Supreme Court of the United States

MYRA CLARK GAINES, APPELLANT,

v.

RICHARD RELF, AND BEVERLY CHEW, EXECUTORS OF DANIEL CLARK AND OTHERS.

December Term, 1851

     53 (12 How.) 472

**1 Myra Clark Gaines filed a bill in chancery, alleging her claim to certain property upon the ground that Clark, who died seized of the property, had been married to Zulime, the mother of the complainant.

The claim was resisted upon two grounds. 1st, That no such alleged marriage took place; and 2d, That Zulime was, at the date of the alleged marriage, the wife of a man named Desgrange. The marriage with Desgrange was admitted by the complainant, but it was contended that the marriage was void ab initio, because Desgrange, at the time of contracting it, had another wife living, and therefore was guilty of bigamy.

In this case, it is decided that the two principal witnesses for the complainant, to establish *473 the fact of the marriage between Zulime and Clark, (the parents of the complainant), are unworthy of credit.

That the charge of bigamy against Desgrange is not substantial, because,

1. The depositions of persons who testify to it only state hearsay and rumor.

2. That the naked confessions of bigamy which Desgrange was alleged to have made are incompetent evidence and inadmissible as against the executors of Clark and purchasers holding by sales from them. To hold that either party could, by a mere declaration, establish the fact that a marriage was void, would be an alarming doctrine.

3. A certificate of a priest, given sixteen years after the marriage, that he had married Desgrange to his alleged first wife, was inadmissible as evidence. There was no register of the marriage in the records of the church.

4. A mutilated record of a suit brought by Zulime against Desgrange, and alleged to have been for the purpose of having her marriage with him declared null and void, does not prove the bigamy of Desgrange. The cause of action is not stated, the petition having been lost.

A sworn copy of an ecclesiastical record, taken at the proper office and produced by the lawful keeper of the records, may be admitted as evidence, the original being produced by the bishop who had charge of the records of the bishopric.

This purported to be a trial of Desgrange for bigamy, and his acquittal. It was competent evidence as rebutting testimony inasmuch as proof of the loss of the record and secondary proof of its contents had been given on the other side.

The depositions of Zulime in this ecclesiastical case, and also in a suit brought by her against Desgrange for alimony, are received by this court as competent evidence, because there was notice of a motion in the Circuit Court to suppress the evidence, but in the course of a long trial no such motion was made. If it had been made, the deponent herself was at hand to testify. No objection having been made to it in the court below, none can be made here. Moreover, the complainant claims under a deed of gift from the deponent, and is estopped by her declarations.

The decree of this court in the case of Patterson v. Gaines, (6 How., 550,) cannot affect other persons, because these persons were not parties to it, and because that case was not a controversy carried on in earnest. ^FN1

West Headnotes

Evidence 157 229

157 Evidence

     157VII Admissions

          157VII(C) By Grantors, Former Owners, or Privies

               157k229 k. Privies and Former Owners in General. Most Cited Cases

The declarations of a married woman, made during coverture, that she was not the wife of A., but of B., are admissible in evidence against any one claiming title under her, although she be still alive and within the jurisdiction of the court.

Evidence 157 230(3)

157 Evidence

     157VII Admissions

          157VII(C) By Grantors, Former Owners, or Privies

               157k230 Grantors, Vendors, or Mortgagors of Real Property

                    157k230(3) k. After Conveyance or Transfer of Title in General. Most Cited Cases

A declaration emanating from claimant of any right or estate which afterwards comes to parties on record by descent or purchase affecting adversely estate acquired is admissible against party to record who claims estate.

Evidence 157 290

157 Evidence

     157VIII Declarations

          157VIII(C) As to Pedigree, Birth, and Relationship

               157k289 Declarations by Members of Family

                    157k290 k. In General. Most Cited Cases

Hearsay of parents and others is admissible to establish pedigree.

Evidence 157 317(2)

157 Evidence

     157IX Hearsay

          157k315 Statements by Persons Other Than Parties or Witnesses

               157k317 Oral Statements

                    157k317(2) k. Statements in General. Most Cited Cases

Generally declarations of third persons not parties to record are inadmissible.

Evidence 157 349

157 Evidence

     157X Documentary Evidence

          157X(B) Exemplifications, Transcripts, and Certified Copies

               157k349 k. Acts, Records, and Judicial Proceedings of Foreign Countries. Most Cited Cases

In a civil action, a party seeking to prove a marriage void on the ground that the husband, at the time of contracting it, had a former wife living, introduced parol evidence that he was prosecuted by the second wife for bigamy before the ecclesiastical court of Louisiana, while a province of Spain;  that on such prosecution the first wife testified to, and produced the documents of the former marriage;  and that the husband confessed the bigamy and was convicted.  To rebut this evidence, and show that the alleged second wife did not charge the husband with bigamy, but testified to the contrary, that no previous wife appeared against him, that no documents of a prior marriage were produced, that the husband denied the bigamy on oath, and that he did not appear by the record to have been convicted, the other party introduced a record of an ecclesiastical proceeding against the husband for bigamy before the proper ecclesiastical officer under the Spanish government, produced from the archives of the Catholic cathedral church of New Orleans by the present bishop of the diocese, and a copy of the record, sworn to by the keeper of the records of the church.  Held, that this record and copy were admissible for the purpose for which they were offered, although it was not shown that the record was contemporaneous with the proceeding recorded, or how the records of the Spanish ecclesiastical tribunals came into the custody of the present authorities of the Catholic Church.

Evidence 157 373(6)

157 Evidence

     157X Documentary Evidence

          157X(D) Production, Authentication, and Effect

               157k369 Preliminary Evidence for Authentication

                    157k373 Form and Sufficiency in General

                         157k373(6) k. Proof of Copies Offered as Evidence. Most Cited Cases

To make copy of record admissible, all that is required is to produce sworn copy, the witnesses also proving that it was taken at proper office and produced by lawful keeper of records.

Marriage 253 3

253 Marriage

     253k3 k. What Law Governs. Most Cited Cases

A marriage valid in the country where celebrated will be held valid in other countries where the parties may be domiciled, though it would have been invalid by the law of the subsequent domicile, if it had been originally celebrated there.

Marriage 253 40.1(1)

253 Marriage

     253k40.1 Burden of Proof

          253k40.1(1) k. In General. Most Cited Cases

(Formerly 253k40(11))

In suit to enforce inheritance rights of alleged legitimate daughter of decedent, where marriage between complainant's mother and man other than decedent who was alive when decedent died, was proved, it was established as prima facie true that mother was not lawful wife of decedent, and burden of proving that mother's first husband had former wife living when he married mother was imposed on complainant.

Marriage 253 42

253 Marriage

     253k41 Admissibility of Evidence

          253k42 k. In General. Most Cited Cases

In suit to enforce inheritance rights of alleged legitimate daughter of decedent, wherein issue arose as to whether alleged marriage of decedent and complainant's mother was bigamous, record of mother's alimony suit against former husband, brought after alleged marriage to decedent, was admissible.

Marriage 253 45

253 Marriage

     253k41 Admissibility of Evidence

          253k45 k. Certificates. Most Cited Cases

A certificate of the pastor of a church that he had, in that capacity, 16 years previous, married certain persons, is inadmissible in evidence to prove the marriage.

Marriage 253 46

253 Marriage

     253k41 Admissibility of Evidence

          253k46 k. Records and Other Entries. Most Cited Cases

Where plaintiff sought to show that the marriage of her mother with D. was void, because D. had another wife living at the time, part of the record of a suit for divorce, commenced by the mother against D., which states that D. demurred to a petition, on the ground that the court had no jurisdiction, and that damages could not be inquired into until after a decision on the validity of the marriage, but not including the petition nor showing the cause of action, was not competent evidence to prove that the marriage was void for bigamy in the husband, since it could not be shown, except by intrinsic evidence, that the decree of divorce in such case had been granted on such grounds.

Marriage 253 47

253 Marriage

     253k41 Admissibility of Evidence

          253k47 k. Admissions and Declarations. Most Cited Cases

Neither party to marriage may by mere declaration establish fact that marriage is void.

Marriage 253 47

253 Marriage

     253k41 Admissibility of Evidence

          253k47 k. Admissions and Declarations. Most Cited Cases

The admission of a husband that at the time of contracting his present marriage he had a former wife living is not competent evidence, even in a civil action, to prove the nullity of his second marriage.

Marriage 253 47

253 Marriage

     253k41 Admissibility of Evidence

          253k47 k. Admissions and Declarations. Most Cited Cases

On the question arising in a civil action whether two persons were married at a particular time, a letter written by the alleged husband while abroad to a third person, mentioning his wife, is competent evidence to prove the state of his feeling, affection, and sympathy towards his wife at the time;  and the date is evidence to prove where the writer was, and the time of writing the letter.

Marriage 253 50(1)

253 Marriage

     253k50 Weight and Sufficiency of Evidence

          253k50(1) k. In General. Most Cited Cases

In suit to enforce inheritance rights of alleged legitimate daughter of decedent, evidence established that marriage between complainant's mother and decedent was bigamous.

Marriage 253 57

253 Marriage

     253k56 Annulment

          253k57 k. Nature and Form of Remedy. Most Cited Cases

A marriage with a man having a former wife living is absolutely void, and does not require a judicial sentence to annul it, was the law of Louisiana, while a province of Spain. 

Judgment 228 665

228 Judgment

     228XIV Conclusiveness of Adjudication

          228XIV(B) Persons Concluded

               228k665 k. Identity of Persons in General. Most Cited Cases

A decree for plaintiffs in an amicable suit, in which the costs and expenses of the defense were paid by plaintiff, is no evidence for plaintiff in a subsequent suit against other defendants.

FN1 See also Gaines v. Hennen, 24 How., 566, 572, 578, 601, 617, 622, 628, 631; Gaines v. New Orleans, 6 Wall., 711; Davis v. Gaines, 14 Otto, 406; Finn v. Finn, 62 How. (N. Y.) Pr., 85.

**2 Mr. Chief Justice Taney and Mr. Justice McLean did not sit in this cause.

THIS was an appeal from the Circuit Court of the United States for the Eastern District of Louisiana.

The bill was originally filed in the Circuit Court by William W. Whitney and Myra Clark Whitney (now Myra Clark Gaines) in 1836. From 1834 to 1836 they had been proceeding in the probate court of Louisiana, until in 1836 their petition was dismissed. They then filed a bill in the Circuit Court of the United States.

At January term, 1839, a motion was made in this court for a mandamus to compel the Circuit Court to proceed according to the rules established by this court for the regulation of chancery proceedings. The case is reported in 13 Pet., 404.

It came up again at January term, 1841, upon a certificate of division in opinion between the judges of the Circuit Court, whether chancery practice should prevail there or not, and is reported in 15 Pet., 9.

The defendants below having demurred to the bill, the case came up again upon another certificate of division in opinion at *474 January term, 1844, and is reported in 2 How., 619, under the name of Gaines et ux. v. Chew et al.

One of the defendants, Patterson, having answered the bill instead of demurring to it, this branch of the case came before this court again at January term, 1848, and is reported in 6 How., 550.

The present case now came up upon pleas, answers, replications, and evidence, constituting a record of upwards of twelve hundred printed pages. Much of the history of the case and the substance of a considerable portion of the evidence is given in the two reports in 2 How. and 6 How., and the reader is referred to those reports. Some of the most important parts of the additional evidence, introduced into the case for the first time, will be noticed in the present statement.

Mrs. Gaines claimed under two distinct titles; one as the forced heir of her father, Daniel Clark, and the other as the assignee of her mother's share of the estate which had been conveyed to her by her mother. In either view, the lawful marriage between Daniel Clark, her father, and Zulime Carrière, her mother, alleged to have taken place in 1802 or 1803, was the great point in the case to be proved; and the first step to establish that was the capacity of Zulime to marry. Her previous marriage with Desgrange was admitted; but it was alleged to have been null and void ab initio, because Desgrange had another wife living when he contracted his marriage with Zulime Carrière. Part of the evidence to sustain this charge of bigamy against Desgrange is recited in the opinion of the court: viz., the testimony of Madame Despau, Madame Caillanet, Joseph Bellechasse, and Madame Bengueril. Two other pieces of evidence were relied upon by the complainant to fix the charge of bigamy upon Desgrange, which are referred to in the opinion of the court with an intimation that the reporter should set them forth with more particularity. They were as follows:

**3 1st. The catholic priest's certificate of Desgrange's prior marriage.

The existence of this paper was discovered in the following manner, as stated in the deposition of James Gardette, taken under a commission:

‘And afterwards, to wit, on the 10th July, 1849, appeared Dr. James Gardette, a witness, heretofore called and examined on behalf of complainant, and now by them recalled, doth depose and say,--

‘Witness being shown document No. 6, filed with the commissioner by complainant on 23d June, 1849, being a certificate of marriage of one Jacobum Desgrange and Barbara Orci, he was asked to state when and where the same was found. Witness *475 says: My mother and myself were looking over the papers of Dr. Gardette, my father; several papers fell on the floor, and among them this paper was found. This paper was found after the decision of the Patterson case in the Circuit Court of the United States, and before the decision of the same case in the Supreme Court of the United States. And it was handed by my mother to General Gaines or his wife immediately after it was found.

‘JAMES GARDETTE.

‘Cross-examination waived by Louis Janin, Esq., of counsel for defendants.

‘J. W. GURLEY,

‘Commissioner.'

The certificate was as follows. The Latin is given as it is printed in the record.

[Don Fernando, y dona Juana en las diehas ley es de toto. Cap. 31.]

Exhibit A.

A. G., U. S. Com'r.

‘Omnibus has literas, Inspecturis Salutem in Domino.

Ego infrascriptus sacerdos Catholicus et Apostilicus, pastor Ecclesiae S. Petri Apostoli, hinc Praesentibus, notum facio et attestor omnibus et singulis, quorum interest, quod die sexta mensis Julij, A. D. 1790, in matrimonium conjunxerum Jacobum Degrange et Barbara m Orci, Testes praesentes fuerunt, Joannes O'Connell, Carolus Bernardi, et Victoria Bernardi. In quorum fidem, has manu propria scripsi, et subscripsi, vigilloq. muniri. Datum Neo Eboraci, vulgo New York, hac die 11d mensis Septembris, A. D. 1806.

‘GULIELMUS V. O'BRIEN,

‘Reg. pag., '45.

‘Pastor Ecclesiae S. Petri ut supra.

‘Nous, Gabriel Rey, général divisionaire, commissaire des relationes commerciales de France, à New York, certifione que Monsieur Guillaume V. O'Brien, dont la signature est apposé à l'extrait de mariage en l'autre part, est prêtre et curé de l'Eglise Catholique de Ste. Pierre, en cetté ville de New York, et qu'en cette qualité foi doit être ajouter à sa dite signature tant en jugement que hors.

‘En témoin de quoi nous avons signé le présente et scellé fait apposer le timbre du commissariat, à New York, le 13 Septembre, 1806.

REY.'

[L. S.]

Indorsed: ‘Admitted by defendants as proved, reserving all legal objections to its admissibility as evidence.

**4 ‘J. W. GURLEY, Commissioner.'

*476 In order to fortify this certificate, the depositions of Ellen Guinan, John Power, and Charles E. Benson were taken in 1846.

Ellen Guinan was the niece of William V. O'Brien, and resided with him from the time that she was nine years old until he died, being about twenty years. O'Brien was pastor of the church for thirty years, viz., from 1784 to 1814, when he died. She had been accustomed to see him write several times a day, and testified that the whole of the above certificate was in his handwriting. She also deposed as follows:

13. Question. Do you know the persons named in the body of this exhibit, Joannes O'Connel, Carolus Bernardi, and Victoria Bernardi?

Answer. I have heard of them, and think they are dead, but never knew or saw them that I know of.

14. Question. Did you know Jacobum Desgrange and Barbara M. Orci, named in the body of the exhibit?

Answer. I did not-never have known them.

15. Question. Do you know whether the books or records of St. Peter's church were at any time destroyed?

Answer. I heard they were.

16. Question. When did you hear they were, and on what occasion?

Answer. A gentleman from Ireland, Mr. Cruise, who married the sister of Sir John Johnston, of Johnstown, and Warrenstown, in Ireland, came to inquire about the marriage of one of his family, whom he had understood was married by my uncle. I told him to go to the church, as we had given up uncle's books after his death to Bishop Connelly, catholic bishop of this city. He came back and told us that he had found that the books had been destroyed by fire.

17. Question. About how long ago was it that you thus heard that the books were destroyed?

Answer. To the best of my recollection, about thirteen or fourteen years ago.

18. Question. What did you hear of Joannes O'Connell, Carolus Bernardi, and Victoria Bernardi, named in the exhibit shown you, and mentioned in a previous question?

Answer. I heard from my aunt, Louisa Jane O'Brien, that they were all attached to the Spanish ambassador's suite. I think O'Connell was his chaplain.

John Power, the vicar-general of the diocese of New York, and pastor of St. Peter's church, deposed as follows:

2. Question. How long have you been pastor of St. Peter's church?

Answer. I have been officiating as clergyman in that church *477 twenty-six years, (taken in 1846) and pastor of it about twenty years.

3. Question. Have records been kept in said St. Peter's church of the marriages solemnized by the clergymen officiating there?

Answer. There have been, with more or less regularity; there have been frequent omissions arising either from neglect or accident.

4. Question. Is there any written record now existing of the marriages solemnized by the clergymen of the said church previous to the year 1800?

Answer. I don't know that such a record exists; I have heard that it was missing, but have made no particular personal search for it; I don't know that I ever saw it.

**5 5. Question. Have you known, personally or by reputation, William V. O'Brien, now deceased?

Answer. I have no personal knowledge of him; he was dead when I came to this country, but his memory was then fresh in the minds of people, and he was held in high repute.

6. Question. What was his profession, and what place or office did he hold here?

Answer. He was pastor of St. Peter's church.

7. Question. How long had he been pastor of St. Peter's church?

Answer. Many years; I cannot say the precise time.

8. Question. Do there appear to be any records in said church kept by him of the baptisms which he solemnized whilst pastor of said church?

Answer. There do.

9. Question. Have they been universally and at all times received as genuine and authentic?

Answer. They have been always received as genuine and authentic, and I have no doubt that they are so.

10. Question. Have you any knowledge of the handwriting of said William V. O'Brien; and if so whence have you derived it?

Answer. I have a knowledge of his handwriting, which I derived from the register of baptisms in St. Peter's church, which have always been received as _____ handwriting.

11. Question. From the knowledge which you have thus derived of his handwriting, do you believe the signature Guli elmus V. O'Brien, in the exhibit marked A, now shown you, to be in the handwriting of said William V. O'Brien?

Answer. I believe it to be his handwriting; it is identically the same handwriting with that of the records now in the church of which I have spoken.

*478 12. Question. In whose handwriting do you believe the writing in said exhibit preceding said signature, that is, the body of the marriage certificate, to which said signature is affixed, to be?

Answer. In the handwriting of said Rev. William V. O'Brien.

13. Question. In what language did said Rev. Mr. O'Brien keep his records before spoken of?

Answer. In the Latin language.

14. Question. How did he sign his name when writing in the Latin language?

Answer. In the same manner as it is signed in the exhibit marked A, which you have shown me-Gulielmus V. O'Brien.

15. Question. Had said Rev. Mr. O'Brien full and legal power to solemnize and perform the ceremonies of marriage while he was pastor of St. Peter's church?

Answer. He had.

16. Question. Have you a knowledge of, and are you versed in, the Latin language?

Answer. I am versed in the Latin language.

17. Question. Please to read said certificate of marriage marked exhibit A, now shown you, and state whether the marriage of Desgrange, therein certified to, was performed according to the usages and formalities of the said church at the time of the date of the said certificate, so far as the same appears in, and by virtue of, the said certificate.

Answer. The certificate is absolutely in due form, and it is to be presumed that the marriage was solemnized according to the rights and ceremonies of the Catholic church. Previous to giving this my answer, I have, as requested, read the said certificate, and understand its contents.

**6 18. Question. Do you know any thing of the witnesses to the said marriage mentioned in said certificate, or any of them?

Answer. I do not.

Charles E. Benson, the clerk of St. Peter's church, deposed as follows:

2. Question. Have you the custody of the records of marriages and baptisms solemnized by the pastors and clergymen of said St. Peter's church?

Answer. I have.

3. Question. Is there existing now among those records any record or written memorandums of marriages solemnized by the pastors and clergymen of the said church previous to the year 1800?

Answer. There is now none existing of any date previous to the year 1802.

4. Question. Have you any knowledge of the handwriting of William V. O'Brien, catholic priest, formerly pastor of said St. Peter's church?

*479 Answer. No other knowledge than such as I derive from the records of the church which were kept by him. Those records have been always received as authentic and genuine, and as being in his handwriting.

5. Question. From the knowledge which you have thus derived of his handwriting, do you believe the certificate of marriage, marked exhibit A, now shown to you, to be in his handwriting, including the signature, Gulielmus V. O'Brien?

Answer. I do; I have not the slightest doubt about it.

6. Question. Are there any records of baptisms solemnized by the pastors of St. Peter's church?

Answer. There are.

7. Question. Are there any such records of baptisms belonging to said church kept by William V. O'Brien?

Answer. There are; from the year 1787 to the year 1808 in one register, and from 1808 to 1816 in another. There are in each of these registers other entries by other clergymen attached to the church.

8. Question. In whose handwriting are the first entries in the oldest register spoken of by you?

Answer. In the handwriting of said Mr. O'Brien.

The witness also deposed that he had made diligent search for the register of marriages previous to the year 1802, but was not able to find it.

Another piece of evidence relied upon by the complainants was what is sometimes spoken of as a divorce record, and sometimes as a mutilated record. It was as follows:

‘State of Louisiana, third District Court of New Orleans.

‘ZULIME CARRIERE

v.

JEROME DESGRANGE.}

‘No. 256 of the docket of the late county court of New Orleans.

‘Citation. Mr. Ellery, (curator of Desgrange:)

‘You are hereby summoned to comply with the prayer of the annexed petition, or to file your answer thereto in writing, with the clerk of the county of New Orleans at his office, in New Orleans, in eight days after the service hereof, and if you fail herein, judgment will be given against you by default.

‘Witness, James Workman, judge of the said court, this 24th day of June, in the year of our Lord 1806.

**7 (Signed) ‘THOS. S. KENNEDY, Clerk.

‘Return on citation served on Ellery, 30th June, 1806.

(Signed) ‘GEO. T. Ross, Sheriff.

‘Plea filed July 1st, 1806.'

*480 ‘ZULIME CARRIERE

v.

JEROME DESGRANGE.}

No. 556.

‘County Court of New Orleans.

‘The plea of Jerome Desgrange, defendant, to the petition of Zulime Carrière, plaintiff.

‘This defendant, by protestation, not confessing or acknowledging all or any part of the matters and things in the plaintiff's said petition contained to be true, in such manner and form as the same are therein and thereby alleged, for plea unto the said petition saith, that this court ought not to have cognizance of the same, because the laws by which this court was created, and the jurisdiction thereof established, do not extend the same to cases of divorce, or give to this court any authority to pronounce therein, and because the damages in the said petition prayed for against this defendant cannot be inquired into or assessed, until after the judgment of this court, in touching the validity of the marriage between the petitioner and the defendant, shall be first declared.

‘Wherefore, this defendant doth not suppose that this court will or ought to have or hold further cognizance of the petition aforesaid; and therefore this defendant doth plead the premises in bar to the said petition, and humbly demands judgment of this honorable court, whether he shall be put to make further answer thereto, and prays to be hence dismissed, with his reasonable costs and charges in this behalf wrongfully sustained.

(Signed) ‘A. R. ELLERY, for Def't.'

‘And the said plaintiff saith, that for any thing by the defendant above, in pleading, alleged, she ought not to be barred or precluded from having and maintaining her action aforesaid against the said defendant.

‘Wherefore, for want of a sufficient answer in this behalf, the plaintiff prays judgment, &c.

(Signed) ‘BROWN & FROMENTIN, for Pltff.'

Answer filed July 24th, 1806.

‘ZULIME CARRIERE

v.

JEROME DESGRANGE.}

No. 356.

‘County Court of [New] Orleans.

‘Answer of Jerome Desgrange to the petition of Zulime Carrière.

‘This defendant, saving and reserving to himself all manner of *481 benefit of exception to the many errors, untruths, and imperfections in the said petition contained, for answer thereunto saith, that the facts in the said petition set forth are untrue, and prays that he may be hence dismissed with his costs and charges in this behalf most wrongfully sustained.

(Signed) ‘A. R. ELLERY, for Def't.'

(Then followed in the record a long certificate of marriage between Geronimo Desgrange and Maria Julia Carriére, performed by a Catholic priest on the 2d of December, 1794, which it is not necessary to transcribe).

**8 ‘ZULIME CARRIERE

v.

DESGRANGE.}

Brown & Fromentin, for plaintiff.

No. 356.

Ellery, for defendant.

‘Petition filed June 24th, 1806. Debt or damages, $100. nds 600. Plea filed July 1st, 1806. Answer filed July 24th, 1806. Set for trial on Thursday, 24th July.

‘Summons issued for M. Coudrain, Chovot, Mary Marr, Rose Carrière, Christopher Joseph Le Prevost, Trouque, Le Breton d'Orgenoy, and Joseph Villar, senior.

‘Attorneys $10 00

Clerk 7 87 1/2

{Mr. Fourke, sworn

Mr. d'Orgenoy,

Madam Marr.

‘Judgment for plaintiff. Damages, $100. July 24th, 1846.'

‘State of Louisiana, Third District Court of New Orleans.

‘I, Charles Weysham, deputy clerk of the third District Court of New Orleans, do hereby certify, that the above and foregoing five pages do contain a full and complete transcript of the case, wherein Mrs. Zulime Carrière is plaintiff, and Jerome Desgrange is defendant, instituted in the late county court of Orleans, under the No. 356, excepting the petition, that cannot be found. And that by operation of law, the records of the said county court of Orleans have been transferred to this court, and are now in the custody of the clerk thereof.

‘In testimony whereof I have hereunto set my hand, and affixed the seal of the said court, at New Orleans, on this 14th fourteenth day of June, in the year of our Lord eighteen hundred and forty-nine, and the seventy-third year of the independence of the United States.

(Signed) ‘CHAS. WEYSHAM, Deputy Clerk.'

*482 In addition to these evidences of the bigamy of Desgrange, the complainant introduced the testimony of various persons to prove the fact of the public reputation at the time, and that of a great number of witnesses, to sustain the character of Madame Despau.

The above comprehends the principal evidence offered by the complainant and appellant, in addition to that which is set forth in the opinion of the court.

Evidence offered by the respondents.

1. The ecclesiastical record is transcribed in the opinion of court, and need not be repeated.

2. A record which is spoken of as the Alimony Record.

‘State of Louisiana, Third District Court of New Orleans.

‘ZULIME C. DESGRANGE

v.

JEROME DESGRANGE.}

No. 178, of the docket of the late County Court of Orleans.

‘Petition filed November 30th, 1805.

‘To the honorable James Workman, judge of the County Court of Orleans.

‘The petition of Zulime Carrière Desgrange, an inhabitant of the City of New Orleans, humbly showeth--

‘That whereas it is provided by the first section of an act, entitled an act concerning alimony, and for other purposes, that the County Court shall have jurisdiction on application from wives against their husbands, for alimony, on the husband deserting his wife, for one year successively, and in cases of cruel, inhuman, and barbarous treatment; and whereas your petitioner may adduce proofs before this honorable court that she has been cruelly and barbarously treated by Jerome Desgrange, her husband, and likewise that she has been deserted by him, for three years past, to wit, from the second day of September, one thousand eight hundred and two, ever unto this day, although she has been told that the said Jerome Desgrange returned from France to New Orleans some time in the course of last month, and is now in the city of New Orleans.

**9 ‘Wherefore, these are to pray that it may please your honor to order that the said Jerome Desgrange, your petitioners's husband, be condemned to pay to your petitioner a sum of five hundred dollars per annum, and that your petitioner be likewise entitled to all the other benefits and advantages belonging to her, in virtue *483 of the law of this territory in that case made and provided; and your petitioner, as in duty bound, shall ever pray.

(Signed) ELIGIUR FROMENTIN,

‘Attorney for Plaintiff.

‘Citation

‘Mr. Jerome Desgrange--

‘You are hereby summoned to comply with the prayer of the annexed petition, or to file your answer thereto, in writing, with the clerk of the county of Orleans, at his office at New Orleans, in eight days after the service hereof; and if you fail herein, judgment will be given against you by default.

‘ZULIME C. DESGRANGE,

v.

JEROME DESGRANGE.}

No. 178.

‘Witness, James Workman, judge of the said court, this 30th day of November, in the year of our Lord 1805.

(Signed) ‘THOS. S. KENNEDY, Clerk.

‘Return on Citation.

‘6th December, 1805, served on the defendant.

(Signé) ‘JOHN T. PROUILLARD, D. S.

‘FROMENTIN, Att'y.

‘ZULIMA CARRIERE DESGRANGE

v.

JEROME DESGRANGE.}

No. 178.

‘Petition filed 30th November, 1805, for alimony. Served December 6th, 1805. Judgment by default, December 19th, 1805. The court doth award final judgment for the plaintiff, December 24th, 1805.

(Signed) ‘JAMES WORKMAN.

‘Attorney's fees, $19 62 1/2

‘Clerk's fees, 10 87 1/2

‘Execution issued December 24th, 1805.'

‘State of Louisiana. Third District Court of New Orleans.

‘I, Chas. Weysham, deputy-clerk of the third District Court of New Orleans, do hereby certify, that the above and foregoing four pages do contain a full and complete transcript of the record of the case, wherein Mrs. Zulime Carrière Desgrange is plaintiff, and Jerome Desgrange is defendant, instituted in the late County Court of Orleans, under the No. 178; and that by *484 operation of law the records of the said late County Court of Orleans have been transferred to this court, and are now in the custody of the clerk thereof.'

3. In order to impeach the character of Madame Despau, three records were filed in evidence, the contents of which will be briefly stated under the letters A, B, C.

A. On the 10th of June, 1805, William Despau filed a petition in the Superior Court in and for the Territory of Orleans, praying for a separation from Marie Sophia Carrière, his wife. It alleged ‘incompatibility of humor and several other reasons, the recital of which would be too afflicting.'

On the 8th of July, 1805, she answered the petition, admitting the material facts alleged.

**10 On 11th of January, 1806, a separation from bed and board was decreed, by consent, and the plaintiff was ordered to hand in an inventory of his estate.

B. Sophia filed her petition, on the 1st of September, 1806, alleging that her husband was about to sell two plantations or tracts of land, and praying an injunction, which was granted. On the 2d of October, 1806, Despau filed his answer, consenting that one half of the proceeds of sale should be placed in bond and security; and the injunction was dissolved.

C. On the 8th of February, 1808, Despau filed his supplemental petition, with his affidavit dated 11th of November, 1807, stating that on the preceding June his wife had left New Orleans clandestinely, being the second time that she had done so, for the purpose of going to the United States. Another witness made affidavit that she had set sail for North America.

Whereupon, in May, 1808, the court passed the following order:

‘Ordered by the court, that the bond referred to in the petition on file in the office of the clerk of this court be cancelled, and the security discharged; and that, as the defendant hath forfeited her right to the property acquired in the community, that the same vest in and belong to the petitioner.

May 24th, 1808.

(Signed) JOSHUA LEWIS.

(Countersigned) J. W. SMITH, Clerk.'

4. The respondents also gave in evidence two powers of attorney; one executed by the sisters of Zulime to Desgrange, dated March 26th, 1801, authorizing him to settle certain affairs in Bordeaux, in France, and the other from Desgrange to his wife, authorizing her to act for him in his absence. Also, a letter written by Desgrange to Clark from Bordeaux, and dated July, 1801. These papers are referred to or recited in the opinion of the court.

*485 The respondents also gave in evidence the deposition of Daniel W. Coxe, of Philadelphia. To this were annexed a number of letters addressed to the deponent by Clark, and numbered from 9 to 80. In addition to these a great number of letters to and from Clark were introduced into the case. These were used indiscriminately by the counsel for the appellants and appellees in their arguments, to sustain the views which they respectively took of the facts in the case. These letters showed Clark to have been twice in Philadelphia during the year 1802, once in April, and again in the latter part of July and beginning of August.

The deposition of Coxe was twice taken, and both of them were inserted in this record. It was taken once in 1841 in a suit between John Barnes and wife against Edmund P. Gaines and wife, in the First Judicial District Court, and again in 1849 in this suit. In his answer to the 17th interrogatory, in his deposition of 1841, he says:

‘I repeat that the said Daniel Clark was in Philadelphia in the spring of the year 1802. The said Zulime was then there; she arrived there before the said Daniel Clark, and, as I have already stated, brought to me a letter of introduction from him. Daniel Clark was not in Philadelphia at the birth of Caroline.'

**11 And in his answer to the 7th interrogatory, he said:

‘The first time Daniel Clark visited Philadelphia after the birth of Caroline was in the year 1802 and soon after her birth. I am enabled to fix the time by referring to a power of attorney left by him with me,’ &c., &c.

A copy of that power is annexed to his deposition, and its date is 22d April, 1802.

In the deposition taken in 1849, he thus replied to the 14th interrogatory in chief:

‘Daniel Clark did both write and speak to me about his (the said Clark's) relationship or connection with Madame Desgrange, the reputed mother of the complainant Myra. In the early part of the year 1802, the said Madame Desgrange presented herself to me, with a letter from Daniel Clark, introducing her to me, and informing me in confidence that the bearer of that letter, Madame Desgrange, was pregnant with a child by him, and requesting me, as his friend, to make suitable provision for her, and to place her under the care of a respectable physician; requesting me at the same time to furnish her with whatever money she might want and stand in need of, during her stay in Philadelphia. As the friend of Mr. Clark, I undertook to attend to his request, and did attend to it. I employed the late William Shippen, M. D., to attend to her during her confinement, and procured for her a nurse. Soon after the birth *486 of the child, it was taken to the residence of its nurse. That child was called Caroline Clark, and, at the request of Mr. Clark, the child was left under my general charge and exclusive care until the year 1811. After that period, she was not so exclusively under my charge, but I had a general charge over her, which continued up to the period of her marriage with Dr. John Barnes, formerly of this city. She is now dead, as is also Dr. Shippen, before spoken of. Daniel Clark arrived in this city within a very short period after the birth of said Caroline, which was, I believe, in April, 1802, when I received from him the expression of his wishes in reference to this child. He left here shortly afterwards, as before stated by me. During Daniel Clark's subsequent visits to Philadelphia, he always visited that child, acknowledged and caressed it as his own, and continued to give me the expression of his wishes in reference to her. On the occasion of Mr. Clark's visit to Philadelphia, immediately after the birth of Caroline, in conversation with me in reference to Madame Desgrange, he confirmed what he had stated in his letter of introduction, stating to me that he was the father of this illegitimate child, Caroline, and that he wished me to take care of her, and to let the woman have what money she stood in need of until she returned to New Orleans.'

6. The respondents gave in evidence the depositions of a number of witnesses for the purpose of assailing the character of Zulime for chastity.

7. The respondents also gave in evidence the deposition of Patterson, to show the collusive manner in which the case of Patterson v. Gaines was brought up to this court, as reported in 6 How., 550. The substance of this deposition is recited in the opinion of the court, and need not be repeated.

**12 The above is a brief summary of the most important parts of the evidence in this cause, omitting what was published in 2 and 6 Howard, and what is now inserted in the opinion of the court.

On the 21st of February, 1850, the Circuit Court dismissed the complainant's bill, with costs; and thereupon the complainant appealed to this court.

It was argued by Mr. Johnson and Mr. Campbell, with whom was Mr. Lawrence, for the appellant, and by Mr. Webster and Mr. Duncan, for the appellees.

The arguments of counsel upon points raised in the cause, but not decided by the court, will be wholly omitted; and it is extremely difficult to compress those which appertain to the only question which was decided, within reasonable limits.

*487 The counsel for the complainant contended that the letters which were filed in the cause, conclusively proved that Clark left New Orleans for the north in November, 1801; that he was in Philadelphia in January, February, March, and April, 1802, up to the 22d of April, when his intended departure on the next day for New Orleans, in the schooner Eliza, was mentioned. They also contended that certain papers in the cause showed that Zulime was raising money in New Orleans in November, 1801, and that she was absent in January, 1802.

Leaving these questions of dates, which go to sustain the positive declarations of Madame Despau, does the plaintiff prove in any other manner that she is the legitimate child of Daniel Clark? Filiation is proven in reference to the father by presumptions. On the continent of Europe, these presumptions are generally authenticated by inquiries at the date of the birth, and entered upon public registers. These acts furnish full proof of birth and filiation. In the absence of these, the facts themselves, which raise the presumption, are resorted to. The inquiries are, who was it that prepared for the advent of the child into life, and provided nurture and care during the period of its helplessness and infancy; who maintained it, extended its relations through the family, friends, and acquaintances; who gave it education and control in youth; who sought for it advancement, repute, and station, in early manhood; who assisted its gradual expansion and growth, the enlargement of its circle of friends and connections, the additions to its fame and fortune; who provided for it by the last will and testament; who acknowledged and guarded the child from infancy to youth, and from youth to manhood; for whose did the world accept it? These characteristics will serve to determine the father of the child. Code Louisiana, 1825, tit. 7, ch. 2, sect. 2; 8 Denisart Questions, d'etat, 8; 3 D'Aguesseau, 181; Nougarede Lois des Familles, 213; Merlin, Reper., tit. Légitimité, sects. 2, 4; 1 Stark. Ev., 47; 2 Id., tit. Pedigree, 8 Ves., 428; 8 Causes Céleb., 358.

**13 The canon law and the canonists accept these proofs as sufficient. In the chapter ‘tuis de probationibus' of the canon law, it is said: ‘Satis esse ad ejus modi de natalibus quaestiones ut quis nominetur filius et publice, agnoscatur passimque habeatur et credatur apud omnes.'

‘Praeter fidem instrumentorum et asseverationem parentum tria recensentur, tractatus, testes, fama et suppleret, deficientibus probationibus certioribus, filiationem omnem tam probari, quam praesumi, si is de cujus statu agitur pro filio habitus sit, si testes et vicini idem deponent, si popularis fama idem asseveret.’ Covarruvios de Mat., part 2, ch. 2, sect. 3; Cujac., tit. 16, book C, 7 de lib.

What are the facts established in this record? 1st. Daniel *488 Clark cohabited with the mother of the plaintiff prior to the birth of the plaintiff. 2d. Before the birth of the plaintiff, he provided a house, in which the mother's confinement took place. 3d. Several days after the plaintiff's birth, she was placed in the family of Colonel Davis, as the child of Daniel Clark, and was received as such. 4th. She bore the surname of Clark till his death. 5th. He provided money, and servants, and playthings for the infant. 6th. He openly cherished her as his child in the presence of his friends. 7th. He spent much time with her, and manifested much anxiety and ambition for her. 8th. No other paternity was spoken of in New Orleans for her. 9th. He provided, in 1811, upon his leaving New Orleans upon a distant journey, munificently for her. 10th. In his last will, he recognized and affirmed her legitimacy, and his last thoughts and anxieties upon his death-bed were concerning her.

The mother of the plaintiff declared her to be the child of Clark. The family of Boisfontaine and wife, in whose house she was born, Mesdames Despau and Caillavet, her mother's sisters, received her into life as Clark's child.

Davis and wife, with whom she lived, Mrs. Harper, who nursed and cherished her, did so as Clark's child; De la Croix, who consented to be her tutor, Bellechasse, to hold property in trust for her, did so at the instance of Clark, and as the child of Clark.

This possession of the status and condition of filiation, was accompanied with declarations of legitimacy. The father spoke of her as the heiress of his fortune. He bequeathed to her his fortune. She was spoken of as his heiress in the community at large.

The mother represented her as the child of a legitimate marriage.

Merlin, reporting a case of legitimacy to the French court, says: 1. ‘That the commencement of proof, that Henrietta derives from her act of birth, from the letters written by her father, from the treatment received in the family, from the paternal testament, dated in 1801, to establish her quality of legitimate daughter and the quasi possession of this quality, completes full proof. If, however, the existence of a former husband, joined to the defect of proof of the putative marriage, could radically vitiate the title derived from her possession of status, the proof furnished of the reality of that marriage, and the common opinion relative to its effects, should authenticate the source. 2. That the title of the possession of the status of legitimacy being established, the proof of the vices with which they title may be infected, as to the interests of the child Henrietta, is entirely upon the opposers, for qui dolo dicit factum aliquid licet in exceptione *489 docere dolum admissione debet.’ 10 Merlin, Questions, de droit, 49, 50.

**14 ‘Always favorable to innocence,’ says D'Aguesseau, ‘when the same effect can be traced to two causes, the one illegal and unjust, and the other just and legitimate-the law rejects the first to adhere exclusively to the last.’ 3 D'Aguesseau, 180.

Cochin, pleading for Borguelat, says: ‘We should weaken the foundations of public tranquillity if, after a long possession and enjoyment of his status, we could displant a man from the family in which he has, as it were, taken root by acts and wide-spread recognitions.’ 1 Cochin, 590; 2 Menoche's Prac., 839, sects. 14, 15, 17, 18.

Starkie, speaking of such proof, says: ‘These are not to be considered mere wanton assertions, upon which no reliance can be placed; on the contrary, in the absence of any motive for committing a fraud on society, it is in the highest degree improbable that the parties should have been guilty of practising a continued system of imposition upon the rest of the world, involving a conspiracy in its nature vary difficult to be executed.’ 3 Stark., 1101; W. Bl., 877; 3 Mod., 182.

Finally, as a higher authority, and a better testimony of what the law is, we refer to the case reported in 6 How., 550.

The question then recurs, is the plaintiff the legitimate child of Daniel Clark? The defendants say no; for, at the time of the putative marriage of her mother and father, the mother was the wife of another person, and that there was, in that fact, an insurmountable barrier to a legal marriage. To prove this, they plead and prove the factum of an earlier marriage between Desgrange and Zulime, the plaintiff's mother. They produce a deposition alleged to have been made upon a criminal prosecution of Desgrange before an ecclesiastical court, in the province of Louisiana, in 1802; they plead and prove a record of a suit for alimony, in 1805, in one of the civil courts of New Orleans, in which Zulime alleged that she was the deserted wife of Desgrange; and, finally, they plead and prove a record for divorce, in 1806, from the same courts. These facts, they affirm, establish a valid and subsisting bar to a marriage between Clark and Zulime, at any time before the birth of the plaintiff.

The factum of the celebration of a marriage, and cohabitation under it, between Zulime and Desgrange, is not denied. The existence of a record, containing a charge against him for bigamy, is not denied. The fact of a record for an application for alimony is not denied; nor of the record of an application for, and judgment of, the court, declaring the marriage of Zulime with Desgrange originally invalid in 1806. We affirm, that the last record furnishes conclusive proof of the invalidity *490 of that first marriage, and that the others do not qualify the force of that proof, or impair the case of the plaintiff.

The ecclesiastical record evidently cannot be pleaded as containing a res judicata. The ecclesiastical court undertakes an inquiry concerning reports of polygamous connections on the part of Desgrange, which had brought scandal upon the church; and, after taking some testimony, which does not establish their truth, suspends the proceedings until further proof could be had, and charges the defendant with the costs. The court reserves in its judgment the power to make further inquiries. 1 Phil. Ev., 340; 3 Wheat., 317; 13 Wend. (N. Y.), 592; Mitf. Pl., 194; 1 Jac. & W., 20.

**15 The acquittal of a party for bigamy, on a criminal prosecution, is not evidence in a civil cause involving the truth of the charge. 1 Stark. Ev., 277, 280, 281; 1 Phil. Ev., 338.

The depositions taken in the case are not evidence as such. The parties are not shown to be dead. Greenleaf Ev., § 130; 13 Pet., 209. It is not admissible on account of the depositions of Zulime, or as a source of declarations, because the party is in life able to testify, and the transaction was one in which neither Clark nor his daughter were parties. Had the parties been the same, and the subject-matter the same, such a deposition would be incompetent. 1 Phil. Ev., 363.

The alimony record is produced for the benefit of an allegation in the petition, that Zulime was the wife of Desgrange. But averments in such papers are treated as the suggestions of counsel, and are not evidence. 1 Stark., 337; Gres. Eq. Ev., 424, 425. The judgment is not evidence, because marriage, in such a case, is only collaterally in question. Gres. Eq. Ev., 424; 1 Stark. Ev., 387. It could have been put in issue, but it was not necessarily so. In the Spanish jurisprudence, a marriage de facto, in favor of the party dealing in good faith, produces civil effects; and hence the only issue might be, whether there had been a marriage de facto. 4 Part. tit. 15, l. 2; Gregorio Lopez, 1 Motifs et Dis., 113, art., 201, 222; 1 La. Ann., 98; 10 Merlin Questions de Droit, 32; Ricord des Donations, part 1, 374.

The record in 1806, pleaded and produced by the defendants, the petition, and the formal judgment, which, by the practice of the court, was written upon it, has been lost. The docket-entry was kept, however, by law, and according to law (2 Martin Dig., 164), and that furnishes an account of the judgment. The plea of the defendant (Desgrange) shows us it was a suit in which Desgrange was charged with having contracted a marriage with the plaintiff which was invalid, and that damages were claimed in consequence of the wrong. The issues then were, whether the marriage of the plaintiff and defendant *491 was invalid, and the defendant was liable for damages. The judgment is an adjudication of the law and fact of nullity. 1 Stark. Ev., 289; 8 Mod., 182; 1 Phil. Ev., 341; 2 How. St. T., 538; 2 Atk., 388; 2 Bligh, N. S., 446; 7 Co., 42.

The inquiry then comes, what were the relations between Desgrange and Zulime, from the time of the ascertainment of his bigamy till the birth of the plaintiff? The witnesses concur in the statement, that cohabitation between them had ceased. No one witness pretends that, from the time of its publication, whenever made, was there any intercourse between them. The evidence further shows, that the mother of the plaintiff did not assume the name of Clark, nor did she obtain from the public the repute of being the wife of Clark. This, we contend, would not overbear the proofs of legitimacy we have adduced, even if not explained. 2 Hagg., 63. There is, however, an explanation of that fact. Both Clark and Zulime acted on the presumption that judicial proof of the invalidity of the marriage between Desgrange and herself was important; perhaps they were advised it was necessary to the legality of their case. The district judge, in the case before this court, ruled that, without such judicial proofs of nullity, there could be no legality in the marriage. There is a statement in the record, coming from an eminent lawyer, formerly living in Louisiana, to the same effect. That such an opinion should have been entertained by these parties, would, therefore, not be strange.

**16 They might have considered this only as a rule of propriety and security from ecclesiastical censure in the province of Louisiana. Supposing the opinion to have been honestly entertained, it resolves many of the difficulties that arise in viewing the conduct of the parties during the course of their subsequent history. The evidence is, that Zulime and Madame Despau, her sister, went to the north of the United States, in 1801, to get authentic evidence of the first marriage of Desgrange. Failing in that, and having no legal declaration of the fact, but satisfied of its truth, she consented to the private marriage with Clark. That the opinion had a favorable cause, but no foundation, is shown. Pothier, du Mariage (part 3, ch. 2, art. 4), 172; 9 Causes Célèbres, 158; Nougarde Jurisprudence du Mariage, 294; 2 Phill. R., 19, 20; Von Leenmen's Dutch Law, 78; Herricourt Ecc. L., 107, § 36; Shelf. Mar. & Div., 275.

Before investigating the subsequent conduct of Clark and wife, let us consider the records pleaded by the defendants and see how far they sustain the conclusions of the plaintiff. It is clear that the suit for alimony, under the Louisiana statute, did not correspond with that which Zulime ordered. Desgrange, before that time, was gone, and alimony was not expected. The *492 effect, however, of such a suit, under the statute, was a divorce from bed and board, and counsel might have mistaken the object, and instituted it as a divorce suit. The subsequent suit shows that the purpose of getting full judicial proof of the nullity of the marriage, and the marriage certificate, dated in 1806, showing a marriage between a Desgrange and the woman on whose account Desgrange was arrested, testify a purpose not satisfied by the first suit, on the part of Zulime, to comply with the demands of Clark, or with the provisions of the law.

These records, so far from showing any discredit upon the explanations of the parties, when fairly considered, afford a confirmation to them.

They show that to remove the alleged impediment to the declaration of the marriage, a judicial inquiry and sentence were supposed necessary, and that the party interested persevered in measures to secure them.

One other argument remains, and that consists in the evidence of Coxe. He undertakes to establish the fact of an illicit intercourse, and to negate the fact of marriage by proving that Clark was never in Philadelphia, with Zulime, under such circumstances as to allow a marriage to take place. He says, that in about 1802, Zulime came to Philadelphia with a letter from Clark, confessing an illegitimate connection with her, and requesting him to provide for the mother during her confinement, and the child after its birth. That the mother left Philadelphia shortly after the birth of the child, and as soon as possible after her recovery from the sickness. That Clark arrived in Philadelphia after the child was born, and remained but a short time. The proof shows that Clark left New Orleans for Philadelphia before the 7th November, 1801; that he was unexpectedly detained in Havana, by an embargo, twenty-three days, but he is found in Philadelphia in January, and remained there until the latter end of April, 1802. Zulime is found is New Orleans in 1801, after Clark had left there for the north.

**17 Is there any probability of the accuracy of the statement that Clark sent Zulime with a letter of introduction to Coxe, and requested him to superintend her accouchment?

Coxe was a married man, overbearing in his intercourse, staid in his manners. He reprimands Clark continually in their intercourse. As might have been expected, Clark, on some subjects, was reserved. At this moment he had his secrets carefully hidden from him.

Coxe, in his deposition taken in 1835, says nothing of the letter of introduction, speaks doubtfully of the age of Caroline Barnes, and professes to know nothing of the manner in which Zulime arrived in Philadelphia in 1807, and how she continued there.

*493 The account Coxe gives of Caroline Barnes is equally the subject of remark.

Clark, from 1802 till 1806, was not in Philadelphia. In his testimony, he says, Clark's letters contained no allusions to Caroline Barnes. In his testimony, 1185 (10 and 11), he says that Caroline Barnes went to Trenton to school in 1805. On page 998 he speaks of Clark's personal observation of her health, and personal directions for her removal; of his affectionate interest and tenderness. What knowledge could he have of these transactions? Clark, from 1808 till 1813, only visited Philadelphia a single time, and then to settle and dissolve his transactions with Coxe. The letters in the record show that Clark spent the vacation between the sessions of Congress in Louisiana. Additional observations are to be made upon Coxe himself. The letters, from Coxe, seem strongly to indicate that he is not deserving of implicit credit. This witness needs to be sustained himself; he cannot contribute to destroy the credit of another.

The testimony of the sisters, (Despau and Caillevet) has been assailed. Against the character of the latter nothing has been said. Her husband testifies in his last will to her excellence, and none have appeared to dispute her title to the commendation.

Madame Despau has been assailed. The testimony consists of the loose statements of a rout of witnesses who say that she was reputed to be a galante femme; that nothing good was said of her; that she was spoken of in the same terms as her sister. And the record of a proceeding had by her husband against her when she accompanied Zulime to the United States in 1807. This proceeding was ex parte. The evidence impugns Mad. Despau only for having abandoned Despau. I hardly need to state that none of this testimony is admissible to impeach her credit. Phil. Ev., 291, 292; 13 Johns. (N. Y.), 504; 3 Serg. & R. (Pa.), 337; Hill & Cowen's Notes, 768.

The life of Mad. Despau from 1808 till the present time answers the calumnies upon her. She returned from the north in 1808; with her children she went to the parish of St. Landry, and there conducted a small school. The esteem and confidence of her neighbors attached to her. Her daughters were eligibly established in marriage, and under their kindness she is now sustained and supported.

**18 Had she been Clark's mistrees would she have been left penniless? Has not the exemplary life of forty years been sufficient to vindicate her fame? Has not the fact that her husband made no contribution to his family, but left his children to her, proven the falseholld of his charges upon her?

We have considered the parties up to 1808. Let us consider *494 the effect of the conduct in 1808. Both parties, Clark and Zulime, we have said, may have considered particular evidence needful for the validity of their marriage.

Their opinion does not affect the case. Lord Eldon has said on such facts: ‘I am exceedingly anxious to press upon your lordships' attention this is what I take to be an indisputable proposition of law, namely, that if you find there was a marriage duly celebrated, actually had, that marriage cannot be got rid of by evidence of facts and circumstances done or observed by persons afterwards thinking it proper to disentangle themselves from the connection of marriage, actuated by caprice, dislike of each other, or a base motive of inducing other persons to think that they may form matrimonial connections with the parties. When once you have got clearly to the conclusion that a marriage has been had, let the consequences be what they may with respect to third persons, that marriage must be sustained.’ 2 Bligh, N. S., 489.

The French jurists are equally explicit. In a court where the solemn admissions and oath of the first wife were produced to establish that she was not a wife, the advocate-general declares: ‘It is pretended that Margaret Dorus has renounced her status; but without examining if it is her, or a fictitious representative who has spoken in these acts, whether they were prepared or fabricated by her husband, or whether she consented freely, or executed them under a surprise, menace, or through fear of violence, it is sufficient to say the renunciation is vicious, and produces no effect. The status of a wife is such that she cannot dispose of it. All the efforts to impair or to destroy it are nugatory.'

Clark's conduct to his child after the marriage of Zulime to Gardette seems to have been more anxious. ‘He passed much time with her,’ says Mrs. Davis. He expressed intense anxiety and ambition for her. He felt that he could make no public delaration without compromising himself and compromising Mrs. Gardette. We may well understand that he was beset with difficulties and vexations on the subject. We can understand that when he resolved, by an open and palpable acknowledgment, furnishing to her a charter of her rights, that it would afford him infinite relief. Such is the testimony in the record.

The will would have been a simple nullity if the plaintiff was a bastard. The father was prohibited from executing such an instrument. There was no occasion to steal it or to suppress it. The law had already pronounced on it a sentence of condemnation. The person who abstracted such a will must have believed in the legitimacy of Myra. De la Croix, who desired to find the will, Pitot and Bellechasse, whose indignation was awakened by its loss, must have known its legal effect.

**19 *495 The absence of that will and the cause of its absence; the absence of all papers, letters, memoranda of Clark determining the legitimacy of his daughter; the nature of his long connection with her mother, speak trumpet-tongued. These defendants, Chew and Relf, were early put upon their guard. They could not have failed to hear of the contents of that lost will. Relf sets himself to work to conciliate De la Croix, and succeeds. He winds himself about Bellechasse, and seeks first through Coxe and then by an artful letter of his own, to induce him to betray the trust he had assumed for the plaintiff.

Suppose the act of sale spoken of had been annulled under the ‘pure and simple’ authority that Relf sought for from Bellechasse, what would have been the condition of Bellechasse in reference to this transaction? How much would his testimony have been impaired?

All of Clark's correspondence came to the possession of Chew and Relf after the death of Clark. Whatever he wrote; whatever he received, fell under their inspection. They knew his acquaintances, his intimates. They could have afforded full information to this court of all the obscure and doubtful circumstances in this case. Give to us the contents of the black case, about which Clark was so anxious in his last sickness, and we will undertake to do so. On whom does the odium spoliatoris in this case rest? Who is it that has concealed a part of the testimony, and attempted to adulterate the remainder?

Another fact in the case is noticeable. Coxe affects even to the last to doubt the plaintiff's connection to Clark. At the date of the mother's (Mrs. Clark's) will, she was living with Colonel Davis as his daughter. Why was it necessary to proclaim her illegitimacy in the will of Mary Clark, her grandmother, accompanied as it was with no substantial benefit?

If the conduct of Relf and Coxe had been deliberately directed to the suppression or the alteration of the evidences of the plaintiff's legitimacy, it would hardly have been different from what it appears on this record.

This review of the testimony of the case is surely sufficient to exhibit the truth of the plaintiff's claim. We have not forgotten the opinion heretofore given by this court upon much of the evidence in this record, nor do we diminish or undervalue the importance of that opinion by discussing anew what has been so well considered.

The counsel for the appellees made twenty-seven points. Only two parts of the argument will be given at any length, those two being connected more especially with the points upon which the decision of the court turned. The general features of the case dwelt upon were, the depositions and character of Madame *496 Despau; the alimony, ecclesiastical and divorce records and the conduct of Zulime in declaring herself to be the wife of Desgrange; her conduct afterwards in going in search of the certificate of her marriage when she had a living witness of it by her side, and the inconsistency of her marrying Gardette with a belief that she was the wife of Clark; the utter improbability that Clark would have offered marriage to several ladies of high character and connections if he knew that he was already married; and the testimony to depreciate the character of Zulime for chastity.

**20 With respect to the different depositions of Madame Despau, whose evidence was taken three times, viz., in 1839, 1845, and 1849, the counsel (Mr. Duncan,) remarked as follows:

Having thus declared the field for a fair, full, and impartial investigation, I proceed to the examination of the case.

First. Was Daniel Clark ever married to Zulime née Carrière, the mother of the complainant, Myra? We hold the negative of this question. Then, 1st, We say that the complainant, holding the affirmative, must make it perfectly manifest beyond all reasonable doubt. This is the more incumbent on them as it is not pretended that Daniel Clark and this woman ever gave to the public any of the usual manifestations of such a connection. Indeed, strange as it may appear, the parties here aver that there were none of those usual ordinary and appropriate evidences given by the persons whom she claims to have been her father and mother, which all individuals in all Christian lands hold out to the world as the appropriate evidence of the existence of a marital relation.

Let us now take up this first point, as a question of evidence, and see how it stands. Was Daniel Clark ever married to Zulime née Carrière, the mother of Myra? The affirmative of this proposition is sworn to in the most unqualified manner by Madame Sophia Despau, as a fact which took place in her own presence. This is stating her testimony as fully and broadly as I can possibly do it. It is here to be remarked that it is a strange and singular thing, which can but attract attention, that but one witness can be found to testify to a marriage of such a man as was Daniel Clark! That he lived twelve years after this supposed interesting fact, and yet amidst his family and friendly letters, which are as abundant as the leaves of the forest, there can be found not the most distant reference to this most important fact.

As Madame Despau is the only witness who swears that she was present and saw the marriage, I will at once review the case as based upon her testimony.

The answer of the defendants is under oath, and this meets her testimony, unless she is sustained by other strong corresponding *497 facts and circumstances. Whether she is so sustained will be seen in the progress of this inquiry.

In equity the answer of the defendant is conclusive in his favor, unless it is overcome by satisfactory testimony of two opposing witnesses, or of one witness swearing positively, and such other facts as are equal to the unqualified testimony of another witness. 2 Story Eq., 743, 744; 2 Atk., 19; Id., 140; 1 Ves., 97; 6 Id., 40; 9 Id., 275, 283; 12 Id., 78; 18 Id., 12-335; 9 Cranch. 160; 1 Johns. (N. Y.) Ch., 459, 462; 2 Fonbl. B., 6, ch. 2, sect. 2, note g; 2 Ves., 243; 2 Johns. (N. Y.) Ch., 88, 89, 90.

**21 The witness Despau was examined under oath in June, 1839. Then, in answer to the second question put to her, without hesitation or equivocation she swears as follows: ‘Daniel Clark was married in Philadelphia, in 1803, by a Catholic priest. I was present at this marriage.’ She subsequently, in rather an awkward manner, says that this marriage of Daniel Clark was with her sister Zulime, and that of this marriage Myra was the only issue. On the 16th day of October, 1845, this same witness Despau is again examined. The mind will naturally pause here to inquire whether accounts, given at two periods of more than six years apart, and before different magistrates, agree in all essential particulars. One of the most powerful instruments in the investigation of truth is where several witnesses, at different times and places, without possible collusion, agree in all material particulars in their account of the same transaction. The best of writers on this part of the system of laws agree that it is a high evidence of the integrity of the witnesses where there are small differences in their account of the same transaction, and for the sensible reason that it shows an entire absence of collusion. On the other hand, where there is a striking similitude in the very language of different witnesses, it raises a suspicion at once of collusion, and demands an explanation and further circumstantial support. By the same process of reasoning let us look at these two statements of Madame Despau. They are six years separated in point of time, they are taken before different magistrates, and yet we find the witness not only agreeing with herself in the general account-which ought to be expected of all honest witnesses-but the very language is used by the magistrates in taking down her several statements on the two occasions, and in precisely the same language, as far as it goes. Now, then, I say that one of two things happened-there was either collusion or a miracle on this last occasion. No witness can recount a transaction thus, under such circumstances, in the fading period of life to which she had arrived. The thing is impossible.

There was no miracle in the business. There was but one *498 way of accounting for this thing. The greatest power which a court of chancery has in preventing collusion had been broken down. Publication of her first statement had been made. The seals had been broken; a copy of her first testimony was in her hand when she made her second statement, or what is worse, and more probable from her simple inspection of the face of the deposition, it was prepared for her, and she signed what had been previously prepared. The magistrate disobeyed the very letter of the commission addressed to him by the court,-that commission is very comprehensive, direct, and simple. But the ‘trust and confidence’ of the court, in the integrity and ability of the magistrate, have been abused. The whole was a concocted affair, got up, no doubt, out of the presence of the magistrate. And this is the precious testimony upon which the court is asked to base a judgment decreeing on earth-what was never registered in heaven-that Daniel Clark had married Zulime née Carrière.

**22 There is in this statement, or rather statements of the witness Despau, this feature to be remembered, that the facts above referred to show deliberation, purpose, care, design, as well as preparation. She belongs to the household of this suit; it is not doing here injustice, therefore, to suppose that her testimony has been the subject of repeated and deliberate consultations before it was delivered. Its force and effect have been well considered. This very citadel of the case has been duly and thoroughly examined, with a critic's eye. It has doubtless been considered not only in its relations and bearings upon the complainant's case, but all possible guards have been thrown around it against the approach of the adversary. There is, then, no room left for mistake. The time, the place, and the circumstances have all been detailed. The story is told; and so true is it (God save the mark!) that six years afterwards, in relating it for the second time, no words can be found so very appropriate as the exact words used before to convey this important fact. Then she is ready to stand or fall by it.

Before going into the interesting comparison of the testimony of the witness Despau, with other measure of truth, I beg leave for a moment to revert to the issue on this point as tendered by the complainant's bill, and accepted by the defendants in their answer. The original bill was filed in this court on the 28th day of July, 1836. On the 11th day of December, 1848, the last amended bill was filed. Thus the parties have themselves had twelve years and over four months to conform their averments to their facts, and after all this time and consideration, we find that on the day last mentioned an amended bill is filed, and in it we meet with the following averment on the behalf of the complainant:

*499 ‘That the said Daniel Clark was lawfully married with Zulime née Carrière, at the city of Philadelphia, in the State of Pennsylvania, in or about the latter part of the year 1802, or the early part of the year 1803, with the observance of the necessary requisitions of the laws of Pennsylvania for the solemnization of the marriage contract, and that your oratrix is the sole offspring or issue of said lawful marriage.’ Page 86 of the original record, restored by stipulation on file.

Now, then, we have fairly before us the averment upon the turning point of complainant's case. It is clear and distinct, though there is a considerable margin reserved in the expressions ‘the latter part of 1802, and the early part of 1803.’ Yet we shall not complain, and I propose to allow them the grace of three months in each of those years, making a field of inquiry of six months, or from the 1st of October, 1802, to the 1st of April, 1803. I believe that the court will think with me that this is a sufficient allowance to one who has taken so long a time in adjusting the time to her facts, with the aid of her mother at her side. The day of a woman's marriage is one of the most important in her life, which no time or circumstances can obliterate from her mind. She can always tell the very day, with all its attendant circumstances, and it would have been no more than right if I had exacted a positive averment of the very day and the very place of this great event: great to the mother of Myra if it had been true, because it would have changed the whole current of events in her eventful and romantic career.

**23 The defendants take issue upon the foregoing quotation from the amended bill of the complainants, and aver that it is not true. They aver that Daniel Clark was not married to Zulime née Carrière, in Philadelphia, in the latter part of the year 1802, or the early part of the year 1803.

I will proceed now with our examination of the testimony of complainants on this point, and then show by that of the defendants that the whole pretension is an utter fabrication.

What is the testimony of the complainant on this point? They have one witness who swears most positively that she saw the marriage, and that it took place in Philadelphia. This is the only witness (Mrs. Despau) who thus testifies. Her testimony, which I have before referred to, it must be observed, is not the testimony of the same witness now relied upon by the complainant. Far from it. They, on the contrary, began to penetrate into the storehouse of the defendants' muniments of war. They began to see, to comprehend, and to feel, the force of the evidence which was soon to overwhelm that witness and to sink her, and with her the complainant's case, into ‘the receptacle *500 of things lost on earth.’ The case and the witness must stand together; if one falls the other sinks,-if one is blasted the other is ruined; and a gallant struggle must now be made to rescue both one and the other. Accordingly, and for the first time, with any regard to the proprieties of any of the rules of chancery practice, in the month of February, 1849, the complainant propounds her interrogatories, and the defendants again propund their cross-interrogatories. To these questions do we hear the same old song sung again, set to the same old tune? Ah! by no means. She now swears as positively as she did before to the marriage, and to her presence at the place; but when she comes to speak of the time,-ah! there is the rub,-she begins to falter, hesitate, and doubt. We look here in vain for that bold, open, and unqualified declaration she had twice before made under oath, and in this case. She now, on the 19th of March, 1849, swears, ‘I was present at this marriage. This, to the best of my recollection, was in the year 1803; although there are some associations in my memory, which make me think it not improbable that the marriage may have taken place in the year 1802. My impression, however, is that the marriage took place in the year 1803. It was, I remember, a short while previous to Clark's going to Europe.’ R., 359.

Who ever saw a more cunningly-devised effort to save a witness than this? Her testimony is here in the record twice told, and doubly sworn to, declaring, in unqualified language, that Daniel Clark was married to her sister, in Philadelphia, in the year 1803! Who gave her the alarm? Who cried out to her that she was standing over a volcano? Who prepared the bridge for her escape, if escape she has made? Then she swore positively,-now she has it to the best of her recollection. Then she swore it was in 1803,-now she believes it to have been in 1803, ‘although there are some associations in my memory, which makes me think it not improbable that the marriage may have taken place in the year 1802.’ I think if this witness should ever happily read the testimony in this case, she will have other ‘associations in her memory’ which will make her think that she was entirely mistaken in the whole business, and that there was no marriage whatever! If she does not, I imagine that her conceptions are formed of far different materials from that which form the minds of your Honors. Why was it that she imagined it possible that she could now be mistaken? In 1839 and in 1845 she had no such idea. She was then much nearer the scene than she was in 1849, and much more likely to have a correct recollection of the event. But why the expression now for the first time found in her testimony, in order to fix the period of Daniel Clark's marriage, that ‘it was, *501 I remember, a short while previous to Mr. Clark's going to Europe’? Who put this notion into her head? Was there any thing in the interrogatory to suggest the idea? I might as well tell the court plainly and at once that, at the time this last testimony was taken, it had been found out that Daniel Clark had been in Philadelphia in the year 1802, but not in the latter part. It was known, or ought to have been known, that we could prove by the testimony left behind him, by Daniel Clark himself, that he was not in Philadelphia at any period of the latter part of 1802, or in any part of 1803. Hence the necessity for this witness to retreat from her former position, and at the same time to do it in such a delicate manner, and with such consummate tact, as to appear to glide naturally towards the truth-to strike upon a circumstance which would appear to elucidate the truth of her statement. Poor short-sighted mortals we are; she had far better been left upon her original position, because her advisers knew not what an ignis fatuus was leading them into a morass from whence there could be no escape.

**24 The parties here are to be held to their pleadings. The onus probandi in this case is with the complainant, according to the maxim of the civil law, ‘Ei incumbet probatio qui dicit, non qui negat.’ Phillips on Ev., 194. This rule is as strict in equity courts as in courts of law. 2 Daniels, 990.

Mr. Duncan then went on to show from letters that Clark was not in Philadelphia during the latter part of 1802 or during any part of the year 1803.

Second Point.-I maintain that Daniel Clark could not have married Zulime née Carrière in 1802 or 1803, because of the legal impediment then existing, and well known to both parties, that she was then a married woman. That she was married to Jerome Desgrange, with strict compliance with every requisition of law, both ecclesiastical and civil, then in force in Louisiana. See record, pp. 748-751. Indeed, this fact is admitted. It is proved and admitted, that, at the time of the alleged marriage of Daniel Clark, Jerome Desgrange was living. We interpose this impediment. We are met by the allegation that this is no impediment, because, at the time Desgrange married Zulime, he had himself a living wife. I now say that there is no proof upon this point which should be regarded for a moment. Let us examine it. First, we have a certificate of one Jacob Desgrange's marriage having taken place in New York. The name excludes the idea of its being Jerome Desgrange, unless the plaintiff had followed it up by proof of identity, and that the very person married in New York, under the name of Jacob, had married Zulime under the name of Jerome. There is not in the record even an attempt to prove it. Again, if the certificate *502 even contained the name of Jerome Desgrange, it would have been equally obligatory upon plaintiff to have followed up the certificate by proof of identity; non constat, but there may have been a dozen Jerome Desgranges in New York; and we are asked to believe that the one mentioned in the certificate was the same who married Zulime, contrary to every principle of law, and in manifest violation of the best rules of justice; that his marriage with Zulime is to be taken as fair, honest, and legal. Any other rule would be the grossest injustice to the name of Desgrange, and cover his grave with dishonor, without his ever having had an opportunity to be heard, and manifesting his innocence and his integrity. This court has seen that in the only case where Desgrange was ever cited, and in which he was put to the proof of the validity of his marriage with Zulime, how triumphantly he sustained himself, and in a case, too, where, if there had been any truth in the accusation, the very witnesses produced were the very ones who would have been most likely to have stated the case most strongly, and in a vindictive spirit, against him-the pretended victims of his crimes. It should be enough that the home of that man was entered by a seducer, without now having his memory covered with infamy, without a trial or a hearing.

**25 But there are other circumstances about this New York certificate which should degrade it. It has been argued as a singular thing, going a great way towards sustaining the genuineness of that paper, that it has on it the names of the persons, as witnesses, who had been named by Madame Soumeylliatt, as the witnesses of her marriage! Sirs, the argument is a feeble one, and gives rise to the suggestion that the very reverse is the truth. That lady's testimony was taken on the 6th of September, 1802. See Record, 711. That miserable certificate is dated on the 11th September, 1806. See Record, 382. Now the inference which 1 draw from it is this: that her having given the names of the witnesses to her marriage with Mr. Soumeylliatt, suggested the idea to the person who made that certificate of putting these names there as witnesses. Why was not the testimony of some one of those witnesses taken? Their death is nowhere shown or pretended. You have the oath of both Desgrange and Madame Soumeylliatt, two of the most important parties in that certificate, testifying directly against it. That certificate, too, it will be seen, is dated but a few weeks after the date of Zulime's suit for divorce in 1806. pp. 382, 758.

Now, then, this attempt to impose this certificate develops another fact which strongly militates against Madame Despau's story. She says that when they reached New York, in 1802 or *503 1803, to obtain proofs of Desgrange's marriage, they could find none-the registry was destroyed. But if this certificate was given in 1806, then the priest who married Desgrange was alive and there when Zulime and Madame Despau were in New York, and could easily have given his testimony or certificate to them. The certificate professes to be taken from a particular page of the record. Then there was no such thing as a burnt record in 1802, as sworn to by this witness. It will be remembered, too, that we find this certificate coming to light through the hands of Zulime in 1840. Record, 597.