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John late Lord Lumley, and made only heir and heirs in blood, as well as to the said George as to the said: John late Lord Lumley, and either of them, by the name of Lord Lumley.
It was contended, that the attainder of George Lumley was not reversed by this act, but remained in force; and that the restitution of the said John Lord Lumley, in blood only, while the attainder remained unreversed, could not possibly revive the antient barony, which was before extinct, and merged in the crown, in confequence of that attainder. The House of Lords appear to have been of this opinion, and to have deter. mined accordingly.
S 141. Where a person is outlawed for high treason, petty treason, or felony, his blood is also corrupted ; but it may be restored by act of parliament, or by a reversal of the judgment of outlawry, by writ of error: which may be done during the life of the person outlawed, or at any time after. But a writ of error, to reverse an outlawry in treason or felony, is not ex debito justitia ; and, therefore, can only be obtained by the favour of the crown.
$ 142. The House of Lords resolved,' in 1702, that Lords' Jour. they would not, in future, receive any bill for reverf. Vol. 17.
p. 119ing outlawries, or restitution in blood, that should not be first figned by her majesty, or her successors, kings
queens of the realm, and sent by her or them to their house first, to be considered there.
$ 143. Dignities are hereditary; and it has already been stated, that, where a dignity is by tenure, it will descend in the fame manner as an estate in fee-simple in lands. But, where a dignity was originally created by writ of summons to parliament, it is descendible to all the lineal heirs of the person so summoned, whether male or female; but not to collaterals.
$ 144. The right of primogeniture takes place between males in the descent of dignities; and, therefore, where a person possessing a dignity, dies, leaving several fons, it descends upon the eldest : for, being of an indivisible nature, it cannot go to them all.
$ 145. The descent of dignities by writ is, in some
respects, different from the descent of lands; poffefVide Tit. 29. fion does not affect the descent of a dignity : for every
person, claiming a dignity by writ, must make himself
heir to the person first summoned, not to the person i Inft. 15 b. last seised. And, for this reason, a brother of the 3 Rep. 42 a.
half-blood is capable of inheriting a dignity: for the younger brother, being heir to the father, fhall inherit the dignity inherent in the blood, as heir to him that was first created noble.
$ 146. A question was moved in parliament in 16 Cha. 1., respecting the barony of Grey de Ruthyn ; which was originally created by writ of summons. Lord Grey died, leaving a son and a daughter by one venter, and a second fon by another venter. The barony descended to the eldest son, who sat in parliament, and afterwards died without issue. The question
was, whether the second son should inherit the barony, or the fister ; and the opinion of the judges was required; who resolved, that there was not any polefro Lords' Journ.
V. 4. 149. fratris of a dignity, but it should go to the younger 8 Term Rep. son, who was heres natus ; and the sister was only 213. hæres facta, by the poffefsion of her brother, of such things as were in demesne, but not of dignities, whereof there could not be an acquisition of the possession.
§ 147. Lord Hale, in his notes to the First Institute Inft. 15 b. published by Mr. Hargrave, observes on this case, that, if it was a feudal title of honour, as of the earldom of Arundel, or barony of Berkley, there potefio fratris should hold well; because the title is annexed to the land,
$ 148. In the case of dignities created by letters patent, the mode of descent is precisely declared. The usual one is, to the heirs male of the body of the grantee ; though, in some, it is to the heirs of the body generally,
§ 149. In antient times, the right of primogeniture Abeyatıce of
Dignities. appears to have taken place in the descent of dignities to females, as well as to males ; so that, where a perfon died feised of a dignity, leaving only daughters, or sisters, the dignity descended to the eldest ; or, at least, the eldest had a stronger claim than the others.
s 150. Thus, Dugdale, mentions, that Edward 3. by letters patent, declared Lawrence Hastings to be Earl of Pembroke, by reason of his descent from the eldest R3
sister and coheir of Aymer de Valence, who died seised of that dignity.
4 Init. Ch.40.
These letters patent are stated by Lord Coke in his Fourth Institute ; and, as they recognize the right of the eldest sister in the strongest terms, I shall here transcribe a part of them.--Cum itaque hæreditas bonæ memoria Audomari de Valentiá Comitis Pembrochia (ut dicitur ) jampridem fine herede de corpore suo procreato decedentis ad sorores suas fuerit devoluta, inter ipsas et earum hæredes proportionabiliter dividenda : quia constat nobis quòd præfatus Laurentius, qui dieť' Audomar' in partem hæreditatis fuccedit, est ex ipfius Audomari forore seniori descendens, et fic peritorum assertione, quos super hoc consuluimus, fibi debeatur prærogativa nominis ; et honoris justum et debitum reputamus, ut idem Laurentius ex seniori forore caufam habens, assumat, et habeat nomen Comitis Pembrochia, quod dictus Audcmarus habuit dum vivebat: quod quidem (quantum in nobis est) fibi confirmamus, ratificamus, et etiam approbamus ; volentes et concedentes ut dictus Laurentius prærogativam et honorem Comitis Palatini in terris quas tenet de bareditate dićti Audomari, adeo pleno et eodem modo habeat, et teneat, ficut idem Audemarus illas habuit et tenuit tempore quo deccffit.
i Init. 165a. Fitz Ab. Tit.Fræscrip 18.
§ 151. Lord Coke, in his First Inflitute, had stated a case in
in these words :-“ Note, if the “ earldom of Chesler descend to coparceners, it shall “ be divided between them, as well as other lands; “ and the eldest shall not have this seignory and earl“ dom entire to herself, quod nota, adjudged per totam
“ curiam :"
“ curiam :" and his Lordship makes the following observations on this case. “ By this, it appeareth, that “ the earldom, (that is, the possessions of the earldom,) 6 shall be divided ; and that, where there be more “ daughters than one, the eldest shall not have the
dignity and power of the earl, that is, to be a « countess. What, then, shall become of the dignity? “ The answer is, that, in that case, the king, who is
sovereign of honour and dignity, may, for the “ uncertainty, confer the dignity upon which of the
daughters he please; and this hath been the usage, “ since the Conquest, as it is said."
S 152. The case respecting the earldom of Chester is probably mis-stated : for it appears from Dugdale, Baron. Vol.s. that Ranulph Earl of Chester died in 16 Hen. 3. with. 44, 45, out issue, leaving four filters; of whom Maud, the eldest, was married to David Earl of Huntingdon, brother to William king of Scotland, by whom she had a son John, surnamed Scot; who succeeded Ranulph in the earldom of Chester. But the reason of this case was, that, in the partition of the vast possessions of Ranulph, this John had for his part (his mother being dead) the whole county of Chester.
76 a. & b.
§ 153. Bracton treats of the partition of estates among parceners; and observes that, where a mansion. house was caput comitatus or baronia, it was not divi. fible, propter jus gladii, quod dividi non poteft ; for, by that means, earldoms and baronies would come to nothing. Per quod deficiat regnum, quod ex comitati. bus et baroniis dicitur elle conftitutum.