United Kingdom House of Lords Decisions

Several augmentations since the date of the disposition were awarded to the minister of Roxburgh; in particular in 1800 an augmentation was laid on the lands of Simlaws to the extent of “B. 5. 2. 2 ¼ meal,” and in 1809 the same allocation was continued,—the interlocutor of the Court reserving a claim of relief against “the representatives of John Duke of Roxburghe.” This augmentation was paid by the Duke in possession of the Roxburghe estates till 1820, when it was discontinued by the father of the present appellant. Robert Kerr, who was vested in the right of Christian Kerr, presented in a process of locality a claim for relief against the appellant as the representative of the granter; and Lord Moncreiff, on the 13th of November 1830, pronounced this interlocutor:—

“The Lord Ordinary having considered the closed record on the claim of Robert Kerr, esq., of Chatto, against the tutors of the Duke of Roxburghe, and heard parties procurators thereon, Finds that the obligation of warrandice against all augmentations of stipend contained in the disposition of teinds produced was not an obligation granted under any of the provisions of the statute in the process of sale, but a voluntary and apparently gratuitous undertaking by John Duke of Roxburghe, the granter thereof, for himself and his heirs and

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successors generally: Finds that the said obligation is not so constituted as to be attached as a real burden to the patronage or titularity of this parish, or to the teinds of the Duke's own lands, or any other part of the entailed estate of Roxburghe; and that although, in consequence of the Roxburghe entail not having been recorded till 1804, any debt or obligation contracted by the heir in possession may be eventually effectual to the creditor against the estate or the heirs of entail, any such obligation laid generally on the heirs and successors of the granter can only operate as an ordinary personal obligation subject to the general rules of discussion among heirs of various orders. And in respect that it clearly appears that there are other parties who represent universally the granter of the said obligation, and who, for any thing yet seen, the Lord Ordinary thinks ought to be first discussed according to the general rules of law: Finds that there are no termini habiles, or sufficient grounds in this process of locality for appointing that part of the stipend which, according to the ordinary rules of allocation, ought to be laid on the teinds of the claimant's lands as held by him by heritable right, to be allocated on the teinds of any lands of the entailed estate of Roxburghe within the parish held necessarily by an equally available heritable title: Therefore finds that it is unnecessary and inexpedient to pronounce any judgment on the import and effect of the clause of warrandice in other respects; but repels the claim of Mr. Kerr in this process, reserving to him his claim of relief generally against all the representatives of the said John Duke of Roxburghe, and to them their answers thereto, and their rights of

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relief among one another, as accords: Remits to the clerk to adjust the locality on the principles of this interlocutor: Finds no expenses due to either party.

Note.—Two things are to be observed in this case: 1. That the question could only have arisen on the supposition of the Duke of Roxburghe having no teinds in his hands as titular of this parish other than the teinds of his own lands possessed as heir of entail; and therefore that the real question in this process of locality is, whether the stipend otherwise allocable on Mr. Kerr's lands shall be permanently imposed on lands of the estate of Roxburghe: 2. That it is impossible in this process to determine conclusively even the question of primary responsibility or discussion among the several heirs of the granter of the obligation; because, as the general representatives of the late John Duke of Roxburghe are not and cannot be parties in this process, the point cannot be effectually determined in their absence.”

The appellants reclaimed; and the Court pronounced this judgment, on 18th January 1831:—

“Alter the interlocutor of the Lord Ordinary reclaimed against, and find that under the obligation of the warrandice in question the claimant is not bound to discuss the heirs of line or the heirs whatsoever of John Duke of Roxburghe, the granter of the obligation, but is entitled to make his claim effectual at once against the present Duke of Roxburghe as the heir of entail; and with this finding remit to the Lord Ordinary to hear parties on the import and effect of the obligation in question, and to do farther in the cause as to his Lordship shall seem just; and find no expenses due.”

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