Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 THIRLAGE.
Subject_3 No multure can be demanded for grain due to the superior of the astrieted lands, although he shall accept of a sum of money in lieu of it.

John M'Kenzie, Lord M'Leod,
v.
Lieut Col. Alexander Ross and Others.

1788. June

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See supra, 21st June 1787.

[Faculty Collection, X. 37; Dictionary, 16,070.]

Justice-Clerk. From time immemorial there never was any deduction claimed or given. Had a contract been entered into, in terms of the petitioner's argument, it would certainly have been good; and how can we better judge of a contract having been entered into than by immemorial usage: horse and seed corn are excepted in words; but, without words, they would have been exempted, from the nature of the thing. Omnia grana crescentia means all that can be brought to the mill. This was determined in the case of Maxwell of Calderwood. When the crown demands the ipsa corpora, it will be a good defence,-“I could not bring more to the mill, for the crown has carried off a hundred bolls.” Suppose a smaller number of horses should be employed on the lands than formerly, in consequence of an improved method of agriculture, could it be said, “I must have an allowance for corn, which, in former times, I did bestow on my horses.”

Eskgrove. I am not clear of this being a thirlage of omnia grana crescentia.

President. I suppose this to be a case of omnia grana crescentia. I never incline to extend a thirlage beyond its qualities. Farms are excepted: this enters into all writings from the beginning. If the superior had insisted to have ungrounded corn delivered to him, he could not have insisted that they should grind that corn. The case of Calderwood is not in point: so far as meal was deliverable to the College of Glasgow, there was no reason why the multure of that meal should not be paid. The officers of Exchequer may move the crown to exact the corn, and then, it is admitted, multures would not be due.

Dreghorn. Horse-corn is facti; so no more can be exacted than used. Should the superior, for a valuable consideration, convert the payment of corn into money, there would be an end of the thirlage. The superior does what is equivalent in the mean time, by not exacting the corn, which he might exact.

On the 17th June 1788, “The Lords found Lieutenant Colonel Ross, and the others, entitled to an exemption from the thirlage claimed, to the extent of that part of the crown rents which is payable in corn ungrinded, and not in meal;” adhering to their interlocutor, 21st June 1787.

Diss. Stonefield, Hailes, Justice-Clerk.