Scottish Court of Session Decisions

Subject_1 PACTUM ILLICITUM.
Subject_2 SECT. XIII.

Smuggling.

More and Irvine
v.
Steven

Date: 13 November 1765
Case No. No 82.

Action lies at the instance of a foreign merchant, for the price of prohibited goods seized on the passage.

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Steven, merchant at Newtyle, having commissioned a quantity of tea, brandy, &c. from More and Irvine merchants at Gottenburg, to be shipped on board the first Swedish vessel bound to the coast of Scotland between Ythan and Peterhead, the vessel was driven, by stress of weather, into the Frith of Forth, where it was seized, and afterwards condemned in the court of Exchequer; and, in the trial, More and Irvine appeared and claimed the cargo as their property.

It was pleaded for Steven, in a suspension of a charge for payment of the price; 1mo, As this was a bargain entered into by subjects of this kingdom, for the importation of goods, which the contractors well knew were prohibited to be imported, it was pactum illicitum, on which no action ought to lie; and it would be expedient to refuse action, as that would be a means of discouraging smuggling;

2do, The conditions of the commission had not been observed, as the ship, instead of touching at the part of the coast directed, had come into the Frith of Forth, where it was seized;

3tio, The chargers, by claiming the cargo as their property, shewed they did not understand the commission to have been properly implemented.

Answered to the, 1st defence; Though, by special statute, the goods in question are, in certain circumstances, put extra commercium in this country, yet they are, jure gentium, of free commerce at Gottenburg, from whence they were commissioned. The Prohibitory enactments of these statutes can have no force at Gottenburg, or any place beyond the jurisdiction of the British legislature; persons residing in a country subject to different laws, are not presumed to know or attend to the various laws enacted in this country for regulating such matters; nor are they obliged to enquire, whether the purchasers are to enter the goods or not, but, as factors, must answer such commissions as are sent them. The dismission of this action would not have the effect of discouraging smuggling; it would only change the course of the trade, and throw the whole of it into the hands of foreigners, who would only deal for ready money. See Lord Bankton, v. 1. p. 413. § 16., and 27th November 1723, Commissioners of the Customs contra Morison, No 75. p. 9533; Walker contra Falconer, No 80. p. 9543.

To the 2d; The goods were shipped on board a Sweddish ship, bound to that part of the coast of Scotland where they were directed to be sent, though the vessel was driven, by stress of weather, into the Frith of Forth. Foreign factors, or merchants, are always understood to have fully implemented their commission, so soon as they have shipped the goods commissioned, agreeably to the directions of their constituents;

And, as to the 3d defence; It was observed, that it was usual for the foreign merchant to claim the goods in the Court of Exchequer, in order, if possible, to save them from condemnation.

“The Lords repelled the reasons of suspension; found the letters orderly proceeded, and expenses due.”

Fol. Dic. v. 4. p. 31. Fac. Col. No 15. p. 225.