. § 2. GLEBE -PERT1. fpecial right thereby given to infift for defignation of a glebe, clergymen might not be deprived of such fervitudes as they were previously in poffeffion of. This was neceffary, NENTS. to prevent all misapprehenfion of the meaning of the act. Accordingly, thofe privileges have been allowed to minifters no farther than they were fanctioned by the particular ufage". A MINISTER has no right to the fea-weeds upon the fhore Sea-weeds. of his glebe, for the purpose of making kelp, but only for the purposes of manure, and feeding his cattle. Feb. 28, 1769, Duff against Chalmers. The minifters of the parifh of Cairney had, from time immemorial, enjoyed a fervitude of cafting peats in certain moffes, the property of the duke of Gordon. In 1767, the prefbytery, upon a petition from Mr. Chalmers, the incumbent, fetting forth, that thofe moffes were exhausted, defigned part of a mofs belonging to Mr. Duff of Drumair, for the ufe of the petitioner and his fucceffors in all time coming. This decree being brought under challenge by Mr. Duff, it was decid ed in the court of feffion, that the prefbytery were incompetent judges, and that their decree was of funditus tall and void. Fac. Coll. 25th Feb. 1779, James Dymock against William duke of Montrofe. Mr. Dymock, minister at Aberfoyle, brought an action. before the court against the duke of Montrofe, proprietor of the greater part of the pafish, fetting forth, that the moffes out of which the former minifters caft their peats were all exhausted, but that there ftill remained extenfive Vel. II. moles within the parish, and therefore, that it should be declared, that the purfuer, and his fuccé fors ferving the cure in that parifh, have right of cafting, winning, and away-taking fuel, fail, and divot, from the moffes ftill unexhausted, for the use of their families. The purfuer having likewife alleged that he and his predeceffors had at different times taken their peats from different moffes in the parish, befides the moffes now exhausted, the court ordered the purfuer to give in a fpecial cond:fcendence of thefe alleged acts of poffeffion; and a condefcendence being accordingly given in, the court pronounced this judgment: "Having refumed the confideration of this caufe, with the foregoing condefcendence in behalf of the purfuer, and anfwers for the duke of Montrofe, defender, they find the condefcendence not relevant; fuftain the defence for the duke of Montrofe; and affoilzie him from this process." Fac. Coll. 14th Nov. 1781, Lord Reay against Rev. Alexander Falconer.Dd $3. GLEBE -PERTI NENTS. Trees. Marl. A MINISTER has a right of property in the glebe. He will not be allowed to commit waste upon it, but he is entitled to every benefit that can be derived from it falva fubftantia. The minister of a parish, therefore, has right to cut and appropriate trees on the glebe". In like manner, a minister is entitled to dig for marl on his glebe. "Lord Reay infifted to have it found and declared, that Mr. Falconer, as minister of Edrachilles, had no right to the fea-ware upon the fhore of his glebe, except for the purpose of manuring his land, and feeding his cattle. Pleaded, In the defignation of the glebe, the boundaries are diftin&tly marked, there is no mention of fhores, nor any claufe upon which a right to fea-ware, as part and pertinent, can be founded. The original right, therefore, of the family of Reay fill continues, and must be fufficient to exclude any right competent to the minifter in virtue of the defignation above mentioned. Obferved on the bench.-The defignation of a glebe is like a bounding charter. Here the defignation makes no mention of fhores, and the minifter is circumfcribed by the terms of his own right. The court, there fore, adhered to the interlocutor of the lord ordinary, who had decerned in terms of the declarator." Coll. Fac. 916th May 1799, John Logan and others against William Reid. The reverend William Reid, minifter of the parish of New Cumnock, having propofed to cut fome grown trees, which had been planted by his predeceffor on the glebe adjoining to the manfe, John Logan and fome other heritors of the parish, obtained an interdict from the sheriff againk his doing fo, till the question of right fhould be ascertained. An advocation of this judgment was paffed of confent, when, on the part of the heritors, it was averred, that the trees were in full vigour, that they afforded shelter to the manfe; and were an ornament to the country. The minifter, on the other hand, contended, that they were goo ing faft to decay, and that they ten dered the manse uncomfortable, from the damp and smoke occafioned by them. But the parties afterwards, waving all specialties, joined iffue on the general point, how far the ministe of a parish has right to dispose trees on the glebe qua proprietar." The court were at first a good deals; divided in opinion; but they after wards "remitted to the lord ordinary to remit to the sheriff, with inftruc tions to affoilzie the minifter, and a recal the interdict; and farther found! him entitled to expences." See alfo ab late cafe, Hepburn of Humby agains the minifter of that parish. 4 13th Nov. 1799, Minifter ju Madderty against the Heritors, Dict V. iii, p. 251. However, in this cal the court was much divided in opi nion. It was fimply remitted to the lord-juftiac-clerk M Queen, ordinary, BUT a minister is not entitled to dig peats in the glebe. $3. GLEBE -PERTI THE ftatute 1563, c. 72, prohibited "ecclefiaftical per- NENTS. fons to fet in few or lang tacks onie of their manses or glebes pertening to the faid kirks, without fpecial licence and confent of the queen's grace in writ s." By the ftatute 1572, it is faid, "that it fhall not be lei- Leafes, fom to the minifters, or readers present or to cum, to fell anallie, fet in few or takkis, or to put ony in poffeffion of kirks and glebes in prejudice of their fucceffors, bot the famin to remain always free to the use and easement of fik as fall be admitted to ferve and minister at the said kirk." AND the act 1585, c. 11, for making all ecclefiaftical per- Salva fub fons leave the benefice " als gude as they fande it," declares, ftantia. that" in cafe ony of the faid perfons, provided to the said benefices fall happen to doe utherwayes; and be ony fewes, takkes, penfions, or changing of victual for money, or ony uther difpofition, fall mak their benefice in worfe eftaite, nor the fame was at their entrie theirto, all setting and dispofition fall be of nane avail, force, nor effect." and, on that account, is not reported the glebe in proper shape, ascertain- * 22d Jan. 1789, Mercer against $ Queen Mary, parl. 9. Dda $3. GLEBE -PERTI NENTS. $4. GRASS. * THESE acts have been explained into an absolute prohibition to feu, though the yearly feu duty secured by the grant to the benefice should be quadruple to what could reasonably be expected in the way of tillage". THIS, however, Mr. Erskine obferves, is certain, that in cafe of the removal of the church to another part of the parish, the old manfe or glebe may be fold or exchanged for a more commodious one; and fuch fales or excambions have been authorifed by the court. And fuch, it is believed, have been sustained, when fairly gone about, and not prejudicial to the benefice. IV. It is provided by the act 1633, c. 21, " that every minifter (except fuch minifters of royal boroughs who have not right to glebes) have grass for one horse and two kine, over and above their glebe, to be defigned out of kirk lands, and with relief according to the former acts of parliament ftanding in force. And if there be no kirk lands lying near the minister's manfe, out of which the grafs for one horse and U 14th May 1799, the Minister of the united parishes of Little Dunkeld and Lagganallachie against the heritors. The living of Little Dunkeld and Lagganallachie has two glebes annexed to it, one at Little Dunkeld, contiguous to the manfe, and confifting of fix acres of arable land, and two of pafture, and the other about two miles diftant, at Lagganallachie, containing about four acres, one half arable, and the other half pafture. The yearly produce of the grounds at Little Dunkeld, cultivated in the ordinary way, could not be rated at more than 20s. per acre. But being well adapted for the establishment of a manufacturing village, the minifter, with the approbation of the presbytery, feued out several acres for a yearly payment of about 61. per acre. Some of the heritors having confidered this tranfaction as ultra vires of a parifh minifter, the question came to be tried in a process of fufpenfion. The question having been reported on informations, the court in general was of opinion, that a minifter could not in any cafe grant feus of his glebe. The court, therefore, fuftained the reasons of fufpension, and suspended the letters fimpliciter. A reclaiming petition was refufed with anfwers. Fac. Coll. a Cha. II, parl. 1, feft, 30 $4. GRASS -STA two kine may be defigned, or otherwife, if the faid kirk lands be arable land, in either of these cases ordains the heritor to pay to the minifter and his fucceffors yearly the fum of 201. TUTE. Scots, for the faid grafs for one horfe and two kine, the heritors always being relieved according to the law ftanding, off other heritors of kirk lands in the faid paroch." THIS provision of the 201. Scots is merely subsidiary, to take Subúdiary, place, if there be no lands in the parish, such as are described by the ftatute; otherwise, neither the minifter, nor heritors, nor prefbytery, nor all of them together, have any difcretionary power to substitute the 201. Scots in place of the grafs lands. Lord Bankton says, that this grass being additional, takes place though the old glebe (poffeffed before 1663) should include not only the four acres of arable land, but as much as might serve to maintain two cows and a horse. Mr. Erskine does not speak fo pofitively; and an oppofite principle feems to have governed two cafes. But the point is still fub judicea. a 10th Feb. 1804, Lawrie against Halket. "In the year 1718, the minifter of Newburn applied to the prefbytery for a defignation of a grafs glebe, and a portion of ground was fet apart for that purpose. The incumbent did not however carry the decree of the prefbytery into execution, but accepted the sum of 201. Scots in lieu of grafs glebe, which from that time was paid by the heritors according to their respective valuations. In 1801, the minifter of the parish made an application to the prefbytery for a new defignation of grafs, and ground was defigned. The proprietor thereof presented a bill of fufpenfion of the decree of the prefbytery. "The lord ordinary found the letters orderly proceeded. The court adhered." A contrary judgment had been given in the cafe of the minifter of Mertoun, 19th Jan. 1780. But it was observed from the bench, that that cafe had not been sufficiently attended to when it was decided; that the decifion was pronounced by refufing a petition against the lord ordinary's interlocutor; and that the minifter prematurely acquiefced. (Fac. Col.) b B. ii, tit. 8, § 124. 26th Nov. 1755, minifter of the united parishes of Borgue, &c. Fac. Coll. And 11th July 1801, parish of Kilmadock. d In the latest cafe, a decifion has been pronounced against the minister, |