becoming purchasers in future; yet, as at present they are under no legal disability, it would be equally contrary to justice and to the principles of our law, to give a retrospect to such a regulation; that an apparent heir, purchasing adjudications by private bargain, would not have been subjected in a passive title 'previous to the act 1695, c. 24, nor would a factor on a sequestrated estate, buying a debt affecting it, have been considered as ' entering into an illegal transaction before the act of sederunt 25th • December, 1708, and that the sale in question was valid on the very same principle,' York Buildings Company v. M‹Kenzie, 8th March, 1793.

The case was carried by appeal to the House of Lords, where the judgment, as has been already mentioned, was reversed.

281. (3.) The common law principle which prohibits a factor or trustee from purchasing debts due by his constituents, or rights affecting the estate under his charge, is, in the case of factors appointed by the Court of Session in a sequestration of a land estate fortified by an act of sederunt, dated 25th Dec. 1708, by which factors over such estates are prohibited from buying in and componing the debts affecting the same;' and it is declared that if any such purchases shall be made, they shall be held equivalent to a discharge and renunciation of the debts, so that the lands and the debtor shall be freed and disburdened of the same; and, further, that if any abatement or gratuity shall be obtained from any of the creditors, the benefit of it shall accrue to the common debtor and his creditors.

With regard to the power of a tutor to buy the property of his ward, the general rule of the Roman law, which is also agreeable to the law of Scotland, was tutor rem pupilli emere non potest*. But this rule was subject in the Roman law to certain exceptions and modifications, with regard to which it may be doubted whether they have place in our law, although Mr. Erskine seems to sanction them by his authority.

Mr Erskine says, • neither tutors nor curators can be auctorcs in rem suam. They cannot, contrary to the nature of their trust, interpose their authority to any deed of the minor, in which themselves have an interest, or which tends to produce an obligation

1. 34. § 7. ff de contr. empt. The tutor could not purchase either directly in his own name, or by the interposition of another, I. 5. § 3. and § ull, de auctor, et cons. tutor. Domat. 1. 76, § 1.

against him in their own favour, more than they can be judges or < witnesses in their own cause. Thus a tutor cannot lend money 'to the minor, because a loan lays the debtor under an obligation of repayment, l. 5, pr. de auct. et cons. tut. ; nor can he purchase any * subject belonging to the minor, unless it be put up to public sale, in which particular case, his raising the price of the minor's goods, 'must, without exposing him to the least danger, bring him a certain profit. But a deed authorised by a quorum of the tutors, 'from which an interest arises to a co-tutor, who does not concur in that deed, stands good, unless lesion be proved *."

That these observations of Mr. Erskine are supported by the Roman law, appears from 1. 5. § 2. ff. de auct. et con. tut. and l. 5. C. de contr. empt.; and from other texts it appears, that when the pupil's goods were brought to sale by a creditor, the tutor might buy them, l. 5. § 5. ff. de auct. et consens, tutor. But from the decisions which have been pronounced in later times, in the analogous cases above mentioned, there seems great room for doubting, whether any distinction would now be made in our Courts, between the case of a tutor buying his ward's property by private bargain, and his buying it at a public sale by auction, or between his purchasing it when it is sold by himself, or his doing the same thing when it is brought to sale by a creditor. The principle now adopted in cases of this kind seems to be, that when a person acts for behoof of another whose interest is entrusted to his care, he cannot, consistently with the due performance of his duty, act, at the same time, and in the same transaction, for his own behoof, and with a view to his own advantage. †.

I have not observed, that the question, whether a tutor may buy a subject belonging to his ward when the sale is by public auction, has been decided in any reported case in Scotland. But in an English case already mentioned, where the purchase of a part of a bankrupt estate made by the solicitor of the assignees

Ersk. 1, 7, 19. The principle Tutor in rem suam auctor fieri non potest, appears to have been received in our law from a very early period. See Macneill v. Macneill 26 July, 1564, Mor. 16229. Lord Sanquhar v. Crichton, March, 1583, Mor. 16233. + Vide supra, No. 272-282. This principle was lately applied to commissioners on a bankrupt estate, in a case where it is said that the Court expressed an unanimous opinion, that a commissioner upon the sequestrated estate of a bankrupt cannot ⚫ become a purchaser of the unrecovered debts due to the estate exposed to auction ⚫ under the bankrupt act,' M'Kellar v. Balmain, 8th March, 1817.

was set aside, the Lord Chancellor held that the circumstance of such a purchase being made at a public auction, made no difference on the principle, Ex parte James 8. Ves. Jun. 337.

283. Upon the same principle which forbids a tutor to buy any subject belonging to his ward, he is also laid under restraint with regard to the power of purchasing from third parties rights affecting his ward's estate. The rule of our law upon this matter is thus laid down by Erskine. Tutors or curators who have acquired rights affecting the minor's estate for a sum less than they have a just title to draw, are obliged to communicate the benefit ' of such transactions to the minor, though it should appear that the rights were purchased with the tutor's proper money; for in every transaction of a tutor or curator which had a natural con❝nection with the minor's estate, it is presumed that he acts as his trustee, which doctrine is borrowed from the Roman law, Nov. 72. c. 5. and, if it were otherwise, a tutor, through his knowledge of the minor's affairs, and concealing them from ' others, might raise to himself a fortune by such purchases at his 'ward's cost. Nay, though the right made over to the tutor should bear to be granted from personal favour, the presumption • that he accepted it on behalf of the minor will prevail over the recital of the right. February 17, 1732, Cochran *.

284. The reasons which render it inexpedient to allow tutors to buy subjects belonging to a pupil under their charge, and which create the presumption that in acquiring from third parties rights affecting the pupil's estate they act for his behoof, are equally applicable to curators, who are, therefore, liable to the same restraints and prohibitions in this respect as tutors †.

285. VIII. By act of Parliament, 1594, c. 220, it is declared, • That in time cumming it sall not bee leisum to onie Lordes of the Session, ordinar or extraordinar, advocates, clerkes, writters,

*Ersk. 1. 7. 19. In one case, it was held that a factor named by tutors can no more take the benefit of the pupil's debts, or of rights upon the pupil's estate, than the tutor himself can. Lord Ludquhairn v. Lord Haddo, 28th March, 1632.

But a minor pubes is in a different situation from a pupil in respect to the sale of his heritage. It has already been stated, in considering the power of a minor pubes, to enter into the contract of sale, that he is not only entitled, with consent of his curators, to alienate his heritage without the authority of a judge, but that the Court of Session, upon application having been made to them for that purpose, have refused to interpose their authority, Vide supra, No. 246, note.

their servandes, or ony uther member of the College of Justice, or ony inferiour judgements within this realme, their deputes, ' clerkes, or advocates, directly or indirectly, be themselves, or ony uthers in their names to their behove or utility: To buy ony lands, teinds, rowmes, or possessiones, quhilkis ar dependand in controversie or question betwixt ony parties, or has bene de'pendand, and not as zit decided: Quhilkis gif they or ony of them do, and contraveens the premisses, the saids Lordes of • Session, advocates, clerkes, writters, their servandes, or ony uther 'member of the Colledge of Justice, or ony inferiour judgements within this realme, their deputes, clerkes, and advocates sall amit ' and tine their office, place, and all privileges and immunities 'bruiked, or that may be bruiked be them be virtue thereof.' Under this act the following points have been decided. 286. (1.) In an old case it was found, that an advocate may buy land, although the matter be depending by process, notwith'standing of the act of Parliament upon that subject, because, by the act, it is found, that the contravener hereof shall tine his of 'fice and privilege, but not his action,' Colt v. Cunningham, Mor. 9495; Stair, 1. 14. 2., and the same view has been taken of the statute in a series of later cases, although it has been repeatedly urged that transactions of this sort are null by implication in consequence of the prohibitory terms of the statute, and that the loss of office was a superadded penalty, Cunningham v. Maxwell, 5th June, 1611, Mor. 9495; Richardson v. Sinclair, 30th July, 1635; Purves v. Keith, 20th December, 1683; Home v. Earl of Home, 15th December, 1713, Dict. 2-24.

287. (2.) In a case where various other questions occurred, it appeared that when the right in question was acquired, a process of declarator had been raised and executed, but never called in 'judgment, nor other process deduced thereon. Upon this it was found, that the buying of the right libelled was not of a litigious right, which came under the compass of the act of Parlia 'ment *.'

• Richardson v. Sinclair 30th July, 1635. Of this decision, Lord Bankton observes, that this seems to be too strict an interpretation of this beneficial statute; and pro

bably at the time of that old decision, summonses were in use to be executed blank,

⚫ viz. before they were libclled, which could not infer a dependance; but now when

they are libelled before executing, the case alters,' Bankt. 1. 410.

288. (3.) In another case, where a member of the College of Justice pursued a spuilzie as assignee, the action was sustained, although the act was pleaded, because there never was any action ⚫ intented upon the spuilzie at the cedent's own instance, and that 'the pursuer was not made assignee to an action, but to the deed ' of spoliation,' Mowat v. M'Lellan, 6th July, 1625.

269. (4.) In a case between the Earl of Home and Mr. Patrick Home, advocate, it was found, that both by the law and the sta'tute, there was nothing to impede persons to give or take in free gift, but only prohibiting them to buy, or to purchase pleas for money, while depending,' Earl of Home v. Home, 30th July, 1678.

290. (5.) The statute was held not to apply in the following

case.

In an action brought at the instance of Jonathan Forbes of • Wellfield, against George Bean, writer in Inverness, founded upon the act 4 P. J. 6. c. 216. against buying pleas, the libel concluded: 1mo, That the conveyance granted should be declared void and null: and, 2do, that Bean should be declared 'incapable of acting in any court of justice. In the course of this

plea, it was doubted if the act extended to procurators before 'inferior courts, but it was thought that it did extend to them. 'It was doubted also if it extended to the case when a plea before the sale was submitted to an arbiter, and if it did not thereby 'cease to be a plea. But Mr. Bean's solid defence was this, that 'the right taken by him was from an old woman, whom he had 'not only alimented, but laid out money in carrying on her plea, and was taken in security and payment of the sums so laid out ab ante, and therefore that it did not fall under the act of Parliament. The Lord Kennet, Ordinary, assoilzied Mr. Bean, and 30th July, 1774, the Lords adhered and gave expences *.'

291. IX. By stat. 24. Geo. II. c. 40. § 12. it is enacted, that no person or persons whatever shall be entitled unto, or 'maintain any cause, action, or suit for, or recover, either in law 'or equity, any sum or sums of money, debt or demands what❝ever, for or on account of any spirituous liquors, unless such debt 'shall have been, and bona fide contracted at one time to the amount

*Forbes v. Bean, 30th July, 1774. This case is not printed, but is reported in a MS. Dictionary of Decisions, compiled by the late Mr. Tait, clerk of Session.