Macaulay's argument assumes that the purchaser got all that he was entitled to, so far as the vendors were concerned. It seems to me that they undertook that at least he should have an actual delivery. The purchaser could not get a delivery, though it was not merely his right but part of the bargain that there should be a delivery. It is said that he might maintain trover against the plaintiff for the stack, but that is a mere right, and he is not bound to pursue his remedy in that respect. The contract not having been performed on the part of the vendors by reason of the misconduct of the plaintiff, he cannot maintain this action. WILLIAMS, J.-It appears that the plaintiff's own misconduct rendered the first distress unavailing, and therefore he cannot complain of the second distress. CROMPTON, J.-I am of the same opinion. The rule of law is, and very properly, that a person cannot distrain a second time for the same cause, if he has had an opportunity of making available the first distress. On the other hand if, by the unlawful act of the distrainee, the distrainor is prevented from realizing the distress, he may distrain again. Here, the plaintiff by his unlawful conduct prevented the first distress from being available, and therefore he cannot complain of the second. CROWDER, J.-The first distress proved abortive in consequence of the wrongful act of the plaintiff, and therefore by the rule of law he cannot complain of the second distress. It is said there was a complete sale of the stack to Leverton, and that the act of the plaintiff could not defeat its effect and prevent the property from vesting in him. It seems to me that there was not a complete sale. Under one of the conditions the purchaser was to take possession when pay 1858. LEE v. СООКЕ. 1858. LEE v. COOKE. ment was made. That assumes that there was to be a delivery of the stack; and a delivery must mean that the party to whom it was sold has power to carry it way. From the beginning, the plaintiff threatened that the purchaser should never have the stack, and when he came to take it away the plaintiff prevented him with violence. Therefore he never had an opportunity of taking possession of the stack, and the first distress was rendered fruitless by the wrongful act of the plaintiff. Mellor and Hayes, Serjt., appeared to shew cause. Rule refused. IN THE EXCHEQUER CHAMBER. Feb. 4. An information under the Customs Acts, charged, in the first three counts, four defendants with several offences on several days; in the fourth, seventh counts, offences on other days. A RUCK and Others v. THE ATTORNEY GENERAL. IN this case, reported 11 Exch. 763, and in which the information was filed after the passing of 16 & 17 Vict. c. 107, a stet processus was entered by the Attorney General as to Joseph Hobbs the younger, and a nolle prosequi as to all the counts except the fourth. Upon the fourth count judgment was entered up against Robert Ruck, Henry Beal, Joseph Hobbs the elder, James Hobbs, Joseph Beal, and William Fairbrass, severally, for the penalty and costs against each. Joseph Ledger and Edward Clark son were acquitted. A writ of error having been brought upon this judgment, verdict having been found for the Crown against different defendants on different counts, the Attorney General entered a nolle prosequi as to all the counts except the fourth, upon which six of the defendants were convicted and two acquitted; and judgment was entered up for the penalty and costs against cach defendant accordingly. A writ of error having been brought :Held, that the judgment was not erroneous. Honyman now argued for the plaintiffs in error.-The judgment ought to be arrested. There is a misjoinder of counts and a misjoinder of defendants. [Willes, J.-Surely that is merely ground for an application to try the cases separately. Coleridge, J.-Are you not in error in contending that the joining several defendants in one indictment is a ground of error? The grand jury may if they please join several defendants charged with offences of the same nature in one bill (a).] In Rex v. Philips (b) six persons were included in one indictment for perjury, and four of them who pleaded having been convicted, the judgment was arrested. [Willes, J.—There the offences were in their nature several.] The Court in that case observed that there would be great inconvenience if the defendants could be indicted jointly; one might be desirous of having a certiorari and the other not; and the jury on the trial might apply to all what was only evidence against one. Rex v. Gregory (c) shews that the Court will not quash an information filed by the Attorney General on motion; therefore, if error will not lie, the defendants, though exposed to the suggested inconvenience, may be without remedy. An information for penalties is a civil proceeding; it is "the King's action of debt:" Cawthorne v. Campbell (d), Attorney General v. Freer (e). There is no authority that such misjoinder can be cured by the entry of a nolle prosequi after the trial. One defendant cannot be found guilty if others are acquitted. [Wightman, J.—The question as to that point is, whether the proceeding is founded upon contract or tort.] The 8 & 9 Vict. c. 87, s. 104, contains no provision with reference to the acquittal (a) See 1 Starkie's Criminal Pleading, p. 43, citing Rex v. Kingston, 8 East, 41, 46; Young v. The King, 3 T. R. 98. See also Rex v. Austin, 7 C. & P. 796; Rex v. Galloway, 1 Moo. C. C. 234; Regina v. Caspar, 2 Moo. C. C. 101. (d) 1 Anst. 205 n., 214. 1858. RUCK v. ATTORNEY 1858. RUCK v. ATTORNEY of one defendant. The offence was not an offence against the 16 & 17 Vict. c. 107. [The Solicitor General referred to s. 267. Coleridge, J.-The Act does not apply to any particular offences but to all procedure, whether the offence was committed before or after the Act.] The 267th section is a legislative recognition that but for the passing of that Act the acquittal of one defendant would be fatal. [Willes, J.—There is not much weight in that argument. The 18 & 19 Vict. c. 91, s. 21, professes to give a jurisdiction which existed before.] The Solicitor General, Wilde and Cleasby, who appeared for the Crown, were not called upon. Per CURIAM (a).—We are all of opinion that the judgment must be affirmed. (a) Cockburn, C. J., Coleridge, J., Wightman, J., Erle, J., Wil Judgment affirmed. liams, J., Crompton, J., Crowder, J., and Willes, J. MEMORANDA. In Hilary Vacation (Feb. 26) Lord Cranworth resigned the Great Seal, and it was delivered to Sir Frederick Thesiger, Knt., one of her Majesty's Counsel, who was afterwards raised to the peerage by the title of Lord Chelmsford, of Chelmsford, in the county of Essex. Sir Richard Bethell, Knt., resigned his office of her Majesty's Attorney General, and was succeeded by Sir Fitzroy Kelly, Knt. Sir Henry Singer Keating, Knt., resigned his office of Solicitor General, and was succeeded by Hugh M'Calmont Cairns, Esq., one of her Majesty's Counsel, who afterwards received the honour of Knighthood. Exchequer Reports. EASTER TERM, 21 VICT. GEORGE FRANKLIN, Administrator of THOMAS FRANKLIN, deceased, v. THE SOUTH EASTERN RAILWAY COMPANY. DECLARATION, on the 9 & 10 Vict. c. 93, s. 2, by the plaintiff, as administrator of Thomas Franklin, against wages of 23s. per tiff and was porter to a saddler at the when a collision took place through the negligence of the the father was old and infirm, that the son, who was young and earning good wages, assisted his father in some work for which the father was paid 3s. 6d. a week. The jury having found that the father had a reasonable expectation of benefit from the continuance of his son's life :-Held, that the action was maintainable. |