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 feat of the ancestor, in a great degree collateral to the title by inheritance. The prerogative is only restricted to iffue the writ of fummons to one of the perfons, who has part or fhare in that title: the interpofition of the prerogative is, as I have before observed, fui juris, entrusted to the crown, in order to qualify the necesfary confequences of the law of defcent 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 ftated it to be. It was with great ability, and very ingeniously turned by the counfel for the claimant, and used to qualify the law of defcents itself, instead of the effects of the law. It was not denied that, in general, many coheirs make but one heir; but it was faid, that this would be an inconvenient and an abfurd 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 feat of the ancestor, inasmuch as the king by his prerogative, could prefer any one of the coheirs, and place him in the feat of the ancestor; that there were, therefore, in the coheirs of a barony, a plurality of perfons, all capable of fucceeding 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, fay 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 fo long as the neceffity exists; and the neceflity exifts, fo long as the plurality exifts. That as the law abhors abeyance, the moment the plurality of perfons capable of fuftaining 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 muft vest in the fingle coheir, who is thus left without a competitor. If they had built upon folid foundations, it might have been necessary to have gone farther into this cafe, in order to fee, whether the plurality they fpeak of has been removed, and to have examined with care the actual fituation of the other branch of this noble family, the Norris branch; to have confidered it, as it stood on the death of Sir John Norris without iffue, which is the moment when the sole right of this barony is fuppofed to have vefted in the ancestor of the claimant. The fituation of the Norris branch, after the act of parliament had paffed for reftoring the iffue of Henry Norris in blood, and the poffible fitua tion of the Norris branch, fuppofing the issue of Henry (who was attainted) hereafter to fail, and the iffue of his fifters to continue; out of this examination, inany questions of grave and weighty confideration would arife; and they would require more time for a fatiffactory difcuffion of them, than at this period of

the

the feffions of parliament could probably have been fpared.

Your Lordships might poffibly entertain a doubt, with regard to these questions, as well as to another queftion; namely, whether the title to a barony can furvive, when it is become impoffible, that all the component parts of it can vest in one person. Your Lordships may entertain a doubt, whether, as to queftions 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 confideration we could give to the cafe now in judgment, we humbly offer it to your Lordships as our clear opinion, that the argument in fupport of the plaintiff's title is fallacious: and, he being but a coheir, his claim to be folely 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 provifion for the incapacity of the coheir. There is no plurality of perfons capable: the plurality is of perfons incapable, either standing alone, or even uniting the abeyance is not produced, by the law not knowing how to felect from among capable perfons. The abeyance is, because there is no one capable, and alfo, because all are incapable: abeyance cannot determine by the removal of a plurality of perfons capable; because fuch a plurality never existed. Abeyance determines by uniting all the detached parts of the title in one, and, by that means, reftoring to the

title activity and capacity to be poffeffed and enjoyed. And, unless the claimant could make out, that the effect of the actual fituation of the other coheir at the period he has chofen to fix upon, namely, the death of Sir John Norris without iffue, was fuch, that all the component parts of the title of heirfhip did unite in this claimant, he can never take this barony out of abeyance by his own ftrength, or fuftain a claim to be folely entitled to it. This is the ground upon which the Attorney General stood; and, we apprehend, he has, fuftained it.

In this cafe we have not derived much assistance from authorities or precedents. The cafe of the barony of Powis was mentioned, and feemed to approach this. We must call that cafe to the confideration of of your Lordfhips from your Journals; not being informed of the particular grounds of law, on which it proceeded. I will mention one cafe from Coke upon Littleton. Suppofing 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 fituation 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 iffue 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 defcent of the Stapleton line, and unite with their title in the perfon of the claimant; I conceive that one of the cafes mentioned by Sir Edward Coke, and upon which the claimant's counsel relied for another purpose, proves, that the

claimant

claimant cannot make title to the whole inheritance. Sir Edward Coke on the authority of Fleta fays, if a man be seised of lands in fee, and has iffue two daughters, and one of the daughters is attainted of felony; the father dies, both daughters being alive; the one moiety fhall defcend to the one daughter, and the other fhall efcheat. 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 cafe of defcent, the law was more favourable to co-heirs. And it is fo; but, let the extent of the favour be marked in the cafe put, the law pays attention to the real intereft of the co-heir, and gives it effect by allowing, in the cafe of two co-heirs and one attainted, where the attainder prevented the lands from defcending 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 fhe would have done, if her fifter 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 fhe could take it: for, according to the cafe of Royston v. Reading, reported by Mr. Serjeant Salkeld, page 242, there can be no fuch descent as the descent of a moiety to one coparcener as heir which affirms the general rule of law, upon which the whole argument refts, that the title of co-heirs must in fome manner or other unite in order to entitle any one co-heir to claim as heir to the ancestor.

I forbear