What is comprehended under a liferent right of lands.
The Lady Lamington v. Her Son
Date: 14 February 1682 Case No. No 4.
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The Lady Lamington pursued her son the Laird for the third of the coal of Penston and Hoprig, as due to her by reason of terce, whereunto she was served out of these lands. The Lords found, That terce was due only of the lands above ground, and that the Lady tercer had no right to the profits of coal, or any thing under ground, but in so far as was needful for her own use, and she could not break the ground to work coal and sell it to others, nor could participate of any profit gotten thereby, but only should have as much as might serve herself.
Fol. Dic. v. 1. p. 548. Spottiswood, (Terce.) p. 336.*** Kerse reports this case:
Found no terce of coal-heughs nisi ad usum proprium.
Kerse, MS. fol. 90.*** This case is also reported by Durie:
In an action by the Lady Lamington against the Laird, for payment of the terce of the coal of certain lands, to the terce of which lands she was lawfully served and kenned, and thereby claimed the third of the profit of the said coal, which was win within the said lands; the Lords found, that the Lady tercer had no right to the profits of any coals win within the lands, by virtue of her right of terce, but only to so much as might serve for her own use, and not to any more of any part of the commodity made by the heritor thereof, and therefore assoilzied from that pursuit, except as said is pro tanto, so far as concerned her use for her own fire.
Act. Nicolson et Belshes.Alt. Hope et Stuart.Clerk, Gibson.
Durie, p. 345.
