• obliged to warrant the lands from the same specifice,' La. Pitferran v. her Son, 19th June, 1629.

359. IV. By the Roman law, when a part only of the subject sold was evicted, the vendor was bound to pay to the vendee the amount of his loss, and that, even although the part remaining was worth more than the price which had been paid. Sive tota res ⚫evincatur, sive pars, habet regressum emptor in venditorem, 1. 1. ff. de Evict. 'Si duos servos quinis a te emam, et eorum alter ⚫evincatur, nihil dubii fore quin recte eo nomine ex empto actu'rus sim, quamvis alter decem dignus sit: nec referre, separatim singulos, an simul utrumque emerim, l. 47, ibid.' Burgund. de Evict. cap. 45. No. 1. Poth. de Vente, No. 99.

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360. In applying this rule in our law, a distinction has been made in sales by creditors and apparent heirs, between the case where the subject has been valued, and sold in cumulo, without any separate value having been put upon the part which has been evicted, and the case where the part evicted is a separate subject, and has been valued by itself. In the former case, the Court have refused to make any allowance for a part of the subject sold being evicted, while they have allowed it in the latter case.

Thus at a judicial sale at the instance of an apparent heir, there was sold to Messrs. Lloyds, at the price of L.600, all and haill the property of the splint coal, and haill other seams of coal and machinery thereof, and the grieve's and colliers' houses belong'ing thereto,' &c. Before the scheme of division of the price was finally adjusted, the grieve's house was evicted by the owner of the lands in which the coal was situated. The purchasers claimed a proportional abatement of the price, but the Court seemed to ⚫ think the purchasers might renounce the bargain altogether, and likewise, that if a separate value had been affixed to each sub'ject, they might have been allowed to renounce it as to the subject evicted. But the purchasers declining to renounce, unless a ⚫ considerable sum laid out by them in the improvement of the subject was to be repaid, the Court refused to grant any abate'ment,' Lloyds v. Apparent Heir and Creditors of Paterson, 13th Feb. 1782.

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In another case, where the teinds of certain lands sold by judicial sale had been included in the rental, and exposed and sold along with the lands, on its being discovered that one-fourth part of the lands did not belong to the seller, the purchaser was found

entitled to a deduction from the price, Wilson v. Creditors of Campbell, 14th Nov. 1764.

361. V. The obligation of warrandice extends not only to the eviction, whether partial or total, of the thing sold itself, but also to the eviction of that which remains of it when it has been destroyed, or of the fruits which it has produced. If, therefore, the purchaser of a mare has been compelled to give up the skin, the animal itself having died before the party claiming it made his claim effectual; or if, after the death of the animal, he has been compelled to give up a foal which she had produced, he is entitled to his recourse against his author, Poth. de Vente, No. 101. Venditor hominis emptori præstare debet quanti ejus interest hominem venditoris fuisse. Quare sive partus ancillæ, sive hereditas quam servus jussu emptoris adierit evicta fuerit, agi ex empto potest: et sicut obligatus est venditor, ut præstet licere habere hominem quem vendidit, ita ea quoque, quæ per eum adquiri potuerunt, præstare debet emptori ut habeat, 1. 8. ff. de Evict.

362. VI. Although it be the general rule that the vendee cannot pursue his claim of recourse until the subject be actually evicted from him, yet if a plain ground of distress appear, arising from the deeds of the vendor himself, the latter may be called upon, previous to any actual distress, to free the subject from all danger of eviction, and if he fail to comply with this requisition, immediate action of recourse lies against him on the warrandice, Stair. 232.; Ersk. 2. 3. 30.

So it has been held in the following cases:

L. Balvenie being charged by Lord Frendraught to warrant certain lands disponed to the latter by Leslie the proprietor, with consent of Balvenie, who was the superior, and which they were both obliged to warrant from an inhibition and apprising following thereon at the instance of one Innes, it was alleged, that this was no ground to produce present execution of warrandice, seeing Frendraught was in real and peaceable possession of the lands, and no trouble nor action moved against him upon the said inhibition and apprising, and no sasine taken on the apprising, nor the appriser received or entered by Balvenie, who offered to take steps to remove the incumbrance before the appriser should attempt to enter. But the Lords, notwithstanding of this reason, ' ordained Balvenie to warrant from the said inhibition and comprising, albeit the charger was not troubled in his possession, seeing the same were such rights as might prejudge his right to

'bruik, being anterior to him, and that the comprising, whenever 'sasine should follow, would make him countable for the mails of 'the lands since the date thereof as said is; and therefore the 'Lords decerned to warrant, but superceded the execution to a 'certain day, that betwixt, and the day assigned, Balvenie might ⚫ remove that impediment of the inhibition and comprising, either by some lawful process, or by consent of the compriser,' Lord Frendraught v. L. Balvenie, 1st July, 1624.

In like manner, Johnston having sold his lands with absolute warrandice to Gordon, reserving his own and his wife's liferent; and afterwards having sold the same lands to William Johnston, who obtained the first infeftment, he was charged by Burnet, assignee of Gordon, to purge the incumbrance; and although Johnston pleaded that the charger had no interest during his life, in consequence of the reservation of the liferent, the Lords found a • difference when warrandice is craved upon a deed of the party obliged, and upon any other ground; and that, as to his deed, he may be charged to purge it without necessity to allege a dis'tress *.'

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363. VII. Under the obligation of warrandice, the vendee, upon being threatened with eviction, is entitled to call upon the vendor in the first place, to defend his right, and maintain him in possession. In this situation, according to the practice of our law, the regular course of proceeding, on the part of the vendee, is to intimate the distress to his author, in order that the latter may have an opportunity of opposing the attempt to evict. But the omission of this intimation does not deprive the vendee of his claim of recourse, in the event of the subject being actually evicted, unless it appear that some relevant defence has been neglected to be stated by him in the action, by means of which the loss of the subject might have been prevented,' Stair, 232.; Ersk. 2. 3. 32.; Vide Burgund. de Evict. c. 55. No. 1 and 2.

* Burnet v. Johnston, 17th July, 1666, (Dirl.) See, to the same effect, Smith v. Ross, 17th February, 1672, where, it is stated in Gosford's report, (Mor. p. 16597,) the Lords did find a difference upon an obligement of warrandice, where a distress ' is from a third party as having a prior and better right, quo casu there must be a ⚫ distress before an action of warrandice can be pursued; and the action of warrandice, which results in damage and interest, where one and the same person hath ⚫ made double deeds, whereby he that hath the best right will undoubtedly seclude the other from all pursuit, quo casu there needs no distress, seeing in vain the party ⚫ who hath the worst right can make use thereof.' The Court therefore sustained the action of recourse on the warrandice, without any previous distress being alleged,

So, in a case where a charge given upon an obligation of warrandice was suspended on the ground that no intimation was 'made of the process inferring the distress,' the Court found the warrander liable albeit the plea was not intimated to him, unless ⚫he can allege or instruct a relevant defence, that could have defended the charger in whole or in part,' Clerk v. Gordon, 23d June, 1681.

364. Although the vendor, upon receiving intimation of the vendee's distress, is bound to defend his right, and maintain him in possession, this obligation must be understood under the qualification that the vendor cannot be compelled to insist in an unjust or a hopeless law-suit, and that, if the demands of the third party be manifestly well founded, or if the vendor chooses to pay the vendee the damnum et interesse, instead of opposing the eviction of the subject, he is at liberty to adopt this alternative, Burgund. de Evict. cap. 50. No. 1.; Poth. Contr. de Vente, No. 115. After the vendor has thus expressed his willingness to yield to the demand of the third party claiming the subject, and to pay the amount of the vendee's loss, the latter may still, if he chooses, oppose the threatened eviction in his own name. But he does this at his own risk; and if he is defeated, he cannot claim from his author the expenses of process, although he is still entitled to demand restitution of the price, and the damage arising from the eviction, as in the ordinary case, Poth. Contr. de Vente, No. 116.

365. When the vendee has once undertaken the defence of his own and his author's right, he is bound to conduct it properly, otherwise he will lose his recourse against the vendor. Si culpa • vel negligentia sua litem perdidit, regressum evictionis non ha• bet, quia non defendit ut oportuit,' Burgund. de Evict. cap. 56. No. 3.

Upon this principle, judgment was given in the following case: Ferguson of Hallhill, by his bond, was obliged to pay to Ferguson of Isle the annual-rent of 2000 merks, so long as he should have peaceable possession of the lands of Hallhill. Being pursued for the sum, he alleged that the condition of the bond had failed; for John Bannatyne having a prior inhibition, had raised a reduction, and obtained a decree of certification, for not producing the writs. It was contended by the other party, that this decree was no sufficient eviction nor distress, because it was only a decree of certification against Hallhill for not producing his writs, which he should not have allowed to pass; and although he replied that the

production of his writs would not have enabled him to have prevented the decree being ultimately obtained, yet the Lords found that decreet of certification was no sufficient distress, but that he 'should have defended, seeing there might be nullities in the exe'cution of the inhibition,' Ferguson v. Ferguson, 13th March,

1685.

366. Lastly, under this head, it may be observed, that while, in the Roman law, the vendee, upon eviction, being threatened, was merely entitled, in the first instance, to denounce or intimate the demand to his author, and it was not until actual eviction had occurred that he could raise his action of recourse; by our practice it would seem that the mere dependence of a process, at the instance of a third party, against the vendee, for the purpose of carrying off the subject, authorises him not only to intimate the distress to his author, but also to raise an action for recovering the amount of his loss, which action will be sustained, superseding execution until the close of the process of eviction.

367. This was the course adopted in the following case:

It

There being an excambion betwixt the Earl of Home's predecessor and Sir John Ker of Hirsel, of the abbacy of Jedburgh with the lands of Hirsel, and the said lands being distressed by a poinding of the ground against the Earl and his tenants, he pursued the Earl of Lothian for recourse against the lordship of Jedburgh. It was alleged, no recourse, because no distress by a sentence. was answered, that the dependence of a process is a distress, wherein, if the Earl of Lothian will appear and obtain absolvitor to the Earl of Home, the decree of recourse will evanish. The 'Lords sustained process, superseding execution against the lordship of Jedburgh till the Earl of Home, or his lands, should be distressed by a sentence *.'

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368. On the other hand, when the vendee, instead of bringing forward his claim of recourse as soon as his right is challenged, proceeds to take up the defence of his right in his own name, it appears from the following case, that, if the attempt at eviction shall fail, he is not entitled to be relieved by his author of the expense he has incurred in defending himself, even although he had intimated the process to him when it was raised, and called upon him to take up the defence.

*Earl of Home v. Earl of Lothian, 21st January, 1663. The form of proceeding in France was similar to this, at the time when Pothier wrote, Poth. Contr. de Vente, No. 107.