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

Writ of Sum.

mons to one

of a Co-heir.

§ 163. Where an abeyance is terminated by a writ Effect of a of fummons, different opinions have been entertained respecting the extent of the operation of fuch a writ. of the Heirs Some eminent perfons are faid to have held, that, where a barony is in abeyance between the defcendants of two coheirs, and the king iffues his writ of fummons to one of the heirs of the body of one of the two coheirs, the abeyance is thereby terminated ; not only as to the perfon fummoned, and the heirs of his or her body, but also as to all the heirs of the body of fuch original coheir; but the better opinion feems to be, that the effect of a writ of fummons, in a cafe of this kind, is only to terminate the abeyance as to the perfon fummoned, and the heirs of his or her body; and that, upon failure of heirs of the body of the perfon fo fummoned, the barony will again fall into abeyance, between the remaining heirs of the body of the original co-heir, one of whofe heirs was fo fummoned, if any, and the heirs of the body of the other co-heir.

§ 164. This latter opinion is founded upon a principle of law, that poffeflion does not affect the descent of a dignity; and that a writ of fummons to parliament by an ancient title, (as the fummons of the

eldeft

Vide Cafe of

of Walden, ante, f. 161.

Lord Howard

and Lord

Ch. Juftice
Eyre's Argu-

ment in the

Cafe of the
Barony of
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Where only one Heir, the Abeyance terminates.

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, fo as to give any title by defcent, collateral or lineal, different from the course of defcent of the ancient barony; as was determined in the cafe of the barony of Sydney of Penshurst. And that he who claims a dignity must make himself heir to the perfon on whom the dignity was originally cónferred; not to the perfon who laft enjoyed it.

§ 165. In all cafes of abeyance of dignities, whenever the co-heirship determines by the death of all the fifters but one, or by the extinction of all the defcendants of fuch fifters but one, by which there remains only one heir to the dignity, the abeyance is Skin. R. 437. terminated; and the perfon, who is fole heir, becomes

Dugd. Bar.

vol. 2. 363.

immediately entitled to the dignity: for, although it was held by fome, that in the cafe 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 perfon could claim it, or acquire a title to it without a grant from the crown; yet it was afterwards fettled, that where the co-heirship ceased, and there remained only one heir, fuch fole heir became entitled to it as a matter of right, and not of favour from the crown.

§ 166. Sir Robert Ogle was fummoned to parliament, 4 Edw. 4., and the title defcended 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

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

§ 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 provifo, "That if there fhall be more per"fons than one, who fhall be co-heirs of her body "by the faid Earl of Kent, whereby the King's Ma

jefty, his heirs or fucceffors, might declare which "of them he pleases to have and enjoy the faid "honour, title and dignity, or might hold the fame "in fufpence, or extinguish the fame, at his and their "pleasures; that nevertheless the said honour, title "and dignity, fhall not be held in fufpence, or extin

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P. 412.

guished, but shall go to and be held and enjoyed, Ante, f.. " &c."

§ 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 cafe; in which it was determined by the Houfe of Lords,

Coll. 322. Skin. Rep. 432.

Ante, f. 56.

Lords, after great deliberation, and affented 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, fuch one heir becomes entitled to the dignity, as a matter of right.

$ 169. In 1694, Sir Richard Verney, Knight, claimed the barony of Broke, as lineal heir to Sir Robert Willoughby, who was fummoned to parliament, 7 Hen. 7. the writ being directed Roberto Willoughby de Broke Chevalier; to whom fucceeded Sir Robert Willoughby, who was fummoned to parliament by the fame title, and fat accordingly temp. Hen. 8.: from him the barony defcended to Lady Elizabeth Greville, (fhe having furvived her two fifters, who died without iffue), from whom it defcended 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 iffue, the barony descended to Margaret Lady Verney, the petitioner's grandmother.

The Attorney-General argued against this claim, ift, That a fummons by writ did not create an estate in fee for that anciently several had been fo fummoned, and yet their fons had never been fummoned after them. Nay, fometimes the very perfon first fummoned had afterwards been omitted to be fummoned. But he did not defign to urge that any farther, but chiefly infifted that even in the time of King Henry 7., when Sir Robert Willoughby was first fummoned, it was not confidered as an estate in fee;

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

The counfel for the petitioner replied, that, 1ft, as to the baronies of Latimer and Abergavenny, thofe honours followed the intail of the lands, as baronies by tenure. As to the refolutions in the Earl of Oxford's cafe, touching the baronies of Bulbeck, Sand- Ante ford, and Badlefmere, that they were in his Majesty's difpofition; they allowed that the King might difpose of them to which of the co-heirs he pleafed, during the coparcenership, but not to a stranger, nor to the heir male collateral, who had no right thereto, fo long as there were heirs general.

The Houfe of Lords refolved, that the petitioner had no right to a fummons to parliament.

It has been already stated, that in confequence of Ante, f. 66. this refolution feveral Peers, who had baronies by writ in them, were heard by counfel at the bar of the House of Lords, refpecting the defcent of fuch dignities, and the ground of the refolution that Sir Richard Verney had no right to the barony of Willoughby de Broke; being, that where a dignity defcended to co-heirs, it was in his Majefty's power to hold the fame in fufpence or abeyance. The matter was reported by the Lord Keeper; and, the queftion being put, Whether, if a perfon, fummoned to parlia66 ment by writ, and fitting, die, leaving issue two or VOL. III. S

more

Lords' Jour. vol. 15, 522.

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