case edward Draycott appellant Draycott talbot and other respondent that  January Mews dig way seven the entry of the name and title of person in a  church book either for marriage or birth can be positive evidence of the  marriage or birth of any person unless the identity of the person name in such  entry be full prove and strengthen also with circumstance of cohabitation or  the allowance of party viner vol p can Eq can ab can ground and rudiment of  law and equity p can Henry Draycott of Mornantown in the county of meath in  Ireland Esq be seize in fee of the town and land of Mornantown and other  hereditament in that kingdom do in the year in consideration of his marriage  with Elizabeth the old daughter of sir Thomas leister and of a marriage  portion of pound by proper conveyance settle his say estate in such manner as  to secure a jointure of pound per and for the say Elizabeth in case she shall  happen to survive he and thereupon the marriage be soon afterward solemnized  in the chapel of Kentish town in the county of Middlesex in the presence of  Dorothy leister the sister of the say Elizabeth and several other person the  say Henry Draycott and his wife afterward levy a fine of part of the say  jointureland to Philip savage Esq and by indenture date the that of may the  say fine as to part of the land therein mention be declare to be to the use of  the say Elizabeth and her heir in case she shall survive her say husband until  she shall be pay a sum of pound as a satisfaction for her join in the say fine  brown whereby the say Henry be enable to dispose of part of her jointureland  on the that of November one Elizabeth Herbert the appellant mother pretend  that the appellant be beget on her body by the say Henry Draycott and that he  have promise to allow her pound per and for her maintenance exhibit her bill  against he in the court of chancery in Ireland for a specific performance of  the say agreement but though she suggest by her say bill that there be a  contract of marriage between they yet it be not thereby allege nor do she even  pretend that she be ever actual marry to he to this bill the defendant put in  a answer and demurrer by his answer he deny that he ever court the plaintiff  for his wife or ever enter into any marriage contract with her or that any  such contract be ever propose to he or that he ever cohabit with her as his  wife or ever promise to give her pound a year for her maintenance and as to  the residue of the bill he demurrer the same contain matter scandalous and  criminal but this cause be afterward on the plaintiff application refer to a  master who on the that of September report that the defendant shall pay the  plaintiff the sum of pound by pound per and provide she shall so long continue  unmarried and that he shall also take care of and provide for her say son and  this report be confirm the pound per and be pay the appellant be send to  school and afterward put a apprentice to a carver and painter in Dublin but  have misbehave himself during his apprenticeship his master throw he into gaol  from whence he make his escape and enlist as a private soldier the say  Elizabeth Herbert afterward intermarry with one James Richardson a brazier in  Dublin and live with he till her death which happen about the year or Henry  Draycott have survive his wife Elizabeth who die without leave he any issue by  deed of lease and release date the d and d of October convey all his estate to  trustee to the use of himself and the heir male of his body remainder to  Patrick Draycott for life remainder to his first and other son in tail male  successive remainder to Philip Draycott for life remainder to his first and  other son in tail male successive remainder to Henry Talbot cousin german of  the say Henry for life remainder to his first and other son in tail male  successive remainder to his own right heir brown er p on the that of November  follow the say Henry Draycott make his will and thereby at the earnest request  of some of his friend he give a legacy of pound to the appellant by the name  of Edward Draycott late of the city of Dublin to be pay he whenever he shall  come to demand the same brown and on the that of the same month the testator  die without issue the appellant afterward receive this legacy of pound and  give a receipt for the same the say Patrick Draycott and Philip Draycott two  of the remainder man in the say settlement of have both die without issue  Henry Talbot the other remainder man some time about the year enter upon the  estate and continue to enjoy the same till his death which happen in the year  whereupon the respondent as his son and heir become entitle thereto under the  limitation of the say settlement and enter and enjoy accord but in Michaelmas  term the appellant exhibit his bill in the court of exchequer in Ireland  against the respondent and other suggest that his mother the say Elizabeth  Herbert be grand daughter of sir Nicholas Herbert Knt decease and be lawful  marry to the say Henry Draycott in the parish church of saint Giles near the  city of Durham on the that of January that he be the only son and heir of the  say Henry Draycott who die seize in fee or fee tail of the say land and  premise the same descend and come to he as such son and heir and therefore  pray to be restore to the possession and have account of the rend and profit  thereof the defendant to this bill several answer the same and insist that the  plaintiff be a bastard and consequent have no title to the say estate either  in law or equity and that the say Henry Draycott have no manner of regard for  he nor ever intend that he shall have any part of his estate the cause be at  issue several witness be examine on both side upon commission in England and  Ireland and particular on a commission execute in Durham on the part of the  plaintiff two entry in the church book of the parish of saint Giles in that  city be prove the one of which be as follow videlicet Henry Draycott of  Mornantown in the kingdom of Ireland be marry to mrs Elizabeth Herbert of this  parish January in the year of our Lord and the other entry be in the follow  word videlicet Edward son of Henry Draycott Esq to Elizabeth his wife be  baptise the that of November after this evidence appear the defendant cause a  inspection to be make of the church book from whence these entry be say to be  take and upon such inspection there be great reason to apprehend that both of  they have be forge but as publication be pass the defendant be not entitle to  a new commission for examine witness to prove this forgery and therefore can  not lie before the court any evidence concern it on the that of December the  cause be beard when the plaintiff rely upon these entry as full proof of his  brown legitimacy but upon read the say Elizabeth Herbert bill and the say  Henry Draycotts answer thereto the evidence of her be marry to Richardson and  the deposition of several person of credit and distinction prove the plaintiff  illegitimacy the court be please to dismiss the bill be of opinion that if he  have any remedy it be proper at law from this decree the plaintiff appeal  insist t powys t reeve that upon the circumstance of the case he have good  ground for a suit in equity and that the court ought to have decree in his  favour as he have full prove himself to be the legitimate son of Henry  Draycott that the pretend deed of settlement if any such be make ought to have  be decree fraudulent and set aside it have be obtain under a pretence that the  appellant be dead and which be matter of fraud and imposition be proper and  only relievable in a court of equity but if the matter have appear doubtful to  the court the bill ought to have be retain and proper issue direct for try  such fact as the court have reason to conceive a doubt of in order to the make  a proper decree after such issue have be try on the other side it be contend S  Cowper c Phipps that there be no evidence in the cause that the appellant  mother be ever marry to the say Henry Draycott or that he ever cohabit with  her as her husband that the entry of the name and title of person in a church  book either for marriage or birth though not brown er p forge can not be  positive evidence of the marriage or birth of any person unless the identity  of the person name in such entry be full prove and strengthen also with  circumstance such as cohabitation the allowance of the person themselves  etcetera but notwithstanding the commission execute by the appellant at Durham  there be not any witness examine to prove the marriage of the say Henry  Draycott with the say Elizabeth Herbert or that they do at any time cohabit or  live in or near the say city of Durham or that the say Elizabeth be the  granddaughter of sir Nicholas Herbert as the appellant pretend though the  family of the herberts be say to reside in Yorkshire and not far distant from  Durham that it be full prove in the cause that the say Henry Draycott be marry  to Elizabeth leister in the year and cohabit with her as her husband for  eighteen year and upward until her death in the lifetime of the say Elizabeth  Herbert and in the say kingdom it be also prove that she be marry to the say  James Richardson and cohabit with he as his wife for fourteen year in the  lifetime of the say Henry Draycott and during his cohabitation with the say  Elizabeth his wife without ever pretend that she be marry to he that by the  bill exhibit by the say Elizabeth Herbert against the say Henry Draycott she  only suggest a marriage contract and by his answer to that bill he declare  upon oath that he never even promise to marry her and positive affirm that no  such thing as marriage with her be ever brown propose to he that the appellant  be prove to have be constant repute a bastard and be allow so to be both by  his father and mother upon record and though he be now year of age yet he  never pretend to be legitimate until about seven year ago and which be year  after Henry Draycotts death that the appellant name be not mention in the say  settlement of Henry Draycott and by his wife he leave he pound by the name of  Edward Draycott late of Dublin take no notice of he as his son which it be  reasonable to presume he will have do have he be legitimate his estate now go  to other relation for want of issue of his own body that the say settlement  whereby Henry Draycott make himself tenant in tail in possession be confess by  the respondent in their answer to the appellant bill and no temporary bar or  other impediment appear to obstruct he in recover the estate at law if he be  in truth the lawful son of the say Henry Draycott that it plain appear to the  court upon the hear of the cause that if the appellant have any title to the  premise it be a title at law and if a case of this kind shall receive the  least countenance it may affect any man have a illegitimate child or one false  lie to his charge accord after hear counsel on this appeal it be order and  adjudge that the same shall be dismiss and the decree therein complain of  affirm jour vol p