Members of the College of Justice buying pleas. - Pactum de quota litis.
Sir Patrick Home, Advocate, v. Earl of Home
Date: 15 December 1713 Case No. No 48.
Although a member of the College of Justice incurs the penalties of the act against buying pleas, the right acquired is not annulled.
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In the process of exhibition and delivery at the instance of Sir Patrick Home against the Earl of Home, the defender alleged, That the pursuer's title was null, as being purchased by a member of the College of Justice, after the subject was litigious, and insisted also by way of complaint upon the act 220th Parl. 14th Ja. VI.
Answered for the pursuer; The act of Parliament against buying of pleas by members of the College of Justice, does not annul such rights, but enacts a punishment in case of a contravention. viz. the loss of office, upon which the lawyers rest as sufficient to restrain the abuse intended to be corrected; and so it was decided, Richardson and L. Cranston Riddel contra Sinclair, No 34. p. 3210.
Replied for the defender; The statute declares, ‘that it shall not be leisome,’ &c. and nullum est quod fit jure prohibente l. 7. § 16. D. De pactis, 1. 5. 6. C. De legibus. For though where a prohibitory act imposes a penalty upon the contravener, without declaring the deed unlawful. as if it had been conceived thus, “If any member of the College of Justice purchase a plea, he shall tyne his office,” the deed contrary to the law might stand, and the penalty only be incurred; yet where a statute, as in this case, declares expressly, the deed to be unlawful, and adds a particular penalty upon the contravener, it both annuls the deed and subjects him to the penalty. If it were otherwise in this case, the design of the law would be frustrated, by making unjust acquisitions in favours of heirs, and concealing them till their death, when there is no place for depriving them of their office. Besides, the deprivation may happen ex accidenti to be a very great punishment to persons of eminence, who are least likely to transgress; it would be hardly a punishment to persons of employment of lesser form about the College of Justice who are most ready to be litigious. And the sanction of a law must be interpreted as it may effectually restrain all sorts of offenders.
The Lords repelled the objection founded on the act of Parliament anent buying of pleas by members of the College of Justice, and found that the certification therein doth not annul the right of the acquirer; and therefore sustained process at Sir Patrick's instance.
Fol. Dic. v. 2. p. 24. Forbes, MS. p. 12. 13.
*** A similar decision was pronounced 30th July 1635, Richardson against Sinclair, No 34. p. 3210. voce Death-bed.
