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![handle is hein.slavery/ssactsengr0806 and id is 1 raw text is: BIRTWHISTLE V. VARDILL [1834]
volved in the case; it was by no means a pure question of law. Deciding the question
of law which was involved in it might have influenced the judgment in one [31]
way; deciding the other way would not have touched the judgment at all. It was
agreed by the counsel on both sides in the Court of Chancery, according to my recollec-
tion, and according to a note which I have since looked into, that it was not a fit case
to be sent to a court of law; and if it was not a fit case to be sent to a court of law,
your Lordships will not think it a case in which the judgment ought to be delayed
for the opinion of the judges. But be that as it may, the point did not appear to
me, in the event of its being heard on the mere law said to be involved in this case,
to admit of any reasonable or fair doubt. I have carefully considered this case :
I considered it, at the time of the argument, and I advised your Lordships to put off
deciding it in consequence of the absence of my noble and learned friend Lord Wynford.
It has stood over one whole session, and to the end of this session, and it is hardly fair
to the parties to put it off longer. With the great uncertainty of the attendance,
from the state of his health, of my noble and learned friend, and the improbability
of his being able to attend next session, I think I should not discharge my duty if
I did not advise your Lordships to affirm that decision. I do not recommend your
Lordships to give any costs of the appeal, because the noble and learned Lord ex-
pressed doubt whether it was a case for the opinion of the judges.
Judgment affirmed.
[32] ENGLAND.
COURT OF KING'S BENCH.
JOHN DOE, on the demise of JOHN BIRTWHISTLE,-1?laintiff (in Error); AGNES
VARDILL,-Dcfendant (in Error) [1834].
[Mews' Dig. vii. 604 ; viii. 231, 259, 260. S.C. 2 Cl. & F. 571 ; 7 Cl. & F. 895; West,
500 ; 4 Jur. 1076 ; and, sub nom. Doe d. Birtwhistle v. Vardill, 2 Scott, N. R.
828; 6 Bing. N. C. 385 ; 5 B. & C. 438 ; 5 Rul. Cas. 748. Discussed in Skottowe
v. Young, 1871, L. R. 11 Eq. 477 ; In re Goodman's Trusts, 1881, 17 Ch. D.
271 ; and seeln re Andros, 1883, 24 Ch. D. 638; Escallier v. Escallier, 1885,
10 A. C. 317 ; In re Grey's Trusts, [1892] 3 Ch. 88. Westlake, Priv. Int. Law,
3d ed. 199, 200; Dicey, Confl. of Laws, 2nd ed. 505-507.]
Upon a special verdict in an action of ejectment, the following facts were found
-William Birtwhistle being seised in his demesne as of fee, of and in one
undivided third part, of and in the premises mentioned in the declaration,
on the 12th of May, 1819, died so seised without leaving any issue of his
body. All the brothers of the said William Birtwhistle had died in his
lifetime, and they all died unmarried, and without issue, except Alexander
one of the brothers of the said William, who married and had issue in
the manner and at the time hereinafter particularly mentioned. The
said Alexander Birtwhistle went front England into Scotland in the year
1790, and became and was domiciled there, and there remained and dwelt
so domiciled until the time of his death as hereinafter mentioned. One
Mary Purdie was also a person dwelling and remaining in Scotland, domi-
ciled there during the whole of the period of the time in which Alexander
Birtwhistle was so domiciled there as aforesaid. Alexander Birtwhistle
and Mary Purdie being so domiciled in Scotland, the said Alexander Birt-
whistle did cohabit with the said Mary Purdie, and did beget upon
the said Mary Purdie (the plaintiff) John Birtwhistle, which said John
Birtwhistle was the only son of the said Alexander Birtwhistle and of the
said Mary Purdie, and was born in Scotland on the 15th May, 1799.' After
the birth of the said John Birtwhistle, that is to say, on the 6th day of
1207
IX BLIGHE N. S.](ViewImageLocal?handle=hein.slavery/ssactsengr0806&div=1&collection=&method=preview&ext=.png&size=3)