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the fact of the non-access of her fall, had any intercourse wilh her; husband, and that the conviction is for these facts are peculiarly and founded upon the evidence of the solely within her know: zuge. To wife alone. Whereas it is laid the extent of the aducrous inter. down), that an order of this kind course it is clear sh must be exacannot be made on the evidence of mincd. Does it, then, appear, the wife alone, but there must be that she was exam and beyond that? other evidencc of the non-access. The order is, it appears, 66 as well The next objection is, as to the upon the oath of the said Mary statute of the 6 Gco. II. cap. 31. Taylor as otherwise.” The words and the 19 of Eliz. The order is are not 16
as well upon the exafounded upon one of those statutes, mination of Mary Taylor upon and it is now made a question, oath as otherwise;" for then it ! whether this comes within would be open to the objection them; and next, that this is a legi. which has been made, and there timate child born within lawful weds would arise an inference that the lock, inasmuch as it appears that other evidence was not upon oath, the father returned within a fort. whereas here the inference is, that night before the birth of the child, both kinds of evidence were upon and it must, by law, he taken to be oath. The order does not distinhis child. As to the first objection, guish to what parts of the case does it appear to be founded on Mary Taylor spoke: but it apthc evidence of the wise only? The pears that other evidence was given ; cvidence of other persons ihan the for the words, " or otherwise," wife is required upon principles of must mean other proof, as in the general policy. For it would be case of the king v. Bedali. And if highly inconvenient, that a wife we find the wise to have been exa. should be examined at all in any mined with others, we will intend matter likely to produce dispules that she was not examined as to between man and wife, Ilowever, the proof of access, which cannot there is an exception as to this rule, legally be proved by her; but that that she may be examined or neces. she spoke to such facts as she might sity as to those facts which she well prove, and that the want of only can speak to. But as she can access was proved by other compe. only be examined in matters of tent testimony. Icre, it is to be necessity, now it is necessary to observed, that the words, 6 or shew by the evidence of the wife, otherwise," do not occur accidenwhether any person had that sort tally, and in one place only in the of illicit intercourse which laid a order, but are repeated. There is, foundation for the birth of this therefore, no foundation for the child. To that extent she might first objection. As to the second ob. he admitted as a' competent evi. jection, it in effect resolves itself dence to prove
the illicit inter into the third. For when it is course with the adulterer. Per. made a question, whether the sta. haps, also, she was competent to tutes apply to any cases but where prove that no other person than the children are not born in law ful the adulterer, on whom the arge matrimony, it resolves itself for the of maintenance of the child is to purpose into the question, whether
the child is born in lawful matrimo- was held to be a bastard. dy for the purpose of these acts, therefore, there arises a natural imand whether a child born in adul- possibility, from the circumstances tery is a child which these acts bad of his bad health, a bodily impossi. in contemplation as much as bas- bility, during the period of matritards under other circumstances? mony, which rendered access imposand this we think is the true con- sible, it has been held that the issue struction of these acts.
was illegitimate. Now there is no Then the question is, whether doubt thrown upon this case, either the return of the husband within any in the original text of Coke and limited time before the period of Littleton, 123, or in the notes gestation is expired, does or does where that subject is very ably pot cast upon him the character of treated by the gentleman to whom father of that cbild incontrovertibly, the public is indebted for the last according to the law of this coun. edition of that work. In addition try? This is an important question; to the improbability arising from and as there has been something bodily infirmity it is further stated, said about the novelty of some of
6 and because it is found that the the doctrines to be advanced, one said H. was born eleven days after would be extremely sorry, not to 40 weeks, which is the time usual and oneself warranted by ancient for women; and from this, that the authorities. Now in Roll's Abridge. said R. had not access to the said ment, 358, where the most ancient Beatrice for one month before his authorities from the Year-books are death, it is presumed that the said cited, it is stated in the text that, H. is a bastard.” The record then " by the law of the land, no man goes on to find for the plaintiff. It born after espousals can be a bas- therefore appears to be considered taril, unless for special matter." as material to go into evidence, This exception is engrafted upon
io shew the natural impossibility the rule, and the first special matter of his being the son of the husband'; is exactly what in fact occurs here, and in confirmation of this there where there is a naturalimpossibility is a nota bene, that the husband that the husband should be the fa- languished of a fever a long time ther of the issue. As where there before his death; so that not only is a natural impossibility from his the length of time, but a further being uoder the age which renders bodily impediment, was considered procreation possible, as where he is to be material.
A child being eight or nine years
old. And born in marriage is not sufficient to there is a case in the Year-books, render him legitimate, where any where the husband was only under material impossibility occurs from fourteen years of age.
But that which the presumption of legitimacy is not the only instance: There is may be repelled. the case of Foxcroft, 10 Edw. 1. taking no notice of the presumpwhere the first husband was ill a tion that marriage proves legitima month before his death, and had cy, " And this presumption shall no access to his wise, and after- always hold until the contrary is wards the child being born within proved; as, for instance, where the forty wecks and eleven days, it husband is proved not to haveconsor
Britton says, ted (concubuisse) for a given time with sumption that the husband is the his wife, to have been incapacitated father, will be infinitely strong, ud. by infirmity or other cause, or
less there is an evident and clear that he was in such ill health that impossibility that he is not. I he could not be the father, ut gene. therefore contend, that in addition rare non possit.”
to the cases put of impuberty and In another passage, he seems to infirmity, which last is rather an consider certain cases of improba- improbability than otherwise, we bility. I think, therefore, upon may repel the presumption of legiti. these authorities, that if a founda- macy by evidence of non-access tion is laid that there is a natural during the greater part of the actual impossibility arising from age, or period of gestation. As to the case from infirmity of health, or arising of the queen v. Murray, lord Hardlikewise from non-access that the hus. wicke repudiates the doctrine that baod should be parent of the child, the non-access must continue during then the illegitimacy of a child born the whole period, and gires no after espousals may be proved. If, countenance to it. Without, therether, any circumstances can be re- fore, disturbing any of the rules of sorted to for proof of impossibility, evidence upon this most important we may certainly refer to such a subject, and without weakening natural cause as will not embark any of the bonds of marriage, we into it any question of nice proba. think that the presumption that all bility, but which involves an abso. children born in marriage are legi. Jute impossibility of the husband timate, may be shewn to be contra. being the father. It is so in the pre- ry to fact. I do not mean in cases sent case. It may be said, that of marriage arising after a gestawe may be driven to nice proof of tion commenced, but as to children physical improbability. But that born after non-access.—The order never need be so; because the pre- affirmed.
" Herelie the bodies
She was proud, peevish, and passionate.
ller husband and child, whom she loved, Seldom saw her countenance without a disgusting frown, Whilst she received visitors, whom she despised, with an endearing smile,
Her behaviour was discreet towards strangers;
Imprudent in her family.
At home, by ill-temper.
The talents in which she principally excelled, Were difference of opinion, and discovering flaws and imperfections.
She was an admirable economist,
And, without prodigality,
Would sacrifice their eyes to a farthing candle.
Much more frequently miserable—with her many failings :
That, maugre all her virtues,
As well as the regard of her neighbours,
Aged 48 years.
And departed this life Nov. 28, 1768,
In the 54th year of his age.
That they may avoid the infamy
With a patch-work character.”
24. The countess of Enniskillen,
a son and heir. BIRTHS in the year 1807.
25. Mrs. W. B. Ellis, of Pick.
worth, two sons and a daughter, Jau. 1. The lady of John Paine 29. The right hon. lady Grey, a Todway, esq. a daughter,
SOD. 3. The right hon. viscountess An. Feb. 2. Her grace the duchess of wn, a daughter.
Montrose, a son. 15. Viscountess Templetown, a son.
3. The lady of the hon. sir Ar. 16. The lady of Charles Wat- thur Wellesley, a son and heir, Lin Williams Wynne, esq. M. P.
8. The lady of sir John Trol. a daughter.
lope, a daughter. The right hon, marchioness Corn.
10. Her grace the duchess of Tallis, a daughter.
Bedford, a son.
13. The gent, a son.
13. The right hon, the countess 30. Viscountess Ashbrooke, a of Moira, a son.
daughter. March 8. Lady Graves, a daughter. Aug. 5. Right bon. lady Le De.
10. The right hon. lady Am- spenser, a son. horst, a son.
9. Right hon. viscountess Arbuth. The right hon. viscountess Ban- not, a daughter. try, a son.
The lady of Francis Freeling, esq. Viscountess Fitzharris, a son.
April 3. The right hon. vis- 11. Lady C. Lamb, a son. countess Andover, a daughter. 22. Lady Caroline Wrottesley, a
Countess Conyngham, a son.
Lady Grantham, a son and heir. 27. Lady Gertrude Sloane, a son. Scpt. 3. The lady of sir Walter
30. The right hon. countess Brisco, a son. Berkeley, a daughter.
Lady Mary lay, a daughter. May 2. Lady Stanley, a daugh- 11. The right hon. viscountess ter.
Stuart, a son and heir. 5.Lady Ann Ashley Cooper, a son. Lady Charlotte Hope, a son. 7. Lady Jane Buchanan, a son. The right hon, countess of Shan. 10. Lady Catharine Forester, a non, a daughter.
23. The lady of sir S. R. Glynne, 17. The lady of the right hon. Spencer Perceval, a son.
25. Lady Ancram, a daughter. 21. Her grace the duchess of Oct. 4. Hon. Mrs. Buchanan, a Castries, a son
dalighter. 26. The riglit hon, lady Kenyon, a 16. Lady Charlotte Drummond, a daughter.
The lady of sir George Barlow, a 20. The countess of Dalhousie, a son.
Mrs. D. Cameron, two 24. Lady Foley, a danghter. daughters and a son.
29. Lady Frances Bentinck,a sou. June 16. Right hon. countess Nov. 4. The lady of sir Chri• Banbury, a daughter.
topher Baynes, a son. 21. The queen of Sweden a 6. Lady Caroline Douglas, a princess.
daughter. Countess Barde, a son.
8. Marchioness of Waterford, a 26. Hier grace the duchess of daughter. Rutland, a son and heir.
16. Lady C. Duncombe, a daugh. July 4. The hon. Mrs. Ramsay, ter. a daughter.
19. Right hon. viscountess Heres 8. The right hon. countess of ford, a son and heir. Northesk, a son.
25. The lady of sir William 12. Right hon, lady Milton, a Fraser, a daughter ; her sixteent: daughter.
cbild. 18. The right hon, the countess Dec. 1. The lady of sir Wr. Mapsfield, a daughter.
Call, bart. a daughter. Right hon, viscountess Marsham, The lady of sir George Nr. a daughter.