WARRANDICE Warrandice is stricti juris, and consequently contravention is not Is stricti juris. easily presumed; nor is the obligation to warrant extended beyond its strict letter la The obligation does not authorise the purchaser of lands, affected by servitudes of a common and ordinary description, to make any claim on the seller, when such servitudes are light.2 But this is a question of degree; the servitude, though common, may be so heavy as undoubtedly to authorise a claim; and when servitudes exist, and the purchaser is to take under the burden of them, the deed should expressly say so. The grant by a tenant to a neighbouring proprietor, of liberty to carry off all the spring-water on his farm to a bleachfield, containing no express clause of warrandice, and subsisting only during the granter's lease, was held not to make the granter responsible for the interruption of the grantee's operations by a third party, of whose right to interrupt them both parties were presumed to be aware at the date of the grant. These cases show the importance of making inquiry, and giving full information as to servitudes, or burdens of the like nature, on lands about to be sold, and specifying these distinctly in the particulars furnished to intending offerers, and also in the missives of sale; and, in such cases as Reid's, of making an express provision that no warrandice is granted. It will at once occur to any one reading the report of that case, that it was a great hardship on Reid to be dragged into Court to protect himself against an action of damages where he had so small an interest. ACTION OF It has been found that the obligation of absolute warrandice does not authorise a purchaser to claim the discharge of an old right of real warrandice, on which no action was threatened. It is not, however, to be assumed that a modern right of that nature would not authorise a claim on the part of the purchaser of the lands thereby affected. What the claim of the purchaser would be, would depend on the circumstances of each case. But probably the mere existence of the obligation of real warrandice would not authorise the purchaser to make any claim in the case of an excambion, or exchange of lands for lands, because in such case the liability to real warrandice is mutual, and, in case of eviction of the lands given on the one side, there would be immediate recourse upon those given on the other, even if held by singular successors. The question naturally occurs, At what time does the claim, arising upon the obligation of warrandice, come into operation? When the 3 Reid v. Shaw, 21 Feb. 1822, 1 Sh. 334. 1 Erskine, ii. 3. 31; Ogilvie v. Lesly, 2 Feb. 1715, M. 4154. 2 Sandilands v. Earl of Haddington, 21 June 1672, M. 16,599; Symington v. Cranston, 14 Jan. 1780, M. 16,637. 4 Durham's Trustees v. Graham, 9 July 1800, M. 16,641. a The warrandice clause does not entitle the purchaser of lands to be relieved from a claim for superior's composition, where the lands were in non-entry at the time of the sale, the dispositive clause being the measure of the warrandice, and the dominium utile being unaffected by the superior's claim; Brownlie v. Miller, 16 July 1878, 5 R. 1076: affirmed 10 June 1880, 7 R. (H. L.) 66. threatened eviction arises upon the deed of the immediate author, that ACTION OF is, if such author has granted double conveyances, or double rights, in RECOURSE. favour of different parties, of or affecting the same subject, instant action of recourse will be sustained against him without waiting till the property acquired from him is evicted or carried off.1 But, if the eviction is founded on a right said to be preferable to that of the granter of an obligation of absolute warrandice, no claim against the granter will arise, on his obligation of warrandice, until actual eviction takes. place. And, supposing the defence against the threatened eviction to be successful, the obligation of warrandice does not, unless so expressed, give any claim to the expense of the defence. The obligation is, not to defend against claims and actions, but to make good loss in case of eviction. The threatened eviction ought, however, to be intimated to the party who will be liable in case it is successful;3 and an action of recourse can be brought as soon as eviction is threatened, if the liability of the party, against whom the claim of recourse lies, is disputed. In such circumstances, it is not necessary to delay having the right of recourse tried till after eviction.4 It will be observed that the party against whom eviction is threatened has, in some views, a better claim if he is unsuccessful, than if he prevails, because, if unsuccessful in defending the subject, he will get his expenses, besides the value of the subject evicted, from the granter of the obligation of absolute warrandice; whereas, if successful, he indeed preserves to himself the subject, but does not get his expenses. We cannot, therefore, be assured of the same hearty defence. against the action for eviction, as if his interest in the successful. result were clear and undoubted. No doubt he cannot, with impunity, throw away the case; and, to a certain extent, he is clearly liable for his omissions. For example, he may offer an irrelevant defence, or subject himself to an incompetent mean of proof.5 But, apart from such cases, there is a material difference between the defence of one really and ultimately liable, and of one not fully interested. It may, therefore, sometimes be a measure of prudence, on the part of the granter of the obligation of warrandice, to take the defence into his own hands, and to make an arrangement with the grantee on the subject of the expense. GOODS. Formerly, absolute warrandice was implied on the sale of goods, but WARRANDICE by the Mercantile Law Amendment Act of 1856, the seller is not held ON SALE OF bound in warranty of their quality or sufficiency, if he was ignorant of defects at the time of the sale, unless he shall expressly bind himself, or unless he shall have sold them for a specified and particular purpose, in which case he shall be considered, without any express warranty, to war 1 Smith v. Ross, 17 February 1672, M. 16,596. 2 Stair, ii. 3. 46; Inglis . Anstruther, 26 Feb. 1771, M. 16,633. 3 Erskine, ii. 3. 32. 4 Melville v. Wemyss, 14 Jan. 1842, 4 D. 385. 5 Clerk v. Gordon, 23 June 1681, M. 16,605. 619 & 20 Vict. c. 60, s. 5. WARRANDICE IN LEASE OF rant that they are fit for such purpose. On a similar principle, it appears to be the law, that, when one lets a house to be employed for a particular use or manufacture, he warrants that it shall be suitable for the same.1 And where a horse was sold as quiet to ride and steady in harness, which, on trial, it was found not to be, the purchaser, who acted with great SALE OF HORSE. promptitude and decision, was found entitled to return the horse.2 It is MINERAL not necessary that the express words, 'I warrant,' or any similar words, should be used, in order to found the claim of the purchaser in such cases. In the case of leases of unproved mineral fields, with the view of avoiding such a claim as here pointed at, it is not unusual to qualify the clause of warrandice with a provision that the existence of the minerals intended to be let, and the success of the tenant's operations, are not warranted; but that the tenant takes the risk in these particulars upon himself. In other words, the lease in such case is a speculation, of which the profit or the loss will be the tenant's. REGISTRATION FOR PRESERVA CUTION. CHAPTER III. THE next clause common to most deeds is the consent to registration TION AND EXE- of the deed in the books of a Court of Justice, with a view to preservation or execution, with which there used to be conjoined a relative procuratory or warrant for accomplishing such registration. The procuratory is now no longer necessary, as will be afterwards explained. EXECUTION. The two purposes of the registration of deeds in general are preservation and execution. Conveyances of all kinds, and some other deeds, can now be registered in the Register of Sasines for publication. But registration for preservation or execution, and registration for publication, have no manner of connection with each other. Their objects are essentially separate and distinct; and at present I am to deal only with registration for preservation or execution, reserving until a future stage of the course registration for publication. Registration for execution is clearly incident to the establishment of our Courts of Justice; registration for preservation only, and for publication-the creature of Statute alone. Preservation is now more usually the occasion of registration than execution, and the benefits we derive from the registers, as affording safe custody to principal deeds, are well known. But it is clear that execution was the earlier object of registration with us. And, in arriving at a right understanding of the consent 1 Murray v. Buchanan, 19 Jan. 1776, M. 16,636. 2 Scott v. Steel, 9 December 1857, 20 D. 253. a See also Rough v. Moir and Birnie, 5 March 1875, 2 R. 529. FOR EXECUTION, to registration, it is necessary in the first place to consider it as relative REGISTRATION to the purpose of execution. In doing so it is important to read the clause, as given by Dallas, in the form of personal bond with which his Style Book commences. That clause runs thus: And, for the more 'security, we are content, and consent, thir presents be insert and regis'trat in the Books of Council and Session, or others competent, to have 'the strength of an decreet of the Lords or Judges thereof interponed thereto, that letters of horning on six days, and others necessar, in form 'as effeirs, may be direct hereupon; and to that effect constitutes. our procurators, etc.' This clause consists of five parts, viz. :— 1. The consent of the granter to registration of the deed in the books of a Court of Justice. 2. The object of the registration, viz., in order to have the strength of a decree of the Judges interponed thereto. 3. The use to which the decree is to be put when obtained, viz., for the purpose of diligence or execution against the person and estate of the party. 4. The appointment of procurators to represent the granter in Court, and move for decree to the above effect. 5. The words with which the clause commences, 'and for the more security,' will likewise authorise a few remarks. The object and practical value of the consent to registration in order to execution is well illustrated by looking to the position of a party who wishes to make an ordinary claim of debt,-a sum due to him on open account for example,-effectual by execution. Such party has to raise a summons against the debtor, and to appear in Court by his counsel or agent; the debtor, it may be, appearing in like manner. If the claim is proved, the Court pronounces judgment or decree, ordaining the debtor to pay or fulfil, as the case may be. The decree thus obtained is inserted or registered in the books of the Court, and an official copy or extract from these books, authenticated by the Clerk of Court, is given out, which becomes the direct warrant for execution against the debtor's person and estate for compelling him to satisfy the claim. The same results will follow if, when the case comes into Court, the debtor, in place of endeavouring to resist, shall admit or confess the claim. In that event, judgment will be pronounced against him upon. his own admission or express consent. Where a party is claiming the sum or balance arising on an open account, or where there are not probative documents at hand which at once verify his claim, there is clearly necessity for judicial proceedings of the above nature, which may be more or less tedious and expensive. But when there is a probative writing instructing the debt, though parties could never give authority to one another to take measures at their own hand of the nature of legal diligence or execution, it is no stretch of principle, and is but a short step beyond the admission in a formal process, to HISTORY OF COMMISSARY incorporate with the writing by which the debt is instructed a consent that judgment or decree shall be obtained in a short and simple form against the granter, authorising summarily that execution which would follow upon a decree obtained in the ordinary but more tardy way. Hence, I think, has arisen the introduction, into bonds and other deeds, of the consent to registration in the books of a Court of Justice, in order to decree for execution, and the appointment of a procurator for accomplishing the registration agreeably to the forms of Court. Hence, also, it appears that registration for execution is incident to the establishment of our Courts of Law, and is not a separate institution. The proceeding authorised by the consent and procuratory for registration is, in fact, a regular, though summary, process before the Court. It assumes that, at the request of the grantee or holder of the deed, but in the name of the granter, and as authorised by his consent, and specially appointed by his procuratory, a counsel or agent duly qualified appears in Court, producing the document of debt or claim, and moves the Judge to insert or register the document in the books of the Court, and to interpone his decree in conformity with the consent or clause of registration therein expressed. The Judge ordains the deed to be registered accordingly, gives the same the strength of his decree, and authorises legal execution in terms of the consent. The principal document, produced as above, is the warrant of the decree; and, as such, is retained by the Clerk of Court for the same reason that he retains the warrants of ordinary decrees. The decree of Court, which embodies a verbatim copy of the document, goes into special books kept by the Court for entering such decrees. And, as matter of course, an official copy, or extract of the decree containing a full copy of the document or warrant, is, at the request of any party, given out under the hand of the Clerk of Court, or other party authorised to authenticate the same. The extract-decree so obtained, or, as we now understand it, the extract of the document founded on, is equally probative in Scotland with the principal, in every particular, except when the principal is challenged, as false and forged; and the extract likewise, as a decree of Court, forms the direct authority for legal execution, in terms of the consent contained in the principal deed. There is abundant evidence in books of authority and reported decisions in support of these views. а After the abolition of the old Church Courts, which took place at the time of the Reformation in Scotland, it was found necessary to institute a Commissary Court, to take cognisance of a particular class of causes; and in Balfour's Practicks1 there is given a copy of the instruc 1 Balfour's Practicks, p. 655. a Extracts of all writs, deeds, or other documents of what nature soever, which may 'be registered in the Books of Council and Session, shall be equivalent to the registered 'writs, deeds, or other documents themselves, except where any writ, deed, or other 'document so registered shall be offered to be improven.'-40 & 41 Vict. cap. 40, s. 5. |