legal estate was vested in trustees for the purpose of securing an annuity to the defendant's mother, with permission to the defendant to take the rent, until the annuity should be in arrear. The trustees were empowered to enter in case the annuity was in arrear, which they did in 1817. But at the time of the execution of the elegit, and of commencing the action, there was nothing in arrear. It was contended that the case fell within 29 Car. 2. c. 3. s. 10, (by which the sheriff can take under an elegit such lands only as the party against whom it issues is legally or beneficially entitled to,) as the premises were held in trust for the defendant. It was adjudged, that the plaintiff could not recover, because the estate was vested in trustees, though partly for the defendant's benefit. Judgment.-Where the lessor of the plaintiff claims under an assignment from the sheriffe, if he be a party in the original action in which the execution issues, he must not only produce the writ of fieri facias, but also the judgment. A judgment recovered by the defendant in a former ejectment is admissible in evidence against the lessor of the plaintiff, on the trial of a second ejectment, where the lessor of the plaintiff and the defendant are the same parties. Doe d. Strode v. Seaton, 2 C. M. and R. 728. Landlord.-In ejectment by a landlord against his tenant, it will not be necessary for the landlord to give any evidence of his title anterior to the lease; for the tenant will not be permitted to impeach the title of the person under whom he came into possession. In ejectment upon a clause of re-entryd in a lease, for non-payment of rent against the assignee of the term, the lessor proved, by the subscribing witness, the execution of the counterpart of the lease; this was ruled to be sufficient proof of the holding upon the condition of reentry in case of non-payment of rent, without producing the lease itself, or proving that notice had been given to the defendant to produce it (37). In ejectment for a leasehold b Doe d. Hull v. Greenhill, 4 B. & A. 684. recognised in Harris v. Booker, 4 Bingh. 96. c Doe d. Bland v. Smith, Holt's N. P. C. 589. d Roe v. Davis, 7 East, 363. (37) It is sufficient to prove assignment of lease by subscribing witness, without calling the subscribing witness to the original lease. Nash v. Turner, 1 Esp. N. P. C. 217. per Kenyon, C. J. In this case, the assignment was by indorsement. estate, the lessor of the plaintiff produced the original lease, which was for a term of 1000 years, granted in the time of Queen Elizabeth; and one mesne assignment in the time of King James, and then proved possession in himself and those under whom he claimed, for seventy years prior to the ejectment; it was holdene, that the jury might be directed to presume all the mesne assignments. In ejectment by landlord against tenant, the landlord proved payment of rent and half a year's notice to quit. But on the cross-examination of the plaintiff's witness, he was asked, whether there was not an agreement in writing relative to the holding of these lands? to which he answered, that an agreement in writing relative to these lands was produced at the last trial of this ejectment (this being the second trial;) but he did not know the contents of it; and then another witness was called, who proved that he had seen the same paper in the hands of Sir M. Wood's attorney, on the same morning (i. e. of this trial). Whereupon it was objected, on the part of the defendant, that no parol evidence of the tenancy could be given, when it appeared that there was an agreement in writing concerning it; and it did not appear that the landlord had any right to determine the tenaney in the manner he had done. Lord Ellenborough, C. J. If there were any writing relative to this holding, in the possession of the landlord, the defendant ought to have given him a regular notice to produce it; otherwise, in this collateral way, he would get the whole benefit of it, without giving such a notice; when if notice had been given, and the paper were produced, it might not support the objection. How can we say that the plaintiff ought to have been nonsuited, for want of giving the best evidence of the tenancy, unless it appeared that there was other and better evidence of it in an agreement in writing between the landlord and his tenant, which the landlord kept back? Enough, at least, ought to appear to shew that the paper not produced was better evidence of the terms of the tenancy than the evidence which was received; but it did not appear that it was an agreement between these parties, or that it was an existing agreement at this time: it might have been an agreement between the defendant and his former landlord; or it might e Earl d. Goodwin v. Baxter, 2 Bl. R. 1228. f Doe d. Sir M. Wood v. Morris, 12 East, 237. recognised in Stevens v. Pinney, 8 Taunt. 327; 2 Moore, 349. 337. have related to a former period of the tenancy (38). The witness did not profess to know any thing of the contents of the paper, only that it was an agreement relative to the lands in question. In ejectment against a bailiff, the tenant in possession is not competent to prove that the witness, and not the defendant, is the possessor of the lands. Defendant enclosed a small piece of waste land by the side of a public highway, and occupied it for thirty years without paying any rent; at the expiration of that time the owner of the adjoining land demanded 6d. rent, which defendant paid on three several occasions; it was holden, that this, in the absence of other evidence, was conclusive to shew that the occupation of defendant began by permission, and entitled plaintiff to a verdict. So where a cottage standing in the corner of a meadow (belonging to the lord of a manor,) but separated from the meadow and from the high road by a ditch, had been occupied for a period of more than twenty years without any payment of rent; then the lord demanded possession, which was reluctantly given; and the occupier was told that if he were allowed to resume possession, it would only be during pleasure. He was allowed to resume, and kept possession for fifteen years more, but did not pay any rent; it was holdeni that it was a question for the jury, whether the possession commenced and continued by adverse title or by the permission of the lord; and the jury having found that the occupation was by permission of the lord, the court refused to disturb the verdict. Where the question was, whether a slip of land between some old inclosures and the highway, vested in the lord of the manor or the owner of the adjoining freehold; it was holdenk, that evidence might be received of acts of ownership by the lord of the manor, on the greens and wastes in other parts of the manor, at a distance, although the lord was not the owner of the adjoining freehold, provided such evidence were confined to the road, which passed by the spot claimed by plaintiff. Payment of the same and a small sum of money, annually, for a long series of years, for a g Doe d. Jones and others v. Wilde, i Doe d. Thompson v. Clark, 8 B. and 5 Taunt. 183. But see stat. 3 & 4 W. 4. c. 42. ss. 26, 27. post, p. h Doe d. Jackson v. Wilkinson, 3 B. and C. 413. C. 717. k Doe d. Barrett v. Kemp, 2 Bingh. N. C. 102. (38) Or it might have been unstamped, in which case it could not have been received in evidence. Stevens v. Pinney and Fielder v. Ray, ub. sup. . piece of land, to the lord of a manor, has been holden' not to be evidence of a title to the land, but to the rent only. It had been paid nearly forty years, and the judge said, the presumption was, it was a quit rent. pre In a case where the plaintiff proved that the premises had been leased to him and a year's possession; this was held sufficient, although it was not shewn what the title of the demising parties was; the defendant being a mere wrong doer. Doe d. Hughes v. Dyeball, M. and Malk. 346. The lessor of the plaintiff proved, that his father and himself held the mises, and during that time received and increased the rent. It did not appear that the father had any other son; but the defendant proved, that he had been in possession for ten years before ejectment brought. A verdict having been found for the plaintiff, the court refused to disturb itm; Tindal, C. J. observing, that the earlier presumption must prevail, until better title is shewn. Legitimacy. In this action, the legitimacy of the parties frequently comes in question. An opinion appears to have prevailed at one time, that unless the husband was extra quatuor maria, that is, out of the kingdom during all the time of the wife's going with child, access must be presumed, and the child must be deemed legitimate". But, on examination of this doctrine, it was found unsatisfactory, and it is now holden, that non-access may be proved to bastardize the issue, although it should appear that the husband was within the kingdom during the period of gestation. So where the husband, in the course of nature, cannot have been the father of his wife's child, the child is by law a bastard, whether the husband be within reach of access or not; as in the case of a natural impossibility, the husband being within the age of pubertyP; or disabled by bodily infirmity. So where it was proved that the husband had not access, until a fortnight before the birth of the child, the child was adjudged to be illegitimate. Access is such access as affords an opportunity of sexual intercourse; and where there is evidence of such access between a husband and wife, within a period capable of raising the legal presumption as to the legitimacy of an after-born child, the court will not direct 1 Per Holroyd, J. confirmed by court. Doe d. Whittick v. Johnson, Gow, N. P. C. 173. m Doe d. Harding v. Cooke, 7 Bingh. 346. n Queen v. Murrey, Salk. 122. o Pendrell v. Pendrell, Str. 905. R. v. Bedall, Str. 1076. Rep. Temp. Hardw. 379. and Andr. 9. p 1 H. 6. 3. b. q 1 Rol. Abr. 359. cited by Lord Ellenborough, 8 East, 205. r R. v. Luffe, 8 East, 193. an issue upon evidence shewing the continued adulterous intercourse with another man, and the improbability of the husband being the father, but will declare the legitimacy of the child. Bury v. Philpot, Sir John Leach, M. R. 2 Mylne and K. 349. The wife is a witness of necessity, as to the fact of adulterous intercourse, because that lies within her own knowledges and she is the only person who may be supposed privy to it, except the adulterer. This case, therefore, affords an exception to the general rule, which prohibits the wife from being examined against her husband in any matter affecting his interest or character. But non-access must be proved by other testimonyt than that of the wife, and this rule holds although the husband be dead". The presumption of legitimacy arising from the birth of a child during wedlock, the husband and wife not being proved to be impotent, and having opportunity of access to each other during the period in which a child could be begotten and born in the course of nature, may be rebutted by circumstances inducing a contrary presumption. The fact of the birth of a child from a woman united to a man by lawful wedlock, is generally, by the law of England, prima facie evidence, that such child is legitimate. Such prima facie evidence of legitimacy may always be lawfully rebutted by satisfactory evidence that such access did not take place between the husband and wife, as by the laws of nature is necessary, in order for the man to be in fact the father of the child. The physical fact of impotency, or of non-access, or of non-generating access, as the case may be, may always be lawfully proved by means of such legal evidence as is strictly admissible in every other case in which it is necessary, by the law of England, that a physical fact be proved. After proof given of such access of the husband and wife, by which, according to the laws of nature, he might be the father of a child, (by which is to be understood proof of sexual intercourse between them,) no evidence can be received, except it tend to falsify the proof that such intercourse had taken placeb. Such proof must be regulated by the same principles as are applicable to the establishment of |