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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> M'Kaskell v Cameron [1838] CS 16_437b (3 February 1838) URL: http://www.bailii.org/scot/cases/ScotCS/1838/016SS0437b.html Cite as: [1838] CS 16_437b |
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Page: 437↓
Subject_Church—Joint Property—Interdict.—
A piece of ground having been feued for the purpose of a chapel, for behoof of the Gaelic population of a town—Bill of suspension and interdict, at the instance of certain of the proprietors, passed to try the question, whether a portion of the ground could be appropriated to the purpose of erecting a parochial school for a district of the town assigned by the Presbytery to the church as a parish, it being also alleged that the erection would darken the church; and interim interdict granted.
In 1792, a place of worship was erected in Greenock by private subscription as a chapel of case, for behoof of the Gaelic population of the town, on a piece of ground obtained in feu from Sir John Shaw Stewart, the object being set forth in the feu-charter, and it being declared that if it should be applied to any other purpose, without consent of the superior, the right should be forfeited. The property was held by the subscribers in transferable shares, and was managed by a board of managers annually chosen by them. In 1834, the Presbytery of Greenock, contrary to a declaration of the General Assembly with reference to such places of worship, assigned to it a parochial district, and it was thereafter termed the South Parish Kirk. In 1837, the managers, having obtained the consent of a majority of a meeting of proprietors, called on one day's notice, resolved, in concurrence with the kirk-session, to appropriate a portion of the area of the ground, not occupied by the church, for the purpose of erecting a parochial school for behoof of the parish assigned by the Presbytery, and they agreed so to apply it as part of the contribution on their part necessary to obtain an equal amount out of the Parliamentary grant for aiding the erection of schools. The erection of the school having been commenced, M'Kaskell and others, holders of shares in the church, presented a bill of suspension and interdict against Cameron and others, the managers and kirk-session, on the grounds—
1. That the property could not be diverted from the use to which it was destined, viz. for behoof of the Gaelic population, to the purposes of a parochial school for the benefit of the general population of the limited district improperly assigned to the place of worship by the Presbytery, the more especially as the consent of the superior had not been obtained, whereby a forfeiture might be incurred; and
2. That the proposed school would darken and otherwise injure the church.
The Lord Ordinary having reported the bill with answers, granting interdict in the mean-time,
The Court passed the bill, and continued the interdict.
Solicitors: J. B. Gracie, W.S.— James Stuart, W.S.—Agents.
