case the king and queen against knoll on a indictment for murder by the name  of Charles knoll be plead in abatement misnomer that he be earl of Banbury and  hold a good plea S c salk S c salk S c salk S c comb S c Carth S c skin S c  Trem S c ld ray S c saint Tr Charles knoll be indict for a murder and the  indictment be remove into the kingsbench by certiorari and the defendant bring  to the bar by habeas corpus and be plead in abatement to the indictment that  king Charles in the second year of his reign do by letter patent produce now  in court create William then viscount Wallingford earl of Banbury and rant the  honour to he and the heir male of his body that William earl of Banbury die  seize of this honour and that it descend to Edward knoll son and heir of the  say William that Edward die without issue it descend to Nicholas knoll his  brother and heir and son and heirmale of the body of William and that Nicholas  die leave issue a heir of his body Charles the defendant by virtue of which  patent and descent he become earl of Banbury and because he be not name earl  of Banbury in the indictment be pray judgement if he shall be put to answer  the attorneygeneral protest that no part of the say plea be true reply that on  the thirteenth of December in the four year of William and mary the defendant  prefer a petition to the lord spiritual and temporal in parliament assemble in  which allege that he be a peer of this realm he desire that he may be try by  his peer and upon this in such a manner process to be secundum law et  experience parliament yet it be resolve modern report consider and order by  the lord c that he have no hereditary right to the earldom of Banbury and that  his petition shall be dismiss to this replication the defendant demurrer  Samuel Eyre justice this order of the house of lord do not bar the defendant  of his peerage nor conclude the court from examine the force and effect of the  order first all misnomer here plead be within the jurisdiction of this court  and in such a plea the court may judge whether the party that so plead be a  peer or have a title to peerage or no second that this court shall judge of  the validity of all judgement and record here plead and whether they be legal  and effectual or no as of a Act of parliament what be one that a Act by king  and lord be not a good one and so they may judge of a order of the house of  lord whether the concurrence of the other estate of parliament or one of they  be requisite so the court may take judicial knowledge of the proceed in  parliament and of their committee a as to the objection that the defendant  have by his demurrer confess this to be a judgement secundum law et experience  parliament this be matter of law arise thereon and demurrer confess only  matter of fact as state and leaves the Patter of law arise thereon to the  judgement of the court b as to the order of the house of lord all the book be  that a peer can be degrade but by attainder or by Act of parliament c nor can  he by fine divest himself of his honour as adjudge in Lord purbeck case  because the king and kingdom be interest in his honour and therefore it can be  take away without their consent where there have be a contest to who a honour  descend upon petition to the king it have be refer to the lord and by they  examine and their opinion report to the king as in my Lord of Oxford case e so  in the case of a contest about precedency f and it be a great reason that the  king who create all peer shall be party to their deprivation to the plea it be  sufficient without aver Banbury to be in England for the creation be by letter  patent under the great seal of England be shall be intend a English peer for  it be the letter patent and not the title that make a English a lake v king  sand b Plowd c Inst cotton record   e Jones f   modern report er p peer and  therefore the title may be take from a foreign place as earl of Angus duke of  Albemarle and as to the objection to the conclusion of the modern report plea  where it be say et hoc a preparation be verify without say per record and  without a writ to certify his peerage that be well enough trial by writ must  be appropriate to peer create by writ but peerage by patent appear by the  patent themselves where my Lord coke in his six book say that baron or not  baron be try per record he say baroness by marriage be matter of fact be  triable by jury and so be the descent in this case the patent produce be good  evidence of the first creation but the plea consist of matter of fact have be  ill if it have conclude to the record but as it be the defendant plea be good  and the replication ill and therefore the indictment ought to be quash Giles  Eyre justice send for to the last point in boundary for the patent produce  have verify the first creation of his peerage for the patent be a complete  creation without more   Inst Noy when a patent be plead and produce in court  nul tiel record can be plead to it the descent plead be matter of fact and  nobility gain by matter of fact be triable by the country and the case be the  same if gain by descent there be no necessity of have a writ out of chancery  to certify whether one be a peer by descent and none of the case at the bar  for that be applicable to this for they be all writ of privilege and exemption  as to the second objection that Banbury be not a English town be hold as  before and say that a Irish peer may be create under the great seal of England  but then there must be special and express word videlicet a earl in royal  power Ireland Seld title Hon the reason of a certain place from whence to take  the title be to make a estatetail within the statute de gift which extend only  to limitation which concern land and tenement and therefore without name some  place a limitation of a honour to one and the heir male of his body will be a  feesimple conditional at commonlaw and if so will be forfeit by attainder of  felony as a estatetail of a baronetship which be not create of any place   the  defendant need not aver that he be One Parium England for the plead of the  patent and descent show that sufficient but a bishop who be a peer ration  tenur jure bishopric must plead be be One Parium England he have no patent to  produce as to the replication he hold that do not avoid the plea for the order  of the house of lord be no judgement nor bar to the defendant for peerage can  be take away but by modern report attainder or Act of parliament or by to know  facias where create by letter patent to repeal those patent for the king can  revoke they because it be a commonlaw conveyance and thereby a interest be  vest and settle in the patentee a writ indeed may be supersede before a actual  sit of parliament but otherwise of a honour create by patent a writ give a fee  in the honour without express word but in case of letter patent the estate in  the honour must be limit by apt word or else it be void it may be entail and  must descend accord to the intent of the commonlaw and be forfeit for treason  before the statute of Henry   as to the order every vote of the lord be not a  judgement the defendant petition can give the lord a jurisdiction if they have  none before but upon petition to the king and reference to the lord and this  have be the course use in my Lord delawares Oxford Abergavennys purbeck and  Fitzwater case and this course be most reasonable that the king be the  fountain of honour as nobility can be create without he so it shall not be  determine without his consent in parliament a earl be a public officer in time  of war and peace and the king and subject have a interest in he     Inst the  king by his prerogative have election of any of his court to try his cause he  may by endorsement of such petition refer the trial of it to any court and  thereby give the court a jurisdiction of it there be no precedent where the  lord exercise a jurisdiction to determine the right of peerage without such  reference the lord have a jurisdiction over their member as to their sit in  parliament and precedency there but not over their member estate and  inheritance in their honour but they be to be determine by commonlaw their  order do not bind the liberty of the subject as Inst about send able lawyer  into Ireland inferior court be not tie up from judge their proceed void as if  a writ of error be bring in modern report er p parliament of a judgement in  the common plea whereas it shall have be in the king bench the common plea may  adjudge the writ of error void and no supersedeas and may award execution or  the king bench notwithstanding this error may examine the judgement upon writ  of error as to the demurrer that confess only matter of fact and not of law et  law parliament be matter of law as to the precedent they be petition sit the  parliament for trial a peer can waive his modern report trial by peerage Inst  but the king be not bind by their order for a trial for be may choose whether  he will appoint a high steward in the Lord preston case there be no creation  of honour at all it be not under the great seal of England and the set it up  be a crime next to treason pierci case concern precedency for a place to sit  in the house and after several trial and translation below and deposition and  counsel hear there he be declare a impostor and so conclude for the defendant  Gregory justice accord in omnibus holt chief justice the plea be good and the  replication have by the plea the defendant have make a good title to the  dignity in the ancestor by letter patent and by descent to himself first as to  the exception that it do not appear that Banbury be a English town he say a  earl create by letter patent under the great seal of England shall be intend a  English peer if not otherwise express and to make this the clear he examine  the original and antiquity of earl a earldom former consist of three thing  dignity office and revenue as to the dignity before Edward the three time  there be only earl and baron baron be first create by tenure and afterward by  writ and since Richard by letter patent earl be always create by patent Seld  title hod second their office be of trust for the safety and defence of the  realm they be not call comites from the county but a joint pursuit regius they  assist the king in war and peace and therefore a earldom in tail before Henry  be forfeit for treason by a tacit condition annex in law because of the breach  of trust and confidence in the party that be make noble and so contra duty  Himself debt is owed   three their revenue be castle or other profit annex to  their honour and suitable for the support of their dignity which be the reason  that by great Charta a earl heir be to pay a relief of a hundred pound  whatever be his portion and the relief of a earl and a baron be settle at  different rate but in process of time these revenue annex to the honour  diminish but while the revenue be annex sub nomin et honor the relief continue  the same and therefore the word be not sub nomin et honor but ad to hold up  nomen et onus Inst Inst b so the revenue not be annex as former earl have not  pay relief pro fresh troops county but as other person accord to their  possession but the place from whence a earl be name be but a modern report  titular distinction and no part of the dignity the earldom be not confine to  the place but extend through the whole kingdom second the great seal be proper  and peculiar to England and to no other place for by that seal the king act as  king of England only without respect to any other dominion if before the  conquest of Ireland one be create by English letter patent and the title be  the name of a place in Ireland he will certain have be a English not a Irish  peer and so it be now for the conquest of Ireland be all external accident can  alter the construction of patent and law of England the intendment that  Banbury be out of the realm be a foreign construction though the king by  English patent may create a earl of Ireland yet that must be by express word  because it be a special act of prerogative for the great seal extend into  Ireland because subordinate and subject by conquest and the king patent may be  construe as act of parliament which extend not to Ireland if it be not special  name Seld title Hon in the creation of noble it be not mention in what county  the place be from whence they take their title which will be if necessary that  the place shall be in England many English earl have title from foreign part  sir Richard Woodville be create earl of river there be a ancient family call  river that be earl of Devon in king Edward the three time but there be no  place to be find of that name since Henry patent of earl have have these  additional word in they that the patentee shall have seat et vocein in  parliament inter comites England but the earl of Riverss patent have no such  word or modern report er p any other than be here plead by the defendant as to  the defendant not aver that he be One Parium c a earl ill plead need not make  that averment and   and Henry in which that be make be in case of baron only  baron indeed be a addition if create by writ it be no part of the name if  create by patent it be but a baron must not plead or be call only dominus but  must say parliament for one may be call dominus as a earl son and not be a  Lord of parliament beside the defendant here do not claim a privilege as a  peer but plead a misnomer in the omission of his title which be give he by  letter patent be part of his name be a peer or Lord of parliament do not  exempt he from be indict here and therefore not material in this case he that  claim benefit of trial by peer must show himself to be One Parium c but modern  report this plea be no more than if a knight have plead misnomer in not be  name a knight as to produce a writ to certify the peerage it be to be answer  that there be some baron and one earl so ancient that their commencement can  be show such can no way entitle themselves but by prescription and such ought  to produce a writ that some of their ancestor sit in parliament and then  derive a title by descent from such ancestor to he that plead it in the    calvin case if compare with other book be no more than that it shall be  testify by record of parliament if the party or his ancestor sit as peer in  parliament which prove that if any ancestor appear on record to have be a peer  as here it do by letter patent it be sufficient and that title may be derive  by matter of fact as by descent the writ intend be in nature of a writ of  privilege if find on record it testify matter of record and be conclusive but  if it certify matter of fact as it must do in such a case as this it be  traversable notwithstanding such certificate and therefore signify nothing and  therefore if the plea shall conclude et hoc a preparation be verify per record  it will be ill for the only matter traversable be matter of fact a writ to  certify their descent will be vain for where a writ certify a thing which lie  as much in the conusance of the court to who it be certify as of the court  which certify it it be needless upon plead creation of peerage by writ such  writ be buy for expedition not necessity but to prevent the delay which will  be on a traverse and take issue on the sit of the parliament which traverse  can be after such certificate so if the defendant in his plea show the letter  patent that create the honour they can be traverse or issue take on earl or  not earl except the patent be deny which can be because it be produce and  these patent be not like those of land where non to go away may be maintain by  matter foreign as that the land do not appear under the description in the  letter patent or that there be diverse land or tenement of the same name as to  the replication that do not conclude the defendant first because the order be  no judgement of parliament second the plea pen do not concern the title of his  earldom three there be nothing in this order to bar he from enjoy the right  and title of earl first it be no judgement of parliament that court consist of  king lord and Commons modern report Cromp jurisd of court Inst dyer the  authority of the house of lord be legislative and judicial the judicial power  be actual execute and administer by the lord but be legal and virtual in the  king if not in the whole parliament all judicial proceed be either in person  ring in parliament or placita de parliament or in person ring et he council in  parliament Rylys pl parliament f writ of error be in person we ad prsens  parliament the judgement per cur parliament and not per lord Of et temporales  and though the journal be by the lord spiritual and temporal yet they be only  as note and warrant for the clerk to make up the roll by hob all court mention  the king either to give they jurisdiction or as party to the judgement for all  derive their jurisdiction from he the lord then have double capacity to act  judicial as the court of parliament or to act as a particular house we can  know in which capacity they act but by the style of their order and if they  act by the style of the lord spiritual and temporal they act as a distinct  house exclusive of the other estate in the court of king bench which be hold  in person ring the judgement be not enter to be give per justice though they  actual give it but it be say per cur domini king and a judgement give in  another form or style will be void and though the judge modern report er p  give it yet it will not be a judgement of the court this be a original cause  and therefore ought not to come at the first step to the last resort and the  reason be because general original cause be mix with fact as well as law which  be below their dignity to determine because it concern only individual case  and be not general point of law which reach to all cause within the like  reason if error in fact happen here a writ of error lie not thereof in  parliament but here before ourselves and this be out of necessity because the  parliament can try the fact but out of other court inferior to the king bench  error do lie into the king bench upon error in fact if the house of lord have  original conusance the party will lose the benefit of a appeal and to have a  man right final determine by the first judgement be not consonant to law and  therefore a writ of error bring into the house of lord of a judgement in the  common plea or exchequer per narrow passage be void Inst so be the earl of  macclesfield case the modern report proper remedy for a title of peerage be by  commonlaw by petition of right to the king which he endorses soit law fait c  and deliver it to the chancellor where there be occasion and in such petition  the party ought to set forth his right and title as the defendant do here in  his plea and when endorse and send into chancery a commission issue out to  inquire the truth of his suggestion and if the inquisition find it true then  the attorneygeneral may confess it or traverse it and if upon the traverse a  issue be join the record must be send into the king bench and there try and  judgement give Stamf ask first and these proceed be such as be in other case  where the subject be aggrieve by the king or those employ under he whether it  concern land personal thing c as to the precedent cite my Lord delawares case  be refer to the lord not by way of judicature but for their opinion and advice  and if the lord have then conceive they have a judicial jurisdiction it be to  be presume they will not have waive it and submit to have take it upon they by  way of reference and the queen do not in that case proceed judicial by  endorsement of the petition to the chancery but the case concern the lord she  take their advice and comprise it in a extrajudicial and amicable way and so  be the earl of Oxford case by consent and not by judgement of the house of  lord and Lord Abergavennys case be recite to be by way of reference the Lord  Mountjoys case be concern precedency and so within their conusance as a breach  of privilege and be a point necessary to be settle before he be introduce but  the inheritance of the dignity and title be not in question the Lord preston  case be that he give out in speech that he be a English peer which assumption  be a breach of privilege and when he be demand to show the truth of his  pretence be produce a patent which appear void as if it have be under the  French king seal and it be direct that he shall be prosecute as a criminal  second there be no plea pen concern the right of the earldom the defendant  petition do not pray to be admit to the earldom but suppose he in possession  of it and also desire to be try by his peer the lord on this can not adjudge  that he shall enjoy the earldom because be do not demand or pray that no more  can they that he shall lose it every judgement must be pro or con answerable  to modern report the demand of the plaintiff and adequate and proportionable  to it three this order appear to be no judgement but a opinion it be no  exclusion from the enjoyment of the office or honour which ought to be in  every judgement and it be not sufficient that it declare the right as in a quo  warranto to see cur that the defendant have no title to the franchise be not a  judgement but a foundation of the judgement only but the judgement ought to be  quid to move away c for every judgement ought to be such as it may be execute  so in Levett and hall case cro judgement against the plaintiff without nil to  take in hand per billam be not good the judgement here be such as can be  execute the dismission of a petition be the form of a judgement in a court of  equity but not in a court of law in a judgement it be not sufficient that the  party have no title but it must be express adjudge that be bath none as to the  secundum law custom parliament that be add by the king Council only in terror  law parliament be law terr and if a question concern it do arise in a cause of  which the king bench have proper conusance the king bench may adjudge of it as  the spiritual court do of temporal judgement as patent deed c for the  conusance of the principal draw to it the modern report er p conusance of the  accessary and incident dyer and this hold in case of privilege of parliament  as in sir John Benyons case Trin car in the common plea where fill a original  against a sit member be adjudge no breach of privilege so a writ of error in  parliament if a term intervene after the testae and before the return have be  adjudge to be no supersedeas of execution so on a habeas corpus the king bench  have determine what continuance a commitment by parliament shall have that can  be no law or custom of parliament which be not ground on precedent and there  be none that ever any man inheritance be determine per law et experience  parliament it be no new thing for our commonlaw court to examine matter of  this nature which concern proceed in parliament we do but follow the example  of our predecessor in the thirtyeighth year of Edward the three a the bishop  certify to this court that the father and mother be marry but that the party  be bear in adultery the lord send a writ to the judge and order they to judge  on the special matter but the judge do not obey in Stantons case b modern  report the lord command the court of common plea to give a judgement the chief  justice refuse afterward in his absence the other comply and give judgement  the king bench afterward examine the proceed of the lord and adjudge they void  as appear Edward in the Oxford library we be not to delay the justice of the  land and the law of it be our rule and for these reason let the indictment be  quash but the defendant remain in custody on a second indictment wherein he be  name earl of Banbury michaelmas term the six of William and mary in the king  and queen bench sir John holt Knt chief justice sir William Gregory Knt sir  Giles Eyre Knt sir Samuel Eyre Knt justice sir Edward ware Knt attorneygeneral  sir Thomas Trevor Knt solicitor general