Page images
PDF
EPUB

ginal title to participate in the inheritance ; nor does it in any manner enlarge the quantity of his interest in the inheritance, as it stood originally : it takes nothing from the title of the other coheirs ; it does not attract their portion of the heirship, and unite it with that of the coheir preferred; but it creates a title to fit in the seat of the ancestor, in a great degree collateral to the title by inheritance. The prerogative is only restricted to issue the writ of summons to one of the persons, who has part or share in that title : the interposition of the prerogative is, as I have before observed, fui juris, entrusted to the crown, in order to qualify the necesfary consequences of the law of descent to coheirs, as applied to the inheritance of a barony; and, I appre, hend, it proceeds upon the ground of the law being as I have stated it to be. It was with great ability, and very ingeniously turned by the counsel for the claimant, and used to qualify the law of descents itself, instead of the effects of the law. It was not denied that, in general, many coheirs make but one heir ; but it was said, that this would be an inconvenient and an absurd doctrine, as applied to a barony, that the coheirs of a barony were all of the blood of the ancestor, and must all be capable of the honour, and fitting in the seat of the ancestor, inasmuch as the king by his prerogative, could prefer any one of the coheirs, and place him in the seat of the ancestor ; that there were, therefore, in the coheirs of a barony, a plurality of persons, all capable of succeeding to the dignity; and that they were therefore, in effect, a plurality of heirs. Upon this they proceeded to erect their fabric.

14

A barony,

A barony, say they, falls into abeyance, only be. cause there is a plurality of heirs, capable of taking the peerage ; and the law knows not how to select one from amongst them. But this is the office of the pater patria, entrusted to the crown so long as the necessity exists; and the necessity exists, so long as the plurality exists. That as the law abhors abeyance, the moment the plurality of persons capable of sustaining the dignity is by any means removed, and only one of the coheirs thus capable of sustaining the dignity is left, the barony is no longer in abeyance: the crown no longer finds any thing, upon which the prerogative can act : and, if the barony is neither in abeyance nor extinct, it must vest in the fingle coheir, who is thus left without a competitor. If they had built upon solid foundations, it might have been necessary to have gone farther into this case, in order to see, whether the plurality they speak of has been removed, and to have examined with care the actual situation of the other branch of this noble family, the Norris branch; to have considered it, as it stood on the death of Sir John Norris without issue, which is the moment when the sole right of this barony is supposed to have vested in the ancestor of the claimant. The situation of the Norris branch, after the act of parliament had passed for restoring the issue of Henry Norris in blood, and the possible situation of the Norris branch, fuppofing the issue of Henry (who was attainted) hereafter to fail, and the issue of his sisters to continue ; out of this examination, inany questions of grave and weighty confideration would arise ; and they would require more time for a fatiffactory discussion of them, than at this period of

the

the sessions of parliament could probably have been spared.

Your Lordships might possibly entertain a doubt, with regard to these questions, as well as to another ques. tion; namely, whether the title to a barony can survive, when it is become impossible, that all the component parts of it can vest in one person. Your Lordships may entertain a doubt, whether, as to questions of this nature, there are the proper parties before you, whom these questions do, in point of inheritance, concern. But, my Lords, upon the best consideration we could give to the case now in judgment, we humbly offer it to your Lordships as our clear opinion, that the argument in support of the plaintiff's title is fallacious : and, he being but a coheir, his claim to be solely entitled to this barony, as it has been made for him, is unfounded.

My Lords, the nature of the prerogative right infers no capacity in the coheir. The prerogative is, on the contrary, a provision for the incapacity of the coheir. There is no plurality of persons capable: the plurality is of persons incapable, either standing alone, or even uniting : the abeyance is not produced, by the law not knowing how to select from among capable persons. The abeyance is, because there is no one capable, and also, because all are incapable : abeyance cannot determine by the removal of a plurality of persons capable ; because such a plurality never existed. Abeyance determines by uniting all the detached parts of the title in one, and, by that means, restoring to the

title activity and capacity to be poffeffed and enjoyed. And, unless the claimant could make out, that the effect of the actual situation of the other coheir at the period he has chosen to fix upon, namely, the death of Sir John Norris without issue, was such, that all the component parts of the title of heirship did unite in this claimant, he can never take this barony out of abeyance by his own strength, or sustain a claim to be solely entitled to it. This is the ground upon which the Attorney General stood; and, we apprehend, he has sustained it.

of

In this case we have not derived much assistance from authorities or precedents. The case of the barony of Powis was mentioned, and seemed to approach this. We must call that case to the confideration of

your Lordships from your Journals; not being informed of the particular grounds of law, on which it proceeded. I will mention one case from Coke upon Littleton. Supposing this barony not to be extinct, (concerning which we are not called upon to deliver any opinion), and the present claimant be a co-heir, let the situation of the other co-heir be whatever the counsel for the claimant would wish it to be (except that that there is no failure of issue naturaliter), the effect of which might be, that the title of that co-heir would run upwards to the common ancestor, and from thence fall down in the course of the descent of the Sia. pleton line, and unite with their title in the person of the claimant; I conceive that one of the cases mentioned by Sir Edward Coke, and upon which the claimant's counsel relied for another purpose, proves, that the, claimant cannot make title to the whole inheritance. Sir Edward Coke on the authority of Fleta says, if a man be seised of lands in fee, and has issue two daughters, and one of the daughters is attainted of felony; the father dies, both daughters being alive ; the one moiety shall descend to the one daughter, and the other shall escheat. It was argued on the part of the claimant, that though one co-heir could not make himself complete heir, to take under a limitation in the case of descent, the law was more favourable to co-heirs. And it is so; but, let the extent of the favour be marked : in the case put, the law pays at. tention to the real interest of the co-heir, and gives it effea by allowing, in the case of two co-heirs and one attainted, where the attainder prevented the lands from descending in coparcenary, that part of the inheritance, which fairly belonged to the other co-heir, to descend upon her, in the determinate form of an undivided moiety; which proves that she remained in the contemplation of the law but a co-heir, entitled only to participate in the inheritance as she would have done, if her sister had not been attainted : and the utmost favour, that could be found, was to give her the benefit of that participation in the only way, in which she could take it : for, according to the case of Royston v. Reading, reported by Mr. Serjeant Salkeld, page 242, there can be no such descent as the descent of a moiety to one coparcener as heir ; which affirms the general rule of law, upon which the whole argu. ment rests, that the title of co-heirs must in some mane ner or other unite in order to entitle any one co-heir to claim as heir to the ancestor.

claimant

I forbear

« PreviousContinue »