To the following questions put to her by her attorney (with the consent of the appellant's attorney), "Where was your husband living in the year 1860?" she replied "I don't know."

From the above-mentioned facts, the justices inferred and found as facts that the husband of the said respondent had not had any intercourse with her so as to become the father of the child in question; and that he had not had access to her at the period of her conception of the said child; and that the said child was in fact a bastard: and from the other evidence in the case they found the appellant to be in fact the father of the said child.

The questions of law for the opinion of the Court were,

"Is there anything in the above facts, as proved to the justices, from which the Court could infer the non-intercourse of the respondent and her husband at the time the child in question was begotten, or that the husband had not access to his wife at that time, so as to lead to the conclusion to which they came, that the child is a bastard ? "Were the questions 'Did your husband desert you, and when?' (being the only questions objected to by the appellant's attorney as inadmissible,) improperly allowed to be put ?"

Temple, Q. C., for the appellant.-The respondent being a married woman, the presumption is that the child is the offspring of *516] the husband. In The Queen v. The Inhabitants of Mansfield, 1 Q. B. 444 (E. C. L. R. vol. 41), 1 Gale & D. 7, it was held, that, if there was an opportunity of access by the husband, though the wife was notoriously living in adultery, it does not necessarily follow that a child begotten while such opportunity of access existed was not the husband's. Patteson, J., there says: "Here, the circumstances are, that the pauper was deserted by her husband, who then lived with another woman; that some years afterwards she was married again by banns, living her husband, and afterwards had two children, now seventeen and nineteen years old: and from these facts alone we are called upon to infer that there was, no access of the husband to the wife, though during any part of the time he may have been living at the next door." [ERLE, C. J.-We have nothing to do with the facts, if there was any evidence to warrant the justices in finding that there was no access. Probably the husband did not come; and probably the other man did.] It is not enough to show the probability or even the fact of intercourse with another: the evidence must be such as reasonably to show that there was no probability of access on the part of the husband. The evidence here clearly was not sufficient: it should be such as would lead any reasonable man strongly and almost incontrovertibly to the conclusion that the husband could not be the father of the child. It was not enough to show that he was living at the distance of twenty-five miles from the place where his wife lived. She knew he was living there. The conclusion the justices arrived at was clearly not warranted by the legitimate evidence given in the case. And it is clear that they thought so, from the reasons they assign for allowing the questions which were put to the respondent at the end of the case. They evidently were not satisfied with *517] the other evidence, and therefore allowed her to be examined to prove non-access, which the law does not permit. The rule is so clearly laid down in The King v. The Inhabitants of Sourton, 5 Ad.

& E. 180 (E. C. L. R. vol. 31), 6 N. & M. 575 (E. C. L. R. vol. 36). It was there held that neither husband nor wife can be examined for the purpose of proving non-access during marriage: nor can either be examined as to any collateral fact, for the purpose of proving nonaccess, as, that the husband, at a particular time, lived at a distance from his wife, and cohabited with another woman. Lord Denman there said: "It is desirable to show, in a case of such importance as this, that we adhere to the old rule of law, without any doubt. The rule cited in Starkie on Evidence p. 139, note (x), 2d ed., from Goodright d. Stevens v. Moss, 2 Cowp. 591 (supported also by Rex v. Kea, 11 East 132, cited in the same note), is, that the parties shall not be permitted after marriage to say that they had no connection. Then, it being clear and indisputable law, that, for the purpose of proving non-access, neither husband nor wife can be a witness, the question is, whether the circumstances of the present case bring it within that rule." And Littledale, J., said: "It may be a question whether the rule as laid down goes to anything more than the case of a party being put into the witness-box and distinctly asked the question. But I think that it goes farther and excludes all questions which have a tendency to prove access or non-access."

Kemplay appeared for the respondent, but was not called upon. ERLE, C. J.-I think this case should go back to the justices to be amended. There was abundant evidence whence the justices were at liberty to infer non-access of the husband, and that the appellant was the father of the child of the respondent. When that presumption is made, then, according to The King v. Luffe, 8 East 193, [*518 the wife is admissible to show that the party charged is the father. If the magistrates had not allowed the questions to be put to the wife, there would have been no difficulty. But, if her answer was the only evidence which satisfied them that the fact of access of the husband did not exist, then her evidence was not admissible for that purpose. The case must go back that they may state how this was.

WILLES, J.-Let the justices inform us, if the fact be so, that they arrived at the conclusion they did without that objectionable piece of evidence.

KEATING, J., concurring,

The Court directed the case to be sent back to the justices to be amended,(a) by stating whether they came to the conclusion of nonaccess independently of the question and answer of the respondent to which objection was made, and independently of the evidence given by the respondent.

The justices returned the case with the following additions:

"We beg to amend this case by stating that there was nothing in the evidence of the respondent which led us to the conclusion of non-access; and that we found the non-access of the husband [*519 independently of the question and answer of the respondent to which

(a) Under the 6th section of the 20 & 21 Vict. c. 43, which enacts, that, "the Court to which a case is transmitted under this Act shall hear and determine the question or questions of law arising thereon, and shall thereupon reverse, affirm, or amend the determination in respect of which the case has been stated, or remit the matter to the justice or justices, with the opinion of the Court thereon," &c.

objection was made, and independently of the evidence given by the respondent. "JOHN HALL.

"WM. WHELON.

"J. S. HARRISON."

"I did not come to the conclusion of non-access either from the evidence of the respondent or any other evidence; but, holding a different opinion on this point from the majority, I was overruled by them. "RICHARD HINDE."

Temple, Q. C., admitted that the amendment put him out of Court. PER CURIAM.-The decision of the Justices must be affirmed, with costs. Judgment for the respondent, with costs.

See Hemmenway v. Towner, 1 Allen (Mass.) 209; Page v. Dennison, 5 C. (Pa.) 420, s. c. 1 G. 377; Kleinert v. Ehlers, 2 Wr. (Pa.) 439.

*520]

*GRAY v. BOMPAS. Jan. 25.

Where a tenancy from year to year has been determined by a regular notice to quit, the mere accidental detention of the key by the tenant (who has quitted the premises and removed his goods) for two days beyond the expiration of the term, does not amount to any evidence of use and occupation, so as to render him liable for another quarter.

THIS was an appeal from a judgment of the Judge of the County Court of Kent, holden at Ramsgate on the 29th day of October, 1861, in a plaint brought to recover the sum of 261. 5s. for one quarter's rent or occupation of No. 14 Royal Crescent, Ramsgate, due July the 6th, 1861.

The plaint was heard on the 24th of September, 1861, when the following facts were proved:

By agreement, dated the 22d of March, 1859, the plaintiff agreed to let to the defendant a house, No. 14 Royal Crescent, Ramsgate, from the 6th of April, 1859, at the yearly rent of 1057.

Possession was not given to the defendant until the 18th of April, 1859, although the defendant was prepared to go in on the 6th of April.

When the first quarter's rent became due, the defendant asked for an allowance from the rent, on the ground that possession had not been given pursuant to agreement. The plaintiff refused to make any allowance, but said he should not be over particular when the defendant wanted to leave, to a day or two.

Notice to quit on the 6th of April, 1861, was duly given by the defendant in October, 1860.

In the first week in March, 1861, the plaintiff, by the defendant's permission, showed two gentlemen over the house, and told them it would be vacant by the 6th of April then next.

The defendant moved out all her goods by the 11th of March to her present residence, which is near Royal Crescent, and brought the key of 14 Royal Crescent with her, which key was kept in her servant's After this period, the house remained vacant.

room.

*About the 14th of March, the plaintiff's son applied to the *521] defendant's servant, Henry Moir, for the loan of the key, in

order to show another gentleman over the house. The defendant's servant gave the key to the plaintiff's son, who returned it six or seven hours afterwards.

A few days afterwards, the defendant's servant, the said Henry Moir, met the plaintiff in the street, and asked him if he wished him to fetch the key for him again. The plaintiff replied "No: wait till the 6th. I do not care about it before the time is up."

The plaintiff did not call for the key on Saturday the 6th of April, nor did the defendant send it then. But, on Monday morning, the 8th of April, the key was sent by the defendant to the plaintiff, who refused to receive it, on the ground that it ought to have been sent on the Saturday.

On Tuesday, the 9th of April, the key was left at the plaintiff's house in the presence of the plaintiff, who protested against receiving it, and left it the next day at the defendant's house, and has ever since refused to receive it.

The quarter's rent due on the 6th of April was paid on the 10th. Upon this evidence, it was contended, on the part of the plaintiff, that the non-delivery of the key on the 6th of April, 1861, was a waiver of the notice to quit, and necessarily continued the tenancy, and rendered the defendant liable as tenant for the next quarter's rent, or for use and occupation for that time.

On the part of the defendant, it was contended,-first, that an inadvertent holding over for two days would not render the defendant liable as tenant to a quarter's rent, but, at most, for the period of actual occupation,-secondly, that the omission to send the key, under the circumstances proved, did not amount *to a holding over,[*522 thirdly, that, if there were a holding over, the previous assertion of the plaintiff that he should not be particular, was sufficient to excuse it. No application for a nonsuit was made; but the matter was left for the Judge's judgment.

Upon these facts, the Judge held the plaintiff entitled to judgment for 261. 5s.

C. Pollock appeared for the appellant (the defendant); but the Court called upon (a)

Prentice, for the respondent, to support the decision of the County Court Judge (b)-[WILLES, J., observing that he saw no evidence of any contract on the part of the appellant to pay

the

[*523

(a) The points marked for argument on the part of the appellant were as follows:"1. That the Judge of the County Court ought to have given judgment for the defendant: "2. That the omission to send the key, and the other facts found by the Judge, did not constitute a holding over by the defendant:

"3. That, even if the facts could be held to constitute a holding over under ordinary circumstances, the plaintiff could not take advantage of them, by reason of his assertion at the time of payment of the first quarter's rent, that he should not be over particular, when the defendant wanted to leave, to a day or two:

"4. That, even if there was a holding over by the defendant, of which the plaintiff could take advantage, still the defendant was liable only for the period of her actual occupation, and not for a quarter's rent."

(b) The points marked for argument on the part of the respondent were as follows:

"1. That the facts stated disclose a case purely for the consideration of the County Court Judge or a jury:

"2. That, although the defendant (the appellant) may not have intended to waive the notice to quit given by her, yet, as she did in fact withhold the key until the commencement of another

rent demanded.] It was a question of fact for the County Court Judge, under what circumstances the tenant held over for the two days; and, if he came to a wrong conclusion, it is no ground of appeal under the 13 & 14 Vict. c. 61, s. 14: see East Anglian Railway Company v. Lythgoe, 10 C. B. 726 (E. C. L. R. vol. 70); Cawley v. Furnell, 12 C. B. 291 (E. C. L. R. vol. 74); Cuthbertson, app., Parsons, resp., 12 C. B. 304. In the last-mentioned case, Maule, J., says: "No doubt, if it could have been made to appear, by any inference of fact that could legitimately be drawn from the evidence submitted to us, that the judgment of the County Court might be as it is without any miscarriage in point of law on the part of the Judge, that judgment must be left undisturbed, notwithstanding this Court might incline to draw inferences from the facts which might not consist with the conclusion which he has come to." The intention with which a tenant holds over is a question for a jury. In Jones v. Shears, 4 Ad. & E. 832 (E. C. L. R. vol. 31), 6 N. & M. 428 (E. C. L. R. vol. 36), in assumpsit for rent of coal, the issue being whether or not the defendants, having given notice to quit, had afterwards waived the notice and continued the tenancy, it was proved, that, after the time fixed by the notice had expired, they continued for two months working out certain portions of the coal, which, however, as they contended, it was usual for a tenant to take away on abandoning such a work: and it was held *524] that it was for the jury to decide, on this *issue, whether or not the defendants, in remaining for the two months, intended to waive the notice and continue the tenancy. [WILLES, J.-What evidence was there here of the defendant's intention to hold over as tenant?] The fact of her having retained possession of the key after the expiration of the notice to quit, and the fact that the quarter's rent then due remained unpaid until the 10th of July, afforded some evidence. [WILLES, J.-Suppose she had lost the key?] She might then have told the landlord so. The law imposes no duty upon the landlord to fetch away the key. The County Court Judge having decided in the plaintiff's favour upon the facts, and the question being one which it was open to him to decide either way, the Court will not interfere with his decision.

WILLES, J. (a) With the greatest respect for the opinion of the County Court Judge who decided this case, with whose learning and carefulness we are all well acquainted,-I think the judgment is erroneous, and must be reversed, and a judgment in the County Court entered for the appellant. The facts are extremely simple. The defendant, the now appellant, occupied a house as tenant from year to year, under the plaintiff, the now respondent. That tenancy was put an end to by a regular notice to quit, which expired on the 6th of April, 1861. Before that day arrived, the tenant had removed all her goods to another

quarter, it was entirely within the jurisdiction of the Judge to assess the damages for which she was responsible:

"3. That the facts stated in the case disclose sufficient evidence to maintain the judgment given:

"4. That the defendant, not having asked for a nonsuit, is not now at liberty to contend that she was or is entitled to such judgment:

"5. That the Judge, in stating this case, has not presented any question of law for the opinion of the Court, and the appeal should therefore be dismissed."

(a) Erle, C. J., and Williams, J., were sitting in the Court of Criminal Appeal.