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.

Published Reports

Mungo Brown, Supplement to the Dictionary of the Decisions of the Court of Session (1826), pg. 532

Locations

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