not have been upheld against the assignees, admits, I think, of no doubt whatever. The real question, therefore, that we have to consider seems to be, whether they can be upheld against the plaintiff, the late bankrupt, when the title to the assignees to impeach them has been removed by the bankruptcy having been annulled. It was said, in the first place, on the part of the defendants, that the plaintiff (the late bankrupt) procured his bankruptcy to be annulled by fraud and misrepresentation; but the point does not appear to me to be open upon the pleadings; and even if it were, I do not think we could act upon it. An order annulling the bankruptcy is in force, and so long as it remains in force, we are bound, I think, in this jurisdiction, to take it as valid. That this order was made, and the bankruptcy annulled, without prejudice to the sales made and the acts done by the assignees under the fiat, does not, I think, alter the case. This provision would, of course, prevent the titles of purchasers from being impeached on the ground of the bankruptcy having been annulled; but it could not, as I apprehend, protect them from impeachment on other grounds. Then it was said that the plaintiff was not entitled to impeach the purchases by reason of the provisions contained in the deed of the 14th March, 1860, entered into by him with the assignees; but that does not seem to me to furnish the defendants with any valid ground of objection to the suit, for the defendants are no parties to the deed, and it was quite competent to the assignees to waive the provisions of it, as between them and the plaintiff; nor, indeed, am I prepared to say, that if the circumstances of the case had been such as to render it necessary for the plaintiff to use the names of the assignees in this suit, he would not have been entitled to do so, indemnifying them. Again: it was said for the defendants, that the plaintiff was no more than a purchaser from the assignees of the right which they had to set aside these purchases, and it was insisted that there can be no valid transfer of a right of this nature. But even assuming that there could be no valid transfer by the assignees of their right to impeach the purchases (which, under the circumstances of the case, I am by no means prepared to admit), I think, that by virtue of the order annulling the bankruptcy, the plaintiff became entitled to recover back his property on any sufficient ground, and that he is therefore entitled to recover in this suit, the purchase from the assignees having been fraudulent and void. that is, of course, on the usual terms of account, payment, and so forth; and I am of opinion that, in the actral circumstances, a good title to do so was at the time of filing the present bill, and is, vested in the plaintiff, whatever, and however censurable, his conduct may have been towards his creditors. Whether the plaintiff will be able to retain against the creditors under the bankruptcy what he shall recover in this suit may be questionable; that is a point as to which I do not pronounce or intimate any opinion, favourable or unfavourable to the plaintiff, but with which the defendants seem to me to have, for any purpose of the present litigation, nothing to do. The confirmation of the assignees' sales and transactions, which took place in March and May, 1860, may have been, and may be, material as between Mr. Adams on the one hand, and the assignees and creditors under the bankruptcy on the other, but were, as to the defendants, matters inter alios, and were not, as I conceive, intended to prevent, defeat, or prejudice, nor had they, in my opinion, the effect of preventing, defeating, or prejudicing, the claim made by Mr. Adams in this suit, which may possibly be (though I do not say it will be) less for his benefit than for that of his creditors under his bankruptcy in that character. It has been argued that the order of May, 1860, annul- | ling the bankruptcy was obtained by fraud. That, I apprehend, is not so in any sense material at present. It may be that the order was an erroneous decision, though I do not say so; it may be that the bankrupt at the time of obtaining the order was aware of facts not disclosed to the learned commissioner who made the order, which if they had been disclosed would have induced him to decline making any such order (though I do not assert that the bankrupt was so); but in my judgment the order is not by such means made void, though it may be liable to be attacked successfully. As I have said, it has not been successfully attacked, and it is, as I conceive, in full force, even assuming that the bankrupt, by omitting before obtaining the order to state to the assignees, and to the commissioners, these undisclosed facts, acted improperly. Assuming there to have been suppressions and falsehoods on the bankrupt's part upon the occasion of obtaining the order, I still think that, for every present purpose, independently of any difficulty in the defendants' way from the state of the pleadings, we are bound to regard the order as valid. It has been said also, that the plaintiff knew of Mr. Sworder's interest in the purchase from the time preceding its completion. That also, I apprehend, to be wholly immaterial, the bankruptcy not having been annulled before 1860. I consider that we ought now to set aside, with the usual directions, the plainly improper and censurable purchase which the suit impeaches; and, whatever may have been the demerits of the late bankrupt towards the body of his creditors under the bankruptcy, or any of them, or however untrustworthy he may be as a witness, I conceive that public policy and private justice requires, that at least a portion of his costs of the litigation should fall on the defendants, who should, in my opinion, unless they prefer a taxation, pay the plaintiff 1007. for his costs of the suit to the present time. The decree ought to be declared to be without prejudice to the question whether the creditors under the late bankruptcy, or the late assignees on their behalf, are or will be, as between themselves and the plaintiff, entitled to claim the benefit, if any, to arise from setting aside the sale. Sir G. J. TURNER, L. J.-My learned Brother has gone so much at large into this case, and I so fully agree in what has been said by him, that I have very little to add. That the purchases in this suit could Some argument was also attempted to be raised on the part of the defendants, on the ground of the plaintiff having, at the time when the purchases were made, or very soon afterwards, been aware that the defendants had become the purchasers, and not having sooner instituted this suit; but I think it is a sufficient answer to this argument, that the plaintiff could not institute proceedings until the bankruptcy was annulled. For these reasons, in addition to those which have been assigned by my learned Brother, my opinion is, that this decree cannot be maintained, and that there must be a decree setting aside these purchases, on the usual terms; and I agree to what the Lord Justice has proposed as to the costs, and as to the decree being without prejudice. BROUN V. KENNEDY.-Jan. 26, 27, and 29. Barrister and client-Deed of gift. A deed by which a client, immediately after recovering certain property, makes a gift of part of that property, by way of recompense to a barrister who had acted in recovering it, cannot be maintained. The bill in this case was filed by Charles Wilsone Broun and Patience Broun, his wife, against Charles Rann Kennedy, a barrister-at-law, for the purpose of having a deed, by which the plaintiff Patience Broun, then Patience Swinfen, a widow, conveyed to the defendant the reversion in fee of certain lands, delivered up to be cancelled. The Master of the Rolls had made a decree that the deed must be delivered up to be cancelled, and that the defendant should reconvey the reversion, and pay the costs of the suit. From this decree the defendant appealed. The case before the Master of the Rolls is reported in 9 Jur., N. S., 1163, from which report, and from the report of Kennedy v. Broun (Id. 119), the facts of the case appear. Cole and Kay, for the plaintiffs. C. R. Kennedy in person. 13 pro who executed it, however clever she may be, and bably is, has a plain right to be relieved, and against which relief could not be refused without manifest discredit to the administration of justice. There being nothing else in the question, the appeal of Mr. Kennedy must be dismissed with costs, for, though there are some inaccuracies in the bill, they are all of such a nature in such a case as this as to be of no moment. 21 Sir G. J. TURNER, L. J.-I need only say a few words. The decree appealed from is so entirely in conformity with the principles and decisions of this Court, that it cannot be doubted for one moment, though I thought it due to the defendant to suspend my judgment for the purpose of more carefully con-2 sidering the case. I did not at any time feel any doubt about it. To reverse the decree, and to maintain the deed, would be to unsettle the law on a point in which the best interests of society require it to be strictly adhered to. The defendant, in the course of his argument, invited this Court to express an opinion on his conduct. I advisedly decline doing so, further than by saying it has been wholly at variance with the principles of this Court. The defendant has complained of some of the allegations in the bill as irrelevant and unfounded, but I do not think any of them so irrelevant, nor, having regard to the position in which he stood to the female plaintiff, and the weight which would be necessarily given by her to his opinion, are any of the allegations shewn so clearly to be unfounded as to relieve the defendant from liability to costs which public policy requires to be attached transactions of the present description. But any pos sible doubt as to any part of the costs is removed, by reference to that paragraph of the defendant's answer in which he insists on the complete validity of the deed. The appeal must be dismissed, with costs. Notes for reference-Huguenin v. Baseley (14 Ves. 273); Story's Eq., sect. 323. ROLLS COURT. ASH v. ASH.-Nov. 23. to Jan. 29.-Sir J. L. KNIGHT BRUCE, L. J.-In this case the defendant, a barrister, acted, during some parts of the year 1856, and during the years 1857 and 1858, and at least the first four or five months of 1859, professionally on behalf of one of the plaintiffs, a widow, Mrs. Swinfen, and as her confidential adviser. The relation between them was mainly, if not altogether, cominenced for the purpose of supporting her strongly-opposed claim, which, as devisee or alleged devisee of her father-in-law, a gentleman formerly of Staffordshire, she made to real estate and property of considerable value. The defendant appears to have been an able and effectual adviser and advocate of the lady in this contest, which, after some years, in various shapes and with various success, was brought to a determination in her favour very shortly before May, 1859. In the early part of that month the lady and Mr. Kennedy executed at Birmingham the deed dated the 10th May, 1859, which is set out in the bill, and is as follows-[His Lordship then read the deed at length, as set out in 9 Jur., N. S., 1164.] This deed, I need scarcely say, has reference to the various and extensive litigations in which, and in reference to which, the lady had been by him, as her professional adviser, so materially assisted. The only question now before us, besides the costs of the suit, is, whether we should allow the deed to stand, or to set it aside with consequential directions. The contents of the deed are alone sufficient to condemn it, on the assumption that the recitals contained in it are true; but with respect to their truth, the defendant, who drew the instrument, cannot certainly complain. It is, however, not, perhaps, impossible to suppose the existence of circumstances, in point of fact, sufficient to support the deed in the defendant's favour. Are there, however, such circumstances even in evidence before the Court? In my opinion there are not. The deed was either a mere gift, or was executed in pursuance of a contract. As a gift, of course it cannot be sustained between a client, whether man or woman, and the counsel of that client, who had been so recently engaged in professional and legal matters, such as have been men- Motion for decree.-William Ash, the testator in tioned, for recovering for his client the real estate the cause, made his will, dated the 2nd November, itself, of which so valuable a portion formed the sub- 1860, and thereby gave the residue of his personal ject of the gift. Then as to the question whether it estate and effects to his trustees, upon trust to invest was made in pursuance of a contract; the draft of the 24,000l., part thereof, and permit his widow to receive deed was drawn by the defendant himself, and there the annual income thereof during widowhood, and was no professional person consulted on behalf of the after her decease or second marriage, upon certain lady before she executed it, except Messrs. Collis & trusts for the children of his brothers and sisters Ure, of Birmingham, her solicitors, in whose office and John Shepley Ash, Jane Roberts, and the late Eliza under whose directions the deed was executed on the beth Haigh, and of Jane, the wife of William Thomas 10th May. They saw her, and spoke to her before Metcalfe, as should be living at the time of such de her execution of it on that day. I am of opinion that, cease or second marriage, in equal shares, per capita apart from all consideration of public policy, the lady and not per stirpes, subject nevertheless to a genera had and has a right to complain seriously and effec- power of appointment by his wife, in case she shoul tually that she laboured under that want of sufficient remain his unmarried widow. The testator, after giving advice, information, and assistance on the subject, a legacy of 1500l. to each of his brothers and sister before and when she executed the deed, which, in my then bequeathed as follows:-"The residue of my per judgment, was and is an instrument of great and sub-sonal estate and effects not hereinbefore disposed of stantial and manifest impropriety, from which the lady I propose to bequeath by a codicil to this my will, A testator disposed of his residue as follows:-" The residue of my personal estate and effects not hereinbefore disposed of, I propose to bequeath by a codicil to this my will, or otherwise to allow the same to go to my next of kin, according to the statute for the distribution of estates of intestates." The testator made no codicil to his will. He left a widow and brothers and sisters, and the children of a deceased sister, surviving:-Held, that the testator shewed an intention to die intestate in case he made no codicil, and that his widow took her moiety under the statute. otherwise to allow the same to go to my next of kin, acording to the statute for the distribution of estates of intestates." The testator died shortly afterwards, without having made any codicil to his will, leaving the plaintiff his widow. He never had any children. His next of kin at the time of his death were his brothers and sisters, and the children of a deceased sister. This bill was filed by the widow against the next of kin for the administration of the testator's estate. The plaintiff contended, that the disposition of the residue amounted to a declaration, that in case the testator should not make a codicil to his will, he intended to die intestate as to the residue of his personal estate, and that she was therefore entitled to one ty thereof. The defendants, on the other hand, contended that she was not entitled to such moiety, but that there was a gift of the whole of such residue among them as the next of kin, according to the sta tates. Baggallay, Q. C., and Bristowe, for the plaintiff, referring to the case of Garrick v. Lord Camden (14 Ves. 372), in which, under a direction that the testator's residuary estate should be divided among his next of kin as if he had died intestate, the widow was held to be excluded, contended, upon the construction of the residuary gift, that the testator contemplated making a codicil to his will; but failing that, that he intended to die intestate as to his residuary personal estate. The words "I propose" governed both alternatives. HQ.C., and Brodrick, for the defendants, relied upon the general frame of the will, and the ample provision already made for the wife, as shewing an intention to exclude her from taking any part of the residuary estate. The clause amounted to a conditional gift of the residue in case the testator did not execute a codicil. W. Forster, for the trustees. Sir J. ROMILLY, M. R., was of opinion that the clause did not amount to an express gift of the residue to the next of kin, in the event of the testator not making a codicil, but it amounted simply to an expression of his desire, that if he made no codicil the residue should go to his next of kin in the same way as if he had died intestate. If he had found a direction amounting to a gift, as in Garrick v. Lord Camden, he should have followed that case. The residue would be divisible, therefore, as in case of an intestacy. Note for reference-2 Jarm. Wills, 86, 8th ed. Re TIDSWELL.-Dec. 17. Arbitration - Misconduct of arbitrator — Setting aside award. The award of an arbitrator was objected to upon the grounds that he had allowed certain bills of costs to one of the parties, without giving to other parties an oppor tity of objecting to them; and also that, having power to employ as accountant some person, not objected to by the other parties, he had employed an accountant with at first stating whom he intended to employ:-Held, to be valid grounds for setting aside the award. A motion to set aside an award.-By an agreement, dated the 14th April, 1863, and made between Richard Themas Tidswell of the first part, Mr. and Mrs. Boyle of the second part, Mr. and Mrs. Barratt of the third part, and Benjamin Kay Tidswell of the fourth part, was agreed that the several matters in dispute between the parties, and the claims of the persons of the first three parts against Benjamin Kay Tidswell in respect of the trust estate of Benjamin Tidswell, deceased, should be referred to the award of Mr. Slater. The arbitrator was empowered, if he thought it necessary, to appoint some person as an accountant, not objected to by any of the parties thereto, to assist him. Mr. Slater made his award, dated the 13th June, 1863, whereby, inter alia, he awarded that certain costs, charges, and expenses of Benjamin Kay Tidswell should be allowed to him in his accounts of the trust estate. Among the sums so allowed were two bills of costs for the respective sums of 2047. 17s. and 737. 78. 10d. R. T. Tidswell (on whose behalf the motion was made) objected to the award upon the following grounds :-In the first place, the last sitting on the reference was held on the 22nd May; the above bills of costs were not sent in by Mr. Tidswell's solicitor until the 2nd June; and they were not shewn to the other parties or their solicitors until after the award was made. In the next place, after the last sitting the arbitrator called in an accountant to assist him in calculating the interest, and he did not previously inform the parties what accountant he intended to employ. Southgate, Q. C., and T. C. Roberts, in support of the motion, contended that the arbitrator had been guilty of improper conduct in making the award. (Dobson v. Groves, 6 Q. B. 637; Re Plews and Middleton, Id. 845; Walker v. Frobisher, 6 Ves. 70; Re Haigh, 3 De G., F., & J. 157; Harvey v. Skelton, 7 Beav. 455). Jolliffe appeared for other parties to the agreement, but his Honor declined to hear him. Selwyn, Q. C., and C. Hall, for Benjamin Kay Tidswell, supported the award.-If invalid, they asked that it might be remitted back to the arbitrator, under the 8th section of the Common-law Procedure Act, 17 & 18 Vict. c. 125. Sir J. ROMILLY, M. R., was of opinion that the award was defective, and must be set aside. The first ground of objection was a very serious one. At the time the arbitrator made the award, and allowed the bills of costs complained of, he knew that Richard Thomas Tidswell had not seen them, and yet, instead of giving him an opportunity of examining them, he at once made his award allowing them. It was quite settled, that if an arbitrator took any evidence, however slight, behind the back of any of the parties, that vitiated the award. In Re Plews and Middleton (6 Q. B. 845) each of the arbitrators examined a witness separately in the absence of the parties to the reference; and although it was admitted that they had acted with perfect bona fides, the award was set aside. Here the case was stronger, as the arbitrator had allowed accounts not seen by the other parties. It counts should be taken, without seeing the accounts, was easy to determine the principle upon which acbut it was a very different matter to determine, without seeing the accounts, what items should be allowed. ac The employment of the accountant was a trifling matter; but, having regard to the rules which governed the Court, he must hold it to be a fatal objection to the award. The agreement authorised the arbitrator to employ some person as an countant "not objected to by any of the parties thereto;" yet he had appointed a person whom the parties had never heard of, and to whom, therefore, they had had no opportunity of objecting. If this had been the only objection, he should have felt inclined to send the case back to the same arbitrator; but the other objection rendered it inexpedient, since, however honest the arbitrator might be, he could not but have some secret desire that the reference should prove useless. The award must accordingly be set aside. LOCKETT v. CARY.-Jan. 23. Practice-Production of documents—Lien of solicitor. A solicitor, defendant in a suit, cannot refuse to produce documents belonging to his client, on the ground that he has a lien upon them, and that the party seeking inspection claims under his client. A summons adjourned from chambers.-The main question raised was, whether documents, on which solicitors claimed a lien should be produced. The facts were these:-By an indenture, dated the 23rd February, 1856, Messrs. Swayne & Bovill assigned certain letters-patent, together with other property, to the defendants Cary and others, upon certain trusts for the benefit of the defendants, and subject thereto upon trust for Messrs. Swayne & Bovill. By another indenture, dated the 4th October, 1856, Messrs. Swayne & Bovill assigned these letters - patent, together with other property, to the defendants, Messrs. Cox & Lord, who had acted as their solicitors, to secure the balance of the costs then due to them, amounting to upwards of 20007. By an indenture, dated the 3rd May, 1863, the equity of redemption in the letters - patent became vested in the plaintiffs. The present bill, which was in the nature of a redemption suit, charged, that the defendants had been guilty of wilful neglect and default, as mortgagees in possession, in neglecting to collect the royalties, and to take proceedings against persons who had infringed the letters-patent. The defendants, Cox & Lord, in their affidavits as to documents, objected to produce the documents in their possession, first, on the ground that, as to part of them, the documents were in their possession as mortgagees; and, secondly, as to the other documents, that they were in their possession as the solicitors of Messrs. Swayne & Bovill (not parties to the suit), and that they had a lien upon them for costs due to them as solicitors. The plaintiffs claimed to have these documents produced for inspection. Druce and F. Harrison, for the plaintiffs. Sir J. ROMILLY, M. R., said that Messrs. Cox & Lord could not be called upon to produce the documents which were in their possession as mortgagees; but as to the other documents, he was of opinion that they were bound to produce them, but not to have them taken out of their possession. When a solicitor was called as a witness, he was bound, under a subpœna duces tecum, to produce documents in his possession upon which he claimed a lien. His Honor had so held, and the Lords Justices had confirmed his opinion. (Hope v. Liddell, 20 Beav. 438; 7 De G., Mac., & G. 331). Selwyn, Q.C., and E. F. Smith, for Messrs. Cox & Lord. -That was the case of a solicitor who was called as a witness on behalf of a third party; here the solicitors were defendants to a suit in which the plaintiffs, who sought discovery, claimed through the debtors of the solicitors. [They cited, as to the solicitors' lien, Ex parte Shaw (Jac. 270); Watson v. Lyon (7 De G., Mac., & G. 288); and Pelley v. Wathen (1 De G., Mac., & G. 16).] Sir J. ROMILLY, M. R.-I have no doubt that the solicitors must produce these documents; but the plaintiffs must not take copies of them. There will be the usual order for the plaintiffs to be allowed to inspect the documents at the office of the solicitors, upon reasonable notice and at reasonable times. The lien of a solicitor does not prevent the client from inspecting the documents; but the client cannot take them out of his possession. This order will not extend to the documents in the possession of the solicitors as mortgagees. Note for reference-1 Sid. Smith's Ch. Pr. 167. VICE-CHANCELLOR KINDERSLEY'S COURT. ATCHLEY V. SPRIGG.-Jan. 16, 18, and 19. Legitimacy-Adultery-Evidence of non-access. To rebut the presumption of legitimacy, though it is not necessary to prove impossibility of access on the part of the husband, the evidence must preponderate, so to convince the mind of the judge that access did not take place at a time and under circumstances which would enable the husband to be the father of the child. In Plowes v. Bossey (8 Jur., N. S., 352; 31 L. J., Ch., 681; 10 Weekly Rep. 332), the evidence of the mother was not admitted by the Court on a question as to the legitimacy of her child. A summons adjourned from chambers.-In this administration suit, by the decree made on the 31st May, 1862, an inquiry was directed, whether Hannah Cole, the daughter of the testator in the suit, contracted any marriage, and whether she left any child or grandchild, her surviving. Advertisements were published, requiring any person claiming to be a child or grandchild of Hannah Cole to come in and prove his kindred in the usual way; and John Bridger Oakman Palmer, having obtained the common order at the Rolls to attend the proceedings under the decree, appeared before his Honor's chief clerk in chambers, and claimed to be the son and lawful issue of Hannah Cole, afterwards Hannah Palmer. Upon the question of his legitimacy, the matter was adjourned into court. Hannah Cole, formerly Hannah Oakman, spinster. was first married to John Cole on the 6th July, 1815. She lived with him until 1824, when they separated. J. B. O. Palmer was the son of Hannah Cole, and was born on the 11th October, 1834. John Cole died on the 3rd January, 1836, and Hannah Cole was secondly married to John Bridger Palmer on the 11th February in the same year. None of the evidence, part of which was oral, and the material portion of which will be found in his Honor's judgment, was adduced by the claimant, J. B. O. Palmer. Ayrton, for J. B. O. Palmer, contended, that at the time when the claimant was procreated, connexion might have taken place between Mr. and Mrs. Cole, and that there were no special facts to shew that connexion did not take place between them. That the case was within the principle of Plowes v. Bossey (8) Jur., N. S., 352), i. e. that if, by a fair and legal inference from all the evidence, it is a question of nice probability, and not a case of preponderating probability, the presumption of legitimacy must prevail That, except in The Banbury Peerage case (1 Sim. & S 158), also in the Appendix to Sir H. Nicolas on Adulterine Bastardy, 291, which was an exceptional case. there had been no decision against the presumption of legitimacy, unless in cases where there had been shameless adultery, or actual cohabitation between the wife and paramour. Baily and Prendergast, for the plaintiffs.-It is not necessary for the plaintiffs to do more than to satisfy the Court that there was no generative access on the part of the husband at the period of procreation, All the evidence tends to shew that Cole and his wife never did meet; and when he sent to her on his deathbed, she refused to go and see him. Osborne, for the defendants Mr. and Mrs. Sprigg who, in the event of the death of Mrs. Cole without leaving issue, were entitled to a share in a moiety of the testator's property. Cotton, for Mrs. Oakman, who on the like event was entitled to the other moiety, supported the same contention. Ayrton, in reply. The following authorities were also cited in the course of the arguments, as to the evidence required to rebut the presumption of legitimacy:-. Head v. Head (1 Sim. & S. 150); Morris v. Davies (5 Cl. & Fin. 13, 25-9); Hargrave v. Hargrave (9 Beav. 552); Legge r. Edwords (25 L. J., Ch., 125); Wright v. Holdgate (3 Car & K. 158); Cope v. Cope (5 Car. & P. 604); Bury v. Philpott (2 My. & K. 349); Goodright v. Saul (4 T. R. 356); Rex v. Luffe (8 East, 193); Clarke v. Mayford (6 Mad. 364); Gurney v. Gurney (9 Jur., N. S., 514); 1 Tayl. Ev. 110, edit. of 1855; and 1 Ph. Ev. Sir R. T. KINDERSLEY, V. C.-There is no doubt that John Bridger Oakman Palmer, whoever was his actual father, was the child of Hannah Cole, begotten and born during the continuance of the marriage between her and her husband, John Cole; and he has & right to insist that, inasmuch as he is the child of a married woman, born during the existence of the marriage, he is to be presumed to be the child of the husband. i. e. legitimate; and that presumption must be overcome by evidence so powerful as to satisfy the Court that he is the child, not of the husband, but of a paramour of the wife. He produces no evidence, but relies on that presumption, and all the evidence is produced by those who contend against his legitimacy. There is not much conflict as to matters of fact. In considering the evidence, I mean to exclude all hearsay evidence, except where the claimant's counsel has availed himself of it. But when such is taken, it must be taken in its integrity with that which is connected with it. A fortiori, I shall reject any evidence of what Hannah Cole herself said as to her son's legitimacy; for if she were now alive, and tendered as a witness, I could not listen to her upon that subject. In connexion with the impossibility of admitting a parent as a witness on a question respecting the legitimacy of her child, I may mention, with regard to the case of Plores v. Bossey (8 Jur., N. S., 352; 31 L. J., Ch, 61; 10 Weekly Rep. 333), that in all the reports of that case, part of the evidence before the Court is stated to have been a deposition of the mother, Hannah Bossey. From this it might be assumed that the Court had admitted the testimony of a mother as to her child's legitimacy. Such was, however, not the case, and I should conjecture that the way in which this error crept in was this :-The reporters would endeaYour to get the papers in the case-a very proper Course. Mrs. Bossey did make an affidavit, and the other parties insisted on their right to cross-examine her. The case came before me in chambers, and the moment it did so I observed upon the impropriety of admitting Mrs. Bossey's evidence. Her counsel or solicitor insisted that she should not be cross-examined to prove the illegitimacy of her own child; to which the other side retorted that she was examined in chief prove his legitimacy, and why should she not be -examined to prove his illegitimacy. The parties th agreed that her affidavit should be taken off the te. But the reporters, finding that affidavit on couns's brief, very probably the mistake arose that Mrs. Bussey had given evidence, and that the Court had litted it whereas there could not have been a Le gross miscarriage of justice than to have admitted evidence of a mother to prove the legitimacy of born child. the period during which, according to the law of nature, they must have been to make the child the child of both, or that they were together either in company or in circumstances making the fact impossible, the onus is on him to prove it. No onus lies on the party whose legitimacy is in question, to shew opportunities of access, or what the circumstances were. Further: when the person alleging the illegitimacy of the child of a married woman brings forward evidence to shew that such child was not procreated by the husband, the law will not allow the presumed status of such child to be taken away merely on the balance of probability. The evidence must not only be such as to raise in the mind of a judge or jury strong doubts-it must be such as to produce a judicial conviction that the child was not procreated by the husband." Now, I have to ask myself the question whether my mind is convinced? The facts of the case, so far as they are material, are these :-In 1824, Mr. and Mrs. Cole separated under circumstances which shewed that neither of them desired to continue cohabitation. From that time down to the death of Cole in 1836, a period of twelve years, they never lived together, but always separate and apart. We find, that in 1825 Mrs. Cole was residing at No. 4, Providence-place, Kentish-town, one of the houses belonging to the testator, William Oakman. In 1828 she was living at No. 6, Providence-place, which also belonged to him, and in that year he died. During a portion of the time she resided at those two houses, she was cohabiting with one John White, but retained her name of Cole; and whilst she resided at No. 6, they carried on together the business of a retail wine dealer until the death of White, in 1830. Upon White's death Mrs. Cole put on widow's mourning. In 1831 she was again living at No. 4; and in that year John Bridger Palmer and his sister, Mrs. Martindale, came to lodge there for about a year. In the spring of 1832 they quitted the house. Palmer understood, when he first went to lodge with Mrs. Cole, that she was a widow, and he paid his addresses to her, though, in fact, she had a husband living. If Cole, the husband, ever did come near his wife, it was in a secret and clandestine manner, for her lodger did not know of it. While Palmer was lodging in the house, on one Sunday in 1831 or 1832, a person came to the lodgings, at seven or eight o'clock in the morning, in a very drunken state, like a madman, and tried to force his way into the house. This Palmer prevented him from doing. The police were called in; and upon an explanation taking place, it appeared that this person was Cole, the husband, who insisted on seeing his wife. The police pointed out to him that he should come to see his wife in a more proper state, and he was ultimately argued away, and did not go in. In Palmer, on leaving Providence-place, took a publichouse, the King's Head, formerly in Holborn. 1833 Mrs. Cole had gone to reside with her mother, at No. 1, Providence-place, and whilst she was there, Palmer visited at the house, and a criminal intimacy sprung up between him and Mrs. Cole in the beginning of 1834. Mrs. Cole was in the habit of occasionally visiting at the King's Head, where this intercourse was carried on, and she slept in the house once a week To return to the law of this case. I unhesitatingly or fortnight. I think this intercourse was concealed to the law as laid down in Plowes v. Bossey (8 until the pregnancy of Mrs. Cole became apparent, Jur. X.S., 352-3), viz. that "a child born of a married and obliged her to confess it to her mother. She and is presumed to be legitimate—that is, to have her mother then removed to Albany-street, and in procreated by the husband; and our law respects July, 1834, Mrs. Cole and her mother again removed ti supports the legitimacy of such child; and although to 19, Pulteney-terrace, Islington, and Palmer gave up does not prohibit any person interested from making the King's Head, and went and cohabited there with the illegitimacy, it throws the onus probandi en- Mrs. Cole as man and wife. At that house the child y upon him. If the case made by such person is, was born, on the 11th October, 1834. Cole, who was that the husband and wife never were together within a dissipated man, became ill, and went into the Mid een |