'As also we, the said William Marquis of Annandale, and James Lord Johnstone, with advice and consent foresaid, bind ' and oblige us and our foresaids, to warrant, free, and relieve the ⚫ said Sir John Jardyne and his foresaids from all payment of any 'bygone cess, taxations, and other public burdens payable forth of the said lands, or teynds of the samen, at or before the term ' of Martinmas last bypast; and also to warrant, disburden, free, ⚫ and relieve the said Sir John Jardyne, and his foresaids, from all C payment of any teynds, or any part of the stipend payable furth ' of the said lands and others above disponed, to the minister of the ⚫ said parish of Sibbalbie, of all years and terms bygone, and for ' all years and terms in tyme coming, for ever.'

In the process of locality, the Lord Ordinary sustained the claim of exemption, in consequence of this clause of warrandice. On advising a petition against this judgment, two of the judges were ⚫ of opinion that the clause founded on was just an ordinary clause ' of warrandice, and that unless there was an express warrandice both from present stipend and all future augmentations, it could not be given effect to as a total exemption from payment. The other judges, however, thought that giving the clause of warran'dice in question its fair construction, it was meant to imply a to⚫tal relief from the payment of any and all stipend whatever, both 'present and future;' and upon that ground the Court adhered 'to the Lord Ordinary's interlocutor,' Earl of Hopetoun v. Sir Alex. Jardine, 3d July, 1811.

In the other case alluded to, a similar claim was rejected, which was founded upon the following clause of warrandice in a feu-charter, And further, I bind and oblige me, &c. to warrant this pre'sent feu-right, with the infeftment to follow hereon, to be good, • valid, and sufficient, and the park and muir, before disponed, to 'be free, safe, and sure, to the said Robert Wilkie, &c. from all ‹cess, minister's stipend, schoolmaster's salaries, and other dangers, incumbrances, and inconveniences whatsoever, affecting the 'same, or that may hereafter affect the same in time coming. But in case of any new law, or new valuation of land, with regard to minister's stipend or cess, whereby the subjects hereby ' disponed may be liable in these or other burdens, then the same are to be paid by t'e said Robert Wilkie, and his foresaids, 'without having recourse on me and my above written.'

This clause was held not to afford any ground for a claim of relief against augmentations*.

344. In the fourth place, in the following case the purchaser's claim of relief from certain other public burdens, in virtue of a clause of warrandice, was rejected, and it was held upon the same principle which regulated the decision of the cases mentioned under the preceding heads, that such burdens which arise from the operation of a public law, must be expressly mentioned in a clause of warrandice, in order to entitle the purchaser to claim relief against them from the seller.

In this case the claim under the obligation of warrandice was for relief from the conversion for statute labour. The clause of warrandice founded on, was contained in a disposition granted in 1747, and bound the seller to relieve the purchaser from payment ' of all minister's stipend, schoolmaster's salaries, augmentations of the same, or new erections, and all burdens which do or can affect the lands and teinds thereby disponed for ever, excepting L. 5 • Scots money, payable yearly to the schoolmaster of Coldingham, 'forth of the said lands, and the proportion of cess that should 'from time to time be laid upon and levied furth of the same.'

The proprietor of the lands so disponed, having in 1794 brought a declaratory action for the purpose of ascertaining his rights under the above cited clause, and having afterwards claimed relief from the representatives of the disponer, from the conversion for statute labour, introduced by an act of parliament for the county in which the lands were situated, the claim was opposed on the ground that there is a distinction between those public burdens which properly fall upon the proprietor of land, and those which fall upon the actual occupier, the former being fixed by the value of the land, the latter by the mode in which they are occupied ; that the former only could be held to be included in the terms of the clause of warrandice in question; and that statute labour, from which exemption was claimed in virtue of this clause, was of the latter class of burdens, being always laid on the occupier of the land, unless a contrary agreement was made, and consequently that it was not comprehended under the obligation of warrandice. The Court, on the ground that the clause in question did not

* Petrie v. Lindsay Carnegie, 27th Jan. 1813. This case is not reported, but is noticed in a late work on Teinds. Connel on Teinds, ii. 478.

include relief from the actual performance of statute labour in '1747, nor consequently from the conversion substituted in its 'place by a posterior act of parliament,' repelled the claim of relief*.

345. (2.) The obligation of warrandice is not incurred when the cause of eviction has begun to exist after the date of the sale, unless when it proceeds from the act of the vendor himself, Poth. Contr. de Vente, No. 90.

The reasonableness of this rule, and its conformity to principle, are evident. That it was the rule of the Roman law appears from the following texts. Auctor ex his tantum causis suo ordine ' tenetur, quæ ex præcedente tempore causam evictionis parant,' I. 1. Cod. de Per. et com. rei vendita. Paulus respondit futuros casus evictionis post contractam emptionem ad venditorem non 'pertinere,' 1. 11. ff. de Evict.

What were those asus futuri for which the vendor was not liable in warrandice, in contradistinction to causes of eviction originating previous to the sale, for which he was liable, is thus explained by a modern writer, who has already been referred to on this subject. • Casum autem futurum appellat, cùm evictionis 'causa sequitur traditionem, nec ullam originem habuit ante ven'ditionem. Si res evincatur tamquam aliena, non est casus futurus, quia res vendita evincentis erat ante venditionem; et 'sic causa evictionis traditionem præcedit. Sed cùm evictionis causa post impletum contractum nascitur, casus futurus esse * dicitur, neque eo nomine debetur evictio,' 1. 1. c. De peric. et commodo rei vend. 1. 3. D. De evict. Quoniam nihil sit culpa * venditoris, ut periculum illud ferre debeat: sed pertinere debet • ad emptorem, qui per traditionem factus est dominus,' Burgund. de Evict. cap. 75. No. 4.

346. The same rule exists in the law of Scotland, and it has received effect in practice in the following cases.

347. In the first place, the obligation of warrandice is not incurred when the eviction has proceeded from the operation of a super

Johnstone v. Home, 13th June, 1800, See, in further illustration of the same matter, Bruce Carstairs, v. Greig, 23d Jan. 1773, where the superior's obligation ⚫ in his charters to relieve the vassal of public burdens, totally or in part, was con'strued not to comprehend the expenses laid out in either rebuilding or repairing the ▪ parish church, minister's manse, and offices, where the practice in former instances had been for the vassals to defray that expence, without making any claim of re• lief against the superior, and in none of which instances had his predecessor, or ⚫ kimself, contributed more than in proportion to their property lands.'

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venient law. Upon this point Lord Stair says, ' As to distress by * subsequent laws, when these are by way of declarator of an antece⚫dent right, it is equivalent to a judicial eviction. But when the law is statutory, introducing a new burden, as taxes, augmentations of < minister's stipends, &c., it was Craig's opinion, which he reports <as the judgment of the Session, that in such cases the warrander < should be liable in quantum lucratus est. But custom since hath <cleared the contrary, that warrandice is never extended to sub•sequent statutory laws, but that these are always upon the pur<chaser's hazard,' Stair, 234. See Ersk. 2. 3. 29.

So in the case of La. Dunfermling v. E. Dunfermling, the lady pursuing the earl, her son, for payment of her terce duties of his lands, and it appearing that the lady had been provided by her deceased husband to the right of some teinds with warrandice, and there being an imposition of a burden for the minister's stipend ❝laid on upon these teinds yearly, more than she was subject to by "the right made to her by her husband, and according to the law "and procedure by the general commission now supervening since 'the making of her right, and she craving the heir to warrand ⚫ the saids teinds from that burden, the Lords found, notwithstanding of the clause obligator of warrandice contained in her right, that she had no action of warrandice therefor, and that the "heir was not holden to warrant from any supervenient law, which ⚫ was a public law, which could not strike against parties to draw them to warrand from facts imprestable,' La. Dunfermling v. E. Dunfermling, 27th March, 1634.

The distinction between the case of eviction thus arising from a public law passed after the date of the contract, and the case formerly noticed, of eviction proceeding from the operation of a public law, which existed previous to the contract, although it did not affect the thing sold till after the date of the sale, was made in the case of Watson, formerly cited, when it was found that the designation being as to cows and horse grass, and upon a law su'pervenient after the disposition,' the disponer was not liable in warrandice, Watson v. Law, 15th July, 1667; supra, p. 247.

348. In the second place, the warrandice is not incurred when' the eviction is owing to the vendee's own fault, Poth. Contr. de Vente, No. 93.

To this effect an old case is mentioned by Balfour, who says, ‹ Ane man havand landis of ane uther pertening to him titulo oneroso, gif he tynes the samin throw his awin default, he hes na

<actioun of warrandice aganis him frá quhom he coft the sam • 12 Martii, 1506, Johne Oliphant contra the Lord Oliphant,' Balfour, p. 324. c. 24.

So Mowbray, having sold lands to Otterburn, with real warrandice, and the principal lands being evicted by recognition, it was pleaded against an action on the warrandice, that the eviction 6 was in default of the said umquhile Alexander Otterburn, be'cause the sasine taken by himself before he had obtained the king's confirmation, was the cause of the recognition, and so the ‹ annailzier was not obliged to warrand the buyer from the incon<veniences proceeding of the buyer's own fact and fault.' The 'Lords, considering the contract of alienation, whereby Mowbray 'was obliged to infeft Alexander Otterburn in Whitelaw, as freely • as he held the same, either by charter and sasine following there• upon, or upon resignation, that the buyer was obliged to purchase the superior's consent, and because he took sasine before he got the superior's consent, the failzie proceeded upon his own <default, and therefore they found the exception relevant to elide 'the warrandice *.'

Another case to the same effect is mentioned by Lord Stair, where the warrandice was held not to be incurred by the forfeit<ure of the disponer's apparent heir, seeing the disponee omitted to obtain the king's confirmation, which would have excluded the 'forfeiture,' Stair, p. 233.

349. But although the general rule be, that the vendor is not liable in warrandice, where the eviction proceeds from a cause which did not begin to exist till after the sale, yet, as has already been stated, there is an exception from this rule, when the act of the vendor himself is the cause of the eviction, Poth. Contr. de Vente, No. 91. The equity and the necessity of this exception are obvious; and accordingly it is to be found both in the Roman law and in the law of Scotland.

350. The import of the different texts of the Roman law upon this subject is thus stated by a modern writer on the law of eviction: At non est idem, si emptor culpa venditoris rem destituit. < Utputa vendidisti mihi fundum, et tradidisti, eumdem deinde 'rursus alteri vendis, et tradis: quæstione mihi mota a secundo

Otterburn v. Mowbray, 1st February, 1610, (Mor. p. 16567.) The same principle was applied in a question between the setter of a tack of teinds and the tenant, Boyd v. Lord Torphichen, 27th June, 1612, (Mor. p. 16570.) Hamilton v. Sharp, 6th March, 1623.