HENRY MACDONALD v HANCOCK, WRIGHT, and BURGESS, and Thomas Wright, their Mandatary (Court of Session)

IN January 1839, Henry Macdonald, merchant in Glasgow, entered into a contract for bones with William Glenny, china merchant and bone dealer, Edinburgh. By that contract Macdonald was to pay at a certain fixed rate for Glenny's ‘collection of bones,’ from the date of the contract till Whitsunday 1840.

The bones which had been refused had been placed in the stores of Messrs Sanderson and Company, warehousemen, Glasgow. They sent Macdonald intimation of this circumstance, and, on the 15th of June, received from him an answer, saying, ‘The 30 hhds. bones referred to in your card, dated yesterday, the 14th, do not belong to me, and I therefore cannot be responsible for any damage they may sustain.’

On the 5th of July, Glenny presented a summary petition to the Judge Ordinary, praying for a warrant to sell these bones, and to have the proceeds paid over to himself in extinction pro tanto of the price, that he might proceed to purchase and forward more bones, reserving to himself right to present as many similar petitions as there should be successively refused cargoes, to have them all disposed of, one after another, in the same manner.

On the 16th August 1839, Macdonald raised an action of damages against Glenny, on the ground, first, of breach of contract on his part, in failing to supply such goods as he was bound to supply; and, second, of malicious, nimious, and oppressive use of diligence, by the multiplication of actions and arrestment. On this summons Macdonald, on 17th August, arrested the bones in the hands of the warehousemen.

Macdonald successfully resisted Glenny's application to the Judge Ordinary to have the bones sold on the footing of his summary petition. On the 2d December 1839, however, Macdonald made a written proposal to Glenny, that both of them should unite in a joint application to the Sheriff to have the bones sold, and the proceeds consigned in bank, subject to the orders of court. No notice was taken of this communication. Macdonald repeated his proposal on the 10th of December, but Glenny still declined to accede to it.