himself when he was four years of age, in the parish of A., is no proof that he was born there. Rex v. Trowbridge, 7 B. & C. 252. In Rex v. Erith, 8 East, 539. It appeared, on the evidence of the pauper, that he remembered being at Erith with his father; that they had no fixed residence; and that his father, who was now dead, had told him that he was born a bastard at Erith, and had pointed to that place as they were passing, telling him that that was the place of his (the pauper's) birth. A search was made in the books of the parish of E., and no register of the pauper's baptism was to be found there. The sessions thought this sufficient evidence of the pauper's birth at E. The judgment of the Court was delivered by Lord Ellenborough. The controversy was not, as in a case of pedigree, from what parents the child derived its birth, but in what place an undisputed birth, derived from known and acknowledged parents, has happened. The point, thus stated, turns on a single fact, involving no question but that of locality, and, therefore, not governed by the rules applicable to places of pedigree; and is to be proved, therefore, as other facts generally are proved, according to the ordinary course of the common law; that is, by evidence to which the objection of hearsay does not apply. We are, therefore, upon this ground, of opinion that the evidence of the father's declaration as to the birth-place of the pauper, the bastard, ought not to have been received. Order of sessions quashed, (ante, 802.) [See Phill. Ex. 229. 6th edit. 3 Stark. on Evid. 1115.] The declaration of a deceased mother, as to the time of birth, is admissible in evidence, upon a question as to the place of birth of the child, though the father be living. Rex v. Birmingham; Rex v. Aston, K. B., Oct. 1829; Steer's Par. L. 599. [See ante, 802.] Rex v. North Petherton, 5 B. & C. 508; 8 D. & R. 325; 4 D. & R. Mag. Ca. 79. Joseph Rich was removed from North Petherton to West Monckton. Order quashed. Case: To make out the settlement of the pauper's father, it was proved by a copy of the parish register of Spaxton, that he was baptized in that parish. There was no other evidence of his having been born in that parish, and the sessions thought, on the authority of Creech St. Michael, v. Pitminster, that they were bound to consider the register by itself, primâ facie proof of the place of his birth. When that case was quoted in King's Bench, Bayley, J., said, We do not know at what age the pauper's father was baptized. It was urged, that he was baptized within a very short time after his birth. According to the doctrine of the church, touching baptism," the pastors and curates are directed to admonish the people, that they defer not the baptism of infants any longer than the Sunday next after the child be born, unless upon great and reasonable cause declared by the curate, and by him approved."-Gibson's Codex. Jur. Ecc. Bap. tit. 18, c. 9. The counsel on the other side were stopped by the Court. Bayley, J. The register of baptism per se is not evidence of the place of birth. If the age of the child at the time when it was baptized could be ascertained, the register might, in some cases, be evidence of the place of birth. If the child were then very young, the register would be presumptive evidence that it was born in that parish where it was baptized; but if the child were not then young, the circumstance of its having been baptized in a particular parish, would afford no presumption that it was born there. Here there was no evidence to shew the age of the child when it was baptized. We think, therefore, that the case must go back to the sessions to be reheard, in order that they may ascertain by other evidence whether the father of the pauper was born in the parish of Spaxton or not. We do not say that a register of baptism is not evidence of the place of birth, when accompanied with proof of other circumstances, but that, taken by itself, it is not evidence of the place of birth.-Holroyd, J. I am of the same opinion. I think the register alone is not sufficient to establish the place of birth. It would be sufficient, coupled with proof that the pauper's parents were living within the same parish at the time of the baptism, or that the birth had been shortly previous to the baptism, which latter circumstance would afford a strong presumption that the child was born in the same parish where it was baptized.-Littledale, J., concurred. Secondly, Of evidence of settlement, &c. 1. Of evidence of settlement by birth. tion of the father, The register of baptism is not, evidence of the place of a per alone, sufficient son's birth. Secondly, Of evidence by settlement, &c. 1. Of evidence of settlement by birth. Birth settlement may be proved by the copy of Creech St. Michael, v. Pitminster, Burr. S. C. 765. The mother of the pauper was subpœnaed, but did not attend; and no account was given of her being under any legal disability of attending. For which reason the sessions quashed the order, as not being supported by the best evidence that the nature of the case would admit of. On the other hand, a copy of the parish register of Pitminster, was produced. “Christenings, 1735, John, son of John Every and Mary his wife, baptized Dec. 5." And one of the witnesses swore, that the pauper lived many years ago with him; that John the parish regis. Every, who lived in Pitminster, and died long since, was considered as the pauper's father; and that he knew Mary Every who lives in Pitminster, and whom he understood to be the pauper's mother, and has heard the pauper call her mother. On motion to quash the order of sessions, Lord Mansfield, C. J., seemed to think, and so it was afterwards determined, that this evidence was sufficient. The parents are competent to prove, that they were never legally married, or, there being a marriage, that the child was born at a certain time; or the fact of criminal intercourse, but not the non access of the husband. ter of christen ings, and by iden tifying the per son. Evidence of bastardy after the mother's death, by the father, who contradicted his own assertions made dur. ing the mother's life, that he had been married. Parents may prove that they were never married. It had been after thirty years ted to deny his St. Peter's v. Old Swinford, Burr, S. C. 25; 2 Bott, 4. The son of J. H. was removed from St. Peter's to Old Swinford, as a bastard, born there of Hannah Ashe. Order quashed. Case: J. H., the father, proved that for seven years together he travelled with H. A., as wandering persons, till the death of H. A., about 15 weeks since; during all that time they cohabited as man and wife, and it did not appear that the marriage was ever questioned in the lifetime of H. A. During the time that he and H. A. did so cohabit, she was delivered of three children; one of whom, the pauper, was born in O. S. The pauper, and the others, were reputed as his children, and baptized as the legitimate child of him and H. A. He and H. A. were never married. And it appearing to the sessions, upon the evidence of J. H., that the pauper was born during the time that J. and H. did cohabit together, and were reputed husband and wife; and there being no other evidence, they were of opinion that the evidence of J. H. could not support the order, so as to bastardize the pauper. And in support of the order of sessions, it was observed, that this man could not be a proper witness in the case, for nobody could be adjudged a bastard, without the evidence of the woman.-But by Lord Hardwicke, C. J. There is no ground to support the order of sessions. It is an apparent fact, that this man and this woman were never married. The evidence of the man is admissible to prove this fact. The child is therefore a bastard, and must be settled where born. In Rex v. Bramley, 6 T. R. 330. The sessions refused to receive the mother as a witness, to prove that she never had been married, or had been illegally married; and also the declarations of the father and mother to that effect, they having cohabited together, and been reputed as man and wife, till the death of the father. But Lord Kenyon, C. J., held that this evidence was certainly admissible: that parents may be called to prove the children illegitimate. But he observed that such evidence was open to very great observation. Rex v. Stockland, Burr. S. C. 508; 2 Bott. 91. John Moes and Elizadoubted whether, beth Mason, father and mother of the pauper, being both resident in Chardland, about 1723, went from thence together, declaring they were going to be married; and soon returned, declaring they had been married: and from thenceforward cohabited as man and wife for about thirty years, until the death of Elizabeth. The pauper was born at Chardland, in 1725, and there haptized, and his baptism registered as the son of John and Elizabeth Moes. John and Elizabeth Moes, some years before the death of Elizabeth, removed from Chardland to Stockland, and there acquired a settlement. They carried with them the pauper, whose settlement depended upon this question, viz. Whether John and Elizabeth were to be considered as husband and wife at the time of his birth? It was contended at the sessions, that they were never married; or, if they were, that Elizabeth had a former husband then living. Concerning which, several witnesses having been examined on both sides, John Moes, the father, was produced, in order to prove that he Secondly, Of evidence of settlement, &c. and Elizabeth were never married, and that the supposed other husband was then living. But the Court refused to receive his testimony, and were of opinion, that the marriage of John and Elizabeth was proved, and that the pauper gained a settlement at Stockland. It was moved to quash the order 1. Of evidence of of sessions. The objection was, that they ought to have admitted the father settlement by to give evidence of his never having been lawfully married.-But Lord birth. Mansfield, C. J., seemed to think, that thirty years cohabitation as man and wife, was sufficient proof to the justices to found an order of removal upon. However, a rule was made to shew cause; but on the last day of term the objection was given up, and, by consent, the order of sessions was affirmed, and the recognizance discharged. Rex v. Luffe, 8 East, 193. An order of bastardy was made, adjudging M. Taylor to be the mother of a bastard child: and the order stated her to be the wife of J. T., and that it appeared as well on the oath of the said M. T., as otherwise, that her husband had been beyond the seas, and that she did not see her said husband, or had access to him, from, &c. &c., and that her husband returned only fourteen days before the birth, and adjudging as well on the oath of the said M. T. as otherwise, the said H. L. to be the reputed father of the said bastard child. One point was, that the wife was admitted to prove non-access, which, it was contended, ought not to have been. And it was held, by Lord Ellenborough, C. J., that the wife might prove the fact of her connection with that person whom she charged as being the real father of the child. And the whole of the judgment of the C. J., and the other judges, went upon the supposition that she was not a witness to the fact of non-access, but only to the fact of criminal connection; and that the words," as otherwise," implied that other persons were examined on oath. The second point discussed in the case, is not material in this place. The third point was, that the non-access of the husband ought to have been proved during the whole time of pregnancy.-In answer to this, it was said by the Court, that natural impossibility, the being within the age of puberty, and great infirmity, would bastardise the issue though the husband had access. And that it was always a matter of evidence, whether the husband could, by possibility, be the father of the child.-But they left in full force the rule of law, that marriage before the birth made the after-born child, the conception of which commenced before marriage, the legitimate child of the parties marrying. [See tit. Bastard, vol. I.] The wife may prove the fact of connection with the person she charges as the father of the child. access of the husband. In Rex v. Kea, 11 East, 132. The sessions received the evidence of a But not the nonperson who had been the wife of the father (since deceased) of the pauper, and was now the wife of another, to prove that her first husband had not had access to her during a certain period, viz. at the time of the conception of the pauper, and for many months before.-Lord Ellenborough, Ĉ. J., said, that to hold this evidence receivable, would be to overthrow Rex v. Reading, &c., which were not meant to be over-ruled in Rex v. Luffe; the Court intending in that case, that the wife had only been examined to the facts she might legally prove, and not to the non-access of the husband. And the Court also said, that the death of the husband made no difference. Where the husband is within the realm, it is not incumbent on the party alleging bastardy to prove that the husband could not, by any possibility, have had access to the wife; it is sufficient to adduce such circumstantial evidence as satisfies the minds of the jury. The removal of the husband to a place distant from the wife, her cohabiting with another man, and the fact that the son, whose legitimacy is questioned, took the name of the latter from his birth, and which he and his descendants afterwards retained, is strong evidence of illegitimacy. Goodright v. Saul. 4 T. R. 356. A parish may also be estopped by a certificate acknowledging the bastard to be settled with them. [See 284, 5, 6.] Secondly, Of evidence of settlement, &c. 2. Evidence of settlement by parentage. 3. Evidence of settlement by marriage. In all cases but of prosecution for bigamy, and actions of crim. 2. Evidence of Settlement by Purentage. (a) This species of settlement can only be obtained by legitimate children, who take their father's last legal settlement, if he has one, as their own, until they become emancipated, or acquire an original settlement for themselves. If a father has left his children chargeable, and he had no settlement, it will be seen in what cases the children take the maiden settlement of their mother, (ante, 277). As to bastards, (see ante, 279). The proofs of legitimacy are stated under the title of evidence of marriage; and to this must be added, proof of the settlement of the parent, in the same manner as if the settlement of the parent was the only question in dispute. To prove that B., the person for whom a settlement by parentage is claimed, is really the legitimate child of A., in addition to the marriage of the parent, which has been already discussed, the birth of the child within lawful wedlock must be shown, which may be either by direct proof of the birth, and time of birth, as by means of the mother, or any one else personally acquainted with the fact, or by the declarations, oral or written, of deceased relations, who may be acquainted with the circumstance (b), or through the medium of the register, accompanied with proof of identity. Or it may be shown, that the child was reputed to be the legitimate child of its parents, and was so treated by the family, which is prima facie sufficient, if no better evidence, from the peculiar circumstances of the particular case, can be adduced (c). In whatever way the legitimacy of the child may be attempted to be proved, it is still open to the opposite party to show that the child in question was not, in law and fact, a child of the marriage (d). 3. Evidence of Settlement by Marriage (e). In some instances, the question of marriage is put beyond dispute, as between the two parishes, by an acknowledgment of the fact, by certificate, &c., given by the parish sought to be charged (ante, 802). Where no such acknowledgment exists, the most usual course to prove the marriage is, by a person who was present, (and either husband or wife is a competent witness for this purpose,) and the production of the parish register, with proof of the identity of the parties. Another mode of establishing a marriage, is by evidence of reputation. Proof, therefore, by any of the means pointed out as admissible hearsay evidence (ante, 802), that the parties cohabited together, and were received by relations and friends, as man and wife, will suffice, where more direct evidence cannot be obtained. But to render a marriage contract valid, the consent of a free and rational agent is an essential ingredient. [Lord Portsmouth's case, 1 Hagg. Rep. N.S. 372.] A marriage is presumed to have been celebrated with the formalities necessary to its validity, till the contrary be shewn; and it is not necessary to prove that the minister was in orders, or to prove any of the proceedings preliminary to the actual solemnization of the marriage. [See 2 Stark. Et 932.] Morris v. Miller, 4 Burr. 2057. In an action for criminal conversation with the plaintiff's wife, the question was, Whether, to support the action. there must not be proof of an actual marriage? The fact was, they were con, reputation is married at Mayfair chapel. The register or books could not be admitted in evidence. Keith, who married them, was transported; and the clerk, who good proof of marriage. (a) See of Settlement by Parent- (b) 3 Stark. Ev. 1101-1116. ren. (d) Goodright v. Moss, 2 Corp. 591. (e) See Settlement by Marriage, ante, 312. Secondly, Of evidence of settlement, &c. was present at the marriage, was dead. So that the plaintiff could not prove the actual marriage by any evidence. But the plaintiff proved articles between the man and his wife, made after marriage, for settling of the wife's estate, with the privity of relations on both sides. They proved cohabitation, name, 3. Evidence of and reception of her by every one as his wife, and insisted that this evidence settlement by was admissible; and that lately in ejectment, before Lord Mansfield, this sort marriage. of evidence was offered and received. In answer to this Lord Mansfield said, it certainly may be done so, in all cases except two: one is in prosecutions for bigamy; and this case (if such proof cannot be here received) is the other. It was proved, further, that the defendant Miller confessed to the landlord of the lodgings, that she was Captain Morris's wife, and that he, the defendant, had committed adultery with her and confession is the strongest evidence.-Lord Mansfield. In these actions, there must be proof of a marriage in fact, as contrasted to cohabitation and reputation of marriage arising from thence. Perhaps there need not be strict proof from the register, or by a person present; but strong evidence must be had of the fact, as by a person present at the wedding-dinner, if the register be burnt, and the minister and clerk are dead. The case of bigamy is stronger than this. And on an indictment for that offence, Dennison, J., on the Norfolk circuit, ruled, that though a lawful canonical marriage need not be proved, yet a marriage in fact (whether regular or not), must be shewn. But, except in these two cases, I know of none, where reputation is not a good proof of marriage. : Proof of an actual marriage is not, in all cases, sufficient; for it may be shewn, that the solemnities required by statute, and without which the marriage would be void, have not been observed. The first statute requiring the observance of particular forms, was the 26 Geo. II. c. 33, the 11th section of which was repealed by 3 Geo. IV. c. 75. That section enacted, that marriages by banns, without consent of parents, should be void. The 3 Geo. IV. c. 76, contained a retrospective clause legalizing marriages in such cases. As to the then state of the law, Lord Tenterden has observed, "The 4 Geo. IV. c. 17, repeals the 3 Geo. IV. c. 75, except as to things done under its provisions, and except so far as it repealed any former act, or any clause, matter, or thing, therein contained. The retrospective clause in 3 Geo. IV. c. 75, did operate with respect to the particular marriages to which it applied, as a repeal of the clauses in 26 Geo. II. c. 33, which rendered them invalid; it therefore was not repealed by the subsequent statutes, and the marriage of an illegitimate minor is perfectly good, even if by licence; if by banns it was so before 3 Geo. IV. c. 75." Rose v. Blakemore, E., 7 Geo. IV., Ryan & Moody, 382. The 4 Geo. IV. c. 17, and 26 Geo. II., were altogether repealed by the following statute. By stat. 4 Geo. IV. c. 76, s. 8. No minister, &c., solemnizing marriage between persons, both or one of whom shall be under the age of twenty-one years, after banns published, shall be punished by ecclesiastical censures for so doing, without consent of parents or guardians required by law, unless such minister, &c., shall have notice of their dissent: and if such parents or guardians shall publicly declare, or cause to be declared, in the church or chapel where, and at the time, the banns are so published, their dissent to such marriage, such publication of banns shall be absolutely void. Sect. 21. If any person shall solemnize matrimony in any other place than a church or such public chapel wherein banns may be lawfully published, unless by special licence, or shall solemnize matrimony without due publication of banns, or at any other time than between eight and twelve in the forenoon, unless licence be first obtained from some person having authority to grant the same, or if any person falsely pretending to be in holy orders shall solemnize matrimony according to the rites of the church of England; every such offender shall, on conviction, be guilty of felony, and transported for fourteen years; provided, that all prosecutions for such felony shall be commenced within three years after offence committed. Sect. 22. Provided, "That if any persons shall knowingly and wilfully intermarry in any other place than a church, or such public chapel wherein banns shall be lawfully published, unless by special licence as aforesaid, or of dissent of parents, &c. of minors. Marrying with banns, felony in the minister. out licence or Marriage void where persons wilfully marry in any other |