In an action at the instance of a prelate, against intromitters with teind, for payment of the old duty; this exception found relevant, that they had paid their master, who let stock and teind together undistinguished.
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Urquhart, minister at the kirk of, pursuing his parishioners for the vicarage tithes, alleged intromitted with by them before the year of God 1647:—It was alleged for the defenders, That they were tenants to their masters to whom they had made payment of a joint duty for stock and teind.—It was replied, That the minister being titular of the vicarage, consisting in particular species, they were of a different nature from parsonage teinds, which were only decima pars fructuum crescentium, and so might be set by the heritors with the the stock, who receiving a joint duty for both, were only liable to the titular; but it was not so in vicarage teinds, whereof an heritor could give no valid discharge, having no pretence of right.
The Lords did assoilzie the tenants; and found, that a tack being set to them, they were in bona fide to make payment, unless the minister had intimated his right, and put them in mala fide; and thought that it would be of a dangerous consequence after 20 years silence, to question tenants for payment to their masters, they not being obliged to know any other person's right.
