Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 SALE.
Subject_3 Lands being exposed to Sale, and the articles bearing that the purchaser was to accept such progress as could be delivered, and to be debarred from objecting on that account, found to be an effectual sale, though the progress was defective.

Bessie Rowand, and Others,
v.
James Cochran

Date: 27 November 1769

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[Faculty Collection, V. p. 10; Dictionary, 14, 178.]

Monboddo. A man buying by a lame progress, is like a man buying a lame horse, knowing him to be lame: he has no relief. There was no fraud here; but, on the contrary, the faulty part of the progress was produced, which the seller might have secreted.

Justice-Clerk. The words of the articles of roup are irresistible. The sale would have been good, although the progress had been worse. The purchaser may have been ignorant or careless; but that makes no difference.

Gardenston. It would destroy the credit of all public roups were we to set aside this sale.

On the 24th November, “the Lords remitted to the Ordinary.” [It was understood that he should find the price due, upon turning the decreet into a libel; but this could not be done directly, because the charge was for the penalty, not for performance, although the parties had joined issue upon the merits of the sale.]

Act. Ilay Campbell. Alt. R. Cullen. Rep. Auchinleck.