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A writ of summons was accordingly issued to him ; and he was seated in the place of the ancient barons of Fitzwalter.
A Dignity is forfeited by Attainder.
Ś 132. A dignity or title of honour, whether held in fee, in tail, or for life, is forfeited, and for ever lost, by the attainder for treason or felony of the
per. fon pofseffed of it; and can never be again revived, but by reversal of the attainder.
Nevil's Case. 7 Rep. 33.
$ 133. 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 claimed to be Earl of Westmoreland, as heir male of the body of the first grantee of the earldom.
It was resolved by all the judges, that, although the dignity was within the statute de donis conditionali: bus, yet 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 of 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 that, if it had not been forfeited by the common law, it would have been forfeited by the 26 Henry 8.
§ 134. In
S 134. In the case of a dignity descendible to heirs Corruption of general, the attainder of any 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 title can come through him.
S 135. William Marquis of Tullibardine, the eldest son of John first Duke of Athol, was attainted by act of parliament, i Geo. 1. and filed into France. An act of parliament was passed in the same sessions, by which it was enacted, that the attainder of the Marquis of Tullibardine should not extend to prevent any
descent of honour or estate from the Duke of Athol to James Lord Murray his second son ; but that all the honours, titles, and estate of the said Duke of Athol should, from and after his death, descend to the faid James Murray and his issue, in such manner as the fame would have descended, in case the said Marquis of Tullibardine had not been attainted of high treason, and had died without issue in the lifetime of the said Duke of Athol.
S 136. In the year 1723, Robert Lumley Lloyd, Coll. 373. rector of St. Paul's, Covent Garden, claimed the barony of Lumley, which was created by writ of summons in 8 Rich. 2., as heir to Ralph Lord Lumley, the first person summoned to parliament. It appeared, that George Lumley, the eldest son of John Lord Lumley, was attainted of treason in the lifetime of his father
and died before his father, leaving issue from whom the claimant was defcended.
The House of Lords resolved, that the petitioner had not any right to a summons to parliament, as prayed by his petition *.
§ 137. In the case of intailed titles, no corruption nities. of blood takes place. And, therefore, a dignity in
tail may be claimed by a son, surviving an attainted
father, who never was tenant in tail in possession of Law of For- fuch dignity: for the son may claim from the first feiture, 2 Hale, P. C. purchaser of the dignity per formam doni, as heir male
of his body within the description of the grant. And, though the descent of a dignity, to which the heirs
general of the first grantee are inheritable, may be Ante f. 136. impeded by corruption of blood, as in the case of the
barony of Lumley, yet the attainder of a father, who was never possessed of an intailed dignity, will not prejudice the descent to his issue.
$ 138. In 1964, 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 hold to him and the heirs male of his body. That the said Duke of Athol died in 1725; leaving James his eldest son, who succeeded to the title, and George his next son, the petitioner's father.
vol. 30. P.
* The doctrine of corruption of blood was abolished in the reign of Queen Ann, but has been revived by the ftatute 39 Geo. 3. c. 93.
That the said George was, in 1745, attainted of high treason by act of parliament, and died in 1760; leaving the petitioner his eldest son. That James Duke of Athol, the petitioner's uncle, died in January 1764, without leaving any issue male.
That the petitioner had consulted many gentlemen, learned in the law of England, particularly the honourable Charles Yorke, Sir Fletcher Norton, and Mr. De. Grey; whether the said attainder, under the circumstances of the case, could be any bar to the petitioner's, succeeding to the said title, upon the death of his faid uncle James Duke of Atbol : and the said gentlemen were unanimously of opinion, that as, by the law of England, in a like case no objection could arise from the said attainder; and as, by the statute of 7 Ann, all persons attainted of treason in Scotland were liable to the same corruption of blood, pains, penalties and forfeitures, as persons convicted or attainted of high treason in England, the petitioner would be clearly entitled to succeed to the said honours. The peti. tion, therefore, prayed that proper directions should be given, for having the petitioner's right declared and established.
The petition was referred to the House of Lords, who resolved, that the petitioner had a right to the title of Duke of Athol : and a writ of summons was issued to him accordingly.
$ 139. In all cases, where a person has been at. Reftitution of
Blood. tainted of high treason by act of parliament, or by VOL. III.
· Hale, P.C. judgment on an indiáment for high treason, petty 354.
treason, or felony, his blood is corrupted, and can only be restored by act of parliament ; which may be either general or special. But, generally, says Lord Hale, a restitution in blood is construed liberally and extensively.
Ante, f. 136.
$ 140. In the case of the barony of Lumley, the petitioner's counsel produced an act of parliament 6 Edw. 6., upon the petition of John Lumley, eldest son of George Lumley, son and heir apparent of John láte Lord Lumley deceased; whereby, after a recital of the attainder of the said George Lumley, by reason whereof the said John Lumley stood, and was a person in his lineage and blood corrupted, and deprived of all degree, estate, name, fame, and of all other inheritance, that should or might by possibility have come to him by any other his collateral ancestors, on his faid father's side, to whom he should or might have conveyed himself, as cousin and next heir of blood, by mesne degrees by his said father : it was therefore enacted, that the said John Lumley, and the heirs males of his body coming, might and should be accepted and called from thenceforth by the name of Lord Lumley; and that he, and the heirs males of his body, should have and enjoy, in and at all parliaments, and all other places, the room, name, place, and voice, of a baron of this realm. And that the said John Lumley, and his heirs, might be and should be restored only in blood, as son and heir, and heirs to the said George Lumley, and as cousin and heir and heirs of the said