The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-02-02


the mother Of Myrs. nor am OF all interested in this
suit. Il was in New Orleans where l obtained my
| information. II will be seen by my answers how
knew the facts. ] was well acquainted with Des-
| grange, and knew the lawful wife Of Desgrange,
| whom he had married before imposing himself in
marriage upon Zulime. Now let this evidence be
taken in connection with the arrival OF Barbara
DOrci In New Orleans, from France, contemporary
with the return Of Desgrange and at his instance,
and the antecedent connection between them as that
is represented by both, and that there u in the re-
Desgrange and one Barbara Nee D'Orci, in every
| other particular corresponding with the relation
which these persons bad been in to each other in the
year 1880, excepting in this, that Desgrange was
| afterwards known as Jerome and not az Jacobus,
and it win be admitted that the facts just reced,
with Madame Benguerel's evidence, are sufficient TO
establish the bigamy Of Desgrange when he married
what is urged2 Nothing but the misapplcation of
| the case of Hartman vs.. McClelland, l6 Louis, 20,
in which it was rightly ruled that in application
! for divorce, it would not be granted upon the con-
fession Of husband and wife Of adultery The proof
in the case also shows that Desgrange disappeared
from New Orleans in 1902 account OF the current
! charge that he was bigamst, and whilst prosecu-
ton OF him was pending for that offence. There is
also proof that he did not return to New Orleans
until 1905, when Louisiana having become portion
of the United States, he could do SO without liability
to renewal of an ecclesiastical criminal prosecution
for bgamy, tothe punishment inflicted by the pro-
vncia law for that offence.
But sufficient as such proof is to establish bigamy
in civil suit, the complainant adds it to record evil
dence of the fact of Desgrange having been a mar
RED man when he imposed himself upon her mother
in marriage. The record and judgment OF court OF
competent jurisdiction, introduced by the defend
ants part of their proofs to show that there was
legal impeachment in the way OF Clarks marriage
with Zulme when it occurred and that it continued
| up TO 1906, when they were divorced 1t was used
for that purpose and much relied upon and 1t was
not until it shown that the judgment in that case
had relation back to the marriage, making it abso-
lutey void ab 1nto that it was urged that the re-
| cord was of no account because a part OF it was
| wanting Here it is necessary to be particular /
cite from their answers their averments concerning
that record Upon page So Of the record the defend
ants introduce it in the following terms, That after
wards on or about the oath Of June, 1906, Zulime
Nee Carriere, wife OF the said Desgrange, did pre-
sent another petition to the competent judicial tri-
bunal of the city OF New Orleans, therein represent
ing herself the wife and OF having intermarred
with Jerome Desgrange, and praying for divorce
and dissolution OF the bond Of matrimOny existing
between her and the said Jerome Desgrange, and
which was subsequently decreed, subsequent to the
birth of the complainant, Myla and for further an
swer say that in the cysof Philadelphia, on or about
the I'd day of August, 1908, Mrs. Desgrange having
obtained divorce from her husband, Jerome Des-
grange, and having resumed her maiden name, did
enter into a contract Of matrmony with and did
intermarry with James Gardette." The preceding
extract shows that the defendants not only use it to
establish the fact Of divorce but for the purpose OF
sustaining the rghtfulness Of Zulimes marriage with
Gardette. Now il the record, imperfect thought it
may be- shows that the divorce could only have been
decreed account of the legal invalidity of the mar
rage with Desgrange at the time OF its occurrence,
then unless it can be shown that the law interposed
an impeachment to marriage in the way OF the party
imposed upon, until sentence Of nnllity had been
obtained, Zuimes marriage with Clark was good
and valid marriage, though for marrying without
such sentence she may have subjected herself to
the discipline of the church. 1t will he seen, before
this opinion is closed, what the law is upon that
point.
The deficiency in the record of divorce is the want
of the petition. In every other particular it is per-
feet So much so that it discloses the object Of the
petition OF the for which the suit brought
aud for which the judgment Of the court was given
1t was introduced by the defendants who allege
that it was a decree of divorce, annullng the bonds
Of matrimony between Desgrange and Zullme, by
competent tribunal in New Orleans record 5S IS;
2lG and was pleaded in their answers. When 80 in
troduced by them and admitted by the court as ad-
Missile evidence, the complanants proved the loss
of the petition, and the short manner of entering
judgments in the court of which twas record 1906
] must here remark, though so brought forward by
the defendants, that the majority oil this court has
rejected it from having any such effect.
At this point. then my inquiries begin IN oppos
ton to the courts conclusion, as it has been an
nounced by my learned brother. The points are,
can we learn what is the effect ofjudgment without
the petition Can ascertain the cause for which
the Judgment was rendered without the petition?
What is the effect Of the judgment! 1t is one OF
court ofrecord having jurisdiction OF the subject and
the parties to the suit. 1t annuls the bonds of
matrimoDy-as the act OF competent tribunal, the
Judgment must be presumed to have been rightfuly
rendered, until the contrary appears This rule ap-
Plies as well to every Judgment decree rendered in
the various stages OF canse, from initiation of suit
to the final Adjudication affirming that the plaintiff
either has or has not right of action: 10 Pet 472.
The decree then had legitimate cause until the con.
traIy shall be shown. Now, the defendants plead
this record to the true avcrrng II to be upon their
oatbs, it cannot be further inquired into by the
court with view to take from either party in the suit
watt discoses. it, rejection by the court places its
judgment in the remarkable and unexamped cond
ton OF denying to the complainant the benefit Of the
defendan IS answer, as to fact which they plead to
be true Further, it decides against the complainant,
not upon the deficiency of her proofs, but by denial
Of fact, to By the defendants TO defeat the
compfaiDants suit
What but divorce, as contradistinguished from Sc
paration q mensd d Moro, could have been the cause
Of the suit? The witnesses, and all of them, say
that the bigamy OF Desgrange, or his having been
charged with it, induced Zuime to separate herself
from him, and to return to her family.
y0y reasoning to establish the character of the lost
petition, and continues by lengthy and elaborate
examination of paper NO. ], termed an ecclesiastical
document Embodied in this portion of the opinion
are the following sentences conclusions OF pre-
vious reasonings, which we quotc:-]
II follows then, that the judgment of the County
Court upon Zulimes pc ition, effectively as that
judgment is expressed, could only have been given
upon petition for sentence of the nullity Of the
marriage between the petitioner and Desgrange.
Thus with the guide OF settled principle in respect
to the law Of country transferred from one domin.
ion to another, until that law has been repealed the
purpose and object of the lost petition in Zuimes
application for q sentence of the nulty of her
riage with Desgnnge, is made ont with as much
certainty as if the petition had not been lost
| consider then, that the complainant has estab-
lished by such proof as the law requires that Des-
| grange committed the offence Of bgamy when he
married her mother; that she could legally disregard
the connection and marry another person; that she
did marry Clark: that the complainant is the only
offspring of their union, and is entitled to her egitime
| in her fathers estate.
| Ny views having been given upon the credit Of
Madame Despair and upon the testimony relating TO
the bgamy Of Desgrange, turn to that upon which
the defendants rely TO dsprove it. Their first paper
is termed the ecclesiastical proceedings in prosecu