The Sun.
London, England, 1856-05-29 00:00:00

THE WEATHER.

Should there be any further continuance of the
present unsettled weather, the cry will soon be
general against the superabundance of rain. A
fortnight• ado extreme drought formed the subject
of agricultural complaint, but it is now in the op-
posite extreme, and certainly since Sunday last
there seems to be some foundation for the fears of
the croakers.

IT PISRARY IN 1856.
A local journal states that there is not, up to the
present a single prisoner, in Clonmel gaol for trial
at the coming summer assizes. ~In fact Tipperary,
north and south, is becoming quite a model
county.

LEGITIMACY OF TFIE OFFSPRING OF A
DECEASED 'WIFE'S SISTER.

On Tuesday the Court of Session in Scotland
gave judgment in the. case of "Fenton v. 'Living-
stone," which has been the subject of so much legal
controversy both in England and in Scotland, with
regard to the legitimacy' of the offspring of mar-
riage with a deceased wife's sister, according to
English and Scotch law respecti4ll; On the
15th 'of January last the Lord Ordinary, in the
Outer House, passed an interlocutor sustaining
the.claini of Alexander Livingstone, who is alleged
to have been born in the connexion referrecl to, as
the legitimate and nearest heir to the late Admi-
ral Sir Thomas Livingstone, of Bedlormie, and his
lordship ,stated in his note various grounds for
holding that, according to the true interpretation
of the law of Scotland, marriage with a deceased
wife's sister was not unlawful to the effect of ren-

Bering tlie offspring of the connexion necessary il-
legitimate. Lord Ardmillan's findings were as fol-

Lowg'

"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 legiti-
mate according to the law of England. Finds that
his legitimacy_ ought to be recognised by the Scot-

_
tish Court. Therefore assoilzie; the defender from
the conclusions of this action of declarator of bas-
tardy and decerns."
The decision was reclaimed to the First Division
of the Inner House, 'before which the case was
heard before the rising for the spring vacation.
The LORD .PRESIUNT, in pronouncing the deci-
sion of the Court affirming the interlocutor of
Lord Ardmillan, said that though it had formed
the subject .of discussion in the Outer House the
question whether the marriage of a man with the
sister of his deceased wife was or was not, by the
law of Scotland, illegal or incestuous, had not been
then made the subject of argument before their
Lordships. He (the Lord President) was of opi-
nion that there were now before them materials
sufficient for the decision of the question raised as
to the legitimacy of Alexander Livings one, the
defender in the action of declarator of bastardy,
withont entering into the question he held that in
every point of view Alexander Livingstone was an
Raglishman. He was borne in England, and had
lived nowhere else, as far as, the evidence went.
He was born of parties who Were married in Eng-
lancl,and had their domicile in England at the time
of their marriage as well as at the time of his birth.
The next point for consideration was, therefore,
whether Alexander Livingstone was or was not
legitimate in his own country. That question
was raised on the assumption or allegation that
the first and second wives of Thurstanus were
sisters. The contention was that' by the law of
England Alexander Livingstone was not lawfully
procreated of the marriage between his parents,
and that therefore he was not legitimate ; 'but that
in England by 'the rule of procedure, inquiry into
the question was excluded, which rule of procedure
did. not apply to the Court in Scotland. By that
rule of procedure such questions could only be in-
quired 'into in the Ecclesiastical Court, and that
inquiry could only take place during the subsis-
tence of the marriage. The Ecclesiastical Courts
were restrained or precluded from inquiring after
"the dissolution of the marriage by the death of
either of the parties: However arrived at, the
legal result was that in the case- which here oc-
curred-a-viz., the case of no challenge anterior to
the dissolution of the marriage in 1832—the mar-
riage was unchallongeable on the ground alleged,
and the offspring were legitimate. Whatever
might be the theory in regard to the law, that was
the legal result as to the status of this party. The
law held children of such a marriage to be legiti-
mate—as much so as any other children. Here,
then, was an Euglishman born in wedlock, legiti-
mate in his own country; he had no connexion
-with Scotland or its law, except that he claimed
to be heir to a Scotch estate, for he (the Lord
President) held the original -domicile of lig father
to have been lost, and to be of no more consequenae
in the case than tnat of his grandfather. They
were asked to pronounce, in regard to that Eng-
lishmad, a declarator of 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. Whatever might be said 'of the
voidability of these marriages, they had at least
this important legal quality and effect, that if al-
lowed to 'run their course without challenge they
gave to the children a status of legitimacy of which
they could never afterwards be deprived. It was
also argued with great force that such marriages
were by the law of Scotland illegal, and even inces-
tuous, and that they should not abstain from inquiry
into the fact that if the parents had resorted to this
country the laws of this country would not have
tolerated their cohabitation, but would have sub.
jetted them to a criminal prosecution, and that to
recognise-as-legitimate the-offspring-eta connexion