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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Gill v. Gill [1907] ScotLR 44_376 (08 February 1907) URL: http://www.bailii.org/scot/cases/ScotCS/1907/44SLR0376.html Cite as: [1907] SLR 44_376, [1907] ScotLR 44_376 |
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Page: 376↓
[Sheriff Court at Edinburgh.
A soldier brought an action against his mother for repayment of an alleged loan of £48, 11s. He produced in proof thereof an order written by him while in prison authorising the Savings Bank to pay the defender £47, 10s. Across the order was written a receipt, signed by the defender, for £48, 11s., which was the amount at the pursuer's credit in the bank with the interest accrued. The defender admitted receipt of the money, but under the qualification that it was in reality hers though it had been in bank in her son's name.
Held (1) that the order with endorsement was an acknowledgment of the receipt of the money by the defender; (2) that the onus therefore lay on her to prove, scripto, that she had got the money otherwise than as a loan; and (3) that as she had failed to do so the loan was instructed scripto by the said receipt and the pursuer was entitled to decree.
Haldane v. Speirs, March 7, 1872, 10 Macph. 537, 9 S.L.R. 317, distinguished.
Observed by the Lord Justice-Clerk and Lord Stormonth Darling that as it would have been incompetent for the defender to prove otherwise than by writ that the money which was deposited in her son's name belonged to her, the Sheriff-Substitute had rightly restricted the proof in the case to writ.
John Gill junior brought an action in the Sheriff Court at Edinburgh against his mother, Mrs Grace Greig or Gill, wife of and residing with John Gill, and against his father, the said John Gill, as her curator and administrator-in-law, in which he concluded (2) for payment of the sum of £48, 11s., alleged to have been received by his mother from him on loan.
The pursuer's averments, with the answers thereto, were—“(Cond. 2) The pursuer also arranged, prior to leaving for South Africa, that a sum of 3s. per day of his allowance from Government should be handed to the female defender in order that she might place same in bank on his behalf, which she undertook to do. In accordance with said arrangement there was paid by Government to the said defender the sum of 3s. per day from the said 5th April 1901 to 17th March 1902. The said defender deposited with the Union Place branch of the Edinburgh Savings Bank from time to time the said 3s. per day in the name of the pursuer. The statements in answer are denied. ( Ans. 2) Denied. Pursuer's father was, when pursuer left for South Africa, in bad health and unable to work. Pursuer accordingly, as he was bound to do, made an allotment of his pay to support his father. Said money was uplifted periodically and applied for the purpose for which it was intended. (Cond. 3) The pursuer, while serving with his regiment in South Africa, was, along with twenty-four others, convicted of insubordination and sentenced to a period of imprisonment. On or about 26th December 1902, while the pursuer was serving said period of imprisonment in the military prison at Woking, the said female defender wrote to him, enclosing a blank cheque on the said branch bank, with a request to him to sign and return the same to her so that she might uplift the sum then standing at his credit, as she desired a loan of it. Said cheque was handed to the pursuer by the governor of said prison, and the same was returned to the said defender
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duly signed. In doing so the pursuer intended to grant said defender a loan in accordance with the terms of her letter. The said defender, on or about 29th December 1902, presented said cheque at said branch bank and obtained payment of £48, 11s., being the amount then standing at the credit of the pursuer, and now sued for in the second part of the prayer hereof. The statements in answer, so far as not coinciding herewith, are denied. (Ans. 3) Admitted that pursuer was with others imprisoned for insubordination… Quoad ultra denied as stated. Defender uplifted certain moneys from the Savings Bank in the end of 1902, but said moneys were her own property, and pursuer had nothing whatever to do with them.” The pursuer pleaded—“(3) The pursuer having granted the defender a loan of the sum second sued for, the defender is liable in repayment thereof, with interest, as concluded for.”
The defender pleaded—“(1) The defender not being due the pursuer any sum, should be assoilzied, with expenses. (3) Pursuer's averments of defender's indebtedness to him are provable only by defender's writ or oath.”
On 18th October 1905 the Sheriff-Substitute ( Henderson) pronounced this interlocutor—“… Finds that the pursuer's averments of the defender's indebtedness can be competently proved only by the writ or oath of the female defender: Allows the pursuer primo loco a proof of said averments scripto, and to the said defender a conjunct probation also by writ,” &c.
The proof was led before the Sheriff-Substitute ( Graham) on 1st March 1906, when the pursuer produced the following order by him on the Savings Bank, Edinburgh, with a receipt written across it which was signed by the defender:—
“To the Manager of the £47, 10s.
Edinburgh Savings Bank. December 1902.
Pay the bearer the sum of forty-seven pounds ten shillings on producing my deposit book No. 14914.
W. Taylor, witness, John Gill.
Chief warder, H.M. Military
Prison, Woking, Surrey.”
The following was the receipt written across the above order:—“ Received the sum of forty-eight pounds and eleven shillings, — Grace Gill.”
The sum of £48, 11s. was made up of (1) the money standing in the pursuers name in the bank, and (2) the interest accrued thereon.
The parties admitted that the signatures on the order and receipt were genuine. No other proof scripto was adduced by either party, with the exception of a letter from the pursuer to the defender, of date 6th April 1905, which was not material. It was stated that the pursuer's pass-book had disappeared, nor was the letter from the defender to the pursuer mentioned in Cond. 3 produced.
The Sheriff-Substitute ( Graham), on 12th March 1906, found that the pursuer had failed to prove by defender's writ that the said sum of £48, 11s. was a loan by him to her, and appointed the pursuer, if so advised, to give in a minute referring the whole cause to the oath of the defender, and on 29th March 1906, in respect of the pursuer's failure to lodge a minute of reference to oath, he assoilzied the defender from the conclusions of the action, and found the pursuer liable in expenses.
Note.—“Counsel for the pursuer quoted the case of Paterson v. Paterson, 1897, 25 R. 144, to show that the defender's writ did not require to be holograph or tested. That is quite true, but it is equally clear by the case of Haldane v. Speirs, 1872, 10 Macph. 537, that the mere endorsement of a cheque is not sufficient to prove a loan.
The pursuer appealed, and argued—The entry in the bank pass-book was prima facie an acknowledgment by the defender that the money she uplifted belonged to the pursuer. In such circumstances there was a presumption in favour of loan, and the onus of proving scripto that the money was received upon a different footing was thrown upon the receiver— Fraser v. Bruce, November 25, 1857, 20 D. 115; Thomson v. Geekie, March 6, 1861, 23 D. 693; Christie's Trustees v. Muirhead, February 1, 1870, 8 Macph. 461, Lord President Inglis at p. 463. But no attempt had been made by the defender to show that the money passed on some other consideration than loan, such as payment of a prior debt or donation. She relied entirely on Haldane (Speirs' Factor) v. Speirs, March 7, 1872, 10 Macph. 537, 9 S.L.R. 317, which was quite a different case, as the only writ founded on there was an indorsement on an ordinary bank cheque. In proving a loan of money by writ it was not necessary that the writ should be holograph or tested— Paterson v. Paterson and Another, November 30, 1897, 25 R. 144, 35 S.L.R. 150. The defender had failed to produce any evidence to displace the presumption that the money was the pursuer's property, and the pursuer was therefore entitled to decree for the sum sued for.
Argued for the defender and respondent — The entry in the pass-book showed that a certain sum of money had passed between the pursuer and the defender. It did not necessarily follow that it was a loan; the money might have been given as a donation or for any other purpose. The pursuer must show the circumstances under which the money had been received, and this he had failed to do. Mere proof of receipt of money did not import an obligation to repay, and was not evidence of a loan, anymore than an indorsation on the back of a bank cheque— Haldane v. Speirs, cit. supra. The money was in the bank in the pursuer's name, but it did not follow that the person in whose name money stood was the owner of it. Should it be thought necessary, the defender was in any event entitled to have the case remitted back to the Sheriff in order that he might take a proof habili modo on this point— Paterson v. Paterson, cit. supra.
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The nature of the document relied on by the pursuer in this case is very different from that under consideration in Haldane v. Speirs, but it bears on its face that the defender received £1, 1s. more than the sum in the order, or £48, 11s., being the whole amount, principal and interest, standing at the credit of the pursuer with the Savings Bank. That alone is enough to differentiate this case from Haldane v. Speirs, for the reason that it disposes of the presumption that the order was granted in payment of a debt; and further, this document contains a distinct acknowledgment of the receipt of the money. I accordingly agree with your Lordships that the interlocutor of the Sheriff-Substitute should be recalled so far as regards the sum of £48, 11s.
The Court sustained the appeal, recalled the interlocutor appealed against, ordained the defender to make payment to the pursuer of the sum of £48, 11s., and decerned.
Counsel for the Pursuer (Appellant) — Malcolm. Agents— Bruce & Black, W.S.
Counsel for the Defender (Respondent)— A. R. Brown. Agents— Gardiner & Macfie, S.S.C.