| Sibbald v. Mr William Wallace |
27 Jul 1779
|
Foreign Merchant, Non-implement |
In June 1774, John Sibbald, a self-styled 'merchant in Gottenburg', brought action against William Wallace, advocate, with respect to two letters of guarantee Wallace had granted on behalf of Betty Irvine, an Edinburgh merchant and shopkeeper. In November 1772, Irvine had passed this surety to Sibbald in exchange for a bill of landing for four boxes of tea, which were ultimately seized and condemned by the Crown upon entering the Firth of Forth. On account of this failed adventure and the execution raised against her by the pursuer, Betty Irvine became bankrupt and left the country. Sibbald then pursued Wallace for the £80 pounds. The case came before the Lord Justice Clerk. Barskimming found the defender liable at first but later assoilzied him, and Sibbald petitioned the Court to alter this interlocutor. He argued that the conveyance in question was one that had occurred in Gottenburg, and as a foreign merchant his case was actionable. The defender argued that Sibbald was merely disguised as a foreign merchant, but he was truly a burgess of Kinghorn. Therefore, Wallace stated, "The point in the dispute, is, whether ought action to be sustained, upon a confessed smuggling contract, or rather upon a contract for doing an act prohibited by the public law, at the instance of one of the parties." He also argued his case based upon the principle of non-implement, for the transaction he had referred to in his letter of surety was different from what had occurred. The Court found in favor of the pursuer at first, but upon advising a second petition and answers, assoilzied (absolved) the defender. |
| Thomas Stoddart v. M'Quan, Beck, and Company |
28 Jul 1779
|
Foreign Merchant |
Around 1765 MacWhan, Beck, and Company participated in a number of smuggling adventures with Currie, Park, and Company. In 1768, David Currie pressed upon John Beck to accept a bill for £163 on the account kept between the two companies while carrying out their illegal activity. Currie, Beck, and Company later endorsed the bill to Thomas Stothart (Stoddart), who brought action against MacWhan, Beck, and Company for payment. The case came before Lord Auchinleck, and the petitioners argued that they had merely accepted the bill as a favor, and that it was cancelled out by sums they had earlier advanced. Lord Auchinleck ruled in their favor. The defenders appealed, arguing that the bill was tied to smuggled goods. They took note of the Court's recent decision in MacClure and MacCree v. Paterson, but Auchinleck again rejected their arguments. MacWhan, Beck, and Company then applied to the Court, arguing again that the bill was for an amount not actually owed, which had been spent in implement of a smuggling contract. The pursuer replied that the bill itself was proof that the sum was indeed owed, and that as foreign merchants they had merely engaged in free commerce abroad. The Court determined that a bill associated with smuggling could not be enforced, and ruled in favor of the defenders. |
