Scottish Court of Session Decisions

Subject_1 COMMUNITY.
Subject_2 SECT. I.

How far a Community is bound by the Deeds of its Magistrates, or liable for their delicts.

Alexander Montgomery or Asloss, Tacksman of the Town of Edinburgh's Mills,
v.
Jean Alexander, Relict of Adam Cleghorn Brewer in Edinburgh

Date: 31 July 1708
Case No. No 6.

A burgess brewer of Edinburgh, possessing a tenement of land there, found thirled to mills acquired by the town, and annexed to the royalty many years after the erection of it; burgesses being ordained by acts of the Town Council to go to these mills with their grain, under penalty of escheat of what should be abstracted, and payment of double multure.

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In the action for abstracted multures, at the instance of Asloss against Jean Alexander, the pursuer insisted against the defender, alleging, That she being a burgess, possessing a tenement of land within Edinburgh, was obliged to go to the town's mills upon the water of Leith, which, by their charter, are annexed to the royalty; because, as the inhabitants of a barony are bound to go to the mill of the barony, so the inhabitants of the royalty are thirled to the mills of the royalty, which are in effect the Queen's mills, and have greater privilege than the mills of a barony. 2do, Burgesses within burgh are obliged to obey the acts of the town-council made for the good of the burgh; and, by a tract of such acts, burgesses are ordained to go to the town's mills with their grain, under the pain of escheat of what is abstracted, and payment of double multure. Now, the acts of a Town Council are more binding than the acts of a Baron-court, being in effect like decreets arbitral as to what relates to the Town's common good, whereof the mills are a part. Which acts have been homologated and obeyed always, till the abuse of hand-mills or querns, contrary to law, crept in.

Answered for the defender, The mills of the water of Leith being no part of the original constitution of the royalty, but only purchased lately by the town,and annexed thereto, as a part of their common good, no inhabitants within the burgh are thirled to these mills, except such as have voluntarily astricted themselves, Earl of Morton contra Feuars of Muckart, voce Thirlage; or against whom a right of thirlage is acquired by prescription; neither of which can be pretended in this case. Nor, 2do, Can burgesses be restricted in their trade, without their consent, by the Town Council, but only by the laws of the nation. Magistrates, who are but administrators for the good of the inhabitants, may better their case, but cannot make it worse; more than they could exact two pennies for the pint of ale without a public law. And burgesses owe obedience to Magistrates only, when they are executing the Queen's laws, as Sheriffs in that part, and acting for the well or good government of the place; and not when they would limit and burden private persons' property by unwarrantable acts: For otherwise any Sheriff might at the same rate impose upon all within the shire.

The Lords repelled the defences; and found, that the tenement possessed by the defender is thirled.

Fol. Dic. v. 1. p. 156. Forbes, p. 278.