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In an action for abstracted multure, founded on a thirlage, constituted by the pursuer's charter, the defender having alleged prescription of freedom from the mill, and the pursuer replied no interruption; it appeared by probation led, that the defender; for the space of 40 years and upwards, had gone very frequently, without being quarrelled by the pursuer, to any other mill he pleased; and sometimes, but seldom, to that to which he was thirled.
Alleged for the pursuer, That the depositions did not prove 40 years continued and uninterrupted freedom, since they avouch, that the defender came sometimes to the pursuer's mill; and as such a probation would not infer prescription of the thirlage, if interrupted but by one single act of going to another mill, no more can it make a prescription of immunity from an astriction constituted by writ.
The Lords found prescription of freedom proved for the defender. ——This appears to be a very irregular decision.
Fol. Dic. v. 2. p. 101. Harcarse, (Multures.) No 726. p. 205.
