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There being an old thirlage of a parish, which was a part of the barony of Dumfermline, to John's Mill, the feu of the mill being first granted by the Abbot of Dumfermline, and the feu of the land thereafter, there is a decree, in anno 1610, pronounced by the Chancellor, as lord of the regality, decerning all the feuers to pay the five and twenty curn of all corns that they brought to the mill, and a greater of that they abstracted. The feuer of the mill pursuing for abstracted multures, and, for instructing the quota, producing this decree, it was alleged for the defenders, That they offered to prove, that past memory of man, at least 40 years bygone, they have been constantly in use to pay five bolls of bear in satisfaction of all multure, and so can be liable for no further, they having prescribed their liberty from any further; 2dly, That no respect ought to be had to the decree, in so far as it decerns a greater quantity for the corns abstracted than for those grinded, which is without all reason, especially seeing this is but a burn mill, and not sufficient for the thirle; 3dly, They offer them to prove, that the mill was insufficient the years pursued for, and noways able to serve them and the rest of the thirle, as being but a burn mill, dry in summer, and not having water enough in winter. It was answered for the pursuer to the first, that they offered them to prove they were in possession of the multure libelled within these 40 years, at least that any lesser duty was accepted by a particular paction for a time only; to the second, opponed the decree standing, against which there has neither been suspension nor reduction, nor any ground for the same; for it is like the coming to the mill frees them from a greater quantity, for abstraction; and seeing the quota is but the five and tweny curn, far below the ordinary thirle multure, it was very reasonable that the same being abated to a less quantity, they should pay a greater if they came not. As to the insufficiency of the mill, it was answered, Non relevat, unless it were through the default of the pursuer or his millers, for they being astricted to a burn mill, what defect is therein, without the pursuer's fault, cannot loose the restriction.
The Lords found the replies relevant, unless the defenders condescended upon an insufficiency through the pursuer's fault.
Here occurred to the Lords, whether the feuers could, by possession, prescribe their liberty as to a lesser multure, seeing the possession of a part of the multure was sufficient to exclude prescription as to the whole. Some thought, if the multure had been a certain quota in the infeftment of the mill, possession also not of the hail would hinder prescription of any part; but if the infeftment of the mill was only with the multures used and wont, and that the speciality was but by a decree, as the use and wont, that, in that case, use and wont might change. Others thought not; but, in respect the pursuer insisted not on that point, but offered to prove possession, conform to the decree, within these 40 years, the Lords decided not that point.
Here also it was alleged, that, by an act of the Court of Dumfermline, the defender consenting, at least present, it was enacted, that such of the defenders as could not be served might go to other mills.
The Lords found this allegeance only relevant, that it was by consent of the pursuer, or his authors; but left it to the defenders, after production, to qualify what way the consent was given; but that his presence and silence was not enough.
