Scottish Court of Session Decisions

This is an action of suspension and interdict at the instance of the heritors of Carriden. The note of suspension concludes with the following prayer:—

“May it therefore please your Lordships to suspend the proceedings complained of, and to interdict, prohibit, and discharge the said respondents, and all others, from molesting or interfering with the complainers in the management and custody of the old churchyard of the said parish of Carriden, by forcing the gate of the said churchyard, or otherwise effecting a violent entrance into the same, opening graves, and erecting or constructing headstones or other monuments or memorials of dead or living persons within or upon the ground of the said churchyard, without the leave of, or license granted by, the complainers or their predecessors, the heritors of the said parish, or by any other fact or deed inconsistent wifh the legal rights of the complainers as managers and custodiers of the said churchyard, or to do otherwise in the premises as to your Lordships shall seem proper.”

After narrating the history of the closing of the old church and churchyard of Carriden, and the opening of a new church and burial-ground in 1776, and the rights of sepulture that had been granted by the heritors in the old churchyard as proprietors of it in consideration of a small sum of money paid by the parties applying for burial places to the kirk-session, and the steps taken to shut up the old churchyard, the heritors go on to state:—

“Until recently no attempt was made to interfere with the regulation and management of the old churchyard by the complainers in terms of the above resolution, but for some months back a disposition has been evinced by certain parties in the parish, and amongst others by the respondents, James and John Duguid and Andrew Waldie, to oust the complainers altogether from the management of the old churchyard, and to assert a right of property in the ground of the same to the exclusion of the complainers, and in some instances this had led to unseemly and violent and illegal acts upon the part of the said respondents and others.

In particular, in the month of March last (1864), application was made to the beadle to give the key of the churchyard gate for the avowed purpose of exhuming and of reinterring in the old churchyard the body of an infant child of a person named Balmer, which had previously been interred in the new churchyard, Balmer having no right of burial in the old churchyard. The beadle, after consulting the Rev. Mr Smith, the minister of the parish, having declined to give the key for the said purpose, a disorderly crowd of persons actually exhumed the body of the said child, and having forced or otherwise obtained an entrance to the ground of the old churchyard, they reinterred the child in a burial place in that churchyard in which a person of the name of Ramage, who was said to be the maternal grandfather of the said child, claims a right of burial, but in which neither Ramage nor Balmer

Page: 207↓

the child's father, nor the child's mother, ever had any such right.”

The heritors then say that they ordered a lock to be put on the gate of the churchyard, and the gate to be locked; and that on the 12th of October 1864 it was forced open by the respondents, in consequence of which the present action is brought.

The following statement is then made by the heritors:—“The present proceedings were instituted in pursuance of the resolution of the heritors, convened at the meeting of 22d July 1864, narrated in article 9, supra. The complainers represent the whole heritors of the old valuation of the parish, and, along with his Grace the Duke of Hamilton, who by interlocutor of this date was allowed to withdraw his instance, are the whole heritors who pay the cess leviable within the parish, the assessments imposed for the maintenance and repair of the church and churchyards therein, as well as the schoolmaster's salary, and other heritor's assessments leviable upon the old valued rent of said parish.”

It is thus answered by the respondents:—“The minute of meeting is referred to for its terms. Admitted that the Duke of Hamilton was allowed to withdraw his name from the instance. Denied that the complainers represent the heritors of the old valuation. Not known, but believed to be true, that the complainers pay a share of the cess, and of the other assessments here referred to. Quoad ultra denied. Explained and averred, that besides the complainers and the Duke of Hamilton, there are many heritors in the parish having real rent.

The Lord Ordinary pronounced the following interlocutor:—The Lord Ordinary having heard counsel for the parties, and considered the closed record, productions, and whole process, repels the first plea in law for the respondents, sustains the reasons of suspension, and suspends, prohibits, interdicts, and discharges, in terms of the note of suspension and interdict, in so far as regards the interdict prayed for against molesting or interfering with the complainers in the management and custody of the old churchyard of the parish of Carriden, by forcing the gate of the said churchyard, or otherwise effecting a violent entrance into the same, and decerns: And with reference to the interdict craved against erecting or constructing headstones or other monuments or memorials of dead or living persons without the leave of, or license granted by, the complainers or their predecessors, the heritors of the parish of Carriden, allows the respondents a proof of their averment that, besides the complainers and the Duke of Hamilton, there are many heritors in the parish having real rent; Appoints the cause to be enrolled, that the parties may be heard as to the mode of proof: And as to the remaining portions of the prayer for interdict, repels the reasons of suspension, refuses the interdict, and decerns, and reserves all questions of expenses.”

And his Lordship observed in his note:—“After the judgment of the House of Lords in the Peterhead case, 4 Paton, 356, and of this Court in Boswell v. Hamilton, 15 S. 1148, and the application of the principle of these decisions to the case of a manse, which the Lord Ordinary understands to be implied in the opinions of the Judges in the case of M'Farlane v. Monklands Railway Company, 2 M'Ph. 519, he is not prepared to hold it clear that the whole owners of lands or houses in a rural parish are not entitled to take part in the custody and management of the churchyard. The question is one of public importance, and before any judgment is given upon it, the fact as to the existence in the parish of heritors not paying cess should be ascertained. The Lord Ordinary suggested at the debate that this might be made matter of admission, but the parties did not so arrange it. This may perhaps still be done, if the complainers are to insist in the remaining branch of the prayer for interdict,”

The heritors reclaimed. To-day the Court, without pronouncing on the question raised in the note of the Lord Ordinary, whether owner of houses or lands in a rural parish are entitled to take part in the custody and management of the churchyard, in respect it was admitted that there were other heritors in the parish paying real rent in addition to those who paid valued rent, recalled the interlocutor of the Lord Ordinary, but granted the interdict craved, except in so far as it applied to the opening of graves.