And by stat. 4 Ann. c. 16. s. 16. An action must be commenced within one year next after the making of the claim or entry and prosecuted with effect; otherwise the claim or entry will be of no avail. The stat. 21 Jac. c. 16. shall not be taken by construction, to bar a man of his action, unless it be expressly found how the possession has been. If a mortgage is made for a collateral security, although the mortgagee is not in possession for twenty years and more, yet if interest be paid on the bond, the statute shall not bar". XI. Evidence. Evidence on the Part of the Lessor of the Plaintiff.-THE evidence required to support an ejectment will vary according to the title of the lessor of the plaintiff. Devisee of a Term.-Where the lessor of the plaintiff is devisee of a term, he must produce in evidence the probate of the will, and prove the assent of the executor to the devise; for where a person devises, either specially or generally, goods or chattels, real or personal, and dies, the devisee cannot take them without the assent of the executors. Lessee for years devised the term to his executor for life', paying 50l. to J. S., remainder to the lessor of the plaintiff. The executor dying, his executrix entered upon the residue of the lease and possessed herself of the term. An ejectment having been brought, it was holden, that the executor took as executor, and not as legatee; and then the remainder over was not executed, and that it was incumbent on the remainder man to prove a special assent thereto, as to a legacy; whereupon plaintiff proved payment of the 507.; and that was holden to be a sufficient assent, and the plaintiff recovered. Administrator.—Where the lessor of the plaintiff claims title as administrator, in strictness he ought to produce the letters of administration under the seal of the ecclesiastical e Per Holt, C. J. delivering the opi- VOL. II. E f Young v. Holmes, Str. 70. Middlesex Sittings, B. R. Parker, C. J. court. But the original book of acts, wherein the orders of the court for granting letters of administration are entered; or an examined copy of the entry in that book; or an exemplification of the letters of administration will also be evidence. If the lessor of the plaintiff make title as assignee of a term from an administrator, cum testamento annexo, an exemplification, though not in hæc verba, yet agreeably to the form of the ecclesiastical court, will be good evidence (41). Copyhold.-If the plaintiff make title in the lessor as lord of a manor', who has right by forfeiture of a copyhold, he ought to prove that his lessor is lord, and the defendant a copyholder; and that he committed a forfeiture: but the presentment of the forfeiture need not be proved, nor the entry or seizure of the lord for the forfeiture. Tenant by Elegit.-Tenant by elegit must produce in evidence an examined copy of the judgment, of the writ of elegit taken out upon it, and the inquisition and return thereupon. Landlord.-In ejectment by a landlord against his tenant, it will not be necessary for the landlord to give any evidence of his title anterior to the lease; for the tenant will not be permitted to impeach the title of the person under whom he came into possession. In ejectment upon a clause of re-entry", in a lease, for non-payment of rent against the assignee of the term, the lessor proved, by the subscribing witness, the execution of the counterpart of the lease; this was ruled to be sufficient proof of the holding upon the condition of re-entry in case of non-payment of rent, without producing the lease itself, or proving that notice had been given to the defendant to produce it (42). g Garrett v. Lister, 1 Lev. 25. Peaselie's case, Lev. 101. Elden v. Keddell, s East, 187. h Ray v. Clerk, London Sittings, after H. T. 1775. Lord Mansfield, C. J. 13 East, 238. i Per Lord Hardwicke, C. J. in Kemp- k Kempton v. Cross, Ca. T. H. 108. (41) For the evidence necessary to establish a title by the heir, see Peake's Evid. part II. chap. xiv. where this subject is treated with great perspicuity. For evidence on ejectment brought by devisee of land, see post tit. Statute of Frauds, s. 3. (42) It is sufficient to prove assignment of lease by subscribing In ejectment for a leasehold estate, the lessor of the plaintiff produced the original lease, which was for a term of 1000 years, granted in the time of Queen Elizabeth; and one mesne assignment in the time of King James, and then proved possession in himself and those under whom he claimed, for 70 years prior to the ejectment; it was holden", that the jury might be directed to presume all the mesne Assignments. In ejectment by landlord against tenant, the landlord proved payment of rent and half a year's notice to quit. But on the cross examination of the plaintiff's witness, he was asked, whether there was not an agreement in writing relative to the holding of these lands? to which he answered, that an agreement in writing relative to these lands was produced at the last trial of this ejectment (this being the second trial); but he did not know the contents of it: and then another witness was called, who proved that he had seen the same paper in the hands of Sir M. Wood's attorney, on the same morning (i. e. of this trial). Whereupon it was ob jected on the part of the defendant, that no parol evidence of the tenancy could be given, when it appeared that there was an agreement in writing concerning it; and it did not appear that the landlord had any right to determine the tenancy in the manner he had done. Lord Ellenborough, C. J. If there were any writing relative to this holding, in the possession of the landlord, the defendant ought to have given him a regular notice to produce it; otherwise, in this collateral way, he would get the whole benefit of it, without giving such a notice; when, if notice had been given, and the paper were produced, it might not support the objection. How can we say that the plaintiff ought to have been nonsuited for want of giving the best evidence of the tenancy, unless it appeared that there was other and better evidence of it in an agreement in writing between the landlord and his tenant, which the landlord kept back? Enough, at least, ought to appear to shew that the paper not produced was better evidence of the terms of the tenancy than the evidence which was received; but it did not appear that it was an n Earl d. Goodwin v. Baxter, 2 Bl. R. o Doe d. Sir M. Wood v. Morris, 12 East, 237. 1228. witness, without calling the subscribing witness to the original lease. Nash v. Turner, 1 Esp. N. P. C. 217. per Kenyon, C. J. In this case, the assignment was by indorsement. agreement between these parties, or that it was an existing agreement at this time: it might have been an agreement between the defendant and his former landlord; or it might have related to a former period of the tenancy. The witness did not profess to know any thing of the contents of the paper, only that it was an agreement relative to the lands in question. In ejectment against a bailiff, the tenant in possession is not competent to prove that the witness, and not the defendant, is the possessor of the land". Legitimacy. In this action, the legitimacy of the parties frequently comes in question. An opinion appears to have prevailed at one time, that unless the husband was extra quatuor maria, that is, out of the kingdom, during all the time of the wife's going with child, access must be presumed, and the child must be deemed legitimate. But, on examination of this doctrine, it was found unsatisfactory, and it is now holden', that non-access may be proved to bastardize the issue, although it should appear, that the husband was within the kingdom during the period of gestation. So where the husband, in the course of nature, cannot have been the father of his wife's child, the child is by law a bastard, whether the husband be within reach of access or not; as in the case of a natural impossibility, the husband being within the age of puberty'; or disabled by bodily infirmity. So where it was proved, that the husband had not access, until a fortnight before the birth of the child, the child was adjudged to be illegitimate. The wife is a witness of necessity, as to the fact of adulterous intercourse, because that lies within her own knowledge, and she is the only person who may be supposed privy to it, except the adulterer. This case, therefore, affords an exception to the general rule, which prohibits the wife from being examined against her husband in any matter affecting his interest or character. But non-access must be proved by other testimony' than that of the wife, and this rule holds although the husband be dead". t 1 Rol. Abr. 359. cited by Ld. Ellen- z R. v. Kea, 11 East, 132. borough, 8 East, 205. The presumption of legitimacy arising from the birth of a child during wedlock, the husband and wife not being proved to be impotent, and having opportunity of access to each other during the period in which a child could be begotten and born in the course of nature, may be rebutted by circumstances inducing a contrary presumption. The fact of the birth of a child from a woman united to a man by lawful wedlock, is generally, by the law of England, prima facie evidence, that such child is legitimate". Such prima facie evidence of legitimacy may always be lawfully rebutted by satisfactory evidence that such access did not take place between the husband and wife, as by the laws of nature is necessary, in order for the man to be in fact the father of the child. The physical fact of impotency, or of non-access, or of non-generating access, as the case may be, may always be lawfully proved by means of such legal evidence as is strictly admissible in every other case in which it is necessary, by the law of England, that a physical fact be proved. After proof given of such access of the husband and wife, by which, according to the laws of nature, he might be the father of a child (by which is to be understood proof of sexual intercourse between them) no evidence can be received, except it tend to falsify the proof that such intercourse had taken place. Such proof must be regulated by the same principles as are applicable to the establishment of any other fact." In every case where a child is born in lawful wedlock, the husband not being separated from his wife by a sentence of divorce, sexual intercourse is presumed to have taken place between the husband and wife, until that presumption is encountered by such evidence as proves to the satisfaction of those who are to decide the question, that such sexual intercourse did not take place at any time, when by such intercourse the husband could, according to the laws of nature, be the father of such child. The presumption of the legitimacy of a child born in lawful wedlock, the husband not being separated from his wife by a sentence of divorce, can be legally resisted only by evidence of such facts or circumstances, as are sufficient to c Ib. a Banbury Claim of Peerage, D. P. g Ib. S. C. 4 July, 1811. |