Maclachlan v. Maxwell [1909] ScotLR 171 (25 November 1909)

Maclachlan v. Maxwell [1909] ScotLR 171 (25 November 1909)

The trustee's mere intimation to take over the security without actual payment or tender did not constitute a binding contract or exercise of the statutory option under section 65, and thus the creditor was entitled to lodge a corrective claim and revalue the security before payment was made.

Citation
[1909] ScotLR 171
Parties
Pursuer/respondent: John Maclachlan; Defender/reclaimer: John Maxwell
Jurisdiction
Scotland
Judgment Date
25 November 1909
Procedural Posture
Civil / Appeal (reclaiming Motion) From Lord Ordinary's Interlocutor
Outcome
Appeal dismissed; interlocutor of Lord Ordinary adhered to.
Legal Topics
Valuation of Security, Creditor's Rights, Trustee's Statutory Option, Sequestration Procedure
Bankruptcy Insolvency Valuation of Security Creditor's Rights Trustee's Statutory Option Sequestration Procedure

Case Brief

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Parties

John Maclachlan

Pursuer/respondent

John Maxwell

Defender/reclaimer

Procedural Posture

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

Legal Issues

  1. 1 Whether a trustee's intimation to take over security without actual payment constitutes a binding contract preventing the creditor from revaluing the security and remodelling his claim.
  2. 2 Whether the creditor is entitled to lodge a corrective claim before actual payment is tendered by the trustee.

Ratio Decidendi

The trustee's mere intimation to take over the security without actual payment or tender did not constitute a binding contract or exercise of the statutory option under section 65, and thus the creditor was entitled to lodge a corrective claim and revalue the security before payment was made.

Court Disposition

Appeal dismissed; interlocutor of Lord Ordinary adhered to.

Orders

  • Declarator granted in terms of the summons; cause continued quoad ultra.