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In the question betwixt these parties, the Lords found, That fruit trees fell under the acts of Parliament for preservation of planting.
C. Home, No 248. p. 401.*** Kilkerran reports this case:
Found, that fruit trees in orchards, fall under the acts of Parliament for preservation of planting. So much was thought to be imported in the letter of the 41st act, Par. 1. Sess. 1. Cha. II. and therefore no regard was had to the suggestion, that fruit-trees did not seem to fall under the purview of the statute, and that penal statutes were not to be extended.
And whereas a doubt was stirred upon the import of the act of Parliament 1689, whether the tenant was liable, though it be not proved that he or any of his family did the damage; upon this ground, that although the first part of the act of Parliament be general, subjecting the tenant, whoever may have done the damage, yet in the latter part of the act the tenant is declared liable for his wife, bairns and servants; but cui bono, if he was liable, whoever did the damage? The answer was, that without doubt the tenant is by the act liable whoever do the damage; and the reason of the clause subjecting him for his servants, &c. was to obviate a pretence that might have been made by the tenant, that he was free, where the real delinquent was discovered.
Kilkerran, (Planting and Inclosing of Ground.) No 2. p. 403.
