Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by ALEXANDER TAIT, CLERK OF SESSION, one of the reporters for the faculty.
Subject_2 CHURCH-YARD.

Magistrates of Greenock
v.
John Shaw Stewart of Greenock

Date: 4 July 1777

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In an action brought by the Magistrates of Greenock against John Shaw Stewart of Greenock and Heritors of the Parish, concluding that the heritors should make an addition to the present church-yard, the same being insufficient to afford decent burial to the inhabitants and other parishioners;—the Lord Auchinleck, Ordinary, found, “ That providing burial ground is a burden which nature, law, and reason lays upon the heritors of every parish; and that the person whose ground is taken is entitled to have the value refunded to him by the several heritors, conform to their valuations, he himself bearing his own proportion thereof.”

The case was new, and it did not appear to have been formerly decided. Greenock was a burgh of barony, the property of Mr Stewart, or holding of him. They had built a church by subscription; but the inhabitants of the Town increasing, to the number of about 12,000, the church-yard was found too small for burying the parishioners. They applied to Mr Stewart for an addition to the church-yard, who was willing to give it; but they differed about the situation of the additional ground, and also, whether a price should be given for it,—what that price should be, by whom it should be paid, and under whose management the church-yard should be, and to whom the price of lairs in the church-yard should be paid.

On a petition, reclaiming against Lord Auchinleck's interlocutor above-mentioned, and answers for the Magistrates of Greenock, the Lords found, (4th July 1777,) “ That the heritors of the parish are bound to furnish ground for the church-yard of the parish, sufficient and properly situate for that purpose: That the heritor furnishing the ground is entitled to be indemnified by the other heritors, and by the community of Greenock, in proportion to the number of examinable persons in the community, and on the estates of the heritors; and, before further procedure, appointed Mr Stewart to condescend, and say what extent of ground he was willing to give for the above addition, where it was situated, and what price he demanded for the same.

After some further procedure about the situation and price of the ground, &c., the whole was carried by appeal, at Mr Stewart's instance, to the House of Peers; and, 4th March 1779, the whole interlocutors were reversed: it was said there was irregularity in the proceedings. New action was reserved.