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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Montgomery Cunninghame v. Boswell [1868] ScotLR 5_559 (29 May 1868)
URL: http://www.bailii.org/scot/cases/ScotCS/1868/05SLR0559.html
Cite as: [1868] SLR 5_559, [1868] ScotLR 5_559
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SCOTTISH_SLR_Court_of_Session
Page: 559↓
Court of Session Inner House Second Division.
v.
Facts:
Circumstances in which held that there was no presumption from taciturnity and lapse of time that a claim for a sum given in loan was meant to be abandoned, and that interest was due on the principal sum in absence of any stipulation to the contrary.
This was an action brought by Sir Thomas Montgomery Cunninghame of Corsehill, as executordative of the late Hon. Mrs Leslie Cuming of Skeldon, against the Dowager Lady Boswell, as executrix of the late Sir James Boswell of Auchinleck. The summons concluded for payment of the sum of £2000, said to have been advanced to the late Sir James Boswell by his aunt, the late Mrs Leslie Cuming, on 30th January 1829, together with interest at 5 per cent. since the date of the advance. The loan was instructed by holograph receipt granted by Sir James of the date in question, and which was found in Mrs Leslie Cuming's repositories on her death in 1863; and the questions raised were two,—(1) whether the circumstances, including the long period which had intervened without any demand being made for payment, presumed abandonment or discharge of the debt?
Page: 560↓
and (2) whether the circumstances presumed an agreement between the creditor and debtor, or at least an intention on the part of the creditor that interest should not be exacted? The pursuers made the following statements:—“The Honourable Mrs Leslie Cuming died on or about 22d February 1863, and the pursuer, Sir Thomas Montgomery Cuninghame was decerned executor to her qua child of a predeceasing next of kin, conform to decreet-dative of the Commissary of the county of Edinburgh, dated 24th September 1863, and was confirmed executor-dative to her in various sums of money due to and belonging to her, but which did not include the said sum of £2000, and interest thereon, conform to testament dated 5th October 1863. As executor, the pursuer is now in right of the sum and interest sued for. The pursuer will produce an eik to the confirmation, including the sum now sued for, before extract.”
The defender pleaded:—“1. The documents of debt libelled are not habile grounds of debt or claim against the defender. 3. The pursuer's claim is excluded by taciturnity and mora. 4. In any view the claim for interest is excluded, (1) in respect that there was no stipulation and no demand ever made for payment of interest; and (2) in respect of taciturnity and mora. 5. Even if the debt was ever contracted, it must, in the circumstances, be presumed that it has been extinguished and discharged by the creditor.”
The Lord Ordinary (
“The sum sued for is acknowledged to have been received by the late Sir James Boswell, in terms of the two holograph documents founded on by the pursuer; and as these documents expressly bear that the money was given to him in loan, the law implies an obligation on him to repay the amount, with interest. Nor does the defender, who, as representing Sir James Boswell, is liable for his debts, allege that the loan in question, or any part of it, either principal or interest, has ever been repaid. She merely pleads taciturnity and mora. But the Lord Ordinary does not consider that the circumstances founded on by the defender are sufficient to support such a plea. The silence of Sir James Boswell, the debtor, and his acts and conduct, to which the creditor was no party, cannot affect the matter. It is no doubt said that, although an advertisement after the death of Sir James Boswell was inserted in the North British Advertiser for claims on his estate, no claim was preferred in respect of the debt in question. It is not said, however, that the creditor then in the debt, Mrs Leslie Cuming, ever saw the advertisement. Beyond, therefore, the somewhat vague and general allegation that Mrs Leslie Cuming was latterly in pecuniary difficulties, there is nothing to support the defence but the apparent silence and forbearance of the creditor. The claim, however, is not prescribed; and, in the circumstances, the Lord Ordinary is unable to see how, on any sound principle, the pursuer's claim has been cut off merely by the lapse of time. The relationship betwixt the parties of aunt and nephew may in some degree account for the absence of any evidence of pressure by the former against the latter for payment of the debt; but that Mrs Leslie Cuming must have held it to be a debt owing to her by Sir James Boswell is clear, not only from the terms of the documents libelled on, but also from one of her testamentary writings (No. 12 of process), in which she says,— ‘I give the £2000 I lent Sir James Boswell, my nephew, to his mother, Grace, Lady Boswell, at my death.’ Accordingly, counsel for Mrs Vassall, as in right of the said Grace, Lady Boswell (the latter having died subsequently to the death of Mrs Leslie Cuming), attended at the debate, and concurred in asking that decree should be pronounced in favour of the pursuer.”
The defender reclaimed.
Solicitor-General and Nevay for her.
Fraser and Gifford in answer.
The following authorities were quoted:—
Ersk. 3, 7, 29; Seath v. Taylor, 21 Jan. 1848, 10 D. 377; Hamilton v. Hope, 26 March 1863, 15 D. 594; Black v. Hardie, 29 May 1834, 12 S. 643; Scott v. Mitchell, 27 May 1830, 8 S. 820; Moncrieff v. Haugh, 21 D. 216; Mackenzie, Oct. 15, 1831, 5 W. & S.; Earl of Rosslyn v. Earl of Strathmore, 17 Nov. 1843, 6 D. 90; Condie v. Peddie, 10 March 1848, 10 D. 941; Earl of Wemyss v. Trail, 23 Nov. 1810, F.C. 45; Addison on Contracts, 1068–9; Dickson on Evidence, p. 616; Currie, 6 S. 1119; Graham, 2 S. 594; Hamilton v. Struthers, 21 D. 51.
At advising—
Lord Justice-Clerk—In this case the executors of the late Mrs L. Cuming sues the representatives of the late Sir James Boswell for a sum of £2000, said to have been advanced in loan to Sir James on the 30th January 1829, with interest since that date.
The executor founds upon, as proving the fact of loan, a document in which, of the date of the alleged advance, Sir James, in a holograph writing, acknowledges the receipt of the loan of £2000. The pursuer says that, the fact of the loan being established, it follows necessarily that the borrower must repay it, and repay it with interest. The case made in the record on the part of the defender is, that the demand is excluded by taciturnity and mora. It is said that no demand was made down to the date of Mrs Cuming's death for principal or interest, and that the absence of a demand for principal or interest during a period extending from January 1829 to February 1863, when Mrs Cuming died, is in itself a ground for establishing the defence, viewed in connection with the fact that Mrs Cuming was an aunt of Sir James; that Mrs Cuming was herself for some time in difficulties, and that invitations were made on Sir James’ death to creditors to claim, but none was made. That Sir James, who was at one time in difficulties, and framed a schedule in which all his debts were set out, did not include this debt among the number, — from all of which facts it was to be inferred that the claim was in some way extinguished or abandoned.
Mrs Cuming's executor, in answer to the case of presumption raised by the defenders, refers to a document nearly contemporaneous with the loan. On the 10th February 1829, she, by a holograph writing, dealt with the sum, but as one which was on her death to be paid as a legacy from herself to the mother of the debtor. He argued,—that any presumption from the mere absence of demand for payment, even under circumstances in which the claim would be naturally expected, was not to be entertained. Now demand of the principle was accounted for as she had destined it to be taken by bequest after her death.
The examination which was allowed by us into the circumstances under which the documents were found, establishes that the acknowledgment
Page: 561↓
In reference to the result of the examination generally, I may say that the apparent lateness of the discovery of these two documents is sufficiently accounted for, and the statement in the minute of Sir T. Cuming verified. It appears that a third document, viz., the cheque under which the £2000 was got by Sir James, was not found in the repository but among useless papers; but the view stated by one of your Lordships during the discussion seems sufficient to account for it. A used cheque is not likely to be reclaimed, and though Sir James’ name is on the back, that is a mere acknowledgment of the fact of payment to him at the bank, and if it stood alone would not prove a loan. He might have been the mere hand of Mrs L. Cuming; and one employed as a hand only is presumed to have accounted.
I think, as the loan was evidenced by written acknowledgment, that is a case to which the doctrine of taciturnity and mora can scarcely apply. It is a case to meet which the law of prescription was devised. The opinion of Lord Glenlee, expressed in the report of Cullen's case, especially as given in the Jurist, vol. xi, p. 61, is valuable. The case of Graham (F.C. and 2 Sh. 594), was decided against the party pleading taciturnity in circumstances much more favourable than the present. There there was a presumption of extinction of payment in that case; here no such case arises. Nothing in the case goes to show that Sir James paid, or that Mrs Cuming received payment; and if Sir James had really paid the debt, the fact would have been easily proved. It is not capable of being seriously maintained that the debt was extinguished by payment.
I have no hesitation in coming to the conclusion that the defence must be repelled as to the principal sum concluded for; whether interest is exigible is not so clear. I have entertained some difficulty, arising from the near relationship of the parties, and the possibility that the aunt might not intend to accumulate such a considerable debt against her nephew, but I feel myself constrained on this point also to repel the defence. In the case of Thomson and Geikie (March 6, 1861, 23 D. 701), the general law on this subject is stated by the present Lord President, then in the chair of this Division, that an advance by way of loan implies an obligation to pay interest for the money. In that case it was a question whether there was a loan or not; here the money is expressly taken on loan, and that rule applies a fortiori.
I think that this exposition of the law is confirmed by the decision of the case of M'Dowal of Garthland, where, under circumstances in which it was extremely doubtful if money was sent in a gift or loan, the Court, finding that the transaction was one of loan, gave interest from the period of the monies being received. The executor has a good title to recover these arrears, whether they may be found ultimately to pass by the bequests or to form part of the executry estate.
Up to the date of this lady's death, as no year's interest was forty years due, I consider that she might have claimed payment. The mere fact of its not having been demanded and has not been paid, cannot of itself presume a discharge of the claim. It would require very strong presumption to destroy a positive obligation arising out of a contract or claim evidenced by writing. I hold that there is nothing here to justify such a result. At an earlier period of our law the claim for interest might have possibly met a different fate, not because of presumptions from the absence of demand, but because it might have been held not to be exigible. When we come to the conclusion that it is due ex lege, from the very nature of the transaction we cannot hold the claim extinguished on such presumptions.
The result may be considered hard, the amount of accumulated arrears is very large, but by the absence of periodical payments, Sir James’ estate has in effect been relieved from compound interest. I therefore concur with the Lord Ordinary, and very much on the grounds on which he has proceeded.
Solicitors: Agent for Pursuer— James Dalgleish, W.S.
Agents for Defender— Scott, Moncrieff & Dalgety, W.S.