Thirlage of victual in general, does not comprehend wheat, where the mill is not properly constructed for grindnig it, and no dry multure in use to be paid.
Click here to view a pdf copy of this documet : PDF Copy
The tenants upon the estate of Pitreavie were astricted to the mill of the barony, and their tacks contained the following clause: “Binds and obliges him, and his foresaids, not to abstract any of his victual from the wood-mill of Pitreavie, but astricts himself thereto during his possession of the said lands, in the surest form.” When these tacks were granted, none of the tenants were in use to sow wheat. Of late, however, some of them have sown wheat, and have been in use to carry it to be grinded at other mills. Couston, the miller, brought a process against the form abstracted multures.
Pleaded for the defenders: That at the time the astriction was constituted, no wheat was in use to be sown in the barony; and consequently, the thirlage could only reach such grain as then grew upon the lands: That in all such cases, when a new species of grain has begun to be sown, it cannot be comprehended under the astriction. It is pleaded, That a tenant might thus disappoint the thirlage altogether, by altering his method of sowing. This may be a detriment to the proprietor, but will not alter the general rule; for the tenant may in like manner elude the thirlage, by laying down his whole lands in grass; and there is no reason why the same thing may not be done with regard to wheat.
2do, The mill in question is by no means fit for grinding wheat. It is a common corn-mill, which, though it may bruise the grain to pieces, is absolutely unfit for making sufficient flour. The tenants must therefore be at liberty to carry their wheat to other mills, where it can be properly grinded.
Answered for the pursuer: The clause of astriction in the tacks comprehends victual in general; and therefore, though at first no wheat was in use to be raised, must certainly be understood to be astricted when any of it is raised. If the defenders’ doctrine were well founded, it might be in their power, by changing the grain sown upon their lands, to disappoint the thirlage altogether.
2do, Though the mill has not a marble millstone, and is not particularly intended for a flour-mill, yet it is fit enough for the purpose of grinding wheat. Much wheat in Scotland is grinded by mills of the same kind. But if it shall be thought, that the mill is not so proper for grinding wheat, the pursuer will be satisfied that the defenders be found liable to pay him a certain proportion in name of dry multure, without being liable for any other prestation.
“In respect it is acknowled by the pursuer, that the mill of Pitreavie is not fit for grinding wheat, and that no dry multure for wheat was ever in use to be paid, the Lords assoilzied the defenders from the multure of the wheat pursued for; and decerned.”
Act. Macqueen.Alt. Johnstone.Clerk, Forbes.
Fac. Coll. No. 235. p. 429.
