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![handle is hein.slavery/ssactsengr0907 and id is 1 raw text is: VII CLARK& FINELLY. BIRTWHISTLE V. VARDILL [1839-40]
[895] JOHN BIRTWHISTLE,-Plainbif in Error.: AGNES VARDILL,-Defendant
in, Error [July 1, 3, 1839; August 10, 1840].
[See notes to this case, 2 Cl. and F. 571.]
A child born in Scotland, of parents domiciled there, who at the time of his birth
were not married, but who afterwards intermarried in Scotland (there being
no lawful impediment to their marriage, either at. the time of the birth or
afterwards), though legitimate by the law of Scotland, cannot take, as heir,
lands of his father in England.
The facts of this case, the opinions of the Judges as delivered by Lord Chief Baron
Alexander, and the judicial observations of Lords Brougham and Lyndhurs, pro-
nounced in the session of 1835, have been already fully reported.* No judgment
was given when those observations were so pronounced; but, on account of the diffi-
culty and -novelty of the case, it was ordered to be re-argued in the next session, by
one counsel on a side. On the 1st of July 1839, the Attorney-general appeared to
argue the case on the part of the Plaintiff in Error: Mr. Dampier was on the other
side.
This second argument took place before Lord Chief Justice Tindal, Justices
Vaughan, Bosanquet, Patteson, Williams, Coleridge, Coltman a-ad Maule, and Barons
Parke and Gurney.
[896] The Attorney-general (Sir J. Campbell), for the Plaintiff in Error :-But
for the opinion of the Court of King's Bench given in this case, it would be deemed
perfeqtly clear that a party legitimate at the place of his birth, was
legitimate- all over the world. But it is now said, that though a man
may be the eldest legitimate son, he is not the heir to his father with
respect to his father's lands situated in England. This restriction of an
eldest son's right is totally inconsistent with th6 general principle of law relating to
the distribution of property. According to this restriction, as admirably explained
and its inconveniences illustrated by Lord Brougham in his observations in 1835,
which were fully assented to by Lord Lyndhurst, a person may be legitimate for all
intents and purposes in Scotland, but if his parents come to reside in England, and
axe possessed of land here, he cannot succeed to the possession of that land, but will
be held illegitimate, and the land will pass into another family. There is great reason
to doubt whether there is any such distinction between real and personal property.
Now it is admitted that a person recognised as legitimate by the law of Scotland,
would be the next of kin, and would succeed as such to personal estate here: why,
then, cannot he be the heir to the lands of the deceased? Brodie v. Ba'rry (2 Yes. and
B. 127) will be relied on by the Defendants in Error. There Sir W. Grant held that
the law of real property must be taken from the country where the land lies; and he
zeferTed to Balfour v. Scott (6 Brow. Parl Cas. 550), and Drummond v. Drurmond
(Brow. Parl. Cas. 601), where a similar rule had been laid down in this House. But
those cases do not affect [897] the present. As a general proposition, it is admitted
that the law of the place where the land lies must govern its descent. But that general
proposition is modified by the effect of other propositions equally general, and entitled
in the particular case to overrule the former. The most important of these is, that the
law of the place of birth must determine the status of the individual, and that the
status thus given is recognised by the laws of all other countries. Conty du Quesnoi's
case.-[Lord Brougham: As, in Ilderton v. Ilderton (2 Hen Bl. 145), it was held that
the right of the widow to dower was to be ascertained by the jaw of the country where
the marriage took place, as it was that law which gave her or not the character of
lawful wife.]--Exactiy so. Lord Tenterden seemed to think that the question de-
pended on the law of domicile; but it is submitted that the law of the place of the
nativity is that which must govern the decision of the question. The Judges here
seem to have taken alarm, lest, by a contrary decision to that which they have given,
* Ante, Vol. II. p. 571 et seq. At p. 600 of that volume will be found a list of
corrigenda in the report of Lord Brougham's observations. The pages containing
those observations were printed before his Lordship had an opportunity of seeing
them: he afterwards desired the corrigenda in question to be made.
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