Bruce v. The Scottish Amicable Life Assurance Society [1907] ScotLR 424 (07 March 1907)

Bruce v. The Scottish Amicable Life Assurance Society [1907] ScotLR 424 (07 March 1907)

A heritable creditor is not bound to grant an assignation of the security upon a tender of the sum claimed where the debtor reserves the right to challenge the creditor's intromissions; the creditor is entitled to a final settlement of accounts before denuding of the security, and the penalty clause covers expenses of defending such litigation. Premonition is necessary unless dispensed with by specific demand for payment.

Citation
[1907] ScotLR 424
Parties
Pursuer: John Wilson Bruce; Defender: The Scottish Amicable Life Assurance Society
Jurisdiction
Scotland
Judgment Date
07 March 1907
Procedural Posture
Civil / Appeal (reclaiming Motion) From Lord Ordinary's Interlocutor
Outcome
appeal allowed; interlocutor of Lord Ordinary recalled; defenders assoilzied (absolved)
Legal Topics
Heritable Security, Bond and Disposition in Security, Assignation, Penalty Clause, Premonition, Discharge of Security, Accounting by Heritable Creditor
Property Law Secured Transactions Scots Law Heritable Security Bond and Disposition in Security Assignation Penalty Clause Premonition +2 more

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 3 Authorities cited 8 Party arguments 2 Amounts and remedies 3
Sign in to unlock

Parties

John Wilson Bruce

Pursuer

The Scottish Amicable Life Assurance Society

Defender

Procedural Posture

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

Legal Issues

  1. 1 Whether a heritable creditor is bound to grant an assignation of a bond and disposition in security upon tender of the sum claimed, where the debtor reserves the right to challenge the creditor's intromissions.
  2. 2 Whether the penalty clause in the bond covers expenses of anticipated litigation regarding the creditor's intromissions while in possession.
  3. 3 Whether premonition is necessary before payment and assignation where the creditor is in possession under a decree of maills and duties.

Ratio Decidendi

A heritable creditor is not bound to grant an assignation of the security upon a tender of the sum claimed where the debtor reserves the right to challenge the creditor's intromissions; the creditor is entitled to a final settlement of accounts before denuding of the security, and the penalty clause covers expenses of defending such litigation. Premonition is necessary unless dispensed with by specific demand for payment.

Court Disposition

appeal allowed; interlocutor of Lord Ordinary recalled; defenders assoilzied (absolved)

Orders

  • Interlocutor of Lord Ordinary recalled.
  • Defenders assoilzied (absolved) from the conclusions of the summons.