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.

Sibbald
v.
Mr william Wallace

Date: 27 July 1779

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Sibbald, a partner in a house at Gottenburgh, had been applied to, by Betty Irvine, a shopkeeper in Edinburgh, for goods, upon credit, which he delivered without security. She applied to Mr William Wallace, who cautioned her against smuggling, and she assuring him that she had no such intention, he gave her a letter to Mr Sibbald, that, upon his furnishing goods, he became cautioner for payment to a certain extent. Sibbald, whose residence was in Scotland, instead of making furnishings to Miss Irvine at Gottenburg, procured to her an assignment to a bill of lading of a certain quantity of tea, deliverable in the Firth of Forth, sea risk and seizures excepted, by which he plainly indicated his knowledge that the goods were seizable, as being unlawfully brought into the Firth of Forth. The teas actually were seized, and no part of them ever came into Miss Irvine's possession. She became bankrupt, and left the country. So the question occurred betwixt Mr Wallace and Mr Sibbald. Mr Wallace contended, that here was clearly a smuggling contract between Sibbald and Irvine,—that no action lay upon it, even against her, much less against him who was only a cautioner. He was not only actually innocent of any accession to it, but he cautioned her against it; yet such was the favour of the Court for a foreign merchant, that, all these unfavourable circumstances notwithstanding, decree went in his favour, 27th February 1779. (The Lord Justice-Clerk, Ordinary, had given his judgment the other way, 30th July 1777.) But this day, upon advising petition and answers, the Lords altered, “ And found that, in this case, no action lay against the defender upon his letters of credit, and therefore assoilyied.”