Scottish Court of Session Decisions

Subject_1 TUTOR - CURATOR - PUPIL.

Davis Parkhill of Craiglockhart,
v.
Robert Chalmers of Larbert

Date: 7 December 1771
Case No. No. 295.

A tutor, who obtained in his own name a lease of subjects formerly held by his pupil, but which had been acquired after the former lease had expired, and when the pupil had become of perfect age, found not accountable for the profits.

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John Parkhill, the pursuer's father, and Alexander Chalmers, father to the defender, had, for several years prior to Parkhill's death in the year 1750, a joint concern in several leases. One of these was a lease of the Isle of May-lights from the family of Scotstarvet; ten years of which, at John Parkhill's death, were to run.

John Parkhill left his two sons, David and Alexander, under the guardianship of Alexander Chalmers and others; but the chief management of their affairs devolved upon Chalmers.

The lease of the Isle of May-lights was to expire at the term of Whitsunday 1760; and in November 1759 Alexander Chalmers procured a renewal of it for eleven years, from Whitsunday 1760, for an additional rent of £.50. Alexander Chalmers died in 1760, and was succeeded by his son Robert, the defender.

David Parkhill went early in life into the army; he was of age in September 1758; and, after being several years abroad, he returned to Scotland; and on the 2d November 1761 granted a discharge to his tutors of their management of his affairs during his minority.

He again left the country; and having returned in the year 1768, He soon thereafter brought an action against the defender, concluding, inter alia, to have it found that he was entitled to an equal share and interest in the renewed lease of the Isle of May-lights for the period of the lease entered into at Whitsunday 1760.

In support of this ground of action the pursuer pleaded:

1mo, Wherever a tutor takes any step, or enters into any transaction which would have been a natural and proper one in the administration of his pupil's concerns, the law, whatever may have been his views, presumed favourably of his intentions; so that the benefit of the transaction ipso jure accrued to the pupil. This was the rule of the Roman law, Nov. 72. C. 5; and the same salutary regulation, as consonant to the natural principles of justice, made a part of the system of the law of Scotland. Lord Stair, B. 1. T. 6. § 17. Bankton, B. 1. T. 7. § 39. 17th Feb. 1732, Cochrane against Cochrane, No. 263. p. 16339.

The same equitable doctrine prevailed in England. Laws of this description were held to be of the nature of a trust; and the benefit of course communicated to those for whose behoof it was presumed the trust had been undertaken. Gen. Abridg. of Equity, V. 1. P. 7. Trin. 1728, Carter against Horn; Vernon, 276. Mich. 1684. 1. Palmer against Young; Abridg. of Equity, V. 2. P. 741. in a case decreed by Lord Chancellor King. Upon the same principle; a person acting as trustee was bound to communicate the benefit of any ease or lucrative transaction he had entered into with respect to his constitutent's debts; 6th March 1767, Earl of Crawford against Hepburn, No. 46. p. 16208.

2do, The defender's argument, that as the lease had not been entered into till after he had ceased to be a tutor, admitted of a satisfactory answer. Although the lease had not been obtained till after the pursuer's majority, the operations and scheme for procuring it had been set on foot long before; which was equally inconsistent with the defender's duty as a tutor. In the just construction of law, the tutorial office did not cease by the pupil's arriving at perfect age, but continued so far at least as related to the trust, confidence, and faithful administration, till such time as the tutor had given up the management, and rendered an account. L. 2. § 5. D. De Admin. et Peric. Tut. et Cur. Novel. 72. C. 5. § 1.

The defender answered:

1mo, That whatever rules and restraints a tutor may lie under, these could not subsist beyond the tutory itself. It never was supposed that one, who happened once to have been a tutor, could, after the expiring of his trust, be tied up for ever from dealing in any thing in which his former pupil may have had a concern. If such was the law, no man would ever become a tutor; but, on the contrary, it was undeniable, that after the expiring of the office, the tutor or curator was as free to contract respecting the estate or concerns of his former pupil as any other person. In the present case, accordingly, the pursuer had become of age two years before the new lease had been obtained; which had not again been taken till that lease, in which alone he had any interest, had expired.

2do, Whatever might be the rule of law in matters of any ordinary nature, and although it were incumbent upon a tutor to renew a common lease, which, during his pupil's minority, had expired—there was no law which obliged a tutor to run any hazard either with or for his pupil, or to enter into partnerships with him in mercantile adventures of any kind. If this lease therefore had expired during the pursuer's minority, the defender would even have thought himself to blame in engaging his ward in such an adventure. Had he done so, and had it turned out a losing concern, he would have been liable; and as he could not have bound the minor in case of loss, no law could force him to take the risk upon himself.

At advising this cause, several Judges were of opinion, that as the subject of the lease was of a fluctuating and precarious nature, it would have been improper to have continued the minor in it, though the lease had fallen while he was under age. Others, again, thought, that if the lease had expired during minority, it ought to have been renewed, and, at any rate, that the tutor should not have taken it to himself. The majority, however, were clear, that as the pursuer was out of minority before the lease had expired, it was no longer incumbent on the defender to get it renewed in its former terms; more especially as the pursuer was so individually situated, that he could have given no assistance in the management of the subject, and would not, in all probability, have been accepted of by Scotstarvet as a tenant.

The following judgment was pronounced:

“Find the defender not bound to communicate to the pursuer any share of the benefit arising on the lease of the May-light duties, set by Scotstarvet to Alexander Chalmers, the defender's father, in November 1759, to commence at Whitsunday 1760; and remit to the Ordinary to proceed accordingly.”

Lord Ordinary, Auchenleck. For Parkhill, Sol. H. Dundas, Lockhart. Clerk, Campbell. For Chalmers, Rae, Ilay Campbell. Fac. Coll. No. 116. p. 142.

*** This case was appealed. The House of Lords Ordered, That the appeal be dismissed, and the interlocutors complained of be affirmed.