1832. DIGBY V. 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 names of ALEXANDER. the sixteen peers so elected, and sign and attest the same in the presence of the said peers the electors, and return such certificate into our said lord the now king's High Court of Chancery of Great Britain. And our said lord the now king did, by the said last-mentioned proclamation, strictly command and require the provost of Edinburgh, and all other the magistrates of the said city, to take special care to preserve the peace thereof during the time of the said election, and to prevent all manner of riots, tumults, disorders, and violence whatsoever. And our said lord the now king did, by the said lastmentioned proclamation, strictly charge and command that his royal 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 to such election. The Defendant then averred, that the said last-mentioned proclamation 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 as last aforesaid, to wit, on the 29th day of July 1830, duly published at the market-cross in Edinburgh aforesaid, and in all the county towns in 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 the 19th day of August in the year last aforesaid, at, &c. the lord clerk register of Scotland duly nominated and appointed Thomas Thomson and Adam Rollard, Esqrs., two of the principal clerks of session, to be clerks of the meeting VOL. VIII. Ff to 1832. DIGBY to be held as last aforesaid, for the purpose of such election as last aforesaid, and to officiate in his name at the said meeting. That afterwards, and before the issuing ALEXANDER. of the said writ of the Plaintiff in this suit, to wit, on, &c. divers of the peers of Scotland, in obedience to the said last mentioned proclamation, did assemble and meet at the palace of Holyrood House in Edinburgh aforesaid, between the hours of twelve and two in the afternoon of that day, to nominate and choose the sixteen peers of Scotland, to sit and vote in the House of Peers in the then ensuing parliament of the United Kingdom of Great Britain and Ireland; and that the said Thomas Thomson and Adam Rollard, the said two clerks so nominated and appointed as aforesaid, attended the said last mentioned meeting, and officiated thereat for the purpose aforesaid. That at the said assembly or meeting so held as last aforesaid, for the purpose of such election as last aforesaid, the long or great roll of the peers of Scotland was called over, except the names of those who stood attainted of high treason, and that the name of him, the Defendant in this suit, as Earl of Stirling, was then and there called as a peer of Scotland. That he did not attend the said last-mentioned meeting, but sent a list signed by him, together with the documents and instruments as by law directed, containing the names of sixteen peers of Scotland, for whom he intended to vote at the said last-mentioned election, to be nominated and chosen to sit and vote in the House of Peers in the said then ensuing parliament of the United Kingdom of Great Britain and Ireland, to wit, the Marquess of Queensberry, &c. &c. And he further says, that the vote of him, the said Earl of Stirling, by such signed list was then and there taken and received by the said Thomas Thomson and Adam Rollard, the said two clerks so nominated and appointed as last aforesaid, and officiating as last afore 1832. DIGBY ข. said, for the said several peers named in the said signed list, to sit and vote in the House of Peers in the said then ensuing parliament of the United Kingdom of Great Britain and Ireland; and that all the peers named in the ALEXANDER. said list were, at the said assembly or meeting so held as last aforesaid, elected, nominated, and chosen to sit and vote in the House of Peers in the said then ensuing parliament of the United Kingdom of Great Britain and Ireland; as by the record of the proceedings at the said last-mentioned election remaining in the general register office of our said lord the now king at Edinburgh aforesaid more fully appears. That the said Thomas Thomson and Adam Rollard, the said two clerks so nominated and appointed, and officiating as last aforesaid, immediately after such election made and duly examined, certified the names of the sixteen peers so elected, and signed and attested the same in the presence of the said peers, the electors, and returned the said certificate into our said lord the now king's High Court of Chancery of Great Britain, as by the record remaining in the said High Court of Chancery at Westminster aforesaid more fully appears. "And so the said earl, the Defendant in this suit, says that he, before and at the time of the issuing of the said writ of the Plaintiff in this suit, was, and ever since has been, and still is, Earl of Stirling of that part of the United Kingdom of Great Britain and Ireland, called Scotland, and by that name and title ever since his vote was so received at the said first mentioned election, has been named and called, without this that he the said Alexander Earl of Stirling now is, or at the time of issuing the said writ of the Plaintiff in this suit was, named, or called by the name of Alexander Humphreys Alexander, as by the said writ and declaration thereon founded is above supposed: and this he is ready to verify, wherefore, inasmuch as he is not sued and named, and called in by the said writ, and the deFf 2 claration 1832. DIGBY claration thereon founded in and by his said name and dignity of Alexander Earl of Stirling, he prays judgment of the said writ and declaration thereon founded, and ALEXANDER. that the same may be quashed, &c." V. Demurrer and joinder. Stephen Serjt. in support of the demurrer. The former decision in this case (a) applies to setting aside the bail bond only, and does not warrant a plea like this. The plea only states that the Defendant voted twice at the election of Scotch peers; but not that his vote was effectual. Defendant no where states he is Earl of Stirling, or how. This is in effect a plea of misnomer, to be tried by a jury; and should not allege mere circumstances, but the fact proposed to be proved by those circumstances; for the consequence assumed does not necessarily follow from the facts stated. If a party, instead of pleading soil and freehold, were to plead that he voted in respect of the land at two elections for knights of the shire, it would not follow that the land was his. It is compatible with this plea that the Defendant may have tendered his vote and have been rejected upon subsequent occasions. The plea is double; and it does not state that the Defendant pursued the forms required by statute on tendering his vote; as by taking the oaths; or that he was Earl at the time this writ was sued out. In Lett v. Mills (b) the defendant pleaded in abatement, that suscepit ordinem militarem, et jam miles existit; but it not being said that he was a knight tempore exhibitionis billæ, or after the last continuance, the Court ordered a respondeat ouster. Taddy Serjt. contrà. The plea sufficiently shews that the Defendant is Earl of Stirling, and how. The (a) Ante, 55. (b) 6 Mod. 105. instrument 1832. DIGBY ข. instrument on which the Plaintiff sues treats the Defendant as Earl of Stirling; the Defendant accepts by that name; he shews the facts which prove him to be Earl of Stirling; and says, that he being Earl of ALEXANDER. Stirling, voted; which is the same as an allegation that he was Earl. 2 Wms. Saund. 352. n. 3. And, after discharging the defendant from his bail bond, as a privileged person (a), the Court will not now reject his claim. For the defendant has no remedy except by plea. In Lord Banbury's case (b), upon a motion for a supersedeas to a writ of latitat sued out against Lord Banbury as Charles Knolls, the Court said, "If my lord had ever been summoned to parliament, and had a writ to shew that there was no dispute about the identity of the person, it would have been reasonable to have granted a supersedeas; but in this case, of a lord who has never sat there, they could not do it, for they could not try peerage upon a motion; but his lordship might plead it." And it is true that an English peer must shew his title by summons or patent; but that rule cannot apply to a Scotch peer, who is never summoned; and as for a patent, the most ancient of the nobility in Scotland, and other parts of Europe, are territorial, and possess no records of the creation of their titles. The Lords of Session were ordered, June 12th, 1739, to lay before the House a roll or list of the peers of Scotland, and the particular limitation of each peerage; upon which they made their report; and, after stating various circumstances, concluded by saying, "That the Lords of Session are not able to give your Lordships any reasonable satisfaction touching the limitations of the peerages that are still continuing." In Co. Litt. 16 a. it is said, "A man may (a) See ante, 55. (b) 2 Ld. Raym. 1247. Ff 3 have |