The New York Herald Newspaper, February 2, 1853, Page 2

an nee see Opinion of Judges Wayne and Daniels. arene Wnltea Mates Supreme Cogan Clark Gaines vs. Relf, Chew ot Ia thie celebrated cave, Judge Catron gave the | pinion of the Court adverse to the claims of Mrs. Graines. Mr. Justice Wayne aud Mr. Justice Daniel “ dimented. Mr. Justice Wayne delivered the follow- ing diseenting opinion: — E dissent from the judgment just given, and By reasons for doing so as ieloy as ican. But necessarily occupy some time. Tooneve that The trend the complainant has been eed beyond a reasonable doubt, as the law requires ‘to be dene; | say, as the law requires it to be done, without meaning to imply any doubt of the fact, but ‘that the fact has been a according to those rales which experience shown to be necessary and sufficient, to guard conjugal and other domestic relations from capricious and unregulated judgments. Those rules are to be found in adjudicated cases of oer own and of the English courts, aud in the con- | eluaions of the civi! and canon law applicable to cases of thie kind. I think it has been proved, that Myra Clark Gaines isthe only child of her father, Daniel Clark, by his jage with her mother, ee Carriére. sae when marriage took place, the parties were wil- ime to contract, able een t, and that they did marriage in Pennsylvania according to the | laws of that State, in the year 1502. T also think that there was nothing then or now in the laws of Louisiana which lessens in any way the validity of that marriage. ‘The proofs of these“declarations shat! hereafter be pointed out, with the law in support of My first object is to state the evidence relied upon by the parties to this suit, and in what way it should ave been examined and appreciated ae his court, | before Sages was giveo. In other words, | mean to say, @ judgment has been given against | the complainant upon testimony introduced into the meeord of the case st the protest of her counsel, | which is altogether inadmissible under the rules for | the admission of testimony in courts of justice, and which have hitherto been observed end enjoined by | ‘this court in its judgments. And further, that ad- | missions and averments in the answer of the defend- ants in respect to certain portions of testimony of- per, is the lady who child; not as a Tireling for friend of Clark. To this ent times, | macy, and of his marriage with her mother; another of the witnesses, Boisfontaine, Clark said that he would have avowed the but for her subsequent connection with Gardet proof, also, of the marriage, and of the child’s legitimacy, they rly upon the facts that Clark made large provisions of fortune for her, in trast to others, to whom he de- clared her to be his legitimate child when the trasts were made, and that a short time before his death he made a will in her favor as his universal legatee, in which she was declared to be his lawfal chil about which will he spoke with anxiety and peniten- tial affection within an hour before his death, as hav- ing by that act repaired the wrong he had done her. phe witness, Madame Despau, says she was at the marriage of Zalime and Mr. Clark, in 1803 or 1802; that it took place in Philadelphia, and the ceremony was performed by a Catholic priest, in the presence of other witnesses a well as herself, She states that | she was a when her sister gave birth to Mrs. Gaines; that Clark claimed her and acknowledged her | to be his child; that she was born in 1806 That the cir- | cumstances of her marriage with Daniel Clark were these:—Reveral years after her marriage with Des- grange she heard he had a living wife. Our family charged him with the crime of bigamy in marrying Zulime. He at first denied, but afterwards admitted it and fled from the country. These circumstances became public. and Mr. Clark made proposals of mar- riage to my sister, with the knowledge of al! of our family. I¢ was considered essential, first to obtain record proof that Desgrange had a living wife at the time he married my sister, to obtain which from the Catholic church in New York, where Mr. Des- grange’s prior marriage was celebrated, we sailed for that city. On our arrival there we found thatthe registry of marriages had been destroyed. Mr. Clark avrived after us. We heard that a Mr. Gardette, then living in Philadelphia, was one of the witnesses of Mr. Desgrange’s prior marriage. We proceeded to that cityand found Mr. Gardeite, He answered that he had been present at the prior marriage of Desgrange, and he afterwards knew Desgrange and his wile by that marriage. That this wife had sailed fered by them, have been overlooked, by which the inant has been deprived of proofs which time out of mind in chancery have been considered con- elusive of the fact affirmed in an answer, whether | ornotthe same makes against a defendant or for a | complainant. Secondly, I will show that all of the testimony of a | ary kind introduced by the defendants, “ex = of them, ought not to have been vervived by | court rape €,0n reba of ae Clee or beimg property authenticated as records of a judicial | aeonerter, ok because others being ca be alias | acta, aliis nec prodest nee novet. And that such docu- | ments or paper's, fur the causes just stated, have al- | ways been resected by the courts of common law, and by courts of chaucery; and further, that they woul! mot have been received in the courts of Lowisiina if dhis case had been in one of its tribunals. | The defendants deny the marriage between the complainant's father and mother; and if there was a marriage, they contest its validity on account of her | mother having then another husband alive. It is ad- mitted that a marriage had been solemnized between her and Jerome Desgrange, but the complainant shows by competent testimony sufficient to establish being the fact, their marriage was voi that she was at liberty to marry with another suoh connection had ever existed between De- and herself. In oth though entered into rding to the forms of mar- riage, makes no impedtment by the civil, the canon, or common law, in the way ofa ond marriage by the party imposed upon. defendants rejoin, say- ing, even though the marriage with Deagrang: veld on account of his bigamy, that she could not con- tract marriage again, before she had obtained a sen- tence of nullity of her marriage with Desgrange. It ig also urged by the defendants, if there was a mar- mage between the father and mother of the vmmpl. ant, that it was void on account of what the canon law terms its clandestinity. That according to that law, as it then prevailed in Louixiana, the issue of such @ marriage was illegitimate and that it has no civil effect to give rights of eae inheritance the issue of such a marria, To the compl. ant replies that the marriage of her father and mother was solemnized in the State of Pennsylvania accord- ing to the law of that State. That the ler loc - tractus gives to the issue the status of legitima aD 3 in Louisiana and elsewhere, wheth issue was born there or out of its jurisdiction; further. that marrivges which have been clandesti epee that LF by not olwerving the solez thoug! eanon law, as they existed in Louisia) vald—cap.quad robes. tit, que tion ‘that there had ne te and as it then was in Loui connected condition. one ofthe partics‘at the time of mar viously married and that marriage b ved by death or by operation of nullity is only absolutely n ary to restore the ability of persons to marry, when it I sought to have a marriage declared de facto void on account of nou- Hiance with the liw directing the moc comising marriage, or when one of the p: @ dissolution on account of fear,—sucli as ti death, or imprisonment having beer eomoel @ party to marry ,-- or where the mar’ idable for incest or impotence, or if the woman is nimais arcta, for which an © aul court will pronoance it null and void in the lifetime of the p which, when done, restores the parties, except in the third case mentioned, to their former ility to contract Is and marriage with others as if they bad not been in that conne h other. The defendants, to maintain their di 3 E 4 5 e e £ for sol- concealment of to disclose in tl jitted to put in evi the marriage with De after the alieged tmurria ‘Those papers are, First. ( cution of I proc the instance of ny; Third. Another for Ef ir. Davie, to whose care the complainant was con fided by her father in her infuncy, in which she is ealled a naturalchild of her father; Fourth. An im- perfect record of a suit broaght by the complainant's mother in 1506, in her maiden name, against the name of Desgrange, for a divorce or a seuteuce of nullity of their marriage in which there was a judgment against him, or in her favor. ‘The last rocord stands in this footing from the ecclesiasti as it is properly authenticated to make it ey @ judicial record, and the other is not cause the defendants introduce it, a their answers to be a petition by th mother, Zalime Nee Curriére, wife of the , to a competent judicial tribunal in New Or. Geeer theesin representing herself us the wile of nge, and praying for a divorce and disso! of the bonds of matrimony existing betwee Dengrsnee, which was subseqnently decreed the birth of the complainant. And they further aver | ip their answers, that, having obtained a divorce and hay resumed her maiden nae, she afterwards, io 1808, intermarried with one James Gardette. | defendants also rely on the conduct of Clark and Zu- Time, before and after it is svid they were married, to their marriage, aud to establish that they | were illicitly connected, before and until after the | birth of the complainant. She resists this by proofs | which will hereafter be more particularly noticed, | and farther urges that the defendants having alleged | their answers a divorce between Desgrange und | mother by a competent tribunal, they cannot now | Frege to disclaim it, for, though the petition case has not been returned with the rest of record, on account of its loss, that its object nose are made out both by external and in- | proofs in what remains, as the law requires the of the whole or of a part of a judicial record to be supplied, and in that way it is shown to have been Hom for a sentence of nullity of her marriage with Desgrange om acecount of [te or vginal im walidity. Having stated the positions taken by the parties in respect to the marriage between Clark and Zulime, nm her and Desgrange, and her subsequent con Gardette without a divorce from Clark, he had abandoned her, and the legal points and replied to by both parties, I will now pro- ceed to state the kind of textimony upon which they ely rely, the use which has been made of it, cating at the same time what | believe to be the Ww upon each point of the complainaut’s ease, and also upon all of those taude by the defendants. Ist. As to the marriag between the father and | mother of Mrs. Gaines: It is proved hy one witness, Deapan, her aunt, who was ‘present at the marriage when it took p P . By other witness, Madame vet, alsa her aunt swears that Clark made proposals of marriage ior Zalime to her family, after her withdrawal from Dex nge, which was caused by her having heard that wae the husband of another women thee aiso swears that Clark, after his marriage with Aalime, wimitied jt to her, and that so did Zetive, | id they we nd they were also certain papers relating ange, and its ¢ nance of Zalime with Clark. i deel: REST EE 3 H [ é i | Gardette, of Pi | the direct inte | those where she dwelt, and those who wi \ her ¢ k for France. Mr. Clark then said—“You have reason no longer to refuse being married to me. It will be necessary, however, to keep our marriage secret till J have obtained judicial proof of the nullity of your marriage with Desgrange.” They were then mar- ried. Soon afterward our sister, Madame Caillavet, wrote tous from New Orleans, that Desgrange’s | wife, whom he had married prior to marrying Zulime, had arrived at New Orleans. We hastened our return to New Orleans. He was prosecuted for bigamy, father Antoine, of the Catholic church in ew Orleans, taking part in the proceedings against Desgrange. Mr. Desgrange was condem! for biga- my in marrying Zulime, and was cast into prison,from which he secretly escaped by connivance, and was ta- ken down the Mississippi river by M. Le Breton d’Or- enois, where he got to a vessel, and, according to the pest of my knowledge and belief, never afterwards returned to Louisiana. This happened in 1803, not a | great while before the close of the Spanish govern- ment in Louisiana. Mr. Clark told us that before he could promulgate his marriage with my sister, it would be necessary that there should be brought by her an action against the name of Desgrange. The anticipated change of government created delay, but at length, in 1806, Messrs. James Brown and Elizaer Fromentin, as the counsel of m: ter, brought suit t the name of Desgrange in the city court, J of New Orleans. The grounds of said suit were, that said Desgrange had imposed himself in marriage upor her at the time when he had a living | lawful wife. Judgment in said snit was rendered inst Desgrange. Mr. Clark still continued to y promulgating his marriage with iy sister, which very much fretted and irritated her feelings, | Mr. Clark beeame a member of the United States Congress in 1506. While he was in Congress my sister heard he was courting Miss Caton, of Bualti- | more. She was dist: hough she could not be- lieve the report, k ng herself to be his wife; still his strange conduct in deferring to promulgate his marriage with her had alarmed her. She and I sail- ed for Philadelphia to get the proof of his marriage with my sister. We could find no record, and were told that the priest who married her and Mr. Clark was gone to Irelund. My sister then sent for Mr. Daniel W. Coxe, mentioned to him the rumor; he answered that he heard it to be true that Clark was engaged to her. My sister replied it could not be so. He then told her that she would not be able to estab- lish her marriage with Mr. Clurk, if he was dis to contest it. He advised her to take counsel, and said he would <end one; a Mr. Sinythe came and told my sister that she could not legally establish her marriage with Mr. € , aud pretended to read to her a letter in English, anguage then unknowiito | my sister.) fyym Mr. C Joxe, stating that | he was about to marry In consequence er Zulime came to the con- ation or inter- married My. | | | The te=timouy of this witne: 3 heen given in her ions put on both | sides. ‘The cross-inte ‘ were filed by dis | tinguished counsel, having before them at the time ngatories to he pot to the witness. It ion of causes, that the often happens, in the investigat of the advocate has an influence upou our s in respect to testimony. It is right,also, remarkable suit, that those who have been professionally connected with it, for or against tt complainant, should be ed. In this instance it will show that the carise Was conducted by lawyers y and experience, and that they made a ix serutiny into ihe v ity of the wi of those ingenious and pressing inquiries w it to be asked, and which of the witness sug- vered by Mad- | Dunean, Jd. Mer- dell, Julien Seghers, P. | T. Preston, Esqs. [Here follows an elaborate review of the efforts wade to discredit the testimony of the witness, Mad- ame Despau. The jude then covtinnes:—) It is searcely u me tosay that when the ceneral ite been im- penched, that bi exomining the wi him, as to their me of their opinion duct, or by eal character of the fir tui the general repute 4 Esp. 16 ther wituesses ¢ ne: by al the rules of evidence pen the case itself and the t gested. ‘The cross inte ame Des i esses to support the er to att in th tic e recrimination must end. trial, 7 How. St. Tr. 1454. In this n e character of lame Despan was inost signally sup- ported. I only now mention that another mode of | impeaching a witness is by proof that other state- ments were made out of court, contrary to what has | been testified in court. No such attempt was made in respect to Madame Ds u's statements. It will be seen directly that my partic statement of the rules for discrediting a witness is appropriate case. Inow proceed to stute what was + ny those who were called to impeach the character of Madame Despau. ©; J good was said of her; another wit that her reputation was on the same ing as that of Madame Desgrange. Gardette, place her on wulime; Coureelie says the rable to Zu- of them who vacter of Ma: same, and all say report lime. I have given the were introduced to impeach the c! dame Despau. There 3 no attempt to impeach | her credit except by assailing her fora want of char acter forty years before. Thirty-two witnesses were called to support it. They knew her all of that time; | several of them in hier three different residences—to the hour when they depowd. All of them swear to her exemplary lite and conduct in every place she had resided, and no one of them had found anythi with which to reproach her character or veracity. There is, perhaps, not another instance in our law cases, of a witness whose character has been 0 tri- umphantly lifted above every imputation of offence, and especially above the danders of her husband, too readily received by the public, when he cont her absence, judicially te rob her of her p his estate, and that, too, wore than a year after they had been divorced a mensé et thoro, which rele a her in every other particular as well as to residence, from ail marital control. There has, then, been a signal failure in the attempt to di dit this witness on account of a want of cbaracter or veracity. 1 marked difference between the witnesses upon that be | point is, that the few who impeach do not swear positively as to what was generally vaid of her by called to sustain her general reputation do so, every ane of them, without any qualificotion. Nay, more—they swear that in forty years’ Kaowleds that they had not heard her reproache d that b V a her life had ogef nee 4 particularly in the cave she had taken of those children whom her huchand had falsely said she had abandoned. Under such cire ives the defend. luded from insinuating, mach less of character, and the w different judicial concl. * * * m her want Hitherto my object has been to show th Despau cannot be discredited by any thing Jame ta dictory in her evidence, or by any t offered ex terior from it, or hy any cont tion of her by avy other witness. [tis admitted by all of my wf that there ix no contradiction of herself in all of No witness disproves any fact row ahove nm. It ie emmpinations. her tio aesail her fener » that ehe ever may | De whom the marriage ee dl prove ween the conn, and father as fully as such a transac- tion can be ascertained by proofs, and in the way which has by always hitherto been courts, to be sufficient to establish in cases of thiskind. The corroborating evidence are the statements of Madame Caillavet, that Clark made qpeeeninek nena tor Zulime to her tainily, atter voluntary withdrawal from }, upon her hearing that he had then a previous wife alive. That Clark acknowledged to her the marriage afterwards, and that Zulime did the same. The oath of Mrs. Harper, who nursed the complainant as the friend of her father, that Clark repeatedly acknowledged to her that Myra was his lawful ch The will which he made in her favor a short time before his death, which Mrs. r saw and read, in which he made Myra his universal legatee, terming her in it his law- child. The proof by several witnesses that such awill was made by him, which no one can doubt whose mind ts open to the prover. bearing of testi- mony in ascertaining truth. His solicit ude about that will and the object of it, when conscious that he was within the grasp of death without a ho; of @ reprieve, in that last moment of life here, when that which presses most upon the parting spirit is re- vealed in its nakéd truth; Clark then said, that Myra was his legitimate child, that he had made her the successor of his whole estate; with dying words | pointed out where the will would be found, and di- | rected with all the earnestness of his ‘condition, that | it might be delivered as soon as he died, to him who had promised to be her tutor and guardian, to whose hands she was confided to be brought up in the rank and condition of her legitimate paternity, as the dearest and last object of her father's Becton, Mrs. Smyth says that Clark always spoke of to her as his legitimate daughter, before he le the will of 1813, then so describing her in the will, and afterwards in their conversation about her. This witness, in her answer to the tenth cross-interroga- tory, gives the cause of the final separation between Clark and Zulime. It is, that when Mr. Clark was abeent in Washington, individuals had, or supposed they had, a great interest in dissolving his connec- tion with the mother of his child, commenced a plan of breaking it up, by geri to Mr. Clark imputa- tions against her, and by fi) her mind with. un- favorable impressions against him, till at length his mind was so poisoned, that when he arrived in New Orleans she and he had a severe quarrel, and sepa- rated. She immediately after this left New Orleans. Madame Caillavet swears that she was not pre- sent at the marriage of Clark and Zulime, but says, “I do know that Clark made proposals of marriage for my sister, and subsequently Zulime wrote to me that she and Clark were married. Mr. Clark’s proposals of fe were made after it became known that her marriage with Mr. Des- grange was void, from the fact of his having then andat the time of his marrying her, a living wife. These proposals were deferred ‘being accepted, until the record proof of Desgrange’s por marriage could be obtained, and Zulime and Madame Despau sailed for the north of the United States to obtain the record proof. Mr. Clark acknowledged her to me as his lawful child.” Pierre Baron Boisfontaine, af- ter reciting with much minuteness circumstances connected with the will of 1813, says Clark spoke to him of Myra as his legitimate child, and in speaking to him of her mother, he says, “he spoke of her wit! great respect, and frequently told me, after her mar- riage with Gardette, that he would have made his marriage with her public, if that barrier had not been made, and frequently lamented to me that this barrier had been made, but that she was blameless.” Colonel Bellechasse also says, that Clark repeatedly acknow- ledged to him that Myra was his legitimate child, and styled her in bis will of 1813 his legitimate Cn da This witness also gives a very full account of the will of 1813. I have cited only so much of the testimony of these witnesses as is confirmatory of the testimony of Madame Despau, in respect to the mar- riage of Clark with her sister, and of Clark's acknow- ledgment to others of his marriage with Zulime, and of their child's legitimacy. * * * * Having concluded in my own mind that the evi- dence establishes the marriage between the father aud mother of Mrs. Gaines, and that she is the child of their union, I proceed to the next most interesting point in the cause. It is that neither their marriage nor_her birth will be available to establish the claim of Mrs. Gaines, be- cause at the time when Clark married her mother she had then another husband alive. That marriage being admitted, and that Desgrange was alive when * | the marriage with Clark was solemnized, the objec- tion will be sufficient, unless it can be removed. Upon the part of Mrs. Gaines, it is said, and J think is proved, as the law requires it to be done, that her mother’s marriage with Desgrange is as void, on ac- count of his having been a married man when he married her, ag if there never had been such a rela- tion between them. The attitude of the parties in the cause is then this—that each charges a bigamy in support of their respective rights, with this difference, that the de- fendants do so for the two-fold purpose ot e=twblish- ing the fact upon the mother of Mrs. Gaines, and from the nature‘of the testimony ae which they | rely to show that It also disproves the marriage be- tween her and Clark. I will examine both, andtfear- , ing that I et omit something, I will state the proofs upon which each party relies, after having stated the kind of proof which the law permits to be | given in a civil suit, where bigamy is the point to be | determined. A charge of bigamy in a criminal prosecution can- | not be proved by any reputation of marriage. There must be proof of actual marriage before the accused can be convicted. But in a civil suit, the con- fession of the bigamist will be sufficient when e under circumstances from which no objection to it as a confession can be implied. confessions of it to witnesses contemporary with the fact of their separation, more than a year before he was prosecuted for bigamy, whe by any proof in the cause that he was menaced with a prosecution. ‘To such confession is a his flight from New Orleans during the pende: inquiry against him for bigamy, and an adjudication afterwards upon his return to New Orleans, by a competent tribunal, in an inquiry into the validity of that mi ge, at the suit of Zulime in her inaiden name, in which judgment was given in her favor, and against him. In respect to the marriage of her father and mother. the complainant relies upon the proof of it by Madame Despau, who was present when it took place, pon the declaration of Madame Caillavet as to Clark's previous proposals of mar- riage to her family for her, their and her acceptanc of them conditionally upon proof being obtained of Desgrange’s previous marriage. Clark’s admission of that marriage to several witnessss, as J] have already shown, her father’s conduct towards ber rom her birth to his death, his frequent acknow- ledgment of her legitimacy, the provisious of for- tune which he made for her at different times, and the will which he made in her behalf, declaring her to be his legitimate child, and making her as such his nniversal legatee. On the other hand, the de. jaunts rely upon the validity of Desgrange’s mar. r to Zulime, upon the secrecy of her intercourse with Clark, or of their alleged marriage, upon their not having lived in open cohabitation as man and wife, upon Clark’s subsequent courtship of other fermales with offers of marriage, upon Zulime’s mar- riage with Gardette in 1508, without any attempt to ih her marriage with Clark, or any application her to dissol by legal means, or to enforce tt with the proofs which she had of it, when she diz covered his infidelity to her. They also rely upon ertain papers to be found in the record. he first of them is what they term an ecclesiasti- cal ree of a prosecution of Desyrange for bigamy, and @ declaration in it imputed to the complainant’s mother. The second paper is her suit against Des- w alimony, a date as the year 1805. The suit brought by her guardian, Mr. Davis, her ney, against fhe executors of her father for aliment, and the fourth is @ record of a court, properly authenticated, of a suit brought by Zutime in her maidea name against the name of Desgrange. ‘This last was introduced by the defendauts to show, as late as 1806, that the marriage with Desgrange d not been legally dissulved. And uatil it was, it is urged that there was such an impediment in the way of her marriaze with Clark as to make that suarriage null and void, the offspring of it illegiti- Se aie #0 for the purposes of inheritance, even iting that her filiation as the child of Clark had been established. it hax heen said that the invalidity of a marriage in a civil suit, on account of those causes which make it void ah /artio, particularly in the case of one void on account of the bigamy of one of the parties, may be proved by the admission of the fact by that paity. It so parvets in this case that Des- grange’s admission of his bigamy, excluding his ad mission of it to Zulime’s family tor the present, is proved by a witness whose testimony bas not been availed, and cannot be. Madame Benguerel has no connection with the family of the complainant, and her standing @ fendant= e« the Crone impeach her She was « and it broug out neither difference or contradiction of berse!t, nor anythin, the way in which she gave her testimony to snbj her to any suspicion of friendehip to the eomplain- ant, ant of memory or uncertainty of h vere! mayer My hust Deagrar Dy, 5 Sada me Keagn The proofs re- | lied upon by Mrs. Gaines to establish the bigamy of | ze when he married her mother, are, his | it does not appear | aracter are such that the de- | other 1s the relation whieh been in to each other in the ex in this, that ge was known as Jerome and not as Jacobus, in which it was rightl for a divorce, it would not be ited upon the con- fession of a husband and wife of adultery. The proof in the case also shows that Desgrange disappeared from New Orleans in 1802, on account of the current charge that he was a bigamist, and whilst a prosecu- tion of him was pending for that offence. There is also proof that he did not return to New Orleans until Taos, when Louisiana having become a pie of the United States, he could do so without lability to a renewal of an ecclesiastical criminal peacenaa for bigamy, or to'the punishment inflicted by the pro- vincial law for that offence. But sufficient as such proot is to establish asa in a civil suit, the complainant adds it to record evi- dence of the fact of sprange having been a mar ried man when he imposed himself upon her mother in marriage. The record and jadgment of a court, of competent jurisdiction, was introduced by the defend- ants asa part of their proofs to show that there was a legal impediment in the way of Clark’s marriage with Zulime when it occurred, and that it continued up to 1806, when they were divorced. It was used for that purpose and much relied upon, and it was not until it was shown that the judgment in that case had relation back to the mai e, making it abso- lutely void ab initio, that it was urged that the re- cord was of no account because a part of it was wanting. Here it is necessary to be particular. I cite from their answers their averments concerning that record. Upon page 5x of the record the defend- ants introduce it in the following terms, “ That after- wards, on or about the 24th of June, 1806, Zulime Née Carriére, wife of the said Desgrange, did pre- sent another pean to the competent judicial tri- bunal of the city of New Orleans, therein represent- ing hereelf as the wife and of having intermarried with Jerome Desgrange, and praying for a divorce and a dissolution of the bond of matrimony existin; between her and the said Jerome tpn os an which was steer siny decreed, subsequent to the birth of the complainant, Myra; and for further an- ger, sy that inthe eityfot hiladelphia, on or about the 2d day of August, Is08, Mrs. Deegrange having obtained a divorce from her husband, Jerome Des- grange, and having resumed her maiden name, did enter into a contract of matrimony with and did intermarry with James Gardette.” © The preceding extract shows that the defendants not only use it to establish the fact ofa divorce, but for the purpose of sustaining the rightfulness of Zulime’s marriage with Gardette. Now ifthe record, imperfect thought it may be, shows that the divorce could only have been decreed on account of the legal invalidity of the mar- riage with Desgrange, at the time of its occurrence, then unless it can be shown thatéhe law interposed an impediment to marriage in the way of the party imposed ypany until a sentence of nullity had been obtained, Zulime’s marriage with Clark was a good and valid marriage, though for marrying without such a sentence, she may have subjected herself to the discipline of the church. It will be seen, before ke opinion is closed, what the law is upon that joint. yi The deficiency in the record of divorce is the want of the petition. “In every other particular it is per- | fect. So much so that it discloses the object of the | petition, or the cause for which the suit was brought, aud for which the judgment of the court was given. It was introduced by the defendants, who allege that it was a decree of divorce, annulling the bonds of matrimony between Desgrange and Zulime, by a competent tribunal in New Orleans; record 58; 95; 216, and was so pleaded in their answers. When so in- troduced by them and admitted by the court as ad- missible evidence, the complainants proved the loss ofthe petition, and the short manner of entering een in the court of which it was a record. 1206. must here remark, thongh so brought forward by the defendants, that the majority ot this court has rejected it from having any such effect. At this point, then, my ingniries begiu in opposi- tion to the court’s conclusion, as it has been an- nounced by my learued brother. The points are, can we learn what is the effect of judgmeut without the petition? Can we ascertain the cause for which | the judgment was rendered without the petition ? What is the effect of the judgment? It is one of a court ofrecord having jurisdiction of the subject and over the partics to the suit. It annuls the bonds of matrimopy—as the act of a competent tribunal, the judgment mut presumed tu have been rightfully rendered, until the contrary appe: This rule ap- plies as well to every judgnient or decree rendered in the various stages of a canse, trom initiation of a suit to the final adjudication, aftirm either has or bas not a right of action: 10 Pet. 472. The decree then had a legitimate canse until the con- trary shall be shown. Now, as the defendants plead this record to the trie, averring it to be so upon their oaths, it cannot be further inquired into by the court, with a view to take from either party in the suit | whatit discloses. Its rejection by the court places its judgment in the remarkable and unexampled condi- tion of denying to the complainant the benefit of the | defendan ’s answer, as toa fact which they plead to be true. Further, it decides against the complainant, | not upon tke deficiency of her proofs, but by a denial | of a fact, sworn to by the defendants to defeat the complainant’s suit. What but divorce, as contradistinguished from se- , one and all of them, say y serange, or his having been arged with it, induced Zulime to separate herself from him, and to return to her family. {The opinion here proceeds by a series of a poste- riori reasoning to establish the character of the lost petit pes as of paper No. 1, termed an ecclesiastical document. Embodied in this portion of the opinion are the following sentences, as conclusions of pre- vious reasonings, which we quote:—] It follows, then, that the judgment of the County Court upon Zulime's pe ition, defectively as that judgment is expressed, could only have been given upon a petition for a sentence of the nullity of the marriage between the petitioner and Desgrange. bus with the guide of a settled principle in respect | to the law ofa country transferred from one domin- ion to another, until that law has been repealed, the purpose and object of the lost petition in Zulime’s application for a sentence of the nullity of her mar- riage with Descrange, is made ont with as much | certainty as if the petition had not been lost. * * * * * * I consider, then, that the complainant has estab- lished by such proof as the law requires, that Des- grange committed the offence of bigamy when he married her mother; that she could legally disregard | the connection and orgs anvther person; that she did marry Clark; that the complainant is the only offspring of their union, and is entitled to her legitime in her father's estate, * * * * My views having been given upon the eredit of Madame Despau and upon the testimony Sie De the bigamy of Desgrange, | turn to that upon which the defendants rely to disprove it. Their first paper is termed the ecclesiastical Yt in a prosecu- tion against Desgrange, in 1802, for Beaty It will be found at length in the opinion read hy Mr. Justice Catron for the majority of the judges who sat in the trial of the cause. It is not used to show that he was not a bigamist, for the paper contains only an interlocutory order, suspensive of further action, until the inquiry shall be resumed. But it is used because it is said there is in this paper a declaration by Zulime of her disbelief of the charge against Desgrange, and that she was then his wife. It is the misfortune of the compluinant, that her case hak been considered by the court with the rejec- tion of the judicial proof of the bigamy of Desgrange, which is admitted to be admissible in evidence, and with the allowance against her of another paper, to which her counsel objected in the court below and here also, which, in the way it was offered, is not ad- missible. Two questions srise upon this paper:—Is it an official register or record of a court, authenticat- edas it should be to make it testimony? What is | its effect as testimony? | It has no pther authentication of ite genuineness | | than the declarations of Bishop Blane and Father Kemper. The latter says he is the keeper of the re- cords of the Catholie Church at New Orleans, and | that the eopy inthe recerd is an exact copy of oe rer nd there, Rec The bishop says, be has the charge of such records of the bishopric as exist, a ry s finds among them a paper which is truly cop- ied, Rec. 604, Viider these certifieades, this paper has been used hy the court to rebut the parole proofs of the bigamy o} Desgrange. ‘The inteution cannot be objected to, Dut rebutting testimony must have legal admissibility tin evidence. In this instance wether wanting. * * before it , . * * t the rule of evidence is in ve thus shown w ct to public or offic cases, The same rule y tie States of thie Union, and bas hitherto done so in the courte of the United States. In England, we baye just secu that the statute of 3 & 4 Vict. confirm hy the provision which ft yr akes in respect to the re that the plaintiff | been the cause | and continues by a lengthy and elaborate | under the decisions of the courts of that State, not have been to be evi tu the cause. Fach Btate ma; te for itself the adminsion of such writings in evidence. Until it shall be bedone, the general rule must be in all of them as it has*been, mane binding in, the courts of the United States. In this deficient condition of the archives of the cathedral, without knowing how it has happened, I cannot say that any paper has been abstracted or fraudulently added, tw serve such a purpose as this has done. But I can say, from the proofs in this + cause, that the archives of the cathedral have been too negligently kept, for any paper in them of pro- vincial date, to be received as evidence, without the most cautious scrutiny into its authenticity. The rules for the admission of public papers as evidence must be rigidly commen with in respect to them, or consequences may follow in Louisiana, which have not hitherto been anticipated. Comprehending, as they must do, notices of marriages, births, and deaths, they may be invoked to guide or disturb the descents of property, or to fix and unfixa relatiouship between pene differently from that which has been general- ly recognized. My object in what I have hitherto said coscerning this ecclesiastical paper, has been to show that it was not admissible in evidence, either as an official register, ora judicial proceeding. In the condition in which she stood in that tribu- | nal, shal! whatshe there was induced to say to save Desgrange from disgraceful punishment, be relied upon to overturn and outweigh all the other evidence in the cause, of her e with Clark; his and her repeated confessions of it to witnesses, and his recognition of their offspring as his legitimate child / It is remarkable, too, that this de} , as well as others in the ecclesiastical record, confirms all the facts related by Madame Despau. Her voyage from New Orleans to the North—the object of it—the time when it was made ; the arrest and imprison- ment of Deegrange for bi y, his fight from New Orleans, though not in the way stated by her; the subsequent cohabitation of Clark and Zi ie; that Clark and Zulime were in Philadelphia for several months in the fall of 1801 and spring of 1802, under circumstances involving familiar relations and inter- course ; that they thought there was 4 sufficient cause for them to keep the marriage secret, Clark having been told by counsel thata sentence of the nullity of Zulime’s marriage with Deserves must be obtained before her marriage with him could be afely proclaimed. Both parties hae repeatedly de- clared that they were secretly married. Clark, from the birth of’ the complainant until he died, in a declaration. He frequently declared her to be his lawful child. No one doubts that he made a will, in after hts death. a te all. of this evidence, there ts nothing but the deposition in’ the ecclesiastical re- contrary to law. I will now briefly notice two other papers which the defendants were permitted to use as evidence in this cause in violation of every rule for its admission. One of them is the record of a suit for alimony, which, it is said, was brought by the mother of the compleinant, against Desgrange, in 1805. The other is a proceeding by Mr. Davis, the guardian of the complainant, against the executors of Clark, for maintenance during her infancy, in which she is ene the natural child of Clark. e et such a case before the court, but the factsaverred in it are not sworn to. It is mened by counsel in behalf of the petitioner, but without more to show that she had directed it, or that she was in any way informed of its contents. It is dated about the time of the complainant's birth. The object of the de- fendants in introducing this paper is to show that the mother of the complainant admitted herself in the petition to he the wite of Desgrange, three years after her alleged mariage with Clark. This cannot suit against Zulime herself. It cannot, then, be in any other suit between other parties. The peti- tion, in such a case, is not admissible in another suit against the petitioner, because, not being sworn to, its language is regarded as merely the suggestion of counsel, made tor the purpose of bringing in a de- fendant to answer. An answer in chancery, put in under oath, isreceivable against the party who swears to it ; but that the narrative part of a bill in equity, or a declaration at common law, can be used in ano- ther suit against the Spores in the first, has never been decided. The reverse has repeatedly been. Jt would certainly not doin the icial and technical modes, in which rights are prosecuted in courts of justice, to make us answerable for the man- ner in which they are described or averred by coun- sel. If, then, the mother of Zulime would not be bound in another suit by what is stated in the peti- tion of the paper in question, it must be admitted that the paper was erroneously used as evidence, to affect the rights of her child in this suit. It is only necessary to say, concerning the statement inthe pecoeeting brought by Davis, that he denies upon oath that he authorized his counsel to say that the complainant was the natural child of Clark. T have now noticed vale paper, which has been be? ht into this snit as evidence. My views of each o show that the ecclesiastical record, and every paper in connection with it and the records for alimony, have been forced into this case as evidence for the defendants contrary to law. | Besides these papers, the defendants have no other | evidence to gainsay the proofs which the com- lainant has given of her father's marriage with fer mother, her right to marry him when she did 80, on account of the bigamy of Desgrange. There is nothing in the record making it doubtful that her father and mother repeatedly acknowledged that she was their legitimate child. One wit- to prove that on one occasion, Clark spoke of her to him as a natural child. That was De la Croix. He says that Clark spoke of her as such to him. His tes- timony cannot be allowed to outweigh Clark's decla- per, that she was the lawful child of his marriage with her mother, especially when this was said to those witnesses contemporarily with what De la Croix says Clark said to him, and to all of them, for the same purpose. De la Ci says Clark told him so, when he asked him to become her tutor, and to he one of bis executors to that will in which she was called his legitimate child and universal legatee. The other witnesses speak of the same time in connection with that will. De la Croix says, be saw that will in its envelope; Mrs. Harper saw a that Clark spoke of her in it as his legitimate child and universal legatee. Cluvk spoke again of that will to his friends at his bedside in the last hour of his life. Their testimony is on the record. It ts sitive, direct, and particular, without any duferenc between them. Tue credit and character of those wit- nesses are unimpeached. ‘he defendants attempted to assail them, but these witnesses examined for that purpose, one and all of them, declare that Bellechasse and Borsfontaine were persons of truth, honor, and standing. No one has attempted to assail the vera- city of Mrs. Harper. De la Croix's statement rust have been a misunderstanding of Clark’s language. If not so, still it must yield to the testimony of three witnesses, to each of whom Clark said at different times ii legitimate child, and to two of whom he admitted his marriage with her mother. ‘ There was but one way to get rid of the force of the complainant's evidence in support of her legiti- macy. It was toassall the integrity of her witnesses. tried this cause with me. But I feel authorized to say, that in all of my experience in the profession, 1 have never heard of witnesses #0 assailed before and admissibly introduced into this cause for that purpose. My brother Daniel thinks as 1 do, and will express himeelf accordingly. Besides, these witnesses have been said to be unworthy of credit, when in the most important particulars of their testimony concerning Clark's marriage with the mother of the complainant, and of her legitimacy, the: disinterested witnesses to whom Clark admitted both; not once, but several times on different occasions. ‘These persons are strangers to the parties in this suit, in all of those relations of life which might be suppo- sed to incline them to favor either. They have not any connection with each other, except in those so- cial relations which made them companions and the intimate friends of Clark. They have lived apart, at remote distances, for many years since the death of Clark, knowing nothing of” his child, except as she was seen by them in her infancy, receiving atoate ly the caresses of ber cepa bgt ie ea ‘im hfs acknowledgments that she was his fe cl Boisfontaine, tells us that Clark frequently told him, after Zulime’s marriage with Garde’ have made his marriage with her public, if that bar- rier had not been made, and frequently lamented to him that it had been made, but that she was blameless. But this witness shall speak for himself, His testi- mony a, taken from the record, without the change of a word. “Covrr or Paopate. of which will easily en by the answ The witness is Mr. Pierre Baron Boisfontaine, an intimate and confidential friend of Mr. Clark. Ist. In reply to the first interrogatory, he answers: J was acquainted with the Jate Daniel Clark, of him. To the 2a,—Mr. Clark left at his death a daughter, | named Myra, whom he acknowledged as his ow! before and after her bith, aud as long ashe lived. In my presence he spoke of the necessary tion for her birth; in my presence asked my wite to be present at her birth; and in my presence Propo-ed to my sister and brother inlaw, Mr. 8. B. I Davis, shat they ehould take care of her after ‘all of his conduct to her, acted consistently with such | which he proclaimed her to-be so, making her his wni- | versal legatee, whatever may have become of that will | cord, which has been forced in evidence in this cause, | etition in the first isin the usual formula to | be done. Sach a paper would not be adinissible in a | em are sustained by cited authorities. They | ness, and one only, was called by the defendants | rations to Bellechasse, Boisfontaine, and Mrs. Har- | nd read it. She swears | connection with his will,that Myra was his | The way in which that was attempted, I have shown | in respec} to Mesdames Despau and Caillavet. It has | succeeded with the majority of the judges who have | upon such illegal testimony; not insufficient, but in- | are confirmed by other | that he would | (Here follow a series of interrogatories, the purport | New Orleans, and was many years intimate with | grerers. | estate in ie the wife of William Wallace Whitney. To the 3d—-About fifteen days before Mr. Clark's leath, I was peapeat at his house, when he handed to Chevalier la Croix a scaled packet, and told + him that his last will was finished, and was in that sealed packet. About ten days before this, he had told me that it was done. Previous to thie, com- mencing about fourmonths before his death, he had te me he was making his last will. He said this in conversations to me on the plantation, and at his house; eae Theard him mention this ape at u . I frequently dined at Judge Pitot’s, with Mr. Clark, on Sundays, The day before he died he told ne by etags il was below in his office- room, in his little black case. e mentioned his last ito mae no Be dled, be To the 4th.-I was present at Mr. Clark’ honse, about fifteen day bee his death, atl took from a smal! black case, a sealed packet, handed it to Chevalier De la Croix, and said, my last will ix finished; it isin this sealed packet } papers; as you consented, 1 have made you in it | tator to my danghter. If any misfortune happens to me, will you do for her all you promised me; will you take her at once from Mr. Davis? Ihave Led | all my estate in my will, an annuity to my mother, | and some legacies to friends; you, Pitot and. Belle- chasse, are the executors. About ten days before this, Mr. Clark, talking of Myra, said that his will was done. Previous to this, he often told me, com- mencing about four months before his death, that he was making his last will. In these con- versations, he told me that in his last will. he should acknowledge his daughter Myra as his legitimate daughter, and give her all his pro- perty. He told me that Chevalier De la Croix had consented to be her tutor in his will, and had pro- mised, if he died before ta to go at once to the North, and take her from Mr. Davis; that she was to be educated in Europe. He told me that Cheva- lier De la Croix, Judge Pitot, aud Colonel Belle- chasse, were to be executors in his will. Two or thuee days before his death, I came to see Mr. Clark on plantation business; he told me he felt quite ill. J asked him if I should remain with him; he an- swered that he wished me to. I went to the planta- tion to set things in order, that I might etay with | Mr. Clark, and returned the same day to Mr. Clark, and stayed with him constantly till he died. The | day before he died, Mr. Clark, speaking of hia daugh- ter Myra, told me that his last will was in hig - room below, in the little blackcase, that he could die contented, as he had insured his estate to her in the will. He mentioned his pleasure that he had made his mother comfortable by an annuity in it, and re- membered some friends by legacies. He told me how well satisfied he was that Chevalier De la Croix, Judge Pitet, and Bellechasse, were executors in ft, and Chevalier De la Croix Myra’s tutor. | About two hours before his death, Mr. Clark showed strong feelings for said Myra, and told me that he wished his will to be tuken to Chevalier De la Croix, as he was her tutor as well a4 one of the executors in it; and ‘i afterwards Mr. Clark told Lubin, his confidential servant, to be sure, a+ soon as he died, to carry his little black case te Chevalier De la Croix. ‘After this, and in a very short time before Mr. Clark died, I saw Ms. Relf take { a bundle of keys from Mr. Clark’s armoire, one of , believe, opened the little black case; I had seen Mr. Clark open it very often. After taking these keys from the armoire, Mr. Relf went below. | When I went below I did not see Mr. Relf, and the | office room door was shut. Lubin told methatwhen * Mr. Relf went down with the keys from the armoire, | he followed, saw him then, on getting down, go into | the office room, and that Mr. Relf, on going into the office room, locked the office room door. Almost | Mr. Clark’s last words were that his will must be | taken care of on said Myra’s account. | , To the 5th.—I was with Mr. Clark when he died; J was By hi constantly for the last two days of hix | life. About two hours before he died, he spoke of | his last will and his daughter. Myra in connection. | and almost his last words were about her, and that this will must be taken care of on her account. To the 6th.—When, after Mr. Clark's death, the | disappearance of his last will was the subject of con- | versation, T related what Mr. Clark told me about his last will in his last sickness. Judge Pitot and | John Lynd told me that they read it not many dayx | before Mr. Clark’s last sickness; that its content= corresponded with what Mr. Clark had told me | about it; that when they read, it was finished; wa« dated and signed by Mr. Clark; was an holographic | will; was in Mr. Clark’s handwriting; that in it he | acknowledged the said Myra as his legitimate daugh- | ter, and bequeathed all hie estate to her; gave an an- nuity to his mother, and legacies to some fends; the | Chevalier De la Croix was tutor of said Myra, his | daughter; Chevalier De la Croix, Colonel Belle- | chasse, Judge Pitot, were executors. Judge Pitot | and John Lynd are dead. The wife of William Har- per told me she read it. Coionel Bellechasse told | me that Mr. Clark showed it to him not many dayx | before his last sickness; that it was then finished. | Colonel Bellechasse and the lady who was Madame | Harper, are living. BS reply to the first cross-interrogatory, he an- | ers > My name is Pierre Baron Boisfontaine; my age about fifty-eight: I have been some time in Madison- ville; the place of my family abode is near New Or- leans, opposite side of the river; I was eight years in the British army; I was several years agent for Mr | Clark's plantations; since his death have been en- gaged in various objects; I now possess a house and. | lots, and derive my revenne from my slaves, cows. | &c. I am in no manner connected with, or related | to, any of the parties of this suit; I have no intere:t | in this sui To the 2¢.—I knew Daniel Clark between nine and ten years; | knew him as the rather of Myra | Clark; she was born in my house, and was put by Mr. Clark, when a few days old, with my sister and | brother-in-law, Samuel B. Davis. I was Mr. Clark's | agent for his various plantations—first the Sligo and | the Desert, then the Houmas, the Havana Point, and. when he died, of the one he purchased of Stephen | Henderson. He respected our misfortunes, knowing | that our family was rich and of the highest standing.” | in St. Domingo, before the revolution, The mother lol iad k was a lady of the Carriere family. | Not being present at any marr b fe T can only de- clare it as my belief Mr. Clark was her husband. To | answer this question in detail, as is demanded, it ix | necessary that J state what was communicated to me. Jt was represented to me that this lady married Mr. Desgrange in good faith; but it was found ont some time afterwards that he already had a living wife,when lady Nee Carriere separated from him. Mr. Clark, some time after this, married her at the North. When the time arrived for it to be made public, interested persons had produced a false state of things between them ; and this lady being in Philadelphia, and Mr. Clark not there, was persuaded by a lawyer employ. ed, that her marriage with Mr. Clark was invalid ; which believing, she married Monsieur Gardette. Some time afterwards, Mr. Clark lamented to me | that this barrier to making his marriage public, had been created. He spoke to me of | danghter, Myra Clark, from the first, as legitimate; and when he made known to me that he was making his last will, he said to me that he should declare her in it as hix legitimate daughter. From the above | believe there was @ marriage. In reply to the third cross-interrogatory, he an- swe | Mr. ‘lark made no question on this subject before and after her birth, and as long as he lived he exer- cised the authority of a parent over her destiny. He was a very fond parent ; he sustained the house of | Mr. Davis and Mr. Harper, because my sister had her | in care, and Mrs. Harper suckled her. He sustained Harper as long as he lived, and conlerred great bene- fits on my brother-indaw. He spoke of her mother with great respect, and sequen told me after her martiage with Mr. Gardette, that he would have made hismarriage with herpublic if that barrier had not been made, and frequently lamented to me that this barrier had been made, but that she was blameless. He said | he never would give Myra a ed pe When, ia 1813, he communicated to me that he was making his Jast will for her, he showed great sensibility ay te her being declared legitimate init. While I wax with him at his death-sickness, and even at the mo- | ment he expired, he was in perfect possession of his senses; and no parent could have imanifested rr affection than he did for her in that period. Nearly his last words were about her, and that his will must be taken care of on her account. She, the said Myra. is the only child Mr. Clark ever acknowledged to me to be his. She was born in July, 1#05, In reply tothe fourth cross-interrogatory, he aa- swers :— I was a friend of that constitutional character, from the time of Myra’s lirth. Mr. Clark treated me as a confidential friend in matters relating to her and his affairs generally. | In reply to the fourth croas-interrogatory :— 1 have stated what I knew concerning Mr. Clark'+ last will, My recollection of these facts is distinct. The circumstances connected with them were of stich a character that my recollection of them coultt not easily be impaired. (Signed) P. Baron Boisrontawn. Which answers being reduced to writing were ' sworn to and signed by the said witness, in my pre- sence; in testimony whereof J have hreunto affixed my hand and private seal, at the parish of St. '‘Tam- many, in the State of Louisiana, thiv twenty-seyenth day of May, eighteen hundred and thirty-five. (Signed) Davin B. Morgan, Justice of the Peace. [1. 9. A true copy of the commission for interrog. he » | (and answers thereto,) propounded to Pierre Baron Voisfontaine, on file in Court of Probates, in and for the parish and city of New Orleans. | W. F.C. Dernrars, Register of Wills. New Orleans, 26th April, 1840 | Halechasse’s testinsony configs that of Boixfon