The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1850-03-11

DAYS after the dissolution of the marriage, or after
sentence Of separation" Now, we have record
proof that De Grange was here IN New Orleans as
late az the 9th Of December, 1905, and we have
evidence Of the sumo character that the Judgment
galnst him, which has been called Judgment OF
divorce, though the record does not show the
grounds upon which It was gwen. was not rendered
until July oath, 1906 What can be the object OF
such legal presumptions, If the party who claims
rights, under contract OF marriage, can be
permitted TO fix the date thereof at any time
within the space Of eleven months III time be
important In controversy OF this nature, and The
arguments show II 10 be important, then the COM
plansnt should be bound to fix definitely the date
Of the marriage, by virtue OF which all her rights
have accrued. This was in the contemplation OF
the Spanish law, whose whole policy was opposed
Of marriages TO be kept. If II be beyond the power
of the complainant 10 fix definitely the date OF the
marriage IN this instance, IL is a misfortune, tor
which the authors OF her being, aud net The de-
PENDANTS, were responsible The rule which has
been followed in this case, Is one which, in my
judgment, is calculated TO lead to dangerous con-
sequences Upon the testimony of Madam Despair
alone, the Supreme Court of the United States
have solmenly decided IN the case Of Patterson,
that Daniel Clark was married in Philadelphia, ia
1908. The attention OF the defence In this case
naturally directed towards that particular date
and they have shown most conclusively that the
marriage never could have taken place at the time
and place thus definitely fixed by the testimony Of
lhe only witness who pretends to any personal
knowlt dye upon the subject.
The evidence in the record shows most satisiac-
toriiy that the complainant was born while DE
Grange was in New Orleans, and before any Judg
men, OF divorce was given against him; and the
SupIeme OF this State, IN the case OF Tate "
PenLe, q n 5 55i), have said that the law con-
slders The husband OF the mother, as the father OF
all the children conceived during the marriage.
In Gaze Of voluntary separation, access is always
presumed unless the contrary be proved: the pre-
sumption Of pate rniiy is al end, when the remote
ness oil Inc husband from the wife has been such
that coha bitatlon has been physically Impossible.
: Code OF 1865, p. IS, art Z, 10 & IL. "The ev-
dence." again remarks Judge Porter, who de-
hveied The opinion OF the Court, "creates pre-
SUMPTION Ct absence and nou-accsss; but that
" III rot do IN cases Ike this. The legal presume
non vi The husband being the father, and OF access
beng presumed Ia cases OF voluntary separation,
can only be destroyed by evidence bringing the
pariIes within the exception The law has created TO
the rule, namely, the physical impossibllity of
conhecnob-mOial Will not do. Now, that ply
steal imf disability Can only be shown by proving
The residence OF the husband and wife 10 be so
remote from each other that access was i'm
possible"
These principles of law, thus clearly recognised,
Tepel the presumption of the legitimacy of COM
planaIi sought 10 be established by the testimony
OF Madame Despair; and they will apply with great
er force 10 the merits OF this controversy, when
hereafter examine the question Involving the legal
vahoy OF The marriage with CLARK, con racted Be-
tore action Of nullity had been Instituted TO set
ASIDE the marriage with DeGrange.
Let us now proceed to test the credibiy of
Medame Despair, by other facts and circumstances
presented by the record. She states that she aad
her sister Zulime went to New York, to obtain the
record evidence OF the former marriage Of De-
Grange; but that, on their arrival, they found that
the records had been destroyed and yet, there has
been offered In evidence, on the part OF the COM
plaIDaDf, certificate of the marriage jacob De-
grange, with one Barbara Orci, signed by O'Brien,
the very priest who solemnized the marriage, and
dat fha Of mil
tins certificate, II appears that the original record
was TO be found atpage IS Of the register: Surely,
this be genuine, the records were not destroyed,
when the witness and her sister sought for the
desired record proof, in 1Sll-accordng to the pc
sluon now assumed by the solicitors OF the COM
plalnent- IN 1908 according to the testimony of
The witness herself. The complainant, therefore,
has proved too much.
Bot l.tus turn TO the acts and declarations both
OF CLARK and Zuime; and first, we will examine
those Of Zulime. While proceedings were pend
ing in the Ecclesiastical Court in this city, against
DsGTange, for bigamy, she appeared, and took an
affidavit MS the wife OF DeGrange; and in this at
fdavit, declares that she did not believe that her
husband was bigsmlst. Strong objections have
been urged against the record Of these proce edngs
before the Ecclesiastical Court, as evidence. My
own opinion clearly Is, that II is evidence to prove
rem rysan-thst such proceedings took place
and that Zuhme, under whom the complainant
also claims, appt AIRED In Court, and took an aida-
Wit as the wife of DeGrange, and that DeGrange
PoItant as lucontesuble record evidence, showing
strong grounds for the presumption that Zume
had rot been previously married IN Philadelphia TO
Daniti Clark. These proceedings before the Ec-
clesiasical tribunal took place several months af.
tel Gas the compliments solicitor contends) the
nIsTflsge was celebrated. Madame Despair swears
that De GIange had fled from the country, when
CLARK made proposals Of marriage TO Zulims; and
yet we mud him here In New Orleans, appearing as
dele Ddant Ia the Sc pToceedngs,' in the month Of
SEPTEMBER, leO2 He was also here when
Clark was ON his way TO New York, on the 9th
OF Jone, ls02, as appears by letter addressed by
the latter to Chew n Ref, from Plaquemines.
In reference TO a debt due HIM from DE Grange,
he says.-"l wish you not to push Mr.. ID. for pay
mtni, but wait, consistent with safety, such time
as he may find necessary. Should he be inclined
10 10 away before the sum IL paid, you must insist
On tecuny." BY a letter addressed by DE Grange
To Clark from Bordeaux, on the oath OF July, 1901,
u lie evident that the former was in France about
the time his wife vas IN Philadelphia, not, as
FOL, mny believe from the evidence, TOR the pur.
pose Of procuring evidence Of the former marriage
OF DE Grange. but OF giving birth to Caroline the
fInit OF her Illicit connection with Daniel Clark.
When we consider this letter Of De Grange
couched as II Is IN the friendly language, and
containing warm recommendation Of his wife TO
the Kind consideration OF Clark-in connection
with the testimony OF Coke, detailing the crcum-
stances OF Zulme's Introduction to him in Phlla-
Deb hia. end the birth of Caroline, which shortly
followed, / confess find little indeed to Justify
the enthusiastic encomia so repeatedly bestowed
BY various witnesses on this record, on the charac-
ter OF CLARK, as an honorable, hIga- minded man.
But there 10 another fact which conclusively
shows that the testimony Of Madame Despau, IN
relation TO the marriage OF Clark and Zuime, can
not be relied On. allude now to the suit tor alt
mony, which was instituted by Zullme against DE
Grange as her husband, on the Both of November,
lso5-ibree years after 1t Is alleged the marriage
ives soltmnIzed. The solicitors for the complain
emit have strenuously resisted the introduction Of
The record OF this suit, as evidence against the
complainant ] am unable to appreciate the force
q these objections. Nothing is more common In
The courts Of Louisiana, than the introduction Of
such evidence, to show the capacity 10 which
party has chosen TO place himsel before court TO
sssert night. The general principle IN the Eoz-
sh law OF evidence, that allegations IN a bill of
chsnceiy are not evidence against the complainant
IN The bill IN another suit. rests, | apprehend upon
he fact that the Courts Of Cbancery, IN England,
are not courts Of record. Here, all our courts are
courts of record, and IT would be, in my iuds.
m.nf, dangerous principle to introduce INTO
our jurisprudence, that a party shall be per-
nitisd. IN a solemn judicial proceeding, to as
'tft fact one day. and on another day be at
Liberty to deny It am clearly of opinion that
he record in The anil tar alifnonv 4. ,..1 -