acts which are only acts of improper familiarity are to be admitted in proof. There is no sound distinction to be thus drawn. There is no difference between acts of familiarity and actual adultery committed, when offered for the purpose indicated, except in the additional weight and significance of the latter fact. The concurrent adulterous disposition of the defendant and the particeps criminis cannot be shown by stronger evidence than the criminal act itself." State v. Lapage, 57 N. H. 245, 24 Am. Rep. 69. CHAPTER LXI. BASTARDY. § 542. The Term "Bastard" Defined. 544. Unchaste Conduct of the Mother may be Shown. 546. Mother of Bastard may Prove Illicit Intercourse. 549. Charge may be Sustained by Preponderance of Testimony. § 542. The Term "Bastard" Defined.-By the statutes of New York, a child is deemed a bastard who is begotten and born out of lawful matrimony; or while the husband of its mother continued absent out of the state, for one whole year previous to the birth of the child, separate from its mother, and leaving her during that time continuing and residing in the state; or during the separation of its mother from her husband, pursuant to a decree of any court of competent authority. 1 Rev. Stat. part 1, chap. 20, title 6, § 1; 1 Stat. at L. 595. § 543. Rule as to Children Born in Wedlock.-In some others of the American states, as in Pennsylvania, Virginia and North Carolina, a child born during marriage may be proved to be a bastard-first, by evidence of the husband's inability; second, by proof of the non-access of the husband to his wife; third, by proof that the child was born out of due time; or, fourth, by proof that the child was born during the wife's open cohabitation with another man, and such child was considered illegitimate by the family. Com. v. Stricker, 1 Browne, App. 47; Com. v. Wentz, 1 Ashm. 269; State v. Pettaway, 10 N. C. 623; Bowles v. Bingham, 2 Munf. 442, 5 Am. Dec. 497. As a general thing, it would seem that the law recognizes a child as legitimate, begotten before but born after marriage, on the ground that a man marrying a woman in an advanced state of pregnancy thereby admits the child afterward born to be his own, and in some states this is conclusive upon the question of legitimacy, while in others it is not. But in no case is it regarded as conclusive that a child begotten in lawful wedlock is legitimate. The presumption of law is in favor of legitimacy in such cases, but as a general rule, such presumption may be rebutted by evidence. Morris v. Davies, 3 Car. & P. 215; Reg. v. Mansfield, 1 Q. B. 618; Stegall v. Stegall, 2 Brock, 256. By the statutes of Maine, Vermont, Massachusetts, Connecticut, Ohio, Illinois, Indiana, Maryland, Virginia, Georgia, Alabama, Mississippi, Louisiana, Kentucky and Missouri, and possibly some other states, it is provided, that when the parents of an illegitimate child intermarry after the birth of the child, and the father treats it as a legitimate child, the child shall thereby be adopted as such, and shall be deemed for all purposes legitimate from the time of its birth. Vide statutes of the several states. This is the law in France and in most other European nations, and efforts have been made to get such a provision into the code of New York. There would seem to be justice and mercy in the rule, and it will probably soon be the law in all the American states. Tyler, Infancy & Coverture, 232. § 544. Unchaste Conduct of the Mother may be Shown.— In a case of this kind, where the only question is that of paternity, it should always be allowable to show unchaste conduct with a man other than the defendant, and especially if the circumstances are such as not to preclude the possibility that the other was the father of the child. State v. Carver, 65 Iowa, 53. § 545. Evidence of "Non-Access" Competent.-The ancient rule of the common law was, that the husband must be presumed to be the father, if he was within the realm, during any part of the time, within the extreme limits of the period allowed for gestation. This rule has long since been repudiated by the courts, as not consistent either with reason or common sense. For other evidence of the non-access of the husband, is frequently as strong and satisfactory to show the actual impossibility that the husband could have been the father of the child. Nor is it necessary that the evidence should be such as to render it impossible that sexual intercourse should have taken place between the husband and wife. It is sufficient if it proves, beyond a reasonable doubt, that no such intercourse did take place. Van Aernam v. Van Aernam, 1 Barb. Ch. 377. § 546. Mother of Bastard may Prove Illicit Intercourse. The mother of the alleged bastard was a married woman, whose husband was living at the time of the alleged illicit intercourse and the birth of the child. And while she is, from the necessity of the case, a competent witness to prove the illicit intercourse, and who is in fact the father of the child, she is not competent as a witness to establish the non-access of the husband; nor his absence from the state; nor any fact which may be proved by other testimony. This seems to be the well settled rule. 2 Stark. Ev. 404; Phil. Ev. 87; Greenl. Ev. 345; Cowen's & Hill's Notes, 153, 1555, and cases there cited. Lord Mansfield held that it was a rule founded in decency, morality and policy, that parties should not be permitted to say after marriage that they had no connection; while Lord Hardwicke placed the incompetency of the wife on the ground of the interest of the husband, in charging another with the support of the child. People v. Ontario Poor Overseers, 15 Barb. 292. This kind of cor The declarations or accusations of the mother in such cases have never been considered by our courts as independent facts showing the fatherhood of the child, but as corroborative only of her testimony in court to the same effect. Booth v. Hart, 43 Conn. 480; Robbins v. Smith, 47 Conn. 182. roboration was at first required by statute where the woman was the prosecutrix. For nearly a century and a half the woman was allowed to testify under oath, while the privilege was denied to the reputed father. But at the same time and for his security against a possibly false oath, the statute, in addition to the oath of the mother, required constancy in her accusation and that she should be put to discovery at the time of travail. Chaplin v. Hartshorne, 6 Conn. 44. This was regarded as a condition precedent to a recovery until the law allowed all parties in interest in all cases to testify. The statute still retains essentially the same provisions as to corroboration, but it is now not a condition indispensable to a recovery, but can be used to make a prima facie case, and to throw the burden of exculpation on the defendant. But whether the prosecutrix rests her case on preponderance of proof or avails herself of the provision for a prima facie case, her constancy of accusation is still regarded as confirmatory only of her testimony. We readily concede however that it is a most natural and effective corroboration. We may adopt the statement made in the brief for the defendant, and which is used to support the argument we are considering, "that as matter of fact the female, when her pregnancy becomes apparent to her friends and acquaintances (and apparent it must become) will be called upon by everybody to name the father." We may even go further and concede that her declarations in some circumstances are in some sense illustrative of her condition and conduct, and yet we fail to see any analogy between such declarations and those now in question, made by one not accused at all by the prosecutrix, but only by the defendant for his own exculpation. Benton v. Starr, 58 Conn. 285. The rule undoubtedly is, that a married woman cannot, as a witness, bastardize her offspring. It is against public policy, and would tend to the dissolution of marriages, and break up the peace of families. The very idea is unnatural. The statute only provides that after the bastardy is established, she may designate the father, ex necessitate; and such was the common law. People V. Ontario Poor Overseers, 15 Barb. 290. § 547. When Presumption of Legitimacy will Govern.The legal presumption is that a child born subsequent to the marriage of its mother, although begotten before that time, is the child of the husband. And the admission by a third person that the child was begotten by him, and not by the subsequent husband of the mother, is not evidence to rebut such legal presumption, in a suit to annul the marriage upon the ground that the consent of the husband to the marriage contract was obtained by fraud. Montgomery v. Montgomery, 3 Barb. Ch. 132. $548. Resemblance as a Test of Parentage. The learned author of "Beck's Medical Jurisprudence" says: "It has been suggested that the resemblance of a child to the supposed father might aid in deciding doubtful cases. This, however, is a very uncertain source of reliance. We daily observe the most striking differences in physical traits between parent and child, while individuals born in different parts of the globe have been mistaken for each other. And even as to malformations, although some remarkable resemblances in this respect have been noticed between father and child, yet we should act unwisely in relying too much on them. There is however, a circumstance connected with this, which, when present, should certainly defeat the presumption that the husband or paramour is the father of the child, and that is when the appearance of the child evidently proves that its father must have been of a different race from the husband or paramour, as when a mulatto is born of a white woman whose |