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![handle is hein.slavery/ssactsengr0852 and id is 1 raw text is: II CLARK & FINNELLY. BIRTWHISTLE V. VARDILL [1835]
[571] WRIT OF ERROR
FROM THE COURT OF KING'S BENCH.
DOE on the Demise of JOHN BIRTWHISTLE,-PlaintifJ in Error;
AGNES VARDILL,-Defendant in Error.
[Mews' Dig. vii. 604, viii. 231,259, 160. S.C. 9 Bli. N.S. 32; 7 C1. and F. 895; West,
500 4 Jur. 1076; sub norn. Doe d. Birtwlistle v. Vardill; 1 Scott, N. R. 828;
6 Bing. N. C. 385; 5 B. and C. 438; 5 Rul. Cas. 748. Discussed in S'kottowe v.
Young, 1871; L. R. 11 Eq. 477: In re Goodman's Trusts, 1881, 17 Ch. D. 271.
And see In re Andros, 1883, 24 C. D. 638; Escallier v. Escallier, 1885, 10 A. C.
317; In re Grey's Trusts (1892), 3 Ch. 88; Westlake, Priv. Int. Law, 3rd Ed.
199, 200; and Dicey, Confi. of Laws, 2nd Ed. 505-507.]
Qu. whether a child, born in Scotland, of parents domiciled there, who at the
time of his birth were not married, but who afterwards intermarried in Scot-
land, (neither having in the meantime married any other person,) can take
as heir lands of his father in England.
In Hilary term, 1825, the Plaintiff in error brought an action of trespass and
ejectment against the Defendant in error, for one undivided third part of lands
situate in several parishes in Yorkshire, and the same was tried at the Yorkshire
spring assizes of that year, when the jury found a special verdict; which was in
substance, that William Birtwhistle, being seised in his lifetime, in his demesne
as of fee, of and in one undivided third part of and in the premises .mentioned in
the declaration, died so seised on the 12th of May 1819, without leaving any issue
of his body; that all the brothers of the said Williaim Birtwhistle had died, in his
life-time, unmarried and without issue, except Alexander, who married and had
issue in the manner hereinafter mentioned: That the said Alexander Birtwhistle
went from England to, Scotland in the year 1790, and becamne domiciled there, and
dwelt there until the time of his death; that one Mary Purdie was also a person
dwelling and domiciled in Scotland during the whole time that the said Alexander
Birtwhistle was domiciled there, and the said Alexander Birtwhistle did there
cohabit with the said Mary [572] Purdie, and did beget upon her the said John
Birtwhistle (the Plaintiff in error), who was their only son, tnd was born in Scot-
land on the 15tb of May 1799; that on the 6th of May 1805 the said Alexander Birt-
whistle and Mary Purdie were married in Scotland, according to the laws of Scot-
land, and on the 5th of February 1810 the said Alexander Birtwhistle died in
Scotland, seised to. him and his heirs of divers lands and tenements there situate,
leaving the said John Birtwhistle him surviving, who, after the death of his father,
was duly, according to the law of Scotland, served heir to, the said lands and tene-
ments of the said Alexander Birtwhistle, and now holds and enjoys the sane in his
own right, having from the time of his birth hitherto. remained in Scotland, and
been domiciled there; that if a. marriage of the mother of a child with the father of
such child takes place in Scotland, such child, born in Scotland before the marriage,
is equally legitimate by the law of Scotland with children born after the marriage,
for the purpose of taking land, and every other purpose, etc.* The question was,
whether he could, as heir of his father, take the lands in England The case was
argued by Mr. (now Lord Chief Justice) Tindal, for the Plaintiff, and by Mr.
Courtenay for the Defendant; and the Court, consisting Of Lord Chief Justice
Abbott (afterwards Lord Tenterden), and Justices Bayley, Holroyd and Littledale,
gave judgment for the Defendant.
[573] The present writ of error was then brought, and the matter was argued in
* It was admitted on the argument in the Court below, that the Scotch law was
not correctly stated in the case, but should have had subjoined to it this qualification :
if begotten and born while such father and mother respectively were unmarried,
and if they respectively continued unmarried from the time when such child was
begotten until their intermarriage. See 5 Barn. and Cress. 438 et seg.
1270](ViewImageLocal?handle=hein.slavery/ssactsengr0852&div=1&collection=&method=preview&ext=.png&size=3)