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declaration under the Great Seal, confirming the barony to him : and, in the case of a female, the abeyance is also terminated by a declaration. Formerly, it was the practice, to confirm the barony to the person, and his or her heirs ; but now it is only to the heirs of his or her body

mons to one

$ 163. Where an abeyance is terminated by a writ Effe&t of a

Writ of Sumn. of summons, different opinions have been entertained respecting the extent of the operation of such a writ. of the Hers

of a Co-heir. Some eminent persons are said to have held, that, where a barony is in abeyance between the descendants of two coheirs, and the king issues his writ of summons to one of the heirs of the body of one of the two coheirs, the abeyance is thereby terminated ; not only as to the person summoned, and the heirs of his or her body, but also as to all the heirs of the body of such original coheir ; but the better opinion seems to be, that the effect of a writ of summons, in a case of this kind, is only to terminate the abeyance as to the person summoned, and the heirs of his or Vide Case of

Lord Howard her body; and that, upon failure of heirs of the body

of Walden, of the person so summoned, the barony will again fall ante, f. 161. into abeyance, between the remaining heirs of the Ch. Justice body of the original co-heir, one of whose heirs was Ezre's Argirso summoned, if any, and the heirs of the body of Całe of the the other co-heir.

Barony of
Beaumont,

Infra.
§ 164. This latter opinion is founded upon a prin-
ciple of law, that possession does not affect the descent
of a dignity; and that a writ of summons to parlia-
ment by an ancient title, (as the summons of the

eldet

and Lord

ment in the

eldest son of a peer in the lifetime of his father, by the name of an ancient barony then vested in the fa. ther), will not operate, so as to give any title by de. fcent, collateral or lineal, different from the course of descent of the ancient barony; as was determined in the case of the barony of Sydney of Penshurst. And that he who claims a dignity must make himself heir to the person on whom the dignity was originally conferred; not to the person who last enjoyed it.

Ante, f.

Where only $ 165. In all cases of abeyance of dignities, whenone Heir, the

ever the co-heirship determines by the death of all Abeyance terminates. the sisters but one, or by the extinction of all the

descendants of such sisters but one, by which there

remains only one heir to the dignity, the abeyance is Skin. R. 437. terminated; and the person, who is sole heir, becomes

immediately entitled to the dignity : for, although it was held by some, that in the case of the Earl of Oxford the Judges had given their opinion, that, by the descent of a barony upon co-heirs, it became so completely vested in the crown, that no person could claim it, or acquire a title to it without a grant from the crown; yet it was afterwards settled, that where the co heirship ceased, and there remained only one heir, such sole heir became entitled to it as a matter of right, and not of favour from the crown.

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$ 166. Sir Robert Ogle was summoned to parliament, 4 Edw. 4., and the title descended to Cuthbert Ogle; who was fummoned to parliament 5 Eliz. and died in 39 Eliz., leaving two daughters his heirs ; Joan, married to Edward Talbot, a younger brother

to

to the Earl of Shrewsbury, who died without issue, and Catherine, married to Sir Charles Cavendish of Welbeck. Catherine having survived her fister, and being fole heir to the barony of Ogle, obtained special letters patent, 4 Car. 1. declaring her to be Baroness Ogle, of Ogle in the county of Northumberland, to her and her heirs for ever;, a copy of which is given by Collins.

P. 412.

!

$ 167. In this ease, the confirmation might have been a matter of favour: and, indeed, an opinion feems to have prevailed during the reign of King Charles 2.; that, where a dignity fell into abeyance, it was in the power of the crown to extinguish it. This appears from the letters patent, by which the barony of Lucas of Crudwell was created; in which there is a proviso, “ That if there shall be more per“ sons than one, who shall be co-heirs of her body

by the said Earl of Kent, whereby the King's Ma

jesty, his heirs or successors, might declare which “ of them he pleases to have and enjoy the said “ honour, title and dignity, or might hold the same “ in suspence, or extinguish the same, at his and their

pleasures; that nevertheless the said honour, title “ and dignity, shall not be held in suspence, or extin

guilhed, but shall go to and be held and enjoyed, Ante, [. « &c."

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§ 168. But the doctrine, that where a dignity fell into abeyance, it might be extinguished by the crown, appears to have been fully disproved in the following case; in which it was determined by the House of

Lords,

Lords, after great deliberation, and assented to by the Crown, that where a dignity falls into abeyance between co-heirs, whenever there is a determination of the co-heirship, by the death of all the co-heirs except one, such one heir becomes entitled to the dignity, as a matter of right.

Coll. 322. Skin. Rep. 432.

Hen. 7:

S 169. In 1694, Sir Richard Verney, Knight, claimed the barony of Broke, as lineal heir to Sir Robert Willoughby, who was summoned to parliament, 7

the writ being directed Roberto Willoughby de Broke Chevalier; to whom succeeded Sir Robert Willoughby, who was summoned to parliament by the same title, and sat accordingly temp. Hen. 8. : from him the barony descended to Lady Elizabeth Greville, (she having survived her two sisters, who died without issue), from whom it descended to her grand-child and heir, Sir Foulk Greville, Knt. (who was created Lord Broke to him and his heirs male); but, who dying without issue, the barony descended to Margaret Lady Verney, the petitioner's grandmother.

Ante, f. 56.

The Attorney-General argued against this claim, ist, That a summons by writ did not create an estate in fee: for that anciently several had been so fummoned, and yet their sons had never been summoned after them. Nay, sometimes the very person first fummoned had afterwards been omitted to be fum. moned. . But he did not design to urge that any farther, but chiefly insisted that even in the time of King Henry 7., when Sir Robert Willoughby was first summoned, it was not considered as an estate in fee;

urging Latimer's case, and, of later times, Aberga. venny's case, and Paget's. 2d, That, if it did descend, it was extinguished in the co-heirs of Lady Margaret Greville ; urging the Earl of Oxford's case.

The counfel for the petitioner replied, that, ist, as to the baronies of Latimer and Abergavenny, those honours followed the intail of the lands, as baronies by tenure. As to the resolutions in the Earl of Oxford's case, touching the baronies of Bulbeck, Sand- Ante, ford, and Badlesmere, that they were in his Majesty's difpofition; they allowed that the King might dispose of them to which of the co-heirs he pleased, during the coparcenership, but not to a stranger, nor to the heir male collateral, who had no right thereto, so long as there were heirs general.

The House of Lords resolved, that the petitioner had no right to a summons to parliament.

It has been already stated, that in consequence of Ante, f. 66. this resolution several Peers, who had baronies by writ in them, were heard by counsel at the bar of the House of Lords, respecting the descent of such dignities, and the ground of the resolution that Sir Richard Verney had no right to the barony of Willoughby de Broke; being, that where a dignity descended to co-heirs, it was in his Majesty's power to hold the fame in suspence or abeyance. The matter was reported by the Lord Keeper ; and, the question being put, “ Whether, if a person, summoned to parlia- Lords' Jour.

ment by writ, and fitting, die, leaving issue two or Vol. III.

S

vol. 15,522.

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