Found, that a tack of lands let with woods gives the tacksman power to cut only for repairing or building of houses upon the ground, but not for sale, or otherwise to dispose upon it.
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The Laird of Touch pursues Alexander Ferguson, his own tenant, for cutting and selling his woods pro damno et interesse. It was alleged, That he had a tack of some lands belonging to Touch, with woods, glens, pasturage, for nineteen years, to be possessed as———Ferguson, his father, formerly possessed the same;—but so it is, that his father did cut. It was answered, That though the tack was set with woods, &c. yet that gives only power to cut for repairing the houses, or building upon the ground, but not to cut and dispone; likeas the pursuer offered to prove, that so oft as the defender or his father cutted and disponed, to their master's knowledge, he stopped and unlawed them in his courts therefore.
The Lords repelled the allegeance.
1664. June 23.—In another process betwixt Touch and the said Alexander Ferguson and his brother John, the one of them being sub-tenant to the other, he was unlawed at several times for not coming to Touch's courts, being warned thereto; the unlaw toties quotieswas £.5, and in whole extended to more than £.60. It was alleged, That he being only a sub-tenant, without a tack, is not obliged to compear at the court, unless he were cited at the instance of a party by a complaint or process; and though he were obliged to compear, yet to cite him so often, and to unlaw him so high, is against justice. It was answered, That Touch lying on the borders of the Highlands, he was necessitated frequently to hold courts, for causing the tenants do such service, for fencing the lands against the insalling of the Highlanders and their goods, as they have in former times been in use to do, and the unlaw is not exorbitant.
The Lords sustained the acts of Court; but modified the £.5 of unlaw to 40s.
Fol. Dic. v. 2. p. 423. Gilmour, No. 103. & 105. p. 78.
