move all doubt. It is in these terms, addressed to one of those gentlemen :-" DEAR SIR-I have been so much taken up with one thing or another, since I received your kind favour, that I could not sooner find leisure to acknowledge it. I went yesterday to Mr Raeburn's," that is the artist, "with a gentleman who was desirous to see the picture, and found it decorated with a very splendid frame, very different indeed from what it was in at the public exhibition. You have ordered every thing concerning it with so much propriety, and so far beyond my expectation, that whatever you determine with respect to the placing of it, and the inscription, will be quite agreeable to me." Even supposing there had been any condition previously-even supposing they had tied themselves down to hang it in a particular place supposing he had at the time acquired any right, this is an entire relinquishment of right of interference, if any such existed;" whatever you determine with respect to the placing of it, and the inscription, will be quite agreeable to me." There is another observation I would make, and which goes very strongly to show that there was no condition previously to the portrait being taken as to where it should be placed. The negotiation and the actual sitting were long before these gentlemen had obtained leave to hang up the picture in the School Room. That room was not theirs, any more than it was Dr Adam's, it belonged to the Magistrates. This negotiation took place before any permission to hang it there had been asked; and that fact, at any rate, goes strongly to negative the condition between the parties, that it should be hung up in this particular room. I will not trouble your Lordships with any reference to what took place before the Magistrates in the year 1810; but perhaps that is not immaterial, that it precludes the Magistrates from saying that they had a right to claim as against these gentlemen; for a petition was presented by these gentlemen to the Magistrates, to have it declared by them, "that the property of the portrait remained with them, and that they, or the majority of the survivors of them, may at any time hereafter dispose of the same as they shall think fit; and that the said portrait shall not be at the disposal of the said Magistrates of Edinburgh during the survivance of any of the petitioners; and that failing them, and all provision of theirs to the contrary, the Magistrates shall then preserve the same perpetuam rei memoriam." It appears that the Magistrates, on the 25th of April 1810, read that petition, and that they made an order, by which "they granted liberty to the petitioners to place the portrait of Dr Adam in the High School Library, on the terms and conditions before-mentioned;" that is to say, that it shall be the entire property of those petitioners, to dispose of it as they shall think fit, recognizing their right, and that it should not be at their (the Magistrates') disposal, till all the petitioners had died. This was the condition on which the proprietors of this portrait permitted it to be hung up in the High School. It is said that Dr Adam was no party to this. It does not appear that he was. But this is consistent with that which had previously passed between the parties; and unless the Magistrates could prove that this order was, by fraudulent concealment of the facts, obtained from them, they would be bound to deliver up the picture to the claimants; and if they had no proof of the fact of fraud having been practised upon them (for which there is no ground whatever,) and having delivered up the portrait, they must have left Dr Adam to have proceeded against the claimants as he might see fit, upon the ground of the implied condition-that condition surviving to him-being so far surviving for his benefit as to give him a right to interpose. My Lords, there is a case upon which a good deal of observation was made, and which I was a good deal struck with, when the case was heard at your Lordships' Bar-I mean the case of Cadell v. Stewart, respecting the letters of Burns, the celebrated poet, and which is reported in the Faculty Collections. It is clear that the Court of Session appear to have allowed the representatives of Burns to interfere as parties in the suit, upon the ground, as stated in that report, that the representatives of Burns had sufficient interest, for the vindication of his character, to restrain the publication of those letters. Undoubtedly there is a great distinction between that case and the present. There was no declaration there, that the property in those letters was in the party publishing them; but the Court proceeded on the ground, that letters

are written on an implied confidence that they shall not be published without the consent of the writer, and they allowed the representative of Burns to interfere for the reputation of his ancestor, to prevent the publication. Undoubtedly, that is going very far indeed; and it requires very strong arguments to arrive at the decision, that the representative may interfere and obtain a solatium in damages, for the injury done by the publication of writings of that nature. That, however, is the ground of the decision, the sum and substance of the reported judgment. It is sufficient for me to remind your Lordships, that it does not at all dispose of the question in this case; and for one reason, which is quite sufficient, that the judgment in that case rested upon no property. Persons who had possessed themselves of those letters, had published them contrary to the wishes, and in interference with the rights of the parties to whom all Burns's manuscripts had been committed. It is one thing to restrain the improper use of that in which a party has no property, and another thing to restrain a party from the use of that in which he has a property. Upon the whole, I feel myself called upon to advise your Lordships to affirm this judgment of the 10th of June 1831, in so far as it affirms the interlocutor of the Lord Ordinary of the 2d of March 1831, and to reverse that part of the judgment which goes to alter that previous interlocutor, leaving that interlocutor to stand as it was originally intended; and I feel satisfied, that the use which will be made of this portrait by the gentlemen whose property it is decided to be, will be that which, in their opinion, shall do most honour to the memory of this learned man, and in furtherance, as nearly as possible, of the intention of doing honour to him which they originally expressed. My Lords, I have made some inquiry with respect to the costs. There is no doubt that Dr Walter Adam has interfered, from a feeling highly honourable to him; and under these circumstances, I am quite sure, from what I know of the appellants, they will never suffer those costs to fall upon him. If, in substance, they are not to be paid by the Magistrates, but by Dr Walter Adam, I am certain that these gentlemen will not permit him to pay one farthing of those costs. I will now move your Lordships, that the interlocutor of the Court of Session be reversed, to the extent to which it alters the interlocutor of the Lord Ordinary.

Interlocutor reversed.

First Division.-Lord Corehouse, Ordinary.-Richardson & Connell, Appellants' Solicitors.-Spottiswoode & Robertson, Respondents' Solicitors.

16th July 1832.

No. 7.-WILLIAM BAIRD, Appellant, v. ROBERT Ross, Respondent.

Servitude-Property-Two individuals having purchased conterminous properties, and the conveyance of the one having given him free ish and entry by a cart-entry, to be formed along one of the boundaries of the property of the other, in terms of the conveyance thereto-Held, reversing the judgment of the Court of Session, that this servitude did not warrant the proprietor, in whose favour it was constituted, to load or unload his carts on the property of the other.

The appellant presented a bill of suspension and interdict, for the purpose of prohibiting the respondent from loading or unloading his carts upon an area or piece of ground which was allowed to be common property, and from allowing the rain water to fall from the roof of his tenement upon the ground. The house and property belonging to the respondent, as well as the ground which was purchased by the appellant, originally belonged to a person of the name of Smellie, who became bankrupt. Mr Watson, the trustee on Smellie's sequestrated estate, divided the property into lots, and sold it by public roup in May 1824. The appellant became purchaser of lot No. 7, and the respondent of lot No. 8; and both parties received dispo

sitions to their respective lots from Mr Watson, the trustee. The appellant's disposition stated,"Which piece of ground, hereby disponed, is comprehended within the letters A, B, C, D, on the ground plan of the whole property in Calton-mouth, belonging to the sequestrated estate of Robert Smellie, lately prepared by Thomas Richardson, land-surveyor in Glasgow; and which, with a duplicate thereof, herewith delivered to the said William Baird, is subscribed by me the said James Watson, and the said Commissioners, as relative hereto; and is bounded, the said piece of ground, on the south, by lot No. 8 of the said property, lately sold by me, as trustee foresaid, to Robert Ross, victualler in Glasgow, the said lot No. 8, comprehending the area within the letters E, F, G, H, on said plan;"" together with the whole buildings and houses erected on the said piece of ground hereby disponed, with free ish and entry thereto; declaring that the said William Baird and his foresaid, shall have right to the half of the mean gable of the stone tenement, which composes the first five lots sold by me, (the said James Watson,) to Alexander Allan and others, as aforesaid: But it is hereby specially declared, that the said William Baird and bis foresaids shall be bound and obliged to make an arched close of eight feet wide, and ten feet high, at the east end of the piece of ground hereby disponed, for a cart-entry to the said lot No. 8, as well as free ish and entry to the said lots Nos. 1 to 6 inclusive, of the said property: Farther, the said William Baird, and his foresaids, are hereby expressly restricted, in all time coming, from erecting any buildings on the said piece of ground farther south than a continuation westward of the line of the back wall of the front stone tenement, which has the other half of the foresaid mean gable, and which composes the said first five lots of the said property, excepting a dunghill and necessary-house at the west extremity of the said piece of ground hereby disponed, but which buildings are not to exceed eight feet in height, declaring that the remainder of the said piece of ground, south from the foresaid line of back-wall, shall be mean property for the preservation of light."

The respondent's disposition conveyed

"All and whole, that area or piece of ground situated at Caltonmouth of Glasgow, which is comprehended within the letters E, F, G, H, on a ground plan of the whole property, then belonging to the sequestrated estate of Robert Smellie; with free ish and entry to the said area or piece of ground hereby disponed by a cart-entry to be formed along the east boundary of the said lot No. 7; and which entry the said William Baird, and his heirs and successors, proprietors of the said last mentioned lot, are bound to give to the said Robert Ross, and his foresaids, in all time coming, as expressed in the disposition to be granted by me in favour of the said William Baird; and also by the common passage leading to the said ground, now disponed, from the Main Street of Calton; as was enjoyed by the said Robert Smellie previous to the sequestration of his estate."

The appellant applied to the Court of Session to interdict and prohibit the respondent

"from loading or unloading his carts upon the area or piece of ground above-mentioned, or otherwise trespassing or encroaching thereon; and also from allowing the water to fall from the roof of his tenement, which is built along the north, boundary of the said area, upon the property of the complainer."

On 3d June 1829, the Lord Ordinary,

"In respect that the close or area in question, does not appear to be the exclusive property of the complainer, but is declared in his own titles to be mean property for the preservation of light,' and that the acts complained of are either expressly warranted by the titles, or at all events do not interfere with the object for which the area was declared to be common, refuses the bill, finds the suspender liable in expenses, of which allows an account to be given in, and, when lodged, remits to the auditor to tax the same, and to report."

The Court adhered. Baird appealed, pleading-I. The appellant has offered to prove that the respon

dent not only loads and unloads his carts upon the area in question, but that he makes use of it otherwise, in every possible shape, just as if it were his own, or as if it were common property between him and the appellant. Indeed, he does not deny the fact. Now, while the appellant admits that this area is subject to a negative servitude, in favour of the respondent, in virtue of which the appellant is prohibited, to a certain extent, from building upon it-it is submitted to be equally clear that the area is truly the appellant's property. This is quite plain, from the description of the boundaries of the subject belonging to the appellant and respondent respectively, as compared with the plan referred to in the titles. The property conveyed to the appellant is described, in his title, as being "comprehended within the letters A, B, C, D, on the ground plan." Now, it is evident, from inspection, that the area in question, upon which the respondent loads and unloads his carts, without the appellant's permission, is comprehended within these letters.-II. That what has now been stated furnishes an answer to the ratio decidendi assigned in the Lord Ordinary's interlocutor. That interlocutor rests entirely upon the circumstance, that in the clause already alluded to, in the appellant's title, which prohibits him from building on the piece of ground in question, except in a certain way, it is declared that the remainder of the said piece of ground, south from the foresaid line of back wall, shall be mean property for the preservation of light." -III. The respondent founds upon the circumstance, that, by the disposition in his favour, he has "free ish and entry to the said area or piece of ground, hereby disponed, by a cart entry to be formed along the east boundary of the said lot No. 7," (being the east boundary of the appellant's property, and at the same time the east boundary of the disputed area,) " and which entry the said William Baird, and his heirs and successors, proprietors of the said last mentioned lot, are bound to give to the said Robert Ross," but the construction put on these words by the respondent is

erroneous.

Answered-I. The house upon the lot No. 8, purchased by the respondent, had been built and possessed for many years, with access to carts, which were loaded and unloaded there; and it was an express stipulation, both in the respondent's titles, that there should be this access, and in the appellant's, that there should be an arched close made in order to preserve it. The appellant was taken bound to make his arched close ten feet high and eight feet broad, in order that loaded carts might have access. It is absurd to maintain, that where there is free ish and entry to carts, these carts, as the appellant maintains, are neither to load nor to unload, nor to turn round.-II. The respondent bought the house, which had stood for forty or fifty years exactly as it is now. The rain water descends from the roof upon the common area exactly as it did before he purchased it. There is not therefore the smallest ground for altering the possession, which could not be otherwise, according to the nature of the subject, and of which the appellant was fully aware when he made his purchase.

Lord Chancellor.-My Lords, in the case of Baird v. Ross,

which was argued before your Lordships, I have read so much as to see that which I am sorry to have had occasion to see in other cases, that there has been the most vexatious conduct on the part of one of these parties towards the other, originating in a dispute between two neighbours, who purchased different lots of property in the city of Glasgow, adjoining each other. The appeal has, in its nature, nothing to recommend it. It is very distressing to see such questions as some of those which have been brought into controversy between these parties. The case, however, involves the consideration of a point of more importance than at first sight appeared,-I allude to the form of the proceedings. A party has clearly a right to appeal on even the most minute rights;-if he conceives that the Court has decided erroneously, undoubtedly, he has a right to bring before the Court, that erroneous judgment; and the Court of Appeal must deal with it upon principle, and without reference to the matter in question, though it may be so extremely trifling as some of those which have been brought before your Lordships. A party has a right to have his case disposed of on legal principles, however vexatious the conduct of the parties who have instituted the proceeding, or of those who have defended it may have been. In this case, the two parties are, as might be supposed, near neighbours, occupying two portions of a property in the city of Glasgow, which was sold in different lots,-the one purchasing lot 7, the other lot 8; and the question is, Whether the respondent, who purchased lot 8, possesses a right to load and unload his carts on lot No. 7, his conveyance giving him a right to free ish and entry to the said area, that is No. 8, by a cart entry to be formed along the boundary of lot No. 7. The proprietor of lot No. 7, the present appellant, the pursuer in the Court below, contends that he purchased that property as his own, subject only to one servitude, that of his not raising any building which could obstruct the light ;-that that lot No. 7, is to be considered a mean property, for the purposes of preservation of light, this being stated not with any remarkable distinctness, which I shall say a word on presently; but he does maintain, as he did in the Court below, that the respondent purchased that lot, No. 8, as his property, and that between the two lots there was to be this common ground, common not entirely, but for the purposes of preventing the obstruction of the light, and not conferring on the owner of lot No. 7, the sort of joint ownership or occupancy which the owner of lot No. 8 has asserted over that lot, No. 7, which consists in this, among other things, that he has a right to load and unload his carts upon that space. I will call your Lordships' attention briefly to the matters which are set forth, and which are either admitted on the one side, or denied on the other, such matters as are stated and referred to by the parties, or such parts of the title as are not denied and are set forth. The description in the conveyance of lot No. 7, is, that he is bound so and so, "but it is also hereby specially declared, that the said William Baird and his foresaids, shall be bound and obliged to make an arched close of eight feet wide, and ten feet high, at the east end of the piece of ground hereby disponed, for a cart entry to the said lot No. 8, as well as free ish and entry to the said lots, Nos. 1 to 6 inclusive, of the said property: Farther, the said William Baird, and his foresaids, are hereby expressly restricted in all time coming, from erecting any buildings on the said piece of ground further south than a continuation westward of the line of the back wall of the front stone tenement, which has the other half of the foresaid mean gable, and which composes the said first five lots of the said property, excepting a dunghill and necessary-house, at the western extremity of the said piece of ground hereby disponed; but which buildings are not to exceed eight feet in height," is to prevent the obstruction; " declaring, that the remainder of the said piece of ground south from the foresaid line of back wall shall be mean property, for the preservation of light." Not only is the person holding restricted by the particular words, to which I before referred, from erecting buildings on this spot; but on the other part, nothing shall be done to obstruct the lights-it is a mean property for the preservation of light. Then the property purchased by the respondent is thus described in his disposition: "All and whole, that area or piece of ground situated at Calton-mouth of Glasgow, which is comprehended within the letters E. F. G. H. on a ground plan of

the whole property then belonging to the sequestrated estate of Robert Smellie, late spirit-dealer in Calton-mouth, which is subscribed by me, the said James Watson, and the commissioners on the said estate, as relative hereto, being the eighth lot in the articles and minutes of roup; together with the whole houses and other buildings, erected on the said area or piece of ground, with the whole pendicles and pertinents thereof, bounded the said area or piece of ground hereby disponed," in the manner therein mentioned, "with free ish and entry to the said area or piece of ground hereby disponed, by a cart entry, to be formed along the east boundary of the said lot No. 7;" that disposes of the mode of entry, and the mode in which that is to be given, by cart entry, "to be formed along the east boundary of the said lot No. 7, and which entry the said William Baird, and his heirs and successors, proprietors of the said last mentioned lot, are bound to give to the said Robert Ross and his foresaids, in all time coming, as expressed in the disposition to be granted by me in favour of the said William Baird, and also by the common passage leading to the said ground now disponed from the Main Street of Calton, as was enjoyed by the said Robert Smellie previous to the sequestration of his estates, which area or piece of ground now disponed, was acquired by the said Robert Smellie from Robert Struthers, brewer in Glasgow, by disposition dated the 16th day of May 1806." It appears that this conveyance provides for ish and entry along the east boundary of the lot No. 7, by means of a covered way, which covered way he is not only bound to keep free, to allow the owner of lot No. 8. to use for the purpose of access to his property, but to keep an opening above for the admission of light; and the question between the parties is, whether these titles gave any thing more to the owner of lot No. 8. than an entry to his house or houses. With respect to a mere footway, that is not the present question, nor does it save any thing to the purchaser of lot No. 8. in respect of a foot entry to that lot, whether it gave any thing more than a right of way with his carts through that covered entry, and along the east side of lot No. 7, whereby he might go to his own premises; and I feel myself bound to say that I can see nothing more. It appears to me that here is nothing like a servitude for any thing more than the keeping a vacant space open as a cart way, and a right to have a free opening for the purposes of light; that nothing more is granted to the purchaser of lot No. 8. than a right of way through that covered entry, and along the east line of lot No. 7.; that is to say, that line marked out in the appellant's Appendix, marked C. and D., partly covered and partly uncovered. That there is nothing operating in the smallest degree towards constituting a servitude, to allow of the loading and unloading carts in the vacant space of lot No. 7. Then it is said, that there are two doors of entry, by which the owner of lot No. 8. enters to his buildings by the vacant space. This, however, is not the ground of the judgment of the Court below; and this is not the ground which is admitted upon the face of these pleadings; but if it were, it would not prove the case respecting the loading and unloading of carts. If we take a review of the acts which are set forth by way of statement, there appears to be evidence of certain transactions which led to disputes between the parties in 1827, and to an interlocutor of Lord Mackenzie, as Lord Ordinary, of the 27th of December 1827, compelling the defender, the present appellant, to remove a necessary and dunghill, the effect of which appears to have been to obstruct one of the respondent's doors, which was partly covered by that erection. That interlocutor established the right of this party to his door, entering into the vacant space of lot No. 7. Still, the admitting his right to that door, would give him no such right, such as that claimed here, of access for the purpose of loading and unloading his carts. It might give a foot way in the way of servitude, but it would not go, nor will the judgment I should advise your Lordships now to pronounce, to sustain the larger servitude of a right to drive his carts along that way, and to load and unload them on that space. The very learned person who was Lord Ordinary, Lord Fullerton, on the case coming on for hearing on the 3d of June 1829, having considered the bill and answers, pronounced this interlocutor:-" "In respect that the close or area in question does not appear to be the exclusive property of the complainer (that is, the appellant), but is declared in his own titles to be

mean property, for the preservation of light, and that the acts complained of are either expressly warranted by the titles, or, at all events, do not interfere with the object for which the area was declared to be common; refuses the bill, finds the suspender (appellant) liable in expenses, of which allows an account to be given in, and when lodged, remits to the auditor to tax the same, and to report." Now, I cannot go along with this ;-it does, with great submission, appear to me, that that area is the exclu sive property of the party, unless in so far as it is tied up by this particular and special servitude, of the making a covered way, and keeping that open for the other party, and the condition of this property being declared to be mean property, for the preservation of the light; not mean property generally—mean property cannot be said to be joint property; that is not the construction of the words, but property lying between the parties belonging to the one-but mean property for the preservation of the light, not for use, but to be used by the party to whom it belongs, so as not to obstruct the light. His Lordship adds"and that the acts complained of are either expressly warranted by the titles, or, at all events, do not interfere with the object for which the area was declared to be common." Now, my opinion certainly is, that the acts are not expressly warranted by the titles, for the reasons I have given. Taking the other alternative of Lord Fullerton, it is very true that these acts of loading and unloading do not interfere with the rights for which the area was declared to be, as his Lordship says, in common, but more is required, in order to justify the act of one party on the property of another, than that those acts do not interfere with another object;-it was necessary to show that the acts were justified by the title of the parties; that the respondent had a right to drive through, and to load and unload. The onus lies upon him who makes the claim. If there had been a little more strictness in pleading the right claimed, there is no doubt much litigation would have been saved. It should have appeared that the party claimed a right, not only to enter through this covered way, but to go through lot No. 7, claimed a right to deviate from that line, and to enter upon that vacant space, and so forth, in what way he claimed that right, and for what purpose. It is insinuated in these pleadings, but not distinctly stated, that these premises were always used in the way alleged, not merely by foot passengers allowing this door to be there for their use, and they walking across the space, but that in respect of this Vicant space, those who had the property before, had been always accustomed to drive carts there, and to load and unload earts there. That, however, is a matter of fact, which must be proved, and it is not proved by the individual upon whom the onus lies. I feel myself, therefore, compelled, though reluctantly, to recommend to your Lordships to reverse the interlocutor complained of, and to remit, with instructions to direct the bill of suspension and interdict to pass-but with one exception. I think the bill ought to interdict and prohibit the respondent from loading or unloading his carts upon the area or piece of ground above mentioned; with respect to the other part, "and also from allowing the water to fall from the roof of his tenement, which is built along the north boundary of the said area, upon the property of the complainer," I see no occasion to pass that part of it. The consequence of this will be, that in moving your Lordships for judgment in this case, I must, upon these grounds, propose to your Lordships to reverse this interlocutor, and to make the declaration I have stated.

Ordered accordingly.

Second Division. Lord Fullerton, Ordinary. Thomas Deans, Appellant's Solicitor.-S. B. Jackson, Respondent's Solicitor.

16th July 1832.

No. 8.-JOHN REID, Appellant, v. PETER LYON and AGENT, Respondents.

Assignation-Security- Redeemable Right-ConstructionCircumstances in which an assignation by a tenant ex facie absolute, of a lease, in consideration of a sum advanced in payment of arrears of rent, granted simul et semel with an assignation (by the landlord) of a decree of irritancy of the same lease, in security

of the same advance, was held (affirming decree of the Court below) to be a right in security, redeemable on payment of the sum advanced, with interest, &c.

The late Peter Lyon obtained a lease in 1798 from Sir James Montgomery, of the lands of Comely Garden for 500 years, at a yearly tack-duty of £46 odds for the first seven years, and £60 for the remaining years. The lease contained a clause of irritancy, in case the tenant should at any time run two years' rent in arrear. Lyon entered on the lease, fell into embarrassments, and at Candlemas 1815, owed £218, 17. 4. The representatives of Sir James Montgomery brought an action of declarator of irritancy, in which they obtained decree, which became final, and was extracted. In these circumstances, Reid interposed, and by paying the arrears, and becoming security for the rents of the next five years, obtained from the representatives of Sir James Montgomery an assignation of the decree of irritancy, they agreeing to waive the effect of it. This assignation was framed by Reid's son and agent, and bore to be

"as a collateral security to him (Reid) against the said Peter Lyon, and his heirs and successors, for the reimbursement of the sums so advanced, and paid to us (Sir J. Montgomery's representatives), by the said John Reid, and future interest and expenses which shall ensue thereupon," &c.

At the same time with this deed, another assignation, likewise drawn up and extended by Reid's son, was granted by Lyon. This last deed, which was duly intimated, bore to be an assignation, in absolute terms, of the lease in Reid's favour, in consideration of his advances, and of his having undertaken all the engagements in reference to it, prestable by Lyon. Notwithstanding this ex facie absolute assignation, Lyon continued to enjoy the lease until his death, in June 1826; Reid, however, always continuing to pay the rent to Sir James Montgomery's representatives. In February 1826, Mr Joseph Grant, Lyon's agent, and acting by his authority, addressed a letter to Reid's son and agent, in which, after expressing his desire to put Lyon's affairs on a better footing, he called on him, on behalf of his father, to exhibit " a statement of the nature and extent of your claim against him" (Lyon). This statement was, two days after, transmitted to Mr Grant, and contained an account of sums of money alleged to have been paid by Reid on Lyon's account, between the years 1815 and 1826. The account commenced with the sum of £218, 17. 44., advanced July 1815, being precisely the arrears advanced by him to Sir J. Montgomery's representatives, and on which sum was charged progressive interest, deducting property-tax, down to the month of February 1826, as being an ordinary debt due by Lyon. On receiving this state of debt, Mr Grant, 27th February 1826, wrote to Reid's son and agent, requesting to borrow, for a day or two, "the grounds of your claim on Mr Lyon." In answer to this request, Reid's son and agent called upon, and delivered to Mr Grant official extracts of the two assignations above mentioned, together with the precept of ejectment and charge thereon, and state of rents, &c., which grounds of debt were allowed to remain in Mr Grant's hands till June 1826, when Mr Lyon died. Reid then presented a petition for sequestration to the Sheriff of Edinburgh, in which libelling

himself as principal tacksman of the farm, in virtue of his assignation, and admitting, That the deceased Mr Lyon had occupied the farm since the date of the assignation, without paying any rent: That the heirat-law of Mr Lyon was entitled to enter into possession of the lease: That he (Mr Reid) was entitled to payment of the bygone rents paid by him, amounting to £815, 6. 43,-he concluded by praying, that the farm stocking should be sequestrated a proper person be appointed to manage and look after the crop, &c. on the farm; and that he (Reid) should be authorised to enter into the possession, in such manner as to be free from any claim for wrongously assuming the possession at the instance of the representatives of the said Peter Lyon," &c. The Sheriff sequestrated as craved; and soon after the pursuer, grandnephew of Lyon, raised the present action of declarator of redemption, in which alleging, that the assignations in favour of Reid were merely in security of his advances, and not intended to be absolute, -he concluded that the lease should be declared redeemed, on payment of these advances, and he, as heir of conquest, be entitled to enter into possession. The title of the pursuer as heir of conquest, being objected to, he raised a supplementary action as heir in general, which being conjoined with the former, the Lord Ordinary (4th December 1829,) pronounced this interlocutor:

"Finds, that although the assignation by the late Peter Lyon, the pursuer's granduncle, to the defender of the lease in question, bears to be an absolute conveyance, it is proved by the admitted facts and circumstances of the case, and the written evidence produced, to have been intended and understood by the parties merely as a security for repayment of certain arrears of rent advanced by the defender to the trustees of the late heir, Sir James Montgomery, the landlord, for behoof of the tenant, Peter Lyon: Therefore finds and declares that the pursuer, in right of his granduncle, is entitled to succeed to the lease: That the assignation by Peter Lyon to the defender is redeemable by the pursuer, on repayment of the sum of £218, 17. 4., the sum advanced at the date of the assignation, and whatever other sums the defender can instruct that he advanced for the said Peter Lyon on the faith of the security, with interest at the rate of five per cent. from the date of the said advances respectively, till payment; together with the expenses incurred by the defender in the transaction; and allows an account of the said advances, interest and expenses, to be given in."

The defender reclaimed against this interlocutor, maintaining That the assignation was, de facto, what it bore to be, ex facie, an absolute conveyance of the lease, and not in security; and that a trust could not be instructed by facts and circumstances, but only by the oath or writing of the alleged trus

tee.

Answered-The assignation in security by Sir J. Montgomery's Trustees, framed and extended by the defender's own son, viewed in connection with the fact of the advance of £218 at the time of the assignation, and other subsequent advances, being considered by the defender as debts against Peter Lyon, and not as the price of the lease, sufficiently establishes the limited character of the other assignation.

The Court unanimously adhered, with expenses, and remitted to the Lord Ordinary to modify the

same.

His Lordship, on 15th December 1830,

"Finds, decerns, and declares against the defender in terms of

the libel, upon payment being made to the defender of the sum of £1217, 19. 7. Sterling, being the balance due by the pursuer to the defender upon the state of the payments of rents, &c. made by the defender upon the faith of the security in question, with interest on the amount of the defender's advances from 2d February 1827, at the rate of 5 per cent. till payment; finds the pursuer entitled to the expenses incurred by him in the conjoined actions; but, in respect that the first summons was rendered unnecessary by the pursuer's claiming as heir of conquest, finds him not entitled to the expense of that summons, or the proceedings occasioned by the pursuer's claiming in the said character; appoints an account thereof to be given in, and remits to the auditor to tax, and to report."

Reid reclaimed, but the Court adhered. He then appealed, pleading a reversal-I. Because it was never intended or understood, when the appellant acquired right to the lease in question, that he should hold the same in security, or in trust, for the late Peter Lyon or his heirs, and there is no fact or circumstance from which it can be inferred that this was the intention or understanding of the parties.-II. Because the proceedings adopted against the appellant have been irregular, oppressive and illegal. It was irregular to conjoin the incompetent with the competent process; and expenses ought not to have been given against the appellant.-III. Because the greatest injustice is done to the appellant, even on the assumption that the respondent could establish his pretended right to the lease in question. Answered I. The respondent has a good right and title to insist in the present action.-II. The judgments appealed against are well founded both in fact and law. -III. The appellant was competently and justly found liable in expenses.

Lord Chancellor.-My Lords, there is a case of Reid v. Lyon, which stands for judgment, which brings before your Lordships an appeal from six different interlocutors of the Lord Ordinary, and the First Division of the Court of Session. I do not feel it to be necessary to enter at large into the circumstances of the case, nor assign reasons for the judgment I am about to recommend to your Lordships to pronounce. The point to which the argument has directed the attention of your Lordships is, whether the assignation of a certain lease, which was made by the ancestor of the respondent to the appellant, was granted to him for the purpose of conferring upon him an absolute right of property? or whether it was granted only with a view of being a security to him for the payment of a debt, and therefore redeemable? The conveyance or assignation appeared upon the face of it to be absolute; and the principal question now to be determined by your Lordships is, whether we can look beyond the words of the conveyance; and whether, if we can, the facts do afford sufficient evidence of an intention distinct from that which the words express? The terms of the conveyance appear to vest in the assignee, the party to whom the lease was assigned, the absolute lease; and it is contended, that those words cannot be qualified by the facts of the case evidencing the intention of the parties. The Lord Ordinary was of opinion that the facts might be looked to; and the First Division of the Court of Session affirmed the judgment of the Lord Ordinary, on reference to those facts, that this lease was assigned only as a security for a debt. I am quite aware that it is necessary that great attention should be paid, in order to restrain this principle within its due bounds, and to prevent Courts adopting a possible conjectural construction, as showing the existence of intention,travelling out of the deeds themselves, for the purpose of fixing an intention upon the party by conjecture only,-not attending to that which is done, so much as to that which is supposed to have been the intention of the parties. But, my Lords, upon looking fully into this case, and the grounds upon which the decision has proceeded, I do not think that it can be said that it was decided on such conjecture, without travelling out of the deed. I