Gaines v. Relf - 53 U.S. 472 (1851)
U.S. Supreme Court
Gaines v. Relf, 53 U.S. 12 How. 472 472 (1851)
Gaines v. Relf
53 U.S. (12 How.) 472
Myra Clark Gaines filed a bill in chancery alleging her claim to certain property upon the ground that Clark, who died seized of the property, had been married to Zulime, the mother of the complainant.
The claim was resisted upon two grounds: 1st, that no such alleged marriage took place, and 2d, that Zulime was, at the date of the alleged marriage, the wife of a man named Desgrange. The marriage with Desgrange was admitted by the complainant, but it was contended that the marriage was void ab initio because Desgrange, at the time of contracting it, had another wife living, and therefore was guilty of bigamy.
In this case it is decided that the two principal witnesses for the complainant to establish
the fact of the marriage between Zulime and Clark, the parents of the complainant, are unworthy of credit.
That the charge of bigamy against Desgrange is not substantial, because:
1. The depositions of persons who testify to it only state hearsay and rumor.
2. That the naked confessions of bigamy which Desgrange was alleged to have made are incompetent evidence and inadmissible as against the executors of Clark and purchasers holding by sales from them. To hold that either party could by a mere declaration establish the fact that a marriage was void would be an alarming doctrine.
3. A certificate of a priest, given sixteen years after the marriage, that he had married Desgrange to his alleged first wife was inadmissible as evidence. There was no register of the marriage in the records of the church.
4. A mutilated record of a suit brought by Zulime against Desgrange, and alleged to have been for the purpose of having her marriage with him declared null and void, does not prove the bigamy of Desgrange. The cause of action is not stated, the petition having been lost.
A sworn copy of an ecclesiastical record, taken at the proper office and produced by the lawful keeper of the records, may be admitted as evidence, the original being produced by the bishop who had charge of the records of the bishopric.
This purported to be a trial of Desgrange for bigamy and his acquittal. It was competent evidence as rebutting testimony, inasmuch as proof of the loss of the record and secondary proof of its contents had been given on the other side.
The depositions of Zulime in this ecclesiastical case, and also in a suit brought by her against Desgrange for alimony, are received by this Court as competent evidence because there was notice of a motion in the circuit court to suppress the evidence, but in the course of along trial no such motion was made. If it had been made, the deponent herself was at hand to testify. No objection having been made to it in the court below, none can be made here. Moreover, the complainant claims under a deed of gift from the deponent, and is estopped by her declarations.
The decree of this Court in the case of Patterson v. Gaines, 6 How. 550, cannot affect other persons, because these persons were not parties to it and because that case was not a controversy carried on in earnest.
(MR. CHIEF JUSTICE Taney and MR. JUSTICE McLean did not sit in this cause.)
The bill was originally filed in the circuit court by William W. Whitney and Myra Clark Whitney now Myra Clark Gaines in 1836. From 1834 to 1836, they had been proceeding in the Probate Court of Louisiana, until in 1836 their petition was dismissed. They then filed a bill in the circuit court of the United States.
At January term, 1839, a motion was made in this Court for a mandamus to compel the circuit court to proceed according to the rules established by this Court for the regulation of chancery proceedings. The case is reported in 38 U. S. 13 Pet. 404.
It came up again at January term, 1841, upon a certificate of division in opinion between the judges of the circuit court, whether chancery practice should prevail there or not, and is reported in 40 U. S. 15 Pet. 9.
The defendants below having demurred to the bill, the case came up again upon another certificate of division in opinion at
January term, 1844, and is reported in 43 U. S. 2 How. 619 under the name of Gaines v. Chew.
One of the defendants, Patterson, having answered the bill instead of demurring to it, this branch of the case came before this Court again at January term, 1848, and is reported in 47 U. S. 6 How. 550.
The present case now came up upon pleas, answers, replications, and evidence, constituting a record of upwards of twelve hundred printed pages. Much of the history of the case and the substance of a considerable portion of the evidence is given in the two reports in 2 Howard and 6 Howard, and the reader is referred to those reports. Some of the most important parts of the additional evidence, introduced into the case for the first time, will be noticed in the present statement.
Mrs. Gaines claimed under two distinct titles, one as the forced heir of her father, Daniel Clark, and the other as the assignee of her mother's share of the estate which had been conveyed to her by her mother. In either view, the lawful marriage between Daniel Clark, her father, and Zulime Carriere, her mother, alleged to have taken place in 1802 or 1803, was the great point in the case to be proved, and the first step to establish that was the capacity of Zulime to marry. Her previous marriage with Desgrange was admitted, but it was alleged to have been null and void ab initio because Desgrange had another wife living when he contracted his marriage with Zulime Carriere. Part of the evidence to sustain this charge of bigamy against Desgrange is recited in the opinion of the Court, viz., the testimony of Madame Despau, Madame Caillanet, Joseph Bellechasse, and Madame Bengueril. Two other pieces of evidence were relied upon by the complainant to fix the charge of bigamy upon Desgrange, which are referred to in the opinion of the court with an intimation that the reporter should set them forth with more particularity. They were as follows:
1st. The catholic priest's certificate of Desgrange's prior marriage.
The existence of this paper was discovered in the following manner, as stated in the deposition of James Gardette, taken under a commission:
"And afterwards, to-wit, on 10 July, 1849, appeared Dr. James Gardette, a witness, heretofore called and examined on behalf of complainant, and now by them recalled, doth depose and say -- "
"Witness being shown document No. 6, filed with the commissioner by complainant on 23 June, 1849, being a certificate of marriage of one Jacobum Desgrange and Barbara Orci, he was asked to state when and where the same was found. Witness
says: My mother and myself were looking over the papers of Dr. Gardette, my father; several papers fell on the floor, and among them this paper was found. This paper was found after the decision of the Patterson case in the circuit court of the United States, and before the decision of the same case in the Supreme Court of the United States. And it was handed by my mother to General Gaines or his wife immediately after it was found."
"Cross-examination waived by Louis Janin, Esq., of counsel for defendants."
"J. W. GURLEY"
The certificate was as follows. The Latin is given as it is printed in the record.
"A.G., U.S. Com'r"
"Omnibus has literas, Inspecturis Salutem in Domino"
"Ego infrascriptus sacerdos Catholicus et Apostilicus, pastor Ecclesiae S. Petri Apostoli, hinc Praesentibus, notum facio et attestor omnibus et singulis, quorum interest, quod die sexta mensis Juli, A.D. 1790, in matrimonium conjunxerum Jacobum Degrange et Barbara m Orci, Testes praesentes fuerunt, Joannes O'Connell, Carolus Bernardi, et Victoria Bernardi. In quorum fidem, has manu propria scripsi, et subscripsi, vigilloq. muniri. Datum Neo Eboraci, vulgo New York, hac die 11d mensis Septembris, A.D. 1806."
"GULIELMUS V. O'BRIEN"
"Reg. pag., '45 Pastor Ecclesiae S. Petri ut supra"
"Nous, Gabriel Rey, general divisionaire, commissaire des relationes commerciales de France a New York, certifione que Monsieur Guillaume V. O'Brien, dont la signature est appose a l'extrait de mariage en l'autre part, est pretre et cure de l'Eglise Catholique de Ste. Pierre, en cette ville de New York, et qu'en cette qualite foi doit etre ajouter a sa dite signature tant en jugement que hors."
"En temoin de quoi nous avons signe le presente et scelle fait apposer le timbre du commissariat, a New York, le 13 Septembre, 1806."
"Endorsed: 'Admitted by defendants as proved, reserving all legal objections to its admissibility as evidence.'"
"J. W. GURLEY, Commissioner"
In order to fortify this certificate, the depositions of Ellen Guinan, John Power, and Charles E. Benson were taken in 1846.
Ellen Guinan was the niece of William V. O'Brien, and resided with him from the time that she was nine years old until he died, being about twenty years. O'Brien was pastor of the church for thirty years, viz., from 1784 to 1814, when he died. She had been accustomed to see him write several times a day, and testified that the whole of the above certificate was in his handwriting. She also deposed as follows:
"13. Question. Do you know the persons named in the body of this exhibit, Joannes O'Connel, Carolus Bernardi, and Victoria Bernardi?"
"Answer. I have heard of them, and think they are dead, but never knew or saw them that I know of."
"14. Question. Did you know Jacobum Desgrange and Barbara M. Orci, named in the body of the exhibit?"
"Answer. I did not -- never have known them."
"15. Question. Do you know whether the books or records of St. Peter's Church were at any time destroyed?"
"Answer. I heard they were."
"16. Question. When did you hear they were, and on what occasion?"
"Answer. A gentleman from Ireland, Mr. Cruise, who married the sister of Sir John Johnston, of Johnstown and Warrenstown in Ireland, came to inquire about the marriage of one of his family whom he had understood was married by my uncle. I told him to go to the church, as we had given up uncle's books after his death to Bishop Connelly, catholic bishop of this city. He came back and told us that he had found that the books had been destroyed by fire."
"17. Question. About how long ago was it that you thus heard that the books were destroyed?"
"Answer. To the best of my recollection, about thirteen or fourteen years ago."
"18. Question. What did you hear of Joannes O'Connell, Carolus Bernardi, and Victoria Bernardi, named in the exhibit shown you, and mentioned in a previous question?"
"Answer. I heard from my aunt, Louisa Jane O'Brien, that they were all attached to the Spanish ambassador's suite. I think O'Connell was his chaplain."
John Power, the Vicar General of the Diocese of New York, and Pastor of St. Peter's Church, deposed as follows:
"2. Question. How long have you been Pastor of St. Peter's Church?"
"Answer. I have been officiating as clergyman in that church
twenty-six years, taken in 1846 and pastor of it about twenty years."
"3. Question. Have records been kept in said St. Peter's Church of the marriages solemnized by the clergymen officiating there?"
"Answer. There have been, with more or less regularity; there have been frequent omissions arising either from neglect or accident."
"4. Question. Is there any written record now existing of the marriages solemnized by the clergymen of the said church previous to the year 1800?"
"Answer. I don't know that such a record exists; I have heard that it was missing, but have made no particular personal search for it; I don't know that I ever saw it."
"5. Question. Have you known, personally or by reputation, William V. O'Brien, now deceased?"
"Answer. I have no personal knowledge of him; he was dead when I came to this country, but his memory was then fresh in the minds of people, and he was held in high repute."
"6. Question. What was his profession, and what place or office did he hold here?"
"Answer. He was pastor of St. Peter's Church."
"7. Question. How long had he been pastor of St. Peter's Church?"
"Answer. Many years; I cannot say the precise time."
"8. Question. Do there appear to be any records in said church kept by him of the baptisms which he solemnized whilst pastor of said church?"
"Answer. There do."
"9. Question. Have they been universally and at all times received as genuine and authentic?"
"Answer. They have been always received as genuine and authentic, and I have no doubt that they are so."
"10. Question. Have you any knowledge of the handwriting of said William V. O'Brien, and if so whence have you derived it?"
"Answer. I have a knowledge of his handwriting, which I derived from the register of baptisms in St. Peter's Church, which have always been received as _____ handwriting."
"11. Question. From the knowledge which you have thus derived of his handwriting, do you believe the signature Gulielmus V. O'Brien in the exhibit marked A, now shown you, to be in the handwriting of said William V. O'Brien?"
"Answer. I believe it to be his handwriting; it is identically the same handwriting with that of the records now in the church of which I have spoken. "
12. Question. In whose handwriting do you believe the writing in said exhibit preceding said signature -- that is, the body of the marriage certificate, to which said signature is affixed -- to be?
"Answer. In the handwriting of said Rev. William V. O'Brien."
"13. Question. In what language did said Rev. Mr. O'Brien keep his records before spoken of?"
"Answer. In the Latin language."
"14. Question. How did he sign his name when writing in the Latin language?"
"Answer. In the same manner as it is signed in the exhibit marked A, which you have shown me -- Gulielmus V. O'Brien."
"15. Question. Had said Rev. Mr. O'Brien full and legal power to solemnize and perform the ceremonies of marriage while he was pastor of St. Peter's Church?"
"Answer. He had."
"16. Question. Have you a knowledge of, and are you versed in, the Latin language?"
"Answer. I am versed in the Latin language."
"17. Question. Please to read said certificate of marriage marked exhibit A, now shown you, and state whether the marriage of Desgrange, therein certified to, was performed according to the usages and formalities of the said church at the time of the date of the said certificate, so far as the same appears in, and by virtue of, the said certificate."
"Answer. The certificate is absolutely in due form, and it is to be presumed that the marriage was solemnized according to the rights and ceremonies of the Catholic church. Previous to giving this my answer, I have, as requested, read the said certificate, and understand its contents."
"18. Question. Do you know anything of the witnesses to the said marriage mentioned in said certificate, or any of them?"
"Answer. I do not."
Charles E. Benson, the clerk of St. Peter's Church, deposed as follows:
"2. Question. Have you the custody of the records of marriages and baptisms solemnized by the pastors and clergymen of said St. Peter's Church?"
"Answer. I have."
"3. Question. Is there existing now among those records any record or written memorandums of marriages solemnized by the pastors and clergymen of the said church previous to the year 1800?"
"Answer. There is now none existing of any date previous to the year 1802."
"4. Question. Have you any knowledge of the handwriting of William V. O'Brien, catholic priest, formerly pastor of said St. Peter's Church? "
"Answer. No other knowledge than such as I derive from the records of the church which were kept by him. Those records have been always received as authentic and genuine and as being in his handwriting."
"5. Question. From the knowledge which you have thus derived of his handwriting, do you believe the certificate of marriage, marked exhibit A, now shown to you, to be in his handwriting, including the signature, Gulielmus V. O'Brien?"
"Answer. I do; I have not the slightest doubt about it."
"6. Question. Are there any records of baptisms solemnized by the pastors of St. Peter's Church?"
"Answer. There are."
"7. Question. Are there any such records of baptisms belonging to said church kept by William V. O'Brien?"
"Answer. There are; from the year 1787 to the year 1808 in one register, and from 1808 to 1816 in another. There are in each of these registers other entries by other clergymen attached to the church."
"8. Question. In whose handwriting are the first entries in the oldest register spoken of by you?"
"Answer. In the handwriting of said Mr. O'Brien."
The witness also deposed that he had made diligent search for the register of marriages previous to the year 1802, but was not able to find it.
Another piece of evidence relied upon by the complainants was what is sometimes spoken of as a divorce record, and sometimes as a mutilated record. It was as follows:
"State of Louisiana, Third District Court of New Orleans"
"No. 256 of the docket of the late County Court of New Orleans."
"Citation. Mr. Ellery (curator of Desgrange):"
"You are hereby summoned to comply with the prayer of the annexed petition, or to file your answer thereto in writing, with the Clerk of the County of New Orleans at his office in New Orleans in eight days after the service hereof, and if you fail herein, judgment will be given against you by default."
"Witness, James Workman, judge of the said court, this 24th day of June in the year of our Lord 1806."
"[Signed] THOS. S. KENNEDY, Clerk"
"Return on citation served on Ellery, 30 June, 1806."
"[Signed] GEO. T. Ross, Sheriff"
"Plea filed July 1, 1806. "
"v. No. 556"
"County Court of New Orleans"
"The plea of Jerome Desgrange, defendant, to the petition of Zulime Carriere, plaintiff."
"This defendant, by protestation, not confessing or acknowledging all or any part of the matters and things in the plaintiff's said petition contained to be true, in such manner and form as the same are therein and thereby alleged, for plea unto the said petition saith, that this court ought not to have cognizance of the same, because the laws by which this court was created, and the jurisdiction thereof established, do not extend the same to cases of divorce, or give to this court any authority to pronounce therein, and because the damages in the said petition prayed for against this defendant cannot be inquired into or assessed, until after the judgment of this court, in touching the validity of the marriage between the petitioner and the defendant, shall be first declared."
"Wherefore, this defendant doth not suppose that this court will or ought to have or hold further cognizance of the petition aforesaid, and therefore this defendant doth plead the premises in bar to the said petition, and humbly demands judgment of this honorable court, whether he shall be put to make further answer thereto, and prays to be hence dismissed, with his reasonable costs and charges in this behalf wrongfully sustained."
"[Signed] A. R. ELLERY, for Def't"
"And the said plaintiff saith, that for anything by the defendant above, in pleading, alleged, she ought not to be barred or precluded from having and maintaining her action aforesaid against the said defendant."
"Wherefore, for want of a sufficient answer in this behalf, the plaintiff prays judgment &c."
"[Signed] BROWN & FROMENTIN, for Pl't'ff"
"Answer filed July 24, 1806."
"v. No. 556"
"County Court of [New] Orleans"
"Answer of Jerome Desgrange to the petition of Zulime Carriere"
"This defendant, saving and reserving to himself all manner of
benefit of exception to the many errors, untruths, and imperfections in the said petition contained, for answer thereunto saith that the facts in the said petition set forth are untrue, and prays that he may be hence dismissed with his costs and charges in this behalf most wrongfully sustained."
"[Signed] A. R. ELLERY, for Def't"
"[Then followed in the record a long certificate of marriage between Geronimo Desgrange and Maria Julia Carriere, performed by a Catholic priest on 2 December, 1794, which it is not necessary to transcribe.]"
"v. No. 356"
"Brown & Fromentin, for plaintiff; Ellery, for defendant."
"Petition filed June 24, 1806. Debt or damages, $100. nds 600. Plea filed July 1, 1806. Answer filed July 24, 1806. Set for trial on Thursday, 24 July."
"Summons issued for M. Coudrain, Chovot, Mary Marr, Rose Carriere, Christopher Joseph Le Prevost, Trouque, Le Breton d'Orgenoy, and Joseph Villar, senior."
"Attorneys . . . $10.00"
"Clerk . . . . . 7.87 1/2"
"Mr. Fourke, sworn"
"Judgment for plaintiff. Damages $100. July 24, 1846."
"State of Louisiana, Third district Court of New Orleans"
"I, Charles Weysham, Deputy Clerk of the Third District Court of New Orleans, do hereby certify, that the above and foregoing five pages do contain a full and complete transcript of the case, wherein Mrs. Zulime Carriere is plaintiff, and Jerome Desgrange is defendant, instituted in the late County Court of Orleans, under the No. 356, excepting the petition, that cannot be found. And that by operation of law, the records of the said County Court of Orleans have been transferred to this court, and are now in the custody of the clerk thereof."
"In testimony whereof I have hereunto set my hand, and affixed the seal of the said court at New Orleans on this fourteenth day of June, in the year of our Lord eighteen hundred and forty-nine, and the seventy-third year of the independence of the United States."
"[Signed] CHAS. WEYSHAM, Deputy Clerk"
In addition to these evidences of the bigamy of Desgrange, the complainant introduced the testimony of various persons to prove the fact of the public reputation at the time, and that of a great number of witnesses, to sustain the character of Madame Despau.
The above comprehends the principal evidence offered by the complainant and appellant, in addition to that which is set forth in the opinion of the court.
"Evidence offered by the respondents"
"1. The ecclesiastical record is transcribed in the opinion of court, and need not be repeated."
"2. A record which is spoken of as the Alimony Record."
"State of Louisiana, Third District Court of New Orleans"
"ZULIME C. DESGRANGE"
"No. 178, of the docket of the late County Court of Orleans"
"Petition filed November 30, 1805."
"To the honorable James Workman, Judge of the County Court of Orleans"
"The petition of Zulime Carriere Desgrange, an inhabitant of the City of New Orleans, humbly showeth:"
"That whereas it is provided by the first section of an act, entitled an act concerning alimony, and for other purposes, that the county court shall have jurisdiction on application from wives against their husbands, for alimony, on the husband deserting his wife, for one year successively, and in cases of cruel, inhuman, and barbarous treatment; and whereas your petitioner may adduce proofs before this Honorable Court that she has been cruelly and barbarously treated by Jerome Desgrange, her husband, and likewise that she has been deserted by him, for three years past, to-wit, from the second day of September, one thousand eight hundred and two, ever unto this day, although she has been told that the said Jerome Desgrange returned from France to New Orleans some time in the course of last month, and is now in the City of New Orleans."
"Wherefore, these are to pray that it may please your honor to order that the said Jerome Desgrange, your petitioners' husband, be condemned to pay to your petitioner a sum of five hundred dollars per annum, and that your petitioner be likewise entitled to all the other benefits and advantages belonging to her, in virtue
of the law of this territory in that case made and provided, and your petitioner, as in duty bound, shall ever pray."
"[Signed] ELIGIUR FROMENTIN"
"Attorney for Plaintiff"
"Mr. Jerome Desgrange:"
"You are hereby summoned to comply with the prayer of the annexed petition, or to file your answer thereto, in writing, with the clerk of the County of Orleans, at his office at New Orleans, in eight days after the service hereof, and if you fail herein, judgment will be given against you by default."
"ZULIME C. DESGRANGE"
"Witness, James Workman, judge of the said court, this 30th day of November, in the year of our Lord 1805."
"[Signed] THOS. S. KENNEDY, Clerk"
"Return on Citation"
"6th December, 1805, served on the defendant."
"[Signed] JOHN T. PROUILLARD, D.S."
"ZULIME C. DESGRANGE"
"Petition filed 30 November, 1805, for alimony. Served December 6, 1805. Judgment by default, December 19, 1805. The court doth award final judgment for the plaintiff, December 24, 1805."
"[Signed] JAMES WORKMAN"
"Attorney's fees, $19.62 1/2"
"Clerk's fees, 10.87 1/2"
"Execution issued December 24, 1805"
"State of Louisiana, Third District Court of New Orleans"
"I, Chas. Weysham, Deputy Clerk of the Third District Court of New Orleans, do hereby certify, that the above and foregoing four pages do contain a full and complete transcript of the record of the case, wherein Mrs. Zulime Carriere Desgrange is plaintiff and Jerome Desgrange is defendant, instituted in the late County Court of Orleans under the No. 178, and that by
operation of law the records of the said late County Court of Orleans have been transferred to this court, and are now in the custody of the clerk thereof."
3. In order to impeach the character of Madame Despau, three records were filed in evidence, the contents of which will be briefly stated under the letters A, B, C.
A. On 10 June, 1805, William Despau filed a petition in the Superior Court in and for the Territory of Orleans, praying for a separation from Marie Sophia Carriere, his wife. It alleged "incompatibility of humor and several other reasons, the recital of which would be too afflicting."
On 8 July, 1805, she answered the petition, admitting the material facts alleged.
On 11 January, 1806, a separation from bed and board was decreed, by consent, and the plaintiff was ordered to hand in an inventory of his estate.
B. Sophia filed her petition, on 1 September, 1806, alleging that her husband was about to sell two plantations or tracts of land, and praying an injunction, which was granted. On 2 October, 1806, Despau filed his answer, consenting that one-half of the proceeds of sale should be placed in bond and security, and the injunction was dissolved.
C. On 8 February, 1808, Despau filed his supplemental petition, with his affidavit dated 11 November, 1807, stating that on the preceding June his wife had left New Orleans clandestinely, being the second time that she had done so, for the purpose of going to the United States. Another witness made affidavit that she had set sail for North America.
Whereupon, in May, 1808, the court passed the following order:
"Ordered by the court, that the bond referred to in the petition on file in the office of the clerk of this Court be cancelled, and the security discharged, and that, as the defendant hath forfeited her right to the property acquired in the community, that the same vest in and belong to the petitioner."
"May 24th, 1808 [Signed] JOSHUA LEWIS"
"[Countersigned] J. W. SMITH, Clerk"
4. The respondents also gave in evidence two powers of attorney, one executed by the sisters of Zulime to Desgrange dated March 26, 1801, authorizing him to settle certain affairs in Bordeaux, in France, and the other from Desgrange to his wife, authorizing her to act for him in his absence. Also a letter written by Desgrange to Clark from Bordeaux and dated July, 1801. These papers are referred to or recited in the opinion of the court.
The respondents also gave in evidence the deposition of Daniel W. Coxe, of Philadelphia. To this were annexed a number of letters addressed to the deponent by Clark and numbered from 9 to 80. In addition to these a great number of letters to and from Clark were introduced into the case. These were used indiscriminately by the counsel for the appellants and appellees in their arguments, to sustain the views which they respectively took of the facts in the case. These letters showed Clark to have been twice in Philadelphia during the year 1802, once in April and again in the latter part of July and beginning of August.
The deposition of Coxe was twice taken, and both of them were inserted in this record. It was taken once in 1841 in a suit between John Barnes and wife against Edmund P. Gaines and wife, in the First Judicial District Court, and again in 1849 in this suit. In his answer to the 17th interrogatory in his deposition of 1841, he says:
"I repeat that the said Daniel Clark was in Philadelphia in the spring of the year 1802. The said Zulime was then there; she arrived there before the said Daniel Clark, and, as I have already stated, brought to me a letter of introduction from him. Daniel Clark was not in Philadelphia at the birth of Caroline."
And in his answer to the 7th interrogatory, he said:
"The first time Daniel Clark visited Philadelphia after the birth of Caroline was in the year 1802 and soon after her birth. I am enabled to fix the time by referring to a power of attorney left by him with me,"
A copy of that power is annexed to his deposition, and its date is 22 April, 1802.
In the deposition taken in 1849, he thus replied to the 14th interrogatory in chief:
"Daniel Clark did both write and speak to me about (his the said Clark's) relationship or connection with Madame Desgrange, the reputed mother of the complainant Myra. In the early part of the year 1802, the said Madame Desgrange presented herself to me with a letter from Daniel Clark, introducing her to me, and informing me in confidence that the bearer of that letter, Madame Desgrange, was pregnant with a child by him, and requesting me, as his friend, to make suitable provision for her, and to place her under the care of a respectable physician, requesting me at the same time to furnish her with whatever money she might want and stand in need of, during her stay in Philadelphia. As the friend of Mr. Clark, I undertook to attend to his request, and did attend to it. I employed the late William Shippen, M.D., to attend to her during her confinement, and procured for her a nurse. Soon after the birth
of the child, it was taken to the residence of its nurse. That child was called Caroline Clark, and, at the request of Mr. Clark, the child was left under my general charge and exclusive care until the year 1811. After that period, she was not so exclusively under my charge, but I had a general charge over her, which continued up to the period of her marriage with Dr. John Barnes, formerly of this city. She is now dead, as is also Dr. Shippen, before spoken of. Daniel Clark arrived in this city within a very short period after the birth of said Caroline, which was, I believe, in April, 1802, when I received from him the expression of his wishes in reference to this child. He left here shortly afterwards, as before stated by me. During Daniel Clark's subsequent visits to Philadelphia, he always visited that child, acknowledged and caressed it as his own, and continued to give me the expression of his wishes in reference to her. On the occasion of Mr. Clark's visit to Philadelphia immediately after the birth of Caroline, in conversation with me in reference to Madame Desgrange, he confirmed what he had stated in his letter of introduction, stating to me that he was the father of this illegitimate child, Caroline, and that he wished me to take care of her, and to let the woman have what money she stood in need of until she returned to New Orleans."
6. The respondents gave in evidence the depositions of a number of witnesses for the purpose of assailing the character of Zulime for chastity.
7. The respondents also gave in evidence the deposition of Patterson, to show the collusive manner in which the case of Patterson v. Gaines was brought up to this Court, as reported in 47 U. S. 6 How. 550. The substance of this deposition is recited in the opinion of the Court, and need not be repeated.
The above is a brief summary of the most important parts of the evidence in this cause, omitting what was published in 2 and 6 Howard and what is now inserted in the opinion of the Court.
On the 21st of February, 1850, the circuit court dismissed the complainant's bill, with costs, and thereupon the complainant appealed to this Court.