relations on the side of the father, the father's father, and so upwards; imagining with reason that this was the most probable way of continuing it in the line of the first purchasor. A conduct much more rational than the preference of the agnati, by the Roman laws: which, as they gave no advantage to the males in the first instance or direct lineal succession, had no reason for preferring them in the transverse collateral one : upon which account this preference was very wisely abolished by Jus

tinian.

[*236] *That this was the true foundation of the preference of the agnati or male stocks, in our law, will farther appear, if we consider, that, whenever the lands have notoriously descended to a man from his mother's side, this rule is totally reversed; and no relation of his by the father's side, as such, can ever be admitted to them; because he cannot possibly be of the blood of the first purchasor. And so, e converso, if the lands descended from the father's side, no relation of the mother, as such, shall ever inherit. So also, if they in fact descended to John Stiles from his father's mother Cecilia Kempe; here not only the blood of Lucy Baker his mother, but also of George Stiles his father's father, is perpetually excluded. And, in like manner, if they be known to have descended from Frances Holland the mother of Cecilia Kempe, the line not only of Lucy Baker, and of George Stiles, but also of Luke Kempe, the father of Cecilia, is excluded. Whereas, when the side from which they descended is forgotten, or never known (as in the case of an estate newly purchased to be holden ut feudum antiquum), here the right of inheritance first runs up all the father's side, with a preference to the male stocks in every instance; and, if it finds no heirs there, it then, and then only, resorts to the mother's side; leaving no place untried, in order to find heirs that may by possibility be derived from the original purchasor. greatest probability of finding such was among those descended from the male ancestors; but, upon failure of issue there, they may possibly be found among those derived from the females (34).

The

This I take to be the true reason of the constant preference of the agnatic succession, or issue derived from the male ancestors, through all the stages of collateral inheritance; as the ability for personal service was the reason for preferring the males at first in the direct lineal succession. We see clearly, that if males had been perpetually admitted, in utter exclusion of females, the tracing the inheritance back through the male line

of ancestors must at last have inevitably brought us up to the [*237] first purchasor: but as males have not been "perpetually admitted,

but only generally preferred; as females have not been utterly excluded, but only generally postponed to males; the tracing the inheritance up through the male stocks will not give us absolute demonstration, but only a strong probability, of arriving at the first purchasor; which, joined with the other probability, of the wholeness of entirety of blood, will fall little short of a certainty.

Before we conclude this branch of our inquiries, it may not be amiss to exemplify these rules by a short sketch of the manner in which we must

(34) If a man seised in fee ex parte materna, levy a fine sur grant et render, granting to A. and his heirs; the estate taken by the conusor under the render will now be descendible to his heirs ex parte paterna. 1 Prest. Conv. 210. 318. Co. Litt. 316. Dyer, 237.

b. Price v. Langford, 1 Salk. 92. And the same in the case of feoffment and re-infeoffment, or even if a man seised ex parte materna, make feoffment in fee reserving rent, the rent shall descend to the heirs ex parte paterna. Co. Litt. 12. b.

search for the heir of a person, as John Stiles, who dies seised of land which he acquired, and which therefore he held as a feud of indefinite antiquity (r).

In the first place succeeds the eldest son, Matthew Stiles, or his issue: (no 1.)—if his line be extinct, then Gilbert Stiles and the other sons, respectively, in order of birth, or their issue: (n° 2.)—in default of these, all the daughters together, Margaret and Charlotte Stiles, or their issue: (n° 3.)—On failure of the descendants of John Stiles, himself, the issue of Geoffrey and Lucy Stiles, his parents, is called in: viz. first, Francis Stiles, the eldest brother of the whole blood, or his issue: (n° 4.)—then Oliver Stiles, and the other whole brothers, respectively, in order of birth, or their issue: (n° 5.)—then the sisters of the whole blood all together, Bridget and Alice Stiles, or their issue: (no 6.)—In defect of these, the issue of George and Cecilia Stiles, his father's parents; respect being still had to their age and sex (n° 7.)-then the issue of Walter and Christian Stiles, the parents of his paternal grandfather: (n° 8.)-then the issue of Richard and Anne Stiles, the parents of his paternal grandfather's father, (n° 9.)-and so on in the paternal grandfather's paternal line, or blood of Walter Stiles, in infinitum. In defect of these, the issue of William and Jane Smith, the parents of his paternal grandfather's mother: (n° 10.)— and so on in the paternal grandfather's maternal line, or blood

of Christian Smith, in infinitum : till both the *immediate bloods [*238] of George Stiles, the paternal grandfather, are spent. Then we must resort to the issue of Luke and Frances Kempe, the parents of John Stiles's paternal grandmother: (n° 11.)-then to the issue of Thomas and Sarah Kempe, the parents of his paternal grandmother's father: (n° 12.)--and so on in the paternal grandmother's paternal line, or blood of Luke Kempe, in infinitum.-In default of which we must call in the issue of Charles and Mary Holland, the parents of his paternal grandmother's mother: (n° 13.)-and so on in the paternal grandmother's maternal line, or blood of Frances Holland, in infinitum; till both the immediate bloods of Cecilia Kempe, the paternal grandmother are also spent.-Whereby the paternal blood of John Stiles entirely failing, recourse must then, and not before, be had to his maternal relations; or the blood of the Bakers, (no 14, 15, 16.) Willis's, (n° 17.) Thorpe's, (n° 18, 19.) and White's, (n° 20.) in the same regular successive order as in the paternal line.

The student should however be informed, that the class, n° 10, would be postponed to no 11, in consequence of the doctrine laid down, arguendo, by justice Manwoode, in the case of Clere and Brooke (s); from whence it is adopted by lord Bacon (t), and sir Matthew Hale (u): because, it is said, that all the female ancestors on the part of the father are equally worthy of blood; and in that case proximity shall prevail (35). And yet, notwithstanding these respectable authorities, the compiler of this table hath ventured (in point of theory, for the case never yet occurred in practice) (36) to give the preference to no 10 before n° 11; for the following

(r) See the table of descents annexed. (s) Plowd. 450.

(35) See observations on the case of Clere and Brooke, and on the commentator's objections to it, H. Chitty on Descents, 125 to 130. and the note post, 240.

(36) Mr. Cruise states that a case exactly in point arose on the Midland circuit in 1805;

(t) Elem. c. 1.

(u) H. C. L. 240. 244.

and was intended to have been argued in Westminster-hall, but was compromised. "Several eminent counsel were however consulted, among whom was serjeant Williams; and they were all of opinion that sir W. Blackstone's doc. trine was wrong." 3 Cru. Dig. 2 ed. 411. n.

reasons: 1. Because this point was not the principal question in the case of Clere and Brooke: but the law concerning it is delivered obiter only, and in the course of argument by justice Manwoode; though afterwards said to be confirmed by the three other justices in separate, extrajudicial conferences with the reporter. 2. Because the chief justice, sir James Dyer, in reporting the resolution of the court in what seems to be the same case (w), takes no notice of this doctrine. 3. Because it appears from Plowden's report that very many gentlemen of the law were dis[*239] satisfied *with this position of justice Manwoode; since the blood of n° 10 was derived to the purchasor through a greater number of males than the blood of n° 11, and was therefore in their opinion the more worthy of the two. 4. Because the position itself destroys the otherwise entire and regular symmetry of our legal course of descents, as is manifest by inspecting the table; wherein n° 16, which is analogous in the maternal line to no 10 in the paternal, is preferred to n° 18, which is analogous to n° 11, upon the authority of the eighth rule laid down by Hale himself: and it destroys also that constant preference of the male stocks in the law of inheritance, for which an additional reason is before (x) given, besides the mere dignity of blood. 5. Because it introduces all that uncertainty and contradiction, which is pointed out by that ingenious author (y); and establishes a collateral doctrine (viz. the preference of n° 11 to no 10) seemingly, though perhaps not strictly, incompatible with the principal point resolved in the case of Clere and Brooke, viz. the preference of no 11 to n° 14. And, though that learned writer proposes to rescind the principal point then resolved, in order to clear this difficulty; it is apprehended, that the difficulty may be better cleared, by rejecting the collateral doctrine, which was never yet resolved at all. 6. Because the reason that is given for this doctrine by lord Bacon (viz. that in any degree, paramount the first, the law respecteth proximity, and not dignity of blood) is directly contrary to many instances given by Plowden and Hale, and every other writer on the law of descents. 7. Because this position seems to contradict the allowed doctrine of sir Edward Coke (2); who lays it down (under different names) that the blood of the Kempes (alias Sandies) shall not inherit till the blood of the Stiles's (alias Fairfields) fail. Now the blood of the Stiles's does certainly not fail, till both no 9 and no 10 are extinct. Wherefore no 11 (being the blood of the Kempes) ought not to inherit till then. 8. Because in the case, Mich. 12 Edw. IV. 14 (a), (much relied on in that of Clere and Brooke) it is laid down as a rule, that cestuy, que doit inheriter al pere, doit inheriter al fils (b)." And so sir Matthew Hale (c) says, "that though the law excludes the father from inheriting, yet it substitutes and directs the descent as it should have been had the father inherited (37)." Now it is settled, by the resolution of [*240] Clere *and Brooke, that n° 10 should have inherited before n° 11 to Geoffrey Stiles, the father, had he been the person last seised; and therefore n° 10 ought also to be preferred in inheriting to John Stiles, the son.