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REX V.

tent evidence in point of law in this cafe, that is, to prove READING. the whole fact, though it feems the may be a competent

witnefs to prove the criminal converfation between the defendant and herself, by reafon of the nature of the fact, which is ufually carried on with fuch fecrecy that it will admit of no other evidence; therefore, as to the fact of the defendant's converfation with her, the may be a good witnefs, but this is only from the neceflity of the thing. But then in the prefent cafe it has gone further, for the wife is the only evidence to prove the abfence and want of accefs of her husband; whereas this might be made appear by other witneffes, and therefore the wife fhall not be admitted to prove it, fince there is no neceffity that can juftify her being an evidence in this cafe. In the Cafe of Pendrel before cited, there was the strongest evidence imaginable to prove the want of accefs of the husband: it was made appear by feveral of the husband's relations, who watched him for that purpose, that he was in Staffordshire all the time his wife was with child, and that the refided in London the whole time: the wife thereupon is not to be admitted an evidence to prove that her husband had no access to her; and the teftimony of the other witneffes, that he refided about feven miles off, fhews an apparent poffibility of accefs: it must be of a very dangerous confequence to lay it down in general that a wife 1hould be a fufficient fole evidence to baftardize her child, and to difcharge her hufband of the burthen of his maintenance. But the opinion THE COURT is of at present will not be a precedent to determine any other cafe wherein there are other fufficient witneffes as to the want of accefs. But the foundation that is now gone upon is the wife's being the fole witnefs.-PAGE, Juftice. This is fomething fimilar to the cafes of HUE AND CRY, where, by ftatute in an action against the hundred, the perfon robbed is admitted an evidence, from the neceffity of the thing, as to thofe matters which generally can be proved by none but himself; as that he is robbed, and of what fum, and in what place; but of all other things which may poffibly be proved as well by other evidence he is no witnefs in law, nor does the ftatute extend to it; as whether the place is within the hundred, &c.-PROBYN, Juftice. In cafes of violence committed by the hufband against the wife, the herself is admitted an evidence, as in the cafe of Lord Audley, and in the cafes of exhibiting articles of the peace from the neceffity of the thing, fince it may be done at a time when no one elfe (a) Salk. 122. can prove or know it.-LEE, Justice. In the cafe of Peguire v. Murray (a), where a child born in lawful wedlock was

Ante, page 396. pl. 519.

proved

proved to be a baftard, no fuch exception was taken as in the prefent cafe; but the defendant merely infifted upon the old notion of the husband's being within the four feas. In the cafe of Ramfay, on an indictinent on the statute 3. Hen. 7. c. 2. for forcibly taking away a woman and marrying her, the wife was admitted an evidence, becaufe none elfe except the defendant were prefent. Therefore it is very proper to admit this woman to prove what was done in fecret, and what it cannot be prefumed there are other witneffes to prove but then it must be admitted no further than neceffity warrants; and in all other cafes the rule of law is to be adhered to.

REX V.

READINGS

though the de

528. Barker v. Sir Woolfton Dixie, Eafter Term, 9. Geo. 2. Plaintiff's wife Annalley's Rep. 264-In an action for a malicious profe- not admitted to cution, the defendant was willing that the plaintiff's give evidence, wife fhould be examined.-LORD HARDWICKE. The fendant was dereafon why the law will not fuffer a wife to be a witness firous to confent. for or against her husband, is to preferve the peace of families, and therefore 1 fhall never encourage such a confent; and the was not examined.

529. May v. May, Eafter Term, 10. Geo. 2. 2. Str. 1073. The evidence of -In a queftion on the plaintiff's legitimacy, it was re- the parif refolved that there can be only one regifter in one parish; gifter cannot be that the day-book in which entries may be originally the day-book. made cannot be read to contradict the register.

contradicted by

hufband be le

gally proved, the

S. C. Andr. 8.

530. Rex v. Bedall, Trinity Term, 10. Geo. 2. Str. 1076. If non access of a -An order of juftices was made upon Moor as the putative father of two baftards born of the body of Elizabeth, juftices may the wife of Richard Sharplefs, in which it was stated, that make an order for feven years before the hufband had had no access to her, of bastardy, the having never feen or heard of him in all that time, and without enquiring whether the not knowing whether he was alive or dead; which the hufband be alive juftices adjudged to be true, and that Moor is the father of or dead. the battard children. Upon appeal to the feffions the cafe is ftated with fome variation, viz. that in 1728 fhe was s.C. Annalley's married to Sharpless, then a foldier in Mullin's troop, in a Rep. 379. barn, by a perfon not in the habit of a clergyman; that 1. Will. 340. there had been no access for seven years; but it appeared by a certificate from the commiffary-general's office, dated 7th April 1737, and from the evidence of Simon Clarkson, that one Richard Sharplefs, who he was told was formerly in Mullin's troop, was mustered as a private gentleman in the third troop of horfe guards from June 1733 to February 1736, though Clark fon faid he could not take upon him to fwear that it was the fame Richard

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DALL.

REX v. Br. Sharpless pretended to be married as aforefaid: upon this fuppofition of the hufband's being alive, the feffions were of opinion the children were not baftards, and reverfed the order of the two juftices.-Upon debate (in the abfence of THE CHIEF JUSTICE) the order of feffions was quafhed, and the order of two juftices confirmed; for it being stated in both orders that there was no accefs, it was immaterial whether the hufband was alive or not: but if it was material here is no evidence to prove it, the identity not being fworn to; or if it was, yet the evidence of his being alive was improper to have been received, and even the marriage itfelf doubtful.

No evidence fhall be heard

upon a fecond

order to illegiti. wate the chil

dren.

S. C. 1. Burr.
Sett, Caf. 191.
S. C. 2. Stra.

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531. Rex v. the Parish of Woodchefter, Mich. 16. Geo. 2. MSS. An order in 1731 to remove A. and his wife from Nympsfield to Woodchefler was not appealed from. They afterwards returned to N. and had there three children, who were now fent (by order of juftices) from N. to Woodchefter with their father. Upon appeal, it was offered to be given in evidence that A. had a former wife, and confequently the children born at N. were bastards, and fettled there. The feffions would not permit Woodchefter to go into this evidence.-PER CURIAM. Both orders must be confirmed. The marriage being establifhed by the firft order, which was acquiefced in, the fettlement of the children follows of courfe, and can no way be impeached but by entering into the merits of the first order. Nothing is better eftablished thau that an or(a) Salk. 524 der unappealed from is conclufive (a).

1172.

Burr.

See 3.
Rep. 1840.

Carth. 516.

An order of baf

cannot be made

only.

532. Rex v. Rooke, Mich. 26. Geo. 2. Wilf. 340.-An order tardy against a was made that the defendant fhould maintain a bastard married woman child, and it was made upon the oath of a married woman on her teftimony alone, who fwore that her hufband was in gaol long before fhe was got with the baftard child and ever fince, and that fhe had no accefs to him, and that Rook got the bastard. -PER CURIAM. It was faid by LORD HARDWICKE, in (a) Ante, pl. Rex v. Reading (a), that although a wife may be admitted to "527. prove the fact of adultery, the thall not be admitted to prove that her husband had no accefs, becaufe that may be proved by other perfons, and an order of bastardy therefore could not be made on her oath alone. The cafe of the Parish of Bedall (b) differs from this, for there were witneffes to prove the hufband had no accefs; and as the juftices have determined folely on the evidence of a wife, the order must be quashed.

(3) Ante,p.401. pl. 530.

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III. The duty and authority of the parish-officer's.

baftard child is

the mother refided, and from

533. Twining v. Tewkfoury, Gloucester Affizes, 8. Car. 1. The parish-of2. Bulft. 349.-A fervant-maid dwelling in Twining was ficers where à there got with child, and fhe being near the time of her born must main delivery, by practice was conveyed out of the parish of tain it, except Twining unto an outhoufe, a hovel of one Edward Baughs, the birth in fuch an inhabitant in Twining, the which hovel was near parish was conTwining, but within the parish of Tewksbury, being the and in fuch cafe trived by fraud; ontermoft confines of it, and there the child was born. it fhall be The parish of Twining afterwards gave relief to the mo- maintained by ther, and the minifter of Twining chriftened the child. the parish where When the mother was able to remove, the parish of Twining received her and her child, and gave relief to her which the was for two years. The mother afterwards falling fick, the fo fraudulentlý parish of Twining fent her and her child to Longden, in fent. the county of Worcester, where the mother died. The parish of Longden fent the child to Twining, and the overLeers of Twining fent it, being under the age of three years, to Tewksbury, within which parifh the child was born, and Tewksbury fent the child back again to Twining. The question was, Which of these two parishes were bound in law to provide for and maintain this bastard child? SIR WILLIAM JONES, Justice. Legally and relariv, all baftard children are to be kept by the parith where they are born, provided no practice be made ufe of to have the child there born; but if any fuch practice be proved, then this rule fails, and the child is to be kept and provided for by the parish where the mother dwelt, and where fhe was got with child, and which had used this practice to have the child born in another parish. This practice being very apparent in the prefent cafe, the Court ordered that the child should be maintained by the parish of Twining.

fift upon main.

for it.

534. Richards and Salmon v. Hodges, Trinity, 2. Car. 2. The parish-off2. Saund. 83.-Richards and Salmon, being churchwar- cers cannot indens, brought an action against Hodges, on his bond in taining a baftard the ufual form to indemnify the parish in the cafe of a child, if the pu bastard child. The defendant pleaded non damn ficatus, tative father of generally. The plaintiff's replied, that neither the defen- fers to provide dant nor any other for the fpace of one month after S.c. i.Mod:43. making of the bond did provide any maintenance for the S. C. 1.Sid.444. child by reafon whereof the parishioners, to prevent s. c. 2. Keb. the faid child's perithing by hunger and cold, were forced 6.2. 612. for all the time aforefaid to pay, and have paid, four fhil- Pott. p. 406; lings for the maintenance and nourishment of the faid Pl. 537 child.

Dd 2

action on a baf

own wrong.

RICHARDS and child. To which the defendant rejoined, that he would SALMON . have nourished the faid child at his proper cofts and HODGES. charges for all the time aforefaid, and offered fo to do, as If the parish well to the plaintiffs as to other the parishioners; but officers bring an they refufed to permit him, and againft the will of the sardy bond, the defendant put the faid child to nurfe, and paid the faid defendant muft four fhillings: upon which rejoinder, the plaintiffs depl.ad, that the murred in law. And by THE COURT, The rejoinder is damnification not good, because it is a departure from the firft plea in was of their bar; for the defendant in his plea fays, that the parishioners were not damnified: and when the plaintiffs by their replication fhew how they were damnified, there the defendant cannot rejoin that this damnification was of their own wrong, as here he hath done; but he ought to have pleaded that at firft in his plea in the bar. And though it was urged for the defendant that this was no damnification at all, because it was the voluntary act of the parish to put the child to nurfe when the defendant himfelf offered to maintain it, and that they ought not to take the advantage of their own wrong, yet it was not allowed. For THE COURT held clearly, that the rejoinder was a departure; and for that reafon it was adjudged for the plaintiffs.

The parish-officers cannot re

move baftard children from

the parish where they are main

tained to the parish where their mother afterwards gains a fettlement by marriage.

S.C.Comb.208.

S. C. Sett, &

535. Shermanbury v. Bolney, Trinity Term, 5. Will. & Mary, Carth. 279.-A poor man who was lawfully fettled in the parish of Bolney, married a woman who was an inhabitant of the parish of Shermanbury, who at that time had three children living all under the age of feven years, and maintained by the parish of Shermanbury, at the weekly allowance of 3s. After this marriage, the mother and her three children were fent to the parish of Bolney, where her husband was fettled. Hereupon the juftices, upon the complaint of the parishofficers of Bolney, made an order, that the parishioners of Shermanbury fhould continue to pay the 3s. per week towards the maintenance of the children; which order was confirmed upon an appeal. And being removed into B. R. by certiorari, it was now moved to quash it, because the juftices had no power to make an order for fuch payment towards the maintenance of the children now they dwelt in another parifh.-SED PER CURTAM, The marFide poft. page riage of the mother into the parish.of Bolney fhall not fettle the children there, unless they were nurfe-children, for fuch muft go with the mother. But it was doubted, whether thefe children, being under feven years old, hall be reputed to be nurfe-children. Then it was objected, that it did not appear in this cafe but that the father-in

Rem. 205.

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