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the fact of the non-access of her fall, had any intercourse with her husband, and that the conviction is for these facts are peculiarly and founded upon the evidence of the solely within her knowi edge. To wife alone. Whereas it is laid the extent of the aduir sous interdown, that an order of this kind curse 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 examuud beyond that? other evidencc of the non-access. The order is, it appears, 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 " as well upon the exa. founded 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 case comes within would be open to the objection them; and next, that this is a legin which has been made, and there timate child born within lawful wed- 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, be taken to bc oath. The order does not distin. his 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 apthe evidence of the wise only? The pears that other evidence was given; evidence of other persons than 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 wife to have been exashould be examined at all in any mined with others, we will inten matter likely to produce dispuies that she was not examined as to between man and wise. However, 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 of 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 compeonly be examined in matters of tent testimony. Here, 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 objcction. As to the second obbe admitted as a competent evi. jection, it in effect resolves itselt dence to prove the illicit inter- into the third. For when it is course with the adulterer. Per made a question, whether the stahaps, also, she was competent to tutes apply to any cases but where prove that no other person than the children are not born in lawful the adulterer, on whom the charge matrimony, it resolves itself for the of maintenance of the child is to purpose into the question, whether he child is born in lawful matrimo. was held to be a bastard. · When, y for the purpose of these acts, therefore, there arises a natural imtd whether a child born in adul: possibility, from the circumstances Ty is a child which these acts had of his bad health, a bodily impossi. | contemplation as much as bas bility, during the period of matri. irds under other circumstances ? mony, which rendered access imposad this we think is the true con. sible, it has been held that the issue ruction of these acts.
was illegitimate. Now there is no Then the question is, whether doubt thrown upon this case, either le return of the husband within any in the original text of Coke and mited time before the period of Littleton, 123, or in the notes estation is expired, does or does where that subject is very ably of cast upon him the character of treated by the gentleman to whom ther of that child incontrovertibly, the public is indebted for the last ccording to the law of this coun. edition of that work. In addition 3? This is an important question; to the improbability arising from ad as there has been something bodily infirmity it is further stated. aid about the novelty of some of 66 and because it is found that the le doctrines to be advanced, one said H. was born eleven days after rould be extremely sorry, not to 40 weeks, which is the time usual and obeseif warranted by ancient for women; and from this, that the thorities. Now in Roll's Abridge. said R. had not access to the said sent, 358, where the most ancient Beatrice for one month before his athorities from the Year-books are death, it is presumed that the said ted, 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 forn after espousals can be a bas. therefore appears to be considered ard, unless for special matter.” as material to go into evidence, This exception is engrafted upon to shew the natural impossibility he rule, and the first special matter of his being the son of the husband:
exactly what in fact occurs here, and in confirmation of this there there there is a naturalimpossibility is a nota bene, that the husband hat the husband should be the fa languished of a fever a long time her of the issue. As where there before his death; so that not only sa natural impossibility from his the length of time, but a further leing uoder the age which renders bodily impediment, was considered frocreation possible, as where he is to be material. A child being ight or nine years old. And born in marriage is not sufficient to here is a case in the Ycar-books, render him legitimate, where any there the husband was only under material impossibility occurs from ourteen years of age. But that which the presumption of legitimacy } not the only instance: There is may be repelled. Britton says, he case of Foxcroft, 10 Edw. I. taking no notice of the presump. where the first husband was ill a tion that marriage proves legitima nonth before his death, and had cy, " And this presumption shall 10 access to his wife, and after- always hold until the contrary is wards the child being born within proved; as, for instance, where the lorty wecks and eleven days, it husband is proved not to have consor.
ted ted (concubuisse) for a given time with sumption that the husband is the his wife, to have been incapacitated father, will be infinitely strong, an by infirmity or other cause, or less there is an evident and clea that he was in such ill health that impossibility that he is not he could not be the father, ut gene therefore contend, that in additio rare non possit.”
to the cases put of impuberty an In another passage, he seems to infirmity, which last is rather a consider certain cases of improba. improbability than otherwise, w bility. I think, therefore, upon may repel the presumption of legit
these aothorities, that if a founda- macy by evidence of non-acce - tion is laid that there is a natural during the greater part of the actu
impossibility arising from age, or period of gestation. As to the ca from infirmity of health, or arising of the queen v. Murray, lord Hari likewise from non.access,that the hus. wicke repudiates the doctrine thi band should be parent of the child, the non-access must continue dori then the illegitimacy of a child born the whole period, and gives I after espousals may be proved. If, countenance to it. Without, then then, any circumstances can be re- fore, disturbing any of the rules sorted to for proof of impossibility, evidence upon this most importar we may certainly refer to such a subject, and without weakenii natural cause as will not embark any of the bonds of marriage, into it any question of nice proba. think that the presumption that a bility, but which involves an abso, children born in marriage are les Jute impossibility of the husband timate, may be shewd to be contr being the father. It is so in the pre- ry to fact. I do not mean in cas sent case. It may be said, that of marriage arising after a gest we may be driven to nice proof of tion commenced, but as to childr physical improbability. But that born after non-access. The ord never need be so; because the pré. affirmed.
"Herelie the bodies
Imprudent in her family.
At home, by ill-temper.
She was an admirable economist,
And, without prodigality,
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, Jan. 1. The lady of John Paine 29. The right hon. Jady Grey, a Todway, esq. a daughter,
3. The right hon. viscountess An. Feb. 2. Her grace the duchess of ton, a daughter.
Montrose, a son. 15.Viscountess Templetown, a son. 3. The lady of the hop. sir Ar.
16. The lady of Charles Wat- thur Wellesley, a son and heir. kin Williams Wynne, esq. M. P. 8. The lady of sir John Trol. a daughter.
lope, a daughter. The right hon, marchioners Corn. 10. Her grace the duchess of wallis, a daughter.
Bedford, 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 hon. Jady Le De.
10. The right hon. lady Am- spenser, a son. horst, a son.
9. Right hon. viscountess ArbuthThe right hon. viscountess Ban- not, a daughter. try, a son.
The lady of Francis Freeling, esq. Viscountess Fitzharris, a son. 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. son. Lady Dunboyne, a son.
Lady Grantham, a son and heir. 27. Lady Gertrude Sloane, a son. Scpi. 3. The lady of sir Walter
30. The right hon. countess Brisco, a son. Berkeley, a daughter.
Lady Mary Kay, 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. a son. Spencer Perceval, a son.
25. Lady Ancram, a daughter. 21. Her grace the duchess of Oct. 4. Hon. Mrs. Buchanan, a Castries, a son
danighter. 26. The right hon. lady Kcnyon, a 16. Lady Charlotte Drummond, daughter. The lady of sir George Barlow, a 20. The countess of Dalhousie,
son. 28. Mrs. D. Cameron, two 24. Lady Foley, a daughter. daughters and a son.
29. Lady Frances Bentinck, a sou June 16. Right hon. countess Nor. 4. The lady of sir Chri Banbury, a daughter.
topher Baynes, a son. 21. The queen of Sweden a 6. Lady Caroline Douglas, princess.
daughter. Countess Barde, a son.
8. Marchioness of Waterford, 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 Here 8. The right hon. countess of ford, a son and heir. Northesk, a son.
25. The lady of sir Willia 12. Right hon, lady Milton, a Fraser, a daughter ; her sixteent daughter,
child. . 18. The right hon, the countess Dec. 1. The lady of sir , Mansfield, a daughter.
Call, bart. a daughter. Right hon, viscountess Marsham, 5. The lady of sir George No a daughter.
gent, a son.