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Moncrief of Colfairgie v Town of Abernethy. [1700] Mor 2497 (23 July 1700)
URL: http://www.bailii.org/scot/cases/ScotCS/1700/Mor0602497-005.html Cite as:
[1700] Mor 2497
How far a Community is bound by the Deeds of its Magistrates, or liable for their delicts.
Moncrief of Colfairgie v. Town of Abernethy
Date: 23 July 1700 Case No. No 5.
Found, that acceptance, by the Magistrates of a burgh, of a charter, containing thirlage to a neighbouring mill, was sufficient to bind up the inhabitants from repudiating the charter, though they were not formerly subjected to the thirlage. But here the charter contained some new privileges in favour of the town.
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Mr Matthew Moncreif of Colfairgie pursues George Balvaird of Ballomill, and the Inhabitants of the town of Abernethy, for abstracted multures. Alleged, By the charter of erection from the Earl of Angus in 1476, they are liable to no astriction nor thirlage, neither is this the mill of the barony. Answered, By a posterior charter in 1628, the whole burgesses are expressly thirled to the mill of Farg. Replied, Though the Magistrates accepted of such a burdensome charter, yet that can never hind the whole community, without some act of homologation or acquiescence on their part. Duplied, Such charters do not require the explicit and direct acceptation of every burgess; and their repudiating it ex post facto, after so long a time, cannot exeem them, especially where they had the privileges of fairs and markets given them in the same charter, which they have bruiked and enjoyed ever since, and so cannot pro parte approbare et reprobare the rest.———The Lords found the Magistrates' acceptation of the charter sufficient to bind the inhabitants from repudiating; but the possession was rendered unclear, by reason the heritor of Ballomill was for many years likewise tacksman of Fargmill, by which the possession became promiscuous, and if they came to his own proper mill, he never quarrelled them for abstracting from the Fargmill. There were other defences, as that some of them held of other superiors than the Earl of Angus. And, 2do, That their houses were feued out to them before the charter in 1628, and so could not be astricted to this mill.
Fol. Dic. v. 1. p. 156. Fountainhall, v. 2. p. 105.
