Scottish Court of Session Decisions

This was an action in the Sheriff-court of Fife, raised by John Boss against James Durie and his wife, concluding for payment of a sum of £90, 5s. 8d., contained in a deposit-receipt. The facts are fully set out in the interlocutor of the Sheriff.

The Sheriff-Substitute ( Bell) pronounced the following interlocutor:—“Finds, in point of fact, that on or about the 20th day of September 1867 the pursuer handed to the female defender the deposit-receipt mentioned on record; but that the pursuer has failed to prove, as averred by him, that he did so in order that it might be retained by her for the pursuer's behoof, and for her own behoof in case of his decease: Finds that, on the contrary, the pursuer, when handing the receipt to the female defender, said, “That is a present to you:” Finds, in point of law, that the defenders are not bound to restore said receipt, or to repay the money therein contained, to the pursuer; therefore assoilzies the defenders from the conclusions of the summons, and decerns: Finds them entitled to expenses, allows an account,” &c.

The Sheriff ( Crichton) recalled this interlocutor, and pronounced the following judgment:—“Finds, in point of fact (1), That on 10th May 1867 the sum of £100, belonging to the pursuer, was deposited in the Royal Bank of Scotland at Cupar, and that the deposit-receipt, No. 16 of process, was granted by the bank therefor in the names of the pursuer and his now deceased wife, ‘payable to either or survivor;’ (2) That the pursuer's wife, who was a sister of the defender, Margaret Laing or Durie, died on 19th September 1867, and on that day the pursuer went to live in family with the defenders; (3) That on 20th September 1867 the pursuer, accompanied by the defender James Durie, went to the Royal Bank at Cupar and uplifted the said sum of £100 contained in the deposit-receipt, and that the pursuer then proposed to re-deposit £90 of the said sum of £100 in his own name and that of the defender James Durie; (4) That the defender James Durie objected to the said sum of £90 being deposited in his name, and he advised the pursuer to redeposit the money in his own name; (5) That thereafter the pursuer proposed to re-deposit the said sum of £90 in his own name and that of the defender Margaret Laing or Durie; (6) That the said sum of £90 was, on 20th September 1867, re-deposited by the pursuer with the Royal Bank of Scotland at Cupar, and that he then received from George Ramsay, the accountant of the said bank, the deposit-receipt, which is in favour of the pursuer and ‘Mrs Margaret Laing or Durie, Cupar, … payable to either or survivor;’ (7) That on the said 20th day of September 1867 the pursuer handed to the defender Margaret Laing or Durie the said deposit-receipt for £90 sterling; (8) That the pursuer continued to live with the defenders for about six or seven weeks after 20th September 1867, when, in consequence of a quarrel with the defender Margaret Laing or Durie, he left the house; (9) That on 15th November 1867 the defender Margaret Laing or Durie called upon the said George Ramsay, and stated that she wished to uplift part of the money contained in the said deposit-receipt; (10) That on 16th November 1867 the said Margaret Laing or Durie received from the said George Ramsay £20 of the sum contained in the said deposit-receipt, which she retained and still retains; and that she re-deposited the balance of £70 on a deposit receipt in favour of ‘Mr John

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Ross, blacksmith, Cupar, and Mrs Margaret Laing or Durie, Cupar, … payable to either or survivor;’ (11) That thereafter, and within a month of the said 16th November 1867, the said Margaret Laing or Durie uplifted the said sum of £70, contained in the said deposit-receipt, No. 18 of process, and which sum she retained and still retains; (12) That it is not proved that the pursuer gifted or made a donation of the deposit-receipt, or the contents thereof, to the defender Margaret Laing or Durie, or that he authorised the defenders or either of them to uplift or retain and appropriate to their own uses and purposes the money contained in or represented by the said deposit-receipt, or any part thereof; and in these circumstances finds, in point of law, that the defenders are not entitled to retain the money uplifted as aforesaid, or any part thereof; decerns and ordains the defenders to make payment to the pursuer of the sum of £90, 5s. 8d. sterling, with interest thereon at the rate of five per cent. per annum, from the 16th day of November 1867 until paid: Finds the defenders liable to the pursuer in expenses; allows an account,” &c.

The defenders appealed.

The Solicitor-General ( Clark) and Rhind, for them, argued—That the delivery of the deposit-receipt, and the proof that it was delivered donationis causa, passed the property of the money contained in the receipt. Kennedy, 1 Macph. 1042; Watt's Trustees, 7 Macph. 930; M'Cubbin's Executors, 6 Macph. 310.

Campbell Smith and Guthrie Smith, for the respondent, argued—Mere delivery of the deposit-recept would not pass the right. Cruickshanks, 16 D. 168; Heron, 14 D. 25.

At advising—