The court sustained action at the instance of a Scotsman carriyiug on trade abroad, for the price of contraband goods furnished by him to a person in Scotland.
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Greig, a Scotsman, who was settled as a merchant at Gottenburg in Sweden, shipped, in consequence of the commission of Davidson, a quantity of tea and other prohibited goods, on board of a vessel bound for the coast of Buchan in Aberdeenshire. Greig himself paid the freight; which was so far above the ordinary rate, that the excess appeared to be a eompensation for the risk attending a smuggling voyage; and in the bill of lading which he took from the shipmaster, the hazard of seizure, as well as that of the sea, was excepted.
An action having been brought against Davidson for payment of the goods, he pleaded in defence, That as the pursuer was a native of this country, though residing abroad, he was in a different situation from that of a foreign merchant; insomuch that the degree of participation in the smuggling adventure, which was apparent from the circumstances mentioned above, precluded his right of action.
The Lord Ordinary, in a process of advocation, affirmed a sentence of the Judge Admiral repelling the defence; and the Court, on advising a reclaiming petition and answers,
Adhered to the interlocutor of the Lord Ordinary.
A second reclaiming petition however having been presented, the Court expressed doubts of the preceding judgment and appointed the petition to be answered; but in the mean time the dispute was compromised by the parties. A similar question was afterwards determined in the case of the Attorney of James Cantley contra Thomas Robertson, 11th February 1790, infra.
Lord Ordinary, Dunsinuan.Act. Abercromby.Alt. Hay, Maconochie.Clerk, Home.
Fol. Dic. v. 4. p. 32. Fac. Col. No 53. p. 94.
