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Minister of —— pursues the Lord Elphinston for the vicarage teinds of his lands in his parish. It was alleged, Absolvitor, because be bruiked these lands by immemorial possession, without paying any vicarage, and so had prescribed exemption and liberty. It was answered, That the vicarage being due de jure communi, desuetude cannot take them away, nor can any prescription give right to them, unless it were by a title; as if the lands had been Templar lands, or belonging to those orders which paid no teinds, but were exempted by the canon law; and therefore, in the last Session, it was found, in the case of Panmuir, No. 59. p. 10760. that 40 years did not prescribe the right of parsonage, except for the years preceding the 40. It was answered, That it here was a great difference betwixt parsonage and vicarage, which is local and consuetudinary, which is therefore only found due according to what has been accustomed to be paid; so that the teind of lint, hemp, geese, stags, swine, fruits, fishes, are only due in those parts where they had been so accustomed; and therefore, as custom may take away a part, so it may extinguish the whole.
The Lords found the defender could be no further liable than for that vicarage which was commonly paid throughout all the kingdom, viz. stirk, lamb, and wool; and sustained not the same for milk, or any other particular.
But the defender, upon the 21st of June, having supplicated to be further heard, alleging, that it was a common case, that when the lands were most in labourage, and the vicarage small, and not considerable, that, through the whole country, vicarge was never craved, time out of mind;
The Lords stopped interlocutor, till they were further heard.
