Thirlage Act 1799

[1.] Proprietors of lands thirled, or of mills to which lands are thirled, may apply to have the thirlage commuted, to the sheriff or steward depute, or substitute, who shall proceed as herein directed. Act not to infringe the right of taking materials for supporting mill dams, &c.E+W+S

From and after the passing of this Act it shall and may be lawful for the proprietor or proprietors of any lands or tenements thirled or astricted to any mill in . . . F1 Scotland, or to the proprietor of any mill to which the lands or tenements of any other person or persons are thirled or astricted, who shall be desirous to have such thirlage or astriction changed or commuted into such annual payment, to apply to His Majesty’s sheriff or steward depute of the county in which such lands or tenements and mills are situated, or to his substitute, by a petition, setting forth such his or their desire, and specifying the lands and tenements so thirled which he or they is or are desirous should be freed from such thirlage, and the mill or mills to which such lands or tenements are so thirled, and also the nature of the thirlage, the several species of corn or grain over which it is extended, the quantity of multure paid for grinding every sort of grain, the services dependent on the right, and the total amount of the multures and other dues claimed or allowed to be due; which petition the said sheriff or steward depute or substitute shall order to be served on the other party or parties interested in the said thirlage, and on the tenant or tenants of the mill or mills described in the said petition, and shall also cause an edictal citation to be made of all parties having or pretending to have interest in the said thirlage at the church or churches of the parish or parishes within which the mill and also the lands thirled thereto are situated; and the party or parties on whom such petition is served shall within forty days after such service and citation if within Scotland, or if furth thereof, then within sixty days, lodge with the sheriff or steward’s clerk their answers to the petition (and if any of the said subjects are entailed, on the next substitute heir of entail within the kingdom, who would succeed failing the heir in possession and his family), and shall therein set forth all objections they may have either to any further procedure or to the matter of the said petition; and they shall also state every claim, demand or deduction, which they are either then or afterwards to make or crave; which petition and answers the sheriff or steward depute or his substitute shall immediately take into consideration, and within thirty days shall make an order or decree finding and declaring the precise matters in the said petition and answers which are relevant to pass to the knowledge of a jury in manner after mentioned; and twenty days from the date of such order or decree having elapsed, or in case of any advocation, suspension or other stay by the authority of a superior court, within ten days after such advocation, suspension or other stay has been discussed and removed, the sheriff or steward depute or his substitute shall pronounce an interlocutor appointing a jury to be summoned on a certain day, to be expressed in the said interlocutor, at the distance of not less than thirty and not more than forty days from the date of such interlocutor, to give their verdict or determination on the matters contained in the said petition and answers and decree made thereon by the said sheriff or steward depute or substitute, or by a superior court, in such manner and for such purpose as herein-after is directed; and the said sheriff or steward depute or his substitute is hereby directed and required to summon an assize of at the least twenty-one impartial and disinterested men, each of whom shall be an heritor or tenant of land paying thirty pounds sterling of yearly rent within the said county, or in the case of heritors occupying their own lands then of thirty pounds Scots of valued rent, on such day as shall be mentioned in the interlocutor aforesaid; which assize being called on the said day, the number of persons then attending on the said assize shall be reduced to nine by each party (that is, the proprietor of the mill on the one part, and the proprietor or proprietors of the thirled lands or tenements on the other,) striking off alternately, beginning on the part of the proprietor of the mill, or in case of any of the parties not appearing, by the sheriff or steward depute or substitute striking off for and on behalf of such party, till the number be reduced to nine, who shall be sworn and constitute a jury for the determination of the annual value of the thirlage services and prestations thereto annexed which is submitted to their consideration; before which jury and the said sheriff or steward depute or substitute the said petition and answers and decree, together with such evidence as any of the parties may incline, shall be laid; which evidence shall be taken in writing and remain for four years at least upon record in the court where it was taken; and after deliberating thereon and hearing parties and their procurators, if they shall desire to be heard, and upon a due consideration of all the circumstances of the case, the said jury shall, by their verdict or determination, fix and ascertain the amount of such annual payment in grain of such kinds and in such quantity and amount as to the said jury shall appear to be a just, fair and equal value and compensation for the said right of thirlage, and all and every service, prestation or restriction thereto annexed or incident; of which verdict or determination an abbreviate shall be registered by any of the parties in the general register of sasines at Edinburgh, or the particular register for the said county, within sixty days after the pronouncing of such verdict or determination: Provided always, that nothing herein contained shall invalidate or infringe the right competent to the proprietor of any mill for supporting and repairing the mill dam and the ledd or aqueduct conducting the water to such mill, by taking stones, turf or other materials from the thirled lands of any neighbouring heritor along which the said aqueduct passes, or of deepening or clearing the same, conform to use and wont.