Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Lord Elibank v. Walter and James Scot
Date: 13 July 1670
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My Lord Elibank having sold his wood of to Walter and James Scots for 17,000 merks: and they being by contract obliged to cut the same in seven years, and to inclose and fence the same yearly as they cutted it, they neglected the fencing of it. Whereupon my Lord charging them for damage and interest sustained by him in not fencing;
They suspended on this reason,—That by the contract, they were not obliged to enclose the same yearly as they cutted it, that being a thing almost impossible, but only to enclose it after it was wholly cut.
The contract being read and considered, it was found they were bound yearly to fence it. Then they offered to purge the failyie, by fencing it in time coming, and craved a day betwixt and which they might do the same.
Answered—That can never assoilyie them from the damage already sustained, through the not timeous fencing thereof.
The Lords appointed them to inclose betwixt and such a day; and, in the interim, a visitation of the wood, for considering in what condition the same is, and what prejudice my Lord has sustained through the suspenders their default.
Char. Eleis and Sinclair.Alt. Pringle and Lockhart.
Advocates' MS. No. 73, folio 81.
