Members of the College of Justice buying pleas. - Pactum de quota litis.
Ruthven v. Weir
Date: 23 June 1680 Case No. No 46.
An allegeance of pactum de quota litis being proponed by the debtor against an advocate assignee, the Lords inclined to sustain the nullity, though proponed by the debtor, and not by the cedent, with whom the paction was made, and they ordained the assignee to depone in presence of the cedent.
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Mr William Weir having charged Edward Ruthven for payment of a sum due by his grandfather, General Ruthven, to Patrick Ker, and assigned by him to Mr William; he suspends on this reason, that Mr William is an advocate, and a member of the College of Justice, and so neither process nor charge should be sustained at his instance upon a bought plea, Contrary to the prohibitions of the act of Parliament thereanent. It was answered, That Mr William his assignation is after his cedent had obtained decreet when there was no lis dependens, which the Lords sustained. The suspender further alleged. That the charger's right was purchased ex pacto de quota litis, Mr William being advocate for his cedent, and having agreed with him for such a share of what should be decerned, and therefore neither process nor charge should be sustained at his instance upon this title, which is reprobated by the civil law, and by the custom of all civil nations. It was answered, That the act of Parliament prohibiting buying of pleas, being our special remeid by statute, is in place of the custom of other nations de quota litis. 2do, The law doth only reprobate such pactions as to make them void as to the client who made the paction, that he is not obliged so stand to such a paction; but here the client questions not, and it is jus tertii to the debtor, who must either pay to the cedent, or the assignee; and if the assignee be excluded, he will be liable to the cedent, and so hath no benefit. It was replied, That our statute is not exclusive of questioning rights ex quota litis, and that such pactions being null, to discourage advocates from entering thereinto, it is competent to all parties to propone a nullity; and as the debtor might allege that the assignation was null, or false, to exclude the assignee, it could not be repelled as jus tertii, because he would remain debtor to the cedent; so in this case, the nullity of pactum de quota litis is competent to the debtor; and, therefore, he desired that the cedent's oath might be taken, whether or not there was such a paction.
The Lords inclined to sustain the nullity, that this assignation was procured ex pacto de quota litis, and found it only probable by writ or oath of the assignee, and ordained him to depone in presence of his cedent, reserving to themselves what it should operate after probation.
Fol. Dic. v. 2. p. 23. Stair, v. 2. p. 774.*** Fountainhall reports this case:
Mr William Weir, advocate, against the Earl of Callander, and Edward Ruthven: The Lords having heard the Lord Newton's report, “They find the act of Secret Council produced does not prove the allegeance founded on the act of Parliament, allowing eight years annualrent to be given down to forfeited persons; and that no other act but the act of Parliament itself can satisfy and prove it; and allow the defenders yet to produce the same betwixt and Tuesday next; and find the assignation taken from Ker by Mr William Weir is after the date of the decreet, and so is not a transgression of the act of Parliament against buying of pleas by advocates. And as to pactum de quota litis, (which differs from the buying of a plea) before answer, ordain Mr William Weir to be examined, in presence of the persons to be condescended upon by the defender, concerning the way and manner of acquiring that right, and what he gave for it. And ordain all other persons to be condescended upon by the defender to be examined upon oath concerning the having of any writs for verifying the allegeance scripto. And grant diligence to the defender for that effect; reserving to themselves to consider what the probation may operate.”—See Appendix.
