Delivery of some wars and money, by a rich man to his brother, who was no merchant or factor, the particulars being useful to the receiver, and of no great value, was presumed to be a donation.
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Robert Anderson, factor in Camphire, having no children, did nominate William Anderson, his brother, his executor and universal legatar; and left an annual legacy of 400 merks to John Anderson, a baxter, his brother, yearly during his life; who thereupon pursues William Anderson, the executor, for payment; who alleged, Absolvitor for a part thereof, because the legatar was debtor to the defunct for ware sent to him from his brother out of Holland, and for ten dollars he had lent him. Both being referred to his oath, he deponed, That his brother had sent him some particular goods, without any mention of a price, or demanding any thing for them, and he gave him nine dollars, without the expression of lending or giving; which oath being advised by the Lords, they found, That these particulars could not infer a debt to compense the annual legacy; but were presumed to be gifted, or past from, being delivered by a rich brother to a brother who was no merchant or factor, and the particulars for the baxter's use, and not of any great value; and though donation is not presumed, yet, from these circumstances, that the deliverer was rich, and had no children, and the particulars of no great import, and that the same brother left an annual legacy, which is alimentary to that brother,
They found these were past from, and could be no ground of compensation against the legacy pursued for.
Fol. Dic. v. 2. p. 149. Stair, v. 2. p. 705.*** Fountainhall reports this case:
1679. November 12.—In the case John Anderson against William Anderson, his brother, the Lords having advised John's oath, they “found, That since John was not Robert Anderson's correspondent, nor a trading merchant; and that John was poor, and Robert was in use to send him gifts; and that an annuum legatum is alimentary, and favourable in law; and that John's oath doth not mention that he sent for these goods, but affirms he thinks that they were gifted him; neither doth it appear that there was any treaty, bargain, or price made for these goods; and the letters produced by William to fortify the presumption of law quod debitor non præsumitur donare, (in which letters Robert impowered his brother William to crave payment, or at least to take bond from John for what he was owing him), were in date prior to the sending of these goods, upon which William craved compensation against John's annual legacy; therefore, they sustained John's oath, and the quality adjected thereto, viz. That the said goods sent to him by his brother Robert were gifted to him; and rejected the compensation craved upon the furnishing of these goods.” This is against the brocard nemo donare præsumitur quamdiu debet. But all these circumstances foresaid accumulated induced the Lords.
