Scottish Court of Session Decisions

Subject_1 FACULTY.

Cunningham
v.
Creditors of Balquhan

1739, Nov. 14.
Case No. No. 5.

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The Lords agreed that Miss Cunningham upon her personal bond in exercise of the faculty had no real right upon the subject, and was not preferable to the real creditors of the son; but they found her preferable to his personal creditors who had done no diligence (no more than she had) to affect the estate; which to me appeared a very new and odd decision, that in competition of creditors merely personal for the price of the lands, none of whom had any real right in the lands, or used diligence for affecting the same, should yet be preferable one of them to the rest, since the law knows no privileged debts upon lands other than what are real. Arniston put his opinion upon this, that the reserved faculty was an implied prohibition to the son to contract debt in prejudice of the faculty, and the President seemed to carry the observation farther, to be a sort of inhibition to the lieges to lend to the son in prejudice of the faculty; but Arniston would not carry it so far. But I own the whole went far beyond the reach of my poor understanding.—11th December Adhered seven to six.—Vide 21st June 1737, the case of Dr Ogilvie's Creditors, (No. 1.)