Smith and Others v Mawhood
| Jurisdiction | England & Wales |
| Judgment Date | 23 June 1845 |
| Date | 23 June 1845 |
| Court | Exchequer |
English Reports Citation: 153 E.R. 552
IN THE COURTS OF EXCHEQUER AND EXCHEQUER CHAMBER
S. C. 15 L. J. Ex. 149. Distinguished, Ritchie v. Smith, 1848, 6 C. B. 472. Applied, Bailey v. Harris, 1849, 12 Q. B. 905; Melliss v. Shirley Local Board, 1885, 16 Q. B. D. 452.
[452j smith and'others v. mawhood. June 2;5, 1845.-The 25th and 2(Jth sections of the Excise License Act, 6 Gen. 4, c. HI, which subject to penalties any manufacturer of or dealer in or seller of tobacco, who shall not have his name painted on hia entered premises in manner therein mentioned; or who shall manufacture, deal in, retail, or sell tobacco without taking out the license required for that purpose, do not avoid a contract of sale of tobacco made by a manufacturer or dealer who has not complied with the requisites of these sections; their effect is merely to impose a penalty on the offending party for the benefit of the revenue. ;-But where it appears that the intention of the legislature was to prohibit the ^contract itself, although that be only for purposes of revenue, the contract is lillegal and; void, and no action can be maintained upon it.-An allegation in a iplear that the tobacco, for the price of which the action was brought, was sold by ithe plaintjffs "as manufacturers of tobacco,*' after the stat. 6 Geo. 4, e. 81, and :that they had not a license under that act, is riot a sufficiently direct allegation 'that the plaintiffs were manufacturers of tobacco, so as to come within the provisions of the act. [S. C. 15 L. J. Ex. 149. Distinguished, Ritchie v. Smith, 1848, 6 C. B. 472. Applied, Bailey v. Harris, 1849, 12 Q. B. (J05; Melltxn v. Shirley Local Board, 1885, 16 Q. B. D. 452.] Debt for goods sold and delivered, and on an account stated. Second plea, that the goods in the first count mentioned were divers quantities of tobacco, and the same, and each arid every of them, were sold and delivered by the plaintiffs, ag manufacturers of tobacco, after the 5th July, 1835, to wit, on &c., and fhat the account in the last count mentioned was stated between the plaintiffs 1 i-. . . (c) See Ra&trick v. Beckwith, 14 Law J. (N. S.) C. P. 1. 14 M. &W. 453. SMITH V. MAW HOOD 553 and the defendant of and concerning the monies claimed to be due from the defendant to the plaintiffs, in respect of the said sale and delivery of the said goods, and of and concerning no other monies or debts, and the money in the last count mentioned as found to be due upon the said account, was and is the money claimed to be due in respect of the said sale and delivery of the said goods, and no other money ; and that the plaintiffs had not, at any time before, or at the time of the sale and delivery of the said goods, or any or either of them, taken out or obtained any excise license, required by the statute in such case made to be taken out by every manufacturer of tobacco or snuff, or any excise license required to be taken out by every dealer in or seller of tobacco or snuff, and containing or setting forth the purpose, trade, or business of the plaintiffs, and the true names and places of abode of the plaintiffs, and the place at which their business was carried on, and authorizing them to sell the said tobacco ; but, on the contrary thereof, the plaintiffs sold and delivered the said tobacco, and every part thereof, without having taken out any excise license authorizing them to manufacture or sell [453] the said tobacco, contrary to the form of the statute in such case made. Verification. Third plea, that the plaintiffs, before and at the time of contracting the several supposed debts in the declaration mentioned, were manufacturers of and dealers in tobacco, and were and are, as such manufacturers and dealers, required by the laws of the excise to make entry of their premises, in order to exercise and carry on therein their trade and business as such manufacturers and dealers in tobacco; and that the plaintiffs, before and at the time of the sale and delivery of all the goods in the Hrst count mentioned, had taken out such excise license as by the statute in such case made is required to be taken out by every manufacturer of tobacco or snuff, and had duly entered the premises in which they exercised and carried on their said trade and business, to wit, premises situate and being No. 57 lied Cross-street, Gripplegate, in the city of London ; and that the goods in the first count mentioned, and every of them and every part thereof, were tobacco sold and delivered at the saicl premises to the defendant by the plaintiff's, as such manufacturers, so exercising and carrying on business at and in the said premises, and in the course of the said trade and business of manufacturers and dealers in tobacco, carried on by them in and upon the said premises, and after the fifth day of July in the year of our Lord 1825, to wit, on the 15th Marqh, 1845; and that the account in the last count mentioned was slated of and concerning the price of such goods so sold and delivered as in this plea aforesaid, and of and concerning no other monies or debts; and the money in the last count mentioned, as found to be due upon the said account, was and is the price of such goods so sold and delivered as in this plea aforesaid, and no other money. And the defendant further says, that the plaintiff's had not, before or at the time of the said sale, painted, placed, or fixed, or caused to be painted, placed, or fixed, in letters [454] publicly visible and legible, and at least one inch long, in or upon their said entered premises, their names respectively, at full length, or the name or style of the firm or partnership under which the plaintiffs carried on the said trade and business, and after...
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