Legal Subject: Heritor

Case Date Legal Subject Abstract
Cunninghams v. Alexander Cunningham 5 Dec 1778 Parishioner, Heritor, Property rights, Natural Rights This case concerns burial rights to the Currie Kirkyard. Alexander (John) Cunninghame, victual-dealer at Fountainbridge, was not a parishioner of the Currie Kirk. He was, however, a descendant of John Cunninghame of Balerno (d. 1640), who was buried in the Balerno family plot, which ran along the south wall of the parish church. By the end of 1777, Cunninghame had buried his wife and three children in this burial plot, near the wall of the church. When he had a tombstone made for their graves, William and Laurence Cunninghames, portioners of Ballerno, petitioned the Sheriff of Midlothian to forbid Alexander Cunninghame from placing this stone and from making any further burials. They claimed exclusive possession of this area of the kirkyard due to their status as joint-heritors in Currie parish. The sheriff found that the defender should not "be deprived of the pious satisfaction of placing a stone over the grave of his departed wife.” The pursuers then presented a bill of advocation to the Court. Lord Covington determined that as the defender was neither a heritor nor a parishioner of Currie, he had no right to make use of the kirkyard. When the defender petitioned the Court for review, it upheld Covington's decision. The arguments of the pursuers and defender centered on whether a kirkyard was common or private property.
The Earl of Home, and other Heritors of the Parish of Eccles v. The Earl of Marchmont, &c 7 Feb 1777 Valuation, Seat in a Church, Heritor In 1774, the parish kirk of Eccles was rebuilt and the heritors of the parish disagreed over the division of the seating areas of the church. In short, the Earl of Marchmont and others argued that the seats should be allocated to both heritor and their tenants at once, with order of preference given to those heritors with the highest valuation. On the other hand, the Earl of Home and others argued that such a procedure would force the lower-value heritors to be placed "in the inferior seats of the church ; that is, either in the back-galleries, or in the long seats below, under the galleries ; and thus give place, not only to the meanest tenant, but to the cottars and tenants servants on the lands of the six heritors of highest valuation ; a thing in itself altogether unreasonable and indecent . . ." Rather, they argued that the seats of heritors and their tenants should be allocated separately, in order to prevent the mingling of the classes. The case was brought before the Sheriff of Berwick, who found "that each heritor's share must be allocated and set apart by itself." Lord Gardenstone remitted the cause without qualification, and the Court adhered to Gardenstone's interlocutor, with some extra provisions.