The Allgemeine Deutsche Credit Anstalt and Another v. The Scottish Amicable Life Assurance Society and Others [1907] ScotLR 29 (26 October 1907)

The Allgemeine Deutsche Credit Anstalt and Another v. The Scottish Amicable Life Assurance Society and Others [1907] ScotLR 29 (26 October 1907)

The action was incompetent and premature because the pursuers sought a declarator of right to an insurance policy before it matured, with no proper contradictor present. The insurance company had no interest in the title until the policy became a claim, and the court could not bind absent parties or substitute a new contract for that in the policy.

Citation
[1907] ScotLR 29
Parties
Pursuer: Allgemeine Deutsche Credit Anstalt; Pursuer: Erttel Freyberg & Company; Defender: Scottish Amicable Life Assurance Society; Defender: Oscar Philipp; Defender: Official receiver in bankruptcy as trustee on Philipp's bankrupt estate; Defender: Gustav von Portheim; Defender: W. Schultz-Engelhard
Jurisdiction
Scotland
Judgment Date
26 October 1907
Procedural Posture
Civil Appeal (reclaiming Motion) / Inner House, First Division, Post Interlocutor
Outcome
appeal dismissed; interlocutor adhered to
Legal Topics
Declarator Ab Ante, Competency of Declarator, Proper Contradictor, Title to Policy, Prematurity of Action
Insurance Law Civil Procedure Declarator Ab Ante Competency of Declarator Proper Contradictor Title to Policy Prematurity of Action

Case Brief

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Parties

Allgemeine Deutsche Credit Anstalt

Pursuer

Erttel Freyberg & Company

Pursuer

Scottish Amicable Life Assurance Society

Defender

Oscar Philipp

Defender

Official receiver in bankruptcy as trustee on Philipp's bankrupt estate

Defender

Gustav von Portheim

Defender

W. Schultz-Engelhard

Defender

Procedural Posture

Civil Appeal (reclaiming Motion) / Inner House, First Division, Post Interlocutor

Legal Issues

  1. 1 Whether an action of declarator ab ante is competent against an insurance company before the policy matures
  2. 2 Whether there is a proper contradictor present for a declarator of title to an insurance policy not yet a claim

Ratio Decidendi

The action was incompetent and premature because the pursuers sought a declarator of right to an insurance policy before it matured, with no proper contradictor present. The insurance company had no interest in the title until the policy became a claim, and the court could not bind absent parties or substitute a new contract for that in the policy.

Court Disposition

appeal dismissed; interlocutor adhered to

Orders

  • Action dismissed as against the Scottish Amicable Life Assurance Society
  • Court adhered to the Lord Ordinary's interlocutor