Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. reported by Alexander Tait, Clerk Of Session, One Of The Reporters For The Faculty.
Subject_2 SMUGGLING CONTRACT.

Duncan, Indorsee of Daniel Fox,
v.
Thomson;

1776.

Click here to view a pdf copy of this documet : PDF Copy

But, in

Summer 1776, Duncan, Indorsee of Daniel Fox, against Thomson ;

they found that no action lay between the smugglers, on a bill for the price of smuggled tea.

Thomson had granted a bill to Fox, which was indorsed to Duncan as trustee. Several defences were urged against it, but overruled. The defender reclaimed, and urged, that the bill was granted by one smuggler to another, as his share of a smuggling adventure. The Lords found, “That no action lies in this case, in respect the same is brought between smugglers for implement of a smuggling contract; and therefore suspended the letters.”

It is said a decision was pronounced in the Court of Common Pleas, lately, to the same effect.

A seller having brought an action for the price of a parcel of muslins seized after sale, on information of the buyer,—it was determined, by a special jury, before Justice Gould, in favour of the defendant; and held to be a point established by many precedents, “That no person selling smuggled goods can bring an action legally to recover of the purchase ; the property of such goods being, at all times, his Majesty's.”

IT seems now sufficiently established, that action does not lie for damages for non-implement of a smuggling contract. See Erskine, p. 446, § 3; Home, 34 and 180. But it is a nicer question, Whether action lies for payment of freight, (for example) on performance of a smuggling contract ? see 111 New Coll., No. 64; or for the price of the goods ? Formerly this was sustained, Kaimes, No. 40, and Home, 155. And, of late, it has been so in the case of the foreign merchant, who sells the goods, but is no party to the smuggling ; 11 New Coll., 16 ; 4th New Coll., p. 225.