ance and repair down to the year 1858, after which no money was allocated or expended upon them.

The minutes of the Inverness-shire Road Trustees from 1803 to 1878 have also been produced, and these minutes show that in 1814-15, 1818, and 1821 considerable sums were expended by the County Road Trustees on the Guisachan Road, and other evidence in process shows that money at these early dates was expended by the trustees on this road. Presumably therefore the road has been treated as a road under charge of the road trustees from a very early period.

But no money has been expended on the Guisachan Road by the trustees since 1858. Since 1860 it has formed the private avenue to Guisachan House, and has been maintained by Lord Tweedmouth.

In 1879 the Roads and Bridges Act 1878 was adopted by the county. In the list of roads taken over by the trustees under section 41 of that Act this road is not included. If it legally was a district road it must be held to have been finally abandoned by the trustees, because it is enacted by that section that the roads, highways, and bridges on such list, and no other, shall be maintained and repaired out of the assessments levied under the Act. Presumably the road was not included in the list, because there was no such public use of it as to justify its retention as a district road.

Such being the facts, in my opinion neither the Guisachan Road nor the Cougie Road was a public road such as the road trustees were entitled to maintain out of the public assessments. The Guisachan Road led only to Guisachan House and the Old Meal Mill, where there were three or four houses only, and the Cougie Road led only to a shepherd's cottage, passing one or two houses on the way. Of this road the Lord Ordinary says that there never was a road, in the proper sense, from Guisachan Mill to Cougie, and that it was a mountain track not leading to any place, and not really required for public purposes. He says again that there was no population whose wants were to be supplied, because the path led only to a shepherd's house.

This is

all true, and it shows the kind of road on which the trustees considered it consistent with their duty to expend the public assessments. The Lord Ordinary has held, I think rightly, that this Cougie Road is not a public road, and therefore it follows that the expenditure upon it by the road trustees was illegal, and that there was no appropriation of it to the public.

But I am unable to see any such difference between this road and the Guisachan Road as can warrant me in coming to a different conclusion with regard to the latter from that at which the Lord Ordinary has arrived with regard to the former.

In the case of the Guisachan Road there was no doubt an existing road, upon which somewhat larger sums of money had been expended than on the Cougie Road, and there were a few more people living at the Guisachan Mill than at Cougie, to whom, and to whose friends when they came to see them, the road no doubt was an accommodation, and there is evidence that a neighbouring farmer occasionally-but only very occasionally-sent grain to be ground at the old mill. But these do not constitute the public, and

v. Ld. Tweedmouth

March 10

there is no other evidence of public use, and that being so, I do not think there is any other material difference between the two roads.

To hold such roads to be public roads would be a serious matter, because in that case the road trustees would be bound to maintain and repair them at the expense of the public, who would derive no corresponding benefit from the expenditure. I think it is a mistake to say that such roads were maintained for the benefit of the public.

They were maintained for the benefit of the Guisachan estate, and the proprietors and tenants thereof, as apparently certain other roads in the district in a similar situation were maintained for the benefit of the respective proprietors on whose estates they were situated, who paid large assessments themselves, and who no doubt were very glad to get if they could a contribution from the assessments to assist in their maintenance, or, as appears to have been sometimes the case, to recoup themselves in sums they had previously expended on them. As regards the rights of the public, I do not think the Guisachan Road was any more appropriated to public purposes than the Cougie Road.

The

But even assuming that the Guisachan Road was a proper district road, and was properly maintained by the trustees, I should not draw from these facts the inference which the pursuers maintain must be drawn. They say that there must be presumed to have been a grant by the proprietor of an unconditional public right of way such as is presumed from prescriptive use. I think that the grant to be presumed is that the road was made over to the road trustees to be maintained as a district road, and subject to all the incidents attaching to such a road, including. for example, a right to apply to the trustees to have it closed if of no public use-a grant irrevocable, perhaps, but not unconditional. Lord Ordinary remarks-"It is a matter of general experience that the acquisition of a road by purchase is a very unusual thing, and that the more usual, if not universal, arrangement is that in which the proprietor gives the site of the road in consideration of the benefit to his estate of having a way made through it, while the road trustees undertake the cost of making and maintaining the road, or, as the case may be, of putting in repair and maintaining an existing road." That probably is a correct representation of what takes place in such cases. But what is to be the result if, as in this case, the road trustees abandon the road so given to them? If the consideration in respect of which the proprietor is presumed to give the road is that the road trustees are to undertake to repair and maintain the road, and if they, as the representatives of the public, refuse to continue that undertaking, then it appears to me that the road should revert to the proprietor in the like condition in which he gave it, and free from any right of way. It does not appear to me to be consistent with justice or equity that where one of the parties to the contract breaks it by non-fulfilment of the conditions he should nevertheless enjoy the benfits of it unconditionally. If therefore this road was at one time a proper district road I think that on its abandonment by the trustees it reverted to the proprietors free from any public right of way. The Lord Ordinary further says "Nothing

v. Ld. Tweedmouth

10

that I decree will prejudice the right of the defender to apply to the County Road Trustees to have the road shut up as being no longer necessary for the accommodation of the public should the facts warrant such an application." But the County Road Trustees have now no power to close this road, because it is not on the list of roads taken over by them, and it is only these roads, and no others, that are under their control and management.

Moreover, at common law the road trustees have no power whatever over a right of way acquired by the public such as the Lord Ordinary has decerned for in this case. They cannot close a road over which a public right of way has been acquired. Such a right of way, and a district road under statutory management are in contemplation of law two entirely different things.

Reference has been made to certain cases in which it has been found that if a superior or proprietor lays out a piece of ground, a road, a square, or a garden, for the use of his feuars or disponees it is evidence of an appropriation of the subject to their use, which in conjunction with evidence of actual use may satisfy a court of law that the subject was irrevocably appropriated to public uses so as to disentitle the owner to shut up the subject or to convert it to other uses. I do not see, however, that cases between disponers and feuars, or superiors and vassals, in which the public are not concerned, can have any bearing on a question between a proprietor and the public such as this is.

Neither do I think that the class of cases referred to by the Lord Chancellor in Dyce v. Hay, of village greens and playgrounds, presumed to be dedicated to the public, apply to this case. A different class of considerations arises in these from any we have here.

For these reasons I am of opinion that if the claim to this road had been competently raised on the record it ought to have been repelled, and the defender assoilzied from the whole of the fifth conclusion of the summons as regards Road No. 1.

The only other question submitted for our consideration was this-The Lord Ordinary finds that there is a public right of way for carriages, horses, and cattle by the way No. 6, and by so much of the way No. 5 as connects Glenmoriston directly with No. 6, and ultimately with the Strathglass County Road.

The road thus found by the Lord Ordinary to exist is described in the summons as "a road leading from the road first above described (No. 1) at a point 220 yards or thereby south-west of the gatekeeper's lodge at Tomich, crossing the Road No. 7 at a point 550 yards or thereby northeast of Balcaddich," thence running as therein described.

It is to this part of the finding of the Lord Ordinary as to Road No. 6 that the defender objects. The defender's admission with regard to the road is that there is a drove road from Glenmoriston to Tomich by Road No. 6, by a line (shown on a plan produced) which does not materially differ from the line claimed by the pursuers, until it reaches a point marked H on the plan, and then it is described as running "thereafter by the road leading past Guisachan steading to Tomich, also coloured brown on the said plan." This point H, as I understand.

corresponds with the point described in the summons as being 550 yards north-east of Balcladdich.

The question therefore is, whether the proper line of Road No. 6, from this point to Tomich, is round by Road No. 1, or by the road leading past Guisachan steading?

This is a question of very considerable importance to Lord Tweedmouth, because Road No. 1 is now the avenue to his house, and by the findings in the interlocutor part of the drove road runs along a part of it.

It will be observed that there is no admission by the defender that the part of Road No. 6 in dispute is the proper line of the drove road. It

is not contended that both alternative lines from the point in question are to be maintained, and there is little or no evidence as to which of the two is the more suitable line for the drover public. But the road claimed by the pursuer has been closed since 1860 without any objection from the portion of the public chiefly interested, the drovers, or from anyone else. I think it may be safely concluded that the alternative road has been found equally convenient by the public, and I think it may reasonably be supposed that Mr Winans does not altogether represent the public interest with regard to this road.

The question does not seem to have been brought under the notice of the Lord Ordinary, at least there is no allusion to it in his note. On the whole, I think that the Court should find that the line of road is that admitted on record by the defender. This exhausts all the questions argued before us.

LORD PRESIDENT-I have had the advantage of reading and fully considering the opinion which has just been delivered by Lord Adam, and I entirely concur with his Lordship throughout.

LORD MURE--On the question raised as to the bridges I concur substantially in the result at which the Lord Ordinary has arrived, very much on the same grounds as those which have now been explained by Lord Adam, and subject to the qualification which has been suggested in his opinion.

I

But as to the rights of way claimed I cannot altogether agree with the Lord Ordinary. differ from him in his finding as to right of way No. 1, in so far as he decides that there is a public right of way from Tomich to Guisachan Old Mill, which is not alleged in the record to have been a public place, and is now beyond doubt not a place of that description. The Lord Ordinary has, however, found this road to be a public right of way from Tomich to the Old Meal Mill, while he has negatived the claim to have it declared public beyond that place, and on to Cougie, Glenmoriston, and other places mentioned in the summons. As regards the portion from the old mill to Cougie and Glenmoriston, &c., I agree with the Lord Ordinary. I think that there is no evidence sufficient to instruct the existence of any road beyond the mill, with any pretensions to the character of a public right of

way.

That being so, the question as to Road No 1 is reduced to the portion which leads from Tomich to the old mill, and upon this I agree in the view Lord Adam has taken of the case. The

old mill is not now a public place, for it has for long ceased to exist; and in the view I take of the evidence it never was a public place in the sense in which that expression is understood in dealing with questions of this description. There being admittedly no road beyond the mill in the direction of Cougie, it was not a place the general public had anything to do with, or ever required to go to, and the road to it was merely for the use of those who required to go to the mill, viz., the tenants on the Guisachan property or any other parties who required or were entitled to have their grain ground at the mill. There is,

as I read the proof, no sufficient evidence of this road having been used for any other purpose; and as there is no public right of way beyond the old mill it is difficult to see who the public were that were to use the road from Tomich to the mill except those who required to go to the mill. In the most favourable view of the case therefore for the pursuer, the use, as I conceive, amounted to nothing more than the use of a servitude road to a mill, and when the mill ceased to exist, which it did many years ago, that use necessarily came to an end. That is the view I take of the evidence of use apart from the question raised upon the proof, though not upon the record, as to the effect of the expenditure made by the road trustees upon a part of the road for some years prior to 1861. Upon that point I concur in the opinion of Lord Adam. The Court pronounced this interlocutor:

"Recal the Lord Ordinary's interlocutor: Find and declare in terms of the second conclusion of the summons, and of the first alternative of the third conclusion of the summons, with the exception of the portions of the said conclusions relating to the bridge erected across the Leth Alt Burn, of which it is unnecessary to dispose, the said bridge having been removed by the defender since the date of the summons: Find and declare with reference to the fifth conclusion of the summons, and of consent, (1) that there is a public right of way for passengers, horses, and cattle and sheep from Glenmoriston to Strathglass by the road marked No. 5 on the plan, No. 6 of process, produced by the pursuers, from Glenmoriston to the point where it meets the road marked No. 6, and therefrom by the road marked No 6 on said plan, until it reaches the north side of the Burn Allt Ball a Chladaich, and thence by the track or course coloured brown, and marked with the letters G H on the plan produced by the defender, No. 10 of process, and thereafter by the road leading past Guisachan steading to Tomich, also coloured brown on the said last-mentioned plan; and (2) that there is a public right of way for passengers, horses, and cattle, and sheep by the road from Corriemony, marked No. 7, to the point where it meets the road marked No. 7в on the said plan, and thence past the Guisachan steading to Tomich by the road coloured brown on the said plan produced by the defender: Quoad ultra assoilzie the defender from the conclusions of the summons, and decern: Find neither party entitled to expenses."

(Before the Lord Chancellor (Halsbury), Lord Watson, and Lord Macnaghten.)

EDWARD (MRS BAXTER'S EXECUTOR) 7. CHEYNE AND ANOTHER (DR BOYD BAXTER'S TRUSTEES).

(Ante, June 27, 1884, 21 S.L.R. 670, and 11 R. 996.)

Husband and Wife-Jus Relicta-Implied Renunciation- Wife's Signature to Husband's Settlement.

A husband by his trust-disposition and settlement gave his wife the liferent of his whole means and estate, and in the fourth purpose directed his trustees "after the death of the survivor of me and my said wife, and with her consent and full approval (in token of which she has subscribed this deed),' to pay over a large number of legacies, many of them to relatives of his wife. By the fifth purpose he directed that after the death of his widow his household furniture should be divided among certain of her relatives. The residue was to be devoted to religious and charitable purposes. The wife signed the deed. She survived her husband only a few weeks. Her executor. in a multiplepoinding brought by the husband's trustees, claimed her terce and jus relictæ, maintaining that her consent had been given to the legacies only, and not to the whole settlement.

Held (aff judgment of Second Division) that the fourth purpose and the antecedent provision of liferent were so intimately connected with each other that the wife by her consent to the legacies must be regarded as having assented to her husband's disposal of the whole estate.

This case is reported ante, June 27, 1884, 21 S.L.R. 670, and 11 R. 996.

The claimant Allan Edward, Mrs Baxter's executor, appealed.

At delivering judgment—

LORD WATSON--My Lords, I have come without difficulty to the conclusion that the interlocutors appealed from ought not to be disturbed.

The general principles of law applicable to the case have not been disputed. When there is no antenuptial contract, and the husband makes a voluntary provision in favour of his widow, as in full of her legal claims, she is put to her election, and in the event of her death before she has had the opportunity of making her choice, the right

Edward v. Baxter's Trs., March 12, 1888.

On

of election passed to her representatives. the other hand, if the wife has consented to accept the provision in substitution for her legal claims she may retract her consent as a donatio inter virum et uxorem, but her right of revocation being strictly personal cannot be exercised by her representatives.

The case of Borrie v. Coldstream (5 D. 1297) is an authority to the effect that the consent of the wife may be effectually given by her subscribing for that purpose a testamentary deed of the husband standing unrevoked at the time of his death. The same point_was decided by this House in Dunlop v. Boyd (3 Macph. (H. L.) 46), in which it was held that the wife's consent remained valid and binding on her representatives, although the husband had subsequently revoked certain portions of the deed which did not affect the wife's provision, or the conditions upon which her consent was given. In Leighton v. Russell (15 D. 126) Lord Fullerton (p. 132) expressed an opinion that a wife's consent expressed by her signature to a deed, revocable at the will of the husband, ought not to exclude her legal rights, but his opinion was not shared by the majority of the Court, and it is in direct conflict with the subsequent decision of this House in Dunlop v. Boyd. The points actually decided in Leighton v. Russell do not appear to me to touch the present case. There the husband survived his wife, and after her decease he revoked all prior settlements executed by him, and made a new testamentary disposition of his whole means and estate. After his death the wife's next of kin sued his executor for their share of the goods in communion at the time of her death, the defence of the executor being that the claim was extinguished by the wife's consent to the revoked settlement. It was admitted that the deed was not extant, and the executor, in order to instruct his defence, brought an action for the purpose of proving its tenor. The majority of the Court gave judgment in favour of the wife's next of kin upon these two grounds-(1) that the efficacy of her consent was dependent upon the deed becoming operative; and (2) that assuming its tenor to have been as alleged by the executor, her consent related exclusively to her rights in the event of the husband dying before her, and had no reference to the rights arising to her next of kin upon her own predecease.

By his trust-disposition and deed of settlement the late Dr Baxter conveyed his whole estate, heritable and moveable, to the respondents as his trustees, with directions, first, to pay debts; secondly, to make certain payments to a college in Dundee; and, thirdly, to pay over the free annual proceeds or income of his estate to his wife, in the event of her survivance, during the whole period of her life. The fourth purpose of the trust runs thus-"I direct and empower my said trustees, after the death of the longest liver of me and my said wife, to realise and convert into money all my estate and effects, or such part or parts thereof as they may think proper, or in such manner and at such time or times, and at such prices as they think fit, and after the death of the survivor of me and my said wife, and with her consent and full approval (in token of which she has subscribed the deed), I direct and appoint my said trustees as soon as they conveni

ently can, or at such time or times as they consider proper, with full power to postpone the payment of any of the legacies underwritten if my trustees think it expedient to do so, to pay to the institutions, societies, and persons after mentioned, or to hold in trust for behoof of such females as are after specified, whose husbands' rights are excluded, the following sums or legacies which I hereby legate and bequeath to them respectively." Then follows an enumeration of legacies to certain institutions and endowments to the amount in all of £26,750, of which £16,000 is given to relations of the wife. The fifth purpose of the trust makes specific bequests of household articles and other personal effects; and by the sixth purpose the testator bequeaths the residue of his estate to such charitable uses as may be selected by his trustees.

Apart from any consent given by Mrs Baxter to her husband's trust-deed, it is clear that had she survived him she would have been put to her election between the liferent thereby provided to her and her legal rights as widow; and the only point arising for decision is whether Mrs Baxter by her subscribing the deed consented to accept the liferent, and thereby deprived the appellant of the right which he would otherwise have had to make an election now. That is a question depending upon the construction of the deed.

66

I cannot assent to the argument submitted for the respondents to the effect that Mrs Baxter by subscribing the settlement as one of the parties to its execution, without any limitation appearing in the testing clause, became a consenter to all its terms and provisions. It is unnecessary to consider what would have been the effect of her subscription if there had been no reference in the body of the deed to the purpose for which it was adhibited, because part of the deed, the fourth purpose, expressly bears to have been made with her consent and full approval (in token of which she has subscribed this deed)." I think that declaration must be taken to be conclusive as to the purpose for which she signed, and I am consequently of opinion that her consent cannot be carried beyond the fourth purpose, except in so far as her assent to its provisions necessarily implies approval of other parts of the deed. It appears to me, however, that the fourth purpose, and the antecedent provision of liferent in the third purpose, are so intimately connected with each other that Mrs Baxter must be held by plain implication to have accepted that provision. In the event of her being the survivor of the spouses payment of the legacies bequeathed by the fourth purpose is deferred until her death; and upon the occurrence of that event they are made a first charge upon the estate to be held at that time by the trustees, consisting of the universitas of the testator's estate under deduction only of proper debts. In my opinion her consent to that arrangement plainly implies that Mrs Baxter not only agreed that the legacies should be paid, but made it a condition of her agreement that they should not be paid until the expiry of the liferent right provided to her by the third purpose of the settle

ment.

I accordingly move that the interlocutor appealed from be affirmed, and the appeal dismissed with costs.

LORD MACNAGHTEN--My Lords, Dr Baxter's trust-disposition states the purpose which Mrs Baxter had in view in affixing her signature to it. That being so, it appears to me that it would not be proper to attribute to her signature a purpose wider than that which is expressed on the face of the document. Her consent and approval must I think be limited to the directions given to the trustees with respect to the payment of the legacies mentioned in the fourth purpose of the trust-disposition. But even so limited her consent and approval appear to me to be inconsistent with the present claim set up by her representatives. The legacies in question are to be paid after Mrs Baxter's death. They are to be paid out of the universitas of the testator's estate, which is to be kept together during Mrs Baxter's life. This appears to me to be inconsistent with the claim put forward on her behalf to withdraw from the operation of the will one moiety of the testator's estate, and to leave the legacies payable out of the deceased's part only.

For these reasons, though not agreeing wholly with the grounds on which the decisions of the Court below have been rested, I concur in thinking that the appeal must be dismissed.

Interlocutor appealed from affirmed, and appeal dismissed.

(Ante, July 6, 1886, 23 S. L. R. 803, and 13 R. 1209.) Husband and Wife-Appropriation by Husband of Income of Wife's Separate Estate—Implied Consent.

Circumstances in which held (aff. judgment of First Division) that a wife whose husband had during many years of married life uplifted and applied, apparently at his discretion, the income of her separate estate, had acquiesced in the manner in which he had applied it.

This case is reported ante, July 6, 1886, 23 S.L.R. 803, and 13 R. 1209.

The pursuer Allan Edward, Mrs Baxter's exetor, appealed.

At delivering judgment

LORD WATSON-My Lords, Dr John Boyd Baxter was married to Margaret Edward in the year 1827, and from that time they continued to live in family together until his death in August 1882. Mrs Baxter died on the 15th of the following October. There was no marriage-contract be

tween the spouses, and the only child of the marriage died before his parents, without issue, in March 1867.

Under the trust-settlement of her brother David Edward, who died in December 1857, Mrs Baxter became entitled, after the lapse of two years from the truster's decease, to the life interest of a fifth share of the residue. The provision was declared to be alimentary, exclusive of the jus mariti and administration of her husband, and free from liability to his debts or the diligence of his credi

tors.

Dr Baxter was one of the accepting trustees of David Edward's settlement, and also acted as factor for the trust, and on the death of Allan Edward in June 1874 he became sole trustee. There appears to have been considerable but unavoidable delay in realising the trust-estate, and a final division was not made until the 11th April 1866, when the trustees fixed and set apart funds and stocks to the value of £12,382 as the share of residue liferented by Mrs Baxter, and appointed the interest to be paid to her during her life.

Between 1859 and 1865 the trustees made payments to Mrs Baxter from time to time on account of her liferent interest. These payments were at first placed to the credit of an account-current with the National Bank in her name, which was closed on the 10th December 1860, and the balance standing at her credit transferred to a new account with the same bank in name of both spouses, but bearing to be payable to either of them. Dr Baxter alone drew upon this last account, all cheques being signed by him "pro Mrs Baxter," and it was closed by a draft dated the 11th November 1865 for £409, 1s. 6d. From the allocation of the residue in April 1866 until the death of Allan Edward in 1874 the income arising from Mrs Baxter's fifth was paid by the trus tees to Dr Baxter, who placed it to the credit of his private bank account, and the same course was followed after Dr Baxter had become the sole trustee.

The appellant, as executor-dative of Mrs Baxter, now sues the respondents, who are the testamentary trustees of her husband, for an account of his intromissions with her separate income derived from her brother David's trust. In bar of an accounting the respondents maintain, in the first place, that Mrs Baxter made a donation to her husband, which stands unrevoked by her, of all moneys which came to her from David Edward's trust excepting such sums as he paid to her for her own use; and in the second place and alternatively, that such portions of her income as were in his possession at the time of his death were disposed of, with her consent, by his trustdisposition and settlement. The appellant disputes both of these propositions, and with respect to the period preceding 1866 he contends that there are four sums with which Dr Baxter be came chargeable as her trustee or agent. It is not said that Dr Baxter intromitted with any part of her income arising before 1866 other than these sums, and in that condition of the argument I think it will be convenient first of all to deal with the income arising after the allotment of the share of residue liferented by Mrs Baxter.

By the law of Scotland, as well as by that of England, a married woman may make an effectual gift of her separate income to her husband, with this difference, that by Scotch law she has the