In a process of abstracted multures, this exception was not admitted, that the defender had a prior infeftment cum molendinis. because the pursuer had had 40 years possession.
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Maxwell of Orchardton, being infeft in the mill of Drumdenan, with the astricted multures thereof, pursues another Maxwell for payment of the quantity of dry multures, used to be paid yearly, before the crops and years 1634 and 1635, now acclaimed by this pursuit; and the other defending with a prior infeftment of his lands Cum molendinis, anterior to the pursuer's right, by virtue whereof, he alleged himself and his lands to be free of that servitude and astriction; and the pursuer replying, that he ought not now to be put to dispute upon priority, or posteriority of his right, in respect, that conform to his infeftment foresaid of the mills, cum astrictis multuris of the lands Drumdenan, per expressum, he has been in use these 40 years by past to up-lift from these defenders, and they have been in use to pay to him, the dry multure now acclaimed, as astricted to his mills; so that in this possessory judgment, he ought to be continued in his possession, and when the defender shall pursue by any ordinary pursuit, for exeeming of him from that servitude, he shall answer thereto, as accords. And 2do, he replied, That he had recovered sentences against these same defenders, for payment of these duties of other years, preceding the years, libelled, and payment conform thereto. The Lords found both these replies, and ilk one of them separatim, relevant in this judgment possessory, being proved, or any of the same, to make the defenders subject in these duties libelled, without prejudice to the defender, to pursue by reduction or declarator, or any other legal manner, any action whereby to free himself of this servitude, as accords of the law.
Act. Gilmour.Alt. —.Clerk, Hay.
Fol. Dic. v. 2. p. 91. Durie, p. 810.
