Earl of Strathmore v. Captain George Oliphant-Kinloch — Petition, 17 Dec 1766

D E C E M B E R 1 7 t h, 1 7 6 6U n t o the Right Honourable the Lords of Council and Session, T H E P E T I T I O N O F D E C M Earl of B R 1 7 R C t E 1 h, Sheweth, T H A T Patrick Earl of Strathmore, the Petitioner’sGreat-grandfather, stood infeft in the Lands of Little Blair, or Lochblair, and Pertinents, and like- wise in the Lands of Lochend. That these Lands were Church-land, which formerly held o f the Abbacy of Scoon, having been feued out in antient Times by the Abbacy to the Authors o f the Family of Strath- more, for Payment of a Feu-duty, of about 5 0 l. Scots, but were held of the Crown by the Petitioner's Great-grand- father, as said is, by virtue of the Act o f Charles I. for Payment of the Feu-duty to the Lord o f Erection, who was my Lord Stormont._. That, of this Date, the said Patrick Earl of Strathmore disponed to James Cowpar of Cowpar-grange, his Factor, up- on the Narrative of certain Sums of Money, then, and for- merly, paid to him, by the said James Cowpar, the Lands o f Lochend, and likewise the Lands of Little Blair, or Lochblair, above mentioned, to be holden of the Earl, for Payment of 20 l. 20 l. Scots of Fen-duty, at two Terms in the Year, Whitsun- day and Martinmas, by equal Portions; “ And that for all other Duty or Exaction, that can be craved for the Lands, Loch, and others above disponed.” And, with respect to this Feu-duty, it is specially provid- ed in the Disposition, “ That the Not-payment of' the fore- said Feu-farm-duty, by the Space of two or more Terms shall be no Cause of Reduction o f the Feu-infeftment to follow hereupon; but that it shall be leisome, and lawful to us and our above specified, to cause poind and distren- zie the readiest: Goods, that shall be upon the Ground of the foresaid principal Lands, for Payment of the Feu-duty that shall happen to be resting for the T im e; and that brevi manu, without any hazard o f any Act ion of Spulzie, to be interned against us, or our foresaids, for the samen.” That the Clause of Warrandice, which gives Occasion to the present Question, is conceived in the following Terms: Which Disposition, Alienation, Infeftment to follow here- upon, together with the foresaid Lands o f Little Blair Loch, and Pertinents, and Warrandice-lands of th e samen, above disponed, we bind and oblige us, and our above specified, to Warrant to the said James Cowpar, &c. at all hands, frae all Claims, Perils, Dangers, and Inconvenien- cies, against all deadly; and to warrant the forsaid Landsof Lochend, and the Pertinents, from our own proper Fact and Deed allenarly.” That, of the same Date, the Earl granted a Feu-charter of the said Lands, to James Cow par, in the same Terms with the Disposition; and upon this Charter Cowpar was infeft. That James Cowpar ossessed the Lands, and paid the Feu- duty of 20/. to the Family of Strathmore, for two or three Years, but having died insolvent, a Process of Ranking and Sale of the foresaid Lands was, about the Year 1720, raised against against his Son and Heir, Gilbert Cowp a r and concluded in February 1725, and the Decreet extracted. That from this Decreet of Ranking it appears, that the foresaid Charter, granted by Patrick Earl of Strathmore to J ames Cowpar, was produced in the Process, and, according- ly, the Feu-duty of 20 l. contained in that Charter, is de- duced from the Rent of the Land; and the Decreet further bears, that the V iscount of Stormont appeared, and deposed, “ That Cowpar of Lochblair, and his Predecessors, were in u s e t o pay to his Lordship, and Predecessors, yearly, 49 l. 1 s.. 10 d. Scots Money, including Kains, as the Feu-duty of the Lands belonging to the said Cowpar of Lochblair, to which the said V iscount has Right, as Lord of the Erection; and further deponed, that the said Feu- duty is truly resting to him, for the Crop and Year of God 1692, and all the Years since, &c.” And, thereupon, the said V iscount was preferred to all the other Creditors, for the said Feu-duty for the Year 1692, and subsequent Years; and the Lords found, that “ The said yearly Feu-duty must af- fect the said Lands of Little Blair in all Time coming; and that, in the Event of a Sale, the said Lands ought to be sold with the Burden of the said yearly Feu-duty. " That in July 1727, Mr. Henry Ramsay, Professor of Philo- sophy in St. Andrews, became Purchaser of the said Lands of Little Blair, or Lochblair, at a judicial Sale; and in the Decreet of Sale, the foresaid Preference, in favour of my Lord Stormont, is specially narrated. That Mr. Ramsay, the Purchaser, cleared sundry Accounts- with the Family of Strathmore, in all which he debits him- self with the foresaid Feu-duty of 2 0 l. payable yearly to the Family of Strathmore, without making any Claim for the Feu-duties payable to the Lord of Erection. This appears from Copies of those Accounts in the Hands of the Peti- tioner, the Originals being, probably in the Hands of Mr, Henry Henry Ramsay s Representatives, from whom they could be recovered by a Diligence, if the Fact were denied. That Mr. Ramsay disponed the foresaid Lands to Mr. Da- vid. Covipar, in fecurity of certain Debts, and they conti- nued in the Possession of him and his Representatives till within these few Years, that they were fold by the Repre- sentatives o f Mr. David Cowpar and Mr. Rams ay to Captain Oliphant-Kinloch. That the said Captain Oliphant-Kinloch, now insi st s in an Action against the Petitioner, to have it found and declared, that the Petitioner is bound to relieve him of the Feu-duty, payable to the Lord of Erection, being 4 4 l. 5 s. 4d. the Proportion corresponding to the Lands of Little Blair, or Lochblair, in all Time to come; and also concluding, that the Earl should indemnify him for the Feu-duties which he and his Authors have paid to the Family of Stormont, for the Years bygone. That this Process coming of course before Lord Auchin- leck Ordinary, his Lordship, at first, assoilzied the Petitioner in Absence of the Pursuer; but, upon advisin g Representa- tion and Answers, his Lordship was pleased, of this Date, to pronounce the following Interlocutor: “ H aving again con- sidered this Representation, with the Answers, finds, That, as it is agreed between the Parties, that the Lands of Loch- blair were antiently feued out by the Abbot of Scoon, for Payment of a Feu-duty of 4 4 l. 5s. 4d. y e arly; and that the Family of Stormont got Right to this Abbacy as Lords of Erect ion, and the Family of Stormont [StrathmoreJ had the Right of Property o f the Lands of Lochblair, which they originally held of the said Abbot, thereafter, of the Lord Stormont, and thereafter of the Crown, in vir- tue of the A cts of Annexation o f the Superiorities of Church-lands to the Crown; but which Acts of Annexa- tion, left the Right to the Feu-duties with the Lords of E- rection; and, as Patrick Earl o f Strathmore, who was Pro- “ prietor * prietor of Lochblair in the 16 9 3 held these Lands of the Crown, for Payment of the abovementioned Feu-duty, granted a Feu of these Lands to James Cowpar, to be held of him (the Earl) for Payment of a feu-duty to his Lord- ship and his Heirs; the Earl and his Heirs, who retain the Right of Superiority held of the Crown, continued to be subjected to the Payment of the antient Feu-duty; and James Cowpar, who got the Lands for Payment of a Feu- duty to that Earl, as his Superior, was no way bound to relieve the Earl from Payment of the Feu-duty which the Crowns V assal was bound to pay, this being a proper Debt of the Earl’s own, and no Obligation in the Feu- right laid upon the V assal, to free the Earl of it, on the contrary, the Earl is thereby bound to warrant against all Claims, & c. And, in conformity thereto, when the Lands were sold judicially to Mr. Ramsay, in the 1727, no De- duction was made from the Rental, but of the Feu-duty payable to the Earl of Strathmore, viz. 20 l. Scots, and there- fore finds the Earl of Strathmore entitled to his Feu-duty, but that his Lordship must, simul & semel that he receives it, clear off the Feu-duty due to these now in right of the Lord of Erection, the same being a Burden on the Lands of Lochblair, though not upon the Proprietor of them.” And, upon advisin g a Representation against this Interlo- cutor, and Answers, his Lordship of this Date, pronounced the following Interlocutor, “ The Lord Ordinary having a- gain considered this Representation with the Answers, ad- heres to the former Interlocutor, and refuses the Desire of the Representation; and further finds the Defender liable in the Expence of this Process, and appoints an Account thereof to be given in. " That the Petitioner must beg leave to lay his Case before your Lordships; and, in the first Place, from the Facts above stated, it must appear, that this Claim is a new Discovery made by Captain Kinloeh, which was not thought of neither by James Cowpar, the original Purchaser from the Family of Strathmore, Strathmore, nor by Mr. Ramsay, the Purchaser at the judicial Sale, who both paid the Feu-duty of 20 l. to the Family o f Strathmore, without making any Claim for more than double that Feu-duty, which was due out of the Lands to the Lord of Erection, and actually by them paid; and it must fur- ther appear to your Lordships, that the Lands were errone- ousl y sold at the judicial Sale, when they were sold with the Burden of the Feu-duty payable to the Lord of Erection, and that Mr. Rams ay must have made an exceeding good Bar- gain, when he purchased the Lands with the Burden of this Feu-duty, of which the Family of Strathmore, as this Pur- suer contends, was obliged to relieve him; so that he truly got about 50 l. yearly, for which he paid nothing. And, as it appears, that this Feu-duty was understood to be a Bur- den upon the Lands at the Time of the Captain’s Purchase, it is plain that he is seeking 44 l. yearly from the Petitioner, for which he cannot be supposed to have paid any Value. On the other hand, Earl Patrick, in the 1693, must have made, on the Supposition that the Pursuer’s Plea is well founded, one of the most absurd and foolish Bargains that perhaps ever was made, for while he takes James Cowpar bound to pay him a yearly Feu-duty of no more than 20 l. he himself was bound to relieve James Cowpar, yearly, of more than the double of that Sum, payable to the V iscount o f Stormont. From these Considerations, it must appear to y our Lord- ships, that there is very little Equity in this Claim of the Pursuer’s; and the Petitioner will further endeavour to show your Lordships, that it is not supported by Law. And, for that Purpose, he will endeavour to maintain, 1mo, That, by the Nature of the Contract of Sale, the Seller is not obliged to relieve the Purchaser of such a Burden upon the Subject, as that of a Feu-duty, unless it were so specially provided in the Contract.— 2 do, That there is no such Specialty in the Clause of Warrandice in this Case, which contains nothing more than than what would have been included in the Nature of the Contract, if there had been no Clause of Warrandice.— And, lastly, That supposin g the general Principle o f Law were against the Petitioner, yet there are Specialties in the Cafe, which ought to make it an Exception from the com- mon Rule. As to the first Point, it is established Law, that inest de jure in every Contract of Sale, that the Seller is obliged to war- rant the Subject contra omnes mortales, and against all dead- ly; or, in other Words, he is understood to be bound in ab- solute Warrandice, and the only Question is, how far this Warrandice can be extended? And, hitherto it has been commonly understood, that it went no further than to secure the Purchaser against the Eviction of the Subject, or any Part of it, upon any Right prior or preferable to that which he purchased, but not to secure him against Burdens affecting the Subject, and inherent in the Nature of the Right pur- chased, such as this Burden of a Feu-duty payable to the Superior, and such as Cess, Minister’s Stipend, and Schoolmaster’s Salary; all which are never reckoned Evictions of the Subject, but necessary Deductions from the yearly Value of it, imposed by the Law, and which therefore every Purchaser must be supposed to take his Ha- zard of, unless he has made his Bargain otherways. And indeed, there does not appear to the Petitioner any good Rea- son, why the Pursuer should not have claimed of him Re- lief of those other Articles, of Cess, Ministe r ’s Stipend, and Schoolmaste r ’s Salary, as well as of the Feu-duty, which, by the particular Constitution of the Right, is a Burden as much inherent in the Nature of it, as the others are by the publick Law of the Country. And, with respect to such Burdens, the Purchaser cannot pretend Ignorance, and less with respect to the Feu-duty, than with respect to the other Burdens above mentioned; for these do not appear ex facie of the R ig h t; whereas, the Feu- duty does so appear, being an essential Part of the Constitu- tution tion or the R ig h t; for every Purchaser is supposed to know the Nature of the Right he purchases. And in this Case, as the Earl' s Right to the Lands was a Charter from the Crown, or which the Reddendo was this Feu-duty to the Lord of Erection, the Purchaser could not be ignorant of it, i f he had not been my Lord’s Factor, and by that Means had par- ticular Cause to know, as shall be afterwards shown. As therefore, he did not take my Lord bound to warrant him particularly against this Feu-duty, with which he saw the Subject aff ected, he must: be supposed, by a most equitable, as well as legal, Presumption, to have taken the Subject under that Burden. By the Roman Law, as well as by ours, the Seller was bound to warrant the Subject sold, though there was no express Obligation of Warrandice, which they called Stipu- lati o de evittione. And if in such a Case, the Subject was evicted, the Action, ex empto, was given for recovering the Value of it. But then, by the Nature o f the Contract, the Buyer was subjected to all the Burdens affecting the Subject, and inherent in the Nature of the R ig h t; præter periculm rei v enditæ, says Voet in his Commentary ad tit. pandect. de periculo et commodo rei venditæ, p. 8th, e t i a m onera realia ven- ditæ rei inherentia in emptorem transeunt; veluti tributorum, census, canonis solarii, et similium. Where your Lordships will observe, that he mentions the Canon, which was paid annually for the fundus emphyteuticarius, and answers pre- cisely to our Feu-duties; so that here is an Authority in point; and he proceeds afterwards to tell us, that this was carried so far among the Romans, that the Purchaser was un- derstood to be liable to these Burdens, even for the Time pre- ceeding his Purchase, unless the contrary was specially war- ranted, for which he quotes sundry Texts. In short, the Notion of the Roman Lawyers was, that all the Purchaser could claim was to possess the Subject, just as the Seller pos- sessed it, with all the Profits and Com m odities b e lo n g in g toit; i t; and at the same time subject to all the Burdens and R isks to which it was liable, when it was the Property of the Seller. And this was what they called the periculum et com- modum rei vendita. As this is clearly the Doctrine of the Roman Law, it must also be presumed to be the Doctrine of our Law, unless the contrary be proved; as that Law is our Law, especially in the Matter of Contracts, i f neither Statute, nor the Practice o f the Court, has made an Exception. But the Matter does not rest upon this Presumption; for there is positive Autho- rity, both from our Law-books and Decisions, to show, that the Obligation o f Warrandice, inherent in the Nature of the Contract of Sale, is understood to be the same among us as among the Romans. And, in the f irst place, Balfour, in his Practicks, Title Warrandice, Page 31 8, Chap. 5, has these Words: “ G it ony Man sellis or analzies Landis, heritablie, or settis the same in Tack and Assedatioun to ane uther, titu lo oneroso, or with general Clause of Warrandice allenarlie, he may not be compellet to warrand the samin fra Ward, Relief, or Non-entres; because na Persone may be callit and con- venit for Warrandice of ony Landis annalzeit and disponit be him, fra Ward, Relief, or Non-entres, except he be speciallie and expresslie bund and obleist thereto; because Ward, Relief, and Non-entres, pertainis to the Superiour, be the commoun Law o f this Realme, fra the quhilk na Man is exemit, and sould be knawin to all our Soverane Lordis Lieges; and thairfor, the uther suld imput it to himself, g if he not makand special provisioun heiranent, incurris ony Skaith throw his awin Negligence and inex- cusabill Ignorance. 2S Maji 1549, L. Drummond contra Robert Stuart. 2 December 1542, Sinclair contra Alexander Hamilton. 2 t. c. 245.” In this Passage the Opinion of the learned Author is clear- ly expressed, and supported by the Authority of the Court, that that the Casualties of Superiority, of which he mentions three, being Burdens imposed by the Law, and inherent in the Nature and Constitution of the Right, are not under- stood to fall under the Warrandice of a Contract of Sale, un- less they be specially mentioned; and there is no doubt, but that, by the Nature of the Thing, there is a very great Dif- ference betwixt such Burdens as are inherent in the Constitu- tion of the Right, and such as are adventitious, and imposed by the Seller or his Authors; and yet my Lord Stair goes the Length of saying, that even Burdens of that kind, if they are no more than ordinary predial Servitudes, such as Pastu- rage and Thirlage, are not included in the Warrandice o f the Contract: His Words are, “ The Intent of absolute Warrandice, being only against legal Eviction, it doth not extend to every Burden that may affect the Land, as to a Servitude of Size-fish; Fotheringhame of Pow rie contra Lord Gray, 1 1 th February 16 9 2; or of Pasturage, Feuel, Feal or Divot, or to a Thirlage of the Land to the Mill of a Barony, pay- ing the 19th Corn, 2 1st June 1672, Sandilands, contra the Earl of Hadinton." And, to the same Purpose, my Lord Bankton, “ Absolute Warrandice, in A ssignations to Bonds, imports no more than that the Debt is due, but not that the Debitor is sol- vent, unless it be so expressed. In Lands it extends not to predial Servitudes, or even to Thirlage affecting the same, as is elsewhere fully observed, nor to subsequent Casualties falling by the Granter’s Superior. As to the Casualties of Superiority, falling to the Granter’s Superior through the Granter himself, or his Heirs, of whom the Lands- imme- diately hold, it will extend to all such as occur by his Fault, as Recognition, Liferent-escheat, or Non-entry; but not to those that are purely fortuitous, as Ward, and Mar- riage, when the same were in use, unless it is specially ex- pressed.” pressed.” And in another Place he says, “ Warrandice of Lands concerns only Eviction of them, but does not ex- tend to Servitudes aff ect ing the same.” And for this he quotes three Decisions, 4th December 1716, Millhall; 23d No- vember 17 17, idem; July 17 3 1, Stewart of Allant own. It is very true, that, in none of those Passages, the Authors mention expresly the Feu-duty of a Feu-holding; but they mention other Casualties of Superiority, such as Ward, Mar- riage, and Relief. The Reason of which seems to be, that, as the Feu-duty is expressed in the Constitution of the Right, they thought there could be no Doubt as to that, and therefore they only mention such Casualties as are not expres- sed in the Constitution of the Right, but are only de jure in- herent in the Nature of it. But, as to predial Servitudes, such as Thirlage and Pasturage, the Case is very much strong- er; for they do not appear at all ex facie of the Right, and may be utterly unknown to the Purchaser; yet even these are not understood to be an Eviction of the Subject. As to the Decisions of the Court, they are quoted by the Authors above mentioned; and, in the Dictionary of Deci- sions, Tit. Warandice, Page 5 14, there are others quoted, particularly, one observed by my Lord Stair, 1st July 1676, Auchintuil contra Innes, where the Lords found, “ That ab- lolute Warrandice, though expressed in the Disposition, could not be extended to a Glebe of Kirklands, designed af- ter the Vendition, although, by a Law before the Vendi- tion, unless it had been specially expressed in the Warran- dice, it being a notour Burden upon the Land.” And the Argument upon which the Decision proceeds is, that the Lands being Church-lands, the Designation of a Glebe out of them was a Burden inherent in the Nature of the Right; and yet the Case there was strong, as there was actually a Part of the Lands evicted; nor could the Purchaser be supposed to know, that the Minister had not a sufficient Glebe. And thus it is plain, from the Authorities above quoted, that the absolute Warrandice, implied in the Contract of Sale, does does not extend to Burdens inherent in the Nature and Con- stitution of the Right, and, consequently, not to the Feu-du- ty payable to the Superior. In anlwer to thefe Arguments and Authorities, the Pur- suer makes a Distinction betwixt Burdens on the Subject im- posed by the Law, such as M inisters Stipends, Cess, and Schoolmasters Salary, and Burdens affecting the Subject by particular Contrac t; and he says, the Earl might as well pre- tend, that he was not bound to relieve the Purchaser of an heritable Bond, or Infeftment of Annualrent, as of the Feu- duty in question.— But certainly the Casualties of Superiority above mentioned, such as Ward and Marriage, are not impo- sed by publick Law, but are the Consequence of the feudal Contract, as much as the Feu-duty, with this Difference on- ly, that the one is expressed, but the other is not expressed, as being inherent in the Nature of the Contract. But certainly this can make no Difference in favour o f the Argument for the Pursuer; for suppose, that the Casualty of Marriage were stipulated in a Feu-charter, which your Lordships know is sometimes the Case, could the Purchaser, from the V assal, plead, that he was to be relieved o f this Casualty falling by the Seller, in direct Contradiction to the Authorities of our Lawyers above quoted, which say that he is only free of such Casualties, as fall by the Fault of the Seller, such as Recog- nition, and Liferent Escheat, not such as fall by Accident, and they particularly mention Ward and Marriage? It is also evident, that the predial Servitudes above mentioned, such as Thirlage and Pasturage, are not imposed by Law, but by the Deed of the Party; and yet our Lawyers say expresly, that the Seller is not bound, by the Warrandice implied in the Contract, to relieve the Purchaser o f these. As to the Case of an heritable Bond, or an Annualrent-right, it is altogether different from a Feu-duty; for it is an adventitious Burden, nowise inherent in the Nature of the Right, but imposed by the Act and Deed of the Seller, or his Author, after the Right Right is constituted, whereas the Feu-duty is inherent in the Nature of the Right, and coeval with it, being Part of its original Constitution; nor can it be said to be imposed by the Seller, but it is a Condition of the Grant of the Lands by the Superior. As to the Authority from the Roman Law, in support of the Petitioner’s Argument, the Pursuer answers, that Voet, in the Passage above quoted, speaks only of the Burdens to which the Subject sold is liable, but says nothing of the Re- lief which the Puchaser may have against the Seller; now, says the Pursuer, I do not dispute, but that the Lands in this Case are liable in the first Instance for the Feu-duty payable to my Lord Stormont; but my Plea is, that the Seller is ob- liged to relieve me of it: But this Interpretation of the Passage in Voet does manifest Violence to the Words, which speak of the Burdens quæ transeunt in emptorem, as Well as the periculum rei venditæ, Words which Voet never would have used, if he had not understood that those Burdens passed from the Seller to the Buyer, without any Relief, in the same Manner as the periculum rei v e n d i t æ. And besides, the whole Scope of the Title is to show the Prestations that were severally incumbent on the Seller and the Buyer; and therefore the Pursuer must needs acknowledge, that the Authority of the Roman Law is directly against him. As to the Authority from the Roman Law-books, and De- cisions, the Pursuer can make no Answer to them, except by the Distinction betwixt Burdens imposed by Law, and those imposed by Paction; a Distinction which, as the Petitioner has already shown, does not in the least affect the Argument, provided both Kinds of Burden be inherent in the Nature and Constitution o f the Right. The next Thing to be considered is, Whether, as the Obli- gation, of Warrandice is here expresscd, there be any thing particular in the wording of that Obligation, which would make an Exception to the general Rule. The The Clause of Warrandice is ingrossed above, and it ap- pears that there is nothing at all special or particular in i t; and it is rather more general, than Clauses of absolute War- randice commonly are; and, if it had been more special, it would not have availed the Pursuer, unless it had particular- ly expressed the Feu-duty: For, as my Lord Stair very well observes, “ There is little Advantage by special Clauses o f Warrandice; for the general Clauses reach all Evictions from anterior Causes; yea, the Effect is the same, though there were no Clause of Warrandice expressed, if the Right warranted be for Causes onerous, viz. Sums of Money, or equivalent Value, unless, by the special Warrandice, f u- ture Deeds inferring Eviction, or which would not infer it, ex natura rei, be expressed.” It is very true that the Feu-duty is not excepted in this Clause of Warrandice, but it was not necessary, nor is it u sual, in Clauses of Warrandice, to except either the Feu- duty, the Cess, or the Minister's Stipend; and though such Exceptions were usual, it would not alter the Case, for they would be considered as superfluous, as indeed the whole Clause of Warrandice is, unless when there is something special, and contra communes juris regu las mentioned in it. Nor is there any Rule of Interpretation more salutary, espe- cially in a Country where there is such exuberance of Stile as among us, than that of the Roman Law, quædbitaons tollende gratia contractibus inserunt, jus commune non lædunt; for otherwise it were in the Power of Writers, by superfluous and over-anxious Clauses in Deeds, to alter the Law of the Country. The Clause of Warrandice here is so far less particular than usual, that it does not mention by-gone Feu-duties, Cess, and Ministe r’s Stipends. The Petitioner does nevertheless admit, that the Warrandice would be extended to them, because, such Clauses being u sual in absolute Warrandice, they are under- stood, even where they are not expressed. It seems that was not not the Case among the Romans, and therefore, even such By-gones were a Burden upon the Purchaser, unless the con- trary was pactioned. And Balfour, in the Passage above quoted, seems to adopt the Principles of the Roman Law, so far at least, that he makes no Distinction betwixt by-gone Casualties of Superiority, and future. The Petitioner will only further add, upon this Head, that absolute Warrandice, by our Law, though expressed in the strongest and most general Terms, is always understood s ecundum subjectam materiam. Thus an A ssignation to a Bond, with absolute Warrandice, bearing that the same shall be good, valid, and effectual, as in the Case mentioned by my Lord Stair, Tit. Infeftments of Property, p. 225, will not be extended to the Solvency o f the Debitor. As to the Clause in the Disposition above recited, whereby the Feu-duty to the Earl is made to be payable for all o- ther Duty or Exaction that can be craved for the Lands, Loch, and others above disponed," it can mean nothing else, but that nothing more was to be paid to the Family of Strathmore for the Lands, except the Feu-duty of 2 0 l. but it never can be extended to the Feu-duty payable to the Lord of Erection, any more than to the Stipend payable to the Mi- nister, or the Cess payable to the King. And your Lordships know, that so little Weight is laid upon that common Clause of Feu-charters, whereby the Feu-duty is declared to be pay- able pro omni alio onere, that it does not exempt from a Thirlage, even to the Grantor’s own Mill, constituted before the Feu was granted. The Petitioner comes now to the third thing which he proposed, namely, to shew that, supposing your Lordships should have any Doubt as to the general Question of Law, yet the Specialties of this Case are such, as to take, it out of the common Rules, in so far as it is clearly proved, that the Intention of the Parties was, that the Purchaser, and not the Seller, should pay the Feu-duty to the Lord of Erection. And And this Intention, if proved, will be effectual against the Pursuer, though a singular Successor, because the Obligation of Warrandice is a personal Contract betwixt the Seller and the Purchase r; as, in this Case, betwixt the Earl and Cowpar, Captain Kinloch, or any other Person, acquiring from James Cowpar his Right to this Contract, not as Pro- prietor of the Lands, but by A ssignation, expressed or implied, to Writs and E vidents; he therefore comes in place of his Author, as to this Obligation, and, whatever can be shown to have been the Meaning of Parties when it was contracted, must be effectual against him, as well as against the A ssignee to any other Obligation. What remains, therefore, is to state to your Lordships the Evidence o f this Intention o f Parties. And, in the first place, it would have been a most absurd Transaction on the Part of the Earl, as was before observed, if he had stipulated from James Cowpar a Feu-duty of no more than 2 0 l. Scots, while he himself was bound to pay for the Lands which he was giving away, 44 l. Scots to the Lord of Erection: And, on the other hand, it was equally absurd in James Cowpar to bind himself to pay 2 0 l. yearly to the Earl, and to consent, as he does by the D ispositien, that the Ground should be poinded brevi manu, for that Sum, while at the same time the Earl was bound to relieve him of double that Sum which his Lands were due to the Lord of Erection. For, in this way his Lands were liable to be doubly poinded, both for the Feu-duty due to the Earl, and for that due to the Lord of Erection; and yet he does not so much as take an Obligation from the Earl, to relieve him of the Feu-duty payable to the Lord of Erection. Whereas, i f the Intention of Parties had been such as is set forth by the Pursuer, the Balance would have been struck betwixt the two feu-duties; James Cowpar would have charged himself with the Payment of the Feu-duty to Lord Stormont for which his Lands were liable to be distre ssed, and the Earl, instead of getting any thing out of the Lands yearly, would have been taken taken bound to pay annually to James Cowpar 24 l. Scots, being the Difference betwixt the two feu-duties. This was certainly a Bargain which neither of the Parties thought of, and yet this is the Bargain which, upon the Supposition of the Pur- suer’s Plea being well founded, they ought to have made, and have, in effect, made, as the Pursuer says, though in a very improper Manner. But further, your Lordships will be informed, that though the Disposition to James Cowpar is dated in the Year 1693, as said is yet the Purchase took place for the Year and Crop 1689 though the Terms of it were not finally adjusted till the Year 1693. This appears from the Factor Accounts cleared between the Earl and James Cowpar, upon the 7th of May 16 9 1, for the Crops 16 8 4 and 1689, and interveening Years. The following Article occurs in the Charge for Crop 1689: “ There is an Alteration in the Rental this Year, the Counter having bought the Lands of Little Blair and Loch- end from the said Noble Earl, and having Right by Disposi- tion to the Farms, Rents and Casualties, payable Crop 1689, the fame is here to be deduced, and not any further charg- ed on the Counter.” And in the Discharge of the same Ac- count, there is the following Article: “ Paid to the Facto r of the Lordship of Scon 25 7 l. 2 d. as the Feu-duties which were then payable by the said Noble Earl for Little Blair, and Lochend and that for Crops 1681, 1682, and 1683 for Loch- end and for Little Blair and Lochend, for Crops 1684, 1 685, 1686, 1687, and 1688, conform to the several Discharges herewith produced for instructing the same.” And the next Article is, “ Paid to the Minister of Blair for eight Years Stipend of Lochend, being for Crop 1688, and Pro- ceedings, 5 l. 6 s. 8 d." The Balance of this Account be- ing 3 7 8 l. 5 s. 4 d. due to James Cowpar, is, by the Docquet, carried to Cowpar’s Credit, in the next Account cleared by him. I t It is true, that James Cowpar does not charge himself in the foresaid Account with the Feu-duty payable by him for the said Purchase for the Crop 1689, though it properly fell with- in the Accounts. But the Reason has been, that at this* Time the Feu-duty has not been fixed; for, by a retired Mi- nute of Agreement, recovered among the Earl's Papers, en- tered into betwixt the Earl and James Cowpar, dated the 8th of May 16 9 1, being the very Day after the foresaid Clear- ance, it is narrated, that it was formerly condescended on, by Word; between the Parties, that the Earl should fell and dispone to the said James Cowpar the Lands of Little Blair and Locbend, with all Right he could pretend to the Tiends thereof, to be holden of himself, for yearly Payment of 20 l. Scots of Feu-duty; providing that the Not-payment thereof should be no Cause of Nullity; but that it should be leisome to the Earl to poind the readiest Goods upon the Ground of the Lands for Payment thereof: That James Cowpar's En- try should be at Whits unday 1689, and that at that Time James should pay to the Earl 14,000 Merks as the Price of the Lands: That James had actually entered to the Pof- fellion at the said Term, and continued to possess the same; and though he had paid very near the whole Price, yet he had got no Disposition or Charter; and therefore the Earl ob- liged him to procure himself infeft in the said Lands, and to grant a Disposition and Charter thereof in James's Favours- in terms of the foresaid Agreement, with a Clause of Warran- dice absolute, and at all Hands, as to the Lands of Little B lair, and from his own Fact s and Deeds allenarly as to the Lands o f Lochend; and containing all other Clauses necessary, as U se is in Feu-dispositions and Charters. And, on the other part, James obliges him to instr u ct the Payments made by him on account of the Price, and to pay the Earl the Short-coming. In this Mi- nute the Feu-duty has been originally left blank, and filled up only at the Time of subscribing. And in Implement o f this Minute, the Disposition and Charter was granted in the Terms above above mentioned in the Year 1693, at which Time the Feu- duty which Cowpar was to pay the Earl for the Land was settled. And though the D isposition bears Date in the 1693, yet it assigns the Rents for Crop 1689, and subsequent Years, in terms of the Minute of Agreement above men- tioned. Besides, the Words used by James Cowpar in his Accounts, when mentioning the Feu-duties payable to Lord Stormont for the Year 1688, and Preceedings, which he says were then pay- able by the Earl of Strathmore, plainly show that he un- derstood himself, and not the Earl, to be liable for them, af- ter that Period. From this Account of the Matter, compared with my Lord Stormont's Oath in the Ranking above recited, in which he de- poses, that Cowpar of Lochblair was in use to pay the Feu- duty to him, and that it was only resting from the Year 1692, inclus iv e; the Fact appears clearly to have been, that Cowpar did pay the Feu-duty to my Lord Stormont for the Years 1689, 1696, and 1691; and, with respect to the 1689, there is this further Evidence arisin g from the Accounts fitted betwixt the Earl and Cowpar, for the Year 1689, and Preceedings, that the Earl is charged with the Feu-duty payable for Little Blair to Lord Stormont for the Crop 1688, and Preceedings, but not for the Crop 1689, and there would have been the same Evidence with respect to the other Years, i f the Ac- counts for those Years had been preserved. As therefore Cowpar did pay this Feu-duty for these Years, and did not charge the Earl with it in the Accounts which he fitted in the Year 1689, not only before the Disposition was granted, but before the Minute of Agreement abov e mentioned was entered into, it is clear Evidence that it was actum et tractatum betwixt the Parties at the Time, that Mr. Cowpar, getting the Lands, should, as it was natural, pay the Feu-duty for them to the Lord of Erection; more especially, when it is considered, that both Cowpar) and his s uccessor, Ramsay. Ramsay, paid the Feu-duty to the Earl, without ever demand- ing to be relieved of the Feu-duty to Lord Stormont. I f therefore there was any Doubt from the Disposition or Clause o f Warrandice, upon whom the Burden of paying this Feu- duty was laid, whether upon the Seller or the Buyer, the Circumstances of the Transactio n make it quite clear. The Ground, upon which the Lord Ordinary’s Interlocutor seems to proceed, is, that the Earl, at the Time of the Sale to Cow par, was bound to pay this Feu-duty to Lord Stormont; that he continued bound after the Alienation to Cowpar, and did not take him bound to relieve him of it, but, on the con- trary, obliged himself to warrant the Lands; which therefore Cowpar was intitled to possess, free of every Prestation, ex- cept the Payment which he had bound himself to make, of 20 l. Scots yearly to the Earl in name of Feu-duty. But the Petitioner begs leave to observe, that this Reason- ing would be very good, if the Obligation to pay the Feu- duty had been no more than a personal Obligation on the Earl; for, in that Case, Cowpar certainly could not have been burdened with it, unless it had been transferred upon him. But your Lordships will observe, that the Burden here was not only a real Burden, but inherent in the Nature and Con- stitution of the Right. And though, no doubt, the Earl was personally bound by the Feudal-contract to pay the Feu-duty, yet the real Right was what was principal, giving the Supe- rior, or the Lord of Erection, immediate Recourse against the Lands, into whose Hands soever they came, and though, even after the Alienation, the Earl might have been sued for this Feu-duty, the natural and proper Way of recovering it was by a poinding of the Ground. It was therefore, princi- pally, debitum fundi, and only, secondarily, debitum pers onæ. And accordingly my Lord Stormont, at the Judicial Sale, ap- peared, as your Lordships have heard, and was preferred to all the rest of the Creditors, instead of going to seek his Feu- duty from the Earl of Strathmore. By that means he got his Payment Payment out o f the fundus, and the Question is ju st what has hitherto been argued, whether James Cowpar, or the Pur- chaser in his Right, could have R ecourse against the Earl of Strathmore, upon the Warrandice, for these Feu-duties of which Lord Stormont had recovered Payment out of the Sub- je d; or, in other Words, Whether the Seller was obliged, without any special Paction, to clear the Subject of this In- cumbrance inherent in the Nature of it, and appearing ex fa- cie, in the same Manner as he would have been obliged to clear any adventitious Incumbrance imposed by himself or his Authors? The Lord Ordinary seems to have considered the Alienation to James Cowpar as no more than a Subfeudation, by which Cowpar was only bound to pay his 20 l. of Feu-duty, while the Earl continued still bound to pay the 4 4 l. of Feu-duty to the Lord of Erection. If it had been so, it was a most foolish Bargain on the Part of the Earl, in so far as, that when he had subfeued the whole Lands, he did not take his Sub-vassal bound to pay, at least, the whole Feu-duty. But the Fact is, that it was truly a Sale, though the Purchaser was to hold the Lands of the Earl, instead of the Crown, for Payment of a small Feu-duty of 20 l. For it is evident, both from the Disposition, and Minute of Agreement abovementioned, that a Price was paid to the Earl of 14,000 Merks, and so far was the 20 l. of Feu-duty the adequate Value of the Lands, that when they came to be sold, with the Burden of the Feu- duty to the Lord of Erection, and after deducing from the R ental the 20 l. they were purchased by Ramsay, at the Price of 13,000 l. Scots. All the Doctrine, therefore, laid down above, concerning the Warrandice in Contracts of Sale, will apply to this Case. I f the Bargain had been executed in another Form, and that Cowpar had been to hold the Lands, not of the Earl, but o f the Crown, it is believed there could have been no Doubt in the Case. Now, it does not occur to the Petitioner, how how the Difference of the Holding should make so very great a Difference in the Terms of the Bargain, since, in both Cases, the Land was equally liable for the Feu-duty payable to the Lord of Erection. As to what is observed in the Interlocutor, that, in the judicial Sale, no Deduction was made from the Rental of the Feu-duty payable to the Lord of Erection, it may be true, that it would have been more regular to have deduced it from the Rental, as well as the Feu-duty of 20 l. but the same thing was done in effect: For my Lord Stormont's Claim for his Feu-duties was sustained as preferable to all other Debts; and the Lands were sold with the Burden of this Feu-duty, which certainly ought not to have been, i f what is now plead- ed for the Pursuer were well founded. After so much has been said upon the Merits o f the Cause. it is hoped it will not be necessary for the Petitioner to use any Argument with your Lordships to prove, that, in dis- puting this Point of Right, he is not calumnious, but has, at least, a probabilis causa litigandi, and therefore, ought not to have been condemned in Expences. But he will say no- thing further upon this Addition which the Lord Ordinary has been pleased to make to his Interlocutor, as he hopes his Judgment upon the principal Point will be altered. May it therefore pleas e your Lords hips to alter the Lord Ordinary's Interlocutors above recited, and to find, that the Purs uer has no Claim of Relief against the Petitioner, fo r the Feu-duties payable out of his Lands to the Lord of Erection... According to Ju stice, &c. JA. BURNETT.