1824.

The KING

v. The

INHABITANTS

particular parish. That was the point there, and that was the matter in question; but it is not so here. The early case of Harrow v. Ryslip (a) will illustrate this position. The case was this." A. comes into Harrow, of KNAPTOFT. and being likely to become chargeable, was removed to Ryslip; Ryslip appealed, and upon the appeal A. was adjudged to be settled at Ryslip; afterwards Ryslip discovered that Hendon was the place of his last legal settlement, and sent him thither; and the question was, whether, after the adjudication upon the appeal, Ryslip was not estopped against all the world, to say, that Ryslip was not the place of his last legal settlement: et per Holt, C.J., " Ryslip is estopped to say otherwise: for if Ryslip had not been the very place of his last legal settlement, the Justices must have sent him back to Hurrow, who were first possessed of him, for that reason, because they were possessed of him, and he did not belong to Ryslip. And now this is in effect the same question again, viz.-whether he belongs to Ryslip? which question has been already determined by the Justices on the appeal, who have adjudged that he was last settled at Ryslip." The report goes on to say, “ Afterwards this was moved again, and then Holt and Gould held the adjudication was final as to Ryslip against all persons and places, because the point of his settlement as to Ryslip was tried in the appeal; but as to Harrow (for he had been formerly removed by them to Hendon, and that order reversed) they were at liberty to send him to any other place, and were not estopped; because the Justices on the appeal did not adjudge him to be settled at Harrow, though they adjudged him now to be settled at Ryslip; so that the other point was not tried." The language of the Court in one part of this case ap

(a) Salk. 524. Vide Mynton v. Stony-Stratford, id. 527.

plies to the instance where the order of removal is confirmed, and that on the other where it is reversed, and points out the distinction already alluded to between a

1824.

The KING 0.

The

judgment of confirmation and one of reversal. In the INHABITANTS

latter instance the Sessions do not find where the pauper of Knaptoft. is settled, and thus, the order of removal, confirmed, or unappealed, from, is conclusive evidence that the settlement is in the place to which he is removed; reversed, it is conclusive evidence that the settlement is not there; and beyond this point, no case with which we are acquainted has ever yet gone. There are, undoubtedly, cases which shew that where the point in issue is decided, all results flowing out of that point are decided also; as, for instance, that a wife's removal to the place of her husband's settlement, is conclusive to shew that that is his place of settlement. But no case has ever

gone further than to hold that the point decided is conclusive upon the same point, and therefore receivable in evidence; other points, collateral or incidental to the point decided, and undetermined by it, are excluded from its operation, and cannot be proved by giving the point decided in evidence. It is the same with respect to judgments; they are merely evidence of the point decided. It is admitted that the pauper has no settlement in the parish to which he has been removed, unless his father has acquired a settlement there. Then the father's settlement was a question which came in incidentally, but incidentally only, and was not the point decided by the judgment in the first appeal, which consequently was not admissible as evidence in the second. For these reasons, we are of opinion that the order of Sessions in this case was right, that the Sessions properly rejected the evidence tendered, and that the rule for quashing their order must be discharged.

Order of Sessions confirmed.

1824.

not allow a de

an indictment

to an indict

The KING v. R. S. COOKE.

The Court will INDICTMENT against Cooke and others for a conspifective plea in racy, to which the defendant Cooke pleaded in abatement abatement to as follows:-" And Richard Stafford Cooke, Lord Staffor a misde- ford, Baron Stafford, who is indicted by the name of meanour, when Richard Stafford Cooke, late of the parish of Castlechurch, once pleaded, to be amended. in the county of Stafford, gentleman, in his own person Plea of peer- comes, and having heard the said indictment read, prays age by way of abatement judgment of the said indictment, because he says, that on the day of taking the inquisition aforesaid, and long before, demeanour:- he was, and from thence hitherto hath been, and still is, Held, ill on demurrer for Lord Stafford, Baron Stafford, and the state, degree, title not shewing in and honour of Lord Stafford, Baron Stafford, on the day defendant de- of taking the inquisition aforesaid, and long before, had rived his title and enjoyed, and still has and enjoys; and this he the said Richard Stafford Cooke, Lord Stafford, Baron Stafford, is ready to verify. Wherefore, &c. Demurrer to the plea, and joinder in demurrer.

ment for a mis

what manner

and that he

was a peer of

the United Kingdom.

The COURT having refused to quash the plea upon motion (a), and the prosecutor having subsequently demurred to it,

Campbell, in Easter Term last, moved for leave to amend the plea, sed,

PER CURIAM. This is a dilatory plea; a mere plea of misnomer; standing upon the same footing as the common pleas in abatement in civil cases, which are never allowed to be amended. It goes merely to the description of the defendant, and entirely avoids the

(a) Vide ante, 174.

merits of the case. The indictment must be tried in the same form, whether the plea is true or false. If we were to allow the defendant to amend, we should in effect be trying the question of the peerage. No instance can be found in which such a permission has been granted, and the Court will not depart from the rule laid down in civil cases, not to allow a plea in abatement to be amended, and thereby set up a precedent, which would be highly dangerous in its consequences.

The demurrer was now argued by,

Rule refused,

Talfourd, on the part of the prosecution. There are two objections to this plea, and both are fatal. First, it does not. shew upon the face of it that the defendant claims to be a peer of England or of the United Kingdon; and second, it does not set out the mode in which he derives his claim. First, no one can claim to be a peer of the realm without first shewing that he is a lord of parliament: Lord Sanchar's case (a); and 2 Inst. 667, where it is said by Lord Coke," all dukes, marquesses, earls, viscounts, and barons of other nations, or which are not lords of the parliament of England, are named armigeri, if they be no knights, and if knights, then they are named milites." The plea claims the title of " Baron Stafford," not Baron of Stafford, and therefore does not shew that the title is taken from any place within the United Kingdom, for the title of Baron Stafford may exist in some other country; and although it may not be necessary to shew a derivation of the title from England, still it is necessary to shew, what is certainly not shewn

(a) 9 Rep. 117.

1824.

The KING

0.

COOKE.

by this plea, a right to enjoy the title in England. A plea, similar to this, has indeed been held sufficient, without averring that the defendant was Unus Pariam Regni Angliæ; Rex v. Knollys (a): but the ground of that decision was that the plea set out the letters-patent by which the peerage then in question was created. It will, perhaps, be said that as there is in the statute book an act of parliament (b), entitled "An act for the restitution in blood of the Lord Stafford," the Court must take judicial notice that "Lord Stafford, Baron Stafford," is an English title; and that so the plea may be supported. But in the first place that was only a private and personal act, therefore the Court cannot take judicial notice of it; and in the second, as the plea does not shew that the title now claimed is the same as that mentioned in the act, the Court cannot intend their identity. The distinctions between a public and a private act are enumerated in Buller's Nisi Prius (c), and this act does not possess any one of the characteristics there attributed to public acts. But if the act could be noticed, still it does not respect the same title which the defendant claims, for the act restored the party to the title of Lord Stafford, and authorised him to bear the arms of the Barons of Stafford, whereas the defendant claims to be Baron Stafford, Secondly, the plea is bad for not shewing how and by what mode the defendant derives his title. There are four modes of doing this; by writ, by letters-patent, by descent, and by prescription. The first of these would be triable by record, the second by production of the letters-patent, and the third and fourth by the country; Rex v. Knollys, and the authorities there cited: and therefore unless the mode by which the title is derived appears upon the plea, it is bad for uncertainty, for the (a) 1 Ld. Ray. 10.

(b) 1 Ed. 6.

(c) 223.