Uv 



upon subjects'which gradually wear out by time, as 

 hiiu-vho'd furniture, &c. yet with us it is generally ap- 

 plied to heritable subjects. He whose property is bur- 

 dened is usually called Ohejiar. 



12. Liferents are divided into conventional and legal. 

 Conventional liferents are either timplr, or by reservation. 

 A titople lifrrent, or by a separate constitution, is that 

 which is granted by the proprietor in favour of another ; 

 ami this sort requires seisin, in order to affect singular 

 successors. A liferent by reservation, is that which a 

 proprietor reserves to himself, in the same writing by 

 which he conveys the fee to another. It requires no 

 seisin ; for the granter's former seisin, which virtually 

 included the liferent, still subsists as to the liferent 

 which is expressly reserved. 



13. Liferents by lore are the tcrcr and the courtesy. 

 The terce (tertia) is a liferent competent by law to wi- 

 dows who nave not accepted of special provisions, in the 

 third of the heritable subjects in which their husbands 

 died infeft. Bnrgage-tenements and superiorities are 

 excluded from it Courtety is a liferent given by law 



LAW. 



673 



but roots, herbs, &c. are not titliable unless use of pay- 



ment be proved. of Scotland 



16. After the Reformation, James VI. considered him- ch^JT"" 

 self as proprietor of all the church lands ; partly because i' m fo se iz- 

 the purposes for which they had been granted were de- ed by 

 clared superstitious, and partly in consequence of the re- crown at 

 signation which he and Queen Mary his mother had pro- th llefor ' 

 cured from the beneficiaries. And even as to the teinds, m 

 though our reformed clergy, after the example of the ca- 

 nonists, claimed them as the patrimony of the church, our 

 sovereign did not submit to that doctrine farther than 

 it extended to a competent provision for ministers. He 

 therefore erected or secularised several abbacies and 

 priories into temporal lordships ; the grantees of which 

 were called sometimes lords of erection, and sometimes 

 titulars, as having by their grants the same title to the 

 erected benefices that the monasteries had formerly. 



17- Proprietors of land may sue the titulars for a va- Proprietors 

 luation, and if they think fit, tor a sale also of their teinds of land ma/ 

 before the commissioners named for that purpose. The suc fo f a 

 rate of teind, when it is possessed by the proprietor 



to the surviving husband, of all his wife's heritage in jointly with the stock, for payment of a certain duty to ^the" 



which she died inftft, if there was a child of the mar- 

 riage born alive. A marriage, though of the longest 

 continuance, give* no right to the courtesy if there was 

 no isoue of it. As in the terce the husband's seisin is 

 the ground and measure of the u ii'e'- right, so in the 

 courtesy the wife's seisin i- the limmLition of die hus- 

 band's ; and the two rights are in all other respects of 

 the same nature, except that die courtesy extends to 

 Imrgngt- holdings and to superiorities. 



Liferent is extinguished by the liferenter's death. 

 That part of die rents which the lilerenter had a proper 

 right to before his deadl falls to his executors ; die rest, 

 as never having been I'M bonit of the deceased, goes to 

 the fiar. Martinmas and Whit-umlay are by our cus- 

 tom the legal terms of die payment of rent ; conse- 

 quently if a liferenter of land survives die term of 

 Whitsunday, his executors are entitled to die half of 

 diat year's rent, because it was due die term before his 

 death ; if he survives Martinmas diey have a right to 

 the whole. 



1 5. Ecclesiastical rights are called benejlces, an ap- 

 pellation transferred from secular feus to church livings, 

 because they were given to churchmen in consideration 

 oflhe'iTtpiritual warfare. They consist cither of lands, 

 or of the tithe < IT teind of lands; die first is called the 

 temporality, the odier the spirituality of the benefice. 

 Tetndt or tidie* are that liquid proportion of our rents 

 or goods which is due to churchmen for performing 

 < service, or exercising die odier spiritual func- 

 tions proper to their several offices. Personal teinds, 

 i.f. the trndi of what one acquires by his own industry or 

 employment, are not acknowledged by our law, though 

 they have been found due when supported by forty 

 years posatsrinn Predial teinds are, by die usage of 

 Scotland, ei t her partonagt or vicarage. Parsonage teinds 

 arc die teinds of corn ; and they are so called, be- 

 they are due to die parson or odier titular of the 

 I'tcaragr teinds are die small teinds of calves, 

 lint, hemp, eggs, &c. which were commonly given by 

 the titular to the vicar, who served die cure in his place. 

 The first sort was universally due, unless in the case of 

 dieir infeudation to laics, or of a pontifical exemption ; 

 but by the customs of almost all Christendom, the lesser 

 teind* were not demanded where they had not been 

 customarily paid. By die practice of Scotland, die teinds 

 of animal*, or of things produced from animals, as lambs, 

 wool, cahrpa, are due, though not accustomed to be paid ; 



VOL. XII. PART II. 



the titular, and so does not admit a separate valuation, 

 is fixed at a fifth part of the constant yearly rent, which 

 is accounted a reasonable surrogatttm, in place of a tenth 

 of the increase. Where it is drawn by the titular, and 

 consequently may be valued separately from the stock, 

 it is to be valued as its extent may be ascertained upon 

 a proof before the commissioners; but in this last valu- 

 ation, a fifth part is to be deducted from the proved 

 teind in favour of the proprietor. Where the proprie- 

 tor insists also for a sale of his teinds, the titular is obli- 

 ged to sell them at nine years purchase of the valued 

 teind-duty ; and upon receiving the price, to execute a 

 disposition in the purchaser's favour, containing procu- 

 ratory of resignation and precept of seisin. 



18. Some teinds are more directly subject to an allo- /n what or- 

 cation for the minister's stipend than others. The teinds dcr teinds 

 in the hands of the lay titular fall first to be allocated, subject 

 who since he is not capable to serve the cure in his ?. 



own person, ought to provide one who can ; and if the 

 titular, in place of drawing the teind, has set it in tack, 

 the tack-duty is allocated : This sort is called J'ree leind. 

 Where the tack-duty, which is the titular's interest in 

 the teinds, falls short, the tack itself is burdened, or, . 

 in other words, the surplus teind over and above the 

 tack-duty : But in this case the court of commission 

 of teinds is empowered to recompense the tacksman, 

 by prorogating his tack for such a number of years as 

 they shall judge equitable. Where this likewise proves 

 deficient, the allocation falls on the teinds heritably 

 conveyed by the titular, unless he has warranted his 

 grant against future augmentations; in which case, 

 the teinds of the lands belonging in property to the ti- 

 tular himself, must be allocated in the first place. 



19. Teinds are debita fructwim, notjitndt; for as by Teinds are 

 their first condition, the beneficiary might, if he used deb > trl 

 the proper diligence, make them effectual, by drawing-/"" 7 '"'.' 

 them out of the several crops, so he needed no real secu- no '"" 

 rity. The action, therefore, for bygone teinds, is only 

 personal against those who have intermeddled either 



with the teind by itself, or with stock and teind joint- 

 ly ; unless where the titular is infeft in the lands, in 

 security of the valued teind-duty. 



20. After a minister's death, his executors have right Annat ot 

 to the annat ; which, in the sense of the canon law, ""^ 

 was a right reserved to the Pope, of the first year's 



fr uits of every benefice : But the word annat or ann 

 as it is now understood, is the right which law gives to 



