[HOUSE OF LORDS.]

Scotch Conveyance - Sales of Heritable Estate - General Clause of Warrandice - Collateral Representation - Concealment.

Articles of roup of certain lands expressly stipulated that the purchaser was to take the property with all risks of error in the particulars. A. agrees by missives attached to the articles of roup to buy the estate, and a conveyance was executed containing a clause of warrandice in the usual general terms. Neither the disposition nor the articles of roup contained any information as to the tenure of the lands. The particulars of sale contained this statement: "The lands hold of the Crown," and in answer to an inquiry made before the sale on behalf of A. as to the nature of the holding, the sellers' agents referred A. to the note of particulars, adding: "The proprietors" (B. & C.) "are not entered with the Crown, but you are aware the Crown never asks for an entry." The foundation for the belief that the lands were held direct of the Crown rested on a decree of tinsel, dated 1813, directed against the heir of line of the last superior, and a decree of forfeiture of the mid-superiority, dated 1849, followed by a Crown charter. From 1813 there had been no assertion of a contrary right.

Immediately before the sale the agents for D., the disponee of the last superior, wrote to B. & C.'s agents claiming the right of mid-superiority, but this claim on its being disputed and not further persevered with, B. & C.'sagents did not intimate to A. Two years later D.'s agents renewed the claim, and ultimately raised an action against A., claiming a year's rent as composition on his entry. A. was found liable, and the decree of forfeiture was reduced.

A. thereupon raised this action against B. & C. for repetition of the sum paid, the expenses of the litigation, and a sum equal to one and a half times the casualty of composition, on the ground, (1), of warrandice, and, (2), misrepresentation and concealment on the part of B.'s agents:-

Held, affirming the decision of the Court below, that there had been no breach of warrandice; and that the representation was perfectly true according to the knowledge and belief of those who made it, and, that being so, any error therein was covered by the express contract of the purchaser to take the property with the risks of errors in the particulars.

APPEAL from a judgment of the First Division of the Court of Session, Scotland.

By missives dated February and March, 1874, and minute annexed to certain articles of roup, under which the lands had

been exposed for sale, the marriage contract trustees of Mrs. Macalister and Mrs. Wallnutt, the Respondents, agreed to sell to Mr. A. Brownlie, the Appellant, the estate of Monkcastle, which they had inherited from their father, William Campbell Miller, for the sum of £26,500.

The sale was completed by disposition executed in October, 1874, and feudalised in the person of the Appellant by being recorded in the general register of sasines 11th of November of the same year. By this disposition the Respondents conveyed "All and whole the lands of Monkcastle, &c., and together with all right, title, and interest belonging or that shall belong to us the granters hereof or consenters hereto, or any of us ... to holden the said lands ... And others, a me vel de me." The disposition proceeds: "And we, with consent aforesaid, assign the writs, and have delivered the writs Nos. 1 to 5 inclusive, 8 and 26 to 29 inclusive, 31 to 38 inclusive, and No. 41 of the inventory annexed ... bind ourselves to make the remaining writs for coming to our said disponees on all necessary occasions." Then came this clause: "And we with consents foresaid bind ourselves ... to free and relieve the said disponee of all feu duties, casualties, and public and parish burdens." And the warrandice clause was in the usual terms: "And we with consents foresaid grant warrandice from all facts and deeds done or to be done by us, and with consents foresaid bind the beneficiaries under said contract of marriage, and their heirs, successors, and representatives whomsoever in absolute warrandice."

The note of particulars of sale contained this sentence: "The lands hold of the Crown;" and on an inquiry as to how the lands were held the sellers' agents in writing on the 6th of January, 1874, referred the Appellant to the note of particulars for the information he required, adding: "The proprietors are not entered with the Crown, but you are aware the Crown never asks for an entry." The articles of roup contained a clause to the effect that the purchaser shall be held to have satisfied himself before the sale as to the validity and sufficiency of the title-deeds and the exposers' power of sale, and as to the rental, value, and extent of the lands; and the amount of the feu duties, and public and parochial and other burdens affecting the same; and shall not be

entitled to require any further title to be made up at the expense of the sellers, nor require them to enter with the superiors; nor to demand any deduction from the price on account of any misunderstanding, error, or defect in regard to the above matter, or on account of any alleged error or inaccuracy in any plans or particulars of the said lands. They also sent him the searches for incumbrances at his request.

The foundation for the belief that the lands were held direct from the Crown was founded on the following: Douglas Duke of Hamilton, stood infeft at his death in 1799 in the mid superiority of the lands. He died without issue. His heir of line was Lord Stanley afterwards the Earl of Derby. He seems to have declined to make up titles to the superiority; and Alexander Miller, who held a precept of clare constat dated 1780, after charging him to enter, obtained in 1813 a decree of declarator of tinsel of the superiority under the old Statute of 1474, c. 57, and in 1849 he obtained a decree of forfeiture of the superiority against the Earl of Derby, under the Act of 10 & 11 Vict. c. 48, s. 8, which was followed by a Crown charter dated 1850. These were contained in the progress of title-deeds in favour of the sellers, and it was understood that the mid-superiority had been permanently extinguished.

But in 1873, the agent for the marriage trustees of Lord and Lady Rossmore - the lady being a natural daughter of the Duke Douglas - intimated to the Respondents' agents M'Ewen and Carment,they claimed the mid-superiority as having been left to Lady Rossmore by the mortis caus‰ deed of the Duke Douglas;that Lady Rossmore's marriage trustees had made up a title to it; that the lands were in non-entry, and that they required the parties who had advertised the lands for sale to take an entry. The Respondents' agents replied that the mid-superiority had been extinguished by the decree of tinsel and forfeiture above-mentioned. The agents for the Rossmore trustees then wrote that they would like to know how the Respondents proposed to settle the value of the superiority due to the Rossmore trustees under sect. 13 of 10 & 11 Vict. c. 48, continued by sect. 109 of 31 & 32 Vict. c. 101 The sellers' agents replied that the Acts did not apply to this case, and that even if they did the expenses would be

greater than the value of the superiority. The Rossmore trustees in return wrote doubting this and desired to see the decree of forfeiture and all the prior charters, but after some further correspondence this was declined by letter dated the 29th of November, 1873, on the grounds that the Respondents' agents required them themselves for an intending purchaser, and also on the ground that the proprietors could not be expected to exhibit their titles when the object was to make a claim against them which they were advised was not well-founded and which they were prepared to resist.

The Respondents' agents, M'Ewen and Carment, did not communicate to Mr. Brownlie the objection which had thus been intimated to the right of their clients to hold the lands direct of the Crown, but proceeded with the sale. The Rossmore trustees on their part, allowed the matter to drop, and took no further steps until August, 1875, when their agents wrote to Mr. Browlie, intimating that they claimed the right of mid-superiority; that the lands were in non-entry; that they were advised that the decree of forfeiture of 1849 was ineffective as directed against the wrong parties; and requested the titles to be sent to them that they might fix the amount of the composition payable in consequence of the death of the last vassal. Mr. Brownlie refused to pay any composition, and the result was that the Rossmore trustees, in 1876, raised an action against Mr. Brownlie and the sellers for reduction of the decree and forfeiture of the superiority, and for declarator that a casualty - a full year's rent of the lands - became due to them as superiors on the infeftment of Mr. Brownlie on the 11th of November, 1874. Mr. Brownlie defended the action in his own name after intimating to the sellers that he reserved his right to relief. The Court of Session decerned against him in terms of the conclusions of the summons, and he was compelled to pay the sum of £480 as the casualty due, and the decree of 1849 and Crown charter following upon it were reduced.

Thereupon Mr. Brownlie raised this action against the Respondents to recover from them the amount of the casualty which he was obliged to pay, of his expenses in the above-mentioned litigation, and the value of the superiority taken at one and a half times the casualty of composition. He rested his case (a) on the warrandice

in the disposition by the Respondents in his favour; and (b) the alleged misrepresentation made by their agents that the lands were held of the Crown, and their fraudulent concealment of the intimation made to them by the claim of the Rossmoretrustees to the mid-superiority. His pleas in law were, inter alia:

"(2.) The Defenders having sold to the Pursuer the plenum dominium of an estate held immediately of the Crown, and the said estate having been divided, and the estate of superiority thereof having been evicted from the Pursuer, the Defenders are, in the circumstances, and in respect of the warrandice granted by them to the Pursuer, bound to make good to him the loss thereby occasioned, and to relieve him of the expenses of maintaining the defence of his right to the said estate.

"(3.) The Defenders having, at the time of the sale of Monkcastle, been made aware that the dominium directum, or estate of superiority held immediately of and under the Crown, was claimed by third parties, and having, in that knowledge, made the said representations and bound themselves by the said clause of warrandice, without notice to the Pursuer that such claim had been made, thereby warranted the title to be a good Crown title, and are now liable to the Pursuer as concluded for.

"(4.) The Defenders having at the time of the sale by them to the Pursuer been made aware that the said estate of superiority belonged to, or at least was claimed by, third parties, and having fraudulently and wrongfully concealed the existence of said fact from the Pursuer, and, separatim,having fraudulently, or at least recklessly and wrongfully, and in the knowledge of said claim, represented to him that the said lands were held of the Crown, they are liable in reparation to him as concluded for."

The Respondents, inter alia, denied any misrepresentation, and in the proof allowed before answer their agents, Messrs. M'Ewenand Carment, stated that they believed the decree of forfeiture to be a good answer to the claim that had been intimated to them, and that the acquiescence of the claimants when their demand was refused confirmed them in that belief.

The Respondents further offered that if the Pursuer "considered that be is aggrieved by what has taken place, the Defenders are willing, under reservation of their whole defences and pleas, to relieve the Pursuer of his purchase of the lands of Monkcastle."

Their pleas in law were:

"(1.) The averments of the Pursuer are not relevant or sufficient to support the conclusions of the summons.

"(2.) None of the subjects contained in the disposition by the Defenders in the Pursuer's favour having been evicted from him, there has been no breach of the warrandice therein contained, and the Defenders are entitled to absolvitor.

"(3.) The Pursuer having, in terms of the articles of roup, satisfied himself as to the validity and sufficiency of the title-deeds, the present action is untenable."

The Lord Ordinary (1) on the 27th of February, 1878, pronounced an interlocutor sustaining the first plea in law for the Defender, and assoilzied them from the conclusions of the summons. The Appellant reclaimed to the First Division, and their Lordships, after hearing counsel, recalled the Lord Ordinary's interlocutor, and allowed the Appellant before answer a proof of his averments, and the Respondents a conjunct probation.

Accordingly proof was led before Lord Deas, and on the 16th of July, 1878, the Lords of the First Division pronounced this interlocutor: "Having resumed consideration of the cause, with the proof for the parties, title-deeds, and other documents, and heard counsel, assoilzie the Defenders from the conclusions of the summons and decern (2).

On appeal,

June 8, 10. The Lord Advocate (Rt. Hon. John McLaren), and Mr. Davey, Q.C. (with them Mr. MacClymont), contended for the Appellant, that the decision of the Court of Session, ordering the payment of a casualty to the Rossmore trustees, amounted to an eviction of part of the subjects conveyed by the Respondents to the Appellant. The disposition contained an absolute clause of warrandice, of not only the lands, but also of the writs: see Lord Glenlees' opinion in Hamilton v. Montgomery (3) and Brigg's Trustees (4); 31 & 32 Vict. c. 101, s. 8. Amongst the writs so assigned and warranted were the decree of forfeiture, and the Crown charter following it, if these had not been reduced the Appellant could not have suffered the eviction complained of.

Where the clauses of the disposition are ambiguous, and it is impossible to say what were the obligations undertaken by the clause of warrandice, and which of two possible estates the words may mean the parties intend to pass for conveyance - and here it was so - the disposition must be interpreted by the light of

(1) Lord Young.

(2) Court of Sess. Cas. 4th Series, vol. v. p. 1076; 15 Scot. Law Rep. 718.

(3) Court of Sess. Cas. 1st Series, vol. i. at p. 361.

(4) Court of Sess. Cas. 2nd Series, vol. xiv. p. 173.

the writs - of which a full inventory was attached to the disposition - and the collateral correspondence: see Best on Evidence, p. 313. By these it could not be contended that the Respondents had any other intention at the time of the conveyance than to convey to the Appellant the consolidated estate they possessed and held of the Crown, and to warrant this to him. Then, thus reading the disposition as a whole, it appeared that the estate the Appellant now held was different - and different in substance - from that they bargained for or purchased. Even taking the most limited meaning, there had been a breach of the warrandice, inasmuch as the Appellant had been deprived of the use of the writs warranted: see Hamilton v. Montgomery (1) as to the effect of an assignment of writs. The estate of lands and that of superiority were sold together as one consolidated estate, therefore it would have been improper and contrary to practice to have two dispositive clauses, and two clauses of warrandice in the disposition.

[Also commented on Gordon v. Hughes (2).]

(2.) As to concealment: The Respondents' agents were not justified in withholding from the Appellant the information that an adverse claim to the superiority had been put forward so recently before, nor in persisting in what turned out to be a false representation, that the lands were held of the Crown: even though they honestly believed that such a claim could be successfully resisted at law.

[THE LORD CHANCELLOR:- In Wilde v. Gibson (3), Lord Cottenham, L.C., refers with approval to Legge v. Croker (4). There the lessor had assured the purchaser that there was no right of way; that there had been formerly, but that it had been legally stopped by a grand jury presentment forty years before. It turned out there was a footway, the presentment applying only to a carriage way, and the lessee was convicted for obstructing it, whereupon he filed his bill to be released from the lease; but Lord Manners dismissed his bill, saying, "If there were a wilful

(1) Court of Sess. Cas. 1st Series, vol. xii. at p. 353.

(2) June 15, 1815, Fac. Col. vol. xviii. p. 428; reversed H. L. 1 Bligh. 287.

(3) 1 H. L. at p. 626.

(4) 1 Ball & B. 506.

misrepresentation, the Plaintiff might be entitled to relief, but the lessor conceived himself entitled in point of law in asserting that there existed no right of way; it cannot be called misrepresentation."]

It was the duty of the sellers' agents to give notice of any substantial claim which might affect the value of the property. They must either give a warrandice securing the purchaser from loss, or else inform him.

[LORD BLACKBURN:- In policies of insurance it is so, but they are an exception. But in cases like this, if a man bon‰ fide thinks the claim is not tenable is he to frighten the purchaser by telling him of it? I should say not.]

If the Appellant had been informed, he would as a prudent man either have insisted on an express agreement with the sellers to relieve him of the expense of the threatened litigation, or if he undertook the risk he would have been entitled to modify the price of the estate.

The Appellant was kept from inquiry by the sellers' agents' representations; and they must make good the representation. In Burrowes v. Lock (1) C.'s trustee informed the Plaintiff that C. was entitled to £288 under a will, and had an undoubted right to make an assignment to that extent; knowing that he had not a right to make such an assignment, having nine years previously created an incumbrance upon it to nearly that extent. The trustee pleaded forgetfulness of the prior circumstances; he was held liable on the ground that he was guilty of gross negligence in taking upon himself to aver positively a fact without giving himself the trouble to recollect. See also dictum in Clarke v. Manning (2). Nor could the Respondents be allowed to retain the advantage gained - a higher price - by misrepresentation: Flight v. Barton (3). There A. entered into an agreement for an under-lease without previously inquiring into the covenants of the original lease; and informed the lessee of the nature of the trade he intended to carry on in the premises; and the lessee did not inform him that there was a covenant in the original lease prohibiting

(1) 10 Ves. 470, at p. 475.

(2) 7 Beav. at pp. 167-8.

(3) 3 M. & K. 282.

such business. It was held that the silence of the lessee was equivalent to a representation that there was no such prohibiting covenant. It was not necessary to establish that the sellers' agents intended to deceive the purchaser: Hart v. Swaine (1). There a man took upon himself to make an assertion not knowing the fact, and was held liable: so in Slim v. Croucher (2), A. was held liable for misrepresentation made innocently. The Respondents' agents, here, knew a fact which should have made them hesitate before they made the assertion that the lands were held of the Crown. They decided the question themselves without giving the Appellant a chance of making inquiry himself, and therefore they must be bound in the consequence.

[They also cited Lord Eldon's opinion in Butcher v. Butcher (3)].

Mr. E. E. Kay, Q.C., and Mr. Asher (of the Scotch Bar), appeared for the Respondents; but were not called on to address the House.

The following judgments were delivered by the Law Peers:-

LORD SELBORNE, L.C.:-

Your Lordships have heard this case very fully argued on the part of the Appellant, and I believe that none of your Lordships feel any doubt that the judgment appealed from is correct, and ought to be affirmed.

There are two points quite distinct from each other, namely, the question of warrandice in the terms of the deed of conveyance, and the question of a collateral representation.

With regard to the warrandice the matter stands thus:- Upon the face of the deed there is no mention whatever of the tenure of the lands sold, as to whether they are held from the Crown direct or from a subject superior. There may be said to be three subjects conveyed. The first is described as "all the lands of Monkcastlewith their pertinents." Beyond all question these words are as applicable to the lands of Monkcastle if held from a subject superior as if they were held direct from the Crown, and as far as

(1) 7 Ch. D. 42.

(2) 1 De G. F. & J. 518.

(3) 1 Ves. & B. at p. 98.

that goes if the purchaser gets these lands which are there described, by whichever tenure they are held, he gets what is conveyed to him. Then follow the words, secondly, "together with all right, title, and interest belonging or that shall belong to us the whole grantors hereof." I do not understand that it is suggested that he has not got "all right, title, and interest" which did belong or should belong to the grantors, whether he gets a feu held under a subject or under the Crown. If, as happened in this case, there was a de facto holding under the Crown voidable or reducible, and, after reduction, convertible into a holding by the subject, that was the "right, title, and interest" which at the time "belonged to the grantor hereof" for better or for worse; and that he has taken.

Then, my Lords, come the words, "And we, with consents foresaid, assign the writs and have delivered the writs numbers one to five inclusive, eight and twenty-six to twenty-nine inclusive, and number forty-one of the inventory annexed, and signed by the said Mrs. Anna Maria Campbell or Miller as relative hereto." The case that has been cited of Hamilton v. Montgomery (1) determines the effect of such an assignation, namely, that it is an assignation of a right to the writs for the purpose of maintaining the grantee in the possession of the things conveyed. If, therefore, he has that which is conveyed according to the true construction of the deed, there can be no loss by reason of any defect in the writs. That brings your Lordships back to the original question, What was the subject conveyed? The warranty in general terms which follows, and which applies no doubt to all the things conveyed, and to the goods assigned, does not, as I conceive, my Lords, warrant the writs for any other purpose than the purpose expressed in the words of assignation. It does not enlarge the effect of the assignation in any way whatever; it certainly does not amount to a specific warranty as applicable to each and every of these particular writs that they shall have a specific effect in point of law.

My Lords, it would be, I think, a very alarming doctrine if your Lordships were for the first time to lay down, contrary to any authority which has been cited, or at all events without the least support from authority, the doctrine that the effect of such a

(1) Court of Sess. Cas. 1st Series, vol. xii. p. 349.

warranty as to scheduled writs is exactly the same as if a special contract were entered into as to each particular writ warranting not only that the writ shall be forthcoming to be used, whatever its value and effect may be, for the defence of the title, but that the writ is warranted itself as an effectual document to pass in law, without the possibility of challenge or reduction at any future time, whatever upon its face it appears to deal with. I suppose the practice is to put into such an inventory all the writs relevant to the title without the least idea whatever that special obligations are being undertaken with respect to each and every one of them. The natural meaning (and the authorities seem to shew that it is the legal meaning) of these words of warrandice is simply, that, for the purpose of giving effect to the assignation preceding, and for no other purpose, the writs are warranted. If they are wanted to be produced, they are to be forthcoming and to be handed over.

I think therefore the conclusion is, that unless you can import from the writs into the dispositive language of the deed something which is not there expressed, the argument upon the warrandice must entirely fail. As to importing into the deed, from the description of the writs, anything which is not in the dispositive part of the deed, it is not necessary to dwell upon that, because it appears to be inconsistent with any sound principle of construction known, I believe, either in Scotland or in England.

I pass, my Lords, from the point of warrandice to the point of representation. Upon the doctrine of representation no authorities have been cited in support of the argument at the Bar, except some which belong, as I conceive, to an entirely different category, cases like Burrowes v. Loch (1), Slim v. Croucher(2) (if that is to be treated as a case upon representation), and the like. They are simply of this sort. A man is going to deal for valuable consideration with a particular subject, and the value of the return which he is to receive depends entirely upon a particular fact, which is, or ought to be, in the knowledge of a particular person - in one of those cases a trustee, in the other the lessor and landlord. In the one case the question was whether notice of any prior incumbrance upon the trust fund had been given to the trustee. That was a question of fact, and the whole value of the

(1) 10 Ves. 470.

(2) 1 De G. F. & J. 518.

intended security depended upon it. In the other case the question was whether the landlord was in a position to grant the lease upon which money was to be lent. There also the whole value of the intended security depended upon the answer to the question, to be given by a person within whose knowledge the fact ought to have been, and in point of fact at one time or another necessarily was. If his memory had failed, still it was the case of a man who once had certain knowledge of the fact, and who could have no right to assert one way or the other a fact as of his own knowledge upon such a subject unless he possessed that knowledge; and if he did assert it, he was bound to make the assertion good.

The mere fact of forgetfulness by a man who has known a certain fact, who is asked whether that fact has happened or not, and says positively that it did or did not, cannot possibly be an excuse; because if he had spoken the simple truth he would have said, "I do not recollect whether it is so or not." If the fact be that he does not recollect, then by saying that the fact was so, or by saying that the fact was not so, he takes upon himself the responsibility of a positive statement, upon the faith of which he knows that the other man is going to deal for valuable consideration.

The principle of the law in all such cases is perfectly clear; but, my Lords, I apprehend that they have no application at all to a case of vendor and purchaser like that now before your Lordships. There is a statement in the particulars of sale, and that statement is referred to in the course of the correspondence. Of course, if there were fraud it would make all the difference in the world; but assuming that there is no fraud, there is a mere statement in the particulars of sale referred to, and, if you please, repeated in the correspondence during a negotiation preliminary to a contract. The terms of that contract are expressly understood by both parties to be, that an error in those particulars is a thing which is to be at the risk of the purchaser; and that the vendor does not mean to warrant the correctness of those particulars in all points, or even in all points which may affect the value of the property. The principle caveat emptor is there at all events prim‰ facie applicable. The contract is ultimately entered into

upon those terms. Passing from the stage of correspondence and negotiation to the stage of written agreement, the purchaser takes upon himself the risk of errors. I assume them to be errors unconnected with fraud in the particulars, and when the conveyance takes place it is not, as far as I know, in either country the principle of equity that relief should afterwards be given against that conveyance, unless there be a case of fraud, or a case of misrepresentation amounting to fraud, by which the purchaser may have been deceived.

I find the doctrine in Scotland laid down by Mr. Bell in his "Principles" in these terms: "When there is any room for doubt, the purchaser must secure himself by distinct warrandice, under which he will have action for the subject of that warrandice. If there be no warrandice, he can have remedy against the deficiency only on one of two grounds; either he must make out a case of misrepresentation and fraud, or he must prove an error in substantialibus sufficient to annul the whole contract. He can have no remedy on the principle of the actio quanti minoris (1)" of the Civil Law. My Lords, we must consider whether here there is any case of misrepresentation and fraud made out; if not, there is certainly no "error in substantialibus sufficient to annul the whole contract," and the purchaser is not to have any remedy upon the principle quanti minoris.

It appears to me that the cases which have been decided in this country and in Ireland are to the same effect. During the course of the argument I called the attention of the learned counsel for the Appellant to what was said in the judgment given in this House by Lord Cottenham in the well-known case of Wilde v. Gibson (2), and more particularly to the case of Legge v. Croker(3) there referred to, apparently with approbation, which was before Lord Manners in Ireland, and which had in some respects a close resemblance to this case. There a positive statement was made that there had been a decision against a right of way. It was bon‰ fide believed that there had been such a decision, but when it was examined it was found not to exclude every sort of right of way, but only a certain kind; and one other kind, not excluded

(1) Bell's Prin. sect. 893.

(2) 1 H. L. 620.

(3) 1 Ball & B. 506.

by it, remained, and was eventually established. That representation having been believed to be true at the time it was made, and having been made in good faith, it was held, after conveyance, by the Court, that it was no ground for relief in equity, either by way of compensation, or by setting aside the contract.

I do not think that the case recently decided by Mr. Justice Fry (1), which was mentioned at the Bar, is at all inconsistent with that. That was a case in which a representation that land was freehold which in point of fact was copyhold was made under circumstances bringing home knowledge as strongly as anything in the world could do to the person who made it. And besides that, there was an express covenant which shewed that, as between the vendor and purchaser, no such risk was meant to be undertaken.

Now, my Lords, these being the principles, the question remains as to the facts. I will state them (without reading the details), as I understand them. The Dukes of Hamilton were superiors of this Monkcastle property until at all events the year 1813. Douglas, Duke of Hamilton, being then dead, and having, as is now stated, before his death made a will by which his title to the superiority of this Monkcastle property passed to his daughter, afterwards Lady Rossmore, but that title not having been in any way feudalised, or taken up, or made public, so as to be known to persons who were not intimately conversant with the circumstances of the Rossmore family, - in 1813, what is called in the old Scottish Act of 1474 a decreet of declarator of tinsel of superiority was obtained by the vassal entitled to the dominium utile of these Monkcastle lands. It was taken against the late Lord Derby as heir of line to Douglas, Duke of Hamilton (manifestly it could not have been taken against anybody else), by a person who was wholly ignorant of the latent title of the trustees of Lady Rossmoreunder the Duke's mortis caus‰ disposition. The effect, according to the statement of the learned Judges in the Crown Court below, was this: to obtain an infeftment directly under the Crown on account of that not being properly given by the representative of the Duke of Hamilton; so that from that time forward there was a holding under the Crown, though that particular proceeding

(1) Hart v. Swaine, 1 Ch. D. 42.

had only a temporary effect: it did not permanently annul the Duke's right of superiority, but only avoided or rather suspended it during the lifetime of the vassal who obtained it. But that vassal who obtained it lived, as is stated by one of the learned Judges, Lord Deas, until 1847, for thirty-four years, and in that year the Act of Parliament was passed which enabled a permanent title of the same nature from the Crown to be obtained by the form of proceeding which in this case was actually taken two years afterwards, that is to say, in 1849. Those proceedings were taken, as the proceedings of 1813 had been, against the heir of line, Lord Derby; and so we find that there has been in point of fact a continuous holding as from the Crown by the temporary decreet of 1813 until 1847, and since 1849 by a decreet made under the Act of 1847, which if the right person had been served would have been permanent and perpetual. There has been a de facto holding under the Crown during all that time, and during all that time there is no trace of any assertion of the Rossmoretitle at all.

Now, in that state of things, I think your Lordships would be of opinion, even if you had not the evidence which you have from Mr. Carment, that no doubt was really entertained by the persons from whom the Appellant bought that they had got a complete statutory title and did actually hold to all intents and purposes under the Crown. Manifestly it was not for their interest to take steps which were erroneous in point of law or ineffectual in point of law. It cannot be doubted that they acted with a view to make a complete title according to the state of their knowledge, and did everything which it was possible for them to do for that purpose; and they held without disturbance accordingly.

Well, then, what happened to shake that belief? Nothing, my Lords, but this: there was a correspondence shortly preceding the sale to the present Appellant in the year 1873. On the 9th of October of that year the solicitors for Lord and Lady Rossmore, or rather for the Rossmore trustees, who, in a letter which they then wrote, were said recently to have made up a title, which in that letter was stated to include the superiority of the Monkcastle estates those solicitors wrote a letter to Messrs. M'Ewen & Carment, the vendors' solicitors, in which they did make

the assertion that by the title recently made up by Lady Rossmore'smarriage trustees, the superiority of the Monkcastle estates was in them. Is that mere assertion to be taken as enough to have suggested a serious doubt of the title under which the vendors had been holding for so many years, unless something more followed to make that doubt substantial? It was met immediately by a contradiction, and by another assertion that the estate of Monkcastle was held of the Crown, and that the superiority to which Messrs. M'Innes & Macfarlane had referred was extinguished by a decree dated the 27th of June, 1849, under the Act 10 & 11 Vict. c. 48. How was that met by the representatives of the Rossmore trustees? They asked, indeed, to see the decree. The decree was publicly recorded and registered, and they had nothing to do but to go and inspect the register in order to see it if they wished. Messrs. M'Ewen & Carment in the first instance, for reasons of convenience, said that they could not send the writ.

The correspondence proceeded; and in the course of that correspondence, after a reference made to that decree, the solicitors of the Rossmore trustees do not at all appear to have persevered in their claim to a superiority, do not appear at all to have disputed that there was such a decree, or to have expressed any doubt on their part that it really had the effect which it was asserted to have, and I have no doubt was bon‰ fide believed to have, on the part of Messrs. M'Ewen & Carment; on the contrary, they wrote to say they had a claim to make upon that very footing. They say, "We shall be glad to know how you propose to settle value of the superiority due to the Rossmore trustees which you know your clients are liable for under sect. 13" of the very Act under which the proceeding had been taken to extinguish the Hamiltonsuperiority.

On the other hand, that was disputed. Messrs. M'Ewen & Carment said that they took a different view of the effect of the 13th section, and did not believe that there was any such value to be paid for, and if there were, inasmuch as the 13th section said that it was only to be the balance over expenses, there would be no such balance. The correspondence went on: and I fail to find in it any trace of any different attitude assumed on

either side. The conclusion, therefore, is that there was nothing in the correspondence calculated to suggest a doubt that the title was really a title under the Crown.

Well then, what remains? Why simply this. The negociation is entered into with the present Appellant who is disposed to purchase this property. He asks undoubtedly, How is it held? He is referred to the particulars, which said that it was held from the Crown, and in the letter to which he is so referred there are words which undoubtedly have reference to such a Crown title. But it does not stop there. The correspondence with him, as it proceeds, before any agreement is come to, contains more than once a clear and express stipulation that if he buys at all he is to buy under all the conditions of sale that were annexed to the articles of roup, and that stipulation is agreed to; and when you refer to the articles you find that it is expressly stipulated between the parties that the purchaser is to take the property with the risks of error in the particulars, and there is nothing to except error in this particular point. He does so; he signs the contract by which he agrees to do so. A conveyance is executed accordingly, without any warrandice, according to the view which your Lordships take, upon this particular subject. If it had been meant between the parties to insist upon this, and to take this particular matter of tenure out of the stipulation that the purchaser was to be at the risk of error in the particulars, it would have been easy to say so in the correspondence. It was not said. If it had been said and assented to, it would have been easy for it to be provided for in the conveyance. It was not so provided for.

It appears to me, my Lords, quite clear that all the statements and representations which were made on the vendor's part were perfectly bon‰ fide, that he had very good grounds indeed for believing them to be true; nay, that he might even have had such grounds if he had had a knowledge, independently of the correspondence, of the Rossmore title, which there is no ground whatever for supposing he possessed; because the learned Judges in the Court of Session state that the question of law, even when all these facts were known, was one of very great nicety, as to which even the Judges who ultimately reduced the Crown title were of opinion that if the case had come to your Lordships' House it

was quite possible that your Lordships, or any other superior tribunal, might have taken a different view. Under those circumstances, the facts as to the Rossmore title not being known, and the stats of the law being such, I cannot for a moment doubt that the representation was perfectly true according to the belief of those who made it; and, that being so, any error in that representation so made was certainly covered by the express terms of the contract and the undertaking by the purchaser. Upon these grounds I submit to your Lordships that the interlocutors appealed from are right, and that the appeal should be dismissed with costs.

LORD HATHERLEY:-

My Lords, if in the decision of this case we were about in any way to deal with authority as having established any of the propositions contended for by the Appellant, I should for my own part have desired a longer time to consider those authorities, to see how far they bore or did not bear upon the subject matter now before us. But, my Lords, the most striking thing in the whole argument of the very able counsel for the Appellant, has, to my mind, been the fact that there really has not been from beginning to end a single case or a single authority produced before your Lordships in argument, which seems to have even a remote bearing upon the question we are now called upon to decide.

The two points we are now called upon to decide are, first, whether there was a warrandice affecting the question now before us, and giving a right to the Appellant to be, in pursuance of that warrandice, indemnified for any loss he may sustain in consequence of the mid-superiority of those lands having existed, the existence of which the parties do not seem to have been aware of at the moment of concluding the contract, or, whether, if not upon that ground, the case can be rested upon a much higher ground, namely, a misrepresentation by those who conducted the sale on the part of the vendors.

Now, my Lords, the warrandice question has been conclusively dealt with. The Scotch authorities shew that it refers only to the assigning of writs, in other words the covenant for production, and not to collateral matters which are not contained definitely in the disposing part of the deed. I do not forget in that the argument

of Mr. Davey, that an assignment of writs carries with it also an implied warranty that those writs are good and valid in law, that was the effect of the argument. He said, If the right of the Crown which existed at the time of the sale being made was such that they were entitled to reduce, as they afterwards did reduce, one particular writ in question upon which a great part of the controversy depends, then the purchaser could not get that which is admitted by the writers upon Scotch law and the authorities to be his due, namely, the right which the assignment of writs carries with it to have those writs produced for proof of titles when any litigation may take place. Then he said, "I do not get what I bargained for. I do not get my writ because this particular writ in question has been reduced by the action of the Crown." No authority whatever was produced to shew that the effect would be to couple with the assignment of the writs and warrandice that every one of those writs should be indefeasible and valid at any time whatever when it might be produced.

My Lords, I apprehend that the authorities say that an assignment of writs has simply the effect of saying "We pass to you for your title all that we have; here are these writs as they exist in our possession; they have come lawfully and rightly into our possession." There they are, and this particular writ amongst them; they came properly into the possession of the vendors, and they assign their interest in those writs to the purchaser. No authority whatever can be produced to shew that the assignment goes beyond an assignment of the writs as they exist, and says, We guarantee to you the validity of every writ which is so handed over. If the warrandice were read as going beyond that, it seems to me that the effect might be extremely formidable. There are a vast number of titles which have long since been settled, as to which it would be very formidable to say that at a considerable distance of time the parties should be called upon to maintain the validity of the writs as well as to produce them when wanted quantum valeant for the purpose of maintaining the title. I need not go more fully into that part of the case, it has been amply discussed already.

The question of fraud is more interesting. There is nothing about which your Lordships are more careful that to see that in a

case involving, as this does, according to the course which the argument has taken, allegations of fraud and misrepresentation, no such fraud and misrepresentation shall meet with any success. But I confess that I was from the first moment a good deal startled at the extent to which one of the learned counsel for the Appellant, the Lord Advocate, endeavoured to push the doctrine of misrepresentation, though I thought Mr. Davey appeared to resile from the extent to which that argument had been pushed. He went thus far: not only would the solicitor for the vendor be answerable for any fraud or misrepresentation he had made, but he should be answerable, and through him his principal should be answerable, for any silence and non-disclosure or non-discovery of the facts which it might be of some importance to the purchaser to know, even whether he were or were not interrogated as to those facts. If it is with a fraudulent intent that the disclosure is not made, and the facts are kept back for the purpose of deceiving those with whom he is treating, that is one thing; that might be dealt with as fraud; but to say that a person who is aware that claims have been made should tax his memory without any question being put to him upon the subject, and that he should be bound to remember all the claims which have been made, all the persons by whom they have been made, and all the grounds upon which they have been made, would be a doctrine which would be extremely alarming to all those who have to deal with estates. It is next to impossible for persons who are largely concerned in the buying and selling of estates to carry in their memory, especially when unchallenged, all the various attempts which may have been made by different persons to raise claims with regard to those estates. There are estates which are in a state of chronic litigation by parties who believe that they have some title, a fanciful one for the most part, and who constantly go on putting forward a claim because it is difficult to ascertain the exact rights of the parties, there being other persons in the same position as themselves, and the number of possible claimants being spread out very widely and largely. An illustration of that is afforded by the old case which is well known in Chancery by the name of Jenning's Estate, and there are one or two others, to say nothing of other more recent litigation. To say that all the

persons dealing with such estates at all were bound to communicate the fact of so many people having made claims, although the claims were never pushed forward into active operation, would certainly raise a new head of equity which would be destructive of all tranquil possession of property whatever.

That argument, I am happy to say, was not proceeded with further by Mr. Davey, and was at no time supported by authority. It is quite a different thing when a question is asked with reference to a particular fact, and an answer is given "Yes" or "No" as to that fact simpliciter. The person who gives that reply must be answerable for the effects of his representation. Whether or not he bon‰ fide was aware and had treasured up in his memory the existence of certain facts connected with the property, he would be answerable if he took it upon himself to say that such and such a thing had not occurred or had occurred. The only proper answer for a man to make is what he knows, and if he asserts that such a thing happened when the question is asked of him as a matter of business, he is bound to make that representation good; he is not at liberty to say afterwards, "I had no recollection on the subject. I really did not remember whether it happened or not." If that was the state of his mind he ought to have said so when he was asked the question. He ought to have said, "I have an indistinct recollection of it, but I know none of the facts." He ought to give, in fact, the proper answer for a man to give who is speaking the truth. He is asked the question as a matter of business, and he knows that the person who asks him is going to act upon it; then he is bound to give him no false representation; and it is a false representation when he represents that he knows a fact if he does not recollect the fact to be so; if he states as that which he knows himself what he has simply a dim recollection of without having any certain knowledge whatever upon the subject.

I am not, my Lords, going into any length upon this case now after what has been stated by my noble and learned friend on the woolsack, but I think that what struck Lord Deas very much most have struck all of your Lordships in the course of the argument with reference to the contention that these representations were false representations, especially the representation that the property was held of the Crown. Lord Deas says this: "If Mr.

Brownlie" (that is the Appellant) "had made his purchase and been infeft under the Crown prior to the 22nd of February, 1872, I do not see how his position as a singular successor could have been afterwards assailed, and it was a narrow enough question, although not made so prominent in the former case as it deserved, whether the sellers were not entitled to assert a similar privilege. Be this as it may however, I cannot think it surprising if, when a claim to the mid-superiority was made for the first time, in October, 1873, the agents for the proprietors of Monkcastle regarded it as a claim not likely to be pressed to judgment, or, at all events, not likely to be successful. If such was their bon‰ fide opinion, I am not prepared to say that there was such a duty of disclosure as made it incumbent upon them, on behalf of their clients, to communicate to intending purchasers the fact that an adverse claim had been made to the mid-superiority; and still less can I hold that their not having done so necessarily infers either fraudulent misrepresentation or fraudulent concealment, so as to render competent the present claim."

Now this he comments upon, particularly "Mr. Brownlie himself, after he had mastered the facts and examined all the titles and documents, seems to have formed an equally confident opinion with the sellers' agents that the objection of the Rossmore trustees to the decree of forfeiture of 1849, and their claim to the mid-superiority, were untenable. On the 14th of September, 1875, he addressed to Messrs. M'Ewen & Carmant the following letter, under the signature of his professional firm:- 'We wrote you on the 10th inst., and we have this morning received from Messrs. McInnes, Macfarlane, & Co., the titles of Lord and Lady Rossmore'strustees, per inventory we send you enclosed, along with copy, notarial instrument in favour of the trustees, recorded in the Ayrshire division of the General Register of Sasines, 22nd February, 1872.' It appears that, until the recording of the above notarial instrument, no infeftment whatever had been passed in favour of any of the disponees of Douglas, Duke of Hamilton, as regards this property, although that Duke granted the general disposition and settlement so far back as 29th July, 1796 (recorded in the books of Council and Session, August 7th, 1800), and his trustees had registered a decree of adjudication in implement,

13th August, 1805. If such is the case, the proceedings raised by Alexander Miller in 1813, and by William Campbell Millerin 1849, were surely directed against the proper parties when directed against the nearest heirs of the Duke last vested in the superiority." That is what had been done, which turned out afterwards not to be effective in consequence of the title of Lady Rossmore's trustees. Then he says, "We will be obliged by your returning us the enclosed copies after perusal, with any suggestion or remark you have to make." Lord Deas adds, and I read this because I so entirely concur in the observations he makes, "I refrain from quoting the letters written by Mr. Brownlie to the agents for the Rossmore trustees, because in these he might naturally be expected to depreciate his adversaries' case. But in writing the above letter to the sellers' agents at the time he did so, I can see no motive he could have had for expressing the opinion contained in it unless it had really been his own professional opinion. I attach some importance to this, because I am satisfied from Mr. Brownlie's letters that he was just as well qualified to form an opinion as to the legal objection taken to the decreet of forfeiture as the sellers' agents were."

It comes, in fact, to this; these gentlemen seem to have had everything that might lead them to a bon‰ fide conclusion that the title was, as they asserted, in the Crown, and that the mid-superiority was not, as it turned out afterwards by decision to be, in Lady Rossmore's trustees. Can it be said that in such a state of things a solicitor is bound to enter into all the reasoning that has led him to a certain conclusion, when he has bon‰ fide come to that conclusion, and when such a conclusion is one that it is perfectly natural that he might come to, considering all the circumstances of the case? I apprehend, my Lords, that in that case the attention of both parties being directed to the fact, and Mr. Brownlie's letter, and the opinion there expressed by Mr. Brownlie appearing to coincide with the opinion which was held by the solicitors for the vendors, it is perfectly impossible to say that that approaches within any appreciable distance of the cases which have been decided upon representations made, or silence kept, with regard to that which the vendor was bound, acting in good faith towards those with whom he was dealing, to have disclosed.

Nothing here appears to me to amount to anything like that.

I think the case fails entirely with regard to the warrandice, and that no bad faith of any description whatever can be imputed to the vendor, or can entitle the purchaser to be compensated in the manner which is sought for by the present litigation in Scotland, out of which this appeal arises. I therefore entirely concur in the correctness of the decision which was arrived at by the Court below, and in the motion which has been proposed by my noble and learned friend on the woolsack.

LORD BLACKBURN:-

My Lords, I also entirely agree that it is not necessary to hear the learned counsel for the Respondents, as I think the judgment of the Court below is perfectly right.

It appears that in this case there was a conveyance actually executed, after some communings and bargainings between the vendor and the purchaser contained in letters giving particulars of the estate and in articles of roup. After communings of that sort there ensued a conveyance in a form which is usual and common in Scotland, and having in it, as such forms always have, a warrandice amounting to or analogous to a covenant of the vendor having good title; and the first question is whether the warrandice applies to the present case. Now, I take it, that it is of the very greatest consequence in everything that is connected with conveyancing, that where there has been a sense put upon the ordinary usual conveyance, so that it is understood by conveyancers, and acted upon in practice by conveyancers, as meaning a particular thing that should not be deviated from, or upset, or altered. Hundreds of existing titles have been made depending upon the ordinary conveyance having the sense, which by the practice of conveyancers it is supposed to have, and in every future case of a conveyance if a doubt had been thrown upon the sense in which it was to be understood, there would be further inquiry, and probably further litigation, as to the form in which the conveyance should be; I think that would be in the highest degree objectionable.

If in this case there had been any case cited throwing the least doubt upon what the Court below have said, if there had been

any authority to the contrary, anything requiring us to consider what was the opinion of the learned Judges who decided this case in the Court below as to the practice and understanding of conveyancers in Scotland with respect to the meaning of a deed of this sort, I quite agree with my noble and learned friend who spoke from the opposite benches, that it would have been desirable for us to consider the case very carefully indeed, in order to settle whether those cases were to be overruled or not. But no such case has been produced, and, taking it to be clearly understood that such a deed means this, according to the practice of conveyancers in Scotland, I think that it should be so held, and that we should not throw the least doubt upon it. If on any future occasion a purchaser thinks that the warrandice, as thus understood, is not sufficient to protect him, he may ask from his vendor (if he can get it) a special warrandice to a greater extent. If we had decided the other way, and had held that the warrandice, especially as to the writs mentioned in the schedule, was to have the effect which was contended by the learned counsel, Mr. Davey, at the bar, to be the effect of it, I think the result would have been that every vendor, at least every well-advised vendor, in future would have put in an express condition that he was not to be bound to that extent. As it is, every future buyer may, if he pleases, ask for such a warrandice, and if the vendor chooses to give it, well and good, that is his look-out. But I do not think we can hold that the existing warrandice goes so far. Therefore upon that ground I feel no hesitation in saying that the Court below were right.

My Lords, there is a second ground, however, which has to be considered, and upon that I feel even clearer that the Court below were right. I quite agree that, although this is an executed conveyance, yet if it had been shewn that there had been fraud inducing the contract, any dolus dans locum contractui, the conveyance might be set aside, unless something had occurred to prevent it. I will assume, for the purpose of argument, what I believe is not yet settled in Scotland, that, although the contract were not set aside, you might have an action to recover damages; such would be the English law, though I believe it is not settled in Scotland I will take that to be so; is there anything here

amounting to fraud, any dolus dans locum contractui, that may be so founded upon?

I quite agree in this, that whenever a man in order to induce a contract says that which is in his knowledge untrue with the intention to mislead the other side, and induce them to enter into the contract, that is downright fraud; in plain English, and Scotch also, it is a downright lie told to induce the other party to act upon it, and it should of course be treated as such. I further agree in this: that when a statement or representation has been made in the bon‰ fide belief that it is true, and the party who has made it afterwards comes to find out that it is untrue, and discovers what he should have said, he can no longer honestly keep up that silence on the subject after that has come to his knowledge, thereby allowing the other party to go on, and still more, inducing him to go on, upon a statement which was honestly made at the time when it was made, but which he has not now retracted when he has become aware that it can be no longer honestly persevered in. That would be fraud too, I should say, as at present advised. And I go on further still to say, what is perhaps not quite so clear, but certainly it is my opinion, where there is a duty or an obligation to speak, and a man in breach of that duty or obligation holds his tongue and does not speak, and does not say the thing he was bound to say, if that was done with the intention of inducing the other party to act upon the belief that the reason why he did not speak was because he had nothing to say, I should be inclined myself to hold that that was fraud also.

Now, my Lords, did either of those things happen here? I think not. The particulars of sale put before the purchasers were connected with the original articles of roup. They said in express terms, What we are now selling, you must satisfy yourself about, for we will not he bound. Those are not the precise words, but that is the effect of it, and, that being the case, there is no doubt whatever that what was said was, There are the titles; it is held from the Crown. And equally there is no doubt that not only the parties, the ladies, who, I daresay, had not the least notion of what holding from the Crown meant, but also their solicitor, Mr. Carment, acting as their agent, and for whom they are responsible,

said it was held from the Crown. They believed that they were holding from the Crown, and in fact they were holding from the Crown then. No doubt also he at that time firmly believed that the steps which had been taken to put an end to the mid-superiority were effectual, and that they were not only holding from the Crown, but were indefeasibly holding from the Crown. At the time when he first issued these articles of roup and particulars nothing had been suggested which threw the least doubt upon his reason for bon‰ fide believing this.

Afterwards, but before he began his communings with the present Appellant, Brownlie, he received letters from the agents for Lady Rossmore, which have been repeatedly read, and which amount to this. We make a claim saying that Lady Rossmorehas a mid-superiority, and we claim to have a casualty as mid-superiors. The answer was, You have nothing of the sort, for we destroyed the mid-superiority effectually by a decree of adjudication in, I think, 1849, mentioning the year. The answer, I think, comes to this fairly; if so, we are entitled to some compensation: I wish you would tell us what it is. That would have been a claim not upon the land, but upon the individual vendor, which he would not have got rid of by selling the land. The answer sent by Mr. Carment was to the effect, This claim I do not at all admit, and I do not think you have any such claim, and I cannot possibly help you by shewing you the title-deeds. After that he is applied to by Mr. Brownlie, and he does refer him to the articles of roup and the particulars that were given, and so he does after this repeat his assertion which he had made before, namely, The estate holds from the Crown, but you must look into it for yourself (that is what it comes to) and be satisfied about it; I do not warrant that lands are held from the Crown, but I say it is so. Now if those previous letters which he had received from the agents of Lady Rossmore had conveyed to him full knowledge that this was untrue, and that really the title from the Crown was defeasible because they had not served the right party, and because he knew that the effect of that would be to render the whole thing void, I am not prepared to say (it would be a question to be considered) whether in repeating his assertion after he had had that knowledge, he would not have been saying what would

amount to fraud, what would have been a lie in fact for the purpose of deceiving the other side. I am not convinced that he would have been doing so. But when I look at the facts upon the evidence, I think the matter falls as far short of that as could reasonably be.

The utmost that has been said in argument is, that after receiving these letters he might have looked into the matter, and if he had looked into the matter he might have found out that the claim was well founded. But I apprehend, my Lords, that it is pretty clear law that the mere means of knowledge is not the same thing as knowledge. That was laid down by Chief Justice Tindal in a case which I have before me, namely, Bell v. Gardiner (1). After stating that there was some doubt thrown out in other cases, and citing Kelly v. Solari (2), he says: "Kelly v. Solari is decisive upon the point, and establishes that it is not necessary to the validity of such a plea that it should negative the existence of the means of knowledge as well as actual knowledge. We can, in fact, regard the possession of the means of knowledge only as affording a strong observation to the jury to induce them to believe that the party had actual knowledge of the circumstances; but there is no conclusive rule of law that, because a party has the means of knowledge, he has the knowledge itself." That I apprehend is quite right.

There have been two or three cases cited which I think do not proceed upon that ground, although there is a little confusion about them. The Courts of Law had to refer fraud, in which knowledge was an essential ingredient, to a jury, and Chief Justice Tindal is speaking of that. A Court of Equity had to find it for itself, and consequently the Judges in Courts of Equity were not driven to be so precisely accurate in stating exactly whether they were going upon the ground that there was a contract or warranty that the thing was so, or whether they were going upon the ground that the party, knowing it was not, and representing that it was, had committed a fraud in doing that. Most of the cases (the leading one is Burrowes v. Loch (3), and it is sufficient to

(1) 4 Man. & G. 11, at p. 24.

(2) 9 M. & W. 54.

(3) 10 Ves. 470; Clarke v. Manning, 7 Beav. 162; Flight v. Barton, 3 M. & K. 282.

mention that, though there were others) when looked at, if they do not absolutely amount to contract, come uncommonly near it. In Burrowes v. Loch a man proposing to lend money on the security of an equitable assignment of a share of what remained due on account of the residue of a testator's estate, went to the trustee who held the fund and asked him, telling him the facts, "I am going to lend money upon the security of this share, has any prior loan upon this been communicated to you so as to make you have prior notice, so as to make that other loan come in before me and cut me out, tell me that, in order that I may know whether I will lend the money or not." The party on the other side answered, "There has been none such." To say that that is not warranty or contract that he has received no such notice is, I think, going very near the wind; if it was not that it was so uncommonly like it, that I cannot make the distinction myself. That would have been sufficient for the Master of the Rolls to say, "You have warranted this." He also had considerable ground for doubting whether the man had really bon‰ fide forgotten. The man, he seems to have thought, had thought this, "I will not take the trouble of a search," the fact being that he really knew nothing about this and would not take the trouble of looking, but he boldly made the assertion, "I know there is none," saying as a fact, "I know there is none," when the real truth could not be more than, "I am pretty sure there is none." If, when a man thinks it is highly probable that a thing exists, he chooses to say he knows the thing exists, that is really asserting what is false - it is positive fraud. That has been repeatedly laid down, and I think the more it is considered the more clear it becomes. If you choose to say, and say without inquiry, "I warrant that," that is a contract. If you say, "I know it," and if you say that in order to save the trouble of inquiring, that is a false representation - you are saying what is false to induce them to act upon it. I think all the cases which have been cited come round to pointing to that, but none of them, as far as I am aware, are in contradiction with that which I have cited from Chief Justice Tindal, and I think there are a good many other authorities to the same effect.

There is only one other point on which I think it is necessary to say anything, and that is, it was said, "At all events there is

an improper concealment here." Now, as I said before, I should say, whenever there is a duty to speak, when you have got anything to say and you keep it back in order that the other side believing that you, having said nothing, have nothing to say, it is very much the same as falsehood and fraud. But, my Lords, what is there here that would cast any duty upon him at all to speak? In policies of insurance, whether marine insurance or life insurance, there is an understanding that the contract is uberrima fides, that if you know any circumstance at all that may influence the underwriter's opinion as to the risk he is incurring, and consequently as to whether he will take it, or what premium he will charge if he does take it, you will state what you know. There is an obligation there to disclose what you know; and the concealment of a material circumstance known to you, whether you thought it material or not, avoids the policy. But in other contracts it is not so, and as my noble and learned friend opposite (Lord Hatherley) has observed with great force, it would be a monstrous thing if every solicitor, for selling an estate, were obliged to keep a schedule of all the idle claims that had been made - although some of them may perhaps ultimately turn out not to be idle - keep a schedule of all the claims of all sorts that have ever been made within his knowledge against his client, and shew them to intending purchasers. I never heard of such a doctrine, and I think if we proposed to bind people to do that we should do a great deal of mischief. There is no case in support of that. I never heard of one ever being cited, and it seems to me to be against principle that there should be one.

Taking that view of the matter, my Lords, and upon these grounds, I think the second point of fraud or concealment has been as rightly decided by the Court below as was the first, and therefore I agree with the motion which has been proposed to your Lordships.

LORD WATSON:-

My Lords, the claim of the Appellant, the purchaser of the estate of Monkcastle, is rested upon two grounds; the first being the warrandice in his disposition of sale, and the second alleged misrepresentation by the seller. My Lords, I entirely agree that

the judgment of the Court below is well-founded, and I concur in the opinions which have been delivered by your Lordships in the case.

The first question, which turns upon the clause of warrandice in the disposition of sale, is a pure question of Scotch conveyancing, and it relates to clauses not of any unusual or extraordinary character, but to clauses of ordinary style. The meaning put upon them by the Court of Session has been very ingeniously impeached, but there was no attempt on the part of the learned counsel at the Bar to contradict the statements of the law and practice made by the Judges in the Court below. We had a great deal of very minute criticism upon the particular terms of the clauses of this particular deed, which, as I have said, do not differ from the ordinary terms of deeds of disposition in Scotland. I mean deeds of disposition conveying the dominium utile of landed estates.

I understand the law as laid down by the Judges of the Court of Session and approved of by your Lordships to be, that under a conveyance in these terms, the subject of the conveyance consists of the lands and pertinents of the lands, and that the words "together with all right or title" are not intended to enlarge the conveyance, but are intended to express this, that in giving the lands the disponer gives at the same time everything vested in his person, which is necessary in order to make effectual the right of the purchaser to the lands themselves. Then follows an assignation of writs, but the purpose of that assignation is not to convey any new estate, or estate not falling under the dispositive clause, but to give to the purchaser a right to have and use the writs referred to and assigned for the purpose of defending himself against eviction from the lands conveyed in the dispositive clause. The warrandice clause undoubtedly applies to both of these, because it warrants, in the first instance, that there shall be no eviction from the lands themselves, and it warrants, in the second place, that if eviction is threatened these writs shall be forthcoming so far as necessary for defence against eviction, and that they shall be effectual for that purpose.

The first question to be considered is this, - Has there been eviction in this case? and that depends upon the answer to be given

to the other question, What is conveyed? I am of opinion with the learned Judges in the Court below, and with your Lordships, that this conveyance relates to the lands only and does not relate to tenure, and that there is no conveyance of lands subject to any particular holding, or any warranty that those lands are held by any particular tenure.

Now, passing from that point, an argument was founded upon the clause of assignation of writs, and it is said that no notice of that argument was taken by the learned Judges in the Court below. I am not at all surprised that the learned Judges should have taken no notice of it, because it really involves the very same question as that which I have discussed; the question, What is conveyed? If eviction is not threatened, what right has the purchaser to call for the production of these titles, or to complain that they are not forthcoming? The only purpose for which he gets the assignation and warranty applicable to writs, is in order that he may defend himself against eviction; and the right to call for them cannot arise until eviction is threatened. If an action had been raised for setting aside his right to the land, then he would have had a good claim upon his warrandice if the writs had been necessary for his defence, and had not been produced. But surely there can no claim arise under that clause so long as he is neither evicted nor threatened with eviction.

The next ground of action is representation, and it is perfectly clear, not only that that representation is not imported into this contract, but on the contrary, that the liability of the seller for having made such a representation is very carefully excluded from it. The representation was certainly made and was repeated - it was given to the purchaser at the time when he proposed to purchase at public roup, but he was fairly advertised at the very onset of the communings with regard to the sale by private bargain, that the seller would only transact upon the footing that the whole articles and conditions of the contract between them would follow the conditions and articles of roup, and one of the leading provisions forming part of those conditions is to the effect that the seller should not be bound by those representations, or by any representations of that class, and that the duty of inquiring and satisfying himself was to rest with the purchaser.

Of course that does not relieve the seller from any charge of fraud. If the representation was fraudulent, if it was made, in other words, in circumstances which amount to fraud in the eye of law, then the purchaser must have rescissory whether in the form of this action, or in the form of a rescissory action, I do not at present give any opinion, because, as has been stated by the noble and learned Lord opposite, there is a great deal of difficulty in regard to that point as the decisions at present stand in Scotland.

I entirely agree with the observations which were made by the noble and learned Lord on the woolsack, distinguishing this case in its circumstances from the authorities which were cited at the Bar. In this case the representation made was the simple truth, and the only question is whether it was the duty of Mr. Carment, the agent for the seller, to qualify that statement, so far in itself correct, by further stating that circumstances had come to his knowledge which rendered it to his mind doubtful whether that decree of 1849, under which the estate was held, was a valid decree. My Lords, if I were satisfied from the circumstances in which Mr. Carment was placed at that time that the facts either within his knowledge, or which ought to have been within his knowledge, were such as reasonably to suggest to his mind that that decree was in serious peril, and that there was a serious risk of that title being challenged, I should not have come, with the same confidence at least, to the conclusion which I have formed upon this part of the case.

But I cannot find in the facts of the case anything leading me to suppose that Mr. Carment was in the wrong in withholding from the purchaser a statement in the truth of which he did not himself believe, and which, as I read the evidence, he had no cause for believing, for from the year 1813 downwards the property had been held of the Crown by reason of the heir of line, Douglas Duke of Hamilton, having declined to enter upon an action that was brought against him for that purpose; and from 1796 down to 1873 the persons who eventually established their right to the superiority which was extinguished by the two decrees of 1813 and 1849 had not only never preferred any claim to it, but

had never even put their title on record until the year 1872. It does not occur to me that the simple statement that the superiority lands or the fee simple lands were mentioned in their title was sufficient to raise any doubt, or any reasonable doubt, such as Mr. Carment was bound to communicate. But not only so, in the correspondence with the agents for the Rossmore trustees he stated that a decree had been taken in 1849, and whether they were under the belief that their clients had been called as Defenders in that decree or not, the moment they received an intimation of that fact, which was an undoubted fact, they altered their claim from one for the restoration of the superiority to a claim for the allowance which the 13th section of the statute 10 & 11 Vict. c. 48, gives them in the event of the forfeiture of the right.

And, my Lords, that was not all. The correspondence dropped, and the claim was not insisted upon. The last intimation of their claim was to the effect I have mentioned. I am not going into detail upon this subject, which has been very fully and satisfactorily discussed by Lord Deas. It is very easy after a judgment of the Court to assume that the law should have been known to be so and so. Why, after all the discussion which took place in the case between the Appellant and the Rossmore trustees, Lord Deas, who delivered one of the leading opinions in that case, not only intimates that it might have been doubtful which way it would be decided, but rather suggests that if certain considerations present to his mind in deciding, the present case had actuated him before, the conclusion at which he arrived might have been different. And you have this fact, which was referred to by the noble and learned Lord on my right (Lord Hatherley), that the agent for the purchaser having examined the Rossmore trust deeds, which had not been seen by Mr. Carment at the date of his representation, came to the conclusion in regard to the claim that there really was nothing in it; that the decree of 1849 was valid, and was directed against the right persons.

In these circumstances, this being a question not of fact known to Mr. Carment but of a legal opinion which he never did entertain, and which it cannot be said that he was reasonably bound to entertain, I do not think it can be brought up to a case of legal

fraud or of fraud of any kind so as to entitle the Appellant to the relief which he seeks. I therefore concur in the judgment which your Lordships propose.

Agents for Appellant: Willoughby & Cox.

Agent for Respondents: Andrew Beveridge.