Scottish Court of Session Decisions

Subject_1 PRESUMPTION.
Subject_2 DIVISION III.

Donatio non præsumitur.
Subject_3 SECT. V.

Deeds in favour of a Wife or Children, whether presumed in satisfaction of Debts due to him.

John Duncan
v.
John Young

Date: 29 January 1745
Case No. No 151.

Two persons being found conjunctly liable ex delicto, and one of them having furnished the other with a sum of money which he used in paying a composition, it was presumed net to be advanced by way of loan, but as the advancer's share of what they had been found liable in.

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David Gibb and James Keith having been prosecuted before the Justices of Peace of the shire of Kincardine, at the instance of John Williamson, brought afterwards an action of wrongous imprisonment, oppression, and damages, for the procedure had in that process, against the Justices, Clerk, Procurator-fiscal, and private party.

John Young of Stank, the Clerk, was entrusted by the rest of the defenders, as John Duncan this pursuer alleged, with the management of the cause, and obtained an interlocutor assoilzieing them all except Williamson, who was found liable.

A reclaiming bill was presented for Williamson, on which Mr Young impetrated from him a disclamation of the process, and the Lords having, on a suspicion which they entertained, examined into the manner of obtaining this, it was set aside, and they found, “That the process had been carried on by the instigation of John Young, and assoilzied Williamson from Gibb and Keith's damages and expenses; and found Young and John Duncan, the Procurator-fiscal, conjunctly and severally liable therein, and in damages and expenses also to Williamson.”

Young transacted the matter with Gibb and Keith, and having paid them L. 60 Sterling, took a discharge bearing the receipt of the money from him.

As Duncan had advanced him L. 20 of the money, he brought an action against him for repetition, on these grounds, That it was found the action was carried on by his instigation; that he the pursuer was really his servant, and only nominal Procurator-fiscal, his master managing all the business, and having pleaded this very cause while he wrote the interlocutor; that Young alone had made the composition, and had fallen on several contrivances to indemnify himself of this loss, and had prevailed with the pursuer to advance him this L. 20, though he denies he promised to repay him, but owns he told him he expected the shire would indemnify them both.

Pleaded for Young, They were both found jointly liable, and that part of the interlocutor, finding the process to have been carried on by his instigation, without mentioning the other, has not been adverted to, as they were then on one side, and had no thought of this debate; there was no appearance of Duncan's being ignorant of the transaction; and he had therefore paid the L. 20 as his share; a presumptive loan was a thing unknown, and the circumstances from which this was sought to be inferred not true; he had indeed been his servant, and lived still in his family, but had business of his own, and was Procurator-fiscal and a messenger, and used to be absent a considerable time without asking leave; it might be owned he conducted himself pretty much by Mr Young's advice, and though he might have got it in this cause, the adviser is not singly guilty, and he had been accessory in obtaining the disclamation from Williamson; it did not appear he was a nominal Procurator-fiscal, but there was evidence of fines being paid to himself; he had been present at Edinburgh at consultations, so that his condemnation was not owing to Young's having the sole management of the cause; and as the Lords had acquitted the Justices, so doubtless would they have him, if he had been innocent; he had then paid his own fine and could not repeat it.

It was pretty plain from the proof, that the pursuer was the defender's servant; and, on the other hand, the agent in the former process being examined, declared the money to nuke the payment was sent to him with a letter signed by both.

Some of the Lords thought, That as Young being ordained to confess or deny the receiving the money, had owned the receiving it to pay the agreed sum, no more appeared from this declaration, than that it was advanced to enable him to make payment, but not as the pursuer's own proportion; and as they thought Young obliged to relieve him, repetition was competent; but the rest were of opinion the advance was made as his share of the fine; and, supposing Young to have had no claim against him in case he had paid it all, or even that he could have demanded relief of Young for the whole, if he had been forced to pay it, and testified he did so with an intention to seek his relief, yet having paid it as his share, he could not repeat.

The Lords, 13th December 1744, found there lay no action for repetition of the sum libelled; and, on a bill and answers, they adhered, unless the pursuer would offer to prove by the defender's oath, that the money was advanced by way of loan.

Act. Lockhart, Alt. R. Dundas & Burnet. Clerk, Justice. Fol. Dic. v. 4. p. 124. D. Falconer, v. 1. p. 58.