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The Magistrates and Town-Council of Haddington v The Bakers of that Town. [1788] Mor 16071 (19 June 1788)
URL: http://www.bailii.org/scot/cases/ScotCS/1788/Mor3616071-121.html Cite as:
[1788] Mor 16071
The Magistrates and Town-Council of Haddington v. The Bakers of that Town
Date: 19 June 1788 Case No. No. 121.
Thirlage of invecta et illata does not extend to meal or flour imported by the inhabitants of a burgh, and grinded before it is purchased.
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The Magistrates of Haddington, in an action of declarator against the bakers of that burgh, maintained, That the Town had a right to the thirlage of invecta et illata; and that they were liable for the multure of flour which in that state they had purchased out of the thirle, and imported.
The existence of the thirlage was established by the Town's charters, and other documents.—With respect to its extent, the defenders
Pleaded: The phrase “tholling fire and water,” in the definition of the thirlage in question, is interpreted by “steeping and kilning,” in opposition to “baking and brewing;” Stair, B. 2. Tit. 7. § 20; Erskine, B. 2. Tit. 9. § 25. And accordingly, in a case similar to the present, it was found, 24th January, 1749, That the thirlage did not comprehend flour purchased when ground and then imported within the thirlage; Town of Perth against Rait and others, No. 90. p. 16024.
Answered: In the words of Lord Bankton: “If meal or ground malt is brought within the thirle, and sold again in kind, it falls not within the thirlage; but does if manufactured into bread or ale; or otherwise it should elude the thirlage, and render it ineffectual; whereas the same extends to what is brewed or baked.” B. 4. Tit. 7. § 49.
The Court gave judgment agreeably to the decision above mentioned in the case of the Town of Perth; and
“Found, That flour-meal and grinded malt bought by the defenders, after being grinded, and then imported by them into the burgh of Haddington, was not subject to the thirlage in question.”
Lord Ordinary, Alva.Act. C. Brown.Alt. M. Ross.Clerk, Sinclair.
Fac. Coll. No. 24. p. 40.
