Gibson v. Blair [1918] ScotLR 300 (27 February 1918)

Gibson v. Blair [1918] ScotLR 300 (27 February 1918)

The action was incompetent because it was raised before any default had occurred; the interest was not yet due, and no statutory demand for repayment had been made. The creditor's rights do not extend to instituting proceedings for recovery before the debt is payable, absent insolvency or sequestration.

Citation
[1918] ScotLR 300
Parties
Pursuer: William Gibson; Defender: John Sloan Blair
Jurisdiction
Scotland
Judgment Date
27 February 1918
Procedural Posture
Civil / Appeal (reclaiming Motion) From Lord Ordinary's Dismissal
Outcome
appeal dismissed; action dismissed as incompetent
Legal Topics
Bond and Disposition in Security, Maills and Duties, Default, Prematurity of Action, Titles to Land Consolidation (scotland) Act 1868
Property Law Secured Transactions Bond and Disposition in Security Maills and Duties Default Prematurity of Action Titles to Land Consolidation (scotland) Act 1868

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 2 Authorities cited 6 Party arguments 2 Amounts and remedies 7
Sign in to unlock

Parties

William Gibson

Pursuer

John Sloan Blair

Defender

Procedural Posture

Civil / Appeal (reclaiming Motion) From Lord Ordinary's Dismissal

Legal Issues

  1. 1 Whether a creditor can raise an action of maills and duties before interest on a bond is due and payable
  2. 2 Whether the absence of default or statutory demand renders such action incompetent

Ratio Decidendi

The action was incompetent because it was raised before any default had occurred; the interest was not yet due, and no statutory demand for repayment had been made. The creditor's rights do not extend to instituting proceedings for recovery before the debt is payable, absent insolvency or sequestration.

Court Disposition

appeal dismissed; action dismissed as incompetent

Orders

  • Court adhered to the interlocutor of the Lord Ordinary dismissing the action.