Scottish Court of Session Decisions

Subject_1 PACTUM ILLICITUM.

Stewart, Surveyor-General,
v.
Lamont of that Ilk, &c

Date: 12 November 1751
Case No. No. 21.

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Lamont of that ilk, and some other gentlemen, by way of compromise for a transgression of some of their tenants, granted bond in 1743, that none of their tenants should for seven years be guilty of smuggling under the penalty of L. 100 sterling every time, payable to Stewart the Surveyor-General, or the Collector of Customs for the time, to be proved by the delinquent's confession, or by witnesses on a summary complaint to the Sheriff of Argyle or otherwise, whieh was signed by seven heritors each for his own tenants. A suit being brought on this before the Sheriff, which was advocated to this Court, they found the bond illegal, and that it could not produce action. They thought that if it was a bond to the King, it ought to have been in the King's name, and then could only have been sued in Exchequer; besides it was imposing penalties on the subject against law. But if it was considered only as a bond of a private person, a subject, under a condition, then he could not sue for the penalty further than he had inserest in the performance of the condition, which was none at all.