Page:The Complete Peerage Ed 2 Vol 4.djvu/733

APPENDIX H 711 the family estates. To me also this solution had occurred as possible; but its difficulty is that, in the Abergavenny case, the judges, about the same time, gave their decided opinion in favour of Lady Fane, as heir general, although Edward Nevill's possession of Abergavenny afforded a much stronger case for barony by tenure than any lands possessed by the heir male of the Wests. (*) Lady Fane's case (see Despenscr, post), however, was greatly strengthened by, if It did not rest on, the fact that she was sole heir general against the heir male, whereas the Barony of De la Warr had descended to coheirs, in whom no title was supposed to exist at that time. They were entirely ignored in 159". The question was whether the Act which disabled William prevented his son Thomas from inheriting the barony possessed by his ancestors. The Judges held that on William's death both the dignity enjoyed by his grand- father and the new dignity conferred upon himself descended to his son Thomas.(*) Thomas was therefore deemed to be possessed of the ancient barony by writ of his ancestors and of the new barony by patent conferred on his father in 1570. It would seem that the only conclusion to be drawn from the opinion of the Judges is that the rights of the coheirs were then entirelv unknown. Twenty-nine years after the decision in the De la Warr case, a question arose as to the descent of certain supposed baronies of which Henrj- de Vere, Earl of Oxford, was held to be possessed at his death, s.p., in 1625. The Judges advised the King that they "are wholly in Your Majesty's Hand, to dispose at Your own Pleasure. "(') At about the same time the King acted in the Ogle case, to which reference has already been made. The barony fell into abeyance in 1597 between the two daughters of Cuthbert, Lord Ogle. Catherine, the sur- viving daughter, petitioned for it, and received letters patent confirming the dignity on her and her heirs for ever in 1628. As the patent mentioned that the grant was of the King's special grace and favour, this cannot be looked on as the successful assertion of a right by the surviving heir general. The King doubtless regarded the barony as having lapsed to the Crown. The Crown would have been wise, and within its rights, to insist that a barony by writ descending to coheirs became extinct, and such a decision, firmly adhered to, would probably have prevailed and become law. To contend, however, that such baronies lapsed to the Crown and were entirely at the Sovereign's disposal was to risk encroaching on the privileges of many peers who, if the dignit}' were granted to a stranger in blood, would have to yield place to a new man with an old title and its ancient precedence. To such lengths, however, the Crown did not venture to stretch its prerogative, though it made persistent attempts to alter the descent to heirs male when it fell to coheirs. This was so in the Darcy and Conyers case. (•) Peerage and Pedigree, vol. i, p. 59. C) Pike, p. 125. (') Lords' ysurnals, vol. iii, p. 55J^.