but in bar. The distinction between those pleas in civil
actions is well known. If a plea in abatement is held
bad on demurrer, the judgment is that the defendant do
answer over; but if a plea in bar is held bad on demurrer,
the judgment is general against the defendant: for the
general rule, in civil actions at least, is, that a defendant
is not to plead a second plea in bar, after the first has
been determined against him. If he might do this, he
might also plead a third, a fourth, and so on, and there
would never be an end to the proceedings. It is to be
seen whether this rule applies also to an indictment for a
misdemeanor. Another rule in civil actions is, that if
issue is joined on a plea in abatement, and a verdict is
found against the defendant, the jury who find the verdict
assess the damages also, and the judgment recovered
against the defendant is final, no further plea being al-
lowed. The same rule applies to a plea in abatement to
an indictment for a misdemeanor, if issue is joined thereon
and found against the defendant. This was decided by
the Court in the case of Rex v. Gibson (a). In this re-
spect, therefore, the analogy between civil actions and
indictments for misdemeanors is established by express
decisions: but in felonies the rule is otherwise.
"If a
man plead any plea to an indictment or appeal of felony,
that does not confess the felony, he shall yet plead over
to the felony, in favorem vita; and that pleading over to
the felony is neither a waiver of his special plea, nor
makes his plea insufficient for doubleness. And, there-
fore, if he pleads any matter of fact to the writ or indict-
ment, or pleads autrefois convict or autrefois acquit, he
shall plead over to the felony; and although he doth it
not upon his plea, but his plea be found or tried against
him, yet he shall not be thereby convict without pleading
(a) 8 East, 107.

1824

The KING 0.

TAYLOR.

1824.

The KING

Ο.

TAYLOR.

to the felony, and trial thereupon." This is the first paragraph in the 33rd chapter of the second book of Lord Hale's Pleas of the Crown. The same learned author afterwards proceeds to speak of this subject in several passages, which I shall mention, as I think them material to our decision of this case. He says, that if he plead a plea that confesses the fact, as a release in an appeal, in his opinion he may, if he please, plead over to the felony, not guilty; and, accordingly, he says it was held by Markham, in 7 Edward 4. 15. a, though he refers to two later authorities to the contrary. He proceeds, if a man pleads the King's pardon, he shall not need to plead over to the felony, because it suits not with his plea; and yet, if the pardon upon a demurrer, or upon advisement of the Court, be adjudged insufficient, the party shall not thereupon be convict, but shall be put to plead to the felony, and be tried for it; the pleading of the pardon is a kind of confession of the fact; but yet, in favorem vita, the party shall be put to answer the felony. The reason of the rule in these cases is expressly mentioned by that learned author, and repeated by all other writers on the subject: it is in favour of life. And these passages also shew that there is not any distinction subsisting between pleas in cases of felony which contain an admission of guilt, and those which import a denial of it; but the rule is the same in both cases, because the reason extends to both alike. It is well known that there is no felony at common law, except petty larceny, upon which judg ment of death may not be given; nor any misdemeanor upon which such judgment can be given: and, therefore, the reason of the rule will not apply to the case of a misdemeanor. If the reason does not apply, the rule ought not to be extended to misdemeanors. Accordingly, in the second volume of Lord Raymond's Reports, page

921, Lord Chief Justice Holt plainly declared his opinion
to be, that a man could not plead over in any case ex-
cept treason or felony, and not in case of a misdemeanor.
It is true that this point was not then in judgment before
the Court, but nevertheless the opinion of so great a judge
is entitled to very great respect. The only case which is
supposed to be a decision in favor of the present, is that'
of the Earl of Devonshire, which is to be found in the
11 Howell's State Trials, 1353. I should be sorry to be'
thought to consider that case as an authority for any thing;
but upon examination it will not be found applicable to the
present question. The plea of the earl was not properly a
plea in bar, for he pleaded that no peer of Parliament could
be called upon to answer before any Court inferior to the
Court of Parliament, for any misdemeanor during the
sitting of Parliament, or the usual time before or after a
prorogation; that the information was filed during the
time of privilege; and he concluded by praying judgment
whether the Court would or ought to take cognizance of
the plea aforesaid, that is of the information, during the
usual time of privilege. Upon this very special plea,
which was in the nature of a temporary plea to the juris-
diction, supposing the privilege to be disallowed, the
proper, or at least the most lenient judgment would be,!
that the earl should answer to the information. That
was the judgment in fact given. But that case cannot
be considered as an authority upon the point now in
question, and as the reason of the rule in cases of felony
does not apply to cases of misdemeanor, and as it has
been decided that the rule in civil actions does apply to
cases of misdemeanor, where issue is joined on a plea in
abatement; we are all of opinion that the rule in civil
actions, and not the rule in cases of felony, applies to the
present case, and, consequently, that the judgment against

this defendant should be final, and not that he should

answer over.

Judgment for the Crown.

The defendant was afterwards brought up for judg ment, and received sentence.

Friday,

November 12.

DYSON v. Woon.

Trespass for DECLARATION in trespass, for breaking and entering

breaking and

seizing and

entering plain, plaintiff's dwelling-house, and seizing and carrying away tiff's dwelling- his goods. Plea, as to the breaking and entering the house, and dwelling-house, that our lord the now king, before, &c. carrying away was, and still is, seised in right of his duchy of Lancaster, his goods. Plea, a justifi- of the liberty and franchise of the honour of Pontefract, cation under a in the county of York, with the appurtenances; and that judgment refrom time immemorial until the time of the passing of the 17 Geo. 3. c. 15., a court baron had been used to be

covered in a court baron,

and a precept

issued thereon. Replication,

not any memo

or of the said

supposed judgment, remaining in the said court

baron, in the

holden, in and for the said honour, for the suitors of the that there is court, for the recovery of debts and damages not exceedrandum of the ing forty shillings, arising within the said honour, and proceedings, after the passing of that act, for the recovery of debts and damages not exceeding five pounds, arising within the said honour; that defendant before, &c. recovered a judgment in the said court for 17. 9s. 11d., and prosecuted and sued out upon the said judgment, according to the custom of the said court, a precept directed to the chief bailiff and his deputies, commanding them to levy the said tante, that the sum so awarded, &c.; concluding with a justification of replication the breaking and entering the dwelling-house for the purpose of levying the goods, under the precept. Replication, that there is not any memorandum of the proceedings, or of the said supposed judgment, remaining in the

said plea men-
tioned:-
Held, Little-

dale, J. dubi

tendered an immaterial

issue, and was therefore bad on general demurrer.

said court baron, in the said plea mentioned. General demurrer, and joinder in demurrer.

Milner, in support of the demurrer. The fact put in issue by this replication is immaterial, and therefore furnishes ground for a general demurrer. A court baron is not a court of record; therefore a judgment obtained there can be entitled to no greater weight than a foreign judgment, which it has been repeatedly decided is not a record: Walker v. Witter (a), Galbraith v. Neville (b)* Suppose the defendant had taken issue upon the replication, and had brought into this Court the memorandum of the proceedings in the court baron, it could not have been read; such a document would not have been evidence, and the steward of the court baron must have been called as a witness to prove the proceedings. The only mode by which the proceedings in a court baron can be reviewed, and its judgment corrected, is a writ of false judgment; and when such a writ issues, the proceedings themselves are not removed into the court above, but the writ is directed to the steward, and he certifies the proceedings. The jury in a court baron have no power to act but by custom, nor can the court itself decide except by custom, for by common right all pleas in that court must be de-cided by wager of law, 2 Inst. 143.; and that must be inferred to have been the course here, for no custom to the contrary is alleged or found. The steward's memorandum is no evidence of itself; he may, for his own personal convenience, take a note of the proceedings, but that does not constitute the judgment of the court, nor operate as an authentic record of it. An issue, therefore, tendered upon the fact whether there is, or is not, remaining in the court baron any such memorandum or note, is a perfectly immaterial issue, and the replication (a) 1 Doug. 1. (b) Id. 5.

1824.

DYSON

2.

WOOD.