Use of payment of a particular quantity will not protect in an action of spuilzie of teinds where there has been no previous title of possession.
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James Drummond, being tacksman to the Lord Hally-rude-house of the teind-fishes of Newhaven, and pursuing spuilzie against the fishers of the year 1630, which was the first year of the tack, and they defending themselves with a continual use of payment of a particular duty condescended on, of all years preceding this year now acclaimed, and so alleging they could be convened for no greater duty of the year libelled, there being no inhibition executed against them, preceding the said year, to make them thereby liable to a greater duty than they were in use of before; this allegeance was repelled, seeing the defenders alledged not, that they were ever tacksmen, or had any right made to them of the teinds libelled, for payment of the duty excepted on, whereby after that right expired, they might have bruiked for the same duty per tacitam relocationem, not being ever interrupted, or that the teinds libelled were ever contained in the Abbot's rental, and given up and bruiked, as a stocked rental for that duty; which not being, the Lords repelled the allegeance, and found no necessity of an inhibition, but reserved the modification of the quantity after probation to the Lords themselves.
Act. Gibson,Alt. Dunlop.Clerk, Hay.
Fol. Dic. v. 2. p. 428. Durie, p. 656.
