Gaines v. Relf, 15 Pet. 9.

It was here upon demurrer in 1844 (Gaines v. Chew, 2 How. 619), and again in 1848, upon its merits (Patterson v. Gaines, 6 How. 550), when the decision was in favor of complainant as "forced heir" of Daniel Clark.

This decision was partly modified in 1851, Gaines v. Relf, 12 How. 472. In 1855, the will of Daniel Clark of 1813 having been probated by the supreme court of Louisiana (11 La. Ann. 124), this case was here again in 1860 (Gaines v. Hennen, 24 How. 555, 16 L. ed. 770) when her rights as universal legatee under the will of Daniel Clark of 1813, and her status as his legitimate child were fully established.

The court, in giving its opinion in that case, said: "Thus, after a litigation of thirty years, has this court adjudicated the principles applicable to her (Mrs. Gaines') rights in her father's estate. They are now finally settled." Yet there are now before this court these three cases, in which the defendants seek for a reversal of the principles that finally settled her right in that decision, and they come upon the same issues raised by the same pleadings and supported by the identical evidence upon which the Hennen Case was decided.

It is not deemed necessary or desirable here to give the history of this great litigation, or to attempt to state the complicated facts involved. "The profession is familiar with it by the repeated adjudications of this court." "It has been pursued by the complainant through a third of a century, with a vigor and energy hardly ever surpassed, in defiance of obstacles which would have deterred persons of ordinary mind and character, and has enlisted on both sides at different periods the ablest talent of the American bar." (Op. 600.)

The opinion of the court herein contains a sufficient statement to make it perfectly clear; and the entire history of this, "the most remarkable litigation in the records of our courts," may be traced in the reports above cited, where the facts have been discussed in detail in the opinions of the court and fully reported.

Subsequent cases of Mrs. Gaines in the Supreme Court may be found reported in 82 U. S. (15 Wall.) 624; 92 U. S. 10; 93 U. S. 341; 104 U. S. 386. In addition to these cases, Mrs. Gaines had four cases upon the docket of the December Term, 1883, one of these a case from Missouri, Gaines v. Hammond, 2 McCrary, C. C. 432, was decided adversely to her, April 21, 1884. The report of the decision in the court below may be found in 6 Fed. Rep. 449.

The remaining three, U. S. ex rel. Gaines, v. N. O., two cases, and Gaines v. N. O., were not reached at the 1883 term.

The following is a partial list of the reports of cases in the state and circuit courts, in which Mrs. Gaines has been interested:

Barnes v. Gaines, 5 Rob. La. 314; Succession of Clark, 11 La. Ann. 124; Clark v. Gaines, 13 La. Ann. 138; De la Croix v. Gaines, 13 La. Ann. 177; Van Wych v. Gaines, 13 La. Ann. 235; Fuentes v. Gaines, 25 La. Ann. 85; Foulhouze v. Gaines, 26 La. Ann. 84; White v. Gaines, 29 La. Ann. 69; Fuentes v. Gaines, 1

R. 449, 2 McCrary, 432; Gaines v. N. O. 4 Wood, C. C. 213; Fed. Rep. 16; U. S. v. New Orleans, 17 Fed. Rep. 483. The two latter cases are the ones above alluded to, which are now pending in the Supreme Court of the United States.

The claim of Mrs. Gaines to grants of land stated to have been made to her father, Daniel Clark, has also been and still is before Congress. An explanation of this matter is uncalled for here.

Messrs. Caleb Cushing, James Emott, and H. D. Stone, for complainant and appellant:

Only the leading points in the argument with the authorities supporting them can be given here.

1. The pleadings, the issues and the evidence in this case are the same as in Gaines v. Hennen, 24 How. 553, 16 L. ed. 770. We, therefore, confidently invoke the decision in that case as authority conclusive and decisive of the case of these defendants.

This court ought not to be called upon to again investigate the 8,000 printed pages of pleadings and evidence contained in these records, which have been once most ably and elaborately argued before this court by eminent counsel, and most thoroughly and critically analyzed by this court in one of the most elaborate and carefully considered opinions among its reported decisions.

Whenever the same facts and issues come before this court which have once been fairly decided, it is in accordance with the uniform practice of this court not to consider them as an open question, except in case of "clear mistake or evident error."

This rule is distinctly enunciated in Goodtitle v. Kibbe, 9 How. 478. The questions involved in that case had been before the court in Pollard v. Hagan, 3 How. 212, where the parties were entirely different, but the questions were the same. The court says:

"The question decided in the state court cannot be regarded as an open one. The same question, upon the same act of Congress and patent, was brought before this court in the case of Pollard v. Hagan, 3 How. 212, at January term, 1845. That case was fully and deliberately considered, as will appear by the report, and the court then decided that the act of Congress and patent conveyed no title. The decision of the supreme court of Alabama, from which this case has been brought by writ of error, conforms to the opinion of this court in the case of Pollard v. Hagan. And it must be a very strong case indeed, and one where mistake and error has been evidently committed, to justify this court, after the lapse of five years, in reversing its own decision, thereby destroying rights of property which may have been purchased and paid for in the meantime upon the faith and confidence reposed in the judgment of this court.

In the recent case of Wright v. Sill, 2 Black, 544, 17 L. ed. 333, the court takes still stronger grounds, and says that a case repeatedly argued and decided by this court is no longer open for consideration.

This rule applies in full force to the city of New Orleans.

That city has once been fully and fairly heard

upon all the matters at issue in the present

case.

When the case of Gaines v. Hennen, 24 How. 553, 17 L. ed. 770, was before this court at the December term, 1860, the defendant and complainant invited the city of New Orleans, which was deeply interested in the questions at issue, to take part in the defense of that case. With the assent of the court, the city of New Orleans did defend that case. By a resolution of the city council, it employed Louis Janin, an eminent attorney of that city, to defend its interests therein. He filed an able brief which is now among the records of that case. The court heard his defense and passed upon the points raised by the city. The court in its opinion says, p. 571, 16 L. ed. 776:

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." "We will now examine the case upon the most serious point made in opposition to Mrs. Gaines, by the learned counsel, Mr. Janin."

Under these circumstances the decision in Gaines v. Hennen is "res judicata" as to the city of New Orleans.

That city is estopped from being heard in defense to the present bill, so far as the issues of fact and law are the same as those decided in the Hennen case; and there are none other.

2. But aside from the large amount involved in the decision of these cases now before the court, the judgment therein is of such vast importance in respect to nearly one thousand defendants who are litigating with this complainant questions substantially the same, in the circuit court of Louisiana, we beg leave to submit the following brief and argument, without relying upon the Hennen Case, except so far as it is "res judicata" upon some points raised by these pleadings, to show that complainant is entitled to the decree and relief, as to the present defendants, that she has prayed for in her bill.

1. The status of complainant is irrevocably fixed by the judgment in the Hennen Case.

To these defendants and to the whole world, by that decree Myra Clark Gaines is the legitimate child of Daniel Clark and Maria Julia Carriére, begotten in lawful wedlock.

"Our judgment is that, by the law of Louisiana, Mrs. Gaines is entitled to a legal filiation as the child of Daniel Clark and Maria Julia Carriére, begotten in lawful wedlock."

24 How. 614, 16 L. ed. 790.

Stark. Ev. 8 Am. ed. 372; 2 Tayl. Ev. § 1489; Perry v. Meadowcroft, 10 Beav. 122; Dacosta v. Villa Real, 2 Str. 961; Ennis v. Smith, 14 How. 400; 2 Sm. Lead Cas. H. & W. notes, pp. 670, 671, 827, 836; 1 Burge, Com. 90-92.

2. Daniel Clark, by his last will of 1813, left to complainant his entire estate.

That he left this last will is proved by the judgment of the supreme court of Louisiana, admitting to probate the will of Daniel Clark of 1813.

Succession of Clark, 11 La. Ann. 124.

3. One effect of the probate of the will of 1813 by the supreme court of Louisiana in 1856 (11 La. Ann. 124), is to recall and annul the probate of the will of 1811, probated in 1813, so far as its provisions are inconsistent therewith.

24 How. 556, 16 L. ed. 771.

"When a court recalls a probate of a will substituting a probate of another will by the same testator, made posterior to the first, 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 what part of the estate was administered under the first probate."

A subsequent will can be probated without any order of the court, annulling a previous probate, and whether it revokes the previous will or not, depends upon the terms of the will itself. This revocation may be express as in C. C. 1684, or tacit, by inconsistent provisions, as in C. C. 1686.

Sarce v. Dunoyer, 11 La. 220; Tournoir v. Tournoir, 12 La. 24; Succession of Bowles, 3 Rob. 31; Lyon v. Fisk, 1 La. Ann. 444. Another effect is this:

The probate of the will of 1813 is a judgment of the supreme court of Louisiana, binding upon all parties litigant while it remains unrevoked and unannulled, and cannot be attacked collaterally in this court.

If any error was committed in allowing the probate, the remedy is in the state court.

Gaines v. Chew, 2 How. 619; Fouvergne v. N. 0. 18 How. 473, 15 L. ed. 401; Tarver v. Tarver, 9 Pet. 179.

The only question open in this court in the matter of proof of wills and kindred judgments is: Had the court jurisdiction over the subject-matter?

If it had jurisdiction, then right or wrong, that judgment is conclusive upon this court.

Ulp. Dig. lib. 1, tit. 5, De Statu Hominum Law, 25; Toullier, vol. 10, No. 216; 1 Greenl. Ev. §§ 524, 525; Lord Coke, in 1 Inst. 352 b, rule 9.

"The general rule is that such a judgment (of status), sentence, or decree, provided it be final in the court in which it was pronounced, is evidence against all the world, unless it can be impeached on the ground of fraud or collusion."

Tarver, 9 Pet. 174; Gaines v. Chew, 2 How. 619; Fouvergne v. N. O. 18 How. 471, 15 L. ed. 400, are cited and approved.

See also Gelston v. Hoyt, 3 Wheat. 316; Armstrong v. Lear, 12 Wheat. 175; Thompson v. Tolmie, 2 Pet. 166; Tompkins v. Tompkins, 1 Story, 552; Osgood v. Breed, 12 Mass. 533; Inh'ts, Dublin v. Chadbourn, 16 Mass. 441; Laughton v. Atkins, 1 Pick. 541; Lewis' Heirs v. His Ex'rs, 5 La. 394; Lalanne Heirs v. Moreau, 13 La. 436; Graham, Heirs, v. Gibson, 14 La. 149; Derbigny v. Pierce, 18 La. 551; Box v. Lawrence, 14 Tex. 545; 9 Petersdorf, 202; 12 Ves. Jr. 298; Gresley, Eq. Eev. 334-338; 2 Sm. Lead. Cas. 828.

From these three propositions it necessarily results that the law of these cases is that complainant is the only legitimate child of Daniel Clark, and sole legatee of all his estate by virtue of his last will, the probate of which being unrecalled, is binding and conclusive upon all these defendants.

3. Was Daniel Clark married to Zulime Carriére at and before birth of complainant?

If this was a new question to be decided upon the evidence, we should say that the testimony in this record of Madame Despeau and Calliveret, who were present at the marriage, and of Bellechasse Boisfontaine and Mrs. Smith, with the declaration in Clark's will of 1813, abundantly prove that fact.

But it is not a new question.

The Supreme Court of the United States has decided that there was a marriage between Clark and Zulime Carriére in Philadelphia in 1802 or 1803, in Patterson v. Gaines, 6 How. 550.

In that case the unanimous opinion of all the judges was that the evidence in that record proved the fact of a marriage between Clark and Zulime Carriére.

In the present case defendants have offered no new legal evidence bearing upon the factum of marriage which was not in the Patterson record, while complainant presents the same evidence upon which that opinion was founded, and much that is new, especially the important fact of her father's acknowledgment of her legitimacy in his last will.

But defendants say the decision in Patterson v. Gaines, 6 How. 550, is overruled by Gaines v. Relf, 12 How. 472, as to the factum of Clark's marriage.

We say it is not, and as conclusive upon this point cite the language of this court in Gaines v. Hennen, 24 How. 553, 15 L. ed. 770.

4. Did Clark contract that marriage in good faith?

Upon this question, the fact of marriage being proved, the presumptions of law are all in favor of good faith.

This is the doctrine of Marcadi and other distinguished French writers.

To disprove the good faith of Clark, "the law requires that there shall be full proof to the contrary, and will not be satisfied with semiplena probatio."

Gaines v. Hennen, 24 How. 553, 16 L. ed. 770. Chief Justice Martin, in Clendening v. Clendening, 3 Mart. (N. S.) 442, says: To disprove the good faith in such cases, "the proof must be irrefragable."

5. It is claimed as a question of law that the

decree of this court in the case of Gaines v. Relf, 12 How. 472, is res judicata, both as to complainant's present claim for the property, rents, revenues, etc., held by these defendants, and as to complainant's status.

The court in 12 How. could not settle her rights under the will of 1813. They were not in issue. Her rights under that will did not then exist, for want of a probate of that will, which took place four years after that decision. The authorities are conclusive upon this point.

In Burt v. Sternburgh, 4 Cow. 563, the court says:

The defendant might have shown, if he could,

that he had acquired title since the former trial, or any other title other than that which had been passed upon in the former trial."

See also Jackson v. Wood, 3 Wend. 28; Shafer v. Stonebraker, 4 Gill. & J. 345; Reeve v. Dalby, 2 Sim. & St. 464; Hopkins v. Lee, 6 Wheat. 109; Outram v. Morewood, 3 East, 345.

The uniform decisions of Louisiana are equally conclusive.

Peyton v. Enos, 16 La. Ann. 135; Cantrelle v. R. C. C. St. James, 16 La. Ann. 442; West v. His Creditors, 3 La. Ann. 530; Cook v. Doremus, 10 La. Ann. 682; Preston v. Slocomb, 10 Rob. (La.) 361; 3 Mart. 485; 7 Rob. (La.) 44; 1 La. Ann. 42.

6. It is claimed that Relf and Chew, as executors of Daniel Clark under the will of 1811, legally conveyed to them or their vendors all the title of Daniel Clark, and they set up that title in bar of complainant's claim.

But Relf and Chew, as executors of the estate of Daniel Clark, could legally make no sales or give any title to the property of that estate after the expiration of a year and a day from the_time of their appointment as executors, without the special authority of the court.

Succession of Waters, 12 La. Ann. 99; Deranco v. Montgomery, 13 La. Ann. 514; Johnson v. Brown, 3 Mart. (N. S.) 601; Brown v. Williams, 16 La. 344; Michot v. Flotte, 12 La. 130; Lafon v. Gravier, 1 Mart. (N. S.) 243; Lamothe v. Dufour, 4 Mart. 340; Quierry v. Faussier, 4 Mart. 609.

7. It is also claimed that all this property was legaly conveyed to them or their vendors by Relf and Chew, as attorneys of Mary Clarke, and that those sales gave a good and valid title to them, because Mary Clark was the real heir of Daniel Clark, or if not, that she was "sole instituted heir," and as such could give a good title as against the real heir subsequently discovered.

Mary Clark, as "sole instituted heir" under the will of 1811, could give no title to any purchaser as against the real and paramount heir. Balot y Ripoll v. Morina, 12 Rob. (La.) 560.

By the law of Louisiana the title of the instituted heir is good against all the world, except against the title of the real and paramount heir; and he can convey no greater title to any vendee.

"It is an undisputed principle of our Code that the sale of another's property is null."

Lafon v. DeArmus, 12 Rob. (La.) 626; Beaumon v. Thomas, 1 La. Ann. 284; Hall v. Nevill, 3 La. Ann. 326; Dyson v. Phelps, 14 La. Ann. 722; Old Code, art. 20, 348.

8. The claim is set up that Clark died insolvent-that his estate owed large debts, and that the will of 1813 provided for certain legacies; and they seriously set up as a defense to complainant's suit to recover the testator's estate, that she should first pay the debts of the estate and discharge the legacies. They set up debt in bar to title.

The statement of this defense is its best

answer.

9. It is also claimed that complainant cannot recover all the estate in her bill claimed, because, although the legal title of all of it was in Daniel Clark at the time of his death, yet there was an outstanding equitable title in Relf and Chew to two thirds of the property claimed by complainant, by virtue of a partnership agreement of June 19th, 1813, between Daniel Clark and Relf and Chew.

Even if Relf and Chew were now the equitable owners of two thirds of this property, it is not in law or equity competent or open to defendants to set up in bar to complainant's bill this outstanding equitable title in Relf and Chew in this case and under these pleadings. This is well settled by the law of Louisiana. "Defendant cannot set up an outstanding title in a third person, when he claims under the same person as plaintiff."

Crane v. Marshal, 1 Mart. (N. S.) 577. "The doctrine is now well settled, that when parties litigating in relation to their respective rights to any specified property, trace their titles to one common source, neither of them is at liberty to deny the title of their common author."

Bedford v. Urquhart, 8 La. 239; Trahan v. McManus, 2 La. 214; Verrett v. Candolle, 4 Mart. (N. S.) 402; Hughey v. Barrow, 4 La. Ann. 250; Girault v. Zuntz, 15 La. Ann. 686; Cotton v. Stacker, 5 La. Ann. 677.

The same doctrine is well settled, both in law and equity, by the highest judicial authority of nearly all the States and in England, as well as by this court.

"Where both parties claim title under the same person, it is not competent to either to deny that such person had title."

Love v. Gates, 4 Dev. & Bat. 363; Ives v. Sawyer, 4 Dev. & Bat. 51; Norwood V. Marrow, 4 Dev. & Bat. 442; Ward v. McIntosh, 12 Ohio St. 239; Douglass v. Scott, 5 Ohio, 197; Jackson v. Ireland, 3 Wend. 100; R. Co. v. Seeger, 4 Wis. 268; Gilliam v. Bird, 8 Ired. 280; Rosseel v. Wickham, 36 Barb. 391; Demeyer v. Legg, 18 Barb. 14; Ellis v. Jeans, 7 Cal. 409; Smith v. Doe, 26 Miss. 291; Dooley v. Wolcott, 4 Allen, 409; 2 Sm. Lead. Cas. 712, 6 ed.; Atty. Gen. v. The Bishop, 5 Ves. 831; Bowman v. Taylor, 2 Ad. & E. 290; Addison v. Crow, 5 Dana, 282; Gayle v. Price, 5 Rich. 525; Johnson v. Watts, 1 Jones, 230; Gantt v. Cowan, 27 Ala. 582; Cooper v. Galbraith, 3 Wash. (C. C.) 548.

10. Another defense set up by each of these defendants is, that they are bona fide purchasers for a valuable consideration without notice.

In 1862, in Phillips v. Phillips, 8 Jur. (N. S.) 145, Lord Chancellor Westbury held that this plea was not good in all cases, even against the holder of the equitable title.

Hughes v. Graves, 1 Litt. 319; Daniel v. Hollingshead, 16 Ga. 194; Wood v. Mann, 1 Sumn. 578; Taylor v. Stone, 2 Munf. 314; Hurst v. McNeil, 1 Wash. (C. C.) 79.

"Though equitable rights may, in favor of fair bona fide purchasers for valuable consideration and without notice, be lost by a sale, legal rights never can, unless there be fraud."

Hooe v. Pierce, 1 Wash. (Va.) 212; Larrowe v. Beam, 10 Ohio, 498; Blake v. Heyward, 1 Bail. Ch. 221; Vattier v. Hinde, 7 Pet. 271; Boone v. Chiles, 10 Pet. 211; Kerr v. Watts, & Wheat. 560; Hallet v. Collins, 10 How. 184.

11. The defendants also claim that complainant's demand is barred by prescription.

It is the well-settled doctrine of equity, that in cases of fraud, if prescription runs at all, it only runs from the time of the discovery of the fraud.

Brookshark v. Smith, 2 Younge & C. 58; Blair v. Bromley, 5 Hare, 542; Lawrence v. Trustees of Orphan Home, 2 Den. 581; Story, Eq. § 1521 (9th ed.); Hill, Trust, 168.

The doctrine of Lord Redesdale in Bond v. Hopkins, 1 Sch. & L. 413, is that, as against "the wrongful possessor and claimant by false title, no length of possession shall bar the real title." The doctrine of this court in Michoud v. Girod, 4 How. 561, is that:

"In case of actual fraud, no case can be found on the books in which a court of equity has refused to give relief within the lifetime of either of the parties, or within thirty years after it has become known to the party whose rights are affected by it."

The complainant has a right to the application of the words of Lord Chancellor Northington, in Alden v. Gregory, 2 Eden, 285:

"Will delay purge a fraud? Never, while I sit here. Every delay adds to its injustice and multiplies its oppression.

She has a right to ask this court to adopt the doctrine of Lord Brougham, in Irvine v. Kirkpatrick, 3 Eng. L. & E. 24, in which prescription had run for forty years; "I, too, say that no time will run to protect and screen fraud. I too, say that a court of equity will overleap the barrier of time, to get at the fraudulent parties and their deeds, and to prevent anyone, whether accomplice or innocent, from profiting by the fruits of fraud."

Messrs. J. McConnell and Miles Taylor, for appellees:

1. The decision in the Hennen Case is not authority.

It can be proved that the defendant Hennen desired and intended to let the complainant obtain a decree against him, and the defendants have had no opportunity of proving the collusive character of said suit, because the records in the cases now before this court for trial had been closed by definitive judgments against the complainant, before the rendition of the decree in the said Hennen suit in this court.

After the imposition practised upon this court in the Patterson Case had been exposed, and the attempt to obtain from one of the defendants a consent judgment, intended to be used against the others, had failed so signally, we find a similar proceeding again resorted to; and as in the Patterson Case, his counsel was above such collusion, and conducted and argued the cause as though it were a real suit, so in the Hennen Case, no doubt did Mr. Janin, who is stated to have appeared for the city of New Orleans, attempt in good faith to make an argument for the defense. But it was a fact well known-the brief of Mr. Janin shows it-that this gentleman met with a serious accident resulting in such acute suffering that he was physically unable to present the case fully to the court.

The certificate of the clerk of the United States circuit court of Louisiana shows that, although the judgment in the Hennen Case was rendered in 1860, the complainant was not put in possession until after the lapse of five years, and then only of the real estate sued for; that the decree of this court against Mr. Hennen has been otherwise unexecuted, although it gave the complainant a judgment against Hennen for costs and for the rents of the property from the 13th May, 1844; and there is proof before this court, that the property was productive when Hennen bought it in 1844, yielding then a rent of $60 per month.

The general repute of Mr. Hennen (lately deceased) was, that he was a wealthy man, while that of the complainant, on the contrary, was that of an heir, seeking, but not yet in possession of an estate.

Why is it that the complainant has been put in possession of the land, but no steps taken to collect the rents and costs? A very important question in this controversy, was and is, the good or bad faith of the defendants as purchasers. Hennen was a clerk of the circuit court of Louisiana in 1841, and for many years subsequently and, therefore, had full knowledge of the alleged rights of the complainant; because they passed under his eye as the record attests, and he was held to be a possessor in bad faith. Yet if he was not to be pursued for the rents and profits, he had no real interest in the question. Is it fair or just, then, that the other defendants who are to be pressed, should be concluded as possessors in bad faith by the decree in this case?

All that we ask is a fair and full hearing. What we earnestly protest against is, having the decision rendered in the Hennen Case, which this court of course supposed Hennen was really contesting, used against us, when his interest was to lose it.

Can the complainant be permitted to refer to this decree thus rendered, as res judicata upon the question for instance of the complainant's status, declaring her to be Clark's legitimate

and only child, when it is manifest that Hennen did not care a fig whether such an expression was contained in the decree or not; and when, too, his opposition or even his attention might have excluded it from the decree, inasmuch as it was not asked for in the pleadings— the complainant's bill only asking for recognition as instituted heir.

We appeal to your Honors, in the names of the large number of defendants, many of whom are poor people; and in view of the utter ruin these defendants will suffer if the principles embodied in the Hennen decree are enforced against them without a hearing-without an opportunity of being heard upon the evidence in the record, with the mind of the court free from the prejudice of that decree.

The amount of property involved in the Hennen Case was trivial when compared with the enormous interests at stake in the issues pending and yet to be decided by this honorable court, but which we are told "are concluded," and that "the court will not hear argument, because these cases are brought up upon substantially the same pleadings and evidence;" and notwithstanding the fact that Hennen's interest was to let the complainant gain her suit.

The other defendants have a very different interest from that which actuated Mr. Hennen; and as their counsel, we respectfully ask to be allowed a full hearing in their behalf.

We ask your Honors' particular attention to the circumstance that, in the Hennen Case, although the complainant in her bill therein, states that "her claim as heir at law was finally decided against her in 1852," and only asks to be recognized as instituted heir under the will of 1813, still more, far more than she asks, was given to her.

If that decree had conformed to the prayer of the complainant, it would have declared her Clark's instituted heir simply. But on reading it, we find that she is declared to be "the legitimate and only child," and entitled to all the rights of the same-besides being the universal legatee-which is in direct contradiction of the decree in 12 Howard, 539.

We will recur hereafter to the character of this claim as instituted heir, to show that Myra Clark is forced heir, and its effect. We mention it now only as illustrating from the decree itself, that the Hennen Case, reported in 24 How. 553, 16 L. ed. 770, was no better certainly than this honorable court pronounced the Patterson Case to be, when it held that "the decree of this court in Charles Patterson's Case does not affect these defendants for two reasons: (1) Because they were no parties to it; and (2) because it was no earnest controversy." 12 How. 539.

When the Patterson Case was being tried in this honorable court, he, through his counsel, denied that the suit was a collusive one. 6 How. 575.

Mr. Hennen, if living, would no doubt make a similar denial; yet now, as then, the facts show that the controversy was amicable as between him and the complainant that it was not real litigation, or in the language of the court, not an earnest controversy.

Whatever name may be given to it, we care not, but in the name of the hundreds of defendants whom, as counsel, we represent, and