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On the 6th of November following, the said Henry Draycott made his will, and thereby, at the earnest request of some of his friends, he gave a legacy of £50 to the appellant, by the name of Edward Draycott, late of the city of Dublin; to be paid him whenever he should come to demand the same.—[566] And, on the 17th of the same month, the testator died without issue.

The appellant afterwards received this legacy of £50, and gave a receipt for the same.

The said Patrick Draycott and Philip Draycott, two of the remainder-men in the said settlement of 1694, having both died without issue, Henry Talbot, the other remainder-man, some time about the year 1700, entered upon the estate, and continued to enjoy the same till his death, which happened in the year 1706; whereupon the respondent, as his son and heir, became entitled thereto, under the limitations of the said settlement, and entered and enjoyed accordingly.

But, in Michaelmas term 1709, the appellant exhibited his bill in the court of Exchequer in Ireland against the respondent and others; suggesting, that his mother the said Elizabeth Herbert, was grand-daughter of Sir Nicholas Herbert Knt. deceased, and was lawfully married to the said Henry Draycott, in the parish church of St. Giles, near the city of Durham, on the 17th of January 1662; that he was the only son and heir of the said Henry Draycott, who dying seised in fee or fee-tail of the said lands and premises, the same descended and came to him, as such son and heir; and therefore prayed to be restored to the possession, and have account of the rents and profits thereof.

The defendants to this bill severally answered the same, and insisted, that the plaintiff was a bastard, and consequently had no title to the said estate either in law or equity; and that the said Henry Draycott had no manner of regard for him, nor ever intended that he should have any part of his estate.

The cause being at issue, several witnesses were examined on both sides, upon commissions in England and Ireland; and particularly on a commission executed in Durham, on the part of the plaintiff, two entries in the church-book of the parish of St. Giles in that city were proved; the one of which was as follows; viz. "Henry Draycott of Mormantown in the kingdom of Ireland, was married to Mrs. Elizabeth Herbert of this parish January 17, in the year of our Lord 1662." And the other entry was in the following words; viz. "Edward, son of Henry Draycott, Esq. to Elizabeth his wife, was baptized the 29th of November 1663."

After this evidence appeared, the defendants caused an inspection to be made of the church-books, from whence these entries were said to be taken; and upon such inspection, there was great reason to apprehend that both of them had been forged; but, as publication was passed, the defendants were not entitled to a new commission for examining witnesses to prove this forgery, and therefore could not lay before the court any evidence concerning it.

On the 4th of December 1713, the cause was heard, when the plaintiff relied upon these entries as full proof of his le-[567]-gitimacy; but, upon roading the said Elizabeth Herbert's bill, and the said Henry Draycott's answer thereto, the evidence of her being married to Richardson, and the depositions of several persons of credit and distinction proving the plaintiff's illegitimacy, the court was pleased to dismiss the bill, being of opinion, that if he had any remedy, it was properly at law.

From this decree the plaintiff appealed, insisting (T. Powys, T. Reeve), that, upon the circumstances of the case, he had good grounds for a suit in equity, and that the court ought to have decreed in his favour, as he had fully proved himself to be the legitimate son of Henry Draycott. That the pretended deed of settlement, if any such was made, ought to have been decreed fraudulent, and set aside; it having been obtained under a pretence that the appellant was dead, and which, being matter of fraud and imposition, was properly and only relievable in a court of equity. But if the matter had appeared doubtful to the court, the bill ought to have been retained, and proper issues directed for trying such facts as the court had reason to conceive a doubt of, in order to the making a proper decree after such issues had been tried.

On the other side it was contended (S. Cowper, C. Phipps), that there was no evidence in the cause that the appellant's mother was ever married to the said Henry Draycott, or that he ever cohabited with her as her husband. That the entry of the names and titles of persons in a church book, either for marriages or births (though not