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The Court (6th June 1840) refused the petition, with expenses . Against this interlocutor the petitioners appealed to the House of Lords. On the evening of the 30th June they presented a second note of suspension, praying the Court to postpone the sale, (which had been appointed to take place this day at 2 o'clock p. m.,) on the ground of the appeal. The Lord Ordinary on the Bills (Ivory) reported the case.
Lord Mackenzie .—My doubt is, whether it would not be a disadvantage to, and contrary to the interests of the creditors, if there was a sale at present, seeing this gentleman may succeed in his declarator, and the fee-simple estate may then be disposed of.
Lord Fullerton .—I do not think the circumstance of the former suspension and interdict being refused without appeal is of much importance. Its object and its prayer was limited. The petition had been presented during the vacation; and the suspension and interdict merely prayed that the sale should be interdicted till the petition came to be advised. That object was attained: Nothing did take place till the petition was advised; and there could be no reason for appealing from the interlocutor refusing that suspension.
The true merits of the case were raised under the petition, which stated certain grounds for delaying the sale; and on those grounds prayed the Court to exercise its discretion to that effect. The question before the Court was the sufficiency of those grounds, and the Court decided against them. I do not think it is maintained that such a judgment cannot be made the subject of an appeal; and accordingly an appeal has been received, and is intimated.
In these circumstances I rather think, that, upon the ordinary principles, this Court is bound to interfere, to prevent any irremediable alteration of matters till the court of appeal has decided. But though this Court may have no discretion in this, there is a matter involved in the application on which your Lordships clearly have a discretion, that is, the matter of caution.
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