GARDNER v GRANT (Court of Session)

This right, with the barony of Myres, was sold by Moncrieff of Reidie to the late Mr Bruce of Falkland, to whom succeeded the present Mrs Tindal Bruce; and in the rental on which the purchase was made, there was included the sum of L.45 paid annually by the macer to Mr Moncrieff.

On a vacancy occurring in the macership in 1830, Mr and Mrs T. Bruce, with a view of benefiting the pursuer, Gardner, (who, from holding another situation, could not, in person, execute the duties of a macer,) granted a commission in favour of the defender, Grant, on the understanding that he should pay annually to them the usual sum of L.45, and a like sum of L.45 yearly to the pursuer, the whole salary being L.130 per annum, besides the fees of office, the average amount of which was not specified; and Grant accordingly granted a bond to that effect.

The defender having refused to make payment of the sum of L.45 to the pursuer, in terms of the agreement, the present action was raised, for the purpose of compelling him to fulfil it.

In defence it was pleaded —That the agreement was pactum illicitum, and could not be confirmed; and, 2. That the defender having been misled by the pursuer with regard to the fees and emoluments of the office, which were greatly exaggerated, he was not bound to give effect to the arrangement.

Pleaded by the defender—1. The arrangement libelled on is not actionable, as it is a pactum illicitum, contrary to the law and policy of the country, as was ruled in the analogous case of Thompson v. Dove, 16th Feb. 1811, and various prior authorities therein referred to; see, in particular, the Lord Chancellor's opinion in the House of Lords, in the case of Sir Robert Anstruther, 25th Feb. 1802, annexed to the report of Thompson v. Dove.