A merchant settled abroad, whether a foreigner or a native, who is accessory to smuggling goods into this country, has no action for the price of them.
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Thomas Cullen and Company, merchants at Ostend, had been in the practice of supplying David Philp at Boarhills in Fifeshire with contraband goods, sometimes on commission, and sometimes at shore price, that is, a price payable on delivery of the goods in Britain, and sufficiently high to ensure the vender against the risk of seizure.
Captain Oldfield always had the charge of the vessels employed by Cullen and Company on these occasions. By a letter from Cullen and Company to Philp in January 1789, they informed him, that Oldfield was to sail in a few days from Ostend, with a quantity of gin and brandy; that he meant first to call at Boarhills, when he expected Philp would be prepared for him, and assist him in the disposal of the cargo.
The letter was so expressed as to leave room for arguing, that the goods were the property of the captain.
Oldfield accordingly arrived at Boarhills soon after. Philp agreed to take a considerable quantity of the cargo, and accepted bills for the price, payable to Thomas Potts, nephew to Thomas Cullen, who acted as supercargo on this occasion. The greater part of the goods were seized in the landing.
The bills were indorsed to Sir William Forbes and Company, for behoof of Cullen and Company, to whose account they were immediately placed; and Philp being charged for payment by their attorney, brought a suspension, in which
Both parties agreed, that on the principles established by the case of Cantley, 11th February 1790, No 87. p. 9550, and others, if Cullen and Company were accessory to the smuggling, no action could lie; and the one endeavoured to establish the accession by the evidence in process, and the other to show that there was none.
The Court were of opinion, that this adventure was just a continuation of the former illicit trade; and that the interposition of Oldfield was intended merely as a cover to the real transaction, and unanimously adopted the following distinction. When a merchant settled abroad, whether a foreigner or native of this country, simply sells goods to a smuggler, tanquam quilibet, and makes delivery on the spot, he can maintain action for them in our courts, though he suspected, or even knew, that they were meant to be smuggled into Britain; but if he is accessory to the smuggling, and thereby to an infringement of the laws of the land, (which he is bound to know as far as concerns his trade,) he cannot demand the aid of the British Courts for recovery of his debt. And this, (it was observed,) was not a new doctrine, but established before the case of Cantley, by that of Sibbald against Wallace, in 1779.*
The Lords suspended the letters simpliciter.
On a motion for expenses by the counsel for Philp, it was observed, that the principle of the judgment was in turpi causa melior est conditio possidentis, and therefore that no expenses ought to be awarded.
Lord Reporter, Stonefield.Act. Dean of Faculty, W. Murray.Alt. David Cathcart.Clerk, Home.
Fol. Dic. v. 4. p. 32. Fac. Col. No 49. p. 102.
