The vicarage of lint due, if in use to be paid out of the farm.
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The lands of Lethindy-bank had formerly been the uncultivated part of a large farm, from which they were afterwards disjoined, and brought under tillage. They were then granted in lease to Robert Lunan; and Mr. Williamson, the parish Minister, having been in use to levy, in the parish, the vicarage-tithe, particularly that of lint, claimed the ordinary proportion of this article raised on those lands.
Robert Lunan objected to this, and
Pleaded; Vicarage-tithes are only due from such particular farms, and out of such articles, as have been rendered subject to that burden by immemorial and inveterate usage. In the present case, then, the vicarage of lint cannot be due; because, till very lately, the farm possessed by the defender never was in a situation to produce any thing but grass.
Answered: The right of levying vicarap-tithes is no doubt entirely consuetudinary; and if it could be alleged, that none had been levied out of certain lands, or even that, with regard to some articles, the tenants of a certain farm had been uniformly exempted, a valid exception would thence arise, although by far the greatest part of the parish bad been liable to this burden in its fullest extent. But where, throughout a whole parish, the vicarage-tithe has been uniformly levied out of every article raised on the lands, it cannot be thought, that because a small part of the farms, from the method of cultivation formerly used in it, has been incapable of producing one particular species of fruit, out of which a tithe of this sort is due, it is therefore to be altogether exempted.
“The Lords unanimously repelled the defences, and found expenses due.”
Ordinary, Lord Alva.Act. D. Williamson.Alt. Hagart.Clerk, Colquhoun.
Fac. Coll. No. 3. p. 7.
