Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Subject_2 I sat in the Outer-House this week.

Roger Hepburn, Petitioner

Date: 3 June 1710

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Mr Roger Hepburn, advocate, being a real creditor to Hepburn of Nunraw, and infeft in his lands; and the mill needing reparation,—he gives in a bill to the Lords, representing, he was going to repair the same; but having caused wrights and masons visit the same, they reported that it would require several sorts of timber, which, if bought, would put the heritor, who is minor, to a great expense; and there was timber enough growing on the lands, proper for that use, which, if allowed to be cutted, would save much needless charges: and, therefore, craved the Lords' warrant for that effect. In the arguing, it was thought it behoved to be either planting or policy about the house, or growing in a wood.

As to the first,—Whatever an absolute proprietor might do, they would never allow a creditor to deteriorate the land, by touching it. If in a wood, unless it were actually cutting, it could not be allowed, for the stool would be lost: and it was not enough, that it was silva cædua, and fit for cutting, unless it were begun to be cut down in haggs; and therefore refused the desire of the bill; though it seemed a prejudice to the minor to put him to buy other timber, when he had it of his own, fit for the purpose, on his ground: But the damnifying of the wood prepondered with the Lords, unless it had been fenced and hayned.

Vol. II. Page 574.