Wetherell against Jones and Another
| Jurisdiction | England & Wales |
| Date | 1832 |
| Court | Court of the King's Bench |
English Reports Citation: 110 E.R. 82
IN THE COURT OF KING'S BENCH
[221] wetherell against jones and another. Thursday, January 26th, 1832. The statute 6 G. 4, c. 80, s. 124, enacts, that no dealer in British spirits shall sell, send out, &c. any plain British spirits exceeding the strength of twenty-five above proof, or any compounded spirits (except shrub) exceeding that of seventeen under proof, on pain of forfeiting such spirits. Held, that this section does not apply to a distiller or rectifier, and, therefore, that where a rectifier had sold and sent out plain British spirits of the strength of twenty-seven and a half, such contract of sale was not illegal, nor were the spirits prohibited goods, and the seller might recover the price. By s. 115 and 117 it is enacted, that no spirits shall be sent out of the stock of any distiller, rectifier, &c. without a permit first granted and signed by the proper officer of Excise truly specifying the strength of such spirits, and by sect. 119, if any permit granted for spirits shall not be sent and delivered with such spirits to the buyer, such spirits shall, if not seized SB. & AD. 222. WETHERELL V. JONES 83 in the transit for want of a lawful permit, be forfeited to the buyer, and the seller shall be rendered incapable of recovering the same or the price thereof, and shall incur other penalties: Held, that this latter section applied to cases only where the permit granted by the officers of Excise has not been delivered with the goods to the buyer, and not to a case where the permit, though irregular, was delivered to him; and therefore where a rectifier of spirits had sent to the buyer spirits of the strength of twenty-seven and a half above proof, with a permit in which they were described as of seventeen below proof, it was held, that although the irregularity was the seller's own fault, and was a violation of the law by him, it still did not preclude him from suing for the price, the contract of sale being legal. [S. C. 1 L. J. K. B. 139. Principle applied, Bailey v. Harris, 1849, 12 Q. B. 918. Distinguished, Scott v. Brown, [1892] 2 Q. B. 729.] Assumpsit for goods sold and delivered. The plaintiff was a rectifier of spirits, the defendant a confectioner. The defendant paid into Court a sum of money sufficient to cover the whole of the plaintiff's demand, with the exception of the price of twenty gallons of plain British spirits. At the trial before Patteson J. at the...
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