Scottish Court of Session Decisions

Subject_1 FRAUD.

Bowack
v.
Croll

Date: 22 June 1748
Case No. No. 18.

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A Tenant having assigned his tack to one, and at the distance of some weeks, and before the assignation was intimated, granted a sub-tack of the same lands to another, who was before in possession, but without any tack; though the sub-tack was undoubtedly preferable, being first clothed with possession; yet upon a proof brought of the sub-tacksman's private knowledge of the assignation before taking his sub-tack, we preferred the assignation, and decerned in the removing that was pursued against the sub-tacksman, and decerned him in expenses, though the principal tack did not bear to assignees; for it was fraudulent in the tacksman to make these double deeds, and the sub-tacksman being in the knowledge of the assignation, was particeps fraudis; and the tacksman, nor none deriving right from him, could object that the tack did not bear assignees; and here the heritor concurred with the assignee. (See Dict. No. 164. p. 15280.)