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1824. It is a general rule of law that everybody has a right to use
the water of a stream provided he does not, by the use of WILLIAMS
it, injure any right which other persons may have acquired MORLAND. by previous appropriation. If a man has acquired a right
over water by appropriating it to his own benefit, he may divert it to his own purposes, but if he has never appropriated the whole of it to his own use, it is very
fit and proper
that other persons should have the benefit of the surplus; but inasmuch as this declaration does not allege that the plaintiff has sustained any injury, the mere diverting of the water will not alone entitle the plaintiff to maintain an action.
Rule discharged (a).
(a) Vide Duncombe v. Randall, Hetley, 32; Brown v. Best, 1 Wils. 174; and Cor v. Mathews, 1 Vent. 237.
The King v. R. S. CookE. The Court will INDICTMENT against Cooke and others for a conspiracy, not allow a defective plea in to which the defendant Cooke pleaded in abatement as folabatement, to lows;_" And Richard Stafford Cooke, Lord Stafford, an indictment for a misde Baron Stafford, who is indicted by the name of Richard meanour,when Stafford Cooke, late of the parish of Castlechurch, in the to be amended. county of Stafford, gentleman, in his own person comes,
Plea of peer- and having heard the said indictment read, prays judgment age by way of abatement of the said indictment, because he says, that on the day of to an indict. for a misde
taking the inquisition aforesaid, and long before, he was, and
from theuce hitherto hath been, and still is, Lord Stafford, Held, ill on demurrer for Baron Stafford, and the state, degree, title and honour of not shewing in Lord Stafford, Baron Stafford, on the day of taking the defendant de- inquisition aforesaid, and long before, had and enjoyed, and rived his title still has and enjoys; and this he the said Richard Stufford was a peer of Cooke, Lord Stafford, Baron Stafford, is ready to verify. the United Kingdom. Wherefore, &c. Demurrer to the plea, and joinder in de
The Court baving 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 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
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 Kingdom; 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 (6); and 2 Inst. 667, where it is said by Lord Coke,
all dukes, marquesses, earls, viscounts, and barons of other pations, 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, (a) Vide ante, 114.
(6) 9 Rep. 117. VOL. IV.
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 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 Parium 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 de fendant 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 (a) i Ld. Ray. 10. (6) 1 Ed. 6.
the prosecutor cannot possibly ascertain in what form he is to take issue upon it. It is only further to be observed that this is merely a dilatory plea, and therefore will not be viewed with favor by the Court, as it tends to a delay of public justice.
Campbell, contra. The Court will, if they can, give a reasonable intendment to the plea, and so construed, there is enough stated upon the face of it to lead them to the presumption that the defendant is and claims to be a peer of England and of parliament. [Bayley, J. May he not be Baron Stafford of Ireland, or of any other country?] The statute 1 Ed. 6. proves the title to be English, and the Court will not go out of their way to infer that it is foreign. Without the statute it would perhaps be difficult to support the plea, but thus aided the plea is clearly good. If the 1 Ed. 6. is a public act, the Court will look at it the same as if it had been set out in the plea. Now it is a public act.' All acts which respect the goverument and measures of state, are public acts: that is the true criterion. This act touches the king's prerogative; it affects one branch of the legislature, and consequently all the peers of the realm ; and as such it is a public act, and must be judicially noticed by the Court. Then, what is the operation of the act? It restores Lord Stafford in blood; it declares that he shall have in parliament and in other places, the room, name, place, and voice of a baron, and it empowers him to take and bear the arms of the Barons of Stafford. In judicial proceedings of whatever kind, if a person is described as a peer by a title of peerage in England, he must be considered as described and as being a peer of England. Such is the description in this act; the barony of Stafford is described as a peerage in England, and therefore the person so alluded to must be taken to be a peer of England. Neither does the plea present any difficulty to the prosecutor in taking issue upon it, for the act shews the origin of the peerage, which can have come to the defendant only by descent; and
therefore it was not necessary to aver a claim by descent, and the plea is good without such averment.
Talfourd, in reply, was stopt by the Court.
BAYLEY,J.-The defendant insists that he is not properly described in the indictment, but if the indictment had described him as a peer, he would not thereby have been entitled to claim any privilege of peerage. The plea therefore is a dilatory plea, an ordinary plea in abatement, and falls within the rule which says that pleas in abatement to writs or indictments must give a better writ or count, and must be certain in every particular : consequently the defendant was bound to shew, not only that he had the right to a peerage, but also the mode by which he derived that right. There are many good reasons for this rule, as applicable to the present case. In the first place, the prosecutor has a right to take issue upon the fact of peerage, and the mode of trial depends upon and varies with the nature of the claim. If the defendant claims to be a peer by writ, he is no peer until he has taken his seat as such, and that fact must be tried by the record of parliament. If he claims by patent, the patent must be produced, and then, and not till then, bis title is complete. In such a case the replication would be non concessit, and that issue would be triable by the patent itself. If he claims by descent, or by prescription, that must be tried by a jury. The difference in the mode of trial, consequent upon these different species of claim, shews that the omission in this plea of the particular mode in which the defendant claims his title, is an objection to the substance, and not merely to the form of the plea ; though that is unnecessary, because a plea in abatement must be good in form as well as substance. Then, is this objection obviated by the statute of Edward the sixth? ! think clearly not. The defendant styles himself Lord Stafford, Baron Stafford, but the mere calling a person a lord will not shew hiin to be a peer of parliament
, as was decided