Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ALEXANDER GIBSON, OF DURIE.

Thomas Wilkie
v.
Thomas M'Neil

Date: 6 Nov 1740

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This case is reported by Elcliies (Pactum Illicitum, No. 11.) and by C. Home, (p. 259.) Lord Kilkerran's note of it is as follows:—

“Found there is sufficient evidence that the charger and suspender were partners in the bargain, as to the brandy purchased from Wallace; and find that the delivery by Wallace to Wilkie was equal to delivery to M'Neil, and, therefore, repel the reason of suspension, and remit to the Ordinary to hear parties upon the abatement obtained by Wilkie from Wallace.

“In the view in which the Lords took this case, viz. that M'Neil did not buy from Wilkie, but was assumed partner with him, neither had the late act of parliament any thing to do with the case, nor the general point in law that before delivery, the buyer would not be liable, which last was the ground the Lord Ordinary had gone upon, as he explained himself.

“But then the President moved that point determined in the case of Morison in St. Andrews; and had he met with encouragement from his brethren, seemed inclined to have it found, that all bargains of whatever kind, for rum, brandy, &c. were pacta illicita, and afforded no action ; but this not being relished was dropt.”