Scottish Court of Session Decisions

Subject_1 PACTUM ILLICITUM.

Stewart, Surveyor-General,
v.
Lamont

1751, Nov. 12.
Case No. No. 22.

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The tenants of Lamont, ana eight other heritors in Argyleshire, having committed a great riot on the Custom-house officers, the matter was compromised by their masters with the officers, with consent of the Commissioners. They paid damages and expenses, and entered into a bond each for his own tenants to Stewart of Surveyor-General, that no person in their respective lands should for seven years be concerned in running or smuggling any kind of foreign spirits, black cattle, or Irish meal, against the laws made or to be made, under the penalty of L.100 sterling, to be paid the said William Stewart, or his successors in office, or to the Collector of Customs for the time, for every such delinquent or delinquency, which might be proven by confession of the delinquents, or by witnesses, and cognizable by the Sheriff of Argyleshire, or his Deputes, in a summary way by petition or supplication, or otherwise, dated February 1743, and signed by seven of those Gentlemen. On this bond a suit was brought before the Sheriff and being advocated, was by Strichen remitted, with instruction to take the proof before answer, and to allow a joint proof. But on a reclaiming bill and answers, we this day found that the bond was illegal, and could not produce action. We thought, if this was considered as a bond for the King's use, it ought to have been in the King's name, and then must have gone to Exchequer; but which was worse, it was imposing penalties on the subject againt law; but if it was considered only as a conditional penal bond to a private subject, then he could not sue for the penalty further than he had interest, which was none at all.