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Scottish Court of Session Decisions >>
Campbell of Cruning v Campbellof Keithick. [1672] Mor 15978 (26 January 1672)
URL: http://www.bailii.org/scot/cases/ScotCS/1672/Mor3615978-036.html Cite as:
[1672] Mor 15978
Knaveship, &c. may be demanded in an action for abstracted multures. See Adamson, No. 17. p. 15965.
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Cruning being charged upon a bond of thirlage granted by him for payment of the 22d curn of all grindable corns growing upon his lands thirled, did suspend upon these two reasons, 1mo, That the bond not bearing grana crescentia, but only all corns grindable according to use and wont, could not be interpreted to comprehend any other corns but such as tholled fire and water, and not the duties paid by tenants; 2do, He was not obliged to pay the 22d curn, but with deduction of the knaveship and bannock paid to the millers, seeing the bond did bear the 22d curn to be the multure, only payable for grindable corns: Likeas, the suspender did offer to prove by the communers and trysters betwixt both parties, that it was agreed that the bond charged upon should be no further obligatory.
It was answered, That the bond being conceived as said is was opponed, and the word grindable comprehending all corns growing upon the lands, the deposition of the communers could not take away the same, and the meaning thereof was only proveable scripto vel juramento. As to the second, it was answered, That the quantity of the multure being the 22d curn, only could be understood of that which was payable to the feuer of the mill, but not what was payable to the servants as their dues.
The Lords, as to the first, ordained the communers to be examined ex officio, in respect the word grindable was not ordinary, and was dubious in itself; but for the second, They found that the 22d curn was due to the heritor without deduction of what was due to the servants.
