GASELEE and ALDERSON JS. concurring, the rule was

1832.

то

DIGBY V. ALEXANDER.

an action on a bill of exchange set out in the declaration as addressed to the Defendant by the title, addition, and description of the Right Honorable the Earl of Stirling, and accepted by him by the name or title of Stirling, the Defendant pleaded in abatement as follows:

And the Right Honorable Alexander Earl of Stirling, of that part of the United Kingdom of Great Britain and Ireland called Scotland, against whom the Plaintiff has issued his said writ, and declared thereon by the name of Alexander Humphreys Alexander, in his own person comes, and saving to himself all advantages and exceptions, as well to the writ as to the declaration as aforesaid, prays leave to imparle thereon and to have until Wednesday the 11th day of January, in Hilary term, in the second year of the reign of our lord the now King;: and he hath it. At which day come here, as well the Plaintiff by his said attorney, as the said Right Honorable Alexander Earl of Stirling in his own person. And the said Earl of Stirling says that long before the issuing the said writ of the Plaintiff in this suit, to wit, on the 20th day of April, in the sixth year of the reign of the lord George IV. late King of the United Kingdom of Great Britain and Ireland, defender, &c. the said lord the late King, by his royal proclamation, bearing teste at Carlton House the day and year last aforesaid, after reciting that Alexander Earl of Balcarras had been duly elected and returned to be one of sixteen peers of

1

Scotland,

Scotland, to sit in the House of Peers in the then present parliament of the United Kingdom of Great Britain and Ireland, and was then since deceased, in order to the electing another peer of Scotland to sit in his room by and with the advice of his privy council, issued forth that proclamation, strictly charging and commanding all the peers of Scotland to assemble and meet at Holyrood House, in Edinburgh, on Thursday the 2d day of June then next, between the hours of twelve and two in the afternoon, to nominate and choose another peer of Scotland to sit and vote in the House of Peers of that then present parliament of the United Kingdom of Great Britain and Ireland, in the room of the said Alexander Earl of Balcarras, deceased, by open election and plurality of voices of the peers that should then be present, and of the proxies of such as should be absent; (such proxies being peers, and producing a mandate in writing duly signed before witnesses, and both constituent and proxy being qualified according to law;) and the lord clerk register, or such two of the principal clerks of session as should be appointed by him to officiate in his name, were thereby respectively required to attend such meeting, and to administer the oath required by law to be taken there by the said peers, and to take their votes; and immediately after such election made and duly examined, to certify the name of the peer so elected, and to sign and attest the same in the presence of the said peers, the electors, and return such certificate into the High Court of Chancery of Great Britain. And the said lord the said late King thereby strictly charged and commanded that that proclamation should be duly published at the Market Cross at Edinburgh, and in all the county towns in Scotland, twenty-five days at least before the time thereby appointed for the meeting of the said peers to proceed in such election. And the said Earl of Stirling further says that the said pro

clamation

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ALEXANDER.

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clamation was afterwards, and more than twenty-five days before the time thereby appointed for the meeting of the said peers to proceed on such election, to wit, on ALEXANDER. the 6th day of May, in the year 1825, duly published at the Market Cross at Edinburgh aforesaid, and in all the county towns of Scotland. That afterwards, and long before the issuing of the said writ of the Plaintiff in this suit, and before the assembly and meeting hereinafter next mentioned, to wit, on, &c. at, &c. the said lord clerk register duly appointed Sir Walter Scott, Bart. and Colin Mackenzie, Esq. to be clerks to the meeting so to be held as aforesaid for such election as last aforesaid, and two of the principal clerks of session to officiate in his name thereat. That afterwards, and before the issuing of the writ of the Plaintiff in this suit, to wit, on the 2d of June 1825, divers of the peers of Scotland, in obedience to the said proclamation, did assemble and meet at the palace of Holyrood House in Edinburgh, between the hours of twelve and two in the afternoon of that day, to nominate and choose a peer of Scotland to sit and vote in the House of Peers of that then present parliament of the United Kingdom of Great Britain and Ireland in room of the said Alexander Earl of Balcarras deceased; and that the said Sir Walter Scott and Colin Mackenzie, the said two clerks of session so nominated and appointed as aforesaid, attended the said meeting or assembly, and officiated thereat for the purpose aforesaid. That at the said assembly or meeting so held as aforesaid for the purpose of such election as aforesaid, the long or great roll of the peers of Scotland was called over, except those who stood attainted of high treason. That the said Defendant then being Earl of Stirling of that part of the United Kingdom of Great Britain and Ireland called Scotland, attended and was present at the said meeting or assembly for the purpose of giving his vote as a peer of Scotland

at

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at and upon the said election; and that upon the title of Earl Stirling being called, he, the Defendant in this suit, claimed to vote, as Earl of Stirling and entitled to the honors and dignity of Earl of Stirling; and he, the ALEXANDER. Earl of Stirling, the Defendant in this suit, then and there answered to his title of Earl of Stirling, and his vote was then and there taken and received by the said Sir Walter Scott and Colin Mackenzie, the two clerks of session so nominated and appointed by the lord clerk register as aforesaid for the purpose aforesaid, and officiating as aforesaid. And he further says, that the said Sir Walter Scott and Colin Mackenzie, the said two clerks of session so nominated and appointed as aforesaid, and officiating as aforesaid, then and there at the said meeting or assembly so held as aforesaid, for the purpose in that behalf aforesaid, to wit, on the said 2d day of June 1825, in the palace of Holyrood House aforesaid, administered to him, the said Earl of Stirling, the oath required by law to be taken by him as a peer of Scotland, and took and received his vote at the said election; and that he did as Earl of Stirling as aforesaid vote at the said election for James Viscount of Strathallan to sit and vote in the House of Peers of the then parliament of the United Kingdom of Great Britain and Ireland in the room of the said Alexander Earl of Balcarras deceased, as by the record of the proceedings at the said election remaining in the general register house of our lord the now King at Edinburgh aforesaid more fully appears. And the said Earl of Stirling, Defendant in this suit, further says that the said Sir Walter Scott and Colin Mackenzie, the said two clerks of session so nominated and appointed, and officiating as aforesaid, immediately after such election made and duly examined, certified the name of the peer so elected, and signed and attested the same in the presence of the peers, the electors, and returned the said certificate

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into the High Court of Chancery of Great Britain, as by the record thereof remaining in the said High Court of Chancery at Westminster, in the county of ALEXANDER, Middlesex more fully appears. That by virtue of the said election, the said Viscount of Strathallan afterwards, and before the issuing the writ of the Plaintiff in this suit, to wit, on the 6th of June 1825, took his seat and voted in the House of Peers in the then parliament of the United Kingdom of Great Britain and Ireland. That afterwards, to wit, on the 24th day of July, in first year of the reign of our lord the now King, our said lord the now King, by his royal proclamation, bearing date at Westminster, the day and year last aforesaid, after reciting that he, our said lord the now King, had in his council thought fit to declare his pleasure for summoning and holding a parliament of his United Kingdom of Great Britain and Ireland, on Tuesday the 14th day of September next ensuing the date of his said royal proclamation, in order, therefore, to the electing and summoning the sixteen peers of Scotland, who were to sit in the House of Peers, by the advice of his privy council, issued forth that his royal proclamation, strictly charging and commanding all the peers of Scotland to assemble and meet at Holyrood House, Edinburgh, on Thursday the 2d day of September then next ensuing, between the hours of twelve and two in the afternoon, to nominate and choose the sixteen peers to sit and vote in the House of Peers in the said ensuing parliament, by open election and plurality of voices of the peers that should be then present, and of the proxies of such as should be absent, such proxies being peers, and producing a mandate in writing duly signed before witnesses, and both constituent and proxy being qualified according to law and the lord clerk register, or such two of the principal clerks of session as should be appointed by him to officiate in his name, were thereby respectively

required