Andrew Turnbull Minister, and the Kirk Session of Kippan, v. John M'Claws and Others
Date: 10 August 1756 Case No. No 3.
The kirk session has the sole right of keeping mort-cloths, and letting them out for hire within the parish.
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The kirk-session of Kippan, a landward parish, had been in use, from time immemorial, of keeping and letting for hire mort-cloths for the funerals of persons dying in the parish, and of applying for the use of the poor such sums as arose from the hire of these mort-cloths.
A congregation of the Seceders, within the bounds of this parish, bought mort-cloths, and let them out to hire among those of their own persuasion.
The kirk-session brought a process of damages against them, for using these mort-cloths, and thereby diminishing the produce of the mort-cloths of the kirk-session.
“The Lords found, That the kirk session have the sole right of keeping and letting for hire, for the use of the poor, mort-cloths within the bounds of the parish, and that the defenders have no right to keep mort-cloths, and give the same out to hire, or even to lend the same gratuitously for burying any of the dead within the said parish, with certification that they shall be accountable to the kirk session for the ordinary dues of their mort-cloths in the like cases.”
N. B. In a case in 1718, betwixt the Kirk Session and the Trades of Kilwinning, the Lords had found, “That the kirk session of Kilwinning had the sole power of lending out of mort-cloths upon hire, for the benefit of the poor; and that the poor of the said parish have right to the money arising from lending of mort-cloths upon hire within the said parish; and sicklike, that the kirk session there hath the sole right to administrate the same, but prejudice to private persons to make use of their own mort-cloths belonging to themselves; and decerned the defenders to forbear using mort-cloths of their own, or lending out the same for money, or otherwise, to others through the said parish, or any part thereof, in time coming; but prejudice always to private persons to make use of their own mort-cloths belonging to themselves, as said is.”
The decision does not appear in any printed collection, but the evidence of it was produced to the Court in the present question.
Act. Geo. Wallace.Alt. Lockhart.
Fol. Dic. v. 3. p. 373. Fac. Col. No 215. p. 315.
