Factors and Agents purchasing Debts of their Constituents.
L Ludquhairn v. L Haddo.
Date: 28 March 1632 Case No. No 49.
The factor named by tutors can no more take the benefit of the pupil's debts purchased by him, or of rights on the pupil's estate, than the tutor himself can.
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L. Ludquhairn pursuing wrongous intromission of teinds, compeared L. Haddo, and alleged. that the tack, which was the title of the pursuit, was acquired by the L. Ludquhairn, he then being factor to his tutor, and so who ought to be reputed as his tutor in this, that he might do nothing in re minoris, to his hurt; whereby that his tack, which was of the teinds of the defender's own lands and heritage, albeit he hath acquired the same to his wife during her lifetime, and to the defender thereafter after her decease, yet it must be solely profitable to him, and not to her; and the pursuer answering, that it was lawful to him, albeit he had been tutor, far more when he is factor only to the tutor, to acquire this tack, wherein he hath done no wrong to the minor, to purchase the same to him, after the decease of the pursuer's wife, who is the defender's mother, and who is conjunct fiar of the most part of the lands contained in the tack: The Lords found, that the factor might do no more than the tutor's self in this case, and the like cases, and that the tutor might take a tack to his own wife, for her lifetime of the teinds of such lands whereof she was liferentrix, she defalking a proportion pro rata of the grassum paid for the tack of the minor's lands; and sustained the pursuit and tack to her for the teinds of the lands only; but for the teinds of the rest of the lands of the minor, whereof she had no liferent, the Lords found, that the benefit of the tack in that ought to accresce to the minor, and not to the conjunct fiar, the factor's wife, nor to the factor, nor to the tutor, the minor always paying a proportion pro rata of the grassum of the tack, and therefore would not sustain the action libelled for the teinds of these lands.—See Tutor and Pupil.
Act. Nicolson.Alt. Stuart.Clerk, Gibson.
Fol. Dic. v. 2. p. 24. Durie, p. 633.
