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J. W. DICKSON AND W. H. DUNBAR, Esgrs. ADVOCATES;.
AND JOHN RYMER, Esg. W.S.
REPORTS OF CASES
DECIDED IN THE
· HOUSE OF LORDS,
COURTS OF SESSION, TEINDS, AND JUSTICIARY,
OUTER-HOUSE CASES, AND ACTS OF SEDERUNT,
TWELFTH NOVEMBER EIGHTEEN HUNDRED AND THIRTY TO NINTH JULY EIGHTEEN
HUNDRED AND THIRTY-ONE, INCLUSIVE.
PRINTED BY MICHAEL ANDERSON.
COURT OF SESSION.
ranking and sale having been raised by Rae, an heri.
table creditor, Mr Dickson, was appointed common INNER-HOUSE.
agent therein. Before these and some other rela
tive actions were terminated, both Elizabeth Graham 12th November 1830.
and John Carruthers, the heir of entail, died, and the No. 1.- JAMES CARRUTHERS v. John Dickson.
succession then opened to the pursuer, James CarruRanking and Sale- Competent and Omitted-Personal Ex
thers, the eldest son of the marriage betwixt Christoception- The heir of entail of a properly, sequestrated and
pher Carruthers and Elizabeth Graham. The said James tindler sale for the entailer's debts, having purchased a part Carruthers also became creditor in two-thirds of the of it under protesl, at the judicial sale which took place under heritable bond of £800, the remaining third being a renewed warrant of sale, and afterwards brought a reduc
vested in his sister, Christiana Carruthers. Under the tion of the subsequent decree of sale, on the ground, inter alia,
ranking and sale, two portions of the estate were sold 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
in 1792, and the common agent, supposing that the the estate ; but not having impugned the grounds and warrants proceeds would be sufficient to pay the debts, applied of the decree of sale--Circumstances in which, held that the de to the Lord Ordinary to postpone the sale of the çree of sale was not reducible.
third portion, consisting of the lands of Longdyke, John Carruthers of Hardriggs, executed a deed of intending to reserve it for the family. But, in conentail in the year 1775, containing irritant and re sequence of Christopher Carruthers' right to an alisolutive clauses, conveying his lands, Hardriggs, Raf mentary liferent of the estate, by virtue of the entail fles, Longdyke, &c., all lying in the county of Dum and trust-deed, the judicial management of the estate fries, to himself as institute, and to his only son, was retained by Messrs Dickson and Little, and the Christopher Carruthers, as the first substitute of judicial factor appointed by the Court (Mr Little) entail, and his heirs-male. This entail was never continued to uplift the rents, and to employ them in payrecorded nor followed by infestment; and the said ing aliment to Christopher Carruthers, and the interest Christopher Carruthers having subsequently become still due to the said James Carruthers upon his share bankrupt, the entailer (John Carruthers), in 1778, of the £800 bond. In the decree of ranking, Mr executed a trust-conveyance of all his property, which Dickson (the common agent's) claim for expenses had he had previously entailed, in favour of certain been allocated on a part of the lands purchased by a trustees, for the following purposes :- 1. For the pay Mr Campbell, who objected to payment of Mr Dickment of his debts.-II. For providing his widow with son's account until he should constitute his debt by a an annuity.-III. For providing Elizabeth Graham, decreet, and adjudge the estate; and on that account the second wife of his son, Christopher Carruthers, presented a bill of suspension, which was answered by and their children, with certain provisions, (all of Mr Dickson, and refused. The expense incurred by Mr which were subsequently reduced, except a bond for Dickson in this litigation, and a separate claim of ex£800); and IV. For providing the said Christopher penses against Christopher Carruthers, were, inter alia, Carruthers with such alimentary allowance, for the
the grounds of an application to the Court (6th June maintenance of himself and family, and for the educa 1806,) for the sale of the remainder of the estate, consiste tion of his children, as the trustees might think fit.
ing of the property of Longdyke, thon valued at about By this trust-deed, on which infeftment was taken, £1700. In consequence of Mr Dickson having been the entail was altered, in so far as concerned Chris obliged, by embarrassments, to retire from business topher Carruthers, who was thereby excluded and
sometime before, Mr W. Johnstone, defender, who debarred from the succession, and the rents arising was appointed his (Mr Dickson's) agent in the protherefrom, except as to the alimentary allowance cess, was the person who presented the petition, which above-mentioned. The entailer died in January originated as follows:- In 1804, Mr Dickson called 1787, leaving considerable debts, both heritable and
a meeting of creditors at Dumfries, which was atmoveable. Two of the trustees named by him, Mr
tended by himself (common agent), Mr Little (ju. Carlyle, and Mr Graham, accepted, and entered | dicial factor), Peter Phillips, an alleged creditor, on the management, and were proceeding to sell in a sum expended in repairs upon his farm at part of the estate, in terms of the trust, when John
Longdyke, and John Burney, another tenant at Carruthers, Christopher's eldest son by a former mar
Longdyke, and alleged creditor, who produced no riage, and the apparent heir of entail, employed Mr
sufficient claim. Mr Dickson was instructed by this John Dickson, W.S., to bring an action of count and
meeting to apply to the Court, to get the estate of . reckoning against them ; and soon after, a process of Longdyke sold. Christopher Carruthers at first agreed Vol. III.