Subject_1 QUOD AB INITIO VITIOSUM. Subject_2 SECT. I.
Convalescence of a null right.
Mr James Keith v. Sir William Purvis
1683.
November. Case No. No 4.
An apprising, although acquired by a member of the College of Justice, found an effectual title, not-withstanding the prohibition to buy pleas.
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Mr James Keith, writer in Edinburgh, having acquired right to a litigious apprising from James Allan, writer, and thereon insisted in the reduction of another apprising; the defender alleged, No process; because, by the 216th act, Parl. 14. Ja. VI. it is not lawful for members of the College of Justice to buy pleas, and the pursuer's title was such a bought plea, which being an unlawful acquisition, cannot found a legal process.
Answered; The prohibitory clause of the act is not in rem scripta declaring bought pleas simply unlawful, but is only a personal prohibition; 2do, The act doth not annul the deed, but only inflicts a punishment upon the contravener, as was found in my Lord Cranston's case, 30th July 1635, No 34. p. 3210. and in Sir Thomas Hope's, November 9. 1624, No 19. p. 7943.; and it is clear from the current acts of Parliament, that where the deed is designed to be annulled, it is expressly so declared; witness the many laws concerning the export or import of several goods and commodities.
Replied; The act hoc ipso by declaring the deed unlawful, intends it should be null; and the adjecting sometimes the clause of annulling in prohibitory statutes, is but done ob majorem cautelam, for declaring the lawgiver's enixam voluntatem against such deeds.
“The Lords sustained the answer, and found, that the acquisition was not null by the act of Parliament, and that the party might insist for the punishment of deprivation, as he thought fitting. But he, Mr James Keith, had deserted his employment ten years before.” It was not regarded, that James Allan being also a member of the College, it was but the acquiring of a plea by one member of the College of Justice from another.
Harcarse, (Advocations and advocates.) No 13. p. 4.
*** Fountainhall's report of this case is No 47. p. 9500. voce Pactum Illicitum.
