M'Allister v. Mann

Subject_1 Summary Diligence Subject_2 Promissory-note Subject_3 Consideration Subject_4 Charge — Suspension — Sale. Facts: Circumstances in which held , that summary diligence on a promissory-note in which the complainer was co-obligant was incompetent, the note not being granted for a debt due, but in consideration of a sale and conveyance of certain subjects, and it being clear that the counterpart of the obligation could not now be carried through.

James M'Allister, jeweller in Glasgow, presented this note of suspension against John Mann, C.A., Glasgow, factor for the trustees of the Glenarm Whiting Company, craving suspension of a threatened charge on a promissory-note granted by the complainer and Hugh Donaghy. The following issues were proposed:—

Whether the said promissory-note was granted by the pursuer, and received by the defender as factor foresaid, in part payment of the price of the said works, sold by the trustees, or the defender as factor foresaid to the said Hugh Donaghy: Whether the said trustees, or the defender as factor foresaid, retained possession of the said works, and refused to convey the same to Donaghy: And whether the defender has wrongfully threatened to charge the pursuer to make payment of said promissory-note.

Whether the said promissory-note was granted by the pursuer, and received by the defender as factor foresaid, in part payment of the price of the said works, sold by the said trustees or the defender as factor foresaid to the said Hugh Donaghy: Whether during the currency of the said promissory-note, the said trustees sold the said works to Robert Robertson, and allowed him to take possession thereof: And whether the defender has wrongfully threatened to charge the pursuer to make payment of said promissory-note.”

The Lord Ordinary ( Barcaple ) reported the case on the issues, with this note:—