Scottish Court of Session Decisions

Subject_1 PACTUM ILLICITUM.

Scott Hepburn of Kingston
v.
M'Lachlan

Date: 14 January 1752
Case No. No. 22.

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The Laird of M'Laehlan being sent with a party of rebels in October 1745 to levy the Cess in East Lothian, robbed Hepburn of Kingston of L.740 sterling in cash. Scott his nephew and heir, after Kingston's death, sued M'Lachlan's son and heir; and on a proof brought, we found him liable, 22d January 1751, (as marked voce Personal and Transmissible.) But when Scott applied for a confirmation, he was opposed by his sister as nearest of kin, which obliged him to produce for his title in the process an assignation by Kingston, which happened to be of even date with the Pretender's bond, (mentioned voce Personal and Transmissible,) but which Kingston had not then probably either seen or heard of; in which he requests the pursuer's father, for the pursuer's behoof, to call for and require payment of the money, which he describes thus, “L.740 agreed upon to be levied by Colonel M'Lachlan for behoof of;” and then gives the young Pretender all the titles that he assumed to himself. The defender pleaded this first as an evidence that the money was not robbed but paid willingly; 2dly, That no action could be sustained on such a writing. The first was repelled, because of the strong proof brought of force; and as to the second, they considered Kingston as then in the power of the rebels, and the assignation only as a mandate to solicit payment, which could not be done with any effect without giving the young Pretender those titles, and therefore repelled that defence also, 17th December 1751. But on a reclaiming bill, in which the assignation was insisted on as evidence that Kingston himself was a rebel, and that no action could be sustained for Cess or other exactions, that the rebels took from one another to carry on the Rebellion, and 2do, that such a writing could not be the title of any action in a Court of law; upon answers, the Court called on the defenders, whether they could give another probable evidence of Kingston's disaffection to the Government besides that writing, or of his being reputed a Jacobite;—and on their owning that they could not, the Court found that notwithstanding that writing, there was sufficient evidence that the money was taken by force. But on the second point, the Court altered their opinion. I observed that the writing deserved to be burnt by the hands of the hangman, and were this in the proper Court, would be so used; and by a great majority the Court found that no action could be sustained on that writing.