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Scottish Court of Session Decisions >>
Mr Archicald Dunbar of Thunderton v Sir Robert Gordon of Gordonston. [1713] Mor 10477 (28 July 1713)
URL: http://www.bailii.org/scot/cases/ScotCS/1713/Mor2510477-004.html Cite as:
[1713] Mor 10477
Mr Archicald Dunbar of Thunderton v. Sir Robert Gordon of Gordonston
Date: 28 July 1713 Case No. No 4.
The act of Charles II. in so far as for encouraging inclosing is perpetual, although in other respects temporary.
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At discussing the suspension of a decreet of the Justices of Peace casting about the high-way, and adjudging some pieces of Sir Robert Gordon's lands to Mr Archibald Dunbar, for making his inclosures regular, in the terms of the act 14th, Parl. 1. Ch. 2.; the Lords found, That the said statute is a perpetual law, in so far, as to encourage inclosing, it empowers Justices of Peace to cast about the high-ways, and inflict penalties against the cutters or destroyers of planting, breakers of hedges or inclosure; albeit it be temporary in so far as it appoints heritors and liferenters to inclose and plant a certain quantity of ground according to their valuations; for it was thought proper to tie the heritors for a certain number of years to plant and inclose, with a view, no doubt, that they would find it their interest to continue and go on voluntarily in that practice. But all encouragements were designed to be perpetual, unless such as are limited to a certain time, as the exemption from cess, which is confined to 19 years. Where the act of the Parliament 1685 bears, “Because the time prescribed in the said act 41st is now elapsed, it is statuted and ordained, That the whole heads contained in the said act, be observed for the space of 19 years next to come;” these words, though not very exactly conceived, can be applied only to the clauses of the act that were limited to a time, viz. the obligement upon the heritors during the 10 years, and the 19 years freedom then expired.
