By 21 H. VIII. c. 15, a termor may enter immediately after the habere facias seisinam on a common recovery, and give his term in evidence upon an ejectment brought against him; but if the defendant be a stranger to the term, he is not within the benefit of the statute, so as to give the term of a third person in evidence to falsify the recovery against himself, or those under whom he claims.-Booth v. Lindsey, M. 1709. 2 Raym. 1294.

Where the lessor of the plaintiff is an infant, or resides abroad, the court will upon motion stay proceedings till a real lessee is named, or security given for payment of the costs.-Birchman v. Wright, E. 1734. (a)

The court will always stay proceedings upon a second ejectment till the costs of the first are paid, though it were brought in a different court. (Anon. H. 10 W. III. Salk. 255.) So where an ejectment was brought on the demise of husband and wife, in which they were nonsuited, after the husband's death the wife bringing a fresh ejectment, the court stayed proceedings till the costs of the former nonsuit were paid.-Duchess of Hamilton's Ca. E. 14 Geo. II.

If an ejectment be brought in order to try the validity of a will, (b) and a parcel of land is inserted in the declaration to which the plaintiff has an undoubted right (as copyhold land where there is no surrender to the use of the will,) and the defendant not observing it confesses lease, entry, and ouster for the whole, the plaintiff shall not on this account be excused from the costs, but the court will give the defendant leave

(a) But if the guardian undertake to pay the costs, it is sufficient. Anon. Cowp. 128.

(b) Deaf, dumb, and blind persons, as well as infants, &c. are ranked by Lord Coke as amongst persons incapacitated to make a will, but that rule surely can only apply to those who are deprived of those powers of mind, which enable the parties to judge properly of their own concerns, and of the disposition of their property.

As to fêmes covertes, though they cannot in general make a will, of which the spiritual court can grant probate, yet under a power reserved or created, a fême coverte may make a will to operate as an appointment

in execution of such a power, and a probate thereof may be granted accordingly. Jenkin v. Whitehouse, 1 Burr. 431. But if the devise be of a chattel interest, under such a power, the will cannot be read in evidence till the probate is granted. Stone v. Forsyth, Dougl. 681. (707.)

As to those cases in which a devise is deemed void, as being a disposal of what the law already gives, or of what the policy of the law will not admit, or for uncertainty in the description of the devisee or of the estate devised, or by the death of the devisee in the life-time of the devisor, see Bridgm. Anal. Dig. of Eq. Ca. tit Devise, III. IV. (2d ed.)

to

to retract his confession as to this parcel.-Odie v. Preston, M. 27 Car. II. (a)

As in this action more frequently than in any other the legitimacy of the parties comes in question, it may be proper in this place to take notice, that it is the practice to admit evidence of what the parties have been heard to say as to their being or not being married; and with reason, for the presumption* arising from their cohabitation, is either [*112 ] strengthened or weakened by such declarations, which are not to be

given in evidence directly, but may be assigned by the witnesses as a reason for their belief.

In May v. May, (H. 17 Geo. II.) which was tried in K. B. at bar upon an issue directed out of chancery, the preamble of an act of parliament reciting that the plaintiff's father was not married, and to the truth of which he was proved to have been sworn, was given in evidence, yet upon proof of a constant cohabitation, and his owning her upon all other occasions to be his wife, the plaintiff obtained a verdict. (b)

But on an appeal against an order of removal, where the sessions stated that J. H. the father of the pauper swore that he had travelled

(a) Ejectment being the mode by which titles to land, under wills, are frequently tried, it is necessary to shew what is required in such cases by the statute of frauds, and to enquire into the testator's capacity to devise; as to the first of which points, we refer the reader to the statute, 29 Car. II. c. 3. s. 5 & 6; and as to the second, to the statute, 32 H. VIII. c. 1; in regard that the first of those statutes points out the solemnities necessary to be observed in executing a will to pass real estates; and the second declares all infants, insane persons, and fêmes covertes, incapable to make a will; but wills made under undue influence, or obtained by fraud, are left subject to the common law as before. As to infants however, though a will made by one under twentyone is void, yet it may be substantiated by a publication on the attainment of full age. Herbert v. Torball, 1 Sid. 162. But it is no publication for a man, when of full age, to say before witnesses, that his

will should stand good. Hawe v
Burton, Comb. 84. An infant how-
ever may devise by custom, (Perk.
221,) for his incapacity only extends
to estates in fee-simple. Terms for
years therefore, and chattel interests
may be devised by males at fourteen,
and by females at twelve years of
age. Godolph. Orph. Leg. pl. 1. c. 8.
Lovelass on Wills, 122.

The day of birth is inclusive,
therefore if A. be born on 1st Fe-
bruary, at eleven at night, and die
at one in the morning of the last
day of January, in the twenty-first
year of his age, his will made on
that day is good. Anon. Salk. 44.

(b) Coverture being the defence set up in this case, proof was offered of an acknowledgment by W. W. that A. W. the plaintiff, was bis wife, and that they were married together, but no proof was offered of actual marriage. Per Ellenborough, C. J. this acknowledgment is insufficient without proof of actual marriage. Wilson v. Mitchell, 3 Camp. 393.

with H. A. for seven years, and during all that time they cohabited as man and wife: That she had the pauper and two other children by him born in Swinford parish: and that they were reputed man and wife, and continued so till the woman's death, but that they never were married; the court held, that as all this case was disclosed on the sole evidence of the father, however difficult it might be to admit his evidence to bastardize a reputed legitimate child, yet as all depended on the father's testimony, the whole must be taken together, and then it appeared that he never was married; and consequently the child being a bastard was settled at Swinford. And the court said there was no colour to say the father was swearing to discharge himself; for if the child were legitimate, he was bound to keep it by 43 Eliz. and if a bastard, he must indemnify the parish by 18 Eliz.-Parish of St. Peter in Worcester v. Old Swinford, E. 8 Geo. II. B. R.

The old rule of the presumption of law, that the husband continuing within the four seas, and being alive at the child's birth, the child could not be a bastard, is exploded.-Rex v. Inhabitants of Bedel, T. 11 Geo. II. 2 Stra. 1076. (a)

Where a woman is separated from her husband by a divorce a mensa et thoro, the children she has during the separation are bastards, for the court will intend a due obedience to the sentence unless the contrary be shewn; but if baron and feme, without sentence, part and live separate, the children shall be taken to be legitimate, and so deemed till the contrary be proved, for access shall be intended. But if a special verdict finds the man had no access, it is a bastard, and so was the opinion of my Lord Hale in the case of Dickins v. Collins, S. P. H. 3 Geo. I. between the parishes of St. Andrew's and St. Bride's.—St. George's Parish, Westminster, v. St. Margaret's, Westminster, 1 Salk. 123. [113] The wife gave evidence that the defendant (upon whom an order of bastardy in this case was made) had carnal knowledge of her body about August, 1732, and several times since, and was the father of the child, which was born in 1733.- That her husband had no access to her from May, 1731.-Other witnesses proved the husband to be within seven miles of her all the time. The question was, Whether the wife were a competent witness to bastardize the child. And per curiam, such facts as cannot in their nature be proved by any other person, must

(4) In this case, which was a case of removal, it was stated, that there had been no access for seven years, though it fully appeared the

husband was living, yet that was held sufficient to bastardize the issuc.

be

be proved by the wife; as here the act of incontinence, which lay in the wife's own knowledge: but she ought not to be permitted to prove the want of access, which might be notorious to the whole neighbourhood. -Rex v. Reading, B. R. M. 8 Geo. II. Ca. temp. Ld. Hardwicke, 79. 1 Bott. 399. (a)

Note; The want of access in that case tended to discharge her hus band from the maintenance of the child, as it proved the child to be the bastard of another man; but after her husband's death she might be a witness to prove the child a bastard, as well as the father who was admitted for that purpose in the case before, between the parish of St. Peter's in Worcester and the Parish of Old Swinford.-Ante p. 112a. In Pendril v. Pendril, H. 5 Geo. II. (Stra. 925,) (b) Lord Raymond would not suffer the wife's declaration, that she should not know her husband by sight, &c. to be given in evidence, till after she had been produced on the other side; the fact of the marriage not being disputed, but only the legitimacy.

In the same case the Chief Justice admitted evidence to be given of the mother's being a woman of ill fame.

The declarations of the wife without oath were properly rejected in that case, because they were not the best evidence. The husband was dead, and she might be examined. Stra. says, that the Chief Justice would not allow the wife's declarations to be given in evidence, till she had been called, and denied them on cross examination.-After that they were evidence to impeach her credit.-The reason here given, viz. " be"" cause the fact of the marriage was not disputed, but only the legi"timacy," is not mentioned in Strange. The Chief Justice, in directing the jury, said, that the old notion of the presumption infra quatuor maria was exploded, that the evidence to overturn this presumption need not be so strong as was insisted upon by the plaintiff's counsel. That the evidence was the same in this as in all other cases, a probable evidence was sufficient, and it was not necessary to prove access impossible between them. The jury found that the plaintiff was a bastard without going from the bar, upon which the Chief Justice commended the verdict. (c)

In

(a) Vide etiam Rex v. Rook, 1 Wils. 340.

(b) In Sidney v. Sidney, 3 P. W. 276, where this case is cited, it is said to have been heard before Lord Talbot on 5th February, 1733.

(c) So the child of a married woman may be proved to be a bastard by other evidence than the nonaccess of her husband, as by evidence of being born during the notorious cohabitation of his mother

In Lomax v. Holmden, (6 Geo. II. at Bar. Stra. 940,) the marriage being proved, and evidence given of the husband's being frequently in London where the mother lived, so that access must be presumed, the defendants were admitted to give evidence of his inability from a bad habit of body; but their evidence going only to an improbability, and not to an impossibility, it was thought not sufficient, and the plaintiff had a verdict.

In Jones v. Bow, (E. 4 W. III. Carth. 225.) the defendant, by way of anticipation to the evidence the plaintiff was about to give, moved the court that the plaintiff ought not to be allowed to give evidence of the marriage of Sir Robert Carr to J. S. under which he claimed, because there was a sentence in the arches in a cause brought against her causa jactitationis maritagii, that there was no marriage between them, but that they were free one of another; and upon debate the court were all of opinion, that this sentence, whilst unrepealed, was conclusive against all matters precedent.

By 26 Geo. II. c. 33, if any person shall solemnize matrimony in any other place than a church, or public chapel, (unless by special licence from the archbishop of Canterbury) or without publication of banns, or licence in a church or chapel, the marriage shall be void. This act does not extend to marriages solemnized in Scotland, or in parts beyond the seas; nor to marriages amongst Quakers or Jews, where both parties are such. (a)

And by the same act, all marriages solemnized by licence, where either of the parties not being a widower or widow, is under the age of twenty-one years, which shall be had without the consent of the father or guardian of such party, shall be absolutely void.

The appellant and respondent, both English subjects, and the appellant being under age, ran away without the consent of her guardian, [*114 ] and were married in Scotland; and on a suit brought in the spiritual court to annul the marriage, it was holden that the marriage was good.— Compton v. Bearcroft, cor. Delegates, 1st December, 1768.

with another man, and of his being
considered by all the family as the
child of those two. Goodright, d.
Tompson v. Saul, 4 T. Rep. 356.
Et vide Rex v. Lubbenham Inhabit-
ants, 4 T. Rep. 251.

(a) Neither does it take away the
evidence of presumption from co-

habitation; but if the evidence be clear that the marriage was not celebrated according to the requisitions of the act, it is totally void, and no declaratory sentence in the ecclesiastical court is necessary. R. v. Preston next Travusham, M. 33 Geo. II. B. R. MS. Ca.