Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ROGER HOG OF HARCARSE.

Sir Patrick Hepburn
v.
Mary Bruce

1682. February.

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Dougal Macpherson having taken a bond, whereon infeftment followed, to himself in liferent, and his son in fee, with power to him, the father, to uplift and dispose of the money, without the son's consent,—which Dougal did afterwards discharge in favours of his son, who married, and died,—the son's relict, as creditor to her husband, to whom the father was liable by the warrandice in the discharge, having raised a process against the father, for declaring her hushand's right to the bond, and inhibited him thereon; Dougal thereafter disponed the heritable bond to Sir John Falconer, for the value to be paid to Sir Patrick Hepburn, who, as creditor ab ante to the disponer, raised the reduction of the discharge upon the Act of Parliament, 1621; and the son's relict raised reduction of the disposition, ex capite inhibitionis. Alleged for the relict, That the reduction of the discharge would signify nothing; seeing, the faculty being personal, and not affected by diligence before Dougal's death, it is expired, though there were no discharge of it. Answered, The disposition was an exercise of the faculty, and made the fee Dougal's, so as it might be affected by his creditors. Replied, The disposition is reducible ex capite inhibitionis, as being made after the disponer stood inhibited at the instance of the son's relict; and the making the price payable to Sir Patrick Hepburn was a gratification against the Act of Parliament, 1621. Duplied, Though the inhibition should take off the effect of the disposition, yet the disposition was such an act and exercise of the faculty, as hindered it to expire by Dougal's death, as well as if he had uplifted the money, and paid it to Sir Patrick Hepburn. The Lords found the faculty was expired by Dougal's death, and not affectable after his death.

Page 38, No. 176.