an augmentation; but to prevent collusion, he must cite, besides the heritors, the moderator and clerk of the presbytery.1

Small Livings.-In 1810, an act was passed for augmenting small livings, by which £10,000 annually was set apart from the revenue for the purpose of raising all stipends to £150 respectively, where the tithes of the parish do not provide that sum.2 The receipts and other documents used in the practice of these augmentations are exempt from stampduty.3

Where the stipend modified exhausts the tithe, it must be paid by the fiars, as above, and not in kind. The heritors may, however, surrender the whole tithe to the minister, and in such a case it seems to be the opinion that the minister is not entitled to the fiars' commutation.5 No over-payment to the minister for any length of time can preclude an heritor from surrendering his tithes, as they are valued; though a right to a higher payment may be acquired by the minister by prescription on an apparent title, such as a decree of locality. Augmentations are not so readily granted from the tithes of colleges, even in their turn (see Sect. 11.), as from those of heritors.8

SECT. 9.-Procedure in Augmentation.

6

The minister cites the heritors, titular, and all having interest in the tithe, by the precentor giving public notice from his desk of the raising of the summons six weeks before it is called in court, by a notice affixed to the church-door, by a messenger-at-arms, and by certain advertisements." If the king is titular, the officers of state must be cited. The citation to the moderator and clerk of the presbytery is sufficiently given by letter.10 The pursuer must set forth in a note lodged with the clerk of court, the amount and nature of his stipend, with the amount of money for communion elements, and give a rental of the parish (distinguishing the rent of each heritor) and a statement of the size of the parish, and the number of inhabitants.11 If the tithes have not been valued, a valuation will accompany the process, a fifth part of the proved rental being separated as tithe.12

148 Geo. III. c. 138, § 17.-2 50 Geo. III. c. 84, §§ 1, 3.-3 Ibid. § 22.Smith v. Duke of Portland, 22d June 1814.- M. St. ccxxxix. Con. on T. i. 430.- Baird v. Minister of Polmont, 3d July 1832.-7 Locality of Madderty, 9th July 1817.-8 Con. on T. i. 448.-9 A. S. 5th July 1809, § 1. Ibid. A. S. 1809, § 2; 1825, § 23.-12 Con. on T. i. 457.

10

Amount. The extent of augmentations is a matter left to the discretion of the court, on a due consideration of all relative circumstances. "In fixing the amount of the augmentation, the court first inquires into the state of the teinds of the parish, and how much remains unexhausted over and above the old stipend. This being the only fund out of which the court can augment, the augmentation must be in some measure regulated by the extent of that fund.

Next to the amount of the unexhausted teind, the court regards the size and population of the parish, the labour of the charge, and the price of provisions. The rental of the lands of the parish, even where the teinds of the parish have been valued, is also regarded as a circumstance proper to be looked into, because it affords some criterion to judge of the general state of the parish, and the ability of the heritors to pay stipend." It would appear that the extent of a glebe will affect an augmentation, and land enjoyed as a benefice undoubtedly does so.2

3

A second minister, appointed by a private arrangement, cannot pursue for an augmentation, unless the old commission have awarded him tithes in place of his salary. An assistant minister, or an assistant and successor, has no title to pursue for an augmentation.5

SECT. 10.-Payment of Stipend.

The title of the minister of a parish consists in two steps, presentation to the benefice, and collation to the spiritual office. (See Chap. II.) No stipend is due until the collation have taken place, and a payment before that event will not relieve the heritors from a subsequent claim. Collation will not entitle to stipend without presentation, and so where a presbytery having rejected a presentation, and themselves exercised the right jure devoluto, the first presentation was sustained, the person so inducted had no right to stipend.7 The stipend continues to be due to the minister, though he should be suspended, until his connexion with the parish be terminated by his death or deposition. When a`minister obtains an augmentation, he is held entitled to the legal interest on the arrears of the augmented stipend, from the

4

1 Con. on T. i. 415.- Ibid. 419-421.-3 Marshall v. Town of Kirkcaldy, 7th July 1738, M. 14795.- Fairnie ». Heritors of Dunfermline, 14th June 1749, M. 14796.-5 Shaw v. Heritors of Roberton, 29th January 1806, M. Stipend, Ap. No. 5.-6 Con. on T. ii. 84.-7 Cochran v. Stoddart, 26th June 1751, M. 9951.- Campbell v. M'Donald, 26th Feb. 1741, M. 14795.

Where heritors of a

charge on the decree of modification. parish fell into arrear in paying their victual stipends, and proposed to account for it in the fiars' prices of the respective years for which it was due, the court found the minister entitled to the market-price, which was higher.2

Terms.-Whitsunday and Michaelmas are the two terms of payment of stipend. If the incumbent be admitted before Whitsunday, he is entitled to the whole year's stipend, and if his interest cease before that term, he has no claim to any part of it. If he is admitted between Whitsunday and Michaelmas, he is entitled to a half-year's stipend. If his interest cease between these terms, he or his executors have right to a half-year's stipend, and if it cease after Michaelmas, to the whole year's stipend.

Ann.-A sum equivalent to half a year's stipend is due to the executors of a minister deceasing, in name of Annat or Ann. It is added to the sum otherwise due to him, so that if the minister outlive Whitsunday he will have half the year's stipend, and his executors will have the other half as ann; if he outlive Michaelmas he will have the whole year's stipend, and the executors will have an additional half-year's as ann. The widow gets one-half of the ann, and the children or other nearest of kin the other, the whole passing to the nearest of kin when there is no widow.5 It does not require Confirmation, cannot be gifted away by the minister, and is not attachable by his creditors.6

SECT. 11.-Locality.

66

The process of locality is the form by which, on a stipend being modified, it is proportioned among the various persons liable to pay it from their holding tithe. Every interlocutor of modification contains a remit to a Lord Ordinary to prepare a locality; and the first step taken by the Lord Ordinary is to appoint the heritors, or their agents, to meet and choose a person to be suggested to the Lord Ordinary as common agent. After a common agent has been thus named, and his nomination has been approved of by the Lord Ordinary, it is his duty to attend to the general interest of the heritors, as a body, and to the rights of the minister. Under his superintendence a scheme of locality is made up, whereby the heritors are located upon, agreeably

Anderson v. Urquhart, 31st January 1805, M. 14836.-2 Wright v. Binning, 8th December 1801, M. 14833.—3 1672, c. 13.-1672, c. 13. E. ii. 10, 66.- E. ii. 10, 67. Corrected by Ivory, u. 316.—6 E. ii. 10, 68.

to what is conceived to be their respective rights. When this scheme is objected to by any of the heritors, the common agent answers the objections in name of the other heritors, and in that capacity conducts the litigation, and all other questions of the same kind, until they are finally terminated. The Lord Ordinary, to whom the cause has been remitted, determines those questions in the first instance; and his interlocutor may be brought under the review of the whole court." 1

Interim Locality.-As the locality is generally a tedious process, it is the practice for the minister's stipend to be apportioned by an interim locality, drawn up by the common agent, and approved of by the court, to be the rule till all questions between the heritors are settled.2 If an heritor have been prejudicially located in the interim locality, he will be entitled to recompense by an action of recourse against the others.3

Order.-The tithes are appropriated in succession according to their ownership. Those in the hands of lay titulars (see above, Sect. 3.), called free tithes, are first appropriated. Next in order are those let in tack,-if the tack be not to the heritor, and if the stipend located for amount to more than the tack duty, the tacksman is compensated by a prorogation of the lease. If the heritor is tacksman of his own tithes, he can insist on the tack-duty payable to the titular being exhausted, before the tithe as held by him is liable.4 The same privilege affects heritors possessing by relocation after expiry of their leases. When the tithes which are unlet, and the tack-duty of those which are let are insufficient, then the tithes of the heritors holding tacks are liable to the extent of the difference between the tack-duty and the value of the tithe. All the tithes to which the titular has a right, either through himself or his tacksmen, being exhausted, the tithes of the heritors which they have purchased as above (see Sect. 7) become next liable to the extent of their clear value. Where lands and teinds are feued together, a proportion of the feu-duty (one-tenth) is set apart, before the feuars are located on.8

The ordinary parochial tithes must be exhausted before those which were in the hands of bishops, and are now in

Con. on T. i. 477.- A. S. 5th July 1809, and 12th November 1825, §14.-3 Con. on T. i. 547.- Ibid. 480, et seq. E. ii. 10, 51, 52.- Locality of Cupar, 28th November 1834.-6 Con. on T. i. 482.- E. ii. 10, 52. Con. on T. i. 482.- Dundas v. Baikie, 13th February 1793, M. 14820.

the hands of the crown, are liable, and therefore these are the next in order.1 Tithes in the hands of colleges are next iable. It is held that tithes appropriated to pious uses (such as paying the salaries of the deans of the chapel royal) are liable in the last place.3

Exemptions. All lands, whether arable or pasture, are presumed to be liable to tithes, except those which are held by rights from churchmen who had held the lands exempt.* All religious houses at one time held the lands cultivated by themselves free of tithe; but this privilege was in the middle of the twelfth century restricted to three orders, the Cistertians, the Hospitallers, and the Templars, except for land redeemed and brought into cultivation by religious houses, which continued free, whatever order they belonged to. The title produced as ground of exemption must be prior in date to the act of annexation of 1587, and if granted before 8th March 1558, must have been confirmed by the pope or the crown, if after that period by the crown. The title must not only distinctly include the right to tithes, but mention that the tithe has never been separated from the land. It has been found that the King's Park, as a royal domain, is not liable to tithe, but that where a royal domain is alienated to a subject the liability returns.8

CHAPTER V.

MEMBERS OF RELIGIOUS COMMUNITIES OTHER THAN THE
ESTABLISHED CHURCH.

SECT. 1.-Laws affecting their Persons.

As the members of religious communities, not of the Establishment, have no special privileges, any law that can be laid down, as affecting them, is either of a negative nature, or contains disabilities, or other injunctions distinguishing

1 Con. on T. i. 504-506.-2 Heritors of Portmoak, 9th December 1795, M. 14823.- Con. on T. i. 510.- Glenlyon v. Clark, 15th Nov. 1842.5 Con. on T. ii. 4, 10, 30.—6 1584, c. 7; 1587, c. 29. Con. on T. ii. 28, 39. 7 Con. on T. ii. 39.8 Gilchrist v. Earl of Haddington, 26th November 1829; and Linlithgow, 25th November 1829. Con. on T. ii. 63, 64.