R Brown, J. Lamond, A. Farquhar, J. Burness, and Leslie Clarke, against Duncan
| Jurisdiction | England & Wales |
| Judgment Date | 21 November 1829 |
| Date | 21 November 1829 |
| Court | Court of the King's Bench |
English Reports Citation: 109 E.R. 385
IN THE COURT OF KING'S BENCH.
S. C. 5 Man. & Ry. 114; 8 L. J. K. B. O. S. 60.
[93] R. beown, J. lamond, A. farquhar, J. burnessj and leslie clarke, against duncan. Saturday, November 21st, 1829. A., B., C., D., and E. carried on trade in partnership, as distillers, and C. alone carried on the business of a retail dealer in spirits, within two miles of the distillery, contrary to the 4 G. 4, c. 94, ss. 132, 133, and bis name was not inserted as one of the partners in the distillery in the Excise-book, or licence, as required by the 6 G. 4, c. 81, s. 7 : Held, these being mere Revenue regulations, the breach of them by one of the partners, with the knowledge of the others, did not render the trade carried on by the five so illegal as to deprive them of the right to recover the price of spirits sold by them, or for-the breach of a guaranty for the due accounting of an agent, to whom they had consigned the spirits for sale. [S. C. 5 Man. & Ry. 114; 8 L. J. K. B. 0. S. 60.] Assumpsit on a guaranty. Plea, non-assumpsit. At the trial before Lord Tenterden C.J., at the London sittings after Trinity term, 1829, the following appeared to be the facts of the case :-The five plaintiffs carried on trade in partnership K. B. xxxvm.-13 386 BROWN V. DUNCAN 10 B. & C. 94. as distillers at Aberdeen, and in the year 1825, A. Glennie, having applied to them to appoint him their agent for the sale of their whiskey in London, they agreed so to do, provided he obtained a guaranty. At his request the defendant, on the 7th of January 1826, entered into the following guaranty with Messrs. Brown and Co. Aberdeen :- "I hereby undertake to guarantee the due payment of all sums of money which Mr. A. Glennie may or shall become indebted to you as your agent for the sale of malt whiskey, and for which the said A. Glennie shall not duly account or pay and discharge." Glennie from that time till March 1828, acted as the agent of the plaintiffs, when he became bankrupt, being then indebted to the plaintiffs in the sum of 23071. in respect of whiskey sold by him for their account. It appeared that the name of Leslie Clarke, one of the plaintiffs, was not inserted in any of the entries made in the books at the Excise Office, as to licenses taken out by the plaintiffs as distillers, and that he carried on business as a retailer of spirits within two miles of the distillery. The 4 G. 4, c. 94, s. 131, subjected every distiller licensed under the Act to a penalty of 2001. if he should [94] at any time during the...
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