Sievwright (Crockart's Trustee) v. Hay & Co., Ltd [1913] ScotLR 313 (16 January 1913)

Sievwright (Crockart's Trustee) v. Hay & Co., Ltd [1913] ScotLR 313 (16 January 1913)

The transaction was entered into and carried through by the parties in the ordinary course of business, without intention to create a preference, and is not struck at by Act 1696, cap. 5. The defenders were entitled to retain the sum in dispute by virtue of their contractual lien and the ordinary course of dealing.

Citation
[1913] ScotLR 313
Parties
Pursuer: William Barclay Sievwright (Crockart's Trustee); Defender: Hay & Company, Limited
Jurisdiction
Scotland
Judgment Date
16 January 1913
Procedural Posture
Civil Appeal / Appeal From Sheriff Court at Perth to Court of Session, Inner House, Second Division
Outcome
Appeal sustained. Interlocutor of 12th January 1912 recalled. Defenders assoilzied (absolved) from the conclusions of the action. Pursuer found liable in expenses.
Legal Topics
Illegal Preference, Retention/lien, Transactions in Ordinary Course of Business, Act 1696 Cap. 5
Bankruptcy Commercial Law Illegal Preference Retention/lien Transactions in Ordinary Course of Business Act 1696 Cap. 5

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Parties

William Barclay Sievwright (Crockart's Trustee)

Pursuer

Hay & Company, Limited

Defender

Procedural Posture

Civil Appeal / Appeal From Sheriff Court at Perth to Court of Session, Inner House, Second Division

Legal Issues

  1. 1 Whether the auctioneer's retention of sale proceeds within sixty days of the debtor's bankruptcy constituted an illegal preference under Act 1696, cap. 5.
  2. 2 Whether the transaction was in the ordinary course of business and thus exempt from challenge under the statute.

Ratio Decidendi

The transaction was entered into and carried through by the parties in the ordinary course of business, without intention to create a preference, and is not struck at by Act 1696, cap. 5. The defenders were entitled to retain the sum in dispute by virtue of their contractual lien and the ordinary course of dealing.

Court Disposition

Appeal sustained. Interlocutor of 12th January 1912 recalled. Defenders assoilzied (absolved) from the conclusions of the action. Pursuer found liable in expenses.

Orders

  • Recall of interlocutor of 12th January 1912.
  • Addition of finding that neither party intended to create a preference.