The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1848-04-01

diners from that OF Madame Despair ID in his narrative
Of the arrangement made by him. thu request Of Mr.
Clark, for the birth of Caroline now Mrs Barnes.
Madame Despair says she WAS the child Of De Grange
Mr. Coke, that Clark told him thst she was his child
These declarations at variance with each other
to the fact, but not contradictory The fact may be
one or tho other witness has related Il The difference
therefore, docs not at all discredt Madame Dsspau.
But the ignorance Of Col and Mrs Davis OF the
risge, in connsxon with the arrangements which
made bv them at the request OF it's father for the birth
of the child, and tho fathers great confidence In them
1t Is said Is extraordinary and But it
not equally that under such circumstances he should
not have communicated to them the reversed The lat
ter Is ordinarily the usual confidence between the par
ties upon such occasions and when it Is not made an
inquiry suggests itself at why il not done Its
not haviog been done, though extraordinary proves
nothing either one way the other tho mind left to
connect other facts with it. for the purpose Of enabling
to conclude what inference Justly be made from
such incident 80 much out OF the way of the conf
between parties upon such occasions There are
no such facts In this case to aid such an objection
There are facts independent of It, which happened az
terwards which repelit The witnesses speak of tho
s.treordinary affection manifested by Mr. Clark for
this child his daily visits parental and endearng fond
ness his costly presents and manifested pride her
,w = ssiiai her Myra Clark Ali Of this il not incon
iiisent with what men OF generous temper win and
their udiscrstion as TO the birth of child But when
parent doss IT, with subsequent declarations, made
over and ovor again to several persons Of chds le-
ritimacy rney may well be united with the latter to
move the objection that Mr. Clark had not mentioned
his msrrsgs to Colonel and Mrs. Davis Besides let It
DC remembered that tho evidence shows up to that
time, he had mentioned his marriage TO 40 Ma
dame Despair, his wife, and himself only knew the
crot his influences them made 1t his own until
they could SAX ae from the approheDsons excited In
them by his declaration that the marriage not to
be disclosed until the marriage With De Grange had
been judicially arnuiled He was man OF ordinary
character or influences upon those who were about him
His natural tness to control became habitusl as his
wealth and standing increased and it exercised and
involuntarily yelded to- By s who associated who
in business with him He man Of high quail
Of
generous but with pride which had yielded to
no modification, until bis affection subdued 1t to
sense OF justice, In behalf OF his child As to
Mrs. Clark's subsequent connexion with Gardstte,
whilst she was the wife OF Mr. Clark, considering 1t
alone, or with those which have been urged
ainst the fact Of that marriage our conclusion u.s. that
inexcusable as her conduct was there Is not enough
to make the fact of the marriage with Mr. Clark
doubtful DESCRIBING from consideration altogeth
the irritation aud impositions to which this female
had been subjected from her girlhood and her we'll
founded fears Of the fidelity of Mr. Clark and admit
ting she very deficient in her apprehension Of the
sacredness OF marriage however It may expose her
illusions against both, We do not deem 1t to be fact
strong enough TO set aside tho testimony OF one witness
who swesrs positively to heI marriage with Mr. Clark
and all the corroboratng proof of that fact in the
1t will raise suspicion against the marriage, III this
curious and original chapter Of domestic life, not
easily removed from the minds OF those who ndugs it,
But cannot permit 1t to prevail over the legitimacy
OF her child established as we think ourselves obliged
TO say ii has BEEN conformity with those rules OF
evidences which long exp arrnce and the wisdom OF
those who have gone before us in courts Of equity,
have deemed the BEST to ascertain in of doubt,
But 10 still said admit the marriage with Clark to
have taken place in Philadelphia that Mrs. Gaines
not inherit from her father, his marriage with her
mother being void account of her previous marriage
with De Grange
Thiswii depend upon the marriage with DeGrsngs
having been valid marriage, or upoo lis being void,
for one of those causes which dabes persons from con-
tracing marriage.
The burthsn Of proof in such 10 not upon the
party asserting the validity of the second marriages. but
on the other who asserts its invadty on account OF
the validity OF the first Both are Affirmative declara-
10 gttd lOyi seg
ae Argument Ia, the marriage With De Grange vsuIs
thu way of any right of Mrs Gaines to inherit from
f.sner until the record OF tho conviction Of De Grange
for bigsmy has been produced We do not understand
the law to be 30. bgamist may be proved 30, in a
beinfsrred Reputation OF marriage is not epough but
facts from which it may % inferred, In prose-
cHon for the offence there must be proof OF actual
marriage The confession of tho bissmist will be suf
hcisnt in civil suit whom made under circumstances
Gn,on ,% %% mo objection 70 rs as ns
rel in to the seventh nterrogatory 30
her My husband and myself were very ntimats with
De Grange, and when we reprosched him for his base
in imposing upon Zuline he endeavored to excuse
himself by saying Eat at the time Of his marrying her he
had abandoned his lawful wife, end intended to
sss her again" Record 2i2. And her answer to the
interrogatory Is Il am not related to-
nected with the defendant with either of them nor
with the mother of the said Myrs interested at
all in this suit 1t WAS In New Orleans where obtained
my information. 1t will be seen by my answers how
and the said Zuline, and know the lawful wo of the
said De Grange whom he had married previous to his
imposing himself in marriage upon ZultEe."
Tho credit of this witness is unsssaed Here, then
Is proof enough Of subsieting marriage between De
Grange and another female when hs married Mrs.
Gaines mother to ihvalidatc the latter
But suppose Madame BENG erel had not given such
testimony, that her credit had been successfully
sailed what would then be the state Of the obectoni
us this as all the other witnesses who speak OF the
prosecution OF De Grange for bigsmy, speak Of his
vction only as hearsay, or common report, the
oft without placing himself In the inconsistent atti
tude OF rejecting the hearssy to bs proof OF exst-
tim The testimony of Madame Bsnquer.l was intro.
ducsd by the plaintiffs, without any obligation upon
them to have done So 1t establishes the fact OF De
Oranges previous marriage for all the purposes Of this
controversy The denial In the Of the defend
ant that MIR Clark married is the assertion of
fact Of which the defendant cannot in the nature Of
things have positive knowledge, and Is therefore,
more than declaration of his belief. One witness,
therefore, ovorrules the denial
But there Is force In this objection, for another
son When in the progress Of suit In equity ques.
tion of pedigree arises and there is proof enough in the
cester the prssumptiono of law L. that child Of the
rage legitimate, and ft will b. ncum bent upon him
who denies IL to di,p.ovs It, though in doing so he may
have to provea negative.
Further, upontbS point, the record Of De Oranges
conviction csnaot be called for as thore proof that 1t
could not be found Ia the proper Office in New Orleans
where be- The compliments do not rely upon
susb proof to establish the fact that De Grange
married when lac married zuline. His declaration
50 Madame Benquere associated with other facts SUM-
Before leaving this point however, we will make a
sngle remark upon what said in the argument thL
il tho record OF De Oranges conviction had been pro-
duced it would not have been competent testimony.
f"om its being in er Giiss actd.
The general rule certainly is that person cannot be
affected much les concluded by any evidence decree,
judgment, TO which he not actually, or in
s-ration OF law prvy But the general rule has been
departed FROM "a lar as that wherever putaton would
DO admissible evidence there verdict between stran-
gers in former action is evidence also Such In
sses of manorsl rightspublc rights Of way, mmemo
rial CUSTOM disputed boundary, and pedgrees Duchess
OF Kngston's case, II Howell State trials 26l Davies
domsnd-Lownde's Tenant, Scott, U. r, Id. Doe
d. Bacon VS. Bridges, Scott, 333 Read VS.. jackson,
per Lawrence j. Eest 355 Briscoe vs. Lomax AID
Ell l9s Evans x Rees 10, Ad Ell. l5l; Bidduph VS..
Ather. Wells 49, Tooker VS. Duke Of Beaufort, Burr
1916 as TO immortal rights Brisco x Lomsx, Ad.
Ell 1885, as to disputed boundary; Lsybourn VS. Crisp
Nee w. $40, as to questions of immemoral CUSTOM
Trssers vs. Chaloner Gwl 1887 as to disputed modus
aud pedigree; Carr Heaton, Gwil 1861. In Neal d.
Duks Of Athol, Wilding Strange l57, the court
joctsd special verdict In former suit the defendants
not having been parties to that suit which offered