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Scottish Court of Session Decisions >>
Cranston v Cranston. [1586] Mor 7125 (00 November 1586)
URL: http://www.bailii.org/scot/cases/ScotCS/1586/Mor1707125-001.html Cite as:
[1586] Mor 7125
Private knowledge of interdiction puts not the party in mala fide to contract with the person interdicted. Publication is indispensably required.
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Cranston, brother to the Laird of Cranston, having a tack and assedation set to him by his umquhile father of the lands of Sprouston, pursued the Laird of Cranston, his brother, for the wrongous intromitting and taking up of the duties of the said lands, and debarring the pursuer to use his tack. It was excepted, That the pursuer could have no action, because of the said tack, by reason there was contract of marriage betwixt his umquhile father and the Laird of Dalhousie, whereinto it was provided, that the pursuer's father should be interdicted from all alienation of any part of his lands; and this contract and interdiction was made ex causa onerosa, by reason of great sums that were debursed by Dalhousie, for completing the said marriage. The defender offered him to prove, that it was perfectly known to the pursuer, and so he could not but be in dolo to take any assignation or tack thereafter of his father of the said lands of Sprouston, which were a part of his heritage. To this was answered, by reply, That the allegeance was not relevant, that he had knowledge and knew of the said contract, and interdiction contained therein, except he would allege, that the interdiction was published and intimated to the pursuer; quia in hoc actu requiritur non solum simplex scientia, sed intimatio sive denunciatio, quæ est de substantia, de qua re, vide D. De diversis reg. juris, and M'Calzean against M'Calzean, No 54. p. 854.; and so the simple knowledge of the contract could not put the pursuer in mala fide, except sufficient denunciation or intimation of the interdiction had been made. The Lords, una voce dicentes, admitted the reply, and found, that the simple knowledge of the said contract could not put the pursuer in mala fide to take an assedation of his father, except they would allege an intimation to be made.
