'taining the damage a purchaser had sustained through eviction, wherein he libelled not only the value of the principal lands at the date of the eviction, but also the interim rents thereof since the year 1722, at which time he had been obliged to cede the 'possession, wherein the heir of the disponer, as also Helen Hun⚫ter and others, real creditors, in possession of the warrandice< lands, were called; it was found, Nov. 22, 1740, "That the "clause of warrandice gave the pursuer only a real right to the "extent of the value of the lands evicted at the date of the evic❝tion, but no real right to the extent of the rents of the evicted "lands since that time; reserving to the pursuer to insist against "the intromitters with the rents of the warrandice-lands since the " eviction as accords."

< The Lords were much divided upon this point. What pre• vailed at this time with the plurality, was a suggestion from the bench upon the nature of an infeftment of warrandice, That an infeftment, in warrandice of other lands principally disponed, was 'really a separate disposition of property pendent upon the con'dition of eviction of the principal lands; which condition being 'purified by the eviction, the purchaser becomes directly proprietor of the warrandice-lands, without the aid of an adjudication, to the extent of the value of the lands evicted, and has direct ac⚫tion of mails and duties, like any other proprietor, against intromitters with the rents from the time of the eviction; which, • should it be eluded by the defence of bona fide possession, there is no remedy upon the real warrandice. For even supposing the <disponer himself to be the intromitter, and as such liable in an action of mails and duties, still the purchaser can have no real lien for the same upon the warrandice-lands: For an infeftment ' of warrandice being, as was said, a right of property, does not, by its nature, admit a real lien to the proprietor for the rents of ⚫ his own lands.

"It was admitted to be otherwise in an infeftment for relief, or in security of the personal obligation of warrandice; for that ⚫ such infeftment was a security upon the warrandice-lands for all 'damage arising from the eviction: But it was urged, that where 'the infeftment is only in security of the lands principally dispon'ed, and which was the stile of this, and generally is the stile of ⚫ all infeftments in real warrandice, then the infeftment is not an infeftment for relief, but a conditional right of property, the ef'fect whereof is as aforesaid.

But this was truly to confound an infeftment of warrandice

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with an infeftment of excambion: The latter is indeed a condi❝tional right of property, and the regress thereon, which ariseth ⚫ without any process of liquidation, cannot be barred by an offer to make up the damage arising from the eviction; whereas, in ❝ recourse upon real warrandice, which requires a declarator for ❝ liquidating the damage, as the seller is only bound to make good ⚫ the purchaser's damage and interest, so if he is willing to make up this damage when it is liquidated, he fulfils his obligation, ' and extinguishes the real as well as the personal warrandice.

66

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Upon these principles it was, upon a review, found by a great plurality, "That the infeftment of warrandice gave the pursuer a real right and security in the warrandice lands, not only to the "extent of the value of the principal lands at the time of the evic"tion, but also that the said real security extends as far as the "personal obligation of warrandice, to all his damages arising, be"fore or after the eviction, without any fault in the pursuer," Blair v. Hunter, 6th Nov. 1741. See also Lord Elchies' note to his report of the case, voce Warrandice, No. 5.

404. (3.) It appears to have been held in the preceding case, and it is so laid down by Erskine, that before the vendee can obtain recourse against the warrandice lands, he must obtain a decree declaring that the warrandice is incurred by the eviction, and liquidating his damage, and that, by paying the amount of the loss, the vendor extinguishes the real in the same way as the personal warrandice, and the vendee has no right to claim the warrandice lands themselves in property, Ersk. 2. 3. 28.

405. (4.) The infeftment in real warrandice being intended merely as a security to the vendee in the event of the principal lands being evicted, the vendor does not thereby diminish his own right of property in the warrandice lands, nor is he in any way deprived of the absolute controul and management of them. Accordingly, it has been held that the proprietor of lands which have been disponed in warrandice of other lands, may not only constitute real burdens over the warrandice lands in favour of third parties, but may sell them under burden of the infeftment in warrandice.

The rights of the different parties when this power has been exercised, will appear from the following cases.

406. The first relates to the power of burdening the warrandice lands.

Umquhile Robert Robertson infefts John McDuff in an annualrent of L.80 to be uplifted out of his lands of Belligallan,

whereto Fleming is constituted assignee by M'Duff, who both ' desire the ground of the said lands to be poinded therefore. And ' another Robertson compearing and alleging that he was infeft in the lands of Leadgreen as principal, and these lands libelled in 'special warrandice thereof, and that, long before the pursuer's right, and from the same author: likeas after the said infeft⚫ment, their said common author and this defender, before the pur'suer's right, transacted also together, that the disponer should re'tain the principal lands, and the defender the warrandice lands, and either of them should rest satisfied therewith, conform whereto the defender has ever bruiked the warrandice lands these 14 or

15 years bypast, and the author the principal, and so the pursuer ⚫ cannot seek poinding of thir lands libelled. The Lords repelled this alledgeance, for they found that the defender's infeftment of the land in warrandice could be no impediment to the common author to give, nor to the pursuer to receive an infeftment out of the warrandice lands, which infeftment the Lords found effectual 'to burden the said warrandice lands, notwithstanding of the de'fender's infeftment granted to him in warrandice of the principal lands disponed, ay and while he were legally distressed in the ⚫ said principal lands disponed; and found that the transaction (specially being alleged to be verbal, and not offered to be proved to have been by writ) was no impediment to the pursuer to bruik validly the right of the said annualrent out of the lands foresaid disponed in warrandice, nor yet to the excipient to have recourse to the principal lands disponed to him, notwithstanding of the alleged transactions.' Fleming v. Robertson, 19th Feb. 1639.

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407. With regard to the power which a party who has disponed lands in warrandice undoubtedly possesses of selling these lands to a third party, the question occurred in the case of the Trustees of Mrs. Durham v. Graham, 9th July 1800, of which the circumstances have already been stated, (supra, No. 302,) how far the third party who purchases such lands can object to the payment of the price on account of the existence of the infeftment in real warrandice. It was there found that the purchaser could not object; but it will be observed that the circumstances in this case were peculiarly favourable to the plea of the seller of the lands, which were burdened with an infeftment in real warrandice.

408. Lastly, when an infeftment in real warrandice has been given as a security against certain appearances of distress which were in the view of the parties, and were specially mentioned, af

ter the purchaser has been secured against some of these burdens by their being cleared off, or otherwise disposed of, he is not entitled to insist on the continuance of his security over the warrandice lands to the full extent, but must consent to its being restricted to a reasonable security against such as remain. Swinton v. Ker, July 1724, (Mor. p. 16621.)

ARTICLE II.

Warrandice against Faults.

409. THE law of Scotland in regard to this second article of the vendor's obligation of warrandice, is different, in certain important particulars, both from the Roman law and the law of England. But as these systems are in other respects analogous to our own, and may therefore be consulted in questions which have not been settled by decisions of our own courts, I shall endeavour, before proceeding to explain the rules of the law of Scotland, to state, in short and general terms, in what respects it differs from the Roman law and the law of England.

410. I. In the Roman law, the vendor was held to be bound by the nature of the contract, and without any stipulation, not only to warrant the thing sold to be free from such defects as rendered it unfit for the use for which it was intended, but also if the defect was of a slighter kind, so as merely to affect the value of the subject, to repay as much of the price as exceeded what the vendee would have given if he had known the defect; 1. 11. §7 and 8, ff. de act. empt. l. 61. ff. de Edil. Edict. l. 15. ff. § 1, de Evict. The vendee was entitled to enforce the former obligation by the actio redhibitoria, and the latter by the actio estimatoria, or quanti minoris. Redhibitoria actio cst personalis, &c. ob talem defectum, quem si scivisset emptor, emturus non fuisset.'• Quanti minoris actio emptori datur contra venditorem præcipue ob defectum quem si scivisset, tanti non fuisset empturus, ad id • ut restituatur ex pretio quanti minoris valet res.' Voet ad Pand. lib. 21, tit. 1, § 4 and 5.

411. II. The rules of the law of England are materially different from this. At one time indeed, an opinion prevailed that where a full price was given for the thing sold, the seller was held to warrant its goodness. But this opinion has been long exploded, and it is now the general rule that with regard to the goodness of

the wares purchased, the vendor is not bound to answer, unless

he expressly warrants them to be sound and good; or unless he knew them to be otherwise, and hath used any art to disguise them, or unless they turn out to be different from what he repre❝sented them to the buyer,' 2 Blac. Com. 450. Meyer v. Everth, 4 Campb. 22. The progress of the law, on this point, is thus stated by a learned judge in one of the leading cases upon the subject. • If an express warranty be given, the seller will be liable for any ⚫ latent defect, according to the old law concerning warranties. But ' if there be no such warranty, and the seller sell the thing such • as he believes it to be, without fraud, I do not know that the law • will imply that he sold it on any other terms than what passed in fact. It is the fault of the buyer that he did not insist on a war، ranty, and if we were to say that there was, notwithstanding, an implied warranty arising from the conditions of the sale, we 'should again be opening the controversy, which existed before the case in Douglas. Before that time, it was a current opinion ‹ that a sound price given for a horse was tantamount to a war6 ranty of soundness; but when that came to be sifted, it was found 'to be so loose and unsatisfactory a ground of decision, that Lord • Mansfield rejected it, and said there must be either an express ، warranty of soundness, or fraud in the seller, in order to main، tain the action *.

412. As to what shall amount to a warranty, the following cases may be noticed.

413. In the sale of horses, a pedigree is sometimes shewn to the buyer, stating the age of the horse, and other particulars. In such a case, it was held in England, that if the seller, not knowing the age of the horse, but having a written pedigree which he had received with him, sells him as of the age therein stated; at the same time mentioning that he knows nothing of the horse, but what he has learned from the pedigree, he is not liable to an action, although it afterwards appears that the statement in the pedigree is false.

Thus, in an action on a promise that a horse bought by the plaintiff from the defendant was eight years old, when in fact he was fourteen, it appeared that at the sale, the defendant shewed a

Per Grose J. in Parkinson v. Lee, 2 East, 314. Vide La Neuville v. Nourse 3, Campb. 351.

But when goods are sold by sample, or are described in the contract as of a certain quality, there is an implied obligation on the part of the seller, that they shall be equal to the sample, or of the quality described. Vide Infra, No. 470, et seqq.