of Bulbeck, Sandford, and Badlesmere; and they certified that the same baronies descended to the general heirs of John, the fourth Earl of Oxford, who had issue, John, the fifth Earl of Oxford, and three daughters, one of them married to the Lord Latimer, another to Wingfield, and another to Knightley; which John, the fifth Earl of Oxford, dying without issue, those baronies descended upon the daughters, as his sisters and heirs: but these dignities being entire and not dividable, they became incapable of the same, otherwise than by gift from the Crown; and they in strictness of law reverted to and were in the disposition of King Henry VIII. The House of Lords certified to the King, that for the baronies, they were wholly in his Majesty's hand, to dispose of at his pleasure. may terminate 18. The expression that baronies in abeyance are The Crown wholly in the disposal of the Crown, is too general; for the abeyance. it is not in the power of the King to dispose of such baronies to a stranger. The Crown has only the prerogative of terminating the abeyance or suspension of a dignity, by nominating any one of the coheirs to it: and such nomination operates, not as a new creation of a barony, but as a revival of the ancient one. For the nominee becomes entitled to the place and precedence of the ancient barony to which he is nominated. 19. This prerogative does not however appear to have been of ancient date; for though Lord Coke, in the passage above cited, respecting the earldom of Chester, carries it up to the Conquest, as was said; yet in his Reports he says, Camden told him, some held, 12 Rep. 112. that if a baron died having issue divers daughters, the King might confer the dignity on him who married any of them; as had been done in divers cases, viz. in the case of Lord Cromwell, who had issue divers daughters, and King Henry VI. conferred the dignity upon Bourchier, who married the youngest daughter; and he was called Lord Cromwell. The Crown has, however, Journ. Vol. XIII. 130. 18 March, Journ. Journ. Vol. exercised this prerogative in so many subsequent instances, that it cannot now be questioned. 20. Robert Devereux, Earl of Essex, Viscount Hereford, and Lord Ferrers of Chartley, a barony descendible to heirs general, died without issue in 1646, leaving his two sisters his coheirs. In 1678 Sir Robert Shirley, grandson of Lady Frances, one of the sisters and coheirs of the said Earl of Essex, was summoned to parliament, by writ, directed to Robert Shirley de Ferrers, Chevalier. It was opened to the House by the Lord Chancellor, how his lordship came in upon descent, so no introduction to be: and he was placed upon the barons' bench, next below Lord Berkeley. 21. In 1720 a writ of summons was issued to Hugh Fortescue, by the title of Hugh Fortescue de Clinton, Chevalier. When he took his seat, the Lord Chancellor explained to the House his descent; how he was one of the heirs of Theophilus late Earl of Lincoln, and Baron Clinton, which barony was then in abeyance between Mr. Fortescue and Samuel Rolle, Esq. 22. In 1763 a writ of summons was issued to Sir Francis Dashwood, Baronet, by the title of Lord Le Despencer; the Lord Chancellor informing the House of Lords that he was one of the heirs of Lady Mary Fane, in favour of whom and whose heirs King James I. had revived the ancient barony of Le Despencer. Thereupon he was allowed to take his seat upon the upper part of the bench, next above Lord Abergavenny. 23. The barony. of Willoughby de Eresby fell into abeyance in the year 1779, by the death of Robert Bertie, Duke of Ancaster, without issue, leaving Lady Priscilla Barbara Elizabeth, and Lady Georgiana Charlotte, his sisters and coheirs. In the following year his Majesty confirmed that barony to Lady Priscilla Barbara Elizabeth, then the wife of Peter Burrell, Esq. since created Lord Gwydir. abeyance. 24. When the King terminates the abeyance of a Modes of terbarony in favour of a commoner, he directs a writ of minating an summons to be issued to him, by the style and title of the barony which is in abeyance; as in the cases of Lord Ferrers and Lord Le Despencer. Where the person in whose favour an abeyance is determined is already a peer, and has a higher dignity, there the King confirms the barony to him by letters patent: and in the case of a female, the abeyance is also terminated by letters patent. 25. Formerly it was the practice to confirm the barony to the coheir and his or her heirs; but now it is more properly to the heirs of his or her body: for no one can be heir of the body of the person in whose favour the abeyance is terminated, without being also lineally descended from the person first summoned. the heirs of a 26. Where the abeyance of a barony is terminated Effect of a by a writ of summons, different opinions have been writ to one of entertained respecting the extent of the operation of coheir. such a writ. Some eminent persons are said to have held, that where a barony is in abeyance between the descendants of two coheirs, and the King issues his writ of summons to one of the heirs of the body of one of the two heirs, the abeyance is thereby terminated, not only as to the person summoned, and the heirs of his or her body, but also as to all the heirs of the body of such original coheir. But the better opinion seems to be, that the effect of a writ of summons, in a case of this kind, is only to terminate the abeyance, as to the person summoned, and the heirs of his or her body; and that upon failure of heirs of the body of the person so summoned, the barony will again fall into abeyance, between the remaining heir or heirs of the body of the original coheir, one of whose heirs was so summoned, if any, and the heir or heirs of the body of the other coheir. 27. This latter opinion is founded upon a principle of law, that possession does not affect the descent of a dignity; and that a writ of summons to parliament by an ancient title (as the summons of the eldest son of a peer, in the lifetime of his father, by the name of an ancient barony then vested in the father,) will not operate, so as to give any title by descent, collateral or Vide barony of lineal, different from the course of descent of the anSydney, infra. cient barony; and that he who claims a dignity must make himself heir to the person on whom the dignity was originally conferred; not to the person who last enjoyed it. Cases of claims to a coheirship. Barony of Botetourt, printed case. Journ. Vol. Barony of ed case. 28. In consequence of the practice of terminating all abeyance, several claims have lately been made to a coheirship in a barony: but the King has seldom terminated the abeyance in favour of one of the coheirs, without first referring the case to the House of Lords, in order to satisfy himself of the existence of the barony, and who the persons were between whom it was in abeyance.. 29. In the year 1764, Norborne Berkeley petitioned the King to be nominated to the ancient barony of Botetourt, created by writ in 33 Edw. 1. directed to John Botetourt. This petition having been referred to the House of Lords, it was there resolved that the barony of Botetourt was in abeyance; and that the petitioner was one of the coheirs of John Lord Bote tourt. A writ of summons was soon after directed to Mr. Berkeley, by the name of Norborne de Botetourt, Chevalier, who took his seat accordingly. 30. In 1784, Sir John Griffin Griffin petitioned Walden, print- his Majesty to be nominated to the barony of Howard of Walden, created by writ of summons in 39 Eliz, directed to Lord Thomas Howard, second son of the Duke of Norfolk, the petitioner being one of the coheirs of the said Lord Thomas Howard. The House of Lords resolved that the barony of Howard of Walden was in abeyance, and that the petitioner was one of the coheirs of James the then last Lord Howard of Walden. Soon after which Sir John Griffin Griffin was summoned to parliament by writ, as Lord Howard of Walden. Roos. Printed Case. 31. Lady Henry Fitzgerald petitioned his Majesty Barony of in 1805 to be nominated to the barony of Roos, as one of the coheirs of Robert de Ros or Roos, who was summoned to parliament in 49 Hen. 3. The House of Lords resolved that Sir Thomas Windsor Hunloke, George Earl of Essex, and the petitioner, were the coheirs of Robert de Ros; and that the barony which was vested in the said Robert de Ros remained in abeyance between the said Sir T. W. Hunlocke, George Earl of Essex, and Lady Henry Fitzgerald: soon after which his Majesty confirmed the barony to Lady Henry Fitzgerald. Case. 32. In 1807, Sir Cecil Bishop petitioned the King Barony of to be nominated to the barony of Zouch of Harring- Zouch. Printed worth, it being a barony by writ, as appeared from several writs of summons of a date anterior to the 11 Rich. 2., in which year it was well known that the first instance of creating a baron by patent took place. The House of Lords resolved that the barony of 24th April Zouch of Harringworth was a barony created by writ 1807. in the reign of King Edw. II., and therefore descendible to heirs general; and that the said barony fell into abeyance, upon the death of Edward the last Lord Zouch, between Zouch Tate his grandson, being the son and heir of Elizabeth his eldest daughter, and Mary, wife of William Connard, Esq., his youngest daughter, which said Elizabeth and Mary were the only daughters of the said Lord. That the petitioner and certain other persons were the coheirs of the said last Lord Zouch, together with the heir or heirs of the body of the said Mary, the youngest daughter of the said last Lord Zouch if the said Mary had any heir or heirs of her body then in existence; and if she had left none, such were the sole coheirs of the said last Lord Zouch. That the said barony was |