Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 WARRANDICE:
Subject_3 Incurred only by Eviction.

Charles Inglis
v.
Sir Robert Anstruther, &c

Date: 26 February 1771

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[Fac. Coll., V. 243; Dictionary, 16,633.]

President. The Extract of the Decree Absolvitor is a valuable book in Mr Inglis's library. I should think that he might have been satisfied to pay the expense of it. His argument goes upon this,—that the decision of this Court was scarcely just; and that the House of Lords affirmed it from the deference due to this Court in matters respecting its own officers. This is a strange plea for Mr Inglis to make, and is not very decent with respect to either Court.

Coalston. If Waddel had prevailed, damages would have been due; but he did not prevail, and no eviction has happened. The question,—how far expenses due? There was a conditional obligation in case of eviction. But, as there was no eviction, there was nothing exigible. L. 18, Cod. de Evict. The effect of an instrument, notifying distress, is only to exclude the person warranting from the objection of collusion.

Kaimes. Unless there is eviction, there is no warrandice.

Monboddo. An obligation to warrant a subject does not imply an obligation to pay every expense incurred in defending the subject.

On the 26th February 1771, “The Lords dismissed the process; assoilyied, and found expense of extract due.”

Act. R. M'Queen. Alt. D. Grahame. Reporter, Kennet.