Scottish Court of Session Decisions

Subject_1 WARRANDICE.

James Blair
v.
Hunter

1741, Nov. 22.
Case No. No. 4.

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The Lords found, that the pursuer who was infeft in certain lands as principal and others in real warrandice, and from whom the principal lands were evicted many years ago, about 20, during most of which he could not effectually bring his process of recourse against the warrandice lands, because of certain disputes still depending concerning the principal lands,—rhad his recourse only to the extent of the value of the principal lands evicted as they were at the time of the eviction, but not for the rents he lost since the eviction, nor other damage in place of them; but if the rents of the warrandice lands were extant, that he would have right to them, or to sue the intromitters if they had not a good defence. This indeed is agreeable enough to the notion of real warrandice considered as a right of property conditional, but not if it is considered as a right in security, which I alwavs understood it. However the decision was by a great majority, renit tantum President et me. But 6th November 1741 this altered, and found that the real warrandice is of the same extent as the personal obligation of warrandice, and gives recourse for the damage since the eviction (i e. the annualrents of the value of the lands) as well as before. For the interlocutor were President, Royston, Justice-Clerk, Minto, Strichen, Dun, Balmerino, et ego. Con. were Drummore, Kilkerran, Murkle, and Arniston.—N. B. Arniston agreed that the recourse lay not only for the value of the lands, that is lands of the same value, but for the damages at the time of eviction.