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V.

have an inheritance in title of nobilitie and dignitie three manner of wayes, that is to say, by creation, by descent, and by prescription. By creation, two manner of ordiALEXANDER. nary wayes (for I will not speake of a creation by parliament), by writ, and by letters patent." "And this writ hath no operation or effect until he sit in parliament, and thereby his blood is ennobled to him and his heires lineall, and thereupon a baron is called a peer of parliament. And if issue be joined in any action, whether he be a baron, &c., or no, it shall not be tryed by jury, but by the record of parliament which could not appeare unlesse he were of the parliament. Therefore a duke, earl, &c. of another kingdome, are not to be sued by those names here, for that they are not peeres of our parliament." This plea, therefore, does not proceed on the ground of Defendant's being a peer by writ or patent. Before the union with Scotland, there was no writ or summons to peers. Magna Charta prescribed a summons to prevent the inconvenience of proclamations here. But that was never adopted in Scotland. Lord Kaimes's Brit. Antiq. 55. Spottiswood's Pract. 33. gives a proclamation for calling parliament together. The statute 6 Ann. c. 23. takes up that state of facts; and the peers of Scotland do not receive any summons. A list of peers was made and considered in committee, February 12th, 1708, (18 Journal of Lords, 399.) on the first assembling of the united parliament; and in 25 Journal, 466. a return, as used in the Scotch parliament of 1706, containing an Earl of Stirling. And that roll is still referred to as authority. Wight on Elections, c. 2. p. 125. The Defendant, therefore, could not plead more conclusively, for the voting at the election of a representative peer being the only act by which a Scotch peer can assert his title, that act is equivalent to summons or patent with an English peer. [Per Curiam. All this is good evidence, but no plea that Defendant is Earl.]

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It alleges that in substance. In the Countess of Rutland's case (a), it was held that Duke or no Duke should be tried by the record; Duchess or no Duchess by the country, for her dignity accrues by matter of fact; and ALEXANDER. for the same reason, matter of record forms no part of

the title of a Scotch peer.

TINDAL C. J. It appears to me that this plea being pleaded in abatement, is insufficient, and that our judgment must be, that the Defendant do answer over. The plea is strictly a plea in abatement on the ground of misnomer; for although it is otherwise in the case of a baron, in the case of an earl the title is the substance of the name; and as this is a dilatory plea, which is always to be taken strictly, the question is, whether the Defendant has so pleaded that an issue can be taken on the point which he proposes to make the ground of his plea. Now there is no distinct and positive allegation that on the day the writ in this cause was sued out the Defendant had the name suggested and no other. The plea begins by stating that in 1825 the King issued his proclamation commanding all peers of Scotland to assemble at Holyrood House to choose a peer of Scotland to sit in parliament in the room of the Earl of Balcarras deceased; that at the meeting held in pursuance of such proclamation, the Defendant, then being Earl of Stirling, attended for the purpose of giving his vote as a peer of Scotland at the said election; that upon the title of Earl of Stirling being called, he claimed to be Earl of Stirling, and answered to his title, and his vote was then taken by Sir Walter Scott and Colin Mackenzie; that they administered to him the oath required to be taken by a peer of Scotland, and took his vote; and that he did as Earl of Stirling vote. That in September 1830,

บ.

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V.

upon the occasion of another election, he sent in his vote, which was received by the clerks. It amounts to no more, therefore, than that the Defendant acted as ALEXANDER. Earl of Stirling; not that he was de jure Earl. He. says, indeed, that, "being Earl of Stirling, he voted;" but no allegation so distinctly predicates the fact that he was Earl, as that issue can be taken on it. The precedents are few, but all the forms of the common plea of misnomer go to the day of suing out the writ inclusive: they state that C. D., against whom the plaintiff hath exhibited his bill by the name of E. F., is named and called by the name of C. D., and by that name hath always hitherto been named and called; without this, that he is, or at the time of exhibiting the plaintiff's bill was, named or called by the name of E. F. (a);" excluding, therefore, the possibility of there being any other name in which at that time the writ could be sued out: and in two ancient precedents of pleas of abatement for misnomer in title of dignity, there is a distinct allegation of the existence of the dignity. Thus, in the Year-book 39 Ed. 3. p. 35. B. Brief de Ravishmet de Gard' fuit port vs Gilbert Umfravil Chivaller. Kirton demanda jugmēt de bĩ, pẽ ğ Gilbert Umfravil est Conte d'Angos, nient nome Conte. Jugement de br. Fend. Le Conte d'Angos n'est p3 deins le royalme d'Angletře, et ptant ĉ ne poit estre trie, le quel il soit Conte, on nient: issint n'ẽ my cel' nom de dignity, forsq, surnom. Jugemēt, si nř bř ne soit assez bon. Kirton. Le nom de Conte est nom de dignity, et p cel' nom doit il estre nom: et il est somone a chese parliamēt per nom de Conte; et le Roy mander a luy le grand' seal' come a Per del tře. Et puz le bĩ abata, &c. And in Fitz. Abr. Brief, pl. 40. Labb. de founteyn; port bře de faux Inpsonmet vers un

(a) See 3 Chitty on Pleading, "Pleas in Abatement."

W. Fraunc.

W. Fraunc. Fulth. Le bre est si abbas fecerit te securum

1832.

niēt nosmant son propre nosme: par que Marten; Labb. est nosme de dignitie

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ບ.

1

et abb. est suffic,

nosme et sil ad suffic nosme il suffis etc ** Mes si ALEXANDER. Counte soit a porter bre il covient q' ambideux nosmes soient nosmes cōe J. Erle ae &c. Briefe, pl. 40. So in the case of the Earl of Banbury (a), indicted for murder by the name of Charles Knolls, Esq., in which there was a plea of misnomer in abatement to the indictment, the defendant alleged in his plea, "quod ipse ad indictamentum illud respondere compelli non debet quia dicit quod Dominus Carolus primus nuper Rex Angliæ, &c. per litteras suas patentes" now produced, &c. created his grandfather an Earl of this kingdom, &c. and thereby the honour was entailed upon the male line; and then shews his own descent, and that he is heir male, and Earl of Banbury, and concludes with hoc paratus est verificare, &c. And this plea was afterwards amended by adding an averment "that his uncle, who was of the elder branch, was dead without issue, and that he himself was a peer at the time of the plea pleaded."

The present plea, therefore, not specifying any circumstance from which it can be predicated that the Defendant was Earl of Stirling at the time the writ issued, must be held insufficient.

PARK J. The Plaintiff was obliged to set out the bill of exchange as it was drawn, but he nowhere, in his own language, calls the Defendant Earl of Stirling. Nor if he had done so, would that be an answer to the present objection; for in Haworth v. Spraggs (b) it was held that the defendant in a plea in abatement of misnomer must give his surname, as well as his true Christian name, although his true surname be used in the de

(a) Carth. 297.

(b) 8 T. R. 515.

claration.

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v.

ALEXANDER.

claration.
King. (a)

That case

was confirmed in Docker v.

GASELEE J. I am of the same opinion. Four fifths of this plea are matters of evidence: the conclusion is merely argumentative; and there is nowhere a positive allegation that the Defendant is a peer. A plea in abatement ought to be correct in every point; and it does not follow that the Defendant has continued to be Earl of Stirling even if he were so at the time of voting.

ALDERSON J. I am of the same opinion. Every fact alleged in this plea may be true, and yet the Defendant may not now be Earl of Stirling. That is sufficient to render the plea bad. It contains nothing but evidence for a jury, and not a distinct allegation of the thing to be proved, that the Defendant was Earl of Stirling at the time of the writ. There must be judgment of

(a) 5 Taunt. 652.

(b) See the precedent in Blackmore v. The Earl of Wigtoun, sued as the Right Hon. Hamilton Fleming, 3 Wentworth's Pleading, 295.

As to the question whether peerage is available as an ob

Respondeat ouster. (b)

jection to a proceeding by bill in K. B., unless pleaded in abatement, see Lord Lonsdale v. Littledale, 2 H. Bl. 267. 299, and the note (a) p. 272. See also Hosier and Another v. Lord Arundell, 3 Bos. & Pul. 9. and the note (b).