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Scottish Court of Session Decisions >>
The Bakers v The Millers of Perth. [1749] Mor 16025 (22 February 1749)
URL: http://www.bailii.org/scot/cases/ScotCS/1749/Mor3616025-091.html Cite as:
[1749] Mor 16025
In a thirlage of invecta et illata, imported flour was found not liable to multure, but that the inhabitants could not buy wheat, and grind it without the thirle.
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James Rait, merchant in Dundee, Allan Clark, George Maxton and Laurence Miller, baxters in Perth, imported into that town twenty-seven sacks of flour, which were seized by William Gray and John Clark, in virtue of a tack to them of the Town’s mills, giving them power to confiscate any malt or wheat coming into the Town, ground at any other mill; whereupon the importers pursued them in a spuilzie.
The Lord Ordinary, 14th June, 1747, “sustained the defence to assoilzie from penal conclusions; but found the defenders liable to restore the flour, unless they should show by the Town of Perth’s charters, that the Town had right to the multure of all ground flour, imported into the Town, and baked for the use of the inhabitants.
The Town have disponed to them, by their most ancient charters, Molendina, terras molendinarias, multuras tam astrictas quam alia servitia, sequelas et alias divorias dictorum molendinorum.
Pleaded for the Town, who appeared to support the millers, That when they got those charters they had no lands; so that it was necessarily a thirlage of invecta et illata: That the extent of thirlage was regulated by custom; and there had never been any flour imported into the Town of Perth, till the year 1740, when it was allowed by the Magistrates for easing the scarcity of that season: That in 1743 a quantity was brought in, which was confiscated: That the tacks of the mills were regularly passed in council, and had been of the present tenor these seventy years, as appeared by a tack produced; which ought to be considered as a possession of the thirlage for that time, since no flour had ever been imported.
Pleaded for the pursuers: It is acknowledged the astrictior is of invecta et illata, but that has been always understood of victual imported unground, which must be ground at the mill of the thirle; and the defenders have no more right to a multure for flour than for oat-meal, which has never been exacted, notwithstanding frequent importations.
The Lords, 24th January, “ found that flour imported into the Town of Perth, was not liable in dry multure to the common mills of the said Town.”
On bill and answers,
They adhered, in finding that flour imported was not liable in dry multure; but found that the inhabitants of Perth could not buy wheat, and grind it at any other than the Town’s mills, and afterwards import it.
Reported by the President, who had been Ordinary.
Act. Lockhart.Alt. R. Craigie.Clerk, Justice.
D. Falconer, v. 2. p. 64.
