Statute Law Commission.—Testamentary Jurisdiction.

That the object of this Society is to maintain the rights and increase the usefulness of the Profession.

That this Society consists of solicitors pracOffences punishable on Summary Con- tising in the town of Birmingham.

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Testamentary Jurisdiction.-Marriage with a Deceased Wife's Sister.

1. That as all the other superior Judges of Bedlormie in the county of Linlithgow. The the kingdom are paid out of the Consolidated entail of that estate was made in the beginning Fund, it is inexpedient to create a distinction of the last century, in December, 1702, by and pay the Judge of this Court out of another Alexander Livingstone then of Bedlormie; fund. and the estate appeared to have descended in

3. That the same appeal ought to lie from the Judge of the Court of Probate as lies from a Vice-Chancellor, because it is not, your petitioners submit, desirable to prevent the suitor from resorting to that excellent and satisfactory Court of Appeal of the Lords Justices, which is so much less expensive than that of the House of Lords; and experience has conclusively shown that no Court acts with satisfaction to the Public unless it is immediately subject to a speedy and inexpensive appeal.

2. That inasmuch as all the Commissioners the order of succession pointed out by the enfor taking Oaths in the High Court of Chan- tail, and was last vested in the late Sir Thomas cery in England will be Commissioners for Livingstone, who was the greatgrandson of the taking Oaths in the new Court, and as there entailer. Sir Thomas died in April, 1853, withare now a very large number of such Commis-out issue. He had other brothers, all of whom sioners, and the Lord Chancellor has the power predeceased him; and of these brothers none of appointing an unlimited number, the ap- left issue except one-viz., Thurstanus Livingpointment of two special Commissioners at stone, the father of the party whose legitimacy high salaries is very undesirable. was now in question. Sir Thomas had also sisters, some of whom survived him, and the eldest was Mrs. Anne Livingstone, the other party in this case. It was not disputed that she was the sister-german of Sir Thomas, and that she was entitled to succeed to the estate of Bedlormie, in terms of the entail, failing heirs male; and, on the other hand, it was not disputed that her right must yield to that of any lawful son of Thurstanus Livingstone. But she denied that Alexander Livingstone, the party in this action, and the son of Thur4. That there are many instances where it stanus, was legitimate; and the competition would be a great hardship on an executor to regarding the estate of Bedlormie turned enprove a will within two months, and many tirely on the question of the legitimacy or illemore in which it would be utterly impossible; gitimacy of Alexander Livingstone. In order and there are, on the other hand, cases where to bring the question of his legitimacy directly parties interested in the estate should have the to issue, Mrs. Fenton raised against him the power to call upon an executor to prove or re-action of declarator of bastardy now before nounce within a fortnight, and your petitioners therefore submit that the time ought to be greatly extended.

5. That clause 88 should be entirely omitted. Your petitioners submit, that as the clause now stands, if a person died worth 20,000l. in land, but under 2007. in personal estate, the contentious jurisdiction in the case would be in the County Court; and your petitioners submit that the administration of small estates in the County Courts is effectually provided for by Clause 89.

the Court. That was a form of proceeding well known in the law of Scotland, and it was the most appropriate for trying such questions. The conclusions of that action were, that it ought to be found that the said Alexander Livingstone was a bastard, and that therefore he had no legal title to the estate. The statements on which these conclusions were rested were contained in the 8th and 9th articles of the condescendence, which stated that some time in or previous to 1808, Thurstanus Livingstone formed an incestuous connection with his 6. That the provision in clause 137, that any wife's sister, that of this connection Alexander surplus of the Testamentary Fee Fund Account Livingstone was born on the 13th June, 1809; may be paid into the exchequer, is very objec- and the pleas-in-law deduced from that statetionable, and that in lieu thereof, your petition- ment of the facts were, that the defender was ers submit, provision should be made, requir-not the lawful son of Thurstanus Livingstone, ing the Lord Chancellor to apply any such in respect that his father and mother were not surplus towards reducing the fees imposed by clause 125.

married persons; 2nd, that the defender was not the lawful son of Thurstanus Livingstone, in respect that he was the offspring of an unlawful and incestuous connection; 3rd, that the defender could not be entitled to succeed to the estate of Bedlormie, in respect that he was not, in terms of the entail, lawfully procreated of his father. Alexander Livingstone defended himself against that action.. The statements were substantially the same both in the action of declarator of bastardy and in the question of the competition, and Alexander Livingstone resisted the conclusions of the action of declarator against him, and alleged in point of fact that in August, 1808, his father and mother were regularly married in the parish of Hackney, county of Middlesex; that in June, 1809, in England also, he was born of that mar

Marriage with a Deceased Wife's Sister.

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riage; that at the time of his birth, and at the very ably on both sides. The question whetime of the marriage of his parents, and, in ther the marriage of a man with the sister of deed, as he said, from 1797 downwards, his his deceased wife was or was not, by the Law father was domiciled in England; that he him- of Scotland, illegal or incestuous, was not then self had always been resident and domiciled in made the subject of argument. The Court diEngland that the marriage was dissolved by rected, that, in the first place, the case should the death of his mother in 1832. He did not be argued on the assumption that such a maradmit that his mother was the sister of his riage between parties domiciled in Scotland father's first wife, and alleged as matter of fact would, according to the law of this country, be the law of England to be, that by the death of illegal by the Statute of 1567, c. 14 and 15, his mother it became incompetent to challenge and that the issue of the marriage would be the validity of his marriage or the legitimacy illegitimate; and that being so, the question of the offspring on the ground that she was came to be, whether, in the circumstances of the sister of the former wife of her husband; this particular case, the other defences pleaded and he alleged that he was legitimate accord- for Alexander Livingstone were sufficient to ing both to the Common Law and to the entitle him to a judgment in the action; and Statute Law. His pleas in law, apart from this was the question which they had now to certain preliminary pleas which were altered, determine. If the judgment of the Court were stated in this way:-Thurstanus Living- should be that the other defences pleaded for stone having been domiciled in England, the Alexander Livingstone were sufficient to envalidity of his marriage with the defendant's title him to a decision in his favour, then—the mother must be regulated according to the argument having proceeded on the assumption law of that country, and as according to that referred to-it would be unnecessary to hear law all question or inquiry respecting relation- any argument with regard to the question as ship between the first and second wives of to what the Law of Scotland would be in reThurstanus Livingstone was excluded, there- ference to marriage with a deceased wife's fore the marriage was lawful, and the law of sister, contracted under other circumstances. Scotland must hold the defender legitimate; If, however, the judgment of the Court should that the domicile being in England, legitimacy be, that there were not materials sufficient for must be determined by the law of that country; the decision of the case without going into the and that, even if the case were held to depend on the law of Scotland, the objection was irrelevant, in respect that the successive marriage of sisters was not unlawful by the law of Scotland. The statements and pleas in the competition, though expressed in different words, were substantially to the same effect as in the action of declarator. The parties thus joined issue on the question of the legitimacy of Alexander Livingstone, and a proof was allowed to both parties before answer. That proof having been concluded, the parties were heard before the Lord Ordinary, Lord Ardmillan, who, on the 15th January, prononnced an interlocutor in the case. The interlocutor in the action of declarator, which was the leading action, as they had joined issue on the question of legitimacy, was thus expressed "The Lord Ordinary having heard counsel for the parties, and made avizandum with the proof, productions, and whole process, and considered the same-for the reasons explained in the annexed note-Finds, that the defender was born in England, the offspring of a marriage celebrated in England between parties domiciled in England at the date, and during the subsistence, of the marriage: Finds as matter of fact, that the defender is legitimate according to the law of England: Finds, that his legitimacy ought to be recognised by the Scottish Court: Therefore assoilzies the defender from the conclusions of this action of declarator of bastardy, and decerns." The interlocutor in the other action proceeded in respect of that finding to sustain the claim of Alexander Livingstone. Against these interlocutors Mrs. Fenton reclaimed; and the case was argued before the Court very fully and

question as to the illegal or criminal character of the connection in reference to the Law of Scotland, then they must hear the parties fully upon that question. He (the Lord President) was of opinion that there were now before them materials sufficient for the decision of the question raised as to the legitimacy of Alexander Livingstone, the defender in the action of declarator of bastardy, and he would state the grounds on which he had arrived at that conclusion. In the first place, he thought it was sufficient to have established, as matter of fact, that Alexander Livingstone was born in England in June, 1809-that his father and mother had been regularly married, in facie ecclesiæ, in August, 1808-that his father had been previously married, but that his first wife had died in April, 1806. These facts, he thought, were scarcely, if at all, disputed in the argument which took place before the Court, and these facts necessarily negatived the plea of illegitimacy in so far as it rested on the allegation that Alexander Livingstone was born during the lifetime of his father's first wife, or on the allegation that his father and mother were not married at all. But they did not dispose of the plea of illegitimacy in so far as it rested on the allegation that the second wife was the sister of the first wife, which really was the point of the case relied upon by the counsel for Mrs. Fenton, and was truly the question for decision as the case was now presented to the Court. In the next place, Alexander Livingstone having been born in England, of parents who were regularly married there, the question had been raised upon the evidence as to the domicile of Thurstanus Livingstone, the father of Alexander, at various periods which had been

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Marriage with a Deceased Wife's Sister.

referred to, and more particularly at the period | first and second wives of Thurstanus were of his second marriage and subsequently. He sisters; and without expressing any opinion at (the Lord President) had examined, with all present on the matter of fact, he must say that the care in his power, the evidence bearing on the evidence was at least sufficient to show that that question. It was voluminous, and he did the allegation that they were sisters, was not a not intend to go over it in detail. The import mere device to obtain for the Court a judgment of it was, that Thurstanus was born in Scot-on that part of the case. The contention on land, the precise date of his birth not being that point was plainly a bona fide contention. regularly proved. But it was left to be inferred The contention was, that by the Law of Engfrom various official documents in which his land Alexander Livingstone was not lawfully age was stated; but these were not altogether procreated of the marriage between his parents, consistent. It appeared, however, on the and that, therefore, he was not legitimate; but whole, that he was born about the year 1770 that in England, by the rule of procedure inor 1772; he left Scotland and went to sea at quiry into the question was excluded, which the age of 14, as an apprentice to a vessel be- rule of procedure did not apply to the Court longing to the port of London. That must in Scotland. By that rule of procedure, such have been about the year 1784 or 1786. After questions could only be inquired into in the being for some years in the merchant service, Ecclesiastical Court, and that inquiry could he appeared to have gone into the Royal Navy, only take place during the subsistence of the where he met with an injury in the arm, and marriage; the Ecclesiastical Courts were rewas discharged in 1797. In October of that strained or precluded from inquiring after the year, he was married at St. Matthews, Bethnal dissolution of the marriage by the death of Green, in which parish he appeared to have either of the parties. However arrived at, the been then residing. From that time he ap- legal result was, that in the case which here peared to have resided in London or the neigh- occurred-viz., the case of no challenge anbourhood when not following his occupation of terior to the dissolution of the marriage in a mariner. His first wife lived till 1806, her 1832, the marriage was unchallengeable on the residence was always in London or the neigh-ground alleged, and the offspring were legitibourhood, and he lived with her when not away mate. Whatever might be the theory in regard upon voyages, and they occupied various to the law, that was the legal result, as to the houses, which they rented. In 1808 he mar- status of this party. The law held children of ried his second wife, after which he was fre- such a marriage to be legitimate-as much so quently absent at sea, and part of the time he as any other children; and the last answer was in the navy; but when on shore he lived given by the very eminent counsel who was with his wife in London and the neighbour- examined for Mrs. Fenton was quite explicit on hood, in houses rented by them in the several that point. The evidence on the part of the places mentioned in the record, until her death very learned counsel examined on the part of in 1832; and he continued to reside in London Alexander Livingstone was quite explicit. Here, or its neighbourhood till his own death in then, was an Englishman born in wedlock, le1839. It did not appear that, from the time gitimate in his own country; he had no conhe left Scotland, in or about 1784 or 1786, he nexion with Scotland or its laws, except that he ever returned to his native country. His sister, claimed to be heir to a Scotch estate, for he Mrs. Kirsop, stated that he never returned, (the Lord President) held the original domicile and he had not found in the evidence any trace of his father to have been lost and to be of no of his having returned. The evidence showed more consequence in the case than that of his that he did not intend to return unless he suc-grandfather. They were asked to pronounce, ceeded to the Scotch estate, and that long be- in regard to that Englishman, a declarator of fore his second marriage in 1808, he had his domicile in England, and that his English domicile continued till his death. In every point of view, then, Alexander Livingstone was an Englishman. He was born in England, and had lived nowhere else, as far as the evidence went. He was born of parties who were married in England, and had their domicile in England at the time of their marriage as well as at the time of his birth. Now, he being an Englishman in all respects under these circumstances, the next point for consideration was, whether Alexander Livingstone was or was not legitimate in his own country-viz., England. That question must be decided by the Law of England, and they could only take that law from the evidence before them and the authorities to which they had been referred. It did not appear to him that there was much conflict of authority on that point. The question was raised on the assumption or allegation that the

bastardy, and by reason of that bastardy, he would be incapable of succeeding to the Scotch estate. That was an appeal to the Law of Scotland, and the Court must now give_the answer. In his opinion the answer of the Law of Scotland to this appeal was that it recognised the status of legitimacy which belonged to Alexander Livingstone. It was argued that Alexander was legitimate in England only because inquiry into the facts connected with his birth was excluded by a rule which, though applicable to the Courts of that country, did not exist in Scotland, and could not, therefore, be regarded here. This was an ingenious way of putting the case, but he did not think it was satisfactory. Alexander Livingstone was legitimate, and must continue to be so according to the law of that country in which his parents had their domicile, and were married, and in which he was born. Whatever might be said of the voidability of these marriages, they had

Marriage with a Deceased Wife's Sister.-Evils of pretended Assurance Offices.

OFFICES.

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I HOPE you will draw attention, when,> 1 columns permit, to the vast increase of assurance and LOAN offices, got up, I have some reason to fear, by members of the Profession with a view to create business. Too many are traps to take in the unwary, the pretence being to advance money on the policy, or two securities joining the assured, the object being to create costs.

at least this important legal quality and effect, Counsel for the Defender-The Lord Advothat if allowed to run their course without cate and Messrs. Hamilton Pyper, and G. H. challenge they gave to the children a status of Pattison. Mr. James Somerville, agent; Mr. legitimacy of which they could never afterwards Leadbitter, London agent.-From the Daily be deprived. It was also argued with great Scotsman, May 28. force, that such marriages were by the Law of Scotland illegal, and even incestuous, and that they should not abstain from inquiry into the EVILS OF PRETENDED ASSURANCE facts; that if the parents had resorted to this country, the laws of this country would not have tolerated their cohabitation, but would have subjected them to a criminal prosecution, and that to recognise as legitimate the offspring of a connexion which could be proved to have been of that character, would be in effect to recognise such marriages and such criminality. That part of the argument, though forcibly put, was not to his mind conclusive. The question which they were really trying was the question of the status of the defender, Alexander LivingI have now before me one of the printed stone, who had not violated the Laws of Scot- forms of the security taken by a recently estaland. It did not follow because the fruits of blished office of a high sounding name, not in such a connexion, if in Scotland, would not Civitate Londinensis, in which, although the have been legitimate, that they were to deny money borrowed on the policy is repayable by the status of legitimacy which the defender instalments, if the interest is over-due 24 hours possessed in his own country. The recogni- the entire principal becomes payable, and protion of that status did not necessarily, or in any ceedings may be, and perhaps are, instantly degree, import an approval of the connexion of taken against all parties to recover the whole, which he was the offspring. To pronounce a with costs of immense magnitude, and separate declaratory of bastardy in regard to one who, writs perhaps issued for its recovery. And not in England, his own country, was not a bastard, only are the parties exposed to such abomibut, on the contrary, was in full possession of nable proceedings, but the security declares in the entire status of lawful children, would be to introduce something which was uot forced express terms that the policy, on which several upon them by any principle of the Law of premiums of course had been paid, would be forfeited. Scotland that he knew of. He gave this opinion irrespective of the Act of 1835. It was A case came within my knowledge a few not necessary to call it into action in this case, months ago, wherein a gentleman of high refor the marriage was dissolved before that date. spectability was so indiscreet as to borrow moAt the same time, the Act had its application, ney of one of these offices. He was sued on and gave power and strength to the defendant a default having been made, and a fi. fa. issued in this action, because it declared such mar- and his furniture and effects seized by the riages not to be questionable by a proceeding Sheriff of Surrey, and bills placarded for the by which they were formerly questionable. sale to commence on a day named, at 12 Such being his views on this case, he thought o'clock; but fortunately a friend stepped in the Court should adhere to the interlocutory of and saved him and his family from ruin withthe Lord Ordinary in regard to the finding of in an hour of the period fixed; but he has that interlocutory. But Lord Ardmillan had almost ever since been labouring under an introduced an expression which made it neces- alarming and distressing illness, from which sary for him to make one remark. The inter- hopes are at length entertained of his recovery. locutory stated that the Lord Ordinary gave Perhaps a parliamentary inquiry, or a motion his finding for reasons stated in the note. for a return of the transactions of those wouldNow, while he (the Lord President) concurred be insurance and loan offices might lead to a in many of the reasons in that very elaborate beneficial result. A parliamentary and learned note, there were some on which lation to loan societies states that theper in rethe Court had heard no argument, and which of summonses issued against defaulters to rethey had purposely excluded from considera- cover the amounts due from them to be tion in this case. To adopt these words would 10,046; the number of distress warrants 615; be to adopt all the reasons stated in the note, the amount sued for 18,400l.; and the amount which he could not do without more argument; recovered 11,9061.; the costs incurred by soand no more argument being necessary, he cieties 2,054l.: and the amount of costs paid thought the Court should delete these words, by borrowers or sureties 1,3171. The above confirming the interlocutor otherwise. comprises the year 1855 only. From it some idea may be formed of the iniquity and expenses in insurance societies connected with advances on policies.

The other Judges concurred.

The Lord Ordinary's interlocutor was thereford affirmed, with costs.

Counsel for the Pursuer The Dean of Faculty and Mr. Patrick Fraser. Mr. T. H. Ferrer, agent.

AN ATTORNEY.