Taylor v Nisbet
| Jurisdiction | Scotland |
| Judgment Date | 08 November 1901 |
| Date | 08 November 1901 |
| Docket Number | No. 22. |
| Court | Court of Session |
Lord Justice-Clerk, Lord Young, Lord Trayner, Lord Moncreiff.
Proof—Deposit—Gratuitous deposit of bank-notes for safe keeping—Parole—Onus of proving restoration—Prescription—Quinquennial.—
The Act 1669, cap. 9, enacts that ‘all bargains concerning moveables or sums of money proveable by witnesses shall only be proveable by writ or oath of party, if the same be not pursued for within five years after the making of the bargain.’
In an action for recovery of a sum of money deposited in the shape of bank-notes custodiœ causa, held that a deposit of bank-notes for safe keeping might be proved prout de jure, (2) that the quinquennial limitation did not apply, and (3) (diss. Lord Young) that where a deposit was proved the onus of proving restoration was on the depositary.
Charles Taylor, brickworks manager, Denny, raised an action in the Sheriff Court at Glasgow against Henry Nisbet, colliery manager, Shettleston, concluding for payment of the sum of £140 as the balance of a sum deposited by him with the defender for safe keeping.
The pursuer averred;—(Cond. 1) ‘In or about the month of August 1890 the pursuer, who at that time was employed by the defender at a colliery situated at Devon, near Alloa, Clackmannanshire, which was managed by the defender, handed to the defender for safe keeping the sum of £290 sterling.’ (Cond. 2) ‘The defender subsequently repaid to the pursuer the sum of £150.’
The defender, in answer, admitted receiving the sum of £275 from the pursuer for safe keeping, and averred that about a week after receiving it he repaid it to the pursuer, who thereafter burned part of it in his own house, and shortly after the burning deposited with the defender for safe keeping the sum of £150, which the defender repaid in three separate sums of £50 each in the years 1897, 1898, and 1899.
The defender pleaded, inter alia;—(3) The pursuer's averments can only be proved scripto vel juramento.
The defender also lodged a minute craving leave to add a plea in law as follows:—‘Separatim, assuming that the contract in question is proveable by witnesses, then the quinquennial prescription applies’; but the plea was never formally added.*
Thereafter the Sheriff-substitute (Spens) allowed a proof prout de jure,† and on appeal the Sheriff (Berry) adhered.‡
A proof was led, from which it appeared that the pursuer's mother died intestate in 1890, leaving a sum of about £300. The pursuer, his father, and his sister Mrs Cameron, were at that time living together, and by arrangement between them the sum was deposited in bank in the names of the pursuer and Mrs Cameron. Shortly afterwards, by agreement between the pursuer and Mrs Cameron, it was redeposited in pursuer's name.
At that time Mrs Cameron was living separate from her husband, but after her mother's death her husband proposed that they should live together again, and she, being disposed to assent, demanded from the pursuer her share of the money. The pursuer, however, was unwilling that his brother-in-law should benefit, and refused to divide, with the result that quarrels ensued, and Mrs Cameron threatened to enforce payment. The pursuer's father, who was somewhat dissipated, also demanded a share, and the pursuer, in order to remove the money beyond the reach of his father and Mrs Cameron, agreed with the defender that the latter should accept the custody of it.
The pursuer's and defender's evidence, as summarised by the Sheriff-substitute, was to the following effect:—The pursuer deponed ‘that when he deposited the sum with the defender, the latter advised him to pretend to burn the whole of the money; the defender took some old plans or tracing-paper, and cut them up to the size and number of the notes in which the money was contained; a packet was thus formed with a real £1 note at top and bottom, and the pursuer, taking the first occasion of a quarrel with Mrs Cameron, locked the door as she left it for an instant, and while she looked through the window, threw the packet into the fire, where it was burned.’
The defender, on the other hand, deponed ‘that about eight days after the pursuer deposited £275 with him the pursuer got it back
on the ground of a probable agreement for division with his father and sister. In a few days the defender heard a rumour of the burning, and he asked the pursuer for an explanation. The latter called upon him and described a quarrel with his sister in which he had thrown the money in the fire, except a sum of £150 which he then handed to the defender, and it was agreed that it should be repaid in sums of £50, either to divide it or to bank it, whichever he thought fit.’
It further appeared that Mrs Cameron saw the pursuer destroy a packet of the kind described, but that she could not tell if it contained bank-notes, though she and her father were and remained of opinion that the whole money had been destroyed, and that in April 1891 Mrs Cameron and the pursuer signed a formal minute of agreement, whereby, on the narrative that the whole money had been burned by him in July 1890, the pursuer undertook to pay to her a sum of £50 in full of all claims by her, which undertaking, however, he did not carry out. It also appeared from the evidence of William Forsyth, colliery manager, Wishaw, that in 1890 the defender shewed him two £100 notes, which he said were the property of the pursuer, explaining that he held the money in order to prevent the pursuer's father getting possession of it.
On 26th November 1900 the Sheriff-substitute (Boyd, who took up consideration of the case on the death of Sheriff Spens) found it proved that the pursuer deposited £275 with the defender for safe-keeping; that the defender had repaid £150; and gave decree for the balance, £125, with expenses.
On appeal, the Sheriff (Berry) adhered.*
The defender appealed, and argued;—The allowance of proof prout de jure by the Sheriffs was wrong; it should have been limited to writ or oath of the defender. The general rule was that obligations as to money exceeding £100 Scots could not be proved by parole.1 There seemed to be no good reason why, if a loan of more than £8, 6s. 8d. could only be proved by writ or oath, a deposit of over that amount should be provable by parole. But even if this deposit was provable by parole in the first instance, it was not so after five years, being struck at by the quinquennial prescription,—by the Act 1669, cap. 9, which applied to deposit.2 If however it was competent to look at the parole evidence, the only evidence of deposit was the defender's admission, and that admission could only be taken along with the qualification attached to it by the defender, viz., that he had repaid the money, and that all he had thereafter got was the £150, which admittedly he had paid back. The onus was not on the defender to prove this qualification, but on the pursuer to disprove it,3 which, on the evidence, he had not done.
Argued for the pursuer;—Proof of deposit was not limited to writ or oath, and there was no analogy between it and loan. Further, the quinquennial limitation did not apply, and the...
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