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Scottish Court of Session Decisions >>
Buchanan of Glins. v Cuningham of Bandalloch. [1751] Mor 16027 (6 February 1751)
URL: http://www.bailii.org/scot/cases/ScotCS/1751/Mor3616027-095.html Cite as:
[1751] Mor 16027
Lands being thirled, and the miller bound to pay a certain sum to these lands it was found a real quality of the thirle.
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Duncan Buchanan of Cashlie 1657, disponed the lands of Middle-Cashlie to John Logan, who became bound to bring his whole grindable corns to the disponer’s mill of Gartinstary: “ And the said Duncan Buchanan bound him to cause the miller, or tenant who possest the mill and mill lands of Gartinstary, in any time thereafter, to content and pay to the said John Logan, his heirs and successors, who possest the said town and lands of Middle-Cashlie, pertaining to him, six pecks teind meal yearly, in all time thereafter, forth of the said mill of Gartinstary, and lands thereof, conform to use and wont; to be paid into the said John Logan’s town of Middle-Cashlie.” He also disponed the lands of Easter Cashlie to Duncan Buchanan in Harperstane; with the same thirlage, and the same obligation on the disponer; only it is not subjoined to the clause of thirlage, but placed before it, and subjoined to the receipt of the price.
He also disponed the mill of Gartinstary 1671 to John Buchanan; whose right came into the person of John Buchanan of Glins.
Glins pursued Cuningham of Bandalloch, heritor of Easter and Middle-Cashlie, who claimed deduction out of his multure, of the said payment due out of the mill to his lands.
Pleaded for the pursuer: This obligation for teind meal is personal, and cannot affect singular successors: There is no teind payable out of the mill; and supposing it to be for the mill-lands, the defender has no right to the teinds thereof.
Pleaded for the defender: The meal is made payable out of the mill to the lands; so that by stipulation the burden is real: It would not avail though no reasons could be given for calling it teind-meal; but probably the case has been, the teinds were not thirled, and yet to prevent disputes about abstractions, it has been agreed to bring them to the mill, for which the miller was to pay this duty.
The Lord Ordinary, 14th December 1749, “ Repelled the defence founded on the three firlots of meal yearly claimed by the defender.”
On bill and answers, The Lords found the obligation a real quality of the thirle.
Act. Macdoual.Alt. Lockhart.Clerk, Pringle.
D. Falconer, v. 2. p. 230.
