Gaines v. Relf
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Opinions
Mr. Justice CATRON
delivered the opinion of the court.
This cause comes here by appeal from the decree of the Circuit Court of the Eastern District of Louisiana, where the bill was dismissed.
The complainant sues as the only legitimate child of the late Daniel Clark, who died in the city of New Orleans the 13th of August, 1813. No account is prayed against Daniel Clark’s executors; but the complainant seeks to recover the property sold by them, consisting of lands and slaves, on the ground that her father could not deprive her, as his legitimate child, of more than one fifth part of his estate by a last will, according to the laws of Louisiana as they stood in 1813. And she maintains that.the sales made by Chew and Relf, were made without any orders of court to authorize them, and that therefore they are void; the laws of Louisiana requiring such orders before a valid sale could be made.
The respondents claim under a will made by Daniel Clark in 1811, by which he devised all his property* real and personal, to his mother, Mary Clark, and appointed Richard Relf and Beverly . Chew, his executors ; and to whom Mary Clark made a power to sell Daniel Clark’s estate for the purpose of raising money to pay his;debts. Chew and Relf, acting as executors of Daniel Clark and also as attorneys of Mary Clark, did sell the property in controversy for .the purpose of paying the debts of the tés[506]*506tatór. To meet this claim of title, the complainant insists, 1st, That the sales made-by Chew and Relf, as executors, were made without orders from the court of probate' to authorize them, and are voidi 2nd, That Mary Clark had not accepted in legal form, the bequest of her son when she conveyed by her attorneys; and that therefore, her conveyances cannot be relied on by her vendees to support the plea of innocent purchaser.
On the 10th day of June, 1844, the mother of the complainant, styling herself Madame Marie Zulime Carriére, and widow of the late Daniel Clark, by her notarial act, made in the eity of • New Orleans, accepted, without benefit of inventory, the community of acquests and gains of one moiety, which it is alleged existed between her and her late husband Daniel Clark, according to the laws in such cases provided. And on the 2d of July, 1844, the then complainants, Gaines and wife, among other amendments to their bill, filed the following: “Your oratrix alleges that she is entitled to the one moiety of the estate of which the said Daniel Clark died possessed, by reason of' a conveyance thereof, made to her by M. Z. Gardette, the widow of the said Clark, and the mother cf your oratrix, on the 7th day of May, 1836, and which is hereunto annexed, marked A. B. and prayed to be taken as part hereof; and the mother of your oratrix did thereafter, on the 20th June, 1844, further convey to her all her interest in said estate, as appears by her act, a copy of which is herewith exhibited, marked C.; the whole of said estate having been acquired during the coverture, of said Clark and wife.”
The exhibits in these particulars correspond, to the allegations. It follows, therefore, that the complainant claims one half of Daniel Clark’s estate by a conveyance from her mother,
The first and most important of the issues presented is that of the legitimacy of the complainant. It is raised, by the following pleadings:
She alleges that her'father; Daniel Clark, was married to Zulime Née Carriere, in the city of Philadelphia, in the year 1802 or 1803; and that she is the legitimate, and the only legitimate offspring of that marriage.
The defendants deny that Daniel Clark was married to said Zülimé at the time and place alleged, or at any other time or place. And they further aver, that at the time said marriage is alleged to have taken place, the said Zulime was the lawful wife of one Jerome Desgrange.
If the mother of. the complainant was the lawful wife of Jerome Desgrange at the time said Zulime is alleged to have intermarried with Daniel Clarkj then the marriage with Clark is merely void; and it is immaterial whether it did of did not take [507]*507place. And the first question we propose to examine is, as to the fact, whether said Zulime was Desgrange’s lawful wife in 1802 or 1803.
A formal record of the marriage between Desgrange and Marie Julia Carriére, obtained from the cathedral catholic church at New Orleans, is before us. That it is a true record •of said marriage is not controverted. Marie Julia is designated Zulime, by a soubriquet or nickname, which is proved to have been a common custom in Louisiana at that time. The .marriage was solemnized in due form on the 2d day of December, 1794. This is admitted on part of the complainant. The parties cohabited together as man and wife for seven or eight years. This is also conceded by both sides. To rebut and overcome the established fact of this marriage, it is alleged that previous to Desgrange’s marriage with Zulime he had lawfully married another woman, who was living when he' married Zulime, and was still his wife; and that therefore, the second marriage was void. And this issue we are called on to try.
The marriage with Desgrange having been proved, it was established as primd facie true, that Zulime was not the lawful •wife of Clark, and the onus of proving that Desgrange had a former wife living when he married Zulime was imposed on the complainant; she was bound to prove the affirmative fact that Desgrange committed bigamy. To establish such previous marriage and the consequent bigamy by marrying a second time, much evidence was introduced and relied on by the complainant. The first witness whose testimony will be referred to was Madame Despau, sister of Zulime.. Her testimony has been taken three times ; first in 1839, then in 1845, and again in 1849.
In 1839 she says, “ I was well acquainted with the late Daniel Clark, of New Orleans. He was married in Philadelphia in 1803, by a catholic priest. I was present at this marriage. One child was born of that marriage, to wit: Myra Clark, who married William Wallace Whitney. I was present at her birth and knew that Mr. Clark claimed -and acknowledged her to be his child. She was born in 1806. I neither knew nor had any reason to believe, that-any other child, besides Myra, was born of that marriage. The circumstances of her marriage with Daniel Clark were these: Several years after her marriage with Desgrange, she heard he had a living wife; our family charged him with the crime of bigamy in marrying said Zulime; he at first denied it, but afterwards admitted it, and fled from the country. These circumstances became public, and Mr. Clark made proposals of marriage to my sister, with the knowledge of all our family. It was considered essential first to obtain re[508]*508cord-proof of Desgrange having a living wife at the time he married my sister; to obtain which, from the records of the catholic church in New York, (where Mr. Desgrange’s prior marriage was celebrated,) we sailed for that city. On our arrival there, we found that the registry of marriages had been ' destroyed. Mr. Clark arrived after us. We heard that a Mr. Gardette, then living in Philadelphia, was one of the witnesses to Mr. Desgrange’s prior marriage. We proceeded to that city, and found Mr. Gardette. He answered, that he was present at said prior marriage of Desgrange, and that he afterwards knew Desgrange and his wife by this marriage; that his wife had sailed for France. Mr. Clark then said, 1
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Mr. Justice CATRON
delivered the opinion of the court.
This cause comes here by appeal from the decree of the Circuit Court of the Eastern District of Louisiana, where the bill was dismissed.
The complainant sues as the only legitimate child of the late Daniel Clark, who died in the city of New Orleans the 13th of August, 1813. No account is prayed against Daniel Clark’s executors; but the complainant seeks to recover the property sold by them, consisting of lands and slaves, on the ground that her father could not deprive her, as his legitimate child, of more than one fifth part of his estate by a last will, according to the laws of Louisiana as they stood in 1813. And she maintains that.the sales made by Chew and Relf, were made without any orders of court to authorize them, and that therefore they are void; the laws of Louisiana requiring such orders before a valid sale could be made.
The respondents claim under a will made by Daniel Clark in 1811, by which he devised all his property* real and personal, to his mother, Mary Clark, and appointed Richard Relf and Beverly . Chew, his executors ; and to whom Mary Clark made a power to sell Daniel Clark’s estate for the purpose of raising money to pay his;debts. Chew and Relf, acting as executors of Daniel Clark and also as attorneys of Mary Clark, did sell the property in controversy for .the purpose of paying the debts of the tés[506]*506tatór. To meet this claim of title, the complainant insists, 1st, That the sales made-by Chew and Relf, as executors, were made without orders from the court of probate' to authorize them, and are voidi 2nd, That Mary Clark had not accepted in legal form, the bequest of her son when she conveyed by her attorneys; and that therefore, her conveyances cannot be relied on by her vendees to support the plea of innocent purchaser.
On the 10th day of June, 1844, the mother of the complainant, styling herself Madame Marie Zulime Carriére, and widow of the late Daniel Clark, by her notarial act, made in the eity of • New Orleans, accepted, without benefit of inventory, the community of acquests and gains of one moiety, which it is alleged existed between her and her late husband Daniel Clark, according to the laws in such cases provided. And on the 2d of July, 1844, the then complainants, Gaines and wife, among other amendments to their bill, filed the following: “Your oratrix alleges that she is entitled to the one moiety of the estate of which the said Daniel Clark died possessed, by reason of' a conveyance thereof, made to her by M. Z. Gardette, the widow of the said Clark, and the mother cf your oratrix, on the 7th day of May, 1836, and which is hereunto annexed, marked A. B. and prayed to be taken as part hereof; and the mother of your oratrix did thereafter, on the 20th June, 1844, further convey to her all her interest in said estate, as appears by her act, a copy of which is herewith exhibited, marked C.; the whole of said estate having been acquired during the coverture, of said Clark and wife.”
The exhibits in these particulars correspond, to the allegations. It follows, therefore, that the complainant claims one half of Daniel Clark’s estate by a conveyance from her mother,
The first and most important of the issues presented is that of the legitimacy of the complainant. It is raised, by the following pleadings:
She alleges that her'father; Daniel Clark, was married to Zulime Née Carriere, in the city of Philadelphia, in the year 1802 or 1803; and that she is the legitimate, and the only legitimate offspring of that marriage.
The defendants deny that Daniel Clark was married to said Zülimé at the time and place alleged, or at any other time or place. And they further aver, that at the time said marriage is alleged to have taken place, the said Zulime was the lawful wife of one Jerome Desgrange.
If the mother of. the complainant was the lawful wife of Jerome Desgrange at the time said Zulime is alleged to have intermarried with Daniel Clarkj then the marriage with Clark is merely void; and it is immaterial whether it did of did not take [507]*507place. And the first question we propose to examine is, as to the fact, whether said Zulime was Desgrange’s lawful wife in 1802 or 1803.
A formal record of the marriage between Desgrange and Marie Julia Carriére, obtained from the cathedral catholic church at New Orleans, is before us. That it is a true record •of said marriage is not controverted. Marie Julia is designated Zulime, by a soubriquet or nickname, which is proved to have been a common custom in Louisiana at that time. The .marriage was solemnized in due form on the 2d day of December, 1794. This is admitted on part of the complainant. The parties cohabited together as man and wife for seven or eight years. This is also conceded by both sides. To rebut and overcome the established fact of this marriage, it is alleged that previous to Desgrange’s marriage with Zulime he had lawfully married another woman, who was living when he' married Zulime, and was still his wife; and that therefore, the second marriage was void. And this issue we are called on to try.
The marriage with Desgrange having been proved, it was established as primd facie true, that Zulime was not the lawful •wife of Clark, and the onus of proving that Desgrange had a former wife living when he married Zulime was imposed on the complainant; she was bound to prove the affirmative fact that Desgrange committed bigamy. To establish such previous marriage and the consequent bigamy by marrying a second time, much evidence was introduced and relied on by the complainant. The first witness whose testimony will be referred to was Madame Despau, sister of Zulime.. Her testimony has been taken three times ; first in 1839, then in 1845, and again in 1849.
In 1839 she says, “ I was well acquainted with the late Daniel Clark, of New Orleans. He was married in Philadelphia in 1803, by a catholic priest. I was present at this marriage. One child was born of that marriage, to wit: Myra Clark, who married William Wallace Whitney. I was present at her birth and knew that Mr. Clark claimed -and acknowledged her to be his child. She was born in 1806. I neither knew nor had any reason to believe, that-any other child, besides Myra, was born of that marriage. The circumstances of her marriage with Daniel Clark were these: Several years after her marriage with Desgrange, she heard he had a living wife; our family charged him with the crime of bigamy in marrying said Zulime; he at first denied it, but afterwards admitted it, and fled from the country. These circumstances became public, and Mr. Clark made proposals of marriage to my sister, with the knowledge of all our family. It was considered essential first to obtain re[508]*508cord-proof of Desgrange having a living wife at the time he married my sister; to obtain which, from the records of the catholic church in New York, (where Mr. Desgrange’s prior marriage was celebrated,) we sailed for that city. On our arrival there, we found that the registry of marriages had been ' destroyed. Mr. Clark arrived after us. We heard that a Mr. Gardette, then living in Philadelphia, was one of the witnesses to Mr. Desgrange’s prior marriage. We proceeded to that city, and found Mr. Gardette. He answered, that he was present at said prior marriage of Desgrange, and that he afterwards knew Desgrange and his wife by this marriage; that his wife had sailed for France. Mr. Clark then said, 1 You have no reason longer to refuse being marriéd to me; it will, however, be necessary to keep our marriage secret till I have obtained judicial proof of the nullity of your and Desgrange’s marriage.’ They, the said Clark and the said Zulime, were then married. Soon afterwards, our sister, Madame Caillavet, wrote to us from New Orleans that Desgrange’s wife, whom he had married prior to marrying said Zulime, had arrived at New Orleans. We hastened our return to New Orleans. He was prosecuted for bigamy ; father Antoine, of the catholic church, taking part in the proceedings against Desgrange. Mr. Desgrange was condemned for bigamy in marrying the said Zulime, and was cast into prison; from which he secretly escaped by connivance, and was taken down the Mississippi River by Mr. LeBreton D’Orgenois, where he got into a vessel, escaped from the country, and, according to the best of my knowledge and belief, never afterwards returned to Louisiana. This happened in 1803,' not a great while before the close of the Spanish government 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, Mr. James Brown and Eligius Fromentin, as the counsel of my sister, brought suit against the name of Desgrange,'in the city court, I think, of New Orleans. The grounds of said suit were, that Desgrange had imposed himself upon her at a time when he had a living lawful wife. Judgment in said suit was rendered against said Desgrange. Mr. Clark still continued to defer promulgating his marriage with my sister, which very much fretted and irritated her feelings. Mr. Clark became a member of the United States Congress, in 1806. Whilst he was in Qongress my sister heard he was courting Miss C., of Baltimore. She was much distressed, though she could not believe the report, knowing herself to be his wife. Still, his strange conduct in deferring to promulgate his marriage with her had [509]*509alarmed her. She and I sailed for Philadelphia to get proof of his marriage with my sister. We could find no record, and were told that the priest who married her and Mr. Clark had gone to Ireland. My sister then sent for Daniel W. Coxe ; mentioned to him the rumor; he answered that he knew it to be true that he (Clark,) was engaged to her, - (Miss C.) My sister replied that it could not be so. He then told her that she would not be able to establish her marriage with Clark if he were disposed to contest it. He advised her to take counsel, and said he would send one. A Mr. Smyth came and told my sister that she could not legally establish her marriage with Clark, and pretended to read to her a letter in English, (a language then unknown to my sister,) from Mr. Clark to Mr. Coxe, stating he was about to marry Miss C. In consequence of this information, my sister Zulime came to the resolution of having no further connection or intercourse with Mr. Clark, and soon afterwards • married Mr. Gardette, of Philadelphia. The witness further states that she became acquainted with Desgrange in 1793. He was a nobleman by birth, and married Zulime when she was thirteen years ojd. Zulime had two children by him, á boy and a girl; the boy died, the girl is living, (1839 ;) her name is Caroline, and mar-, ried to Dr. Barnes. Witness was present at the birth óf these children. The marriage of Zulime was a private one. Besides the witness, Mr. Dorsier, of New Orleans, and an Irish gentleman, a friend of Mr. Clark, from New York, were present at the marriage. A catholic priest performed the ceremony.
In regard to the children, born of thé marriage of Zulime and Desgrange, this witness further' states in another deposition, that before the detection of Desgran ge’s bigamy, said Zulimehad a son, who died, and a daughter called Caroline, which bore his name. Since the death of Mr. Daniel Clark, Mr. Daniel W. Coxe and Mr. Hulings, of Philadelphia, gave her the name of Caroline Clark, and took her to Mr. Clark’s mother, and introduced her as the daughter of her son. She of course believed their story, which induced her in her will to leave a portion of her property to Caroline. Caroline was born in 1801.
I never heard Mr. Clark acknowledge his having any natural children; but have only heard him acknowledge one child, and that a lawful one, to wit, said Myra.
Her other depositions substantially correspond with the foregoing statement so far as they bear on the question of Desgrange’s bigamy.
The next most important witness is Madame Caillavet, another sister of Zulime. She was also three times examined. Her first deposition was taken at New Orleans, in May, 1835, in which she states: That sometime after the marriage of her sis* [510]*510ter with Mr. Desgrange, her sister discovered that .Mr, Desgrange had been previously married: that in order to ascertain this fact, she went to Philadelphia, in the absence of her husband who was in France; that whilst at Philadelphia, Desgrange returned from France to New Orleans, and at the same time, or a very short time after, his first wife made her appearance in New Orleans. Upon this, witness immediately apprised her sister of this fact and she returned immediately to New Orleans. On the arrival of the said first wife of Desgrange, she complained to the governor, who caused Desgrange to be arrested; (it was under the Spanish government ;) after some time, he obtained his release and left the country. Before his departure, he confessed that he had been previously married. Witness understood afterwards from her sister by letters which she received from her secretly, that she was married with Mr. Daniel Clark; the preliminaries of the contemplated marriage were settled by the husband of witness, at his house in the year 1802 or 1803, in the presence of witness.
In the next deposition she states:
“ I have already stated all I knew about Mr. Clark’s marriage ■with Zulime, and of her marriage with Mr. Desgrange. By this marriage áhe had two children, a boy and a girl; the boy is dead, the girl is still living; her name is Caroline, and is married to Dr. Barnes.”
The second and third depositions of Madame Caillavet correspond, but as the third one is more full, it is, given. In this one she states as follows:
“ I did reside in the city of New Orleans, abou-f the year 1800, and for many years previous ; my residence continued there until I'went to France, about the year 1807.
“ I was acquainted with Daniel Clark, late of the city of New Orleans, deceased; my acquaintance with him commenced about the year seventeen hundred and ninety-seven; my intimacy with him, growing out of his marriage with my sister, continued during my residence in New Orleans.
“ I was not present at the marriage of Zulime Née Carriére (who is my sister,) with Mr. Clark; but it is within my knowledge, both from information derived from my sisters at the time, and from the statement^ of Mr. Clark, made to me during his lifetime, that a marriage was solemnized between them. It is to my personal knowledge that Mr. Clark, about the year eighteen hundred and two, or three, made proposals of marriage with‘my sister Zulime, with the knowledge of all our family. These proposals were discussed, and the preliminaries of the marriage arranged by my husband, at his house, in my presence. But my [511]*511sister, having been previously married to one Jerome Desgrange, who was found to have had a lawful wife living, at the time of his (Desgrange’s) marriage with her, the marriage with Mr. Clark could not take place until proofs of the invalidity of her mar-, riage with Desgrange were obtained, To procure these proofs from public records, my sisters Zulime, and Madame Despau, went to the .north of the United States, where Desgrange’s prior marriage was said to have taken place. While there, my sister Zulime wrote to me' that she and Mr. Clark were, married. There was .born of this marriage one, and only one child, a fe- • male, named Myra, who was. put by Mr. Clark, while an infant, under the charge of Mrs. Samuel B. Davis, in whose family she was brought up and educated. Having suffered from hired nurses, she was nursed, through kindness, for some time after her birth, by Mrs. Harriet Harper, wife of William Harper, .the nephew of Col. Samuel B. Davis. Mr. Clark stated to riie, frequently, that Myra was his lawful and only child. This child is' the same person who was married to William Wallace Whitney ; and who is now, the wife of General Edmund P. Gaines, of the United States army. I have always understood that the marriage between my sister and Mr. Clark was a private one, and that it was not promulgated by Mr. Clark, in his lifetime, unless he did so in a last will, made a short time-previous to his death. .1 have heard that such a last will was.made, but.it was believed to have been suppressed or destroyed after his death.
“ I was acquainted with Mr. Jerome Desgrange, for the first time, in New .Orleans, about the year seventeen hundred and ninety-five. ‘ He passed for an unmarried man, and as such imposed himself on my sister Zulime. Some years after this marriage, it became known in New Orleans, that ■ he • had a prior lawful wife living. My sister immediately separated from him, and came to reside with heir family. At a later period, Mr. Desgrange was prosecuted, found guilty of bigamy, in having married.my sister Zulime, and cast into prison. He escaped from prison, as it was reported at the time, by the Spanish governor’s connivance. I understood that Mr. LeBreton D’Orgenois aided him to escape from the country. This happened some timé before the transfer of the government of Louisiana to the Americans. The flight of Desgrange from New Orleans is the last X know. of him. I did not myself know the first wife of Desgrange, but it is within my knowledge that she came to New Orleans, and while there, fully established her pretensions as his lawful wife.”
' Another deposition of this witness is found in the. record, taken October 16, 1849; but as it. does not differ from the foregoing depositions on the question of bigamy, it is not further noticed.
[512]*512Objections .were made on the argument, that the different depositions of these witnesses are contradictory in several respects: but we have not found them to be so in any material degree. Madame Despau’s, so far as they relate to the question under examination, are very nearly literal copies of each other; and Madame Caillavet’s are nearly similar to each other.
Joseph D. D. Bellechasse, in his deposition, taken in 1834, states:
“ I think it my duty now; to declare, what I know to be a fact, that- said Desgrange was condemned for bigamy in marrying Miss Carriére (subsequently the mother of Myra,) several years prior to the birth of said Myra. The prosecution and condemnation of said Desgrange for said crime of bigamy, took place at New Orleans towards the close of the Spanish domination in Louisiana; his first and lawful wife, whom he had married previous to his coming to Louisiana, (as it was proved,) coming to New Orleans in pursuit of him. "When said Desgrange practised the infamous deception of marrying Miss Carriére, it was' the current opinion in New Orleans, that he was a bachelor, or a single man.”
Madame Bengueril, in her deposition taken in 1836, makes the following statement:
“ Mi. Jerome Desgrange married the said Zulime, which proved on his part bigamy, for, after his marriage with the said Zulime, the lawful wife of said Desgrange, whom he had married previous to his marrying the said Zulime, came to New Orleans, and he was thrown into prison, from which he escaped, and fled from Louisiana; this was in the year 1802- or 1803; since that period I have never seen the said Desgrange, and do no/t believe that he ever returned to Louisiana.
“ The said lawful wife of the said Desgrange brought with h.er to New Orleans proofs of her marriage with the said Desgrange. The exposure, at that time, of the said Desgrange’s bigamy in marrying the said Zulime, was notoriously known in New Orleans.
i¿ My husband and'myself were, very intimate with the said Desgrange, and when we reproached him for his baseness in imposing upon the said Zulime, he endeavored to excuse himself by saying that, at the time of his marrying the said Zulime, he had abandoned his said lawful wife, and never intended to see her again.”
This is the material evidence on which the complainant relies to prove Desgrange’s bigamy, when he married, Zulime Née Carriére. • What other évidence we may incidentally refer to, will be stated by the reporter.
To meet and rebut this evidence, the defendants introduced [513]*513from the records of the cathedral church of the diocese, to which the city of New Orleans belonged at that period, an ecclesiastical proceeding against Desgrange for bigamy; and which proceeding, as respondents insist, is the same to which complainant’s witnesses refer. The following are the material parts of that proceeding:
“ THE YEAR 1802.
“ T. M. T.
“ No. 141.
“ Criminal proceedings instituted against Gerónimo Desgrange for bigamy.
- “ The vicar-general and governor of the bishoprick, judge.
“ Fran’co Bermudez, Notary.”
“ Decree. In the city of New Orleans, the 4th day of September, 1802, Thomas Hasset, canonical presbytary of this holy cathedral ,church, provisor, vicar-general, and governor of the bishoprick of this province:
“ Says, that it- has been publicly stated in this city, that Gerónimo Desgrange, who was married in the year 1794, to Maria Julia Carriére, was at that time married, and is so even now, before the church, to Barbara Jeanbelle, who has just arrived; and also that the said Desgrange, having arrived from France a few months since, he caused another woman to come here, whose name will be obtained. It is reported in all - the city, publicly and notoriously, that the said Gerónimo Desgrange has three wives, and not being able to keep secret such an act, as scandalous as it is opposed to the precepts of our holy mother church, his excellency has ordered, that. in order to proceed in the investigation, and to the corresponding penalty, testimony be produced to substantiate his being a single man, which the said- Desgrange presented, in order to consummate .his marriage with said Carriere; that all persons shall appear who can give any information in this matter, and also Desgrange, with Celestin Lavergne and Antonio Fromantin, interpreters; they, the interpreters, first accepting the nomination, and swearing to act as such faithfully. And also, as it has been ascertained that the said Desgrange is about to leave with the last of these three wives, let him be placed in the public prison, during these proceedings, with the aid of one of the alcades: this decree serving as an order, which his excellency has approved, and as such it is signed by me, notary.
“ Signed, Thomas Hassett, Before me,
“ Fran’co Bermudez.”
“ New Orleans, in the same day it was passed to the Capitular [514]*514House, and audience hall of Don Fran’co Cais,ergues, alcade of this city, and in his jurisdiction, and I notified to his worship the preceding decree, and of which I have taken note.
“ Signed, Fran’co Bermudez.”
“ New Orleans, 4th September, 1802.
“ Let the request of the govérnor of the bishoprick be complied with. Signed, Fran’co Caisergues. Before-me,
“ Signed, Fran’co Bermudez.
“ In New Orleans on ihe same day, I, the notary, notified Celestin Lavergne of his appointment as interpreter, and he said that he accepted it; and swore by God and the Cross, that he would act well and faithfully in the premises, and he herewith signs his name.
“ Signed, C’tino Lavergne. Fran’co Bermudez.
“ On the same day I notified Antonio Fromantin of his appointment as interpreter, who accepted of it, and who swore by God and the Cross, that he would act well and -faithfully in the premises, and he herewith signs his name.
“ Signed, Antonio Fromantin. Fran’co Bermudez.”
Next comes the church record filed as evidence in the cause establishing the marriage of Desgrange to Maria Julia Nee Garriere, which need not be further stated.
The material parts of the subsequent proceeding, are the following:
“ Citation. In New Orleans, on the same day, I, the undersigned notary, inquired at sundry places' for the residence of Dona Barbara Jeanbelle, and I was informed she lived in Mr. Bernard Marigny’s house, where I then went, and there gave notice that, on Monday, the 6th instant, at seven o’clock in the morning, she must present herself before the tribunal, as per order of his excellency.
“ Signed, Bermudez;
“ On the same day, I notified the minister of justice, Jose Campos, of the preceding decree.
“ Signed, Bermudez.”
“ Testimony. Testimony of Dona Barbara Jeanbelle. In the city of New Orleans, on the 6th of September, 1802, appeared before Mr. Thomas Hassett, presbytary canon of this holy cathedral church, provisor, vicar-general, and governor of the bishoprick of this province and the Floridas, Dona Barbara Margarita Jeanbelle de Orsy, who was sworn to tell the truth, and the following questions were then propounded to her:
[515]*5151st. If she knows Gerónimo Desgrange; how long, and where did she know him ?
Answers: That she has known him forsixt'een years, and that she was acquainted with him in New York.
2d. Being asked whether it is true that she was married to the aforesaid Desgrange, in wjiat place, in what church, how long ago, in what parish, by what clergyman, and who were the witnesses ?
Answers: No, although it was her intention to marry the aforesaid Desgrange; but as the latter was going away, she changed her mind; nevertheless, she obtained the permission of her father to go to Philadelphia for that purpose, and that while there Desgrange begged of her to come to this city to consummate the marriage, to which she did not consent; this took place about eleven years and a half ago.
. Being asked whether she was acquainted with Desgrange in France, after the period above stated, and if she has ever spoken to. him on.the subject?
Answers: That last year she saw him in Bordeaux, and that -she did not again speak to him of the marriage, because they, were both of them married.
Being asked that, if she says she is married, with whom is she married, how long since, in what place, by what clergyman, and who were the witnesses ?
Answers: That she is married to Don Jfian Santiago Soumeylliat, about ten years ago, in the city of Philadelphia,-by a catholic priest, and that Mr. Bernardy and his wife were witnesses.
Being-asked if she has any document to prove it?
Answers: That she has no document to prove' it.
Being asked if she has not heard' it said that Desgrange is married to three wives, say to whom, and if it is not public and notorious?
Answers: That she never heard any thing of what is asked her until last night, when she was told that it was said she was one of-his wives, and she says that what she has declared is the truth; and the testimony having been read to her, which was interpreted by Don Celestino Lavergne, and Don Antonio Fromantin, she declared it was what she had said, and she now ratifies it; that she is thirty-four years old.
“ Signed, B. M. Zambell De Orsi, Hasset,
“ C’tino Lavergne, Antonio Fromentin.
s< Before me, Fran’co Bermudez.”
“ Testimony of Maria Yrlar. In the city of New Orleans, on the same day, month, and year, appeared before his excel[516]*516leney, Maria YHar, who, being sworn to tell the truth, the following questions were propounded to her:
Being asked whether she is married or not, how long it is since she arrived in this city, and with what object:
Answers: That she is the widow of Juan Dupor, alias Poulé, who died two years- ago, to whom she was married about-years; that she has never had any other husband, neither before nor since; that she arrived here two days ago, and that her object was to gain a livelihood, having been informed it was a good country for seariistresses.
Being asked if she knows Gerónimo Desgrange, how long, and if she was invited or told by him to come to this city, and with what object:
Answers: That she knew Gerónimo Desgrange in France about eight months ago, and it was he who told her to come to this city, where she could gain a better livelihood than in her own country.
Being asked whether she was promised marriage to the said Gerónimo Desgrange, or if she has entered into any private contract with reference to matrimony, or any other contract with him:
Answers: That she has not had any contract of the kind with the said Desgrange, because she knew, before her departure from France, that he was married in. Louisiana; and that her coming here was only with the object that she has already stated.-
Being asked [if] she had promised the said Desgrange to accompany him in the voyage he is going to make to France:
Answers: That fax from accompanying Desgrange during his voyage, she thinks of remaining in the house of Cornelius Ploy, alias Flamand, to whom she has been recommended by the said Desgrange, for the purpose of gaining her livelihood by sewing, as the said Flamand is a tailor by trade.
Being asked if she has heard it publicly said that Desgrange has been married to two women before or since her arrival in this city.
Answers : ■ That before her arrival she had heard nothing of the matter; but since she has been here she has heard it said publicly that Desgrange has been married three times; she swears that what she has said is the truth, and that she is twenty-five years old; she does not sign, not knowing how to write.
“ Signed, Hasset, Antonio Fromentin, C’tino Lavergne.
“ Before me, Franco. Bermudez.”
“ Testimony of Maria Julia Garriere. Then appeared be[517]*517fore his excellency Maria Julia Carriére, who, through the interpreters, was duly sworn to tell the truth, and the following questions were propounded to her.
Being asked whether she was married or single:
Answers : That she is married to Gerónimo Desgrange, since the 4th of December, 1794.
Being asked whether she héard, before or since her marriage, that her said husband was married to another woman:
Answers: That about a year since she heard it stated, in this city, that her husband was married in the north, and, in consequence, she wished to ascertain whether it was true or not, and she left this city for Philadelphia and New York, where she used every exertion to ascertain the truth of the report, and she learned only that he had courted a woman, whose father not consenting to the match, it did not take place, and she married another man shortly afterwards.
Being asked whether she had recently heard that her husband was married to three women, if she believed it, or does believe it, or has any doubt about the matter which renders her unquiet or unhappy:
Answers : That although she has heard so in public, she has not believed it, and the report has caused her no uneasiness, as she is satisfied that it is not true; she also swears that she is twenty-two years old.
Signed, Marie Zulime Carriére Desgrange, Hasset, his mark, C’tino Lavergne, Antonio Fromentin.
Before me, Franco. Bermudez.”
“ Testimony of Gerónimo Desgrange. In the city of New Orleans, on the 7th day of September, 1802, Thomas Hasset, presbyter canon of this holy cathedral church, provisor vicar-general, and governor of this bish'oprick of this province, caused to come before him and in presence of the interpreters, Gerónimo Desgrange, who was duly sworn to tell the truth, replied to the following interrogatories:
Being asked whether he knows Barbara Tanbel de Orsi, how long, and in what place:
Answers : That he first knew her in New York, about eleven years ago, and afterwards in Philadelphia.
Being asked that, if he was married to her, to state in what place, before what clergyman, how long ago, and who were the witnesses:
Answers: That he never was married to her, although he wished to do so, and had asked the consent of her father, but'he refused it, as deponent was poor.
[518]*518Being asked whether, after leaving her in Philadelphia, he has known her in any other place, and with what intentions :
Answers: That he has seen the said Dona Barbara in Bordeaux by mere accident; for deponent being sick, Mr. Soumeylatt, her husband, was sent for, and after he got well the said Soumeyllat invited him to dine with him at his. house, where he saw her, and was much astonished; and he afterwards continued visiting the house, with no other feeling than that of friendship, and with the knowledge of her husband.
Being asked if he knows Maria YUar, to state how long he has known her, in what place, and with what motives:
Answers: That in the month of December, of last year, he knew her when she was in a boarding-house where she was em-* ployed as a servant, in Bordeaux, where the respondent lived.
Being asked if he made any arrangements with the aforesaid to accompany him to this city, to state what that arrangement was, and what object she had in coming here :
Answers: That he made no arrangement nor agreement with the aforesaid; and the reason she is here is, that having asked him whether this country held out better inducements than Bordeaux, in order to gain a livelihood by sewing, he advised her to come, as it would prove more advantageous to her.
Being asked whether his intention is to take her with him on the voyage he intends making, and if he has asked her to do so:
■ Answers: That he has not thought of it, as she came here to gain her livelihood, and for no other purpose.
Being asked why Maria Julia Carriére, his wife, went to the north last year.
Answers : That the principal reason was, that a report had circulated in this city that he was married to another woman; she wished to ascertain whether it was true, and she went.
Being asked if he has ever, been examined by any ecclesiastical judge in relation to this affair :
Answers: No
Being asked whether it is true, that in order to satisfy his wife and the public, he offered to bring with him or to procure documents tq prove his innocence in this matter, and that if he have them, to show them:
Answers: That taking it for granted that this charge would naturally fall, his wife being satisfied of his innocence, and no judge having required the shewing of such documents, he has used no exertions to obtain them ; and that he is forty-two years old.
■ Signed, J. Desgrange, Hassét, his mark, Antonio Fromentin, C’tnio Lavergne.
Before me, Francisco Bermudez.”
[519]*519“Decree. Not being able to prove the public report, which is contained in the original decree of these proceedings, and'having-no more proofs for the present, let all proceedings be suspended, with power to prosecute them hereafter, if necessary, and let the person of Gerónimo Desgrange be set at liberty, he paying the costs;
Signed, Thomas Hasset. •
Don Thomas Hasset, presbyter canon of this holy cathedral church, vicar-general and governor of the bishoprick of this province of Louisiana and the two Floridas, has approved and signed the preceding decree, in New Orleans, this 7th September, 1802;
Signed, Francisco Bermudez.
In New Orleans, on the same day, notified Gerónimo Des grange of the preceding decree, and visited him in prison fq that purpose.
Signed, Bermudez.
On the same day, notified said decree to Joseph Puche, the keeper of the prison.
Signed, Bermudez.”
Bishop Blanc proves that the records of the catholic bishop-rick of Louisiana are in his charge; that he searched for the record of prosecution against Desgrange for bigamy, and found it; that it is a complete record of the whole proceeding; and that, Thomas Hasset, .being first canon of the diocese, represented the bishop, and acted as vicar-general, the see being vacant at that time. Isodore A. Quemper also proves that he is_the official keeper of the records of the cathedral church of St. Louis, at New Orleans, and the paper is án exact and literal copy of the original. .
The signatures of Lávergne and Fromentin, who took the depositions,- and that of Bermudez, the notary, are proved by witnesses who had seen- them write; and the signature of Des grange and Zulime were proved by experts, on comparison ( hands with authentic signatures of theirs. Such proof is a lowable in Louisiana, according to the civil code and the code of practice; and this mode of proof has not been objected to in this case.
Respondents also introduced the following evidence:
On the 26th of March, 1801, Madame Caillavet, Madame Lasabe, and Madame Despau joined in a power of attorney, authorizing Jerome Desgrange, their brother in law, to proceed [520]*520to Bordeaux, in France, and there recover any estate or property belonging to them, as co-heiresses of their father and mother.
And, at the same time, Desgrange made a general power of attorney to his wife, Donna Marie Zulime, to act for him in all his affairs in his absence. She acted under the power, and sold several slaves, and did other acts, which appear in notarial records. In each of these acts she styles herself “ the legitimate wife and general attorney of Don Gerónimo Desgrange.”
In July, 1801, Desgrange wrote to Clark the following letter:
“ Bordeaux, July, 1801.
“ My dear Sjr and Friend, — Although uncertain whether you are at New Orleans, I hasten to seize the • opportunity of the sailing of the Natchez to furnish you with some news. I hope my letter will find you in good health. When -one has such a friend as you, we cannot ,feel' too deep an interest in him.
“ I have received here a great deal of politeness from Mr. John Bernard, merchant, a friend of Mr. Chew, who is doing a very great business now. He spoke a great deal of Mr. Chew to me, and his politeness to him while at Bordeaux; He was introduced to me by Mr. Cox.
“ There has been many arrivals of American vessels in this port since I was here last. Colonial goods are selling very well. I think if your friend from Philadelphia were to make a visit here he could make a profitable speculation on his return voyage.
“ Do me the ldndness, my dear sir, to write to me. It will afford me much pleasure to hear from you. Several American vessels are about to leave, to come directly here.
“ Present my compliments to Mr. Chew, and beg him, whenever he writes to Mr. Bernard, to speak of me. I have taken the liberty to inclose under your cover a package for my wife, which I beg you to remit to her.- Permit me, my dear friend to reiterate my acceptance of the kind offer you made me before I- left, • and should my wife find herself embarrassed in any respect, you will truly oblige me by aiding her with your kind advice.' I expect to leave in a few days, to join my family. I hope to return to Bordeaux in two or three months, to terminate my affairs here, and to make preparations tp ■ meet you. I have been some days engaged in a lawsuit, for' the purpose of recovering an estate belonging-to my wife’s family. I shall place this affair in Mr. Chicou St.. Brie’s care during my absence.. I fear thát I shall have to expend a great deal in this affair. I [521]*521have charged Mr. Bernard with the care of other business. I have not yet heard from my wife, which renders me very uneasy as to going to Provence before I hear from hen It is said that peace will be declared by the end of the year; but I have my fears whether we shall enjoy that happiness. Hoping to have the pleasure of hearing from you soon,
“ I am, most truly, your friend,
“ Desgrange.
“ Write me to the care of Mr. Jean Bernard, merchant, at Chartron, Bordeaux.”
The respondents introduced the- deposition of Daniel W. Coxe, of Philadelphia. He had been the partner in trade of Daniel Clark, in their New Orleans house, from the time Clark set out as a commission and shipping merchant. They were nearly of the same age; both proud, intelligent, and ambitious of success ; equals in rank, and intimate in their social relations, as a common interest and constant intercourse could make them. This abundantly appears by their correspondence, introduced in the record before us. Coxe states that, in 1802, Madame Desgrange presented herself to him in Philadelphia, with a confidential letter of introduction to him from Daniel Clark, which stated that the bearer was pregnant, and would soon be delivered of a child; and that he, Clark, was the fathér of it; and the letter requested Coxe to put her under. the care of a respectable physician, and to furnish her with money during her confinement and stay in Philadelphia. That Coxe, accordingly, employed the late Doctor William Shippen to attend, her at her aecouehment. That he, Coxe, procured a nurse for her; and removed the child, on the day of its birth, to the residence of the nurse; that this child was Caroline Barnes, who, before her marriage,' always went by the name of Caroline Clark. The first nurse was Mrs. Stevens; afterwards, the. child was placed, at Clark’s request, with Mr. and Mrs.. James Alexander, of Trenton, New Jersey, and continued there until 1814 or 1815. After this, (her father being dead,) she was placed at Mrs. Baisley’s school in Philadelphia. She remained with Mrs. Baisléy several years, and acted during part of the time as a teacher, and, Coxe thinks, continued there until she was married. She was under Coxe’s supervision all the time, from her birth until her marriage; and was supported, at the expense of Clark until his death. She was at all times, during his life, recognized by Clark as his child, and caressed as such when he was at Philadelphia.
. Coxe further states that Madame Desgrange left Philadelphia for New Orleans as soon as it was prudent for. her to travel, [522]*522after her confinement;' and that this happened, he thinks, in April of 1802: he says in another deposition that it was some time in 1802. Coxe was three times examined. Dates of letters from Clark to Coxe, and other evidence, show that the child was born as late as July, 1802: to wit, Clark reached Philadelphia about the 27th of July, 1802, as from his letter to Coxe appears; he hurried his business at Philadelphia and went to New York, where he wrote to Coxe, Aug. 13, 1802, that he would sail for Europe on the next Tuesday; and he did sail, and returned early in 1803 to New Orleans, and was not at Philadelphia in 1803. Madame Despau and Coxe both prove that Clark was on his way to Europe, when Madame Desgrange and Madame Despau met him. Coxe deposes that the child had been lately bom when Clark reached Philadelphia, and, when he went to New York the two women very shortly after left for New Orleans,— that is to say, so soon as Madame Desgrange was able to travel.
A record of a suit brought by Zulime C. Desgrange against her husband, Jerome Desgrange, in November, 1805, for alimony, was also introduced by respondents. It will be further noticed hereafter.
This is substantially the evidence on both sides, on wmch the question depends, whether Desgrange was, or was not, guilty of bigamy in marfying Maria Julia Née Carriére, in 1794.
Objections are taken to several portions of this evidence ; and especially as respects the record of the suit against Desgrange for bigamy in the ecclesiastical court.
First, it is objected that the record is not duly proved, the signatures of the witnesses not being established as having been signed to their depositions.
The answer to this objection rests on well-settled principles. AIT that is required in cases of this kind, is to producé a sworn copy of the record, the witnesses also proving that it was taken at the proper office, and produced by the lawful keeper of the records. In Phillips on Ev. by Cowen (vol. 1, 432, vol. 2,133, 134) will be found the cases in support of this mode of proof.
Here the official keeper of the records and the bishop- of the diocese, under whose charge they were, produced both the original and the copy; the copy was filed in this cause by stipulation of the parties; and each of the witnesses proved all the law requires to make it primd facie evidence'.
On the argument at the bar, and especially in the printed one presented to us as coming from New Orleans, it is earnestly insisted that the origin of this record is reóent, and that it had been fabricated for the purposes of this cause. We do not perceive any ground for entertaining such an apprehension. [523]*5231st. The complainant’s witnesses refer to such a proceeding. 2d. The record of it was searched for by the complainant, and not found; and for this reason its substantial contents, as it was supposed, were proved in Patterson’s case. 3d. The signatures of the officers of the court are proved as being' genuine. 4th. Bishop Blanc deposes that he had charge of the records of the bishopric, among which he found this one. .
If the allegation of fraud and forgery insisted on had any-' foundation, Bishop Blanc must of necessity be directly involved in that charge; and, furthermore, of swearing to that which he must have known to be false. This assumption is not only gratuitous, but the witness is fully supported by the facts above stated; and the further fact, that, neither in his cross-examination, nor by any o.ther evidence, is his integrity assailed, by the complainant.
The next objection is, that the record decided nothing, there being no sentence concluding any one; and if there had been such sentence, it would be of no value, as it was a proceeding against Desgrange, to which neither Clark nor Zulime was á party, and therefore the record was incompetent to affect the rights of those claiming under them.
The competency of this evidence depends on other considerations.
For the purpose of establishing the bigamy of Desgrange, the complainant proved by her witnesses that he was arrested on a charge of bigamy, at the instance of his first wife; “ that the said-lawful wife of the said Desgrange brought with her to New Orleans proofs of her marriage with said Desgrange; ” that the first wife appeared as a-witness, and proved the bigamy; that. Desgrange had confessed it; that he was convicted on his trial; and that he was imprisoned, and in execution, under sentence of the court; that this occurred in 1802 or 1803; that Desgrange escaped from prison by connivance of the public officers, or some of them, and fled the country, and never returned.
On this evidence, standing unopposed and uncontradicted, the complainant had a decree in her favor in the Circuit Court at New Orleans, establishing the bigamy of Desgrange; and in this court, ih the case of Patterson v. Gaines, decided in 1848.
For the purpose of letting in this secondary evidence, the complainant introduced the deposition of C. W. Dreschler, made April 24, 1840, which is as follows:
“ That at the request of General Edmund P. Gaines, I have been engaged for several days, assisted by a gentleman who understands the Spanish and French languages well, in making very extensive and most diligent search at all offices, &c., in the different parts of this city, where.records are kept and could be [524]*524looked for, for the purpose of obtaining a copy of a prosecution against one Jerome Desgrange, convicted for the crime of bigamy, in the year 1802 or 1803, when Louisiana was under the Spanish government, and Cassaacalvo, the governor, by whose order the said Desgrange was arrested, imprisoned, &c., in this city; but that I have not been able to find the Spanish records of the aforesaid criminal proceedings, because almost all the Spanish documents, up to the 20th December, 1803, when Governor Claiborne issued his first proclamation, were taken away by the Spanish authorities, sent to Spain, and to the island of Cuba; and the few papers left in this city are in a loose or bad condition; as also, because many books and papers having been destroyed by fire, and lost by removing them on account cf fire, during two occurrences of that kind.
“ I am informed that Governor Claiborne made several ineffectual applications to the Spanish government to return the papers taken away, to New Orleans; that persons have had to go to Havana for documents, titles to land, &c.”
On this, and other proof that no record of the proceeding could be found, parol evidence of what occurred on the trial against Desgrange was let in, and the bigamv found on the secondary evidence in Patterson’s case.
Here the same proof that the record of the proceedings was lost, was introduced; and what took place on that trial of Desgrange was again proved by depositions, which were filed in the Circuit Court before the record of Desgrange’s trial was filed by the respondents. The object of its introduction bythe respondents was, to rebut, contradict, and overthrow the evidence of the .complainant’s witnesses, by showing,
1st. That no previous wife appeared against Desgrange on his prosecution.
2d. That no documents cf a former marriage were produced against him.
3d. That his wife Zulime did not then charge him with being guilty of bigamy, denied all belief in the charge, and gave her reasons for it; which correspond with the statement made by the supposed first wife, Barbara Jeanbelle, and with Desgrange’s own statement made on oath.
4th. That. Desgrange was not convicted, but discharged by order of the court. •
5th. That he did not flee the country, nor had any occasion to do so. And,
6th. That so far from admitting his bigamy, he denied it on oath, lawfully administered ; thus solemnly declaring that he never had been married previous to his marriage with said Zulime. Whereas, complainant’s witnesses swear he made such copfessipnp.
[525]*525The complainant’s principal witnesses are Madame Despau and Madame Caillavet. Madame Despau swears that in 1802 or in 1803, Madame Desgrange and herself went to New York for the purpose of ascertaining whether Jerome Desgrange had been previously married, where Clark overtook them ,* that no church record of the marriage could be found in the catholic chapel at New York; but hearing that Mr. Gardette, of Philadelphia, knew something of the matter, - they went there, and Gardette informed them that he was present at the first marriage ; and that Clark and Zulime were then married. And that soon afterwards, they received a letter from Madame Caillavet, informing them that Desgrange’s first wife had come to New Orleans, and they immediately returned there; where Desgrange was prosecuted by his first wife, convicted and imprisoned ; and that he fled the country, and never returned to it.-
Madame Caillavet says Desgrange and Barbara Jeanbelle came together, or that Jeanbelle came immediately after him; and that she immediately wrote to her sisters to return.
It appears that in the spring of 1801, Desgrange went to Prance, to recover property coming by succession to his wife Zulime, and her sisters, from their -parents, and lying at Bordeaux, of in that neighborhood; and that he had not returned when Zulime and Madame Despau left New Orleans for New York.
The ecclesiastical record states that he had been at home about two months before he was arrested; which was September 4, 1802. He was therefore absent from his wife Zulime about fifteen months.
Daniel W. Coxe proves, that Madame Desgrange brought him a letter of introduction from Clark, stating, that she was then far gone in pregnancy, and requesting Coxe’s attention to her wants; that he furnished a house and money, and employed a nurse, and Dr. Shippen to attend her accouchement; that Clark’s letter stated the child was his; and we must assume that the mother by delivering the letter, impliedly admitted the fact. She was delivered; and Coxe had the child, on the same day, put with Mrs. Stevens to nurse. All this time, Madame Despau was with Madame Desgrange. Coxe superintended the, child’s nurture and education, in and near to Philadelphia, • until Clark’s death in 1813, and afterwards. This was Caroline,' who when grown up married Dr. Barnes; and who these witnesses swear without hesitation was the child of Desgrange; and who, Madame Despau swears, was born in 1801. Nor does either witness intimate that she was. born in Philadelphia; or that their sister went there to conceal her adultery, and hide' its offspring.
[526]*526They left Philadelphia for New Orleans, as soon as Madame Desgrange was able to travel; and reported to the deluded husband on their return, that they had been north, seeking proof against him for bigamy, but had found none. ' This is the substance of what Desgrange himself stated on his examination in the criminal proceeding as derived from others. Zulime swore on the trial, that she had heard the report of Desgrange having another wife about a year before; that is, about the first of September, 1801. Then, Desgrange was in France.
It is true beyond question that these witnesses did know that their sister Desgrange went north to hide her adultery; that she did delude her absent husband,, that she did impose on him the méndacious tale that her sole business north was to clear up doubts that disturbed her mind, about his having another wife. These facts they carefully conceal in their depositions; and on th§ contrary swear that she went north to get evidence of her husband’s bigamy and imposition on her.
When they swore positively that Caroline was the child of Desgrange, they did know that he had been in France, and his wife in New Orleans, and they had not seen each other for more than a year before the child was bórn; and Madame Despau could not be ignorant that Clark claimed it as his, and that the mother admitted the fact to Coxe.
These witnesses swear that Zulime had separated from Desgrange on discovering his bigamy, and gone to her own family. That this occurred before the family arrangement was madé that Clark should marry her, and before Madame Desgrange and Madame Despau went north, to ascertain the bigamy. They also swear that Zulime returned to New Orleans about the time Desgrange was arrested and imprisoned in September, 1802, and was then the wife of Clark. There is no proof in this record tending to show that before Desgrange went to France he was suspected of bigamy, nor that his wife had separated from him; but there is evidence to the contrary- '
' When Desgrange went to France in the spring of 1801, he appointed his wife attorney in fact by -notarial act, with full power to transact all his business in his absence. Under this power she acted and sold his property, paid debts, &c., and declared herself his lawful wife in every transaction.
Desgrange went to France with a full power to transact business for his wife and her three sisters, in which the latter style, him their brother-in-law. This was his sole business in France so far as this record shows ; and when there, he wrote to Clark, in July, 1801, to assist his, Desgrange’s wife; expressing his sympathies, forwarding a package for her, and regretting that he had not heard from her. He also expressed the sincerest gratitude [527]*527for Clark’s proffered kindness in providing for and aiding Zulime in his absence. From these facts it is clear, as we .think, that at the time Desgrange left for Europe, he and his wife were on terms of intercourse and ordinary affection, and certainly not separated ; and that the cause of their separation is found in the connection formed by Clark and Zulime in Desgrange’s absence.
■In support of the consistency of these witnesses, stress is laid on the fact that so strong was the rumor of Desgrange’s having two other wives besides Zulime, that he was arrested, imprisoned, and tried on the rumor. . This is certainly true; the record of his prosecution establishes the fact: But what circumstances are brought forth to show that there was any plausible ground for such rumor and such prosecution ? ..Desgrange was a man somewhat advanced in life.; he kept.an humble shop for selling liquors and confectiotiary; this seems to have been his sole business.- • His wife Zulime, was about/- twenty-two years old, and uncommonly handsome. He-seems to have been a lone man in New Orleans, and his Mends were his wife and her relations. In the face of these facts it is assumed that he brought from France with him an additional wife, and that another followed him; with both of whom, and his third wife, Zulime, he was confronted before the authorities of the church.
The early times, and the unintelligent condition of much of the population of New Orleans at that day, must account for this absurd public ¿pinion, and the proceedings founded on it.
It is palpable that the witnesses Despau and Caillavet, swear to a plausible-tale of fiction, leaving out the circumstances of gross reality. These originated, beyond question, in profligacy of a highly dangerous and criminal character; that of a wife having committed adultery, and been delivered of an illegitimate child, in the absence of her husband; not only on .his lawful business, but on her’s, and at her instance.
This child, with the knowledge of both of these witnesses, and certainly with the aid of one of them, if not both, was concealed in a foreign country, where the mother went and was delivered; and then she returned h'om'e to New Orleans and presented herself to society as an innocent and injured woman, and public indignation was turned on'her husband for a supposed crime committed against her. This is the reality these witnesses conceal; roundly swearing that they knew this child to be Desgrange’s.
They also swear that Clark arranged with Zulime’s family before he went to Philadelphia, and had the assent of her family to marry her; they having previously discovered Desgrange’s bigamy. But, according to their account, so scrupulous and delicate was this injured woman, that she refused to marry [528]*528Clark until she went to New York and there ascertained for herself the fact; that Desgrange had another wife: that Clark soon followed Madame Desgrange and Madame Despau, as previously agreed on; and even then, Madame Despau swears, when Gardette had informed them that he was present, ^nd witnessed Desgrange’s first marriage, her sister’s sense of propriety and delicacy was so great, that earnest persuasions had to be used by Clark to overcome her scruples. We cannot shut our eyes on the truth, and accord our belief to this fiction.
We have thus far spoken of the witnesses Despau and Caillavet in connection, because they acted in concert with their sister Desgrange and Clark, in secreting their intercourse, and in hiding the child that came of that, intercourse: all the secrets involved were obviously known to the three sisters, whose confidential relation in the matter could hardly have been more close, as'appears by their statements throughout.
Madame Despau is further discredited by Daniel W. Coxe’s evidence. She swears as follows:
“ Mr. Clark became a member of the United States Congress in eighteen hundred and six. While he was in Congress, my sister heard that he was courting a Miss C., of Baltimore. She was distressed, though she could not believe the report, knowing herself to be his wife. Still, his strange conduct in deferring to promulgate his marriage with her had alarmed her, and she and I sailed to Philadelphia to get the proof of his marriage with my sister. We could find no record of the marriage, and were told that the priest who married her and Mr. Clark was gone to Ireland. My sister then sent for Mr. Daniel W. Coxe, and mentioned to him the rumor above stated. He answered that he knew it to be true that Mi'. Clark was engaged to the lady in question. My sister replied that it could not be so, He then told her that she would not be able to establish her marriage with Mr. Clark, if he were disposed to contest it. He advised her to take the advice of legal counsel, and said he would send one. A Mr; Smith came, and, after telling my sister that she could not legally establish her marriage with Mr. Clark, pretended to read to her a letter in English, (a language then unknown to my sister,) from Mi'. Clark to Mr. Coxe, stating that he was about to marry Miss C. And afterwards, she married Mr. Gardette.”
The following is Coxe’s account of the interview:
“ I also think it proper to state, that in the year 1808, after Madame Desgrange had returned to Philadelphia from New Orleans, and when lodging in Walnut street,.she sent for me, and during a private interview with her, at Mrs. Rowan’s, where she lodged, she stated that she had heard Mr. Clark was going to be [529]*529married to Miss C., of Baltimore, which, she said, was a violation of his promise to marry her, and added that she now considered herself at liberty to connect herself in marriage with another person; alluding, doubtless, to Dr. Gardette, who, at the moment of this disclosure, entered the room, when after a few words of general conversation I withdrew, and her marriage to Mr. Gardette was announced a few days after.”
These contradictory statements rifi.se a question of integrity between the witnesses. If they were > equally entitled to credit, still Coxe’s statement has several advantages. First; Madame Desgrange disavowed in the strongest terms that she was the wife of Clark by marrying Gardette; Secondly; so important a communication as Madame Despau declares her sister made to Mr. Coxe; so ruinous to Clark’s matrimonial prospects, and so deeply disgraceful to him, must have been remembered by Coxe if such communication had been made.
Thirdly; Madame Despau swears that she and her sister Desgrange went to Philadelphia to obtain evidence of Clark’s marriage with Zulime; that they could find no record of the marriage, and were told the priest who performed the ceremony had gone to Ireland. What occasion could there be for further proof? Madame Despau swears that Clark had proposed, and family arrangements had been made with him at New Orleans, to marry Zulime; that these proposals .were made with the full knowledge of all Zulime’s family; that Clark follbwed the witness and Zulime north to fulfil the- engagement; that he met them, and the marriage took place; that she, Madame Despau, was .present; that Mr. Dozier, a wealthy planter of New Orleans, and an Irish gentleman of New York,' were also present.
Zulime’s family consisted of three sisters and their husbands. Madame Cavaillet swears that Clark conversed with .her as his-sister-in-law, and admitted the marriage openly to her. Than this, no further proof of it could be required, if time.
The next evidence bearing on the question of Desgrange’s bigamy is the record of a suit, brought by Madame Desgrange against her husband in 1805, for alimony, already referred to; and the deposition of Zulime found in the record of the ecclesiastical proceeding, taken in connection with the first named record. In her deposition Zulime spoke of Desgrange in language admitting of no doubt that she then recognized him as her husband; and that no evidence of his bigamy existed so far as she knew or believed.
' The deposition is objected to as.not being evidence against the complainant. We have already declared that what appeared of record in the proceeding against Desgrange, was competent to rebut evidence introduced by .the complainant tending to [530]*530show what occurred on the prosecution; this Toeing in effect and fact proof of what the record contained. The deposition is now relied on as evidence in itself, tending to show that Desgrange was Zulime’s lawful husband, according to her own confessions and showing at the time she deposed.
The competency of this.deposition, taken as a confession, is objected to, on the ground that her signature to it was not legally proved, as this was done by comparison of hands, according to the statute law of Louisiana. The steps taken in the Circuit Court are conclusive of the objection.
On the 16th of January, 1850, the complainant’s counsel gave notice .to those of the respondents, that on Monday, the 21st, a motion would be made to suppress certain pieces of evidence; and among them the exhibit, obtained at the cathedral church of St. Louis, known as the “ Ecclesiastical Record.” The cause came on for hearing January 22d, and was heard on that and the seventeen succeeding days; but no motion to suppress evidence was made; and if there had been, this, exhibit could have been proved at the hearing, by Zulime herself, if no one else had been found to do so; as the record shows that complainant’s counsel ad .nitted that Zulime was within the jurisdiction of the court, on the day the trial commenced. No objection having been made on the hearing below to this deposition, none can be raised here. To what extent it can be used, will appear from the following facts.
By an amendment to her bill, July 2d, 1844, the complainant states:
“ Your oratrix alleges that she is entitled to the one moiety of the estate, of which the said Daniel Clark died possessed, by reason of a conveyance thereof, made to her by M. Z. Gardette, the widow of the said Clark, and the mother of your oratrix, on the 7th day of May, 1836, and which is hereunto annexed, marked A. B., and prayed to be' taken as part hereof; and the mother of your oratrix did thereafter, on the 20th June, 1844, further convey to her ah her interest in said estate, as appears by her act, a copy of which is herewith exhibited, marked C.; the whole of said estate having been acquired during the coverture of said Clark and wife.
The evidence corresponds with this allegation, and on it the complainant asks to have a decree for one half of the estate of Daniel Clark, as derived from her mother. Madame Despau and Madame Caillavet depose, that Clark married Zulime shortly before her return to New Orleans, from Philadelphia, and before the trial of Desgrange took place, and when she must have been the wife of Clark, if ever she was. If Zulime was now before the court claiming her marital interest in Clark’s estate, her de[531]*531clarations made during the alleged coverture tending to show that she was not the wife of Clark, but of Desgrange, would be admissible against her, and if so, they are also admissible against any one who asserts the same title derived from her, after these declarations were made. Such a case is an established exception to the rule of evidence, excluding declarations of third persons not parties to the record. A declaration emanating from the claimant of any right or estate, which afterwards comes to the parties on the record by descent, or purchase, affecting adversely the estate acquired, may be given in evidence against the party to the record who claims the estate. The authorities are numerous to this effect, and will be found in 1 Phillips, on Ev. 301, and in the notes by Cowen, 265.. And the same rule applies to the record of the suit for alimony. That record would be evidence against the complainant’s mother' if she were a party to this suit; and it is equally evidence against- the complainant as purchaser or donee from her mother; it shows the acts and conduct of the mother, on the question bearing on Desgrange’s- bigamy.
In the suit of 1805, the petitioner alleges that the County Court of Orleans has jurisdiction óñ application of wives against their husbands, to grant alimony on the husband deserting his wife for' one year, and in cases of cruel treatment; and the petitioner declares that her husband, Jerome Desgrange, had cruelly treated her; and likewise, that she had been deserted by him from the 2d day of September, 1802, until that time; that he had returned to New Orleans, from France, in the previous month of October, and was then in the city; and she prays, that said'Jerome Desgrange, your-petitioner’s husband, be condemned to pay her a sum of five hundred dollars per annum,” &c. Desgrange. was served with' notice December 6, 1805, and finai judgment entered against him, as prayed for by his wife, December 24,1805.
We are called on here to try an issue on facts, as a jury would be bound to do, and find on them-the issue between Clark’s devisee and executors, and the purchasers claiming under them, on the one side; and the complainant claiming under her mother on the other, whether that mother was the lawful widow of Daniel Clark when she conveyed to the complainant.
This alleged widow swore.before the authorities of the church in. September, 1802, that she was the wife, of Desgrange, and there spoke of him as her lawful husband; nothing to the contrary was then pretended. The presence before which she deposed, and the solemn manner in which it was done, give additional weight, in our judgment, to what she so deliberately declared on that occasion.
[532]*532In 1805, she again alleged in a legal proceeding, deeply affecting her and Desgrange, that she was his lawful wife, and that he was her husband. The court sanctioned her statement by founding its judgment on it; and as a wife, she recovered the amount claimed as alimony.
With the full knowledge this woman had of all the circumstances connected with the charge of bigamy against Desgrange, our judgment is convinced that she stated what was true, and that she was Desgrange’s lawful wife at the time it is alleged she married Clark.
The claim, therefore, of the complainant, derived from her mother, must be rejected, as it stands condemned by the state- ' ments and acts of that mother herself.
The complicated and curious circumstances that surrounded this charge of bigamy against Desgrange in the Patterson case, and which were then so difficult to deal with, are easily enough understood now. A clew is furnished to unravel the mystery, why it was, that • an humble shopkeeper should be of sufficient consequence to excite public indignation, be. the object of general and gross reproach, and for his name afterwards to appear in the columns of the only newspaper then published in New Orleans, an extract from which the complainant has given in evidence. There an account was given of Desgrange’s alleged crime of bigamy, and the enormity of his conduct in marrying Zulime Née Carriére, whose artless innocfence he so basely imposed upon. The mystery is explained by the fact now presented, that in Desgrange’s absence to France, his wife formed a connection with- Clark, and the child Caroline came of that illicit Connection. On Desgrange’s return home, Madam Caillavet notified her sisters to return in haste, as Desgrange’s first wife was at New Orleans. Mesdames Despau and Desgrange forthwith returned, and at this time it was that Desgrange was so fiercely assailed by public opinion, and very soon after arrested on general rumor and tried for bigamy. The reports, to which these witnesses swear, obviously originated with, and were relied on by Madame Desgrange, her sisters and friends, to harass and drive Desgrange from the country, so that his wife might'indulge herself in the society of Clark, unincumbered and unannoyed by the presence of an humble and deserted husband. And this was in fact accomplished, for Desgrange did leave the country soon after he was tried for bigamy, and Clark did set up Desgrange’s wife in a handsome establishment,-where their intercourse was unrestrained.
In 1805, when Desgrange again came to New Orleans, his wife immediately sued him for alimony, as above stated; speedily got judgment against him for five hundred dollars' per [533]*533annum; on -the same day, issued execution, and again drove him away.
Bellechasse and Madame Benguerel swear that .Desgrange married Zulime, and that he was afterwards condemned for the crime of bigamy; his first and lawful wife coming in pursuit of him to Louisiana, and appearing against him, and producing th&'documents of her marriage. That this happened in 1802 or 1803, and that Desgrange fled. Their statements are substantially the same in this respect. . .
They are so obviously founded on common report, as to be of no value in themselves; certainly no decree could be founded on them. But when contrasted with the record of Desgrange’s prosecution, they turn out to be entirely contrary to the truth; as no first wife appeared against Desgrange; no documents of a former marriage were produced; and no conviction took place; nor did he flee from the country. These aged persons swore as to what common rumor and public clamor were forty years before, and nothing more.
Madame Benguerel also swears, that she and her husband were intimate with Desgrange, and when they reproached him for his baseness in marrying Zulime, he endeavored to excuse himself by saying “ that, at the time of his marrying said Zulime, he had abandoned his said lawful wife, and never intended to see her again.” As already stated, this must have happened after Desgrange returned from France, for there is no evidence that before he went there any such report existed. Zulime proved, on the prosecution for bigamy,’ that she had first heard the report about a year before she was examined.
We deem it extremely improbable, that a man-should openly confess to the friends of Zulime, who reproached him with having committed a foul and high crime, that he was guilty;. and this, too, on the eve of his apprehension and examination, on which he was compelled to give evidence against himself, when he swore that there was no truth whatever in the charge, and in which he was supported by this, supposed first wife, who was then examined, and also by Zulime herself.
On the admissibility of Desgrange’s confession, that he committed bigamy when he married Zulime, the question arises whether this confession (if made) could be given in evidence against the defendants ? They do not claim under Desgrange'; he was not interested in this controversy when it originated, and was competent to give evidence in this cause at any time, if living, to prove, or disprove, that a previous marriage took place, and was in full force, when he married Zulime. Phillips, in his Treatise on Evidence, (vol. 3, 287, Cowen’s ed.) lays down the rule with accuracy, and cites the authorities in its [534]*534support; which rule is, that “ either of the married parties, provided they are not interested in the ■ suit, Will be competent to prove the marriage; and either of them will also be competent to disprove» the-.supposed marriage; and they may give evidence as to the fact whether their child'was born before or after mar-: riage.”
If Desgrange could overthrow his marriage with Zulime by confessions, at one time, so. he could at any other time; and on this assumption, his confession of a. previous marriage could, have been admitted at any time, before the trial, or at the trial, when he stood by, and might be examined as a witness.
The great basis . of- human -society throughout the civilized world is founded on marriages and legitimate offspring;, and to hold that either of the parties could, by- a mere declaration, establish the fact that a marriage was void, would, be an alarming doctrine.
This admission was not one tending to establish pedigree, where hearsay of parents and others is admissible; it went to the specific fact of bigamy; and, according to the language of the Supreme Court of Louisiana, in Harmar v. McLeland, (16 Louis. Rep. 28,) “ in such serious mutters, the law requires more than the simple confession of one of the parties-to dissolve forever the bonds of matrimony between them.” -That was' a cáse seeking a divorce on a written confession of the husband, who had married a -second wife; but the principle declared in that case, and the one governing the present, is the same. . It upholds a great policy, on which society is founded..-.
The letter of Desgrange to Clark, of July, 1801, from Bordeaux, is objected to, as incompetent. "We think it is competent to prove the state of feeling, affection, and sympathy of Desgrange towards his wife, when he wrote the letter; and also, the date is evidence-to prove -where the writer was, and the time .when he wrote. There is - no ground to suppose that the letter was written collusively. .It appears to have been ingenuous, and honésñy intended. The doctriné, why such a letter is admitted, is laid down accurately in 1 Phillips’a Ev. by Cowen, 189,190.
In addition to the foregoing evidence to prove the bigamy of Desgrange, a certificate in thé Latin language was introduced, on part of the complainant, purporting to -be that of William Y. O’Brien, dated September 11,1806, declaring that he had, (July ■6,1790,) as pastor of St. Peter’s church, in the city of New York, married, in that church, Jacobus Desgrange, to Barbara M. Orsi.
It is proved that this priest had charge of St. Peter’s church in 1790, and in 1806; that the certificate was in his handwrit[535]*535ing, and in due- and ordinary form; that the priest died about 1814, then still being in charge of the same church; and that no record of the marriage was found in the records of the church in 1849, when the witnesses deposed to the handwriting of the priest. It is also proved that this certificate was found among the papers- of Gardette, who married the complainant’s mother in 1808; that the paper was found after the suit against Patterson was decided, ana delivered to the complainant by her mother.
The true name of Desgrange is not in the certificate. It was Gerónimo, not Jacobus. Nor was the woman’s name given so as to correspond with that of the alleged first wife of Desgrange. Her name was Barbara Jeanbelle. De Orsi is an affix, describing a place to which the party belongs, or has belonged. The woman’s name is given as Barbara M. Orsi, and we suppose Uo catholic priest thus describes a person he has married, in his marriage register. No identity of person is proved. No cohabitation as man and wife, between Desgrange and Bafbara'Jeanbelle, is proved.
But waiving all thfese objections, and still we think this certificate mere hearsay evidence, and that of a very dangerous character, and this for several reasons.- It was given sixteen years after the marriage purports to have taken place, and might just as well have been given, had the priest been alive, forty years after the marriage, and on the eve of the trial. .
In England, by the statute law, copies from parish registers are received to prove marriages; but the paper produced mast be a sworn copy of the parish register, and not a certificate of the officiating clergyman; nor will a copy of a foreign register be received in evidence, on proof that it is a true copy.
If it were allowable in this country to give such certificate in evidence, where every clergyman of all denominations can perform the ceremony of marriage, and where it is performed by . justices of the peace in many of the States, it would open a door to frauds that could not.be guarded against.
And then again, certificates of marriage might be produced by those coming to this country from Europe: For no reason exists why a priest in any part of the world should not have.accorded to his certificate all the credence that ought to be given to the one here produced, as Louisiana and New York were foreign to each other in 1790.
The respondents introduced the copy of a mutilated record, to which objection was made on behalf of complainant, but which comes up in this record, and is now relied on, for the complainant, to prove the bigamy of Desgrange, If purports to be a suit of Zulime Carriére against Jerome Desgrange, commenced in 1806, [536]*536in the former County Court of Orleans. A. curator was appointed for Desgrange, who was absent; and the curator, Ellery, was summoned to answer the petition; but no petition is produced. Ellery demurred, and stated, as cause of demurrer, that the County Court had no jurisdiction of eases of divorce, nor the court power to pronounce therein; and that the damages, prayed for in said petition, cannot be inquired into or assessed until after judgment of the court touching the validity of the marriage shall be first declared; and he therefore demurred. The demurrer was joined. Afterwards the curator filed the general issue.
.All we find further, is a copy of the docket entries which the clerk was bound to keep by the act of April 10, 1805, sec. 11, for the inspection of the public. The docket entry is as follows: “ Petition filed June 24, 1806. Debt or damages $100. Plea filed July 1, 1806. Answer filed July 24, 1806. Set for trial 24 July.” The witnesses are stated and the costs given; and then follows: “ Judgment for plaintiff, damages $100, July 24, 1806.”
This proceeding is relied on as in itself establishing the fact, that the marriage between Jerome Desgrange and Marie Julia Née Garriere, was thereby declared null.
To give the record this effect, it must appear that the plaintiff did set out in her petition the fact that said marriage was null by reason of the bigamy of Desgrange, and that she prayed to have its nullity adjudged by a judicial decree, and that such decree was' made on the issue. Nothing of the kind appears here. We have no evidence what the cause of action was, nor can any inference be drawn from the memoranda made by the clerk that the suit was to establish the bigamy. All that appears from these memoranda is, that debt or damages to the amount of $100 was claimed by the plaintiff, and that $100 in damages was recovered. Nor does the demurrer contradict this assumption. This mutilated record, theíeforé, proves nothing in this cause.
In regard to this record, the answer of Beverly Chew and Richard Relf avers, “ that on or about the 24th of June, 1806, the aforesaid Zulime Née Garriere, wife of the said Jerome Desgrange, did present another petition to the competent judicial tribunal of the city of New Orleans, therein representing herself as the lawful wife of, and having intermarried with the said Jerome Desgrange, and praying for a divorce and a dissolution of the bonds of matrimony existing between her and the said Jerome Desgrange*, and which was subsequently decreed : to wit, subsequent to the birth of said Myra.” If it was true, that as lawful wife, Zulime Née Garriere sued, and did admit by this proceeding that she was the lawful wife of Desgrange; yet it could [537]*537only affect the interest the complainant sets up under her mother. But as the record does not show what the cause of action was, it is of no value for either side.
On the 20th January, 1849, Gaines and wife filed their supplemental bill against all of the defendants, and among other matters set forth the decree made in their behalf by this court, in the case of C. Patterson v. Gaines and wife, at December term, 1847; and complainants set up that decree as having adjudged and decided against all the defendants to this suit, that Myra Clark Gaines was the legitimate child and forced heiress of Daniel Clark, and that she was legally and' equitably entitled to receive of Relf and Chew, and all persons holding under them, all and singular the estates and property claimed by the original bill; and that although neither of them were nominal'parties to said decree, yet each of them is bound and concluded thereby; they and each of them holding the same relation to. your oratrix as the said .Charles Patterson did, and they and each of them having joined in the interrogatories propounded to the witnesses upon whose testimony said decree was rendered, and propounded cross-interrogatories to said witnesses.
The defendants admit that such a decree was rendered, but deny that it is conclusive on them, or that it ought to affect their right; and that if the decree could do so, yet it ought not to have this effect in the present instance, because they aver and set forth and plead the same as a matter of defence; that said decree was brought about, and procured by imposition, combination, and fraud, between said complainants and Charles Pat-' terson, and that therefore, it should not be regarded in a court of justice for any purpose whatever: That said decree was designed as no honest exposition of the merits of the case; but was brought about, allowed and consented to, for the purpose of pleading the same as res judicata upon points in litigation not honestly contested.
Charles Patterson was Called on by respondents to give evidence on their behalf, to establish the fact, that his suit with Gaines and wife was not honestly defended by him.; and he was required by interrogatories to depose whether he had lost any thing by the decree against him. He answered that he caused the proofs from the court of probate in New Orleans to be given in evidence in the cause ; that this was done by consent of General and Mrs. Gaines, who told him to get all the evidence possible, the stronger the better; that it would be more glorious to have it as strong as possible.
..He furthermore deposed that General Gaines and his wife gave him a writing under their hands that they would not take any property from him, and that they would make his title [538]*538good. He also stated’that General and Mrs. Gaines were to pay the costs if the suit was decided against him, Patterson; that he.paid most of them, and that General and Mrs. Gaines refunded the money to him; that he also paid the. counsel who appeared for him at Washington, but the money was refunded by General and Mrs. Gaines.
He further stated that he was particularly requested by General and Mrs. Gaines, to. use his best*exertions, with the aid of the best counsel he could employ to make every defence in his power to the suit, and qf which it was susceptible, and that he did so.
The suit was for Patterson’s residence in New Orleans, and he admits that he has never been disturbed in his possession, by the decree against him, nor does he expect that he ever will be.
That this proceeding on the part of Patterson and General and Mrs. Gaines was amicable, and that no earnest litigation was had is too manifest for controversy. They agreed to go to trial at once on the depositions found in the probate court; and as Patterson was to lose nothing by the event, he was of course indifferent as to what evidence might be introduced on the hearing.
It also appears by his evidence that when a decree was obtained in the Circuit Court against him-, his name was used to carry up an appeal to this court; but it was. in fact brought up by- General and Mrs. Gaines. Patterson employed counsel here, who of course had to táke the record as they found it, and make the best of it they could; and it is conceded on all hands, they did so; and made the best exertions for- Patterson they could do on the record brought up by him, as they supposed. Nevertheless, an affirmance of, the decree was had in this court. It could hardly be otherwise in a case managed as this was; the object of the complainants below, being to obtain a favorable opinion and decree, on the law and facts of a case, made up at their own discretion.
But the. cause before us presents an aspect altogéther different'; the. proceeding against Besgrange before the vicar-general, introduced here by the respondents, from the archives of the cathedral church of St. Louis, at New Orleans, is in our opinion sufficient in .itself .to produce a different decree from that given in Patterson’s case..
That record; the power of attorney from Besgrange to his wife; and the one from his.wife and her sisters to Mm, to pursue and recover their property in France; Ms letter to Clark of July, 1801; the proof of. his absence from Ms wife for more, than a year, before Caroline was bom; the record of the suit for ali[539]*539mony, prosecuted in 1805, by his wife against Desgrange, to-f ether with Daniel W. Coxe’s evidence, as it now stands, fortied as it is, by letters showing dates, consistency, and accuracy, are all new; and make up a defence altogether conclusive.*
The following is the result of our conclusions:
1st. That the complainant’s two principal witnesses, Madame Despau and Madame Caillavet, are not worthy of credit.
2d. That the depositions of Bellechasse and Madame Benguerel obviously state hearsay and rumor, and are worth nothing, in so far as mere hearsay and rumor is detailed by them.
3d. That the naked confession of Desgrange, that he had been guilty of bigamy, made to Madame Benguerele and her husband, is incompetent evidence, and inadmissible as against these respondents ; even admitting that such confession had been made, as stated by the witness.
4th. That the certificate of William V. O’Brien is inadmissible, and must be disregarded.
5th. That .the record of the suit of Zulime Garriere'against Jerome Desgrange, prosecuted in 1806 in the County Court of Orleans, proves nothiüg, and is incompetent.
6th. That the decree of this court in Charles Patterson’s case does not affect these defendants for two reasons : 1st. Because they were no parties to it; and 2d. Because it was no earnest controversy; And
7th. That the record of Desgrang'e’s prosecution for bigamy, overthrows the feeble, and the discredited evidence, introduced by complainant to prove the bigamy of Desgrange, by marrying Marie Julia Née Carriere in 1794; and establishes the fact that Desgrange was her lawful husband, in 1802 or 1803, when complainant alleges Daniel Clark married her mother; and that therefore, complainant is not the lawful heir of Daniel Clark, and can inherit nothing from him: And consequently that the complainant can take no interest under her mother, by the conveyance set forth in the amended bill, she not being the widow of Daniel Clark.
The question decided, concludes this controversy; nor shall we go further into it.
The harshness of judicial duty requires that we should deal with witnesses and evidences, and with men’s rights, as we find them; and it is done so here. But we sincerely regret that it could not be satisfactorily done, without making exposures that would most willingly have beén avoided.
It is ordered that the decree of the Circuit Court be affirmed, and the’ bill dismissed.
No. 150 of Myra Clark Gaines v. F. D. de la Croix, Richard Relf and Beverly Chew; and No. 151 of the same complainant [540]*540v. D. F. Kermer, J. S. Minor, Relf Chew et al., depend on the same facts as the foregoing case. In these also the decrees below will be affirmed, and the bills dismissed.
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