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John late Lord Lumley, and made only heir and heirs in blood, as well as to the faid George as to the faid 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 faid John Lord Lumley, in blood only, while the attainder remained unreverfed, could not poffibly revive the antient barony, which was before extinct, and merged in the crown, in confequence of that attainder. The Houfe of Lords appear to have been of this opinion, and to have determined accordingly.

§ 141. Where a person is outlawed for high treason, petty treason, or felony, his blood is alfo corrupted; but it may be restored by act of parliament, or by a reverfal of the judgment of outlawry, by writ of error: which may be done during the life of the perfon outlawed, or at any time after. But a writ of error, to reverse an outlawry in treafon or felony, is not ex debito juftitia; and, therefore, can only be obtained by the favour of the crown.

S 142. The House of Lords refolved, in 1702, that they would not, in future, receive any bill for reverf ing outlawries, or reftitution in blood, that should not be firft figned by her majesty, or her fucceffors, kings or queens of the realm, and fent by her or them to their house first, to be confidered there,

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Lords' Jour.
Vol. 17.

p. 119.

Descent of
Dignities.

143-146. § 143. Dignities are hereditary; and it has already been stated, that, where a dignity is by tenure, it will defcend in the fame manner as an estate in fee-fimple in lands. But, where a dignity was originally created by writ of fummons to parliament, it is defcendible to all the lineal heirs of the perfon fo fummoned, whether male or female; but not to collaterals.

§ 144. The right of primogeniture takes place between males in the defcent of dignities; and, therefore, where a perfon poffefling a dignity, dies, leaving feveral fons, it defcends upon the eldeft: for, being of an indivisible nature, it cannot go to them all.

$ 145. The defcent of dignities by writ is, in fome refpects, different from the defcent of lands; poffefVide Tit. 29. fion does not affect the defcent of a dignity: for every perfon, claiming a dignity by writ, muft make himself

1 Inft. 156. 3 Rep. 42 a.

Lord Grey's
Cafe,

Cro.Car. 601.
Coll. 195.

heir to the person firft fummoned, not to the perfon last seised. And, for this reafon, a brother of the 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 queftion was moved in parliament in 16 Cha. 1., respecting the barony of Grey de Ruthyn; which was originally created by writ of fummons. Lord Grey died, leaving a fon and a daughter by one venter, and a second fon by another venter. The barony defcended to the eldest fon, who fat in parliament, and afterwards died without iffue. The queftion

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was, whether the fecond fon fhould inherit the barony, or the fifter; and the opinion of the judges was required; who refolved, that there was not any poffeffio Lords' Journ. V. 4. 149. fratris of a dignity, but it fhould go to the younger 8 Term Rep. fon, who was hæres natus; and the fifter was only hæres facta, by the poffeffion of her brother, of fuch things as were in demefne, but not of dignities, whereof there could not be an acquifition of the poffeffion.

213.

n. 3.

§ 147. Lord Hale, in his notes to the First Institute 1 Inft. 15 b. published by Mr. Hargrave, obferves on this cafe, that, if it was a feudal title of honour, as of the earldom of Arundel, or barony of Berkley, there poffeffio fratris fhould hold well; because the title is annexed to the land.

§ 148. In the cafe of dignities created by letters patent, the mode of defcent is precifely declared. The ufual one is, to the heirs male of the body of the grantee; though, in fome, it is to the heirs of the body generally.

Dignities.

§ 149. In antient times, the right of primogeniture Abeyance of appears to have taken place in the descent of dignities to females, as well as to males; fo that, where a perfon died feised of a dignity, leaving only daughters, or fifters, the dignity descended to the eldeft; or, at least, the eldest had a stronger claim than the others.

$150. Thus, Dugdale mentions, that Edward 3. by letters patent, declared Lawrence Haftings to be Earl of Pembroke, by reafon of his defcent from the eldest

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4 Inft. Ch.40.

1 Inft. 165 a. Fitz Ab.

Tit. Fræfcrip. 18.

fifter and coheir of Aymer de Valence, who died feifed of that dignity.

These letters patent are stated by Lord Coke in his Fourth Inftitute; and, as they recognize the right of the eldest fifter in the strongest terms, I fhall here transcribe a part of them.-Cum itaque hæreditas bonæ memoria Audomari de Valentiá Comitis Pembrochiæ (ut dicitur) jampridem fine hærede de corpore fuo procreato decedentis ad forores fuas fuerit devoluta, inter ipfas et earum hæredes proportionabiliter dividenda: quia conftat nobis quòd præfatus Laurentius, qui dict' Audomar' in partem hæreditatis fuccedit, eft ex ipfius Audomari forore feniori defcendens, et fic peritorum affertione, quos fupcr hoc confuluimus, fibi debeatur prærogativa nominis; et honoris juftum et debitum reputamus, ut idem Laurentius ex feniori forore caufam habens, affumat, et habeat nomen Comitis Pembrochiæ, quod dictus Audomarus habuit dum vivebat: quod quidem (quantum in nobis eft) fibi confirmamus, ratificamus, et etiam approbamus ; volentes et concedentes ut dictus Laurentius prærogativam et honorem Comitis Palatini in terris quas tenet de bæreditate dicti Audomari, adeo pleno et eodem modo habeat, et teneat, ficut idem Audomarus illas habuit et tenuit tempore quo deceffit.

S 151. Lord Coke, in his First Institute, had stated a cafe in 23 Hen. 3. in these words :- "Note, if the "earldom of Chefter defcend to coparceners, it fhall "be divided between them, as well as other lands; " and the eldest shall not have this feignory and earl"dom entire to herself, quod nota, adjudged per totam " curiam :"

" curiam :" and his Lordship makes the following observations on this cafe. "By this, it appeareth, that "the earldom, (that is, the poffeffions of the earldom,) "fhall be divided; and that, where there be more

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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 cafe, the king, who is fovereign of honour and dignity, may, for the "uncertainty, confer the dignity upon which of the daughters he please; and this hath been the usage, "fince the Conqueft, as it is faid."

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§ 152. The case respecting the earldom of Chester is probably mif-ftated: for it appears from Dugdale, Baron. Vol. 1. that Ranulph Earl of Chefter died in 16 Hen. 3. with- 44, 45, out iffue, leaving four fifters; of whom Maud, the eldeft, was married to David Earl of Huntingdon, brother to William king of Scotland, by whom he had a fon John, furnamed Scot; who fucceeded Ranulph in the earldom of Chefter. But the reafon of this cafe was, that, in the partition of the vaft poffeffions of Ranulph, this John had for his part (his mother being dead) the whole county of Chester.

$153. Bracton treats of the partition of eftates among parceners; and obferves that, where a manfionhoufe was caput comitatus or baronia, it was not divifible, propter jus gladii, quod dividi non poteft; for, by that means, earldoms and baronies would come to nothing. Per quod deficiat regnum, quod ex comitatibus et baroniis dicitur effe conftitutum.

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76 a. & b.

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