Scottish Court of Session Decisions

Subject_1 PACTUM ILLICITUM.
Subject_2 SECT. XIII.

Smuggling.

James M'Lean
v.
John Sword

Date: 5 December 1788
Case No. No 85.

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Sword purchased, within land, from M'Lean, some brandy and coffee-berries, of which the latter was not the importer. The goods not being accompanied with a permit, were soon afterwards seized by the officers of the revenue; and, in fact, it appeared that the duties had not been paid for them. M'Lean brought an action for payment of the price against Sword, who

Pleaded; That this being a smuggling, and therefore an illegal contract, could afford no ground of action in a court of law; agreeably to the decision in the case of M'Lure and M'Cree contra Paterson, 26th Feb. 1779, No 84. p. 9546.

Answered for the pursuer; In the case referred to, action was indeed refused for the price of brandies imported in unenterable casks, and purchased at sea, within the limits of a port. But it would be dangerous to extend this principle to such cases as the present, where goods have passed, on shore, from hand to hand: For thus it would be in the power of every retail customer to plead that objection, to the great embarrassment and prejudice of trade.

The Court admitted the distinction, and adhered to the judgment of the Lord Ordinary, ‘Repelling the defences, and finding the defender liable,’ &c.

Lord Ordinary, Alva. Act. Armstrong. Alt. Wm. Steuart. Clerk, Tait. Fol. Dic. v. 4. p. 32. Fac. Col. No 2. p. 2.