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

TIPPERARY IN 1850.

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 TIIB OFFSPRING OF A
DACEASED WIFE'S SISTER.

On Tuesday the Court of Secision 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 Sootlaud, with
regard to the legitimacy of the offspring of mar
riao with a deceased wife's sister, according to
English and Scotch law respectively. On the
15tu of January last the Lord Ordinary, in the
Outer House, passed an interlocutor sustaining
the claim of Alexander LiviugAtone, who is alleged
to have been born in the connexion referred to, as
the legitimate and nearest heir to the late Admi-
ral Sir Thomas Liviugstoue, of Bedlormie, and hig
lordship stated in his note various grounds for
holding that, according to the true interpre ation
of the law of Scotland, marriage with a deceased
wife's sister was not unlawful to the effect of ren-
dering the offspring of the connexion necessary il-
legitimate. Lord Ardmillan's findings were as fol-
lows :---

" 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 recoguised by the Scot-
tish Court. Therefore assoilzies 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 PRESIDENT, 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 Livingstone, the
defender in the action of declarator of bastardy,
without entering into the question he held that in
every point of view Alexander Livingstone was an
Englishman. He wall borne in England, and had
lived nowhere else, as far as the evidence went.
He was born of parties who were married in Eng-
land 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 en 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—viz., the case of no challenge anterior to
the dissolution of the marriage in 1832—the mar-
riage was unchallengeable 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 Englishman 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 his father
to have been lost, and to be of no more consequence
in the case than tnat of his grandfather. They
ware asked to pronounce, in regard to that Eng-
lishman, 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-
jected them to a criminal prosecution, and th-at to
reoogtisev legitimate the offopriug of a ofounozioa