evidence can be given to establish its illegitimacy, it will be admissible. (a)

The rules as to presumed legitimacy have recently been much discussed, and it has been laid down that every child born in lawful wedlock, the husband and wife being in England, and not separated by any sentence of divorce, is presumed to be legitimate. But this presumption may be repelled by proof of such facts as satisfy the jury that no sexual intercourse took place between the husband and wife at a time when the husband could by possibility be the father of the child; and the jury, before they can find against the legitimacy, must be convinced that no sexual intercourse took place by irresistible evidence, and not by a mere balance of probabilities. If such intercourse did take place, the adultery of the wife is immaterial. (b)

3. Presumption on payment of consideration. — It is a presumption of law that where a person advances the money for a purchase, and the conveyance of the lands is made to another person either solely or jointly with the advancer of the money, that the former holds in trust for the latter. (c) But of course evidence may be given of a contrary intention, to rebut this presumption. (d) And if such relationship exists between the parties as to warrant the purchase for the benefit of the person who

(a) See 8 East, 206.

(b) Morris v. Davis, 3 Car. & Pay. 215. 427. And see Richardson v. Richardson, 1 Hagg. 6. Clarke v. Maynard, 6 Madd. & Geld. 364.

(c) See Sug. V. & P. 17. 8th edit.

Wray v. Steele, 2 V. & B. 388,

(d) See the cases cited, Matt. on Pres. 55, 56, 74-79. As to purchases in the name of a child or wife, see ante, p. 339.

does not advance the money, and for whom there was a moral obligation to provide, the presumption of a resulting trust will not arise. (a) The relationship must be that of a wife, or child, whether legitimate or illegitimate; (b) but neither grandchildren, except their father be dead, (c) nor nephews and nieces, come within this principle. (d)

4. Presumption on cross-remainders.-Between two the presumption is in favour of cross-remainders, but between more than two the presumption is against them; but in either case the testator may control the presumption. (e)

5. Presumption of title.-Where a person is in possession, the law will refer that possession to a rightful rather than a wrongful title. Thus where it appeared, by a recital in a conveyance to which the defendant in ejectment was a party, that he was the legal personal representative of his brother, who was administrator to his father, who was a lessor for years; it was held that it might be presumed as against the defendant, either that he obtained letters of administration de bonis non to his father after his

(e) Per Lord Mansfield, Doe v. Barville, Lloft. 101; 2 East. 47. And see Wright v. Holford, Cowp. 31. Phipard v. Mansfield, ib. 797. Atherton v. Pye, 4 T. R. 710. Watson v. Foxon, East. 36. Roe v. Clayton, 6 East. 634. Doe v. Webb, 1 Taunt. 234. Green v. Stephens, 12 Ves. 419. S. C.; 17 Ves. 64. Mogg v. Mogg, 1 Meriv. 655. Horne v. Burton, 19 Ves. 398; and ante, p. 80--82.

brother's decease, or that he took the term by assignment from his brother. (a)

6. Presumption between husband and wife.-Where money is borrowed by a husband and wife, on the security of his wife's land, it is presumed to be appropriated solely by the husband, and the husband's property shall, as between him or his representatives, and his wife or her representatives, be liable to answer the sum borrowed, and to exonerate the estate actually charged, (b) if there be no circumstances to rebut the presumption. (c)

7. Presumption as to undisposed of residue.-Where the residue is undisposed of, the presumption was that the testator meant that the executor should take it for his own benefit, unless an evident intention to the contrary appears. (d)

By an act passed in the last session of parlia ment, (e) a modification of this rule has been made, it being enacted (ƒ) that where any person shall die after the first day of September, 1830, having by his or her will, or any codicil or codicils thereto, appointed any person or persons to be his or her executor or executors, such executor or executors shall be deemed by courts of equity to be a trustee or trustees for the person or persons, if any, who would be entitled to the estate under the Statute of Distributions, in respect of any residue not expressly disposed of, unless it shall appear by the will, or any codicil thereto, the

(a) Doe v. Murless, 6 Mau. & Sel. 100. As to the presumption of ownership with respect to personal property, see ante, p. 124.

(b) Tate v. Austin, 1 P. Wms. 264. Lord Huntingdon's case, 2 Vern. 437. Astley v. Earl Tankerville, 3

B. C. C. 545.

(c) Lewis v. Nangle, Amb. 150. S. C. 2 P. Wms. 664, n. Kinnoul v. Money, 3 Swanst. 208, n.

(d) See 2 Ves. 96; 2 Ves. jun. 474.
(e) 1 Wm. IV. c. 40.
(f) s. 1.

person or persons so appointed executor or executors was or were intended to take such residue beneficially.

This act, however, as has been remarked in a recent work, (a) is somewhat unsatisfactorily worded, as it still refers to the intention of the testator as expressed on the face of his will, and considerable doubt may still arise as to the manifestation of that intention.

(a) Dowling's Collection of Statutes, 207; a publication of great

merit and utility.

CHAPTER XXXI.

OF THE ADMISSIBILITY OF UNSTAMPED INSTRUMENTS, AND OF THE COMPULSORY PRODUCTION OF INSTRUMENTS.

It will be proper to mention shortly the rules upon these two points, particularly as they have formed the subject of some late decisions.

I. OF THE ADMISSIBILITY OF UNSTAMPED INSTRUMENTS IN EVIDENCE.

Instruments to be given in evidence must be properly stamped; but if there are two parts of a deed of covenant under seal, one of them stamped and executed by the defendant, and the party who had the custody of the part which was stamped at the time of bringing an action upon it had lost it, and it could not be produced, it has been held that the unstamped counterpart might be read as a copy of the other part. (a)

(a) Munn v. Godbold, 3 Bing. 292; 11 Moo. 49; 2 Car. & Pay.

97, S. C.; which last report seems incorrect.