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Myra Clark Gaines, Appellant, v. Duncan N. Hennen U.S. 553 (1861)

handle is hein.slavery/ussccases0424 and id is 1 raw text is: DECEMBER TERM, 1860. Gaines v. Hennen. and misleading. But that theory is wholly without support from anything that appears in thd record, and, in point of fact, is directly contradicted by what does appear. To sustain that remark it is only necessary to refer to the declaration, where. it is alleged that tife plaintiff was detained in prison for the space of seven days, and the minutes of the proceedings before the magistrate show that he was so detained as the necessary consequence of his own request for delay, and the neglect on his part to offer any satisfactory security for his aptearance at. the time appointed for the examination, Those minutes were introduced by the plaintiff; and in the absence of any proof to the contrary, it must be assumed that they speak the truth. In view of the whole case, we think the charge of the court to. the jury was correct, and that there was no error in the record. The judgment of the Circuit Court is therefore ,ffirmed, with costs. MYRA CLARK GAINES, APPELLANT, V. DuNcAN N. HENNEN. Since the case of Mrs. Gaines was before this .cofirt, as reported in 12 How- ard, 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 con clusions 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 destruc- tion 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 Ms. Gaines to iecover the property sold by the executors appointed by a former will of 1811, it was not necessary to make these execu- tors parties. The reasons stated. It was not necessary formally to set aside the will of 1811 before proceed- ing under that of 1813. Any one who desired to contest this latter will in a direct action was not concluded from doing so. I'he title of Mrs. Gaines is not barred by prescription, as defined by the law bf Louisiana. The reasons explained. . •he decision of this court in 12 Howard, 473, did not overrule the decision iii 6 Howard, 550. The two cases explained. - . The case in 12 Howard cannot be set up as a defence in the present case as.

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