Scottish Court of Session Decisions

Subject_1 PACTUM ILLICITUM.
Subject_2 SECT. IV.

Gratuity taken from a Debtor. - Taking gratification to become Cautioner. - Bond granted by a Criminal on condition of the Creditor using his interest to obtain the Granter a pardon. - Bill granted to Magistrates by a Prisoner. - Respondentia Bond confirmed by Collateral Securities.

Archibald Stewart, Clerk to the Signet,
v.
Alexander, Earl of Galloway

Date: 3 June 1752
Case No. No 16.

A party granted bond for a sum to an officer of court to induce him to procure a pardon for a crime. Found null.

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Sir James Stewart of Burray, being pursued criminally before the Court of Justiciary, for the murder of Captain James Moodie of Melsetter, and not daring to stand trial, was outlawed. Some years after, he appeared in London, and applied to his namesake, James Stewart of Torrence, who enjoyed an office about the King's person, to solicit his pardon; and, the more effectually to engage him, granted him a conditional bond for L. 100 Sterling, to be purified when the pardon should be obtained; and the pardon accordingly was obtained.

This bond was put in suit many years after, by the representatives of the creditor, against the representatives of the debtor, and many defences were stated. But the Lords refused action, upon this medium, that it was a turpis causa to give a premium to any man attending the Court to solicit a pardon.

Fol. Dic. v. 4. p. 29. Sel. Dec. No 9. p. 11. *** This case is reported in the Faculty Collection.

The deceased Sir James Stewart of Burray was, in the year 1726, pursued criminally before the Court of Justiciary, for the murder of Captain James Moodie, and fugitated for non-compearance.

Afterwards Sir James came privately to London, and applied to James Stewart of Torrence, to solicit a pardon for him from his Majesty; and, on the 4th September 1730, Sir James executed a bond in the English form, obliging himself in the sum of L. 200 Sterling to James Stewart; and the condition of the bond is, that in case his Majesty should, at any time before the 3d of August next, grant a warrant for passing his most gracious and full pardon to Sir James, of all crimes and misdemeanours, and other offences whatsomever, against the laws of the realm, or any of them, by him heretofore committed; and that, within 20 days after such warrant happens to be granted, Sir James should pay to the said James Stewart, his heirs or assigns, the sum of L. 100 Sterling; then the obligation to be void, otherwise to stand in full force.

His Majesty, on the 12th of May 1731, granted warrant for his gracious and free pardon to the said Sir James of the killing of Captain Moodie, and of all accession thereto.

After the death of these parties, Archibald Stewart, as executor to the said James Stewart, brought an action against the Earl of Galloway, as representing the said Sir James, for payment of the sums contained in the said bond.

Pleaded for the Earl, That the condition of the bond never existed; for no full pardon was granted Sir James Stewart of all crimes and misdemeanours, but only a particular one for the murder of Captain Moodie.

Observed on the Bench, That the bond was contra bonos mores, as it was a stipulation of a sum of money for obtaining a pardon, which was truly no other than a bribe; and, therefore, no action could lie on the bond.

“The Lords found, that, in regard no full pardon was granted to the deceased Sir James Stewart of all crimes and misdemeanours, no action lay for the sums contained in the bond; and also found, that no action could lie against the Earl of Galloway upon the bond in question.”

Act. Ro. Craigie. Alt. Elliot. Clerk, Pringle. Fac. Col. No 9. p. 13.