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FROM JULY, 1874, TO JANUARY, 1875.

10157

ALBANY:

WEED, PARSONS AND COMPANY.

1874.

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

CALIF.. DAVIS

THE ALBANY LAW JOURNAL:

A WEEKLY RECORD OF THE LAW AND THE LAWYERS.

All communications intended for publication in the LAW JOURNAL should be addressed to the editor, and the name of the writer should be given, though not necessarily for publication.

Communications on business matters should be addressed to the publishers.

The Albany Law Journal.

ALBANY, JULY 4, 1874.

FREEDOM OF RELIGIOUS ACTION. This is a very sedate title, but we hope none of our patrons will be misled by it into passing over this paper without perusal, for the seriousness is more in appearance than in reality. This country is theoretically a very liberal one in respect to religious opinions. Occasionally, however, cases come before our courts that strain legal liberality to the utmost. Two judicial voices have recently reached us on this subject, one from Massachusetts and the other from North Carolina. From these it will be seen that our institutions are safe, whether under the shadow of Bunker Hill Monument or the towering pine trees of the southern commonwealth.

The first case to which we refer is Feital v. Middlesex Railroad Co., 109 Mass. 398. This was an action by a lady to recover compensation for injuries suffered by her, from an accident while she was traveling in the defendant's cars, on Sunday. Mrs. Feital was a believer in the "spiritual" religion, and on the occasion in question had gone to Malden to attend a spiritualists' camp-meeting, on her return from which she met with the injury. The exercises consisted of speaking from the "grand stand," singing, and praying, and during the exercises it was announced from the "grand stand" that Miss Laura Ellis would give physical manifestations in a tent near by, to which an admittance fee of twenty-five cents would be charged; the plaintiff did not attend the "side show," but the manifestations were a part of the religious services of the sect. It was in evidence that these manifestations consisted in the medium's being put into a cabinet with her hands tied, that music was heard coming

from the cabinet, and when it was opened Miss Ellis was discovered with her hands untied, and a ring that had been on her finger, then on the end of her nose; thus realizing in some measure the prophecy of the poet,

"Rings on her fingers and bells on her toes, She shall have music wherever she goes." It also appeared that some of the speakers claimed to represent the spirits of dead persons, and that some of them said they would throw away the Bible in their search after truth; others spoke and prayed in a trance, but it does not appear that their hearers were entranced. Evidence was given that there was a saloon tent, where victuals and drink, including whisky, were sold, but it appeared that the managers were innocent of the whisky, and that the meeting, unlike that attended by the Rev. Mr. Stiggins, was not drunk. It also appeared that the plaintiff was induced to attend the meeting by reading an advertisement in a newspaper called the Banner of Light. It was claimed that the traveling of the plaintiff was in contravention of the Sunday laws, and that consequently she could not maintain the action. Counsel contended that so far from being a matter of necessity or charity, the meeting was held "for idolatry and jugglery," and in hostility to Christianity.

But the court let it go to the jury, and the jury gave $5,000 damages. This was affirmed. And we really can't see why it should not have been. It was a very different matter from the case of that infidel shoemaker who hoed his corn early on a Sunday morning, before anybody was up, and that other unregenerate heathen who gathered the sea-weed ont he beach late on a Sunday night, after every one had gone to bed. Commonwealth v. Josselyn, 97 Mass. 411; Do. v. Sampson, id. 407. We have formerly taken pains to express our abhorrence of these two criminals. Even now the few hairs that envious time has left us, erect themselves in horror at the reminiscence of their unnatural crime. But Massachusetts, while she frowns on the pursuits of mammon on the Lord's day, encourages devotion, however eccentric or extravagant may be the modes in which the gospel

turb the worship, but on the contrary it was admitted that he was conscientiously taking part in the religious services, and doing his "level best." Now this was a serious case. The offender was a member of the church in good-standing, and there was no fault in him save the eccentric character of his vocalization. But it must have been a harrowing reflection to his fellow church-members that he was to be saved, and that they were bound to listen to that singing through all eternity. Doubtless many of them occasionally wished that things could be so ordered that he or they might turn up in the opposite sphere. But this of course was impossible. The next best thing was to put such a stigma upon him here, that Satan would claim him there. Hence the indictment. But then the court came to his rescue. Perhaps they had read our remarks, a good while ago, on their decision in State v. Baldwin, 1 Dev. & Bat. 195, where they

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 it would have been left to the jury. To be sure, the profane may sneeringly suggest that the acts of Josselyn and Sampson had as much moral fitness as those of the persons who imagined themselves in dead men's shoes on the "grand stand," and that of the gifted Miss Ellis, who so piously transferred the ring from her finger to the end of her nose. But there are plenty of people always ready to sneer at religion, and excuse the impious Josselyns and Sampsons. Even if the court in this case had not chosen to put their decision on general principles, the plaintiff was absolved by the letter of the statute. She had not been engaged in "ordinary business or common worldly affairs." The business was quite extraordinary; the affairs were most uncommon; they appertained to another world than ours. If the irreverent counsel for the defendant, who suggested the contrary, 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 Ellis with a ring, or her thumb, upon the end of her nose, we miss our guess. Let them advise their client to pay over that $5,000, and console themselves with the reflection that there is something substantial in that, at all events.

The other case to which we would call attention is State v. Linkhaw, 69 N. C. 214. The defendant was indicted for disturbing a religious congregation. He was a strict member of the Methodist church, and a man of exemplary deportment, but he sang in such a way as to disturb the congregation. The disturbance consisted partly in his holding on the notes after the other singers had let go. He was evidently trying to realize Milton's idea of "linked sweetness longdrawnout." The disturbance was decided and serious; "the effect of it was to make one part of the congregation laugh and the other mad; the irreligious and frivolous enjoyed it as fun, while the serious and devout were indignant." Once the preacher had shut up the book and declined to sing the hymn. The presiding elder had refused to preach in the church on account of the disturbance. On one occasion, "a leading member of the church, appreciating that there was a feeling of solemnity pervading the congregation in consequence of the sermon just delivered, and fearing that it would be turned into ridicule, went to the defendant and asked him not to sing," and he then refrained. On many occasions the church-members and authorities expostulated with him on account of his singing and its disturbing effects, but he invariably replied, that “he would worship his God, and that as a part of his worship it was his duty to sing." One of the witnesses being asked to describe his singing, sang a verse in his voice and manner, which "produced a burst of prolonged and irresistible laughter, convulsing alike the spectators, the

loud at a tavern as to break up a singing school near by, and felt ashamed of that decision, and determined to redeem themselves. Whatever the reason, the zealous Mr. Linkhaw is triumphant. He is not to be restrained of the free use of his laryngitis by a crowd of feeble vocalists who don't know how to sing con expresione, and are ignorant of the "music of the future." Those jealous brethren must try some other course. If they had come to us originally, or dropped us a line, we could easily have managed the matter for them. We should have said to them, just induce Brother Linkhaw to embrace the ministry, and then he will have to "rotate." But it is now too late, probably. He will be so elated by his victory that he will raise a perfect pæan, and keep it up ad libitum and da capo. We are on his side in sympathy, of course; we are always inclined to think the courts are right; and we advise the brother to improve the time by singing that pleasing little lyric:

"Be it my one great business here, With holy trembling, holy fear, To make my calling sure." We must confess, however, that we are puzzled by the admission in evidence of the imitation of the defendant's style of singing. It was not a photograph, nor an exemplified copy, nor a contemporaneous memorandum, nor a deposition de bene esse. How was it brought up on appeal? It was in no sense an exhibit and could not have formed a part of the record. Perhaps, as is sometimes done in our appellate courts in the case of cumbrous articles of evidence, like the cellar door on which the man kept his accounts, it was produced extraneously and dehors the record on the argument. Perhaps the witness repeated his imitation on the hearing of the appeal. In that case we should suppose the judge who delivered the opinion would have indulged more in the humorous, and not

LJANT

CALIF.. BAVIS

have limited his observations to the common-place, "It would seem that the defendant is a proper subject for the discipline of his church, but not for the discipline of the courts." Besides, we think he is rather a proper subject for the discipline of that singing-school which was the disturbed party in State v. Baldwin.

November 27, 1873, issue of his second marriage. By the will the testator gave to his widow her dower, and his dwelling-house, worth about $18,000; the rest of his property to be divided into four equal shares, of which, he gave one to each son, and the other to the grandchildren, and restrained the alienation of the shares. He appointed his widow, one of his sons, and his two brothers-in-law his executors. By the codicil he devised to his widow four houses and lots in Avenue A, and made provision for the

Mr. Rollwagen was a native of Alsace, about sixtyfive years of age, of defective education, being scarcely able to read and able to write only his name; by occupation he was a pork butcher and kept a stand in Catharine market; he was a close man in money matters, and a hard drinker. His widow was his first wife's niece, and at the time of his marriage to her she was his housekeeper.

WILL CASES IN THE CITY OF NEW YORK. 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 afford to die now-a-days. The "bills of mortality" are enormous. If we were to judge from the instance of the city of New York, we should be almost inclined to number a contest over one's will among the reasonably necessary expenses of shuffling off this mortal coil. For twenty years past there has been in the metropolis a series of monster litigations involving the validity of testamentary dispositions and the capacity of testators. It seems necessary in the case of every large estate, to put the will through the gauntlet of legal inquiry. If the estate is of modest amount there does not seem to be an equal anxiety to have an investigation. But so long as the estate has a cent, so long will faithful lawyers be found to stand by it, and ask questions and make big talks. We have often thought it might interest our readers to read accounts of some of the more prominent of these gigantic litigations, and opportunely a report of the most recent one now comes to our hands, namely, the Rollwagen case.

Here was an excellent field for legal operations. There was no possible trouble on the subsistence question; the supplies were ample for a long siege. The situation contained every element of human meanness and jealousy. There was a step-mother, who of course was wicked, and step-children, who of course were long-suffering, and to cap the climax there was an aggravating posthumous child, who must come along in the most provoking manner to complicate matters, to cut the estate into smaller portions, and to afford the most indubitable evidence of undue

influence and mental weakness on the part of the testator. So when the will was presented for probate, counsel put their heads together and thought of twelve objections to the instrument, of which, six were to the execution of the instrument; one for want of testamentary capacity; two alleging circumvention, fraud and undue influence on the part of the wife, mother-in-law, brothers-in-law, etc.; one alleg

The trial of this case was commenced before the surrogate of the county of New York, on the offer of the will for probate, December 19, 1873, and the proofs closed March 12, 1874. Sixty-eight witnesses were examined, and the proceedings fill three volumes, of 1813 printed pages. The argument consumed three 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 not had the pleasure of seeing Mr. Clinton's argument, but Mr. Arnoux's, which has been furnished us, covers 209 pages, and forms a supplementary volume. The proponents also furnished the court a "synopsis" of the testimony for convenience of reference, which covers only 197 pages! The entire proceedings, with the addresses of counsel, were reported in short-hand by the official stenographer, and with the exception of the addresses the estate of the departed Mr. Rollwagen footed the bills.

Mr. Rollwagen died October 11, 1873, leaving a will executed June 17, 1873, and a codicil executed September 5, 1873. He left him surviving, his widow Magdalena Rollwagen, to whom he was married September 19, 1871, and three sons, of age and married, and seven grandchildren, minors, the issue of his first marriage. A posthumous child was born

validity of the marriage; and another questioning the paternity of the posthumous child. The surrogate thought he would have his hands full with the first nine, and did not entertain jurisdiction of the last three. Doubtless the unhappy Rollwagen, if he took any note of all this turmoil, was heartily sorry that he had ever died.

There is a chapter in the history which does not appear in these volumes. That chapter relates to the posthumous baby. Before the surrogate, it will be noticed, the theory was that the baby was not the property of the lamented Mr. Rollwagen, but of some friend of the family. But previous to the debut of the baby the theory was, in the language of Mrs. Prig, that there "wasn't no sich a person," that the baby not only was not Mr. Rollwagen's, but not Mrs. Rollwagen's either; in short, was bogus. In pursuance of this theory, counsel moved for a writ de ventre in

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