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forged) could not be positive evidence of the marriage or birth of any person, unless the identity of the persons named in such entries was fully proved, and strengthened also with circumstances, such as cohabitation, the allowance of the persons themselves, etc. But, notwithstanding the commission executed by the appellant at Durham, there were not any witnesses examined to prove the marriage of the said Henry Draycott with the said Elizabeth Herbert; or that they did, at any time, cohabit, or live in or near the said city of Durham; or that the said Elizabeth was the granddaughter of Sir Nicholas Herbert, as the appellant pretended, though the family of the Herberts were said to reside in Yorkshire, and not far distant from Durham. That it was fully proved in the cause, that the said Henry Draycott was married to Elizabeth Leister, in the year 1670, and cohabited with her as her husband for eighteen years and upwards, until her death, in the life-time of the said Elizabeth Herbert, and in the said kingdom. It was also proved that she was married to the said James Richardson, and cohabited with him as his wife for fourteen years, in the life-time of the said Henry Draycott; and during his cohabitation with the said Elizabeth his wife, without ever pretending that she was married to him. That by the bill exhibited by the said Elizabeth Herbert against the said Henry Draycott, she only suggested a marriage-contract; and by his answer to that bill, he declared upon oath, that he never even promised to marry her; and positively affirmed, that no such thing as marriage with her was ever [568] proposed to him. That the appellant was proved to have been constantly reputed a bastard, and was allowed so to be, both by his father and mother upon record; and though he was now 54 years of age, yet he never pretended to be legitimate until about seven years ago, and which was 17 years after Henry Draycott's death. That the appellant's name was not mentioned in the said settlement of Henry Draycott, and by his will he left him £50 by the name of Edward Draycott, late of Dublin, taking no notice of him as his son, which it was reasonable to presume he would have done had he been legitimate; his estate now going to other relations for want of issue of his own body. That the said settlement, whereby Henry Draycott made himself tenant in tail in possession was confessed by the respondents in their answer to the appellant's bill; and no temporary bar or other impediment appeared to obstruct him in recovering the estate at law, if he was in truth the lawful son of the said Henry Draycott. That it plainly appeared to the court, upon the hearing of the cause, that if the appellant had any title to the premises, it was a title at law; and if a case of this kind should receive the least countenance, it might affect any man having an illegitimate child, or one falsely laid to his charge.

Accordingly, after hearing counsel on this appeal, it was ordered and adjudged, that the same should be dismissed; and the decree therein complained of, affirmed. (Jour. vol. 21. p. 59.)

Thomas Arthur, doctor of physic, was seised in fee of a real estate in the province of Munster in Ireland, of about £800 per ann.; and having four daughters, namely, Mary, Dympna, Anstace, and Christian, but no sons, he, by articles dated the 1st of July 1644, in consideration of an intended marriage between his second daughter Dympna and John Arthur, agreed to settle his said estate upon the said John and Dympna during their lives; and after their deaths to the second son of Dympna by the said John in tail male, if any such he should have; and if not, then to the heirs male of the marriage.

The marriage was soon afterwards had, and there was issue three sons, namely,