Craig's Trustee v. Macdonald, Fraser, & Co. [1902] ScotLR 39_773 (09 July 1902)

Craig's Trustee v. Macdonald, Fraser, & Co. [1902] ScotLR 39_773 (09 July 1902)

Auctioneers who have no right to retain for a general balance are not entitled to retain proceeds of sale to repay unsecured advances made to an insolvent debtor, and a receipt for an advance granted within sixty days of bankruptcy in knowledge of insolvency is invalid as an illegal preference under Act 1696, c.5.

Citation
[1902] ScotLR 39_773
Parties
Pursuer/respondent: John Watson Mackintosh (Trustee on the sequestrated estate of James Craig); Defender/appellant: Macdonald, Fraser, & Company, Limited
Jurisdiction
Scotland
Judgment Date
09 July 1902
Procedural Posture
Civil Appeal (bankruptcy) / Appeal From Sheriff Court to Court of Session, Inner House, Second Division
Outcome
appeal dismissed; judgment for pursuer/respondent affirmed
Legal Topics
Illegal Preference, General Lien, Right in Security, Auctioneers' Rights, Statute 1696 C.5
Bankruptcy Commercial Law Illegal Preference General Lien Right in Security Auctioneers' Rights Statute 1696 C.5

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 10 Party arguments 2 Amounts and remedies 2
Sign in to unlock

Parties

John Watson Mackintosh (Trustee on the sequestrated estate of James Craig)

Pursuer/respondent

Macdonald, Fraser, & Company, Limited

Defender/appellant

Procedural Posture

Civil Appeal (bankruptcy) / Appeal From Sheriff Court to Court of Session, Inner House, Second Division

Legal Issues

  1. 1 Whether auctioneers are entitled to retain proceeds of sale for unsecured advances made to an insolvent debtor within sixty days of bankruptcy
  2. 2 Whether the granting of a receipt for an advance within sixty days of bankruptcy constitutes an illegal preference under Act 1696, c.5
  3. 3 Whether auctioneers have a general lien over sale proceeds for prior advances in the absence of established trade custom

Ratio Decidendi

Auctioneers who have no right to retain for a general balance are not entitled to retain proceeds of sale to repay unsecured advances made to an insolvent debtor, and a receipt for an advance granted within sixty days of bankruptcy in knowledge of insolvency is invalid as an illegal preference under Act 1696, c.5.

Court Disposition

appeal dismissed; judgment for pursuer/respondent affirmed

Orders

  • Defenders to pay pursuer as trustee the sum of £244, 19s, 1d. with interest at 5% from 24th January 1901 until payment
  • Defenders liable in expenses in this Court