Bowles

child of the husband; which, again, can only be, by Bingham.

showing that, from his continued absence from his wife, at or about the time of procreation, or from the impotency of his body, it is impossible that he should be the father. This presumption, in favour of legitimacy, is so strong, and the exceptions thereto are held under suci strictness, that, where a man was divorced from his wife, propter perpetuam generandi impotentiam, and then mar. ried another woman, who had issue during the marriage,

that issue was holden to be his, on the ground that a man (a) 5 Co. Rep. may be habilis et inhabilis diversis temporibus.(a) It is 98. b. Burie's

not, therefore, a' mere circumstance of probability that Case.

will operate in this case to bastardize the issue. Such issue will be held to be legitimate, unless it be conclusively shown, that a person, other than the husband, must necessarily and únavoidably have been the father. This doctrine applies, à fortiori, it is believed, to cases of procreation before the marriage.

While the wise policy of our law, anxiously desiring that every child shall be assigned to some responsible person as his parent, for his nurture and education, and finding it necessary to act by general rules, has adopted as the rule, in this case, that'" pater est quem nuptiæ demonstrant;" and while, in relation to children procreated during the marriage, it only tolerates an inquiry going to show, that the husband could by no possibility have been the father of the child, it will, certainly, not relax that rule in relation to a procreation before the marriage, to cases in which the husband has entered into a matrimonial engagement with his wife, not only with a full knowledge of the rule aforesaid, but, also, (in general,) with a knowledge of her particular situation, in relation to her pregnancy, or otherwise.

Our law wisely throws a veil over acts of incontinency, in such cases, and, certainly, will not, without necessity, and in a spirit of departare from the wise rule of public economy before mentioned inundate our Courts with indecent inquiries, whether this or that man, whether the husband or another, committed a given act of immorality and fornication. It will, at

V.

591.

least, emphatically, interdict the HUSBAND from giving Bowles evidence in such case, for the reasons so luminously as- Bingham signed, in relation to procreations during the marriage, in the case of Goodright v. Moss.(a) It is even better (a) Cowb

. that a particular grievance should exist, than a scene of this sort be opened, without necessity, in a country in which public decorum is a part of its law, to contaminate and destroy the morals and peace of our country.

If, in the time of Justinian, it was deemed proper, by that emperor, to establish the age of 14 as the general age of puberty, (though it is evident that the state of puberty must vary with the particular habits and constitutions of individuals,) rather than continue the indecent usage therefore existing of judging of such puberty, in relation to each particular case, by an inspection of the habit of the body ; reasons founded on a like regard to decorum, may well be considered as having justified the general regulation we are now considering. It is no impeachment of the wisdom of the rule in either instance, or of the policy of acting by a general regulation, that particular cases may chance to occur, to which the spirit of the rule, in either case, may be inapplicable.

While, therefore, we are inclined to think that the inquiry in question is occluded on general grounds, sanctioned by principles contained as well in our own municipal code, as the codes of other enlightened nations, we are clearly of opinion, upon the particular evidence in this case, which is not only inadmissible, as aforesaid, but does not repel the possibility of the infant Harriet's having been actually begotten by the appellant ; that the said Harriet was legitimate; that the appellant is to be considered as her father, under the sound construction of our laws; and, as such, is entitled to her estate, in preference to the maternal relations of the said Harriet or any other person or persons. The consequence is, that the decree of the chancellor, in favour of the maternal relations, must be reversed, and rendered in favour of the appellant, agreeably to the foregoing ideas, pursuing in other re. spects the provisions in the said decree contained.

AN INDEX

TO THE

PRINCIPAL MATTERS

CONTAINED IN THIS VOLUME.

A

eoramonwealth, or the act of the owner
of the goods. Murphy, Brown & Co. v,
Staton,

29
ABATEMENT.

2. Jo such case, if a loss happens, the onus

probandi lies on the carrier. to exempt
pi If the plaintiff

be permitted to amend his him from the liability. And it is not
declaration, by consent of parties, after enough for him to prove, where the
issue joined, on a plea to the action, the goods are carried by water,) that the na-
defendant ought not to be permitted to vigation is attended with so much danger,
plead in abatement, any variar ce between that a loss may happen notwithstanding
the amended declaration and the writ, the utmost endeavours of the waterman
which equally existed between the writ and crew to prevent it; that the person
and the original declaration. Moss v. conducting the boat possesses competent
Stipp,

159 skill, has used due dirigence, and provid-
2 In an action of debt against one obligor ed hands of sufficient strength and expe-
Only, if the declaration describe the bond rience to assist him,

iba
as joint, and do not state the other obligor
to be dead, it is a fatal error, (though not
pleaded in abatement,) and is not cured

ACCOUNT.
by verdict Newman v. Graham, 187
3. An appeal from a judgment in ejectment,

does not abate by the death of the lessor 1. A defendant cannot have the advantage of
of the plaintiff'; not withstanding such les-

the act imposing a limitation of one year
sor claimed the land for life only. Med-

upon actions on store accounts, without
ley v. Medley,

191

pleuding it, the Court not being directed
See JudGMENT, No. 8. Saunders v.

to cause such items as have been of more
Gaines,

225

than one year's standing, in such accounts,
5. See APPEAL, No. 16, and Wells v.

to be expunged, or to instruct the jury
Jackson, pl. 1,

458

to disregard them; and the jury not
being required to “ disallow and reject"
proper debt.

Sheppard's executor v. formable to the agreement or under-
Starke and wife,

29
3. In this case, à commission of five per

standing of the parties at the time. Free

land, &c. 8. Cocke's representatives,
cent, on the moneys received by the exe-

pl. 1.

352
curor, was allowed him, in lieu of all 14. In such case, the court of equity may die
expenses ; such commission to be de-

reet the books of the party rendering the
ducted from the balance due the estate
at the end of each year,

account to be produced, to see whether

ib. such account is drawn up confortably
4. Where interest is charged against an exe- with the books, or altered by an after

cutor or administrator, in settiing his thought; in the former of which events,
administration account, i on balances due a presumption would arise that such was
at the end of each year, it ought not to the original understanding and intention
be carried to the accounts of the succeed. of the parties, unless proof were er
ing years, so as to convert it into princi. hibited to the contrary; and, in the lat-
pal, and make it bear interest, nor to be ter, such presumption would be done
deducted from the payments made in

away, pl. 2.

ite
such succeeding years,

ib. 15. On'a bill of injunction to stay proceedings
5. An acknowledgment by a feme covert is

on a judgment at law, if it appear from a
pot sufficient to establish an account commissioner's report, not excepted to
against her husband, though it be for ar- by the defendant, that the complainant is
ucles furnished her before the marriage, entitled 10 a credit which the defendant

ib. failed to give, the court ought not to set
0. An executor is not to be charged with the aside the order for account, and dismaiss

debts due to the estate of his' testator, at the bill, on the ground that the complain-
the time when they became due, but only ant had neglected to carry into effect a
at the time when he actually received previous order referring, by consent of
them, except such debts as are lost by his parties, the accounts between them to a
negligence or improper conduct.

Ca. different commissioner ; but the last ore
vendish v. Fleming,

198

der having been made on the defendant's
7. An executor's account, rendered on oath,

motion, the report being excepted 19,
is prima facie evidence of the sums re- for want of notice to the complainant of
ceived by him for the estate of his testa. the time and place of taking the account,
tor, and of the times when received, ib.

and such exception appearing well found-
8. An executor, except as to debts lost by his

ed, a new account ought to be directed
negligence or improper conduct, is to be taken. Roberts v. Jordans, pl.
chargeable with interest only on his ac. 2.

488
qual receipts; and, generally, where in- 16. A person entitled to a legal estate in
terest is charged, the rule established in

slaves, may sue, in equity, 10 recover
the case of Granberry v. Granberry, them, if thereby o multiplicity of sudis
1 Wash. 249., ought to be observed, ib.

muy be prevented, calling on the defend-
9. An executor is not chargeable with inte.

ant to discover how long he has had them
rest on a legacy, payable to an infant, be. in possession, and to discover and state
fore a guardian has been appointed, and

an account of their profits. Baird 6.
he has received notice of such appoint. Bland and others, pl. S.
ment,

ib.
10. Under what circumstances an executor

ACTION.
is not to be charged with the loss of a
debt, contracted with him on behalf of
the estate of his testator, or for a loss 1. An action in behalf of an apprentice, upon
incurred by his intrusting an agent with his indenture of apprenticeship, ought
bonds for collection,

ib.

not to be brought in the name of the
Il An executor may reasonably be allowed a

overseers of the poor, but in bis own
commission of ten per cent on moneys name. Poindexter v. Wilton and others,
received by him, where the debts were
very small and numerous, and the debtors 2. See MPATEMENT, No. 2. Neonca
presumed to have been mueh dispersed,

V. Graham,

187
ib. See L'ARTNERSHIP, No. 1. Garland.
L2. See ExecuTORS AND ADMINISTRA:

Davidson,

189
TORS, Nos. 27, 28, 29, 30, 31, 32, 33, 34, 3. If persons contracting by a charter-parts,
35, 31, 37, 38, and 39, and M Caú .

under seal, bind themselves, each to the
Peachy's árl'mr.

288

other, as on their oron behalf, each mas
13. When a party claims to charge another

maintain an action, for covenant broken,
by virtue of an account rendered, he against the other, in his individual capa.
must take that account altogether, and

city, not withstanding they were described
not garble or alter it, unless he can sur- in the introductory part of the instru.
charge or falsify the same, either by

ment, and in their signatures, as agent
showing errors in calculation, or by pro- for ather persons, Hartshorne v. White
ving, from other testimony, that it is in.

510

557