Scottish Court of Session Decisions

Subject_1 THIRLAGE.

Magistrates of Cupar
v.
Lees and Others

Date: 19 June 1777
Case No. No. 114.

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A thirlage was sustained, though not conveyed in the dispositive clause of a Crown charter, but only in the tenendas, and followed by possession beyond the years of prescription.

In this case, the Magistrates, who had a Crown charter with a clause in the tenendas, cum multuris et sequelis, had been at great expense in repairing the mills, in consequence of which, in 1750, they entered into a contract with the Corporation of Bakers, by which the latter, in consideration of the expense above mentioned, “and to compensate for the same, obliged themselves and successors in the Corporation to pay, over and above the ordinary multures, dry multure for all flour not grinded, but bought by them, to be baked and vended within the burgh,” and the subscribers obliged themselves to take new members bound to come under the same obligation. In a declarator brought by the Magistrates, the Bakers pleaded in defence, That there was no evidence of any regular obligation of the Corporation to the above effect, but only the subscription of four individuals; and that the terms of it had seldom or never been observed. It was questioned, moreover, Whether the Bakers had power to bind themselves as a Corporation, or to oblige their successors to extend a thirlage beyond the terms of its constitution and former use. The Lords found, That the obligation 1750 was a valid and subsisting deed, binding on the granters and their successors in the Corporation; but, in respect none of the inhabitants of Cupar, except the Bakers, were called in the action, reserved to them all defences competent.—See Appendix.

Fol. Dic. v. 4. p. 369, 370.