Lands wadset being evictèd by my Lord Errol the superior, for the not payment of the feu-duty for years before the wadset, the wadsetter agreed with, and got a great ease from the superior, being his advocate, and thereafter pursued a recourse of warrandice upon the eviction, claiming 2000 merks as the sum agreed to be paid to the superior, and 500 merks for his pains and expenses in agreeing with the superior.
Alleged for the defender; That he could be no further liable for eviction, but for the true damage sustained thereby. And had the superior confirmed the wadsetter gratis, there could have been no ground of eviction.
Answered; There being no abatement given at the agreement, but at the payment, upon personal considerations of services done to the superior, the defender can have no benefit thereby;
The Lords found, That the defender could be only liable for the sums truly paid out to the superior by the pursuer, and the expenses he was at, probable by his oath; but there being a part of the composition paid to the superior, they allowed large expenses, and modified 1000 merks instead of 2500 claimed—See Proof.
