In a declarator of thirlage founded upon a title in writ, and 40 years possession, found that going to other mills sometimes was no interruption, if the defenders came ordinalily to the pursuers' mill, and paid insucken multures.
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The heritors of the mill of Keithick pursue certain feuars for abstract multures, who alleged absolvitor, because they are infeft ab eodem auctore, without restriction, before the pursuer. It was replied, The pursuer is infeft in this mill, which is the mill of the barony, and per expressum in the multures of the lands in question; and offers to prove that there is a distinct in-sucken multure and out-sucken multure, and that the pursuer has been in possession of the in-sucken multure these 40 years bygone out of these lands. Duplied, The defender offers him to prove, that the possession has been interrupted by his going to other mills frequently, and without any challenge or sentence against them; and seeing the coming to a mill is but voluntatis, unless they enacted themselves so to do; and that the pursuers infeftment, though express, was latent and unknown to the defender, all that is alleged cannot infer an astriction.
The Lords repelled the duply, and thought that going to other mills some times, as is ordinary in all thirlage, was no sufficient interruption, if they came ordinarily to this mill, and paid in sucken multure, and therefore found the reply relevant.
