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 CESSIO BONORUM.

Sir John Douglas
v.
His Creditors

Date: 4 March 1778

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Sir John Douglas of Kilhead pursuing a cessio bonorum against his Creditors; when it came to be insisted in, there was no appearance for the creditors, and no opposition. Sir John was willing to dispone every thing, a bond of annuity which he had from the Duke of Queensberry and his half pay as a cornet not excepted: the first was disponed accordingly,—but, as there was no appearance for the creditors insisting for the last, the Lords excepted it from the disposition, (4th March 1778.)

Where a merchant or trader applied for a cessio; the first thing commonly demanded, is production of books. If he kept no books, or not regularly, as a merchant ought, he will find it difficult to obtain a cessio. And the reason is plain. The Parliament of Ireland have this year, 1778, passed an Act, excluding from the benefit of the Bankrupt Statute, all traders who do not keep regular books of accounts.

Where the pursuer of the cessio is imprisoned in the jail of Edinburgh, the Lords, except in very particular cases, and upon special cause shown, refuse to grant commission for taking his oath; but appoint him to depone in Court. Upon a certificate of indisposition, and sometimes even in point of delicacy to the unfortunate pursuer, they grant commission,—but generally not.

CHURCH-YARD.

Sir George Mackenzie, in his Observations, p. 293, states this doubt:—

“Quer. To whom a coal found in a church-yard, or trees growing there, will belong;—whether to the heritors, the poor, the patron, or the minister ?"

Forbes says, the minister has right to shear the grass in the church-yard, but not to cut the trees. Inst. p. 86. On Tithes, p. 214, 215.

As to the custom and use of planting trees in church-yards, see Barrington on the Statutes, p. 150.

As to the law of England concerning trees in church-yards, see Neilson's Rights of the Clergy, p. 173.

It is said, that there is a decision of the Court of Session, finding that the tree in a churchyard belongs to the heritors. But I cannot find any such collected.

In the Gray Friars, the trees serve for marks to direct the grave-diggers in opening the graves by proper rotation.