Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.

Lady Bute's Chaplain
v.
Her Son

Date: 1 January 1666

Click here to view a pdf copy of this documet : PDF Copy

The lady Bute, after proclamation with her own chaplain, gave a discharge of the half of her jointure in favours of her own son. The chaplain, after the marriage, reducing this discharge, because granted after the proclamation of the bands of marriage betwixt him and her; by which the lieges were put in mala fide to contract with her to his prejudice; and she not being sui juris the time of the discharge, it cannot bind him:—

Answer,—He knew of that discharge the time of the granting thereof; and so he knowing, and not declaring his dissent before marriage, that must import ratification and homologation of that deed done by his wife, then his affianced spouse; because, cum prohibere potuit non voluit, and his silence imports a consent.

This the Lords repelled, and reduced the discharge, and noway found his knowledge to import a consent; for though he knew it, yet that cannot prejudge him in law from seeking the ordinary remedy in law, viz. to reduce; since, as he knew it, so he knew it to be null, and noway obligatory.

Act. Maxwell. Alt. Wedderburne. Advocates' MS. folio 55.