any other fact. In every case where a child is born in lawful wedlock, the husband not being separated from his wife by a sentence of divorce, sexual intercourse is presumed to have taken place between the husband and wife, until that presumption is encountered by such evidence as proves, to the satisfaction of those who are to decide the question, that such sexual intercourse did not take place at any time, when by such intercourse the husband could, according to the laws of nature, be the father of such child. The presumption of the legitimacy of a child born in lawful wedlock, the husband not being separated from his wife by a sentence of divorce, can be legally resisted only by evidence of such facts or circumstances as are sufficient to prove, to the satisfaction of those who are to decide the question, that no sexual intercourse did take place between the husband and wife, at any time, when by such intercourse the husband could, by the laws of nature, be the father of such childe. Where the legitimacy of a child in such a case is disputed, on the ground that the husband was not the father of such child, the question to be left to the jury is, whether the husband was the father of such child; and the evidence to prove that he was not the father, must be of such facts and circumstances, as are sufficient to prove, to the satisfaction of a jury, that no sexual intercourse took place between the husband and wife at any time when, by such intercourse, the husband could, by the laws of nature, be the father of such childf (39). A child begotten after a divorce, a mensâ et thoro, shall be taken to be a bastards; otherwise after voluntary separation, unless found that the husband had no access. Upon the question of marriage, it is part of the law of England that the c Banbury Claim of Peerage, D. P. e Opinion of the judges, S. C. 4 July, 1811. f Ib g Parishes of St. George and St. Margaret's, Westminster, 1 Salk. 123. (39) "The non-existence of sexual intercourse, is generally expressed by the words 'non-access of the husband to the wife.' And we understand those expressions as applied to the present question as meaning the same thing; because, in one sense of the word access,' the husband may be said to have access to his wife, as being in the same place, or in the same house, and yet under circumstances such as instead of proving, tend to disprove, that any sexual intercourse had taken place between them." Remark of the judges. law of the country where the marriage is solemnized shall be adopted; and the same observation applies to the distribution of personal property according to the law of the domicile. But the same principle does not apply to the inheritance of real property; to that the lex loci is alone applicable. Legitimacy alone is not sufficient to make a person inherit socage lands; it must be legitimacy sub modo; the heir must be a child born after marriage. Hence a child born in Scotland of unmarried parents", domiciled in that country, and who afterwards intermarry there, is not by such marriage rendered capable of inheriting lands in England. Mortgagee. In ejectment by a mortgagee, if the mortgagor be in possession, proof of the execution of the mortgage deeds by the subscribing witness, will be sufficient to support the mortgagee's title; but if a third person is in possession, the mortgagee should also prove, that such third person has paid rent to, or otherwise acknowledged the title of the mortgagor. It is not necessary to prove either notice to quit or demand of possession. Where the mortgagee recognizes a party as being in lawful possession of the premises at a given time, it is not competent to him to say afterwards that at that time he was a trespasser1; but mere payment of interest in respect of the original debt, for a period covering the day of the demise, is not a recognition of the right of mortgagor, or his tenant, to hold possession. Rector.-In ejectment by a rector for a rectory", it seems that it is not necessary for the plaintiff to prove that he subscribed and publicly read the thirty-nine articles; for where any act is required to be done, so that the party neglecting it would be guilty of a criminal neglect of duty in not having done it, the law presumes the affirmative, and throws the burthen of proving the contrary on the other side. Hence where a prebendary brought ejectment for a house, belonging to his prebend, and was required to shew that he had performed the requisites necessary by law to make him prebendary; Wilmot, J. held, that it ought to be presumed that he had performed them, until something appeared to the con h Doe d. Birtwhistle v. Vardill, 5 B. & C. 438. But see the report of writ of error in this case in D. P. 2 CI. and Fi. 571. i Peake's Evid. 324. k Doe d. Fisher v. Giles, 5 Bingh. 421. and Doe d. Roby v. Maisey, 8 B. and C. 767. 1 Doe d. Whitaker v. Hales, 7 Bingh. VOL. II. m Doe d. Rogers v. Cadwallader, 2 B. n See Monk v. Butler, 1 Roll. Rep. 83. F trary. In addition to the proof of his title, formerly, the lessor of the plaintiff was obliged to prove the defendant in possession of the lands, &c. to which he makes title. But this is now rendered unnecessary by the consent rule, which see ante, p. 730, 1. N. A tenant in possession cannot be a witness to support his own possession. If a material witness for the defendant be made a co-defendant, he should suffer judgment by default (40). Where there are several demises of two persons, although the evidence shews the title to be exclusively in one of them, the other cannot be compelled by the defendant to be examined as a witness for him; because the lessor for the plaintiff in ejectment is substantially the plaintiff on the recorde. The parish register, or an examined copy thereof, will be evidence to prove christening, marriages, or burials. A register of baptism is not per se evidence of the place of the birth of the party baptized. Reputation is sufficient evidences of a marriage, even where the party adducing it seeks to recover as heir at law to his brother, the person last seized, and the father is still living. Under the stat. 6 & 7 W. 4. c. 86, for providing means for a complete register, by s. 38. certified copies of entries, sealed or stamped with the seal of office, are to be received as evidence of the birth, death, or marriage, to which the same relates, without any further, or other proof of such entry. As to marriages, see ante, p. 23. The stat. 6 & 7 W. 4. c. 85. and c. 86. suspended for a limited time by stat. 7 W. 4. c. 1. and amended by 1 Vict. c. 22. came into operation on the 1st of July, 1837 (41). c Smith v. Mann, 1 Wils. 220. Fenn e Fenn on the several demises of Pewtriss and Thompson v. Granger, 3 Campb. 177. f R. v. North Petherton, 5 B. & C. 508. g Doe d. Fleming v. Fleming, 4 Bingh. 266. (40) One of two defendants, who has suffered judgment by default, may be called to prove the other defendant in possession. Doe d. Harrop v. Green, 4 Esp. N. P. C. 198. sed quæ. and see Chapman v. Graves, 2 Campb. 333 n.; but see Worrall v. Jones, 7 Bingh. 395, where it was adjudged, that a party to the record is a competent witness, provided he be disinterested. See also, stat. 3 & 4 W. 4. c. 42. s. 26. (41) The reader is requested to insert this date in the blank left in p. 22. 1. 26. The original visitation-books of heralds, compiled when progresses were solemnly and regularly made into every part of the kingdom, to inquire into the state of families, and to register such marriages and descents as were verified to them on oath, are allowed to be good evidence of pedigrees. Although it is a general rule that hearsay evidence is not admissible, yet in some cases where a strict adherence to that rule would utterly prevent the party from establishing his case, the law sanctions a departure from it (42). Hence the declarations of the members of a family are received in evidence as to pedigrees; but evidence of what a mere stranger has said has ever been rejected in such cases (43). So the dying h Matthew v. Port, Comb. 63. 3 Bl. i Per Lord Kenyon, C. J. in R. v. Comm. c 7. 11. Eriswell, 3 T. R. 723. (42) "Hearsay is good evidence to prove, who is my grandfather, when he married, what children he had, &c. of which it is not reasonable to presume that I have better evidence; so to prove that my father, mother, cousin, or other relation beyond the sea is dead, and the common reputation and belief of it in the family, gives credit to such evidence." Gilb. L. Ev. 212. edit. 1761. See also Doe d. Banning v. Griffin, 15 East, 293, where it was proved by one of the family, that, many years before, a younger brother of the person last seized had gone abroad, and according to the repute of the family had died, and that witness had never heard in the family of his having been married. This was holden to be sufficient prima facie evidence, that the party was dead without lawful issue. Ejectment on a demise laid in the year 1818. To establish the case for the lessors of the plaintiff, it became necessary to prove the death of A. who had been tenant for life; it appeared that he was born in February, 1759, and had been a wanderer during the greater part of his life, having been absent from his relations from 1787 to 1804. In 1804 he returned, and having remained a short time, went away again; since that time he had not been seen in the neighbourhood. These facts were deposed to by a person who resided near the spot; but no one of the family was called as a witness. It was holden, that this was prima facie evidence, from which the jury might presume A.'s death; Doe d. Lloyd v. Deakin, 4 B. and A. 433. If persons for whose lives estates have been granted remain beyond the seas, or absent themselves in this realm for seven years together, and no sufficient proof be made of the lives of such persons, in any actions commenced by the lessors or reversioners for the recovery of the estates, they shall be accounted as naturally dead. Stat. 19 Car. 2. c. 6. (43) In ejectment brought by the Duke of Athol, Mr. Sharpe, attorney, was at first permited to give in evidence what he had heard declarations of a person, who had, as she herself stated, been servant to M. W., through whom the pedigree was traced, as to the relationship of the lessor of the plaintiff to the person last seized, have been rejected. So hearsay evidence of the declaration of a deceased father, as to the place of birth of his bastard child, is not admissible to prove the birth settlement of such child. The husband has been considered as a member of the wife's family within the exception; and, consequently, his declarations as to the illegitimacy of his wife are admissible in evidence. So a widow has been allowed to prove the declarations of her deceased husband in support of her son's title, although the husband, if living, would have had the right which the declarations went to establish". So declarations of a person entitled to a remainder upon failure of issue of the then possessor are admissible, although the title of the plaintiff was that which the person making the declarations would have had, if living. But in all cases, if it appears that the declarations have been made post litem motam, that is, not merely after the commencement of the suit but after the dispute has arisen P, they are not to be received. In the case of the Banbury claim of peerage, D. P. 23d February, 1809, the counsel for the petitioner stated that he would offer in evidence certain depositions taken upon a bill (seeking relief), filed in the Court of Chancery on the 9th of February, 1640, by Edward, the eldest son of the first Earl of Banbury, an infant, by his next friend. This evidence having been objected to, and the point argued, the following questions were proposed to the judges: Upon the trial of ejectment brought by E. F. against G. H. to recover the possession of an estate, k Doe d. Sutton v. Ridgway, 4 B. and 1 R. v. Erith, 8 East, 539. n Peerage case cited by Abbott, C. J. o S. C. an old servant of the family (since dead) say concerning this pedigree; but it being strongly objected to, and Hollings relying on the objection, they afterwards gave other evidence. M. S. Mr. Wegg. See a different statement of this case in Gilb. Law of Ev. 112. and Bull. N. P. 290, under the name of D. of Athol v. Ld. Ashburnham. But quæ. if the foregoing be not more correct. Declarations of servants and intimate acquaintance are not admissible; the rule is confined to members of the family. Johnson v. Lawson, 2 Bingh. 86. 9 Moore, 183. S. C. |