Page:The Complete Peerage Ed 2 Vol 4.djvu/762

 740 APPENDIX H Robert Cheeke claimed the Barony on the ground of tenure, and also alleged against Benjamin Mildmay's petition that the half-blood was an impediment to succession, and that the Barony was attracted by the Earldom. After various hearings, which extended up to 29 Apr. 1668, the case was withdrawn from the House of Lords and heard before the Privy Council in the presence of the King, 19 Jan. 1669/70. Both parties being ordered to withdraw, the nature of a barony by tenure being discoursed, it was found to have been discontinued for many ages, and not in being, and so not fit to be revived, or to admit any pretence of right of succession thereupon: And that the pretence of a barony by tenure, being declared (for weighty reasons) not to be insisted on, then the counsel on either side being called in, the counsel ot Robert Cheeke insisted that the barony was merged and extinct in the earldom, by coming to Edward, last earl of Sussex, who died without issue: To disprove which, the counsel on the petitioner's behalf, producing the report and opinion of the judges made to the right honourable of peers, March 20th 1625 in the case of the earl of Oxford and the lord Willoughby, and the concurrence of the house of peers therewith; and the record of this being read at this board, and the counsel of the said Robert Cheeke raised the question, whether the half blood was any impediment to the descent of a dignity; but the petitioner's counsel produced the order of the house of peers, pursuant to the resolution of the judges in the case of Charles Longueville, esq., for the barony of Grey, to disprove the same by law. And the same being put to the judges beforenamed, and they all unanimously agreeing that the half blood was no impediment to the descent of a dignity to an heir general, and that if a baron in fee simple be made an earl, the barony will descend to the heir general, whether the earldom continue or be extinct, with which opinion and resolution his Majesty being fully satisfied, It is ordered, by his Majesty in council. That the petitioner is admitted humbly to address himself to his Majesty for his writ to sit in the house of peers, as baron Fitzwalter: Nevertheless it was further declared, That where the King is pleased by writ to summon an earl's eldest son to parliament, to sit there in the place of his father's barony, that this case is wholly different from the former.C) Sir Benjamin Mildmay was summoned to Parliament on 10 Feb. following. FRESCHEVILLE John Frescheville was created Baron Frescheville of Staveley by patent in tail male in 1664. In 1677 he presented a petition for the place and precedence of his ancestor, Ralph Frescheville, who was alleged to have been summoned to Parliament in 1297. In this petition he referred to the Clifton case, then recently decided (1674). In the words of Cruise, That upon a solemn debate in the house of peers, in the case of the lady Catherine O'Brien, lineal heir to Gervase lord Clifton, it was resolved that the said Gervase Clifton, being summoned to parliament by a special writ, and sitting in parliament accordingly, was a peer and baron of the realm, and his blood thereby ennobled. (») Collins, pp. 287-8.