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Dugd. Bar.

vol. 2. 745.

Collins, 175.

vol. 3. 535.

Now, as the eldest daughter had a right to the principal mansion, if it was a caput comitatús, or baroniæ, fhe would, in thofe times, have been entitled to the dignity annexed to it: and this appears to have been the reason, that the whole earldom of Chester was allotted to the fon of the eldeft fifter, who, by that means, acquired the dignity.

§ 154. It appears that, fo late as in the reign of Hen. 6., the eldest daughter was fuppofed to have a `claim to her father's dignity, fuperior to that of her fifters. But, whatever might have been the old law on this fubject, the doctrine laid down by Lord Coke was fully established in his time and it was foon after determined by the Judges, and the House of Lords, that where a dignity or title of honour is defcendible to heirs general, and the perfon poffeffed of it dies, leaving only daughters, or sisters, or coheirs, it falls into abeyance; or rather, becomes vefted in the crown during the continuance of the coheirship.

$155. Thus in the cafe of the earldom of Oxford and Lords' Jour. Great Chamberlain, a report was made to the House of Lords by Lord Chief Juftice Crewe; that he, with the Lord Chief Baron Hale, Mr. Juftice Doderidge, Mr. Juftice Yelverton, and Mr. Baron Trevor, had, according to the order of the House, confidered the titles of the competitors to the earldom of Oxford, the baronies of Bulbeck, Sanford, and Badlesmere, and the office of Great Chamberlain of England. And they certified that," as touching the baronies of Bulbeck, Sanford, and Badlefmcre, their opinion

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was, that

"the

"the fame defcended to the general heirs of John, "the fourth Earl of Oxford, who had iffue John the "fifth Earl of Oxford and three daughters, one of "them married to the Lord Latimer, another to Wing

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field, and another to Knightley; which John the fifth "Earl of Oxford dying without iffue male, those "baronies defcended upon the daughters as his fifters "and heirs. But, thefe dignities being entire and not "dividable, they became incapable of the fame, "otherwise than by gift from the crown; and they, "in ftrictness of law, reverted to, and were in the difpofition of king Henry 8."

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In this case, the House of Lords certified to the king, that, for the baronies, they were wholly in his majesty's hand, to difpofe of at his own pleasure.

$ 156. The expreffion, that baronies in abeyance are wholly at the difpofal of the Crown, is too general;

The King
nate the

may termi

for it is not in the power of the Crown to dispose of Abeyance. fuch baronies to a mere ftranger. But the Crown has the prerogative of terminating the abeyance, or fufpenfion of the dignity, by nominating any one of the coheirs to it and fuch a nomination operates, not as a new creation of a dignity, but as a revival of the antient dignity for, the nominee becomes entitled to precedence, according to the date of the antient dignity, to which he is nominated.

§ 157. Sir William Blackstone obferves, that in the 2Comm.216. king's prerogative, of conferring a dignity on which

of the daughters he pleases, is preferved a strong trace

of

of the antient law of feuds, before their defcent by primogeniture, even amongst the males, was established: namely, that the lord might beftow them on which of I Lib. Feud. the fons he thought proper. Progreffum eft ut ad filios deveniret, in quem fcilicet dominus hoc vellet beneficium confirmare.

I.

Lords' Journ.

§ 158. There are feveral inftances, where the Vol.30.403. Crown has exercifed this power. In 1763, his Majesty

Lords' Journ.
Vol. 2. 347.

iffued his writ of fummons to Sir Francis Dashwood Baronet, by the title of Lord Le Defpencer; the Lord Chancellor informing the Houfe of Lords, that he was one of the heirs of Lady Mary Fane, in favour of whom and whofe heirs king James 1. had revived the ancient barony of Le Defpencer; and, thereupon, he was allowed to take his place upon the upper part of the Bench, next above Lord Abergavenny.

§ 159. In the year 1764, Norman Berkley Esq. petitioned his Majefty to be nominated to the antient barony of Botetourt; ftating, that John de Botetourt Chevalier, was fummoned to parliament as a baron, by writ in 33Edw. 1., and fat in parliament in pursuance of that writ. That the faid John had iffue a fon John, (who died in the lifetime of his father, leaving iffue a daughter Joyce), and five daughters. That the faid Joyce died without iffue of her body in 7 Hen. 4.; and that, thereupon, the barony became in abeyance amongst the daughters of the faid John laft Lord De Botetourt. That the petitioner was fole heir of Catharine Berkley, one of the faid daughters of John Lord Botetourt. This petition having been referred to the House

Lords' Journ.
Vol. 30.561.

House of Lords, the committee of privileges reported, that the barony of Botetourt was in abeyance; and that the petitioner was one of the coheirs of John Lord Botetourt. Soon after, his Majesty ordered a writ of fummons to be directed to Norman de Botetourt Chevalier; who, in confequence thereof, was allowed to Id. 572, take place on the Barons' Bench, next after Lord Dacre.

§ 160. The barony of Willoughby of Ereby fell into abeyance in the year 1779, by the death of Robert Bertie Duke of Ancaster and Kesteven, without ifsue, leaving Lady Prifcilla, Barbara Elizabeth, and Lady Georgina Charlotte Bertie, his fifters and coheirs. And, in the following year, his Majefty, by letters patent, confirmed the barony of Willoughby of Ereby to Lady Prifcilla Barbara Elizabeth, then the wife of Peter Burrell Efq., fince created Lord Gwydir, and the heirs of her body.

$161. In the cafe of Sir John Griffin Griffin, in 1784, claiming to be one of the two coheirs of James Lord Howard of Walden, grandfon and heir of Thomas Lord Howard of Walden, who was fummoned to parliament by writ in 40 Eliz., and fat therein; the Attorney General reported, "that the faid Sir John Griffin

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Griffin had, in his opinion, proved his pedigree; " and that the Earl of Bristol and the petitioner ap "peared to him to be the coheirs of the body of "Thomas Lord Howard of Walden; and that, if the "faid Thomas Lord Howard of Walden was called up "to the Houfe of Peers by writ, without patent, and

"fat

fat by virtue of the fame, (which, as far as he could "collect from the evidence laid before him, appeared "to be the cafe), he acquired thereby an inheritance "in the barony, to him and the heirs of his body; "and that the fame was then in abeyance, between "the petitioner and the Earl of Bristol; in which cafe, "his Majesty had an undoubted right to allow and "confirm the fame barony, either to the petitioner,

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or to the faid Earl of Bristol: and fuch perfon, to "whom the fame was fo confirmed, and the heirs of "his body, would hold and enjoy the faid barony, " and all the privileges thereunto belonging, exclu"fively of the other and the heirs of his body, whofe

right to the fame would remain dormant and fuf"pended, so long as there fhould be iffue of the body "of the perfon to whom the fame fhould be fo "confirmed."

The House of Lords refolved, that the barony of Howard of Walden was in abeyance; and that the petitioner was one of the coheirs of James the then laft Lord Howard of Walden: and Sir John Griffin Griffin was fummoned to parliament by writ, as Lord Howard of Walden.

5 162. Where the king terminates the abeyance of a dignity in favour of a commoner, he iffues a fummons to him by the name of the barony, which was in abeyance; as, in the cafes of Lord Le Defpencer and Lord Botetourt. But, where the perfon, in whose favour the abeyance is terminated, is already a peer, and has a higher dignity, there, the king makes a declaration

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