1832. CANTWELL V. Earl of STIRLING. title to privilege of peerage, and the denial of his privilege of parliament makes the plea double. Spankie Serjt. contrà. This is rather a plea of misnomer in title of dignity than a plea of peerage. It is beneath the Defendant's dignity to treat him as having privilege of parliament only. Privilege of peerage is of a higher nature. Thus, if a defendant be named baronet only, where he is knight and baronet, he may plead it in abatement. Com. Dig. Abatement (F), 19. TINDAL C. J. In this case the Defendant has been impleaded by his proper name of dignity, and has been brought into court by the proper process; but he sets up as ground of complaint that he is described as having privilege of parliament, and contends that he ought to be described as having privilege of peerage. And the question is, whether those words may not be rejected as surplusage. No authority has been adduced to shew that in a case like this the words “ having privilege of peerage," are necessarily to be inserted in the declaration. In order to prevent a party from being sued a second time for the same cause of action, the law provides that he shall be sued by his proper title, and so be enabled to produce the judgment against him in bar of another suit. He may, therefore, plead misnomer when sued by the wrong Christian or surname, and may object to the misdescription if sued by a wrong title of dignity. The Defendant, however, proposes to go further than that, and complains of a misstatement in what is mere matter of addition. But at least it should appear that the addition in question is material; for it is laid down in Com. Dig. (a)," If the defendant be named A. B. of P., he may say that (a) Abatement, F. 22. he he is A. B. of D., and not of P. So, if he be named A. B., smith, he may say he is A. B., carpenter, and not smith. But if the addition be immaterial, a mistake cannot be pleaded in abatement: as, in an action against A. B., citizen of Y., one of the company of M., it is no plea that he was not of the company; or against J. M., attorney of Peter de Medicis, it is no plea that he is not his attorney; or against A. M., dominam de B., when she is not a lady." These are cases of mere idle description, the name of itself being sufficient to distinguish the defendant. In like manner, and for the same reason, we may throw out of the declaration here the words "having privilege of parliament." PARK and BOSANQUET JS. concurred. ALDERSON J. The real question is, Whether these additions constitute any part of the name. By the authorities which have been referred to it is plain that, when immaterial, they are considered no part of the name, and may be rejected as surplusage. There must, therefore, be judgment of Respondeat ouster. Same v. Same. Jan. 31. PURSUANT to the above decision, judgment of A party has in respondeat ouster was signed by the Plaintiff in this general four days' time to cause, and notice thereof given to the Defendant's plead after attorney on the 25th of January. judgment of ouster. On the 27th, at six in the afternoon, the Plaintiff respondeat signed judgment for want of a plea. At eight on the same evening the Defendant filed a 1832. Same v. Same. plea of non-assumpsit, and now moved to set aside the last judgment for irregularity, contending that he had four days' time to plead after the judgment of respondeat ouster. Merewether Serjt. opposed the motion on an affidavit which stated that the last judgment had been signed under the advice of an officer of the Court, and that the action was brought on a bill of exchange due May 31. 1831, being a renewal of a previous bill dishonored by the Defendant. At all events the Defendant should have applied for time to plead, as he was bound to plead instanter, having delayed the Plaintiff by a nugatory plea in abatement. But The Court thought that in general after judgment of respondeat ouster, the party has four days to plead, and made the rule Absolute without costs. Jan. 23. "Sept. 21. 1829. "K. agrees to let, and P. to take, a house in its unfinished state, for the DOE dem. PEARSON v. RIES and KNAPP. THE lessor of the Plaintiff sought to obtain possession of certain premises in the Strand by virtue of the following "Memorandum of an agreement made this 21st day of September 1829, between Messrs. John, James, William, term of sixty years, being the whole term that K. has the same leased to him, at the rent of 5251. payable quarterly, the first payment to be made for the half quarter at Christmas next; P. to insure the premises, and to have the benefit of an insurance lately paid a lease and counterpart to be prepared at the expense of P., and to contain all the clauses, covenants, and agreements K. entered into in the lease granted to him:" Held, an actual demise, and not a mere agreement for a lease. and and Henry Knapp, of Cirencester Place and Foley Street, in the parish of St. Mary-le-bone, and county of Middlesex, builders, on the one part, and Mr. William Pearson, of London Wall, in the city of London, auctioneer, on the other part. "The said John, James, William, and Henry Knapp agree to let, and the said William Pearson agrees to take, all that house and premises, exhibition-room, vaults, and cellars, in the unfinished state they are now in, situate on the south side of the Strand, and known as numbered 101 and 102, the same being in depth from the Strand to Fountain Court, and in the parish of St. Clements Danes, and county aforesaid, for the term of sixty years, or thereabouts; being the whole term that they the aforesaid John, James, William, and Henry Knapp have the same premises leased unto them; at the yearly rent or sum of 525l., clear of the land-tax, sewers rate, and all other rates, taxes, and assessments whatsoever, that now are or may be hereafter imposed by act of parliament or otherwise, whether parliamentary or parochial; the said rent to be paid quarterly on the four most usual days of payment of rent; the first payment to be made for the half quarter at Christmas next. The said William Pearson also agrees to insure the whole of the premises in the Westminster Fire Office in the sum of 5000l., in the joint names of William Pearson and John, James, William, and Henry Knapp, or such other name or names as they may appoint. The said (a) lease and counterpart to be prepared by the attorney of the said John, James, William, and Henry Knapp, and at the expense of the said William Pearson, and to contain all the clauses, covenants, and agreements that they the said John, James, William, and Henry Knapp have entered into and agreed upon in the lease granted unto them of the aforesaid premises. 1832. DOE dem. V. RIES. "Mr. Pearson to have the benefit of the insurance which has been lately paid, without any charge or expense to himself for the same. In witness whereof the aforesaid parties have hereunto set their hands the day and year first above named. W. Pearson. J., J., W., and H. Knapp.” At the time of the agreement the Knapps had mortgaged the premises. They were partly unfinished, and stood in need of considerable repairs, and the lessor of the Plaintiff was let into immediate possession, to finish them at his own expense. The Defendants resisted the action on the ground that the above instrument was only an agreement for a lease, and not a demise per verba de præsenti; and a verdict having been obtained for the Plaintiff at trial before Tindal C. J., Middlesex sittings after last term, Storks Serjt. obtained a rule nisi to set it aside on the ground urged at the trial. Wilde Serjt. (Bompas Serjt. was with him) shewed cause, and relied on the stipulation to pass the whole of Knapp's term upon the covenants under which they themselves held it, coupled with the words "agree to let and agrees to take," as indicating an intention that an immediate interest should pass; when the Court called on Storks, (Stephen Serjt. was with him,) to support the rule. They cited Goodtitle d. Estwicke v. Way (a), Doe d. Coore v. Clare (b), Morgan v. Bissell (c), Poole v. Bentley (d), Tempest v. Rawlings (e), Hamerton v. Stead (g), (a) I T. R. 735. (c) 3 Taunt. 65. (d) 12 East, 168. Dunk |