Page:The English Reports v77 1907.pdf/405

a baron, viscount, earl, marquis, or duke of England, bring any action, real or personal, and the defendant pleadeth in abatement of the writ that he is no baron, viscount, earl, &c. and thereupon the demandant or plaintiff taketh issue; this issue shall not be tried by jury, but by the record of Parliament,^{[1][N 1]} whether he or his ancestor, whose heir he is, were called to serve there as a peer, and one of the nobility of the realm. And so are our books adjudged in 22 Ass. 24. 48 Edw. 3. 30. 35 H. 6. 40. 20 Eliz. Dyer. 360. Vide in the Sixth Part of my Reports, in The Countess of Rutland's case. So as the man, that is not de jure a peer, or one of the nobility, to serve in the Upper House of the Parliament of England, is not in the legal proceedings of law accounted noble within England. And therefore if a countee of France or Spain, or any other foreign kingdom, should come into England, he should not here sue, or be sued by the name of countee, &c. for that he is none of the nobles that are members of the [15 b] Upper House of the Parliament of England; and herewith agree the book-cases of 20 Ed. 4. 6. a. b.^[2] and 11 Ed. 3. tit. Bre. 473. like law it is, and for the same reason, of an earl or baron of Ireland, he is not any peer, or of the nobility of this realm and herewith agreeth the book in 8 R. 2 tit. Proces. pl. Ultim.;^[3] where in an action of debt, process of outlawry was awarded against the Earl of Ormond in Ireland; which ought not to have been, if he had been noble here. Vide Dyer 20 Eliz. 360.^[4]

But yet there is a diversity in our books worthy of observation; for the highest and lowest dignities are universal: for if a King of a foreign nation come into England, by the leave of the King of this realm (as it ought to be) in this case he shall sue and be sued by the name of a King; and herewith agreeth 11 E. 3. tit. Br. 473.^[5] where the case was, that Alice, which was the wife of R. de O. brought a writ of dower against John Earl of Richmond, and the writ was præcip. Johann' Comiti Richmondice custodi terr' et hæredis of William the son of R. de. O. the tenant pleaded that he is duke of Britain, not named duke, judgment of the writ? But it is ruled that the writ was good; for that the dukedom of Britain was not within the realm of England. But there it is said, that if a man bring a writ against Edward Baliol,^[6] and name him not King of Scotland, the writ shall abate for the cause aforesaid. And hereof there is a notable precedent in Fleta, lib. 2. cap. 3. sec. 9. where treating of the jurisdiction of the King's Court of Marshalsea it is said

et hæc omnia ex officio suo licite facere poterit (ss. seneschal' aul' hospiti Regis) non obstante alicujus libertate, etiam in alieno regno dum tamen reus in hospitio Regis poterit inveniri secundum quod contigit Paris. anno 14 Ed. 1. de Engelramo de Nogent capto in hospitio Regis Angl' (ipso rege tunc apud Parisiam existente) cum discis argenti furatis recenter super facto, rege Franc' tunc presente, et unde licet Curia Regis Franc' de præd' latrone per castellanum Puris, petita fuerit, habitis hinc et inde tractatibus in Consilio Regis Franc', tandem consideratum fuit; quod Rex Angl' illa regia prærogativa, et hospitii sui privilegio uteretur, et gauderet, qui Coram Roberto Fitz-John milite tunc hospitii Regis Angl seneschallo de latrorinio convictus, per considerationem, ejus cur, fuit suspensus in patibulo sancti Germani de pratis.^[7]

Which proveth, that though the King be in a foreign kingdom, yet he is judged in law a King there. The other part of the said diversity is proved by the book-case in 20 E. 4. fol. 6. a. b.^[8] where, in a writ of debt brought by Sir J. Douglas, Knight, against Elizabeth Molford, the defendant, demanded judgment of the writ; for that [16 a] the plaintiff was an earl of Scotland,^{[N 2]} but not of England; and that our