Thirlage being constituted by infeftment, bearing multures and sequels, it was found, that the ordinary services to the mill dam and millstones were included in the infeftment.
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In a concluded cause of abstracted multures betwixt Maitland and Lesly, the pursuer being infeft in the mill, with the multures and sequels, and having proved the astriction of in-town multures, and witnesses being adduced concerning the services, for upholding the mill and dam, and bringing home millstones, who proved, that some of the lands were not in use of these services, but by two or three several acts, as once laying in the dam, at which the heritor was offended, and broke the tenants' heads, and twice going to help home the millstones, whether these lands were liable to the services;
Whereupon the Lords considered whether the constitution of a thirlage, with multures and sequels, did, by the nature of the right, give the ordinary mill-service, without relation to possession, so that, immediately after the constitution, these might be demanded:
Which the Lords decided affirmitivè, and then found, that these lands were liable to the service, unless they had, either by paction or prescription, attained freedom from the service, and found that the testimonies did not prove freedom for forty years, and that these acts were enough to interrupt, and so decerned for the ordinary services.
