N. G. Fergusson & Co., Ltd v. Brown & Tawse [1917] ScotLR 485 (12 June 1917)

N. G. Fergusson & Co., Ltd v. Brown & Tawse [1917] ScotLR 485 (12 June 1917)

The action of furthcoming cannot proceed because the underlying debt was not payable at the relevant time due to the outbreak of war, which made payment illegal. The arrester cannot obtain a better right than the German creditor, and the arrestee's liability is suspended. The action is therefore sisted until such time as the debt becomes payable.

Citation
[1917] ScotLR 485
Parties
Pursuer: N. G. Fergusson & Company, Limited; Arrestee/defender: Brown & Tawse; Principal Debtor: Eisenwerk Kraft Aktiengesellschaft, Duisburg, Germany
Jurisdiction
Scotland
Judgment Date
12 June 1917
Procedural Posture
Action of Furthcoming / Inner House, First Division, Reclaiming Motion Against Lord Ordinary's Interlocutor
Outcome
Action sisted (stayed); interlocutor of Lord Ordinary recalled.
Legal Topics
Trading With the Enemy, Arrestment and Furthcoming, Suspension of Contractual Obligations, Conversion of Foreign Currency Debts
Contract Law War and Emergency Legislation Debt Recovery Trading With the Enemy Arrestment and Furthcoming Suspension of Contractual Obligations Conversion of Foreign Currency Debts

Case Brief

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Parties

N. G. Fergusson & Company, Limited

Pursuer

Brown & Tawse

Arrestee/defender

Eisenwerk Kraft Aktiengesellschaft, Duisburg, Germany

Principal Debtor

Procedural Posture

Action of Furthcoming / Inner House, First Division, Reclaiming Motion Against Lord Ordinary's Interlocutor

Legal Issues

  1. 1 Whether a British creditor can recover a debt due by a British debtor to a German firm when payment became illegal due to war
  2. 2 Whether the action of furthcoming should proceed when the underlying debt is not presently payable due to wartime prohibition
  3. 3 How to value a foreign currency debt for the purposes of furthcoming

Ratio Decidendi

The action of furthcoming cannot proceed because the underlying debt was not payable at the relevant time due to the outbreak of war, which made payment illegal. The arrester cannot obtain a better right than the German creditor, and the arrestee's liability is suspended. The action is therefore sisted until such time as the debt becomes payable.

Court Disposition

Action sisted (stayed); interlocutor of Lord Ordinary recalled.

Orders

  • The interlocutor of the Lord Ordinary is recalled.
  • The action is sisted (stayed) until the debt becomes payable.