Scottish Court of Session Decisions

Subject_1 THIRLAGE.

Bairdner
v.
Colzier

Date: 3 July 1675
Case No. No. 38.

What extent of astriction implied in the right to a mill?

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In a process for abstracted multures, the time of the advising of the cause, these points were debated among the Lords, viz. Whether or not the right of a mill being feued by the Abbot, in these terms, cum astrictis multuris, did import astriction of all the grains growing, so that those that were astricted should be liable to bring all the corns that grew upon the lands to the mill; and in case any such be sold, the heritors and their tenants should be liable for astricted multures; and, 2do, There being decreets recovered at the instance of the feuer of the mill, against the feuers of the lands, for abstracted multures of grana crescentia, if the same should import astriction as to all such grains, though neither the right of the feuer of the mill, nor of the heritors of the lands be express of grana crescentia, but only of the terms foresaid cum astrictis multuris.

Some were of the opinion as to the first point, That a feu of a mill in the terms foresaid cum astrictis multuris, should import nothing else, but that they that were within the sucken and astriction should be liable, only to grind at the mill all such corns that they should have need and occasion to grind, seeing thirlages are a most odious servitude, and ought to be taken strictly; and multures being molituræ and due for grinding, they ought to be understood only in the case of corns, which the feuers do bring to the mill to grind, or which they have need and use to grind, and yet abstract and go to other mills, otherwise there should be no difference betwixt the astriction of grana crescentia, and an ordinary astriction. 2do, The case in question was of a mill feued by the Abbot of Culross, and of lands likewise feued by himself after the feu of the mill, and the time of the feu of the mill lands being the Abbot's own, either in mainsing or set to tenants; it cannot be thought, that the astriction was in other terms than such as tenants are in use to be astricted to their master's mill; and besides the teind and seed, and the duty payable to the master, which being payable to the Abbot the time of the feu of the mill, was free of astriction; the tenant having the residue of the rent for entertaining of his family, and for defraying the charges of the labouring and servants fees, and other necessary expenses which could not be defrayed otherwise, but by selling some of the corns growing. It cannot be conceived, that the Abbot, or any other master, would astrict his tenants in these terms, that they should be liable for dry multures, except it were expressed, and that the astriction had been granorum crescentium. Yet the Lords did demur as to this point, in respect it was vehemently urged by that the astrictions in the terms foresaid ought to be understood of grana crescentia, otherwise it should be in the power of those who are astricted, to sell all their corns, and to buy meal for their family, and so to elude the thirlage. Albeit it was answered, That it was not to be presumed that feuers or tenants would do so, and if they did, they ought to be liable for abstracted multures effeiring to such quantities as were necessary, and they were in use to grind for their families.

Another point was agitated and debated amongst the Lords, viz. That the said decreets could not be obtruded to the defender, seeing neither be nor his author was called to the same, and res was inter alios acta; but the Lords did not decide these points, but recommended to some of their number to endeavour to settle the parties.

Dirleton, No. 293. p. 142.