Scottish Court of Session Decisions

Subject_1 WARRANDICE.

Creditors of Burleigh
v.
Harrower

1751, Feb. 12.
Case No. No. 5.

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Harrower feued this mill of Millnathort. at least his authors did, in 1697, with the multures of certain particular lands, and some dry multures, for a feu-duty equal to the then rent of the mill, though it is said now to be of much more value. An eviction happening of part of the lands expressly mentioned as thirled m the miller's charter, and likewise the dry multures, being less than was put in the charter, the miller claimed abatement of his feu-duty equal to the eviction. The creditors alleged, that both the common debtor, Mrs Margaret Balfour, and they her creditors, were singular successors in the superiority, and did not represent the granter of the feu, Lord Burleigh, and therefore not bound by his absolute warrandice. Answered, the abatement is not claimed upon the warrandice; but as this is a rent, a canon, paid for the subject feued, where the subject, or any part of it is evicted, no rent or feu-duty can be due for it, and the rent evicted must be deducted from the feu-duty. I thought that if it were either ward or blench holding, such partial eviction could not affect a singular successor; but that a feu was a sort of perpetual location for a constant rent, and the feu-duty was the canon annuus, and therefore in case of eviction of the subject, there behoved to be an abatement, but not equal to the eviction, but by the same proportion as the part evicted bore to the whole, for though the eviction should exceed the feu-duty, yet there must still be a feu-duty paid for what remained. The President thought that in ordinary feus there could be no abatement against a singular successor, if as much remained as was sufficient for the feu-duty, and that the feu-duty was not a rent, but a sort of acknowledgment. The feuars are sometimes called heritable tenants. But as to this last I observed, that feu-duties were considered in law as the rents, and instanced the laws allowing the King to feu annexed lands, and ward-vassals and Bishops to feu their lands, without diminution of the rental. And it carried that the miller should have an abatement,, but only proportional. Then the miller's procurator insisted, that as to dry multures, he should have abatement of the whole deficiency, as the eviction was there clear and certain, and was all part of the rent. But we thought that dry multures were always paid for some mutual prestation by the miller, such as grinding for knaveship alone without multure. The miller could not pay all the dry multure either of rent or feu-duty; and therefore we gave the same judgment as to the dry multure. 28th June, Adhered; renit. Justice-Clerk (in the chair) and Drummore.