Parents, Tutors, &c. taking money under the name of a Gratification.
Mushet v. Dog
Date: 27 February 1639 Case No. No 9.
A tutor in law having by the advice of friends, granted a factory to the pupil's mother, who on that account gave him a bond for a considerable sum, the Lords found this an unlawful transaction; for a tutor, though he may grant a factory, ought to make no profit to himself upon any engagements he enters into for behoof of the pupil.
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One Mushet being served tutor lawful to his brother's bairns, transacts with Elizabeth Dog, mother to the bairns, and she obtains a factory from him, for which she by the meditation of some friends, obliges her by bond to pay him 3000 merks, which the said friends appointed her to pay; upon the which bond she being charged, suspends, that it was given ob turpem causam, viz. for selling of his office of tutory, or for granting of a factory, which is equivalent, the factory being made for sums paid therefor, and which must tend to the prejudice of the bairns, and therefore such pactions ought not to be allowed in judgment, but are reprobate in law; and although the consent of friends was obtained to the said paction, yet that ought not to give warrant to a paction not warrantable in law; especially seeing rebus integris the suspender renounces the factory, and is content to repone the charger to the same, and to his own administration. And the charger answering, that it is not now time to offer to repone, after so long a time, there being more than two years and a half, since the date of his tutory, and where this bond proceeds upon decreet arbitral, done by friends, mutually chosen betwixt the parties, and being done by a woman, who then was major sciens prudens præsens et volens, and upon her own earnest dealing, there neither being violence nor fraud used against her for doing thereof; for albeit the office of tutory may not be sold, yet there is no reason nor law, which prohibits a tutor to make a factory, and to transact with the factor for the same; and therefore he alleged, That the reason was not relevant. The Lords found, that this transaction ought not to be sustained in law, being of the nature of turpia pacta, which are reprobated in law, and whereby such pactions are declared to be invalid, to produce any action upon the same; and although the condition of the paction was made, not for selling the office of tutory, but for constituting of the mother of the bairns to be factrix in the office, and that it was also done by the advice of the bairns' friends, yet it was found to be unallowable in law, seeing it was granted for so great a sum, viz. 3000 merks, which behoved to come off the pupil's estate, and consequently behoved to be to their prejudice, and so ought the be rejected; for the Lords found, that although a tutor might make a factor, yet to constitute one for such a lucrative cause to himself could not be sustained; for it were more to be sustained in law, for the tutor to give reasonable allowance to a factor, for satisfaction of his pains, and as the same should merit, than to sell a factory, which evidently tends to the pupil's lesion; therefore the letters and charges upon that bond were suspended simpliciter, it being confessed, that the bond was given for that cause.
Act. Primrose.Alt. Dunlop.Clerk, Hay.
Fol. Dic. v. 2. p. 19. Durie, p. 878.
