THOMAS MANSFIELD, (Farquharson's Trustee) v Lieutenant-Colonel JOHN CAMPBELL (Court of Session)

Low brought an action, in October 1832, against Mansfield, as Finzean's trustee, for L.319:15:8, as the alleged amount of damages and expenses incurred by him in consequence of the non-implement of Mansfield's engagement to pay up his bond; in which action the Lord Ordinary, (Moncreiff,) 20th November 1835, sustained the claim of damages, reserving any question as to the amount of any of the particulars of the claim; and his Lordship stated his views of the claim in a note .

In 1833, Mansfield brought an action of relief against Colonel Campbell, on the ground that his (Mansfield's) proceedings with regard to Low's debt had been authorised by the minute of sale, and that any damages and expenses which had arisen had been caused by the Colonel's failure to pay the price according to stipulation, and concluding for the amount of Low's claim in so far as it should be sustained.

The record was closed upon the summons and defences; but a variety of correspondence betwixt the parties, and the proceedings in a submission of these matters, which, for a time, depended before the late Mr Skene, were produced and founded on.

The Lord Ordinary therefore thinks, that a party who has so made a voluntary purchase of a bankrupt estate, is by no means entitled to break through the engagement for the payment of the price, and convert the purchase-money into a permanent loan in his own hands, pleading that all he is bound for is the legal interest. Where actual damage is proved, so directly as it is in this case, to have arisen from the failure, the Lord Ordinary conceives that that damage must fall on the proper party by whom it has been occasioned.

The record made up upon the summons and defences has been too loosely closed. Even the undoubted fact, that the sale was concluded on the 1st May 1829, does not appear from it, though it is stated in the other processes. But the first term of payment being Whitsunday 1829, shews plainly that the sale was concluded before that time, though the minute of sale was not completed till a later period.