Scottish Court of Session Decisions

Christina Milne presented a petition in the Sheriff Court at Elgin against Robert Cruikshank and others as executors under the will of the deceased John Grant, formerly a farmer, and latterly residing in Elgin, for payment of £100. She stated in her condescendence that for more than six years prior to Martinmas 1881 she had been in the deceased's service as housekeeper and general servant; that in consequence of her trustworthiness and attention to the deceased, who was then in infirm health, he had expressed to her and other of his friends his intention to leave her a sum of money after his death as a mark of his approval of her conduct and as a reward for her services;

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that in February 1881 the deceased handed to her a cheque on the North of Scotland Banking Company, which he had filled in on one of the printed or engraved forms issued by that bank, and which was as follows:—”£100 stg. Elgin, 188. The North of Scotland Banking Company Elgin.—Pay to me or bearer One hundred Pounds when am dead, sterling, on account of John Grant.”—the parts printed in italics being written, and the rest printed; that the deceased when he handed her the document stated that she had done more for him than all the kin he had, and that there was not a bank between Elgin and Aberdeen that would refuse to pay her; that she kept the cheque, and it was in her possession at his death; that the deceased had when he gave her the cheque, and also when he died, ample funds in the bank to meet the cheque. She maintained that by the delivery of the cheque an effectual donation, or otherwise a valid bequest, of the sum of £100 was thereby constituted in her favour.

The defenders did not dispute that the cheque was filled in and signed by the deceased. They denied that he was often in infirm health, and averred that he was often the worse of drink. They denied that a donation or bequest had been constituted in pursuer's favour. They produced his settlement, which was executed some months after the cheque was alleged to have been given by the deceased, and after he had dismissed the pursuer. This being a general settlement, had the effect of recalling all former bequests mortis causa. It did not mention the pursuer. It was admitted that the bank on which the cheque was drawn was the one at which the deceased kept his account, and that there was usually a large balance in his favour.

The defenders pleaded—“(4) The pursuer is not entitled to decree for the sum claimed as a donation, in respect that—first, the document libelled is wanting in one or more of the essentials necessary to confer any right on the holder of the same; second, the said document is not habile to constitute a donation; third, the mandate by the deceased to the pursuer fell on his death; fourth, if the pursuer be entitled to payment of the sum contained in the cheque, it can only be in trust to hand over the same to the defenders as the executors of the deceased. (5) The pursuer is not entitled to decree for the sum claimed as a bequest, in respect that—first, the document libelled is wanting in one or more of the essentials necessary to confer any right on the holder of the same; second, the pursuer is not referred to in the said document; third, the said document is not a habile form of testament; and fourth, any bequest contained in the said document was validly revoked by the last will and settlement of the deceased.

The Sheriff-Substitute ( Macleod Smith) repelled the defences and decerned in terms of the prayer of the petition.

“ Note.— …. The fact of the terms in which the document is expressed, and that the pursuer is in possession of it, shows presumably, in a way which is not met by any adequate counter-explanation on the part of the defenders, that the cheque or order was a gift, and that the pursuer is the person for whom it was intended. There is nothing unlikely or improbable in its having been so handed to her by Mr Grant. All the facts indicate the contrary. There seems to be no other possible explanation of it, and no other person except the pursuer is making any claim to it. Gratitude or affection, or expectation on the part of Mr Grant, may or may not have been, in whole or in part, the cause of his making such a gift. The pursuer is not bound to show or prove any ground for it, because Mr Grant was quite entitled, with or without reason, at his own pleasure, or even at his own whim, without any cause whatever, to have given to her or any other person anything of the kind whenever he might have chosen to do so. The bill or order so given being drawn on the holder of a negotiable fund, standing at his credit at the time, then and since, the pursuer or any other person bearing the bill or order, and not shown to have acquired it illegally, might at any time have presented it at the bank, and desired that the necessary amount should be set aside for his or her behalf, or some other proper provision made for meeting it when it might fall due. This would at once have constituted the claim as a debitum in presenti solvendum in futuro, which would immediately vest, and which would if necessary transmit to the representatives of the holder of the order. It makes no legal difference that the pursuer did not sooner present the bill or order, because the money is still extant, and the interests of all concerned are represented by the defenders.

It cannot be said that the effect of the bill or order fell as a mandate by the death of Mr Grant, because by the express terms of it it was only to be fulfilled after his death.

The delivered bill or order must be held to be rather a donation than a bequest, because after it was delivered Mr Grant had no legal right or power to resume or recover possession of it, either out of the pursuer's own hands or out of the hands of any other ‘bearer’ to whom she might have handed it. In the same way, any other ‘bearer’ not shown to hold it on an illegal footing, would be quite as much entitled to sue on it as the pursuer.

Neither could Mr Grant have prevented the bank from giving effect to it, in the manner above referred to, at any time when presented.

Mr Grant's settlement does not contain any clause of revocation. Even if it did, if these views are correct, the donation completed by the delivered bill or cheque could not have been recalled by it.

It is not surprising, looking to the anomalous and unusual nature of the document founded on by the pursuer, that the executors should require the judgment of the Courts of law before recognising or giving effect to it. But its meaning and purpose are evident, and the technical objections urged against it seem to be insufficient to defeat its operation. Reference may be made to the case of Steel's Trustees v. Wemyss, 18th December 1793, M. 1409; to the observations of the late Lord Ivory in his Note on Erskine's Inst. iii. 2, sec. 38; and to the case of Bryce v. Young's Trustees, 20th June 1866, 4 Macph. 312. See also the Stamp Act 1870, sec. 48, and the new Bills of Exchange Act 1884, sections 3, 8, 11, 31, and 53/2. The order being expressly made payable after death does not seem to be affected by the qualification in section 75.

The counterfoils of the cheque-book from which the order was taken are or ought to be in

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the hands of the defenders. No explanation has been given in regard to them. It is possible that they might have confirmed the case of the pursuer; but she does not require them.”

On appeal the Sheriff ( Ivory) recalled this interlocutor and allowed a proof.

The pursuer deponed to the facts stated in her condescendence. She was working in the kitchen on a morning in February 1881 when deceased came with the cheque in his hand and gave it to her. He said it was a cheque for £100. Witness had a niece named Jessie Jenner, who sometimes came to sleep in the house with her. Jenner was then in her bedroom, and deceased went in and showed the cheque to her, and witness followed him. He said he gave it to witness for her attendance on him during his illness. He left it with her and went away. The deceased was often the worse of drink, and was gradually getting worse in his drinking habits. The night before he gave her the cheque he said he intended to give her a present. He was then the worse of drink. He did not appear to be so in the morning when he gave her the cheque. He dismissed her at Martinmas thereafter because he said nobody could come into his house for her. She used to go to the bank and lodge and draw money for him.

Jessie Jenner corroborated the pursuer as to what occurred on the morning when the deceased came into the bedroom to show her the cheque.

The accountant of the North of Scotland Bank deponed that the deceased had spoken to him about pursuer, and had said that he was to give her something. Deceased mentioned £200 as what he proposed to give her. On one occasion, when he was in deceased's house, the pursuer was in the room, and she asked him, in deceased's presence, whether a cheque payable after his death would be good, to which he (witness) answered that he thought it would be a good voucher.

Two other witnesses, one of them being one of the defenders, spoke to the deceased's having expressed an intention to do something for the pursuer.

William M'Kenzie, farmer, deponed that deceased had told him that he had given pursuer a cheque for £100, but said it was not worth anything, and “made a laugh of it.”

The Sheriff-Substitute on 24th October 1883 pronounced this interlocutor:—“Finds that the pursuer is the holder of a document in the following terms [quoted supra]: Finds that it is not disputed that the document, in so far as not engraved, and the signature, are in the handwriting of the late John Grant, sometime farmer in Scarffbanks, and afterwards residing at Advie House, Elgin, who died on 17th June 1882: Finds that the defenders are his executors, and that the pursuer now sues them for the amount set forth in the said document: Finds that it is admitted that in February 1881, when the same is stated to have been delivered to the pursuer, and all along thereafter, Mr Grant had funds in the said bank at his credit more than sufficient to meet the same: Finds that it is not alleged or proved that the said document was obtained by the pursuer in any fraudulent or illegal manner, or that she is not the person to whom it was delivered, and for whom it was intended: Finds, in law, that the said document is one which Mr Grant was entitled to give to the pursuer or any other person, either as a gratuitous donation or otherwise at his pleasure, and that the same is a valid and subsisting bill, or cheque, or order, for which the defenders, as Mr Grant's representatives, and as now holding the funds left by him in the said bank, are liable to the pursuer: Therefore repels the defences, and decerns in terms of the prayer of the petition: Finds the pursuer entitled to her expenses,” &c.

The defenders appealed to the Sheriff, who pronounced the following interlocutor:—…. “Finds that in February 1881 the pursuer received from the late John Grant, sometime farmer at Scarffbanks, and afterwards residing at Advie House, Elgin, in payment of a donation, or otherwise, a document in the following terms: …. Finds that the said document, which is stamped with an impressed stamp of one penny, is not a bill of exchange or cheque payable on demand, but is a bill of exchange or cheque of another kind, drawn and expressed to be payable in the United Kingdom, and is chargeable under the Stamp Act 1870 with the duty of one shilling: Finds in law, that the said document not being duly stamped, the pursuer is not entitled to recover thereon, or to make the same available for any purpose whatever: Therefore assoilzies the defenders, but in the circumstances finds no expenses due to or by either party, and decerns.

“ Note.—By the Stamp Act 1870 a bill of exchange or cheque payable on demand is chargeable with the duty of one penny, and a bill of exchange or cheque of any other kind (except a bank note) drawn or expressed to be payable in the United Kingdom, where the amount for which it is drawn exceeds £75, but does not exceed £100, is chargeable with the duty of one shilling. The document sued on being payable only on the death of John Grant, is not a bill of exchange or cheque payable on demand. It is a bill of exchange or cheque of another kind, which is chargeable with the duty of one shilling, and being stamped only with the duty of one penny, must be held to be insufficiently stamped under the Stamp Act. Now, it is provided by section 54 (1) of the said Act that the person who takes or receives from any other person any bill of exchange or cheque, liable to duty, but which is not duly stamped, either in payment or otherwise, shall not be entitled to recover thereon, or to make the same available for any purpose whatever. The pursuer, therefore, having received from the said John Grant the insufficiently stamped bill of exchange or cheque sued on, is not entitled to recover the amount thereof in the present or any other action.”

The pursuer appealed to the Court of Session, and argued—(1) The Sheriff's judgment was wrong under the Stamp Act, for this cheque being an order to pay out of a particular fund, i.e., the sum at deceased's credit in his bank account, was a bill payable “on demand,” and therefore chargeable only with a penny stamp—33 and 34 Vict. c. 97, sec. 48, subsec. 2, and schedule. (2) The delivery of this cheque constituted a gift inter vivos of the sum contained in it, by the deceased to pursuer, for it was payable on demand after a date certain. The pursuer acquired, by possession of the cheque, a right to uplift the sum at once after the occurrence

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of an event which was certain to happen. The deceased had dispossessed himself of the amount, and put it beyond his reach, and therefore the question of revocation did not arise. (3) Alternatively, if not a donatio inter vivos it was a donatio mortis causa, for it was to be paid in the event of death. The delivery of the cheque, and the circumstances attending it, were sufficient evidence to satisfy the Court of the man's intention to bestow this sum in gift on the pursuer— Morris v. Riddick, July 16, 1867, 5 Macph. 1036, per Lord President, 1041; Bryce v. Young, Jan. 20, 1866, 4 Macph. 312; Mitchell v. Wright, 1759, M. 8082; Thxmson v. Dunlop, Jan. 23, 1884, 11 R. 453; Macarthur Stewart v. Fullarton, 1782, M. 1408; Steel v. Wemyss, 1793, ib. 1409.

The defenders replied—(1) The document was invalid under the Stamp Act for the reasons given by the Sheriff. (2) There was here no donatio inter vivos, for there was no present delivery of a sum of money. The deceased did not part with anything. (3) Nor was it a donatio mortis causa, because (a) no property passed; ( b) it was not made in contemplation of death, the deceased being in good health at the time of giving it; (c) if it was so intended, it was revoked by his will. If it was anything, it was an attempt to make a bequest, but not a valid one.

Authorities quoted by pursuer ( supra).

At advising—