The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-02-02
. cu.mnAHD GAINES CASE.
Opinion Of Judges Wayne and Daniels.
vnHsSA states suprene CouEt--Nyra Ciars
1;aines w. Relf, Chow q al.


n this celebrated case, Judge Catron gave the
opinion Of the Court adverse 70 the claims of Mrs
CRANES Mr.. Justice Wayne aud Mr.. Justice Daniel
sfissented. Mr.. Justice Wayne delivered the follow
~ dissenting opinion
dissent from the judgment just given, and vii
i've nv reasons for doing so briefly as can. But
u viii necessarily occupy some time.
believe that the case of the complainant has been
nvoved beyond a reasonable doubt, the law requires
70 he done: say the law requires II to DC done,
Without reaang to imply any doubt OF the fact, but
shat the fact has been proved according to those
rules which experience has shown 70 be necessary
and sufficient 10 guard conjugal and other domestic
relations from caprcious and nnregulated judgments
Those rules to be found in adjudicated cases Of
sur own and OF the English courts, aud in the
illusions OF the civil and canon law applicable to cases
OF this kind.
think it has been proved, that Myra Clark Gaines
IL The only child of her father Daniel Clark by hs
marriage with her mother, Zuime Carriere. That
when the marriage took place, the parties were will
hing to contract able to contract and that they did
contract marriage in Pennsylvania according to the
laws Of that state, in the year 1902. also think
that there was nothing then or now IN the laws OF
Louisiana which lessons in any way the validity OF
that marriage. The proofs OF these declarations shall
hereafter be pointed out with the law IN support Of
them.
Nv first object is TO state the evidence relied upon
BY the parties this suit and in what way il should
have been examined aud appreciated by this court,
mean TO say, that Judgment has been given against
the complainant upon testimony introduced into the
record OF the against the protest OF her counsel
which il altogether nadmssible under the rules for
the admission Of testimony in courts of justice, and
which have hitherto been observed end enjoned by
this court in its judgments. And further, that adj
missions and ayerments in the Of The defend
ants in respect to certain portions OF testimony Of
fered by them, have been overlooked, by which the
complainant has been deprived of proofs which time
cut Of mind in chancery have been considered con-
49, ~ fha Of I'D in VtlAfh
or not the same makes against a defendant or for
complainant.
Secondly / will show that all Of the testimony ola
documentary kind introduced By the defendants, er.
szt one oftem, ought not 10 hare bees receired By
tkss court eridincG account Of some OF them MOI
besAg property authenticated as records Of a judicial
character, and because others being res ater oftas
acfa, Gliis protest aec n0ca d,sd hat such docn-
Rssst, papers, for the causes Just stated haze al
,c0ys been rejected by he courts of common ia,c and
By courts Of ctaacery; and further, that they womi
not A1ce 6sea receired the courts 81 Louisiana n
Ais case had been IN Of is Tribunals.
The defendants deny The marriage between the
compliments father and mother and il there was
marriage they contest its validity on account of her
mother having then another husband alive. 1t is ad
mitted that marriage had been solennized between
her and jerome Desgrange, but the complainant
shows by competent testimony sufficient to establish
the fact that Desgrlnge married man, with
wife alive when he married her mother. That such
being the fact their marriage was void al itttio and
that she at liberty to marry with another A. II no
and herself. In other words, that such connection,
though entered into according to the forms Of mar
rage makes no impedment by the civil, the canon,
o. common law, in the way OF second marriage by
the party imposed upon. The defendants rejon, say
ing, even though the marriage with Dessrlnge was
void account Of his bsamy that she could not con
tract marriage again, before she had obtained SEN
tence Of nullity of her marriage with DesgTange Ii
is also urged by the defendants. if there
rage between the father and mother Of the complain
ant, that was void on account of what the canon
law terms its ciondestiaHy. That according to that
law, it then prevailed in Louisiana, the issue OF
such marriage was Legitimate and that it has no
civil effect to give rights OF property or inheritance 70
the issue OF such marriage To this the complain
ant replies that the marriage OF herfather and mother
was sOlenniZed III the State Of Pennsylvania accord
ing TO the law OF that State. That the Ter toc'
0c.s gives TO the issue the status OF legitimacy for
al purposes in Louisiana and elsewhere whether the
issue was born there or out of its jurisdiction: and
further, that marriages which have been clandesne
" soemnzed that il, by not Observing the solemn
ties Of the church, though they are condemned the
canon law they existed in Louisiana, are not made
v0id-cap. quGd I,o5es tit que f!,l sgRt tgts othe
objection that there had not been a sentence Of the
nullty Of the marriage with Dessrange, the com-
rlsnant answers, that when niaira.e by the canon
law and as it then was in Louisiana, IL s6 igcd, Ilu
and void, that no decsratory sentence OF pnlty il
absolutely necessary, though it may be expcdicnt to
have one to rensae the parties IN Their original u-
connected condition Tbatthis is especially %, when
one ofthe partiesat the time ofmarage bad beea pre-
vioosy married and that marriage had not been dssol
we'd by death or by operation oflaw. Thata sentence
of nullity only absolutely necessary to restore the
ability of persons to marry when it i sought to have
q marriage declared de focto void on account Of non
compliance with the law directing the mode for sol
emnzing marriage, when one Of the parties seeks
Q dissolution account OF tearsuch a. tire fear OF
death or Imprisonment having beeu used 20 compel
q party to marry where the marriage l. voidable
for incest impotence, or II the woman y Minus
arrfa for which an ecclesiastical court will pronounce
4 null and void in the lifetime Of the parties which,
when done restores the partieS except IN the third
case mentioned, to their former ability TO contract
espousals and marriage with others a. If they had
NOT been in that connection with each other.
The defendants, to maintain their denial OF the
marriage between the father and mother OF the
planant attempt to dscredit her witnesses who
examined to prove it. For that purpose they exam
ined persons as to the character OF the Witnesses
They attempt to show contradictions III the testimony
Of two of them taken at different times, and aleSe
concealment OF facts which is said they were bound
10 disclose in their examinations and they were also
permitted TO put in evidence certain papers relating
to the marriage with Desgrange and it, continuance
after the alleged marriage OF Zullme with Clark.
Those papers are First. One termed ecclesiastical
prosecution OF Desgrange for hgamy in 1902; Second
The proceedings Of q court in Louisiana IN 1895 at
the instance of Zulime against Desgrange FOR alimo
ny; Third Another for like purpose at the ifs lance
Ut Mr. Davis to whose care the complainant was con
fded by her father in her infancy, in which she is
called a natural'cbd Of her father; Fourth An i'm
perfect record of suit brought by the compliments
mother in 1906 in her maiden name against tue name
If Desgrange, for divorce sentence OF nuliity 81
their marriage III which there judgment against
him, or in her favor.
The last record stands in this suit upon different
tootng from the ecclesiastical proceedings inasmuch
Ms II is properly authenticated ID make IT evidence
judicial record, and the other is not Also, be-
cause the defendants introduce il, aud declare il in
their answers tn be petition by the complainants
mother Zulime Nee Car1iere wife Of the said Des-
grange, TO a competent Judicial tribunal in New Or
leans therein representing herself rs the wife of
Desgrsnge and praying for divorce and dissolution
of the bonds Of matrmony existing between her and
Desgrange, which was subsequently decreed, alter
the birth Of the complainant And they further aver
in their answers that having obtained divorce aud
having resumed her maiden name she afterwards, n
1908, intermarried with James Gardette The
defendants also rely the conduct of Clark and Zu.
lime before and after il Is said they married 20
disproye their marriage, aud TO establish that they
L. lDl-x.