delivered the following opinion of the court : — -Hall was apprehended by a justice’s warrant, pursuant to the statute in such cases provided (a), npón the chárge of being the father of two bastard children of one birth. On the trial in the county court, he tendered a bill of exceptions to 'the court, which was refused ; and being signed by the by-standers, was admitted to record, and new1 certified with the other proceedingS.

The justice shave not certified why they refused to seal the bill of exceptions, when tendered. The case stated by the exceptions, is, that the mother was a married woman previous to her being enseint, but her husband 41 had been absent eight years, hut was heard of in that time whereupon the court adjudged her a single woman, within the meaning of the statute, and convicted him as the father of the children, and made an order upon him fop their support: from which he has appeal-od.

The asssignmeivt of errors requives ns to decide, whether the mother was properly adjudged a Jeme sole, and whether the order upon the appellant to support both chil-cken, was proper.

*480The one- question depends upon the statute of Virgi* n^a which was in force, and without any repeal, was reenacted in January 1798, declaring “ That any person absenting himself beyond sea, or elsewhere, for seven years successively, shall be presumed to be dead, unless proof be made that he was alive within that time’* (a). Rhe question is, does the bill of exceptions afford any ev-1(jence that the husband was alive, within a competent time to prevent the presumption of his deáth from attaching, according to the statute ? The státute is positive, that the presumption shall stand until abutted by proof. When he was heard of, or what was heard of him, we are left to presume. That it was within the first year of his eight years absence previous to the commerce had between the sexes, as stated, and that his lamp of life was then just expiring, are presumptions as well warranted as any others. But the presumption^ growing out of the bill df exceptions, áre not sufficient to be talaen as the proof required by the statute.

Neither Spallenzini, Buffon, or other naturalists, have asserted in their theories, that the impregnation of the female with double foetus, by the sanie mail, was impossible; and, in every year’s practice, many an honest man has the merit of fathering two fine girls at a birth, by many an honest woman ; so that there iá nothing incredible in the charge, in this particular instance. If he was the father of both, as the conviction states, then he was the father of either ; and the expressions in the statute. “ any bastard child,” will apply to each and either.

The objections made by the appellee, to regarding the bill of exceptions as part of the record, because signed by by-standers, and not supported by affidavit, vánish upon looking into the acts of December 1800, ch. 73, § 4, (Brad. Ed. L. K. p. 107, Vol. 2) bdt nevertheless, it seems to the court, that the conviction stated in the re-, cord, is legal and proper. — ¡—Judgment affirmed.