Page:Prerogatives of the Crown.djvu/135

 Ch. VIII.] Fountain of Honours, S;c, 115 lutely, for his Majesty cannot, by law, extinguish or dispose of it to a mere stranger ; and therefore, on the termination of the abeyance, where there remains only one heir, such sole heir becomes entitled to the dignity or title, not as a favour, but as a matter of legal right {a). It is, however, in the power of the Crown to terminate the abeyance or suspension of the dig- nity, by nominating any one of the coheirs to it. Such no- mination operates, not as a new creation, but as a revival of the antient dignity, for the nominee becomes entitled to prece- dence according to the date of the dignity {b). The abeyance terminates, as a matter of course, whenever there remains, by the death of some of the coheirs, but one heir (c), but the attainder of one of two coheirs does not determine the abey- ance (d). Where the King terminates the abeyance of a dignity in favour of a commoner, he issues a summons to him by the name of the barony which was in abeyance ; as, in the cases of Lord Le Despencer, and Lord Botetourt. But where the per- son, in whose favour the abeyance is terminated, is already a peer, and has a higher dignity, there the King makes a decla- ration, under the great seal, confirming the barony to him ; and in the case of a female, the abeyance is also terminated by a declaration. Formerly it was the practice, to confirm the ba- rony to the person, and his or her heirs, but now it is only to the heirs of his or her body (e). Where an abeyance is terminated by a writ of summons, dif- ferent opinions have been entertained respecting the extent of the operation of 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 co-' 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 (a) S Cruise Dig. 254, 5,1 &c. See C. J. Eyre. 3 Cruise Dig. 267, 8. Skin. R. 432, 437. Dugd. Bar. 2 vol. (c) 3 Cruise, 254. 363. Collins, 412; 322. Lords' Journ. (d) Stapleton's Case, Printed Cases, 15 vol. 634, 643, 671; 21 vol. 266, Dom. Proc. 1794, 5; cited 3 Cruise 339. Dig. 261. s. 172; 1 ed. (b) 3 Cruise Dig. 249. Lords' Journ. {e} 3 Cruise Dig. 250, 252. 30 vol. 403, 561, 572 ; 2 vol. 347; per 1 2 better