Gaines v. Hennen

. 55a v. Sennen. Gaines ' But is without theory support misleading. .wholly record, fact, and, from anything appears point is contradicted what does To sustain by appear. directly where, it is to refer to the declaration, only necessary remark it is was detained in plaintiff alleged prison and the of seven minutes of the before space days, proceedings so show that he was detained as the magistrate necessary his own and the on consequence request delay, neglect to offer for his at security part satisfactory appearance the time for the examination-. Those minutes were appointed introduced and in the absence of plaintiff; by any proof it must be assumed that contrary, truth. they speak In whole view of the we think the case, of the court to. charge n was correct, that there no error the record. jury The of the Circuit Court therefore affirmed, with judgment costs.

Myra Clark N. Hennen. Gaines, Appellant, Duncan .court, Since the case Mrs. 12 reported Gaines was before How- in. ard, 537, olographic by Clark-, will made Daniel was ordered .1813, by the Supreme probate, Court of Louisiana admitted to to be notwithstanding its loss. judgment The Supreme Court of that State is with the con coincident elusions testimony of this court which related by to the execution Mr. Clark of and of the olographic.will concealment or destruc- ' - tion itof after his death.

This will Mrs.. legitimate only declared Gaines to be his daughter, universal legatee.

In the bill Mrs'. property filed Gaines to sold the executors recover appointed by necessary a former will of not these 1811, was make execu- tors parties. The reasons stated. It was proceed- not the will of necessary formally to set aside 1811 -before n ing under will in a that of 1813. desired to contest this Any one who latter direct action so. doing concluded from» title of the law prescription, The Mrs. is not as defined Gaines barred of Louisiana. explained. The reasons 473, did not the decision in Howard, The of this court in 12 overrule decision

n - The Howard, 550. two cases explained. case in 12 as a defence in case as- present Howard cannot be set up COURT. SUPREME v. Hennen. for, sued judicata. They things res are as to

being parties dissimilar what judgment. is called the object record, acquittal to be an paper purporting The misnamed the ecclesiastical this But if Grange

of Des is not admissible in case. ii bigamy, evidence it nor in all that is in so, itselfj was would neither of connection with evidence record, complainant, serve to the adulterous as the prove bastardy in requires done, opposition testamentary rule of evidence that to be was father, declaration her in his own- that she handwriting, legitimate himby and only daughter, and, such, legatee. constituted his universal as made in bastardy, defendant, The of adulterous is not charge response an of a complainant’s bill, allegation to the but is affirmative fact by them, them to proof and the is establish it in contradiction burthen will, of her written father, legitimate declaration that she was his child in record, as not paper called, The or is that' of a legally-constituted tribunal, to either the ecclesiastical according usages or the of Spain, they pre- laws any- in at when province part vailed Louisiana time was a of the do- Spain. And Hasset, minion of neither -Canon the Alcalde Caisergues, Notary Bermudez, Franco nor the individual conjoined author- either of a 'of cognizance bigamy to take ity charge was way done.' explained the case difference between now The before the .court it had' presented. proved, was heretofore If which it never was, that- ’ an offspring Mrs. Gaines was the illicit' intercourse, still she could take as legatee, testamentary from her father’s universal declaration of her legitimacy. Louisiana makes a The between acknowledged code natural distinction chil- allowingJthe adulterine children; dren and former take as legatees, but so, except-to-’s- the latter to do allowing small amount. bastardy of adulterous do legal But the relations not arise this case. The marriages, relative to putative law examined which are where, in cases of of them, or either parents, both contracted the bigamy, second marriage a marriage faith. issue of such is good legitimate. law, cases, Spanish and the The Louisiana Code Napoleon, examined as principles and the bearing upon point, by them applied established present case. Clark, was father, capable contracting marriage; the consequence exam- ined of his of his testamentary recognition child’s legitimacy. examined supposed The evidence which is to sustain the.position that the con- nection between Clark and Zulime Carriere adulterous, was so as to bar the ' offspring taking as under legatee her will. father’s The evidence suit

declared to be sufficient in a civil to establish fact that Des Grange bigamy committed when he married Zulime. explained The difference between the evidence which is sufficient to establish in a suit and charge bigamy civil that necessary to establish it in a (cid:127) criminal prosecution. The evidence of Coxe Bellechasse examined, and also relating to the parentage of Caroline Barnes. 555 v. Hennen. Court County Orleans, The effect examined from the of New of the record from Des Grange; which Zulime for a divorce and also of the testi- prayed prove Clark. mony marriage not, Whether she married in faith or good weight testimony is that Clark did so; Mrs. Gaines entitled to inherit her therefore father’s estate olographic will under of 1813.

This from the Circuit an Court of the appeal United States for the eastern Louisiana. district

The case had before this been frequently court in various Peters, 404, in 18 then in first, 15 Peters, 2 aspects; 9, How- ard, 619, -Howard, 552, Howard, In 473.. some of these made extracts are from the record, reports large illustrating and fact then under of law the points consideration, and also of them. All evidence of this support past history the notice of the court again brought argument of - cannot be ease, which the recited in present again the present wishes to Ireader who The understand all the report. points -in the are discussed opinion which court must turn volumes above cited, and follow the preceding back ease n successive He will its developments. then be able through remark in the opinion of concluding the court, appreciate is follows: which some hereafter American distinguished “When lawyer shall

n to write the from retire of his practice history country’s will be this case him as the registered by most jurisprudence, in records of its courts.” remarkable Mr. and Mr.

It Gushing Perm for the argued appel- appellee. and Mr. and Mr. Janin Hennen for the lant, n in consisted a The record of thousand printed pages, this.case and the records eases were introduced, also, preceding is saved into this.. from almost task reporter hopeless of the counsel this wide through following range inquiry' examination of the minute of the case contained points in court Mr. Jus- opinion opinion dissenting tice Catron. ' SUPREME COURT-. v. Hennen. delivered the of the court.

Mi’. "WAYNE opinion Justice case, the facts that the We will first some of this give wills, has of Daniel which Clark out. grown litigation them Without it could not be understood. be. may correctly of five to this court. appeals have been subject They It from controversy This is the sixth. differently presents before. It also for decision points it presents what has raised either of cases. Some which were not preceding will be mentioned were, however, necessarily those illustrate their'connection with this case. in this opinion our at all so considered without into They may coming heretofore the. concerning conflict with ’given any judgment n antecedent Our conclu- appeal’. parties rights one of on account of sion will differ from them testimony in that, case was not but will which not be contra- this we'have and because information this, dictory; concerning then which relied we shall exclude téstimony upon, piece as inadmissible this, purpose. for.any five Four of the decided this substan- court appeals Mrs. The fifth was in favor of Gaines. adverse, tially re-examination then anywise excluding only point same use of the is ruled which new. testimony, connection, both have a dif- Considered us with impressed in. of the status of Mrs. Gaines’s ferent impression legitimacy ' that which court did not then think was sufficiently now Now we been. she here think with a proved, b^as her cases have not had before. She comes support Court of with decision Supreme Louisiana, directing, the will of Daniel dated at Clark, application, as set in her Orleans, 18,1818, forth New should July petition, his last will and testament, and be that it should recognised'as as executed such. In that recorded and her ac- be father will that his beloved then in the knowledges Myra; family living is his and Davis, Samuel B: and only legitimate daughter, all the real and estate, to her which he personal, of bequeaths die to the of certain subject only payment possessed, might will. named legacies of that will

Her was first addressed petition probate 1860. 55? Gaines v. Sennen. court of Orleans, district New the second Judge to ' presided. N. Lea J. such a will had been her made

After asserting as set out contents were its recollected father, other it, had read and by who persons whom it witnesses with testator, shown whom he of it in spoke been last will life, his and testament, last moments them to daughter,' Myra, take legitimate charging favor them and would found locked in a it, care of telling up which he a certain it, placed had. room trunk, describing his house. n Thewill 'is then stated to have petition been olo- is, written in her father’s altogether signed graphic; seal same; with his attached to the that- imme- handwriting, his death searches'were made after it; diligent diately found; that it then be has been not it could since, mislaid, or lost, destroyed. that it had that when her father declares,' died

She then she was a Orleans, with absent from New (cid:127)minor, Samuel B. living whom and whose she.had been confided in Davis,, lady took Lea her cognizance petition, Judge pro- year its with ceeded exactness throughout pendency great judicial caution, and, as shows, rcteord with wh.ole .official one concerned in every liberality resisting application, denied to the any particular without petitioner n rights. however, decided finally

The Judge, against sufficiency the will to establish to the proof according requirements Code Louisiana, Civil but without prejudice to renew her petitioner such application, right be sufficient to establish an will. proofs might olographic for a trial, new denied, She applied being an' Court, solicited that was appeal Supreme allowed. tried the case. It Court differed with Supreme Judge

Lea as which was the Code to estab- proof required by lish a lost will. reversed the It destroyed olographic judg- below, ment of the court and decreed that will of Daniel SUPREME COURT: 558'

Gaines v. Mermen. on 13th should Be Clark, dated as July, recognised last be testament, will and ordered it to recorded and such, it be executed as will to'the posterior being May, Relf and Chew had 1811, which presented uuder probate, had taken of the possession Daniel they property which had of it to the entire Clark, exclusion disposed of Mrs. from, it—an estate any shown : part by proof inti’oduced the defendants, cause regis- or inventoried short time tered before Clark’s at death, seven than hundred thousand more dollars, which Clark interested, and an estate and Coxe exclusively belonging of'two hundred Clark thousand ninety-six dollars. to the decree But to return of the Court Supreme establish- 1813; it must understood, the will be that its admission ing exclude, the will does probate of' one who any may the will to contest with Mrs. desire Gaines from it in a doing or from direct means any of defence proceeding, by way using answer or whenever she exception, shall use the probate of title. And muniment' does not probate conclude Relf other Chew, parties interest so, to do having any will, when it be shall oppose set them, up against as the such in like cases. permit It was. law.will defences with those of the-will of qualifications probate 1813 that tried in the case was court below, have been they in our minds in the trial of the constantly here. appeal the rendition probate Upon Supreme Court, filed her bill in Mrs. Gaines this case. It shall stated fully with the defences made hereafter, it. against so, Before due to the it- merits of the doing controversy decisions to advert to court'of the probate the. second that, Orleans, district of New and to Court Supreme inore than has been it, minutely done. reversing Especially, are too, as coincident our conclusions tes- Mr. Clark of his execution timony regarding olographic ' and of the concealment will or destruction of it after death. Court statement of the Supreme adopts prepared of the case it was facts made Lea the court by Judge TERM, 1860. ob9

Gaines v. Mennen. never been below. Its has denied one of the accuracy by any interested nor one else. suit, by any parties as «“The It is follows: that on 16th petitioner alleges, the late Clark, father, of Daniel her departed August, life, on 13th of executed an previously, July, having and he testament, which her as olgraphic recognised wi.ll his and constituted her univer- legitimate only daughter, the will sal That written, dated, and legatee. wholly of testator, and was left signed,' handwriting among residence; at his his that after his death search had papers it, been made for but that' it was not found, that it had lost, or mislaid, been destroyed.”

The learned then “To entitle the Judge proceeds: petitioner a the existence judgment recognising validity that she should will, establish necessary it affirmatively, by as such the law that Daniel testimony requisite, deems Clark did execute a last will containing testamentary as dispositions liqt forth and that he without petition, de- died having or revoked it.” “That for the stroyed looking testimony such a solve whether will had might question, ever a executed or not, been reasonable would inquirer naturally for information to those who were turn most intimate with the deceased the latter of his life, if part especially, they were could be to those who with him in found, the last mo- of when the hand of his‘existence, ments death was upon him, if had no interest in his into directing property any par-, ticular be channel, considered the best and they might most reliable witnesses that be it could aud appears produced; character preciselytestimony petitionerpresents of then support application." Lea “Boisfon- Judge says: taine had relations with the business deceased which brought intercourse; them into and that last for the two frequent days his life, moment his. him. death, he up n la That Croix and Bellechasse intimate personal Be friends Clark,' were with him before death. shortly All of these witnesses concur in that Clark said he had stating a la made will and De Croix posterior says, Clark in his sealed a presented parcel, to him cabinet COURT. SUPREMÍE v. Hennen.

which, would be will, last and that it declared to be his he sworn, De la also had- a'small black trunk. Croix found 1811 for the will o'f after Relf probate, shortly presented .had that; will that the existence had made a that Clark posterior for an and he or- known to several of was persons, applied it, the court obtained every notary der commanding .of not been de- if such document had Orleans to report New swore one of them. JBellechasseand Mrs. Harper posited'with ' then read the will. The expresses that they Judge such existence that the to-be, presumption conclusion legal or re- destroyed, made and that its been out, paper .had and that there joiced rebutted, testatorhad been by’the satisfactorily Belle- in the record to the credibility impeach was-nothing, district Mrs. In these judge chasse'-or Harper. .rulings its said, in concurred, and then delivering Court Supreme .thé the' that had to do to whether inquire they opinion,-all had with the of 1818 been'proved conformity will article ” 169 of the old or 1648 of the new. No. .Code n .' articles thé of two witnesses when Those require testimony declare will shall be their who.shall presented probate, the. testator, of it as been written the wholly by having recognition him, and sealed and their declara- if been by that signed h^d ' him his life- that often seen write ti'on they sign in. a from of sec- It was such requirement proof, time: rejecting ' that the Court refused District testimony ondary altogether? refusal, a of the will. such Mrs. for probate Upon petitipn to the- Court. Supreme appealed “That court said: ot insuffi the-question That the alleged in the case'could be determined an by ciency proof only the article was to be at all timesand pursued whether- inquiry; or whether were not cases, alt directions when they merely ' will itself was and were presented probate, inapplicable certain when cases, restrain court-in reason of-the to by or destruction of such an second loss jn'strument, taking of its the best contents, as which the nature of the ary proof case was-susceptible.”

The. a then, course sev- by cohrt by supported reasoning, eral cases from Louisiana that Reports, determined

DECEMBER.TERM, Gaines v. Hennen. event a will destroyed, $d-' secondary proof ..of missible to in'Louisiana contents,, its prove it to carry that the probate;, articles and 1648 that the contemplate itself be should with the presented, execution, its Will proofs done; when that can be- probate, that judge no one would contend that the seriously calamity-of its-destruction of-the deprive establish it sec- legatee right .should evidence; “for such the ondary law, was' reward-would and would -be in- villainy, offered an always power a-jyill,” heir to unscrupulous execution of prevent the -It then meets the assertion 1648 and 1649 of the. directly, articles. Code production the will require-the. in order be' it'might it; witnesseswho : recognise position,.and denies: identified con-,

affirms the absence of-such the evidence witnesses an will cerning unproduced, destroyed olographic might.be The articles laws; are'not complete. negative declaring .that no other kind of shall be admitted.' -it is “And doubted proof if much an made here had some acci- very will olographic dent been before whether a destroyed legally proved,’ being it, witnesses, identified two who were able swear copy .by manner, to’the but genuineness pointed original law, would considered sufficient compliance .be Such, Code.” 'was fact, provisions petition- er’s case Such is the’-law considering.. analogous The cases. law cannot have been inteuded an im- require and to leave a so circumstanced possibility, without a party remedy. doctrine of common law is in accordance with view taken of Court by Supreme Louisiana concerning (cid:127) It

lost deeds and wills. has been acted in judicially upon and American cases. It was so in the case of Dove v. English Brown, 4 469. That a a Carver, was suit lost will de upon real estate. was neces .of By vising statute New.Ybrkit the will will by three’credible witnésses. sary prove .The Brown, execution, as to its- one was of the proved sub by it in stated executed witnesses. presence scribing .He himself, James another name Mallory, person whose he that he. no doubt remember, did not of his a being but had. -yon. -xxiv n . COURT. SUPREME

Gaines v. Hennen. all the eviden>e said, the court That, credible witness. - There are under the circumstances. which could be expected in, our American Re effect cases to the same 'several -other Wills, 1 Perkins’s edi vol., on the Probate Jarman, ports. t note cases, 4: many, ion, upon authority p. says, revoked, is de will, lost, executed and not if a “That duly testator, of the with mislaid, either in the lifetime or stroyed, out'jjis it be death, after his admitted to or may knowledge, itsof upon satisfactory proof probate being given of its contents.” also But mislaid, 'soTost,. destroyed, . of a evidence will be to entitle parol alleged party give evidence of its- there is not conclusive abso- where destroyed, n .lute destruction, has must*show that he made-dili .the party after the those wheré it search and places .will-in inquiry gent found,'if most existence. Under its rea would probably Louisiana, Court of the au sustained Supreme soning, States, and in admitted thorities. United England -to will of 1813 of Daniel Clark probate, olographic declaring and reversed the Louisiana, the law alsoisuch was judgment of Mrs. Gaines. of the lower court petition dismissing Court, :In virtue of Mrs. Gaines Supreme .' that”decision herself this declared her father to be his court, to. presents and universal only Wewill legitimate daughter, legatee. this show the part opinion legal effectof father's another testamentarydeclaration. statp,- will- now as it be done in

We such a briefly may case, bill-; respóuses allegations the-essential averments;, defendants and their proofs support and such are relied complainant’s rights, them' them; defeat issues made bill answers, .the legal relied both in their the-points upon by parties' arguments ' .case, in defendants, The bill was several Duncán N. against brought them;' answers, their Hennen oue’of separated being They Hennen', after the claim of «title to the giving property sued, admits that was a of'the estate of part which..he Clark, Daniel the answers filed the other de- adopts xs fendants was tried defence. The cause part 1860. v.

Gaines Hennen. liim the bill was dismissed respect only, the court below. From that decree Mrs. Gaines to this court. appealed

After declarations as to the'character specific in which she and her to do so as the sues, child right of legitimate legal father and his universal she that he had legatee, acknowledges made will 1811. That he provisional year then made . mother, Clark, universal Mary and named legatee, Richard Relf and Chew his executors. Beverly That had they it to court for that1 presented it had been probate, allowed, and that as executors, had taken they, of the entire possession estate of all Daniel'Clark,'and such separate as he claimed life in ‘with Daniel copartnership W. Coxe. It his. then assumed, that the will of 1811 had revoked the will the 13th That Chew was July, dead; that all the which the of the will power probate of 1811 legal had given to Relf and Chew had that expired; Clark was Mary dead, that her heirs and reside legatees beyond jurisdiction court.

Mrs.' then states, language equity pleading, (cid:127)the defendants pretences to her opposition claims. as, Such that Relf and Chew sold them the as testa- property executors, of Daniel Clark under mentary the will 1811;

n that for a full they consideration, without bought notice any of the revocation of the will of or that other person interested than Clark; property that the Mary titles had from Relf and Chew could not be they invalidated will, revocation of that and that of action right against them for the in their if property had possession, complainant ever had were barred is, the acts any, by prescription —that of limitation of Louisiana. It is then the com- charged by Relf and Chew had no to sell the plainant authority prop- Daniel when Clark the sales made were That erty by them. made an had never decedent’s inventory property court before the-sales made; probate were made without notice,

sales an inade- any legal consideration. That if Relf and Chew sold .under a quate Clark, executors, not as power attorney Mary Clark's insufficient its terms for such Mary power pur- COURT. SUPREME

Gaines Hennen. estate of Daniel she had no power rights pose; that Relf and such a and Chew had not to power, Clark give in a as to be court themselves proper Mary recognised caused done, to have before as they attorneys, ought they Clark’s of of to sell the-estate Clark. part any could right acquire knew, the defendants when they then She charges bought she had for,¡that sued applied early year the property will of 1813 her father’s to probated by have olographic 1834 Orleans; that the defendants knew of all at New court proper of and Chew Relf assumptions and proceedings the,irregular her and it father, the estate of of their sales of m respect knew, defendants when -that authority; without which she had recover the suits her brought bought, estate; and that her suit was her father’s present rights the will of 1813 under probate Supreme brought of Louisiana. Court defendant, answers for himself,

Hennen, adopting defendants, the other states that the answers property is mado he was sued to a according plan designated 11, 9, 10, as lots on between 1844, square comprised' Circus, streets'; lot, each Poydras Phillippi, English 23 feet 2 11 inches and lines between measure, containing par- lines. allel make the other defendants the same

The answers admis- as to their derived sions titles through Chew and admit the Relf and Mary'Clark; próperty separately Clark; them to have been claimed part estate finally make an averment that Mrs. Gaines has not under the law which, status birth can Louisiana-, civil take the her to her father under the will of property entitle it had been admitted to she 1813, probate, though declared in In legitimate .been only daughter. the defendants declared that words, she an adul- other terous bastard. ' state books and documents which It are is-proper in this case. evidence record of Gaines

1. The' Hennen. present the suit 2. The record of No. printed Deccmbci 1860. Gaines v. Hennen. Gaines v. court, in this Relf Chew, Howard,

term, 472. in the courts of entitled probate

8. The Probate proceedings Record. aecouut-books and Chew, commercial Relf kept by relate to their transactions estate concerning

professing Clark. Daniel enumerated, as it has been into testimony, This brought for as much as it case parties might by agreement both sides as to its admissi- worth, exceptions by subject the trial of the cause. bility or formal were made in the immaterial points

Several argu claims set out this bill. Such as, to defeat ment one but ratione was, case equity jurisdiction, before the court of the probate materice,exclusively cognizable Next, Relf, Orleans.' that Chew and of New district 2d should have been made Clark, heirs, or that parties; .her Mary Clark’s title to the sued of Daniel for .property the sources had in the bill addition to the manner it had set out not been that the in the probate Again: been proceedings enumerated. New .Orleans 1856 are of

second yet pending district.court and on that account that the same undetermined, court over the estate of Daniel Clark. exclusive "We' has jurisdiction these formal and find them examined to be objections, have the cases cited in of them. áre support unsustamed by They case, the actual state of the and are to insufficient' inapplicable The of it its merits. same arrest the trial upon objections in the Circuit but were Court, also were disregarded, urged the as unsubstantial of defence. points we by judge, presume, Chew, Relf and and the heirs of the Mary As to objection the it was bill, made we observe had not been Clark, parties is a either of them to make so. present not necessary defendants admitted the for the property suit of. recovery of Daniel a of the estate Clark. Nothing have been part and Relf. Their executo from Chew be recovered sought at since.been will of 1811 under the functions long rial as involved their transactions the bill directly end. Had an a versal uni upon legatee, complainant, executors with .as. COÜRT. SUPREME

666 Hennen. Gaines v. made that, with a to be parties, of proper prayer showing that, done court have allowed it. But not having might been have not defendants cannot because Relf and Chew urge, a made defendants with should them, they escape a trial on the ness of part their-possession rightful be; or that Clark, estate of have admitted it to they they it under which the -law not circumstances from acquired had the sale had notice of the they presumes irregularity made Relf and as it was Chew. Nor was necessary to made Clark the-heirs'of Clark be parties; Mary Mary never for the sales had any herself pecuniary responsibilities Chew, as of-the"estate her son Relf and the'property to them face was its .attorney power irregularly and'was itself when executed, notice toJ defendants that - the sales made they bought, conformity law of Louisiana of a sales property regulating decedent. testamentary said in no

But it also claim could argument Gaines under will of 18Í3 until will of Mrs. set up' by be set aside. this shall Neither used language in 12 Howard, Howard, nor decision court such an or admit of such bear interpretation, will conclusion. of courts must be always The rulings considered' reference attitude subject-matter litigation parties And it. under discussion. will often relation point an case, now, as it is use be’ will illustration that.counsel when yised words' for a judicial ruling,, correctly to different state of "When applicable written things. Howard, in 12 that the will of 1813 cannot be said, 651, court was'with the destruction-of will it set up without that the latter had the- fact been .reference existing duly that it stood as a title to the succession of the proved, that the 1813 then Clark, of Daniel had not will estate a and on court of that account before been proved probate, as an inconsistent not be set up chancery oppo- could will of to the estate while succession probate sing And Mr. Mc- in full when Justice force. .1811 was standing “she court, for the Howard, says, Lean, speaking (mean- 1860.. Semen. Gaines, Mrs. then must ask for the complainant) pro ing 1818, and a bate of the will-of revocation'of the wilt other 1811,” “for no can while stand one probate a-previous adding it is unrévóked,” was, is we plain now meaning is, it when court recalls the of a will, say probate substitu another will the same testator made ting probate first, that the former becomes posterior inoperative, rthat the second is that under which the estate is to' admin be istered, without formal declaration court that the- annulled, it makes first no difference that a part .and the estate has been administered under the first probate. unadministered must be done under the second. Courts for cause recall or annul probate may letters, testamentary but can neither nor revoke destroy wills; though they may and often have declared that-a will of a posterior testator shall be aof recognised place will which prior had. when it was not known to the proved, court that the testator had revoked it. Such is this ease. The exactly Court. Supreme decreed that the will Daniel Clark, dated New Orleans, July 13, 1813, set forth in the be plaintiff’s should petition, as. his last will and recognised testament, and same .was ordered be recorded and executed as such, with the declara tion, that the will to does admitting probate not conclude atiy.' one who desire to may contest the will in a applicant direct-action. The decree of the court in particular law of the case.

It was also that the defendant and whom urged those under he claims were for valuable purchasers consideration without notice, and are therefore in claims equity protected against of tlie It is a complainant. defence when it shall good aas matter of fact. proved But in this instanee it is not only disproved defendants, introduced but by testimony adiriissions in their answers, shall be shown hereafter as.

this In our iü opinion. has no opinion objection standing case, the counsel ad- though argument mitted he had borrowed is a one its proper very good place.

"Weshall examine now the case the more serious points' COURT. SUPREME. v. Sennen. counsel, Mr. Mrs. Gaines the learned

made in by opposition Janin.

The first that her claim was barred was, by prescription. the defendants is that of ten relied upon by prescription estate, one a vacant pre- twenty years claiming years against the to bar of title, scribe a years faculty accepting thirty a deceased There the estate of a succession or person. being case, in this the ten no vacant succession years’ prescription of does not prescription twenty does apply, years attain her until or exist; Mrs. June majority Gaines did. not and her suit for hundred andtwenty-six, the'pro- July, eighteen 13th 1813, will made her father on the bate of the by July, her in 1834. When for that was instituted petition purpose was filed in a her first bill dismissed two after- month that time there was wards. From interruption legal pre- which the defendants have twenty years, pleaded- scription In now fact,.they recognise-the rely upon. interruption Iu their averment of their in their answers. peace- sued for since able they it, property possession bought “ had never been-disturbed in add, that they respect attempt complainant an abortive it,” her hus- except filed in their bill 1836. New Record, band to recoverit 47. Record, in their find them also We admit- answer'(New 54) refers to in as that such a suit complainant present ting her and her husband instituted in 1836, had been bill “identical recovery of it was property” object Record, 56, 57. It also New admitted controversy. nowin answer, the suit of the-complainant probate iu the will and to set annul the court to probate up June, on These ad- 1813-, 18iA brought claimed inherit- complainant are decisive missions and that the .that date, prescription ance early on the 28th had been ‘interrupted to run legally had begun first bill. of her 1836, the date July, Code, 3484, a of a legal interruption the article

By has called where the possessor takes place prescription either on account of prop- a court of justicf before appear is interrupted erty prescription or the possession, I860. TEEM, Gaines v. Hennen. before, demand,

such -whether the suit has been a brought or court of not. jurisdiction competent

The of the construction article of that upon weight authority is, of the Code that it intentional, contemplates voluntary, and active abandonment of the the suit, order to restore of a of In Wilson the case of running right prescription.

Marshall, Annual, 331, 10th the court said the plaintiff did. suit,

not dismiss the or consent to the dismissal. She lived a remote the mere State, and absence of herself part at a and counsel term of the when court her case called is insufficient, without other evidence, to convict her of having her demand. v. Peck, curator, abandoned Pratt 3 R., Lea 282; 250; 11 Rob., Dunn v. Duvall, Roswood v. Kenney, Annual, Mechanic 528; and Traders’ Bank v. Theatt, 8 Annual,469. the the

After of the interruption prescription by filing of.the. the defendants could bill no complainant, claim longer as be in that is possession faith, defined good Civil In article 3415 the in bad faitli is Code. he possessor who master, as but who assumes this when he possesses quality - knows that he has no title to the well or that Ids titleis thing, anil The must possessor vicious not only defective. faith, but bad belief that he is positive the true owner, title, and if he doubts of his validity possession is not the basis prescription. 2, vol. Prescription, Troplong p. 918; Ib.,

451, Ib., 444, No. No. 927: 442, No. p. p. 915. The not available in this case. prescription plea defendants further, But the aud insinuate that their go pos- session property, though beginning executors, Chew, continued afterwards under Relfand Clark, whose Mary to them authorized them to sell the power attorney estate Clark. When Rolf and Chew' will of proved received 1811, they executors, the estate of Clark with a of detainer for right and, for afterwards as one the eourt year, long probate their cause for the' permit upon application, might showing did extension of time. delay -reeeive- longer They, such an extension for three years upon’thei.r representation SUPREME COURT. v. Hennen. estate, time, nature of the difficulty debts, all its would of the estate sufficiency pay

ample that result-. them by delay accomplish enable were called to consider the proposition creditors meet ar- never fulfilled the to it. But the executors assented They benefit or for the either for. the creditors rangement, did ever make the will of 1811. Nor under legatees their transactions relative to court of probates return them, after until complainant estate Clark’s had.sued their ex- vouchers to receipts, without homologate then a small part. payments, except Shortly penditures, extension of time, an year after the application Clark, for a who power'of attorney Mary they applied in the will 1811 as named of universal legatee, sell the estate in behalf. The them to power authorize it, and under without notice to the court of any was given; to have been and the which filed in given, power ought "probate, in this case continued, as the to act testimony shows, it, they the estate of Clark, and to of both real executors, dispose as other copartnership, property property and personal, Clark, without ever received belonging separately so from the of to do court probate, that permission any obtained, as Clark had not been have been ac- Mary should as the universal that court of Clark. legatee by knowledged mistook their so; but they powers doing It may in a estate of Clark character, to be fiduciary received they and creditors, to their legatees according accounted Louisiana, and the law of for that are re- under they rights Besides', the Clark was Mary power given sponsible. that she the benefit of re- executors, those as might them faithful execution the trust for the they sponsibilities Louisiana as executors. the law of paid uhder by They were and acted moneys,’’sold property, received debts, throughout to the court from not were responsible they they if. and, or to Clank, letters their testamentary Mary derived shows, case without their in this trails-. record sustaining kind. vouchers any by actions settled the decisions of its in"

. is better by Nothing courts 1860. . v. Semen. statement an “that an execu Louisiana than extrajudicial by estate, due the debt to be does not tor, that he believes by court, a is the heir bound heir, bind the nor by approval R., ex claim, if it be made Lou. parte.” as to such that the admission genuineness signature Again: the curator of vouchers, filed succession by. support of, other his account, proof dispenses payment claimed; are made but when withoutan order such'payments must that the debts court, the eurator -show were really he will not be entitled due to credit succession, 12 R. Miller, the amounts so Miller v. A paid. receipt given to an of an administrator for account not evi payment due, dence if the fact of account due is dis being Thebadeaux, 4th Annual, Moore v. 74. So an admin puted. istrator renders an account is bound to establish who the items the, be held evidence, of it to strict may proof by par ties a formal their interested without on opposition Suc part.

cession of 4th 579. The Lea, Annual, account's of Relf and Chew were in evidence defendants, were put they used to were show, other authorized among they things, .that did, to sell the estate Clark-as and that aux they they for the establishment of the defendant’s iliary plea prescrip Such, however, tion. is not our and' but for use opinion, made of we not have noticed them, should them at all, are the bill issue of the-’ put thinking complain defendants, ant, or the answer as Relf and particularly Chew,are not to this parties proceeding.

We will now to consideration of tiiat proceed made point in the counsel tire defendant, but the’argument-by more Orleans, New as he particularly said representing city he did.

It was that suit not maintained, be be complainant’s cou.ld cause it was res this court in its in adjudicataby judgment Chew, case of Gaines v. Relf and in 12 Howard, 506. think

We do not so. That case is misunderstood tine by learned counsel. Then the went ttf-'trial the de- -parties upon mand of Mrs. Gaines for one-half of.her as the father’s-eslate. mother, widow, of her his and as

donee heir ofherfathej forced COURT SUPREME 572 v. Hennen. Gaines ' es- his Louisiana another the law of by four-fifths-of half tate. in of this court was

Her bill then hav-. brought consequence lawful Howard, had 550, in 6 that there beeu decided, ing faith, in Philadel- in between them solemnized good marriage same evidencfe was tried upon upon case That phia. ' in 12 the ex- Howard, was which the determined appeal is miscalled an ecclesiastical record from the what ception Orleans, in of which we shall church Cathedral New decided, 6 Howard, hereafter. Besides in much to say been a lawful between the there had complain- marriage and this court decreed that Mrs. mother, father .ant’s issue that at the time was the lawful only marriage; child, death she was was father’s of her only legitimate the character heir, invested-with exclusively forced entitled its his estate. was such rights in that case has never been overruled or im- judgment ' this court. It not was intended to be certainly by paired 12 for the in that Howard, shows, case in case report sat trial, who its their de- number of justices upon rendered, then to be as to that the cision judgment major- decree did not intend to overrule the in 6 of them Howard. ity as still force again It recognised majority sat this case our who consultation. The defend- judges Howard, 537, case of ant admitted that such a rendered, however, that it decree was was conclusive denying, that it affect their if it could upon ought do right; an so, it not have such effect in that aver- instance, ought the same as a matter of defence, the- decree was' ring about combination, and procured by brought imposition, fraud, between the and Charles Patterson. complainants That shQuld in a not court of regarded justice any purpose whatever, and that it had been consented to Patterson res enable the the same as complainant plead judicata contested. Mr. not Janin honestly litigation points Howard, he said that the decree in 6 when mistaken there- Howard, 537, case of been reviewed meaning so, overruled.' It was not hut one of that it had been only . 578'

Gaines v. Hennen. assented to who in Howard,: the justices judgment there had a declares that been valid between Daniel marriage .Garriere, and Zulime and that she was the Clark legitimate would that' not assent its. done marriage, child being he concurred in the decree in 12 Howard. when does, in 12 Howard .not, The decision either terms in- in. that no assert had ever be-'

ferentially, marriage, place taken and the Daniel Clark tween mother.' The issue complainant’s was, that case that at the time of the birth,' complainant’s was the mother lawful wife of another man, namely, Des Jerome Grange. was, therefore,

It essential to the defendants to rid of get decree which had affirmed the Gaines legitimacy Mrs.' of her father and and of and it mother, was at- marriage a contrivance as tempted by extraordinary its. beginning- in its result. it was abortive We will show what it was from n on record, account its anomalous only character, it is but because unexampled jurisprudence. After asserted the decree in'6-'Howard .had n the fraud obtained

been Patterson and General- Gaines, thus impeaching credibility Patterson advance, the Relf and defendants, Chew, introduced .him as their witness, Record, 590, 592, pp. exaim (Old 594,) and.he counsel, ined their first suit which Mrs. Gaines ' had recovered house and-lot from him. After stating about to be answer seventy, was-: “It was for a age house I ¡3an lot on which resided when the suit was I still brought; reside that house and lot, and have done so ever since the suit was Mrs. Gaines succeeded in the brought. suit, accord-.. house, of the court. That irig judgment lot belongs her, io but told me they would'not take it-from me. they General Gaines and his wife me in under gave their writing hands that would not me;, take the they that- property ho would make title has my good. property always mine, assessed as and I have on', the taxes it. I always paid most of the costs, but me paid is, paid Gen- they again—that eral and Mrs. Gaines. an There--was between understanding us would even costs, should suit be deci:' pay COURT. SUPREME v. Hennen.

ded me. same-offer to Martin.” made the They Judge against had made In his said he the cross-examination, witness best counsel, effort iu his with the aid of able to defeat power, was Mrs. Gaines her suit. The cross-examination resumed Patterson was asked the next 20th 1849. to June, look day, if A, marked and to state he knew the a document hand whether Gaines; the hf the late General to signature writing that, he had received or a his; was not whether it communi to which that was cation of copy, prior dil withdrawing v. Relf and in the cáse of Gaines Chew et al., atory17pleading to the merits of that case. answer The de your filing the fendants, counsel, protested against paper put being the that it contained record, false, on ma into the ground licious, parties no wise imputations against gratuitous suit. "Witness then answered, with that was connected Gaines; he had often received General letters signature had him, write, him and that he received and seen two of which was before he communications, three copy, case, and in that withdrew dilatory pleadings ánswering handed witness, A was then to marked the merits. letter to answered, the of it was He body B. hand-writing of it, he wrote and saw Gaines; when both General present it. Then and Mrs. Gaines ques General sign following trial of cause “At the with to the witness: your tion was put amake did not counsel wife, request your Gaines jounsel to introduce the record Mrs. Gaines to permitted all the Orleans of court of New proceedings from probate iu that of her court?” in the prosecution rights Mrs. sir; that, her counsel to “Yes, objected answers: Witness introduce the to record. and Mrs. Gaines to General I applied evidence all the possible, to me to get They replied it -would be remarked, General Gaines the better. stronger .1 then caused it as' have it as possible. to strong more glorious witness Here the cross-examination be introduced.” - to the the defendants objected counsel was dosed. relates which that part especiálly testimony, foregoing complainants witness, and w7iththe conversations in a judicial was done ‘proeeéding, details what" that' part Gaines v. Uenne'n. it others, on among incompetent grounds, make themselves, evidence for and that what complainants should beshown beendone record. injudicial proceedings And from that accurate of his profes- gentleman’s knowledge sion, indicated as it has- been the two lines under- just we not zeal of scored, say professional may advocacy it? for his inter- of us what-has been may best forget but an to invalidate a Patterson attempt judgment rogation of the most interested him testimony party against annulled, without made any appeal And Patterson defendant’s record judgment? witness. have not done we yet attempt

But prejudice Mrs. Gaines that her suit by with suggestions the rights and and fraudulent, to extract from pretensive Patterson of his own or-confession him some proof infamy. in and examination chief the the

After cross-examination and the and by witness, both completed' signed had had concluded had announced their they exami- counsel counsel for defendant- made nation, objection another of Mr. Patterson, cross-examination it insisting examination in chief be considered the com- should by which the defendants had the of cross- right plainant, ; and the witness was recalled on the examination following effort was then made Every for that purpose. by many day extract from him some inconsistency questions with without success. But examination for his first fortunately he removes the of fraud and character combi- own imputation and Gaines, between himself General nation give a the benefit of collusive the circuit court latter judgment in his answer to one himself, of-the by having, ques- against A tions, alluded to the documents and which are B, again as conclusive there was now presented charge against trick or contri- them, between ever any combination suit to vance, or deceitful or compact, by' any agreement to defraud third one the other any per- be brought by against Record, Document of his See Old son pages.1018 right. witness was and for letter B. And when the if’

A, asked SUPREME COURT. 576'

Games v. Sennen. he had not been General and particularly requested with the exertions, Mrs. Gaines to use his best aid of the best he could to make defence in his counsel every employ, power Yes, suit of which was he'answered: and to this susceptible, so; did and I considered the I General agreement on their as an act of out Mrs. Gaines liberality part, growing to a trial with some a desire to come one or more speedy on the merits of the case. the defendants between an indiscreet General It was arrangement Patterson, not to be tolerated in a Mr. court of justice, of intentional not one deception contemplation but And never have it'would been made undue advantage. in their answer to the Chow, Relf bill of subsequent not been them, they complainant against erroneously Howard, the decree sixth advised establishing Carriere, of Clark Zulime marriage legitimacy res Gaines, be used as judicata Mrs. defend- might against the 20th in the suit of Jauuary, ants now the decision in' make that case res judicata attempt against of Mrs. Gaines this which wo are now claims deciding. was decided the case in 12 what Howard? But It is sta of the decision, “that’ the ted, in first and most language the issues presented important legitimacy that.of Then are stated the Mrs. Gaines.” under which pleadings made. It shall issue was given language “She that her father, decisiou: Daniel Gaines) alleges (Mrs. married Nee Clark, Carriere, to.Zulime city 1802 1808, or and that she is the le- year Philadelphia, and of that -The only legitimate offspring gitimate marriage. that Daniel Clark was married Zulime at deny defendants to and or at time other time'and place alleged, place. at the time the that, further aver And is marriage alleged taken the said Zulime was the -lawful place, to wife of des If the mother one Jerome Grange. complainant lawful wife of Jerome des at the time Zulime was Grange married with Clark, to have their the is alleged marriage immaterial whether if did void, it is or did not take merely we to And the propose is,'as question place. examine first DECEMBER TERM, 1860. 577

Gaines v. Hennen. whether Zulime was Des 1802 Grange’s fact lawful loife 1803.” Then follows recital of the the. between Des marriage Zulime, with the record of Grange it, on the 2d Decem- ber, 1794, admitted bn part Mrs. Gaines. To rebut and overcome the established and admitted fact of that mar- introduced complainant witnesses riage, “that prove, to Des with previous Zulime he Grange’s marriage law- another woman, who was fully'married when he mar- living Zulime, ried was still his wife, and -therefore the second void,, ivas. and this issuewe are calledon to marriage try.” Then it is said that “the with marriage Des-Grange having it was established as been proved, prima true that Zulime fade lawful wife Clark, was and the onus of proving had a former wife Des when he married Grange living Zulime oh was she was bound imposed the'complainant; prove fact that affirmative Des had committed Grange bigamy.” follows the recital of Then testimony complainant Des became a prove Grange bigamist by marriage “ then, mother. And to meet with her and rebut this evidence, introduced from the the defendants records of the Cathedral diocese, to which New church of Orleans at that belonged an ecclesiastical Des period,' proceeding against Grange insist is the which same to respondents which com- bigamy, It is set out full in refer.” the decision, plainants begin- Howard, in 12 at inclusive. page extending ning Coxe, of Daniel W. for a testimony Then rebutting long Clark, in business was introduced. He time copartner between connection Clark and an antecedent Zulime to states with a confidential their letter marriage, alleged time Zulime, in which was delivered it was stated him, he, Clark, and that was the father she pregnant, further, that he her would under child; requesting put and furnish her with physician, money respectable care of fur- Philadelphia; confinement stay her during Barnes, child, who Caroline to a she birth ther, that gave name of Clark, went Caroline before marriage who 1802; and he fur- related happened has been what in in Philadelphia was not that Clark states ther xxiv. von.

578 SUPREME COURT.

Gaines V. Hennen. New and returned Europe August, gone was A Des intro- Orleans in 1803. letter from early Grange 1801; also a suit for Bordeaux, alimony dated duced, at July, which will be Des Zulime brought against Grange is said: “This is sub- further noticed in the Then it opinion. on sides on which the the evidence both question stantially not lohetherDes was or was Grange guilty bigamy depends, are- Maria Nee Carriere 1794. Julia Objections marrying evidence, and taken to several of this especially portions Des suit record Grange bigamy respects against this is followed in court.” And in the ecclesiastical though able, the decision commeutary searching by suggestive, defendants, made testimony objections upon connection and compar- that of complainant, by was deemed the law' of the two, ison of what upon- all of relates that Des case, it to disprove exclusively Grange had a he Zulime. wife alive when married married-, was case, conclusions in that which were seven The announced It Howard, 539, show it to been so. number, decided,” and said “concludes this contro- “the question and Zulime, The factum between Clark versy.” marriage Mrs. as both Gaines, had been decreed and the legitimacy disaffirmed, in- court, then either directly is, all that was it said about “that the decree ferentially, court in Patterson’s- case does not affect these defend- of this reasons: Because were no ants, it; two parties it was 2d, because no earnest and, controversy.” made is our the decision the case in 12 It in. opinion intended w’asnot reverse the decree in 6 Howard Howard, res cannot be so to the case we applied judicata now .are trying. will show the difference as to

We now character in which sued in which does, Mrs. Gaines then aud that she now as to Louisiana, the law what constitutes a connection with and what does not. res adjudicóla, one-half, her demand and four-fifths first,

In was for when he half owned' father died. another property one-half, as the of her mother to the then claimed donee She I860: Gaines v. Henntn. and as heir her half of to four-fifths-of another forced father lxis estate. she Now claims as universal legitimate legatee 1813-, child of father, under his will of the 13th which July, has been the admitted to of Louisi- Court probate Supreme ana, and as such. ordered to be executed

The eases difference'between the two is which the that just law of the Louisiana will decision in first to be the permit her in a res pleaded this case as judicata. against It is declared in the article 2265 of Code, the'Louisiana “that the takes place authority thing only adjudged with the what was the The respect object judgment. thing same; demanded be the demand founded must the must be on the same of action; cause the demand must be made between the same and formed them otherin the each parties, against same quality.”

The case in 12 Howard and now under our considera for, tion are dissimilar as to or what is sued parties things called “the is not be suit now object judgment.” Mrs. Chew, and Relf and herself Gaines but between tween. as and Duncan N. Hennen as Noth complainaut, defendant. was said first suit of the claim of under Mrs. Gaines ing the will which she sues, de now; upou every particular tailed in the article are 2265. There differences between her cause of action and that de present made, formerly mand now made is uot between the same or formed parties, And, each in the same therefore, well- against quality. upon 2265, settled article also principles-coincident it,of that was said or done in the case in independent nothing 12 as she Howard can her claim now it. We prejudice makes authorities con give position, they may sulted, able, wdthout for want to show their time, being ap 585; 1 406; extracts. 24 14 Wend., Peters, Dana, plication by 109; 27; Stuart, 3 2 464; Wheaton, 109; Sim. and 6 Wend., 565; 360; Preston Cranch, East., 346; 4Gill and Johnson, 3 7 361; v 10 Slocomb, Annual, 1 Reports, (Louisiana,) 42 ; 465; 727; 3 10 3 Annual, 682; Martin, Martin, 530; Annual, 7 And Burt ruled Reports, point precise “that the Cowen, defendant-might Steinberger, 563 — COURT. d80 SUPREME v. Hennen. shown, it' he had title could, that since for- he. acquired than trial, mer title other had been any passed n in the former trial.” upon areWe article satisfied aud cases fully from the courts, cited Louisiana aud from the English that the American res reports, made objection judicata, recovery case, without complainant against in law. foundation We have reached the now last and most important objectiop made complainant’s But before against recovery. discuss- we must directly, dispose ecclesiastical record, ing which was much relied argument evi- repel of her dence establish fact that the legitimacy, mar- between her father and mother was unlawful, from her riage been then the lawful wife of Jerome Bes Grange; words, other that Bes not did commit when Grange bigamy v.aich she her, he married not released by con- with and him, relations had not the to jugal right marry any who was free to other man contract marriage. have seen that were taken exceptions

We to the admissibil- that record as evidence when it was first ity presented by counsel the case before the the defendant’s Circuit Court. were renewed here. were con- They appeal They when it the defendants introduced tinued into this again case, before us to be a and it determined as necessarily question whatever have been law, heretofore, it either may thought or counsel. judges first remark it is, Our canon concerning admitting as sanctioned law, Rome, church of was in force in- at-the time of this a Louisiana was mere procedure, assump- without its tion, tyrannous authority beginning, against action; It it,of and its was a coram nullity, object irregular before the canon who issued it. The non judicc, presbyter' do was vicar who assumed to so or canon general governor He of Louisiana and the two Floridas. of the bishoprick see, of a vacant without presbyter delegation canon only from'a to him bishop commission deputation represent had He no in his officesaud canonical power spiritual powers. 581 1860. Oaines v. Hennen. in his of a church and pastoral particular congregation charge either arch- a Nor would prosecution originate bigamy. , Louisiana, had there either then in bishop, bishop vor do at that time of ventured to so condition and ordinances of ecclesiastical royal especially practice Spain, a its And such in-their possessions. application foreign derecho, de a was direct violation Instituciones procedure D. canónico Americano El Rev. Sr. Justo Donoso. por more than hundred it-had existed for inquisition, and into in France was introduced Greg- Italy, Spain by years 13th It encountered about the middle of the century. ory-IX, ex- there. at first attained a no It prevalence opposition and was before, than it had exercised tension power larger under became an united on the increase when Spain kingdom .of the bull Isabella. authorized by Ferdinand and They And in their States. IV establish Sextus inquisition kinds, of heresies all then it was invested with jurisdiction Judaism, Mahomedanism, aud offences also of against sorcery, nature, tem- them, with .from power punish polygamy, and- beuito severe to the san confinement and penances porary had exercised de that time- Before inquisition the auto fé. creeds. En- both as to' persons jurisdiction, capricious voh, art. Britannica, edition, Inqui.,,page cyclopaedia were made new form it its met opposition— Attempts In its to restrain Castile Arragon repulse authority itas office, encroaehed'upon deprived government holy Its ancient and of of their many rights privileges. the people so and however, upon triumphant, aggressive became power, it was resisted of Spain, Kings authority by the ro-yal inas its possessions. well foreign kingdom we shall enter It cannot be chronologically expected what has been said just by á detáil. will verify into such We ordinances. of and from the laws Spain royal distinct citations that of which we shall cite is first of these ordinances The Madrid issued at on I of Germany,) Charles Spain, (5 1, livre titulo Indias, de tom. 21st Leyes September, $ - (cid:127)10, page mines The twelve in Spain .years

Charles been about hsfi SUPREME COURT. Gaines Hennen. "West, of the to throw their treasures into begun Spain were essential to the of the They accomplishment and political and military to his necessities also. designs” King, Com- made plaints constantly being rigors inqui- the Iudians in sition dominions, western and upon bis who had to them in subjects emigrated numbers in large It was said but for causes pursuit such gold. yield have would determined to re- gold larger. King strain office its aud holy issued his jurisdiction, decree 1530. We September Foulhouse’s give Judge transla- of it: “Wo officers, tion order sheriffs, police attorneys, aud other officers ministerial and prelates ecclesiastical Indies, islands, our West and ocean, continents judges along, to arrest not or issue any execution layman, any him against whatever; or reason and we property, any order all. notaries, seal, not clerks or take sign, any deposition to the same, with or for reason thereto regard any relating; whenever ecclesiastical shall judges judge necessary or an execution imprisoned issued, person shal.' they aid of our secular who shall royal justices, pray-for grant And all to-law. vicars and ecclesiastical according judges observe, this aud it, shall order as is comply prescribed law, under status and penalty losing privileges Indies, there held enjoy as for- being aud to the same. And of said strangers anj” eigners attorneys, sheriffs, officers, clerks, notaries, other who police shall be forever exiled all contrary, Indies, do the of our shall and all of their be confiscated for the goods of our profit treasures; aud we direct and hereby empower all of our royal settlers, and all of our subjects to consent justices, and let the thereto, so, too; officers do attorneys executing ordinance observed, and we order any contrary that^tliis custom notwithstanding.” of Charles followed by The ordinance another of his declared, 2, which “that whenever in our sou, Philip royal aid indies the of. secular arm shall be courts of the asked and ecclesiastical either an .the arrest prelates judges, demand shall be execution, the and not or toL petition, TERM, 1860. 58a Gaines v. Hennen. These in the re- he royal found requisition.” ordinances.-will in the Indies.- were law copilación declared a of Don They Carlos one hundred 2, after and thirty years pro- they to be laws, on the'Í8th 1680. See mulgated, existing May,.

the law to that effect the Titulo in Primero Libre preceding 1, Primero, fo. de Indies. Recopilación Leyes They had their edition of the since. places every recopilación Indeed,- were never and were in they practical abrogated, in all of. dominions in America until operation Spain she them. lost establish canon, Has-

They satisfactorily presbyter when he issued his set, Jerome Des prosecution against Grange him, that he so for did to imprisoned contrary bigamy that his whole a matter was law, proceeding nullity, evideuce secular inadmissible a and, such, record de de ecclesiastical court. los nos de Recopilacion leyes rey Andres, Indies; En Madrid, 1774; de las por ano. Ortega, Edicion, Tercera page other ordinances what

But there are has l’oyal establishing of that be- said respect nullity procedure, just been bear of the ecclesias- cause directly upon incapacity tical prosecution originate power bigamy.

. we cite .them which shall .is a cedule The first of March was declared that 1754, which 19, polygamy crime take in which the nature, a mixed royal tribunals'may cog- this that if the instance, nizauce in the first qualification, accused of her- wishes punish suspicion inquisition to it suffered the he shall' be after having ‘legal esy, remitted tit., de not. 2. Indies, 19, c. pénalties. Leyes this was modified.in Charles But cedule leaving crime, and reserving only inquisition cognizance'of informations, to take courts the secular power him, to the inquisition. arrest the in order to deliver accused who ascended This made concession was King, critical, the conciliation throne at á requiring peculiarly period to.meet the new pressure every kingdom agency and suspicions discontents difficulties, and to political allay - He became a revolt. himself, subsequently agaiust COURT. SUPREME v. Hennen. the with to from inquisition, opposed charged being having for several where it been on the throne of Naples years, introdueéd, never been the resisted its having always people establishment over them the the did not restrain the

But of prudence King inquisition in that and in from of its other the’assertion jurisdiction par ancient and ticulars to the offensively rights Spain. usages to its it invaded the In its extend au power, eagerness royal and stretched cause in the its,jurisdiction thority, every with connected ecclesiastical or discipline slightest degree it, and he was soon The resisted furnished punishment. King a cause so. The taken inquisition doing the a instituted an the auditor of old army process against who was accused of the which the jealousy bigamy, veteran entertained the was fact inquisition against revived. King a d’Aranda, used it to de minister, Ilis obtain royal- vigilant the to be restored to cree, the process against bigamy ordering It the civil or secular courts. also enjoined upon inquisitiou with the to abstain from secular the interfering proceedings confine itself to its functions courts; required proper “ forbade it to defame the apostacy heresy; prosecution were his vassals before previously with imprisonment said commands the-inquisitor publicly convicted" general'to. the laws of the to observe inquisitors require kingdom.in kind; all the further, tribunals, cases of King’s royal ordered to keep obey decree, were justices, judges, violate it and to those who should manner what punish of3, This the decree of Charles "the Feb ever. was fifth in his 1770, cited Foulhouse opiuion upon ruary, Judge Jerome Des of the against Grange, by nullity proceedings canon, Hasset, of the Cathedral presbyter assumption For the of the 5th Feb royal church decree New-Orleans.. the Novissima 1770, see vol. Recopilacion, 5, original, ruary, 425; Memoirs of ch. Spain, 3 vol., Coxe’s Kings p. 367. page of the inquisition respect

Thus stood jurisdiction for six by royal authority years. the crime restrained bigamy then made uncertainty royal Complaints TERM,. Oaines v. Hennen. cednle of the 5th to the February, especially respect extent of its with the interference office to power holy and for into cases of inquire .discipline punishment polyg- induced to a amy. council, call to dis- The toro King cuss different relations boundaries the secular between and ecclesiastical of the crime of cognizances bigamy.

result of that council communicated on the King 6th It was that a September, 1777. of it had come majority conclusion, act' of second time marrying the first wife alive, whilst .was who does so violates person ; n faith due tract that he deceives the marriage first; wife and order inverts the of succes- second wrongs sion, established the laws, aud of the inasmuch legitimacy children the second makes the matrimony, though of fraud and to inherit adulterine, capable their truly legitimate, parents faith of their account of the mother in on good contracting further, that the of that kingdoms Spain assembled marriage; had established the penalties Cortes crime in of against biga- should that they the commanding imposed by my, royal should and not be courts, embarrassed declaring in offence; also, he who their cognizance marries time, his wife first offends the being second living, ordinary in the curate maliciously to assist deceiving at a jurisdiction and that ón account there is null marriage, ecclesiastical tha.t into the to inquire validity nullity jurisdiction marriages; of done that it was to'be without but the embarrassing royal in their offence. It was then courts cognizance said also incur such the crime of a false persons may profes- sacraments, the of within sion the exclusively juris- which office; which was, the however, of to be holy diction exercised secular and the courts, to the reciprocally by.it prevent repeti- of the offence imposition tion which penalties belong and each, to from one to the delivery prisoners other to be tried. made’ to the Upon report foregoing being he order be communicated to the King, gave royal inquis7 cedule of the 1770, itor 5th general, February, office was not of the crimes holy impeded cognizance and and of heresy persons declared'subject apostacy, COURT. SUPREME v. Hennen. the violation bulls apostolic bad conscience by

suspicion with royal enforced Spain and had been received wag of them which the jurisdiction cases in consent, in those an was followed by resolution This royal office. the holy and and to the Alcaldro chancery other remitted decree, 1782. Novissima on the 20th February, audiences of kingdom 10; of vol. Note Ley., Reco pilacion, page Madrid, Andres, Edicion, Ortega, por Tercera council, which we however, of have just result The inquisitor. did not satisfy grand the particulars, given his assumed jurisdiction reassert all were made to Attempts its dominions. The its both foreign Spain plenitude, its last This was was on office great struggle holy its.decline. ' resided where Naples, for existence. long King with the same horror as was regarded inquisition among of the same he was Protestants. partaking feeling,, Though of his prejudices on opinions too prudent trample, that, or to make & direct attack Spanish subjects, against great He had witnessed the dan- of ecclesiastical authority. engine reforms shocking.national.prejudices precipitate ger He however beneficial. in-his matters adopted long reign' could be maxim which pursued only safety, per- the intended means to effect.' He en- produce only haps to check the soften the deavored "and oppressions, rigors, to circumscribe the.authority inquisition, thus pre- for time circumstances to total way its pared produce he was In of this seconded abolition. the’pursuit design of minister, and liberal the Florida Blan- principles, energy of The restrictions Aranda were ca. de principal gradually revived; and in 1784 the celebrated decree issued, which the of the the subjected proceedings holy partially office.to. of the It was ordered that no Sovereign. grandee, cognizance in civil minister, or service any person military should without the Crown, process be subjected approba- this Thenceforth formidable tribunal tion of became- King. in its and was suffered dis- operations, feeble such only give as were calculated to weaken the of its authority plays public of the Memoirs vol. veneration. Coxe’s Kings Spain, (cid:127) 58" Gaines Hennen. Charles, son of &c. 526, 527, Under reign

pages ‘.‘the Indies, and the successor Asturias,’his Spain Prince lat6 shock,-and before a still heavier received inquisition arrest had become a mere tribunal police, revolution It rather than of heresy.” political, religious progress in 1808. abolished Spain finally have been frond the ordinances then, royal, It-appears, of the of the introduction cited, inquisi that.from the time its the exercise of and' manner for into extent tion’ Spain ordinan to the subject royal regulations jurisdiction cases, its had been so restrained in ces; that it polygamous to’ been confined con in them inquiries jurisdiction and to the in or- nullity nected with validity marriages, the violation1of the-ecclesiastical law for flietioirof penances It had not to initiate them. the power process respect case, of it for the but punishment subjection in a bigamy Indies, ordinances, or to in' the after those institute tó the royal an tribunal it' ordinances were passed, inquisitorial concerning iu the secular accused had been convicted courts. before was the law of Spain respect prosecution Such big- condition of the when and the sunken no inquisition, amy, have been would ecclesiastic, may however, high dignity, ventured, a decree to make such as-was issued the Cathedral church of canon of New Orleans presbyter Des It had all the form Jerome Grange bigamy.’ against office. It than the was entitled more holy vigor “ instituted Gerónimo Des against Criminal proceedings Grange Vicar General Governor of the Bishop- for bigamy Province, -and attested Franco Ber- rick-of notary, himself canonical mudez.” subsequently styles .canon- church, was; of this Cathedral which he but Holy presbyter Vicar he was General and- Governor of adds that Provisory Province, which he was not. This as the Bishoprick was either or was intended to con- sumption ignorance, give to himself or was neither sideration .He prosecution. Vicar For the in which nor General. manner those

Provisor refer to the 3d vol- functions were we deputed by bishop, Americano; the Instituciones de Derecho ume of Canónico SUPREME COURT. Gaines Hennen. decree 395, 396, 398. The Primero, Appendiee pages 4th have been issued on' the to September, purports iii this that it stated city It' publicly by saying begins Des who had been married in 1794 that Gerónimo Grange, before, was at that time married Carriere, Julia Maria and is has ar- Jcanbelle, now, so who just to Barbara Church arrived also, that Des 'from rived; just and Grange, having has caused another woman since, a few mouths to come France will be obtained. It is whose name also all here, reported in. that Des has three notoriously, publicly city, Grange a secret, able ex- wives, &c., &c., keep being in order to in the ordered, has proceed cellency investigation infliction of that and the corresponding penalty, testimony man, which Des to.substantiate being single produced order to consumnaate the marriage, presented In Grange who can in the all should information appear give any &c. Arid as it has been ascertained that Des matter, &c., Grange wives, leave the with the last of his three let city is about these him be in. public prison duririg placed proceedings, one of the this decree alcaldes, the aid of as an serving has which his as such it is order, excellency approved, Before me, me, notary. signed ' FRANCO BERMUDEZ. (Signed,) Thomas Hassett. to cite

It is not necessary upon proceedings certifi- notarial speak frequently-occurring paper, it, Francisco The whole of shows however, cates of Bermudez. was done was so under his what contrivance and auspices. canon, is made to as an Hassett, ecclesiastic in au- begin deci’ee, but of it.- execution places thority, signs an of his ex- of Des order tlie imprisonment Grange to in the as a of it. It is referred paper part cellency. twice with the have been other It should produced proceedings. it can be received in evi- done, no Without part being ‘ an authentic The- as the tribunal. judicial dence record of of an ecclesiastical is 'a novelty ..whole paper proceeding (cid:127)-court,';. the chief alcalde of the' His city, excellency means wlicr. such under the law of had no sanction Spain authority legal 589' -TERM, 1860.

Gaines v. Retinen. a it, or to order the of in- prosecution, either the by execution accused; troduction of or the the testimony imprisonment'of The Franco. paper signed insufficient for that. by Oassiergues purpose.' of'the procedure office in such cases will be holy found

in the article in the 8th the edition of Inquisition, Encyclopaedia Britannica, volume 389. 12, It establishes the fact that page canon, the Hassett, Bermudez, and intended to proceed against Des to the forms office, of and that Grange according holy a time when its at functions in such had ceased in particulars and in the Indies. are Those who curious Spain also find may directions for such a in Burns’s procedure Law, Ecclesiastical and Ordo Judiciorum sive Ougton’s Procedendo Methodus et Litibus in foro Ecclesiastico Oivili Britannico Negotiis et 2d Hibernieo, Bentham, volume. Mr. in his also, Rationale of Judicial-Evidence, specially .practice, English applied 2, 17, volume book 3, 403, 380 to chapter with pages exposes and admirable satire artifices of cogent reasoning early- ecclesiastics, and their a English similar up getting success initiation of a in contravention of prosecution statutes. English

Before the' we have been it is leaving paper examining, for .us to allude proper Foulhouse testimony Judge case, in this his afterwards in con- opinion given given of its firmation invalidity.. witness, he

When examined as it was' un- distinctly to, derstood between the that the defend- parties, agreed ants might make a motion suppress testimony. That

was not done. We cannot infer it that the counsel of the defendants in the witness’s conclusion acquiesced from the Cathedral church evidence, was inadmissible as paper it is but cause the reliance certainly coun- good placed by sel their the cause the learned argument judge’s declarations, them -his researches. He support tit., 16; cites from law Novissima Partida, Recopilación, 16; R., tit. tit. law 12, 28, book law Novissima book 10; last 3 in a the cedule of Charles case beiug imputed to direct orderiug inquisitor inquisi- bigamy, general to take of the crimes heresy apostacy, tors cognizance SUPLEME COUNT. v. Hennen. canon, law as a kind of heresy, being considered bigamy do “by impris- so the accused without assuming defaming had been con- publicly before they previously onment ' victed.” ordinances the reasons supported by royal For given, to the conclusion that paper we Spain, brought introduced Orleans, church Now the Cathedral frbm is inadmis-\ case, their evidence defendants part such, that all which it contains-must disre- sible us we shall give. judgment garded remark, that extended examination We finally our made because of its has not been essential bearing upon paper case It was to disabuse merits complainant. the it, did of what to and to correct record not the legally belong which arise unless its character and might misapprehensions however, it, had been Give full- shown. import legally seen, it will be it can have credence, and that no effect est upon of adulterine which this law case must bastardy, be upon are decided, which we to consider. now us to the chief was This which made objection brings relied most to defeat the of upon recovery argument, It is that her status of adulterine complainant. illegitimacy' n her from under the incapacitates taking legatee olographic father, of her admitted to as has been, will it probate, though Court of Louisiana. Supreme -by is an averment of the

It defendant answer to com bill, not but iu in it. It response plainant’s allegation the attitude of the from what was changes litigants v. Relf and in 12 Chew, casé of. Gaines Howard. Then Mrs. had- the burden of to establish the' proof affirmatively father, forced that she was the her the donee tact, of heir n mother, his widow. This.court’ at did that time not done, her suit, think' that been and dismissed satisfactorily for or without factum of be against affirming marriage Indeed, her father and mother: such a could tween uot point made, or be to have been been intended be have supposed hand, the court iu the case then iu without ex decided by Howard, its decision in 6th that there had pressly overruling ¿91 I860. Gaines v. Hennen. between Daniel ti lawful Clark and Zulime marriage Car- mother, and that riere, her father Mrs. Gaines was their rid of the To force lawful child. that decis- get effect defendants, that she before ion, only charged an illicit intercourse between her father and offspring invoked the church we mother, papers spoken from it much, that she an hope so establishing And bastard. with the aid adulterous of that which is again, case, evidence in the and with much that is so, now rely that Mrs. to establish Gaines meets the with charge. charge also, the old evidence, new and with declara- upon relying father in his last will, tion of her “I do acknowl- hereby is beloved who now Myrá, my edge family living Davis, of Samuel B. is my legitimate only daughter, I leave aud unto her, the said bequeath all the Myra, estate, real or whether which I die personal, may possessed, to the of certain hereinafter only payment subject legacies, with this named.” presentation herself, which she And before, had the had never asked that the case proof might arid the laws to it. judged applicable according evidence is will be What hereafter in arrayed its proof proper we Now, remark that the burden of place. only proof defendant, the law and that such a declara- applicable child, will, tion that there shall be concerning requires it, full aud will not be proof contrary satisfied semiplena probatio. law

But the for the disaf- regulating sufficiency proof a of such a declaration in will cannot be under- firmance fully and unless our recollection revived stood shall'be appreciated, the differences made ecclesiastical law and the kinds as to aiid Louisiana the disabilities of-illegitimacy, and them. In fact and law differ. privileges attending they The and the dis- capacities depend rights illegitimates “upon preserved. being tinctions bastard, one be a from born,

If as the Code ex- init article of an 27, illicit connection, presses though they cannot claim the rights children, if legitimate yet, they acknowledged been duly fathers by their aud mothers,-leaving ' n URT. CO SUPREME 592’ '

tiaities v. Hennen. will children, as natural descendants, or no children they, lawful mother, estate or succession legal called to the be ascendants mother, and Other of her father exclusion their father's And in the case of of lawful kindred. collaterals estate, called the inheritance they be to or may succession acknowledged them, no descend and has left when he has wife, nor ants, ascendant, no collateral relations no surviving But natural to of the State. the exclusion only though or be can take testament so, known to children, will were if born before their father’s father, will from their have the in the differences reason, And here we made. their fathers and mothers, why of succession to their right his his will in favor-of made legitimate- Clark olographic of his mar the claudestinity Myra; fearing daughter that her it, and other legitimacy attending circumstances riage, ac habitual deniéd,' would be daily notwithstanding his - it was and avowed it, unless proclaimed knowledgment fathers, will. take inherit wills of their if born They . were madé. As of a that B shall stand before the wills devise Jane, land to the use of This would seized of daughter! Tier, so, a if she were to devise be reputed be good though , will. bastard, 323, and not so Dyer, she called a in.the 29; 239; E., C. 41 3 — 13. But this Jenk, S. does not p. pl. e. 3—24; 149; a mad Sid., E., bastard after will 39 extend born 1 Atk., 48. Rivers’s 410. v. on, case, Hardin 3 Le Stardin, v. Edwards; 2 Ves. 2 Jun., Eliz., 589. Blood Cro. Litt., 4 123, Coke B. Ex C. 510. Brown parte Wallop, . and Abbott, 90. Kinnel 4 502 C., Vesey, unborn, is esse,

A bastard whether born-or competent a devisee or of real or estate. The only legatee personal a is, whether, esse, such case -whenin question bastard. Gor sufficiently designated object-of bequest. Merivale, 1 Gordon, Snelham, 141 v. Bayley don Sim Devises, Litt., Stu., 78. Powel on 260. Co. by Jarman, p. Leon, 35. Park, 26. and note 1. Dyer, Noy, 3 — to mention in this connection But.we whether ought 4 8 —49. can be made bastard not is .vexata procreated ques gift - lean The authorities tio. negative: early certainly 59S Hennen. is, reason “that the law does favor such assigned gen nor eration, that such shall Bloodwell and Ed except be.”. Eliz.,

wards, Cro. 509. Co. Litt., 3 — 6. So that we see had it By. authorities, foregoing case, in this or in proved any. which the com- cases has plainant estate, her father’s that brought rights was the she of an illicit we affirm intercourse, offspring which never has be been, it she would now in the liei condition, from declaration as father’s 'of her take testamentary legitimacy, his universal And if the case was made turn legatee. upon now, decree; would entitled to a but complainant it does not. adulterous, said, is as an

It an unlaw bastard, produced by connection between two who at the time when the persons, ful child was' -were of them-or both connected- either conceived with1some other cannot by marriage person', complainant take under the will of her because the father, Code olographic forbids it. The 217,-222, articles do forbid the legitimation adulterine, their fathers and-mothers of acknowledgment article, 914, children. The does in no case can adul say terine children inherit the estates of their fathers and mothers— is,.as children do, acknowledged'natural may arr 912 and 913 of the it tides. Code. And is declared -natural, Code, 1475 article of “that fathers mothers can in no case" in favor of their adulterine dispose property, .'or children, incestuous the mere amount of what .unless sustenance, to their or to an them necessary procure* occupa themselves.;” tion or This possession by support is. which the defendants defeat prohibition upon rely to.

complainant. it, however, the case-'in was not hand, application counsel considered learned for the defendant fully .by it,, it have been. ¥e will make with decided Lou- might isiana said, case for that shall be everything by authorities' akin to the cited, every subject-matter. general proposition intends

The article the prohibition necessarily containing mentions, relation of the be such as parties'shall .the it, them, can before an effect either of von xxiv.

’ SUPREME COURT. y. Henrien. first, we of adulterous "Now, that the relations say, legal case; arise in the for, of bastardy'do independently the will, of the that is the declaration complainant legitimate Clark, of Daniel this court decided in 6th How- child to the of Clai’k Zulime valid ard that reason marriage by of her the previous of Jerome Des invalidity marriage the course makes that of But complainant legitimate. Grange, as it inwas the assumed, if it be that the'argument, by deeisr the of to Howard, in 12 Clark Zulime ion was inva- marriage account with Des validity fid on her marriage Grange, law, ike still the is of a legitimate Myra then- offspring n putativemarriage. the are from Louisiana The The cases Reports conclusive. Code,-119,120, effect, are -tothis in the old if both articles the second' them,'contracted either marriage-in parents, be So it will wasruied in the faith, legitimate. issue good 438.) New The Series, Clendening (3 Clendening, ease.áf .case “that.the resists the claim is, of that plaintiff language father of his lie married in the on the succession by woman ' wife, mother,-and children, lifetime of plaintiff’s The of that woman. defendants if born notwith- contend .the a lawful at the time of father wife had standing plaintiff’s as the woman he.last married was second "his marriage, since, and ever at faith at time of marriage, good him, her till after the birth of the last child she had least effects; children, and her has its civil that she marriage defendants, are entitled to all the the present advantages a lawful There seems children. law wife gives de- who was of law. woman on question no dispute .The chil- and the man who himself ceived aby represents siugle, fide wife and are bona lasted, while dren deception begot children, as such are entitled all ^.legiti- rights that four'of The then wife and issue.” plaintiff mate urged, after faith of woman children born good mar- of her had. been advised ceased, she illegality made her that her-husband communication riage court, said however, wife in Tennessee! another living herself was insufficient of this to deprive the preaff knowledge 1860. Gaines v. Hennen. children of their one witness he swore rights, though that fact to her. communicated The next case came before the new court up organized It, under the

Louisiana constitution that of Pat- v. the ton Cities Orleans. 1 Philadelphia Ann., New were, 100. The facts in 1799 A. Morehouse married Townes the State of New York, and.had two chil- Abigail her. He dren came subsequently Spanish colony -Louisiana, and out that he was a and mar- widower, gave In the Elenore Hook. act ried he declared him- marriage, widower of Townies. self the second wife he Abigail By children, both wives survived said, him. It was the decision of late “the Court in the case of Clen Supreme v. al., S., et 3 M. N. Clendening 438, in relation to the dening of the second a wife, is correct the faith of good application law, the time at the Spanish regulated subject-matter law, of ancestor.' plaintiff’s title, marriage By it4, ordained, is if, after part both know with' parties of existence certainty impediment marriage, children, -these children will not be they beget legitimate; the existence if, of such and while one during yet impediment, both them ivas of it, should -be accused be ignorant they of of fore the Church, before judges Holy impediment, in the sentence as proved pronounced, should have chil dren, those the existence of the doubt all begotten during will , We with the counsel, agree plaintiff's that the legitimate. wife, and all the second children conceived her during good faith, have-all the which a lawful rights In marriage gives.” wife, case, also, it was said that the second was- informed her existence of wife; of husband’s first “but the. court answered, the evidence establishes more than the ex nothing n of a-doubt.” istence

We now the case of Olive et Abston give al. Rebecca et decided al., Abston Court of Lou by, Supreme Its is isiana. coincident with two ruling cases previous cited, a of facts with them, statement but concurring more detail. particular

Olive Abston sued to have herself as the lawful recognised COURT; .. SUPREME v. Hennen.

Gaines. deceased, late of Abston, parish John wife of surviving entitled portion she was Carroll, of.the'propérty claiming N. Abston, the issue .son, John succession. his. .Her action, in. Abston, deceased, joined, with John marriage as the himself legitimate recognised, for the purpose deceased father.. John heir to estate his and lawful son Mrs; The .suit Gaines. exact:.ease of Abston N. is. .the de- Abston, wife of John the. third Rebecca Wright, against. He or éstate. succession inter- the administrator his ceased, minor, Abston, the of.Nancy'Nix his of'tutor vened capacity de- defendant, with the of her the issue child of marriage the. behalf of the minor the ceased, legitimate rights claimingin her father. heir in the of John forced Abston, succession , denial, she and avers that pleads Wright general Rebecca Warren Abston, married to was John lawfully deceased,;.in in the State of that if .and Mississippi, plaintiff’s county, ever.consecrated, unknown prior marriage alleged and to all-other of Missis- toiler, State persons residing answer, She-.filed, also, supplemental sippi; averring . husband, Abston, John had made in the-State of lier. Missis- after, to her will, his whole’ estate, leaving pay-' sippi debts, and that the will liad been admitted mentof to pro- Carroll, in the parish bate Louisiana. the, facts case these: John Abston married with wife, Hart, his first and suit, in the plaintiff Olive State Alabama., N. the AbstOn, co-plaintiff suit,

of John and the issue other.children, of that John Abston. marriage., the State of abandoned Alabama without family, his. tfie divorced, a vinculo from his Matrimonii, wife, first con been oiie a second with' Susan. Bell, tracted and she died. marriage death, After her still undivorc'ed from' his first being wife, in' Rebecca Mississippi he intermarried In a Wright. time after this last' short from Missis marriage he.removed' in the State of Carroll where county, Lpuisiana, lie sippi'into where domicif, anéw he died,'in. which situ was acquired succession, 'thebvhole of his im ated moveable and property '. at: time.of moyeable, ]iis the death. narrative,; the This' relations as been have they givei:' 1860. Gaines v. Betunen. suit, the the raised two which it parties questions,"

became for the court to decide" before it its necessary gave the opinion of the the two sets question of. legitimacy ' children of the Abston, them, John ancf father of bigamist, the of his two wives in his First, estate: as the effect rights of the itwill, contended, as that had being probate done a court of by that it could not be competent jurisdiction, questioned nor its be into collaterally, inquired validity suit. The court declared of a that decree court probate a will to does be not amount to a ordering executed judgment on it, those who are not concerned in and that binding when the will is offered the title in virtue of which property claimed withheld, or its be into. inquired validity may 2 Annual, 724; Sophie Duplessies, Succession Dupuy, Annual, The other was, raised whether question in the suit should be determined rights parties by law of where the defendant Mississippi, marriage contracted, deceased had been or the law of Louisiana, by where John at Abston had his domicil time death, of his where his succession was and where all his opened, property' laws, was situated. answer was, The question to.

of Louisiana of succession make nc regulate right distinction between who have contracted persons marriage or State, out nor the issue óf such whether marriages, born in. or the State. If they qualities required out the. the law in matters of inheritance, will recognised lieirs without places legal regard marriage

birth. court, then, with á -the fact proper regard will which had been made Abston invalid on ac~ by.'John its count witnesses,and. that the having been.attested three successionwas an determines intestacy, that it could not be regu- lated the law of as contended Mississippi, plaintiff it of, be, should which is law, basis the common but that must be the law of Louisiana. We cite own prefer its as to the similitude between language differences the.

them: “The deceased prior with the marriage plaintiff^ undissolved, which remained disability under legal SUPREME COURT.

.598 lit*mu. made the with the law, defendant, common which- marriage voidable, void ab initio, Rebecca but merely Wright, issue made their of incapable illegitimate, by succeeding one. inheritance to the estate of the law of this State By of a also renders the undissolved the prior disability marriage void’; null and bat the second marriage legal consequencesof ab initio under our law are void those very marriage differentfrom declares, commonlaw. The Civil Code the “the under has been null nevertheless has its civil effects marriage their the children., has con- in parties been respect if one the acted only parties in faith, tracted good good of If faith. its civil in his only or her produces favor, the marriage effects cases, born “In the childrent two marriage.” .óf favor to the it has been held present, similkr somewhat each the death of the at husband to entitled one-half; wife was after of debts; and payment this community property, Philadelphia, in this our decision case.” Patton v. rule govern will Annual, 98; Inksleon, Annual, Hubbett v. of the court .was mandate The accordingly given, decree, that John N. Abston, co-plaintiff, further ihe Abston, minor, intervenor, are represented Nix Nancy or estate as heirs-at-law separate property entitléd father, -Abston, and costs of the deceased John their ap one-half to be Oliver paid, plaintiff, were directed peal half Rebecca and the other defendant.' Abston, b'y Wright; n of what has confirmation Spanish further But Louisiana, the chil and, course, that law, legitimating faith, who those marry believing good ’good dren it, not a that there was precedent marriage prevent ground ,we 425, 5 vol., N. the Novissima Recopilacion, Ley., cite -allowed be held said in the Council 10, by-Charles what 1777, for the year purpose Spain, giving King he a better than General understanding pro the Inquisitor ordinance of royal fessed to concerning King’s office holy jurisdiction bigamy concerning - cases generally. polygamous Council, and so result of that recognised King, time, a second whilst the act “That marrying was:. 599- I860. .. n Gaines v.'Hennen. alive,

first‘wife was the who so the faith person does violates contract; due to the that he the second wife marriage deceives first; the the inverts order succession and of the wrongs established the laws, inasmuch as his- fraud legitimacy by makes the children of the second adul- truly marriage, though terine, and capableto inherit their onaccount legitimate, parents ther their motherin good contracting marriage.” faith of

To the same the effect is Code C. art. Cer., 201, Napoleon.

202. law The of France was so Pothier, before the Code. 3,

Contrat du 172,107; vol. pp. Toullier, 1, 598; tome Mariage, Mareadi 520; du Explication Code, 1, tome Law of Spain, Partida, 4 v. Lex, 13, 1; tit. Dalton’s Dic., 2, 372;Tit. tome 372. Mariage,

Thus we a see, child be adulterine though fact, may it- be for all may legitimate .the purposes from its inheriting if one or either of them parents, intermarried faith. good law Such others Louisiana, and it must be ad- ministered for the accordingly if she complainant, stands in the evidence which the law by requires has position, determined be sufficient to establish a marriage goodfaith her between father and or mother, either them,to entitle her to inherit from either both of them legitimateby o.r law.

On such- faith is first to question good Mar presumed. 1, 522, cadi tom. 698. Explication, As pp.. to what constitutes faith, it is that to á adjudged second good marry .time, sup invalid, previous is one of the posing marriage cases of Dic., faith. Dalton’s tom. 2, 371; Tit. p. No. good 578. Spain, last citations have been The two. to show-the given inaccuracy of. the conclusion the learned counsel of defendant, if' between invalidity Des marriage Grange was not complainant’s proved, mother she was necessarily an adulteriue illegitimate." was heir-at-law if procreated by faith,

.She Clark in good her if conceived is, mother faith —that she good suppos- to-become the wife former. capacity ing Nor was sentence of the nullity between marriage Des and the mother complainant’s Grange necessary pro-

600 COURT. SUPREME "Sennen. teet Marcadi Explication, legitimacy" offspring. 19; ; tome Shel Ibid, Phillemore’s p. p. Reports, 495; on ford vol. Law Library, p. Marriage, evi faith Clark and Zulime is proved by of. good Calliant, and Madame Rec., dence of Madame 580) Despau (Old facts Rec., relating contemporaneous (Old 309,) as. of Caviliére well as (Old testimony marriage, Rec., testimony as to the Des -by 546) bigamy Grange, Belleehasse, Ree., that of Madame Old p. BeuguereK' is his faith of Clark 349. The in marrying proved good Belleehasse’s in last of his life. declarations years By own the. Boisfontaine, Ibid, 162, Mrs. Record, 173, Probate testimony, is Ibid, 152. faith of marriage, Again: the.good Smyth’s, in authentic declaration Clark his will' proved .was, child. only the complainant daughter legitimate Louisiana, Court of also, the See, opinion Supreme Succession, 11 Annual Reports. Charles adul if we áre-to we now question But say, consider this, ease, in it. can before us to be properly, bastardy terine Clark.of. under the will of affect rights complainant char reason of matrimonial If the complainant,-by 1813. side, adulterine on shall deemed thát mother, be her acter.of a father, he been as the side so on is not' o.f she faith, if he did free to marry good man marry; single will, be, under his as respects.him, is not incapacitated, she 60, 45, Jan Palais, Du vol. Journal p. his universal legatee. . 1852 7, uary that Clark was incapable is no to'contract pretence There whether, as to the mother of the and matters not marriage; law; under the existed Spanish any impediment complainant, issue of her father by as the declared stands the'complainant married. Not be himself lawfully to whom woman supposed -a itself, the evidence which it estab bill but only issue. Danieb Clark had no other lished, shows that legitimate has to contest who acknowledg exists No one right or to set the adulterous child, of his up legitimacy (cid:127).liient ' 51, 335, 2 Marcadi, art. N., See C. pp. of her 'source origin. 45; Jo- 62; Palais, vol. 60, 31, 52,.Nos. 60, 61, du Journal p. 601 TERM,. Hennen. v. Gaines 305; Foulhouse’s Annual, 4 ex’ors, al. Pitot Judge bert et v. ; Toulliers, 960. 2 57, 58

Opin., is of child legitimate -testamentary recognition taken are All presumptions highest legal authority. Ev., in- on Pres. pp, favor of such Matthews declaration. Andrews, 286; 593; Miller v. Chew, Howard, 12 188; 767; on Wills, Louisiana vol. Annual, Jarman p. 5th Note, cited. Greenl. 284, 287. Aud authorities Phillip’s Ev., 134. we And now of all that has cite, confirmation heensaid 1-17Nouvelle of Justinian.- It upon-this point, the the-rule of such gives cases, evidence aud-it prevails ecclesiastical court wh'ére the Roman every law is in.Europe, the basis of its jurisprudence, respect legitimacy It is the law persons. also, kind, -cases of Louisiana. We it iii the “Ad Latin: hoc autem give et illud original ^

sancire ut filium'aut filiam perspeximus, si-quis habeiis de libera .in-, muliere cum consistere dicat in qua nuptite possunt, strumento, sive sive manu et publica, habente conscripto sub- testium fide sive in scriptionem trium dignorum, testamento, sive in aut lianc monume.utorum, hune filium gestis suum esse, el non naturalem, esse jilios, adjecerit hujusmodi et nullam legítimos, ab aliam Us seel omni frui probalionem' quceri, eos ure quod legit- imis filfi nostree conferunt Translation: “"We .have leges.” if ordain, determined a son or any one.having, daughter a woman, lie free with whom have been might married, -a shall act, written either before say a officer or public under his hand, own sustained three credible by witnesses, or in his acts, or in will, that this son or this last is public his daughter child, he does not call them natural children, they shall .be-reputed other legilimate, no shall be proof demanded , and- them, shall they chil- enjoy rights legitimate dren.” This has beenthe of much subject Nouv.elle criticism and learned interpretation most by civilians. distinguished one moré so than the Chancellor By.no his d’Anguesseau, in declaration or ordinance of 1736, had for its object, he himself aud says,'to explain proofs .affirm legal condition of men. The declaration* consists ar- of-forty-two Several of them relate to the in which baptismal ticles... .form 602 SUPREME COURT'.

Gaines Hennen. to be to- but acts verity ought registered give legitimates; not, are or this ordinance whether of Justinian secures they so if shall be their fathers to children legitimacy, they placed by its add, within And we that the mothers predicament. may or all who in the civil of it have been skilled by interpretation or of a it attaches -to the son> is,'that legitimacy daughter law free, does de- who are both but that woman man and them to should be that the word applied legitimate mand the Nouvelle means that if so. On contrary, them make re- a natural he is of to be child, not called right child is: and the commentator’s remark “Mark legitimate, puted when is not a Roman law made paganism well, a law made a but Christian Rome, by Emperor.” reigned vol.; de Tit. Jurisprudence, Legitime, Repertoire Merlin Question. 349;-Ed. 1827; JBruxelles, pp. secs. neful admise, 8; la testimoníale tome d’Etat; point On previe Sans- acte de Reclamée, Filiation baptime, Celebres Causes Possession sur le fondement d’Etat, de Veritable plu- une sans forte.consectures; 19,-Causes Celebres, tome sieurs it to be .is the law we have stated relating Such .to it be adulterine in nitaixmmarriage, though fact, children faith either parties, contracted good if it are children to inherit from Their their legitimated of them. or' take in case of either testament. intestacy parents, either father dr mother latter, declaration In the áddition that children,-without natural they-are their are them and no other make can children, will ¡noof legitimate, enable them to them to all enjoy demanded.of rights But the case hand is even' children. strougei- legitimate here the father his will that, for than “acknowledges to-be legitimate only and. beloved'Myra daughter,” universal of his estate after the her the legatee payment makes certain 'legacies. defendants aver that connection between her But adulterine, even and mother though they father may on that account that she is barred married, and her will under father’s legatee taking n give proofs to sub- now upon rely We will TERM,- Gaines v. Hennen. their connection stantiate with the allegation, voluntary of the a's-we find it in the' testimony -complainant, rebutting record. from the Cathedral church in Orleans is paper New Now, invoked the defendants.

first has that paper though to an shown unauthorized been canonical attempt by pre- without matter, kind in such a jurisdiction bendary, to Des public report, try Grange bigamy, having' wives at the same time, three to make him answer im- whether such an accusation was irresponsible, true prisonment., true, or not defendants our consideration of their aver- have the full shall benefit ment of that evidence, paper we have declared it.to he inadmissible as such. though it from the appears Des Grange, paper, put public canon, there until the' Hassett, kept after prison having witnesses, several decreed: examined That not able to being he directed the report, prove public be sus- proceeding to be resumed thereafter if it should become pended, neces- and that Des should be set at on sary, Grange condition large, did, he the costs. This he paid fled from New Or- ever leans, without relations with again any conjugal mother complainant, it will though directly .as. ap- he from the was indebted to her paper for-his en- pear from the canon's . Nor did usurped Des authority. largement in New Orleans until after the cession of reappear Grange the United States. Louisiana

In the course Des both proceedings against Grange, and the mother were examined as wit- complainant’s himself Both of them reply nesses. questions concerning big- her; amy respect marriage acknowledge aware of the him' in that they report against prevailing and she that about a since says year (in regard; 1801) married, stated in had at husbaiid city-that North, and to ascertain not, whether .itwas true or wishing and New where she York, that she gone Philadelphia to find exertion out the truth of used every report, she learned tlnit he had a'woman, courted only whose to the match-it did not father pla-m, consenting take COURT. SUPREME «04 Hennen. Oaines v. afterwards; adds, and she another man shortly she married married that her husband was heard she had recently had she it, not nor doubt any did believe women, but she three or rendered her unquiet unhappy. the matter which about confirms; for asked wife, why being of this Des All Grange last year, to the North he*answers: went Garriere, Maria Julia was, that a had been cii’cu- report reason “That principal woman; another married to she that he was in this lated -city ’ true, and she it'was went. whether wished ascertain of the introduction from the.defendants, bj7 paper .Thus of the existence Cathedral, currency thé show the'report mother of Des marrying Grange’s bigamy guilt it and the mind- public the complainant, aggravation canon not him, and dis prosecution having retained it for .further it but missed inquiry'. altogether, as has proved by unimpeachable Upon enlargement, Des fled. testimony, Grange

Now, it is to state the evi- connection, in' this appropriate receive and to be the law will pronounce dence which sufficient he married the determine that he did commit bigamy'when It so all ad- happens, mother complainant. excluding of the mother of the mission of 'to family complainant,' witness, the truthfulness of fact is whose tes- proved by been.assailed, and not have could been. has not timony has no with the connection -Madame family Benguerel a'nd character were her such that eomplainanty-and standing her even. impeach ?,n.insin- defendants'could credit'by either; to their she subjected uation hut cross-in- against neither difference nor It out contradic- terrogation. brought herself, nor way tion anything there her to she testimony subject any suspicion gave or of want complainant,* memory friendship in her narrative.. uncertairity husband and Madame says; “My myself Benguerel with Des and when intimate him we-reproached Grange, very he Zulime, his baseness himself endeav- upon imposing tinjn at excuse himself he ored to married by saying, wife, lawful and never her he abandoned intended te his. 60b v. Hennen. In answer to see-,her again.” cross-interrogatory put upon she “lam not related point, says: nor defendants, them, nor am I with either mother of nor Myra; I at all interested this suit.” She am adds: “It will be answers how I know facts; seen I my' was well ac- with Des I know the lawful wife Des quainted Grange, who he married before himself Grange, imposing marriage Zulime.” The then discloses the facts: That Des paper following was with in notoriously Grange charged bigamy marrying Zulime; she left New Orleans the that North” in 1801 “.for it;of that he that her proof says reason foi to.get principal wras that he was that purpose; for prosecuted going biga-' fro,m in the canon- was released my temporarily Zulime had sworn that she did after hot believe re prison also, It is about him. in that he proof, then port fled from Orleans, to it until New return did. year interference before canon testimony Her or negatives every she-had that any agency suspicion in.instigating prosecu His own oath him. tion occasion confirms against with, his wife satisfied for he it, speaks, of being innocence, there is not a wor'd- nor in paper of the evi any her friends had dence to show that provoked abetted in any accusation Nor is w’ay public bigamy. Clark, the at all of the associated with father complainaut, that proce Indeed, he was at dure. that time. With in.Europe all these and obvious inferences from taken them, facts in connection of Madame with testimony Benguerel, only, question Des in concerning bigamy Grange mother marrying when he is did, whether complainant the law deter mines the evidence to be in a civil sufficient suit' to establish the fact.

We think the law us to pronounce requires it is sufficient.

A in a criminal prosecution be charge bigamy cannot There proved must by auy reputation be marriage. proof of actual before the cpnvicted. accused cim be But marriage sufficient, in a civil suit the confession of a will be bigamist SUPREME COURT. Gaines Hermen. no it made under circumstance's from'which objection when There are none such this' as a confession can implied.' of such a state of the evi- The first case. consequence legal the mother of the is, that it released from complainant dence with Des her free to all Grange, obligations making conjugal man other who free to inter- contract marriage is with her. But that conclusion not the marry purpose as the defendant used, it, wishes winch we what the has been to discloses. show that object church paper have introduced paper support defendants charge it when fact discloses a bastardy, adulterine condition of well be inferred that both the which father may things Gaines intermarried in Mrs. faith. It mother of good the evidence the record prove short of did far Then the will be seen next which so, presently. testimony to aid the defendants adulter- rely upon proving the is that of Daniel Coxe, W. complainant ine status with Daniel in business Clark. His tes- friend co-partner in a case taken to invalidate previous timony originally Clark the mother of the between complain- marriage Howard, case, as it was it was associated In ant. to sustain the we are con- objection church now paper the with it was said that the two were suf- Iu argument,, sidering. it. But take the of Mr. Coxe testimony to prove ficient it in its no of has.the whale, or part particulars, slightest of the canon’s Des or prosecution upon Grange, upon bearing was the of an complainant offspring,- the objection Mr. Coxe intercourse. of begins ji'iatory adulterous an account.of the Barnes, preparations Caroline giving of Daniel Clark for con- at the solicitation had made he mother, and then states it to be his belief that of finement this, her. in never married' to-the Beyond regard Clark in his offers does not to.the-success except he speak, marriage, her from to dissuade his effort attempting to.prove-it, of that Daniel Clark was not believe Philadelphia he in did it is that he married when there the. alleged in-the year'1803, circumstances, other are of complainant. Many mother with the affairs of-Mr Mr. Coxe connection narrated by v. Hennen. as his Barnes Caroline Chirk, aud of his of acknowledgment of them examination child. But after the closest illegitimate and thal adulterous bastardy, in connection-with point married Caroliue,"were birth of after the Zulime,' Clark im- to a word Coxe’s faith, testimony there is not in good n in en or the parties fact of fidelity marriage, peach.the it. into teripg a letter written Bel in evidence defendant also

The gave from the to' one lat Coxe, Matanzas, to lechasse, reply of Mr. at the had written to Bellechasse instigation Coxe ter. lots favor of Caro him to

Relf, dispose fifty-one requiring for whom the exclusion Barnes, complainant, line to him for her bene'fit. This Clark to were confided by states what had He then refused to.do. previously Bellechasse these lots. He aud himself between Relf concerning passed his renunciation to Relf any ownership had before given of them with directions dispose Myra, them, stating himself and Clark upon between subject, what had passed Record, Probate related it in his testimony. as lie has pages 13th This letter answer to inclusive, interrogatory. between Clark and marriage relate any way does not mother, to their adulterous inter alleged complainant’s the honorable character of Bel however, confirms It, course. he had said of Clark’s decla all that

lechasse, and strengthens Myra, to him of daughter rations legitimacy his estate. make her the heiress of This let his intentions into this case us to have been introduced seems to ter serve make with some defendants, might expectation both and also to.associate Belleehasse’s testimony equivocal, Clark and as the adulterine and Caroline offspring Myra to both. view, our attempt, Zulime. failure evidence in this status depends The complainant’s declara Barnes, That notwithstanding of-Caroline case. Zulime, child of Clark that she is the natural Coxe

tions the relations what determined the law as to must was conceived when she and Des her mother Grange between that she was Madame The.witness, says Despau, and born. 1801. Mr. took and that it Caroline, place

at the birth SUPREME COURT! Gaines v. Hennen. Cóxe to the best of his says, belief,-that she'wás born in but 1802, without of those attendant circumstances (cid:127)year any correctness, which even to the of his chronol give .coloring as to the event of which he was and with one ogy 'speaking, himself, from can how little reliance proceeding shows be of his either time put as to the accuracy memory, when, him, Mrs. Des to he'says presented Clark’s letter Grange to have her taken care of in her confinement, as she was the,time- to him, child or as of the birth of by Caroline, or to visits Clark’s to his' Philadelphia immediately preceding 1802. In Mr. European Coxa’s second departure year he it hath been examination, states to him disclosed cor by with Clark that the latter had been in Philadel respondence late in 1801 last phia of which April, all there; that timé .Zulime-was in. re Clark April ..that Orleans, New turned to. afterwards he had revisited. con-, 1802, on Philadelphia, July, his way thus Europe.; the statement of Mádáme firming Despau in.those particulars-. the absence of all In either contrary circumstance or proof, the declaration of Madame deposition, as to time Despau when.Caroline Barnes born be' must received to establish3 (cid:127) And that fact. 1801, however it' much being-in year she was. the child of suspected and even .may Clark, so, her to be she must be law supposed considered in he. be the child of of her mother and Grange, Des. gestation the birth of child time before inter-' being'within had taken place relations. ruption That their.conjugal evidence introduced into the ease the defend proved March, The first is ants. 26th of the-power, attorney Lasabe, Mesdames Caillavet, au given Despau, brother-in-law, Des their Bor proceed to thorizing Grange, deaux, to recover of which France, were co-' property heiresses of their father‘and Next, mother. aby power general which Des at same Zu time attorney, Grange gave lime to act for him all his affairs absence. She during did so several herself the wife particulars, styling legitimate of Don Des Des attorney general Grange. Gerónimo him, sailed France power Grange accepted given 609

Gaines v. Ifennen. and on April, 1st July, from Bordeaux to wrote Clark to aid his wife with advice, should she be embarrassed .his and any respect, expressed uneasiness that he had not yet heard her; also, that he was-then in a saying, engaged “lawsuit for the ©f purpose an estate to recovering belonging wife and my Now, under such a cir family.” chronology cumstances-and of we that as aeed not conjugal amity, say access between man and wife is until other always presumed wise and that plainly proved, is allowed to nothing impugn of a child short of facts it legitimacy to proof by‘ showing that the husband impossible could have been the father of’ it,' the law, then, establishes the relation between Des Grange and Caroline as that of child, father and having.been legitimate commerce, and that'she was not the of an adulterous offspring between Zulime; Clark and was, Coxé she though says reaffirmed in his letter substantially we Bellechasse, as. from his answer in his refusal turn over

gather property Mrs., which was Caroline received him from her father for Gaines. See letter in 896 of Record of Gaines v. Hen page nen. n The defendants also in evidence an authenticated rec- gave court of ord New It county Orleans. was introduced fr^m them; and declared them, in their com- answers bill, to-be'a her mother, Zulime Nee plainant’s petition'by wife of the Carriere, said Des to a udicial Grange, competent j in New.Orleans, tribunal for a divorcé.aiid dissolution praying her,- the bonds of between matrimony Des existing which was decreed after the Grange, subsequently birth of But -now complainant. declare they that such urge decree record and the case. prove In our it nothing opinion much, from what it proves was introduced though differently Their counsel now for. thnt the record 'says, is deficient and therefore that it petition; does not that its ob- appear was the annulment of the between ject Zulime and marriage Des on of his Grange is want- bigamy. petition account 'and has not why, shown de- ing; satisfactorily fendants. it knew he wheu intro luced They wanting the record of evidence, on that account cannot now repu- xxiv.

vol. SUPREME COURT.

Gaines v..Hennen. it contains, díate for what against pur- because it was for which introduced. It shows that pose a'petition a curator was filed; that for Des he appointed Grange; answer for Des was summoned he Grange; appeared demurred, to the of the court jurisdiction divorce, in cases that the court could account not on that pronounce judgment and that the therein, damages prayed could petition after until court be assessed rendered judgment of the There validity was a marriage. touching joinder was which, however, in-demurrer, withdrawn, curator, and the issue. The docket entries in filed the the suit, general kept are in with the clerk, act conformity 10th, April are as 11. follows: section 1805, They Petition filed June 24, Debt or Plea 1806. filed damages, $100. 1st 1806. July, filed 1806. Set for trial July' Answer 24th July. stated, and the costs are

witnesses And given. then follows $100, plaintiff, damages July 1806. judgment Now, so extract of makes many particulars this out as well as it of the be done purpose petition, could and establishes done, as it is to be required consistently, rules of evi- a that the case, such dence between marriage Jerome Dos Zulime,-or, as otherwise named,'Marie Grange Julia was declared null Garriere, thereby Nee void. But the counsel that the record is says, defendant’s inoperative for as it was a inasmuch at the any purpose; proceeding instance maiden name, in her three Zulime after yeai’s her alleged- It is with Clark. that a foi’go.tten marriage judicial invalida- at time for the -of any tion marriage bigamy party to the time of the back relates marriage, places de- a free condition to in ceived marry do other again, any unmarried without woman, as an act sentence of the nul- The evidence, the marriage. too, shows that the lity pro- Des Zulime cedure in her against Grange originated anxiety in herself that condition to her respect 'place marriage which he had her Clark, enjoined with secret keep sentence of the her until-a nullity Des marriage .of not, had obtained. She been under such cir- .could Grange a suit; use Clark’s such she cumstances, could not name v. Mermen. when have sued Des disclaiming validity Grange’s with, him; her and therefore her counsel in her marriage filing it was name, used maiden and- proper profes- petition certain, sional in them do. the record thing .One from the court New Orleans does not in county any way sustain the of adulterine bas- complainant against charge but adds another circumstance to exist tardy, many which between her father and proof mother, marriage faith with which entered into it. good To confirm what’has we will cite said, now just of it: evidences

“Madame testifies that she was at the Despau marriage 1803;' and Clark 1802 of that it Zulime took .Phil place.in and the a Catholic adelphia, ceremony performed by of other witnesses as well as of herself. presence priest, She that she when her sister birth to present gave states Gaines; Mrs. that Clark claimed and her to be acknowledged child, and that she was born in 1806. That the circum- of her with Daniel stances Clark were these: Several marriage after her with Des she heard he marriage years Grange, wife. Our him with the family crime of living charged big- Zulime. He at it, first denied but afterward amy marrying it, and fled from the admitted These circumstances country. and Mr. Clark

became made public, to proposals marriage sister, with the of all our The wit- my knowledge family.” ness then her continues that it was narrative, considered es- before the sential should take that should marriage place proof from the obtained Catholic church New York of Des his there that had prior Grange’s bigamy, being marriage there; taken went found that the of mar- place. They registry had been Clark-followed them, destroyed. riages having a Mr. heard that Gardette in had been Philadelphia one.of of the witnesses of Des and he told prior marriage Grange, them had been at the of Des present prior marriage that-he he him and wife; knew his the wife had Grange; sailed for France. said, Clark then reason .no you to me.; however, refuse it will be to necessary, longer marry to our secret until I have obtained keep judicial proof. marriage COURT. SUPREME

til2 n v. Hénnen. with Des your marriage Grange. They nullity then married.

Such was obtained, as has al- judicial proof subsequently Madame witness, been shown. Another Caillavet, con- ready firms the that Clark made statement proposals marriage after her withdrawal from Zulime to Des hér'family, Grange, on account of her heard that he was the husband of alive: then She also swears that Clark admit- another.woman that so did Zulime. her,-and ted Clark marriage also/ witnesses, made an of it'to other with simul- acknowledgment taneous to them of the declarations legitimacy Myrá; his treatment of her from birth to death paternal impressed them with the full belief of fact and of the sincerity such, he made declarations. Mrs. purposes Harper, nursed as a but as the who friend of Myra,.not hireling, Clark, he her at that made.to different timés says declarations of the -; child’s with her mother.- He legitimacy marriage ad- it, Boisfcntaine, added, also, he mitted would have avowed the subsequent but marriage for.hér to Gar- marriage -dette. Pressed such effort proofs, was upon by .every made by most, cross-examination repeated searching lessen force of them without success.' in this, Failing th.e' afo~ direct made to discredit their an tempt veracity by impeachment eharacters. Was a failure. of their '.It signal Forty years of their lives were canvassed to them some bring reproach. n were decisive. proofs contrary too, had They, n their misfortunes; but their lives liad bee'n passed dif- where had lived, hot ferent without places only censure, free from Their but suspicion. altogether testimony also with that of Mr. Coxe. llo put comparison differ They circumstances, immaterial but nothing mar- concerning Clark and Zulime. All that Coxe had between riage able n it, about that he did whs, say That believe con- he came inferences clusion, too, from his own narrative. of the-birth of Barnes; time Caroline concerning that he the time afterwards, occurrence, withdrew to of its and also declaration, his that Clark had not in as to been Philadelphia in there for year sojourn more than extending TERM, v. Hennen. aunt in search of and her were months, foiir whilst Zulime The evidence also shows of'Des of the proofs Grange. bigamy Besides their that Clark .aided purpose. inquiries Coxe, shows so of Mr. the want of narrative strong memory must receive it with that we many bias a against marriage a Zulime had obtained After sentence of allowance. grains she went her with Des Grange, of. nullity marriage in circu- the truth to'learn reports Philadelphia of Clark to herself. She had an lation' the fidelity concerning her her intention Coxe; with told him interview purpose, Clark, unless she became sat- proclaim marriage her told that she could not isfied He her that subject. prove her afterwards to take counsel of advised: a marriage, course, her from He,-of dissuaded to do lawyer. any attempt n her distress so. the samé time Coxe aggravated hope-' At Clark was then lessness engaged marry telling which, in true-in of distinction whether Marylaud, lady it, of his narrative of there general report, particulars record; is no but it-served his dis- purpose in proof (cid:127) and Clark forever. Clark was then in the Zulime uniting of his and distinction of the height popularity Congress -him United States. His friend sheltered disclosure.

Mrs. to Clark’s admission her- re- as a witness Harper, cross-examined but peatedly severely, marriage, of her effect, without to diminish' testimony any weight Boisfontaine, their ex- chief. Béllechasse subsequent at sworn, to what had first their aminations, adhered they its even true. characters forbade a suspicion being to lessen the proof attempt marriage, Railing every were in these witnesses combina- it wás that all of suggested The defendant’s counsel had tion to by perjury. establish.it no interest himself from their áuswers extracted are the suit. protected kind in the result of They There was such imputation. rules of evidence from any it. no foundation for re- then, only point proved, marriage, faith contracted is, it was whether good

maining that it cause it. see no was-not "We .-thinking parties ' 614 SUPREME COURT.

Gaines v. Hennen. into in it, entered faith. however, not to have good Supposing Zulime, been so account of her not by ou be- sincerely having, her lieved in invalidity Des marriage Orange, lake could not away complainant’s to inherit her right estate will father’s under-his if it olographic has not been as the rules of evidence in proved, such fully cases re- done, he it to be did not in faith. quire marry good in doubts to respect Zulime’s may indulged sincerity He to him. was an man, cannot unmarried apply never had he been when united himself married, to Zulime, and the in case that he is, did testimony her in weight marry His conduct to his faith. child from her birth to 1ns good declarations of his death, to her frequent marriage mother,- and his of it her avowal in his last legitimacy, will,-are of his married in having conclusive faith. The good law ap- to such cases us to so. requires say plicable have not it We all necessary thought give evidence in but have in case done detail, this accurately so to all of upon any way points bearing controversy, es- as to that connection with having pecially charge Those who bastardy. may adulterine any- curiosity in full will find it in what testimony read is called the Record; in the cases are also Probate 6 reported Howard, old record of the particularly last case. oFjLouisiami is, that law by Our judgment Mrs.'Gaines filiation, to a as the child of is entitled Daniel legal Clark and in lawful wedlock; Carriere, Marie Julia begotten that she will) in his her father last made universal legatee; Louisiana, the Civil hind-the and that Code decisions and the same Court of upon, given judgments Supreme her her father’s succession, entitle State, subject pay- thg. record. mentioned We shall ment of direct a legacies to be issued a-reversal of the mandate decree accordingly, ^ith á below, and such he the court to made directing decree as it to have Thus, that court done. premises ought in\the this court after a has thirty years, litigation adjudicated her father’s estate. applicable rights principles They settled. are now finally TERM, I860.

Gaines v. Bennen. When hereafter some American shall distinguished. lawyer retire from his to write the of his practice history- country’s will be case him'as the most jurisprudence, registered by remarkable the records of its courts. DECREE OE THE COURT.

This heard this court appeal tran- upon from the record Circuit Court of the script United States Louisiana, for the eastern district of arguments the of as well for as for counsel, the appellant this appellees, of the court, consideration doth now ad- here upon premise^, decree, and that the order, decree of the said Circuit judge, and is reversed, Court be the same costs, and hereby decree the be premises such as is passed hereinafter other and decreed. ordered court, such thereupon

And this decree pass proceeding Circuit as the said to have this cause doth passed, Court ought and order, decree that it here and now adjudge, adjudged and and is decreed the evi- decreed, hereby adjudged cause, Gaines, Clark dence in Myra complainant child' of Daniel same, is the Clark in the only legitimate the mentioned, and and as such was said bill exclu- proceedings character of such invested with th.e child, sively legitimate same; the of the and rights entitled to-all that under and and will and the of the last testament of virtue said Daniel .by said Clark is universal of Clark, Myra legatee Clark, and Dauiel as such entitled all estate, the said he, of which or said Daniel personal, Clark, whether real of certain only died subject payment possessed, legacies named. therein order, and tliisrcourt further decree,

And thát doth adjudge, and claimed described Duncan by defendant, all property hen, annexed, in his answer and exhibits thereto Hen N. and of the succession of parcel property

part composing Clark, Daniel same which Richard said wit: the Relt Chew, and under pretended authority testamentary Beverly -and said Daniel Clark fact attorneys executors 28, sale, 1820, dated December Clark, . act- convey by Mary said which the Azelic act ed to Azelic by Lavigue; Lavigue, . SUFREME COURT. Gaines'v. Hennen. of sale of 29th of 1836, to Hiddle J. February, conveyéd ston, Hiddleston, the said act of J. the 27th oí New Orleans and Carrolton 1836, conveyed May, Rail and which the said act of road Company, company, .sale of the 13th of to the said Duncan N. May, conveyed th¿ the defendant in this Hennen; cause; said Richard Relf and at the and times Chew, when,, under Beverly time aforesaid, caused the pretended authority they property the defendant, so described claimed Hennen, set to.be. auction on the 19th and sold December, by public day up executed their act sale aforesaid when to the said December, 1820, Azelic the 28th of Lavigne, so sell whatever no authority dispose legal right to alienate the same; or. in manner same, aud said act of sale to Azelic auction, said sale at Lavigne thereof, were in confirmation unauthorized wholly illegal, void; null and aud that the defendant, and are Hen utterly time he at the when so nen, described purchased property aforesaid; him as was bound to take claimed notice which rendered the aud circumstances actings doings and Richard Relf in the Chew the said Beverly premises ille void; and that the said he, Hennen, aud null, to ought gal, held, and is deemed and held, and be deemed to hereby the with full notice that question, the property purchased auction, under the sale at the pretended authority said said Chew, and'their.said and act of sale Relf Richard to Beverly hull, and and void, said Azelic illegal, Lavigne, in.fraud or to the entitled the the person persons succes rights Clark. said Daniel of the sion and order, doth further decree, court this adjudge,

And and held defendant, Hennen, claimed by all property unclaimed and remains aforesaid, now as undisposed as Daniel .said Clark,, of the succession and parcel part and act of sale in sale at auction such notwithstanding of the authority under said pretended right pretended Chew. and Beverly Richard Relf decree, and order, further doth court adjudge,

And the Gaines, is and legitimate Clark Myra the complainant, . v. Hennen. child ofthe'said Clark, and universal un- only legatee Daniel der testament, his last will and is entitled justly lawfully to the aforesaid so claimed and held the defend- property ant, Heiinen, with all the rents yearly profits together from, same since the same came into said de- accruing fendant’s wit, to on- the 13th of possession, May, 1844, for'which the said ordered, defendant herpby adjudged, decreed to account said Clark Gaines. Myra doth, And the court here this remand cause'to said how for such further be circuit.court may proceedings proper directions;- into effect the necessary carry following that is say: defendant,

1. To cause the said Hennen, forthwith to sur- render all the held so claimed and him as afore- property into said the hands of á Gaines, the said Clark Myra part of the succession of the said Daniel Clark. 2. To cause an account be taken officers proper court,

of the and under the direction of the authority and. court, rents and accrued aiid yearly profits accruing said since the 13th property May, when came defendant, into the Heiinen, and to possession cause the be same to accounted and to the said paid Myra Gaines; Clark the account to be taken laws of subject ¿s Louisiana cases such is now decreed in fav.or recover}' if thesaid'-complainant.

3; time, such directions make such orders from give To time as and. proper effect may earrying'into necessary directions, and for the due foi'egoing enforcing observance all the officers of the parties court. and-by same Justice.TANEY, Chief Mr. Justice Dissenting: CA- Mr.

TRON, and Mr. GRIER. Justice

Mr. Justice CATRON dissenting.. far A how it is affected principal is, case question bj decree, Chew, case wife v. of Gaines and .the Relf, in.

.others, 12 reported in Hovvard.-

In that casé first, recover: four complainant sought SUPKEME COURT.'

Gaines Hennen. fifths of real estate of Daniel Clark, to be vested alleged Mrs. as heir Gaines, Clark; of Daniel complainant, and, the undivided of the real estate secondly, owned moiety by death, Daniel Clark at his interest taken eommunity being his widow, the mother of the by complainant, Myra, whom she obtained a for said conveyance moiety 1844. In former ease this fougd court that Mrs. Gardette, the the. mother of Mrs. was the wife Gaines, of Jerome Des Grange, 1802 or when bill she intermarried with (in 1808,) alleged Daniel Clark, Clark; was. the widow therefore, not ' this of the estate claimed moiety bill was by rejected.

2. It case, the former the evidence furnished appeared by suit, the record in that that Caroline Clark by was the sister of Mrs. born before Gaines, mother the.father intermar- as is former ried, bill; but she by alleged fully recog- his nised the father as by illegitimate daughter, sup- him his lifetime, and after death by ported during friends. The Mr. Coxe these deposition facts proves very fully. the fact that the intermarried after parents Caro-

Conceding then birth, line’s made Caroline' a that. marriage legitimate child of heir with equal such marriage, Myra; being law of could Nor the father, Louisiana. the laws of State, take from .his child more legitimate than one-fifth his estate devise. Civil Code-of ch. part 1808; sec. And therefore Caroline'and each heir Myra four-fifths took .estate, of their father’s less the mother’s that is, four moiety; each shares On these twenty parts. portions will.of did not the children operate; estate as heirs. holding on the It two-twentieth .operated only which Daniel parts had the to devise Clark his will. Civil power Code, 232, 3.; 234, sec. sec. 4.

Caroline, who intermarried with Barnes, Doctor was a party to the former suit, and answered the respondent bill. She has since died jurisdiction court, and is beyond ’ still, the interest of hei party controversy; absent heirs is entitled to Nor protection... set up can. Mrs..Gaines claim to that interest. (cid:127) 1860.

Gaines Hennen. one-tenth the claim to the next As .part, question respects former case, the fact found that the is, whether com- wife, of Des was the establishes Grange’s plainant daughter Gaines, of Mrs. so that she is the status excluded from taking devisee Daniel Clark. as to the 1808, Code of this court provisions According as; father; that Mrs.

held Gaines could not take heir of her she could take her mother’s nor the deed 1844. by grant the laws of as stood in 1813, com- Louisiana, By bastard, was an adulterous and could not inherit plainant 156, her father, 1808, (cid:127)from art. declares, which p. (Code 46,) “ bastard, or adulterous, children, incestuous even duly shall their acknowledged, not-enjoy right inheriting 15, father declares, natural or mother.” And 212, article page fathers or that “natural mothers can no case dispose of their childreu, favor adulterine even acknowl- property the- unless to mere amount of what is to their edged, necessary sustenance, or them an to procure occupation profession by themselves.” support issue decided in the former suit

The whether the was, only before, mother and at the time of years .for complainant’s was, wife birth, the lawful Des Jerome Myra’s Grange.. court so and based its decree found, The the bill dismissing The established, that fact. carried with on all being fact the fact. result from 1st Stark. legal consequences sec.' Í82, 57. One these that Mrs. Ey., is, consequences bastard, was an adulterous laws according the will of Louisiana, her father. by incapable taking this follow; does not then But how suppose consequence the matter of stand? does Mrs. estoppel complainant, her amended filed in Gaines, bill, renounced all'claim by she her bill, had to sued for property by original (in- the same sued for as instituted heir of Daniel cluding now,) Clark, will of and asserted a to four-fifths right said as or forced heir -of property legal only legitimate Daniel would not on Clark, .child'of declared she rely said of 1813. R., will O. 85. p. also as heir

She renounced one estate virtually moiety CQURT. SUPREME

Gaines v. Hennen. set deed from her of, Clark died up Daniel possessed Clark; lawful widow of said mother for.the moiety lays interest of Louisiana. Old community being R., p. was entitled to her share in the

That the widow moiety relied on amend- community is.alleged foregoing who made the ment; being party complainant avowal, is bound it. Such the statute, law irrevocably a, 1808, the Code and the by of Louisian (p. 314,) declared 1825, p. Code (vol. 355.) n matter case-.the avowal was and in title, In the former evidence of the fact avowed as is.conclusive this case it against ' binds The of Louisiana the the complainant. law Federal. like, it the is on State binding in courts. courts manner 92; 1 St. at court has note held. uniformly So Large, (a) act of 1789. 34th sec. Judiciary Clark, Widow then her mother was If the lawful right undoubted, as the resided was Louisi- parties the moiety the the was ana, it acquired alleged property during .is her the. Mrs. Gaines must-abide by allegations coverture. formed, them issues were and on as on the suit, former (cid:127) n , in that suit proceeded.- decree the sued for the for- of Clark’s was of ten estate by parts Nine on a direct issue decree five-ninths The rejected mer bill. from said on mother, been to have acquired by-deed claimed when, is the wife óf as that she was Des Grange, the ground when, the Clark, intermarried complain- she alleged, made, the issue and found This by born. was precise ant was " res the undoubtedly and is thecourt, judicata respects moth five-tenths, Gainey, Mrs. her to the other As by er’s moiety. terms renounced one-fifth express bill amended will of 1811.' under Daniel Clark’s the -purchasers, To will one-fifth, of that validity recognised. extent her claim caunot be allowed to split up The complainant suits. several by sue -forportions Mrs. four-fifths of 'th’e Gaines claimed moiety The remaining ' heir, forced-heir. or no Heir, recover legal that she was Clark’.s -court found This daughter tried.

issue .621 v. Hennen. Gaines, wife, heir, Des and not Clark’s lawful there- by Grange’s follows, fore dismissed her bill. It that as to the four-fifths' stands barred as heir de- one-half, complainant, She is also the former cree.. to suo estopped by proceedings mother;. a second time for derived her moiety set a is claim to the one-tenth she thirdly, estopped up part and abandoned. renounced n cause, raised that in this are not objection parties An were sued same who former case. The bill alleges same; .are the and so are, -that that Mr. Hen- they except they under the railroad claims nen company conveyance made suit, land former dispute, if pending which, decided railroad would have against company, Hennen, and decided in favor of the bound being company, the complainant. bound rule that where chancery is,, there proceedings are suit, in each as between these parties de

contesting parties, It was so is res this court at cree held judicata. prcseut case of als. v. Thompson term Roberts and als. bill; were sued- the former defendants all, as

Sixty a decree on respondent's, joint got against complainant title set all. The up common them against estoppel operated defendant; her for each and in this second contestation against of title the same one. to the former respondent suit can set in his favor. the estoppel up are laws of' Louisiana

The relied on as confidently prescrib- true rule of In this estoppel. bill in .the ing English equity, a here, is, as the rule resorted that the remedy, same sub- cannot be twice between the same litigated ject-matter parties forward or left out of the first on case. .evidence Here brought 1813 introduced, will of is and could as well just have been suit. introduced the former was, that it had difficulty and recorded been in the court. proved But it probate have been as well just before the might proved forty years time it was admitted 'record as now. If a title' deed could not be read on the for want recorded, the hearing of being fail to recover. This is of constant occur- complainant might COUNT. SUPREME v. Hennen. as ás decree would be conclusive or rence; still, judgment It was sim- and recorded. authenticated had been if the deed proof legal of the complainant produce aply neglect had no concern. which the defendants a matter with form; an on will expériment. an existing making back Holding aud, case of the same proof, the issue of heirship, requiring iswill, established a mere suit on the a second failure, to bring the due administration of an evasion of jus- contrivance, will of On the be allowed. pres- which cannot tice, Clark declares the that will Daniel bill is founded. By ent heir, and lawful be his only toMyra, legitimate complainant, She’must, therefore, all his have to her estate. devises in wedlock. this to be born Conceding daughter, been as a took follows true, consequence complainant and it devisee, to the extent of four-fifths. As and not heir, are this a we called on to bill moiety, try to four-fifths no that we tried for- heir, heir, issue the precise suit. mer overtlmown, in 12 How. be ruin the decision

If reported who have confided be the consequence very many must like Orleans, In New city its soundness. rapidly-growing to be our former supposed protected much property hands. have must must Large improvements changed decree nine made in the since that suit was decided- years all estate as it his death, covered Daniel Clark’s existed at It defendants to it. de- had over If the odd sixty -and twenty ,ica to this bill be'recovered can the fendants so otherá agaiiist, to the first suit. who parties manifest from this

It most record that the aof fragment Mrs. here Gaines aud Mr. Ilenneu cause brought stipu- decide, effect, will, lation was intendedto the cause decide, defendants sued with Mr. other Ilenneu, jointly are their fate who at the hands fielpless, standing awaiting court. Clark, It is counsel that man, insisted could by being free and that the devise'to laws of Louisi- lawfully daughter; ana did to the ease of a and be- net free iran apply single

. DECEMBER

Gaines v. Bennen. to his child a married as was done here. queathing woman, Such a construction would evade the code to a extent. great Its terms are too and plain so courts controversy, Louisiana have held. Dorescourt, L., 178. Jung to this slaves if

According assumption, devisees, might the evasion was used to the fact mother was suppress that,the a slave. As in case of other wills must a conveyances, to take grantee capable devise; and it is undoubtedly true that the heir-at-law, or a devisee, a under former holding will, can the facts plead df evi- prove incapacity by parol dence, and defeat the will, last of.course thereby alienees, in the condition these are, can do same. The respondents case above cited L., and to the (4 178)'is directly point, same effect it was held in L., Robinett o. Verdum, 542.) (14 There, the court declared a slave donation to disguised child under the forms of a sale was null. absolutely

But of this cause the defence on right justice depends of bona The the-plea the answer. purchaser set'up by fide n billin is a chancery character, its re- peculiar when remedy sorted to in-the-Federal court of Louisiana. held State In the State courts there, this defence is unknown. But when resorts complainant to it' to enforce to lands rights court, can Federal defend an respondent himself, innoT cent if he purchaser, and can that he pleads, show acquired by at a purchase fair an price, title, with- apparent legal got outniotiee of an title, better believ- outstanding purchaser that he land; full ing acquired property ques- is, tion has the here made out such a respondent defence ? made purchase Clark, her le- Mary in fact, Chew & Relf. She

gally-constituted attorneys claimed instituted, to be the true owner a'will made in her favor as by.

heir. It is an inwill, due form, olographic fully proved, recorded. This will, from the time it was regularly probated in 1813, stood the true succession of Daniel Clark more as.

than An immense estate in forty years. lands and personal has been property under all acquired it, classes innocent without purchasers, fact that other any suspicion and better title existed. admitted behalf of the It on re- COURT.

624 SUPREME Gaines Sennen. v. each cause, purchaser in this spondents, by stipulation under who purchaser 1820, every subsequent bought .and one, first for a full price,' purchase money, paid bought This and for the land got purchased. regular conveyance title, title, according tested fair itself, was legal perfectly If 514. White, A., 6 laws of Louisiana. Duplesse from the an Clark sold the estate without authorization Mary liable court herself pay that act she rendered probate, by He ; testator’s did hot affect purchaser. debts but this nor to see to existed, uot debts bound to know that ..was any bill docs The present of the purchase-money. application Daniel Clark at uot there debts allege any owing sues the time death; complainant on contrary, without them, for the and lands, any and the rents profits insolvent-on Clark’s estate reductions. Daniel Finding their Gain'es, and Mrs. the accounts General exhibited, of said amendment of declare that do 1844, they require ‘‘discontinue their & Relf and that account, Chew they to that end.” prayer and admits the existence probate'of complainant the sales were 1811;

will of terms that but denies generaL mqde. forty respondents For more'thau years lawfully title, had a traceable to the and their alienors logál regular Clark; could sue succession Daniel only t-heu existing title. and land force of that knew They recover'the in New was born existence of Or- She Myra. nothing after her birth was or,T805, leans in and immediately father, Daniel her Clark, taken from her mother by reputed and Mrs. Davis. In and into the of Colonel put charge she was carried to State raised Pennsylvania, -childhood theiy till when she Resided intermarried with up and Da-vis; under name of W. Whitney, .Myra William during her true name, all time she history, ignorant .which bill, so in her first filed in in evi- She states put rights. in this. of the lands sued suit. Of Course pui’chasers dence have no existence for could the. complainant’s knowledge of title, in their took paid when they money been bona fide, But'1the would.have respondent's purchasers DECEMBER TERM, 1860. y. Hennen.

had the will of 1811 never existed. was the Clark Mary ap heir parent of her son in the legal line. Daniel ascending Clark was known and- an un New Orleans as recognised married man; he had resided there from his youth, well extensively uncommonly known, represented of Orleans in Territory A'number of witnesses Congress. prove, most that he was deemed conclusively, recog nised aas man who had never been married universally toup the time of his dead, death. father was then and .His Mary Clark, mother, as his undoubted heir. He ad recognised pwn dressed and made to ladies of propositions marriage after rank, it is he had married Madame Des pretended Grange.

Those 1820, who purchased including judges highest rank on the could not doubt residing spot, validity Clark’s title, and- to sell the lands Mary power they bought and paid-for. In the submitted to us on behalf of the printed argument n and on oral delivered-before

complainant, again argument us in this court, answer this de- apparently complete was, 1820, fence Clark was dead in when attor- Mary her made the and sales, her name. conveyed neys fact, The such nor bill no does the answer refer to alleges 1848, it. But the her bill of in evidence complainant, by here, Clark died in June or states July, Mary leaving that. who the

will, were, which the legatees allegiug (of complain- and some of these are made ant was defendants one;) legatees Daniel W. Coxe bill. circumstances proves con-' the will Clark, and Mary nectedwith died making says-she her will was in which and duly year proved recorded county, Pennsylvania. in Philadelphia Clark did not Mary relied on is also the suc- accept

It of the estate in foi’m. She possession taking cession by legal sell, and did sell, and gave possession power made have held actual adverse they possession the purchasers, since 1820. is This admitted of rec- conveyances their under late, after the too lapse is now ; thirty-five years ord set sued, to up objection. were this.technical The they before (cid:127) 40 von. xxiv SUPREME COURT. Mennen, v. is too in favor proceeding presumption regularity clear to admit of controversy. is of bona this plea purchaser, Another objection made fide from the & probate that Chew Relf no authority namely, Clark in the con to.sell, joined Mary Court valid, Clark was notwith The Mary conveyance veyance. circumstance, as the of Louisiana this Supreme Court standing held actual White, A., She Duplesse held as a in the same The will 'operated conveyance legal title.. act would have It of*sale done. manner that private at auction, sales óf the estate were made that the proved sales, court; made authorization of the had the form this late nor can the is the fair complainant presumption; at "decree have a these respondents. Presumption day against were make sales that'the authorized to pay 'executors duly was filed This bill ment debts- comes instead of proof. after Mrs. more Gaines became age, than years thirty, title, the first and took after vendor purchased thirty-six years orders of that the 1820; it must -be proper presumed arises from court probate presumption granted. in itself the is, of time. of and Possession lapse possession all of If nature' and an indieeum ownership. of things, men the tends to acquiesce possession, acquiescence persons of the the after possessor; lapse .thirty prove property the courts increase,'that of'justice, so for. probabilities years an claim be the of adverse without society, safety hold. have He been abund thirty years may foundation. ago who. of and evidence of able to-show antly regularity proceedings His witnesses be unable.to do so now. ownership,1 may may be as is here. His dead, the case emphatically title-papers lost; and or a court of must equity say, as destroyed may case Court of York did of McDonald New Supreme McNeal, R., v. “The fact is Johns. presumed (10 380,) the' from of men’s purpose principle possessions, quieting has not because the court think been made.” really grant Or, of Tennessee said the case of Court Supreme Hanes v. Peck, 236,) “In such (Martin Yerger’s R., case. & TERM, 1860. Hennen. of possession supplies testimony; presump- place length, belief; is is believe when the fact tion substituted we we in the absence of presume proved; proof.” he Had Clark’s sued this could Mary devisees purchaser, relied on orders presumption supply proof regular from the court to authorize the executors to sell, probate the.succession; Clark aud the Mary regularly accepted must same presumption prevail complainant. against It 25, is 7th the act March provided by section.of that contracts of sale real in Louisiana shall 1810, property office of the be recorded where the parish prop- judge if situated; is so recorded, contract shall be erty is It this case void. that both attor- power admitted Clark and the deeds to made under ney Mary purchasers iu were not recorded the officeof power probate judge, but that recorded in a office in New they, Or- notary’s leans; and it is assumed, and the is cause made to depend fact, on the that the sales of Chew & Relf, as mainly attorneys Clark, are null as to third for this Mary reason. persons is an entire mistake. The This act of never section Orleans, where land any application parish lies. It reference to those where the dispute .“had parishes was established, office parish with the judge combining ju- of the officer dicial those powers recorder of notary &o. “These were not powers mortgages,” possessed by of New parish Orleans. The judge city law is not to this and has been parish, so considered ever since applicable enactment.” Morris v. Crocker, Louis’a, its It is p. held, that the notarial

further officesof the city were proper in which record offices was to be made. Id. In this, and other all Clark’s respects, Mary conveyance regular. shows, evidence to this respondents against the claim set

bill, Clark’s' failure was up unjust. grossly his estate was The yer}’’large; wholly.insolvent. purchasers in fact nave debts to a paid amount. of them large Many The are have built and yet unpaid. purchasers houses raised on the families now to be A property city recovered: sought SUPREME COURT. v. Hennen.

Gaines it. It has increased value five has been built probably it has. ; hundred since 1820 much of certainly fold a harassed with That have been respondents previous lawsuit the same property, complainant which heir, defeated, claimed and was case nor helps neither lessens the on respondents. hardships imposed law and of fact were At the conclusions relied argument, on the case established of Patterson v. having b/ was a wife, and in 6 Hów. R. That false Gaines reported with the wife, made Gaines assent fictitious case up by to him the Patterson, sued they relinquished property to circumvent this for. The suit was court object an here, contrivance obtain fraudulent end opinion the other defendants sued rights governing jointly this, And in General and Mrs with Patterson. Gaines seem- both the obtained and decree They opinion succeeded. ingly but when other defendants came to a sought; hearr they as a witness, examined Patterson aiid and ex- proved ing and fraud the contrivance testimony posed by practised; now to declare that' so and for to this contempt gross us. of a so court, and the fraud practice admin- disgraceful istration of established matter fact or any bind- justice, law, would to sanction and uphold principle ing and to invite its That case should be repetition. proceeding, as was -whenthe cause of which it disregarded, disregarded, was heard is re- part fully fairly vol. 12. Reps., Iioward-’s ported v. Veazie, How., case of Lord is full to the (8 253,) because is that a fictitious void there no

point, proceeding did matter at all, Patterson act further contest. his name Mrs. lend to General and Gaines. They than' case their own answer to up filing '.made filing bill— suited their evidence as up purposes; bringing such name. court Patterson’s appeal Howard, to their bill made in an amendment (12 By - and Mrs. had the boldness allege General 537,) ju- res the dee’ee in Patterson’s fictitious case claim Gaines-v.Hennen. dieata, and an to the other to suit; that estoppel defendants eud relied ou the decree final in to.that on.the hearing object of thereby avowing fraudulent that obtaining decree.

A not question decided iu the case directly reported How. was, whether Daniel Clark married Mrs. Des Grange.

Madame swore that she was at the Despau present, marriage and that several others Her Philadelphia, present^ ‘weré credit as witness were so integrity directly overthrown in the former case of Daniel W. Coxe, deposition circumstances, as to leave her evidence of by many no value.

She swore she went to Philadelphia with sister-to- evidence of Des procure to Grange’s mar- marriage previous her sister. Coxe doubt that the rying proved beyond two.

women there came sole purpose the birth concealing of a which Mrs. Des child, of was and of Grange pregnant, delivered, which she was soon and it was very secreted and raised near to womanhood This was Philadelphia.' Caroline, afterwards Mrs. Barnes. And so soon Mrs. Des Grange able to women travel, was the two returned to New Orleans. also

Me.' swore several that this Despau depositions At the Des child. time of its birth he had been ab- Grange’s than a sent Fraileé for more Clark year. sent Mrs. Des letter, to Mr. Coxe with the child Clark’s, saying Grange mother, and for the take to provide charge child, did. was' which Coxe It at" the suggested argument witness, and Coxe was-not enti- a'competent altogether estate owed tled to credit. Clark’s Coxe and if Mrs. largely, recovered, then Coxe to be expected Gaines benefited he was interested to Mrs. uphold Gaines’s recovery. .So claim; Mr. Coxe been deposition to; nor has objected 93; R., it is admitted contrary, by stipulation. on character Coxe’s manifest integrity Mr. prominently facts. sustaining one admitted entitled to never Clark marriage believed, when could what a or who credit, swearing said. man had dead and Mrs. another Des marry lady

He proposed, COURT. SUPREME ti30 Hennen.- and sent came and Madame to Philadelphia, Uespaú Grange Mr. Coxe, then in large for Mr. Clark partnership whether the of him transactions, and inquired mercantile said Coxe Mrs. Des fact was true. asséuted. Grange then felt at lib- and that she her, Clark promised marry M. herself; she was married to after, and soon marry erty Gardette, a dentist Philadelphia. Orleans,'and sued to was

In 1806 Des returned New Grange and decree recovered, his She had a wife hy alimony. annum. Mrs. Des him for five hundred dollars per against her husband, never assumed that Clark was so far as Grange reliable She resided in are from source.' Lou- we informed these, until had and isiana for many pro- years, proceedings more, fifteen and and could have years deposed gressed her seen had to examine proper the fact of daughter marriage witness; as but this done. not immaterial, whether however, Clark did or It altogether wife, Des be as could of no value -did not marry Grange’s if he did. Clark must have been an inno- complainant and deluded Mrs. Gaines benefit cent party give pro- the will of 1818—as case of an adventurer, from posed woman, an innocent a wife abroad, marrying single leaving There, the children of the second him. can- behind marriage can take condemned; bastards, and as disinherited mother’. So the Louisiana hold. But what courts acted facts here? Clark in concert with Mrs. Des are her sisters in Des as Prance, sending Grange Grange wife’s settle the affairs his .to of ah estate family, up agent at Bordeaux.- Des was absent theirs about fifteen Grange time, in the mean before the months, shortly expira- time, delivered Mrs. Des of the child Grange tion of which Clark admitted at at all times Caroline Philadelphia, death was his child. This is an fact. before undisputed of Des acted friend Grange, Clark as'the. corresponded and aided his wife. absence, him crim- during that was the birth of the had inal child exposed connection Prance; Des existed was sent before obviously Grange him and of in the transaction sending away, prosecuting DECEMBER

Gaines v. Hennen. return, sisters, him on his Mrs. Des her two Grange, Clark, Madame undoubtedly conjunction. acting prosecution swears that Cailliv'et she set on foot the against Des 12 How., 509, 510. Grange.

That Des a wife married when he Grange living mother was a mere complainant’s a nefarious to cover pretence transaction, as is the facts abundantly appear- established by therefore, in the case in 12 reported Howard. The ing idea, that Clark was an innocent and inad- deluded is wholly party, and must be missible, rejected least sustained part this remarkable case. am of

I that the decree opinion of the Circuit Court should be affirmed.

Mr. Justice GRIER dissenting. I dissent from the wholly opinion majority case, in this court both to the law facts. and.the. But I do not think it to vindicate necessary my opinion by view a public of the scandalous presenting again history which has beén buried under the dust of half a gossip century, and which proper feeling should have suffered delicacy so; remain I therefore case,- dismiss the as I for'the hope, time, with the remark, last that if be the law Lou- single isiana that a will can be established the dim recollections, or inventions of anile imaginations, after gossips, forty-five to disturb the titles and years, of bona possessions pur- fide chasers, notice, without of an indefeasible apparently lega' title, flaud invideo,miror equixlem magis.”

Case Details

Case Name: Gaines v. Hennen

Court Name: Supreme Court of the United States

Date Published: Mar 14, 1861

Citation: 65 U.S. 553

Court Abbreviation: SCOTUS