The Feuers of Dundaff v. David Madril of Mluir-mill
Date: 22 July 1709 Case No. No. 64.
Out-sucken multures.
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In the process of declarator, at the instance of the Feuers of Dundaff against David Madril, for declaring the pursuer’s lands free of any astriction to the defender’s mill, called the Muir-mill, the pursuer’s charter bearing this clause,—“They always coming to the said mill with all corns grindable growing upon their lands, which they should happen to grind, and paying multures and knaveship, and doing other duties for grinding thereof used and wont, and upholding the said mill, mill-house, dam, and watergang thereto, conform to use and wont, and also bringing all other corns, as well malt as others, which they shall happen to bring within the bounds of these lands, to be grinded thereat, for out-sucken multure allenarly,”—the Lords found the said clause to import a thirlage, and that the pursuers could grind none of the foresaid corns at any other mill.
1709. December 23.—In the declarator of immunity from thirlage at the instance of the Feuers of Dundaff against David Madril, the Lords, 22d July last, having found, that the pursuers were astricted to the defender’s mill, the pursuers now allege, That by the astriction they are only bound for in-sucken multure of such of the grana crescentia as they either by necessity or choice happen to grind; and that they are at liberty to export the growth of their ground; the reason of thirling corns imported, and freeing what is carried out, being, because in these muirland places they have more profit by selling their oats in market than by making meal of them.
Answered for the defender: The pursuers can grind at no other mill any corns belonging to them, (seed and horse-corn excepted), whether growing upon their own lands, or brought within the same from other places; for, if they were permitted to sell or dispose upon the grana crescentia, and buy meal and malt elsewhere, for the use of their families, the thirlage would be quite eluded.
Replied for the pursuer: Thirlage is odious, and clauses of immunity are to be favourably interpreted; and the prejudicial consequence to the defender’s mill, by allowing the pursuers a faculty to grind or not grind there, at their pleasure, is of no weight to overturn the express words of their charters; so the Lords decided, in March, 1682, betwixt the Earl of Cassilis and the Tenants of Maybole, No. 46. p. 15987.; and in the late case of Rathillet against Mordicarnie, supra, did not regard the fancied inconveniencies to a thirle-mill, by favourably interpreting the astricted person’s rights.
The Lords found, That the thirlage imports, that all grindable corns growing upon the pursuers’ lands, in so far as necessary to the consumption of their families within the thirle, are astricted to be grinded at the defender’s mill; but that the pursuers may freely export the superplus of the growth of their ground; and that, if the grana crescentia are not sufficient for their own consumption, what is imported for that end pays out-sucken multure.
