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Lady Cardross being provided in her contract of marriage by her husband, to a quantity of rent of teinds, which her husband in the said contract was obliged to make worth yearly to her the quantity of the said rental, and by the course of this commission of Parliament anent Ministers' stipends, there being two chalders of the teinds contained in the said contract and rental, taken from her and assigned to the Ministers more than they had before, whereupon she charging her own son as heir to her husband, to warrant the said rental to her, and consequently to provide her to as much as was taken from her, and assigned to the Ministers, as said is; and he suspending and alleging, that he could not warrant her from any supervenient law, which, as it diminished and took away from her a part of her conjunct fee, so it took away that same part from him and his heirs perpetually, and for ever, and she ought to bear that burden for her life-time, which would lye on him and his posterity for ever, being done by a public and general constitution, for the public good, whereto all private interests ought to cede; and there being no fault on the part of the contracter, there ought no warrandice to be granted, except he had failzied; for he was obliged only to make that rental given up for her conjunct fee, should pay that quantity to her; and it is true that there is no failzie in the rental, but it holds good, albeit a part be taken from her thereof by a subsequent law, which cannot make him liable therefore; this allegeance and reason was repelled, and the Lords found that the suspender ought to pay the quantity of the rental to the charger, which decreased by taking away of a part thereof from her, and giving of it to the Ministers; and found that the supervenient law, prejudged not the party of her warrandice, albeit the rental was no less than the same quantity whereto it was extended in her contract of marriage, seeing it was not so much her, and by the contract it was obliged to be worth to her yearly so much; for if the whole teinds had been evicted both, from her and her husband by any law, it was not thought reasonable that therefore she should want warrandice of her conjunct fee.
Act. Stuart.Alt. Advocatus.Clerk, Hay.
Durie, p. 776.
