Scottish Court of Session Decisions

Argued for respondent—The Lord Ordinary was right. Money given with the intention of being spent and things given to be consumed could not be recovered, and the doctrine of revocation did not apply. Contributions made towards the upkeep of the family could not be recovered. The pursuer had failed to distinguish between suing for a specific thing and suing for a debt. The relation of debtor and creditor was not established by the revocation of a gift. The rule applicable to corporeal moveables did not apply to money— Hutchison ( cit. supra), 5 D. at p. 472. Unless the money were earmarked, it could not be recovered — Hedderwick ( cit. supra) — and further the pursuer had acquiesced in the spending of it. The case of Laidlaw ( cit. supra) was not a case of gift, but one of loan—an advance by way of payment of debt—and therefore was not in point.

At advising—

Lord President — The only question here is whether the allowance of proof as to certain items, and the disallowance of proof as to certain other items, made by the Lord Ordinary is right.

I am of opinion that it is, and I think that the opposite view was really based on an error as to what donation between husband and wife properly is. A donation between husband and wife may, of course, be revoked, but the thing to be revoked must, I think, be a thing which is in the proper sense of the word extant. Of course if we take the cases in the books, the commonest cases are of revocation of deeds, and a deed sought to be revoked is always extant. So, too, in the case of corporeal moveables, if the subject of the donation be still extant, the donation can be recalled and the corporeal moveable brought back to the person who gave it. With regard, however, to sums of money I do not think it possible ab ante to lay down a rule, because a sum of money may be in an extant state in which it can be revoked, or it may not. But I think the great confusion made in the argument addressed to us on behalf of a universal proof lies in this, that it is not everything which in a popular sense may be said to be a donation that truly is so. That is to say, that if a husband or wife, as the case may be, allows part of their funds to be devoted to what are after all mutual purposes, then, though one spouse may have more enjoyment out of the money than the other, that would not be donation between husband and wife. Thus, for example, if a husband were to give his wife money to buy a ticket and go on holiday to the seaside, or to take lodgings at the seaside, in one sense no doubt he has given her the money, but he has not made a donation in the sense of the law. It is simply a husband saying—“I will allow my money to be spent in a certain way for household purposes, though you are to get more enjoyment out of it.” On the whole matter I am of opinion that the Lord Ordinary, looking at the particular items which I have gone carefully through, is perfectly right, and that the allowance of proof must be as he has fixed it. Of course I say nothing at all at present as to what will be the fate of these particular sums of money, because that will depend on the circumstances of each case, of which I know nothing.

Lord Kinnear—I agree with your Lordship for the reasons you have stated.

Lord Pearson—I also agree.

The Lord President stated that Lord M'Laren, who was absent at the advising, concurred in the judgment.