Id. 130.

That the faid titles came, by mefne defcents, to George Earl of Cumberland, who died, leaving only one daughter, the Lady Ann: by which the title and dignity of Earl of Cumberland came to Sir Francis Clifford, brother to the faid George, as heir male of the body of the faid Henry. But the faid Francis never was feised of the title or dignity of a baron.

That the faid barony of Clifford defcended to the faid Lady Ann Clifford, from whom it defcended to the daughters and co-heirs of the then late Earl of Thanet; and was given by the king to Margaret Lady Clifford, one of the faid co-heirs. That Henry Clifford, (the petitioner's ancestor), eldest fon of the faid Francis Earl of Cumberland, was fummoned to parliament in the lifetime of his father, without any letters patent, in 3 Cha. 1., the writ being directed Henrico Clifford 3 Chevalier, and fat and voted in that and feveral fucceeding parliaments.

That the faid Henry Lord Clifford left iffue only one daughter, Elizabeth, who intermarried with Richard, Earl of Burlington, to which Elizbeth Countefs of Burlington, the petitioner was great-grandson, and heir.

That therefore the title and dignity, created by the faid writ of fummons, in virtue of which the faia Henry Clifford fat and voted in parliament, was defcended to the petitioner, who was fole heir to the faid Henry Lord Clifford. The House of Lords refolved,

that

that the petitioner was entitled to the barony of Clifford, created by the faid writ *.

$ 75. It is obfervable that, in the two laft cafes, the claimants stated that the baronies, by the names of which they were fummoned, were not then veîted in their fathers; from which it may be inferred, that an opinion then prevailed, that there was fome difference between the operation of a writ of fummons to the eldest son of a peer, by the name of a barony vested in his father, and that of a fimilar writ, by the name of a barony not vested in his father.

§ 76. This idea was, probably, firft fuggefted by the author of the " Enquiry into the Manner of "creating Peers;" who, fpeaking of the practice of calling up the eldest fon of a peer to the house of lords, by the title of a barony then in his father, fays: "The writ of fummons, therefore, feems not fo Pa. 49, 50. "much to be confidered as the creation of a baron, "but only as an instrument of conveyance, or me"thod of transferring a barony or honour from one "perfon to another. For, if it is not fo, what reafon "can be given why the eldest fon of one earl, fum"moned by the title of his father's barony, shall have "precedence according to the rank and antiquity of

* There can be no doubt, but that the crown, in the two preceding cafes, iffued its writ of fummons upon the idea that the baronies, by the names of which the perfons were fummoned, were then vested in their fathers. But this proving to have been a mistake, the House of Lords was obliged to admit, that the writs operated as new creations.

5 Bro. Ca. ia Parl. 509.

"that barony. And that the eldest fon of another

66

66

earl, if he be by patent created to a title or barony

foreign to his family, fhall be confidered as the "youngest baron, and take his place in the house ac"cordingly. I fpeak, and I think every man ought, "with great fubmiflion upon this fubject. this fubject. But, if I "mistake not, the law even at this day is, that though "the last of these perfons takes a barony in fee, or "otherwife according to the limitations of it; yet the "firft, upon whom the writ operates only by way of « instrument of conveyance, has no other title in the "barony than his father had, from whom it was con

veyed: and, therefore, if the father has only an "eftate tail in the barony, the state of the fon, "though fummoned by writ, is not enlarged, nor "made a fee, and defcendible to his heirs general."

The doctrine here laid down has been adopted by the house of lords in the following modern cafe.

§ 77. King James 1. created Sir Robert Sydney, Lord Sydney of Penfburst, to him and the heirs male of his. body; and afterwards created him Viscount Lifle and Earl Leicester. Thefe titles defcended to his grandfon Philip; whofe eldest fon Robert, by curtefy Viscount Lifle, was in 1 Wm. and Mary fummoned to parliament by writ, and fat and voted by the title of Lord. Sydney of Penshurst, in the lifetime of his father. These titles descended to John Sydney, the son of Robert, who died without iffue, leaving the daughters of his. next brother, Mary Sydney and Elizabeth Sydney, his heirs general; and Jocelyne, his youngest brother,

who

who became Earl of Leicester, and afterwards died without iffue; by which the titles created by the letters patent became extinct. Upon the death of Mary Sydney without iffue, Elizabeth Sydney, (who had mar ried Mr. Perry) claimed the barony of Penshurst, as fole heir of Robert Sydney, who was fummoned to parliament by writ.

The attorney-general, (Mr. Wallace), stated in his report, that the petitioner claimed the barony of Sydney of Penshurst, as being the fole heir general of the body of Robert Sydney, who was called to parliament by writ in vita patris; upon a fuppofition that the effect and operation of the writ of fummons to parliament, without letters patent, and his having fat in parliament in purfuance thereof, vefted a title in him to the barony, defcendible to his lineal heirs.

That a writ of fummons to parliament, and a fitting in pursuance, did certainly, in general cafes, ennoble the perfon and his defcendants; but he conceived that the effect of a writ of fummons to the eldest son of an earl or viscount, by the title of his father's barony, or to the eldest fon of a baron, who had two or more baronies, to one of his father's baronies, was, to accelerate the fucceffion of the fon to the barony; which, on his father's death, would defcend to him: and the extent of the inheritance depended upon the nature of his father's title to the barony, whether in fee, or in tail male.

That the ufual manner of calling up the fon of a peer in vita patris was, by wit of fummons to the barony

P 3

barony of the father; and the perfons thus called had been conftantly placed in the Houfe of Lords, according to the antiquity of their fathers' barony: although, fince the ftatute 31 Hen. 8. c. 10. for placing the lords, whereby the precedency of peers was fixed and established, the right to fuch precedency had at different times come under the confideration of the house; Lords' Jour. and, although it did not appear, that the house had determined the point, yet it was highly probable that the lords had fatisfied themselves, that the eldest fons of peers, called up by writ into their fathers' baronies, were entitled to the fame precedence and rights, which they would have been entitled to, if they had fucceeded to the fame by defcent; and that the calling them up by writ in their fathers' lifetime only accelerated the poffeffion.

vol. 4. 35. vol. 15.523.

That he was of opinion, that the effect of the writ of fummons to Sir Robert Sydney, to his father's barony, gave to him the like inheritance his father had in the barony, which was restrained to heirs male; and that the petitioner was not, as heir general, entitled to the barony. But, as the cafe appeared anomalous, and never to have been precifely determined, he thought it advisable to refer it to the house of peers.

The cafe was accordingly referred to the house of lords; and, after having been fully heard, it was refolved, that the claimant had no right in confequence of her grandfather's fummons and fitting.

$ 78. Another