the nearest of its own kind, should be designed before the more remote, and not otherwise d.

After the designatson of a glebe by the presbytery no operations ought to be carried on, which may either tend to make the court set the designation aside, or defeat or injure the minister's claim. When the determination for a grass glebe depends upon the fact, whether the grounds are in a state of pasture or of culture, no cultivation by the proprietor, after the decision of the presbytery, will hurt the pursuer's claim, even the erection of houses after designation, will not prevent the judgment from being carried into effect. A minister has a claim of compensation when the designation of a glebe has been long contested, and the decision is in his favour §. Where a parish has been suppressed and united to another, the minister of the united church, is entitled to the glebes of both, if nothing be said in the decree of suppression and annexation respecting the glebe ". Where a glebe has been destroyed or impaired by any extraordinary occurrence, the minister will have a claim of indemnification at common law. Where a minister has legally acquired a glebe, it becomes incorporated with the benefice, subject to the uses of the present incumbent and his successors in office, and there exists no ground of distinction between the different kinds of glebes as to the minister's right. Glebes being embodied with the benefice, cannot be alienated by the incumbent, nor set off in feus and long leases; and indeed it is well understood, that a minister cannot grant a lease of his glebe longer than his own incumbency. Where a church has been transported to

d Durie, 15th July 1636, Halyburton v. Paterson. e Pendente lite nihil innovandum.

f 6th Jan. 1594, Cunningham.

g Minister of Dunfermline v. Heritors, 8th July 1813. In this case, L. 17. 10s. per annum were awarded from 1804 to the ultimate decision of the House of Lords in 1813.

h Ersk. B. II. tit. 10. § 61.

i Connel on Parishes, 424.

j 9th Nov. 1736, Mackie v. Neill, Fac. Coll.; 14th May 1791, Minister of Little Dunkeld v. the Heritors.

another part of the parish, the old glebe may be exchanged for ground more commodious. Excambions are often sustained, where it appears for the interest of the benefice, and has been sanctioned by the presbytery, where neither a union of parishes, nor transportations of churches have taken place *. Where a minister has conveyed his glebe to a titular for an annual compensation, if the deed be irrecoverable on account of prescription, a successor in office is entitled to a new glebe '. The question, whether a minister might appropriate to himself the trees growing upon his glebe, is now decided in the affirmative.". He may dispose of the earths and minerals under his glebe, for the behoof of himself and successors, at the sight of the presbytery and heritors". But he cannot make kelp from the sea ware thrown upon his glebe. Glebes are exempted from tithes P.

The right of a minister to his glebe commences with his induction to the benefice, and ceases upon his death, translation, deprivation, or resignation. But if a minister's glebe shall have been sown before his death, his executors will be entitled to reap the crop. And upon the same principle, if the crop shall have been sown bona fide, before the minister's translation or deprivation, he will be entitled to reap the crop himself. There is no Ann due upon the glebe. A minister is not liable for meliorations made on a glebe by his predecessor in offices.

By early statutes, "ministers have freedom of foggage, pasturage, feuel, feal, divot, loaning, and free ish and entry according to use and wont." Formerly these rights were

k 22d Dec. 1810, Innes v. Lochalshe, &c.

1 Fac. Coll. 16th May 1799, Logan and others v. Reid, &c.

m 1790, Heritors of Humbie v. Minister of Humbie.

n Maderty, 13th Nov. 1794, Fac. Coll.; Minister of Newton v. Heritors, 3d June, 1807.

o Fac. Coll. Lord Reay v. Falconer, 14th Nov. 1781.

P Act 1621, c. 10.

q Stair, 6th July 1665, Colvil.

s 14th June 1623, Dunbars v. Hays.

Act 1593, c, 165, ratified by 1663, c. 21.,

r Stair, 6th July, 1665, Colvil

sustained independently of usage "; but of late years, they have been grounded upon the limitations of the statute, and found valid only where they had been exercised from time immemorial, or at least for the period of prescription. A presbytery cannot design feuel out of a moss over which the predecessors of a minister had not formerly exercised that servitude. The extent of a minister's privileges under statute 1663, c. 21. must always depend on the state of possession w.

Mode of the designation of a Glebe.-In the earlier periods, the designation of glebes was vested either in the dignitaries of the church, archbishops or bishops, or in presbyteries, according as episcopacy or presbyterianism was the established form of worship: And when the latter was established at the revolution, the power of designation was finally vested in presbyteries.

When a minister wants a glebe, he applies by petition to the presbytery, requesting a visitation, and a decerniture for it, the presbytery appoint a visitation on a given day, and enjoin edictal intimation to be made from the pulpit. Upon the day appointed, the presbytery attend on the spot, where there are generally present some of the heritors or their agents. If the petition be for an arable glebe, the minister is entitled to insist, that the land be arable; and should any dispute arise about the nature of the ground, the assistance of a person of skill is to be called for, and the legal quantity of ground must also be accurately ascertained, the presbytery then considers the petition of the minister, with the representation of the heritors, and decides accordingly. The clause in the statute*, that "two or three of the most discreet men of the parish be present to assist the presbytery," must in substance be always attended to; but in the letter, it has now gone out of ob

66

" Haddington, 25th May 1605, Nairne v. Tweedie.

v Duff v. Chalmers, 28th Feb. 1763, Fac. Coll.

w Dymock v. Duke of Montrose, 25th Feb. 1779, Fac. Coll.

x Act 1663, c. 21.

servance in the designation of glebes; it being thought sufficient that the persons employed by presbyteries to assist them in the designation (whether parishioners or not) should be persons of skill and integrity.

Presbyteries however, have no power to enforce their own decrees in their designation of glebes. It is ordained ", that where the decrees of the church courts are contemned, it is competent to apply to the Court of Session, who are authorised to issue letters of horning to enforce the decrees, upon a charge of ten days. At present they are issued without any special cognizance of the case, though still under the authority of the Court of Session. The decree of presbytery is presented at the bill-chamber, along with a bill or petition to the Lords of Session, craving letters of horning upon it. A warrant to the signet to prepare, and to the keeper of the signet, to issue the letters of horning.

But the judgment of presbyteries, in relation to glebes may be brought under review of the Court of Session at the instance either of the minister or of the heritors. The forms of process are similar to those adopted in carrying to that court, the judgments of inferior civil judicatories.

KIRK AND KIRK-YARD.

From a very early period the heritors of a parish were bound to provide stipends, manses, and glebes for the estab lished clergy. But there were other burdens which by statute were laid on all the parishioners. The upholding and repairing of churches were consigned to the minister and people; two-thirds of the expenses to be paid by the parishioners, and the other by the parson 2. By other statutes the parishioners were appointed to build and repair the kirk-yard dyke 2, and to provide basons, and lavers, for the administration of the sacrament of baptism, and cups, tables, and table-cloths for

y Act 1593, c. 21.

z Act 1572, c. 54.

a Act 1592, c. 232.

that of the Lord's supper. But these burdens, by long custom, have been transferred from the parishioners at large, to the land-holders or heritors c.

The building and upholding of the parish church is now laid upon the heritors by a decision of the house of lords, which states, that the building of a church, being a parochial duty, the expenses ought to be defrayed by all the owners of lands and houses, in proportion to their real rents. The superior is not liable in any part of the expense of building or repairing the church ; and the titular of the teinds is liable only in proportion to his valuation. Lands which are annexed to a parish quoad sacra santum, are liable in the expense of building and upholding the church to which they are united 8.

The nature and extent of the edifice must undergo the revisal and judgment of the presbytery of the bounds, and receive their approbation; but under the review of the court of session". The plan, indeed, of the church may be concerted among the heritors themselves, without the intervention of the presbytery. In regard to the size of the church, it has been laid down as a rule to be observed in all cases, that the church must be capable of containing two-thirds of the examinable persons in the parish, not under twelve years of age. Heritors have choice of a place in the church according to the valuation of their several estates, and each heritor must have a seat in the church for his family, distinct from the share of area allotted to his tenants; but in dividing the whole area of the church, that of each heritor's seat must be

b Act 1617. c. 6.

Ersk. B. II. tit. 10. § 63.

d Parish of Peterhead, June 24, 1802.

e Fac. Coll. 23d Jan. 1773, Bruce of Carstairs. Ib. 20, 1794, Murray.

f Parish of Selkirk, Feb. 9, 1738.

Fac. Coll. 2d Feb. 1773, Drummond v. Heritors of Monzie, Monedie, and Crief.

h Buchanan, 7th July, 1762; Ednam, 11th Jan. 1750. Fac. Coll. 22d June 1787, Heritors of Tingwall.