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, contrà. 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 government 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 1824. The KING 0. COOKE. 1824. The KING 0. COOKE. 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, aud 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, his 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? I think clearly not. The defendant styles himself Lord Stafford, Baron Stafford, but the mere calling a person a lord will not shew him to be a peer of parliament, as was decided in Lovel's case, cited in the Countess of Rutland's case (a). But it is said the Court must presume that the defendant is the heir male of the person restored to the title of Lord Stafford by the act. If the description of the defendant in the plea were the same as that in the act, which it is not, still it would be necessary for him to aver that he was the heir male; and looking at the act and the plea, before the Court can identify the title in the one with that in the other, they must presume much more than they ought to do in favor of a plea in abatement. There may be other Lords Stafford. "Lord Stafford" is the only title which the act recites; for though it declares that he shall be a baron, it does not say by what title. It empowers him to bear the arms of the "Barons of Stafford," evidently leading to the presumption that the original title had been, not Baron Stafford, but Baron of Stafford. In either point of view, therefore, this plea is bad. If we exclude the act from our consideration, it is bad for not shewing how the title claimed is derived. If we take notice of the act, as a public act, (and whether we can or cannot do so, it is not necessary on the present occasion to decide, and upon that point, therefore, I express no opinion,) it is equally bad, for not averring that the defendant is the heir male of the person restored to the peerage by the act. For these reasons 1 am of opinion that there must be judgment of respondeat ouster. HOLROYD, J. Concurred (b). 1824. The KING บ. COOKE. Judgment accordingly. (a) 6 Rep. 53. (b) Littledale, J. was absent. 1824. The privileges the copyright acts of this country, do not extend to books printed abroad. Where the author of a musical com position sold the right of publishing it to a music seller in Paris in 1814, reserv CLEMENTI and others v. WALKER. conferred by THIS was an action on the case, in which the plaintiffs declared, that before and at the time of committing the grievances thereinafter mentioned, they were the proprietors of the copyright of and in a certain book, being a musical composition, called "Vive Henri Quatre, the celebrated French national air, with an introduction, and eight variations for the piano-forte," first printed and published within fourteen years last past; to wit, at Westminster in the county of Middlesex; yet defendant, well knowing the premises, but contriving, and wrongfully and injuriously intending, &c. theretofore, and after the passing of a certain act of parliament, passed in the 54th year of Geo. 3., to wit, on the 26th January, 1822, and on divers other days and times between that day and the day of exhibiting the bill of the said plaintiffs against defendant, to wit, at, &c. knowingly, wrongEnglish music fully, and injuriously, and without the consent of plaintiffs, seller, by parol, who im- so being the proprietors of the copyright of and in such mediately pub- book, first had and obtained in writing, printed and caused lished it; and in 1818, B. to be printed divers, to wit, 2000 copies of the said book of another plaintiffs, by means whereof plaintiffs were greatly injured and damnified, to wit, at, &c. There were seven other a French copy counts for publishing and exposing to sale pirated copies of ing to himself the right of publishing it in England, and in the same year he sold the work to A. an English music seller, bought of the compo sition, in the the same work. At the trial before Abbott, C. J. at the fair way of his trade, at Paris, Middlesex Sittings in last Hilary Term, the plaintiffs had a and republish- verdict with nominal damages, subject to the opinion of the Court upon the following case : ed it here on his own account; and in 1822 the author exe cuted a valid Mr. F. Kalkbrenner, a foreigner, composed the music in question in France, in the year 1814. Before he came to assignment of England, which he did in June in that year, he agreed with the copyright Mr. Pleyel, a publisher of music in Paris, that he should have the right of publishing such music in France only, reHeld, that A. serving to himself the right of publication in England. It was not published in France before Mr. Kalkbrenner quitaction against ted that country to come to England. On the 17th of B. for piracy. to A. in writing: could not maintain an June, 1814, there were deposited by Mr. Pleyel five copies of the musical composition in question in the depôt at Paris, for entry of copyright in France. It has been published and sold in France up to the present time. Shortly after Mr. Kalkbrenner arrived in England, viz. on the 12th of July, 1814, he sold the work in question, with two others, by a parol agreement, for the sum of 30l. to the plaintiffs, and two other partners since dead; and which sum was then paid to him for the same. A few days after such sale, Mr. Kalkbrenner returned to France, and there corrected the engraving of the composition for the publication in Paris for Mr. Pleyel, and did not see the work published at Paris till the following year, 1815. The plaintiffs first published the composition in England between the 3d and 10th of September, 1814. At the distance of two years after this, Mr. Kalkbrenner was paid by Mr. Pleyel 200 francs, which is equal to about 8/. sterling, for the right Mr. Kalkbrenner had so sold to him. On the 24th of January, 1822, Mr. Kalkbrenner being in England, executed an assignment in writing of his copyright in the musical composition in question to the plaintiffs, agreeably to the terms of sale made by him to them in 1814. The defendant sold a copy of the work in question to Mr. Lindsey on the 20th of February, 1822, at his shop in London, for two shillings. Such copy was on English paper, and from an English engraving. The son of the defendant, in 1818, purchased a copy of the composition published by Mr. Pleyel, at a shop in France, with a number of others by the same author, which the defendant caused to be engraved and published in England in December, 1818. The defendant's edition was a fac-simile of the copy so purchased by his son, and there was no difference between that edition and the edition published and sold by the plaintiffs in England. There is a register kept at Paris, and by the law of France, all musical publications must be registered, and a copy of the said composition was duly registered and deposited there on the 17th of June, 1814. The defend 1824. CLEMENTI v. WALKER. |