The Town of Musselburgh v. The Marquis of Tweedale and Others
Date: 20 December 1743 Case No. No. 85.
In a thirlage of grindable corns, in-sucken multure found due for corn brought into the thirle to be made into meal.
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In the declarator of astriction pursued by the Magistrates and Town-Council of Musselburgh, against the heritors and possessors of sundry lands lying within the lordship of Musselburgh, the Lords “Found the lands of Pinkie, belonging to the Marquis of Tweedale, the lands of Newton, belonging to Wauchop of Edmonstone; the lands of Munkton, belonging to Falconar of Munkton, to be astricted to the pursuer's mills; but found, that it did not appear from the constitution of the the thirlage, nor from the proof brought upon it, that the same did extend to omnia grana crescentia, or to invecta et illata; and that the defenders are only astricted for such grain of the growth of the lands as should be necessary for the maintenance of their families, or should be made into meal, flour, or malt, for sale; declaring, that it should not be lawful for the possessors of the said lands to sell their corns, and to buy meal without the thirle for their own consumpt; and that in such case they should be liable to pay multure for the meal so bought by them: And also found, that in case the possessors of the said lands should buy corn without the thirle, to be made into meal or flour for the use of their own families, they should be obliged to grind the same at the pursuer's mills, and to pay insucken multure therefor; and found, that if the defenders sell their own bear, and import grinded malt, they must pay multure for the same; and if they import ungrinded malt, in order to grinding for the use of their families, they must grind the same at the pursuer's mills.”
That where the thirle import corn, to be made into meal, &c. for the use of their families, whether any corn of the growth of the lands has been sold or not, they should be obliged to prefer the mill of the dominant tenement, was not controverted; but that they should be liable for insucken multure was said to be a novelty, and so far to introduce a thirlage of invecta et illata, though the same interlocutor had declared the thirlage did not extend to invecta et illata.
But with this the Lords were not moved; for they considered, that though a thirlage may be disappointed by the servient tenement's being thrown into grass, and that where the thirle provide their families by buying meal, there is no remedy for it; yet if the thirle will buy corn to be grinded for the use of their families, it was just and agreeable to the bona fides that ought to be observed between the heritor of the dominant tenement and possessors of the servient, that they should pay the same multure as the corn of the growth of the land would have paid had the land not been thrown into grass.
This, however, is believed to be the first judgment of the kind in favour of the multurer, and took its rise neither from any practice or usage appearing from the proof, nor from any argument from the Bar, but from the Lords' own reasoning among themselves at advising the cause.
