Scottish Court of Session Decisions

This was an appeal from the Sheriff-court of Dundee.

In September 1861 James Christie, then resident in California, remitted £50 to Alexander Matheson, his half-brother, a draper in Dundee. In a letter which accompanied the remittance, Christie, after referring to Matheson's circumstances, which appear to have been embarrassed, says he sends £50, and adds, “I would rather avoid to answer questions on the subject. All I have to say about it is, that this and all other remittances which I may in future make, I wish you to take your full use of, as if they were your own; when it becomes unnecessary (which I hope, for your own good, it may), then dispose of it to the best advantage.” In 1862 another £50 was remitted, and a like sum in 1863. The principal sums were afterwards repaid by Matheson, but a question arose in regard to interest, in consequence of which Christie raised the present action, claiming 5 per cent interest on the sums from the dates of the advances till payment.

The Sheriff-Substitute ( Cheyne) found that the pursuer was entitled to interest, on the ground that the advances must be held as loans and not as gifts, and that there was nothing to take the case out of the ordinary rule, that ex lege interest is due on loans; 1 Bell's Com., 7th Ed., 692–3; Garthland's Trustees v. M'Dowal, 26th May 1820, F.C.; Cuninghame v. Boswell, 29th May 1868, 6 M. 890, 5 Scot. Law Rep., 559.

On appeal, the Sheriff ( Maitland Heriot) recalled the interlocutor of the Sheriff-Substitute, and found that no interest was due. The Sheriff considered that the case turned on what was the intention of parties; and that, looking to the whole circumstances, the pursuer sent the money, and the defender received it, on the understanding that no interest was to be paid; Forbes v. Forbes, 4th Nov. 1869, 8 M. 85, 7 Scot. Law Rep. 49.

The pursuer appealed to the Court of Session.

Strachan for him.

Taylor Innes, for the defender, was not called on.

At advising—