Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 PACTUM ILLICITUM.
Subject_3 Action denied for breach of a Smuggling Contract.

Captain David Mitchel
v.
Daniel Morgan

Date: 22 June 1780

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[Supp. V. 533.]

Monboddo. The mandatory is not bound to perform a mandate like this.

Braxfield. There is no question here as to point of honour or honesty: the great hurt to honest men, is when rogues are true to each other.

Alva. I deny that there was any smuggling contract here.

Justice-Clerk. It is extraordinary to say that there was no smuggling contract, when such contract is confessed by the parties themselves.

Hailes. This case is not strait, as others which have been determined by the Court. For some time a distinction was attempted between malum in se and malum prohibitum, and smuggling in general was said to be merely a malum prohibitum. I never could relish the distinction, and the Court at length disregarded it. Here, however, the malum in se is obvious, for Captain Mitchel was under covenant to serve faithfully, and the goods could not be smuggled on shore without bribing the custom-house officers: this is fairly admitted. Now, this is subornation of perjury in a moral sense of the phrase, and consequently the contract is founded on a malum in se, incapable of being the foundation of any action in a court of justice.

Westhall. There was clearly a smuggling contract here, but there was an agent employed; and I see no decision which denies action against such agent.

On the 22d June 1780, “The Lords found that no action lies;” altering Lord Westhall's interlocutor.

Act. W. Nairne. Alt. G. Buchan Hepburn.

Diss. Alva, Westhall.