COURT OF SESSION.

INNER-HOUSE.

12th November 1830.

No. 1.-JAMES CARRUTHERS v. JOHN DICKSON. Ranking and Sale-Competent and Omitted--Personal Exception-The heir of entail of a property, sequestrated and under sale for the entailer's debts, having purchased a part of it under protest, at the judicial sale which took place under a renewed warrant of sale, and afterwards brought a reduction of the subsequent decree of sale, on the ground, inter alia, that at the time the warrant was applied for, and at the time the sale took place, there were no debts of the entailer directly affecting the estate; but not having impugned the grounds and warrants of the decree of sale-Circumstances in which, held that the decree of sale was not reducible.

John Carruthers of Hardriggs, executed a deed of entail in the year 1775, containing irritant and resolutive clauses, conveying his lands, Hardriggs, Raffles, Longdyke, &c., all lying in the county of Dumfries, to himself as institute, and to his only son, Christopher Carruthers, as the first substitute of entail, and his heirs-male. This entail was never recorded nor followed by infeftment; and the said Christopher Carruthers having subsequently become bankrupt, the entailer (John Carruthers), in 1778, executed a trust-conveyance of all his property, which he had previously entailed, in favour of certain trustees, for the following purposes:-I. For the payment of his debts.-II. For providing his widow with an annuity.-III. For providing Elizabeth Graham, the second wife of his son, Christopher Carruthers, and their children, with certain provisions, (all of which were subsequently reduced, except a bond for £800); and IV. For providing the said Christopher Carruthers with such alimentary allowance, for the maintenance of himself and family, and for the education of his children, as the trustees might think fit. By this trust-deed, on which infeftment was taken, the entail was altered, in so far as concerned Christopher Carruthers, who was thereby excluded and debarred from the succession, and the rents arising therefrom, except as to the alimentary allowance above-mentioned. The entailer died in January 1787, leaving considerable debts, both heritable and moveable. Two of the trustees named by him, Mr Carlyle, and Mr Graham, accepted, and entered on the management, and were proceeding to sell part of the estate, in terms of the trust, when John Carruthers, Christopher's eldest son by a former marriage, and the apparent heir of entail, employed Mr John Dickson, W.S., to bring an action of count and reckoning against them; and soon after, a process of Vol. III.

J. W. DICKSON, W. H. DUNBAR, Advocates, JOHN Conducted by RYMER, W.S., and others, Members of the Bar.

ranking and sale having been raised by Rae, an heritable creditor, Mr Dickson, was appointed common agent therein. Before these and some other relative actions were terminated, both Elizabeth Graham and John Carruthers, the heir of entail, died, and the succession then opened to the pursuer, James Carruthers, the eldest son of the marriage betwixt Christopher Carruthers and Elizabeth Graham. The said James Carruthers also became creditor in two-thirds of the heritable bond of £800, the remaining third being vested in his sister, Christiana Carruthers. Under the ranking and sale, two portions of the estate were sold in 1792, and the common agent, supposing that the proceeds would be sufficient to pay the debts, applied to the Lord Ordinary to postpone the sale of the third portion, consisting of the lands of Longdyke, intending to reserve it for the family. But, in consequence of Christopher Carruthers' right to an alimentary liferent of the estate, by virtue of the entail and trust-deed, the judicial management of the estate was retained by Messrs Dickson and Little, and the judicial factor appointed by the Court (Mr Little) continued to uplift the rents, and to employ them in paying aliment to Christopher Carruthers, and the interest still due to the said James Carruthers upon his share of the £800 bond. In the decree of ranking, Mr Dickson (the common agent's) claim for expenses had been allocated on a part of the lands purchased by a Mr Campbell, who objected to payment of Mr Dickson's account until he should constitute his debt by a decreet, and adjudge the estate; and on that account presented a bill of suspension, which was answered by Mr Dickson, and refused. The expense incurred by Mr Dickson in this litigation, and a separate claim of expenses against Christopher Carruthers, were, inter alia, the grounds of an application to the Court (6th June 1806,) for the sale of the remainder of the estate, consisting of the property of Longdyke, then valued at about £1700. In consequence of Mr Dickson having been obliged, by embarrassments, to retire from business sometime before, Mr W. Johnstone, defender, who was appointed his (Mr Dickson's) agent in the process, was the person who presented the petition, which originated as follows:-In 1804, Mr Dickson called a meeting of creditors at Dumfries, which was attended by himself (common agent), Mr Little (ju. dicial factor), Peter Phillips, an alleged creditor, in a sum expended in repairs upon his farm at Longdyke, and John Burney, another tenant at Longdyke, and alleged creditor, who produced no sufficient claim. Mr Dickson was instructed by this meeting to apply to the Court, to get the estate of. Longdyke sold. Christopher Carruthers at first agreed

No. I.