Supreme Court of the United States

MYRA CLARK GAINES, APPELLANT,

v.

DUNCAN N. HENNEN.

December Term, 1860

65 (24 How.) 553

**1 THIS was an appeal from the Circuit Court of the United States for the eastern district of Louisiana.

The case had been frequently before this court in various aspects; first, in 13 Peters, 404, then in 15 Peters, 9, 2 Howard, 619, 6 Howard, 552, 15 Howard, 473. In some of these reports large extracts are made from the record, illustrating the points of law and fact then under consideration, and also the evidence in support of them. All of this past history was brought again to the notice of the court in the argument of the present case, which cannot be again recited in the present report. The reader who wishes to understand all the points which are discussed in the opinion of the court must turn back to the preceding volumes above cited, and follow the case through its successive developments. He will then be able to appreciate the concluding remark in the opinion of the court, which is as follows:

‘When hereafter some distinguished American lawyer shall retire from his practice to write the history of his country's jurisprudence, this case will be registered by him as the most remarkable in the records of its courts.'

West Headnotes

Adverse Possession 20 1

20 Adverse Possession

     20I Nature and Requisites

          20I(A) Acquisition of Rights by Prescription in General

               20k1 k. Nature and Grounds of Prescription. Most Cited Cases

The possessor must not only not be in bad faith, but in the positive belief that he is the true owner, and if he doubts the validity of his title, his possession is not the basis of prescription.

Adverse Possession 20 45

20 Adverse Possession

     20I Nature and Requisites

          20I(E) Duration and Continuity of Possession

               20k45 k. Suspension of Statute of Limitations. Most Cited Cases

Prescription is interrupted by institution of suit.

Evidence 157 207(4)

157 Evidence

     157VII Admissions

          157VII(A) Nature, Form, and Incidents in General

               157k206 Judicial Admissions

                    157k207 In General

                         157k207(4) k. Confession or Plea of Guilty in Criminal Prosecution. Most Cited Cases

In a civil suit the confession of a bigamist is sufficient to prove bigamy, when made under circumstances from which no objection to it as a confession can be implied.

Evidence 157 236(4)

157 Evidence

     157VII Admissions

          157VII(C) By Grantors, Former Owners, or Privies

               157k236 Testators and Intestates

                    157k236(4) k. Statements by Persons in Possession. Most Cited Cases

Under Louisiana law an extra judicial statement by an executor that he believes a debt to be due by the estate does not bind the heir, nor is the heir bound by the approval of a court as to such a claim if it is made ex parte.

Executors and Administrators 162 32(1)

162 Executors and Administrators

     162II Appointment, Qualification, and Tenure

          162k32 Revocation of Letters

               162k32(1) k. Grounds for or Objections to Revocation. Most Cited Cases

Courts of probate may for cause recall or annul testamentary letters.

Executors and Administrators 162 149

162 Executors and Administrators

     162IV Collection and Management of Estate

          162IV(B) Real Property and Interests Therein

               162k136 Sale

                    162k149 k. Setting Aside. Most Cited Cases

In a bill filed after the probate of a will, to recover property sold by executors appointed by a former will, previously admitted to probate, it was not necessary to make such executors parties.

Limitation of Actions 241 120

241 Limitation of Actions

     241II Computation of Period of Limitation

          241II(H) Commencement of Proceeding;  Relation Back

               241k120 k. Want of Jurisdiction. Most Cited Cases

Under Louisiana Law a legal interruption of prescription takes place where the possessor has been called to appear before a court of justice either on account of the property or the possession and the prescription is interrupted by such demand whether the suit has been brought before a court of competent jurisdiction or not.

Limitation of Actions 241 130(4)

241 Limitation of Actions

     241II Computation of Period of Limitation

          241II(H) Commencement of Proceeding;  Relation Back

               241k130 New Action After Dismissal or Nonsuit or Failure of Former Action

                    241k130(4) k. Abatement or Abandonment of Former Action. Most Cited Cases

Under Louisiana Code, 3484, by which legal interruption of prescription takes place where possessor has been called to appear before court of justice, a voluntary intentional and active abandonment of the suit is necessary in order to restore the running of a right of prescription.

Wills 409 206

409 Wills

     409V Probate or Contest of Will

          409V(A) Probate in General

               409k206 k. Instruments Which May Be Admitted to Probate. Most Cited Cases

A court of probate may declare that posterior will of a testator shall be recognized in the place of a prior will which has been proved previously at a time when it was not known to the court that the testator had revoked it.

Wills 409 217

409 Wills

     409V Probate or Contest of Will

          409V(A) Probate in General

               409k217 k. Successive Applications for Probate. Most Cited Cases

A subsequent will may be admitted to probate without any formal declaration that the first will is annulled, and notwithstanding that the estate may have been partly administered under the first.

Wills 409 221

409 Wills

     409V Probate or Contest of Will

          409V(A) Probate in General

               409k221 k. Revocation of Probate. Most Cited Cases

Courts of probate may neither destroy nor revoke wills.

Wills 409 233

409 Wills

     409V Probate or Contest of Will

          409V(C) Probate or Establishment of Lost or Destroyed Wills

               409k233 k. Instruments Which May Be Admitted to Probate or Established. Most Cited Cases

If a will duly executed and not revoked is lost, destroyed or mislaid, either in the lifetime of the testator, without his knowledge or after his death, it may be admitted to probate upon satisfactory proof being given of its having been lost, destroyed or mislaid and also of its contents.

Wills 409 289

409 Wills

     409V Probate or Contest of Will

          409V(M) Evidence

               409k287 Presumptions and Burden of Proof

                    409k289 k. Execution, Existence, and Genuineness. Most Cited Cases

Under Louisiana law to entitle petitioner to judgment recognizing existence and validity of will it was necessary that petitioner establish affirmatively that the testator executed a last will containing testamentary disposition as set forth in the petition and that he died without having destroyed or revoked it.

Wills 409 293(1)

409 Wills

     409V Probate or Contest of Will

          409V(M) Evidence

               409k291 Admissibility

                    409k293 Execution, Existence, and Genuineness

                         409k293(1) k. In General. Most Cited Cases

Under Code La. art. 1648, (LSA-C.C. art. 1655), providing that the holographic testament shall be opened if it be sealed, and must be acknowledged and proved by the declaration of two credible witnesses, who must attest that they recognized the testament as being entirely written, dated, and signed in the testator's handwriting, does not render inadmissible secondary evidence to prove the contents of a holographic will, where the will itself cannot be presented.

Wills 409 293(4)

409 Wills

     409V Probate or Contest of Will

          409V(M) Evidence

               409k291 Admissibility

                    409k293 Execution, Existence, and Genuineness

                         409k293(4) k. Lost or Destroyed Will. Most Cited Cases

Under Louisiana law, secondary proof is admissible to prove contents of a destroyed will and to carry it to probate.

Wills 409 293(4)

409 Wills

     409V Probate or Contest of Will

          409V(M) Evidence

               409k291 Admissibility

                    409k293 Execution, Existence, and Genuineness

                         409k293(4) k. Lost or Destroyed Will. Most Cited Cases

To entitle a party to give parol evidence of a will alleged to be destroyed where there is not conclusive evidence of its absolute destruction, the party must show that he has made diligent search and inquiry after the will in those places where it would most probably be found if in existence.

Wills 409 294

409 Wills

     409V Probate or Contest of Will

          409V(M) Evidence

               409k291 Admissibility

                    409k294 k. Attesting Witnesses. Most Cited Cases

The rule requiring a will to be established by the testimony of attesting witnesses does not prevent proof of the will by secondary evidence, in case of loss.

Judgment 228 749

228 Judgment

     228XIV Conclusiveness of Adjudication

          228XIV(D) Judgments in Particular Classes of Actions and Proceedings

               228k749 k. Probate Proceedings. Most Cited Cases

Wills 409 423

409 Wills

     409V Probate or Contest of Will

          409V(R) Operation and Effect

               409k422 Conclusiveness of Probate or Record

                    409k423 k. In General. Most Cited Cases

A decree admitting a will to probate does not conclude any one who may desire to contest the will with one claiming under it or using the probate as a muniment of title.

Equity 150 91

150 Equity

     150III Parties and Process

          150k89 Parties in General

               150k91 k. Nature and Extent of Interest. Most Cited Cases

A daughter, claiming under her father's will of 1813, filed a bill to recover the property sold by the executor appointed by a former will of 1811. Held, that neither such executor nor the heirs of her father's widow were necessary parties.

Judgment 228 584

228 Judgment

     228XIII Merger and Bar of Causes of Action and Defenses

          228XIII(B) Causes of Action and Defenses Merged, Barred, or Concluded

               228k584 k. Nature and Elements of Bar or Estoppel by Former Adjudication. Most Cited Cases

Complainant in a former suit sought to recover real estate as donee of her mother and as forced heir of her father, and in a second suit against different defendants she sought to recover as the legatee and legitimate child of her father under his will, which had been admitted to probate. Held, that the former suit was not res judicata to the latter since they were dissimilar as to parties and as to the thing sued for.

Children Out-Of-Wedlock 76H 1

76H Children Out-Of-Wedlock

     76HI Status in General

          76Hk1 k. Who Are Bastards, Illegitimate, or Out-Of-Wedlock;  Name and Status. Most Cited Cases

(Formerly 53k1  Bastards)

Under Old Code La. arts. 119, 120, where either of the parties to a bigamous marriage contracts it in good faith, the issue of such marriage is legitimate.

Children Out-Of-Wedlock 76H 1

76H Children Out-Of-Wedlock

     76HI Status in General

          76Hk1 k. Who Are Bastards, Illegitimate, or Out-Of-Wedlock;  Name and Status. Most Cited Cases

(Formerly 53k1  Bastards)

Where both parents or either of them contracted a second marriage in good faith, the issue of the second marriage is legitimate under Louisiana law.

Children Out-Of-Wedlock 76H 12

76H Children Out-Of-Wedlock

     76HI Status in General

          76Hk8 Legitimation

               76Hk12 k. Recognition or Acknowledgment. Most Cited Cases

(Formerly 53k13  Bastards)

A declaration in testator's will that legatee was testator's legitimate and only daughter would be taken as true in absence of full proof to the contrary.

Children Out-Of-Wedlock 76H 12

76H Children Out-Of-Wedlock

     76HI Status in General

          76Hk8 Legitimation

               76Hk12 k. Recognition or Acknowledgment. Most Cited Cases

(Formerly 53k13  Bastards)

Testamentary recognition of a child as legitimate is of the highest legal authority and all presumptions are to be taken in favor of such a declaration.

Children Out-Of-Wedlock 76H 80

76H Children Out-Of-Wedlock

     76HVI Property

          76Hk80 k. Capacity to Take or Inherit in General. Most Cited Cases

(Formerly 53k95  Bastards)

An illegitimate child born of illicit connection cannot claim rights of legitimate child but if he has been acknowledged by his father and mother, leaving no lawful children or descendants, the illegitimate child will be called to the legal estate or succession of the mother to the exclusion of the father and mother and other ascendants and collaterals of lawful kindred.

Children Out-Of-Wedlock 76H 85

76H Children Out-Of-Wedlock

     76HVI Property

          76Hk84 Inheritance

               76Hk85 k. In General. Most Cited Cases

(Formerly 53k100  Bastards)

A bastard in esse, whether born or unborn is competent to be a devisee or legatee of realty or personalty, the only question being whether when in esse the bastard is sufficiently designated as the object of the bequest.

Children Out-Of-Wedlock 76H 85

76H Children Out-Of-Wedlock

     76HVI Property

          76Hk84 Inheritance

               76Hk85 k. In General. Most Cited Cases

(Formerly 53k100  Bastards)

In determining whether a child which is adulterine in fact is legitimate for purposes of inheriting from its parents because the marriage was entered into in good faith by either or both of the parties, good faith will be presumed.

Children Out-Of-Wedlock 76H 85

76H Children Out-Of-Wedlock

     76HVI Property

          76Hk84 Inheritance

               76Hk85 k. In General. Most Cited Cases

(Formerly 53k100  Bastards)

Although under Louisiana law a child may be adulterine in fact it may be legitimate for all the purposes of inheriting from its parents, if one or either of the parents intermarried in good faith.

Children Out-Of-Wedlock 76H 86

76H Children Out-Of-Wedlock

     76HVI Property

          76Hk84 Inheritance

               76Hk86 k. From or Through Father. Most Cited Cases

(Formerly 53k101  Bastards)

Where an unmarried man marries in good faith a woman already married, his child will take his estate under his holographic will, made in favor of such child.

Children Out-Of-Wedlock 76H 86

76H Children Out-Of-Wedlock

     76HVI Property

          76Hk84 Inheritance

               76Hk86 k. From or Through Father. Most Cited Cases

(Formerly 53k101  Bastards)

An illegitimate child may inherit the father's succession to the exclusion of the state under Louisiana law if the father has acknowledged the child and has left no descendants or ascendant, no collateral relations nor surviving wife.

Children Out-Of-Wedlock 76H 86

76H Children Out-Of-Wedlock

     76HVI Property

          76Hk84 Inheritance

               76Hk86 k. From or Through Father. Most Cited Cases

(Formerly 53k101  Bastards)

A natural child may take by testament or will from his father if he was born before the father's will was made.

Children Out-Of-Wedlock 76H 90

76H Children Out-Of-Wedlock

     76HVI Property

          76Hk90 k. Effect of Recognition, Acknowledgment, or Legitimation. Most Cited Cases

(Formerly 53k105  Bastards)

The Code of Louisiana makes a distinction between acknowledged natural children and adulterine children, allowing the former to take as legatees, but not allowing the latter to do so, except to a small amount.

Bigamy 55 1

55 Bigamy

     55k1 k. Nature and Elements of Offense. Most Cited Cases

Under Spanish law the inquisition had no power to initiate a process in a case of bigamy for the punishment of it but in subjection to the royal ordinances, or to institute in the Indies after those ordinances were passed and inquisitorial tribunal concerning it before the accused had been convicted in the secular courts.

Bigamy 55 11

55 Bigamy

     55k6 Evidence

          55k11 k. Weight and Sufficiency. Most Cited Cases

A charge of bigamy in a criminal prosecution cannot be proved by any reputation of marriage and there must be proof of actual marriage before the accused can be convicted.

Marriage 253 50(4)

253 Marriage

     253k50 Weight and Sufficiency of Evidence

          253k50(4) k. Admissions and Declarations. Most Cited Cases

In a civil suit, the confession of a bigamist is sufficient to prove the prior marriage, when made under circumstances from which no objection to it as a confession can be implied.

*555 It was argued by Mr. Cushing and Mr. Perin for the appellant, and Mr. Janin and Mr. Hennen for the appellee.

**2 The record in this case consisted of a thousand printed pages, and the records in the preceding cases were introduced, also, into this. The reporter is saved from the almost hopeless task of following the counsel through this wide range of inquiry by the minute examination of the points of the case contained in the opinion of the court and dissenting opinion of Mr. Justice CATRON.*556

Since the case of Mrs. Gaines was before this court, as reported in 12 Howard, 537, the olographic will made by Daniel Clark, in 1813, was ordered by the Supreme Court of Louisiana to be admitted to probate, notwithstanding its loss.

The judgment of the Supreme Court of that State is coincident with the conclusions of this court upon the testimony which related to the execution by Mr. Clark of his olographic will of 1813, and of the concealment or destruction of it after his death.

This will declared Mrs. Gaines to be his legitimate and only daughter, and universal legatee.

In the bill filed by Mrs. Gaines to recover the property sold by the executors appointed by a former will of 1811, it was not necessary to make these executors parties. The reasons stated.

It was not necessary formally to set aside the will of 1811 before proceeding under that of 1813. Any one who desired to contest this latter will in a direct action was not concluded from doing so.

The title of Mrs. Gaines is not barred by prescription, as defined by the law of Louisiana. The reasons explained.

The decision of this court in 12 Howard, 473, did not overrule the decision in 6 Howard, 550. The two cases explained.

The case in 12 Howard cannot be set up as a defence in the present case as *554 being res judicata. They are dissimilar as to parties and things sued for, or what is called the object of the judgment.

The paper misnamed the ecclesiastical record, purporting to be an acquittal of Des Grange of bigamy, is not admissible evidence in this case. But if it was so, it would neither of itself, nor in connection with all that is evidence in the record, serve to prove the adulterous bastardy of the complainant, as the rule of evidence requires that to be done, in opposition to the testamentary declaration of her father, in his own handwriting, that she was his legitimate and only daughter, and, as such, by him constituted his universal legatee.

The charge of adulterous bastardy, as made by the defendant, is not in response to the complainant's bill, but is an affirmative allegation of a fact by them, and the burthen of proof is upon them to establish it in contradiction to the declaration of her father, in his written will, that she was his legitimate child.

The paper or record, as called, is not that of a legally-constituted tribunal, according to either the ecclesiastical usages or the laws of Spain, as they prevailed in Louisiana at any time when that province was a part of the dominion of Spain. And neither the Canon Hasset, the Alcalde Caisergues, nor the Notary Franco Bermudez, had either individual or conjoined authority to take cognizance of a charge of bigamy in the way it was done.

**3 The difference explained between the case now before the court and that which was heretofore presented. If it had been proved, which it never was, that Mrs. Gaines was the offspring of an illicit intercourse, still she could take as universal legatee, from her father's testamentary declaration of her legitimacy.

The code of Louisiana makes a distinction between acknowledged natural children and adulterine children; allowing the former to take as legatees, but not allowing the latter to do so, except to a small amount.

But the legal relations of adulterous bastardy do not arise in this case. The law examined relative to putative marriages, which are where, in cases of bigamy, both parents, or either of them, contracted the second marriage in good faith. The issue of such a marriage is legitimate.

The Louisiana cases, the Spanish law, and the Code Napoleon, examined as bearing upon this point, and the principles established by them applied to the present case.

Clark, the father, was capable of contracting marriage; the consequence examined of his testamentary recognition of his child's legitimacy.

The evidence examined which is supposed to sustain the position that the connection between Clark and Zulime Carriere was adulterous, so as to bar the offspring from taking as a legatee under her father's will. The evidence declared to be sufficient in a civil suit to establish the fact that Des Grange committed bigamy when he married Zulime.

The difference explained between the evidence which is sufficient to establish the charge of bigamy in a civil suit and that necessary to establish it in a criminal prosecution.

The evidence of Coxe and Bellechasse examined, and also that relating to the parentage of Caroline Barnes.

The effect examined of the record from the County Court of New Orleans, in which Zulime prayed for a divorce from Des Grange; and also of the testimony to prove her marriage with Clark.

Whether she married in good faith or not, the weight of testimony is that Clark did so; and therefore Mrs. Gaines is entitled to inherit her father's estate under the olographic will of 1813.

Mr. Justice WAYNE delivered the opinion of the court.

We will first give some of the facts of this case, that the litigation which has grown out of the wills of Daniel Clark may be correctly understood. Without them it could not be.

They have been the subject of five appeals to this court. This is the sixth. It presents the controversy differently from what it has been before. It also presents points for decision which were not raised in either of the preceding cases. Some of those that were, however, will necessarily be mentioned in this opinion to illustrate their connection with this case. They may be so considered without our coming at all into conflict with any judgment heretofore given concerning the rights of the parties in any antecedent appeal. Our conclusion will differ from one of them on account of testimony in this case which was not in that, but they will not be contradictory; and because we have information in this, concerning a piece of testimony then relied upon, which we shall exclude in this, as inadmissible for any purpose.

**4 Four of the five appeals were decided by this court substantially in favor of Mrs. Gaines. The fifth was adverse, not in anywise excluding the re-examination of the only point then ruled by the use of the same testimony, and that which is new. Considered in connection, both have impressed us with a different impression of the status of Mrs. Gaines's legitimacy from that which this court did not then think was sufficiently proved, as we now think it has been. Now she is here with a support which her cases have not had before. She comes with a decision of the Supreme Court of Louisiana, directing, upon her application, that the will of Daniel Clark, dated at New Orleans, July 13, 1813, as set forth in her petition, should be recognised as his last will and testament, and that it should be recorded and executed as such. In that will her father acknowledges that his beloved Myra, then living in the family of Samuel B. Davis, is his legitimate and only daughter, and bequeaths to her all the estate, real and personal, of which he might die possessed, subject only to the payment of certain legacies named in the will.

Her petition for the probate of that will was first addressed *557 to the second district court of New Orleans, in which Judge J. N. Lea presided.

After asserting that such a will had been made by her father, its contents were set out as they were recollected by witnesses who had read it, and by other persons to whom it had been shown by the testator, with whom he spoke of it in the last moments of his life, as his last will and testament, in favor of his legitimate daughter, Myra, charging them to take care of it, and telling them it would be found locked up in a trunk, describing it, which he had placed in a certain room in his house.

The will is then stated in the petition to have been olographic; that is, altogether written and signed in her father's handwriting, with his seal attached to the same; that immediately after his death diligent searches were made for it; that it could not then be found; that it has not been since, and that it had been mislaid, lost, or destroyed.

She then declares, that when her father died she was a minor, absent from New Orleans, and living with Samuel B. Davis, to whom and whose lady she had been confided in the year 1812. Judge Lea took cognizance of her petition, proceeded throughout its pendency with great judicial exactness and caution, and, as the whole record shows, with official liberality to every one concerned in resisting the application, without in any particular having denied to the petitioner her rights.

The Judge, however, finally decided against the sufficiency of the proof to establish the will according to the requirements of the Civil Code of Louisiana, but without prejudice to the right of the petitioner to renew her application, with such proofs as might be sufficient to establish an olographic will. She applied for a new trial, and upon that being denied, solicited an appeal to the Supreme Court, and that was allowed.

**5 The Supreme Court tried the case. It differed with Judge Lea as to the proof which was required by the Code to establish a lost or destroyed olographic will. It reversed the judgment of the court below, and decreed that the will of Daniel *558 Clark, dated on the 13th July, 1813, should be recognised as his last will and testament, and ordered it to be recorded and to be executed as such, it being posterior to the will of May, 1811, which Relf and Chew had presented for probate, under which they had taken possession of the property of Daniel Clark, and had disposed of it to the entire exclusion of Mrs. Gaines from any part of it-an estate shown by the proof in the cause introduced by the defendants, which had been registered or inventoried a short time before Clark's death, at more than seven hundred thousand dollars, in which Clark and Coxe were interested, and an estate exclusively belonging to Clark of two hundred and ninety-six thousand dollars.

But to return to the decree of the Supreme Court establishing the will of 1813; it must be understood, that its admission of the will to probate does not exclude any one who may desire to contest the will with Mrs. Gaines from doing it in a direct proceeding, or from using any means of defence by way of answer or exception, whenever she shall use the probate as a muniment of title. And the probate does not conclude Relf and Chew, or any other parties having any interest to do so, to oppose the will, when it shall be set up against them, by such defences as the law will permit in like cases. It was with those qualifications of the probate of the will of 1813 that the case was tried in the court below, and they have been constantly in our minds in the trial of the appeal here.

Upon the rendition of the probate by the Supreme Court, Mrs. Gaines filed her bill in this case. It shall be fully stated hereafter, with the defences made against it.

Before doing so, it is due to the merits of the controversy to advert to the decisions of the probate court of the second district of New Orleans, and to that of the Supreme Court reversing it, more minutely than has been done. Especially, too, as they are coincident with our conclusions upon the testimony regarding the execution by Mr. Clark of his olographic will of 1813, and of the concealment or destruction of it after his death.

The Supreme Court adopts the prepared statement of the facts of the case as it was made by Judge Lea in the court *559 below. Its accuracy has never been denied by any one of the parties interested in this suit, nor by any one else.

It is as follows: ‘The petitioner alleges, that on the 16th of August, 1813, the late Daniel Clark, her father, departed this life, having previously, on the 13th of July, executed an olgraphic will and testament, by which he recognised her as his legitimate and only daughter, and constituted her universal legatee. That the will was wholly written, dated, and signed, in the handwriting of the testator, and was left among his papers at his residence; that after his death search had been made for it, but that it was not found, and that it had been mislaid, lost, or destroyed.'

**6 The learned Judge then proceeds: ‘To entitle the petitioner to a judgment recognising the existence and validity of the will, it is necessary that she should establish affirmatively, by such testimony as the law deems requisite, that Daniel Clark did execute a last will containing testamentary dispositions as set forth in the petition, and that he died without having destroyed or revoked it.’ ‘That looking for the testimony which might solve the question, whether such a will had ever been executed or not, a reasonable inquirer would naturally turn for information to those who were most intimate with the deceased in the latter part of his life, and especially, if they could be found, to those who were with him in the last moments of his existence, when the hand of death was upon him, if they had no interest in directing his property into any particular channel, as they might be considered as the best and most reliable witnesses that could be produced; and it appears to be precisely testimony of that character that the petitioner presents in support of her application.’ Judge Lea then says: ‘Boisfontaine had business relations with the deceased which brought them into frequent intercourse; and that for the two last days of his life, up to the moment of his death, he was with him. That De la Croix and Bellechasse were intimate personal friends of Clark, and were with him shortly before his death. All of these witnesses concur in stating that Clark said he had made a will posterior to that of 1811, and De la Croix says, that Clark presented to him in his cabinet a sealed parcel, *560 which he declared to be his last will, and that it would be found in a small black trunk. De la Croix also had sworn, shortly after Relf had presented the will of 1811 for probate, that Clark had made a will posterior to that; that the existence of it was known to several persons, and he applied for an order of the court and obtained it, commanding every notary in New Orleans to report if such a document had not been deposited with one of them. Bellechasse and Mrs. Harper swore that they had read the will. The Judge then expresses his conclusion to be, that the legal presumption of the existence of such a paper had been made out, and that its having been destroyed or revoked by the testator had been satisfactorily rebutted, and that there was nothing in the record to impeach the credibility of Bellechasse or Mrs. Harper. In these rulings of the district judge the Supreme Court concurred, and then said, in delivering its opinion, all that they had to do was to inquire whether the will of 1813 had been proved in conformity with the article No. 169 of the old Code or 1648 of the new.'

Those articles require the testimony of two witnesses when the will shall be presented for probate, who shall declare their recognition of it as having been written wholly by the testator, that it had been signed and sealed by him, and their declaration that they had often seen him write and sign in his lifetime. It was from such a requirement of proof, rejecting secondary testimony altogether, that the District Court refused the petition for a probate of the will. Upon such refusal, Mrs. Gaines appealed to the Supreme Court.

**7 That court said: ‘That the question of the alleged insufficiency of the proof in the case could only be determined by an inquiry, whether the article was to be pursued at all times and in all cases, or whether they were not merely directions when the will itself was presented for probate, and were inapplicable to restrain the court in certain cases, when by reason of the loss or destruction of such an instrument, from taking secondary proof of its contents, as the best which the nature of the case was susceptible.'

The court then, by a course of reasoning, supported by several cases from the Louisiana Reports, determined that in the *561 event of a will having been destroyed, secondary proof is admissible in Louisiana to prove its contents, and to carry it to probate; that the articles 169 and 1648 contemplate that the will itself should be presented, with the proofs of its execution, to the judge of probate, when that can be done; that no one would seriously contend that the calamity of its destruction should deprive the legatee of the right to establish it by secondary evidence; ‘for was such the law, a reward would be offered to villainy, and it would always be in the power of an unscrupulous heir to prevent the execution of a will.’ It then meets the assertion directly, that articles 1648 and 1649 of the Code require the production of the will in order that it might be identified by witnesses who recognise it; denies that position, and affirms that in the absence of such witnesses the evidence concerning an unproduced, destroyed olographic will might be complete. The articles are not negative laws, declaring that no other kind of proof shall be admitted. ‘And it is doubted very much if an olographic will made here had by some accident been destroyed before being legally proved, whether a copy of it, identified by two witnesses, who were able to swear to the genuineness of the original in the manner pointed out by law, would not be considered a sufficient compliance with the provisions of the Code.’ Such, in fact, was the petitioner's case they were considering. Such is the law in analogous cases. The law cannot have been intended to require an impossibility, and to leave a party so circumstanced without a remedy.

The doctrine of the common law is in accordance with the view taken by the Supreme Court of Louisiana concerning lost deeds and wills. It has been judicially acted upon in English and American cases. It was so in the case of Dove v. Brown, 4 Carver, 469. That was a suit upon a lost will devising real estate. By the statute of New York it was necessary to prove the will by three credible witnesses. The will of Brown, as to its execution, was proved by one of the subscribing witnesses. He stated it was executed in the presence of himself, James Mallory, and another person whose name he did not remember, but that he had no doubt of his being a *562 credible witness. That, the court said, was all the evidence which could be expected under the circumstances. There are several other cases to the same effect in our American Reports. Jarman, on the Probate of Wills, 1 vol., Perkins's edition, p. 223, says, upon the authority of many cases, note 4: ‘That if a will, duly executed and not revoked, is lost, destroyed, or mislaid, either in the lifetime of the testator, without his knowledge, or after his death, it may be admitted to probate upon satisfactory proof being given of its having been so lost, destroyed, or mislaid, and also of its contents.’ But to entitle a party to give parol evidence of a will alleged to be destroyed, where there is not conclusive evidence of its absolute destruction, the party must show that he has made diligent search and inquiry after the will in those places where it would most probably be found, if in existence. Under its reasoning, the Supreme Court of Louisiana, sustained by the authorities in England and in the United States, admitted the olographic will of 1813 of Daniel Clark to probate, declaring also such was the law in Louisiana, and reversed the judgment of the lower court dismissing the petition of Mrs. Gaines.

**8 In virtue of that decision of the Supreme Court, Mrs. Gaines presents herself to this court, declared by her father to be his legitimate and only daughter, and universal legatee. We will in another part of this opinion show the legal effect of her father's testamentary declaration.

We will now state, as briefly as it may be done in such a case, the essential allegations of the bill; the responses of the defendants and their averments; the proofs in support of the complainant's rights, and such of them as are relied upon to defeat them; the legal issues made by the bill and answers, and the points relied upon by both parties in their arguments in this case.

The bill was brought against several defendants, Duncan N. Hennen being one of them. They separated in their answers. Hennen, after giving the claim of title to the property for which he is sued, admits that it was a part of the estate of Daniel Clark, and adopts the answers filed by the other defendants as a part of his defence. The cause was tried with *563 respect to him only, and the bill was dismissed by the court below. From the decree Mrs. Gaines appealed to this court.

After specific declarations as to the character in which she sues, and her legal right to do so as the legitimate child of her father and his universal legatee, she acknowledges that he had made a provisional will in the year 1811. That he then made his mother, Mary Clark, his universal legatee, and named Richard Relf and Beverly Chew his executors. That they had presented it to the court for probate, that it had been allowed, and that they, as executors, had taken possession of the entire separate estate of Daniel Clark, and of all such as he claimed in his life in copartnership with Daniel W. Coxe. It is then assumed that the will of 1811 had been revoked by the will of the 13th July, 1813. That Chew was dead; that all the legal power which the probate of the will of 1811 had given to Relf and Chew had expired; that Mary Clark was dead, and that her heirs and legatees reside beyond the jurisdiction of the court.

Mrs. Gaines then states, in the language of equity pleading, the pretences of the defendants in opposition to her claims. Such as, that Relf and Chew sold them the property as testamentary executors of Daniel Clark under the will of 1811; that they bought for a full consideration, without any notice of the revocation of the will of 1811, or that any other person was interested in the property than Mary Clark; that the titles they had from Relf and Chew could not be invalidated by the revocation of that will, and that the right of action against them for the property in their possession, if complainant had ever had any, were barred by prescription-that is, by the acts of limitation of Louisiana. It is then charged by the complainant that Relf and Chew had no authority to sell the property of Daniel Clark when the sales were made by them. That they had never made an inventory of the decedent's property for the probate court before the sales were made; that the sales were made without any legal notice, and for an inadequate consideration. That if Relf and Chew had sold under a power of attorney from Mary Clark, and not as executors, that Mary Clark's power was insufficient in its terms for such purpose; *564 that she had no power or rights in the estate of Daniel Clark to give such a power, and that Relf and Chew had not caused themselves to be recognised in a proper court as Mary Clark's attorneys, as they ought to have done, before they could acquire any right to sell any part of the estate of Clark. She then charges that the defendants knew, when they bought the property sued for, that she had applied as early as in the year 1834 to have her father's olographic will of 1813 probated by the proper court at New Orleans; that the defendants knew of all the irregular proceedings and assumptions of Chew and Relf in respect to the estate of her father, and of their sales of it without authority; that the defendants knew, when they bought, of the suits which she had brought to recover her rights in her father's estate; and that her present suit was brought under the probate of the will of 1813 by the Supreme Court of Louisiana.

**9 Hennen, the defendant, answers for himself, and adopting the answers of the other defendants, states that the property for which he was sued is designated according to a plan made in 1844, as lots 9, 10, 11, on the square comprised between Phillippi, Circus, and Poydras streets; each lot, by English measure, containing 23 feet 11 inches and 2 lines between parallel lines.

The answers of the other defendants make the same admissions as to their titles having been derived from or through Relf and Chew and Mary Clark; admit the property separately claimed by them to have been a part of the estate of Clark; and finally make an averment that Mrs. Gaines has not that civil status by her birth which, under the law of Louisiana, can entitle her to take the property of her father under the will of 1813, though it had been admitted to probate, and that she had been declared in it his legitimate and only daughter. In other words, the defendants have declared that she is an adulterous bastard.

It is proper to state the books and documents which are in evidence in this case.

1. The present record of Gaines v. Hennen.

2. The printed record of the suit No. 188, of December *565 term, 1851, in this court, Gaines v. Relf and Chew, 12 Howard, 472.

3. The proceedings in the courts of probate entitled Probate Record.

4. The commercial account-books kept by Relf and Chew, professing to relate to their transactions concerning the estate of Daniel Clark.

This testimony, as it has been enumerated, was brought into the case by agreement of the parties for as much as it might be worth, subject to exceptions by both sides as to its admissibility upon the trial of the cause.

Several immaterial or formal points were made in the argument to defeat the claims set out in this bill. Such as, that the case was not one for equity jurisdiction, but was, ratione materiae, exclusively cognizable before the probate court of the 2d district of New Orleans. Next, that Chew and Relf, and Mary Clark, or her heirs, should have been made parties; that the sources of Daniel Clark's title to the property sued for had not been set out in the bill in addition to the manner it had been enumerated. Again: that the probate proceedings in the second district court of New Orleans in 1856 are yet pending and undetermined, and on that account that the same court has exclusive jurisdiction over the estate of Daniel Clark. We have examined these formal objections, and find them to be unsustained by the cases cited in support of them. They are inapplicable to the actual state of the case, and are insufficient to arrest the trial of it upon its merits. The same objections were also urged in the Circuit Court, but were disregarded, we presume, by the judge, as unsubstantial points of defence. As to the objection that Relf and Chew, and the heirs of Mary Clark, had not been made parties to the bill, we observe it was not necessary to make either of them so. The present is a suit for the recovery of property admitted by the defendants to have been a part of the estate of Daniel Clark. Nothing is sought to be recovered from Chew and Relf. Their executorial functions under the will of 1811 have long since been at an end. Had the bill involved directly their transactions as executors with the complainant, as universal legatee, upon a *566 proper showing of that, with a prayer to be made parties, the court might have allowed it. But not having done that, the defendants cannot urge, because Relf and Chew have not been made defendants with them, that they should escape from a trial on the rightfulness of their possession of a part of the estate of Clark, as they have admitted it to be; or that they had not acquired it under circumstances from which the law presumes that they had notice of the irregularity of the sale as it was made by Relf and Chew. Nor was it necessary for the heirs of Mary Clark to be made parties; for Mary Clark herself never had any pecuniary responsibilities for the sales of the property of the estate of her son by Relf and Chew, as her power of attorney to them upon its face was irregularly executed, and was of itself notice to the defendants that when they bought, the sales had not been made in conformity with the law of Louisiana regulating the sales of the property of a testamentary decedent.

**10 But it was also said in the argument that no claim could be set up by Mrs. Gaines under the will of 1813 until the will of 1811 shall be set aside. Neither the language used by this court in 2 Howard, 651, nor in the decision in 12 Howard, will bear such an interpretation, or admit of such a conclusion. The rulings of courts must be considered always in reference to the subject-matter of litigation and the attitude of parties in relation to the point under discussion. And it will often be the case, as it is now, that counsel will use an illustration for a judicial ruling, or words correctly used when they were written as applicable to a different state of things. When this court said, in 12 Howard, 651, that the will of 1813 cannot be set up without the destruction of the will of 1811, it was with reference to the existing fact that the latter had been duly proved, and that it stood as a title to the succession of the estate of Daniel Clark, and that the will of 1813 had not then been proved before a court of probate, and on that account could not be set up in chancery as an inconsistent and opposing succession to the estate while the probate of the will of 1811 was standing in full force. And when Mr. Justice McLean, speaking for the court, 2 Howard, 647, says, ‘she (meaning *567 Mrs. Gaines, then the complainant) must ask for the probate of the will of 1813, and a revocation of the other will of 1811,’ adding ‘for no probate can stand while a previous one is unrevoked,’ it is plain that the meaning was, as we now say it is, when a court recalls the probate of a will, substituting the probate of another will by the same testator made posterior to the first, that the former becomes inoperative, and that the second is that under which the estate is to be administered, without any formal declaration by the court that the first was annulled, and it makes no difference that a part of the estate has been administered under the first probate. The unadministered must be done under the second. Courts of probate may for cause recall or annul testamentary letters, but they can neither destroy nor revoke wills; though they may and often have declared that a posterior will of a testator shall be recognised in the place of a prior will which had been proved, when it was not known to the court that the testator had revoked it. Such is exactly this case. The Supreme Court decreed that the will of Daniel Clark, dated New Orleans, July 13, 1813, as set forth in the plaintiff's petition, should be recognised as his last will and testament, and the same was ordered to be recorded and executed as such, with the declaration, that admitting the will to probate does not conclude any one who may desire to contest the will with the applicant in a direct action. The decree of the court in that particular is the law of the case.

**11 It was also urged that the defendant and those under whom he claims were purchasers for a valuable consideration without notice, and are therefore in equity protected against the claims of the complainant. It is a good defence when it shall be proved as a matter of fact. But in this instance it is not only disproved by testimony introduced by the defendants, but by admissions in their answers, as shall be shown hereafter in this opinion. In our opinion the objection has no standing in this case, though the argument from which the counsel admitted he had borrowed it is a very good one in its proper place.

We shall now examine the case upon the more serious points *568 made in opposition to Mrs. Gaines by the learned counsel, Mr. Janin.

The first was, that her claim was barred by prescription. The prescription relied upon by the defendants is that of ten years against one claiming a vacant estate, twenty years to prescribe a title, and thirty years to bar the faculty of accepting a succession or the estate of a deceased person. There being no vacant succession in this case, the ten years' prescription does not apply, and the prescription of twenty years does not exist; for Mrs. Gaines did not attain her majority until June or July, eighteen hundred and twenty-six, and her suit for the probate of the will made by her father on the 13th of July, 1813, was instituted in 1834. When her petition for that purpose was dismissed in 1836, her first bill was filed in a month or two afterwards. From that time there was a legal interruption of the prescription of twenty years, which the defendants have pleaded and now rely upon. In fact, they recognise the interruption in their answers. In their averment of their having had peaceable possession of the property sued for since they bought it, they add, ‘that they had never been disturbed in respect to it,’ except by an abortive attempt of the complainant and her husband to recover it by their bill filed in 1836. New Record, 47. We find them also in their answer (New Record, 54) admitting that such a suit as complainant refers to in her present bill had been instituted by her and her husband in 1836, and that the object of it was the recovery of the ‘identical property’ now in controversy. New Record, 56, 57. It is also admitted in the answer, that the suit of the complainant in the probate court to annul the probate of the will of 1811, and to set up that of 1813, was brought on the 18th June, 1834. These admissions are decisive that the complainant claimed the inheritance as early as that date, and that the prescription which had begun to run had been legally interrupted on the 28th July, 1836, the date of her first bill.

By the article of the Code, 3484, a legal interruption of a prescription takes place where the possessor has been called to appear before a court of justice, either on account of the property or the possession, and the prescription is interrupted by *569 such demand, whether the suit has been brought before a court of competent jurisdiction or not.

**12 The weight of authority upon the construction of that article of the Code is, that it contemplates a voluntary, intentional, and active abandonment of the suit, in order to restore the running of a right of prescription. In the case of Wilson v. Marshall, 10th Annual, 331, the court said the plaintiff did not dismiss the suit, or consent to the dismissal. She lived in a remote part of the State, and the mere absence of herself and counsel at a term of the court when her case was called is insufficient, without other evidence, to convict her of having abandoned her demand. Pratt v. Peck, curator, 3 Lea R., 282; Dunn v. Kenney, 11 Rob., 250; Roswood v. Duvall, 7 Annual, 528; Mechanic and Traders' Bank v. Theatt, 8 Annual, 469.

After the interruption of the prescription by the filing of the bill by the complainant, the defendants could no longer claim to be in possession in good faith, as that is defined in the Civil Code. In article 3415 the possessor in bad faith in he who possesses as master, but who assumes this quality when he well knows that he has no title to the thing, or that his title is vicious and defective. The possessor must not only not be in bad faith, but in the positive belief that he is the true owner, and if he doubts the validity of his title, his possession is not the basis of prescription. Troplong Prescription, vol. 2, p. 451, No. 927; Ib., p. 444, No. 918; Ib., p. 442, No. 915. The plea of prescription is not available in this case.

But the defendants go further, and insinuate that their possession of the property, though beginning with the executors, Relf and Chew, continued afterwards under Mary Clark, whose power of attorney to them authorized them to sell the estate of Clark.

When Relf and Chew proved the will of 1811, they received the estate of Clark as executors, with a right of detainer for one year, and for as long afterwards as the court of probate might permit upon their application, showing cause for the delay or the extension of a longer time. They did receive such an extension for three years upon their representation *570 that the nature of the estate, the difficulty of the time, and the ample sufficiency of the estate to pay all of its debts, would enable them by the delay to accomplish that result. The creditors were called upon to meet to consider the proposition. They assented to it. But the executors never fulfilled the arrangement, either for the benefit of the creditors or for the legatees under the will of 1811. Nor did they ever make any return to the court of probates of their transactions relative to Clark's estate until 1836, after the complainant had sued them, and then without vouchers to homologate their receipts, expenditures, and payments, except for a small part. Shortly after the application for an extension of time, in the year 1813, they applied for a power of attorney from Mary Clark, who had been named in the will of 1811 as universal legatee, to authorize them to sell the estate in her behalf. The power was given; and under it, without any notice to the court of probate, which ought to have been given, and the power filed in it, they continued, as the testimony in this case shows, to act as executors, and to dispose of the estate of Clark, both real and personal, property in copartnership, and other property separately belonging to Clark, without ever having received any permission to do so from the court of probate, and that should have been obtained, as Mary Clark had not been acknowledged by that court as the universal legatee of Clark. It may be that they mistook their powers in doing so; but they received the estate of Clark in a fiduciary character, to be accounted for to the legatees and creditors, according to their rights under the law of Louisiana, and for that they are responsible. Besides, the power from Mary Clark was given to them as executors, that she might have the benefit of those responsibilities for the faithful execution of the trust that they were under by the law of Louisiana as executors. They paid debts, received moneys, sold property, and acted throughout as if they were not responsible to the court from which they derived their testamentary letters or to Mary Clark, and, as the record in this case shows, without sustaining their transactions by vouchers of any kind.

**13 Nothing is better settled by the decisions of its courts in *571 Louisiana than ‘that an extra judicial statement by an executor, that he believes the debt to be due by the estate, does not bind the heir, nor is the heir bound by the approval of a court as to such a claim, if it be made ex parte.’ 4 LOU. R., 382. Again: that the admission of the genuineness of the signature to vouchers, filed by the curator of a succession in support of his account, dispenses with any other proof of the payment claimed; but when such payments are made without an order of the court, the curator must show that the debts were really due by the succession, or he will not be entitled to credit for the amounts so paid. Miller v. Miller, 12 R. A receipt given to an administrator for the payment of an account is not evidence that the account was due, if the fact of being due is disputed. Moore v. Thebadeaux, 4th Annual, 74. So an administrator who renders an account is bound to establish the items of it by evidence, and may be held to strict proof by the parties interested without a formal opposition on their part. Succession of Lea, 4th Annual, 579. The accounts of Relf and Chew were put in evidence by the defendants, and they were used to show, among other things, that they were authorized to sell the estate of Clark as they did, and that they were auxiliary for the establishment of the defendant's plea of prescription. Such, however, is not our opinion, and but for the use made of them, we should not have noticed them at all, not thinking that they are put in issue by the bill of the complainant, or the answer of the defendants, particularly as Relf and Chew are not parties to this proceeding.

We will now proceed to the consideration of that point made in the argument by the counsel of the defendant, but more particularly representing the city of New Orleans, as he said he did.

It was that complainant's suit could not be maintained, because it was res adjudicata by this court in its judgment in the case of Gaines v. Relf and Chew, in 12 Howard, 506.

We do not think so. That case is misunderstood by the learned counsel. Then the parties went to trial upon the demand of Mrs. Gaines for one-half of her father's estate, as the donee of her mother, his widow, and as forced heir of her father *572 by the law of Louisiana for four-fifths of another half of his estate.

Her bill then was brought in consequence of this court having decided, in 6 Howard, 550, that there had been a lawful marriage solemnized in good faith between them in Philadelphia. That case was tried upon the same evidence upon which the appeal was determined in 12 Howard, with the exception of what is miscalled an ecclesiastical record from the Cathedral church in New Orleans, of which we shall have much to say hereafter. Besides having decided, in 6 Howard, that there had been a lawful marriage between the complainant's father and mother, this court decreed that Mrs. Gaines was the lawful and only issue of the marriage; that at the time of her father's death she was his only legitimate child, and was exclusively invested with the character of his forced heir, and as such was entitled to its rights in his estate.

**14 The judgment in that case has never been overruled or impaired by this court. It certainly was not intended to be by the case in 12 Howard, for the report in that case shows, from the number of the justices who sat upon its trial, and their decision as to the judgment then to be rendered, that the majority of them did not intend to overrule the decree in 6 Howard. It was recognised again as still in force by a majority of the judges who sat in this case in our consultation. The defendant in the case of 1851, 12 Howard, 537, admitted that such a decree was rendered, denying, however, that it was conclusive upon or that it ought to affect their right; and if it could do so, it ought not to have such an effect in that instance, averring the same as a matter of defence, that the decree was brought about and procured by imposition, combination, and fraud, between the complainants and Charles Patterson. That it should not be regarded in a court of justice for any purpose whatever, and that it had been consented to by Patterson to enable the complainant to plead the same as res judicata upon points in litigation not honestly contested. Mr. Janin was mistaken when he said that the decree in 6 Howard, 583, had been reviewed in the case of 12 Howard, 537, meaning thereby that it had been overruled. It was not only not so, but one of *573 the justices who assented to the judgment in 6 Howard, which declares that there had been a valid marriage between Daniel Clark and Zulime Carriere, and that she was the legitimate child of that marriage, would not assent to its being done when he concurred in the decree in 12 Howard.

The decision in 12 Howard does not, either in terms or inferentially, assert that no marriage had ever taken place between Daniel Clark and the complainant's mother. The issue in that case was, that at the time of the complainant's birth, her mother was the lawful wife of another man, namely, of Jerome Des Grange.

It was, therefore, essential to the defendants to get rid of the decree which had affirmed the legitimacy of Mrs. Gaines and of the marriage of her father and mother, and it was attempted by a contrivance as extraordinary in its beginning as it was abortive in its result. We will show what it was from the record, not only on account of its anomalous character, but because it is unexampled in jurisprudence.

After having asserted that the decree in 6 Howard had been obtained by the fraud of Patterson and General Gaines, thus impeaching the credibility of Patterson in advance, the defendants, Relf and Chew, introduced him as their witness, (Old Record, pp. 590, 591, 592, 593, 594,) and he was examined by their counsel, first as to a suit in which Mrs. Gaines had recovered a house and lot from him. After stating his age to be about seventy, his answer was: ‘It was for a house and lot on which I resided when the suit was brought; I still reside in that house and lot, and have done so ever since the suit was brought. Mrs. Gaines succeeded in the suit, according to the judgment of the court. That house and lot belongs to her, but they told me they would not take it from me. General Gaines and his wife gave me in writing under their hands that they would not take the property from me; that he would make my title good. The property has always been assessed as mine, and I have always paid the taxes on it. I paid most of the costs, but they paid me again-that it, General and Mrs. Gaines. There was an understanding between us that they would pay the costs, even should the suit be decided *574 against me. They made the same offer to Judge Martin.’ In his cross-examination, witness said he had made the best effort in his power, with the aid of able counsel, to defeat Mrs. Gaines in her suit. The cross-examination was resumed the next day, 20th June, 1849. Patterson was asked to look upon a document marked A, and to state if he knew the handwriting of the late General Gaines; whether the signature to it was not his; whether he had received that, or a communication of which that was a copy, prior to withdrawing his dilatory pleading in the case of Gaines v. Relf and Chew et al., and filing your answer to the merits of that case. The defendants, by counsel, protested against the paper being put into the record, on the ground that it contained false, malicious, and gratuitous imputations against parties in no wise connected with the suit. Witness then answered, that was the signature of General Gaines; he had often received letters from him, and seen him write, and that he had received two or three communications, of which that was a copy, before he withdrew his dilatory pleadings in that case, and answering to the merits. A letter was then handed to witness, marked B. He answered, the body of it was the handwriting of General Gaines; was present when he wrote it, and saw both General and Mrs. Gaines sign it. Then the following question was put to the witness: ‘At the trial of your cause with Gaines and wife, did not your counsel make a request of the counsel of Mrs. Gaines to be permitted to introduce the record from the probate court of New Orleans of all the proceedings of Mrs. Gaines in the prosecution of her rights in that court?’ Witness answers: ‘Yes, sir; her counsel objected to that, and I applied to General and Mrs. Gaines to introduce the record. They replied to me to get all the evidence possible, the stronger the better. General Gaines remarked, it would be more glorious to have it as strong as possible. I then caused it to be introduced.’ Here the cross-examination of the witness was closed. The counsel for the defendants objected to the foregoing testimony, and especially to that part which relates the conversations of the complainants with the witness, and that part which details what was done in a judicial proceeding, *575 on the grounds, among others, that it is incompetent for the complainants to make evidence for themselves, and that what had been done in judicial proceedings should be shown by the record. And from that gentleman's accurate knowledge of his profession, indicated as it has been by the two lines just underscored, may we not say in the zeal of professional advocacy that the best of us may forget it? for what has been his interrogation of Patterson but an attempt to invalidate a judgment against him by the testimony of the most interested party to have it annulled, without having made any appeal to the record of that judgment? And Patterson was the defendant's witness.

**15 But we have not yet done with this attempt to prejudice the rights of Mrs. Gaines by suggestions that her suit with Patterson was pretensive and fraudulent, and to extract from him some proof or confession of his own infamy.

After the examination in chief and the cross-examination had been completed and signed by the witness, and both counsel had announced that they had concluded their examination, the counsel for the defendant made another objection to the cross-examination of Mr. Patterson, insisting that it should be considered as his examination in chief by the complainant, to which the defendants had the right of cross-examination; and the witness was recalled on the following day for that purpose. Every effort was then made by many questions to extract from him some inconsistency with his first examination without success. But fortunately for his own character he removes the imputation of fraud and combination between himself and General Gaines, to give to the latter the benefit of a collusive judgment in the circuit court against himself, by having, in his answer to one of the questions, alluded again to the documents A and B, which are now presented as conclusive against the charge that there was ever any combination between them, by trick or by contrivance, or by any deceitful agreement or compact, for a suit to be brought by one against the other to defraud any third person of his right. See Old Record, pages 1018 for Document A, and 819 for letter B. And when the witness was asked if *576 he had not been particularly requested by the General and Mrs. Gaines to use his best exertions, with the aid of the best counsel he could employ, to make every defence in his power to this suit of which it was susceptible, he answered: Yes, and I did so; and I considered the agreement with General and Mrs. Gaines as an act of liberality on their part, growing out of a desire to come to a speedy trial with some one or more of the defendants on the merits of the case.

It was an indiscreet arrangement between General Gaines and Mr. Patterson, not to be tolerated in a court of justice, but not one of intentional deception in contemplation of any undue advantage. And it would never have been made by Relf and Chew, in their answer to the subsequent bill of the complainant against them, had they not been erroneously advised that the decree in sixth Howard, establishing the marriage of Clark and Zulime Carriere, and the legitimacy of Mrs. Gaines, might be used as res judicata against the defendants in the suit of the 20th January, 1849, and as they now attempt to make the decision in that case a res judicata against the claims of Mrs. Gaines in this which we are now deciding.

But what was decided in the case in 12 Howard? It is stated, in the language of the decision, ‘that the first and most important of the issues presented is that of the legitimacy of Mrs. Gaines.’ Then are stated the pleadings under which the issue was made. It shall be given in the language of the decision: ‘She (Mrs. Gaines) alleges that her father, Daniel Clark, was married to Zulime Nee Carriere, in the city of Philadelphia, in the year 1802 or 1803, and that she is the legitimate and only legitimate offspring of that marriage. The defendants deny that Daniel Clark was married to Zulime at the time and place alleged, or at any other time and place. And they further aver that, at the time the marriage is alleged to have taken place, the said Zulime was the lawful wife of one Jerome des Grange. If the mother of the complainant was the lawful wife of Jerome des Grange at the time Zulime is alleged to have married with Clark, then the marriage is merely void, and it is immaterial whether it did or did not take place. And the first question we propose to examine is, as to the *577 fact whether Zulime was Des Grange's lawful wife in 1802 or 1803.’ Then follows the recital of the marriage between Des Grange and Zulime, with the record of it, on the 2d December, 1794, admitted on the part of Mrs. Gaines. To rebut and overcome the established and admitted fact of that marriage, the complainant introduced witnesses to prove, ‘that previous to Des Grange's marriage with Zulime he had lawfully married another woman, who was living when he married Zulime, and was still his wife, and therefore the second marriage was void, and this issue we are called on to try.'

**16 Then it is said that ‘the marriage with Des Grange having been proved, it was established as prima facie true that Zulime was not the lawful wife of Clark, and the onus of proving that Des Grange had a former wife living when he married Zulime was imposed on the complainant; she was bound to prove the affirmative fact that Des Grange had committed bigamy.’ Then follows the recital of the testimony of the complainant to prove that Des Grange became a bigamist by his marriage with her mother. And then, to ‘meet and rebut this evidence, the defendants introduced from the records of the Cathedral church of the diocese, to which New Orleans belonged at that period, an ecclesiastical proceeding against Des Grange for bigamy, which respondents insist is the same to which complainants refer.’ It is set out in full in the decision, beginning at page 513 in 12 Howard, extending to 519, inclusive. Then the rebutting testimony of Daniel W. Coxe, for a long time a copartner in business with Clark, was introduced. He states an antecedent connection between Clark and Zulime to the time of their alleged marriage, with a confidential letter to him, which was delivered by Zulime, in which it was stated that she was pregnant, and that he, Clark, was the father of the child; further, requesting that he would put her under the care of a respectable physician, and furnish her with money during her confinement and stay in Philadelphia; and further, that she gave birth to a child, who was Caroline Barnes, who before her marriage went by the name of Caroline Clark, and that what has been related happened in 1802; and he further states that Clark was not in Philadelphia in 1803, having *578 gone to Europe in August, 1802, and having returned to New Orleans early in 1803. A letter from Des Grange was introduced, dated at Bordeaux, July, 1801; also a suit for alimony brought by Zulime against Des Grange in 1805, which will be further noticed in the opinion. Then it is said: ‘This is substantially the evidence on both sides on which the question depends, whether Des Grange was or was not guilty of bigamy in marrying Maria Julia Nee Carriere in 1794. Objections are taken to several portions of this evidence, and especially as respects the record of the suit against Des Grange for bigamy in the ecclesiastical court.’ And though this is followed in the decision by a suggestive, able, and searching commentary upon the objections made to the testimony of the defendants, and upon that of the complainant, by connection and comparison of the two, and upon what was deemed the law of the case, all of it relates exclusively to disprove that Des Grange was married, and had a wife alive when he married Zulime.

The announced conclusions in that case, which were seven in number, 12 Howard, 539, show it to have been so. It was ‘the question decided,’ and was said ‘concludes this controversy.’ The factum of marriage between Clark and Zulime, and the legitimacy of Mrs. Gaines, as both had been decreed by this court, were not then disaffirmed, either directly or inferentially, and all that was said about it is, ‘that the decree of this court in Patterson's case does not affect these defendants, for two reasons: 1. Because they were no parties to it; and, 2d, because it was no earnest controversy.'

**17 It is our opinion that the decision made in the case in 12 Howard was not intended to reverse the decree in 6 Howard, and that it cannot be so applied as res judicata to the case we are now trying.

We will now show the difference as to the character in which Mrs. Gaines then sued and that in which she now does, in connection with the law of Louisiana, as to what constitutes a res adjudicata, and what does not.

In the first, her demand was for one-half, and four-fifths of another half of the property owned by her father when he died. She then claimed as the donee of her mother to the one-half, *579 and as forced heir of her father to four-fifths of another half of his estate. Now she claims as universal legatee and legitimate child of her father, under his will of the 13th July, 1813, which has been admitted to probate by the Supreme Court of Louisiana, and ordered to be executed as such.

The difference between the two cases is just that which the law of Louisiana will not permit the decision in the first to be pleaded against her in this case as a res judicata.

It is declared in the article 2265 of the Louisiana Code, ‘that the authority of the thing adjudged takes place only with respect to what was the object of the judgment. The thing demanded must be the same; the demand must be founded on the same cause of action; the demand must be made between the same parties, and formed by them against each other in the same quality.'

The case in 12 Howard and that now under our consideration are dissimilar as to parties and things sued for, or what is called ‘the object of the judgment.’ The suit now is not between Mrs. Gaines and Relf and Chew, but between herself as complainant, and Duncan N. Hennen as defendant. Nothing was said in the first suit of the claim of Mrs. Gaines under the will upon which she now sues, as in every particular detailed in the article 2265. There are differences between her present cause of action and that formerly made, and the demand now made is not between the same parties, or formed against each in the same quality. And, therefore, upon well settled principles coincident with the article 2265, and also independent of it, nothing that was said or done in the case in 12 Howard can prejudice her claim as she now makes it. We give the authorities for that position, that they may be consulted, without being able, for want of time, to show their application by extracts. 24 Wend., 585; 14 Peters, 406; 1 Dana, 109; 3 Wend., 27; 2 Sim. and Stuart, 464; 6 Wheaton, 109; 7 Cranch, 565; 3 East., 346; 4 Gill and Johnson, 360; Preston v. Slocomb, 10 Reports, (Louisiana,) 361; 1 Annual, 42; 3 Annual, 530; 10 Annual, 682; 3 Martin, 465; 7 Martin, 727; 7 Reports, 46. And the precise point was ruled in Burt v. Steinberger, 4 Cowen, 563-4, ‘that the defendant might have *580 shown, if he could, that he had acquired a title since the former trial, or any title other than that which had been passed upon in the former trial.'

**18 We are fully satisfied from the article 2265, and the cases cited from the Louisiana courts, and from the English and American reports, that the objection of res judicata, as made against the recovery of the complainant in this case, is without any foundation in law.

We have now reached the last and most important objection made against the complainant's recovery. But before discussing it directly, we must dispose of the ecclesiastical record, which was much relied upon in the argument to repel the evidence of her legitimacy, and to establish the fact that the marriage between her father and mother was unlawful, from her having been then the lawful wife of Jerome Des Grange; in other words, that Des Grange did not commit bigamy when he married her, by which she was not released from her conjugal relations with him, and had not the right to marry any other man who was free to contract marriage.

We have seen that exceptions were taken to the admissibility of that record as evidence when it was first presented by the defendant's counsel in the case before the Circuit Court. They were renewed upon the appeal here. They were continued when the defendants introduced it again into this case, and it is necessarily before us to be determined as a question of law, whatever may have been thought of it heretofore, either by judges or by counsel.

Our first remark concerning it is, admitting that the canon law, as sanctioned by the church of Rome, was in force in Louisiana at the time of this procedure, it was a mere assumption, without authority in its beginning, tyrannous against the object of it, and irregular in its action. It was a nullity, coram non judice, before the canon who issued it. The presbyter canon who assumed to do so was not vicar general or governor of the bishoprick of Louisiana and the two Floridas. He was only the presbyter canon of a vacant see, without delegation by commission or deputation from a bishop to represent him in his spiritual offices and powers. He had no canonical power *581 in his pastoral charge of a particular church and congregation to originate a prosecution for bigamy. Nor would either archbishop or bishop, had there been either then in Louisiana, have ventured to do so in the condition at that time of the ecclesiastical practice and royal ordinances of Spain, especially in their application to its foreign possessions. And such a procedure was a direct violation of the Instituciones de derecho canonico Americano por El Rev. Sr. D. Justo Donoso.

The inquisition, as it had existed for more than a hundred years in France and Italy, was introduced into Spain by Gregory IX, about the middle of the 13th century. It encountered no opposition there. It at first attained a prevalence and extension of power larger than it had exercised before, and was on the increase when Spain became an united kingdom under Ferdinand and Isabella. They were authorized by the bull of Sextus IV to establish the inquisition in their States. And then it was invested with jurisdiction of heresies of all kinds, and also of sorcery, Judaism, Mahomedanism, offences against nature, and polygamy, with power to punish them, from temporary confinement and severe penances to the san benito and the auto de fé. Before that time the inquisition had exercised a capricious jurisdiction, both as to persons and creeds. Encyclopaedia Britannica, 8 edition, 11 vol., art. Inqui., page 386. In its new form it met with opposition. Attempts were made in Castile and Arragon to repulse its authority and to restrain the holy office, as it encroached upon government and deprived the people of many of their ancient rights and privileges. Its power, however, became triumphant, and so aggressive upon the royal authority that it was resisted by the Kings of Spain, as well in the kingdom as in its foreign possessions.

**19 It cannot be expected that we shall enter chronologically into such a detail. We will verify what has just been said by distinct citations from the laws of Spain and royal ordinances.

The first of these ordinances which we shall cite is that of Charles I of Spain, (5 of Germany,) issued at Madrid on the 21st September, 1530; Leyes de Indias, tom. 1, livre 1, titulo 10, page 48.

Charles had been about twelve years in Spain. The mines *582 of the West had begun to throw their treasures into Spain. They were essential to the accomplishment of the political and military designs of the King, and to his necessities also. Complaints were constantly being made of the rigors of the inquisition upon the Indians in his western dominions, and upon his subjects who had emigrated to them in large numbers in pursuit of gold. It was said but for such causes that the yield of gold would have been larger. The King determined to restrain the holy office in its jurisdiction, and issued his decree of September 21, 1530. We give Judge Foulhouse's translation of it: ‘We order the attorneys, police officers, sheriffs, and other ministerial officers of the prelates and ecclesiastical judges of our West Indies, islands, and continents along the ocean, not to arrest any layman, or issue any execution against him or his property, for any reason whatever; and we order all clerks and notaries not to sign, seal, or take any deposition with regard to the same, or for any reason thereto relating; and whenever ecclesiastical judges shall judge necessary to have a person imprisoned or an execution issued, they shall pray for the royal aid of our secular justices, who shall grant it according to law. And all vicars and ecclesiastical judges shall observe this order and comply with it, as is prescribed by this law, under penalty of losing the status and privileges which they enjoy in the Indies, and of being there held as foreigners and strangers to the same. And any of said attorneys, police officers, sheriffs, clerks, and notaries, and any other who do the contrary, shall be forever exiled from all of our Indies, and all of their goods shall be confiscated for the profit of our royal treasures; and we hereby direct and empower all of our justices, and all of our subjects and settlers, not to consent thereto, and let the attorneys or executing officers do so, too; and we order that this ordinance be observed, any contrary custom notwithstanding.'

The ordinance of Charles was followed by another of his son, Philip 2, which declared, ‘that whenever in our royal courts of the Indies the aid of the secular arm shall be asked by the prelates and ecclesiastical judges, either for an arrest or for execution, the demand shall be by petition, and not by *583 requisition.’ These royal ordinances will be found in the recopilacion in the Indies. They were declared by a law of Don Carlos 2, one hundred and thirty years after they were promulgated, to be existing laws, on the 18th May, 1680. See the law to that effect preceding the Titulo Primero in Libro Primero, fo. 1, Recopilacion Leyes de Indies. They have had their places in every edition of the recopilacion since. Indeed, they were never abrogated, and were in practical operation in all of the dominions of Spain in America until she lost them.

**20 They establish satisfactorily that the presbyter canon, Hasset, when he issued his prosecution against Jerome Des Grange for bigamy and imprisoned him, that he did so contrary to law, and that his whole proceeding in the matter was a nullity, and, as such, inadmissible as record evidence in a secular or ecclesiastical court. Recopilacion de leyes de los reynos de las Indies; En Madrid, por Andres, Ortega, ano. de 1774; Tercera Edicion, page 48.

But there are other royal ordinances establishing what has just been said in respect to the nullity of that procedure, because they bear directly upon the incapacity of the ecclesiastical power to originate a prosecution for bigamy.

The first of them which we shall cite is a cedule of March 19, 1754, in which it was declared that polygamy was a crime of a mixed nature, in which the royal tribunals may take cognizance in the first instance, with this qualification, that if the inquisition wishes to punish the accused for suspicion of heresy, he shall be remitted to it after having suffered the legal penalties. Leyes de Indies, c. 1, tit. 19, not. 2.

But this cedule was modified in 1761 by Charles 3, leaving to the inquisition cognizance of this crime, and reserving only to the secular courts the power to take informations, and to arrest the accused in order to deliver him to the inquisition. This concession was made by the King, who ascended the throne at a period peculiarly critical, requiring the conciliation of every agency in his new kingdom to meet the pressure of political difficulties, and to allay discontents and suspicions against himself, which subsequently became a revolt. He was *584 charged with being opposed to the inquisition, from having been on the throne of Naples for several years, where it had never been introduced, the people having always resisted its establishment over them.

But the prudence of the King did not restrain the inquisition from the assertion of its jurisdiction in that and in other particulars offensively to the ancient usages and rights of Spain. In its eagerness to extend its power, it invaded the royal authority, and stretched its jurisdiction to every cause in the slightest degree connected with ecclesiastical discipline or punishment. The King resisted it, and he was soon furnished with a cause for doing so. The inquisition having taken from the auditor of the army a process instituted against an old veteran who was accused of bigamy, the jealousy which the King in fact entertained against the inquisition was revived. His vigilant minister, d'Aranda, used it to obtain a royal decree, ordering the process against bigamy to be restored to the civil or secular courts. It also enjoined upon the inquisition to abstain from interfering with the proceedings of the secular courts; required it to confine itself to its proper functions in the prosecution of apostacy and heresy; forbade it to ‘defame with imprisonment his vassals before they were previously and publicly convicted,’ and commands the inquisitor general to require the inquisitors to observe the laws of the kingdom in cases of that kind; and further, all the King's royal tribunals, judges, and justices, were ordered to keep and obey the decree, and to punish those who should violate it in any manner whatever. This was the decree of Charles 3, of the fifth of February, 1770, cited by Judge Foulhouse in his opinion upon the nullity of the proceedings against Jerome Des Grange, by the assumption of the presbyter canon, Hasset, of the Cathedral church of New Orleans. For the royal decree of the 5th February, 1770, see original, the Novissima Recopilacion, vol. 5, p. 425; Coxe's Memoirs of the Kings of Spain, 3 vol., ch. 57, page 367.

**21 Thus stood the jurisdiction of the inquisition in respect to the crime of bigamy restrained by royal authority for six years. Complaints were then made of the uncertainty of the royal *585 cedule of the 5th February, 1770, especially in respect to the extent of its interference with the power of the holy office to inquire for discipline and for punishment into cases of polygamy. The King was induced to call a toro or council, to discuss the different relations and boundaries between the secular and ecclesiastical cognizances of the crime of bigamy. The result of that council was communicated to the King on the 6th September, 1777. It was that a majority of it had come to a conclusion, that by the act of marrying a second time whilst the first wife was alive, the person who does so violates the faith due to the marriage contract; that he deceives the second wife and wrongs the first; inverts the order of succession, and of the Legitimacy established by the laws, inasmuch as his fraud makes the children of the second matrimony, though truly adulterine, legitimate, and capable to inherit from their parents on account of the good faith of their mother in contracting that marriage; further, that the kingdoms of Spain assemble