judges in the Banbury case spoke of satisfactory evidence upon this subject, they must be understood to have meant such evidence as would be satisfactory, having regard to the special nature of the subject. It is to be deduced as a corollary from the opinions of the *judges in that case, that whenever a husband and wife are proved to have been together at a time when, in the [ *720 ] order of nature, the husband might have been the father of an afterborn child, if sexual intercourse did then take place between them, such sexual intercourse was prima facie to be presumed; and that it was incumbent upon those who disputed the legitimacy of the afterborn child, to disprove the fact of sexual intercourse having taken place, by evidence of circumstances which afford irresistible presumption that it could not have taken place; and not, by mere evidence of circumstances which might afford a balance of probabilities against the fact that sexual intercourse did take place." In Morris v. Davies (b) the husband and wife, after living together for ten years, and having one child, agreed to separate. They accordingly afterwards lived apart, but within such distance as afforded them opportunities of sexual intercourse, the husband not being impotent. It was held that the presumption of law in favour of legitimacy of a child begotten and born of the wife during separation may be rebutted, not only by evidence to show that the husband had not sexual intercourse with her, but also by evidence of their conduct; such as that the wife was living in adultery, that she concealed the birth of the child from the husband and declared to him that she never had such child, that the husband disclaimed all knowledge of the child, and acted, up to his death, as if no such child was in existence; and also that the wife's paramour aided in concealing the child, reared and educated it as his own, and left it all his property by his will. In this case it was contended on one side, that when there is evidence showing the husband and wife to have been in such a situation together as that sexual intercourse might have taken place, the presumption of law that it took place is not to be rebutted by circumstantial evidence, such as evidence of subsequent conduct. It was, however, admitted that such inference may be met, and, if the circumstances be strong enough, repelled, by evidence demonstrating the probability or showing the improbability that such intercourse did in fact take place upon the occasion, such as the shortness of the time the parties *were together, for the purpose for which they met, and [ *721 ] the circumstances of the place in which they were; that is, by evidence not going directly to negative the fact of sexual intercourse, but by circumstantial evidence negativing the presumption of such interviews having been used for the purpose of sexual intercourse, by raising from the facts proved a still stronger presumption that no sexual intercourse did in fact take place. But it is contended that such circumstantial evidence must be confined to the particular circumstances of such meetings. The point in issue therefore was, whether the husband and wife on the occasions referred to had sexual intercourse, that is, whether they committed a certain act, and it has not (b) 5 Clark & Finn. 163; 3 Car. & P. 215. 427. been explained why, if circumstantial evidence be received to prove or disprove the act of one party, such circumstantial evidence is to be confined to the particular period of the imputed act, and why the subsequent acts and conduct of the parties are not to be looked at and considered for the purpose of establishing or repelling the presumption of the act in question having taken place. If after the birth of a child whose legitimacy is questioned the husband and wife had acknowledged the child as legitimate, such recognition would, beyond all doubt, be received as strong evidence of legitimacy; but if so, evidence of their having repudiated the child as illegitimate must be receivable to disprove the legitimacy. The argument of the appellant was put thus, if sexual intercourse be proved,, no evidence will be permitted to prove the child illegitimate; and proving the husband and wife to have been in situations in which sexual intercourse may have taken place, is proof of sexual intercourse. And as no distinct proof of actual sexual intercourse is required or capable of being given, therefore no evidence can be received to prove the child illegitimate. This argument appeared to rest entirely upon confounding two things which are perfectly distinct, viz. the proof or conclusion of sexual intercourse having taken place, with the evidence by which the conclusion is to be established. If sexual intercourse be proved, that is, if the jury or the judge trying the question of fact be satisfied that sexual intercourse took place between the husband and wife at the time of the child being conceived, the law will not *permit [ *722 ] an inquiry whether the husband or some other man was more likely to be the father of the child; and some facts are so strong as to afford irresistible evidence of sexual intercourse having taken place, such as the husband and wife sleeping together, there being no natural impediment to sexual intercourse; but in the absence of such irresistible evidence, the fact of sexual intercourse must be tried like every other fact to which no direct evidence is applicable. Proof that the husband and wife were living in the same town, and so had opportunities of meeting, and therefore of sexual intercourse, would, in the absence of any proof raising a presumption to the contrary, be sufficient to establish the legitimacy of a child born of the wife. Proof that they had been in the same room or in the same house together would be much stronger evidence of the fact, the strength of which however would vary with the circumstances; and as neither would be direct proof of sexual intercourse, but of facts from which, taken by themselves, sexual intercourse would be inferred, such inference must, as in all other cases, be capable of being repelled by proof of facts tending to raise a contrary inference. The argument for the appellant, assumed as a rule of law that no evidence is admissible to disprove sexual intercourse having taken place where the opportunity is proved to have existed, the husband and wife being proved to have been within the same house. This is very like attempting to establish a doctrine of infra quatuor muros, instead of the exploded doctrine of quatuor maria. But it is admitted that the parties may be followed within these four walls, and the fact of sexual intercourse not only disproved by direct testimony, but by circumstantial evidence, raising a strong presumption against the fact. If so, the presumption does not stand on any positive rule of law, but upon evidence of the fact, as to which the ordinary rules of evidence must be applied."(c) The result of this case is, that all the circumstances may be looked into for the purpose of deciding whether sexual intercourse did take place between the husband and wife at such time as might make it possible for him to have been the father of the child, and that the fair and reasonable result of such inquiries was [ *723 ] the conviction that no such intercourse did take place, and that the child was not his. The appeal was therefore dismissed, but without costs, after the various conflicting verdicts which had been given upon the case. Evidence of Husband or Wife as to Access not admissible,]-Upon the trial of an issue as to access or non-access of the husband, whether arising at the sessions or upon a trial directed by the Court of Chancery, it is an indisputable rule of law, that, for the purpose of proving non-access, neither the husband nor the wife can be examined as witnesses. Upon the trial of a question as to the legitimacy of a child procreated during the marriage of A. and B., neither A. nor B. is a competant witness to prove the non-access of A. Nor can their evidence of facts, from which non-access may be inferred, be received for that purpose, (d) as that the husband at a particular time lived at a distance from his wife and cohabited with another woman. Nor can the woman give evidence of the non-access of her husband, for the purpose of bastardizing her issue, though the husband be dead at the time of her examination as a witness. (e) In the case of an order of maintenance of a bastard, the evidence of the woman may prove the fact of adultery with her, but cannot prove the non-access of the husband.(f) But after other proofs of non-access, her testimony will ex necessitate be evidence as to the putative father.(g) Proof of the parents' declaration on oath or otherwise is evidence after their decease of the fact of marriage and the time of birth;(h) and so is the declaration or memorandum of a surgeon, deceased, as to the latter fact.(i) Declarations in the family, descriptions in wills, upon monuments, in Bibles and registry books, are all admitted, upon the principle that they are the natural effusion of a party who *must know [ *724 ] the truth; and who speaks upon an occasion when his mind stands in an even position, without any temptation to exceed or fall short of the truth.(k) The declarations of a party connected by marriage are receivable in evidence. Consanguinity or affinity by blood is not necessary, for this obvious reason, that a party by marriage is more likely to be informed of the state of the family, of which he is become a member, than a relation who is only distantly con. (c) Morris v. Davies, 5 Clark & Finn. 241-244. (d) Rex v. Inhabitants of Sourton, 6 Nev. & M. 575; 5 Ad. & Ell. 180; Rex v. Reading, Rep. temp. Hardwicke, 79; Rex v. Rook, 1 Wils. 140; Goodright v. Moss, Cowp. 594. (e) Rex v. Kea, 11 East, 132. (f) Rex v. Rook, 1 Wils. 340. (g) Rex v. Reading, Rep. temp. Hardw. nected by blood.(1) The declarations must be made ante litem molam. If there be lis mota, or any thing which has precisely the same effect upon a person's mind with litis contestatio, that person's declaration ceases to be admissible in evidence.(m) The declarations of husband or wife cannot be received to bastard. ize their children.(n) In Smyth v. Chamberlaine (0) Sir William Wynne observed, on the statements of the husband and wife tending to show the illegitimacy of the child, "This disavowal by the father and mother was not, I conceive, such as by law they were allowed to make; Lord Mansfield says, the law of England is clear that the declaration of a father and mother cannot be admitted to bastardize the son born after marriage; and this is a rule, notwithstanding what has been said of it, which in my opinion is entitled to the utmost deference, not only from the authority which belongs to every thing delivered by that great judge, but from its conformity with the early decisions, and its tendency to preserve order, and to prevent confusion in the descent of property and the administration of justice. It is a rule not only of the law of England, but of the 47th title. It may at first sight appear oppressive to the husband, but we should recollect that a husband, who is injured by his wife, may obtain a separation from her, and thereby escape all danger of a spurious progeny. If a husband connives at his wife's living with another person, he exposes [ *725 ] himself to the consequences of such baseness, *and access must be presumed in the absence of proof to the contrary. This is not the only case of a similar nature in which the law rejects evidence opposed to a presumption, though such evidence shall amount altogether to full proof. If a woman, big with child by A., be married to B., it is clear that the latter becomes the legal father." A baptismal register, in which the party is described as the illegiti mate son of his mother, is admissible evidence on the trial of an issue as to the legitimacy of such son; but Alderson, B. said that it could only be treated as evidence of the reputation in the village. It is not proved on what ground, or by whose procurement, the entry had been made; and that if the entry had been made by the procurement of the mother, it would not be admissible evidence at all.(p) In questions of pedigree the rule is to limit the admissibility of declarations to members of the family. The declarations of an illegitimate member of a family respecting his illegitimate brothers are not admissible as reputation, the declaration being that one of the brothers had died without issue; for the brother was not in point of law a member of the family of his reputed father.(q) So declarations of servants and intimate acquaintances are not admissible evidence in questions of pedigree. (r) Tradition is admissible evidence in cases of pedigree. For instance, suppose from the hour of one child's birth to the death of its parent, it had always been treated as illegiti (1) Doe d. Futter v. Randall, 2 Carr. & P. 25. (m) Ibid.; Monckton v. Attorney General, 2 Russ. & M. 160; Doe d. Tilman v. Tarver, 1 Ry. & Moody, 141. (n) Cope v. Cope, 5 Carr. & P. 604. (0) Le Marchant's Gardner Case, 370. (p) Cope v. Cope, 1 Mood. & Rob. 276; 5 Carr. & P. 604. (q) Doe d. Bamford v. Barton, 2 Mood. & Rob. 28. See Rex v. Erith, 8 East, 539. (r) Johnson v. Lawson, 2 Bing. 86. 341. mate, and another introduced and considered as the heir of the family, that would be good evidence. An entry in a father's family Bible, an inscription on a tombstone, a pedigree hung up in the family mansion (as the Duke of Buckingham's was), are all good evidence. So the declarations of parents in their lifetime.(3) On an issue from chancery to try the legitimacy of a party born of a married woman, since deceased, declarations by her that he was not the son of her husband, but of another man, are not admissible, nor are such declarations of the husband admissible.(t) In the proof of a pedigree the dying declarations of A. as to the rela[ *728 ] tionship of a person who claimed as heir at law of the person last seised are not receivable in evidence.(u) General declarations, or the answer of a parent in chancery, are good evidence, after the death of such parent, to prove that a child was born before marriage, but not to prove that a child born in wedlock is a bastard.(x) The supposed husband or wife, having no interest, is a competent witness to disprove a marriage. (y) So parents may be called as witnesses with respect to the legitimacy of their issue; so on the other hand, they are not incompetent to prove that their children are illegitimate, although in the latter case their testimony is open to much observation.(z) Period of Utero Gestation.]-The period of utero gestation is a matter for consideration in some cases of the birth of a posthumous child, or in case of the husband's absence from his wife for such a length of time as to render it doubtful whether, according to the usual course of nature, he could have been the father of the child. It is stated by a writer of considerable authority on this subject,(a) that by the common consent of mankind, the ordinary term of gestation is considered to be ten lunar months, or forty weeks. This period has been adopted, because general observation, in cases which allowed of accurate calculation, has proved its correctness. It is not however denied that differences of one or two weeks have occurred. The eminent anatomist, Dr. Hunter, in answer to the three questions: 1. The usual period of a woman's going with child? which is the earliest term for a child's being born alive? and what the latest? replied, 1. "The usual period is nine calendar months; but there is very commonly a difference of one, two, and three weeks. 2. A child may be born alive at any time from three months; but we see none born with powers of coming to manhood or of being reared before seven calendar months or near that time. At six months it cannot be. 3. I have known a woman bear a living child in *a [ *757 ] perfectly natural way, fourteen days later than nine calendar months, and believe two women to have been delivered of a child alive, in a natural way, above ten calendar months from the hour of conception.(b) (8) Goodright v. Moss, Cowp. 594; Kidney v. Cockburn, 2 Russ. & M. 167. (t) Cope v. Cope, 1 Mood. & Rob. 269. (u) Doe d. Sutton v. Ridgway, 4 B, & Ald. 53. (x) Goodright v. Moss, Cowp. 591. (y) Rex v. St. Peter's, Burr. S. C. 25; Bull. N. P. 112; Cowp. 593. (z) Rex v. Bramley, 6 T. R. 330. |