John Doe, on the Demise of John Birtwhistle, - Plaintiff in Error; Agnes Vardill, - Defendant in Error
| Jurisdiction | England & Wales |
| Judgment Date | 10 August 1840 |
| Date | 10 August 1840 |
| Court | Court of the King's Bench |
English Reports Citation: 5 E.R. 1207
COURT OF KING'S BENCH.
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 see In 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, Conft. of Laws, 2nd. ed. 505-507.
[32] ENGLAND. couet of king's bench. john doe, on the demise of john birtwhistle,-Plainti/ (in Error); agnes vardill,-Defendant (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. Birtiohistle v. Vardill, 2 Scott, N. R. 828; 6 Bing. N. C. 385 ; 5 B. & C. 438 ; 5 Eul. Cas. 748. Discussed in Skottowe 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 Ch. D. 638 ; Escallier v. Escallier, 1885, 10 A. C. 317 ; In re Greys Trusts, [1892] 3 Ch. 88. Westlake, Priv. Int. Law, 3d ed. 199, 200; Dicey, Con ft. 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 from 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, domiciled 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 Birtwhistle 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 dav of 1207 IX BUGS N. S. BIKTWHISTLE V. VARDILL [1834] May, 1805, the said Alexander Birtwhistle and Mary Purdie were married in Scotland, according to the laws of Scotland. On the 5th of February, 1810, Alexander Birtwhistle, the father of the said John 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 [33] Scotland, served heir to the said lands and tenements of the said Alexander Birtwhistle, and now holds and enjoys the same in his own right, he, the said John Birtwhistle, having, from the time of his birth, hitherto dwelt and remained in Scotland, and been domiciled there. 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 laws of Scotland with children born after the marriage for the purpose of taking land, and every other purpose. After a judgment for the defendant upon a writ of error in Parliament, the House of Lords proposed the following question to the Judges :-A. went from England to Scotland, and resided and was domiciled there, and so continued for many years till the time of his death. A. cohabited with M., an unmarried woman, " during the whole period of his residence in Scotland, and had by her a " son B. who was born in Scotland. Several years after the birth of B., " who was the only son, A. and M. were married in Scotland, according " to the laws of that country. By the laws of Scotland, if the marriage " of the mother of a child with the father of such child take place in Scotland, " such child born in Scotland before the marriage is equally legitimate " with children born after the marriage, for the purpose of taking land " and for every other purpose. A. died seised of real estate in England, " and intestate ; is B. entitled to such property as the heir of A. 1" To this question the Judges answered in the negative. If any error or deficiency in the statements of fact appears in the special verdict, whether a venire de novo may be awarded-Qucere. This case arose upon a bill filed in the Court of Chancery, in 1823, by Birtwhistle, Plaintiff, against Vardill, Defendant, stating his title, that the Defendant had entered upon the lands in dispute during the infancy of the Plaintiff, and received the rents and profits whereby she became liable to account as Guardian in socage, charging among other things, that the ancestor had died indebted in various specialties, and praying a receiver, an account of rents, etc., delivery of the title-deeds, etc., [34] and that the personal estate might be applied in payment of the specialty debts. Upon a motion for the receiver, and delivery of the deeds, the Lord Chancellor (Eldon) directed an action of ejectment, to be brought in the Court of King's Bench, and pressed upon the parties the necessity, in a case of such importance to the settlement of the law, that a special verdict should be taken, intimating a decisive purpose upon application by either of the parties, to direct a new trial if they came back to the Court of Chancery with a common verdict. Accordingly, the action was brought by the Plaintiff against the Defendant in error, and a special verdict taken. The case upon this special verdict was argued before the Court of King's Bench in 1826, when judgment was given for the Defendant. A writ of error was then brought in Parliament, and, the Judges attending upon summons, the case was argued by Brougham and Dr. Lushington for the Plaintiff in error, and by the Attorney-General and Courtenay for the Defendant in error. For the Plaintiff in error the reasons and argument were as follows :- The substantial question in issue is, whether the lessor of the Plaintiff is, or is not, entitled to the character and status of heir of his father, to the effect of inheriting a real estate, situate in England, as being, or not being, the lawful son of his said father. The lessor of the Plaintiff having been procreated and born in Scotland, the marriage of his parents having taken place there, and his father having been domiciled in Scotland, at the time of the memorialist's birth, at the marriage, and at his own death, the question necessary for determining [35] whether he is, or is not, the heir of his father, is, whether he was, or was not, at the death of his father, a son born to him ex justis nuptiis, in that country. 1208 BIRTWHISTLE V. VARDILL [1834] IX BUGH N. S. By the law of Scotland, as fully settled for centuries, there is no doubt that the lessor of the Plaintiff is a lawful son of his father, procreated and born ex justis nuptiis. This doctrine of the law of Scotland, which is found in the verdict and can be established by abundant authority, depends on the principle of legitimation per subse-quens matrimonium. But this circumstance in no respect alters or affects the question, as to the lessor of the Plaintiff's lawful status, as a man born in Scotland, the son of parents domiciled there. When the fact of the marriage of the parents is ascertained, the law takes no cognisance of the circumstance of a child having been born before or after the marriage, except in the single case of a legal impediment to their marriage having existed at the date of the procreation, so that they could not legally have been then married. The rule and principle of the law is thus laid down by the leading authority :-" The subsequent marriage by which this sort of legitimation is effected. " is, by a fiction of the law, considered to have been contracted when the child legiti-" mated was begotten; and consequently no children can be thus legitimated, but " those who are procreated of a mother, whom the father at the time of the procreation " might have lawfully married." The exception here stated manifestly confirms the rule as in other cases. And the principle is not, that the children are to be held legitimated by a positive law, although still taken [36] and held as persons not born in lawful wedlock; but that they are truly, and to all intents and purposes, persons born in lawful wedlock. By the law of Scotland, it is consent that makes marriage. The ceremonies prescribed and observed are but matter of order, and these, as well as any irregular, though effectual, declaration of marriage, do not constitute the marriage, but are merely the evidence of the consent by which it is constituted and may be proved. Building on this principle, the law which admits the legitimacy ol children born before the celebration of marriage, holds, that, by the procreation of the child, and the subsequent celebration of marriage taken together, there is evidence juris et de jure, which cannot be contradicted, that, at the moment of procreation, there was a mutual consent to marriage, whereby it was then constituted. The law of Scotland is matter of fact in the present case, and the fact ascertained is, that the lessor of the Plaintiff was and is the legitimate son of his father; that he was procreated, and born ex justis...
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Doe dem. Burtwhistle v Vardill
... ... doe dem. burtwhistle v. VARDILL. (Error from the Court of Exchequer Chamber.) Adg. 10, ... 1839, by the Attorney-General for the Plaintiff in-error, and by Dampier for the Defendant in ... ...