Action sustained at the instance of a foreign merchant, for the price of prohibited goods sent, on commission.
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John Falconer merchant in Nairn, commissioned from James Jamieson merchant in Gottenburg, a quantity of teas; which having been shipped by Jamieson on board a vessel for Portsoy, in terms of the commission, the vessel was, upon her arrival, seized by the customhouse-officers, together with all her cargo.
Jamieson, by his trustee Andrew Walker, brought an action against Falconer, for payment of the price of the teas.
Pleaded for the defender, By act 12mo, Charles II. cap. 17. teas are prohibited to be imported into Great Britain from Gottenburg, or any other place of which they are not the product, or from which they are not usually first shipped for transportation; the contract therefore between the pursuer and defender was unlawful, and can afford no action in a court of law. The intention of the parties was to carry on a smuggling trade; and Mr Jamieson could not be ignorant how the law stood in this respect, as he is a native of Scotland, and carried on business here as a merchant for some years before he went abroad. It would therefore be improper to sustain action upon this contract, which was entered into directly against law. Nor is it enough to say, That the statute has inflicted certain penalties upon transgression, such as forfeiture of the goods, &c.; and that the Court has no power to add new penalties. The present objection, if sustained, is not adding any penalty upon the pursuer; it is only denying the aid of the law, to render effectual a contract which is reprobated by the law.
Answered for the pursuer, The maxim, Quod lege prohibente fit, est ipso jure nullum, admits of this general exception, That where the prohibition is enforced with a penalty, and does not enact an express nullity of the transaction, the sole effect of contravention is to incur the penalty. The legislature of Great Britain has prohibited the importation of certain commodities under particular penalties; but has not yet gone the length of denying action to the foreign merchant who furnishes such goods upon commission from his correspondents in this country. Nor would it be proper or expedient, that such a certification were imposed; for, however faulty or criminal it may be in the subjects of this country to import uncustomable goods, this cannot, in justice, strike against the foreign merchant or factor, whose duty it is to answer his commission, and furnish his correspondent, without enquiring, whether the goods may be lawfully imported into this or the other country. A merchant residing abroad, whether a native of this country or not, cannot have access to know, or be informed, of the different revenue acts which are from time to time passed in Great Britain; neither is it his business to enquire into these matters. His commission is at an end how soon the goods are shipped upon the risk and peril of the person who gave the commission. The importation is the act of the purchaser; which, however criminal with regard to him, cannot vitiate the antecedent sale. No trade could be carried on among different nations, if the contrary doctrine were to be established.
“The Lords repelled the defence.”
Act. Lockhart.Alt. A. Pringle.
Fol. Dic. v. 4. p. 31. Fac. Col. No 16. p. 27.
