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FROM JULY, 1874, TO JANUARY, 1875.

10157

ALBANY:
WEED, PARSONS AND COMPANY.

1874.

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Entered, according to act of Congress, in the year eighteen hundred and seventy-four,

BY WEED, PARSONS AND COMPANY,
In the office of the Librarian of Congress, at Washington.

APR 2 0 1966

THE ALBANY LAW JOURNAL:

A WEEKLY RECORD OF THE LAW AND THE LAWYERS.

All communications intended for publication in the LAW from the cabinet, and when it was opened Miss Ellis JOURNAL should be addressed to the editor, and the name

was discovered with her hands untied, and a ring of the writer should be given, though not necessarily for publication.

that had been on her finger, then on the end of her Communications on business matters should be ad

nose; thus realizing in some measure the prophecy dressed to the publishers.

of the poet,

“Rings on her ingers and bells on her toes, The Albany Law Journal. She shall have music wherever she goes."

It also appeared that some of the speakers claimed to ALBANY, JULY 4, 1874.

represent the spirits of dead persons, and that some

of them said they would throw away the Bible in FREEDOM OF RELIGIOUS ACTION. their search after truth; others spoke and prayed in This is a very sedate title, but we hope none of our a trance, but it does not appear that their hearers patrons will be misled by it into passing over this were entranced. Evidence was given that there was paper without perusal, for the seriousness is more in a saloon tent, where victuals and drink, including appearance than in reality. This country is theoreti- whisky, were sold, but it appeared that the manacally a very liberal one in respect to religious opinions. gers were innocent of the whisky, and that the meetOccasionally, however, cases come before our courts ing, unlike that attended by the Rev. Mr. Stiggins, that strain legal liberality to the utmost. Two judicial was not drunk. It also appeared that the plaintiff voices have recently reached us on this subject, one was induced to attend the meeting by reading an adfrom Massachusetts and the other from North Caro- | vertisement in a newspaper called the Banner of lina. From these it will be seen that our institutions Light. It was claimed that the traveling of the plainare safe, whether under the shadow of Bunker Hill tiff was in contravention of the Sunday laws, and Monument or the towering pine trees of the southern that consequently she could not maintain the action. commonwealth.

Counsel contended that so far from being a matter of The first case to which we refer is Feital v. Middle- necessity or charity, the meeting was held "for idolasex Railroad Co., 109 Mass. 398. This was an action try and jugglery," and in hostility to Christianity. by a lady to recover compensation for injuries suf- But the court let it go to the jury, and the jury fered by her, from an accident while she was travel- gave $5,000 damages. This was affirmed. And ing in the defendant's cars, on Sunday. Mrs. Feital we really can't see why it should not have been. was a believer in the "spiritual” religion, and on the It was a very different matter from the case of that occasion in question had gone to Malden to attend a infidel shoemaker who hoed his corn early on a Sunday spiritualists' camp-meeting, on her return from which morning, before anybody was up, and that other unshe met with the injury. The exercises consisted of regenerate heathen who gathered the sea-weed ont he speaking from the "grand stand," singing, and pray- beach late on a Sunday night, after every one had ing, and during the exercises it was announced from gone to bed. Common viealth v. Josselyn, 97 Mass. the “grand stand” that Miss Laura Ellis would give 411; Do. v. Sampson, id. 407. We have formerly physical manifestations in a tent near by, to which an taken pains to express our abhorrence of these two admittance fee of twenty-five cents would be charged; criminals. Even now the few hairs that envious time the plaintiff did not attend the “side show," but the has left us, erect themselves in horror at the remimanifestations were a part of the religious services of niscence of their unnatural crime. But Massachusetts, the sect. It was in evidence that these manifesta- while she frowns on the pursuits of mammon on the tions consisted in the medium's being put into a cabi- Lord's day, encourages devotion, however eccentric net with her hands tied, that music was heard coming or extravagant may be the modes in which the gospel manifests itself to its believers. If it had been part bar, the jury, and the court." The jury found him of the plaintiff's religion to hoe corn or gather sea-weed, guilty, but this was reversed because there was no doubtless he would have been excused for the prose-proof or pretense of any intention or purpose to discution of those enterprises on Sunday. At any rate turb the worship, but on the contrary it was admitted it would have been left to the jury. To be sure, the that he was conscientiously taking part in the religious profane may sneeringly suggest that the acts of Jos services, and doing his “level best.” Now this was selyn and Sampson had as much moral fitness as a serious case. The offender was a member of the those of the persons who imagined themselves in dead church in good-standing, and there was no fault in men's shoes on the “grand stand,” and that of the him save the eccentric character of his vocalization. gifted Miss Ellis, who so piously transferred the ring But it must have been a harrowing reflection to his from her finger to the end of her nose. But there fellow church-members that he was to be saved, and are plenty of people always ready to sneer at religion, that they were bound to listen to that singing through and excuse the impious Josselyns and Sampsons. all eternity. Doubtless many of them occasionally Even if the court in this case had not chosen to put wished that things could be so ordered that he or their decision on general principles, the plaintiff was they might turn up in the opposite sphere. But this absolved by the letter of the statute. She had not of course was impossible. The next best thing was been engaged in “ordinary business or common to put such a stigma upon him here, that Satan would worldly affairs." The business was quite extraordi-claim him there. Hence the indictment. But then nary; the affairs were most uncommon; they apper- the court came to his rescue. Perhaps they had read tained to another world than ours. If the irreverent our remarks, a good while ago, on their decision in counsel for the defendant, who suggested the con- State v. Baldwin, 1 Dev. & Bat. 195, where they trary, do not find themselves startled by ghostly rap- | held that it was no nuisance to curse and swear so pings, and in imagination see some unearthly Miss loud at a tavern as to break up a singing school near Ellis with a ring, or her thumb, upon the end of her by, and felt ashamed of that decision, and determined nose, we miss our guess. Let them advise their client to redeem themselves. Whatever the reason, the to pay over that $5,000, and console themselves with zealous Mr. Linkhaw is triumphant. He is not the reflection that there is something substantial in to be restrained of the free use of his laryngitis by a that, at all events.

crowd of feeble vocalists who don't know how to The other case to which we would call attention is sing con expresione, and are ignorant of the "music State v. Linkhaw, 69 N. C. 214. The defendant was of the future.” Those jealous brethren must try indicted for disturbing a religious congregation. He some other course. If they had come to us originally, was a strict member of the Methodist church, and a or dropped us a line, we could easily have managed man of exemplary deportment, but he sang in such a the matter for them. We should have said to them, way as to disturb the congregation. The disturbance just induce Brother Linkhaw to embrace the ministry, consisted partly in his holding on the notes after the and then he will have to “ rotate.” But it is now too other singers had let go. He was evidently trying late, probably. He will be so elated by his victory to realize Milton's idea of “linked sweetness long- that he will raise a perfect pæan, and keep it up ad drawnout.” The disturbance was decided and seri- libitum and da capo. We are on his side in symous ;

“the effect of was to make one part of the pathy, of course; we are always inclined to think the congregation laugh and the other mad; the irre- courts are right; and we advise the brother to imligious and frivolous enjoyed it as fun, while the prove the time by singing that pleasing little lyric: serious and devout were indignant.” Once the

“Be it my one great business here, preacher had shut up the book and declined to sing

With holy trembling, holy fear,

To make my calling sure." the hymn. The presiding elder had refused to preach in the church on account of the disturbance. On one We must confess, however, that we are puzzled by occasion, “a leading member of the church, appreci- the admission in evidence of the imitation of the ating that there was a feeling of solemnity pervading defendant's style of singing. It was not a photothe congregation in consequence of the sermon just graph, nor an exemplified copy, nor a contemporanedelivered, and fearing that it would be turned into ous memorandum, nor a deposition de bene esse. How ridicule, went to the defendant and asked him not to was it brought up on appeal ? It was in no sense an sing," and he then refrained. On many occasions the exhibit and could not have formed a part of the record. church-members and authorities expostulated with Perhaps, as is sometimes done in our appellate courts him on account of his singing and its disturbing effects, in the case of cumbrous articles of evidence, like the but he invariably replied, that “ he would worship his cellar door on which the man kept his accounts, it was God, and that as a part of his worship it was his duty produced extraneously and dehors the record on tho to sing." One of the witnesses being asked to de- argument. Perhaps the witness repeated his imitascribe his singing, sang a verse in his voice and man- tion on the hearing of the appeal. In that case we ner, which "produced a burst of prolonged and irre- should suppose the judge who delivered the opinion sistible laughter, convulsing alike the spectators, the I would have indulged more in the humorous, and pot

are enormous.

have limited his observations to the common-place, November 27, 1873, issue of his second marriage. By “It would seem that the defendant is a proper sub- the will the testator gave to his widow her dower, ject for the discipline of his church, but not for the and his dwelling-house, worth about $18,000; the discipline of the courts." Besides, we think he is rest of his property to be divided into four equal rather a proper subject for the discipline of that sing- shares, of which, he gave one to each son, and the ing-school which was the disturbed party in State v. other to the grandchildren, and restrained the alienaBaldwin.

tion of the shares. He appointed his widow, one of

his sons, and his two brothers-in-law his executors. WILL CASES IN THE CITY OF NEW YORK. By the codicil he devised to his widow four houses

and lots in Avenue A, and made provision for the In modern times it is a sufficiently expensive busi- expected child, giving it an equal share with the other ness to live; but doubtless many a person is recon- children. The estate is estimated at between $600,ciled to life by a contemplation of the tremendous 000 and $800,000. expense of dying. Indeed, only a rich man can Mr. Rollwagen was a native of Alsace, about sixtyafford to die now-a-days. The "bills of mortality" five years of age, of defective education, being scarcely

If we were to judge from the in- able to read and able to write only his name; by ocstance of the city of New York, we should be almost cupation he was a pork butcher and kept a stand in inclined to number a contest over one's will among Catharine market; he was a close man in money the reasonably necessary expenses of shuffling off this matters, and a hard drinker. His widow was his first mortal coil. For twenty years past there has been in wife's niece, and at the time of his marriage to her the metropolis a series of monster litigations involving she was his housekeeper. the validity of testamentary dispositions and the Here was an excellent field for legal operations. capacity of testators. It seems necessary in the case There was no possible trouble the subsistence of every large estate, to put the will through the question; the supplies were ample for a long siege. gauntlet of legal inquiry. If the estate is of modest The situation contained every element of human amount there does not seem to be an equal apxiety meanness and jealousy. There was a step-mother, to have an investigation. But so long as the estate who of course was wicked, and step-children, who has a cent, so long will faithful lawyers be found to of course were long-suffering, and to cap the climax stand by it, and ask questions and make big talks. there was an aggravating posthumous child, who must We have often thought it might interest our readers come along in the most provoking manner to complito read accounts of some of the more prominent of cate matters, to cut the estate into smaller portions, these gigantic litigations, and opportunely a report of and to afford the most indubitable evidence of undue the most recent one now comes to our hands, namely, influence and mental weakness on the part of the the Rollwagen case.

testator. So when the will was presented for proThe trial of this case was commenced before the bate, counsel put their heads together and thought of surrogate of the county of New York, on the offer of twelve objections to the instrument, of which, six the will for probate, December 19, 1873, and the were to the execution of the instrument; one for proofs closed March 12, 1874. Sixty-eight witnesses want of testamentary capacity ; two alleging circumwere examined, and the proceedings fill three volumes, vention, fraud and undue influence on the part of the of 1813 printed pages. The argument consumed three wife, mother-in-law, brothers-in-law, etc.; one allega days, being delivered by Mr. Clinton for the contest- ing illegality in the provisions; another denying the ants, and Mr. Arnoux for the proponents. We have validity of the marriage; and another questioning the not had the pleasure of seeing Mr. Clinton's argument, paternity of the posthumous child. The surrogate but Mr. Arnoux's, which has been furnished us, covers thought he would have his hands full with the first 209 pages, and forms a supplementary volume. The nine, and did not entertain jurisdiction of the last proponents also furnished the court a "synopsis " of three. Doubtless the unhappy Rollwagen, if he took the testimony for convenience of reference, which any note of all this turmoil, was heartily sorry that covers only 197 pages! The entire proceedings, with he had ever died. the addresses of counsel, were reported short-hand There is a chapter in the history which does not by the official stenographer, and with the exception appear in these volumes. That chapter relates to the of the addresses the estate of the departed Mr. Roll- posthumous baby. Before the surrogate, it will be wagen footed the bills.

noticed, the theory was that the baby was not the Mr. Rollwagen died October 11, 1873, leaving a property of the lamented Mr. Rollwagen, but of some will executed June 17, 1873, and a codicil executed friend of the family. But previous to the debut of the September 5, 1873. He left him surviving, his widow baby the theory was, in the language of Mrs. Prig, Magdalena Rollwagen, to whom he was married that there “wasn't no sich a person,” that the baby September 19, 1871, and three sons, of age and mar- not only was not Mr. Rollwagen's, but not Mrs. Rollried, and seven grandchildren, minors, the issue of wagen's either; in short, was bogus. In pursuance kuis first marriage. A posthumous child was born of this theory, counsel moved for a writ de ventre in

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