be levied to the King, can bar such title of honour, or the right of any person claiming under him that levied or shall levy such fine."

11 Rep. 1.

Collins, 122.

26. It appears to have been formerly doubted whe- Nor extinguished by a ther a barony created by writ, was not extinguished new Title. by the acceptance of a new barony of the same name. Thus in the case of Lord Delawarre, it was resolved in parliament, 39 Eliz., that a grant of a new barony of Delawarre to William West, who was not then in possession of the ancient barony of Delawarre, did not merge or extinguish the ancient barony, but that if William West had been a baron entitled to, or in possession of the ancient barony, when he accepted the creation, the law perchance might have been otherwise; but that remained unresolved.

27. It seems, however, to have been soon after settled, that the acceptance of a new dignity did not merge or destroy an ancient one; for Lord Coke says 2 Inst. 594. That the greater dignity doth never drown the

lesser dignity, but both stand together in one person: and therefore if a knight be created a baron, yet he remaineth a knight still; and if the baron be created an earl, yet the dignity of a baron remaineth, et sic

de cæteris."

325.

infra, c. 3.

28. In the case of the barony of Willoughby de Collins, 321, Broke, it was resolved by the House of Lords, that the grant of a new barony of Willoughby de Broke to Sir Foulk Greville, by letters patent, to him and the heirs male of his body, he being then in possession of the ancient barony by writ, did not destroy such ancient barony, but the same continued and descended to his sister and sole heir, and from her to Sir Richard Verney, who was seated in the House of Lords according to the date of the ancient barony.

VOL. III.

An Earldom

does not attract a Barony. Collins, 162.

Collins, 195. i Inst. 15 b.

n. 3.

29. An opinion formerly prevailed, that where a person having a barony by writ, and consequently descendible to his heirs general, was created an earl, to him and the heirs male of his body; the earldom attracted the barony, so that they could not be afterwards separated.

30. This doctrine was fully exploded in the case of the barony of Grey of Ruthyn, in which it appeared that Lord Grey, being a baron by writ, was created Earl of Kent, by letters patent, to him and the heirs male of his body, and had issue two sons, the eldest of whom became Earl of Kent, and died leaving issue Journ. vol. 4. a daughter only. It was resolved, that the barony descended to the daughter, and the earldom to the younger brother, and that the earldom did not attract the barony.

149.

Collins, 286.

31. So where the earldom becomes extinct, the barony will notwithstanding descend to the heir general.

32. In the year 1669, the claim of Benjamin Mildmay to the barony of Fitzwalter was heard before the King in council, in the presence of the two Chief Justices, Lord Ch. Baron Hale, the King's Chief Serjeant, and the Attorney and Solicitor General. The petitioner deduced his pedigree from Robert Fitzwalter, who was summoned to parliament by writ in 23 Edw. I. and several times after. The title descended to Robert Fitzwalter, who was created Viscount Fitzwalter and Earl of Sussex. This Earl of Sussex had two sons; Henry Earl of Sussex, and Sir Humphrey Ratcliffe. Henry had two sons; Thomas Earl of Sussex who died without issue, and Henry Earl of Sussex, who left one son, Robert Earl of Sussex, and one daughter, Lady Frances, who married Sir Thomas Mildmay, to whom the petitioner was

beir. The counsel on the other side insisted that the barony was merged and extinct in the earldom, by coming to Edward the last Earl of Sussex, who died without issue.

The question being put to the Judges, they unanimously agreed, that "if a baron in fee simple be made an earl, the barony will descend to the heir general, whether the earldom continue or be extinct." With which opinion and resolution His Majesty being fully satisfied, a writ of summons was issued to Mr. Mildmay, under which he took his seat as Baron Fitzwalter.

33. Every kind of dignity is forfeited by the at- Dignities tainder for treason of the person possessed of it, and forfeited by can only be revived by a reversal of the attainder.

34. Charles Nevill Earl of Westmoreland, to him and the heirs male of his body, by letters patent, was attainted of high treason by outlawry, and by act of parliament; and died without issue male: upon which Edward Nevill, in 2 Ja. I. claimed to be Earl of Westmoreland, as heir male of the body of the first grantee.

It was resolved by all the Judges, that although the dignity was within the statute De donis conditionalibus, yet that it was forfeited by a condition in law, tacitè annexed to the estate of the dignity. For an earl has an office of trust and confidence; and when such a person, against the duty and end of his dignity, takes not only council, but also arms against the King, to destroy him, and thereof is attainted by due course of law, by that he hath forfeited his dignity; in the same manner as if tenant in tail of an office of trust misuse it, or use it not; these are forfeitures of such office for ever, by force of a condition in law, tacitè annexed to their estates. It was also resolved,

Attainder.

Nevill's Case,

7 Rep. 33.

that if it had not been forfeited by the common Tit. 2. c. 2. law, it would have been forfeited by the statute § 37. 26 Hen. VIII.

7 Rep. 34 a.

Where in

'tailed not forfeited for Felony.

Tit. 2. c. 2. $43.

S5. Where a person is tenant in tail of a dignity, with remainder in tail to another, and the first tenant in tail is attainted of high treason, the dignity is forfeited, as to him and his descendants; but upon failure of such descendants, it becomes vested in the remainder-man.

36. Thomas Percy, who was Earl of Northumberland, to him and the heirs male of his body, remainder to his brother Hugh Percy, in the same manner was attainted of high treason and executed, having no issue male; upon which Hugh Percy became Earl of Northumberland.

37. A dignity descendible to heirs general is also forfeited by attainder of felony of the person pos

'sessed of it.

38. Where a tenant in tail of a dignity is attainted of felony, the dignity is only forfeited during his life, and after his decease it vests in the person entitled to it, per formam doni. For the statute 26 Hen. VIII. does not extend to this case.

39. Lawrence Earl Ferrers, to whose ancestor the dignity had been granted by letters patent in 1711, to hold to him and the heirs male of his body, was convicted and executed for murder, in the year 1760. But having left no issue, the dignity was not forfeited, Journ. v. 29. but descended to his brother Washington Ferrers, who took his seat accordingly.

690.

Corruption

of Blood.

40. In the case of a dignity descendible to heirs general, the attainder for treason or felony of any

Tit. 29. § 2. ancestor of a person claiming such dignity, through whom the claimant must derive his title, though the person attainted was never possessed of the dignity,

will bar such claim; for the blood of the person attainted, being corrupted, no pedigree can be derived through him so that the dignity becomes vested in the Crown by escheat; and is thereby destroyed.

Barony of

Lumley.

41. In 1723, the Reverend Robert Lumley Lloyd claimed the barony of Lumley, which was created by writ of summons in 8 Rich. II. as heir to Ralph Lord Lumley, the person first summoned to parliament. It appeared that the title had descended to John Lord Lumley, and that George Lumley his eldest son was attainted of treason, and died in the lifetime of his father, leaving issue, John Lumley, who died without issue; and that Spandian Lloyd was his cousin and next heir, viz. eldest son of Barbara Williams, sister of the said John Lord Lumley. That Hale P. C. Spandian Lloyd died without issue, and that Henry Lloyd his next brother had issue Henry his eldest son, who was father to the claimant.

The House of Lords resolved, that the petitioner: had not any right to a writ of summons to parliament, as prayed by his petition.

Pa. 1. 356..

extend to

Tit. 29. c. 5.

42. In the case of entailed dignities, no corruption Does not of blood takes place. A dignity in tail may therefore entailed be claimed by a son surviving an attainted father, Dignities. who never was possessed of the dignity. For the son may in such a case claim from the first acquirer, per formam doni, as heir male of his body, within the description of the gift, without being affected by the attainder of his father, or any other lineal or colla- 2 Hale P. C. teral ancestor.

43. In 1764, John Murray presented a petition to His Majesty, stating that his grandfather John Marquis of Athol was by letters patent created Duke of Athol, to him and the heirs male of his body. That the said Duke of Athol died in 1725, leaving James his eldest

356.

Journ. v. 30. 466-469..