Scottish Court of Session Decisions

Subject_1 PRESUMPTION.
Subject_2 DIVISION III.

Donatio non præsumitur.
Subject_3 SECT. XI.

Money given upon Receipt.

George Ogilvie
v.
Alexander Abercrombie

Date: 7 January 1703
Case No. No 184.

Receipt granted for money, in general implies an obligation to re-pay.

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George Ogilvie of Newrain, as executor confirmed to George Abercrombie of Tilly body, pursues Alexander Abercrombie of Skeith for 300 merks contained in his ticket, bearing, he had received that sum from the said George Ogilvie in name of Abercrombie of Tillybody. Alleged, 1mo, The ticket was null, wanting writer's name and witnesses. Answered, Offered to prove by his oath the subscription was his, and he had not repaid the money nor counted for it. The Lords repelled the defence, in respect of the answer. Alleged, 2do, The ticket was not binding, containing no obligement to repay, but only the naked receipt of the money, and so was a pure gratuity and donation; for Tillybody being his near cousin, and unmarried, he was in use to give his near relations some small acknowledgments; and Mr Ogilvie, now pursuer, being his factor and trustee, he took a receipt for instructing to Tillybody, that, according to his order, he had given the money; and if there had been the least design of exacting it, he would have either insert that it was borrowed, or else an express obligement to repay. Answered Any Writ acknowleding the receipt of money, (except to debtors or tenants) imports in its very nature a tacit obligation to repay, and donation is not presumed, but either mutuum or commodatum, unless you instruct quo titulo you received it, et quo jure you retain it. The Lords were clear, that receipt of money did in the general imply repayment; but in this case of an old rich man having no children, and in use to gratify his poor friends with such like favours, and this pursuer being the very person who took these tickets without inserting a clause for payment, this omission must be construed against him qui potuit legem apertius dixisse, and therefore found it not obligatory in this circumstantiate case.

Fol. Dic. v. 2. p. 150. Fountainhall, v. 2. p. 172.