures may be increased or decreased by long possession, and the townsmen have been free of any multure of meal bought in their markets, and have only paid once multure for the grain growing on their burrow-roods. The pursuer answered, That he might justly claim multure of the corns that grew within his first thirle, if they were abstracted from the mill, which the defenders did not, nor could not deny, and offered him to prove that the burrow-roods were within his first thirle; and it is as true, that he may claim multure of invecta et illata of the Town, which by the constitution hath no limitation of the corns growing on their burrow-roods, but the true intent of the new thirlage invectorum, was, that all grain they made use of in their Town should be ground at this mill, and a multure paid therefore as invecta, otherwise the constitution of invecta might be rendered elusory and ineffectual, by serving themselves with the corns growing within the thirle of this mill, which is a large extent for their bringing these corns to the mill, and paying grana crescentia within the thirle, if they were liable for no further multure, the new thirlage invectorum had no effect, and therefore they ought to buy grain that was under no thirlage, and bring that grain to this mill, and pay multure for it, as invecta et illata within the Town; and though they brought in grain out of another thirle, there would be multure due for that grain to the mill out of whose thirle it came; and likewise a several multure due by the Town for the same grain, as invecta et illata; so that the pursuer had not to consider, whether the grain brought into the Town grew within his own thirle or another thirle, or upon lands free of all thirlage; but if it came to be made use of in the Town, it behoved to pay multure as invecta, and it was free for the Town to buy corns without the old thirle, and to bring them to the mill, which is the true intent of the new thirlage: To the second, the common interpretation of invecta et illata is not, that corns were brought within such a place, but that they tholled fire and water there, either by making of malt, brewing or baking: To the third, the pursuer offered to prove, that he had interrupted their being free of multure, or once paying multure, either by possession within 40 years, or doing diligence for that effect; 2do, He offered to prove, that the Town, by the reddendo in their charter, were obliged for these multures to this mill, which therefore no prescription could take away.

The Lords found the pursuer's libel relevant, for giving him the multures of the feuers of the Abbacy within the old thirle, and of the burrow-roods, if the same were proved to be within the old thirle, and also to give him multures of the malt made or brewed within the Town, whether it grew within the old thirle or not, whereby if the Town bought victual out of the old thirle, they would be liable in double multure; and as to the meal bought in their markets, the Lords before answer ordained the custom of this and other mills to be proved by either party, and sustained the exception of prescription, and the reply of interruption, and the duply, that these multures were in the reddendo of the town's charter, and found that thereby they could not fall under prescription.

Stair, v. 2. p. 655.