patron, or objectors, to appeal from any deliverance pronounced as aforesaid, by the said presbytery acting within its competency as a judicatory of the church, which appeal shall lie exclusively to the superior judicatories of the church, according to the forms and government of the Church of Scotland as by law established" (§ 5).

It is to be observed, that the judgments from which an appeal lies to the higher church courts, are those which the presbytery has pronounced "acting within its competency as a judicatory of the church." In relation to the privileges conferred by it, the terms of the act limit the competency of the presbytery as a judicatory of the church; wherever, therefore, the ground of complaint is an infringement of the act, the remedy will be in the Court of Session.

The last section of the act provides, that in cases where a presentee has been rejected under the veto act, and another presentee has been presented and admitted under the notion that the veto act was law and the first presentee duly rejected, no action is to lie in consequence of the settlement of the second presentee, unless it have been begun before 1st May 1843.

CHAPTER III.

ECCLESIASTICAL EDIFICES AND THEIR APPURTENANCES.

SECT. 1.-Building and Repairing Churches.

THE expense of repairing or rebuilding parish churches is borne by the respective landed proprietors of the parishes generally, in the proportion of their valued rents. Liferenters are not liable.1 Where a parish is partly town, partly landward, the expense is divided proportionably to the real rents of the houses and lands; 2 and where the town part of the parish is within a royal burgh, the portion for which the burgh is liable is in the first place chargeable against the magistrates. The question whether a new church is required, or the existing one should be repaired, is in the first place decided (on the report of professional persons, and on notice to the heritors) by the presbytery, whose decision is

1 D. P. L. 8.-2 Boswell v. Hamilton, 15th June 1837.—3 D. P. L. 10, 11.

The result of

subject to review by the Court of Session.1 the decisions on the subject is, that where the repair of the church amounted to about half the expense of building a new one, the former alternative was adopted; but that where it exceeded three-fourths, the latter was enforced. In this case the presbytery may require an edifice which will accommodate two-thirds of the parishioners above twelve years of age, not excluding dissenters. The presbytery are not entitled to insist on the enlargement of a church which is in good repair; but if it is in such a ruinous condition that there will be little difference between the expense of repairing it and that of building a new one, it would seem that they are entitled to give the heritors the alternative of repairing and enlarging, or of building a new church of the legal dimensions.3 The heritors assess themselves for the expense.4

6

Individual heritors, the presbytery, and the minister, have recourse in the Court of Session against the proceedings of the presbytery or heritors.5 Heritors are entitled to repair or rebuild a church, and to levy the requisite assessment, without the intervention of the presbytery. To transport a church from one part of a parish to another, the consent of three-fourths of the heritors, in point of value, is required; but parties having interest may oppose the measure in the Teind Court, the authority of which must be obtained.7 Where parishes are divided or disjoined, according to the acts for that purpose, the erection and maintenance of the church rests with the heritors in the same manner as that of an ordinary parish church. By the act of 1844, powers are given to heirs of Entail, and other persons having limited titles, to convey lands for the erection of churches and their appurtenances.9

Additional Churches' Act.-By 5th Geo. IV. c. 90, which provides the sum of £50,000 for additional places of worshipin the Highlands and Islands, the commissioners appointed for the purpose may erect a church, on the application of any heritor or heritors to the extent of £100 scots valued rent, the heritors undertaking to repair the church to the extent of one per cent. on the cost, if the pew-rents (which are likewise applicable to the repair of the minister's house,

1 D. P. L. 14-16.-2 Ibid. 18. Con. P. L. Sup. 30, et seq-3 D. P. L. 25, 26.4 Ibid. 27.-5 Ibid. 30.6 Boswell v. Portland, 9th December 1834. 7 D. P. L. 32.-* See above, p. 100.- 1707, c. 9. 7 & 8 Vict. c. 44. -97 & 8 Vict. c. 44, § 10.

&c.) are insufficient for the purpose. The heritors consult with the presbytery regarding the district to be assigned to the new charge, which, on their not agreeing, may be fixed by the sheriff, so far as to constitute the foundation of a report to the commissioners, who, on receiving it, may require further information.2 By the act of 1844 for disjoining parishes, the district attached to any such church may be made a parish quoad sacra, and when this is done, the repair and preservation of the fabric of the church fall on the parties who would be liable if the church had been built for a newly erected parish.3

SECT. 2.-Church Seats.

The area of the church is divided among the heritors in the proportion of their valued rents. It is believed that where the parish is partly landward, partly burgh, the criterion of real value should be adopted, as in the expense of building, the community holding the portion meted out to the town in the case of royal burghs.5 The patron and clergyman are entitled to family seats, and the heritors to family seats (being part of their proportions of the area), of which greater amount of area gives priority of choice; and the community of a burgh, when they have a share of the area, are entitled to a seat for their magistrates."

Where parties do not agree, a process of division may be brought before the sheriff, whose decision may be reviewed by the Court of Session.7 An heritor's portion of the area is not his disposable property, but is attached to his lands, for the use of their owner and tenants, and it will be proportionably divided, if the lands become separated among different owners. In burghs the magistrates have the power of letting the seats belonging to the community. The magistrates cannot make the seats a source of revenue for the ordinary purposes of the corporation. In the case where this was laid down, it was held that where, as in the city of Edinburgh, the practice is sanctioned by custom, the magistrates may levy a rent, to the extent to which the proceeds may be necessary for supporting the fabric of the church, for the expense of repairs and alterations, and for a provision for the celebration of worship, in so far as no other funds were ap

15 Geo. IV. c. 90, §§ 4, 18.-2 Ibid. § 6.-3 7 & 8 Vict. c. 44, §§ 14, 15. - D. P. L. 36.— Ibid. 37. Con. P. L. Sup. 24.—6 D. P. L. 38-41,— 7 Ibid. 43.-8 Ibid. 45.-9 Ibid. 47.

propriated for these purposes. It was found that the ministers' stipends being otherwise provided for were not to be paid by a levy of seat rents. In the churches established in terms of 5th Geo. IV. c. 90, the manner of letting the pews (the rent of which must not exceed 2s. 6d. per sitting) is settled by the heritors undertaking the repairs, and if they cannot agree, by the commissioners, on the report of the sheriff. The half-yearly rents are payable in advance.2

In the churches built and endowed under the act of 1844 for division of parishes, a portion of the sittings, to be fixed by the sheriff, but not in any case exceeding a tenth, are to be set apart as free to all comers. A portion not exceeding a fifth is to be let at rents to be restricted by the presbytery, and the remainder are to be let as the minister and those liable for the stipend and repair of the church may agree.3

SECT. 3.-Churchyard.

The churchyard is, in the general case, shared among the heritors, &c., for the interment of their families and tenants, on the same principle as the area of the church; but no actual division of the area is made farther than to the extent of giving each heritor a family burying-place. Except in the case of heritors, families do not seem to acquire a distinct property in a particular portion of the churchyard from the uninterrupted usage of burying their dead within its. limits. The heritors have the management of the churchyard, and the erection of tombstones, &c., is subject to their approval. They have the burden of keeping the walls in repair. The minister is entitled to the grass of the churchyard.8

6

Corporations or private individuals are entitled to establish separate burying-places, holding them like other feudal property, and letting or selling the right to interment in them.

SECT. 4.-Manses and Glebes.

Every parish minister, excepting those of royal burghs, with no landward district attached, is entitled to a manse and glebe, even in the case where he and his predecessors have been in use from time immemorial to receive a sum of

Clapperton v. Magistrates of Edinburgh, 14th July 1840.-2 §§ 19, 22. 37 & 8 Vict. c. 44, § 9.-4 D. P. L. 64.—5 Ibid. Ibid. 73. —7 1597, c. 232. D. P. L. 80.8 Ibid. 83.-9 Ibid. 101, 102. Con. P. L. 349. Auld v. Magistrates of Ayr, 13th June 1827, App. 2 W. & S. 600.

2*

money instead of them.' The legal extent of the glebe is four acres arable, or sixteen "soumes" pasture land; and the minister is farther entitled to grass for one horse and two cows out of such church-lands as may be in the parish, or to the sum of £20 scots annually.3 The glebe is to be taken from the "kirk-lands" nearest to the church, if there are any; and if none, from any other commodious lands, the proprietors of those set apart having relief against the other proprietors. An allowance is made by act of parliament, to those ministers whose stipend is under £200, and who have neither a manse nor a glebe, and to those whose stipend is under £180 and who are deficient in the one or the other.5 If there is no manse in a parish where one may be legally demanded, the presbytery are entitled to have half an acre assigned for the purpose, on which the heritors may be ordained to erect a manse and offices, and lay out a garden. The decision of the presbytery is subject to review by the Court of Session, as in the case of building a church.7 (See Sect. 1.)

10

The expense of building a manse was formerly limited to £1000 scots, but the medium sum latterly admitted has been about £1000 sterling. When the old manse admits of proper repair, the Court of Session will not sanction the erection of a new one." The expense of building and repairing manses is divided among the heritors, as in the case of churches.1 The state of the manse is generally taken into consideration on the entry of the incumbent; and when, on all requisites being fulfilled, the presbytery declare it "a free manse," the burden of keeping it in repair is imposed on the incumbent, in so far as respects "ordinary current repairs arising during his possession, but not for any general or extraordinary repair rendered necessary by unavoidable decay from lapse of time." It is generally understood that a minister of burgh-parish is not entitled to a manse, but that he may have right to house-rent, from immemorial custom in favour of his predecessors.12 If a minister is excluded from his manse during the time of repairing or rebuilding, or while a decree of the presbytery in his favour, and which is finally decided by the Court of Session in his favour, has been opposed, he is entitled to manse rent.13

"911

1 D. P. L. 105.- 1592, c. 118; 1606, c. 7.-* A soume of grass is considered to be as much as will pasture ten sheep or one cow but its extent is regulated by the custom of the district (D. P. L. 117).—3 1663, c. 21.- 1594, c. 202. Con. P. L. 371.-5.5 Geo. IV. c. 72, §§ 2, 3.6 D. P. L. 113.-7 Con. P. 254.8 1663, c. 21. D. P. L. 146.-9 Con. P. L. 295.-10 1663, c. 21. D. P. L. 157.-11 D. P. L. 154.-12 Ibid. 162.-13 Ibid. 163.

F