Teinds vicarage de jure communi debentur parocho nisi alterius jus appareat; though no possession instructed.
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Margaret Johnston, as executrix to her father, who was Minister of Orphar, in Orkney, pursues Robert Stuart for payment of the vicarage teinds of the parish for several years of her father's incumbency. The defender alleged, Absolvitor, because there is no right produced in her father's person of the vicarage, there being nothing produced but a presentation and admission of the Presbytery, in which the vicarage is presented to, and a decreet conform, which is only in general against all and sundry, but nothing to instruct that the vicarage was a part of the patrimony of that kirk, or that ever the Ministers there were in possession thereof. It was answered, That the Minister's presentation, and decreet conform, doth sufficiently instruct his title; and as to the point of right, he is not obliged to dispute the same with the defender, unless he could allege upon a better right to himself, or that he had made payment to any having a better right; for the right of teinds, both parsonage and vicarage, is constituted de jure communi ; and as to the party having right thereto, the rule of the common law, allowed by our custom, is, that decimæ debentur parocho nisi alterius jus appareat. It was replied, That vicarage teinds are local and consuetudinary, and different in divers places, and in some none at all due.
The Lords found the pursuer's title sufficient, seeing the defender neither alleged a right, or that he had paid to any having a right, neither was there any thing alleged of prescription of freedom.
