Scottish Court of Session Decisions

Subject_1 FACULTY.

Borthwick
v.
Trades Maiden Hospital

Date: 28 June 1737
Case No. No. 2.

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Faculty reserved in a disposition of a house by a wife and her husband, to the wife with consent of the husband to burden the right with what sums she should think fit to any person by a writ under her hand at any time of her life;—the Lords thought, that faculty could only be exercised without the husband's consent, and therefore not at all after his death; 2do, That a faculty to burden did not give a power to alienate the subject; and therefore the wife having after the husband's death gratuitously disponed the house, the Lords preferred the first disposition. The papers are well written on the general point of faculties and limitations, and whether majori inest minus aut e'contra? * (See Dict. No. 7. p. 4095.)

It has been already mentioned in a former note by the Editor, that several volumes of Lord Elchies's Session papers were given in to the Advocates' Library along with his MSS.