usual operation of the laws of nature, and it also appears that the wife has had intercourse with another at the time when by the usual operation of these laws he would be the father, the conclusion that the latter is the father is, in the absence of any symptoms or circumstances indicating an exceptional period of pregnancy, well nigh irresistible. Nor is there any reason why this conclusion should not be followed in this class of cases as in other cases where the fact that the husband is not the father is capable of being shown clearly and satisfactorily and is so shown. The courts are reluctant to reach the conclusion of illegitimacy in any case, but, reaching it, there is no hesitation, and should be none, in giving it effect. Our conclusion in the present case is that the issue of paternity is not determined by any conclusive presumption of legitima cy. 8 The following comment (33 Harvard Law Review, p. 306) upon this case and the principle involved is instructive: "PRESUMPTION OF LEGITIMACY OF A CHILD BORN IN WEDLOCK.-Familiar to all lawyers, and to most laymen, is the age-old presumption that a child born of a married woman is the child of her husband. As it first appeared in the common law, it was conclusive and no evidence was admissible in rebuttal. This was in accord with the strict notions of the common lawyers, and was probably based upon regard for property rights, a bastard being incapable of inheriting or of having any heirs except those of his own body. But with the advance of civilization and the recognition of rights of personalty, the presumption was relaxed and could be rebutted by evidence that the husband was impotent or was beyond the four seas of England at the time of conception. The further development of ideas of individualism brought about the evolution of the modern rule permitting the presumption to be rebutted by any evidence appropriate to the issue. To such rule there exists only one exception, that neither the husband nor the wife may testify directly as to the question of access. "But the law has not gone to the full exent of regarding the presumption as based merely on logical inference. Almost universally it requires of the rebutting evidence a strength or clearness greater in degree than that capable of rebutting the ordinary presumption of fact. That the courts are correct in demanding such extra quantum of proof seems clear upon a consideration of the conflicting interests involved. It is undeniable that society as a whole benefits by the prevention of bastardy, which is an anomaly in a system of law based upon the family as a unit. Moreover, in some jurisdictions, bastards are a charge upon society, and almost everywhere statutory proceedings are necessary to fasten upon the father the burden of support. From the point of view of the child, bastardy involves, not only a social stigma, but also a loss of legal rights. At common law, he was filius nullius, and was denied a name unless he acquired one by reputation; having no family recognized by the law, he was incapable of inheriting property. And while his degraded position has been ameliorated by statute, such legislation, being in derogation of the common law, is strictly construed. But, on the other hand, while protecting the interests of the child and of society, the law should not ignore those of the alleged father. To place upon him the burden of supporting and recognizing a child not his own would be harsh indeed. Requiring unusual clearness in the proof of illegitimacy effects a compromise which does substantial justice to all concerned. "Unfortunately, however, the expressions used to designate the degree of proof necessary to rebut the presumption are at wide variance. Some courts require a showing of natural impossibility. Others, more moderate, say that satisfactory evidence is enough. The prevailing statement is that the evidence must be strong, distinct, satisfactory, and conclusive. A few have adopted the usual standard of criminal law, that is to say, proof be CC.et. IV. Conclusive Rules or Presumptions 1. LOST GRANT MISSION OF THE IMMACULATE VIRGIN v. CRONIN. (Court of Appeals of New York, 1894. 38 N. E. 964.) Appeal from Supreme Court, General Term, Second Department. Action of ejectment by the Mission of the Immaculate Virgin for the Protection of Homeless and Destitute Children in the City of New York against Michael Cronin. From a judgment of the General Term (21 N. Y. Supp. 750) affirming a judgment for plaintiff defendant appeals. Reversed. FARL, J. This is an action of ejectment, commenced April 10, 1889, to recover about 30 acres of land known as lots 4 and 5 of the Second division of Rockaway Beach. The land extends along the Atlantic Ocean about 1,320 feet, with a depth back from the ocean of about 900 feet. In 1809 there was a partition proceeding in the court of common pleas of Queens county for the partition among alleged owners of yond a reasonable doubt, while two have indicated that a mere preponderance is enough. In many cases any one of these expressions may suffice, but hard cases are likely to arise where the terminology, if adhered to. is of vital importance. The facts of a recent case in California, In re McNamara's Estate, are pertinent in this connection. The child was born three hundred and four days after the wife separated from the husband and went to live with a former lover. This was a possible, but exceptional, period of gestation. If the evidence must be conclusive, or show natural impossibility, the presumption had not been overcome. Yet it was fairly clear that the husband was not the father. The court, faced with the necessity of a definite choice, decided that, as the proof was beyond a reasonable doubt, illegitimacy had been made out. It is believed that this test is the most desirable one, for it not only carries out the policy of the law, but also provides a standard with the use of which the courts are familiar. Its universal adoption would make for simplification and certainty in an important social matter. "A peculiarity in the operation of the presumption of legitimacy deserves notice. A leading authority on evidence, Professor J. B. Thayer, laid it down as an invariable rule that the burden of proof is fixed by the pleadings and never shifts during the trial, and that the only function of a presumption is to shift the burden of going forward. But the law undoubtedly is that once the fact of birth in wedlock is shown, the presumption of legitimacy continues until overcome by evidence at least greater than a mere preponderance. It would seem to follow that the presumption necessarily involves a shifting of the burden of proof. If this is true, Professor Thayer's proposition may be maintained only by concluding that the presumption of legitimacy is not a presumption at all, but a special rule going to the weight of proof required. It seems more desirable, however, to retain the universal nomenclature for this law respecting birth in wedlock and to recognize it as an exception-probably the only one-to Thayer's general proposition that a presumption shifts only the burden of going forward with evidence." • For a discussion of principles, see McKelvey on Evidence (3d Ed.) § 52. a large tract of land including this land, and in that proceeding this land was set off to Thomas Bannister, in the right of his wife Rachel, and it was admitted upon the trial that both parties claimed under that partition. The plaintiff, upon the trial, gave no evidence of any conveyance from or under the Bannisters, and gave no documentary evidence connecting its title with the Bannister title. The only documentary evidence of title it gave was as follows: A deed dated January 28, 1869, from Benjamin C. Lockwood, Jr., and his mother, to Charles Donohue, and a deed from Donohue to the plaintiff, dated January 4, 1881. There was no proof whatever showing any title in the grantors of Donohue from or under the Bannisters, and so there is no claim that the plaintiff had a documentary chain of title. The defendant claims the right of possession of the land as lessee from a grandson of the Bannisters, and the complaint alleges that he entered into possession of the land May 1, 1887, and he has ever since been in possession thereof. The plaintiff claims title in two ways: By adverse possession, and, failing in that, by proof from which the court. could presume a grant from or under the Bannisters. We think both claims of title are unfounded. This was uninclosed, uncultivated, unimproved, and unoccupied land. The plaintiff and its predecessors had exercised some acts of apparent ownership upon the land. They had claimed title to the land, surveyed it, marked the boundaries thereof by monuments, from time to time cut trees upon it, and for a few years paid the taxes thereon. All these acts, as we have frequently held, fall short of showing "adverse possession," as defined in the Code (section 272). Wheeler v. Spinola, 54 N. Y. 377; Thompson v. Burhans, 61 N. Y. 52; Miller v. Railway Co., 71 N. Y. 380; Thompson v. Burhans, 79 N. Y. 93; Price v. Brown, 101 N. Y. 669, 5 N. E. 434. The plaintiff cannot claim constructive possession of the land under section 370 of the Code, because no part of the tract was improved, and the trees cut there from were not cut for use upon the tract, but for use upon other land at least two miles distant. The presumption of a grant of the land from or under the Bannisters to some one of the plaintiff's predecessors rests upon an equally slender foundation. Here there was claim of title for many years, and acts upon the land consistent with, and, indeed, indicative of, ownership. But such claim and acts, in the absence of actual or constructive possession going with them and characterized by them, have never of themselves been held sufficient to authorize the presumption of a grant from the true owner. The plaintiff's claim of title extends back less than 20 years prior to the defendant's possession. Its deeds are all' modern, and any title derived from the Bannisters must have been modern, as they were living in 1809. If, upon such facts as exist here, a grant could be presumed, it would be easy for a claimant to land to get around the careful provisions of law as to adverse possession. If he failed to show facts sufficient for adverse possession, he could yet use the same inadequate facts to raise a presumption of a grant. The plaintiff's counsel places reliance upon the two cases to which he calls our attention, and which we will notice. In Roe v. Strong, 119 N. Y. 316, 23 N. E. 743, there was dispute as to plaintiff's title to upland and the adjacent land under the water of Setauket Bay. The plaintiff established his title to the upland bounded by high-water mark on the bay, by a chain of title running back more than 200 years, and he showed a chain of title to the land below high-water mark in front of his upland for more than 100 years, running back to a deed from Joseph Brewster to Andrew Seaton, dated January 21, 1768; and he showed acts of ownership upon the land covered by this deed, running back so far as the memory of living witnesses could go. The land under water originally belonged to the town in which it was situated. The town had, nearly 200 years before the trial of that action, conveyed away the adjacent land under water, being all the land it owned on Setauket Bay, except the land covered by the Brewster deed, making a boundary upon the land covered by that deed. Under such circumstances, with others not here mentioned, this court held that a deed from the town to Brewster, or some one under whom he held, should be presumed, and the presumption was made in favor of the owner of the upland. That case is widely different from this. In McRoberts v. Bergman, 132 N. Y. 73, 30 N. E. 261, the land in dispute was a sand beach on the lower bay of New York, adjacent to the plaintiff's upland, and the beach was occupied and used in connection with the upland, and as part of the same farm, the beach and the upland constituting a single lot. The plaintiff proved a chain of title to the lot running back for much more than 100 years. Whatever presumptions were indulged in, these furnish no precedent for this case. We are, therefore, of opinion that the plaintiff failed to show a title to the land in question sufficient for the maintenance of this action, and that the judgment should be reversed, and a new trial granted. Judgment reversed. All concur. 2. CAPACITY OF INFANTS TO COMMIT CRIME10 HEILMAN v. COMMONWEALTH. (Court of Appeals of Kentucky, 1886. 84 Ky. 457, 1 S. W. 731, HOLT, J. Under an indictment for the rape of a child under 12 years of age, the appellant, George Heilman, has been sentenced to the penitentiary for 10 years for carnally knowing a child under that age. The evidence tends strongly to show that he was between 11 and 12 years of age at the time of the alleged commission of the offense. The jury were, in substance, told that a boy over 14 years 10 For a discussion of principles, see McKelvey on Evidence (3d Ed.) § 55. of age is presumed in law to be capable of the act, but incapable if under that age; but if they found from the evidence that the appellant was at the time under that age, and yet physically capable of the act, then they should convict him of rape, if done with force, and if not, then of carnally knowing the child. No instruction whatever was given upon the question whether he at the time had discretion and mind enough to know the wrongful character of the act. By the common law, a child under seven years is conclusively presumed to be incapable of the commission of the crime. Within that age he is absolutely presumed to be doli incapax. Between seven and fourteen he is so only prima facie, and the maxim applies malitia supplet ætatem. In the latter case, his criminal mental capacity may be shown, and the question is whether there was a guilty knowledge of wrong-doing. The age of 14 years is known, under the common law, as that of discretion; but by it, if it appears that an infant under that age, but over seven, has mind to distinguish between good and evil, as if a child 12 years old kill another, and then hide the body, he is liable to conviction. In such a case, it must be left to the jury to say whether the accused did the act, and, if so, whether he had a guilty knowledge of it; and the intent, instead of being inferred, as in the case of one over 14 years of age, must be proven. Indeed, it has been said by perhaps the most eminent common-law writer: "The evidence of that malice which is to supply age ought to be strong and clear, beyond all doubt and contradiction." The presumption in his favor when under seven years of age is indisputable; but it is reasonable that, from that time until he arrives at the age of discretion, the presumption in his favor should diminish. It is, however, a rule of the English common law that a boy under 14 is conclusively presumed to be incapable of committing a rape, the malice not supplying the age as to it as in other crimes. This doctrine has been adhered to in some of the states, and under it no evidence is admissible to show that the accused has in fact arrived at puberty, and could commit the offense. It is therefore urged in this case that the jury should have been peremptorily instructed to acquit the accused. This rule, however, is but an arbitrary one, and must often allow the knowingly guilty to escape punishment. It cannot, therefore, be said to be the perfection of reason; and in this country, with its diversity of race, climate, and condition, all affecting human development, it should be rejected, and evidence that the accused is under 14 should be held only to establish prima facie his incapacity, subject to be overthrown by testimony. Certainly, one who has positive capacity to commit the crime, and acts understandingly, should not be allowed to escape punishment, even if to do so requires a departure from a long-established rule. The English rule, however, proceeds upon the ground of impotency rather than discretion, because an infant under 14 may under it be convicted of aiding in the offense. It is there based upon their observation and |