Bassa Tenura

See Base Fee. BASTARD (has or bast, abject, low, base, acrd, nature). One born of an illicit connection, and before the lawful marriage of its parents. One begotten and born out of lawful wedlock. 2 Kent 208. One born of an illicit union. La. Civ. Code, arts. 29, 199. The second definition, which is substantially the same as Blackstone's, is open to the objection that it does not include with sufficient certainty those cases where children are born during wedlock but are not the children of the mother's husband. The term is said to include those born of parties under disability to contract marriage, as slaves. Timmins v. Lacy, 30 Tex. 115. A child is a bastard if born before the marriage of his parents, but he is not a bastard if born after marriage, although begotten before; 1 Bla. Com. 4T>5, -4- G; 8 East 210; State v. Herman, 35 N. C. 5012. By the civil law and by the statute law of many of the states, a subsequent marriage of the parents legitimates children born prior thereto. The rule prevails substantially in Arkansas, Alabama, Georgia, Illinois, Indiana, Kentucky, Louisiana, Maine, Maryland, Massaand Virginia, with somewhat varying provisions in the different states; 2 Kent 210; but under the common law this is not so; Brock v. State, 85 Ind. 397; Ross v. Ross, 129 Mass. 243, 37 Am. Rep. 321. See Heib. A child is a bastard if horn duringture under such circumstances as to make it impossible that the husband of his mother can be his father; Nidi. Adult. Bast. 249; Hall v. Com., Hard. (Ky.) 479; Patterson v. Gaines, G How. (U. S.) 550, 12 L. Ed. 553; 2 M. A: K. 349; State v. Britt, 78 N. G. 439; Herring v. Goodson, 43 Miss. 392; Bussom v. Forsyth, 32 N. J. Eq. 277; Kleinert v. Khlcrs, 38 Pa. 439; Caujolle v. Forrie, 23 N. Y. 90; but in England the presumption of legitimacy holds if the husband had any opportunity of sexual access during the natural period of gestation, and the question for the jury is not— was the husband the father, but could he have been; 1 Broom & H. Com. 562; and such is the rule in the United States; Van Aernam v. Van Aernam, 1 Barb. Ch. (N. Y.) 375; Dennison v. Page, 29 Pa. 420, 72 Am. Dec. 644; Watts v. Owen, 62 Wis. 512, 22 N. W. 720; Chase's Bla. Com. 172, n. 13. If there were opportunities for intercourse, evidence is generally not allowed to establish illegitimacy; 2 Gr. Ev. §§ 150, 151 and n.; Inhabitants of Abington v. Inhabitants of Duxbury, 105 Mass. 287. See 9 Beav. 552; 1 Whart. Ev. § 608; 2 id. 1298; 1 Bish. Mar. & Div. §§ 1170, 1179. It is, however, held that a strong moral impossibility, or such improbability as to he beyond a reasonable doubt is sufficient; Stegall v. Stegall, 2 Brock. 256, Fed. Cas. No. 13,351; Cross v. Cross, 3 Paige Ch. (N. Y.) 139, 23 Am. Dec. 778; Wright v. Hicks, 15 Ga. 160, 60 Am. Dec. 6S7; State v. Herman, 35 N. C. 502. The presumption of legitimacy of a child born in wedlock is so strong that it cannot be overcome by proof of the adultery of the wife while cohabiting with her husband, much less by the mere admission of the adulterer; Grant v. Mitchell, S3 Me. 23, 21 Atl. 178; [1903] P. 141; 1 Moo. & Rob. 269, where Alderson, B., said: "The law will not under such circumstances, allow a balance of evidence, as to who is most likely to have been the father." As to who may be admitted to prove nonaccess, see 3 E. L. & Eq. 100; Bowles v. Bingham, 2 Munf. (Va.) 442, 5 Am. Dec. 497; People v. Overseers of Poor, 15 Barb. (N. Y.) 286; Parker v. Way, 15 N. H. 45; Dennison v. Tage, 29 Pa. 420, 72 Am. Dec. 644; 1 Bla. Com. 458; Gardner Peerage Case, Le Marchant's report; 5 C. & F. 163; Dejol v. Johnson, 12 La. Ann. S53. Neither husband nor wife are competent for this purpose; Mink v. State. 60 Wis. 583, 19 N. W. 445, 50 Am. Rep. 386; Tiogo County v. South Creep Tp., 75 Pa. 436; Corson v. Corson, 44 N. H. 587; 1 Q. B. 444; 5 Ad. & E. 180; but see Slate The child may be exhibited to the jury to show resemblance to the putative father; Gaunt v. State, 50 X. J. L. 490, 14 Atl. 600; Finnegan v. Dugan, 14 Allen (Mass.) 197; Warlick v. White, 76 N. C. 175; 15 Yale L. J. 96; contra, Clark v. Bradstreet, SO Me. 154, 15 Atl. 56, 6 Am. St. Rep. 221. See 14 Harv. L. Rev. 545. A child is a bastard if born beyond a competent time after the coverture has determined; Co. Litt. 123 o; Hargrave & B. note; 2 Kent 210. See Gestation. The principal right which a bastard child has is that of maintenance from his parents; 1 Bla. Com. 458; La. Civ. Code § 254; (though not from his father at common law; Schoul. Dom. Rel. *3S4); which may be secured by the public officers who would be charged with the support of the child, by a peculiar process, or in some cases by the mother; 2 Kent 215. A bastard has no inheritable blood at common law; but he may take by devise if described by the name he has gained by reputation; 1 Ves. & B. 423; Stover v. Boswell's Heir, 3 Dana (Ky.) 233; Cooley v. Dewey, 4 Pick. (Mass.) 93, 16 Am. Dec. 326; Barwick v. Miller, 4 Des. Eq. (S. C.) 434. In many of the states, by statute, bastards can inherit from and transmit to their mothers real and personal estate under some modifications; 2 Kent 213; Schoul. Dom. Rel. *381; Pettus v. Dawson, 82 Tex. 18, 17 S. W. 714; see Stoltz v. Doering, 112 111. 234; Cox v. Rash, 82 Ind. 519; and in Utah it can inherit from its father; Cope v. Cope, 137 U. S. 682, 11 Sup. Ct. 222, 34 L. Ed. 832. Whether a person claiming an inheritance in' real estate is the lawful child of the last owner is to be determined by the lex rel sitce; Ross v. Ross, 129 Ma;s: 243, 37 Am. Rep. 321. Nearly all of the states have statutory provisions relative to bastardy proceedings and as to the liability of the father criminally as well as to the care of the child. In bastardy proceedings, evidence of improper relations of the prosecutrix with other men than the defendant, but not during the period of gestation, is incompetent; Olson v. Peterson, 33 Neb. 35S, 50 N. W. 155. Bastardy complaints are civil actions; 85 Me. 2S5; they abate on the death of the respondent before trial and during the pendency of the proceedings; Mc Kenzie v. Lombard, 85 Me. 224, 27 Atl. 110. See Heib.