Purchasing grain unground, and then getting it ground at a mill without the thirl, and bringing it in to be consumed within, found to bean evasion of the servitude.
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The Earl of Fife is proprietor of the King's Mills of Elgin.
By a decree of the Court in 1766, it was found, “That all corns and grain of whatever kind which shall be bought without the thirl, unground, by the inhabitants of the burgh of Elgin, or of the lands above specified, and inbrought by them to any part of the said burgh or lands, and converted to their own proper use, by brewing or baking, the same are astricted and thirled to the said mills.”
A process of abstracted multures before the Sheriff, was brought at the instance of Lord Fife and the tacksman of the mills, against Joseph King, merchant in Elgin, who contended, that he was not liable in multures for grain purchased by him in its unground state, and brought into the burgh after it had been ground at a mill without the thirl.
The Sheriff having assoilzied the defender, the cause was advocated, when the pursuer
Pleaded: The right of thirlage would be defeated altogether, if any person within the thirl were permitted to purchase grain without it, have it ground, and import it in that state, without paying multures. It is not merely upon such grain as is brought within the thirl to be manufactured, that the dues of thirlage are exigilde; it is of no consequence whether it be ground within or without the thirl; in either way, the transaction is obviously entered into for the purpose of defrauding the thirlage; Ersk. B. 2. Tit. 9. § 25; Town of Musselburgh against Lord Tweeddale, 20th December 1743, No. 85. p. 16021. Magistrates against Bakers of Haddington, 19th June 1788, No.121. p. 16071; Earl of Abercorn against Inhabitants of Paisley, 13th February 1798, No. 124. P. 16074.
Answered: It is only in the case of grain being bought without the thirl, and then imported, in order to be manufactured and consumed there, that multure is due. The decree in 1766 applies solely to ‘grain unground’ being bought without the thirl, and inbrought, and then converted to the use of the inhabitants; the commodity is still to be in the same state when it is “in-brought,” as when it was ‘bought.’ When meal is bought without the thirl, and imported in that state, multure is not due; Gray and Clerk against Raitt, 24th January 1749, No. 90. p. 16024. It makes little difference although the inhabitants first purchase the grain, and bargain with a miller to grind it before they import it.
The Court held, that effect must be given to this right of thirlage as long as it exists, and that if the argument of the defender was listened to, the right would be completely evaded.
Lord Ordinary, Hermand.Act.Campbell,Agent, Jas. Laidlaw, W. S.Alt. Monypenny.Agent, Mat. Montgomerie.Clerk, Pringle.
Fac. Coll. No. 289. p. 660.
