By the Court.
Lumpktn, J.delivering the opinion.
[1.] The first assignment is, that the Court erred in repelling the testimony offered by complainant, to prove to whom, by the general reputation of the neighborhood, and in the family of Culpepper, and his wife, the paternity of the boy, Berry Wesley Culpepper, was ascribed.
The two propositions embraced in this assignment should be separated. They stand on different grounds.
First, as to the general reputation in the vicinage. Questions involving public rights, such as prescriptions, commons, &c. may be proven by general reputation; but not so, where private rights are put in issue. Notwithstanding this general rule, there is not wanting respectable authority in favor of the admissibility of this species of evidence, in questions of illegitimacy. Without citing other cases, I need only to refer to the "opinion of Chief Justice Marshall, in support of this doctrine, in Stegall vs. Stegall, (2 Brockenbrough’s R. 256,) iti *166which he states, that this species of proof is not to be entirely overlooked or disregarded. lie intimates, however, that it is not in every case that resort should be had to it. Upon the whole, wo are inclined to think that, in the present case, the Court was right, perhaps, in rejecting so much of Mr. Perry’s testimony as related to general rumor, respecting the parentage of Berry •Wesly Culpepper.
But, does the reputation in the families of this boy’s father and mother, as to his status or condition, stand upon the same footing ? We think not, and upon the most obvious principle. This kind of proof is sufficient as to pedigree, and the title to property consequent thereon. The relatives are properly supposed to be cognizant of such matters. They are interested in having them rightly understood in protecting the good name .and fame of the family from injurious reports. And to this extent, the witness should have been examined.
[2.] The second assignment is, that the Court erred in admitting that portion of the testimony of Benjamin Sullivan objected to, and all and every part of the testimony of The-dorie W. Mentfort.
These witnesses proved that, upon the death of Isaiah Cul..pepper, the ostensible father of Berry Wesley, his estate was equally divided between his widow, and her son, without objection on her part. Why should she object ? Was he not her son, no matter by whom begotten. What signified it to her, who was his father, so far as the division of the property of her deceased husband was concerned? Could it be expected that, in order to retain the whole of it, she should repudiate, as spu- . rious, the fruit of her own womb ? This testimony was very slight, and should have weighed but little with the Jury ; still, as it related to the conduct of the mother, it shouldJrave been received for what it is worth.
[3.] The third assignment of error is, in striking out the amendment to complainant’s bill, because not made in accordance with the directions of the Supreme Court.
The defect in the original hill was, that it recited the proof merely, from which the bastardy of the boy might be inferred.*167This Court directed it to be amended, so as to charge positively, the illegitimacy of Berry Wesley Culpper; and that no ante-nuptial sexual intercourse had taken place between Isaiah Culpepper and his mother. The bill is amended in strict conformity with tho directions of this Court.
[4.] I shall, for the sake of convenience, consider tho seyenth assignment of error next. Was tho Court right in rejecting the testimony of Turner Cates? Its object was to discredit Abel Daniel. He had been twice examined by commission, at tho instance of the complainant. The two sets of interrogatories had been both executed, returned into Court and filed. The complainant declining to use them, they were read by the defendant. And tho attempt was now made, to discredit Daniel, by showing, by Turner Cates, that he had made statements, out of Court, different from these which he had sworn to. The objection to Cates’ evidence was, that no sufficient foundation had been laid for it; that is to say, that Daniel, in neither of the two sets of interrogatories which had been taken out for him, had been asked to state wdiether, at' a certain time and place, and in the presence of certain individuals, naming them, he had not pointed out the place where tho boy, Berry Wesley, had been begotten by him ? This preliminary inquiry was necessary, before Daniel could bo impeached.— The questions propounded to Daniel, were as follows: “ Did you not, a short time, or at any other time afterwards”, (meaning after his stop-daughter was brought back to his house by her husband,) “relate to divers persons, when the thing was fresh in your mind, what took place in the field ? State to whom, and what you said to them” ? To this, the witness, Daniel, answered, “ I said many things, to vex tho opposite party, which I now don’t recollect”.
It wall be perceived, that the defect in this interrogatory is,, that it refers to no place where tho conversation was alleged1 to have taken place; neither does it name the persons who* were present and heard it.
The same interrogatory is renewed in these words: “ was. it after or before her marrirge, that you pointed out to Thom*168as Stripling and Turner Oates, the place where you had intercourse with Elmira Sullivan, your step-daughter, and thought you had got her with child ? State particularly, the time when this intercourse took place” ? He answered, “ in wrath, I might have said such things; but never pointed out the place to them”.
Hero, neither the time nor the place are specified, when and where the alleged conversation took place, although the individuals are mentioned -with whom it was held—Turner Cates, the witness by whom it is proposed to impeach Daniil, being one of them.
We think that, according to the rule established in the Queen’s Case, (2 Brod. & Bing. 313, 314); and recognized first, by this Court, in Sealy vs. The State, (1 Kelly, 213,) and many subsequent decisions, that the testimony of Turner Cates was properly rejected—no sufficient foundation having been laid for it—according to the authority of these cases, and now pretty generally adopted in this country. (1 Greenl. Ev. 516, notes.)
* [5.] I propose to consider the 4th, 5th and 6th assignments together.
The testimony in the case having closed, and the opening eounsel for the complainant having addressed the Jury, night intervened, and the Court adjourned until next morning. Upon re-assembling, his Honor, the presiding Judge, announced to complainant’s Solicitor, that ho had examined the pleadings and proof, and was satisfied that no recovery could be had against the rights of Berry Wesley Culpepper ; and accordingly dictated a decree to the Jury, denying to them, upon their own solicitation, through their foreman, the privilege of retiring to consult, and make up their own verdict.
If the Court was right in supposing that the Law, as applicable to the facts proven, would not justify the Jury in bastardizing Berry Wesley Culpepper, then the direction he gave to this case can be sustained, but not otherwise.
[6.] When this case was before this Court,‘at its August Term, at Decatur, 1852, it was ably and thoroughly discussed. *169The importance, as well as the novelty of the question, led us to devote to it as large a portion of our time as we could possibly spare, from other necessary avocations. We exerted our utmost diligence to collect all the information, so as to enable us to form a correct judgment, and prescribe the best possible rule that our minds were capable of arriving at. And we flatter ourselves, that we did not toil in vain. And the principles of law regulating this question, as deducible from all the authorities, English and American, were thus summed up: that is, that although the birth of a child, during wedlock^ raises a presumption that such child is legitimate, yet that this presumption may be rebutted, both by direct and presumptive evidence. And that, in arriving at a conclusion upon this subject, the Jury may not only take into their consideration proofs tending to show the physical impossibility of the child born in wedlock being legitimate, but they may decide the question of paternity, by attending to the relative situation of the parties— their habits of life, the evidence of conduct, and of declarations connected with conduct, and to any induction which reason suggests, for determining upon the probabilities of the case..^,
[7.] That where the husband and wife have had the opportunity of sexual intercourse, a very strong presumption arises, that it must have taken place, and that the child in question is the fruit; but it is only a very strong presumption, and no more. The presumption may be rebuted by evidence ; and it is the duty of the Jury to weigh the evidence against the presumption, and to decide, as in the exercise of their judgment, either may appear to preponderate. Wright vs. Hicks, (12 Ga. Rep. 155.)
We now re-affirm, distinctly and fully, the doctrine then laid down, as the Law of this case. Indeed, it is the Law, not now questioned in any respectable quarter, on this or the other side of the water, whatever doubts may have once been entertained to the contrary. It has been the Law of Westminster Hall, since the decision of Prudsell vs. Prudsell, (2 Strange 925,) in 1732, by Lord Raymond.
*170[8.] The unreasonable doctrine of being without the four seas, or proving impotency, was then overruled; and the Jury wore instructed that they were at liberty to consider the point of access, which they did, and found against the plaintiff, although begotten and born within wedlock, and his mother and father both living in England, at the time—the one in London and the other in Staffordshire—and there was some proof that the husband had been in London within the last year be^ fore the child was born.
This adjudication was co-eval with the colonization of this State. Georgia, therefore, never was enthralled by the old rule, laid down by Lord Golee.
In the decision of the Banbury Peerage Gase, Lord Hrsleine was the only Law Lord, who held that the presumption of legitimacy arising from marriage, could only be rebutted by proving the impossibility of sexual intercourse. For forensic eloquence, Lord Brsleine stood unrivalled in his day, at the British Bar. But he did not certainly add to his reputation as a Jurist, by going on the Woolsack. Legal history is fruitful in examples, that great lawyers do not always make great Judges, and vice versa.
When Mr. Justice Wayne cites, therefore, the Banbury Peerage Case, as authority for the dictum, in Mrs. Gaines' Case, in 6 Howard, 589, I respectfully submit that neither the decision itself, nor the opinions of Lords Bldon, Bedesdale and Bllenborough, sanctioned the idea, that when marriage is once proved, nothing shall be allowed to impugn the legitimacy of the issue, short of the proof of facts showing it to be impossible that the husband could be the father.
[9.] If he had said, that when sexual intercourse, instead of marriage, is once proved, that nothing short of impossibility, in such case, shall impugn the legitimacy, the Law would have been correctly stated. For, unless an impossibility is shown, neither father nor mother can tell who begat the child. But where sexual intercourse is merely presumed, from the propinquity of the parties, a very different rule obtains; and it requires much slighter proof to rebut the presumption of pa*171ternity. And some Courts have overlooked this most obvious distinction.
The last case connected with this subject, is that of Morris against Davis, (Sir Harris Nicolas on Adulterine Bastardy, 216.) It is one of considerable importance, and has attracted, perhaps, more of public attention than any other, except the Banbury Peerage, in consequence of the number of times it was tried, and the length of time it was pending—about eighteen years. It vras finally decided hyhoic&Lynd'humt. This case re-affirms, in toto, the doctrine maintained in the Banbury Peerage Case, namely: that the Law will presume legitimacy, unless the contrary is proved; and that, to repel this presumption of Law, light circumstances will not be sufficient; but that the evidence must be clear and satisfactory, to the minds of those who are to decide upon the question.
[10.] I venture to suggest another observation. While the Law presumes every child legitimate which is born within wedlock, still, in questions of this sort, there is and should be a difference between .past and ante-nuptial conceptions. In the latter, much slighter proof should be required to repel the presumption of legitimacy, arising from marriage. For here, it is the marriage only, and not the presumed sexual intercourse, resulting from marriage, which creates the presumption. Every child begotten and born within wedlock, is rightly ¡presumed t(o be the offspring of the husband. But such presumption does mot necessarily arise, where the child is begotten ¿before marriage. Another man may as likely be the father, as the future husband, as no one was entitled to sexual intercourse.
[11.] Such, then, being the Law, was there any evidence in the record, to require the case to be submitted to the Jury ?
I will not attempt to sum up the whole of the proof, but refer to a few particulars .only.
It was in evidence, that Isaiah Culpepper took his wife home to her step-father’s, the morning after they were married; that his friends found him in the most disconsolate condition, when they called at his house. In answer to their inquiries, he stated that he had no wife; that he had carried the woman *172that he had married, back to Abel Daniel’s, her step-father’s, because she was big ; that upon undertaking to fondle her, after he retired to bed, she appeared very shy, and would not allow him any of the liberties of a husband ; that after she fell ■asleep, ho passed his hand over her person, and felt a child stir; •that he awoke her, and upbraided her with the cheat she had put upon.him, as he took her, siqoposing her to have been a •virgin. Ho inquired who the person was, that had debauched her; when she informed him that it was Abel Daniel. He yowed to his friends, that he always had believed her to be a .virtuous girl. She remained away until the child was born, which was within less than three months after the marriage. He was then prevailed' on, by their mutual friends, to take her back, in consideration that she had been made the victim of an artful and most heartless seducer, who took advantage of his situation, to effect her ruin. The child was left behind.
It was in proof, that the child resembled some of Daniel’s ■children strongly, and Daniel himself. And this circumstance, .by the way, was relied upon, amongst others, in the case of Morris and Davis. It was in evidence, that this affair created a great deal of disturbance in Daniel’s family; that he .;himself left the country shortly thereafter, and did not return .until after the death of his wife, the mother of Mrs. Isaiah ■ Culpepper, by a former husband.
Were Isaiah Culpepper and his wife in life, then, their declarations would not be admissible in evidence, to bastardize .the issue. But being dead, they are competent testimony; ;and especially as connected with the conduct of the parents, .and explanatory thereof. *
In the case of Morris and Davis, as in this case, the question arose, whether the inference arising from the” conduct of the parties, may be held sufficient to rebut the legal presumption- springing out of the marriage. And the Court there thought, that the evidence arising from the conduct of the parties, was most material and important; and suggested what is true, that in the Banbury Peerage Case, the conduct of the parties-r—not at the time of the conception of the child—but at *173its birth, and for several years subsequently, and the evidence thus arising, formed a principal ground of the judgment of the House of Lords.
Now, the Jurors in this case, as parents, and as practical men, well versed in human nature, and the ways of the world, would naturally ask themselves, was the conduct of Isaiah Culpepper and his wife, reconcilable with the supposition that he was the father of this child? Why this coyness on her part? She might, from prudential motives, have concealed from her lover, her situation before marriage, lest he should break off the courtship. But why dread to reveal to him her true condition now, if he were the father ? Should he venture to reproach her, could she not reply, am I to blame ? I did but yield to your importunity, and allow you to anticipate the fruits of wedlock. Would not his mouth be stopped? But why this reserve in the nuptial couch, when the privileges claimed, were ■only the continuation of an indulgence already allowed ? The wife’s conduct cannot be explained upon this supposition. No, she knew and felt, poor thing, that her sweet-heart and husband had been made the unsuspecting dupe of a most cruel, fraud; that the hour had arrived when concealment was no longer possible. The miseries of a future life, be it long or short, were crowded in that moment. She postpones the revelation as long as possible. Who, that has a heart of flesh, does not pity her mental agony! But the disappointed husband detects her condition, and upbraids her with it. Concealment was no longer possible—she ingenuously confesses the fact; and states that Abel Daniel, her step-father, was the author of her undoing.
Let us turn, now, to the conduct of the husband. He says to his sympathizing friends, to whom he was unbosoming his sorrows, in his own simple, but expressive words, laying his hand upon his heart, “ when I felt the child stir within her, my joy was killed”. Next morning he "returns his wife to her own home. What outrageous and unparalleled impudence, upon the hypothesis that ho was the father of the child! Would he— oould he—have treated this woman, to whom he seems to have *174been devotedly—not to say blindly—attached, so unjustly, if this was the result of his own folly and crime ? Could he have faced her deeply injured mother—her foully slandered step-father, with this deed resting on his own conscience ? It is impossible. And then, to compel the mother to separate from her sucking-child—a babe of five weeks old, and that infant his own—to be nursed and nourished by others!
Rut what is the conduct of Mr. and Mrs. Daniel, the other 'dramatis personae in this tragedy ? When the step-father was "informed by Culpepper that he had brought his wife back, and he desired him to face her, he looked crest-fallen—or to use the more expressive figure of Culpepper, “ like ho could._creep through an augur hole”. He immediately quits the country and remains away until the tongue of his much-wroDged wife is silenced in death, and her grief-stricken looks can reproach him -no more.
Rut was the heart-broken mother and wife ever heard to utter aught against Isaiah Culpepper ? No witness has testified ■to it. She felt, no doubt, that like herself and her too-confiding child", he was a much-wronged man. And instead of arraigning him for his injustice, she sympathized with him in his great affliction. The Jury might advert to the opinion in the family, as to the paternity of this boy. Look at the will of old Mr. Culpepper, how guardedly written ? He gives and bequeathes “ to Rerry Wesley Culpepper, (so called ?) five dollars—the said Rerry Wesley Culpepper being the son of Elmira Oulpepper, the wife of my only son, Isaiah Culpepper, deceased, and born in wedlock” ! He leaves to the only child of Ms only child, the sole descendant of his loins, five dollars, only, out of his estate! Can anybody doubt the grand-father’s opinion, as to the spuriousness of this boy’s blood ? And shall the law of the land, and all the rules of evidence be disregarded, to make this supposititious heir the sole inheritor of the grand-parent’s property ?
The medical opinion of Dr. Harvey need not be controverted. The fact is, nevertheless, undeniable, that the wife conceived by some man before her inter-marriage with Isaiah Culpep*175per—she lived with him five years afterwards, and never had another child. He died—she married again and gave birth to other offspring. True, these facts may not be absolutely inconsistent with the conclusion, that the husband was endowed with generating potency. It is a circumstance, however, from which, in connection with others, the Jury might infer the contrary.
Wc concede that this boy has the right to stand upon his legal rights—his heirship to the family inheritance arising from the presumption of marriage, whatever may be the actual facts of the case. And these rights should be respected by the Court. Still, we do not feel the hardship, as it is claimed to be in the argument, of depriving him of what is called his birth-right. Ho has received, without objection, his half of Isaiah Culpepper’s estate. If ho be not bone of his bone, and flesh of his flesh, is not this enough ? And are the collateral relations of old Daniel Culpepper and his wife, to be taunted for endeavoring to prevent this wild olive branch, as they consider him, and as old Daniel Culpepper, himself, esteemed him, from being grafted on the family stock ?
Thus, the Jury may have reasoned upon the facts of this case; and I have said enough, I trust, to make it manifest that itshoidd have been left to them; and that the Court below erred in withdrawing it entirely from their consideration, and dictating from the Bench the decree which they should render. With the Law of the case given them in charge, as heretofore expounded by this Court, and now repeated, it was a matter ex-, clusively for their determination.