the

expense of dividing the commonty shall not exceed the full value and price of his (the defender's) right; and they have not condescended on any proportionate advantage to be derived from the division.

The answer to these pleas is contained in the following note, attached to the Lord Ordinary's interlocutor, pronounced 27th May 1830:—

"The Lord Ordinary having considered the closed record, and heard parties' procurators thereon, repels the objection to the title of the pursuers to insist in the present action; repels also the objection founded on the alleged inexpediency of the division to the defender: Finds Mr Boswell liable in the expenses incurred in consequence of the objections stated by him, and remits the account thereof, when lodged, to the Auditor to tax the same, and report; Sustains the pursuers' title to carry on the action, and finds the libel relevant; and grants commission to

to visit and perambulate, and to take cognisance, &c.-Note.-The Lord Ordinary does not think the objections to the title such as to preclude the pursuers from insisting. The trust-deed may, at the time of its date, have embraced the superiority alone, as Mr Graham had then the property of no part of the common; but after he had acquired the property of a part, and had consolidated this with the superiority by accepting a resignation ad remanentiam, the property necessarily merged in the superiority; so that, in regard to this portion of the common, there no longer existed two distinct rights. Mr Graham was in no way divested by the trust-deed, no feudal title having been made up by the trustees till after his death, at which time their Crown-charter and infeftment must have carried both property and superiority then consolidated. Neither do the terms of the trust appear to incapacitate the pursuers from insisting on a division, which, by the Act 1695, c. 38, is made competent to all having interest in the common. As to the inexpediency of a division, it does not appear to the Lord Ordinary to form a relevant objection. The cases founded on by the defender relate to march fences. The obligation to build, which rests upon quite different statutes from that which authorises the division of commonties, and the terms of the enactments are by no means the same. The Lord Ordinary knows of no case where the Court has refused to divide, because a division might not have been for the interest of all the common proprietors. On the contrary, in the case of Kilsyth, 13th February 1812, which is not reported, but is referred to in the report of Henderson and others against Malcolm, 29th June 1815, it appears from the Session papers that the objection of inexpediency, founded on the nature of the subject, and urged in almost the very terms which the defender has used here, was repelled by Lord Robertson, Ordinary, as irrelevant, and his interlocutor was adhered to by the Court."

The defender having reclaimed, pleaded-That the pursuers had no title to pursue a division of commonty under the trust-deed, as it conveyed the property for special purposes, connected with the interim management of it, by letting leases and similar acts, but did not empower them to carry on an action of this nature, the proceedings under which would be liable to reduction at a future period by those who should have the eventual and substantial right.

The Court altered the interlocutor complained of; sustained the objection to the title to pursue under the trust-deed, and assoilzied the defenders, with expenses. Pursuers' Authority.-Act 1695, ch. 38.

Defender's Authorities.-Earl of Peterborough, 18th June 1784. Earl of Cassillis, 28th February 1809.

First Division.-Lord Ordinary, Newton.-Act. Coventry.Alt. Boswell.-John Campbell, Jun. W. S., and Party, Agents. -Sir R. Dundas, Clerk.

HOUSE OF LORDS.

(Speeches taken from Mr Gurney's Short-Hand Notes.)
17th November 1830.

No. 64.-MARQUIS OF BUTE, Appellant, v. JOHN COUPER AND
OTHERS, Respondents.

Proving the Tenor-Obligation-Circumstances in which it was held, affirming judgment of the Court of Session, that a certain bond of annuity, alleged to have been lost or destroyed, once existed, and that it was unconditional;—that interest was payable on the instalments due under it; that it was delivered up by the annuitant when insane; and that it was still an existing obligation.

In the year 1809, the late Marquis of Bute appointed the late James Couper, son of Professor Couper of Glasgow, to superintend the education of his grandson, Lord James Stuart. Mr Couper was intended for the Church of Scotland, and he then held the situation of Keeper of the Hunterian Museum, with a salary of £65 a-year. After being some months in the Marquis's family, Mr Couper returned to Glasgow to prosecute his studies. On the 23d of June 1809, the Marquis wrote him as follows:

"Mr Moore has, I hope, acquainted you with my directions to him to present you fifty guineas for the trouble of your attendance on my grandson, and to make good, over and above, any expenses incidental to your coming from, or returning to Glasgow, or which may have otherwise occurred. Accept, at the same time, my hearty thanks for the unremitting care you have employed in fulfilling the object of your charge. Situated as I happen to be, without entering into further reasoning, I must observe to you the impossibility of holding out other prospects of assistance than what is personal to myself. Should a vacancy take place, for example, in the kirk of Rothesay, and you competent to the presentation, I pledge my word to bestow it in your favour. In the interim, did it suit your views and convenience to live in my house, I shall gladly receive you, offering you, in such case, a salary of one hundred pounds (£100,) and to add ten pounds (£10) more to defray the cost of washing. Such arrangement to date from the moment of your joining me-say the beginning of November next, after your examination. journey to be paid for by me; likewise those you may be called upon to make for the same purpose. This salary of £100 I propose continuing until you get the living of Rothesay, or that you are able to obtain a better provision. I am," &c.

Your

The proposal contained in this letter was not accepted of by Mr Couper, principally because he was not acquainted with the Gaelic language, in which the clergyman of the parish of Rothesay is expected, at times, to address his congregation. After some other correspondence, the Marquis of Bute, on the 8th of November, wrote Professor Couper in these terms:

"Having reflected upon the best means of securing to your son James a settled permanency, should he incline to attach himself to my house, I beg to state my readiness to execute a bond of annuity in his favour of £100, payable out of my landed property. Should the arrangement meet your approbation, it might perhaps preclude the necessity of so immediately attending to the preparations for the church, which could be carried on in any leisure moment. You will be so good to favour me with your answer so soon as you can, directed to London.'

On the 23d of November thereafter, an unconditional bond of annuity for £100 was granted by the Marquis in favour of Mr Couper; and he gave orders to his bankers to pay the annuity as it became due. Mr Couper having abandoned the idea of becoming a minister of the Church of Scotland, qualified him self to take orders in the English Church, in which the Marquis was able to promote his interest. In 181 1

he was presented to the livings of Landough and Roath, in Glamorganshire. He continued to draw his annuity down to the 26th of November 1812. In January or February 1813, Couper wrote his father, requesting that the bond might be immediately transmitted to him. The bond appears to have been sent, and delivered by Couper to the Marquis, who, on the 5th of February, then wrote his bankers, requesting "that the annuity, hitherto paid to the Rev. James Couper of £100, may be discontinued, that matter being otherwise settled;"

and, in a letter of the 10th of that month, Couper wrote his father:

"I must not forget to tell you, that I had a letter from Lord Bute, in which he mentions having received the bond.”

He then came suddenly from Cardiff to Sidmouth, where the Marquis and his family were residing. His manner was so singular, that the Marquis was induced to write the following letter to Dr Thomson, on the 23d of February 1813:

"I write to you on a very unpleasant subject; but I am bound to make the communication. Mr Couper came here last night, unexpected and uninvited, and I find he left Cardiff as suddenly, which occasions much animadversion. He declares,

that scruples of conscience, which only struck him about a week since, will not allow his performing his duty any longer; and over and above, he is determined to live in my family, and no where else. You know he has left Cambridge, striking his name out of the books. He says, his attachment is to Lady Bute, by whom alone he will be governed. In short, I am sorry to observe his entire conduct is that of strong derangement. His looks are alarming; and I don't think it safe to trust him to himself. Dr Thomas, our physician, tries to carry him to Exeter this morning, where he will leave him in the hands of a friend of mine, Dr Miller, who will write to you what is best to be done. If safe, the best method will be to carry him back to Cardiff, where you can send a proper person to take care of him. I shrewdly suspect he has been long ill. I remain," &c.

On the 26th of that month, Dr Thomson wrote to Professor Couper as follows:

"We have probably been waiting for some time to hear each from the other on the subject of James. Sorry I am to be obliged to take the lead-the enclosed but too strongly speaks for itself. I certainly thought there was a something about poor James I could not account for,-suspicious, apprehensive that he was an object of ridicule to the young men at College, and that he was pointed out and sneered at by the Professors at lecture. I did not know what to make of it, but did all I could to fortify his mind against such weak fancies, and most strongly deprecated his quitting Cambridge. My brother and my son were entirely of the same opinion; we recommended him to try another season there, but in vain. I confess, all this time I had no apprehension of what my Lord Bute's letter discloses. At the same time, there was that weakness, either of mind or body, about him, that some of us wished him to be at least near to the care of his parents. I shall write immediately to my Lord Bute, and also to Dr Miller, who (I believe) is my acquaintance, you will of course also write to Dr Miller. It is difficult to offer an advice on such an occasion."

Mr Couper was removed to Glasgow, where he remained till towards the end of the year 1813, when, having apparently recovered, he returned to Cardiff. Having relapsed, he was again brought to Glasgow, and placed in a Lunatic Asylum. He never recovered, and died in the year 1822. It appears that Professor Couper wrote to the Marquis respecting the bond in October 1814, but no answer was returned, and his lordship died shortly thereafter, and was suc

ceeded by the appellant. In 1816, the Professor purchased from Chancery a brieve of furiosity, and on the 9th of December, the jury returned a verdict, finding Mr James Couper had been insane since the 25th of December 1812, and still continued in that state. An action was thereafter raised against the appellant, concluding for delivery of the bond of annuity, payment of the arrears, and of the annuity to become due, with interest and expenses. The appellant pleaded in defence,-That the bond had been delivered up by Couper, with the consent of his father; that it was conditional; and that the action could not proceed, unless the bond was produced, or its tenor proved. The Lord Ordinary, on 20th November 1819, pronounced as follows:

"The Lord Ordinary, having advised this representation, answers thereto, with the productions and whole process, In respect that the very existence of the bond alluded to in the pleadings is not admitted by the noble defender, and that he affirms, that if such a bond existed, it bore a condition that the annuity thereby granted should cease, when the annuitant should be provided with a living in the Church of England, and should leave the family of the late Marquis of Bute, the Lord Ordinary is of opinion that the existence, tenor and contents of said bond, with the casus amissionis thereof, must first of all be proved in the usual way of a proving of the tenor in this Court; and that till such proof be brought, the case cannot be sent to a jury to ascertain whether the annuitant was insane or not, when he is alleged by the pursuer to have returned the bond to the late Marquis; and therefore sists this process until a proving of the tenor of said bond shall be brought and disposed of, or the pursuer refuse to bring it."

The Court of consent allowed a proof of the tenor of the bond, without going through the form of an action of proving the tenor. James Couper having died, a supplementary action was brought against the appellant, concluding for £900, as the arrears due under the bond, with interest. The actions having been conjoined, a proof was led, and the depositions of Dr Thomson and of Professor Meikleham of the University of Glasgow, both of whom had seen the bond, were taken on the part of the respondent; a state of the evidence, parole and written, was thereafter given in; and on 22d June 1827,

"The Lords having heard the counsel for the parties, and considered the state of the evidence, Find that the bond libelled must be held to have been unconditional, and to have been granted by the late Marquis of Bute to the late Reverend James Couper, for payment of £100 per annum, during Mr Couper's life, and to this extent decern, reserving all claims to expenses relative to this part of the cause."

The following issue was then remitted to the Jury Court:

"It having been decided by the Court of Session, by interlocutor dated the 22d day of June 1827, that an unconditional bond of annuity, dated on or about the 22d day of November 1809, was granted by the late Marquis of Bute to the late Reverend James Couper, for the payment of £100 Sterling per annum, during Mr Couper's life: And it being admitted that the said bond was, previous to the 10th day of February 1813, transmitted by the said James Couper to the said Marquis of Bute,- Whether, at the time the said bond was so transmitted, the said James Couper was of unsound mind, and incapable of managing his own af fairs? or, Whether, at the time the said bond was so transmitted, the obligation therein contained had been extinguished ?"

The Jury found

"on the first issue, that at the time the bond was transmitted by the said James Couper, he, the said James Couper, was

of unsound mind, and incapable of managing his own affairs: Find on the second issue, that at the time the said bond was so transmitted, the obligation therein contained had not been extinguished."

The case was re-transmitted to the Court of Session; and on 20th Dec. 1828,

"The Lords having heard this Note, apply the verdict of the jury Find the defender liable in payment to the pursuers of the sum of £900 Sterling, as nine years annuity due to the late Reverend James Couper, from the 23d day of November 1812 years, to the 23d day of November 1821 years, with simple interest thereon, since the same fell termly due, and decern, reserving all other claims competent to the pursuers under the said verdict and conclusions of the action, and to the Noble Defender his defences thereagainst, as accords, and remit to the Lord Or. dinary to hear parties thereon; and do as to him shall seem just: Allow interim decree to be extracted accordingly."

The Marquis of Bute appealed to the House of Lords, pleading-I. That the way in which the bond came to be lost or missing, ought not only to have been proved, but the precise tenor of all the substantial parts of it ought to have been established by unexceptionable parole evidence, or written documents, such as a draft or copy of it; and that the bond was not of the tenor deponed to.-II. That the bond was only intended to continue in force until Couper was otherways provided for; and it was given up with the privity of his father; and III. That there was neither evidence nor probability of interest being stipulated in the bond, on each half yearly payment. The respondents answered-I. After the verdict of the Jury, and recorded admissions of the appellant, there is no finding in the interlocutors appealed from, which can competently or consistently be made the subject of complaint under the present appeal.II. Even if it were competent for the appellant to maintain, in opposition to the verdict of the Jury, that the bond of annuity was conditional, the reverse is distinctly established by the evidence; and the interlocutor of 22d June 1827, first appealed from, establishing the existence and unconditional nature of the bond, was competently and justly pronounced.-III. There was nothing in the conduct of Professor Couper, or of his son, which created any objection to the recovery of the bond sued on; nor is there any irregularity in the decree pronounced by the interlocutor of 20th December 1828, second appealed from, or in the prior proceedings in this cause.

(16th November 1830.)

Lord Wynford.-My Lords, I think it would be wasting your Lordships' time to allow the Learned Counsel for the respondents to argue this case. My Lords, it appears to me to be perfectly clear, notwithstanding the very able arguments you have heard from Dr Lushington and Mr Campbell, that there is not the least pretence for disturbing this judgment. A great many observations have been made upon the evidence, as to the state of mind of this gentleman at the time of the delivery up of the bond, which is the only material point. Now, it appears to me, that we are precluded, considering the effect of that evidence-if we were not, I agree, there are many important observations which might be made, as to the condition of this gentleman at that time; but the jury have found the fact of the insanity at that time, and it is not now open to your Lordships to consider the propriety of that finding.

The Earl of Radnor.- I beg pardon for interrupting the Noble and Learned Lord; but, I confess, it appears to me

that the usual mode of proceeding is, when the appellant has gone through his case, that the respondent is to answer it, and the appellant replies. If there is any reason for going out of the usual course of proceeding in this case, we must discuss the reason for so doing in the absence of the Learned Counsel; and, I confess, it would be with great diffidence I should object to any course of proceeding propos ed by the Noble Lord, but, at the same time, I should be glad to hear his arguments for a departure from the usual course of proceeding; and I should be glad to hear the Noble Lord's reason for deciding without hearing Counsel on the other side. The Noble Lord will excuse me for interrupting him.

Lord Wynford.-Counsel will withdraw.-(Counsel withdrew.)-I consider they have withdrawn. We have never considered it necessary that they should actually withdraw, because it is better they should be present to hear the reasons upon which the judgment is given. If any Noble Lord entertains the least doubt, it is fit that the case should go to its end; but I thought it so clear, that it would be a waste of your Lordships' time to hear it any further argued. I have so much respect for the opinion of any one of your Lordships, that if any Noble Lord entertains the shadow of a doubt, I should think it fit that the case should be heard to the end. If your Lordship expressed a doubt, I should wish the case to be heard through.

The Earl of Radnor.-I confess I should like to hear the case go on. I hope for the indulgence of your Lordships for suggesting any thing in opposition to the opinion of the Noble and Learned Lord; but, I must confess, I should like to hear the case go on. The point is this: I quite agree with the Noble and Learned Lord, that it is most desirable to set up the opinion of the jury; but it does not appear to me, that the opinion of the jury is decisive of the case; and though, in point of fact, this gentleman may have been insane at the time the bond was given up, which the appellant does not presume to contend against; and though the verdict may have been correct upon the other point, namely, as to the condition of the bond, and the obligation therein contained-

Lord Wynford.-There is no verdict upon that.

The Earl of Radnor.-The issue is," Whether, at the time the said bond was so transmitted, the obligation therein contained had been extinguished ?"

Lord Wynford. That does not touch the previous question; that was not submitted to the jury.

The Earl of Radnor.-I confess, as the whole of the arguments have struck me, I think it is desirable to hear the Counsel argue it.

The Counsel for the respondents were then heard, and Dr Lushington was heard in reply.

Lord Wynford. We will give judgment in this case tomorrow morning.

Earl of Radnor.-Perhaps your Lordships will excuse me, as I took upon me, in the course of the cause yesterday, to interrupt the proceedings, by suggesting to the Noble Lord at the table, a request that the cause might not be summarily decided, but that we might hear the respondents in this case, if I detain your Lordships for a few moments, while I express the grounds on which I have now come to the same decision at which the Noble and Learned Lord on the Woolsack had arrived, on hearing the Counsel for the appellant. The Noble Lord, from his knowledge of the law, and his great habit of discussing these subjects, came to the conclusion much sooner than I was prepared to do ; but on further hearing of the case, and a consideration of all which has been urged, I feel myself bound to come to the same conclusion, but not without considerable pain and some difficulty. It appears to me, I confess, that the whole justice of the case lies on the other side; that there is no

ground whatever for imputing to the late Lord Bute, the present appellant's grandfather, the having entered into a simoniacal contract; and that there is no ground for imputing any unfair dealing to the present appellant, the present Marquis of Bute; but it appears to me that the present appellant is precluded from the remedy he might have obtained, and becomes a defeated party in this case, in consequence of his own benevolent feelings towards the family of the Coupers, inasmuch as he was willing to waive all legal objections, and unwilling to take advantage of forms; and if satisfactory evidence was produced of the contents of the bond, he declared that he would not stand on forms of technicality. It appears to me, that, if it had been his wish to have stood on those forms of technicality, he might have defeated the claim upon this bond; but he waived that right, as it appears, solely from kind and benevolent feelings to the family of the Coupers, and in consequence of that, the jury have found that Mr Couper was not of sane mind at the time he delivered up the bond; and I cannot help coming to the belief, from the evidence, however imperfect that evidence may be, by Dr Meikleham and Dr Thomson, that the bond was a bond for an annuity for life. Under all the circumstances, I think that the appellant is precluded from any further proceeding, and that the interlocutors of the Court below must be affirmed; and I have only further to apologise for having been the occasion of occupying the time of your Lordships' House by a continuance of the argument; but it is satisfactory to my mind, that the House has allowed the case to go to its end, by which I have come to a decided opinion, at which I had not arrived on the hearing of the appellant's Counsel, that the interlocutors of the Court of Session must be affirmed.

Lord Wynford.-My Lords, I beg to return my thanks to the Noble Lord who has just spoken, for the very great attention he has paid to the argument of this, and all the cases of appeal which have come under the consideration of this House, since I have had the honour of being called upon to assist your Lordships in the decision of them. I entertained yesterday, certainly, a very strong feeling, but a person of the Noble Lord's great intelligence expressing a doubt, I was more anxious to examine the case again and again, before I came to a final determination; and I am glad that the case was heard through, because, undoubtedly, as it is not a case entirely free from circumstances which ought to create doubt, it ought to be most maturely considered; and, when we recollect that this is the last time at which it can be inquired into, it is undoubtedly fit that it should be sifted to the bottom. I beg to state to your Lordships, that I never did think there was the least pretence for imputing any thing like blame, either to the late Noble Marquis or to the present appellant. I have no doubt, that, although when the late Noble Marquis received back that bond, if he had looked at the terms of it, he would have seen, that, under the circumstances of the case, he was not entitled to demand it, he satisfied himself in his own mind, that the delivery of it back was an act of generosity on the part of Mr Couper, who, when he found himself properly provided for, through the kindness of the Marquis, thought proper to give up this bond; and I think the Noble Marquis, though there was no condition of that sort expressed, might be under the impression that there was a tacit understanding, that, when Mr Couper should be in a condition, in consequence of provision in the church, to do without such aid, the annuity secured by the bond should be given up; and I think the present appellant owed it to the memory of his grandfather to put the party claiming to a proof of his case. The Noble Marquis, from the beginning to the end, has shewn that it is not his disposition to defend himself by matters of form; for he has waived all objections in point of form, and has been most desirous that this case should be decided on the grounds on which it is

placed for the Court to decide on the substance. My Lords, I will not go into all the particulars of this case; but there were originally four questions. The first was,-Whether any bond existed, and what was the extent of that bond? The second question was,-Whether any interest was payable on the instalments due upon that bond? The third question was,-It being taken for granted, and the fact being undoubted, that the bond was given up and destroyed, Whether there was a delivery up by the person, with a view of putting an end to the obligation which Lord Bute was under, of paying this annuity? or, Whether it was put an end to in consequence of the fact being that he was not capable of judging of the transaction? The fourth question is,-Whether the obligation was extinguished by any act done by Mr Couper? or, Whether it was still a subsisting obligation ?-a question properly raised, for the purpose of removing any difficulty which could possibly arise. The two last questions are put an end to by the verdict of the jury; for the jury have found that Mr Couper was insane at the time of the delivery up of the bond, and that the obligation is still an existing obligation, the nature of it not having been affected by any act done by Mr Couper. There, however, remain the two other questions, namely, the question of interest, which is hardly made a point here, or in the Court below; though, in the English Court, no interest would be due, I think there cannot be a doubt, that, by the Scotch law, interest is due; and I wish that, in this respect, the English law were assimilated to the Scotch; for I think it is equitable that, if a man retains the money of another, and deprives him of the means of making a beneficial use of it, he should pay for the use of it. That is the Scotch law, though not the English law, unless provided for by contract between the parties; and I should, therefore, humbly submit to your Lordships, that there is no weight in this objection. This brings me to the only other question, namely, Whether a bond existed, and what was the nature of it? That a bond existed there is no doubt, for there is Mr Chalmer's charge for it; and the subsequent case admits that a bond existed. Then, what was the nature of that bond? Was it a conditional, or an absolute bond? If it was an absolute bond, it continued an absolute bond, securing an annuity for life; and the annuity continued payable up to the period of Mr Couper's death; and, in that case, the sum found due by the Court below would be perfectly correct. Your Lordships will recollect there were here unquestionably two bargains: one an inchoate bargain, for it was never completed, it being intended that this gentleman should go into the Church of Scotland. The Marquis of Bute at first intended to make Mr Couper a compensation for the pains bestowed upon his grandson, by presenting him to a benefice in the Church of Scotland. But it will be material, before I call your Lordships' attention to the evidence, in respect of this bond being an unconditional bond, to desire your Lordships to advert to the distinction between the terms in the letters of Lord Bute;-in respect of that first proposition, and the subsequent proposition, it being quite clear, that, when the first proposition was made, no bond was ever intended to be given, but that it was intended to rest upon the personal obligation of the Marquis,-" until you get the living of Rothesay, I will give you L100 a-year, and L10 a-year for your washing;" but no further consideration was then intended. Your Lordships know, that that went off in consequence of Mr Couper not being able to make himself sufficiently acquainted with the Gaelic language, to qualify himself for taking that living; and, afterwards, Lord Bute appears to have been very anxious that Mr Couper should have the care of his grandson, and then he writes him a letter, which I am now about to read,—and I think it most important, as your Lordships will perceive the difference between that letter and the former, to which I have before alluded, which

referred to an engagement which was considered to be of a temporary nature. The letter is addressed to Dr Couper, the father, and is in these terms:-" Sir, having reflected upon the best means of securing to your son, James, a settled permanency, should he incline to attach himself to my house, I beg to state my readiness to execute a bond of annuity in his favour of L100, payable out of my landed property. Should the arrangement meet your approbation, it might, perhaps, preclude the necessity of so immediately attending to the preparations for the Church, which could be carried on in any leisure moment. You will be so good to favour me with your answer as soon as you can, directed to London. -I am, Sir, your most obedient humble servant, BUTE." So that your Lordships see now the Church was no longer looked to; he had given up all idea of his getting into the Church, and looked only to that which, in the language of this letter, is described as settled permanency ;" and this letter states that which is material, that that settled permanency was to be payable out of his Lordship's landed property, which is a circumstance affording strong confirmation to the evidence of the witnesses. This proposal is acceded to, certainly, with the salvo that the young gentleman is to be consulted whether he will agree to it,-if he agrees to it, it is to be considered as settled. I conceive it is to be taken for granted that he agreed to it; for the bond was afterwards executed. Now, it is a vast assistance in the administration of justice, when the frail memory of man can be assisted by written docu ments. Your Lordships perceive here, there is no expression in the letter implying that the same idea still continued, which existed in the mind of Lord Bute when he wrote the first letter; if it had, it is natural to sup pose, he would have said-I make you this, not as a permanent but as a temporary settlement, to continue until you get something better. It is important, when we are obliged to trust so much to parole testimony, to have that confirmed by such a document as this, in which he says-it is to be payable out of his landed property; and that it is material to shew the permanent interest in which Lord Bute was willing to secure to this young man. If Lord Bute was about to secure to him a payment for five or ten years, would it be natural that he should give a security on his landed property? Would not the personal bond of Lord Bute have been sufficient? Would it not have been an act of impertinence and ingratitude, if this gentleman had solicited his Lordship to give him more than his personal bond, and have suggested that it ought to be a charge on his estate? An engagement of that duration probably would not have lasted beyond the life of Lord Bute, but we know, however well conducted the affairs of a family may be in one life, in another the state of things may be very different; and, considering the security to be one to continue during the life of this young gentleman, it is but justice to the Noble Marquis to say, that he might feel that no other security than the one affecting his land might perfectly effect the object which he stated himself to have in view, namely, the furnishing to this individual a permanent income. We next come to the parole evidence; and I perfectly agree with the Noble Earl, whose assistance your Lordships have had, that it is imperfect. It is undoubtedly a very awkward thing to have the contents of a written instrument of this sort proved by parole testimony, but in numerous instances, where written instruments are lost or destroyed by those various accidents which occur, there is no other way in which the contents of those instruments can be proved. It is said in the present case, there is no scroll or copy,—its contents, therefore, can be proved only in one way, that is, by the testimony of witnesses. If the testimony of witnesses was not competent evidence of the existence of such an instrument, men would be subject to the hardship of losing their rights, and God forbid that such should be the case. Then, if it is the law

that such an instrument may be proved by parole testimony, the law must adapt itself to the infirmity of our condition. Those who frame our laws know that human memory is subject to inaccuracy, and that the first perception is fre quently erroneous, that the perception may be imperfectly retained, and that different parts of an instrument will be retained by different persons,-this is well known to all persons who attend to subjects of this kind; and your Lordships will find in this case, on referring to the testimony of those two respectable gentlemen, one the Professor of Moral Philosophy in the University of Glasgow, a situation which predicates every thing connected with knowledge and the exercise of the mind, that there are between his testimony and that of the other witness, material discrepancies, but they are discrepancies only of such a nature as are considered by the best writers, instead of weakening, actually to confirm the testimony given. Both those persons, however, state this to be a charge on the land, taking the character of an heritable bond. There is no doubt that your Lordships decided a few days ago, that in order to constitute a bond— an heritable bond-there must be a variety of forms and solemnities which this bond does not appear to have had. It was a bond of that nature, that Mr Couper might, if he had suspected dishonour or injustice on the part of this family, which it was impossible he should, considering that he was bound to it with so much gratitude,-if he had, he might have had it converted into an heritable bond. If the Court of Session had seen that it was the intention of the parties that it should be an heritable bond, that Court would have decreed that the instrument, in conformity with the intention of both parties, should be so held. To this instrument those persons speak. The effect of their evidence must be taken to be, that it was the wish of both parties that this should be a bond affecting the land, and nothing short of it. And when we see how many instances occur in which there is great opulence in the parent, and which does not continue with the son, it is the sort of security which would naturally be given, where it was to continue for the life. The occurrence to which I have referred was not likely in the present instance; but when we see how frequently the property of the father is dissipated by the son, nothing short of that security would have fully satisfied that intention, which, in justice to the late Marquis, I am bound to say it was his anxious desire should be made, namely, the giving a permanent income to this young gentleman. Under these circumstances, my Lords, if this case had come before me as res nova, I should have decided as the Court of Session have done. I should have held that this was a security for life, affecting the landed property. But it does not come before your Lordships as res nova, but it comes before your Lordships, after having been unanimously decided by the Court of Session, and I think it is fit, that the judgments of the Court of Session should be sustained, wherever, consistently with our duty, we can sustain them; and it furnishes a strong presumption that the view taken by the Court of Session is correct; when, as in the present case, your Lordships perceive it is the unanimous decision of the learned Judges. I move your Lordships, that the interlocutor of the Court below be affirmed with L50 costs.

Judgment affirmed with £50 costs.

Second Division.-Lord Cringletie, Ordinary.-For the Appellant, Dr Lushington and J. Campbell, Esq.; James Chalmer, Esq., Solicitor.-Alexander Bruce, Writer, Edinburgh, Agent.

For Respondents,-Sergeant Spankie and Patrick Robertson, Esq.; Alexander Dobie, Esq., Solicitor.-J. G. Hopkirk, W.S., Agent.

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