Ritchie v Smith
| Jurisdiction | England & Wales |
| Judgment Date | 08 November 1848 |
| Date | 08 November 1848 |
| Court | Court of Common Pleas |
English Reports Citation: 136 E.R. 1329
IN THE COURT OF COMMON PLEAS
S. C. 18 L. J. C. P. 9; 13 Jur. 63. Distinguished, Feret v. Hill, 1854, 15 C. B. 225.
[462] ritchie v. smith. Nov. 8, 1848. [S. C. 18 L. J. 0. P, 9; 13 Jur. 63. Distinguished, Feret v. Hill. 1854, 15 C. B. 225.] An agreement entered into for the purpose of enabling one of the parties to it to contravene a statute passed for the protection of public morals, cannot be enforced in a court of law.-An agreement, the object of which is, to enable an unlicensed person to sell excisable liquors, contrary to the 9 G. 4, e. 61, is, on this ground, illegal.-An agreement having for its object the carrying on a trade in contravention of the excise laws, is illegal: per Maule, J. This was an action of assumpsit. The declaration stated, that, on the 8th of January, 1846, by a certain agreement in writing then made and entered into between the plaintiff of the first part, one Charles. Newman of the second part, and the defendant and one Henry Probatt, of the third part, the plaintiff agreed to let the said Charles Newman carry on the business of the tap attached to Fendall's Hotel in Bridge Street, Westminster, as the same room was then used as a spirit shop or tap to Fendall's Hotel and Coffee House, together with the cellar under the same room, as the said cellar was then divided into two, and one part marked "spirit cellars," and also the use of all the fittings, fixtures, and implements of trade in and about the premises, and which were mentioned in a certain schedule or inventory thereto annexed, from the 8th of January then instant, at the weekly payment of 41.; and the said Charles Newman did thereby, amongst other things, agree with the plaintiff to carry on the said business of the said tap, and use the said cellar, fixtures, fittings, and effects, and to pay the said weekly rent of 41. on the Saturday of each and every week, free from any deduction whatsoever; and also that he the said Charles Newman should and would purchase, take, and have from Messrs. Kempson, of the Mortlake Brewery, and from no other person, all the porter, ale, and other malt liquors which the said Charles Newman might sell or consume on the said premises; and that he the said Charles Newman should and would pay the said Messrs. Kempson on every fourteenth day for such quantity of [463] liquors as should in the mean time have been sold or consumed, the quantity so to be paid for to be ascertained by guaging in the usual way; and the defendant and the said H. Probatt, &c., did, in consideration of the premises, and for the benefit of the said Charles Newman, as his sureties, thereby agree with the plaintiff, that, if the said Charles Newman should make default in the due and punctual performance of all and every the stipulations and agreements in the said agreement contained, then the defendant and the said H. Probatt would pay, on request, to the plaintiff the sum of 2001. as and for liquidated damages, which said sum of 2001. should be recoverable in an action in either of Her Majesty's superior courts of law : Mutual promises : Averment, ,that, although the plaintiff had always 1330 RITCHIE V, SMITH 6C.B.464. well and truly performed the said agreement on his part, and although the said Charles Newman then entered upon and carried on the business of the said tap in and upon the said premises, according to the said agreement in that behalf made, and under and by virtue thereof, and used the said cellar, fixtures, fittings, and effects in the said agreement mentioned, in his said trade and business of a tapster, according to the said-agreement, for a long space of time, to wit, from the day and year last aforesaid until and upon a certain other day, to wit, the 12th of September, 1847; and although the said Charles Newman did pay the said weekly sum of 41. for a large part of the said time he the said Charles Newman so used the said cellar, fixtures, fittings, and effects, and so carried on his said trade and business of a tapster in and upon,the said premises, to wit, on the Saturday of each and every weekjfrom the said 8th of January, 1846, until a certain other day to wit, the 14th of March, 1847 : nevertheless that the said Charles Newman did not nor would pay to the plaintiff the said weekly sum of 41. for the [464] residue of the said time he the said Chai'les Newman so used the said cellar, &c., and so carried on his said trade and business of a tapster in and upon the said premises, to wit, on the Saturday of each and every week, according to the said agreement, but therein wholly failed and made default, and there was then due and owing for and on account of the said last-mentioned weekly sum of 41. so payable as aforesaid, a large sum of money, to wit, the sum of 1021., which he the said Charles Newman was then, to wit, on the day and year last aforesaid, requested by the plaintiff to pay, but he wholly refused and neglected so to do, and the said sum remained and still was wholly due and unpaid,-whereof the defendant afterwards to wit, on, &c., had notice : that the said Charles Newman further disregarded his said agreement, in this, to wit, that, although he purchased, took, and had, of and from the said Messrs. Kempson, of the Mortlake Brewery, a large quantity of porter, ale, and other malt liquors, to wit, &c. &c., yet he did not nor would pay the said Messrs. Kempson, on the day and at the time in the said agreement specified for payment, for such quantity of liquors so purchased, taken, and had as aforesaid, as had been ascertained, by gauging from time to time, to have been sold or consumed on the said premises, according to the said agreement, but therein wholly failed and made default, and there remained due and owing to the said Messrs. Kempson, of the Mortlake Brewery, for and on account of the said quantity of the said liquors, so ascertained as aforesaid, a large sum of money, to wit, the sum of 311. 17s.' 3d., contrary to the said agreement of the said Charles Newman; and although he the said Charles Newman was then, to wit, on the day and year last aforesaid, requested to pay the said last-mentioned sum of money to the said Messrs. Kempson, he the said Charles Newman then...
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