Scottish Court of Session Decisions

In the course of the sequestration of the estates of J. Dinning, writer, in Glasgow, the trustee entered on the possession of the heritable subjects, though overburdened with debt, and, in 1824, sold them by public roup. They were bought by a party who acted for behoof of the bankrupt or his son. By the articles of roup, it was stipulated that the highest offerer should grant bond for the price, with a cautioner, within ten days; failing which, the trustee was to have it in his option to forfeit the purchase. This condition was not implemented; and various arrangements were attempted, which resulted in an agreement between the trustee and Dugald M'Callum, writer in Hamilton, that M'Callum should take the place of the purchaser at the roup, on certain conditions, part of which was to allow Dinning to enter into the possession of the subjects. After the lapse of many years, during which period it was said that arrears of feuduty and interest on the heritable debts were incurred, and an action was raised against the trustee as liable for having taken up the heritable subjects, the creditors resolved, on 11th June, 1834, that M'Callum should either take the disposition to the subjects, and pay the price, or, failing a settlement on that footing within two months, the trustee should bring the property to sale of new. M'Callum and another creditor complained of this resolution, founding chiefly, 1st, On the dependence of an action at the instance of an heritable creditor (which the Court held not to affect this question); and, 2d, On a resolution of the creditors, passed in April, 1827, which, with a view to support the transaction entered into with M'Callum, had prohibited the trustee from then proceeding with a re-sale.

To this last plea, it was answered, that circumstances had altogether altered since the date of that resolution; and that, as the new sale was directed only in the event of M'Callum's failure to implement his bargain, there was nothing inconsistent with the previous resolution.