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Thomas Carlyle v George Lowther. [1766] Mor 8380 (27 February 1766)
URL: http://www.bailii.org/scot/cases/ScotCS/1766/Mor2008380-075.html Cite as:
[1766] Mor 8380
Litigious by denunciation upon apprising, and citation upon adjudication.
Subject_3 SECT. II.
Leases granted after Denunciation, or during the dependence of a Ranking and Sale.
Thomas Carlyle v. George Lowther
Date: 27 February 1766 Case No. No 75.
A ranking and sale, without sequestration, bars not ordinary acts of management, but bars extraordinary acts, such as a new lease during the currency of the former.
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Sir John Douglas granted a fifteen years lease of the farm of Todholes to George Lowther for a rent of L. 33 Sterling, commencing at Candlemas 1749. In the year 1756, a ranking and sale was commenced of Sir John's estate. In the year 1758, Sir John granted a new fifteen years lease of the said farm to the same George Lowther for a rent of L. 40 Sterling, to commence after expiry of the former lease, viz. Candlemas 1764. The estate was sequestrated a few months after, and Thomas Carlyle appointed factor. The factor judging it to be for the interest of the creditors to oppose this new lease, as containing a rent much under the real rent of the land, did, in spring 1763, bring an action of removing, which was followed with a reduction. And the Lords reduced the tack, as being granted during the dependence of the ranking and sale.
A ranking and sale without sequestration bars not ordinary acts of management, but ought to bar extraordinary acts, such as a new lease during the currency of a former. The rule is, nihil innovandum pendente lite; and if bankrupts were permitted, after a ranking and sale, to exercise without limitation every act of property, creditors would be in a ticklish situation. In this case there was good evidence that a higher rent might be obtained. But it appears to me, that to challenge an extraordinary act of management done in the present circumstances, it is not necessary to prove lesion. It is sufficient that it is an extraordinary act, leaving to the defender to prove that there is no lesion.
