Mwnmt CHENANGO COUNTY. ANNA N. DWIGHT, ORLOW W. CHAPMAN and GEORGE F. LYON, as Executrix and Executors of the last Will and Testament of WALTON DWIGHT, DECEASED, Respondents, against THE GERMANIA LIFE INSURANCE COM- PANY, Appellant. CASE AID EXCEPTION. SHIPMAN, BARLOW & LAROCQUE, Attorneys for Appellant, 35 William Street, New-York City. G. L. SESSIONS, Attorney for Respondents, Binghamton, New-York. Htto-gork : HENRY BE.SSEY, LAW PRINTER, No. 47 Cedar Street. 1884. INDEX. PA«K Notice of Appeal from J udgment, 1 “ “ “ “ Order denying motion for new Trial,... 44 Judgment Roll : Summons, 2 Complaint, 3 Answer, 10 Reply, 20 Order changing venue, 22 “ Special Term requiring service of Bill of Particulars, 23 “ General Term modifying Order of Special Term, 25 Defendant’s Bill of Particulars, 27 “ Amended Bill of Particulars, 30 Extracts from minutes, 34 Order denying Motion for new Trial, 43 Order granting extra allowance, 45 Postea, 46 Case : Plaintiff’s Testimony: Peter Van Yredenburg 49 “ “ re-called in rebuttal, direct ex- amination, 392 “ “ cross-examination, 394 William B. Edwards, direct examination, 50 “ “ cross “ 51 Charles A. Clark, direct examination, 51 “ “ cross “ 52 Elias Ayers, direct examination, 401 “ “ cross “ 405 “ “ re-direct “ 409 “ “ re-cross “ 409 “ “ recalled in rebuttal, direct examination,.. 411 “ “ “ “ cross “ .. 411 “ “ “ “ re-direct “ .. 412 “ “ re-cross “ .. 412 Charles A. Hull, direct examination 413 “ “ cross “ 417 “ “ re-direct “ 435 “ “ re-cross “ 436 Francis W. Downs, direct examination, 439 VI Robert Brown, cross-examination 209 “ “ re-direct “ 210 “ re-cross “ 210 Norman W. Batclielder, direct examination, 210 “ “ cross “ 218 •Charles H. Porter, direct examination, 223 “ “ cross “ 230 “ “ re-direct “ 244, 252 “ “ re-cross “ 247, 253 “ “ recalled, direct examination, 357 “ “ “ cross “ 359 “ “ “ (2d) direct “ 650 “ “ “ cross “ 653 John Swinburne, direct examination, 254 “ “ cross “ 266 “ “ re-direct “ 279, 285 “ “ re-cross “ 281, 287, 410 “ “ recalled, direct examination, 670 “ “ “ cross “ 673 Thomas W. Whitney, direct examination, 287 “ “ cross “ 288 P. K. Burhans, direct examination, 289 “ “ cross “ 291 “ “ re-direct “ 292 Horatio C. Wood, direct examination, 293 “ “ cross “ 305 “ “ re-direct “ 314, 320 “ “ re-cross “ 316, 320 “ “ recalled, direct examination, 656 “ “ “ cross “ 660 “ “ “ re-direct “ 663 “ “ “* re-cross “ ....... 664 Benjamin F. Sherman, direct examination, 322 “ “ cross “ 329 “ “ re-direct “ 337, 339 “ “ re-cross •“ 337, 339 “ “ recalled, direct examination,.. 665 “ “ “ cross “ .. 668 “ “ “ re-direct “ . . 669 “ “ “ re-cross “ .. 670 Elisha H. Bridges, direct examination, 340 “ “ cross “ 344 “ “ re-direct “ 346, 347 “ “ re-cross “ 346, 347 “ “ recalled, direct examination, 674 “ “ “ cross “ 677 James B. Pierson, 347 Heorge W. Thompson, direct examination, 349 “ “ cross “ 351 ■“ “ re-direct “ 351 VII George W. Thompson, re-cross examination, 351 George W. Avery, direct examination, 352 “ “ cross “ .... 354 “ “ re-direct “ 356 “ “ recalled, 679 Austin Flint, Jr., direct examination, 359 “ “ cross “ 367 “ “ re-direct “ 386 Dwight M. Lee, direct examination, 386 “ “ cross “ 381 Samuel M. Hand, 383 George P. Haskell, 384 Albert D. Hitchcock, direct examination, 385 " “ cross “ 387 “ “ re-direct “ 391 Clements Deutschler, direct examination, 642 “ “ cross “ 643 “ “ re-direct “ 643 Harry Cornwall, direct examination, 644 “ “ cross “ 649 Frederick E. Ross, direct examination, 649 “ “ cross “ 650, Plaintiff’s Exhibits: A. —Policy of Insurance, Germania Life Insurance Com- pany, [read at page 49,] 6 B. —Proofs of Death furnished to defendants, [read at page 50,] 745 C. —Letter Secretary of Defendant to Chapman and Lyon, dated Nov. 26, 1878, enclosing blank proofs of death, [read at page 50,] 751 D. —Letter Secretary of Defendant to Chapman and Lyon, dated March 28, 1879, enclosing blank proofs of death [read at page 50,] 752 E. —Certified copy order Edwards, J., Dec. 6, 1878, show- ing disqualification, [read at page 55,] 753 F. —Letters Testamentary, Tioga Co.,... .[read at page 55,] 754 G. —Letters Testamentary, Broome Co.,, .[read at page 55,] 756 H. —Dispatch, Aug. 21, 1878, Hillman to Harding, sent on receiving Policy of Conn. Mutual,. [read at page 89,] 758 I. —Letter, Aug. 21, 1878, Hillman to Harding, enclosing Policy, [read at page 89,] 758 J. —Entries in Harding’s Policy Register, [read at page 96,] 758 K. —-Freeman’s report of interview with Dwight, [read at page 180,] 759 [K.—For Identification. Medical Examiner’s report, after- wards introduced in evidence as Exhibit 112,] [read at page 603.] L. —Schedule annexed to letter of Dwight to Abel Bennett in Bankruptcy proceedings, [read at page 137,] 762 VIII M. —Letter Metropolitan Life to Burhans, Sept. 6, 1878, refusing to reduce amount of Policy, [read at page 292,] 768 N. —Envelope in which Policy of Defendant was sent to Hermans, [read at page 502,] 769 Defendant’s Exhibits: 1. —Applid&tion to Mutual Life Ins. Co. of New-York, [read at page 66,] 770 2. —Medical Examiner’s (2) reports, annexed to applica- tion to Mutual Life Ins. Co., of New-York, [read at page 73,] 770 3. —Letter, Lloyd to Brown, directing return of Mutual Policy, [read at page 76,] 773 4. —Letter, Vosbury to Brown, in relation to return of Policy, [read at page 76,] 774 5. —Entries in Yosbury’s Policy Register, [read at page 78,] 774 6. —Application to Conn. Mut. Life Ins. Co., [read at page 81,] 774 7. —Letter, Tillman to Harding, Aug. 5, 1878, in relation to request of Home office of Conn. Mutual Life Ins. Co. for further information, [read at page 82,] 775 8. —Policy of Conn. Mutual Life Ins. Co., [read at page 83,] 776 9. —Premium receipt, (half-year’s premium,) Conn. Mu- tual Life Ins. Co., [read at page 84,] 777 10. —Letter, Green, Pres, of Conn. Mutual Life Ins. Co. to Hillman, 12 Sept., 1878, calling for return of Policy, [read at page 86,] 778 11. —Letter from Secretary of Conn. Mutual Life Ins. Co. to Hillman, 19 Sept., 1878, [read at page 86,] 778 12. —Telegram, Hillman to Harding, Sept. 2, 1878, [read at page 90,] 779 13. —Letter, Peck & Hillman, Aug. 19, 1878, to J. M. Taylor, Sec’y Conn. Mutual, Hartford, [read at page 90,] 779 14. —Letter, Walton Dwight, in re-application to Conn. Mutual Life Ins. Co., [read at page 91,] 780 15. —Telegram, Peck & Hillman to Harding, 16 Sept. 1878, directing him to hold Policy,...... [read at page 94,] 781 16. —Liquor Bottle, “Dwight House,”, .[read at page 131,] 781 17. —Application to John Hancock Mutual Life Ins. Co., [read at page 172,] 782 18. —Application to Penn Mutual Life Ins. Co., [read at page 172,] 784 19. —Application to Phoenix Mutual Life Ins. Co., [read at page 172,] 786 20. —Application to Globe Mutual Life Ins. Co., [read at page 172,] 787 IX 21. —Application to Germania Life Ins. Co., [read at page 173,] 788, 789 22. —Application to Mutual Benefit L. Ins. Co., [read at page 173,] 789 ‘23.—Application to North Western Life Ins. Co., [read at page 173,] 789 24. —Application to Washington Life Ins. Co., [read at page 173,] 791 25. —Application to Berkshire Life Ins. Co., [read at page 173,] 791 26. Application to Home Life Ins. Co., [read at page 173,] 793 27. —Application to Manhattan Life Ins. Co., [read at page 173,] 794 28. —Application to Mass. Mutual Life Ins. Co., [read at page 173,] 795 29. —Application to Nat’l Life Ins. Co. of Vt., [read at page 173,] 796 30. —Application to N. England Mutual L. Ins. Co., [read at page 173,] 796 31. —Application to N. Y. Life Ins. Co., [read at page 173,] 797 32. —Application to N. Y. Life Ins. Co., [read at page 173,] 799 33. —Application to Travelers’ Ins. Co., [read at page 173,] 800 34. —Application to Union Mutual Ins. Co., [read at page 174,] 801 35. —Application to U. S. Life Ins. Co., [read at page 174,] 803 36. —Application to Etna Life Ins. Co., [read at page 174,] 805 37. —Application to Nat’l Life Ins. Co., [read at page 174,] 807 38. —Application to B’klyn Life Ins. Co., [read at page 174,] 808 39. —Application to Homeopathic Life Ins. Co., [read at page 174,] 810 40. —Application to State Mutual Life Ins. Co., [read at page 174,] 811 41. —Application (2d) to Manhattan Life Ins. Co., [read at page 174,] 813 42. —Application to Metropolitan Life Ins. Co., [read at page 174,] 815 43. —Application to Knickerbocker Life Ins.. Co., [read at page 174,] 816 44. —Application to Provident Savings Life Assurance Society, [read at page 174,] 819 45. —Application to Equitable Life Assurance Society, [read at page 174,] 820 46. —Application to Union Central Life Ins. Co., [read at page 174,] 822 47. —Application (3d) to Manhattan Life Ins. Co., [read at page 174,] 824 48. —Letter Pres’t of U. S. Life Ins. Co. to Dwight, [read at page 176,] 825 49. —Letter Pres’t of U. S. Life Ins. Co. to Dwight, [read at page 176,] 826 50. —Letter Dwiglit to Pres’t U. S. Life Ins. Co., [read at page 178,] 827 51. —Diagram of rooms in Spaulding House, [read at page 198,] 829 52. —Telegram Winship to Batclielder,. .[read at page 215,] * 880 53. —Telegram Batclielder to Winship,. .[read at page 215,] 830 54. —Telegram Batclielder to De Witt,, .[read at page 216,] 830 55. —Telegram Dwight to Batchelder,... [read at page 217,] 831 56. —Telegram Batchelder to Dwight,.. .[read at page 217,] 831 57. —Policy Brooklyn Life Ins. Co., [read at page 220,] 831 58. —Policy Berkshire Life Ins. Co.,... .[read at page 220,] 833 59. —Policy Homecepathic Life Ins. Co.,.[read at page 221,] 834 60. —Policy Manhattan Life Ins. Co.,.. .[read at page 221,] 836 61. —Policy Manhattan Life Ins. Co.,. . .[read at page 221,] 837 62. —Policy Manhattan Life Ins. Co.,.. .[read at page 221,] 838 63. —Policy Metropolitan Life Ins. Co.,. [read at page 221,] 839 64. —Policy Mutual Benefit Life Ins. Co., [read at page 221,] 840 65. —Policy Mutual Benefit Life Ins. Co., [read at page 221,] 842 66. —Policy Nat’l Life Ins. Co., Yt,... .[read at page 221,] 842 67. —Policy New England Mutual Life Ins. Co., [read at page 221,] 843 68. —Policy New-York Life Ins. Co.,... .[read at page 221,] 845 69. —Policy North Western Mutual Life Ins. Co., [read at page 221,] 847 70. —Policy North Western Mutual Life Ins. Co., [read at page 221,] 848 71. —Policy North Western Mutual Life Ins. Co. [read at page 222,] 849 72. —Policy North Western Mutual Life Ins. Co., [read at page 222,] 849 73. —Policy State Mutual (Worcester) Life Ins. Co., [read at page 222,] 849 74. —Policy Travelers’ Ins. Co., [read at page 222,] 851 75. Policy Washington Life Ins. Co.,, .[read at page 222,] 852 76. —Policy Washington Life Ins. Co.,, .[read at page 222,] 853 77. —Policy Washington Life Ins. Co.,, .[read at page 222,] 854 78. —Policy Washington Life Ins. Co.,, .[read at page 222,] 854 79. —Policy Washington Life Ins. Co.,, .[read at page 222,] 855 80. —Policy Washington Life Ins. Co.,, .[read at page 222,] 855 81. —Policy Washington Life Ins. Co.,, .[read at page 222,] 855 82. —Policy Washington Life Ins. Co.,, .[read at page 222,] 856 83. —Letter Oct. 10, 1878, Metropolitan Life Ins. Co. to Burlians, exhibited to Dwight,.. .[read at page 290,] 857 84. —Diagram of room in Spaulding House, [read at page 326,] 857, 858 85. —Diagram of bedstead in Spaulding House, [read at page 327,] 857, 858 86. —Policy Manhattan Life Ins. Co [read at page 222,] 858 87. —Policy Mass. Mutual Life Ins. Co.,.[read at page 222,J 858 X XI 88. —Policy North Western Life Ins. C«>., [read at page 223,] 860 89. —Policy United States Life Ins. Co., [read at page 223,] 861 90. —Policy Etna Life Ins. Co., [read at page 223,] 864 91. —Policy Union Mutual Life Ins. Co., [read at page 223, ] 865 92. —Will of Walton Dwight, [read at page 223,] 867 93. —Letter 19tli Sept., 1878, Lewis C. Grover to Dwight, [read at page 348,] 880 94. ---Letter of Dwight in reply to above, [read at page 348,] 881 95. —Receipt for registered letter, (Exhibit 97,) [read at page 348,] 882 96. —Letter Oct. 7, 1878, Lewis C. Grover to Dwight, [read at page 348,] 882 97. —Letter Oct. 22, 1878, Lewis C. Grover to Dwight, [read at page 348,] 883 98. —Letter New-England Mutual Life Ins. Co. to Dwight, [read at page 350,] 883 99. —Chin-rest, [introduced at page 407,] 884 100.—Eight checks of T. F. McDonald, drawn against Dwight’s deposit of $1,000, and given to pay pre- miums,. [read at page 467,] 884 101-105.—Checks drawn by Neri Pine to pay premiums, [read at page 484,] 887, 889 106. —Check ($86.50) drawn by Neri Pine to pay premiums, [read at page 485,] 889 107. —Answer of Dwight in foreclosure case, verified on day of death, [read at page 487,] 889 108. —Letter Aug. 16, 1878, H. C. Hermans to Germania Life Ins. Co., in relation to obtaining insurance on life of Dwight, [read at page 503,] 891 109. —Reply, Aug. 20, 1878, of Company to Hermans’ letter, [read at page 504,] 892 110. —Letter Aug. 22, 1878, Hermans to Germania Life Ins. Co., : [read at page 505,] 892 111. —Letter Aug. 28, 1878, Hermans to Germania Life Ins. Co., [read at page 506,] . 89£ 112. —Medical examination by Dr. Orton, sent to defendants with application, [read at page 603,] 893 113. —Letter J. M. Holcomb, Sec’y Phoenix Mutual, to A. G. Fowler, Chicago, 19th August, 1878, [read at page 645,] 894 114. —Letter, Robert Brown (per Hermans) to Phoenix Mu- tual Life Ins. Co., Aug. 16, 1878, [read at page 646,] 894 Bankruptcy proceedings agst. Walton Dwight, 132 “ “ “ Anna N. Dwight, 154 Judgment Rolls in action against Dwight and wife, 165 Notes of Autopsy, 89fi Motion to dismiss, 681 Motion to instruct Jury, 683 XII Charge, 684 Defendant’s requests to charge, 719, 723, 724, 725, 726, 737 Plaintiff’s requests to charge, 726, 737 Exceptions to charge, 724, 728, 732, 733, 741 Verdict, 741 Motion for new trial, 743 (Toml CHENANGO COUNTY. 1 Anna N. Dwight, Orlow W. Chapman and George F. Lyon, Executrix and Executors,&c., of Walton Dwight, deceased, against The Germania Life Insurance Company. Notice is hereby given, that the defendant above named appeals to the General Term of the Supreme Court from the judgment for the sum of $20,668.46 damages and costs, entered on the 23d day of May, 1884, in the office of the Clerk of the county of Chenango, in favor of the plaintiffs in this action, on the verdict of a jury rendered at a Circuit Court,, held in and for the county of Chenango, on the 2d. Monday of November, 1883, and from each andi every part of the said judgment. Also, that on such appeal the said defendant in- tends to bring up for review the order denying the said defendant’s motion for a new trial, entered at said Circuit Court, and bearing date the 13th day of December, 1883. 2 Dated New-York, May 26th, 1884. 3- Yours, &c., Shipman, Barlow & Larocque, Attorneys for Defendant, 35 William Street, New-York City To G. L. Sessions, Esq., Attorney for Plaintiff's. Andrew Siiepardson, Esq., Cleric. 2 SUPREME COURT, Trial Desired in Broome County. Anna N. Dwight, Orlow W. Chapman and George F. Lyon, as Executrix and Executors of the last Will and Testament of Walton Dwight, deceased, against The Germania Life Insurance Company. 4 To the above named Defendant: You are hereby summoned to answer tlie com- plaint in this action, and to serve a copy of your answer on the plaintiffs’ attorney within twenty days after the service of this summons, exclusive of the day of service, and in case of your failure to appear, or answer, judgment will be taken against you by default for the relief demanded in the com- plaint. Dated, Binghamton, April 19th, 1879. G. L. Sessions, Plaintiffs' Attorney. Office Address, 48 Court Street, Binghamton, New-York. Post-Office Address, Binghamton, New-York. 5 6 3 SUPREME COURT, Broome County. Anna N. Dwight, Orlow W. Chapman and George F. Lyon, as Executrix and Executors of the last Will and Testament ofj Walton Dwight, deceased, 7 Complaint. against The Germania Life Insurance Company. The plaintiffs complaining of the above named defendant, allege npon information and belief, the following facts, constituting their cause of action : That the defendant was, at the time and times hereinafter mentioned, and still is a corporation, duly created and organized, by the name of the Germania Life Insurance Company, under and in pursuance of the laws of the State of New-York, and carrying on the business of life insurance, with its principal office for the transaction of business in the city of New-York. That on or about the 28th day of August, 1878, the defendant, in consideration of the pay- ment to it by Walton Dwight, of Windsor, Broome County, N. Y., on the delivery of said policy, of the sum of one hundred and thirty-one dollars and flfty-live cents, and of the quarterly payment to be made of a like amount on or before noon of the 28th day of November, February, May and August in every year during the continuance of the policy, assured the life of said Walton Dwight in the sum of fifteen thousand dollars, for the term of his natural life, by its policy number 69,096, bearing date August 28th, 1878, a copy of which, policy is hereto annexed as a part of this com- 8 9 4 plaint, and marked “ Exhibit A,” and therein promised and agreed to pay at its office in the city of New-York, within sixty days after due notice and proof of the death of said Walton Dwight, the said sum assured (the balance of the year’s- premium, if any, being first deducted therefrom) to the executors, administrators or assigns of the said assured. That on or about the 15th day of November, 1878, said Walton Dwight died at Binghamton, N. Y., leaving a last will and testament, in and by which the plaintiffs were duly appointed executrix and executors thereof. That thereupon and thereafter there was no offi- cer qualified to act as Surrogate in the matter of proceedings of the probate of said last will and tes- tament in the Surrogate’s Court of said county of Broome, and that the Surrogate of said county thereupon duly made a certificate of such disquali- fication, specifying the grounds thereof, and the name of Charles A. Clark, Surrogate of the adjoin- ing town of Tioga, and filed the same in his office ; and that other and all necessary proceedings were duly had so that jurisdiction became vested in said Charles A. Clark, Surrogate, and that on or about the 80th day of December, 1878, said last will and testament was duly proved and duly admitted to probate by said Charles A. Clark, Surrogate, and letters testamentary thereon duly issued and granted to the plaintiffs as such executrix and exec- utors by said Charles A. Clark, Surrogate ; and the plaintiffs thereupon duly qualified as such exec- utrix and executors, and entered upon the dis- charge of the duties of such office, and still are the duly appointed and constituted executrix and ex- ecutors of the last will and testament of said Wal. ton Dwight. That on or about the 20tli day of January, 1879, and more than sixty days prior hereto, the plain- tiffs as such executrix and executors, duly gave the 10 11 12 5 defendant due notice and proof of the death of said Walton Dwight. That said Walton Dwight duly performed and complied with all the provisions and agreements •contained in said policy, to be kept and performed by him ; and that the representations contained in the application for said policy were in all respects true ; and that said policy was valid and in full force and effect at the time of the death of said Walton Dwight ; and that such death was not caused by any of the causes excepted in said policy and that said Walton Dwight has not done any of the acts stated in said policy as rendering the same void ; and that said policy has not ceased and be- come null, void and of no effect by reason of any act, thing or omission upon the part of said Walton Dwight or otherwise; and that the plaintiffs as such executrix and executors have made due and sufficient demand, and have duly done and per- formed all things requisite to be done and perform- ed upon their part. That the defendant has duly refused to x>ay said sum or any part thereof, and that no part of the said sum assured has been paid, and that there is now due and owing to the plaintiffs from the de- fendant the sum of fifteen thousand dollars, with interest thereon from February 22, 1879, less the three quarterly payments of $131.55 each. Wherefore, the qolaintiffs demand judgment against the defendant for the sum of fourteen thou- sand six hundred and five dollars and thirty-five cents, with interest thereon from March 22d, 1879. together with the costs of this action. 13 14' 15 G. L. Sessions, Plff>s AW y, 48 Court Street, Binghamton, N. Y. 6 State of New-York, County of Broome. City of Binghamton. ss. : Anna N. Dwight, Orlow W. Chapman and George F. Lyon, being severally duly sworn, each for himself and herself deposes and says, that de- ponent is one of the plaintiffs in the above entitled action; that the foregoing complaint is true to the knowledge of deponent, except as to the matters therein stated to be alleged on information and be- lief, and that as to those matters deponent believes it to be true. 16 Anna N. Dwigiit, O. W. Chapman, George F. Lyon. Sworn to before me, this 19th ) day of April, 1879. | E. M. Fitzgerald, Com. of Deeds, City of Binghamton, N. Y. 17 “Exhibit A.” Life Policy, Number 69,096 ; Amount $15,000 ; Quarterly Premium $181.55 ; Age 41 years. The Germania Life Insurance Co. in the city of New-York, in consideration of the representations made to them in the application for this policy* and of the sum of one hundred and thirty-one dol- lars and fifty-five cents, to be paid on delivery of this policy, by Walton Dwight, and of the quar- terly payment, upon the receipt of the president or secretary of the company, of a like amount on or before noon of the twenty-eighth day of Novem- ber, February, May and August in every year dur- ing the continuance of this policy, do assure the life of Walton Dwight, of Windsor, in the county of Broome, State of New-York, in the amount of 18 7 fifteen thousand dollars, for the term of his natural life. And the said company do hereby promise and agree to pay, at their office in the city of New- York, within sixty days after due notice and proof of the death of the said assured, the said sum as- sured (the balance of the year’s premiums, if any, being first deducted therefrom), to the execu- tors, administrators or assigns of the said assured. This policy also entitling the said assured to a par- ticipation in the profits of the company according to its charter. This policy is issued, and the same is accepted by the said assured, upon the following express conditions and agreements; that the same shall cease and be null,void and of no effect; and that this company shall not be liable for the payment of the sum assured, or any part thereof, but that all pre- miums previously paid shall be absolutely property of the company, without any account whatever to be rendered therefor, except as hereinafter provided in the 4th condition of this policy ; 1st. If the representations made in the applica- tion for this policy, upon the faith of which this contract is made, shall be found in any respect un- true ; 2d. If the said assured shall visit, between the first day of July and the first day of November, those parts of the United States which lie south of Virginia, Kentucky, Missouri and Kansas; or pass beyond the limits of the United States, excepting into the territory lying in America north of the United States; or enter upon a voyage upon the high seas, except coastwise within the same lati- tudes and between the same days of the year,within and between which the said person is at liberty to be or reside by the terms of this policy, without having previously obtained the written consent of the company for any of these visits, residences or voyages ; but permission is hereby given to the said 19 20 21 8 assured to travel between those ports of the United States in which he or she is at liberty to be by the terms of this policy,and the ports of Europe,and to travel and reside in Europe ; 3d. If the said assured,without the previous writ- ten consent of this company, shall enter upon ser- vice on any sea, sound, inlet, river, lake or railroad, as a mariner, engineer, fireman, conductor or lab- orer in any capacity ; or, in the manufacture of gun- powder or fireworks ; or, in submarine operations or mining ; or, into any military or naval service what- soever ; the militia not in actual service excepted ; or shall act as sutler, or purser, or assistant or ser- vant to a sutler or purser, to any military or naval force in actual service, or accompany any such mili- tary or naval force as a camp follower or other- wise ; 4th. If the said assured shall die by suicide, or by his or her own hand, or in consequence of an attempt to commit suicide, or to take his or her own life ; provided however, that if any of these acts be committed while in a condition of mental derangement or insanity, the company agrees to pay upon return of the policy thus voided, the full legal reserve thereof ; 5th. If the said assured shall die in, or in con- sequence of a duel ; or, by the hands of justice ; or in consequence of the violation of any law of these States, or of the United States, or of any other country which he or she may be permitted under this policy to visit or reside in ; 6th. If the above premiums, or any of them, shall not be paid on or before noon of the several days hereinbefore mentioned for the payment thereof respectively, or within three days thereof respectively. It is however agreed, that if this policy shall, after three or more whole years’ premiums shall have been paid, become void by non-payment of 22 23 24 9 premium, the company will, on due surrender of this policy and all the additions thereto, if such sur- render shall be made within three months after this policy shall thus have become void, grant an equit- able surrender value, in cash or in a paid-up pol- icy, at the option of the company. It is also agreed by the said assured, that written notice shall be given to the company of any as- signment of this policy. It is also agreed, that no suit shall be brought against the company on any claim under this policy, unless said suit be commenced within two years from the time when the right of action accrues, and also within three years from the termination of the life insured. It is also agreed, that this contract shall become valid only by delivery of this policy, and upon payment of the first premium due, during the con- tinued good health of the said assured. 25 26 In witness whereof the said Germania Life Insurance Company have by their president and secretary, ex- ecuted this contract at New-York, on this twenty-eighth day of August, eighteen hundred and seventy-eight. C. Doremus, Secretary. Hugo Wesendonk, President. Agents holding an appointment from the com- pany are authorized to receive premiums at or be- fore the time when due, upon the receipt of the president or secretary of the company, but not to make, alter or discharge contracts, or waive forfeit- ures. 27 10 SUPREME COURT, Broome County. Anna N. Dwight, Orlow W. Chapman and George F. Lyon, as Executrix and Executors of, the last Will and Testament of Walton Dwight, deceased, against The Germania Life Insurance Company. 28 Answer» The answer of the defendants to the complaint of the above named plaintiffs. First.—The said defendants, answering the said complaint, admit that at the times in that behalf alleged in the said complaint, the said defendants were, and still are, a corporation duly created and organized, by the name of the Germania Life In- surance Company, under and in pursuance of the laws of the State of New-York, and carrying on the business of life insurance, with their principal office for the transaction of business in the city of New-York. They further admit, that on or about the 28th August, 1878, a policy of insurance, bearing that date, and numbered 69,096, on the life of one Walton Dwight, represented to be of Windsor, in the County of Broome, State of New-York, for the term of his natural life, was obtained from these defendants by the said Walton Dwight, and that the said Walton Dwight paid to these defendants the sum of as and for the premium on said policy, for the period of three months, and that said policy was substantially in the form of the paper attached to the said complaint, marked 29 30 11 “Exhibit A.” But these defendants, upon in- formation and belief, deny that the said paper so attached to said complaint, marked “ Exhibit A,” is in all respects a true copy of the said policy hereinbefore referred to, or that the said policy is correctly described in the said com- plaint, and they, therefore, controvert the allega- tions of the said complaint in that behalf, and crave leave to refer to the original policy in question, when the same shall be produced and proved, for the precise terms of said policy. And these de- fendants, upon information and belief, deny that at the time in that behalf alleged in said complaint, or at any other time upon the considerations or con- dition stated in that behalf in said complaint, or upon any other consideration or conditions, they assured the life of the said Walton Dwight in the sum or for the term in that behalf alleged in the said complaint, or in any other sum or for any other term under the said policy number 69,096, in the said complaint referred to, and they deny that the said policy, hereinbefore mentioned and intend- ed to be described in the said complaint, ever had any valid existence as a contract on the part of these defendants. These defendants further answering deny, that they have any knowledge or information sufficient to form a belief as to whether or not the said Wal- ton Dwight died at Binghamton, New-York, or left a last will and testament, in or by which the plaintiffs were duly appointed executrix and ex- ecutors thereof. These defendants further answering, say, that they have no knowledge or information sufficient to form a belief as to the truth of the allegations in said complaint contained, touching the proceedings for the probate of the said supposed will of the said Walton Dwight, and the granting of letters testa- mentary thereupon, or any or either of said allega- tions, and they, therefore, controvert the said alle- gations and each and every of them. 31 32 33 12 The said defendants farther answering, admit, that on or about the 20th da}7 of January, 1879, and more than sixty days prior to the commencement of this action, the plaintiffs, claiming to be execu- trix and executors of the will of said Walton Dwight, caused to be furnished to these defend- ants papers purporting to be notice and proof of the death of said Walton Dwight; but these defend- ants, upon information and belief, deny tbat the said papers constituted due notice and proof of the facts therein alleged. The said defendants, further answering upon in- formation and belief, deny that the said Walton Dwight duly performed or complied with all the provisions and agreements contained in said policy, to be kept and performed by him ; and they, upon information and belief deny that the representa- tions contained in the application for said policy were, in all respects, true ; and they particularly deny the representations contained in the appli- cation for said policy, touching the previous con- dition of health of the said Dwight, and especially in regard to his ever having had spitting of blood or bronchitis, and the representations respecting other insurances upon the life of the said Walton Dwight, or any or either of them, were or are true ; and they deny, upon information and belief, the allegations of said complaint to the effect that the said policy was valid or in full force or effect at the time of the alleged death of the said Walton Dwight, and they deny, upon information and be- lief, the allegations of said complaint, to the effect that such death was not caused by any of the causes excepted in said policy, and particularly so much of said allegations as allege that the supposed death was not caused by suicide, or by the hand of the said Walton Dwight, or in consequence of an attempt on his part to commit suicide, or take his own life, or in consequence of the violation of any law of this State, and they deny, upon information and belief, that the said policy has 34 35 36 13 not ceased, and become null and void and of no effect by reason of any act, tiling or omission on the part of the said Walton Dwight, and par- ticularly so much of said allegations as allege that the said policy had not become void by reason of representations made in the application for said policy, and upon the faith of which the same was obtained from the defendants, being found untrue, and so much of said allegations as allege that the said policy has not ceased and become null, void and of no effect, by reason of the said Dwight hav- ing died by suicide, or by his own hand, or in con- sequence of an attempt to commit suicide, or to take his own life, or by reason of the said Dwight having died in consequence of a violation of any law of this State. And these defendants, further answering, upon information and belief, deny that the said alleged executrix and executors, plaintiffs herein, have made due and sufficient demand, or have duly done and performed all things requisite to be done and performed upon their part. The said defendants, further answering, admit that have duly refused to pay the said sum in the complaint mentioned, or any part thereof, and that no part of the sum claimed to have been as- sured has been paid; and, upon information and belief, they deny that there is now due or owing, from the defendants to the said plaintiffs, the sum in that behalf alleged in the said complaint, or any sum whatever. The said defendants, further answering, deny each and every allegation in the complaint con- tained, not hereinabove expressly admitted, con- troverted or denied. Second.—And for a second, separate and distinct defence, the said defendants, relying upon the de- nials, admissions and allegations in the preceding first defence contained, in the same manner as if the same were here repeated, and praying that the 37 33 39 14 same may be taken and regarded as part of this defence, further answering, say, that upon the ap- plication for the policy in the said first defence mentioned, the following question was put to the said Walton Dwight, namely: “2. C. In what occupation has he been engaged “ during the last ten years ?” And in answer thereto, the said Walton Dwight stated as follows : “ Real estate and grain dealer.” And upon said application a further question was put to the said Walton Dwight as follows : “ 2. D. Is he now or has he been engaged orcon- “ nected with the manufacture or sale of any beer, “wine or other intoxicating liquors,” to which question the said Walton Dwight answered “ No.” And upon the said application, a further question was put to the said Walton Dwight as follows : “ 16. Has the party” (meaning the said Walton Dwight) “now, or has the same ever had, any of the following diseases : spitting of blood, bronchitis, consumption, liver complaint, rheumatism,” etc.? And in answer to said question the said Walton Dwight denied that he had ever had any of the said diseases specified, except rheumatism. And upon said application, a further question was put to the said Walton Dwight as follows : “6. A. Whether the party to be assured is now “ or has been insured in this company ; if so, state “ the number of the policy and the amount. B. “ Whether in other companies, in which, for what “amount in each; state exactly on what kind of “ policy.” That in answer to so much of said question as re- lated to insurance in other companies, the said Walton Dwight stated and represented, that he was insured in the “ New-York Mutual,” thereby meaning and intending the Mutual Life Insurance Company of New-York, by a fifteen years’ endow- ment policy for $10,000 ; in the Connecticut Mutual Insurance Company, in an ordinary life policy for $15,000; in the Washington, in an ordinary life 40 41 42 15 policy for $10,000, and in the Equitable, on an ordi- nary life policy for $10,000. That upon said application a further question was put to the said Walton Dwight as follows : “6. C. Whether an insurance has been applied for with this or any other company, without having led to an insurance ? If so, with which companies, and for what reason did the applica- “ tion not lead to an insurance?” And that to said question the said Dwight answered “ No.” That the said answers were given in writing by the said Dwight over his own signature, and that in and by the said application it was declared by the said Walton Dwight, that the answers given by him were fair and true answers to the questions put to him, and it was acknowledged and agreed by the said Dwight that the statements made and embodied in the answers to the questions contained in said application were to form the basis of the contract for insurance for which he then applied, nnd that any untrue or fraudulent answers, and nn}' suppression of facts in regard to his health, should render the policy null and void, and forfeit -all payments made thereon. That the said application bears date on the 22d ■day of August, 1878, and was filed with these de- fendants as the basis on which the said policy number 69,096 was applied for, and is the same application mentioned and referred to in the said policy, and is now in the possession ot‘ these de- fendants ready to be produced and proved as this ■Court may direct. And these defendants, further answering upon information and belief, say,that the said answers and statements hereinbefore referred to were each and ■every of them material to the risk which the de- fendants were asked to assume, and upon the ques- tion as to whether or not a policy should be granted by the defendants, and that each and every of the said answers and statements contained in said ap- 43 44 45 16 plication, and hereinbefore specified, was false and untrue in the following respects : That during a considerable portion of the ten years preceding the date of said application, and during Which the said Dwight stated his occupation ta have been “real estate and grain,” he had in point of fact been engaged in keeping a hotel, which fact was fraudulently suppressed by him, and that in the course of said business as a hotel-keeper the said Walton Dwight laid been engaged in and con- nected with (lie sale of beer, wine and other intox- icating liquors. That prior to the application for the said policy, the said Walton Dwight had had bronchitis and spitting of blood ; that at the time of the said ap- plication the said Walton Dwight, having applied to the Mutual Life Insurance Company of New- York for a policy on the life plan, had failed to- obtain such policy, and that the said Mutual Life Insurance Company of New York refused to issue any policy upon the life of the said Dwight; that the said Dwight at the time of the said application, and at the time of making the statements herein- before mentioned, had not, and never had a policy in the Connecticut Mutual Life Insurance Company for $15,000, or any sum, and that at the time when said application was made the said Dwight had other insurances upon his life in addition to those specified by him, which fact he suppressed, and had made application for insurance to one or more companies to this defendant unknown, which had not led to an assurance. And these defendants say, that by reason of said untrue and fraudulent answers to the said ques- tions put to the said Dwight upon his application for the said policy, and his said false statements and suppressions and concealments of material facts and breaches of warranty, the said policy, number 69,096, was rendered null and void, and of no effect, and was forfeited, and these defendants. 46 47 48 17 were, and are, released and discharged from any and all liability thereon. Third.—And for a third, separate and distinct defence, the said defendants, further answering the said complaint, upon information and belief say that the said Walton Dwight, designedly, and not while in a condition of mental derangement or in- sanity, died by suicide, and committed self-murder, or procured the taking of his own life, whereby the said policy became null and void, and all claim against these defendants thereon was forfeited and discharged. Fourth.—For a fourth, separate and distinct de- fence, the said defendants, further answering the said complaint, allege, on information and belief, that said Walton Dwight, with the pre-conceived intend to cheat and defraud these defendants, by thereafter taking his own life, and thus defrauding the defendants of the amount of said policy, pro- cured the said policy of insurance, and thereafter did take, or procure the taking, of his own life, with the said pre-conceived design and intent there- by to cheat and defraud these defendants of the amount of said policy, whereby the said policy be- came null and void, and all claim against these de- fendants thereon was forfeited and discharged. Fifth.—For a fifth, separate and distinct defence, and by way of counterclaim, the said defendants allege, on information and belief, that said Walton Dwight, previously to obtaining said policy of in- surance, formed a design and conspired with one or more persons, to defendants unknown, to commit a fraud upon a number of life insurance companies, and among others, upon these defendants, by procur- ing a large amount of insurance upon his life, and thereafter wilfully taking or procuring his life to be taken, and said insurance to be collected from the said insurance companies respectively, under the 49 50 s 51 18 false pretense that his death resulted from natural causes. That in pursuance and in execution of said felonious design, conspiracy and fraud, said Dwight, who was then insolvent, applied to said companies for insurance upon his life to the aggre- gate amount of about $350,000, and procured poli- cies of insurance thereon to the aggregate amount of about $250,000, and among other policies so pro- cured was the policy from the defendants men- tioned in the complaint. That the said policies of insurance were so pro- cured that the premiums should be payable quar- terly, so as to enable the said Dwight to obtain much more insurance for the sum disbursed than he otherwise could, and with the intent that the death of said Dwight should be accomplished be- fore the second quarter’s premium became payable. That the money to pay the first quarter’s premium was furnished to said Walton Dwight, in whole or in part, by one or more persons engaged with him in said conspiracy, to defendants unknown, he himself having no means to pay the same. That after procuring the said policies of insurance, said Dwight made an instrument, purporting to be a last will and testament, directing the manner in which the proceeds of said fraud should be distrib- uted, and therein, in form, making a large number of bequests of a public character, and to persons holding official positions, which alleged bequests were intended to enlist the sympathy of the per- sons proposed to be benefited thereby, and the com- munity in which said Dwight resided, in behalf of said scheme, and to aid in carrying out said fraud, pursuant to his said preconceived design and conspiracy to cheat and defraud these defendants and the other life insurance companies to whom ap- plications for policies were made by him as afore- said. That the statements of fact, and of the objects, intents, expectations and belief of the said Dwight, contained in said instrument, including the state- 52 53 54 19 ments touching his pecuniary resources, earning ca- pacity and means of paying premiums which might accrue upon said policies, were each and every of them false and fraudulent, and made in aid and furtherance of said fraudulent scheme and conspir- acy. V That immediately thereafter, and before any of the second quarter’s premiums became due and payable, said Walton Dwight, in pursuance of said fraudulent scheme, design and conspiracy, and in further execution thereof, wilfully and feloniously took his own life, or procured or allowed it to be taken. That since the death of said Dwight, his alleged executors, aided and abetted by one or more of those who are named as beneficiaries in said instru- ment, have endeavored and are endeavoring to con- summate the said conspiracy and fraud, by at- tempting to enforce payment of said insurance from these defendants and the other life insurance companies upon which said fraud was perpetrated, under the pretence that said Dwight died a natural death, and for that purpose have commenced this action. That by reason of the premises, the said insurance policy is null and void, and never had validity, and the defendants are not and never were, liable thereon for the payment of any sum whatever. And these defendants further say, that the exist- ence of said policy in the hands of said plaintiffs exposes these defendants to danger of unjust suits and litigations thereupon ; that these defendants are willing, and offer, upon the surrender and can- cellation of said policy, to return the amount paid by the said Walton Dwight, as the first quarter’s premium on said policy at the time he obtained the same, as hereinbefore set forth. Wherefore, these defendants pray judgment that the said policy be delivered up to them to be can- celled, and that they may have such further or 55 56 57 20 other judgment or relief in the premises as may be just. Shipman, Barlow, Larocque & MacFarland, Attorneys for Defendants, 35 William Street, N. Y. 58 City and County of New-York, ss.: Cornelius Dgremus, of said city, being duly sworn, says that he is the Secretary of the Ger- mania Life Insurance Company, the defendants above named ; that he has read the foregoing an- swer, and knows the contents thereof, and that the same is true of his own knowledge, except as to the matters therein stated to be alleged on information and belief, and that as to those matters he believes it to be true. C. Doremus. Sworn to before me, this [ 14th day of July, 1879. f James E. Bedell, Notary Public, Kings County. Certificate filed in city and county of New-York. .59 SUPREME COURT. Anna N. Dwight, Orlow W. Chapman and George F. Lyon, as Executrix and Executors of the last Will and Testament of Walton Dwight, deceased, against The Germania Life Insurance Company. 60 Reply. The plaintiffs herein, replying to the counter- 21 claim contained in the answer of the defendant in this action upon information and belief, deny the same and each and every allegation therein con- tained. G. L. Sessions, Plaintiffs’ Attorney, 48 Court Street, Binghamton, N. Y. 61 State of New York, Broome County. ss. : George F. Lyon, one of the plaintiffs in this action, being duly sworn, says that the foregoing reply is true to his own knowledge, except as to the matters therein stated to be alleged on infor- mation and belief, and that as to those matters he believes it to be true. George F. Lyon. Sworn to before me, this 14th day of August, 1879. Neri Pine, Notary Public. 62 State of New York, Broome County. ss. : Anna N. Dwight, of Windsor, and Orlow W. Chapman, of Binghamton, in said county, two of the plaintiffs in this action, being duly sworn, each says that the foregoing reply is true to his and her knowledge, except as to the matters therein stated to be alleged on information and belief, and that as to those matters they believe it to be true. O. W. Chapman, Anna N. Dwight. 63 Sworn to before me, this 19th ) day of August, 1879. j Neri Pine, Notary Public. 22 At a Special Term of the Supreme Court, held in and for the County of Broome, at the Court House, in the City of Binghamton, IST. A'., on the 21st day of October, 1879. Present,—Hon. David L. Follett, Justice. 64 SUPREME COURT. Anna N. Dwight, Orlow W. Chapman and George F. Lyon, as Executrix and Executors of [* the last Will and Testament of Walton Dwight, deceased, against The Germania Life Insurance Company. 65 This motion to change the place of trial of this action coming on to be heard upon due notice, upon reading and tiling the affidavit of Cornelius Doremus, in support of said motion, and the affi- davits of Orlow W. Chapman, Joseph M. Johnson, Edmund O’Connor, Harper Dusenbury, John An- derson and James L. Weed, in opposition thereto, and on reading and tiling the pleadings herein ; and after hearing Joseph Larocque in favor of said mo- tion, and Henry Smith and G. L. Sessions in oppo- sition thereto, it appearing to the satisfaction of the Court that there is reason to believe that an impartial trial of this action cannot be had in the county of Broome, and that the ends of justice will be promoted by a change of the place of trial there- of. Ordered, that the place of trial of this action be, and the same hereby is, changed from the county of Broome to the county of Chenango. 66 23 At a Special Term of the Supreme Court, held in and for the County of Broome, at the Court House, in the City of Binghamton, N. Y., com- mencing on the 21st day of October, 1879. Present,—Hon. I)avid L. Follett, Justice. 67 SUPREME COURT. Anna N. Dwight, Oklow W. Chapman and George F. Lyon, as Executrix and Executors of the last Will and Testament of Walton Dwight, deceased, against The Germania Life Insurance Company. 68 On reading and filing the summons and com- plaint, answer and reply herein, and the affidavits of Anna N. Dwight, Orlow W. Chapman and George F. Lyon, and the affidavit of G. L. Sessions with notice of motion for an order that the defend- ant deliver to the plaintiffs’ attorney a bill of par- ticulars, &c., and for further relief, as more fully appears from said notice of motion in support of said motion ; and on reading and filing the affidavit of Joseph Larocque in opposition thereto, and after hearing Henry Smith and G. L. Sessions in favor of said motion, and Joseph Larocque in op- position thereto, Ordered, that the defendent deliver to the plain- tiffs’ attorney, within twenty days from the entry of this order and notice thereof, a statement in writing under oath, stating the particular times and places at which the defendant intends or ex- 69 24 pects to prove that said Walton Dwight had bronchitis and spitting of blood, or either of them ; also stating what other insurances upon his life in addition to those specified by him in his application, the defendant intends or expects to prove that said Walton Dwight had at the time when said application was made, specifying par- ticularly the name of each company with the date and amount of each policy ; also stating what appli- cation for insurance to one or more companies which had not led to an assurance, the defendant intends or expects to prove that said Walton Dwight had made at the time when said applica- tion for the policy upon which this action is brought was made, specifying particularly the name of each company to which application had been so made, with the time when made and the date of each application. And it is further ordered, that the defendant be precluded from giving evidence upon the trial that said Walton Dwight had had bronchitis and spitting of blood or either of them at any time and place; and that said Walton Dwight had any insurances upon his life at the time when said application was made in addition to those specified by him in said application; and that said Walton Dwight had made at the time when said application for the jjolicy upon which this action is brought was made, any applications for insurance which had not led to an insurance—other than is so specified in such bill of particulars. It is further ordered that the plaintiffs have the costs of this motion. 70 71 72 25 At a General Term of the Supreme Court of tlie State of New York, held in and for the Third Depart- ment, at Ithaca, in the County of Tompkins, on the 4th day of May, 1880. Present,—The Hon. William L. Learned, Pre- siding Justice. 78 The Hon. Augustus Bockes, The Hon. C. E. Martin. Justices. The lat- ter taking no part. Anna N. Dwight, Orlow. W. Chapman and George F. Lyon, as Executrix and Executors of the last Will and Testament of j Walton Dwight, deceased, i Respondents, against The Germania Life Insurance Company, Appellant. 74 This cause having been brought to a hearing at a General Terra of this Court, begun and liolden at Ithaca, in the county of Tompkins, on the 4th day of May, 1880, upon the appeal taken by the defendant from an order made in said action at a Special Term of this Court, held in and for the county of Broome, at the Court House in the city of Binghamton, on the 21st October, a. d. 1879, by the Hon. David L. Follett, one of the Justices of this Court, presiding at said term, directing that the defendant deliver to the plaintiffs1 attorney, with- in twenty days from the entry of said order and no- tice thereof, a statement, in writing, under oath, setting forth certain particulars in the said order specified, and Mr. Joseph Larocque, of counsel for the appellant, having been heard in support of the 75 26 appeal, and Mr. Henry Smith, of counsel for the respondent, having been heard in opposition, and due deliberation having been had, it is now ordered that the said order of the said Special Term, ap- pealed from, be and the same is hereby modified by adding at the end thereof the following provision, that is to say : “It is further ordered that neither any bill of “ particulars which may be furnished pursuant to “ this order, nor anything in this order contained, “ shall be so construed as to prevent or have the “ effect of preventing the defendants from giving “ evidence of any declarations or statements, oral “ or written, made by the said plaintiffs’ testator, “ Walton Dwight, on the subject of his having had “ bronchitis or spitting of blood at any time prior “ to the application for the policy on which this “ action is founded, and which declarations or lt statements were general as to the times and places “when and where the said Walton Dwight had “ said ailments, or either of them, or from giving “ evidence of any other confessions of said Dwight “which are otherwise admissible and which relate “ to matters set up in defence, which confessions “ are general as to the times and places of the mat- “ ters in said confessions mentioned and con- “ fessed.” And it is further ordered, that the said order ap- pealed from as so modified be and the same is hereby affirmed, and that the costs of the said ap- peal and disbursements for printing papers there- upon abide the event of this action. The defendants to have twenty from ‘entry and service of this order to serve said bill of par- ticulars. 76 77 78 State of New York, Saratoga County Clerk's Office, ss. : I, James W. Horton, Clerk of tlie said County of Saratoga, and Clerk of the Supreme Court of said State for said County, do certify that I have 27 compared the preceding copy with the original order entered and on tile in my office, and that the same is a correct transcript therefrom and of the whole of said original. In witness thereof, I have hereunto subscribed my name and affixed my [l. s.] official seal this 20th day of October, 1880. James W. Horton, Cleric. 79 SUPREME COURT. Place of Trial—1 Chenango County — , Anna N. Dwight, and others, as Executrix and Executors of the last Will, &c., of Waltonj Dwight, deceased, \ against The Germania Life Insurance Company. 80 Bill of particu- lars furnish- ed by the de- fendant. In compliance with the order of the Special Term of this Court, bearing date the 21st day of October, 1879, as modified by the order of the General Term, bearing date the 4th day of May, 1880, the Germania Life Insurance Company, the defendant above named, makes the following statement, that is to say : 81 First.—The said defendant expects to prove that the said Walton Dwight, the said plaintiffs’ tes- tator, had bronchitis and spitting of blood at various places, and at various times, between the year 1860 and the date of his dentil in 1878. 28 According to the best information defendant now lias upon the subject, said maladies resulted from exposure several years prior to 1868, while the said Walton Dwight was engaged in prospecting for and examining timber lands, but at what pre- cise time, defendant is unable to state, and mani- fested themselves at different dates during the period above specified, but at what particular times or places, defendant is unable to specify further than that in or about the year 1865, and again in or about the early part of the year 1870, the said Walton Dwight had bronchitis, accompanied by spitting of blood, but this defendant expects to be able to prove, upon the trial, that the said Walton Dwight, at various other times within the period first above mentioned, but which the defendant is unable now to specify, was afflicted with said mala- dies. The sources of defendant’s present information on this subject are limited to declarations and state- ments written and oral made by the said Walton Dwight in his lifetime, and prior to the application for the policy on which this action is founded, which declarations and statements do not specify the precise times and places when and where he had such bronchitis and spitting of blood, but are distinct and positive to the fact that he had had such bronchitis and spitting of blood prior to the date of said application. Second.—The defendant expects to prove that at the time when the application for the policy on which this action is brought was made, the said Walton Dwight had made applications for insur- ance on his life, which had not led to an assurance to the following named companies, and at the dates set after their names respectively, that is to say : To the Standard Life Insurance Company, on or about January 30, 1869. This application, which was for a policy on the whole life plan, was rejected 82 83 84 29 •as 10 the policy applied for, but approved for no jo r :;,\'d than a seven year term. To the 44 Connecticut Mutual Insurance Com- pany,” ‘ ’n oi about July 81, 1878. To the 'John Hancock Insurance Company,” on <:v ah ' August 21, 1878. ’V> the “ Penn Mutual Insurance Company,” on oi .bout August 20, 1878. To the “ Phoenix Mutual Insurance Company,” on or about August 20, 1878. To the Mutual Life Insurance Company of New- York, some time in the spring of 1868, about the month of March, defendant being unable to specif}7- the date with more particularity. To the Mutual Life Insurance Com pan y of New- York again, on or shortly prior to August 14, 1878. The defendant is unable to give with more particu- larity the date of this application, which, as the defendant is informed and believes, was rejected by the said company on August 14, 1878. To the Globe Mutual Life Insurance Company, on or shortly prior to August 20, 1878. The date of this application the defendant is unable to give with exactness, but, as the defendant is informed and believes, said application was rejected August 20, 1878. Shipman, Barlow & J^arocque, Attorneys for Defendant. City and County of New - Tor7c, ss.: Cornelius Doremus, being duly sworn, says that he is the secretary of the Germania Life In- surance Company, tile defendant named in the foregoing bill of particulars, and that said bill of particulars is true, as deponent verily believes. C. Doremus. Sworn before me this loth ) day of September, 1881. f Otto Guden, Notary Public, Kings Co. Certificate filed in N. Y. Co. 85 86 87 30 SUPREME COURT, Chenango County. Anna N, Dwight and others, as Executrix and Executors of the last Will, &c., of Walton I Dwight, deceased, against l The Germania Life Insurance Company. y 88 Amended Bill of Particu- lars. Incompliance with the order of the Special Term of this Court, bearing date the 21st day of October, 1879,.as modified by the order of the General Term, bearing date the 4th day of May, 1880, the Germa- nia Life Insurance Company, the defendant above named makes and delivers the following statement, that is to say : First.—The said defendant expects to prove that the said Walton Dwight had bronchitis and spit- ting of blood at various places and at various times, between the year 1860 and the date of his death in 1878. According to the best information defendant now has on the subject, said maladies resulted from exposure several years prior to 1868, while the said Walton Dwight was engaged in prospecting for and examining timber lands, but at what precise time defendant is unable to state, and that said maladies manifested themselves from time to time, at different dates during the period above specified ; but at what particular times or places defendant is unable to specify, except as hereinafter stated ; that in or about the year 1865 ; and again in the years 1866 and 1867 ; and again in or about the early part of the year 1870. the said Walton Dwight had bronchitis, accompanied by spitting of blood ; but at what precise dates or 89 90 31 places this defendant is unable now to specify fur- ther than that, during the latter part of the year 1866 and the early part of the year 1867, between the 1st day of December, 1866, and the 1st day of May in the year 1867, at Williamsport, in the State of Pennsylvania, the said Walton Dwight so had bronchitis, accompanied by spitting of blood and was seriously ill from those causes, but this defendant expects to be able to prove upon the trial that the said Walton Dwight at various other times within the period first above mentioned and at various places at which the said Dwight was from time to time sojourning, to wit: in the States of New-York, Pennsylvania, Georgia, Florida, Michigan and Illinois and also in the do- minion of Canada, but at what precise places in said States respectively, or at what precise dates the defendant is unable now to specify was afflicted with said malady. The sources of defendant’s present information on this subject with the ex- ception of the said illness at Williamsport, Penn- sylvania, hereinbefore specified, are limited to dec- larations and statements written and oral made by the said Dwight in his life time and prior to the application for the policy on which this action is founded, which declarations and statements do not specify the precise times and places when or where he had bronchitis and spitting of blood, but are distinct and positive to the fact that he had had such bronchitis and spitting of blood prior to the date of said application. Second.—The defendant expects to prove that at the time when the application for the policy on which this action is brought was made, the said Walton Dwight had made applications for insur- ance on his life which had not led to an assurance, to the following named companies, and at the dates set after their names respectively, that is to say: To the Standard Life Insurance Company, on or about January 30th, 1869. This application, which 91 92 93 32 was for a policy on the whole life plan was rejected as to the policy applied for, but approved for no longer period than a seven year term. To the “Connecticut Mutual Insurance Com- pany” on or about July 31st, 1878. To the “ John Hancock Insurance Company,” on or about August 21st, 1878. To the “ Penn Mutual Insurance Company ” on or about August 20th, 1878. To the “Phoenix Mutual Insurance Company,” on or about August 20th, 1878. To the “Mutual Life Insurance Company of New- York,” some time in the spring of 1868, about the month of March, defendant being unable to specify the date with more particularity. To the “ Mutual Life Insurance Company of New- York,” again on or shortly prior to August 14th, 1878. The defendant is unable to give with more particularity the date of this application which, as the defendant is informed and believes, was re- jected by the said company on August 14, 1878. To the “ Globe Mutual Life insurance Com- pany,” on or shortly prior to August 20th, 1878, the date of this application, the defendant is unable to give with exactness, but as the defendant is in- formed and believes, said application was rejected August 20th, 1878. Shipman, Barlow & Larocque, Attorneys for Defendants. City and County of New- York, ss.: Cornelius Doremits, being duly sworn, says, that he is the secretary of the Germania Life Insurance Company, the defendant named in the foregoing bill of particulars, and that said bill of particulars is true, as deponent verily believes. C. Doremus. 94 95 96 Sworn before me this lltli day of May, 1883. Henry Fromme (89), Notary Public, New-York County. 33 State of New-York. City and County of New- York. . I, Patrick Keenan, Clerk of the City and County of New-York, and also Clerk of the Supreme Court for the said city and county, the same being a Court of Record, do hereby certify, that Henry Fromme, before whom the annexed deposition was taken, was, at the time of taking the same, a notary pub- lic of Nevv-York, dwelling in said city and county, duly appointed and sworn and authorized to admin- ister oaths to be used in any Court in said State, and for general purposes ; that his signature there- to is genuine, as I verily believe. In testimony whereof, I have hereunto set my hand and affixed the seal of [l. s.] the said Court and County, the 11th day of May, 1883. Patrick Keenan, Clerk. 97 98 At a Special Term of the Supreme Court of the State of New-York, held at the Court House in the City ,v.?,vA A vof New-York, on the 10th day of January, 1881. Present,—Hon. George C. Barrett, Justice. Anna N. Dwight et al., as Ex- ecutrix and Executors, &c., of Walton Dwight, deceased, against The Germania Life Insurance Company. 99 On reading and filing consent to the entry of this 34 order, signed by Shipman, Barlow, Larocque & Macfarland, attorneys for the defendant, and on motion of Shipman, Barlow & Larocque, it is Ordered, that said Shipman, Barlow & Larocque be and they are hereby substituted as attorneys for the defendant in the above entitled action. Enter in Chenango County. G. C. Barrett, J. S. o. We consent to the entry of the foregoing order. Shipman, Barlow, Larocque & Macfarland. 100 At a Circuit Court and Special Term of the Supreme Court, held in and for the County of Chenango, at the Court House, in the village of Nor- wich, N. Y., on the 12tli day of November, 1883. Present,—Hon. David L. Follett, Justice. 101 Anna N. Dwight, Orlow W. Chapman and George F. Lyon, as Executors, &c., of Walton Dwight, against The Germania Life Insurance Company. G.L. Sessions. Shipman, Barlow & Larocque. 102 Jurors: William C. Austin, Charles Davis, John P. Newton, Lyman Loomis, Henry H. Smith, Reuben Miller, Wells Watkins, Alanson T. Newton, Ira Phillips, A din Brown, Jerome Dalton. Charles Billings. 35 Case opened by Henry Smith, Esq., and at Af- p. m. Court adjourned until 9 o’clock a. m. to- morrow. Tuesday, Nov. 13. Court opened pursuant to adjournment. Plaintiffs’ witnesses : Peter D. Van Vradenburg, William B. Edwards, Charles A. Clark, Mr. Larocque addressing the jury in opening. 12 o’clock, adjourned till 3 p. m. Defendant’s witnesses: Edward R. Seccomb, Isaac F. Lloyd. 5 p. m., adjourned till 9 a.m. Wednesday. 103 104 Wednesday, 9 a. m. Court met pursuant to adjournment. Isaac F. Lloyd (resumed), Fayette P. Brown, Joseph Hillman. 12 m., recess till 2 p. m. Lowell Harding, Robert M. Forsman, Peter Herdic, Charles Bartles, Jr. 5 p. m., Court adjourned to 9 a. m. Thursday. 105 Thursday, Nov. 15tli, 9 a. m. Court opened pursuant to adjournment. Owen J. Coughlin, Benjamin De Voe, John H. Armstrong. 36 12 m., recess until 2 p. m. Charles F. Tupper, Charles W. Loomis. 5:10 p. m., adjourned to 9 a. m. Friday 106 Friday,“Nov. 16, 9 a. ma Court met pursuant to adjournment. 12 m., recess until 2 p. m. Nat. B. Freeman, Levi C. Phillips. 9 p. m., adjourned to 9 a. m. Saturday. Saturday, Nov. 17th, 9 a. m_ Court met pursuant to adjournment. L. E. Rowe, Ruth B. Owens, Robert Brown, Norman W. Batchelder. Adjourned until 2 p. m. on Monday. 107 Monday, No.v. 19, 2 p. m Court met pursuant to adjournment. Norman W. Batchelder. 5 p. m., Court adjourned to 9 a. m., Tuesday. 108 Tuesday, Nov. 20, 1883, Defendant’s witnesses : Clias. H. Porter, M.‘D. 12 m. recess until 2 p. m. John Swinburne, M. D. 5 p. m., adjourned to 9 a.'m., Wednesday. 37 Wednesday, Nov. 21, 9 a. m. Court met pursuant to adjournment. John Swinburne (re-called), Thomas W. Whitney, Peter K. Burhans, Horatio C. Wood, Benjamin F. Sherman, Nat. B. Freeman (re-called), Elisha H. Bridges. 4:40 p. m., Court adjourned till 9 a.m.,Thursday. 109 Thursday, Nov. 22, 9 a. m. Court met pursuant to adjournment. James B. Pearson, Geo. VV. Thompson, Geo. W. Avery. 11 a. m., recess until 2 p. m. Chas. H. Porter, Austin Flint, Jr., Dwight M. Lee, S. M. Hand, Geo. P. Haskell. R. C. McNeil called, and proof of service of sub- poena having been made, an order for attachment was made. 4f p. m., adjourned to 9 a. m., Friday. 110 Ill Friday, Nov. 23, 1883, 9 a. m. ■Court opened pursuant to adjournment. Albert D. Hitchcock. Plaintiffs’ witnesses : Peter D. Van Vradenburgh, Elias A3"res. 38 Recess until 2 p. m. John Swinburne, Charles A. Hull, Francis W. Downs, Theodore F. McDonald. 5 p. M., adjourned to 9 a. m., Saturday. 112 Saturday, Nov. 24, 1883, 9 a, m. Court, opened pursuant to adjournment. Tlieo. F. McDonald, Neri Pine. Ilf a. m., recess until 2 p. m. Court met pursuant to adjournment. Norman Dwiglit, Henry F. Reynolds. 31 p. m., adjourned to 10 a. m. , Monday. 113 Monday, Nov. 26, 1883. Court opened pursuant to adjournment. Jury called and all present. Plaintiffs7 witness : Henry C. Hermans. 12 m., recess until 2 p. m. 2 p. m., Court met pursuant to adjournment. Henry C. Hermans, continued. 51 p. m., adjourned until 9 a. m., Tuesday. 114 Tuesday, Nov. 27, 9 a. m. Court met pursuant to adjournment. Henry C. Hermans (re-called). Frederick Hyde, Dan. S. Burr. 39 12 m., recess until 2 p. m. 2 P. M. Dan. S. Burr (re-called). James D. Lee, Joseph H. Chittenden. 5 p. m., adjourned until 9 a. m., Wednesday. 115 Wednesday, 9 a. m. Court met pursuant to adjournment. Joseph H. Chittenden, John G. Orton. 12 m., recess until 3 p. m. 116 Wednesday, Nov. 28, 1883, 3 p. m. Court met pursuant to adjournment. John G. Orton (re-called). Charles B. Richards. 4f p. m., adjourned until Monday,p Dec. 3, 1883, at 10 a. m. Monday, Dec. 3, 1883, 10 a. m. Court met pursuant to adjournment. Bessie Macdonald, Charles B. Richards (re-called). Ilf, recess until 2 p. m. 2 p. m., Court met pursuant to adjournment. Defendant’s witnesses : Clements Deutschler, Harry Cornwell, Frederick E. Ross. 3£ p. m., adjourned until 9 a. m., Tuesday. 117 40 9 a. m. Tuesday. Court opened pursuant to adjournment. Charles H. Porter, Horatio C. Wood, Benjamin F. Sherman, John Swinburne, Elisha H. Brydges, George W. Avery. 2 p. m. Court opened pursuant to adjournment. Evidence declared closed. 5 P. M. Adjourned to 9 a. m. Wednesday. 118 Wednesday, Dec. 5th, 9 a. m. Court met pursuant to adjournment. Mr. Larocque arguing mo. for non suit. 12 m. Recess until 2 p. m. Court convened at 2 p. m. 119 Thursday, Dec. 6th, 9 a. m. Court opened pursuant to adjournment. 12 m. until 2 p. m. 2 p. m. Court opened pursuant to adjournment. 3£ p. m. Court adjourned to 9 a. m., Friday. 120 Friday, Dec. 7th, 1883, 9 a. m. Court opened pursuant to adjournment. 9£ a. m. Mr. Russell commenced summing up the case on behalf of the defendants. 12 m. Recess until 2 p. m. 2 p. m. Opened pursuant to adjournment. 5 p. m. Adjourned to 9 a. m., on Saturday. 41 Saturday, Dec. 8th, 1883, 9 a. m. Court opened pursuant to adjournment. Mr. Russell continued his plea, closing at 11 a. m. 11£ a. m. Adjourned until 10 a. m., on Monday. 121 Monday, Dec. 10, 1883, 10 a. m. Court opened pursuant to adjournment. Jury called and present at 10£ a. m., and Henry Smith, Esq., commenced his address in summing up the case for the plaintiffs. Recess until 2 p. m. Mr. Smith continuing. 5 p. m. Adjourned until 9 a. m., Tuesday. 122 Tuesday, Dec. 11, 9 a. m. Court opened pursuant to adjournment. Jury charged by Judge Follett,and at 11:20 a. m. retired in charge of two sworn constables. Recess until 2 p. m. 5:20 p. m. Jury came into Court and having been addressed by the Court, again retired in charge of the constables to their room. p. m. Adjourned to 9 a. m., Wednesday. Wednesday, Dec. 12 th. 9£ a. m. Court opened. Jury calied and had not agreed in their verdict. They were addressed by the Court and again retired for further deliberation. Recess until 8p. m. Jury called and all present, One, Mr. Davis, somewhat ill, and by agreement, Dr. Brooks was to be called. Adjourned until 10 a. m., Thursday, 123 42 Thursday, Dec. 13, 10 a. m. Court opened pursuant-to adjournment. Jury called and had not agreed, and after being addressed by the Court again retired to tlieir de- liberations. Recess until again called together. 3 P. M. Court met pursuant to recess taken, and the jury, upon being duly called, said they had agreed on their verdict, and rendered the same as follows: To question 1. Was the occupation of Walton Dwight for ten years preceding August 22, 1878, real estate and grain dealer, within the intent and meaning of the contract? They answered, Yes. To question 2. AYas Walton Dwight engaged in the sale of beer, wine or other intoxicating liquors, at any time within live years prior to August 22, 1878, within the intent and meaning of the con- tract ? They answ ~ed, No. To question 3. V s Walton Dwight connected with the sale of an} beer, wine or other intoxicat- ing liquors at any time within live years prior to August 22, 1878, within the intent and meaning of the contract? Tiiey answered, No. To question 4. Had Walton Dwight at any time prior to August 22, 1878, had spitting of blood re- sulting from disease of the lungs or other respira- tory organs ? They answered, No. To question 5. Was the ailment of Walton Dwight at Williamsport, in March, 1867. a mere temporary ailment, from which he recovered ? They answered, Yes. To question 6. AAras the policy of insurance on the life of Walton Dwight, in suit in this action, ob- tained by him with the preconceived design and in- tent to defraud the defendant? They answered, No. To question 7. Did AValton Dwight die by sui- cide ? They answered, No. 124 125 126 43 And also rendered a general verdict for the plain- tiffs, and assessed their damages at $18,743.27. At request of Mr. Larocque the jury was polled on each of the questions, and also on the general verdict, and the same answers were given and the same verdict rendered. Counsel for the defendant moved, upon the min- utes of the Judge, to set aside the verdict of the jury and for a new trial, on the exceptions taken by the defendant, and on the ground that the ver- dict is contrary to evidence and contrary to law. Whereupon the Court made the following or- der • At a Circuit Court held at the Court in the village of Norwich and County of Chenango, on the thir- teenth day of December, a. d. 1883. Present,—The Hon. David L. Follett, Justice. 127 128 Anna N. Dwight and others, Executors, &c., of Walton Dwight, deceased, aqainst Tiik Germania Life Insurance Company. > Order Deny- ing Motion for New Trial 129 A motion having been made before the Hon. David L. Follett, presiding at this Circuit Court, upon the minutes of said presiding Justice, to set aside the verdict of the jury this day rendered in favor of the plaintiffs in the above entitled action, and for a new trial upon the exceptions taken by the defendants, and on the grounds that the said 44 verdict is contrary to the evidence and contrary to law, after hearing Mr. Larocque, of counsel for the said defendant, and Isaac S. Newton, of counsel for plaintiffs, opposed, It is ordered that the said motion be, and the same is hereby in all things denied. Ordered, that the defendants have ninety days in which to make and serve a proposed case contain- ing exceptions, and that the plaintiffs have like time to prepare and serve ]3roposed amendments thereto, and that all proceedings upon the verdict be stayed until after the case and exceptions shall have been settled and filed, and ten days’ notice thereof given. 130 131 SUPREME COURT, Chenango County. Anna N. Dwight and others, Executors, &c., of Walton Dwight, deceased, | against , The Germania Life Insurance Company. 132 >Stirs.—Please take notice that the defendant in the above entitled action appeals to the General Term of the Supreme Court from the order denying the said defendant’s motion for a new trial, made and entered in this action at a Circuit Court held in the county of Chenango, and bearing date the 45 10th day of December, 1883, and from each and every part of the said order. Dated New York, March 22d, 1884. Yours, &c., Shipman, Barlow & Larocque, Defendant'1 s Attorneys, 35 William Street, New York. To G. L. Sessions, Esq., Plaintiffs' Attorney, A. Siiepardson, Esq., Clerk. 133 At a Circuit Court and Special Term of the Supreme Court appointed to be held at the Court House at the village of Norwich, in and for the County of Chenango, on the twelfth day of November, 1883. Present,—Honorable David L. Follett, Justice of the Supreme Court. 134 Anna N". Dwight, Oreow W. Chapman and George F. Lyon, as Executrix and Executors of the last Will and Testament of Walton Dwight, deceased, against The Germania Life Insurance Company. 135 At the above term of Court, on the 13th day of 46 December, 1883, upon the rendering of a verdict in favor of the plaintiffs in this action upon that day, and against the Germania Life Insurance Company, the defendant, in the sum of eighteen thousand seven hundred and forty-three dollars and twenty- seven cents, a motion having been made for an ex- tra allowance of costs in favor of the plaintiff in this action upon theground that the same was a diffi- cult and extraordinary case, and after hearing Isaac S. Newton, of counsel for the plaintiffs, in support of said motion, the attorneys of the defend- ant being present, it is ordered : That the plaintiffs have an extra allowance of costs in this action, in the sum of nine hundred and thirty-seven dollars and sixteen cents, that being five per cent, upon the amount of the verdict. 136 137 SUPREME COURT, Chenango County. Anna N. Dwight, Orlow W. Chapman and George F. Lyon, as Executrix and Executors of the last Will and Testament of] Walton Dwight, deceased, Plaintiffs, against The Germania Life Insurance Company, Defendant. 138 The issues in this action having been brought on for trial before Mr. Justice Follettand a jury, at a Circuit Court held in the village of Norwich in and 47 for the county of Chenango, commencing on the twelfth day of November, 1883, and a verdict for the plaintiffs having been rendered on the thirteenth day of December. 1883, for eighteen thousand seven hundred and forty-three dollars and twenty-seven cents ; and the plaintiffs’ costs having been duly adjusted at fourteen hundred and forty-seven dol- lars and twenty-four cents, Now, on motion of (4. L. Sessions, attorney for the plaintiffs, it is adjudged that the plaintiffs, Anna N. Dwight, Orlow W. Chapman and George F. Lyon, as executrix and executors of the last will and testament of Walton Dwight, deceased, re- cover of the defendant, the Germania Life Insurance Company, nineteen thousand two hundred and twenty-one dollars and twenty-two cents, being the amount of said verdict, and interest thereon from December 13, 1883, together with fourteen hundred and forty-seven dollars and twenty-four cents for their costs and disbursements, making in all twenty thousand six hundred and sixty-eight dollars and forty-six cents. W. Merrifield, Dep. Clerk. Entered May 23, 1884. 139 140 State of New York, Chenango County Clerk' a Office. ss.: I, Andrew Shkpardson, Clerk of said county, do hereby certify that I have compared the foregoing copy of a judgment roll with the original now re- maining on file in this office, and that the same is a correct copy thereof, and of the whole of said original. In testimony whereof, I have hereunto [seal] set my hand and official seal, at Nor- wich, this 27th day of May. 1884. A. Shepardson, Cleric. 141 48 SUPREME COURT, Chenango County. Anna N. Dwight, Orlow W. .Chapman and George F. Lyon, as Executrix and Executors of the last Will and Testament ofj Walton Dwight, deceased, Respondents, against The Germania Life Insurance Company, Appellants. 142 Case. This action was commenced on the 30th day of April, 1879, by the service of a summons on the defendant. A copy of the complaint was served with the summons. The answer was served on the 15th day of July, 1879. The reply was served on the 21st day of August, 1879. The names of the original parties in full are as stated in the forego- ing title ; no change in the parties has taken place since the commencement of the action. The plead- ings appear in the judgment roll hereto prefixed, and are therefore not repeated. The issues raised by the pleadings came on to be tried before the Hon. David L. Follett, one of the Justices of the Supreme Court, and a jury, at a Circuit Court, held in and for the County of Chen- ango, at Norwich, in said county, on the 12th day of November, 1883. The counsel for the plaintiffs, to maintain and prove the issues on their part, offered in evidence 143 144 49 the policy of insurance referred to in the com- plaint. Objected to on the ground that the paper offered is only a part of the con- tract, as appears upon its face ; it refers to another paper (the application) as the basis upon which it is made and forming a part of it. The application referred to was produced, the defendants’ counsel consenting that the policy and application might be admitted in evidence together, but objecting to the admission of the policy alone. Defendant'' s Counsel.—We are willing to admit, and do admit, that the defendant executed the policy. The Court overruled the objection, to which ruling the counsel for the defend- ants duly excepted. The policy of insurance referred to was then read in evidence. It was marked Exhibit A, and is contained in the appendix with the other exhibits in the case. The counsel for the plaintiffs, further to main- tain and prove the said issues on their part, called as a witness Peter Vax Yredenburg, who, being duly sworn, testified as follows ; Examined by Mr. Smith : I knew Walton Dwight ; he resided in Bing- hamton for many years—he is dead ; he died at the Spaulding House in Binghamton—I think in the fall of 1877 or 1878. Mr. Smith.—I shall assume that this proof is jorima facie, sufficient proof of his death, unless it is objected to now by the other side. 145 146 147 50 The Court.—I think it would certainly be proper to prove that he died before the commencement of this action. Mr. Smith.—The complaint shows that it was commenced April 19th, 1879. Counsel for the plaintiffs offered in evidence papers purporting to be proofs of death of Walton Dwight, and statement of the plaintiffs’ claim against the defendants, both purporting to have been transmitted to the defendants January 16, 1879. They wrere received and read (marked Ex- hibit B). Counsel for the plaintiffs also read in evidence two letters dated respectively November 26, 1878, and March 28, 1879, written by the secretary of the defendants (marked Exhibits C and D). 148 149 William B. Edwards, called as a witness on behalf of the plaintiffs and sworn, testified as follows : Examined by Mr. Smith : In the years 1878 and 1879 I was County Judge and Surrogate of the County of Broome. I held both offices because the County Judge is ex officio Surrogate. During that time we had no other special officer designated to perform the duties of this office, while the officer himself was disqualified. During that period Theodore F. DcDonald was the District Attorney of our county. Tioga County was similarly situated in reference to the office of County Judge, except that I am not sure but they have a special officer there. Charles A. Clark was the County Judge and Surrogate there. A document was presented to me as Surrogate of the County of Broome, on which I was asked to take official action 150 51 relating to Walton Dwight. (Paper handed witness.) That is the document (Will of Walton Dwight marked “ E ” for identification—subsequently introduced in evidence as Exhibit 92). I took official action on that paper. (Paper handed witness.) My action is indicated by the paper 1 now hold (marked Exhibit F for identification). It is a copy of the decree that was made by me in that matter ; the original is in my pocket (produced). I had it en- tered of record in my office. Mr. Smith.—I do not put these papers in evidence for they are matters of record. Tice Court.—I think there will be no objection to your using copies. District Attorney McDonald’s wife was a sister of Col. Dwight at the time of the alleged death of Dwight, and at the time these papers were made. (Paper handed witness). I think this is the paper that was presented to me before, or a copy. Mr. Chapman.—There were two originals. Witness.—This is an original ; yes, sir. The date of that paper is December 6, 1878 ; the date of the other paper is the same. Cross-examination by Mr. Bussell : I can’t say that I am the same gentleman men- tioned in the 20th clause of the will, but I am named in the will somewhere, In one of the. clauses. 151 152 I5S Charles A. Clark, called as a witness on be- half of the plaintiffs and sworn, testified as. fol- lows : Examined by Mr. Smith : During the years 1877 and 1878 I was County 52 Judge of Tioga County ; there came to me the designation by the Surrogate of -the County of Broome, designating me as the officer to take the proof of the will of Col. Walton Dwight, deceased ; I have that paper in my hand ; I filed it in the Sur- rogate’s office of Tioga County, and it has remain- ed there since, except I brought it here ; there were further proceedings there before me ; letters testamentary were delivered by me to Mr. Chap- man, I think. The Court.—The originals are all recorded ? Witness.—1They are. To Mr. Larocque.—(Paper handed witness.) That is the paper that was presented to me as the Will, and upon which my action was based ; the place at which my official action taken in reference to this paper and these proceedings I have men- tioned is Owego, Tioga County ; all I did was done in that place. To Mr. Smith.—I think I did also take official ac- tion in the county of Broome ; it had escaped my memory for the moment; I issued these papers to which I have referred ; I think I went from Owego in Tioga County, to Binghamton, in Broome County ; my recollection now is that in Broome County on that same day I took official action. (Paper handed witness—the paper afterwards marked Exhibit “G,” being letters testamentary, issued in Broome County.) That paper bears on the subject; it is the letters testamentary ; it seems I signed them ; I issued them in Broome County, at Binghamton ; they bear date the 30th day of De- cember, 1878; that was the date I signed it; I didn’t put the yellow spot on; that is the certifi- cate of the Clerk of Broome County. Cross-examination by Mr. Russell: • I took proofs of the will first in Broome County, 154 155 156 53 and then I reduplicated the same proof in Tioga County ; it was done in both counties on the same day ; I took the same proofs in Broome County that I had done in Tioga County. The witnesses were sworn in Broome County, I think ; that is my recollection ; I signed the entries of adjudication in Broome County ; they were made in the Surro- gate’s office in Broome County, by Judge Edwards or his clerk ; my recollection is the}’ were made by the Clerk. Judge Edwards was present ; I don’t know that he assisted me ; I think not; I couldn’t be positive about his making any of the entries ; my recollection is that the Clerk made the entries. Judge Edwards was not sitting as a part of the Court there in Broome County. The Clerk of the Surrogate’s Court of Broome County made the en- tries ; he didn’t sign the letters testamentary ; this is my name to it as the officer ; I think there was no signature of myself or of any officer whatever to it in Broome County at the close of the proceed- ings for the probate. I think I signed the letters and signed the record of the will and the orders ; I think the witnesses to the will signed two distinct sets of proofs ; I left the proofs that were taken in Broome County in the Surrogate’s office in Broome Coun ty, and I kept those that were taken in Tioga County in my office. Q. Prior to going to Broome County had you signed any paper purporting to be letters testamen- tary? A. Well, as to the order—they were both done the same day. I don’t remember which was done first. Q. I understood you to say that the proofs were taken in Tioga County first ? A. Well, I wouldn’t be positive as to that. They were both taken the same day. Q. Bon’t you know which place you held Court in first—in Tioga or Broome County ? A. My impres- ession would be now that the proofs were taken in Broome County first. 157 158 159 54 Q. Does that impression amount to a recollec- tion? A. I think so. Q. And the witnesses signed the proofs ? A. 1 think so. Q. And you signed letters testamentary there ? A. That is my best recollection upon it. Q. After you had signed, and, as you supposed, completed your official acts in Broome County, you proceeded to Tioga County and took the proofs again? A. Yes; they were taken in Tioga County the same day. The witnesses again signed the proofs there ; they were a separate set of proofs ; and 1 then signed another paper purporting to be letters testamentary. Q. What was the first paper called that was pre- sented to you in the matter of the probate of this will? A. 1 think I haven’tit; I think some of these gentlemen have taken it from me ; I think we called it a designation, though. Q. (Exhibit E handed witness,) Is this paper the first paper presented to you ? A. I think so ; I think at the same time other papers were pre- sented, but this was the first one. [Paper described as a certificate of dis- qualification addressed to the witness.] Q. (Another paper handed witness, being the origin- al of which Exhibit “F for Identification” is a copy.) Was that paper presented to you ? A. I have no evidence that this paper was ever presented to me ; I don’t think it was. (Paper was dated December 6, signed W. B. Edwards, County Judge and Surrogate of Broome County.) I don’t think I ever saw it. Q. What was the first official act you did after this certificate of disqualification was presented to you ? A. I filed the petition for the proof of the will and issued citations. Q. Was there more than one petition presented 160 161 162 55 to you ? A. There were two ; I issued citations in both counties, and there is an official record of my action in both counties kept by the Clerk of the Surrogate’s Court of each county. The counsel for the plaintiffs then read in evi- ence a certified copy of the order made by Judge Edwards showing his disqualification, an original of which was filed in the Surrogate’s office of Tioga County, DecemberlStli, 1878,and in Broome County, December 18th, 1878. It was marked UE.” Letters testamentary granted by Judge Clark to the plaintiffs in Tioga County were then offered in evidence. Objected to on the ground that no jurisdiction on the part of the Magistrate who signed those letters has been shown. The Court overruled the objection, to which ruling the counsel for the defend- ants duly excepted. They were read (marked Exhibit F). Also letters testamentary issued to the plaintiff by Judge Clark, in Broome County, dated December 30, 1878. Same objection, ruling and exception. They were read (marked Exhibit G). The plaintiffs here rested, reserving right to prove computation of interest. 163 164 165 56 The counsel for the defendants thereupon moved the Court to dismiss the complaint on the ground that no jurisdiction is shown to issue the letters testamentary and the plaintiffs are not proven to be parties interested. Mr. Smith.—If there is any defect in that regard we would like to have it pointed out so we can sup- ply it, The Court denied the motion, to which ruling the counsel for the defendants duly excepted. The counsel for the defendants, to maintain and prove the said issues on their part, called as a wit- ness : Edward R. Seccomb who, being duly sworn, testified as follows : Examined by Mr. Larocque : I reside in West Newton, Massachusetts ; my age is 67 years ; I have retired from business ; I was in Binghamton on the evening of March 28, 1876, and also the next day. It has been my habit to keep some memorandum of my transactions from day to day ; that enables me to lix the date when I was there. I went there to look after some mortgages. I stayed at the^Dwight House. I had never been in Binghamton before. I made the acquaintance of Colonel Dwight at that time. I had never seen him before, nor had I ever heard of him before. On that occasion I remained at the Dwight House two^days; I saw but very few guests there at the time. While there I sat at the same table with Colonel Dwight and his wife. He was at the head of the table, and I sat on one side. I had a conversation with Colonel Dwight in the office of the hotel in the evening of one of the days which I have mentioned. 1 am not able to say 166 167 168 57 now which day it was, but I think it was the even- ing of the 28th of March, 1876. I think I returned the next day. We might have talked an hour or an hour and a half in the office. We were sitting there in the office. During the conversation only one person was present; he came in a short time and went out. No one else took part in my con- versation with Colonel Dwight. The general sub- ject of the conversation was the beauty of the place ; we also referred to business ; he said he held a great deal of unimproved property and it was embarrassing him ; I told him he had years and health on his side, and need not be discour- aged ; he replied that be had had a severe hemor- rhage of the lungs in years past, or at some time. Cross-examination by Mr. Smith : When I last had an occupation I was in commercial business; I had vessels running from New-York, and also from Boston to different parts of the world; 1 was part owner of some vessels, and had charge of the business of some, but that is years ago; the last business I did was to look after the loans and mortgages for an insurance company; I was an employee of an insurance company for a time; that is not the last business I have had; I had other business; that was the last business you would call a stated, regu lar business; we have a private business, and we are under the control of nobody: I made an arrangement to look after some mortgages in the West; I was an agent, if you please; I was em- ployed to attend to it; I was looking after specific business; nothing to do with the insurance business, but looking after the mortgages; the company was the Union Mutual, that business continued two years or two and a half, and with this company alone; I was on the business of that company at Binghamton at the time I had this conversation. 169 170 171 58 Prior to my engagement with the Union Mutual Society I was living in New York City; I owned vessels running to the Mediterranean Sea; I owned a portion of the bark Union; I owned half of it probably; if I had my books here I could tell whether 1 owned half of it, or the whole of it; I can’t tell from memory; there are a good many things 1 can’t remember; a good many things I have heard, I have forgotten ; I mean to say I can’t tell what share I owned in that ship ; I was interested in another ship; it has been my busi- ness for several years, but I have not been in business for several years; I retired some years ago ; I could go to my books and refresh my memory; I don’t carry it all in my head, or mind ; I don’t know what is the reason ; it is be- cause I can’t remember ; by looking at my books I can tell how many ships I ever had an interest in ; 1 can’t remember, and I write down almost every- thing I want to remember in my memorandum book. When I went to the Dwight House at Bing- hamton it was my first visit there ; I was written to, to take a mortgage on some farms out here, and I came out to investigate it; I was looking about, making investments on a mortgage, and while at Dwight’s house I fell into conversation with him or he with me ; I had never seen him before and have never seen him since ; I didn’t make any memoran- dum of the conversation, but I did of the date I was there ; I do not remember that conversation any better than I do the conversation I have had with you to-day, but I remember it as well ; I can give a reason why I should remember that conver- sation better than any other conversation I ever had with a man ; I cannot give any reason why I re- member what that man said about his health better than I remember what any other man said in speaking of his health ; I have talked with various other men with reference to their health ; often with the ladies ; I do not always remember it. 172 173 174 59 Q. You say you can’t give any reason for re- membering one better than another? A. I remem- ber this. Q. Can you give any reason why you remember what Mr. Dwight, a stranger, said about his health, better than your conversation on the same subject, with any other person ? A. I remember it because I was interested in it ; I did not have any pecuniary interest in his condition, nor any business interests, nor any spiritual interest, and yet I was interested in what he told me. There was something in the interest I had that bore on the question as to what kind of spitting of blood he had. I was interested on that subject ; as to whether it came from the nose, or gums or somewhere else ; I was interested on that particular subject ; that was not a matter that Dwight was interested in,—the interest I took ; I don’t know that there was anybody interested in it. I don’t know that there .was any body ex- cepting myself interested in that reason ; that is not any greater interest than I had in other people under the same circumstances; I had the same with other people ; that was on March 28, 1876. I did not know of Dwight’s life insurance, or his business then. Q. And do you think you remember since 1876, I mean remember so as to be sure that he used the word lungs ? A. Yes ; that very word. I remember all these years that that particular word was used, lam as positive of it as that I am alive. Q. Did you ever hear anybody else use the word lungs? A. I can’t say. Q. Can you remember one ? A. Yes; I can re- member a good many, but I can’t say how many. Q. Get at it as near as you can ? A. 1 shouldn't attempt to get at it. If you ask why I took an interest in it I will explain it. I am not interested in this case at all. Q. State as many in number, of the persons you can now testify with confidence that you have 175 176 177 60 heard speak of their lungs? A. It is impossible. I shall not attempt it. I can give a number ; if you want me to specify a number, I will say fifty. Q. State the number you now remember? A. I can’t do it. Q. Can’t you state the number you do re- member? A. Well, ten. Q. And those persons spread over how many years? A. Thirty-five years. Q. Well, take the thirty-five years ago ; who was that ? A. In my own family and among my friends. Q. The one thirty-five years ago that you re- member speaking of his lung? A. My family and my business friends; when I had this terrible hemorrhage myself; they wanted to know about it, and I was interested in people’s lungs. Q. Name the person the most remote? A. I don’t know the names. Hold on—1 will let the truth out. Q. You will? A. Yes, sir; I will. If a person has a hemorrhage, I want to know. Q. Name the person the most remote in date, the longest ago, that you now remember having spoken of bleeding at the lungs ? A. Dr. Fisher ; he lived in Boston ; he is dead. I can’t mention the name of one who is alive, but I know I have talked with a great many people on that subject. I think I communicated these things first to the president of our company, John DeWitt ; the name of the company is the Union Mutual Life Insurance Company. I can't give the date. I don’t think I spoke of it until after I heard of the death of Mr. Dwight; it might have been four or five years ago ; I stated it, probably, to some of the directors of the company, or to the agents of the Union Mutual Company; I don’t remember any one else except the parties here. I came here as a witness without being subpoenaed; I knew I was not bound to come ; I came volun- tarily ; there 1ms been no bargain made with me ; I 178 179 180 61 was asked to come by the gentleman from New- York. I was notified by the President of the United States Company, Mr. Brosnan, that the case was coming up ; I was asked to come last spring when the trial was coming on ; 1 think four or five months ago, or along in the summer. I presume Mr. Bros- nan knew all that I knew about this case then. I was notified that the case had been put over, and did not come ; I came part way. I don’t know that before that any of these people knew what I could testify to. I don’t remember that I had disclosed this to the New-York people be- fore this; I presume that Mr. Brosnan opened the interview with me. I am not able to speak from memory ; they said the expenses would be paid; there was nothing more said ; he wanted me to come, and my expenses would be paid—that was what he said, and I agreed to come, if I was able; I came here last night. I talked with no one else that day in Binghamton, but the party that sent for me to . come and look at the property ; I have forgotten the name, I have it in my book ; there is not a word of this Dwight business in the book; I have none of the conversation in the book—not a word; I have entries in reference to this mortgage I was looking after; the book is for dates and ex- penses; I can't remember much of the conversation with the other man in regard to the mortgage. The last sick man I have seen is my brother, B. Osgood Pierce; I had a conversation with him two weeks or a week ago; I cannot remember the conversation; I don’t remember every word of any conversation; I don’t pretend to; things may be said and forgotten. Q. And things may be stated by mistake? A. My memory is poor and I don’t remember things; my memory is not as good as it was; I said that I couldn’t remember everything I heard; I don’t remember what 1 said about my memory; 1 181 182 183 62 said it was poor, very likely; if I didn’t, I will say it; I said so before. This conversation in the Dwig-lit House was in the office; I boarded there that day; I put up at the house and paid for my two days’ board; he (Dwight) had a leisure hour and we sat down in the office and talked and chatted a little for an hour or an hour and a half; lie told me about his business, but not much, and lie told me about his health. I looked him over in one respect, in regard to his hemorrhage; I looked that over somewhat to see if his symptoms were like mine; and I asked him questions; I did not see any symptoms; I saw a great big fellow; he was a large man; he looked well; I noticed that he was a man of unusual size and development; I thought he was a healthy, sound man; my impression at the time was that he was a healthy, fine-looking man ; I do not remember that he had a full chest, bigger than yours [referring to counselJ ; I was more interested in the lungs ; I don’t remember about his voice; I can’t tell whether he had a full voice, as well as what he said ; we were talking in a mild way in his office ; the main thing my memory was on was bleeding; I wanted to see if his symptoms were similar to mine ; I am sixty-seven years old, and weigh two hundred pounds ; this subject of symptoms has been on my mind for thirty-five years. The conversation opened upon the subject of Binghamton ; he thought it was a handsome place ; I think he put it up a little, the prettiest place in the world ; he talked high figures ; he told stories ; I don’t remember that he compared it with Norwich or with Elmira ; I told him I thought it was a handsome place, and he said he had embarrassed himself in making it so ; he did not tell me he had built a town down there ; he told me that he had built the block we were in ; three or four houses put in one, I understood him, for his hotel; my impression is that it was three or four houses made into a hotel; I was outside, and 184 ] 85 186 63 saw them inside ; T was in the one I slept in and dined in ; 1 think there were three or four ; that is my best memory; they looked very well, but nothing very elegant ; they were a good style of houses, and built with separate doors, and like separate houses, but I believe they were connected inside ; he told me they were connected inside; I don’t know; I didn’t go through them; I was in my sleeping room, and I went down stairs to dine ; I don’t know anything about the formation of the houses; I remember that there was a dining room ; I can’t remember which door it was on; I think it was in the basement ; I can’t remember ; I cannot tell whether the dining apartment occupied more than one room ; I think it did ; I can’t remember. Dwight commenced the conversation about what he had done ; he said he had expended a good deal of money in the town ; he didn’t tell me how m'ucli ; the amount was not mentioned ; I don’t remember distinctly those cot- tages around there ; I cannot tell whether they were there or not; 1 believe there is a river down there, but I do not remember ; I think there is ; I have not much memory about it at all; I don’t know what the name of the river is ; I don’t know that 1 ever knew ; I think if there is one there it is not very near the house, but quite a distance off. I think there was a public park there, at the back side of the house ; I don’t remember to have noticed a park on the front side; I think there was one on the back side, because it looked a little singular to me. I never heard of the Dickinson Orchard, or Dickin- son Park, or Dickinson House ; don’t know that I ever heard of such an old gentleman as Daniel S. Dickinson; I don’t know anything whether lie ever lived or not; I should think that Dwight and I were together about an hour; the talk was not very rapid; just about an hour’s talk; some- times somebody broke in ; my talk would be very short in regard to it. I will give you what I can 187 188 189 64 remember. When he told me he had expended a great deal of money and the times had gone hard with him, and that his credit was impaired, &c., my remark to him was that he had years and health on his side, and not to be discouraged. He then said to me : “ Well, I have had hemorrhage of the lungs,” and I asked him where he thought it came from, whether from the lungs, or from the breaking of a blood vessel, or from his stomach, and he told me it came from his lungs ; that he had had a pretty serious trouble with them, and that was the drift of the conversation. I have got through now ; I have told you all 1 can remember. Q. If he said he had bleeding from the lungs, why did you ask where it came from ? A. Some people think it comes from some where else, and I asked him if he was sure it came from his lungs. Q. Why didn’t you tell that in the first place? A. Because I can’t tell’everything at once. Q. You asked him if he were sure it came from the lungs ? A. Yes, sir ; I asked him if he thought it came from the lungs; I am not sure whether I put the word “sure” in or not: I told you I said it; I do not want to take it out ; 1 will leave it there ; I asked him if he was sure it came from the lungs ; that is the question I generally ask everybody. Q. Why did you change it and say you couldn’t tell whether it was used or not? A. It is probably unnecessary to change it ; no reason in particular ; no particular reason for changing it. Q. Which is the truth, the word “sure” in or out—didn’t you ask him because some people have spitting from the lungs and some from the break- ing of blood vessels ? Are you sure you had it in or out ? A. I think I had it in. Re-direct-examination by Mr. Larocque : Q. You were asked by the counsel on the other side a number of time's, and in a number of dif- 190 191 192 65 ferent forms, whether you had any reason for re- membering this conversation about the hemorrhage of thelungs,but you were not permitted to state what your reason was and why you took an interest in it \ A. I had a severe attack myself for weeks, and was not able to move from the bed or speak, and after I recovered from it I never got over the sensa- tion, and I have not to this day ; and then my son was taken at the same time or age in life that I was, and of course it has been in the family, and he is a young man comparatively, and I am sensative upon that subject; and I don’t think I have ever met a person that had had hemorrhage of the lungs that I did not question upon that subject in order to know the details of it; I did it for my own gratifi- cation ; it is thirty-five years ago, and I have never got over the sensation I had at that time. Re-cross-examination by Mr. Smith : I had my last bleeding in 1848. I haven’t bled since. That was operating on my mind when I talked with Dwight. It operates upon my mind to-day. Anybody that had such a siege as I had would never forget it. I can't tell who was the last man before Dwight that I talked with about bleeding ; it don’t operate on my mind as well as when talking with Dwight, because everybody don’t have the ex- perience I had. My son, Edward A., had the- hemorrhage—that is the only son I have ; he lives- in New York and is in business there at 68 Broad! street ; the firm is Brown & Seccomb. I think it is about ten years since he has had bleeding, to my knowledge. I am Director in the Union Mutual Life Insurance Company in Portland. I have not been on a salary for years. I go down once a month. I was a director when the company first started many years ago, for three or four years, and then I removed to New-York and resigned, and then I returned to. 193: 194 195 66 Boston about eleven years ago and went in as a director again, which office I have held for about nine years now. 196 Isaac F. Lloyd, called as a witness in behalf of the defendants, and sworn, testified as follows : Examined by Mr. Larocque : I reside in the city of New York ; I am secretary of the Mutual Life Insurance Company of New- York. I couldn’t state that that company is or- dinarily known as the New-York Mutual ; I have heard it spoken of as the “ New-York Mutual.” There is a Connecticut Mutual, and a Massachusetts Mutual; I suppose that that company is often spoken of outside as the New-York Mutual, to dis- tinguish it from those companies spoken of, but I couldn’t swear that it is ordinarily spoken of as the Newr-York Mutual. There is no company that I know of besides that, that is called the New-York Mutual. I have been connected with the Mutual Life Insurance Company of New-York in the cap- acity of secretary, about eight years. I produce from the records of the company an application to the Mutual Life Insurance Company of New-York, for an insurance policy on the life of Walton Dwight. (Paper handed witness.) This is the original application. The signature to the application was conceded to be in Walton Dwight’s handwriting. The application referred to was then read in evidence. It was marked Exhibit No. 1. Q. In answer to the question as to the amount of i nsurance applied for and the kind of policy, you 197 198 67 will observe that the word “ten” appears to be written over “ twenty-five,” and that “fifteen year life” appears to have been substituted for “plain life”; can you explain that? A. The application as received at the office of the company was originally for twenty-five thousand dollars and plain life insurance. The amount which the medical examiners the application was not approved for twenty-five thousand dollars for plain life. The corporation issued the policy— that policy has been destroyed ; it was destroyed about six months ago; that policy was never delivered to Mr. Dwight to my knowledge; it was delivered to the general agent of the com- pany, Mr. Fayette P. Brown ; he was one of the general agents of the Mutual Life Insurance Com- pany ; his territory includes Broome County; my company received back the policy from Brown ; the general agent was ordered to return the policy both by letter and telegram ; the policy had been can- celled ; no premium had been received upon that policy. In pursuance of the call which I made upon the general agent, the policy was returned to the office by the agent; it was there destroyed,together with a great many other policies, about six months ago. I have the press letter book in which our cor- respondence in regard to this policy was had. (Re- ferring to same.) There is copy letter of 19tn of August, 1878, sent to Mr. Brown, enclosing the policy ; the next communication to Mr. Brown, of which I find a copy, is telegram of 27tli August* 1878; the next is a letter which bears the same date; there is another bearing date of September 9th ; that is the last. The telegram referred to was writ- ten and signed by me, and the letters were signed by myself. Q. Do you know who represented Mr. Brown, if any one, at Binghamton, at that time? A. No, sir. I am able to give the exact date when the policy in question was destroyed; it was the 20tli 199 200 201 68 of March,1883; the Mutual Life Insurance Company keeps a book of records as to the issue and disposi- tion of each policy which goes from the office. It is a policy register, and the size, I should say, about 24x30 inches, and about 4 to 5 inches thick ; that is a book to which constant reference is made in the course of business iji the office ; I have made a copy of so much of the entries in the book as re- lates to any transactions with Walton Dwight or on which his name appears; I now produce the copy so made; that is an exact copy of the entries on that book so far as they relate to this applica- tion, or this policy or to any business of Walton Dwight. Q. “Number 192,196, August 19th, Walton Dwight, Windsor, N. Y., dealer in grain, etc., son Frank.” In the next column, “New-York, De- cember 20th, 1837,” next column, “41,” and the next column “life.” The next column “ 15 years February 10th, 1893.” The next column “ten thousand dollars,” next column “$274.90,” and the next column “S,” and the next column “1,” and the next column “ Yonkers.” Tell me what the date in the first column, August 19th means ? A. The date of the policy ; “ the name, address,, business” and words “ son Frank” in second column represent the name, residence and business of the insured, and the interest and the relationship of the person in whose behalf the policy is made. And in the next column, New-York, December 20tli, 1837, that represents the date of his birth ; and the figures “41” represent the age of the in- sured. The time the policy was issued—and the word “life ” in the next column, indicates the kind of policy ; the words, “fifteen years, February, 19, 1893,” in the next column, mean that the policy was issued on the fifteen year payment plan,—that the policy would be paid up in fifteen annual pay- ments, and the last payment would fall due on the 19th of February, 1893 ; the figures in the next 202 203 204 69 column indicate the amount of insurance ; the fig- ures, “$274.90,” in the next column, mean that that is the amount of premium to be paid semi-an- nually ; the letter “S” in the next column indi- cates that the premium is payable semi-annually ; the figure “1” in the next column is the jrnlicy fee charged on the policy when issued to anybody ; the word “ Yonkers ” signifies the headquarters of the General Agent through whom the w#s issued. There was no other application for any policy of insurance on the life of Walton Dwight pending with the Mutual Life Insurance Company of New York during the summer of 1878 ; there was no other polic}7 on the life of Walton Dwight, which had ever been signed by the officers of the com- pany, in existence at that time. In the distribu- tion of the business of the Mutual Life Insurance Company of New York, the district in which Broome county w7as contained, was in charge of Fayette P. Brown ; I am unable to fix the date of his appointment, which was ten years ago at least; he is agent still. Cross-examination toy Mr. Newton : Our company has been in existence about 40 years ; it has issued about 246,000 policies ; the company has issued from ten to twelve thousand policies during the eight years that I have been secretary, I should say. I think the policy which I signed was the first paper presented to me in connection with this application ; I have no recollection of seeing this application until after the policy was signed. Q. (Application handed witness.) Your atten- tion was called to the answer to the third ques- tion ; wThat was the amount originally applied for as written in that application ? A. The amount originally applied for was $25,000, plain life policy. 205 206 207 70 Q. It is altered, is it not ? A. Yes; I do not know in whose handwriting that alteration is ; the amount is changed from $25,000 to $10,000, and the word “ plain” in “plain life” is taken out, and “fifteen year” putin its place. I do not know when the alteration was made ; I would not testify as to how that application was made as to figures when it came to my office—whether twenty-five thousand or ten thousand ; my first knowledge on the subject was on the signing of the policy ; there is a letter of Mr. Dwight’s attached to that applica- tion ; I first saw that letter when I was subpo3naed last spring to attend this trial—when I got out the application; it was at that time attached to the appli- cation; 1 do not know who attached the letter to the application, nor when the letter was attached ta it. I have no means of knowledge whether it was thus attached at the time that this policy was issued by the company. I sent for the application to the record room, where all the applications are kept, and being brought to me at that time, it had this letter attached. Q. (Paper handed witness.) I show you the in- dorsement upon the application at the head — “Twenty-five thousand dollars, life, Walton Dwight,” in whose handwriting is that? A. I do not know ; it is not the handwriting of any person connected with the home office. Q. Iobserve, “Number of policy 192,196” ; where was that indorsed ? A. By the Policy Clerk, in the office of the company in New York. Q. I notice, “Kind of policy, life” ; who made that entry of the word “ life ” ? A. The same clerk who made this other, Charles H. Palmer; he is still in the employ of the company ; he is not here ; that upper figure, “ 25,000,” is not in his handwriting the “10,000” and all the writing on the back,, except those letters, “ J. C,” are in Palmer’s hand- writing. The printing upon the indorsement of that application was all there before it was brought to my 208 209 210 71 office; we issue applications with the printing on the back as there. Those words near the top are “not approved,” “ fifteen year life full limit ”; those two first words were put there by the medical ex- aminers ; one of the medical examiners put the “ fifteen year life” there; I couldn’t testify as to who scratched it out; at the left are the initials of one of the medical examiners; I don’t know who scratched that out; near the right are three initials —the letters “ W. R. G.” ; I know that Dr. WaT ter R. Gillette wrote those ; 1 don’t know who scratched it out ; that “ fifteen year life ” was put down there after this came into the hands of the company. I testified that no premium on this policy was ever paid to the company ; no premium was ever received by the company on that policy. Q. Do you know, of your own knowledge, any- thing about that ? A. I know from a personal ex- amination of the books of the company. Q. You don’t know of your own knowledge then at all, do you, what premium has been paid ? A. 1 don’t know as I can give any other answer to that question. Q. Of your own knowledge, I say, you don’t know, do you ? A. No. Q. Do you remember from your memory the signing of the Dwight Policy ? A. No, sir. Q. Do you know when that policy was returned, if ever, to the office ? A. I have been unable to fix the date of the return of the policy ; I have no recollection of having seen it ; I did not destroy it; I don’t know whether I re- ceived it or not; I have no recollection of it ; I have no recollection of having seen the policy since I signed it ; I suppose that I signed the policy after it was filled up, for the reason that I signed ; I don’t know that I did ; I do not know from any means whether that policy reached my office, if re- turned, before the first of November, 1878. In 211 212 213 72 issuing a policy we require a medical examiner’s report invariably, as part of the application. Q. There are two reports, I see, one small one, pasted on, and a larger one, a part of this sheet, by Jackson, as medical examiner ; were those reports part of the application ? A. Yes, and upon that and after the examination the action was taken that was endorsed upon that application. Q. The endorsement, “ not approved,” on the upper portion of the body of the application ; did that refer to the application as made for $25,000 ? A. No ; that endorsement was made by the med- ical examiner of the company ; it was not ap- proved medically. Q. And yet it was approved in a different form right under it ? A. Yes ;it had been approved for $10,000, fifteen year life polic\q and not approved for $25,000. Q. I notice an entry at the left of Exhibit 2 (for Identification), in writing ; read it? A. “ Cancelled Aug. 20, 1878” ; I found that upon the record ; the action that resulted in placing that en- try on the record, was taken on the 27th day of August, 1878 ; I can’t testify to the exact date when the entry was made; I can’t say that any such entry was made when that was ab- sent from our office ; I don't know where that policy was between the 19th day of August and the 1st day of November, 1878; the entry upon that record in red ink, “ Aug. 20, 1878” was made by a clerk in the office of the company, Oscar Johnson ; he is at New-York, and in the employ of the com- pany, as he was then ; the reason for putting it August 20, was that it is the practice of the com- pany to make the date of cancellation the day suc- ceeding the day on which the premium falls due and is unpaid ; and that without regard to the time when the cancellation is ordered. Q. On the 11th day of September, 1878, was that policy in the hands of the company T A. I don’t 114 215 216 73 know. The letter that was read, was the 9th ; it had not been returned to the company on the 9th of September ; Mr. Brown resides at Yonkers; that is about 20 miles from the office of the com- pany, and about one hour’s distance of time. Q. You stated there was no other policy. Have you looked at the names to see, in this big book ? A. I looked over the alphabetical register and made as good an examination as possible. Q. The alphabetical register is of what ? A. Of those insured in that company. Q. You don’t pretend to know the amount in- sured, or the persons insured in your company ? A. No ; 1 can’t carry that in mind ; I simply testify to it from that ; I look in the alphabetical list and don’t find his name ; that is the examination I made ; that is all the means of knowledge I have; I have no other means of knowl- edge than that; that would be the only means possible. Q. Have yon any other means of knowledge be- sides that, or any other knowledge besides that 1 A. No, sir ; of course you refer to any jrnlicy in force or that had been issued by the company % Q. Yes. Whether you had knowledge of it ? A. No, sir; no knowledge, except what I have stated. The counsel for the plaintiffs here read in ev- idence the medical examiner’s two reports that accompanied this application. They were marked Exhibit 2. Be-direct-examination by Mr. Larocque : Q. Kefer to the press letter book you had in your hand yesterday ; are you able to say whether or not you personally took part in the proceedings relating to this application \ I want you to refresh your memory and say if you took part in anything 217 219 219 74 relating to this policy ? A. I wrote the telegram. Q. Are you able, by the letters which you signed and the telegram which you wrote, to say whether or not now, as matter of recollection, you personally took part in the transactions of the Mutual Life Insurance Company in relation to this application and policy ? A. 1 directed the general agent to return the policy to the company ; I now recollect what I did about it ; I remember directing the re- turn of the policy and of writing the telegram. lie-cross-examination by Mr. Newton ; Q. That is the telegram of August 27th ? A. Yes. Q. Is that telegram what you mean by saying you directed the return ? A. That and the letters which were written subsequently and signed by me; the corresponding clerk wrote them and I signed them ; I read them. Q. Do you remember it ? A. I read every letter I sign ; I cannot remember it to this day ; I do re- member writing the letter—recalling it—the tele- gram and letter, independent of that book ; I don’t remember it was that date ; that telegram was to Mr. Brown. 220 221 Fayette P. Brown, called as a witness for the defendants, and sworn, testified as follows : 222 Examined by Mr. Larocque : I reside at Yonkers ; my business is that of gen- eral agent for the Mutual Life Insurance Company of New-York, for the State of Vermont and a portion of the State of New-York, including the county of Broome ; I have been connected with the company about 18 years ; my appointment for this district is dated the first of March, 1869. 75 Q. In the year 1878 with whom did you transact business relating to the life insurance business of the Mutual Life Insurance Company in Bingham- ton, if anybody? A. Directly with Mr. I). C. Vos- bury, my agent ; lie is dead now ; I do not know when he died ; I am acquainted with Mr. Vos- bury’s handwriting. Q. (Book handed witness.) Look at that book, and tell me if that is in Mr. Vosbury’s handwriting or not? A. Well, I am in doubt; I could not an- swer it ; I think it is, however ; to the best of my knowledge that is in the handwriting of Mr. Vos- bury ; I was corresponding with him and familiar Avith his handwriting ; I received an application for insurance on the life of Walton Dwight in the year 1878. Q. (Paper handed Avitness.) Look at the paper shown you, Exhibit “1,” and say whether or not that is the application which you received ? A. It is. Q. Examine the papers, and see what papers, if any, were attached to the blank form of appli- cation at the time it lirst came to your hands ; ex- amine it carefully so as to say positively ? A. I should say not either of them ; the applica- tion came without any of those attached to it; no papers were attached to it ; none of the letters or telegrams that are now fastened to it; that appli- cation first came to my hands when I received it on the 8tli day of August, 1878, from Mr. Vos- bury ; we made the proper entries on my book, and sent it to the Mutual Life Insurance Company of New-York ; I didn’t make the entries, but they Avere made. Q. Now look at the application again, and tell me if, Avhen you sent it to the company, the amount of insurance applied for was stated as twenty-five thousand dollars or ten thousand dol- lars ? A. It was for t\Arenty-five thousand dollars. Q. And how was the kind of policy stated on the face of the application ? A. Plain life. 223 224 225 76 Q. And these words “ten thousand” written over twenty-five thousand, they were not in existence at that time ? A. No, and in the same way the words “ fifteen years” did not appear in the application at that time. The next transaction which I had with reference to the application was when I was notified by the company that they would accept the ap- plication for ten thousand dollars on the fifteen year plan only,and then I think I went to the New- York office after that ; I wrent to the medical de- partment. The transaction w7as—the policy was finally issued for ten thousand dollars on the fif- teen year plan ; I mean the policy was written, that is what they mean by issuing the policy ; I took the policy myself from the office ; I waited for it to be written that afternoon, and took it to my office in Yonkers, and made the proper entries in my book and sent it to Mr. Vosbury ; that was on the 18tli day of August; I sent it to Vosbury the same day ; I waited till it was issued and sent it the same day ; the next thing I had to do in rela- tion to that policy was wdien I had to return it to the Home Office ; in the meantime I had telegrams and correspondence on the subject, I think ; I had a letter directing me to return the policy ; 1 have that letter. (Letter produced.) The letter referred to by the witness was then read in evidence, and marked Exhibit 3. On the receipt of that letter I directed a despatch to be sent to Mr. Vosbury requesting him to return the policy ; I telegraphed him the same day, and in answer to that telegram I received a letter from Mr. Vosbury. The letter referred to by the witness was then read in evidence, and marked Exhibit 4. The indorsement on the back is a memorandum of my clerk of the filing of the letter. Q. With that letter, Exhibit No. 4, did you re- ceive the policy in question? A. That is my re- 226 227 228 77 collection ; I think so ; I wouldn’t state positively I did,but my impression is it came with that letter. Q. If it didn’t come with that letter, it came about that time? A. Yes, that is my judgment. Q. If it didn’t come with the same inclosure with that letter, did it came about the time of the letter ? A. Yes, sir; I was about to say when I was stopped that that letter came in a large envelope, I judge from the folding of it, in which a policy would come with it in the same envelope ; if it had been folded in this way—indicating—it would have been in a small envelope, but it was folded cross ways, so I am quite confident that the policy came with it; the policy came about the time the letter did. Q. What disposition did you make of the policy when it came to your hands ? A. I reported it to the New-York Office. Q. Did you ever receive any premium on that policy from anybody ? A. No, sir. Q. So far as you know was any premium on that policy paid to anybody for the Mutual Life In- surance Company ? A. No, sir. Q. What was the custom of business with refer- ence to premiums on policies which were received by you, as general agent,and sent to somebody else ? A. The custom is for the local agent to collect those premiums and forward them directly to me. Q. You have not received any premium on this policy? A. No; but I received back the policy in compliance with my demand. Q. During the period in which you were general agent within the district which you have stated, was there any transaction between Walton Dwight and the Mutual Life Insurance Company to your knowledge in respect to any insurance other than what took place on this application? A. No, sir; there was nothing to my knowdedge. Q. (Book again handed witness.) Will you look again at this book and tell me if you are able to 229 230 231 78 identify it—what it is? A. It is a Policy Register of the Mutual Life Insurance Company of New- York, kept by Mr. Vosbury — an incomplete Policy Register ; the covers are gone : the first record in it is of January, 1873, the last entry is of November, 1878. The counsel for the defendants thereupon read from the book the entry in Vosbury’s handwriting, relating to the transaction in question. It was marked Exhibit “5.” Cross-examination by Mr. Newton : I have the paper that I looked at when I fixed the date of my appointment. (Same produced.) Q. (Application handed witness.) Do you notice this alteration from twenty-five thousand to ten thousand dollars? A. Yes; it is in my hand- writing. I made it, to the best of my recollection, at the date that the policy was written ; to the best of my knowledge, I made it at the date the policy was written. I took the policy to the office and returned home before sending it; it was ac- companied by a letter ; Ithink I have a copy of it. (Same produced.) Q. (Returning copy letter.) Did you furnish Mr. Vosbury that blank on which llie letter of Vos- bury is with that printed endorsement on it ? A. Yes. Q. You testified to Mr. Vosbury paying you premiums that he received. He did other business than this, I suppose, at Broome for this company ? A. Yes, other than the Walton Dwight case ; he received from me, or through me, a good many policies. During 1878 and 1879 he was engaged in that business of insurance for me. I have gone there to see him. He was engaged in the business of insurance for the Mutual Life Insurance Company of New-York there. I don't know how many poli- cies had been sent through me to him. I couldn’t tell 232 233 234 79 without looking ; I should think fifty or one hun- dred. He was in the habit of collecting pre- miums upon those policies from year to year, and also premiums upon other policies that had been issued theretofore in the town of Binghamton in Broome County by that company, and remitting to me. He made his report once a month ; he re- mitted once a month, and oftener if he had money in his hands. His instructions were to that effect. He remitted two or three times a month, perhaps, more or less. He was in the habit of sending in his account from the first of the month to the fifth or sixth, or along there, that account covering the work of the previous month, and with that report sending the receipts for the month, if he hadn’t made special remittances before. Sometimes re- ceipts were held until the next month,but as a rule that was the custom. I saw nothing and knew nothing of this after I sent it till its return on the 27th of August, 1878. 1 said there was a cover upon this book origin- ally ; I know because we never sent a book out but in that form I furnished Mr. Vosbury ; I got it from the Mutual Life Insurance Company of New- York ; I do not think he did business later than is contained in that book, for the Mutual Life Insur- ance Company; he continued to do business until about the time of his death,—about the time of his sickness. There was nothing printed upon the cover of that book that was sent out. The head- ing “The Mutual Life Insurance Company of New- York,” was upon the book ; it is so headed and it was ruled in order to make entries of date of policy ; those rulings were all there as they are now ; the heading is “ The Mutual Life Insurance Company of New-York ; and under the rulings is : “Date of Policy, Amount, Term, Applicant, Life insured, Remarks, Number of Policy, Payable;” and then followed the twelve headings for the 235 236 237 80 months; under each of these there are vertical rulings, and the words “Not delivered as per order of Company,” was under some blanks under the months ; there was no heading for that except “Remarks,” and it was not put under ‘‘ Remarks.” I do not know when that was written there ; my first recollection of seeing this book is to-day ; I might have seen it when it was sent to me in blank, but never afterwards; I probably examined the book when I came to see Vosbury, to see what he had done, but it was some years ago. I do not know in whose handwriting those words “Not delivered as per order of Company” are ; I should think they were written with about the same colored ink as the first entry in the book ; I don’t know how many times I saw Mr. Vosbury at Bingham- ton ; a number of times ; he kept an office ; I don't know whether we furnished him with a sign or not; my impression is, that Mr. Vosbury had a sign and asked me to pay for it, whether I did or not I couldn’t say; I furnished him blanks received from the company ; I furnished him blank applications like this application here; I furnished him other blanks, receipts to collect. Q. Were there any other books for entry than those that you furnished ? A. I should think so ; 1 don’t recollect of any other though. Q. These applications, receipts and blanks that you furnished him, were all for this Mutual Life Insurance Company, weren’t they ? A. Yes. Q. And the name printed on them ? A. Yes, sir. 238 239 240 Joseph Hillman, called as a witness in behalf of the defendants, and sworn, testified as follows : Examined by Mr. Larocque: I reside at Troy, New-York ; my occupation is. 81 that of Genera] Agent for the Connecticut Mutual Life Insurance Company, as a member of the firm of Peck & Hillman ; 1 or my firm have held the position of General Agents of the Connecticut Mutual Life Insurance Company since 1862 ; our territory embraces New-York State except New- York City and Long Island. The business for that district which is done in the State by the Connecticut Mutual Life Insurance Company passes through our hands. Q. (Paper handed witness.) I hand you a paper, purporting to be an application for insurance in the Connecticut Mutual Life Insurance Company, on the life of Walton Dwight; will you look at it and tell me if that application ever came to your hands, and if so, when % A. That came the first of August, from Lowell Harding, of Binghamton ; he is still living; he is in Court; he is the local agent at Binghamton. Q. The business that Harding did in the way of applications for insurance to the Connecticut Mu- tual Life Insurance Company, was it done directly between him and the company, or through your firm ? A. Directly with us, or the firm ; we received this application on the first of August, 1878; we forwarded it to the home office at Hartford, Con- necticut ; the small parallelogram in the upper left hand corner of the first page of this application had been done after we sent the application to the company ; at the time we received it, there was nothing but printed matter in that little parallelo- gram ; the words “approved for $15,000 only,” which now appear in red pencil marks, were not upon the application. The application referred to was then read in evidence ; it was marked Exhibit 6 ; the material portions thereof are contained in the Appendix. When I received this application of the first of 241 242 243 82 August, I sent it to Hartford, to the Connecticut Mutual Life Insurance Company—to the home office ; I had correspondence with the home office about it ; the first thing that happened after trans- mission of the application to the home office, was the request of the home office for additional informa- tion ; I received a letter from the home office, but I have not got it here ; I received the letter soon after the receipt, at Hartford, of the application ; two or three days afterwards ; I then wrote to Mr. Harding, August 5th ; Mr. Harding is in Court. (Paper handed witness.) That is the letter wrritten by my clerk. The letter referred to was then read in evidence ; it was marked Exhibit 7. Q. After you had written that letter, what next did you or your firm have to do in regard to the polic}'-? A We received report of an additional examination by Dr. Orton. Q. Is that the paper which is watered to the original application ? A. I should judge it is. Q. And this certificate of medical examination, signed by J. C. Orton, M. D., your understanding is, is the paper you got? A. Yes ; when I received that paper I sent it on to the ; I sent it as soon as it was received. Q. What did you next have to do with the ap- plication ; after you sent the additional medical certificate, what did your concern have to do with this application ; did you get a policy ? A. Yes, we- got a policy. Q. (Paper handed witness.) Look at that paper now shown you, and say whether that is the policjr that came to you on that application ? A. That is the policy ; it is dated August 16th, 1878; with it wre received a receipt for the premium ; we always receive those with policies ; the receipt that we re- 244 245 246 83 ceived with the policy was the one made out for annual premium. Q. What occurred on the subject of this annual premium ? A. He desired it semi-annually and we returned it for correction; the policy was corrected, and the receipt sent for semi-annual premium. When we got the policy we forwarded it to Mr. Harding, and it was after it had been forwarded to Mr. Harding that this mistake about the form of the time when payments were to be made, was cor- rected ; I think the date when we forwarded it to Mr. Harding was the 17th or 18th of August. Q. After the policy had been forwarded to Mr. Harding was there anything that took place in reference to correcting the statements in the appli- cation \ A. Yes, we received a letter on that sub- ject from Mr. Harding ; I don’t think I have that letter, but I have my answer to Mr. Harding; this letter I sent to Mr. Harding, is September 5th. Q. (Paper handed witness,) Now will you look at the paper attached to the policy, and tell me whether that paper attached to the policy indicates the action that was had as the result of that corres- pondence on the subject of the correction \ A. The prior date I have just given you, September 5th, I think is incorrect; I see that August 12th there was a correction of the application made. The counsel for the defendants then read in evidence the policy referred to, dated the 16th day of August, 1878, numbered 151,227, for $15,000, insuring the life of Walton Dwight. It was marked Exhibit 8. The material portions thereof are contained in the Appendix. I said that there was a mistake made and a pol- icy was made out with premiums payable annually; that was afterwards corrected and they were made payable semi-annually. Q. (Paper handed witness.) See if you identify 247 248 249, 84 that letter as showing any action of yours in con- nection with it ? Does this letter dated the 21st of August, 1878, enable you to speak anything more particularly about the correction ? A. Only that it was sent to Mr. Harding at that time, the 21st ; the new correction. Q. Now, do you know whether you had any- thing to do with the attempt to get the premium made on any different basis than semi-annual or annual ? Was there any negotiation on the subject of a quarterly premium ? A. He desired a quar- terly premium and our company declined it, as I understand it. Q. (Paper handed witness.) I show you what purports to be a premium receipt for premium on policy 151,227, dated August 16th, for a year’s pre- mium ; is that the receipt which came to you with the policy in its original condition ? A. Yes, sir. Q. Was that receipt at first forwarded by you to Mr. Harding, and did it come back to you, or did it remain in your possession ? A. I could not say positively whether it was held in our office or was sent to Harding and came back again. Q. (Paper handed witness.) Is this the receipt dated August 16th, 1878, the receipt for the semi- annual payment? A. Yes, I sent that receipt, when I got it, to Mr. Harding to deliver with the policy. The receipt referred to was then read in evidence. It was marked Exhibit 9. Q. After these papers, in the amended form, had been sent to Mr. Harding, what next occurred with your office in connection with this business? A. Well, I think we were ordered by telegram to retain the policy ; I have the telegram. (Same pro- duced.) The next thing I recollect is the receipt of this telegram. J. L. Greene is President of the Connecticut Mutual Life Insurance Company; his 250 251 252 85 residence, official and otherwise, is at Hartford, Connecticut; this paper, purporting to be a tele- gram from him, came to me in our ordinary course of business ; I received it the second day of Sep- tember, 1878; I took action based upon the receipt of this telegram by me; I telegraphed to Mr. Harding to hold the policy. Q. (Paper shown witness.) Look at this tele- gram and say whether or not that is the telegram you sent ? A. It is ; I received an answer to the telegram I sent to Mr. Harding; I have the answer here ; it is a letter dated September 3d, 1878 ; I re- ceived it in due course. Q. You received a letter from Lowell Harding which was dated the 3d of September, 1878 ; you received it on what day ? A. (Letter referred to.) I judge September the 4th. The next transaction our firm had with reference to this application and policy, was when we wrote to Mr. Harding, under date of September 5tli; I have a copy of the letter. (Same produced.) Q. Did you get any answer from Mr. Harding to your letter of the 5th of September ? A. I think not ; I have no answer ; the next action I took in regard to this policy or application was to send a man down to Binghamton to examine the case ; his name was Lorenzo Barber; he is 4ead ; he died last year. Q. Did you make any report on the subject of the information obtained,by Mr.Barber,to thecompany? A. Yes ; that report was not in writing ; it was made verbally ; I sent him on to Hartford to talk to the company, and then I got their answer. (Same produced.) The answer to which I refer is in the form of a letter, dated the 12th of Septem- bar, 1878, signed by J. L. Greene, President; this is the original which I produce. The letter referred to was then offered in evi- dence. 253 254 255 86 The Court.—I think I will exclude all of that letter except the last clause, “ You will therefore please return the policy to us,” which is received for the purpose of proving the direction and for no other purpose ; and also that part which states that the company has declined to accept a risk on his life. The portions admitted were then read. (Marked Exhibit 10.) On receipt of that instruction, we wrote Mr. Harding, September20th, 1878, in reference to it; I have a copy of the letter ; and by the by, I received another letter from the home office while I held the policy. Q. But didn’t you write a letter prior to the 20th of September ? A. I may have written one. A letter or a telegram ; I think I have, but I have no copy of it. Q. Had you or not received back from Harding, in the interval between the receipt of the instruc- tion from the president, and the letter you wrote on the 20th of September, the policy that had been sent to Harding ? A. No, sir; I was holding it in Harding’s hands. Q. On the 19th of September, 1878, or on the 20th, did you or not receive a further instruction from the home office in the form of a letter signed by the secretary and dated the 19th of September, 1878? A. Idid. Q. (Paper handed witness.) Is the letter shown you now, the letter in question ? A. It is ; it is the original. The letter referred to was read in evidence. It was marked Exhibit 11. Q. On receipt of that direction did you take any action, and if so, what in regard to this policy ? A. We wrote to Mr. Harding as per copy of the letter of the 20th. Q. Subsequent to the letter you wrote on the 20th, did the policy come back to your hands, and 256 257 258 87 if so, when ? A. It came back to us about Septem- ber 25th, with the premium receipt; we returned them to the home office. Q. So far as you know, had the policy you had sent to Mr. Harding ever passed out of his posses- sion until it was returned to you? Objected to on the ground that there is no claim or pretense that he knows anything about it, and as immaterial. The Court sustained the objection to which ruling the counsel for the defen- dants only excepted. Q. Did you ever receive any premium on the policy which is in evidence? A. JNo, I did not; nor did I ever receive any premium on any policy on the life of Walton Dwight. Q. In the ordinary course of business in your department, did the premiums payable on x>olicies issued through you as agents, come into your hands when paid ? A. They did. Q. So far as you know or have any information on the subject was any premium ever paid to any one on the policy in question ? Objected to. The Court sustained the objection to which ruling the counsel for the defendants duly excepted. Cross -examination by Mr. Newton : Q. (Paper handed witness.) I show you what purports to be a copy of a letter from Walton Dwight to Harding, attached to the policy ; when did you first see that copy letter? A. I couldn’t say the date ; I couldn’t say that I ever saw that until I saw the policy ; I am not positive that any such letter, to my knowledge, ever went through my agency to the company. Q. Do you know where the company got that 259 260 261 88 or from whom? A. Well, I suppose it went from our office ; I don’t know. Q. When the policy came to you about the 21st of August,had it that copy letter attached to itasitis now ? A. No, this letter didn’t accompany it ; it was attached afterwards ; I couldn’t say whether it was attached to this policy as it is, when the policy came from the Connecticut Mutual Company to our office; in the ordinary course of business it would be ; I don’t know ; I didn’t attach it to the policy, personally or otherwise ; it is the home office business, I suppose ; I suppose they did it; I don’t know that though. Q. You don’t know how the home office got such a paper, of your own knowledge? A. We asked the information from Mr. Harding Q. Have you got papers showing ? A. I have,, or can get them. Q. Ho you know how the home office got that paper ? A. We wrote to Lowell Harding for it. Q. Ho you know how they got it? A. They got it through Harding, I suppose—the information. Q. Have you any personal knowledge of the fact as to how the original of that paper came into the- hands of the home office ? A. No. Q. Ho you know in whose handwriting that copy is ? A. No, I do not. Q. You received that how long before you wrote the letter that I show you now, dated August 21st % A. This came from the home office just as it is,, with that letter on ; that is the first time I ever saw it, so far as I remember ; I sent that policy to Mr. Harding the day that letter bears date. Q. You mention here that between the time of the first application and the time that you sent that policy, an application was made to reduce from yearly payments to semi-annual payments; have- you that application ? A. I didn’t design to be un- derstood so ; will you allow me to explain ? Q. The application coming to you they sent back 262 263 264 89 and the new application was the request to have another doctor examine him, wasn’t it? A. No, sir ; I didn’t sa}' that the old application was sent back. I said if the old application was corrected—that is, additional testimony or addi- tional statements of his health, &c., which Q. (In't’g.) Have you that additional statement of his health ? A. There is a copy of it ; that letter that is attached is a part of the application. Q. And is that letter the only additional appli- cation that you know of that he made ? A. No, sir ; I only judge from the paper here that this is a copy of the letter that Mr. Dwight sent. Q. I ask you the question whether that is the only additional application that you know of? A. No, there must have been more, because I wrote for it and got it, and there is a copy of it. Q. Do you know of any other application than what is here ? A. No, sir ; I can’t know only as I see the papers. Q. (Telegram handed witness.) Did you send a dispatch upon receiving this policy? A. Yes, sir ; I presume that is the dispatch ; we don’t generally keep a copy of dispatches of that kind. The counsel for the plaintiffs read the telegram referred to in evidence ; it was marked Exhibit H. Q. (Letter shown witness.) Your telegram speaks of the policy, was the policy sent with that letter now shown you ? A. I suppose it was ; evi- dently it was; my clerk wrote the letter. The letter referred to was then read in evidence ; it was marked Exhibit I. The next time I saw the policy after I had thus sent it to Mr. Harding, was about the 25th of Sep- tember. Q. Are you positive it was on or before that day ? 265 266 267 90 A. AVell, Mr. Harding’s letter to me was dated the 24th, enclosing it; in the meantime the policy had not been in our hands from the time I sent it to Mr. Harding ; I did not keep it some time then before returning it to the company at Connecticut; we returned it the next day ; I have got a copy of the letter ; I next saw the policy here and now. Q. (Telegram shown witness.) Will you look at that telegram—can you say whether you sent that telegram ? A. I did send it September 2d, 1878 ; I don’t know anything about that “30” on it ; I telegraphed on the 2d day of September ; I re- member the date from my books and papers, that is all. Q. Between August 21st, when you sent the policy, and September 2d, had you any communi- cation with Mr. Harding whatever, relative to this policy? A. I don’t know that I had ; I couldn’t say. Re-direct-examination by Mr. Larocque : Q. (Paper handed witness.) You recognize that paper as the telegram you sent Mr. Harding, which the counsel on the other side showed you ? A. Yes. The telegram referred to was then read in evi- dence, and marked Exhibit 12. [The date is a mistake ; it should be the second of September.] Q. (Letter handed witness.) I show you another letter addressed to John M. Taylor, Secretary, Hartford, signed Peck & Hillman, by somebody, and ask if you recognize that as a letter sent by your firm to the Connecticut Mutual Insurance Company ? A. Yes. The letter referred to was then read in evidence ; it was marked Exhibit 13. 268 269 270 91 Q. And it was in obedience to that request that the second receipt was sent ? A. Yes. The counsel for the defendants here read in evidence a letter admitted to have been written by Walton Dwight, in relation to the matter en- quired of ; it was marked Exhibit 14. Re-cross-examination by Mr. JSewton : Q. You stated this forenoon that Mr. Dwight asked to amend his application, by changing the premium from annual to semi-annual; upon read- ing this paper, let me ask you whether it was not the fact, that the original application was semi- annual, and the company sent it annual ? A. Yes, it was so. Q. And you made the correction in your letter? A. Yes ; they sent it on annual, and we sent it on to have it made semi-annual, according to the application ; Mr. Dwight had nothing to do with that unless Mr. Harding asked us to—I don’t know ; we did it, I know; Mr. Harding was ap- pointed a local agent March 7th, 1876. 271 •272 Lowell Harding, a witness called on behalf of the defendants, and sworn, testified as follows: Examined by Mr. Larocque : I reside in the city of Binghamton, and resided there in the year 1878 ; I acted as local sub-agent for Peck & Hillman in connection with their busi- ness, at that time ; I have in Court with me, my letters and correspondence in regard to an applica- tion for a policy on the life of Walton Dwight, which was made in the summer of 1878; they are in the hands of the counsel for the plaintiffs, I pre- sume—all that pertain to this case ; I gave them to 273 92 Mr. Chapman ; I gave him all the papers I could find in reference to this transaction, except that in- surance commission ; all the correspondence I could find bearing upon the application of Walton Dwight, I handed to Mr. Chapman ; I think so : I looked them up at his request, and gave him all I could find. 1 received from Walton Dwight, in the summer of 1878, an application for the Connecticut Mutual Life Insurance Company, for a policy on his life ; I received that application on the 31st day of July, 1878. Q. (Paper handed witness.) Look at that paper now shown you, marked “Exhibit 6,’’ and say whether that is the application you refer to ? A. It is ; that is the application. Q. When you first received it, this certificate of the medical examination by J. G. Orton, which is watered to the application, was not attached to it? A. It was not; when I got the application I sent it to Peck & Hillman, of Troy, New-York. Q. What next happened between you and them in regard to it ? A. I think they wrote me for further information and a further medical examina- tion. Q. And was it in pursuance of that request that this certificate of Dr. Orton was obtained ? A. Yes, sir; l went to him for it; that was afterwards. Q. What was next done between you and them in respect to this application? A. Well, I think they wanted some further information in regard to Mr. Dwight, and some statement, I think, in regard to spitting of blood, or some question ; I don’t remember now exactly what it was. I think I received a letter from Peck & Hillman between the time of the application and the issuing of the policy ; I can’t recall the date ; I have not that let- ter ; I am not sure when I last saw it; I don’t know ; in the process of time I received a policy. Q. (Paper handed witness.) Look at the paper 274 275 276 93 now shown you, marked “Exhibit 8,” and say whether that is the policy ? A. I think it is.. Yes; in connection with the policy 1 received the premium receipt now shown me, marked “Exhibit 9”; co the best of my recollection, I received those papers on the 22d day of August, 1878; I showed them to Mr. Walton Dwight; he looked the policy over and said, “all right; at such a day, you go to Mr. Pine and he will pay you the premium on the policy ”; I‘retained the policy until I went to Mr. Pine; I can’t tell definitely how long it was after that when I went to Mr. Pine, but I should say from six to ten days; in eight days, perhaps ; within a few days. He said on such a day Mr. Pine would be able to pay. To the best of my recollection, he said, “ Such a day you go to Mr. Pine and he will pay you the premium on the policy”—naming the day. Q. Did you go to Mr. Pine on the day desig- nated? A. I went to Mr. Pine’s office and he was not in ; liewasin the country that day, I think ; but I went the following day. Q. What occurred between you and Mr. Pine with reference to the policy ? A. Mr. Pine took the policy and looked it over, and then he looked at that letter attached to it from Mr. Dwight and says, “That is a part of the application and is con- sidered as such.” and he could not pay the premium on it until that was changed ; that Mr. Dwight said there he was insured in the Equitable for $40,900, and that he didn’t intend to say that, but Intended to say he was insured for what that policy had earned, or something to that amount ; that lie had a paid up policy for the surrender value of the $40,000 policy ; I think that is all which took place then, unless I left the policy with him for exam- ination. Q. You left the policy with him for examination? A. I am not confident as, to that ; I do.not think I saw him again the next day ; I can’t give the day. 277 278 279 94 when I got the policy back from him ; I got it back between the time I went there and the time I re- ceived notice to hold it in case it was not delivered; I can’t fix in any way the date of that interview with Mr. Pine, when I left the policy with him for examination, but 1 should say it was from six ta eight days from the time I received the policy ; Mr. Dwight mentioned a few days in advance—the poli- cy was received on the 22d—that would make it the 28th to the 30th of August. Q. (Telegram, Exhibit 12, handed witness.) Had or had not the policy been returned to you by Mr. Pine before you received this telegram ? A. I had the policy in my possession when I received that; it had been returned by Pine then, or I got it , I had it in my possession ; I am certain of that ; but how I received it I am not clear. Q. (Telegram handed witness.) I show you an- other telegram, dated Troy, the 16th of September, addressed to you by Peck & Hillman, and ask you to look at it and see if you recognize it as a tele- gram received by you from those gentlemen, on the same subject? A. Yes. The telegram referred to was here read in evidence by counsel for the defendants. It was marked Exhibit 15. The policy was then in my possession. Q. At about the 12th or 15th of September, 1878, did you receive any communication from Peck & Hillman on the subject of returning the policy to them? A. I think it was at an earlier date ; I did receive a telegram to hold it, but did not receive a telegram to return the policy. Q. When did you receive direction to return the policy? A. I think about the 24tli September ; the 23d or 24th ; I then returned the policy to Peck & Hillman. Q. Had the policy remained in your hands from 280 281 262 95 the time you got it from Neri Pine until you re- turned it to Peck & Hillman ? A. It had. Q. Had you ever received any premiums on that policy? A. No. ' Cross-examination by Mr. ISewton : Q. (Paper handed witness.) I show you the tele- gram of August 21st, Exhibit “ H” ; did you re- ceive that telegram from Peck & Hillman ? A. Yes; I received it on the day it bears date, the 21st of August ; after receiving the telegram I saw Mr. Dwight that day or the day following; I am not confident as to that; as soon as I could find him, and I think I found him within a day or two ; I had then the policy at my office. Q. Did you see Mr. Dwight after receiving this telegram before you received the policy ? A. I am not positive. Q. When you had the policy you mentioned an interview with him, and you say he said to you to call upon Mr. Pine at such a day and he will pay you. What reply did you make to that, if any, when he told you to go to Pine? A. I think I told him I would go there. Q. And then you separated, you and Dwight ? A. He went away from my place. Q. Do you remember of any correspondence of any kind between your receiving the policy and your interview with Dwight, and the time that you received this telegram to hold for further advise- ment ? A. I think I did ; I have not got the cor- respondence ; I don’t know what has become of it ; it is probably destroyed ? Q. (Paper handed witness.) In whose handwriting is the pencil marks on the back of the application of the Connecticut Company ? A. I don’t know ; it is not mine ; it was not mine ; it was not there when I sent the application to the company. Q. How large a territory were you acting as 283 284 285 96 agent in? A. The County of Broome, but mainly in Binghamton ; I do no outside business ; I made the collections for this company for that county ; I made applications for the company ; I received blank applications, but not blank policies; I also received receipts signed for pre- miums ; and made my reports monthly ; I made my reports sometimes about the first of the month, and sometimes it run several days ; when those reports were made it was my custom to make the report of receipts and business for the month pre- ceding ; and then I would remit ; I had a book ; I have it with me. (Book produced.) Here is the entry I made in relation to the Dwight case ; that is my book for business.of the Connecticut Mutual Life Insurance Company, and the only book I ever had; it was sent to me from Peck & Hillman ; I continued in this agency from March, 1876, to perhaps September, 1880 ; this book covers my agency at Binghamton, and is the book I call the Policy Register; I made the following entries under the following headings in this book in regard to this policy. The counsel for the plaintiffs then read in evi- dence portions of the entry referred to. (Marked Exhibit J.) 286 287 Robert M. Fobs man, called as a witness in be- half of the defendants, and sworn, testified as fol- lows : Examined by Mr. Larocque : I reside at Williamsport, Pennsylvania ; I have resided there 30 odd years ; I knew the late Walton Dwight, formerly of Binghamton, in his lifetime ; I made his acquaintance, I think, in the fall of 1865 ; subsequent to that time I had business re- 288 97 lations with him ; he was stopping in Williamsport in the winter of’66and’67; while residing there he boarded/ at the Herdic House ; his family was with him ; 1 was residing at that time at the same place and in the same hotel ; I was then and am still engaged in the lumber business. Q. How frequent communications were there be- tween yourself and Col. Walton Dwight during that winter ? A. We were together frequently ; I was in the habit of going into his room quiteoften, and he was in the habit of coming into my room. Q. Do you know whether or not at any time be- tween the first of December, in the year 1866, and the first of May, in the year 1867, Walton Dwight was ill at that hotel ? A. Yes, sir ; I remember one circumstance ; as nearly as I can fix the time of that illness, it was the forepart of the month of March, in the year 1867. Q. Is there any circumstance which enables you to fix that date with some degree of cer- tainty ? A. I think there is. Q. Do you know whether or not Walton Dwight had been to Canada a few months prior to that date ? A. He so stated to me that he had. Q. Do you know whether or not he had any busi- ness on hand which called him back to Canada about that time ? A. Yes, sir. Q. Was that a business with which you had any connection? A. Yes, sir ; I had connection with it. Q. What was the character of Walton Dwight’s illness at that time ? What did you observe about it as to symptoms of indisposition ? A. He was coughing severely and had hemorrhages ; he was confined to his room ; I have been present when Walton Dwight spit blood ; I should call it spitting blood, in my way. Q. How frequently? A. Well, at intervals; I can’t state how often ;he was in the care of a medical attendant at that time ; his physician was Dr. W. C. Doane, of Williamsport. 289 290 291 98 Q. Do you know how long Dr. Doane was in at- tendance upon him at that time? A. During that illness, sir; I don’t remember how long it lasted, quite ; Mr. Dwight was confined to his room at that time; I heard him cough during that time; I couldn’t say exactly how frequently ;he had a very severe cough at that time, so far as my observa- tion went. Q. On the occasions when he spit blood, as have stated,had he had a cough preceding that spit- ting of blood ? A. Yes, and very often would have very severe coughing spells prior to that. Q. And it was at such times that you saw him spit blood ? A. I never saw him spit blood but this once. Q. Had he a coughing spell at that time ? A. Well, my recollection is that he had. Q. Did he ever say anything on the subject of this cough or spitting of blood ? A. Yes, sir ; I have heard him speak on that subject quite fre- quently ; lie said that lie regretted having these severe coughs, and. it would carry him off some day, lie thought. Q. Did he ever say anything upon the subject of ever having had a hemorrhage ? A. Yes, sir ; he said he had had hemorrhages; I don’t recollect him saying from what source they proceeded. Q. Were you called into the room of Mi1. Dwight at any time during his sickness ? A. At the time of the sickness I am speaking of, I was called in by Mrs. Dwight. > Q. Was that the occasion upon which you saw him spit blood, as you have stated? A. Well, that was at the time of that sickness ; I don’t know at that particular time he was spitting blood ; I was in there frequently during his sick- ness. Q. Did you not, upon that occasion, see him raise or spit blood ? A. While I was in the room I saw him raise or spit, blood. , * 292 293 • 294 99 Q. To what extent ? A. Well, I thought quite liberally; I should say, perhaps, a half pint he showed me ; he called attention to it himself ; it was in a vessel sitting beside the bed. Q. Did you observe it close enough to be able to state what the color of it was? A. No, sir; I think not, except that it was red. Cross-examination by Mr. Smith : Q. Are we correct in understanding you that you never saw Walton Dwight spit blood but once ? A. Yes, sir ; on that one occasion only. Q. Are we correct in understanding you that you were unable now to speak of the tint or color of that? A. No more than that it was red ; it was blood ; that is all I know about it. Q. But the degree or character of the redness you are not able to describe? A. No. sir ; I couldn’t. Q. Upon that point your recollection does not serve you now? A. Well, 1 have no recollection about it ; that was in the spring of 1867 ; March, 1867 ; about 16 years ago; this particular in- cident occurred in his room in the Herdic House, in Williamsport, Pennsylvania. Q. Who, besides you and Mr. Dwight, was there when this incident occurred ? A. I think Mrs. Dwight was there ; I know she was. Q. Are you able to say whether Mrs. Walton Dwight saw then all that you saw about blood ? A. No, sir, I am not. Q. Did she or not? A. Ido not know whether she did or not. Q. Who else was present? A. I can’t speak 'positively whether anybody else was. Q. 1 want to know whether you are able to tell 'from memory whether any other human being was present ? A. I am not able to say whether ■ there was any other human being present. I don’t remember that there was any one else present; this 295 296 297 100 occurred in the morning ; as nearly as I can state I should say between 7 and 9 o’clock in the morning, when I was lirst called into the room ; it was in the spring, in March. Q. Who called you in ? A. Mrs. Dwight spoke to me about it, and asked me to come in and see him . Q. Where were you when she called ? A. I can’t state positively where that was ; I think somewhere in the hall of the house. Q. Anybody on earth present to hear that ? A. Not that I know of. Q. Is there anybody in this world who knows that circumstance, of your seeing this blood ? A. I couldn’t answer for anybody but myself. Q. Can’t you tell whether there was other per- sons that knew this thing ? A. I have heard others say so. Q. I ask whether you know of any person in this world who knows of this circumstance you have just sworn to? A. No, sir. Q. Have you been subpoenaed here ? A. Yes, sir ; I am aware of the fact that a subpoena would not bring me here from Pennsylvania : I was not compelled to come; I came at the instance of the attorneys on the other side; Mr. Barlow is the name of the gentleman I refer to ; I am not acquainted with the gentleman particularly. Q. When and where did you make the arrange- ment with Barlow, by the terms of which you were to come here and testify ? A. I saw him in Williams- port, at the Herdic House. Q. If ever, when and where, I ask, did you make the bargain, by the terms of which you were to- come here and give testimony ? A. I never made a bargain with anybody about coming here, if I understand what a “bargain” is. Q. Have you had any conversation with any one relating to your pecuniary compensation for coming here to give testimony? A. No, sir. 298 299 300 101 Q. Then you came here without any promise of pay? A. Nothing more than my expenses. I was told my expenses would be paid. Mr. Barlow told me that, I think, a couple of weeks ago. I think he told me twice, I think last fall, or last spring, or during the summer sometime, in Williamsport. Q. Did yon disclose to him what knowledge you had of this matter.? A. Partially ; what questions lie asked me I answered to the best of my ability ; that was as early as last fall, I think it was. Q. Do you remember the circumstance of some gentlemen being down to Williamsport to examine witnesses upon this subject ? A. Yes, sir. Q. Where were you when that testimony was Being taken down there? A. I was there, I think, one day while they were there. Q. Right in the same house ? A. In the same town. I was in the same house occasionally; I was not there when the testimony was being taken; I was in the same city and town. I resided there while the testimony was being taken. Q. Were you in the same house while the testi- mony was being taken? A. I don’t know where the testimony was taken. I understood they were taking testimony there, and that is all I know about it. Q. Did you disclose to anybody there then what you knew about this case ? A. I think I had a talk there. Q. Did you disclose to anybody there then what you knew about this case? A. Yes, I think I did. Q. Who was it ? A. I think Mr.Daniel Magone, now present. I there stated about what I have stated here to-day. Q. How long had you known Colonel Dwight ? A. I first met him in 1865. I didn’t know him be- fore that. Q. Had you been associated with him in business ■since that? A. Yes, subsequent to that time I was. Q. Were you ever engaged with Colonel Dwight in the transaction of business? A. Yes, sir; from 301 302 303 102 the fall of 1866, I think it was, up to pretty near during his lifetime. We owned stock in the same company, together, the Williamsport and Canada Lumber Company. That was a company involving the management of quite a large estate, some six hundred thousand acres and odd, 1 think. Q. Was that an estate of land which Dwight had originally bought and out of which this company was organized ; was that company organized out of this large tract purchased by Dwight? A. He pur. chased for this company, so he said. Q. And was it in connection with these Canada lands that Dwight had occasion to go to Canada ? A. I suppose so ; he may have had other busi- ness there ; I don’t know; that was a business to go there and manage the business in connection with this six hundred thousand acres of land. Q. Had he been there frequently before he was sick ? A. He had been there twice only, to my knowledge. Q. Did he go there very soon after this severe sickness, as you characterize it ? A. He so stated he was going there ; I don’t know whether he went there or not. Q. Don’t you know he went there soon after? A. I have grave doubts whether he did or not. Q. Did Colonel Dwight leave shortly after the sick period of which you have spoken, and go to Canada ? A. He left Williamsport with the intention of going to Canada. I don’t know whether he went there or not ; this was shortly after this period to which I have referred, when Isay he was sick. I don’t remember how long he was absent; I should judge about two weeks. Prior to this period of sickness he had been boarding at this hotel about two years, I think. His wife was there with him, I think. Q. During that time had you been there? A. Not the entire time; I came there in the fall of 1865, and he was there when I came there, I be- 304 305 306 103 lieve ; that is my recollection ; that they were then boarding there when I came there. Q Who was the landlady of that hotel during that period ? A. Mrs. Hoppes. Q. Do you know Mrs. Herdic ? A. I know a number of Mrs. Herdics. Q. Do you remember the occasion when the tes- timony was taken down there? A. There has been testimony taken down there once or twice ; this last fall I was told theie was testimony taken there. Q. Don’t you know whether there was or not ? A. No, sir ; not from my own personal knowl- edge. Q Who called you in when Mr. Dwight was sick ? A. Mrs. Dwight. Q. Was he in bed? A. Yes, sir. Q. Had he been sick .some time? A. No, I think not ; not when I first went in. Q. Had he been sick at all prior to that, to your knowledge ? A. He complained a number of times ; I don’t remember his complaining at that time of having a bad cold. I don’t remember whether he had the appearance of having a bad cold. Q. Do you regard a man, having a cough, as an indication that he has caught cold? A. Yes, sir ; that is one indication. Q. Did he cough like a man that had caught cold ? A. No, sir, I don’t think he did. Q. Then, is there some way by which you can distinguish a cough when a man has caught cold and when he has not ? A. No, I don’t know as there is ; he would have very severe coughing spells. Q. I ask you whether there i-s any way by which you could distinguish a man having any cold from any other ? A. No, sir, I don’t .think there is that I can discover. Q. Had he been away from . home shortly before that sickness? A. I don’t remember whether he 307 308 309 104 was or not ; I couldn’t tell ; not immediately be- fore ; he would go away for a day or so. Q. When last before this incident had he been away to your knowledge? A. 1 couldn't answer your question. Q. Can't you form any idea as to when—last be- fore the incident that you have spoken of oc- curred ? A. It might have been a week or ten days, or it might have been three months. Q. When, as near as you can state it, had he been away ? A. That is as near as I can state it; within ten days or three months; I do not know where he had been last before that. Q. When you were called in that morning, on the occasion of which you have spoken, did you have a conversation with him? A. Yes, sir. Q. Did anybody hear that? A. I don't know whether they did or not. Q. Did Mrs. Dwight hear it, if you had one ? A. If she had been there she would have heard it; I can’t say positively whether she was there or not; I couldn’t say who began the conversation, nor who ended it. Q. What was the first thing said, that you re- member ? A. I can’t answer that question. Q. .What was the first thing said, if you remem- ber ? A. I can’t say. I don’t know what was the first thing said; I remember going in there, and I and Mr. Dwight were very intimate, quite intimate, and of course I would go into his room as I would go into any gentleman’s room, that was sick ; very likely the first thing I said to him was “Good morning.” I don’t know as I even said that. Q. Was there anything said that you now re- member? A. No; I don’t remember a word that was said, positively ; not a single word. Q. Was there anything said by you that you now remember ? A. No, sir. Q. Was there anything said in that interview by anybody, that you now remember? A. Not that I 310 311 312 105 remember at that particular interview ; I don't re- member of any particular word being said. Q, Where was the blood that you saw ? A. In the chamber ; in a vessel that was sitting alongside of the bed. Q. Do you know where the blood came from, of your own knowledge ? A. Yes, sir ; that is, I saw him spit blood. Q. Did lie spit in this vessel? A. Yes, sir. Q. This chamber was the ordinary earthen cham- ber ? A. I don't remember what it was, now. Q. Do you remember that it was a chamber ? A. It was a vessel of some kind, because he called my attention to it at the time ; he showed me the amount of blood. Q. Do you remember what the vessel was ? A. No, sir ; I don’t remember what kind of a vessel, or the size of it. Q. Or what was in it ? A. Yes, I remember there was blood in it. Q. Was there anything else in it? A. Not that I remember. Q. Did you look to see ? A. Not particularly. Q. Do you know now, as you sit there, whether there was anything else in it besides blood ? A. No, sir ; I don’t. Q. When you say a half pint, are you estimat- ing the contents of whatever was in that vessel ? A. Yes, sir. Q. Whatever there was, was about half a pint ? A. Yes, sir ; I should judge so. Q. Then this vessel, whatever it was, would be used for the purpose of spitting in ? A. He used it for that purpose; I couldn’t say how many times he coughed while 1 was in ; it was periodical ; I think there were quite long intervals between the coughing spells ; he would get very severe coughing spells. Q. Was it the next day he got up out of bed and went away? A. No, sir. 313 314 315 106 Q. How soon after that did he get out of bed ? A. I think that illness lasted about a week. Q. How soon after you saw him did he get out of bed ? A. I think that day ; he was up and down. Q. Was he dressed or undressed when you saw him—night clothes on ? A. I think he had his ordinary clothes on ; I think he was lying upon the bed with part of his dress on—nor his night clothes ; I can’t say whether he had his boots on or not; my impression is, that his illness lasted about a week. Q. Can you say that during that sickness he was sick abed at all—in the sense in which we understand the term—undressed and in bed ? A. No, sir; but what we would call confined to his room ; I think I saw Dr. Doane there ; I will not be very positive about it. Q. You don’t remember that? A. I know the doctor attended him ; I know a doctor when I see him around ; I can’t say that I actually saw him there, or any other doctor. Q. Did you have any other business transac- tions with Dwight besides this 600,000 acres of land? A. I think not, sir; I don’t remember now. Q. Was this the transaction about which they had the lawsuit ? A. Yes, sir. There was one case tried, I believe, at Binghamton; I can't fix the date exactly. Q. Can you give about the date ? A. There is a book in front of the gentlemen that will tell the date. Q. I want the date so as to fix it whether this will or not. A. 1 should say it was 1871 or 1872 ; that is my impression, although I am not certain. Q. Was Mr. O. W. Chapman, the gentleman present, one of the counsel for Dwight in that case ? A. Yes, sir. Q. And Judge Martin? A. I don’t remember Judge Martin. Senator Kernan was one of the counsel. 316 317 318 107 Q. Did you have a lawsuit with Mr. Dwight? A. I think there were proceedings commenced in which I was interested. Q. Do you mean that you have ever had a law- suit and didn’t know it ? A. I might I have had ; I have heard of such things. Re-direct-examination by Mr. Larocque: Q. On your cross-examination you are under- stood to have said that you didn’t think Mr. Dwight coughed as if he had a bad cold, if I quote your language right; will you describe the cough to which you have referred ? A. It was a very severe one, in my opinion. It appeared to come from his chest, or his lungs, and was very severe. He got very red in the face and coughed with a strain. Re-cross-examination by Mr. Smith : Q. Is there any way—any fact within your knowl- edge by which you could tell whether this cough of Dwight’s came from his lungs or some other organs ? A. No, sir. 319 320 Peter Herdic, called as a witness in behalf of the defendants and sworn, testified as follows : Examined by Mr. Larocque : I reside at Williamsport, Pennsylvania ; have resided there about 30 years ; I was the owner of the Herdic House in 1866-7 ; I leased it; during the winter of 1866-7, I resided at Williamsport, in my own house. I knew Walton Dwight late of Binghamton, in his lifetime. I made his acquaint- ance first, I think about 20 years ago. I knew him when he was at Coudersport, Pennsylvania, before he came there. Walton Dwight was residing in 321 108 Williamsport during the winter of 1866-7 ; lie was boarding at the Herdic House ; his wife was with him ; I had business transactions with him during that season ; it was in connection with the Canada lumber land ; I was in the habit of seeing him pretty often, every day or so during that winter ; I was sometimes in the habit of being in his rooms in the Herdic House, but not very often ; he used to go to my house sometimes, and I met him in the town. I met him every day most, when he was at home. Q. Do you recollect whether or not he was ill during that winter? A. I do ; this illness occurred in March, 1867 ; he was confined to his room most of the time, for a period, I should think, from ten days to two weeks ; that is the best of my recol- lection. Q. So far as you were able to observe, what was the matter with him? A. Well, he returned from Canada, and whether he took a severe cold there or not, I don’t remember. He came back and was sick in the room, and coughed a good deal. He always coughed when he laughed severely—it set him coughing. I can’t say whether it was a cold or not that took him down. Q. What sort of a cough was it—severe or light ? A. Pretty severe sometimes. Q. How frequent a cough ? A. Well, I was not in his room but a few times while he was sick. I went in to see him on business, to see how he was getting along to get back to Canada to attend to an operation there, and he coughed pretty often. Q. Was he expected to go to Canada while he was ill ? A. Yes, sir. Q. Was it in connection with this Canada lumber operation ? A. Yes, sir, to pay a lot of money by the first of April, or lose the sale. This transaction in Canada lands was an optional transaction of some sort ; a certain sum had to be paid by the first of April or he would 322 323 324 109 lose the money lie had paid. The property was to go to the corporation. A few of us bought it and made up a company. I was one of the parties interested in the company. I was out with him the first time—before he went back to make the first purchase. It was a matter of in- terest to me that he should be able to go before the first of April. Dr. W. C. Doane attended him. We wanted the doctor to go with him ; he declined. He said lie could get along alone. We thought it was not safe to go alone. Q. During that illness, or during the entire time, did you ever see him spit or raise blood? A. Well, when walking along with him on the street, when he would get to laughing and cough- ing, I would see him spit blood. Q. Did you ever at any other time than in the street see him coughing and spit or raise blood ? A. I saw it in his room. The blood looked like fresh blood ; it was red, I think rather light, bright color ; bright fresh blood, I should think. Q. Did you ever have any conversation with him on the subject of the cause of this spitting of blood ? A. He said he had had hemorrhages, and he expected it would carry him off some time. Q. Did he say anything about the place from which he supposed the blood came ? A. He said he had hemorrhages, I understood, of the lungs, and he thought it would carry him off some time. I don’t know particularly that he said that many times; I won’t say he said it many times. I heard him say that. Q. Was it during that season? A. I can’t say whether it was when he was sick, or before or after- ward ; I don’t remember. Cross-examination toy Mr. Smith : Q. Are you able to remember now how many times you have heard Dwight speak of ke'mor- 325 326 327 110 rl)age? A. I don’t know that 1 have heard him more than once or twice ; I wouldn’t state. I don’t think I heard him say so many times. I won’t fix par- ticularly the times. I wouldn’t say now that I am able to remember more than one time. I don’t re- member where that was, but 1 think it was on the street, going down town from the hotel one day he got to coughing. He got to laughing. I think it was about this time while this transaction was going on. I think it was on the walk going down from the hotel, down town in Williamsport. I think it was in the winter, in the spring of 1SG7. I don’t remember whether it was clear or cloudy that day. Nobody else was present at the conversation ; we were walking down alone. Q. Do you mean to be understood by this jury that after this lapse of time you are able to remem- ber the words that he used. A. I know he said— yes, I do ; I remember what we were talking about, if that is what you want — the subject we were talking about; we were talking about this Canada arrangement, and he got to laughing and cough- ing, and he spit this blood, and I spoke about it, and he said he expected the damned thing would take him off some time. Q. The “damned thing”? A. Yes, sir; Ire- member that; I remember those words now. Q. Do you remember the words that were used by any other mortal that day ? A. I don’t remem- ber what 1 said to other people that day, now. Q. Can you remember the words used by any other human being? A. I don’t know that I can. Q. Now, when he spit, did he spit on the ground ? A. He spit right out on the walk. Q. And was it there on the walk you saw the color of it? A. I did ; I saw that he spit blood. Q. You saw the color of the shuttle ? A. I saw it as he raised blood and spit it, and also in his room when he was sick. Q. When you were walking and he spit, did you 328 429 330 The Particular Attention of Applicants is called to the INSTALMENT FEATURE, which is fully explained in the Company's Documents. gqipUratiiw for Insurance iti Form A. DO NOT WRITE IN TRIft SPACE OR .ABOVE IT. THE MUTUAL LIFE INSURANCE COMPANY OF NEW-YORK, 140 to 146 BROADWAY, CORNER OF LIBERTY STREET, NEW-YORK CITY. X Had $120,000 mostly paid up Policies, more or less broken—want to get into sound concerns. The following questions will be answered by the person proposed for Insurance. RESIDENCE. PLACE OF BUSINESS. 1. A. Give your full Name, Walton Dwight. Town, Windsor. jWinftiij'i1—Mostly Chicago. Occupation or Employment; if more than one, state all. County, Broome. General Dealer in Grain and Produce. State, New- York. Former Residence, if recently changed, Former Occupation, if recently changed, In giving the Occupation of the Person, it is not sufficient to state (for example) that he is a Merchant or Mechanic, but the particular branch of Business, or the actual Trade, must be specified..JgU 2. A. Give the name of the person for whose benefit the insurance is proposed. B. Resi- ! • Fh’ank Dwight. D. Son. 3. A. Do you wish the Policy dence. C. Post-Office Address. D. Relationship. E. State whether this person —— - ~ made payable in One Sum has an interest in the life proposed for insurance to the full amount applied for. B. Windsor. E. Yes. or in instalments ? F. Are you aware that the Company will not be liable for insurance procured on ! —— any single life for over $80,000 (the prescribed limit)? C. do. F. Yes. One sum. 3. A. State the amount of insurance applied for. B. The kind of Policy desired. C. ! 10, g jg Life *n nsta^rrLeri*s> 110W Whether the Premium is to be paid annually, semi-annually, or quarterly. D. If $#»,000. ' many? for the benefit of the wife of the person proposed for insurance, state precisely ~~ 7 " ~j U- . whether it shall be paid to her children, to his children, or to the children of the two, Semi-annually. D. 3. C. Do you wish such ln- if she be not living at its maturity. E. If an Endowment Policy is applied for, state IT stalments to be Annual, to whom it shall be paid in case of the death of the beneficiary before the maturity t? Semi-Annual, or Quar- of the contract. ‘ terlX? 4. A. State your Place of Birth. B. The Date of Birth. A. Windsor, Broome Co., N. Y. B. 1857, Dec. 20th. 5. A. What is your Age at the nearest birthday? B. Weight? C. Height? D. Are you A 41 B 240 C 6' 2" D Yes Married ? I 6. A. Are you now insured in this Company ? B. If so, for how much ? C. Give the . _ Number and Amount of each Policy. * • A0• 7. Is your Life now insured in any other Company? If yes, give the Name of each v et v j. j nr i • j. n ,r _ , „ . . , , ±1_ Company and the Amount in each. 1 es ’ Equitable, Washington, Germania, National, Universal, Globe and others. 8. Have you made any proposal or opened a negotiation with any person for insur- ance upon your life in any Company, upon which a policy has not yet been issued? Yes; Mutual Benefit, $15,000 ; Connect. Mut., $25,000. If so, give the Name of each Company, and the Amount proposed in each. 9. Are you engaged in the manufacture or sale of intoxicating drinks ? Have you ever j been so engaged? State full particulars. "x°- Ho. Dated at Binghamton this 31s£ day of July, 1878. Signature of the person proposed for insurance. WALTON DWIGHT. In the presence of D. G. VO SB GUY. APPLICATION.—Form B. Questions to the Person proposed for Insurance, the Answers to which are to be submitted to the Medical Examiner, Who will witness the signatures thereto. 1. Are you the same person described in Question 1, Form A, of this Application? Are your full Name, Residence, and the other particulars there mentioned, correctly yes yes answered and recorded ? Have you carefully read the answers given in Form A, and is the signature thereto your own proper signature ? 2. Has any application for insurance upon your life ever been made to any company upon which a Policy has not been granted ? Has any unfavorable opinion upon to my recollection. None. the insurableness of your life ever been given by a physician ? In either case, state full particulars. 3. Are you now in good health ? Have you always enjoyed good health ? Yes; generally good. 4. Have you been subject to or had any of the following Disorders or Diseases? Head- aches, severe, frequent or protracted ; Loss of Consciousness ; Dizziness, Fits or Convulsions, Paralysis, Delirium Tremens, Sunstroke, Apoplexy, Insanity, Habitual Cough, Asthma, Bronchitis, Pleurisy, Inflammation of the Lungs, Spitting or Cough- ing of Blood, Consumption, or anv form of trouble referable to the Lungs ; Shortness of Breath, Palpitation of the Heart, Difficulty in Swallowing or any other symptom indicating Disease of the Heart or neighboring vessels; Dyspepsia, Habitual Con- had slight attacks of Rheumatism but nothing serious and have had Dyspepsia, and trouble stipation, Chronic Diarrhoea, Dysentery, Bilious, Renal or Hepatic Colic; Hemor- with stomach, but nothing, at present, nor for some time past—not any trouble. rlioids ; any other Disease of the Stomach or Bowels ; Jaundice, Liver Complaint of any form Yellow Fever, Dropsy, Swelling of the Feet, Hands Or Eyelids ; Difficulty in Urinating, Excessive or Scanty Secretion of the Urine, Gravel or any symptom pointing to Bladder or Kidney trouble ; any Disease of the Genital or Urinary Organs ; Syphilis, Neuralgia, Rheumatism, Suppurating Glands, General Debility, Gout, Palsy, Eruptions or Disease of the Skin ; Cancer, Erysipelas, Open Sores, Lumps or Swellings of any kind, Fistula, A1 aricose Veins. 5. Have you been subject to or had any difficulty with your Eyesight or Sense of Hearing? 6. Has your Weight recently increased or diminished ? If so, to what extent and how Slightly increased each year. rapidly, and to what cause do you attribute it? ___ 7. Have you ever had Inflammatory Rheumatism ? If so, how many attacks ? In what mentioned. years ? Duration ? How Severe ? Were they accompanied by Cough, Shortness of Only as (Wove mennonea. breath, Pain in the chest, Palpitation of the heart? A. No. B. 8. A. Are you ruptured? B. What form? Single or double? C. Is it reducible ? D. Is _ a suitable Truss worn ? , D. ~o A Have you ever had any malformation or injury, or undergone any surgical operation ? A Jf0. B. B. If so, state fully its nature, duration and results. __ lO Have you any predisposition, either hereditary or acquired, to any Constitutional Disease? (as Consumption, Rheumatism, Syphilis, Insanity.) 1 1. How long since you were successfully vaccinated? 6 or 7 years. 12. A. Describe fully your habit in regard to the personal use of alcoholic or other stimu- lants, narcotics and tobacco. B. What has been vour habit in this respect through Temperate. life? 13. How long is it since vou were attended by a Physician or have professionally con- 7 . , . , . suited one? For what Disease? Give the name and residence of that Physician? j A ever been sick to any extent since an adult. That of your usual Medical Adviser? 14. State, so far as you know, what rvas the Age at Death, Cause of Death, Duration of Final Illness, and state of Previous Health of each of the following persons, if deceased? What is the Age and present State of Health of each of them, if now living? AGE IF LIVING. CONDITION OF HEALTH. | AGE AT DEATH, j CAUSE OF DEATH. HOW LONG SICK. PREVIOUS HEALTH. FATHER, j\boutm. Tojury from lever producing inflammation. % years. Good. MOTHER, About'65 to 3 7. Consumption. 3 or 4 years, j Good. 22 Good. BROTHERS, - Died in IT. 8. service. . - About 22. Caused by injury from cavalry charge. Short. Good. * ’ U ' ~ " —"— f 25 All. SISTERS, 3.-! to t 3,3 Good. Father’s Mother, About 80. Gld age. . :—-j — ■ ♦ «— Father’s Father, “90. | Mother’s Mother, “70. Mother’s Father, “80. In giving the cause of death, avoid all indefinite terms, such as “General Debility,” “ Change of Life,” “Fever,” “ Exposure,” etc. If the word Childbirth be used, how long after delivery did death occur, and were there any symptoms of Disease of the Chest, such as Cough, Expectoration, etc. 15. Have your Grandparents, or any of their descendants, died or suffered from Con- sumption, Scrofula, Insanity, Gout, Rheumatism, or any Pulmonary or Hereditary M Disease? If so, what was the Age of such person at death? His or her Relation- ’ ship to you ? The Cause of Death ? Answer in detail. 16. Is there anything, or has there ever been anything in your Physical Condition, Family or Personal History or Habits, tending to shorten your Life, which is not distinctly No. set forth above? i ——— — [The following Declaration and Agreement must be signed by the person in whose favor a Policy is applied for and by the person whose life is proposed for Insurance ] It is hereby declared and agreed that all the statements and answers to the printed questions written upon the forms A. and B, which, together with this Declaration and Agreement, constitute an application to THE MUTUAL LIFE INSURANCE COMPANY OF NEW-YORK, for an insurance of twenty-fine thousand $23,000 dollars upon the life of WALTON D WIGHT are offered to' the said Company as a consideration of the contract applied for ; each of which statements and answers, whether written by his own hand or not, every person whose name is hereto subscribed adopts as his own, admits to be material, and warrants to be full, complete and true, and to be the only statements given to the Company in reply to its inquiries, and upon which, should the insurance applied for be granted, the Company’s contract will be founded. And this application is submitted to the said Company, with the following express covenants and agreements : 1. That it will constitute no contract of insurance, until a Policy shall first have been issued and delivered by the said Company, and the first premium thereon actually paid, during the continuance of the life proposed for insurance, in the same condition of health as described in the application ; 2. That if the insurance applied for be granted by the Company, the Policy, if accepted, will be accepted subject to all the conditions and stipulations contained in the Policy, and that, in particular, no insurance shall be claimed to be thereby granted against death bv self-destruction, nor shall anv insurance thereby granted remain in force after health shall have been impaired by narcotics or alcoholic stimulants, or after the insured shall, without the consent of the Company in writing signed by the President, Actuary or Secretary, pass or remain beyond the limits of residence t travel, or engage in any of the occupations or employments, specified upon the Company’s form of Policy ; and that the entire contract contained in the said Policy and in this application tak ogether shall be construed and interpreted, as a whole, and in each of its parts and obligations according to the Charter of the said Company and the laws of the State of New-York, the j of the contract being expressly agreed to be the principal office of the said Company in the City of New-York ; 3. That in any distribution ot surplus, the principles ana metiious winch may adopted by the Company for such distribution, and its determination of the amount equitably belonging to such Policy, shall be and are hereby ratified and accepted by and for every per. vho shall have or claim any interest under the contract now proposed A wife may sign by her husband, and children by their father, thus Wife—Mary Smith, by John Smith. Children—Ellen Brown, Thomas Brown, by William Brown. Dated at Binghamton, N I7., this day of July, 1878. Signature of the applicant, FRANK DWIGHT, By WALTON DWIGHT. In the presence of D. P. JACKSON,j M. D. Medical Examiner. Signature of the person proposed for Insurance, WALTON DWIGHT. —- ALTERATION OF POLICIES.—Changes in the manner of paying premiums (as from yearly to half-yearly, or quarterly, or the reverse) can only be made at the end of a year, dating from the commencement of the Policy ; and when such a change is desired by a Policy- holder, the Policy must be forwarded to the office of the Company for the proper and requisite indorsement. A change of interest in a Policy can only be made on the written request of the legal owner of the Policy, and with the consent of the Company. The dates of payment cannot be changed after a Policy has been issued, and the amount assured can only be increased (if desired) by a new Policy. The fiscal (or business) year of the Company closes on the 31st of December. A Policy issued in any year must be dated within that year; it cannot be dated prior to the commencement, or subsequent to the close, of the fiscal year of the Company. ASSIGNMENTS.—A wife cannot legally assign a Policy issued under the Married Woman’s Act for the benefit of herself and children. But see Special Notice to Applicants and Policy-holders, as to Policies issued subsequent to June 23d, 1873, printed on outside page. This Company will not take notice of any assignment of this Policy, until a duplicate or a certified copy thereof shall be delivered to the Company at its principal office ; and under no circumstances will the Company assume any responsibility for the validity of such assignment If any claim be made under an assignment, proof of interest to the extent of the clai in’will be required. EXTRA RATES.—Permits are required for travel or residence beyond the limits assigned in the i obey, and for hazardous occupations; for which application must be made to the principal office. Extra rates, in such cases, are always charged as a percentage on the amount assured, and not on the amount of premium. An Extra Rate of i of 1 per cent is charged on the lives of Females until one year after they shall have safely passed the climacteric. RECEIP rS FOR PREMIUMS, to be valid, must be issued from the office and be signed by the President or Secretary. s 111 see the color then? A. Yes, sir; I saw it on the ground as we were walking along. Q. You didn’t stop, did you? A. I don’t re- member that we stopped and stood and looked at it at all; I don’t think we did, but there was enough of it so you could see it. Q. So all you saw was the impression you got when passing along on that occasion ? A. Yes. Q. Do you remember the color ? A. I said it looked like fresh blood ; it was red. Q. Did you notice the shade of the red ? A. No, sir ; only it looked like blood, like pure blood ; it came from his lungs or somewhere ; it came from Dwight’s mouth ; I did not particularly notice anything in it particularly different from any other blood I saw. Q. Was it different from the blood that comes out of a fellow’s linger? A. Yes,sir ; something like that. Q. Is that as near as you can get at the color, that it was about the color of the blood from a man’s linger ? A. It looked like bright blood. Q. Was it such blood as oozes from a linger when cut ? A. All I can say is if looked fresh blood that came from his lungs, and he spit it out. Q. The question now is, whether the color you saw, so far as you are able to say, was about that which you had seen come out of a man’s finger when he cuts it ? A. I should think it was. Q. It looked about like that ? A. Yes. sir; like fresh blood ; it looked like that as near as I can tell; I spoke about it at the time, and he said as I have repeated ; I told you before what I said about it ; I spoke about it and he said he expected the thing would carry him off sometime. Q. You said “ the damned thing” ? A. Yes, sir; but I didn’t wish to use that expression un- til yon pressed me to it. Q. It was too wicked ? A. I don’t think it look- ed very well; I don’t remember particularly what • .!: .. i . ; . . • - 331 332 333 112 all was said when lie spit this blood, but he stated what I said, that he had had a hemorrhage ; I don’t remember exactly what I said now. Q. Can’t you remember what you said as well as what he said? A. I say I don’t remember exactly all that transpired about it ; I don’t remember the words that I said ; 1 don’t remember all that tran- spired between us. Q. Can you remember the substance of what you said about this spitting of blood ? A. I don’t re- member exactly what I said about it now. Q. Is that the best answer you can make to the question ? A. I stated what he said about it. Q. Who brought you up here ? A. There were some gentlemen up there a few weeks ago, to Williamsport, I don’t remember their names. One gentleman sits there—and there were a couple of other gentlemen there, and they were up to take some testimony, and Mrs. Dwight was there, and they talked with me a little about it, and Dr. Doane talked with me about it. Q. When did Dr. Doane speak to you about it ? A. About the time they came ; he talked to me about it ; he knew I knew about it ; he asked what I remembered about it, and I told him what I re- membered about it. Q. Did anybody make any bargain about your coming here? A. No, sir. Q. Have you any arrangement? A. They came and gave me $25 and wanted me to come with Dr. Doane and Mr. Bartles and Mr. Forsman and said they would pay my expenses ; the gentleman there (indicating) gave me the $25; I don’t remember names ; that was, I think, about three weeks ago ; two or three weeks ago. Q. Do you remember Mrs. Herdic being examin- ed as a witness there ? A. I know they examined her; I was not present. I was then in Williamsport ; that lady is my wife. She and I were not boarding at the hotel, at the 334 335 336 113 time of (lie sickness. We lived in our private house, and lived together. She and Mrs. Dwight ■were great friends and were together a great, deal ; they were on most intimate terms. I have stated that I was there when he was sick; I don’t think my wife was ever there when I was. I went in to see how he was, to get him off to Canada to make this payment; 1 don’t know how often Mrs. Herdic was there. Mrs. Dwight and she were together a great deal. The other day when she was examined down there, I think I Tvas in town ; L was attending to my business ; I was getting ready to attend to some matters. I am never in the house much. Q. Are you able to give any further information as to what your business was at that time? A. Well, I don’t know particularly that day, what I was doing. I had different things to attend to. Q. What is your business now ? A. I am buying some logs and attending to preparing to build a boom, and picking up some stock,—buying stock. That is what I have been at. Q. Have you ever had any other business? A. Yes, sir. I have done some business. Q. When last did you have any business before that, besides building the boom and buying stock? A. For the last five years I have been all over the country. I have been to London. I have not been in any particular business, not to be steady at any particular thing. I have been all over and all around the country. Q. When last since you were born, did you have any other occupation ? A. Well, I have had oc- cupations, different kinds of business 1 have been at. Q. When last since you were born, did you have any other occupation, excepting going to London and buying up logs and picking up cattle ? A. I have most always been in the lumber business, and operating in different things, and 1 have 33 r 338 339 114 built gas works, and water works, and every thing of that kind. Q. On what other occasion did you see any other spitting of blood by Dwight ? A. Excepting on this occasion when he spit out on the ground, at one time, at his house when he was sick ; that was in March, 1867. I think he had been spitting in a bowl while in bed, and the bowl was all bloody. Q. Did yon see him spit? A. Yes, sir; he spit in the washbowl ; he spit in the spittoon or wash- bowl ; I don’t remember which it was. Q. Can you tell one from the other? A. I don’t remember ; it was stained with blood. Q. You think the spittle stuck fast to the vessel? A. He spit on it and it run down in the vessel, of course. Q. Was there any way you could tell how much there was? A. Yo; at this time I didn’t see a great deal ; there wasn’t any great quantity, proba- bly two or three tea-spoonfuls of spit; I don’t think I saw that but once in his room. Q. Was there anything about the color of that by which you could tell ? A. It looked like fresh blood. Q. Such as you would see come from a man’s finger if he should cut it? A. I don’t say that ; I said it looked like fresh blood ; it was red color ; it looked like blood as though your nose had bled or anything of that kind. Q. Was there any other occasion ? A. I don’t remember that there was. Q. Who was present when this spitting of blood occurred in the house? A. I don’t know as there was any one there at that time ; I sat in the chair and lying on the bed, and I was talking with him, and how he was, and whether he would get off at such a time to attend to this business, and we wanted Dr. Doane to go with him, and he said he didn’t need him, he would go alone. Q. Who wanted Dr. Doane to go with him ? 340 341 S42 115 A. I did, and a lot of those men who had an interest in the Canada lumber job. We had a hun- dred and fifty thousand dollars to pay before the 1st of April, or lose the purchase. Q. You wanted Dwight to take the money up and pay it? A. Yes, sir; Dwight was the man to go. Q. And you wanted Doane to go along; what for, to take care of the money, or of Dwight ? A. We thought he ought to go with him, as he wasn’t fit to go alone. Js'o, Dwight didn’t want him to go ; he said he could go alone. Q. Did Doane say anything about it? A. I don’t know that he did, in particular. Q. How soon after you saw Dwight there, did he start and go up to Canada ? A. I think he went about the 26th of March ; that was about a week or ten days after I saw him in the house there; I can’t say positively whether he was undressed or not when I saw him ; he was lying on the bed. Q. Did you have any other conversation, at any other time, with Colonel Dwight, on this subject of going to make this payment ? A. Why, certainly ; we talked of it several times, and he had got to be there by the 1st of April, and he went; I think he was gone in the neighborhood of a couple of weeks;, I don’t remember exactly the time. Q. When, he came back did he go on with his business? A. Yes, sir ; he went on and we raised the balance of the money and he carried the thing through. Q. And he went back again ? A. I think he only went to New-York the next time ; he took a lot of money then. The Court.—How long after the sickness was it? A.. He was gone about two weeks, I think, and we raised the balance of the money. 343 344 345 116 By Mr. Bussell: Q. How long was it after he was sick that he went to New-York the second time ? A. I think the balance had to be paid the first of June, and he went there before that. 446 Charles Baktles, Jr., called and sworn for the defendants, testified as follows : Examined by Mr. Larocque : I reside in Williamsport ; I am a lawyer ; I have resided in Williamsport since 1866 ; I have been en- gaged in the practice of the law since 1866 ; I knew Walton Dwight, late of Binghamton, in his life- time ; I saw him in Williamsport during the winter of 1866 and ’7, and in the spring of 1867 ; my father had some business relations or negoti- ations with him at that time. My father and I went to the Herdic House and there had an inter- view with Colonel Dwight, at that time. As near as I can recollect, I should say it was the latter part of March or the latter part of April. I should think the latter part of April, I can’t give the date exactly ; it was in March or April. Q. What was the subject which took you and your father to meet Colonel Dwight on that occasion ? A. The colonel wanted to sell him some Canada Lumber stock ; and it was on that business we called upon him, my father and I ; he took my father and myself up in a room in the Herdic House. Q. Did he assign any reason on that occasion why he wished to dispose of this interest in the Canada Lumber Company ? A. Yes, sir ; he said he had had a lung difficulty and a hemorrhage and he had more stock than he could carry without borrow- 347 348 117 ing money, and lie wasn't in a condition to borrow it, and he was offering for sale an interest to my father at that time ; the interview did not lead to a pur- chase by my father from him ; my father never be- came interested in the company, personally ; my father is not living now ; he died about four or five months ago. I saw Mr. Dwight quite frequently during that winter or spring ; I had met him before this interview to which I refer. Q. Did you ever see him spit or raise blood ? A. I don’t think I did, sir, I might have done so but I could not say positive. Q. Did you ever hear him speak on any occasion, other than the one you have mentioned, of his having had any lung difficulty or hemor- rhage ? A. No, I did not. That is the only occasion on which I heard him speak on that subject. Cross-examination by Mr. Smith : My age at that time was about twenty-four. I was just beginning practice of the law ; I was actively engaged in the practice of the law to the extent that any young man would be; I was conversing with different people on different days. Q. Did you have any interest in any one man's health more than another ? A. Yes, sir. I had no particular acquaintance with Dwight; I knew him as being a citizen of the town and he lived in the Herdic House and I met him very frequently ; I don’t know that I had anything more than a passing acquaintance ; I had no interest in his business affairs. Q. Had you any more interest in his health than in mine? A. I don’t know that I had. Q. Can you recollect what any other man in the world said about his health, but Dwight? A. Do you mean at that time, sir ? Q. I mean at any time since the world was made ? A. I have heard several gentlemen speaking about 349 350 351 118 his health ; about his condition ; I heard Mr. R. M. Forsman. Q. Was Forsman speaking about his, Forsman’s, health ? A. That is not the question you asked me, believe. Q. Do you remember of hearing any other person speak of his own health than Dwight? A. I don’t know that I have, sir. Q. The only person in the world was Dwight ? A. On that day ? Q. On any day since the world was made? A. Oh, frequently, sir. Q. Who? A. I have heard my wife and I have heard my children. Q. I mean outside of the family? A. I don’t know as I can recall any particular person. Q. I want to know who A. Outside of my own family ; I have heard my father. Q. I mean outside of your own family is there any person you can now name and give his resi- dence that you have ever heard speak of his health excepting Walton Dwight? A. Yes, sir; I do remember somebody ; Vansickle was one gentle- man ; that was perhaps two months ago. Q. I mean 8 or 10 years ago ? A. Well, 1 can go back 4 or 5 years, I don’t know as I can go back 10 years with any particular person. Q. How long ago was this talk with Dwight? A. It was in 1867 ; about 16 years ago. Q. Is there any other man or any other person outside of your family, back 14 or 15 years ago, who said anything about his health, that you can now remember? A. I don’t know that there is. Q. Dwight is the only man ? A. He is the only man I recollect of, and I have reason to recollect it, sir. Q. Have sir ? A. Yes, sir. Q. Have you the reason to recollect what an3T other man in the world said? A. Oh, 37es, sir. 352 353 354 119 Q. Can you remember the words Dwight used? A. Yes, sir, I think I can. Q. The very words? A. I think so. Q. Can you remember the conversation ? A. Yes, sir. Q. How long did it occupy ? A. Perhaps 20 minutes or half an hour. Q. Do you mean to be understood by this jury, that you now remember the very words of that conversation? A. I remember most of them, sir. I don’t remember every word or syllable he used. Q. Who began the conversation ? A. Col. Dwight. Q. What was the first thing he said ? A. He or- dered up two bottles of wine. Q. What did he say ? Lay the wine out of your mind and answer the question. A. He said to father that he had retained an interest in this Canada Lumber Company for him, that he had retained an interest of ten thousand dollars in it for my father ; I speak of my father as Mr. Bartles. 355 353 The counsel for the defendants, further to main- tain and prove the said issues on their part, pro- ceeded to read the depositions of witnesses exam- ined under commission, as follows : Horace E. Taylor, produced as a witness for the defendants before the Commissioner at Williams- port, Pennsylvania, August 14th, 1883, being first duly sworn, testified as follows : Examined by Mr. Barlow : I reside at Williamsport, Pennsylvania ; my age is fifty-six years ; my occupation is that of special agent for fire insurance. Mrs. Dwight is the only one of the plaintiffs I know ; I was acquainted with Walton Dwight, the husband of the plaintiff, Anna 357 120 N. Dwight; I made his acquaintance in this city, [Williamsport] I think, in 1865 or 1866; I am not sure; I lived in Williamsport during the enrire years 1865, ’6 and ’7, and resided most of the time during those years in this hotel [Herdic House]. During the years above mentioned 1 saw Mr. and Mrs. Dwight very frequently, right here at the same house ; I do not think they were here all the while during (hose years. During the time when they were in Williamsport, they were, as far as 1 know, boarding at this hotel; I know where the rooms they occupied were located, but I am not sure about the number of the rooms. I have now been and looked at the rooms, and think they occupied numbers 20 and 22 on the second floor ; my wife and myself were frequently in their rooms ; there was only one room intervening. Q. Please state whether or not said Walton Dwight was ill and confined to his bed or rooms, in the Herdic House, during the period already men- tioned ? A. I think he was ill for a few days ; Idon’t remember how long a time. The character of his illness, I understood, was hemorrhage of the lungs. I can only recollect that he had a hard cough ; he coughed as I do when I have a severe cold on my lungs. Q. Did the coughing seem to give him pain? A. 1 don’t recollect the particulars farther in re- lation to 11is cough. I do not remember that Wal- ton Dwight, during these attacks of coughing, or either of them, or at any other time during his stay in Williamsport, raised or spit blood in my presence. I think he mentioned to me, while he was recovering and before he was entirely well, on two or three occasions, that he had had a severe attack of hemorrhage of the lungs. It was herein this house, then called the Herdic House ; I would not undertake to give the exact words used on any of these occasions; I can’t say that at the time when Mr. Dwight made these statements to me he 358 359 360 121 expressed any fears as to the result of these at- tacks ; it was after the danger was over when I had the talk with him ; 1 don’t remember particularly ; I only remember of his saying he had a pretty “close call,” or something of that kind. I can’t remember whether any one was present during any of these interviews with Dwight, when he spoke of his illness. I do not recollect that Anna N. Dwight at any time during her stay in Williamsport, or at any other time or place, made any statement to me or in my presence or hearing as to the nature or character of the illness from which Walton Dwight was then or had been suffering. I cannot positively say what physicians attended him then, but 1 think it was Dr. W. C. Doane. When Walton Dwight was ill in this hotel, he looked as though he had had a tit of sickness, and was very pale ; I don’t remember anything further than his paleness espe- cially ; my recollection is that he had a very severe cough for some time ; I could not give any definite time. My recollection is that it was for several weeks. At that time I had business interests in an enterprise in which Mr. Dwight was then engaged, and to which, according to my understanding, Mr. Dwight’s personal attention was necessary. Mr. Dwight organized, with a number of other gentle- men, what was called “The Canada Lumber Com- pany,” I think. I was interested in it. Q. Did that interest that you had in the enter- prise, direct your attention to his personal condi- tion—to Mr. Dwight’s inability to attend to the matter—at that time? A. It probably did; it probably impressed this sickness upon my mind more than it otherwise would. Q. According to your best recollection now, how often did you see Mr. Dwight during that illness— as often as daily or otherwise ? A. I think I saw him as often as daily ; my recollection is, he was not confined to his bed or room very long. Q. Did you have any personal knowledge, at 361 362 363 122 that time, as to Mr. Dwight postponing a contem- plated visit to Canada in consequence of his illness ? A. 1 may have had that personal know, ledge, but I do not now recollect it. Cross-examination by Mr. Smith : Q. How long ago was it that you last heard Dwight or his wife speak of his having any illness or other infirmities, including these answers you have stated here \ A. I don’t recollect of hearing any- thing after this ; I am not positive whether it was 1865 or 1866,or 1867 ; it was fifteen or sixteen years ago, or from fifteen to eighteen. Q. During this lapse of time have you had any- thing to aid your memory or enable you to speak upon this subject with more certainty than the other events of life ? A. Yes, I think I have ; no writing or any other business interest than that I have mentioned ; I distinctly said before and I say now, I would not undertake now to testify to any expression used by Dwight, and give the very words that he used. Q. Are you able to call to mind and specify and identify any circumstances or transactions of which you have already given testimony, when any living creature was present, except yourself and Dwight % A. I cannot; I do not know anything about the preparation of the questions which have been put to me here. Q. During the period that they boarded in the same house with you, were you on terms of special personal intimacy with Dwight, and did this extend to your respective wives % A. They were personal friends, and warm per- sonal friends, of ours ; I passed Dr. W. C. Doane to-day ; he was in the hotel yard as I passed by ; I last had an opportunity to converse with him, about two or three weeks ago, when I was last home. 364 365 366 123 Q. If such a thing has occurred, when were you last interviewed upon the subject involved in this law-suit? A. I was spoken to about it, at the time I speak of, some two or three weeks ago ; I don’t remember the time. Q. When last before? A. I was never spoken to until that time that I refer to, some three weeks since; the subject was again referred to a few days later than that. Q. Did you then undertake to impart to him what knowledge you had on this subject ? A. No, sir; I merely answered two or three questions he asked, not knowing that it had any reference to this suit, or anything about it. Q. Do you mean that the questions were so vague, that you did not know what they were about ? A. No, sir ; I do not mean that. Q. You say you are at present special agent of fire insurance—for what company ? A. The Lancashire Insurance Company of Eng- land ; that is the extent of my insurance business ; I am doing some other general business. Q. What do you mean by this term “special agent” ? A. My business is superintending the agencies in this State and New Jersey, and settling losses. Q. Was what you have said in reference to his sickness connected with the Canada affair, a great many years ago, and if so, how many ? A. It Avas from fifteen to seventeen years ago. Q. Have you any idea about the general char- acter of that Canada transaction ? A. It was a large amount—some three hundred and fifty-six thousand acres, if I recollect right. Re-direct-examination by Mr. Barlow: Q. In answer to a question by Mr. Smith, as to whether you had anything to aid your memory or to enable you to speak upon this subject with mor 367 368 369 124 certainty than the other events of life, you say : “Yes, I think I have;” please explain exactly your meaning? A. Well, I think why that im- pressed me more, I had been acting some time as life insurance agent, and when I heard of Mr. Dwight’s large insurance, it recalled that hemor- rhage, and I presume that impressed it upon my mind. Re-cross-examinatiom by Mr. Smith. : Q. I infer from your answer to the last question that you have not disclosed the full extent of your connection with what is called insurance; I wish you would give the balance ? A. I was the agent of the Charter Oak Life Insurance Company from 1855, the time I first came here, for about ten years, and more or less, until the company got into dif- ficulty ; and since that time somewhat in private banking and fire insurance. Q. How long ago was it that the circumstance of this large insurance, that you speak of, came to your knowledge ? A. It came to my knowledge at the time of Colonel Dwight’s death; I don’t re- member how many years ago it was ; it was several years ago. 370 371 Anna C. Spackman, produced as a witness by the defendants before the Commissioner at Strouds- burg, Pennsylvania, August 17, 1883, being first duly sworn, testified as follows : Examined, by Mr. Magone. , I am the widow of Henry S. Spackman ; he died February 9th, 18775; I lived with my husband in Williamsport three years, 1866, 1867 and 1868; during the last two years and a half of that time 372 125 wc made our home in Williamsport in the Herdic House ; I made tile acquaintance of Mrs. Anna N. Dwight, the plaintiff in this suit, during the time that I resided in Williamsport ; I also made the acquaintance of Colonel Walton Dwight during my residence in the Herdic House in Williamsport; Colonel Walton Dwight was out of health during that time. Q. What knowledge have yon of the ailment from which he was suffering by observation, or from anything that Colonel Dwight may have told you l A. From observation, I saw after coughing, mu- cous raised streaked with blood ; he said he was spitting blood, after a severe cold ; to the best of my recollection his sickness was of short duration ; he said, in the presence of my husband and my- self, once in my room, that some years previous in Michigan he had raised blood ; he said nothing as to the quantity ; as near as I can state, the year in which Colonel Dwight made the declaration as to the raising of blood in Michigan was 1867. Q. What do you know of Colonel Dwight having a severe cough during any part of the time that you made your home at the Herdic House ? A. I simply know the fact that he had the cold. I reside now, near Ding-man’s Ferry, Pike County. Cross-examination by Mr. Smith : According to my best knowledge, it is considered twenty-five miles from the station here to Ding- man’s Ferry; my home is about four miles this side from Dingman’s Ferry, on a farm; that is the nearest village I recognize that young man (indi- cating); he is my nephew, William Kingston ; he resides at Germantown near Philadelphia ; his father’s name was Stephen B. Kingston, he is dead; he is in the Pennsylvania Railroad office, 243 South Fourth street, Philadelphia. Q. If he did, when was it that he last spoke to 373 374 375 126 yon upon the subject matter of this examination ? A. I do not know that he spoke to me at all about it. Q. From what place, at which yon were stop- ping*, did yon come here? A. From the Park Hotel, Williamsport. I left there at seven fifty-five yesterday morning, and reached Stroudsburg at three thirteen, yesterday afternoon; when I left Williamsport, I was aware that a gentleman from New-York, by the name of Barlow, and a gentleman from Ogdensbnrgh, by the name of Magone, were seeking me to take my testi- mony in this matter; that was communicated to me by Mr. Dixon, who sits there (indicating); he said he was from New-York; it was at Williams- port that he first spoke with me; that was Wednes- day night, about eight o’clock; as nearly as I can state the hour when I arrived at Williamsport was about half past seven; I came there from Philadel- phia, Pennsylvania. Q. Did any one communicate with you shortly prior to your leaving that place, and if so, who was it ? A. No, I had no communication on this subject. Q. Did any one from New-York or Ogdensbnrgh communicate with you in any way, shortly prior to your leaving Philadelphia for Williamsport ? A. Yes; it was through M. P. Stack. Q, Can you answer that more fully ? A. I do not see that I can; the full name of Mr. Stack is Michael P. Stack; Ido not know that I can give his residence, he is travelling so from place to place. Q. If he ever had an abiding place, to your knowledge, where was the last one ? A. He was tutor to my children for three years, and made his residence at my house ; that was in 1879, 1880 and 1881; that was the last place of residence that he had to my knowledge. I do not know where he is now; on Tuesday of this week 376 377 378 127 the communication was made to me that led to my going to Williamsport; the communication was by Michael P. Stack, in Philadelphia. Q. Did you understand that he was communicat- ing with you in the interest of these insurance companies, or of the Germania Insurance Company? A. I think not. I left Philadelphia Wednesday of this week. Between the time Mr. Stack saw me on Tuesday, and my leaving Philadelphia on Wed- nesday, nobody communicated with me on the sub- ject of my going to Williamsport; the idea of my going to Williamsport was first suggested on Tues- day of this week by Mr. Stack ; I knew on Monday the object of my going to Williamsport; I learned that from Mr. Stack ; he came then from Stamford, Connecticut; he then went to the Delaware Water Gap, the last I know of ; to the Water Gap it is about five miles, I think ; I suppose pleasure was the subject of Mr. Stack’sgoing to the Water Gap ; I can’t say anything else ; I do not know where he is now ; I can give no further information ; my nephew, of whom I have spoken, accompanied me to Williamsport from Philadelphia ; I went to Philadelphia Friday last from my home. Q. Prior to the commencement of this examina- tion, or you may say prior to to-day, who last com- municated with you in reference to it, or the sub- ject matter thereof ? A. I should think Mr. Dixon, at the Park Hotel, on my arrival at Williamsport ; he came here with my nephew and me on the same train ; my nephew accompanied me from Phila- delphia to Williamsport. Q. Do you know by whom the arrangement was brought about by which this journey, in this way, was to be performed? A. I understood from the agent of the insurance companies, in New-York ; and I came because I knew I had to, and I wanted to get rid of it. • Q. Was that Monday the first that you learned 379 380 381 128 that they were desiring to get your testimony? A. It was not. Q. Who next before gave any knowledge to you upon that subject? A. A man from Williamsport, named Doane ; W. C. Doane, a homoeopathic phy- sician. He called about a month since, at my house, near Dingman’s Ferry, where I have lived for seven years; he did not have any other business with me than as to my giving testimony upon the subject matter to which this examination relates; a driver or coachman was with him, no one else; I did not see that he had a book with him ; I saw him but two minutes ; it was very short; I saw one paper that he had , he told me the nature of the paper; he said it was the dep- osition of Mrs. Herdic ; he gave me the nature of it; he did not read it; I left the room ; lie said it was Mrs. Herdic’s deposition ; I only know from what he said ; he did not give any reason for stating to me what Mrs. Herdic’s deposition was; from Williamsport I moved to Philadelphia ; there my husband died. Re-direct-examination by Mr. Magone : My husband was chaplain of the Episcopal Hos- pital at Philadelphia. Q. Was he an Episcopal clergyman during his professional life ? A. He was, the last years of it. Re-cross-examination by Mr. Smith: Q. Who was it who communicated with you, that led to the arrangement of your coming here ? A. I answered the question before ; Mr. Stack, on Tuesday morning last; I understood from him, then, that I was coming on the side of a party in a lawsuit ; that party was the insurance companies. Q. Whose letter was that to which you have re- ferred ? A. I referred to no letter in evidence; I re- 382 383 384 129 fer to the letter from the agent of the insurance com- panies in New-York ; 1 do not remember the name ; it was Brownson, or some such name. Q. Who gave you, or exhibited the letter to you ? A. I think this is the third time I have answered that question ; it was Mr. Stack, on Tuesday morn- ing, in Philadelphia. Q. What has become of it ? A. As the letter was not addressed to me, I know nothing of its where- abouts. Q. Is Mr. Stack another one connected with the life insurance business, or has he been ? A. Not to my knowledge. 385 It is conceded that proper notice to produce all licenses granted to Dwight during the years 1874, 1875 and 1876, if those are the dates, either by the Board of Excise of Binghamton, or the United States International Be venue officers, has been served on the plaintiffs, and they answer that they find no such paper. 386 Owen J. Coughlin, called as a witness on be- half of the defendants, and sworn, testified as fol- lows : Examined by Mr. Larocque : 1 am the clerk of the Board of Excise of Bing- hamton ; I have the records of the Board here ; on May 14, 1875, a State hotel license was granted to Walton Dwight, on Mr. Dwight’s own application ; on the 20th of May, 1876, he was again granted a tavern, innkeeper’s license to sell liquors and ales; on May 14, 1874, he was granted a hotel keeper’s license on liis own application ; it was the ordinary hotel or innkeeper’s license. 387 130 Benjamin Devoe, called as a witness on be- half of the defendants, and sworn, testified as fol- lows : Examined by Mr. Larocque : I reside at Binghamton ; my office is that of Deputy Collector of Internal Revenue; I was Revenue Collector of the Central States in 1874, 1875 and 1876. Q. Do you know whether licenses were granted through your office, under the laws of the United States, to AValton Dwight, in those years, or either of them, for the sale of liquors ? A. They are not licenses. Q. Whether the revenue tax was paid by Mr. Dwight for the sale of liquors at the Dwight House ? A. Yes, sir. By the Court: Q. During what years do you say ? A. 1874, 1875 and 1876. By Mr. Larocque: Q. He paid a special tax for selling wines, liquors and cigars at the Dwight House ? A. Yes, sir ; lie did. Q. Did you visit the Dwight House from time to time during those years ? A. I was there occa- sionally. Q. Mr. Dwight was the proprietor of that house ? A. I so understood it. Q. What was the fact as to there being wines and liquors for sale at the Dwight House during those times? A. I couldn’t tell you, sir; I havt* no knowledge upon that subject. 388 389 390 131 John H. Armstrong, called as a witness on be- half of the defendants, and sworn, testified as fol- lows : Examined, by Mr. Larocque : I reside in Binghamton ar present; I am at present head waiter at the Hotel Bennett; I was employed at the Dwight House by the late Co]. Walton Dwight from May 1st, 1874, until March 6tli or 10th, 1877, I think it was ; I was with him so long as the hotel was open ; I had charge of the omnibus running to the depot—porter. Q. Was there a wine room kept in the Dwight House at that time? A. There was. Q. Were wines and liquors sold there in bottles ? A. Yes, sir. Q. Were they furnished guests upon call? A. Yes, sir. Q. (Bottle handed witness.) Look at the bottle I now show you, and tell me whether that was the description of bottles kept in that wine room that were used there, and is that one of such bottles ? A. Yes, sir. The bottle referred to bore upon its face a shield with the words, “ Dwight House, Binghamton,” stamped upon it; it was made an exhibit in the cause and marked Number 16. Q. These bottles were made for the Dwight House, at that time, in various sizes? A. Aes, sir. Q. Half pints, pints, quarts and so on ? A. Yes; quarts, 1 believe, was the highest. Q. And was that business of selling wines and liquors put up in packages of that kind conducted at the Dwight House during the whole time of your connection with it? A. Yes, sir. Cross-examined by Mr. Newton: Q. This wine cellar was the only place where there were any bottles of wrine kept that you know of, 391 392 393 132 wasn’t it? A. Yes, sir; that’s all. There was no bar in that house ; no persons came there to drink at the bar or anything of that kind. Q. These bottles of wine, I suppose, were placed upon the dining table when called for, weren’t they ? A. Yes, sir. Q. And only to guests of the house? A. Yes, guests of the house. Re-direct-examination by Mr. Larocque ; Q. Do you mean to say that nobody could buy a bottle of wine or liquor in that wine room except a guest of the hotel ? A. I never saw any sold there. Q. Your business was going back and forth with the omnibus ? A. Yes, sir. Q. Weren’t they sent to the rooms of guests in the hotel? A. Yes, sir; if they wished. Q. You didn’t scrutinize who drank them? A. No, sir ; I didn’t. 394 395 The counsel for the defendants then proceed- ed to read from the examination of Walton Dwight, taken in his bankruptcy proceedings and sub- scribed by him, produced from the hies of the Clerk of the District Court of the United States for the Northern District of New-York. The examination is headed “ U. S. District Court for the Northern District of New-York, In the mat- ter of Walton Dwight, bankrupt. Examination be- fore Hon. L. E. Bowe, one of the Registers in Bankruptcy, at Binghamton, N. Y., Dec. 18, 1877. Appearances for the opposing creditors, Hotchkiss & Millard ; for the bankrupt, Chapman & Lyon and Neri Pine.” It is admitted by all parties that the petition in the matter upon which the bankruptcy was adju- dicated, was tiled April 18, 1877. The examination was commenced on the 18th of 396 133 December, 1877. At page 30, as contained in the book, it reads as follows : “ I think 1 opened the Dwight House in May, 1874, or rather, I furnished part of it then and run it partly as a hotel, and rented part of it in the spring of 1875 ; we furnished the balance of it and rented it for about three years as a hotel. The only business I had was the Dwight House business and livery. The other business was my wife’s business, although I had always kept it as my own account and run it without being particular to keep any account of the Dwight House or my business. When I opened the Dwight House, 1 intended it for a summer resort ; it was kept open the year around, but I relied more upon the summer cus- tom ; the park was used in connection with the Dwight House, and cottages, in fact the whole city had the use of it. I kept no open bar ; liquors were sold in packages ; I should think I had some two or three thousand dollars worth of stock when I opened the house ; the stock was larger then than at any time afterward ; that in- cluded cigars; I took out of my private house some six or seven hundred dollars’ worth of liquors that were not invoiced ; I kept wines, liquors and cigars all through my business. These were bought at different places. I cannot state the amount of busi- ness per annum ; the books will show ; it was some- where in the neighborhood of $25,000 or $30,000 a year ; that is the first year. Then it keeps running down. I used every dollar of the money received from this sale of the Pennsylvania land.” At page 43. “ Q. Did you have an account of the wines and liquors ? A. Yes, sir. Q. When does it commence ? A. It commences June 1, 1874, on page 80, and continues to July 31,1875. Q. Was that apart of the Dwight House business? A. Yes, sir. Q. Does the ledger account show the condition of this after this date ? A. It does not. Q. Where upon your books d< es it show the amount of prop- 397 398 399 134 erty you had in the Dwight House business at the outset? A. It don’t appear on the book, but we have got it in tile bundle of bills. Q. Have you any books showing it ? A. We never charged it on books at all; it never was entered on a book.” At page 111. “ Q. Had you, at the First National Bank, from this time, a bank account in your own name? A. Yes, sir. Q. You say that bank ac- count was really your wife’s bank account ? A. It was. Q. It was her property that went in there ? A. I acted as her agent, with full power. Q. You speak of that account as one of your accounts ? A, I say the Dwight House was the only business I had as a regular business.” At page 135, under date of Feb. 1, 1878 : “ Ex- amination continued. Examined by Mr. Millard. Q. When did the Dwight House open? A. It opened in 1874 ; the 26th of May, I think. Q. And closed when ? A. It closed the 8th day of March, 1877 ?” At page 69. “Q. I understand you made your settlement on your wife about when ? A. It was done in the latter part of June or July, 1868. Q. Froai that time down to the time of the com- mencement of the Dwight House business, had you any business of your own ? A. I had not; not fur- ther than my law suits, general living, and the like of that. I had no business of my own.” At page 95. “ Q. In this connection I want to call your attention to your letter of the 9th of July, to Harper Dusenbury, written from Chicago; the counsel asked you to explain what there -was about what you stated in there about the chattel mortgage being given, when you were a bankrupt ? A. In the first place, I had offered this interest in my father’s estate to the bank, and they declined taking it; then I offered it to Dusenbury, and he declined taking it; then I offered it to my brother Ward, and sold him my interest in the estate for $5,000 or thereabouts, with the right of redemp- tion by paying this amount and interest with- 400 401 402 135 in three years time. I think it ran along until the fall of 1876; I think it was along in the fall of that year I made a further arrangement with Ward ; I said to him ‘ I will withdraw my right of redemption in this estate, provided you will advance to my wife and boy, for living pur- poses, a sum not to exceed $5,000, and you shall advance that at the rate of a thousand dollars a year for live years or thereabouts, or until such time as I could start in business again, and can shift for myself. This arrangement was a verbal arrangement, and Dusenbury knew of it at the time. Things run along for a while, and Dusen- bury got this judgment, and instituted supple- mentary proceedings, and had a Receiver appointed and turned me out of doors. After that I went to Chicago, and tried to do something for myself, and I received a notice in July to the effect that Dusen- bury was about to sell the equity interest in this estate, thereby sweeping the last plank from under me. I had felt all the while before then that my wife had something to fall back upon, provided the bank and Dusenbury did not seize this little amount, and when Dusenbury took that and sold it, I was furious, as any man would be. At that time I believed that any paper, or note or payment of any kind, given for four months before I was adjudicated a bankrupt, was of no value whatever to the party receiving it at that time. I believed that Dusenbury had received such a paper, and I sat down and wrote that letter. I said to him if he proposed to knock the last plank from under me, I would, if possible, throw that into the hands of the assignee, so he would not have the benefit of it. I wrote that letter with the idea that any paper got four months before I was declared a bankrupt, was of no value to the person receiving it, and I wrote to Mr. Dusenbury just what I thought. I came home, and soon found this mortgage of Jan- uary 10th was a renewal of the February mortgage, 403 404 405 136 and that it covered the same property, and was not a preference, and that I could not move on him. When I wrote that letter I meant every word I said, but I found out it was a renewal of the security, and not a preference, within the meaning of the law. Q. I will ask as to the effect this proceeding of Dusenbury’s had upon you, by which he took possession of the hotel, and went on and sold it.; did it make you sick ? A. I was very sick. Q. You were taken away from the hotel in a carriage ? A. Yes, sir. Q. You didn't get out for a long time after- ward ? A. It was just like killing me, and I felt as though I was sold out by everybody and every- thing.” At page 81 : “ Howhnuch money did you take away from the Dwight House? A. I can swear I took less than eight dollars and my wife told me she had less than two dollars, and that is every dollar I had on the face of the earth, that I know of ; I know I borrowed money right along from my brother Ward to pay my hotel bills at the Spaulding House.” At page 11: “Letter from Walton Dwight to Abel Bennett offered in evidence and marked Ex- hibit 1, of this date. Also statement with three sheets attached, of which this is a copy : “Binghamton, N. Y., December loth, 1876. “ To Hon. Abel Bennett, “ President of the First National Bank of Binghamton, N. Y. “My Dear Sir.—I enclose you schedule and summary of facts as I understand them, and propo- sition for the disposition of such matters as exist between the First National Bank, Harper Dusen- bury, Walton Dwight, Anna N. Dwight and George B.Edwards. I enclose you two letters by insurance 406 407 408 137 companies, and have been informed by the officers of other companies that similar action will be taken by them. You will see that it is of the utmost im- portance that immediate action is taken by your bank. Trusting that I will be informed of the re- sult at an early day, I am, very truly, “ Your obedient servant, 41 Walton Dwight.” (Following this was a duplicate of the schedule annexed to the letter. See appendix—Exhibit L ) At page 115. “ Schedule of property in Dwight Place and elsewhere,in the hands of Walton Dwight, with estimates of the present cash value, December 1st, 1876.” At page 18, at the foot of that schedule, the words “ total assets carried out $240,000.” 44 Indebtedness by first and chattel mortgages, covering all items, carried out in the foregoing schedule.” At page 14, at the close of this schedule, the words, “total amount of security indebtedness, $240,050.” Schedule 44 C” follows, entitled 44 Summary,” and shows what the property referred to in the former schedule would produce in the way of rent for the coming year, if all occupied ; the total of that schedule is$15,000. “Theonly other property that earns anything mentioned in the schedules “A” and “B,” is the Binghamton “Daily Times.” This, thus far, has not been self-sustaining. For some time the rentals will be the entire income. This will rather fall below than overrun the $15,000 per annum. The interest on the security indebted- ness at seven per cent, would be sixteen thousand six hundred and fifty dollars per annum. The an- nual.taxes on an assessment of $150,000, on Bingham- ton real estate, will amount to about one and one- half per cent., or twenty-two hundred dollars per annum. Insurance on $100,000 dwelling, £ of 1 per 409 410 411 138 cent, per annum, or $250 ; on Dwight House, \\ per cent, per annum, $750 ; wear and tear, as per sched- ules “A” and “ B,” on $170,000, improved prop- erty, not less than 1J- per cent, per annum, $2,550. (Note.—For the past two years it lias averaged over 2 per cent.) Cost of renting and making the leases, collecting and general taking care of the property, 1 percent, per annum on $150,000, $1,500. Taxes on Western land,about $700 per annum. Total,$24,610. There will necessarily be an annual expenditure above the income, of about $10,000 per year, for some time to come. This does not include taxes on Canada stock, which amounts to about $12,000 per annum. This annual deficit of $10,000 per year, added to the schedule value for three years, would make the property stand in the sum of $270,000, an amount quite as large as the property will bring, judging from the present business outlook.” From page 31. “ It cost me considerable to live. My living expenses were over $18,000 one year. That money that was received from Pennsylvania and the $58,000 received from the insurance on my house that was burned, I should think the most of it was used in building up Dwight Place. The most of it went that way, excepting that we spent and used up as we went along. I don’t re- member of any other source I received any mone}7- from about that time. I didn’t get anything out of the Williamsport and Canada Lumber Company, only it went the other way ; T sold that property to the Williamsport and Canada Lumber Company for $300,000, cash, just what it cost me, and a cer- tain portion of $100,000 worth of stock, which was divided up among the stockholders, pro rata, I did not realize anything out of the transaction ; I sold some of the stock and realized something, I don’t recollect how much ; I sold some of the stock for what it cost me, and some I sold at an advance ; I did not make but very little out of the transac- 312 413 414 139 tion ; I must have sold and realized, out of the stock subscribed for, something like $100,000 ; so far as I was concerned, I made nothing out of the company transaction.” At page 6. kiQ. If you are on the bonds accom- panying the insurance mortgages, is your liability on those bonds included in the statement you made the other day \ Objected to as speculative, and as as- suming a liability not proved. A. I don’t know whether it is or not; the state- ment itself will show ; I don’t think I included it the other day ; that is my recollection of it ; I stated I was indebted to my wife, the other day ; I did not give my wife anything to show for this $50,000, I did not give her any notes ; there was no memorandum made of it at the time or since ; this $150,000 derived from the insurance companies was received from bonds and mortgages given on the Dwight property here in this city ; the title, at that time, was in my wife ; my recollection is that the title has been in her since 1868 or ’69— somewhere thereabouts, that is, the most of it was in her name at that time ; it was conveyed to her by Lewis Seymour ; it was conveyed to Lewis Sey- mour by myself ; it was conveyed for one dollar and other valuable considerations ; I think that is the wording of the conveyance ; I wished to con- vey this property to my wife, and I got Lewis Sey- mour to do it, and 1 presume it was done in a legal way ; the consideration was one dollar from me to Seymour, and one dollar to my wife, 1 think, was part of the consideration, and other valuable con- siderations, love and affection, if you choose to call it; it is my recollection that I conveyed other property to her at that same time,or about that same time ; I don’t know whether it was done in the same way or not ; Isold that Canada stock to Walker,and 415 416 417 140 Walker conveyed it to my wife ; it would be in the same way a settlement; the Pennsylvania lands were conveyed at tile same time ; my wife sold the Wisconsin land to Dodge ; all this property that was in my wife’s name was conveyed to her through third parties, somewhere about that time ; it was a settlement on ni}7 wife.” “ Northern District of New- York, ss. : “Outlie 19th of February, a.d. 1878, appeared personally Walton Dwight, the above named wit- ness, before me, and was duly sworn to the fore- going statement subscribed by him. L. E. Bowe, Register in Bankruptcy.” The counsel for the defendants then read in evi- dence the creditors’ petition in said involuntary bankruptcy proceedings, filed April 7, 1877, at 9 a. m., entitled, “No. 5877. U. S. District Court, Northern District of New York, in Bankruptcy. In the matter of Walton Dwight to be declared a bankrupt. Petition and proof of debts. Neri Pine, solicitor for petitioners, Binghamton, New- York. Filed April 7, 1877, at 9 a. m.” The petition is addressed to the Hon. William J. Wallace, Judge of the District Court of the United States for the Northern District of New-York. The petitioners are Anna N. Dwight, David L. Brown- son and George B. Edwards of the City of Bing- hamton, county of Broome and State of New-York. The demand of the petitioner, Anna N. Dwight, is stated to be upon thirteen separate and several promissory notes of the said Walton Dwight, the sum and amount of which is more particularly set forth in the proof of debt hereto annexed, and amounting in the aggregate to the sum of $75,000 and interest accrued since the date of protest of the several notes therein set forth. The demand of the petitioner, David L. Brownson, being on an account 418 419 420 141 for goods, wares and merchandise, to wit : groceries and provisions, sold and delivered to said Walton Dwight at his request by your petitioner, amount- ing in the aggregate to the sum of $261.88. The demand of the petitioner, George B. Edwards, being for work, labor and services performed by your petitioner for said Walton Dwight at his request, and amounting to the sum of $300.00. The act of bankruptcy alleged is the following : '• On the 10th day of January, 1877, being bankrupt or insolvent, or in contemplation of bankruptcy, or insolvency, of making to Harper Dusenbury, of Binghamton, in the county of Broome and State of New-York, a payment or conveyance to the said Harper Dusenbury, who is liable for him as en- dorser, of all the personal property, goods and chattels of the said Walton Dwight, with the intent by the said conveyance to give a preference to the said Harper Dusenbury, or with the intent by such disposition of his property, to defeat or delay the operation of said act. That said Walton Dwight, within the period aforesaid, and within said district, to wit ; At the city of Binghamton and county of Broome and State of New-York, has been arrested and held to bail under mesne process, issued out of the Supreme Court of the State of New-York, within which State such debtor resides, or has property, founded upon a demand, in its nature provable against the bankrupt estate under said act, and for a sum exceeding $100 and that such process is remaining in force and not discharged by payment or in any manner in’ovided by the laws of such State, applicable thereto, for the period of seven days. That said Walton Dwight, within the period aforesaid, and within said district, to wit: At the city of Binghamton and county of Broome and State of New-York, being bankrupt or insolvent, did procure or suffer his property to be taken on legal process in favor of E. A. Clark, and did suffer and permit such proceedings to be taken there- 421 422 423 142 under; that in compliance with the laws of the State of New-York, in such case made and pro- vided, a Receiver of all the goods, chattels and credits of the said Walton Dwight was appointed, and that said Receiver has taken and now has pos- session of all the real and personal estate of the said Walton Dwight, and that said proceedings were taken with the intent to delay the creditors of him, the said Walton Dwight, or with the intent to defeat or delay the operation of said bankruptcy act. And your petitioners further represent that your petitioners constitute one-fourth in number of the creditors of the said Walton Dwight, whose claims exceed $250,000, and are provable against the said Walton Dwight, in bankruptcy, and that the sum of indebtedness of the said Walton Dwight to your petitioners constitutes one-third of the indebtedness of the said Walton Dwight, and provable against him in bankruptcy. Wherefore, your petitioners pray that he, the said Walton Dwight, may be de- clared a bankrupt, and that a warrant may be issued to take possession of his estate ; that the same may be distributed according to law, and that such further proceedings may be had thereon as the law in such cases prescribes. Anna N. Dwight, (Signed) George B. Edwards, D. L. Brown son. 424 425 U. S. of America, Northern District of New York, ss.: 426 We, Anna N. Dwight, George B. Edwards and D. L. Brownson, the petitioners above named, each for himself, do hereby make solemn oath that the statements contained in the foregoing petition, subscribed by us, are true so far as the same are stated of our own knowledge, and that those mat- ters which are stated therein on information and 143 belief, are true, according to the best of our knowl- edge, information and belief. Anna N. Dwight, (Signed) George B. Edwards, D. L. Brownson. Subscribed and sworn before me, this 4th day of April, a. d., 1877. 427 Charles L. Hall, U. S. Commissioner, Northern District of New York. Neri Pine, Sol icitor for Pet it ioner, Binghamton, N. Y.” Schedules follow. The counsel for the defendants then read in evi- dence the original adjudication of bankruptcy in the matter of Walton Dwight, tiled May 7, 1877. It is dated May 1, 1877, and is substantially as fol- lows : “The cause came on to be tried at the city of Syracuse, in said Court, and due proof having been made of the service of the copy of an order to show cause, and the copy of petition herein mentioned, live days prior thereto, and thereupon, upon con- sideration of the proofs in said cause, it was found that the facts set forth in said petition were true, and it is therefore adjudged, on motion of Mr. Pine, the counsel for petitioner, that Walton Dwight became bankrupt within the true intent and meaning of the act entitled, ‘An Act to estab- lish a uniform system of bankruptcy throughout the United States,’ approved March 2, 1867, and the several amendments thereof, and acts supplemen- tary thereto, before the filing of said petition ; and he is, therefore, declared and adjudged a bankrupt accordingly.” The order further directs the bankrupt to deliver 428 429 144 to the Marshal, as messenger, within live days after notice, a schedule and inventory, and refers the petition to Leroy E. Bowe, register in bank- ruptcy. The counsel for the defendants also read in evi- dence the “Memorandum of first meeting of creditors, order appointing the assignee, and ap- proval thereof, in the case of Walton Dwight, bankrupt.” It was admitted that assignees were appointed, and that the meeting was held on the 7th of June, before Mr. Bowe, and that Charles A. Hull and E. M. Fitzgerald of Binghamton, were appointed assignees. The counsel for the defendants also read in ev- idence, the amended schedule in the matter of Walton Dwight, a bankrupt, filed on March 8, 1878. The first page following the title is as follows : “ To the District Court of the United States, for the Northern District of New York : I, Walton Dwight, the above named bank- rupt, hereby petition said Court, to be allowed to amend his schedules in the above matter as the original statement to the Marshal was not made conformable to the requirements of the rules of this Court, as your petitioner is informed, and that the same was hastily made, originally from the data before him and by examining a large mass of books and papers, he has been enabled to per- fect the said schedule, and prays he may be allowed to file his amended schedule herein, which is here- by annexed. Otego, Feb. 19, 1878. Walton Dwight.” Then follow the ordinary bankrupt’s schedule as 430 431 432 145 amended, In Schedule 4, under the head of “ Debts due to the State of New York for taxes and assessments under the laws of said State” is the statement: “The property in Dwight Place had all been assessed to me. All taxes since June, 1876, are unpaid by me ; amounts I cannot give.” In schedule “R,” first as to books—“ All the books are now in the hands of the assignee, and am advised that all accounts were sold by the Receiver, George N. Dunn. Next as to deeds /—Deed from John G. McDonald, as trustee of A. G. P. Dodge, dated May 25th, 1875, and from Charles T. Hall, dated June 12th, 1873; deed from Frederick N. Smith and wife, dated July 5th, 1873; deed from Frederick Lewis and wife, dated September 16th, 1877; deed from James Neugent, dated No papers of value, large amount of cancelled checks and notes are on hand, but do not under- stand they are of any use or value.” This sched- ule purports to have been verilied before Register Rowe, on the 18th of February. Schedule B, under form 5. Property claimed to be excepted from the operations of this Act and which may be set apart. The Bankrupt states that he has no property claimed as exempt, except clothing for self, wife and child, and watch and chain, all of the estimated value of five hundred and fifty dollars. As to interests in land,, none; personal property, none; property in money,stocks, shares, bonds, annuities, etc., etc., none ; rights and poicers, none; property heretofore conveyed for benefit of creditors, none; what portion of debtor1 s property has been conveyed by deed, assignme7it or otherwise, for benefit of creditors, date and name, none,—except by way of incumbrances as stated in B, 1. Chattel mortgages on personal property in hotel, which has been foreclosed and the property sold ; amount realized about thirty-three thousand dollars. Debts due to petitioner on open account, none ; stocks in corporated companies and interest 433 434 435 146 in joint slock companies—three hundred shares in the Williamsport and Canada Company, par value, fifteen thousand dollars, no market value, and now pledged with Cummings, Allen & Comly, of Wil- liamsport, Pa., to secure indebtedness to them of ten thousand dollars for legal services, if not already sold under power of attorney; two hundred and eighty-three shares of stock in the Independent Sewing Machine Company of Bing- hamton, N. Y., no value, as the company is broken up and stock worthless. Policies of Insurance, none. Unliquidated claims of every nature, with their estimated, value, none. Cash on hand, none. Bills of exchange, promissory notes and, securities of any description, each to be set out separately ; all under this head were delivered to George W. Dunn, as Receiver, appointed by the Supreme Court of the State of New York, in an action of Egbert A. Clarke against Walton Dwight and others, before the filins: of the petition in bank- ruptcy. Stock in trade in my business, hotel keeper at Binghamton, of the value of—same as B.” “ Household goods and, furniture, were all covered by twTo chattel mortgages to Harper Dusenbury— one of the date of February 28th, 1876, and the second in renewal of the first on the same property, Jan. 10, 1877, to secure him for indorsements. All the property covered by these wTas taken by him before the filing of petition. Household, stores were taken same as above. Wearing apparel included common apparel for self, wife and child, five hun- dred dollars; watch and chain, fifty dollars. Books, prints and pictures sold same as above. Horses, cows, sheep and animals, all sold same as above. Carriages and, other vehicles sold same as above. Farming stock and, implements of husbandry, had none. Shipping and shares in vessels, none. Machinery fixtures and, apparatus used in busi- ness, with the place where each is situated, sold under chattel mortgage same as B. Goods of per- 436 437 438 147 zonal 'property of any other description, with the place where each is situated, know of none not above covered.” Then follows a statement of all real estate now in the possession, enjoyment or under the control of Walton Dwight, bankrupt, or zohich is held, by any other person in trust, for his use, or to the possession or the enjoyment of which he was enti- tled at the date of filing the petition, with a par- ticular description of the interest of Dwight, fol- lowed by a list of various sections of land in Wis- consin, covering several pages. At the end of that description follows this: “All the said tracts or parcels of land in the aggregate of about ten thou- sand two hundred and ninety-one forty live hun- drerhs acres of land being the premises conveyed to Walton Dwight by John J. McDonald, Trustee, by deed, recorded in the Register’s Office of Oconto County, June 28, 1875, volume 24, pages 527, &c. Estimated value of above, fifty thousand dollars, if forced to immediate sale. Encumbrances on the above described premises are as follows: A mort- gage for sixty thousand dollars, dated Jan. 1,1869, given by iVnson G-. P. Dodge to Anna N. Dwight, and by said Anna N. Dwight assigned to Harper Dusenbury; also another mortgage from Dwight to Dusenbury, given about February 12th, 1876, to secure Dusenbury for his liability as endorser; also a mortgage to the First National Bank of Bing- hamton, N. Y., given by said Walton Dwight, about Feb. 12th, 1876, to secure said bank for notes made and endorsed by said Waltou Dwight; also an assignment from Walton Dwight and wife to the First National Bank, dated January 18th, 1876, of the original patents for the land. Then follows a description of a certain tract of land in Bingham- ton, the estimated value of which is stated to be $2,000; encumbrances as follows : a mortgage from Walton Dwight to Charles T. Hall for $3,000, to secure the payment of the purchase money of 439 440 441 148 said premises ; also a mortgage to First National Bank of Binghamton, given February 12th, 1876, to secure said bank for notes made or endorsed by Dwight. Then follows a description of another parcel of land in Binghamton, the estimated value of which is stated to be $1,000, the encumbrances on which are stated to be a mortgage for $2,000 to Frederick W. Smith, dated July 15, 1873, given to secure the purchase money ; also a mortgage to the First National Bank (same mortgage as formerly described) ; another parcel of land in Binghamton, the estimated value of which is stated to be $1, and on which it appears there are no incumbrances. Also, the undivided half of certain premises in Washington County, Ohio ; the estimated value is said to be one hundred and fifty dollars ; the statement is added, that it is not incumbered unless by claims for taxes, or has been sold at Receiver’s sale. The last page of these papers reads : “ U. S. of America, j Northern District of New York. \ On this 18th day of February, 1878, before me personally came Walton Dwight, the person whose schedule is contained in the foregoing, marked A & B, and who, being by me first duly sworn, did declare the said schedule to be a full and true state- ment of all the debts of said Walton Dwight, so far as the same are known to him, and the said Schedule B to be a full and true statement of all his estate, both real and personal, so far as the same is known to him, in accordance with the Act of Con- gress, entitled ‘ An Act to establish a uniform system of bankruptcy throughout the United States, and the several acts amendatory thereof.’ L. E. Bowk, Register in Bankruptcy.” Counsel for the defendants then read in evidence 442 443 444 149 tlie]|petition of the bankrupt for his discharge, filed August 4, 1877. Prefixed to this petition is a cer- tificate, dated August 8, 1877, signed Charles A. Hall, E. M. Fitzgerald, assignees. The certificate is as follows : “Northern District of New Torit, ss. : “ We, the undersigned, assignees of the estate of Walton Dwight, hereby certify that the annexed is a complete list of all creditors who have proved their claims against said estate, so far as the same are known to us, and that no assets have come to our hands, as such assignees, or on account of said estate. Binghamton, Aug. 8, 1877. Charles A. Hall, E. M. Fitzgerald, Assignees.” Then follows a schedule of the creditors who are stated to have, before the date of this petition, proved their debts. The petition is addressed to the Hon. William J. Wallace, Judge of the District Court of the United States for the Northern District of New- York, and is as follows : “Walton Dwight, of Binghamton, in the County of Broome, and State of New-York, respectfully represents that on the first day of May last past, he was duly declared a bankrupt under the Act of Congress in such case made and provided ; that he had duly surrendered all his property and rights of property, and fully com- plied with all the acts of the Court touching bankruptcy, and is ready to submit himself to any other and further process and orders that the Uourt may require ; that on the 8th of June, 1877, Charles A. Hall and E. M. Fitzgerald, both of Binghamton, County of Broome, in said District, were appointed Assignees of his estate, and thgt no assets have come to the hands of such Assignees 445 446 447 150 as your petitioner is informed and believes. Wherefore he prays he may have his discharge and the certificate granted according to the Act ot Congress. Dated the 2d day of August, 1877. (Signed) Walton Dwight.” Verified by Walton Dwight, August 2d, 1877, before Philip A. Heyne, U. S. Commissioner. Attached to the petition is the usual order for publication. The counsel for the defendants then introduced in evidence specifications in opposition to dis- charge of the bankrupt, filed on behalf of Charles Bartlet and Arthur Bartlet of the firm of Bartlet Brothers, the First National Bank of Binghamton. L. V. D. Smith, George J. Read and P. L. Tuttle, all of the City of Binghamton, County of Broome, State of New-York, creditors of the above named Walton Dwight. They say that they oppose the granting of such discharge and for the grounds for such opposition tile the following specifications, and attached to these specifications is an affidavit signed by several of the opposing creditors, includ- ing Bartlet, Tuttle, Read and Smith, sworn to the 20th of December, 1877, before F. Stuart, Notary Public. The affidavit is also verified by D. W. Ayres, who signs as director of the First National Bank of Binghamton. Also notice of application for discharge, with petition and affidavits, filed September 9, 1881, the original order was returnable on the 24th of May, 1881, it was not dated ; the hearing upon this notice by stipulation was postponed to June, 1881, and kept alive by consent. The affidavit of Neri Pine, subscribed and sworn to the 15th day of September, 1878, and attached to the petition, was read for the purpose 448 449 450 151 of showing the steps taken in Colonel Dwight’s bankruptcy proceedings, the recitals not to be taken as evidence of the fact therein cited. The affidavit was as follows : “Neri Pine of Binghamton, in said District, being duly sworn, says that he is a counsellor and solicitor of this Court, and appeared for said bankrupt upon his application for his discharge. That upon a hearing for his discharge the last of the evidence was signed on the 28th of February 1878, and the case was submitted to the Register at that time, except that briefs were to be fur- nished, that deponent prepared his brief and the same was ready to submit to the Register about June 1st, 1878, but owing to the pressure of busi- ness upon counsel for the opposing creditor, Mr. S. C. Millard, and the illness of his partner, Mr. Hotchkiss, the briefs were not submitted to the Register until the 30th day of July, 1878 ; but all briefs and papers were on that day submitted, and that no action of the bankrupt or his solicitor was taken after that date in rela- tion to said discharge until the 6th day of Novem- ber, 1878, when deponent received notice from the Register that he had made and signed his report, that said bankrupt was then sick, but hoped soon to be around again, when immediate action would have been taken to procure the confirmation of said report, but on the fifteenth day of November, 1878, the said bankrupt die.d, and that no action has since been taken on behalf of bankrupt/’ 451 452 The counsel for the defendants also read the petition for Walton Dwight’s discharge as fol- lows : 453 152 “ In the DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF NEW YORK, 454 In Bankruptcy. In the matter of Walton Dwight, a bankrupt. No. 5377. To the Hon. William J. Wallace, Judge of the District Court of the United States, for the Northern District of New York : The petition of Anna N. Dwight, of the town of Windsor and county of Broome ; and O. W. Chap- man and Gfeorge F. Lyon, of the city of Bingham- ton, county of Broome, in said district, respect- fully represents, upon information and belief, that on the first day of May, 1877, Walton Dwight, then a resident of the city of Binghamton, in the Northern District of New York, was declared and adjudged by this Court a bankrupt; that there- after, the said Walton Dwight duly applied to the Court for a discharge from his debts ; that specifi- cations against his discharge were filed by certain of his creditors, and an answer thereto filed by said bankrupt; that the said specifications and answers were referred to L. E. Bowe, Esq., one of the Registers of this Court, to take the evidence thereon and report the same, with his opinion, to this Court ; that the evidence was taken thereon, and on the fourth day of November, 1878, the Register made, signed and delivered to the solicitor for said bankrupt, his report thereon, find- ing and reporting in favor of the bankrupt on all the specifications, and the same was, on the 8th day of November, 1878, duly filed with the Clerk of the Court; that on the fifteenth day of Novem- ber, 1878, said bankrupt died, leaving a last will 455 456 153 and testament by which your petitioner, Anna N. Dwight, is appointed executrix, and your petition- ers, O. W. Chapman and George F. Lyon, ex- ecutors of said last will and testament; that said will has been duly admitted to probate, and letters testamentary issued to your petitioners, and are now acting thereunder. Wherefore your pe- titioners pray that a hearing may be had in this Court upon the report of said Register, and the exceptions thereto overruled, and the discharge granted to said bankrupt, as of the date of the signing and delivery of said report, and for such other and further or different relief as to the Court may seem just. And for all further pro- ceedings necessary or proper, and your petitioners will ever pray. (Signed) O. W. Chapman, George F. Lyon, Anna N. Dwight. 457 458 Northern District of New York, Broome County, ss. : 0. W. Chapman and George F. Lyon, two of the petitioners above named, being duly sworn, depose and say : That the matters stated in the foregoing petition are true to the best of their knowledge, information and belief. (Signed) O. W. Chapman. George F. Lyon. Sworn to before me this 14tli day of August, 1879. I). M. Carver, Notary Public. 459 Broome County, ss. : Anna N. Dwight, of Windsor, in said countyy one of the petitioners above named, being duly sworn, deposes and says : That the matters stated 154 in the foregoing petition are true to the best of her knowledge, information and belief. (Signed) Anna N. Dwight. Sworn to this 19th day of August, 1879. 460 G. L. Sessions, Notary Public, Broome County. The counsel for the defendants then read in evi- dence papers produced from the tiles of the Clerk of the United States District Court for the North- ern District of New York and endorsed “No. 6178, In the Matter of Anna N. Dwight, a debtor.” Petition and Schedules A and B, Neri Pine, Solicitor for Petitioner, Binghamton, N. Y., and filed August 27, 1878, at 11a. m. The certificate ofD. F. Gott, Register in Bank- ruptcy, dated Syracuse, August 27, 1878, is to the effect that he has examined the within petition and verification, and also the schedules and inventory annexed thereto, and that the same are in proper form and sufficient in substance to authorize an adjudication in bankruptcy, and the issuing of a warrant under Section 5014 of the Revised Statutes of the United States. The Petition is as follows: “To the Hon. William J. Wallace, Judge of the District Court of the United States for the Northern District of New York: The petition of Anna N. Dwight, of the town of Windsor, in the county of Broome and State of New York and district aforesaid, respectfully represents that she has resided for six months next immediately preceding the filing of this petition at Windsor, within said Judicial District. That she owes debts exceeding the amount of $300, and is unable to pay the same in full. That she is willing to sur- 461 462 155 render her estate and effects for the benefit of her creditors, and desires to obtain the benefit of the Act entitled “An Act to establish a uniform system of bankruptcy throughout the United States, ap- proved March 2, 1867 that the schedule hereto annexed, marked “A,” and verified by your peti- tioner, contains a full and true statement of all her debts. And (so far as it is possible to ascertain), the names and places of residence of her creditors. And such further statements concerning said debts as are required by the provisions of said act. The schedule hereto annexed, and marked “B,” and verified by your petitioner’s oath, contains an accurate inventory of all her estate, both real and persona],assignable under the provisions of said act. Wherefore your petitioner prays that she may be adjudged by the Court to be a bankrupt within the purview of said act, and that she may be de- creed to have a certificate of discharge from all her debts provable under the same. (Signed) Anna N. Dwight. 463 464 UNITED STATES OF AMERICA, Broome County, Northern District of New York. I, Anna N. Dwight, the petitioning debtor men- tioned and described in the foregoing petition, do hereby make solemn oath that the statements con- tained therein are true according to the best of my knowledge, information and belief. And I do fur- ther make oath that I am a citizen of the United States of America, and that I will bear true faith and allegiance to the same. (Signed) Anna N. Dwight, Petitioner. 465 Subscribed to before me, this 25th day of August, 1878. ' G. L. Boon, Notary Public 156 Under the head of “Names and Creditors,” on the first sheet, which is a statement of all creditors to be paid in full, or to whom priority is secured according to the provisions of the 28th section of the act, the word “ none” is written opposite each specification. The next sheet, which is entitled “Creditors holding Securities,” contains the name of the First National Bank of Binghamton as creditor. In the column headed “ Residences and Descriptions,” it is stated that the National Bank of Binghamton, N. Y., hold the notes of petitioner to the amount of $60,000. The date and amount of such notes, with name of maker and endorser, are hereto an- nexed on sheet marked “A-2-A.” The securities are set forth on a sheet marked “A-2-B.” Under the column headed “When and Where Contracted,” appear the words “Binghamton, N. Y.” Under the column headed “ Value of Secu- rities,” appears the word “Doubtful.” In the column headed “Amount of Debts,” are the fig- ures $60,000. Schedule A. 2. A. contains a statement of the several notes referred to on the foregoing sheet. And at the end of that statement appears this paragraph : “ In addition to the mortgages above described the said First National Bank holds mortgages on the property of Walton Dwight for the same notes and indorsements in which this petitioner has joined as the wife as the said Walton Dwight.” The schedule is signed “A. N. Dwight, petitioner.” The sheet entitled “Creditors holding Securities” contains the following in the column headed “ Names of Creditors,” “Atlantic Mutual Life In- surance Company, and also the Continental Life Insurance Company of New-York.” In the column headed “ residence and descrip- tions,” opposite the name of the Atlantic Mutual, the place of business is stated, “ Albany, New- York ; ” then follows this memorandum : “ This 466 467 468 157 is for money borrowed from said company May 10, 1873 ; the security held by said company is a mort- gage for the amount, dated May 10th, 1873, and covering lots 3 and 4 Dwight Place. In the same column opposite the name of the “ The Contin- ental Life Insurance Company ” is the following memorandum : Place of Business “ New-York. This is for money borrowed September lltli, 1873 ; to secure the sum they hold a mortgage of date of September 11th, 1873, on a part of the Dwight Place. This I am informed has been foreclosed and the property sold. The present status of this I do not know.” In the next column headed “ when and where contracted” opposite the name “The Atlantic Mutual Life Insurance Company” appears the entry “May 11th, 1873, Binghamton New-York,” also the memorandum “ Walton Dwight joins in the bonds given with the mortgages.” In the next column headed value of securities, and opposite the entry of the Atlantic Mutual claim are the figures $75,- 000. In the next column headed amount of debts, the amount due the Atlantic Mutual is stated to be $50,000. The amount due the Continental Life In- surance Company of New-York is stated to be $30, 000. There is no entry of the value of the securities representing that claim. The next sheet of Schedule A isentitled “creditors whose claims are unsecured.” And on that sheet appears under the word “ credi- tors,” the words “ The Equitable Life Assurance Society of the United States”; in the column head- ed “ residence and occupation,” their place of busi- ness is stated to be New-York, and the occupation, life insurance; in the next column headed “amount,” is contained the entry $8,595.30, under the head “when and where contracted ” appears the entry “May 6th, 1878, New-York” ; the next column entitled “ nature and consideration of debts, and whether any judgment, bond, bill of exchange, promissory note, etc,” contains this memorandum: “ Is a judgment for deficiency arising upon the 469 470 471 158 foreclosure of a mortgage for $30.01)0 given to the said corporation September Both, 1873, for money borrowed by me, on that date from said corpora- tion. Walton Dwight is also liable on that judg- ment for the amount thereof.” The next sheet of Schedule A, headed “liabilities on notes or bills of discount which ought to be paid by the drawers, makers or acceptors,” contains this memorandum : “ So far as known the petitioner is not liable on any notes, except those to the First National Bank of Binghamton, which are described in Schedule A 2 A of this petition. The petitioner is supposed to to be liable with Walton Dwight on all that paper.” The next sheet of Schedule A entitled “ accommodation paper ” contains this entry “ None so far as known to the petitioner” :—On the first sheet of Schedule B entitled “ interest in lands” appears this entry “ All that tract or par- cel of land in the cityr of Binghamton, County of Broome, and State of New-York, known and dis- tinguished as lots or blocks 3 and 4 in Dwight place, as laid down on a map of said Dwight place, recorded in Broome County Clerk’s Office in Book 86 of Deeds at page 523, and is the premises on which the Dwight House stands.” And opposite this under the head “ Incum- brances thereon if any and date thereof,” “ A mortgage of $50,000 to the Atlantic Mutual Life Insurance Company of Albany, New-York, given May 10th, 1873. Also a mortgage to the First National Bank of Binghamton, New-York, dated February 12th, 1876, to secure notes made or indorsed by the petitioner.” The estimated value of the property is stated to be $75,000. The next sheet of Schedule B, entitled “personal proper- ty,” is as follows : “ Cash on hand, nothing ; bills of exchange, prornissoiy notes, or securities of any description, none ; stock in trade, none ; household goods and furniture, household stores and wearing apparel, and ornaments of the person—wearing 472 473 474 159 apparel for self of estimated value of $200 ; books, prints and pictures, none ; horses, cows, sheep and other animals, none ; carriages and other vehicles, none ; farming stock and implements of husbandry, none ; ships and shares, machinery, fixtures and apparatus in business, with the places where each is situated, none ; goods or personal property of any other description, with the places where it is situated, none.5’ The column foots up $200. The next sheet is entitled “ Clioses in Action,’5 and there is entered in the column headed, “ debts due petitioner on open account, none ; stocks in incor- porated companies and interest in joint stock com- panies,3831 shares of the Williamsport and Canada Lumber Company of Williamsport, Penn. This stock is pledged to Cummins, Allen & Cummins, of Williamsport, and has been sold by them, as I understand, for the amount due them for legal ser- vices for Walton Dwight, and is not supposed to have any market value ; policies of insurance, see Schedule “E,” hereto annexed. The policies are all on the life of Walton Dwight, and payable to peti- tioner at his death ; unliquidated claims of any nature, with their estimated value, none.” The next Schedule “ E” gives a list of these policies, viz : “ Policies on the life of Walton Dwight, payable to the petitioner: Equitable Life Assurance Society of the U. S., $10,000, premiums payable annually ; John Hancock Mutual Life Ins.Co. $629.00,paid up policy; Washington Life Ins. Co., paid up policy, $650.00; Washington Life Ins.Co., paid up policy, $690.00: Germania Life Ins. Co., paid up policy, $413.00; National Life Ins. Co. of the United States, paid up policy, $535.00 ; Universal Life Ins.. Co., paid up policy, $234.00 ; Craftsmen’s Life Ins. Co., paid up policy, $500.00; Globe Mutual Life Ins, Co., paid up policy, $712.00.” The next sheet is entitled “ Property in reversion, remainder or expectancy, including property held in trust for petitioner,” and contains entries as follows : interest 475 476 477 160 in land—do not know of any ; personal property, none ; property in money, stocks, shares, bonds, annuities, &c., none ; and the word “ none” is ap- pended to the designation of every other class of property designed to be stated in the schedule. The next sheet is entitled “A particular statement of property claimed, as excepted from the opera- tion of said act,” and contains the following : “ So much and such part of the policies of insurance on the life of Walton Dwight, which are set forth in Schedule 3 B C, as I am entitled to under said Bankruptcy Act. Clothing for self.” The next sheet is entitled “Schedule of books, papers and writings,” and as to books, the answer is “have none”; deeds—a deed from Lewis Seymour of the property afterwards subdivided and known as Dwight Place; papers, none; the affidavit of the petitioner follows the schedules referred to. 478 479 United States of America, Broome County, Northern District of New York, ss.: On this 25th day of August, a. d. 1878, before me personally came Anna N. Dwight, the person mentioned in and who subscribed the foregoing petition and schedule, marked “ B,” and who being by me duty sworn, did declare the said schedule to be a full and true statement of all her estate—both real and personal—in accordance with the Act of Congress, entitled, ‘ An Act to establish a uniform system of Bankruptcy throughout the United States, approved March 2, 1807.’ 480 The counsel for the defendants then read in evi- dence the adjudication in bankruptcy granted upon the petition last above referred to, which adjudica- tion is endorsed, “Filed August 30, a. d., 1878” ; also an affidavit made by Anna N. Dwight, sworn to August 30, a. d. 1878, before L. E. Bowe, Reg- 161 ister in Bankruptcy, and prefixed to said adjudica- tion, to the effect that she resides within the juris- diction of the United States, has debts provable under the Bankruptcy Act, and has duly tiled the petitions and schedules required by the Revised Statutes, following which is the finding of the Reg- ister in Bankruptcy, L. E. Bowe, as follows : “ I, the undersigned, a Register of said Court in Bank- ruptcy, upon good proof before me taken, do find that the said Anna N. Dwight, of Windsor, County of Broome, State of New York, has become bank- rupt within the true intent and meaning of the Act of Congress, entitled, ‘An Act to establish a uni- form system of bankruptcy throughout the United States, approved March 2, a. d., 1867’ ; ‘An Act supplemental thereto and amendatory thereof, be- ing Title LXI of the United States Revised Statutes, and amendments thereto,’ and I do hereby declare and adjudge Anna N. Dwight a bankrupt accord- ingly.” The counsel for the defendants also read the petition of said bankrupt, Anna N. Dwight, for her discharge, final oath, and Register’s certificate of no debts provable—endorsement showing Neri Pine, as solicitor, and the date of filing November- 19, 1878. The certificate of L. E. Bowe, Register in Bankruptcy, was dated Otego, November 15, 1878 and was to the effect that “ there have been no debts proved and filed with me in the above matter.” Following that was the affidavit of Anna N. Dwight, sworn to the 15th of November, 1878, before Charles W. Loomis, notary public at Binghamton, in the State of New York, the affi- davit being on a blank, and in the ordinary form required on procuring discharge in accordance with the provisions of the statute. The petition for dis- charge was dated on the same day (November 15, 1878), and was signed by Anna N. Dwight, the bankrupt, and was verified on the same day before Charles W. Loomis, notary public. The petition 481 482 483 162 was addressed to the Judge of tlie District Court of the United States for the Northern District of New York, and represents that on the first of September last past the petitioner was duly declared a bank- rupt ; that she had duly surrendered all the prop- erty and rights of property, and fully complied with and obeyed all the directions of the Court touching her bankruptcy, and was ready to submit herself to any further examinations, orders and directions which the Court might require ; that more than 60 days have elapsed since the date of said adjudication in bankruptcy ; wherefore she prays that she may be decreed by the Court to have a full discharge from all her debts payable under- said Bankruptcy Act, and the certificate granted according to the said Act of Congress. Affidavit of verification followed, to which was appended the order of the Bankruptcy Court, dated 19th Novem- ber, 1878, at Buffalo, signed by Winfield Robbins, Clerk of the District Court for said district, direct- ing that a hearing be had upon the petition on the 14th of January, 1879, before the said Court at Syracuse, with the other usual directions provided for by the statute in that order. Counsel for the defendants also read in evidence the record of the appointment of an assignee of said Anna N. Dwight, filed Dec. 5, 1878, in the Bankruptcy Court, Clerk’s Office. Counsel for the defendants also read in evidence the memorandum of first meeting of creditors, at Otego, in said district, on the 3d day of December, 1878, before L. E. Bo we, Register in Bankruptcy, and signed by the Register. The memorandum stated as follows : “This being the adjourned day appointed by the Court for the first meeting of creditors under said bankruptcy, whereof the no- tice required in that behalf has been duly given by publication and service by mail, as appears by the messenger’s return of the warrant and his doings thereon, 1, the undersigned, Register of said Court 484 485 486 163 in Bankruptcy, sat at the time above mentioned, pursuant to such notice, to take the proof of debts and for the choice of assignees under the said bank- ruptcy, and I do hereby certify that the Receiver of the Continental Life Insurance Company, John P. O’Neill, appeared by S. C. Millard, his and filed claim of said Receiver, who resides in the city of New-York, for the sum of $20,590.75, that being the only debt allowed to be voted, and voted for John B. Bowen for assignee, and there being no opposing interests, I appointed John B. Bowen, of Binghamton, in the county of Broome, and State of New-York, as assignee of the estate of said bankrupt ; and it is ordered that he be hereby, and he is appointed the assignee accordingly.” The approval of the choice of the assignee by Judge Wallace, dated December 7. 1878, followed. Also, the “Memorandum of Issuing Assign- ment,” filed Dec. 12, 1878, reciting that the as- signee filed his bond, with sureties approved, and that the Register forthwith issued to him, under the seal of the Court, an assignment of all the es- tate of the said bankrupt. Also, “ Order giving leave to creditors to appear in discharge proceedings,” filed May 12, 1879. The order purported to have been made on the 6th of May, 1879, at a term of the District Court, held at Syracuse, before his Honor, Judge Wallace, re- citing that the cause came on to be heard on a mo- tion for leave to file specifications against the bank- rupt’s discharge, J. B. Brooks appearing in sup- port of the motion, and Neri Pine opposed, and orders that “ The First National Bank of Bing- hamton, and any and all other creditors who have now, or may before that time, prove their debts against said Anna N. Dwight, shall have eight days’ notice of the final examination of said bank- rupt, and shall have the right to examine said bankrupt, and witnesses as to any matters upon which the Register is required to report at such 48? 488 489 164 examination, and that creditors who appear at such examination shall have notice of all further proceedings in relation to the question of the dis- charge of said bankrupts.” Also, “ Report of Register L. E. Bo we on appli- cation of bankrupt for discharge, filed December 1880.” After reciting the proceedings the Register reports as follows: “At the time and place ap- pointed by me for the purposes of the said order, 1 was attended by Mr. Neri Pine, the counsel for said bankrupt, and by said bankrupt; and Mr. John B. Bowen, the assignee heretofore appointed herein, made his report to me that the amount of $609 remained in his hands, but that the settle- ment of the estate will not be retarded by the dis- charge of said bankrnjjt, and I proceeded to take the necessary proofs,” etc. ; that he has examined the papers and finds, and accordingly reports as follows : “The second and third meetings of creditors have not been held, for the reason that the amounts due said bankrupt’s estate on life insurance policies held by her have not yet been collected ; that the discharge of said bankrupt in his judgment will not, in any manner, affect the collection of said policies, or the settle- ment of said estate ; that all papers required by order No. 7 have been filed with the clerk, except the proof of death ; and all papers received from the clerk for examination have been returned to the clerk’s office ; that the assets of the bankrupt were not equal to thirty per cent, of the claims proved against the estate of the bankrupt on account of debts and liabilities of the bankrupt upon which she was liable as the principal debtor, and upon which claims had been proved prior to making the order ; and that the assent of one-quarter in num- ber and one-third in value, &c., &c., had been filed in this case after the time of the said hearing of the application for such discharge on said 14th day of June, 1879; also that the bankrupt had, in all 490 491 492 165 things, conformed in her duty under the Bankrupt Act, and was entitled under the provisions thereof to receive her discharge. Also the “ Decree for Discharge,” filed January 22, 1881, at 9:30 a. m. Also paper entitled “Assent of Creditor to Bankrupt’s Discharge, by the First National Bank of Binghamton, received by me at Otego, this 13th November, 1880, L. E. Bowe, Register.” Being a consent by the First National Bank which had proved a debt in the sum of $60,012.47. 493 Charles F. Tuppee, called as a witness on be- half of the defendants, and sworn, testified as fol- lows : Examined by Mr. Larocque : 494 I am the Clerk of Broome County, and have been served with a subpoena to produce certain judgment rolls ; the papers I hold in my hands are judgment rolls, filed in the office of the Clerk of Broome County, and produced by me from the files of that office. The counsel for the defendants then read in evi- dence a judgment roll in an action in the Supreme Court, County of Broome, in which Harper Dusen- bury was plaintiff and Walton Dwight, defendant, tiled May 21, 1877, at p. m., damages, $21,572.16, costs and disbursements, $88.87, making a total of $21,661.03 ; Edward K. Clark, plaintiff’s attorney. Also judgment roll in an action in the Supreme Court wherein the Mutual Life Insurance Com- pany of New York was plaintiff and Walton Dwight and others were defendants, filed June 6th, 1877, endorsed “Chemung Special Term, June 5, 1877. Amended and ordered entered 495 166 in Broome County Clerk’s office, L. A. Baker, Deputy Clerk,” being record of a judgment in a foreclosure action, the property affected being several dwelling houses situated in the city of Binghamton, known and distinguished on the map of Dwight Place by the lot numbers 7, 8, and 9. The record shows that the defendants, Walton Dwight and Anna N. Dwight, were re- presented by Chapman & Martin as their attor- neys; the report contained in the judgment roll made by Robert Stevens, Referee, shows the amount due the plaintiffs for principal and in- erest on the 5th of June, 1877, the date of the report, was $42,381.77. Also record of the judgment of foreclosure and sale in an action in the Supreme Court where- in the Equitable Life Assurance Society of the United States was plaintiff and Anna N. Dwight and Walton Dwight and others were defen- dants, the action having been brought for the foreclosure of a mortgage on property de- scribed as a certain lot with buildings thereon in Binghamton, being the lots known and dis- tinguished on the map of Dwight Place as lots- 2, 5, and 6 ; the report of the Referee, dated November 26, 1877, signed by John F. Gulliver, Referee, shows that $33,369.56 were due upon that mortgage at the date of that report ; also Referee’s report of sale, and order for judgment for deficiency in the case last mentioned, en- dorsed as filed May 6th, 1878, at 4:10 p. m. ; the report shows that the proceeds of sale were in- sufficient to pay the amount due to the plaintiff, and that the amount of deficiency is the sum of $8,578.54; this report was confirmed by or- der made at Binghamton May 6, 1878, before the Hon. C. E. Martin, Justice, providing as follows: “ It is further adjudged that the Equitable Life Assurance Society of the United States, the plain- tiff, recover of the defendants, Anna N. Dwight 496 497 498 167 and Walton Dwight, the sum of $8,578.54, with interest, from the date of the report, and that it have execution therefor.” The counsel for the defendants then read in evidence papers produced by said clerk, consisting of judgment rolls in eight actions for foreclosure of mortgages, in all of which John P. O’Neill, as Receiver of the Continental Life Insurance Com- pany, was plaintiff, and Anna N. Dwight and Walton Dwight, her husband and others, were de- fendants, numbered from 1 to 8, both inclusive, judgment rolls in all the actions having been filed on the 13th day of November, 1877. Action No. 1 covered a lot on the northerly line of Ferry street, Binghamton, distance 80 feet and 6 inches easterly from Front street, and the report of the Referee shows the amount due upon this mortgage, on the 13th of November, 1877, to be $3,855.79 ; No. 2 covered another lot of land in the city of Bingham- ton, on Dwight Place, and the report of the Referee in that case, which is dated November 13th, 1877, showed an amount due at the date of the report, of $3,855.79 ; No. 3 covered another lot on the westerly side of Dwight Place, and the report of the Referee in that action, which is dated Novem- ber 13th, 1877, shows the amount due at the date of the report to be $3,855.79 ; No. 4 covered another lot on Dwight Place, and the report of the Referee in that case, dated November 13th, 1877, shows the amount due at the date of the report to be $3,855.79 ; No. 5 covered another lot in Binghamton, on Dwight Place, and the report of the Referee, dated November 13th, 1877, shows tiie amount due at the date of the report to be $3,855.79 ; No. 6 covered another lot on Dwight Place, and the amount due on the same the 13th of November, 1877, as appears by the Referee’s report of that date,was $3,855.79 ; No. 7 covered another lot on Dwight Place, and the amount due on the mortgage at the date of the Referee’s report, November 13, 1877, was 499 500 501 168 $3,855.79 ; No. 8 covered seven lots in the city of Binghamton, and the amount due in that case, on the 13th of November, 1877, the date of the Referee’s report, is stated to be $6,059.07. The counsel for the defendants also read in evidence from papers so produced the records of judgments for deficiency in the eight actions last above referred to, entered against Walton Dwight and Anna N. Dwight personally, June 28, 1878, as follows: No. 1, $2,076.27, with interest, from June 19,1878; No. 2, $2,826.77, with interest from the same date ; No. 3, $2,293.76, with interest from May 4, 1878; No. 4, $2,378.39, with interest from June 19, 1878 ; No. 5, $2,393.66, with interest from May 3, 1878 ; No. 6, $2,428.39, with interest from June 19, 1878 ; No. 7, $2,478.39, with inter- est, from same date ; No. 8, $4,415.62, with interest from October 14, 1878. The counsel for the defendants also read in evidence a transcript of the docket of said Clerk, showing a judgment of the Supreme Court to have been entered in Broome County, March 2, 1877, in favor of Egbert A. Clark against Walton Dwight and Harper Dusenbury, for $10,526.34 damages, $21.35 costs, amounting together to $10,547.69. Attorneys, Chapman & Martin. I know Harper Dusenbury ; I think he is an uncle of Mrs. Dwight ; they are both named Dusenbury ; her father’s name was George Dusenbury. 502 503 504 Charles W. Loomis, called as a witness on be- half of the defendants and sworn, testified as fol- lows : Examined by Mr. Larocque : I reside in Binghamton ; 1 am a lawyer; have 169 been practising my profession in Binghamton about ten years; knew Walton Dwight and his wife in the year 1878 ; I think I took his affidavit to some papers on the 15th day of November, 1878 ; I think it was that date. I am not positive as to the date ; I think it was the day on the night of which he died. I think he was in the front room of the ■cottage of the Spaulding House at the time ; I couldn’t say positively whether he was in his clothes or not; I think he was sitting in a reclining chair ; I think his wife was present and another lady ; I can’t say that I know Mrs. Owen, the sis- ter of Mrs. Dwight; I didn’t know the lady who was present; I think nobody else was present at that time; I took there, to have sworn to by Col- onel Dwight, some papers given me by Mr. Pine, and I went there at his request. I have an impres- sion that the papers related to bankruptcy ; I think they were bankruptcy papers ; I don’t know whether or not it was an affidavit required in the proceedings in the bankruptcy case on the applica- tion for discharge ; I didn’t examine them ; I sim- ply went there to swear him ; I couldn’t say that Col. Dwight examined the papers, but I think he had already signed them before I went there, but I am not sure ; he swore to them before me. I think it must have been three or four weeks before that that I had seen him ; at that date I think I met him on the street. I had a little conversation with him on this day when I went to the house ; I was in the room with him at that time, ten minutes per- haps ; I think I spoke with him about his health, and I remember he inquired for my father’s health very kindly ; he seemed to be clear in his mind, and spoke readily and freely ; he seemed quite strong, that is, comparatively strong. I observed no diffi- culty about his speaking ; his voice was quite full, I think ; I don’t think we talked about other topics than the business which brought me there, with the exception of his health and my father’s health. I 505 506 507 170 think the time was about noon ; I think his face was quite flushed, that is my impression now ; it looked haggard ; I think his general expression was haggardness ; he looked like a sick man ; I noticed the flush of his face and the general hag- gard look ; I think he stated to me that he was un- der the influence of stimulants at that time. Cross-examination by Mr. Newton : I think I took tw7o affidavits there that day—the affidavit of Col. Dwight and the affidavit of his wife. That was my impression, blit I am not posi- tive ; I don’t think I saw any one there during my visit besides Mrs! Dwight and the sister, or the other lady I spoke of ; I remained in the room where Mr. Dwight was on that occasion, I don’t think, longer than ten minutes; there might have been some conversation with Mrs. Dwight. Q. Do you remember having any conversation with Mr. Dwight at that time ? A. Yes, sir; I think I do- Q. (Paper shown witness.) I show' you an affida- vit that has been read here, of Mrs. Dwight’s. Was that sw7orn to on that day by her, before vou * A. Y es ; I think it was sworn to in that room. Q. (Paper handed witness.) I show you another affidavit purporting to have been sworn before you on the 15th of November, 1878, signed by Mrs. Dwight. Did she swear to that on that day and on that occasion? A. I think she did, yes ; those are the affidavits I took on that occasion ; I did not examine the papers ; while I was there to get these affidavits I had this interview with him. Q. Do you remember any conversation you had that day with him ? A. I remember something of the conversation, the substance of it. Q. Upon what was the subject of the conversa- tion? A. About his health and his condition of health. 508 509 510 171 Q. Please state Avhat he said and what you said ? A. I could not give the words, I don’t know that I can give anything of the words I said, but 1 can give the substance of what he said to me ; he said he was under the influence of stimulants, and he spoke of the sinking spells and the chill he had been suffering from, arid I think he stated that he was liable to pass away in any of those. Q. Was there any further conversation you re- member? A. Nothing further than inquiries for the health of my father, who at that time was somewhat unwell ; I had known Mr. Dwight quite well during his life at Binghamton, and had often seen him ; on this occasion referred to he was, I think, some- what emaciated as compared with his appearance when I last saw him, that was not very marked ; I had not met him before during his sickness, at his room ; I think he was partially dressed, and in a reclining chair; that is my impression ; I couldn’t say that he said anything to me about his getting out ; I don’t know whether, at the time I went there, Mr. Hermans had been there that day or not. Re-direct-examination by Mr. Larocqne : Q. Mr. Loomis, I understood you to say on your cross-examination that you recognized two affida- vits of Mrs. Dwight’s as having been sworn to be- fore you on this 15th day of November; don’t you also recollect that on the same occasion one affida- vit was sworn to by Mr. Dwight before you? A. I think there was one affidavit; yes, sir. Q. You didn’t mean that those two were the only ones? A. No, sir. Re-cross-examination by Mr. Newton ; Q. Are you positive ? A. That is the best of my recollection. Q. Are you positive any was sworn to by him 511 512 513 172 that day at all ? A. I don’t know that I could say I am absolutely positive one was his. Being subsequently further cross-examined, he testified as follows: Cross-examined, by Mr. Smith : As to the appearance of Mr. Dwight on this occa- sion when I was there, on that 15th of November, I don’t think I can give any more definite answer to that than 1 have ; 1 don’t think I can describe it more definitely than I have ; I am not able to dis- tinguish from the color of the skin whether the stim- ulant may have been applied outside, by rubbing the skin with it, or taken internally ; as to that partic- ular thing I couldn’t tell. Q. Was there any fact you saw bearing on the question as to whether it was an external or inter- nal application? A. No, nothing but his state- ment ; I think he stated he had been taking a sponge bath with some stimulant; I couldn’t re- collect now what it was. 514 515 The counsel for the defendants then introduced in evidence the following applications for insurance made by Walton Dwight, addressed to the compa- nies named, and dated on the days specified—that is to say : Application to the John Hancock Mutual Life Insurance Company, dated August 21, 1878 (marked Exhibit 17). Ax>plication to the Penn Mutual Life Insurance Company, dated August 20, 1878 (marked Exhibit 18). Application to the Phenix Mutual Life Insurance Company of Hartford, Connecticut, dated August 15, 1878 (marked Exhibit 19). Application to the Globe Mutual Life Insurance 516 173 Company, dated August 20, 1878 (marked Exhibit 20). Application to the Germania Life Insurance Company, the defendant, dated August 22, 1878 (marked Exhibit 21). Application to the Mutual Benefit Life Insurance Company of New Jersey, dated August 1, 1878 (marked Exhibit 22). Application to the Northwestern Insurance Com- pany, dated August 18, 1878 (marked Exhibit 23). Application to the Washington Life Insurance Company, dated August 15th. 1878 (marked Exhibit 24). Application to the Berkshire Life Insurance Company, Pittsfield, Massachusetts, dated August 20, 1878 (marked Exhibit 25). Application to the Home Life Insurance Com- pany, dated the 20th of August, 1878, with postal card attached (marked Exhibit No. 26). Application to the Manhattan Life Insurance Company of New-York, dated August 20, 1878 (marked Exhibit 27). Application to the Massachusetts Mutual Life Insurance Company of Springfield, Massachusetts, dated August 20, 1878 (marked Exhibit 28). Application to the National Life Insurance Com- pany of Montpelier, Vermont, dated Binghamton, N. Y., 20th August, 1878 (marked Exhibit 29). Application to the New England Mutual Life Insurance Company of Boston, dated Binghamton, N. Y., August 20, 1878 (marked Exhibit 30). Application to the New-York Life Insurance Company, dated August 20, 1878 (marked Exhibit SI). Application of the same date as the preceding and addressed to the same company (marked Ex- hibit 32). Application presented to the Life Department of the Travelers’ Insurance Company, dated at Bing- hamton, August 20th, 1878 (marked Exhibit 83). 517 518 519 174 Application to the Union Mutual Life Insurance Company of Maine, dated at Binghamton on the 20th day of August, 1878 (marked Exhibit 34). Application to the United States Life Insurance Company in the City of New-York, dated at Bing- hamton, 20th August 1878 (marked Exhibit 35). Application to the Etna Insurance Company of Connecticut, dated 21 August, 1878 (marked Ex- hibit 36). Application to the National Life Insurance Com- pany of the IJnited States of America, Washington, D. C., dated at Binghamton, August 22, 1878 (marked Exhibit 37). Application to the Brooklyn Life Insurance Com- pany, dated 30th August, 1878 (marked Exhibit38). Application to the Homeopathic Mutual Life Insurance Company of New-York, dated Bingham- ton, August 30th, 1878 (marked Exhibit 39). Application to the State Mutual Life Insurance Company of Worcester, Mass., dated September 2, 1878 (marked Exhibit 40). Application (2d) to the Manhattan Life Insurance Company of New-York, dated September 3d, 1878 (marked Exhibit 41). Application to the Metropolitan Life Insurance Company, dated September 4, 1878 (marked Ex- hibit 42). Application to the Knickerbocker Life Insurance Company of New-York, dated 6th September, 1878 (marked Exhibit 43). Application to the Provident Savings Life As- surance Society of the city of New-York, dated 28th August, 1878 (marked Exhibit 44). Application to the Equitable Life Assurance So- siety of the United States, dated Binghamton, Au- gust 20, 1878 (marked Exhibit 45). Application to the Union Central Life Insurance Company, located at Cincinnati, Ohio, dated Sep- tember 7, 1878 (marked Exhibit 46). Application (3d) to the Manhattan Life Insur- 520 521 522 175 ance Company of New-York, dated 9th September, 1878 (marked Exhibit 47). The material portions of the applications so in- troduced in evidence (except the application to the defendant corporation, Exhibit 21, which is insert- ed in full) are contained in the Appendix. 523 Nat B. Freeman, called as a witness on behalf of the defendants and sworn, testified as follows : Examined by Mr. Larocque: I reside in New-York City ; my business is real estate and negotiating- loans ; in 1878 I was a spe- cial agent for the United States Life Insurance Company of New York ; I went to Binghamton in October, 1878, on business for the company ; went to see Walton Dwight ; 1 left New York on the evening of Thursday, October 3d, 1878, and arrived in Binghamton Friday morning, October 4th. I did not find him ; I made inquiry for him at the Spaulding House, and I made inquiry of several parties there whom I don’t remember; I ascer- tained where he was ; he was at Windsor. I went to Windsor on Saturday morning, the 5th of October; I first went to the hotel there, and afterwards to the house of Mr. Dusenbery, George Dusenbery ; when I first went to Mr. Dusenbery’s house I did not find Mr. Dwight in ; I returned to the hotel ; I asked for him at the house of Mr. Dusenbery again at about half past seven in the ■evening; I was there when he came in ; he told me he had been hunting; he said that he had shot some partridges; I met him in the house, and he was in ordinary dress, and appeared to be dry ; he was dry ; his clothing was dry ; I don’t speak -of him physically. 524 525 176 I first asked kirn if he was Mr. Walton Dwight,, to which he said, yes. I then stated ra v business ; I asked him first if he had received a letter from the President of the United States Life Insurance Company ; lie gave me no direct answer ; I had a copy of the letter with me, and handed it to him. (Paper handed witness.) That is a copy of the let- ter which I handed him ; he read it in my presence. I handed him another letter, which lie laid on the table ; 1 picked it up and read it to him. (Paper handed witness.) That is a copy of the letter which I now refer to ; I left the original of that letter with him ; I returned it to him. The letters referred to by the witness were then introduced in evidence. They were marked re- spectively Exhibit 48 and Exhibit 49. When I handed those letters to Mr. Dwight, and read to him the latter letter, as testified to by me, I had with me $86 ; that was the amount of the quarterly premium which had been paid on that policy as I was so informed and so believe ; the money was in United States Treasury notes, what are called legal tenders, I believe Greenbacks ; I offered the money to him. In relation to the sub- ject of returning the policy and receipt, I demand- ed'them and handed him the money and demanded the policy and premium receipt ; he refused to ac- cept it ; he said under no circumstances would lie accept the money or return the policy ; he said he held life insurance—I don’t just remember the amount, but it was about $250,000 ; it might have been that exact amount, or it might have been less. (Paper shown witness.) Q. Does that refresh your recollection ? A. That is entirely correct, $256,000 ; it was taken by me at the time ; he said he expected to secure more insurance during the coming week. Q. What did he say, if anything, on the subject 526 527 528 177 of surrendering any portion of that insurance? A. That he wouldn’t surrender any portion of it. He spoke on the subject of releasing the companies; he said he couldn’t release any of the companies, and gave as a reason that it would compromise his manhood ; lie made his applications in good faith, and fully understood what he was doing, or words to that effect, when he made the application, and he would not surrender any one of the policies, be- cause it would compromise his manhood, and might impair any of the risks, or words to that effect. I made the statement in writing at the time, and have in Court the words. He said he had a direct object in obtaining these policies ; he did not state what the object was; he said that he ex- pected the companies would pay promptly in case he died. I referred again, after he had made that statement, to the misstatements in his application, as understood by the officers of the United States Life Insurance Company, and again made him a tender of the money ; I had laid it on the table and I took it up and handed it to him. In response to that he said that there was nothing in the mis- statements at all ; that he had contracted some years before, while in Canada, a severe cold, with a terrible cough ; that the cough produced a bleed- ing at the nose, and he supposed that blood ora part of it dropped into his ihroat, or fell into his throat,, and it was coughed or hawked up, and that was all there was in it ; that is as near as I could remem- ber his exact words ; he said that lie had been treated with the utmost courtesy and consideration by the United States Company and in stating why he would not surrender the policy, he said he be- lieved that if the policy became a claim, or if he died, that they would pay the loss. He also said that he was in excellent health ; he was quite emphatic in regard to that; he said that at Windsor he had been enjoying himself in hunt- ing and other matters ; he said that on the day be- 529 530 531 178 fore he had swam across the river and back twice ; he spoke of it in the conversation in regard to these misrepresentations, and was convincing me of his particularly good health. Q. How did he appear as to health? A. Very well, I think ; he was a very large man ; his color was good; I could discover nothing in his coun- tenance indicating any trouble about his health at that time. Counsel for the defendants here introduced in evidence a letter of Walton Dwight addressed to James Buell, President of the United States Life Insurance Company, dated Sept. 11,1878. It was marked Exhibit No. 50. Cross-examination by Mr. Smith : I returned to the counsel the paper I had in my hands while I was being examined ; I received two papers from the counsel for the defendants. (The defendants’ counsel then handed the papers to Mr. Smith.) (Paper handed witness.) I recognize that paper ; I saw Walton Dwight during his lifetime not to exceed three times ; two or three times ; lie' was pointed out to me ; I never met him but the once to converse with him ; he was shown to me once or twice; the only interview I ever had with him was on the evening that I have mentioned, at Windsor; then I went to him at the instance of the United States Life Insurance Company ; my business was to have an interview with him, and not to get from him any declaration that I could ; it was not part of my business to procure any oral statement or declaration from Dwight; my orders were per- emptory to get that policy away from him ; it was not my sole business to get that policy from Dwight. Q. Was there anything else besides that, except 532 533 534 179 to make him the tender of the money? A. Yes, to get the policy and receipt for the premium. Q. Did you make any memorandum there on the occasion of the interview at that place, as to what had been said ? A. I did ; right on the spot, and in his presence. Q Is this paper which you have given me, with the other two here, the paper that you made there, at that time ? A. Yes, I made it by the typewriter in New-York ; I dictated it to the operator from my notes; I suppose they are at the company’s office,but I don’t know ; I have no knowledge of them, they were not my property ; my object in taking the notes was not to preserve my memory at all, they were written out in longhand ; I made those notes for the purpose of communicating them to the company ; I did not send that to the company ; I dictated it to a typewriter in the very words of my notes, and my notes were in the precise form of the words used in the conversation ; it was all that was said in regard to the business. Mr. Dwight enter- tained me very kindly and cordially, and we had a half hour’s conversation after his refusal. I took all that was said on the subject of taking that policy back. He and I were talking on that subject not to exceed five minutes. I was a special agent for any of the work of that company that I was ordered to do at any time have been such special agent some four or five years, for this company ; my occupation in that capacity ceased two years and a half after that transaction, or about that. I have not been engaged in other transactions for this company. Q. Have you acted in any other capacity in any wise in connection with Dwight’s life insurance? A. Yes, since I left the employment of the United States Life Insurance Company, I was active for two years and a half, for the past two years and a half I have had nothing to do with them. I have written for in this case. 535 53$ 53T 180 Q. And did some of that composition and pub- lication relate to Dwight’s life insurance? A. Not to recollection. Q. Why do you qualify it ? A. I was intimate with a number of newspaper men. I do not interpose the qualification because of a failure of memory upon the subject. I am quite sure I have never written anything for the papers in connection with the Dwight insurance matters; I have written generally on the subject of life insu- rance, a very little since this case came up. Since my recovery of health I have entered into business again. I left the company on account of severe illness; my present occupation is buying and selling and managing transactions in real estate and negotiating loans on bonds and mortgages. Re-direct-examination by Mr. Larocque : Q. You have been interrogated about this paper I showed you to refresh your recollection. 1 under- stand you to say that this paper was produced by your dictation to a type-writer ; the contents of the notes you had taken during an interview with Col. Dwight? A. Yes. Q. How soon after your return to New-York was that done ? A. I leit Binghamton on Saturday night and arrived in New-York on Sunday morning, and on Monday morning my first business was to ar- range my notes and make that report. Q And did you sign and verify this report on the 7tli of October, 1878? A. I did. I think the date is correct; yes, Monday, the 7th of October; that is quite correct ; and at the time when that report was made and verified by me, the facts were very clear in my recollection. The paper referred to the witness was then introduced in evidence by the counsel for the plaintiffs. It was marked Exhibit K. 538 5S9 540 181 Levi C. Philips, called as a witness on belialf of the defendants, testified as follows : Examined by Mr. Larocque : I reside in the city of Binghamton ; am a minister of the Methodist Episcopal Church ; I have also done something in the way of soliciting life insur- ance ; I knew Colonel Bwiglit, formerly of Bing- hamton ; some years prior to 1878 I first got ac- quainted with him ; it was when he was engaged in the Canada lumber business, before he made his purchase in Binghamton. 1 met Colonel Dwight in the summer of 1878, in a railroad car, and had a conversation with him, on that occasion, on the subject of life insnrance; I can11 recollect exactly the date of that interview, but it must have been some time in June or July. I had been to hold quarterly meeting for the Pre- siding Elder at Osborn Hollow, and was returning to Binghamton, and met him in the car. The con- versation I then had with Colonel Dwight was, ac- cording to my best recollection, in substance, as follows: He said he had been to Chicago, and just re- turned. He went there to make some money, and went in partnership with a couple of brothers who had money but no experience, and he had experi- ence but no money, and he wanted to operate in grain. In two transactions, he said he cleared $30,- 000, and was taken sick, and his partners thought he made money so easy, they could do the same ; and while he was sick they, m their operations, lost the $30,000 he had made, so that left him, he said, without a dollar,and “now,” he says, “ I want some insurance in your company ; I consider it the best company there is,” and he says, “I want ten or twenty thousand dollars insurance in your company. I design to get $50,000 insurance to use as collateral security for a loan, and go back to Chicago and show those fellows that I can make 541 542 543 182 money.” That is as near as I can recollect the con- versation. I did not, at that time, take any steps towards preparing the application for him. The next time I saw him upon the subject, I think, was on the street in Binghamton, about the first of August ; he spoke something about insurance, and I put him off at that time, and nothing was done. I next had a conversation with him, upon the same subject, on the 15th day of August. He came to my office in Binghamton ; he said he had got $15,000 insurance in the Connecticut Mutual, and wanted $10,000 in the Washington Life, and I wrote the application up for him ; the application for a j>olicy was pre- pared at that interview. (Exhibit No. 24 handed witness.) That is the application which I prepared at that interview, and the signature of the witness, L. C. Philips, is my signature. The signatures of Walton Dwight, which appear on this application, were made on that occasion, in my presence. The answers to the various questions, as they appear on this applica- tion, are in my handwriting ; the material of those answers was obtained from his suggestions, and from slips of paper he furnished me, with the an- swers on some of them. In writing down the an- swers, I used his language as far as possible. That is true of each and every answer that was put to> the question on this application, I think. Q. Did he bring with him one or more of the slips of paper on which the form of answers were already written? A. I think he took one out of his pocket with the answer written on ; he wrote out in my pres- ence other of his answers to be copied into the appli- cation. There was not much conversation in regard to it on the occasion when'it was prepared, only he requested me to read it over to him, or else he read it himself—I think the questions he had wricten down he requested me to read, and he looked at his copies as I read it, and compared it. He looked it 544 545 546 183 over before signing. The questions were all read to him, I think ; I read them myself, and he looked it over before signing. Nothing else that I can now recall occurred in that interview. I think we went either that day or the next to the Medical Examiner, with the application and left it with him. I think the signature of Neri Pine, which appears under the head of ‘‘Questions to be answered by a friend,” was put on at Mr. Pine’s office ; I was there when he did it. I understood that Mr. Pine acted as the attorney for Mr. Dwight. Having received this application I for- warded it to the company. I know that a policy was issued based upon it ; I delivered the policy and received a quarter’s premium ; the policy was delivered on the 31st day of August, I think it was, Col. Dwight called at my office in person and took the policy and paid the premium, the premium was paid in greenbacks, I think it was. The application was for $10,000 in eight different policies, I think, aggregating the $10,000. One of $5,000, one of $2,000 or $2500, and six of $500 each. The second might have been for $2,500. I can’t say when I next saw Mr. Dwight and had any conversation with him ; I met him several times ; I met him at one time on the side-walk and had a conversation with him, and he made the re- mark that he looked upon life very differently from what he used to ; he used to want to live and make money, but now he said “if my family were only provided for I would have no desire to live.” I am not sure whether this was before or after I delivered the policy to him, but I think it was after. After this I had an interview with Mr. Dwight at Windsor; I think it was the first week in Septem- ber, as near as I can recollect; Mr. E. S. French, the Superintendent of Agencies of the Washington Life Insurance Company was present; during a part of the time Mr. Dusenbury, brother-in-law of Col. Dwight was also present; I do not know Mr. 547 548 549 184 Dusenbury’s first name. Mr. French first, I think, inquired about his health. He said it was good, never was better. He thumped on his lungs and said he had swam the Susquehanna river once or twice a day and been out on the hills hunting, and was going to swim the river that afternoon with a boy on his back. Then Mr. French told him that the Washington Life Insurance Company had sent him up there to demand the return of the policy, and tendered him the amount of the premium in greenbacks to the amount of $86. Col. Dwight asked him for what reason he made that demand. He told him on account of misstatements in the ap- plication. He asked in what respect, He told him in relation to his health. That he had learned since sending the policy that he had had spitting of blood and rheumatism and cough. Col. Dwight acknowl- edged that it was true, those statements—but that he thought it would not make any difference as he was perfectly sound then, and had been passed by the Medical Examiner. Mr. French told him if he had answered those questions correctly, as asked in the application, the company never would have issued him a policy ; he said he should not return the policy ; he wanted to keep it, or said first, “ you are all right so far as your company is concerned, but I want to keep the policies.” He gave as a reason, that if he should return them, other companies would learn the fact and go back on him, and that lie couldn’t get further insurance that he intended to get. Mr. French insisted on the return of the policies,but I think at that point, or about that time, he took us back into the store. I think we were sitting in front of the store. He said he would acknowledge before his brother-in- law the tender—that he would not accept of it, or return the policies ; that he desired to keep them. At that time, or before we went in, he requested us to say nothing about it, because he said, “I am going to have insurance, and the companies have 550 551 552 185 got to pay it.” I don’t recollect anything further now. The first part of this interview, and the ten- der, and what was said in answer to it, occurred •either while we were sitting on the stoop or stand- ing in front of it, before we took our seats. Mr. Dusenburv was with us during the latter part of the conversation when we went into the store where Dusenburv was ; Mr. Dusenburv was not with us when we were outside. Cross-examined by Mr. Smith : During the period covered by my testimony I was the agent of the Washington Life Insurance Company, and of no other insurance company ; am a minister of the Methodist Church. I belong to the travelling connection,as they call it. I have been living in Binghamton about twenty years continu- ously ; lam what they call a superannuated preach- er ; my health failed, so I was not able to do regu- lar work. I have not been on circuit regularly; 1 have been preaching only occasionally. My age is almost 62. 1 took considerable many appli- cations for life insurance; I couldn't say about how many during the year this application was taken; it would be mere guess work. I don’t recollect now, it might have been fifteen or twenty. They were mostly written up about in the same way, with the exception of age and state of health. I couldn’t remember all the answers in those appli- cations. I had known Col. Dwight, I should think some ten years. I had been the agent of this com- pany about seventeen years. I knew him while he kept the Dwight House. I had been in the Dwight House, not as a guest or customer, but to call on persons who were there, not out of curiosity; went there to visit friends on certain occasions. Col. Dwight used to come into my office frequently. I couldn’t give the date when my acquaintance with Col. Dwight began, but it was about the time that 553 554 555 186 he bought that Canada land. I know something of that transaction. I should think it was some- thing like twelve years ago. I couldn’t say posi- tive. I couldn’t say as to the period over which that business relation extended. Q. Do you remember of putting this question to Dwight : “ Has he any predisposition, either hered- itary or acquired, to any local or constitutional disease?” A. Yes, I remember that question; I think that was answered orally. Q. Are you able now, speaking from memory, to tell what answer he made to that question ? A. I couldn’t be positive; that is as far as I could go. Q. Do you remember putting this question to him : Is the pulse soft and regular ? What is its rate ? Does it ever intermit or become irregular ? ” A. I didn’t put that question to him, I remember that I didn’t. He didn’t say anything upon that subject to me. Q. Do you remember of any question being ad- dressed to him upon the subject of insurance in any other company? A. Yes; I put down in the appli- cation the insurance that he mentioned to me which he then had on his life ; I put them down as he answered them. Q. In the light of these questions are you able to say whether he then stated to you that he had a $15,000 insurance in the Connecticut Mutual, do you remember? A. Yes, I remember. Q. Then it must have been some other interview, wasn’t if? A. No ; it was at that interview; I did not put it down. Q. Did he state it to you in connection with the question as to' other insurance, and at the time when you wrote down the other answers that he gave? A. No, sir. Q. Who put down the figures in answer to that question, that are in red ink ? A. I do not know. 556 557 558 187 Q. Were they in there when the application was made? A. They were not. Q. Have all these marks and entries in red ink in this application been made since the application was executed? A. I think they were; I don’t recollect. Re-direct-examination by Mr. Larocque: Q. (Application handed witness.) The entries in red ink that the gentleman refers to upon this ap- plication here—state whether or not they represent, if you know, this action of the company itself after the application had been presented—were there any of the red ink marks upon the application when it left your hands to go to the company ? A. I think not. Q. They were put on after it passed out of your possession? A. Yes, sir. Q. There was some interrogation about an insur- ance for fifteen thousand dollars in the Connecticut Mutual, which the counsel on the other side made to you upon the cross-examination, and which you desired to explain ? A. When I came to read the answer to that question he said he wished to correct his statement in regard to the Connec- ticut Mutual; he hadn’t yet got the policy, but that it had been sent on and they were having some correspondence in relation to it. That is the reason I didn’t enter it in the application. Q. By the Court.—You mean he said that the policy had been sent on or the application ? A. The policy had been sent on to the agent in Binghamton; that he hadn’t taken it yet; it was held in Harding’s hands for further consultation. The portions in red ink represent simply memor- anda made at the home office. (Note : The counsel for the defendant expressly excepted these portions in red ink on introducing the application in evidence.) 559 560 561 188 Leroy E. Bovve called as a witness on behalf of the defendants and sworn, testified as follows: Examined by Mr. Larocque : I am one of the registers in bankruptcy for the Northern District of New-York ; I reside at Otego, Otsego County ; the proceedings in the case of Walton Dwight, bankrupt, were had before me ; I have in Court my official register of the proceedings before me with reference to the estate ; the date of the reference of that case to me was the 8th day of June, 1877 ; that is the date of the appearance of the bankrupt before me ; I probably received an order a few days before ; the first meeting of the creditors was held on that day ; on that day claims were filed, and the assignees were appointed either on that day or immediately succeeding—I think upon that day ; the assignees were Charles A. Hull and E. M. Fitzgerald, of Binghamton; I can’t tell on what day the report of the appointment was made to the Court; the next step before me after this first meeting was the receipt of the bond of the assignees and their appointment, and the assign- ment made to them, and the transfer of the prop- erty ; that was on the 11th day of June ; the next step was an application for an amended schedule, on the 19th of February, 1878 ; in the meantime there had been an examination in reference to his discharge, but nothing in reference to the estate ; those are all the records I have kept; there were proceedings taken before another Register named Fan ton ; I have been told so. On the 6 th of April, 1877, I certified Walton Dwight’s petition and proofs ; on the 3d of May 1 received a copy of the petition ; on the 16th of May I re- ceived an order of reference to take charge of that case ; on the 26th of May I received a deposit of $50 ; on the 8tli of June i held the first meeting; on the lltli of June received and ap- 562 563 564 189 proved the bond, and issued the assignment. I have not the amount of the bond and could not say who the bondsmen were; but I think it was slight; it was understood there was no estate to pass into their hands. July 1st I made a report of the condi- tion of the estate to the clerk and tiled it with him ; on the 17th of December I held an examina- tion in Binghamton. That is the first examination in which I took any part upon his application for a discharge. On January 1st, 1878, there was a con- tinuation of the same examination at Binghamton ; on the 29tli of January I attended there again, on the same examination, which continued from day to day until the 2d of February, 1878. On the 19th of February I heard his application for an amended schedule. On the 23d of February I made two copies of the schedule and filed them with the clerk. On the 28th of February I read, or attended to the reading of the testimony which I had taken in all those various times, by a steno- grapher, it having been copied and had the evi- dence subscribed by the witnesses ; on the 15th of August, 1878, I received brief and points on appli- cation for discharge from the counsel, Mr. Pine and Mr. Millard ; on the 24th of September I got the ac- count books from the assignees ; on the 30th of Oc- tober I made up a charge for the expense account, that is the fees and expenses for those examina- tions, and for the report. That I believe is about all I have in the matter excepting the receiving of the fees, &c., which I do not find here ; they are on my ledger. I made a report but can’t state when that report was signed by me, excepting I remem- ber this that soon after the report was—I think de- livered, but I am not sure about that, I remember of hearing of his death. Q. Now, with reference to the question of his death, he died on the 15th of November, 1878. Did you keep a press letter book in which you kept copies of your letters ? A. No, sir; I did 565 566 567 190 not, and am unable to find any mem- orandum in any other of my books or papers which will enable me to say when I gave notice to anybody of the fact that my report was made, and what the purport of it was. My fees were not paid, when my report was notified to anybody. I will say that I remember the fact in this and in some other cases I retained the report until some re- sponsible party told me my fees should be paid, and then I delivered them without payment. I have no memorandum of any date when I advised with some responsible party who would pay my fees in this case, and cannot say. Q. With reference to the date of the death of Walton Dwight, which was the 15th of November, 1878, how long before that date, according to the best of your recollection, was it that you notified anybody of the fact that your report was ready ? A. Iam unable to say ; I have no means of know- ing ; I can’t state whether or not my report upon the question of discharge was in the possession of Mr. Dwight’s attorney at the time I heard of his death, or whether it still remained in my posses- sion ; I have no recollection as to that ; my impres- sion is, I had delivered it; 1 do not remember ; I have only an impression now; it has passed from my mind, and I didn’t pay any attention to it; I have no recollection that I could rely on, on the subject, as to where that report was at the time I heard of Mr. Dwight’s death. Q. I desire to call your attention to what you stated a moment ago, that shortly after your re- port was delivered you heard of Walton Dwight’s death? A. Shortly after I made the report; I may have said, after I delivered it; I remember that; it was shortly after I made it; I am not able to saj' now, as matter of recollection, whether the report had actually passed out of my hands at the time I heard of his death. Q. Have you any recollection at this time as to 568 569 570 191 whether any responsible person did nt any time vouch for the fees in that case? A. Yes, sir, I recollect that ; I couldn’t say whether it was Orlow W. Chapman or Neri Pine, or Mr. Chapman through Mr. Pine ; it strikes me they were both named, but I wouldn’t be sure of it. I acted as Register in connection with the bank- ruptcy proceedings in the case of Mrs. Anna N. Dwight; August 30, 1878, I received the order re- ferring it to me ; on the 17th of October I held the first meeting of creditors, and adjourned without appointing an assignee ; on the 19th of November I received some proofs of claims and filed them—I don’t know that that was four days after Mr. Dwight’s death ; that is the date I have here ; 2d of November was an adjourned meeting of credit- ors, which was adjourned to the 19th ; on the 3d of December, 1878, the meeting in which the as- signee was appointed was held ; it had been ad- journed from time to time until the 3d of Decem- ber; on the 10th of December I received the bond approved, and issued an assignment ; the assignee was Brown ; I received and tiled the inventory on the 24th of January, 1879 ; made copies of the as- signments on the 27th of February, but she had an examination upon her application for her discharge, which, 1 think, was the 12th of November, 1879,but I haven’t it stated sufficiently full here so that I can be sure about that; I think that is not correct; I think it was earlier, but I have failed to make a note of it; that is the time I made the re- port for her upon the final examination. She was examined in Binghamton, but then I think the ob- jections were withdrawn, or someting of that sort, as I understand it. The last I had to do with that application, and I think the last there was of it, was November 12,1879, in which I made the final report, and received the fees in the matter of final applica- tion under rule 60 for her discharge; I wouldn’t say positively that that wras the date. 571 572 573 192 Cross examined by Mr. Newton : Q. In the matter of Walton Dwight, you spoke of receiving brief and points August 15, from Pine and Millard ; I would ask you whether Mr. Pine represented the petitioner ? A. He did. Mr.Millard represented the opposing creditors in that case, the First National Bank, I think; in behalf of the opposing creditors he at tended the whole examina- tion and cross-examined the witnesses. In the case of Anna N. Dwight there were filed with me objec- tions by creditors ; I cannot give the date of such action ; those all passed into the Clerk’s office and I have no control of them now. The examination had of Mrs. Dwight in Binghamton, was under those objections, and was attended by Mr. Brooks of Syracuse, of counsel in behalf of the opposing creditors ; he cross-examined the witnesses. The date of the first act on my part in connection with Mrs. Dwight’s application which it was necessary to be reported to the Court was the 30th of August, 1878 ; that was the appearance before me for the purpose of an examination on his application to be adjudged a bankrupt ; probably I had received the order or something of that sort before. At that time an act had been passed repealing the Bank- ruptcy Act, but it didn’t take effect until the first of September in that year. The proceedings in the case of Walton Dwight, and the examinations were all made with reference to the date of this petition. These examinations before me relate to the condi- tion of the bankrupt’s estate at the time of the filing of the petition in bankruptcy. Re-direct-exam(nation by Mr. Larocque : Q. You stated that the hearing before you in the bankruptcy proceedings of Walter Dwight, were attended by Neri Pine in behalf of the petitioning creditors, and by Mr. Millard on behalf of the op- 574 575 576 193 posing creditors? A. Yes, I don’t remember that Mrs. Dwight was one of the petitioning creditors ; I don’t remember; I think Mr. Pine appeared as solicitor for Mr. Dwight on his application for dis- charge ; the brief in support of the application for discharge was sent to me by mail,—Mr. Pine was the solicitor ; whether they were signed by counsel or not, Idon’t remember; I received them from Mr. Pine, I suppose. Q. Then, if I understand you, Mr. Neri Pine was the solicitor for the creditors who put Mr. Dwight in bankruptcy, and also solicitor for Mr. Dwight on his application for discharge ? A. That, I can’t say; my impression is he appeared for Mr. Dwight, and whether his name was to the original papers by the creditors or not, Idon’t know; I understand that the repeal of the Bankrupt Act had no effect upon anjT pending cases. 577 578 Roth B. Owen-, called as a witness on behalf of the defendants, and sworn, testified as follows ; Examined by Mr. Larocque : I reside at Windsor, in Broome county ; have resided there all m}r life ; my husband is living; I am a daughter of George Dusenbury ; I do not reside in the same house with m}- father’s famil3' ; I have my own separate establishment ; that was so in 1878 ; I knew Mr. Walton Dwight in his life- time. I spent the summer of 1878 at Windsor, at my home ; if I was in Binghamton during that sum- mer or autumn, it was 011I37 for a short time ; I have no recollection ; I presume I was over there and back ; I remember Mr. Dwight coming to Windsor in the summer or early autumn of 1878 ; while there he was staying at my father’s, I couldn’t say how many times he came ; his family were there that 579 194 summer; they were staying at Mr. Dusenbury’s ; I do not recollect when Mr. Dwight first came there that season; during the months of September and October he was there several weeks but I can’t tell as to the amount of time lie actually spent there. I was in the habit of seeing him constantly while there; he had no business while there; he was in the house part of the time ; he hunted some, he spent several days hunting ; he spent more or less time in shooting and hunting down to the time he came back to Binghamton. I first heard it sug- gested that Mr. Dwight was not well, after he left Windsor when he was sick at the Spaulding House, I don't recollect when he left Windsor ; 1 should think it might be some time in October, but I can’t tell; I have no means of knowing. I can’t recol- lect how long it was before he died that he re- turned to Bingham tom ; it was several weeks, but I couldn’t tell the exact number, after I first heard that he complained of not being well that I heard he was dead. Q. Did he continue his practice of hunting and shooting down to the time when he re- turned to Binghamton, or was there any change in his habits while he was there ? A. There was no change in his habits. There would be several days he wouldn’t go at all, and then again he would go for a day. I should say the weather was such as we ordinarily have ; some days it rained and some days it was pleasant; I couldn’t say whether it was cold or warm. I was at the Spaulding House once after he returned from Windsor, and before he died, and I was there at the time of his death. He died on a Friday night ; I was there on Wednesday of that week ; Wednesday preceding his death. On that Wed- nesday it was probably between eleven and twelve o’clock, as near that time as I can tell when 1 went to Binghamton—I have no means of knowing, but I should judge it was about that time ; I rode in ; 580 581 o82 195 Windsor is fourteen miles from Binghamton; I started soon after breakfast. When I got to the Spaulding House I think Mr. Dwight came into the room after I entered. I was in a sitting room, and I think he came into that room after I had arrived. That sitting room I speak of was in a detached building—cottage adjoining the hotel. It was on the first floor, and was on the left-hand side of the hall as you entered from out of doors; it was a front room on the left-hand side. As you went in- to the cottage it was the first room on the left-hand side—the sitting room of which I speak—and open- ing into that room in the rear of it was the bed- room ; there was no access to that bedroom except through that sitting-room, so that in goingr in there you went into the hall and into the sitting- room, and in the further end of the sitting-room was a door which entered into the bedroom ; that bed room had but one window in it—the windows on the side of the house—it looked out on the side and not in front; there was only one door which entered into the sitting room. Q. Are you able to say how long it was after you had been in the sitting room on that day when Mr. Dwight came in ? A. No, it was only a few min- utes though; he was partly dressed; he didn’t have on any coat; I think he had a shawl over his shoulders—I am not positive about it; he sat down in the sitting room with me, and we conversed together—no special conversation but only ordi- nary, social conversation of members of the family. Q. How long did you remain in conversation with Mr. Dwight at that time? A. I left before dinner time, so it was but a short time ; he remain- ed there while I was in the house ; when I left he was still in the sitting room, I think, I am not quite sure. I returned to Windsor that afternoon ; I next went to Binghamton, on the 15th of November, arriving at about the same time as I did before ; I 585 581 5$ 5 196 went in the same way as before, by carriage ; Mr. Dwight was in the bedroom when I reached there ; I did not go into the bedroom ; I met Mrs. Dwight in the sitting room ; while 1 was there Mr. Dwight came into the room, dressed at that time in the same way he was before—partially dressed. I remained the rest of that day and night. Q. At what time in the day was it that the barber came to trim Mr. Dwight’s hair or beard ? A. In the forenoon, soon after he came into the room where I was ; it was a colored barber. Mr. Dwight had his liair trimmed, I think he didn’t have his beard trimmed—at least not very much, if any ; lie wore a full beard ; I was in the room while the trimming was being done ; that was before dinner. That room was the general siding room of the family. In the afternoon I was in the room most of the time. After dinner he was in the bed room lying down ; I can’t say that he was partially dressed ; I was in there ; so was Mrs. Dwight; she was there part of the time and part of the time I was alone with him. Q. Did anybody else come in to see Mr. Dwight while you were there on that day ? A. I think somebody called in the evening to see him ; 1 think it was Charles Sears, but I am not positive it was he; I don’t know but I was in Court when Mr. Loomis was on the stand; I did not recognize him as having come in there with some papers then ; I recollect a gentleman coming in with some papers, on business with Mr. and Mrs. Dwight; I recollect he had some papers with him, and had some business with Mr. and Mrs. Dwight; I don’t think there were any papers signed ; my recollection is, he acknowledged sign- ing them ; I am not positive that Mr. Sears called there in the evening ; some one came to the door ; I didn’t see him ; Mr. Dwight was not in the sitting room in the evening ; I recollect Dr. Burr, Jr., coming there about half-past nine; I was not in. 586 587 588 197 tlie room with Mr. Dwight while the doctor was there ; the doctor staid only a few minutes ; I can’t give the time ; T heard the doctor talking with Mr. Dwight while he was there ; I don’t know that I heard Mr. Dwight say to the doctor that he thought he was going to have a good night; he did say so, though, in my hearing ; after the doctor chatted with him a little while, the doctor went away. I saw Mr. Charles Hull there that evening ; he came there perhaps between eight and nine ; I have no means of knowing ; Mrs. Dwight and I left the room very soon after the doctor left; I said good night to Mr. Dwight before I went ; Mrs. Dwight and I occupied the room directly opposite the sitting room, or right across the hall on the other side of the cottage, on the right-hand side. Mrs. Dwight retired at the same time I did ; we both made our toilet for the night after going to our room, and went to bed and went to sleep. We left Mr.Charles A. Hull in the room—in the sitting-room or bed- room, when we retired to our own room that night. I supposed Mr. Hull lived in Binghamton. There was no one else left in the room with Mr. Dwight when we went to bed. The next thing I heard that night after Mrs. Dwight and I had gone to our room and undressed and gone to bed, and gone to sleep, was a knock at the door; I don’t know that I can tell whether anything was said by the person who knocked at the door ; I am not positive whether anything was said or not ; I have no recollection ; Mrs. Dwight got up instantly, and partially dressed herself, and left the room ; after she left, I got up and dressed my- self, and left the room two or three minutes, per- haps, after she left; she left the room a minute or two—as quick as she could dress—after the knock- ing at the door ; she didn’t stop to make an elabor- ate toilet; she went partially dressed, and I fol- lowed in a minute or two. When I left the room I 589 590 591 198 went into the sitting-room opposite, and from there into Mr. Dwight’s bed-room. Q. Who did you find in the sitting-room or bed- room, when you went in there ? A. Mr. Hull, Mr. Spaulding, and Mrs. Dwight, no one else ; this Mr. Spaulding was the proprietor of the hotel ; I recol- lect him as being the proprietor of the hotel. Q. Where were these people when you first went into the sitting-room or bed-room ? A. They were standing in front of the bed. Q. (Diagram shown witness.) Now, on this rough sketch I have drawn, that is supposed to represent the rooms there in the cottage ; does that recall it to you? A. Yes; that is generally accurate. (This diagram was afterwards introduced in evidence and. marked Exhibit 51.) The head of that bed was right there; the letter F represents the head of the bed. When 1 went into this room Mr. Spaulding, Mr. Hull and Mrs. Dwight were standing between the bed and the wash-stand, at the head of the bed. The letter Gr represents the wash-stand, they stood right around there, along beside the bed towards the window, the window was at the opposite end of the bed, and is represented by the letter “H.” I was within a few feet of the bed, I was behind the rest of the persons in the room. I did not hear Mr. Dwight speak or make any motions after I went into that room. Q. What was being done with him when you went into the room, if anything? A. I think Mr. Spaulding was giving him brand}7, I can’t say that they were holding him up ; they stood between me and him ; there were pillows or something that raised his head up ; whether they were holding him up I am not able to say; they appeared to be trying to give him brandy ; I In aid them say it was brandy, and it smelled like 592 593 594 199 brandy ; I did not hear him make any motion or emit any sound while I was in that room. Q. How long did they continue to give him bran- dy ? A. Only a short time—a few minutes, then Mr. Spaulding said he didn’t swallow it, and Mrs. Dwight said we must do something else, and some one suggested hot water to put his hands in, and I rung the bell, which was right close by the door, and the water was brought, and they put his hands into the hot water; no effect was observed after putting his hands into hot water. Q. What next was done? A. I went out of the room then into the sitting room ; I think his hands were in the hot water at the time I left the room ; I did not come back in the room ; Mrs. Dwight stayed in the room. Q. So far as you know, did he ever speak or move,or give any sign of life after that time ? A. No. I do not know at what time the undertaker arrived there that night. While I was in the sitting room, and after I had left the bed room, Dr. Burr, senior, came; I didn’t go back to my own room—I stayed in the sitting room—excepting to go back into my room to get Mrs. Dwight’s dress ; I did not spend the rest of the night there ; I went back into that room and stayed until the under- taker came ; I was in there, 1 think, when the un- dertaker came ; I can’t say when it was that I went back to my own room ; I didn’t look ; I didn’t go back to that room across the hall that night—we went into the room at the end of the hall; I left about as soon as the undertaker came. Q. How long was if after you were first called and went into Mrs. Dwight’s room before the un- dertaker came ? A. I should think it was over half an hour, and whether it was an hour or more than an hour I couldn’t say. Q. What difference in time was there between the arrival of the undertaker and the doctor? and which got there first? A. I can’t tell; I can’t re- member. 595 596 597 200 Q. It was about the same time ? A. Yes ; nearly the same time, I should flunk. Q. 1 don’t think you have stated the hour at which some one knocked on your door ; you said you went to bed about half-past nine, and you re- tired and made arrangements for the night, and had gone to bed and gone to sleep, when some one knocked on the door ? A. I remember some one said it was about eleven o’clock, but I had looked at no timepiece myself. Q. Is that your best recollection of the time ? A. It was about eleven o’clock, I should think. Q. I understand you to say that after you left the sitting-room, after the doctor had been there, and the undertaker had been there, you didn’t go into the room where you had been ? A. No, we went into the room attheendof tho hall ; we went to bed there later, after twelve o’clock ; we were there all the next day ; neither myself nor Mrs. Dwight left the room at the end of the hall until we got up for the next day. I have no personal knowledge of what took place in the sitting room or bed room after I left. This was November 15th; the sit- ting room adjoining Mr. Dwight’s bed room was warmed with a coal stove ; it was a low stove with an open grate, called a Franklin stove ; it was an open fire grate set in a stove; there was a fire in this open grate. I do not recollect who it was that sent for the doctor and undertaker that night ; I recollect hearing something said on the subject of sending for them, but 1 don't know who sent for the doctor. I heard some one say when they went home they could stop for the undertaker, but who it was I don’t know. Q. Between the time you were summoned with the rap on the door, about eleven o’clock, and went into the room, and the time when the doctor and the undertaker arrived, what other persons be- sides yourself, Mr. Hull, Mr. Spaulding and Mrs. 598 599 eoo 201 Dwight were in those rooms ? A. The boy who brought the warm water was there; he was a servant in the hotel, I think; and a Mrs. Spaulding was in the room, and I think there was another lady with her, but I didn’t know who it was ; that was not the wife of the hotel keeper ; I understood that she was the wife of his brother, but I wasn’t acquainted with them. Q. Was there any other person there than those you have mentioned ? A. I remember of seeing no others, and there were no others I knew, if there were any others there. This bed that was occupied by Mr. Dwight was of black walnut, with a high head board, spaces carved out of it—something like that ; the head board was ordinary height ; it was what was called a French bedstead—not a post bedstead. Cross-examination by Mr. Newton : (Diagram shown witness.) The bedroom spoken of was a small room ; the width of the room was such that there was only space beside the bed for a person to crowd between the bed and the wall. The length of the bed was equal to the entire width of the room, less the sj)ace where a person could crowd through ; I should say that the proportion of the room which was occupied by the bed, as I remember, was about a third. Q. Was there another article of furniture in the room besides the bed and the stand you have spoken of ? A. There was a commode there that was located by the window, near the back corner of the room op- posite the door that went into the bed room, be- tween the window and the corner ; opposite the en- trance to r.he sitting room occupied by Mr.and Mrs. Dwight, there was a bed room opposite that hall on this side (referring to diagram) ; that bed room was occupied by Mrs. Dwight and myself on this 601 602 603 202 evening in question—the early part of the night. There was a room in the rear of the sitting room — a bed room, in that portion of the house back of the bed room, where lie died, which 1 occupied that night after the death of Mr. Dwight. This cottage was connected towards the rear of it with the hotel ; this window in the bed-room in which Mr. Dwight died opened out towards the hotel ; I can’t give the distance of this window from the side of the hotel building ; it was near, but in feet I could not give the distance at all ; there were windows upon that side of the hotel looking towards, this bed-room ; there was no fire- place in the sitting room ; it was an open stove, located about at the letter “ J” on this diagram ; and the chimney at this corner marked “K”; I was in Mr. Dwight’s bed room after dark before we retired, and I think there was a light there ; I am sure there was; it was gas ; I should say that the light was situated in about the centre of the room, but I cannot say positively where it was. At the time I came there on the day of his death I remem- ber that he was being bathed by Mr. Hermans ; 1 should say it was a colored barber that trimmed liis beard ; of that I have no positive recollection ; I had talked with Mr. Dwight that day ; during the day he was not at any time dressed any more than 1 have mentioned ; he spoke that day of his feelings and of his health, and how he felt. I was there when Mrs. Dwight left him that night ; I was in the sitting room when she left him; she bade him good night; I noticed nothing when they separated further than their bidding each other good night; I think they kissed each other ; Mr. Hull was there at that time ; after leaving the room Mrs. Dwight and I immediately proceeded to our loom ; we went out on the piazza of the hotel and walked there perhaps fifteen minutes before going to our room ; there was no one with us during that fifteen minutes; then we went to our 604 605 606 203 room ; we retired at once ; after retiring, I think I had no conversation with Mrs. Dwight ; I didn’t lay awake any length of time ; I am not positive whether Mrs. Dwight had or had not gone to sleep. Q. When you were there, either of these days, state whether anyone else had charge of Mr. Dwight, or cared for him, besides his wife ? A. No, sir ; not while I was there, excepting the care Mr. Hermans had of him in giving him his bath. Q. Was that so both days you were there? A. Yes; I don’t think the doctor was there the first day I was there ; 1 do not remember whether the doctor was there the second day, before evening, or not. Q. How long after you came into the room before the other Mr. Spaulding and his wife came in ? A. Not until after I had gone out into the sitting room. I did not know Peter Van Vredenburg ; there was several in the room, but I didn’t know any of them. They were in the sitting room after they all left the bed-room ; there was several in the bed-room ; per- sons came and went. I know where Dr. Burr lives, and I know where the Spaulding House was. Q. How long was it before Burr was there, to your best recollection? A. I don’t know; the doctor came in after they had all left the bed-room ; I can’t tell the time ; I do not know who was sent after him. I think Mr. Dwight ate something for his dinner during the time I was there that day ; I do not remember what it was. Q. You have spoken of Mr. Dwight being at your home, and your village, during the summer ; where had he been in the winter and summer be- fore, do you remember ? A. In Chicago. Q. And during the winter and spring, do you know whether he had been home on any other occa- sion or occasions ? A. I can’t say, positively ; after returning from Chicago that summer, I think he first stopped at Windsor ; he might have stopped a day or two at Binghamton and then come to 607 608 609 204 Windsor; his wife was living at Windsor during the time he was in Chicago, and also during the summer after his return from Chicago ; the boy was at Windsor ; his age now is fifteen ; I had no boy ; there was another boy living there, in the family of my father. Q. Something has been said about Mr. Dwight's swimming there that season, do you know of his going swimming that summer? A. Yes, sir. Q. How many times ? A. Once or twice a week perhaps ; his son Frank and two boys who lived across the street, Harry and Walter Chase, and an- other little boy of the same age, Earny Chaffee, went with him ; I did not know of his going swim- ming except with them ; I don’t know of their going at any time except after supper ; I should think that that continued until about the time he left Windsor, but I can’t say positively. I knew of his going hunting and coming back evenings. Q. Did you ever know of his going swimming after the fatigue of hunting ? A. No. Q. Where did he spend the most of his time when he was there at Windsor ? A. In my father’s house, I think. My father was a farmer and he has a store across the street from his house; he has no place of business besides the store. He had a bank there, but that was in the store. Q. Do you know whether he spent much of his time at the store of your father ? A. He was there probably some; he would go there and stay some and then go back and stay there awhile. I lived less than a quarter of a mile from my father’s house; it was quite close ; on the next street. Q. About how frequently were you at home—at your father’s? A. Every day, and sometimes of- tener. Mrs. Dwight spent her time while she was dwelling there at my father’s. Q. You spoke of your remaining out in the sit- ting room after the death of Mr. Dwight that night—have you any means of knowing what 610 611 612 205 length of time you spent there before you retired again? A. No; I kept no track of time that night, after they found he was dead and left the room, my sister stayed with me until I left. Q. Do you know whether she had any conversa- tion during that time with you ? A. I think not. Re-direct-examination by Mr. Larocque : Q. This cottage in which these rooms were, which was a separate building from the hotel, was con- nected with the hotel by a covered passage in the second story ? A. I know of no other connection than that; they stood detached with the exception of that connection between the twTo houses through tlie upper story.' I don’t know where the office in the hotel was. I was not present when Col. Dwight was bathed ; all I know upon that subject is what some one told me. I don’t think I saw Mr. Hermans thereon the Wednesday on which I went to Binghamton ; I don’t remember of seeing him there that day. Q. When you were asked on your direct and cross-examination about what occurred upon this day upon which Mr. Dwight died, do you recollect now whether you mentioned Mr. Hermans’ name at all as being present there that day ? A. I don’t remember, perhaps I did not. Q. Are you able to remember whether or not you saw Mr. Hermans there that day ? A. Yes ; the first I saw of him he came out of the bed-room ; that was very soon after I got there, he came out of the bed-room into the sitting room ; he remain- ed in the sitting room only a few minutes ; I understood that he left the house then. Q. When you said something about Mr. Hermans being the only one except Mrs. Dwight who had charge of Col. Dwight during his sickness, you only spoke of what other people had told you, didn't you ? Whatever you said upon that subject was the 613 614 615 206 result of what other people told you ? A. \Tes, sir. When Mr. Dwight was staying at Windsor with his wife, they were at the house of Mr. Dusenbury, my father, my house was about a quarter of a mile distant on another street ; I was in the habit of visiting my father's house daily; I was not in the habit of going with Mr. Dwight and these boys when they were going to swim, or when he was going hunting or fishing. I have no means of knowing whether he bathed at other times or swam at other times that when it was announced he was going with the boys. Q. It would have been perfectly possible for him while hunting to have swam the river without tell- ing you? A. Sometimes he couldn’t for he went hunting on the lulls where he couldn’t have swam the river. Q. But you didn’t follow him to know where he went ? A. No, he was sometimes out for the whole day; I know nothing at all about his bathing ex- cept what other people told me. Q. I understood you to say on your cross- examination that according to your recollection you didn’t recollect seeing the doctor there on the occasion of your first visit on the Wednesday? A. I do not remember. Q. Did you or not understand that Mr. Hull had some sort of charge of Mr. Dwight at this time? A. He was to take care of him that night. Q. Do you know whether Mr. Hull had ever been there with Mr. Dwight a night before ? A. I do not know of my own knowledge. Q. You were asked whether or not Mr. Dwight had returned to Binghamton in the winter or spring of 1878 after he had been to Chicago; don’t you know he was there in connection with his bank- ruptcy proceedings? A. I do not know; I couldn’t say positively from my own remembrance. Q. Didn’t you hear he was being examined in bankruptcy in the bankruptcy proceedings in February? A. I probably did hear of it; I knew 616 617 618 207 lie had an application for liis discharge in bank- ruptcy pending. Q. You said something about the light in those rooms on the night of Mr. Dwight’s death ; what sort of light was there in the sitting room ? A. Gas light—chandelier, I think it was from the ceiling. Q. How was it in the room Mr. Dwight occupied ? A. it was gas, and I am not sure but I think that that was from the ceiling also ; but I am not posi- tive. Q. Somewhere about the middle of the room ? A. I should say that it was, according to my recol- lection. I said on my cross-examination that the only furniture in this room consisted of the bedstead, a wash stand that was near the bedstead, and the commode that was in the corner by the window ; there was only one chair in the room ; that is all I remember now ; there might have been one more in during the afternoon, but if it was it was taken out; the medicines were kept on the wash stand ; I noticed there were bottles there ; there were sev- eral. I was not in the bedroom the first time I was there. Re-cross-examination by Mr. Newton : Q. You state you only knew of his going swim- ing from what was said, did you see him and the boys start to go swimming? A. Yes, saying they were going; and I saw them return saying they had been. Q. By Mr. Larocque—YYlien they started upon these expeditions in which it was said they were going to swim, did they go from your house or from your father’s house ? A. From my father’s house. 619 620 621 208 Robert Brown, called as a witness, on behalf of the defendants, and sworn, testified as follows: Examined by Mr. Larocque: I reside in Binghamton, I have been in the army, I had the title of Colonel before I went into the army and after. I was not Colonel in the army but I was afterwards in the military; I came to Bing- hamton in 1867 and have resided there ever since. I was in Binghamton during the year 1878 ; I had connection with the Phoenix Mutual Life In- surance Company of Hartford, Connecticut; an ap- plication for insurance in that company on the life of Walton Dwight passed through my hands in the summer of 1878; it was not written up by me but by a man that worked with me. Henry C. Her- mans was connected with me in business at that time ; he was at work with me under an arrange- ment we made, we were a kind of partners at that time ; I employed him in connection with my busi- ness ; that is the way it came about. Q. (Paper handed witness.) 1 show you an original application dated August 15th, 1878, presented by Walton Dwight to the Phenix Mutual Life Insur- ance Company, which is in evidence as Exhibit No. 19 ; was it your custom to take duplicates of the applications which were made? A. Yes, sir; that is my custom. I didn’t write this application ; Mr. Hermans wrote it up, and I looked afterwards, but never succeeded in finding a duplicate application in my office ; 1 did not have a duplicate of it; I looked a number of times to find it afterwards ; usually when I make an application I always make a copy of it, and whether he neglected it or not I don’t know ; I do not remember ever having had the copy or duplicate of that application ; I recol- lect seeing this, and I recollect having a conversa- tion with Col. Dwight before lie came in to take 622 623 624 209 the policy ; I only recollect when I first saw the application from the date upon this now ; that re- freshes my recollection as to the transaction ; at that time l was acting as agent of the Plienix Com- pany, and the application I have spoken of came to me as being the agent of that company ; it was written up and returned for policj% and was re- turned back ; it came to my office in Binghamton about the 15th ; that is as near as I can recollect; we never got a policy ; that application was for- warded to the company as soon as I received it, and no policy was ever returned. Cross-examined by Mr. Smith : I said I was a Colonel in the military before I went into the army, and afterwards ; when I speak of my services in the army I referred to the war for the Union ; 1 didn’t refer to the war at the tunnel at all; I was in the other war; was not taken a prisoner that I know of ; I remember all about it; I remember all the papers that came into my office at Binghamton as an insurance agent ; I think I have some recollection of them all—not every single paper; I have a great many papers ; I drew my applications mostly ; I think I remember every single insurance application ; I have got them on file ; all that I have taken are there on my books ; I keep all my applications on file, that is, all my policies that I take ; I have a book and register them all; I don’t have any of my applications, I keep copies of all my applications; every one I write up I keep copies of ; I know I never wrote up an application for Mr. Dwight; it is those which I write up of which I keep copies. Q. And as to the other insurance applications that are in this world besides those you wrote upr, I suppose you have no memory ? A. No. 625 626 62? 210 Re-direct-examin ation by Mr. Larocque : Q. In this particular business of the Phenix Mu- tual you were the agent of the company, weren’t you? A. Yes ; I have also said that Hermans was employed by me; and this particular application came to my office as the office of the Phenix Mu- tual Insurance Company ; I recollect the transac- tion. Q. Who personally forwarded the application to the Phenix Mutual on Dwight’s life ? A. Mr. Her- mans forwarded that as my agent. Re-cross-examination by Mr. Smith ; Q. You and Hermans must have had pretty inti- mate relations then ? A. We were working to- gether then in insurance matters, you mean. 628 629 Norman W. Batchelder, called as a witness on behalf of the defendants and sworn, testified as follows: Examined by Mr. Larocque: I reside at Albany, New-York ; have resided there since June, 1876 ; daring the year 1878 was the General Agent for the Mutual Benefit Life In- surance Company, of Newark, New Jersey; my agency for that company began, I think, in 1874; I had a local agent at Binghamton; his name is John B. Bowen ; I received from Mr. Bowen in the summer of 1878 an application for a policy on the life of Walton Dwight, addressed to the Mutual Benefit Company. (Exhibit 22 handed witness.) That is the application to which I refer ; at the time I received this Exhibit 22 I had never heard of Walton Dwight, and had never seen him ; I for- warded the application to the home office, and re- 630 211 ceived a communication from the home office on the subject of the application so forwarded ; it was in the form of a letter; at the time I received that letter I had never met Mr. Bowen, who was the Jocal agent at Binghamton ; I had had corre- spondence with him, but had never met him per- sonally ; on the receipt of that communication from the home office I had some correspondence with Mr. Bowen; I notified him that I was coming to Binghamton ; I made an appointment to meet him; I went to Binghamton, I think, on the 12th of August, 1878; the 12th or 13th, I wouldn’t state positive- ly which; I went by train from Albany; he met me at the depot; 1 made his acquaintance there for the first time; from the depot we went to Mr. Bowen’s office; we passed the post office on the way; Mr. Bowen stopped at the post office. After he had stopped at the post office and before I reached his own office, Walton Dwight accosted me; he intro- duced himself to me, and went with us to Mr. Bowen’s office ; I showed him there the letter T had received from the'Mutual Benefit Home Office ; he sat at the desk in Mr. Bowen’s office and an- swered the letter at my suggestion ; I enclosed the answer he wrote with a letter which I wrote to the company at the same time and forwarded it to them. At that time I had some conversation with Mr. Dwight upon the subject of an intention on his part of applying for life insurance ; I may not be able to state the conversation in the precise words;; the substance of it is: I understood from Mr.. Dwight that he wanted to take out a large amount of insurance; I don’t know that he named the amount definitely; I couldn’t state that he said about how much he wanted ; he said that there were no general agents there at Binghamton and that I seemed to understand the business, and he would place a hundred thousand or such a matter with me or let me place it for him ; I show'ed him a list of all the companies; I had a list; nearly ail 631 632 633 212 the leading companies; we selected such companies as I recommended to him that were good, solvent companies; we looked through the list and checked off the companies that he would like to apply for insurance in; he said he would take out the insur- ance in those companies ; and I didn’t have the forms for the applications with me ; and I was obliged to return to Albany to get those forms from the different companies; there was an arrange- ment made for a future meeting with Mr. Dwight; this arrangement was for me to return when I had got the applications,—the forms in shape,—so we could complete them. I went back to Albany, and set to work to get the blank forms from different people—the agents of other companies; it took me a week, if I recollect right, to get them ; then I went back to Binghamton; that, I think, was the 19th or 20th of August; I had notified Mr. Dwight in advance of when I would be there ; when I ar- rived at Binghamton at that time I went to the Spaulding House ; I found Mr. Dwight there; that was on the 19th or 20th of August, 1878. We at- tended to the business in the Spaulding House, I think it was in the main building ; I am not posi- tive ; I think I slept in a room in the cottage in the rear at some time during my stay there; my im- pression is that the room where this business was done was on the second floor of the main building of the house; I went to work to prepare applica- tions; no one but Mr. Dwight and myself took partin the business of writing out the applications or advising about them; I did not see Mr. Bowen ; no one but Mr. Dwight and myself did the busi- ness. Q. You were engaged in that business in Bing- hamton, this employment of Mr. Dwight’s for how long? A. Two or three days at that time, 1 should think; that time was occupied in writing the applications, filling up these blanks and having the medical examinations. I could not say posi- 634 £35 ■63b 213 tively when I left Binghamton, but I should say about the 23d of August. Down to the time of this first visit to Binghamton in August, 1878, I had neither seen nor heard of Mr. Dwight to my knowledge. I got through with these applications, I think, on the 23d of August. I do not recollect whether or not at that time, any conclusion had been reached by the Mutual Benefit people on the subject of the application which had been first forwarded to them; I had not before this 23d of August received a five thousand dollar policy from the Mutual Benefit on the life of Mr. Dwight—I did receive such a policy ; I returned to Albany with the applications which had been prepared. Q. See whether you can recollect whether these were the applications referred to; was there one for the Mutual Benefit? A. No, not in the applica- tions which I wrote. There were applications for the Berkshire, the Massachusetts Mutual, the Na- tional Vermont, the New England Mutual, the New-York Life, the Penn Mutual, the Travellers, the Union Mutual of Maine, the United States, the Etna, the State Mutual. Those applications were all prepared during these days when I was at Bing- hamton between the 20th and 23d ; I took those applications back with me to Albany; I sent them to the various companies or delivered them to their general agents. I went to New-York the evening or the night of the 24th of August. Q. Before you went to New-York had any ac- tion been taken to your knowledge by die Mutual Benefit on Mr. Dwight’s former application? A. Yes, I think they had issued a policy for five thousand dollars. I made an appointment to meet Mr. Dwight in New-York, before I left Albany. One purpose of making it was to visit the Mutual Benefit office and see if they wouldn’t give him more insurance on the application which he made for fifteen thousand dollars. The application had been made for $15,090 and they had granted a policy 637 638 639 214 for $5,000; lie agreed to meet me in New-York. I left Albany on the night of the 24th, which was Sunday, if I recollect right, and arrived on Monday morning on the 25tli; after arriving I went to the St. Nicholas Hotel; I am not positive that I found him there when 1 ar- rived but I met him there in the forenoon of that day. I do not recollect whether, before I had left Albany to go to New-York, I had an interview with Mr. Winship, of the Union Mutual; I had received a policy from the Union Mutual Company; I took the policy in the Union Mutual Company with me for the purpose of deliv- ery to Mr. Dwight, and collecting the premium; I had also two other policies that had come in by that time on these applications; on the morning of the 25th, when I met Mr. Dwight at the St. Nicho- las Hotel, in New-York, I had these policies in my possession, and I handed him the policies and he looked at them and said he guessed they were all right; he said that if it didn’t make any difference with me, or if I didn’t insist upon it, he would pre- fer to have me hold the policies or keep them until I got the others together, and gave as a reason that he was not going back to Binghamton—he was intending to be absent for several days, and he didn’t care about carrying the policies around with him, and if it made no difference to me lie wouldn’t pay the premium then, but wait until I got them all together; and he returned to me the policies; they remained in my possession. I had my wife with me on this trip. On that same day I went with Mr. Dwight to the Mutual Benefit office; I think we went that same day, Monday ; the next day being Tuesday 1 went in the afternoon with Mr. Dwight to Brighton Beach, where we spent the evening ; we met at Brighton Beach the ex-Vice-President of the Mutual Benefit, Mr. Gobelle ; and we returned again that night to the St. Nicholas Hotel ; it was quite late when we got there ; I should think elev- 640 641 642 215 en o’clock—perhaps half-past eleven ; Mr. Dwight and I entered the hotel together ; we went to the office up to the desk together ; the clerk there handed me a telegram (paper handed witness) ; that is the despatch that was handed me at that time ; Mr. Dwight was beside me when the dispatch was handed to me ; I handed it to him to look at. The counsel for the defendants then introduced the telegram referred to by the witness in evidence. It was marked Exhibit 52. This was received on the 26th of August; I showed this dispatch to Mr. Dwight; W. Frank Winship was the general agent at Albany of the Union Mutual of Maine—the person from whom the Union Mutual policy had come to my posses- sion, and the person who had entrusted it to me to deliver and collect the premium ; when I showed this telegram to Mr. Dwight, lie said it was all fool- ishness ; he told me to telegraph him that the poli- cy was delivered ; he went with me to the telegraph office immediately after I had showed him this dispatch (paper handed witness) ; I recognize that paper; the telegraph office we went to was on Broadway, above the St. Nicholas Hotel; he told me to go with him to the telegraph office, and I went; when we got there he said “ telegraph him” so and so ; I have preserved the copy of what lie said to me ; that is the copy ; I did what he told me to do ; and I then sent that dispatch, the lan- guage of which was Mr. Dwight’s. The counsel for the defendants then introduced in evidence the telegram referred to by the witness. It was marked Exhibit No. 53. While we were in the telegraph office Mr. Dwight said we had better send another dispatch to the president of the company, Mr. DeWitt ; he said lie knew Mr. DeWitt, and he said it was only some 643 644 645 216 of his damned foolishness—the policies were his; a dispatch was prepared to be sent to Mr. DeWitt while he was still in the telegraph office; Mr. Dwight dictated to me the dispatch, and I wrote it from his dictation ; I preserved a copy of what he wrote (paper handed to witness) ; that is a copy of what I then wrote at his dictation. The counsel for the defendants then introduced the dispatch referred to by the witness in evi- dence. It was marked Exhibit1^. That dispatch was sent to Mr. DeWitt on that occasion ; that business being disposed of we re- turned to the hotel; it was then about midnight, I should think ; I parted with Colonel Dwight imme- diately on returning to the hotel; no definite time was appointed for my going to Binghamton on the subject of the policies ; I was to communicate with him ; at the time of these transactions on the night of the 26th nothing had, to my recollection, taken place between me and Colonel Dwight with refer- ence to the payment of the premiums on the Union Mutual policy, or the custody of the policies other than what I have stated ; after the policies had been shown to Colonel Dwight, and returned to me on the morning of the 25th of August, as has been testified to by me, they next went out of my cus- tody on the 6th of September. Q. At the time when this dispatch was received, and these dispatches dictated by Mr. Dwight were sent in answer, where were the policies ? A. I had them; I don’t remember whether I had them in my pocket, or bag, or satchel ; they re- mained in my custody until the 6th of September ; up to that time no premium had been received by me from Colonel Dwight on account of that policy of the Union Mutual, nor any money or valuable thing in consideration, nor had the same been re- 646 647 648 217 ceived from any one else than Colonel Dwight,1o my knowledge. Q. Yon would know if they had been paid ? A. 1 should be likely to ; yes. Q. (Paper handed witness.) When did you next hear from Mr. Dwight? I show you a memorandum which may refresh your memory? A. The 4th of September ; I heard from him by ordinary means of communication—by telegraph ; I have in my hands the telegram I received from him. The counsel for the defendants then introduced the telegram referred to, in evidence. It was marked Exhibit No. 55. I answered that dispatch, and kept a copy of what I sent. (Paper handed witness.) That is a copy of what I sent. The counsel for the defendants introduced the copy of telegram referred to in evidence. It was marked Exhibit No. 56. I went to Binghamton on the 6th, and found Colonel Dwight there ; I found him at the Spauld- ing House; 1 had then received most of the rest of these policies for which applications had been prepared by me ; I mentioned that fact to Colonel Dwight; then we went to Mr. Pine’s office; Mr. Dwight invited me to go to Mr. Pine’s office with him, and I understood Mr. Pine to be a friend of Mr. Dwight’s ; I went to Mr. Pine’s office in com- pany with Mr. Dwight; I delivered him the policies I had ; I think there were nine policies, amounting in the aggregate to $85,000 of insurance; Mr. Dwight examined the policies there ; I think Mr. Pine examined the policies ; they were there to- gether in the office, and they both went over them ; I couldn’t say positively just what Mr. Pine said; he appeared to be examining them in connection with Mr. Dwight ; at the close of the examination Mr. Dwight settled the premiums and paid me ; my recollection is that he gave me about $400 in 649 650 651 218 currency and §350 in two checks,—Mr. McDonald’s checks ; I understood that Mr. McDonald was a brother-in-law of Mr. Dwight’s ; 1 could not state positively the amount of the checks, nor on what bank they were drawn, nor to whose order they were made payable on the face, 1 could not state whether Dwight or Pine endorsed them or either of them before they were handed to me. That was the first thing I had received from any source on account of premiums on those policies or either of them. Cross-examination by Mr. Newton * I was born in 1831, the 24th of October, accord- ing to the family record ; I was agent for the New Jersey Mutual Benefit Company from 1876 ; I was previously to that engaged in the insurance busi- ness ; I was in Boston, Massachusetts, about a year, and a year and a half I was located at Fair Haven, Vermont ; was in the insurance business in those places ; I should say those years were 1874 and 1875 ; I don’t remember whether I commenced in 1873 or 1874 ; at those places 1 was agent of the Mutual Benefit of New Jersey ; and I resided with my family at both those times in those places; I moved to Albany from Fair Haven, Vermont, and have since resided at Albany ; I continue in that same business as agent for the United States Life, of New-York City ; I don’t know when my connec- tion with the New Jersey Company ceased ; it was in 1879 or 1880 ; before that ceased 1 - had no other business than as agent of that company ; since that time 1 have been connected, for a short time, with the Northwestern ; I was with the Northwestern, I think, a year and a half ; I was connected with the New-York Life a short time immediately after my connection with the New Jersey Company ceased ; I am now connected with the United States Life; I was an agent for the Equitable of New-York City for a 652 653 654 219 few months while I was residing in Boston ; 1 don’t remember of being connected with any other com- pany ; I have not had two of those at a time at any time. Before I went into insurance, 1 lived in Wisconsin live years, and in Michigan thirteen years ; was in the marble business there ; my first residence west was in Wisconsin ; I have lived in Janesville, Hock County, Wisconsin, and Ypsilanti, Michigan; 1 went from Pair Haven, Ver- mont, west. I couldn’t say, positively, from whom I got the blank application in the Berkshire Insu- rance Company; I couldn’t tell where I got one for the Insurance Company of Worcester—I don’t re- member ; I got the blank of the Penn Mutual from their agent in Albany, Hiram Blanchard, I think ; I don’t think I got it of Blanchard himself ; 1 think he was away from home; I got it at his office ; I couldn’t tell you the name of the person ; I got the blank of the Travellers’ Insurance Com- pany from their agent at Albany, George Sherman— I remember that; I got that of the Union Mutual of Maine from Mr. Frank Winship at Albany ; that of the New England Mutual, I can’t say, positively, from whom I got it; I can’t say, positively, from whom I got the blank of the National Vermont Insurance Company ; I got that of the United States from E. E. Clapp, then agent or sub-agent at Binghamton ; that of the Etna of Hartford from C. D. Paul ; I don’t .know what “C ” stands for in his name ; I couldn’t say where I got that of the State Mutual. Q. How happens it that you don’t remember these things? A. Well, I was getting quite a number of applications and I don’t remember distinctly all that transpired or was said or done at that time; my memory is not remarkably good. Q. Do you know from whom you received the two policies other than the New Jersey Mutual, 655 656 657 220 that you carried to New-York ? A. No, sir, I couldn’t swear positively. Q. Do you know which two policies, received through your hands, those two were ? A. Yes, they were those of the Berkshire and the National of Vermont. The Berkshire has its general office at Springlield ; that is my recollection of it ; I couldn’t say positively on what day I got that policy ; I do not remember what date that policy I had bears, only as I refer to my correspondence and my record of it ; I have no recollection. The others besides the Berkshire that I carried to New- York, were those of the National Vermont and the Union Mutual; the National Vermont has its office at Montpelier, Vermont; I did not go to Montpelier, Vermont; I cannot tell from recollec- tion, on what day I received its policy. Most of these nine, ten or eleven applications which I took home with me on the 23d, were in my hand- writing. Q. So far as Dwight’s statement was concerned, were they all in your handwriting? A. I think they were all or nearly all ; there might have been an exception ; I think that the application in the Travellers’ was filled in by the agent of the Travel- lers’, Mr. Sherman of Albany ; lie was not in Bing- hamton. Mr. Dwight did not fill any of those ap- plications, to my knowledge or write any of them, only his signature. The counsel for rhe defendant then introduced in evidence certain policies of insurance covering the life of Walton Dwight, issued on the applications in evidence, and produced by the plaintiffs, that is to say : Policy of the Brooklyn Life Insurance Company, of New-York, for $5,000, together with premium receipt, both dated 31st August, 1878 (marked Ex- hibit 57). Policy of the Berkshire Life Insurance Company, 658 659 660 221 for $10,0 )0, together with premium receipt, dated 24th August, 1878 (marked Exhibit 08). Policy of the Homeopathic Life Insurance Com- pany, of the City of New-York, for $5,000, dated the 4th day of September, 1878 (marked Exhibit 59). Policy of the Manhattan Life Insurance Com- pany of New-York, for $5,000, dated August 24, 1878 (marked Exhibit 60). Policy of the Manhattan Life Insurance Company of New-York, for $5,000, dated the 27tli day of August, 1878 (marked Exhibit 61). Policy of the Manhattan Life Insurance Company of New-York, for $5,000, dated September 4, 1878, together with a premium receipt attached (marked Exhibit 62). Policy of the Metropolitan Insurance Company of New-York, for $10,000, dated September 1, 1878, together with the premium receipt attached {marked Exhibit 63). Policy of the Mutual Benefit Life Insurance Com- pany of New Jersey, for $5,000, dated the 1st of August, 1878 (marked Exhibit 64). Policy of the Mutual Benefit Life Insurance Com- pany of New Jersey, for $5,000, dated the 1st day ■of August, 1878 (marked Exhibit 65). Policy of the National Life Insurance Company •of Montpelier, Vermont, for $10,000, dated August :23d, 1878 (marked Exhibit 66). Policy of the New England Mutual Life Insur- ance Company, for $10,000, dated September 2, 1878 (marked Exhibit 67). Policy of the New York Life Insurance Company for $10,000, dated the 27th of August, 1878, with copy application attached (marked Exhibit 68). Policy of the North Western Mutual Life Insur- ance Company, for $5,000, dated August 23, 1878, copy application being attached (marked Exhibit 69). Policy of the North Western Mutual Life, for 661 662 663 222 $3,000, dated August 23d, 1878, a copy of the ap- plication being attached (marked Exhibit 70). Policy of the same Company for $1,000, dated August 23, 1878, attached to which was copy of the same application (marked Exhibit 71). Policy of the same Company for $5,000, dated 23d of August, 1878, attached to which was a copy of same application (marked Exhibit 72). Policy of the State Mutual Life Insurance Com- pany of Worcester, Massachusetts, for $10,000, dated September 1st, 1878 (marked Exhibit 73). Policy of the Travellers’ Insurance Company, life department, of Hartford, Connecticut, for $10,000, dated August 28th, 1878, attached to which was a memorandum receipt, dated August 28th, 1878 (marked Exhibit 74). Policy of the Washington Life Insurance Com- pany, for $5,000, dated 19th August, 1878 (marked Exhibit 75). Policy of the same company for $500, dated 19th August, 1878 (marked Exhibit 76). Policy of the same company for $500, dated August 19th, 1878 (marked Exhibit 77). Policy of the same company, for $500, dated 19th August, 1878 (marked Exhibit 78). Policy of the same company, for $500, dated 19th August, 1878 (marked Exhibit 79). Policy of insurance of the same company, for $2,000, dated 19th August, 1878 (marked Exhibit 80). Policy of the same company, for $500, dated 19th August, 1878 (marked Exhibit 81). Policy of the same company, for $500, dated 19th August, 1878 (marked Exhibit 82). Policy of the Manhattan Life Insurance Com- pany for $5,000, dated 10th September, 1878 (marked Exhibit 86). Policy of the Massachusetts Mutual Life Insur- ance Company of Springfield, Massachusetts, for 664 665 666 223 $10,000, dated the 3d day of September, 1878 (marked Exhibit 87). Policy of the Northwestern Mutual Life Insur- ance Company, for $1,000, dated August 23d, 1878 (marked Exhibit 88). Policy of the United States Life Insurance Com- pany of the city of New-York, for $10,000, dated August 31, 1878 (marked Exhibit 89). Policy of the Etna Life Insurance Company of Hartford, for $10,000, dated August 24th, 1878, countersigned at Albany, September 6th, 1878 (marked Exhibit 90). Policy of Insurance of the Union Mutual Life In- surance Company of Maine, for $10,000, dated 23d of August, 1878 (marked Exhibit 91). The material portions of these policies are con- tained in the Appendix. The counsel for the defendants also introduced in evidence the will of Walton Dwight, marked Ex- hibit 92. 667 668 The counsel for the defendants further to main- tain and prove the said issues on their part, called as a witness, Charles H. Porter, who being duly sworn, testified as follows: Examined by Mr. Russell: . I reside in Albany ; have lived there about 26 years ; I am a physician and chemist; have been such for about 26 years; during my professional practice as physician and chemist I have practiced at Albany ; in addition to being a practicing physi- cian, surgeon and chemist, I have been a teacher in the Albany Medical College; have taught there three or four years, commencing about 1854 ; and in the Vermont Medical College two years; since that time I have not been connected with any medi- 669 224 cal college ; in my professional practice I have had occasion to assist in post mortem examinations, probably between 50 and 100. In November, 1878, I was called to see Colonel Walton Dwight, by Mr. W. F.Winship,of Albany ; Mr. Winship was agent of the Union Mutual Life Insurance Company of Maine, at Albany ; I was requested by him to go to Binghamton and see Colonel Walton Dwight ; I left Albany on the 6th of November and arrived at Binghamton on the morning of the 7tli of Novem- ber, 1878, I am not certain at what hour I arrived but I should think six or seven o’clock ; I first saw Mr. Dwight at his apartments at the Spaulding House ; before seeing him there I went to the Ex- change Hotel and to Dr. George Burr’s office ; I think I know who the physician of Mr. Dwight was ; I derived my knowledge of who the physician of Mr. Dwight was from Colonel Dwight himself ; that physician was Dr. George Burr. I went and saw Dr. George Burr, and proceeded with him to see Mr. Dwight ; we found Mr. Dwight in his apartments at the Spaulding House, at 8:35 a. m. I talked with Colonel Dwight and Dr. Burr and ex- amined Colonel Dwight. I may state that the conversation that took place between Colonel Dwight, Dr. Burr and myself was fragmentary in its character and was not continu- ous, it was partly in the form of narrative and partly in the form of questions and answers ; after being introduced to Colonel Dwight he indicated that he knew the object of my coming to him and stated that he was quite willing that I should make any examination in reason that I might choose to make, and also stated that he would give me an ac- count of his illness, and stated that Dr. Burr would give details in regard to his sickness and the treat- ment that he, Colonel Dwight, had received from Dr. Burr. He then mentioned that his general health was usually very good ; that while in Chi- 670 671 672 225 cago in the spring he was attacked with pain and nausea; that he called upon a physician who treated him and that that physician saw him about four times—that being the expression he used ; that he attributed his illness to change of water and climate, and that he shortly recovered; that com- monly he was in very good health ; that he did the mental and physical work which ordinarily half a dozen ought to do ; that in the fall or in the last season he had been at Windsor, his former home, and that while there he had for several weeks been engaged in partridge shooting, rambling over the hills, and drinking surface water of brooks and sometimes of swamps, and often times it was none of the best ; that after a time he felt unwell, and after a time he complained of pain and nausea and general discomfort; that he then went to Bingham- ton and consulted with Dr. Burr, who has since been in attendance upon him. He remarked that the principal symptoms which he had labored un- der were excessive nausea and pain in his abdomen —principally in the left side—and that this pain varied in intensity—sometimes the pain being near- ly absent and at other times being very violent; that he was greatly troubled with sleeplessness and loss of appetite; that that morning he had not eaten anything but had vomited and he felt like vomiting again ; that he had found that. Malaga, grapes, of which he had eaten some that mornings seemed to agree with him better than anything else ; that during his illness, which had lasted, I think he said, from about the middle of October he had had several chills, one of which was very se- vere, and which were spoken of as congestive chills. He stated that during this attack he had felt cold ; that he trembled ; that his linger nails were blue ; and that he felt very much depressed; that he thought that if he should have another such an at- tack in his weak and depressed condition he prob- 673 674 675 226 ably would not survive—as I remember, that is about all he said. I may state that when I entered the room Colonel Dwight was lying in his nightdress, I think, upon the bed, with his limbs extended. At times he would partially rise up lying upon his right side, his elbow resting upon a pillow and his head rest- ing upon his hand. At other times during my ex- amination, I asked him to sit up, and he rose in bed so that I might examine him more particularly. I may state that 1 noticed that his greeting when I entered the apartment was cordial, his manner was free and unembarrassed ; his voice was clear and strong, his tone loud; his enunciation dis- tinct ; he expressed himself with precision, clearness and force. I first examined him extern- ally. I found his skin of natural moisture, no harsh ness; his muscles firm, the extremities warm ; his countenance appeared natural—color in his cheeks and lips—; his eyes were somewhat reddened, the pupils reacted readily to light ; that is, when the eyes were suddenly opened and closed the pupils grew larger or smaller, his tongue was of natural moisture, generally covered with a light coating, except at the tip, where it was red. I no- ticed that the chest was of natural form ; that the heart was normal in the size, positions and sounds; that his rythm—the beating of the heart—was per- fect ; the pulsations were weak ; the circulation at the wrist was very feeble ; the lungs were found apparently normal in every respect ; the respira- tion was clear—it was full and unembarrassed ; the liver was normal in size, not extending below' the ribs, and not having any irregular outlines or no- dules upon it; the spleen was but imperfectly ex- amined, from the fact that Col. Dwight complained when pressure was made in that region in the left side of the abdomen below the ribs, and requested me to desist ; the abdomen was natural in form, not tympanitic, no collection of gases in there—not 676 677 678 227 bloated—of natural consistency and the pain of which he complained was upon tlie left side below the ribs and extending three or four inches below the border of the rib. I think that is all I can think of. When I speak of the term “ normal” as applied to the heart and the other organs, I mean by that natural when I use the term “ nodules,” I mean lumps. He didn’t speak very definitely about the subject of congestive chills ; I spoke to him particularly about that and the answers were rather indefinite. I may say that the difficulty with me arises from the fact that at the same time we were talking together, or about the time Col. Dwight and I were talking together, Dr. Burr and myself were also having a conversation together, and I am not positive that I can separate distinctly or accurately. Q. Did Mr. Dwight make any answer to you that you can state when you asked him the question as to the duration of the congestive chill ? A. I couldn’t speak positive. Q. When Mr. Dwight spoke to you about these congestive chills did he say anything about their not being accompanied with heat or sweating % A. I asked him about that. I asked him whether he had any fever at such times. He said no, and w hen I spoke about his sweating, he said he didn’t “ know that he did sweat,” that was the expres- sion he used. Q. From your physicial examination of Mr. Dwight himself at that time, did you find any evi- dence of disease in your physical examination of him % A. Yes ; I found disease ; I found what might possibly be an evidence, and might not; that was the feeble circulation. It was not a disease, but it might indicate—it might be a symptom of disease and it might not. Q. Was anything said in the conversation, by either Mr. Dwight or Dr. Burr, as to his having 679 680 68H 228 taken certain medicines, and if so, what were they? A. There was The reference to the medicines was made in a general way by Col. Dwight and in a more particular way by Dr. Burr. Col. Dwight spoke of his taking quinine and its not agreeing with him. He also spoke of having taken mor- phine in order to quiet pain and produce sleep. He stated that it required a great deal more to alfect him than it did ordinary people. 1 don’t remem- ber anything else he spoke of particularly,—he did speak of calomel. A part of the conversation between Mr. Dwight, Dr. Burr and myself was in the form of a narrative, and a part was in the form of questions and answers, and in the Conversation Col. Dwight spoke of his having pain, and that he had to take morphine to quiet him. Q. What did Mr. Dwight say to you referring you to Dr. Burras to his treatment and symptoms?" A. Well, he stated he would give me an account of his symptons, and that he would refer me to Dr. Burr for details of his sickness and his treatment. Q. Next what did Dr. Burr say in regard to his taking these medicines ? A. Dr. Burr stated that in the early part of his sickness he had given Col. Dwight calomel and opium ; that he had given him morphine to quiet pain and to produce sleep, also bromide of potassium ; that he had given him sul- phate of quinine, and had afterwards dropped that it not seeming to agree with him, and more lately Fowler’s solution that is solution of arsenite of potash, and to quiet his nerves, or to quiet him had given him extract of gelseminum. Q. Assuming, doctor, that Mr. Dwight had taken these drugs as Dr. Burr stated, would it be suffici- ent to account for his feeble pulse ? A. That would depend upon the time they were given and the quantity given. I will modify that a little. From the time they were taken and the quantity given ordinarily the effect would be to diminish or weak- en the circulation. 682 £83 684 i' 229 Q. Did you derive from Col. Dwight, any in- formation on that subject which leads your pro- fessional mind to a conclusion ? A. I did in a gen- eral way. That information was, that usually, or frequently, the pain that he suffered from was se- vere, and that he required a larger quantity of morphine to quiet him than would ordinarily be the case ; and also from the fact that he was greatly troubled with sleeplessness, and morphine was given for the purpose of producing sleep as well as to quiet the pain. Q. Assuming that answer to be correct, would the taking of the morphine, as stated, be sufficient, to account for the feeble circulation? A. I think it would. The only other point that at this moment- I recall was in reference to the temperature and pulse during the course of Col. Dwight’s illness. Making an inquiry in regard to those points Dr. Burr stated that his temperature was always about normal, and I think he used or f think he stated, although not in those words, but in similar terms, that his pulse was always about normal and nat- ural. I remember nothing further that Dr. Burr •said. I counted the number df pulsations per minute ; the number was 71; that is about healthy; I also counted the number of respirations, they were twenty ; I should say that that was higher than natural, but not unhealthy. Q. You spoke of a light coating on a portion of the tongue ; was it such as to indicate any serious disease? A. I don’t think I did speak of a light coating ; I think 1 spoke of a white coating ; I should state that it was a light, not thick, white coating ; it was of no significance ; I can’t say that Dr. Burr said that he had been giving him Fowler’s solution of arsenic in reply to question of mine ; I made no inquiry as to the examination of the urine ; I am now confining myself to the inter- view with Dwight. 685' 686 68T 230 Cross-examined by Mr. Smith : When I went to Col. Dwight’s sick bed on the occasion I have mentioned, I went there an entile stranger to Col. Dwight, and so far as he was con- cerned, unasked and uninvited, I think ; directly I know of but one person who was connected with the procuring of me to go there ; indirectly I should name another ; the first one I should name as directly asking me to go there was Mr. W. F. Win- ship, the agent of the Union Mutual at Albany ; and indirectly there was Mr. John E. De Witt, the President of the Union Mutual Company ; I know of no others. Q. During the time you were making that exam- ination and ever since, down to this minute, have you been acting with the understanding that you were in their employ, and to be compensated by their company for making this examination, for attending this trial, and for giving your testimony ? A. Partly yes and partly no; I will state that up to the time the examination was made, and prob- ably a week or so afterward, I did expect that I was to be compensated for my examination, and at that time I was paid ; subsequent to that time I considered it by no means certain that I would be called upon to testify in this case ; but lest there should be any mistake I certainly did expect that, if I did come and testify, I should be compensated for it. Q. Have you been acting with the understanding in your mind, that you were in the service and employ in this matter of this insurance company ? A. 1 have not been acting in any way since the week transpired after the examination. Q. After you had made the examination at Bing- hamton, which you have been speaking of here, did you write out a full detailed report of what occurred and came to your knowledge during that examination ? A. I did write out on the 8th of 688 689 690 231 November a somewhat detailed account of my in- terview with Dwight at that time, and also of the substance ; I think that answers the question ; I did write it out; I handed it to Mr. W. F.Winship at Albany ; I have seen what purported to be that in a printed book of minutes and read it ; I looked over it at the time it was first handed me ; exactly when that was I don’t know, but I think it was in the spring of 1879, if I recollect aright ; and from that time until within a day or two I don’t think the book has been opened ; within the day or two 1 have looked over it—the last time this morning ; I found it, as there printed, accurate, so far as I remember, substantially so ; that printed testimony which I examined is at my rooms where I lodge, in this town ; I can’t say when it was furnished to me, but I think in the spring of 1879 ; I am not positive whether I received it from Mr. Winship or some one else ; the fact is just this, that, under- standing that such a report was published, or such a statement was published, I was anxious to see it, and I informed Mr. Winship of the fact, and whether he handed me the matter, or whether it was sent to me through the mail, I am unable to say ; Mr. Daniel Magone, of Ogdensburg, and Mr. Brosnan, of New-York, had a personal interview with me in reference to my visit to Dwight on the occasion referred to ; I had two interviews with Mr. Magone, at one of which Mr. Brosnan was present. Q. Had you had any interviews with anybody not already named, prior to your visit to Dwight? A. I have spoken to a number, but aside from that I don't remember any others ; possibly Mr. Win- ship may have spoken to me about it ; I don’t re- member of any others at this moment. Q. Did you, at that time, understand Mr. Magone was one of the counsel for some of these insurance companies ? A. I have the general understanding, but I don’t know how I obtained it; I understood 691 692 693 232 that Mr. Brosnan was one of the organization to defend. Q. And did you have interviews with these gen- tlemen upon the subject, to which you directed your attention, and to which you were to collect information referring to the period preceding your going to see Dwight? A. Iliad no interview in which I was requested to direct my attention to or collect information ; I am not aware that the inter- view related to the subject of my expedition to Binghamton to see Dwight; I do not recollect that it did at all. Q. Did it relate in any wise to your employment in any capacity in any department of the service to be performed on the defence of this case ? A. It did not relate to any capacity ; it did not relate to the subject of life insurance. It did relate to Dwight. I don’t think allusion was made to the pending suits ; I don’t think it related to the Dwight insurance ; it may, I am not positive of it. I mean I have no recollection that the subject of that insurance was spoken of by Dwight or any one else. Q. Are you able to state how long before yrour going to Binghamton this interview took place? A. I am entirely under a misapprehension. These interviews with Magone, which I have spoken of, took place subsequent to my going to Binghamton and not previously. Q. Prior to your going to Binghamton, did you have any interview with anyone connected with any of these matters except the persons you have named, Winsliip and DeWitt? A. I had no inter- view with either of them prior to going to Bing- hamton ; I had no interview with any one. Q. Did you, prior to going to Binghamton, to make the examination which you have mentioned, have any communication with any human being upon the subject of your going there? A. I did, with Mr. W. F.Winship ; I had no interview with him, 694 695 696 233 but I had a communication ; I also had a communi- cation, 1 think, possibly with a clerk in the office of Mr. Winship, at Albany ; he may have handed me a letter and spoken to me, but I have no very precise idea about it ; he may have handed me a letter stating that Mr. DeWitt had written it, but1 I am uncertain about it. I think the first com- munication from Mr. Winship was made on br about the 4tli day of November, 1878; it was at Dr. Swinburne’s office and in the presence of the doctor when the first interview I had with Mr. Magone, and then the second interview with Mr. Magone and Mr. Brosnan took place. Dr. Swin- burne was present at both interviews. Q. Now the other ? A. I think the first inter- view with Mr. Magone was about two years ago," and the second interview with Mr. Magone and Mr. Brosnan was early this spring; neither of them related to my being a witness in the case ; they did relate to this case. There was no communication that I was to appear as a witness'and no intimation of the kind whatever. Lest there is a possible mis- understanding in regard to these matters, I may state that 1 received a letter from Mr. Magone shortly after. When I went to Dwight’s Dr. Burr went with me ; Dwight was told who I was ; I do not know who told him, but I judge Dr. Burr did. Q. Was the nature of your business there stated to Dwight before this dialogue began ? A. I should judge so from the remark ; I didn’t hear him say anything about it ; when I was introduced to Col. Dwight there was no allusion made in the introduc- tion as to the purpose for which we had come to see him. Q. Was there anything stated by anybody as to the nature of your business there with him then ? A. There was; Col. Dwight stated it; no one else had before he made the statement stated to him what my business was to my knowledge. Col. 697 698 699 234 Dwight stated in about as many words, after, I think, he had bid me good morning and shaken hands with me, he stated that he knew the pur- pose for which I had come ; he said just that, nothing more that I remember of. I don’t think he told me that he understood that I was there at the instance of the insurance companies. His wife was not present. I don’t remember seeing his child. Nobody else was there but Burr at that in- terview. I don’t know that there had been any measures taken to clear the room or withdraw the nurse or attendants so that we would be undis- turbed in our interview. We two gentlemen were there alone with him. I am not certain how long after he made the statement to me that he knew what my business was there. I did not proceed to ply him with questions put to him relating to his physical condition then and there. 1 think, as I stated before, there was a running conversation, partly in the form of narrative, and partly, when I could get a chance, in the form of questions and answers ; I put a good many questions to him ; I dont think I put every one that I could devise that I thought would shed light on his physical con- dition ; I cannot state now particularly what branch of the case I left unexhausted. Q. Can you think of anything that came into your head that you could ask him that you did not ask him? A. Ido. I couldn’t say how long tn3r examination continued. The oral branch continued throughout the whole interview. I could not state with any accuracy about how long this period was over which this dialogue continued, I should guess about an hour. Both Dr. Burr and myself were present, but no one else to my remembrance. I think something was administered during that time—one Malaga grape. I don’t think anyone prescribed it ; I think Dr. Burr handed him the dish rhat contained them; I don’t remember that anything else was administered during that time. 700 701 702 235 I made a careful personal examination of his body, and these results which I have given I should say were only the results, so far as his physical condition is concerned, that were obtained by an external examination. Q. Now be good enough to tell me witli great minutia, just what examination you made as to the spleen ? A. The examination of the spleen was ex- ceedingly imperfect, as 1 have already stated, and it was made by an attempt on my part to auscul- tate, which is a sounding upon the abdomen and pressing with the finger to ascertain whether the spleen was enlarged, and also placing my hand upon the abdomen and pressing it upward, or a portion of it, in order to see by that means whether the spleen was enlarged. Q. So far as you know has anybody to this day discovered the office that the spleen performs in the human organization ? A. I could not say as to that ? Q. So far as you know, does the size and weight of this organ van7 in a very marked degree in dif- ferent human beings? A. I have no doubt that it does considerable. Q. Can you speak from knowledge, and state whether there is any known means of discovering before death, and without a personal examination of the liver itself, with any degree of certainty, whether there are lumps in the liver or not ? A. No, sir ; not positively. Q. Is there any means, so far as you know, or any skill, or science by percussion or in any other way, of determining with any degree of certainty by the examination of a live subject whether there are lumps m the liver of a living subject? A. I should say yes and no ; when the lumps are on certain portions of the liver I should say no ; if the lumps were on certain other portions of the liver, I should say yes. Q. Now with reference to Col. Dwight, you speak 703 704 705 236 of the condition of his pulse and tlie beatings of his heart ; the number of pulsations of the heart you ascertain by counting ? A. Yes, sir; by hold- ing the hand on some part of the body where it can be felt and then counting it ; the pulsations at the wrist indicate the pulsations of the heart ; they are ascertained by holding the hand on the wrist and counting—that is one way ; another way is, by placing th£ hand on some other portion of the body; when you want to get the pulsation of the wrist you put your hand on the wrist. Q. 'Did you doit in this case? A. Yes, sir; on both wrists ; the normal pulse 1 should say is about 70; I should say that there is a variation indifferent patients of possibly ten degrees ; it may be, but is not necessarily, nor do I think necessarily affected very much ‘by the general condition of the health ; I think it would depend very much upon the par- ticular part disturbed or the disease ; the character of the pulsation would depend in some degree upon the condition of health of a man’s body. Q. May it be decreased or diminished by the nourishment of the body, whether well or illy nourished ? A. I should say to a limited extent ; I should state that if the nutrition of the body was very small so that a person had become emaciated, I should think that the pulse might be considerably affected numerically ; I think it might be affected both ways ; it would depend upon the condition and the particular patient I think ; the condition of this pulsation is numerically affected by the position of the person being lying down or being erect, and sometimes I think it would be consider- ably. Q. And sometimes although there is the absence of the nutrition, when there is some irritation like an acute fever even with the absence of nutrition, even under the irritation of an acute fever, wouldn’t there be a acceleration of the pulse ? A. If a person had a fever he would have a higher pulse. 706 707 ?08 237 Q. So the beating operation of, the pulse is not a very important element in ascertaining the actual physical condition of the man, excepting so far as it is connected with other circumstances growing out of his condition ? A. Yes, sir ; I think it would be important; if for example I should find a very irregular pulse or a very rapid pulse—a very rapid pulse we will say—and the.person appeared well, I should be suspicious. Q. Wouldn’t you expect to find a rapid pulse in the case of a person on the near approach of death ? A. No, sir; it would depend upon circumstances. Q. The inference to be drawn from the condition of the pulse depends very much upon the condition of the patient in other respects. Standing alone it is not much of a test? . A. No, sir, hardly so; it is a test to some extent. Q. Can you tell now of any diseases that would be indicated with any degree of certainty by the condition of the pulse ? A. Yes, sir. Q. Can yon tell any condition of the body that would be indicated by the condition of the pulse? A. Yes, sir. Q. How much below the normal or natural con- dition do you say you found Col. Dwight’s pulse? A. I didn’t find it any way below the natural or normal condition, it 74— 1 do not think there was any significance in the number ; the number of the pulse was about natural. Q. Does the administration or the faking of an anodyne have the effect to reduce the pulsation ? A. That depends upon what anodyne is taken. Q. Does any anodyne which operates to produce rest and absence of irritation and possibly sleep, is its result to reduce the pulsation ? A. It certainly does reduce the pulsation. Q. And are some of these remedies which are used as an anodyne found to have almost the oppo- site effect in some patients? A. I should think that is very possible. 70& 710 711 238 Q.* Isn’t it quite possible and quite common, as for instance, sometimes morphine given as an ano- dyne to operate as a stimulent in some subjects? A. Well, it would depend, as I have stated long- ago, upon the time and quantity, the time of doses and the quantity taken. Q. Don’t it sometimes operate as a stimulant? A. It does when taken in minute doses. Q. Did you discuss the effect of these remedies with any one while you were there in that interview, or otherwise with Dr. Burr? A. I did not in that interview, but did subsequently ; I have had several interviews with Dr. Burr, I had one that day prior to going to the house, and one at the house and one subsequently. Q. Did you discuss with Dr. Burr at that inter- view, or with him at any time the subject of the remedies that had been employed? A. I did in a general way. Q. Was that after your interview with Dwight? A. It was certainly largely after ; possibly some before. I remember of no discussion taking place during the interview' at Dwight’s bedside on the topic of the absence of nourishment. Q. During the course of that discussion was there any interview upon the subject of the prolonged period during which he had been without food? A. I remember of none. Q. Or of the condition or appearance of the stomach as indicated by the color of the substance that wras ejected from it through his mouth ? A. I remember ot no allusion whatever as to the appear- ance of the stomach. Q. As a medical gentleman, do you understand it as an important element in determining a man’s physical condition as to the manner and character of the performance of the stomach ? A. Ido. Q. You have spoken of chills, congestion and the feeling of cold, and the color of the finger nails; did you make any particular examination with a 712 713 714 239 view of ascertaining the condition of the patient on that subject ? A. I did. Q. Is it a fact that most of the diseases affecting the condition of the blood, affects the circulation ? A. Well, I hardly know what is meant by that. Q. Was there anymore minute description of the chills that he felt, than you have already described ? A. I think none. Q. Was there anything said as to how long anterior to that they had first begun to appear '1 A. No; I inquired about that after the statement he made regarding the number of little chills or slight chills, I think it was spoken of as what he had had, and when they occurred, and the answer was indefinite, no particular time was given, I am not able to say what he said in reply. Q. Are you able to speak with any degree of certainty and tell how early a period he said they commenced ? A. No, sir, I am not; the only date I obtained was in regard to what was called a con- gestive chill. Q. A chill or sensation of unnatural chilli- ness is not an uncommon symptom? A. It is nor, especially for the last few days. Q. Well, this sensation of chilliness is the result of a disturbed circulation of the blood from some cause or another? A. I think that is an important element in it. Q. The way we get the sensation of cold and heat is from the condition of the blood? A. No, sir, it may or may not be. Q. And a congestive chill, in the broad sense of the term, giving the words their ordinary meaning, is a chilliness produced by an unnatural circulation of the blood, isn’t it.? A. I woull hardly say that was produced by it. Q. You have spoken of his depressed condition ; did you get that from your diagnosis or from what he said? A. He used the terms himself; I did not get it in any other wise. I stated the 715 716 717 240 tongue was covered with a thin, white coating, except at its tip it was red, I think not an uncommon condition of the tongue. There was nothing so marked about the color of the tongue as to enable me to draw any inferences as to the other conditions of the body; the redness of the eyes, taken alone, was not to any such degree ab- normal as to be indicative of any condition of the body. I came here to Norwich on Monday morn- ing last, a week ago, and have been here ever since. Q. Have you been, during the time you have been here, in consultation with others in regard to the facts of the case ? A. I have. Q. Hid you understand that these, interviews and the consultations were with the view of pre- paring different gentlemen’s testimony to be given upon this trial—1 want to know whether that was the understanding in your mind ? A. To prepare jiersons—well in a certain sense I should say,yes ; I can hardly tell the names of these gentlemen ; Dr. Austin Flint, Junior, was present, also Dr. Horatio C. Wood, Dr. B. F. Sherman and Dr. Bridges, whose initials 1 have now forgotten ; I think four other gentlemen, physicians, living in this town or vicinity, and I cannot at this moment speak posi- tively as to the names of either of them. I think one was Dr. Mosier, of this place, as I remember ; I can’t remember the others. Q. Interviews been going on the entire week upon this subject ? A. No, sir, not with me. Q. You put in a qualification which I didn’t put in ? A. It i-s likely 1 did. Q. To your knowledge, the question is ? A. No, sir. I never saw Dwight after this visit which 1 have described ; I was not present at eitherof the autopsies on his body. Q. Have you now stated the extent to which yon have been acting for anybody in connection with the examination of Col. Dwight or his mortal remains? A. 1 have. 718 710 720 241 Q. Or of any fact, matter or commodity under- stood to be in anywise connected with Col. Dwight ? A. Yes, I have. Q. Did Dr. Burr exhibit to you any paper that was spoken of as relating in any wise to Col. Dwight? A. He did. Q. And did you examine it ? A. I did. Q. Did you make yourself conversant with the statements in it so as to be able to ascertain whether so far as there was any indication in the appearance of Dwight’s body or otherwise, there were any in- accuracies in the statement ? A'. I cannot say as to that. Q. Are you able to state that you looked that paper over and made yourself familiar with its con- tents before you went to the sick bed of Dwight, as you have described ? A. I did not. Q. Had you looked it over before? A. I don’t think I looked it over before. Q. Did you copy it or procure a copy ? A. I did copy it. Q. Then? A. No, sir. Q. When? A. On my arrival at Albany. Q. Did you take the original with you then ? A. No, sir; I think that Dr. Burr gave me a copy. Q. And you copied from his copy ? A. I copied from his copy; that is my impression. Q. Was the paper that you made attached to the report that you made to the Union Mutual, which yon have spoken of already? A. Yes, sir; it was. Q. Did you reach a conclusion from the exami- nation which you made as to Col. Dwight ? A. No positive conclusion. Q. Did you report a conclusion ? A. No positive conclusion. I reported a number ot' conclusions; I have changed some of them since, I can hardly de- fine the time when I changed my opinion, it hns been more in the way of a gradual growth or grad- ual arriving at an opinion rather than at any spe- 721 722 723 242 cific time, as the matter lias been occasionally thought of by me. Q. When did this “gradual growth” and this “thinking” by you, come to that degree which in your understanding amounted to a change of opin- ion ? A. It didn’t amount to a change of opinion; I hadn’t arrived at any decided conviction before. Q. When did that state of things come to pass which led to any conclusion, opinion, inference or suspicion different to that which you have reported ? A. Well, I couldn’t say certainly; I should say probably within two or three years. Q. Are you able to speak from memory and state with any degree of certainty the conclusions which you reported at that time ? A. I think that I am. Q. Or have you any written memorandum, or is there any written memorandum which you can use, which will enable you to speak with more certainty as to the actual words used? A. No, sir; none that I know of ; it is possible that in a collection of written papers which I* have in my possession it may contain some memorandums; I have not looked at them for four years. Q. You saw a printed document ? A. Yes, down to as late a period as this morning; and that was accurate—I think so certainly; I couldn’t repeat it; I remember it was that which I wrote at the time, I think it was an accurate statement of what I wrote the next day after my visit to Dwight; and it is what I wrote to those who employed me to make the investigation; and what I intended to be and believed at the time was the truth. Q. Did you, on the next day after you had made this examination of Mr. Dwight, and in reference to that examination, and in reference to Dwight and his condition, communicate to the persons that you have said employed you to go there, in words or substance, as follows : Conclusions.—My opin- ion, based upon the information obtained as above may be expressed as follows : First, It appears to- 724 525 726 243 me most probable, considering Mr. Dwight’s pre- vious attack in Chicago and exposure during his hunting at Windsor, that this present illness is of malarious origin. Second, that even supposing such to have been its origin, the symptoms do not wholly negative the theory that some irritant poi- son may have been taken at times. Third, that if such irritant had been taken, a chemical examina- tion of the urine might detect it. Of course arsenic having been administered medicinally its discovery in the urine would be a matter of course. Fourth, that the symptoms as reported cannot, in my opin- ion, be accounted for on the theory of chronic pois- oning. Fifth, that there is a strong probability of the recovery of the patient—now answer the ques- tion. A. I did. Q. In this statement as I have read it, is con- tained the clause “upon the information obtained as above”—does that refer to the information ob- tained in the manner and to the extent to which you have described here in your testimony? A. It does not wholly, that was a part of it. Q. On the subject, was there above that report, when you made it, anything except that to which you have here given testimony? A. There was no subject—there was no matter above the report excepting as stated. Q. You say, “my opinion based upon the infor- mation obtained as above”—what I want to know is whether in that expression “obtained as above” there was anything which referred to any other matter or thing than that covered by your testi- mony here? A. Yes, sir; it did cover other matter and things. Q. The question is whether that expression upon which these conclusions are based of “ information obtained as above”—whether that embraces any other matter than that of which testimony has been given by you here ? A. It does embrace other matter. 727 728 729 244 Q. What other subject ? A. It does not embrace any other subject. Q. To what other thing does the matter refer other than in your statement? A. No other thing or circumstance I think I may say. Q. (Book handed to witness.) I would thank you if you would look at pages 5 and 6 in that lit- tle book 1 now hand you ; are you able to say whether that is a correct statement of your examina- tion or not ? A.. 1 think it is so far as I know ; I haven’t read that this morning. Re-direct-examination by Mr. Russell; Q. You have been interrogated as to the rapidity of the circulation in connection with the condition of the health of the body; is it not a fact, as usually discovered, that where the patient is feeble, his circulation becomes more rapid? A. That I think is usually the case. Q. You have been interrogated as to whether you received any information from Dr. Burr, prior to going with liitn to Dwight’s ; is it a fact that when you and Dr. Burr arrived at the house where Mr. Dwight was staying, he went in alone to Dwight’s room and had an interview with him prior to your coming in ? A. He did. Q. You were asked if you could think of any- thing you might have asked at that time that you did not ask, and you answered that you did not; to what did you refer? A. There were a great many things I might have asked in regard to his sickness that I did not ask, was the reply I made. Q. Had you in mind at the time you answered this question of the counsel, any particular thing that you might have asked that you did not ask then? A. I don’t remember at this moment what I was thinking of. Q. Are those questions which you might have asked, as you now think, but which were not then 730 731 732 245 asked, suggested by the subsequent events, such as the autopsy and the second post mortem examina- tion ? And when you answered counsel by stating that matters upon which you were somewhat of doubt at the time you made the report, had subse- quently settled into conviction ; did you refer to the intelligence that you had received from the autopsy and the second post mortem examination % A. It is based partially upon the report of the au- topsy and the coroner’s inquest, and further knowledge on my part of matters connected with the sickness and death of Col. Dwight. Q. You have been asked as to the character of the report which you made when you returned to Albany in connection with some subsequent change or difference of opinion ; I interrogate you as to the same matters in the report which was read to you by Mr. Smith ; were the conclusions thus de- rived, which you reported to the company, based largely upon the mere statements that Mr. Dwight made to you as to his past condition and feelings ? A. They were. Q. The first branch of the report that was read to you by Mr. Smith was this: “As it appears to me most probable, considering Mr. Dwight’s previous attack in Chicago and his exposure during his hunt- ing at Windsor that his present illness is of malar- ious origin,’’ do you believe that statement now to be correct? A. I am rather inclined to think that it may have been of malarious origin. Now under- stand me, I say the origin of it; I don’t say the subsequent course of it, and I did not in that state- ment, but as regards the origin of it I am inclined to think it may have been of malarious origin, call- ing by that name the means by which the exposure, as indicated by Mr. Dwight, and the drinking of surface water and lying upon the ground, that they may have influenced his nausea and general disturbance. Q. With this presumption, or assumption,rather, 733 734 735 246 that those statements that lie made to yon were true? A. Yes, sir, I am rather inclined to think so now. Q. You speak in your third conclusion that if such irritant had been taken, a chemical examina- tion of the urine might detect it, and of course arsenic having been administered medicinally, its discovery in the urine would be a matter of course —did you have any opportunity to examine the urine at the time you were there ? A. I didn’t ex- amine any ; I have no doubt I could have had the opportunity ; there was no inquiry made about it at that time, none whatever. Q. You report finally that there is a strong proba- bility of the recovery of the patient—did you in that or any other examination, or in anything that was said to you by Dwight or Dr. Burr, see any reason for any other expectation than of the proba- ble recovery of the patient? A. I saw nothing which induced me to believe that he was seriously ill ; I saw nothing whatever. Q. And do you now, in reviewing the case see anything in what you saw then and what was then said to you, to change that opinion ? A. Yes, sir. Q. What was it ? A. If the statements made by Col. Dwight were true, that he had had a violent disturbance of the system, which was called a con- gestive chill—if such a thing should occur, if such a thing was true, why I should think that would represent a dangerous condition, but I saw nothing in his condition which at all indicated his having- had a congestive chill or chills. Col. Dwight was a large man; his height was six feet two; his weight was about 220 pounds, though he expressed the opinion that he had lost somewhat, and men- tioned 15 or 20 pounds as being the amount he had lost. He was a large man, rather fleshy ; de- cidedly muscular, broad shouldred, his body was very well nourished ; his pulse was perfectly regu- 736 737 738 247 lar and even,—there was no variation in it that I noticed. Re-cross-examination by Mr. Smith : Q. Would ordinarily the entrance of a stranger into the room of a sick man affect the condition of Ills pulse ? A. I am inclined to think that ordi- narily it would. Q. Quicken it, wouldn’t it? A. Rather so. Q. Well, you failed to discover, as it seems now upon reflection, and thinking it all over, anything that impressed you with the idea that he was sick, is that right ? A. No, sir ; I saw nothing that im- pressed me then or now that he was seriously sick. Q. Was there anything in the condition of Col. Dwight at that time that indicated a serious sick- ness ? A. There was nothing that I know of. Q. Would the condition of a stomach that would not perform its functions, so far as retaining any nourishment that was taken into it, indicate a serious physical derangement ? A. That would depend upon what drugs he was taking ; it would also depend upon a variety of circumstances. Q. The case I put to you is the case of a man who indicates the sole symptom of having a stomach which will not retain anything ? A. I don’t think necessarily that that would indicate any serious disease. Q. No serious sickness ? A. No. Q. Unless the man is relieved of that he would die ? A. Yes, go right straight down to the grave. Q. Do you say that that does not indicate a de- rangement ? A. I didn’t say that. I say it does not indicate any serious disease ; a man may have serious disease with or without it. Q. Don’t the derangement of the human system in any respect, so that it fails to perform its natural 739 740 741 248 functions, rise to the dignity of a disease ? A. Well, it might or might not. Q. Can you conceive of any derangement of any part of the human system that amounts to an in- terference of its performing its natural functions that does not amount to a disease? A. I can. I might tie a cord around my wrist, interfering with the circulation as long as it was on; interfering seriously with the circulation around my arm, that wouldn’t constitute a disease. Q. I don’t mean from assassination, or cutting a man’s head off, or hanging him, but I mean from any interior cause? A. Yes, a man might swallow some solid object to interfere with digestion, and while the object was there it would nauseate him,, but it don’t constitute a disease. Q. Can you conceive of any condition of the body from any abnormal condition, and not from violence of an outside act, but would interfere with its performing its functions, that would be a disease? A. Yes, lean; want of sleep might de- range his circulation; that is not necessarily a disease. Q. If a man can’t sleep isn’t that a disease ? A. It depends upon what causes it. I say that some- thing new has come to my mind, something that was not covered by that information in reference to the condition of Col. Dwight, that has affected my judgment ; that has come to my mind from a variety of sources; that volume is one; I don’t know the title of it; it contains my letter to the insurance company, and a statement of the post mortem examination, and of the coroner’s inquest in the case of Col. Dwight ; two autopsies of this body were made ; the first was made, I think, about 48 hours after his deatii, and his body was dug up, I think, some five months afterwards ; I embrace both those examinations with the other matters I spoke of in my change of opinion ; the other matters are books, a variety of books regard- 742 743 744 249 ing general practice—the practice of medicine, med- ical jurisprudence, that I have been studying up since ; not studying them up at the instance of these defendants, but for the purpose of acquiring knowledge generally ; I had the Dwight case in mind ; I do not think of any other facts, circum- stances, incidents or other indications whatever, bearing upon my mind in this change of opinion than those I have already mentioned. I am not positive whether, in a letter written by Dr. Burr to me after my visit to Col. Dwight, there was not some allusion made to his condition that day, I don’t remember of any. Something has come to my knowledge in relation to congestive chills since I was there ; there is a disease of the human system known by the term “ congestive chills.” I do not think that using the common meaning of the term, “ congestive chill,” you .would include every unnatural chilliness of the body which is caused by congestion, or by unnatural circulation of the blood; whether I can'tell when I see a patient whether he has a congestive chill or not depends entirely upon how I would use the term. I hardly know what a chill is ; it means cold ; it don't imply cold however ; it is a sensation of cold, but the fact may not exist; as applied to the human system it is a sensation of chilliness. The word “congestion” applied to the human system does not mean an unnatural circulation of blood ; it implies rather the condition; it don’t imply, as I under- stand it, an unnatural circulation ; it may have been caused by an unnatural circulation ; the blood may be perfectly natural; 1 have heard the word “ congestion,” as applied to a condition of the hu- man system; I hardly know what it means; I know what condition it sometimes expresses. I don’t have much idea of what malaria is; I don’t know what it is; the word “malania” does not convey the idea of the condition of the atmosphere tainted and obnoxious, or in a greater or less de- 745 746 747 250 gree poisonous by impurities from the decay of vegetable matter, or the evaporation of impure fluids; there is nothing that I know to be malaria ; there is not to my knowledge a disease known as malaria; there is a word “malaria” that I recog- nize ; I don’t know what it is in itself. When I used the term in this report “ probably of mala- rious origin,” I had no reference to the atmospheric condition in which Dwight had been ; I did, to a certain extent, have reference to an exposure of his body, to which he had been in a greater or less de- gree subjected ; I could not state what that partic- ular kind of exposure was to which I had reference when I said “malarious origin”; I could state what his exposure was ; his lying on the ground was one of the forms of exposure; his lying right on the bare earth was an element of his sickness ; it was not an element of the “malarious origin,” to which I referred ; I have not heard of his bathing—at least he didn’t tell me of it; that is not what I had in my mind when I used the term “malarious ori- gin.” Q. Or did you have in your mind the fact that when he had gone hunting, he knowingly and de- liberately drank the water right out of a spring ; did you have that in your mind'( A. That was an element of the condition that prevailed ; I did not have that in my mind particularly when 1 used the term “malarious origin ;” I did not have “Chicago speculation” in my mind ; I don’t remember to have said anything to Dwight about malaria; lam not certain whether I did say anything to Dr. Burr about it or not; I did not say anything to anybody in that interview, together with Dwight and Burr, us to the condition of Dwight’s urine, or as to whether there had been an examination of this substance ; I did not say anything to anybody, or do anything towards procuring any sample of this commodity while I was there, on this ante-mortem examination. 748 749 750 251 Q. I now put to you the question put to you on re-direct-examination, “ In answer to counsel that the matters upon which you were in somewhat of doubt, at the time you made the report, have now settled into a conviction. Do you refer to the in- telligence you have received from the autopsy and the second post-mortem examination?” Now, when you made this report, were you in doubt, or did you intend that as an honest,truthful,manly,and just report? A. I intended it honestly ; I have not changed it; I intended it as an honest opinion. In answering that question I refer to both the first and second autopsies ; I was not present at either : I got my information from three or four sources ; first from the books ; second and third and fourth, from Doctors Swinburne, Sherman and Bridges. I am able to state a fact or circumstance to which that information relates ; I got it from Dr. Swin- burne ; I have seen him frequently ; he has not been indicating to me or assuming to indicate to me,facts, or assuming that they were facts bearing on the opinion I had formed. The opinion which I have now depends in some degree upon facts that I have obtained or believe I obtained from that source. Q. Will you be good enough to name, not the particulars, but to name so as to identify it, any transaction, fact or circumstance which came to your mind in that way ? A. In regard to certain of the internal organs, the heart. Doctor Burr, whom I saw there at Binghamton, was an old acquaintance of mine; I had known him about eight or ten years; I have met him there ; I should say he was about sixty-five or sixty ; I understood he had been a practising phy- sician at Binghamton during the time of my ac- quaintance with him. Q. Was he President of the State Medical So- ciety ? Objected to as incompetent and imma- terial ; the Court overruled the objection, 751 752 753 252 to which ruling the counsel for the de- fendants duly excepted. A. Not to my knowledge ; prior to that time and for several years he had been a professor in a med- ical college in this State, as I understand. Q. Where \ A. At Geneva. To Mr. Russell.—The disease known as conges- tive chill, or more commonly called pernicious fever, sometimes called pernicious intermittent fever, is a disease which prevails usually in highly malarious districts and especially in the South and West. It is characterized, first, by a stage of de- velopment which may consist only of a general feeling of lassitude and oppression, accompanied with pains in the limbs and back, and oftentimes with pains in the head. This continues for three or four days, when usually there is a slight chill. In cases which do not terminate fatally, this chill lasts for a variable period, how long I cannot pos- sibly state, but I should judge from one to two or three hours; then it is followed by fever, and usually by sweating; the patient, after this parox- ysm, will in a few days gradually improve and be able to be about. Commonly the second paroxysm occurs in from one or two days from the first; this is more violent; there is commonly a great sensa- tion of cold and chilliness ; the respiration becomes impeded, oftentimes the limbs seem to shrink, the flesh feels dead. After this is passed there is an increase in the apparent temperature, the respiration, which has been bad at first, be- comes even more so ; sometimes there is great dis- turbance of tile bowels during the second paroxysm —the patient passing at intervals of may be twenty or thirty minutes a watery discharge usually tinged with blood; the patient gradually sinks; the anxious expression which has been manifest during the sec- ond paroxysm becomes greater, and finally the pa- tient may die. Sometimes, instead of dying in the 754 755 756 253 second paroxysm or in the fiist, lie does not do so until the third. The circulation is usually very rapid and the pulse small and feeble. Other forms of the disease are characterized by the impression, or the striking impression being made upon the brain or upon the lungs. In the first case the patient may lie in an insensible condition, or he may become delirious. In the second case where the effect is largely upon the lungs the striking manifestation is the exceedingly difficult respiration ; that in the general way is the idea of it. 1 think that that is decidedly distinguishable from the fever known in these latitudes as intermit- tent fever. A post mortem examination is made to ascertain the condition of the various organs and purts ; it often affords additional information upon that subject. To Mr. Smith.—I took this definition of a conges- tive chill partially from a book—from no particular book ; from Flint’s Practice of Medicine, Ziems- sem's Practice of Medicine, Attkin’s Practice of Medicine, Tanner’s Practice of Medicine, Wood’s Practice of Medicine, Hartshorn’s Essentials of the Practice ot' Medicine, and from certain articles in the American Journal of Medical Science for the year 1843 and the year 1844, written by Drs. Perry and Wharton. Those are the chief books I now re- member to have looked at; I cannot recall any others at this moment. 1 did not derive my know- ledge of a congestive chill exclusively from books ; I have lately been studying up these various au- thors upon this subject. An actual case of con- gestive chill has not fallen under my observation within the last twenty years so that I can name the person who was suffering from it. I cannot give the name and circumstance of more than three cases that have ever fallen under my observation during my lifetime ; my knowledge mainly, as to what is or is not within the technical medical sense of the term a congestive chill, depends mainl}7 upon 757 758 759 254 the books ; I do not remember when I first entered particularly upon the subject or symptoms of con- gestive chills as a study and specialty ; I began to study the history or definition of congestive chills so as to be especially prepared on that subject when in the army, about the year 1864 ; it was at the hos- pital of the Fifth Corps on the lines in front of Petersburg. Q. Mr. Russell.—Then as I understand you, in your practice, both in the South while you were a surgeon in the army and also North in all your practice, these cases of congestive chills you have found to be extremely rare ? A. They have been ex- ceedingly rare ; I never saw a single instance of one in the Stale of New-York ; I have seen within my professional experience thousands of cases of dis- ease I can say. The books I have referred to on my cross-examination are, in a general sense, I should say, recognized as good as any authorities in the medical profession. To Mr. Smith.—The case I alluded to in 1864 at the South is possibly the only case of congestive chills within the definition I have given where I can specify names which has come under my obser- vation in twenty years. 760 761 John Swinburne, called as a witness on behalf of the defendant, and sworn, testified as follows : Examined by Mr. Russell: 1 reside in Albany. I went there first in 1843, and with the exception of about eight years or per- haps a little more (perhaps ten years all told), that had been my constant home. I am a physician and surgeon ; I have been a physician and surgeon since I graduated in the spring of 1847; have practiced 762 255 ever since, with the exception of an occasional hiatus. Q. What opportunity have you had for the teach- ing and practice of medicine and surgery—you may give them fully, if you please ? A. I dissected mainly ; I was engaged in dissection for many years and in teaching anatomy, both in College and my own private rooms, at Albany, until about 1860 or 1861, or that neighborhood, and then I was in the army until 1864 as Medical Super- intendent of the New-York State Wounded. I was first appointed by Gov. Morgan, and afterwards by Gov. Seymour ; I was there until 1864, and then I was appointed Health Officer of the Port of New- York. From that time until 1870, a period of six years, I was Health Officer and member of the Board of Health of New-York City. In 1870 I went abroad and was gone two years, and dur- ing that time I was Surgeon in Chief of the Ameri- can Ambulance Corps during the Franco-Prussian war. From that time until my return in 1871 1 was engaged in Albany in general practice, surgery, medical jurisprudence, &c. From 1877 to the pres- ent time I have been engaged in running a dispen- sary, where I have treated probably 50,000 poor people—run mainly for surgical purposes—for the purpose of demonstrating certain principles in sur- gery, I mean to get rid of the “tradition” in sur- gery. I mean by that to say, that where you have not established actual facts, the principles that govern the treatment would be regarded as tradi- tion. I was a Professor for a while in the Albany College. I have been called, as an expert witness, on medico-legal subjects, and examined them, dur- ing my career. In this dispensary that I have at Albany, I have treated all forms of disease at my own expense ; I have had no help from any direc- tion. Q. During the past year, have you served in ai y other capacity, or done any business, except the 763 764 765- 256 practice of medicine and surgery? A. That has been my principal business. I have been Mayor of Albany for a few months, after a long fight, and am now. I was at one time called from Albany to go to Binghamton. Professor Porter came to me and requested me to go to Binghamton to attend a post-mortem examination of a person that was de- ceased at that point, giving me the name of the person as Walton Dwight, He, as I understand, was the physician of the company (some eastern company), and requested me to go in his place. I went to Binghamton. I think it was the 18th day of November, 1878. I went to Binghamton, to the office of the Doctors Burr ; from there I went to see Doctor Delafield, and from that point I went to the Spaulding House. I found, in the building in the rear of the house, the body of Walton Dwight, at least it was so stated ; 1 had never seen him in his lifetime. There was an autopsy had, on the 18th of November, 1878. I knew one or two of those present, but I didn’t know the whole. (Re- ferring to memorandum.) There were two Doctors Hyde, Dr. Orton, Dr. Ayer, Dr. Chittenden, Dr. Richards, Dr. Cobb, Dr. Lane, Dr. Griffin, Dr. Brown, Dr. Comstock, Dr. Delafield, Dr. Jackson and your humble servant. All were local doctors of Binghamton, except myself and Dr. Delafield, I think Dr. Hyde comes from Courtland. Dr. Delafield conducted the examination. I looked on and made some few suggestions ; in a certain sense, I had charge of the examination. We found a body there that was, to all appearances, very healthy. I should judge the weight would be 220 pounds, but it is mere guess work. There was con- siderable settling of blood at the posterior part of the body. There were large numbers of ecchymosed spots on the shoulders and right arm. Little spots filled with blood like the rupture of a blood vessel, as though a small blood vessel had been ruptured and blood had been effused in the tissue. . These 766 767 768 257 spots were very dark ; the blood was exceedingly dark in them. I should judge there were over a hundred of them ; some as big as a pea, and some not bigger than a pin’s head. They were on the back, and over the shoulders, and down the pos- terior part of the right arm, I think. On the left leg, the attention was called to two cicatrices, or scars, old standing scars. The face was pale. The anterior part of the body was pale everywhere. The amount of fat was very large ; I should think, on the neck, there was half to three-fourths of an inch of fat, hard, firm fat—not soft tissue, as you would meet in sickness. The muscles were dark red and exceedingly healthy, just as those of one who died in perfect health. There was a heavy in- dentation in the neck, commencing on the right side, at the upper part of the wind pipe—the part which is indicated by what we know as the os hyoides—that is the hyoid bone, and extending upwards and backwards to within, perhaps, an inch or so, and perhaps less, of the center of the pos- terior part of the neck. On the left side, the same indentation commenced about the upper part of the cricoid cartilage. It is the lower end of what is known as Adam’s apple ; the other is the upper end of it. That extended about the same angle upwards and backwards until within perhaps an inch and a half of the other that I de- scribed as on the other side—the other indentation; the indentations—I think that is about the point— they faded out as they went back a little ; that is a little less posteriorly than on the swelled side of the neck ; that angle as near as I can remember was from 40 to 45 degrees upwards and backwards from the first point indicated. The indentations were I will say, perhaps, full three-eighths of an inch deep, so you could lay your finger right in them, and about that in width I should say, full that. At the bottom of the indentation there was a pecu- liar appearance—sort of leathery appearance, or 769 770 771 258 looked half burned or had a scorched appearance. The indentation was a rounded furrow ; there was no fold of the skin; in depth I think it was about three-eighths of an incli ; it may have exceeded that a little ; in laying back the skin from the skull blood was seen to ooze. On laying back the skull cap from the dura mater blood oozed in large quan- tities from both the skull cap and dura mater. The dura mater is the lining of the skull; the same as the periosteum is the external covering of the skull. In fact it is the internal covering of the skull. On the left side of the head just about over the ear was a clot of blood, I should say an inch in diameter, and perhaps one-eighth of an inch in thickness, shading off perhaps a little at each edge, firmly co- agulated but not organized, showing that it was of very recent origin. The pia mater—that is the case covering—or the vesicular covering of die brain— the vesicular covering was stained with blood to a considerable extent just over the top part of the skull. The vessels of the membranes—I don’t think they were of the brain—were engorged or filled with blood ; I mean the arteries and veins. The temporal artery divides into three branches, and those were engorged with black blood, and when I say black I mean very dark, I don’t mean absolutely black. The blood was evidently loaded down with carbon. The brain I think was healthy ; I think it was not only healthy but was not con- gested ; I think the brain was normal. The abdo- men and chest—that is the whole anterior part of the body was laid open by one long incision, and the skin and fat and muscles, &c., turned back directly, exposing the chest and abdomen at the same time. We found in the cavity of the chest the heart was empty with the exception of about half an ounce of fluid blood ; dark fluid blood in each ventricle ; the left auricle had what was re- garded as about half an ounce of granular blood— that is imperfectly coagulated blood ; the color of 772 773 774 259 that blood was dark ; The lungs were then ex- amined. They were found congested and engorged. Some portions of them were what we termed con- gested, that is, they were crowded or crammed full: for instance, you may take a hose and half fill it and it is not pressed upon, but when you fill it to a certain extent it becomes engorged so that it spreads and expands every part. It was to such an extent they were congested and engorged that they did not collapse, perhaps the want of collapse was due to another additional cause besides that which I will give yon in a moment. Over the surface of the lungs were what appeared to be and what un- questionably were these spots with air; we call them encemacious spots on the lungs. Those were filled with air as though air cells were burst. The tongue was somewhat swollen, it was somewhat seemingly enlarged,—of course 1 did not know his tongue beforehand—and the epiglottis was con- gested as was also the larynx. The larynx is the inside of the Adam’s apple. The epiglottis is the capper that keeps the food from going down into your windpipe ; they were congested ; tlie tra- chea and bronchial tubes were congested, and filled to repletion with bloody mucus; that would, in part, I say, account for the air not being able to get out of the lungs, or the lungs not being able to collapse ; I asked, therefore, for the tongue and larynx to be removed in order to ascertain wherher there was or not any foreign body in those pas- sages, as sometimes they are thus found, and ac- count for many of the conditions ; but aside from the congestion and bloody mucus clogging up the pas- sage there was nothing else to be found ; in the upper lobe of the right lung was found what was unquestionably a cicatrix, perhaps three-fourths of an inch in diameter; by “cicatrix” I mean scar ; underneath and in the upper portion of the lung was what I term “ nodules I see they have been very emphatically called here “lumps;”- they 775 776. 777 260 were nodules, as you will often find as the result of old standing tuburcular lungs ; the left lung was tied down somewhat by old adhesions ; in the bot- tom of the cavity of the chest we found about four ounces of bloody serum which had drained unques- tionably from the lungs during the thirty hours or thereabouts after death ; that you may regard as a part of the lungs at the time of death in its weight ; I believe that is all with reference to the lungs. We found the heart, as I said before, empty, with the exceptions I have before described, but perfectly healthy in every particular, except that some little thickening was noticed around the edges of the valves, but that in no wise interfered with their regular and normal action ; the heart was healthy in every respect, and it was as large a heart as you could expect with a healthy person of his size ; its weight was fifteen ounces; the lungs, with the fluid ex- uded, weighed sixty-eight ounces ; I will give all this in a few minutes; after going down through the abdo- men—there was no disease, so far as we could dis- cover, in the coronary arteries—the heart’s own ar- teries—the arteries that supply the heart with nourishment ; I examiued it at the next post-mor- tem, and found they were perfectly healthy ; upon examination of the abdomen the stomach contained quite a quantity of undigested food ; I could not indicate the quantity very well, but a few ounces, I don’t. know how much ; there was a patch of in- flammation in the stomach,about an inch or inch and a half in diameter ; there was some softening of the stomach at certain points, but that -was re- garded as a post-mortem appearance, and the result of the gastric juice ; it is what we call a post-mor- tem action, and that is important also in another connection ; if it was a sudden death the gastric juice would be thrown out, and would remain there, and would destroy itself—it would be apt to destroy the stomach ; if a slow death, and nothing in the stomach, there would be nothing to excite gastric 778 779 780 261 juice; the presence of food excited the gastric juice, and that remained there after death ; aside from that, the stomach was normal ; the liver was normal, natural and healthy, except congested ; it was perfectly healthy otherwise ; in color and ap- pearance and everything it was healthy ; the spleen was also perfectly healthy ; it was noted, or some one suggested, it was a little soft, but I could not say, because the organ itself is always soft, it is a very soft organ ; the kidneys were healthy, per- fectly so, but congested; all the blood we could get from the abdominal cavity, after removing the organs and opening the vessels there, was about an ounce or ounce and a half of black fluid blood ; the intestines contained quite an appreciable quan- tity of fecal matter ; that indicated that there had been food taken ; this was the fecal part; it was the residuum after taking out the nourishment the body needed. I would state that aside from the clot in the brain and the granular clots in the left auricle there was no clot in the body, all the rest was dark fluid ; that is all I think of now. The left auricle where this blood was found—this granular blood—receives the blood from the lungs after it has been oxydized and carries it on to the left ventricle and from thence it is thrown in the large artery, the aorta, and over the whole body. The right vetricle receives the blood from the veins and thence on into the lungs. Those are the offices. There are four of them. Some of them receive from the lungs and some re- ceive blood from the body generally. This autopsy began, I think, between 9 and 10 o’clock in the morning, and I should think it closed in the neighborhood of 1 o’clock. That is the best of my recollection. I think we were two or three hours there. I was present at a later period of time when there was an examination upon the coroner’s inquest; that was, I think, about the middle of April, 1879. 781 782 783 262 The body was exhumed. That examination took place, I think, in a barn near by the burial ground where Dwight was said to have been buried or that this body was buried in. There were present at the examination the two Doctors Burr ; I can’t tell you now tlie number of names of the other physicians from Binghamton — Dr. Bridges and Dr. Sherman were both present. The body was re- opened, and various organs in the body were re- examined as far as we could. We examined care- fully this same indentation in the neck. It was then plainly perceptible, but not quite as plainly as at first. I felt it at that time and examined it carefully, and the same peculiar condition which appeared before at the bottom of the indentation was present—that sort of lea- thery or hardened feeling. The color of the skin had changed,but still the bottom of the indentation was a little different from the other. The color of the whole skin was changed ; it was a sort of yellowish color. WTe examined the heart very carefully, and Dr. Sherman took home several specimens for microscopic examinations. We tried to make a cast of the neck but the heat of the plaster destroyed it entirely. We examined the coronary arteries there as well as the heart, and they were healthy. WTe found the heart after five months quite firm. It had changed a very little. A very little change had gone on—the post mortem change, while other organs were decayed, for in- stance, the brain was decayed, but there was but little decay in the muscles of the heart ; in fact the mus- cles of the whole body were about the same as at the first post mortem. We went down and opened the thigh, where this cicitrix was, and we opened the whole back to see the condition there. There was no injury on the bone under the cicitrix on the leg. The lungs had discharged their contents so that they weighed at that time a pound—they weighed a pound together, showing a difference of 784 785 263 three pounds and a quarter between their weight then and at the time of the first autopsy. I don’t now think of anything further in regard to this second examination. I would note that the mus- cles and limbs and back of the body were very full of blood at this time, that is, of fluid ; there seemed to be a separation between the blood and the other parts, as is always the case, but the muscles were moist. Otherwise I don’t remember anything more now. The valves of the heart were such that they would perform their functions properly. The muscles of the posterior part of the body at that time were full of fluid. I had stated as to the anterior part of the body that on the first post mortem examination the muscles were measurebly empty ; there was that distinction between the ap- pearances at the first and second examinations—but how much was due to post mortem changes I can’t say. As to the character of the muscular sub- stance of the heart I saw no change from the first examination, except a slight softening, and they were perfectly healthy so far as I could detect; but microscopically Dr. Sherman will tell what he found ; he took away some part of the heart for ex- amination. Q. From your examination of the body at these two investigations and dissection, were you able to form a decided opinion as to the cause of death ? A. Well, it was not a natural death. (Question repeated.) I think I am ; whether the death was a natural death, in my judgment, de- pends upon what you call a natural death. Q. Was death, in your judgment, produced from natural causes, as it is ordinarily termed ? A. I do not regard it a death from natural causes. Q. What, in your judgment, derived from the examination you saw and made, did death result from ? A. I think it resulted from strangulation with a rope. Q. Give your reasons for that opinion? A. My 787 788 789 264 conclusions for the opinion I would give are based upon the fact that here is a perfectly healthy body —and finding this heavy indentation around the neck, passing from the Adam’s apple, that is, on each side of it, as has been described before, we find a congested membrane of the brain, and a clot in the brain, and the heart almost absolutely empty—as empty as it could be from its own action —and the congested liver and kidneys and spleen, with food in his stomach showing that he must have died very soon after eating, and with a plenty of fecal matter in his rectum, showing that he did not—I say for the reasons given I concluded it was not a natural death. Q. Give the condition of the lungs? A. The condition I have just stated, I- think, covers the whole. The general absence of blood ; the clots of blood ; the fluid condition of the blood every- where, the dark fluid condition of the blood ; the almost emptiness of the heart. Q. What, in your judgment, was indicated by the condition of the bronchial tubes as you found them ? A. That it was some compression on some portion of the windpipe so that the air passed slow- ly, if at all, in the lungs—I mean measurably slow and the blood was not renewed—that is, it was not reoxidized in the lungs. Q. What did the condition of the lungs indicate, the lungs collapsing ? A. It indicated death from Asphyxia. I mean from preventing the air from passinginto the lungs. Q. What did the clots on the membranes in the brain and heart indicate ? A. That the circulation of the blood had been in some wise obstructed. And this blood I would say had been thrown out and the clot had occurred before the blood had* be- come loaded down with carbon. This indicated that it must have occurred within a short time of death ; I don’t mean that—but before the blood was loaded down with carbon, and it had not been there 790 791 792 265 long enough to become organized ; the color of the pia mater indicated that it had been done at the same time, that is, it is presumable it was done at the same time the clot was formed. The blood be- comes carbonized, because it cannot pass through the lungs and be oxidized, and it, therefore, be- comes black like venous blood. Q. Did the condition of the heart and lungs in- dicate that the heart had acted after the lungs had ceased to perform their office? A. Yes, sir ; it had continued to act as long as it could get any blood to act upon ; it will act often beyond that. I have within my medical experience and reading known of cases of strangulation ; I don’t know of any recently by a cord ; I could not tell you how many I have met; I have seen quite a number but can’t remember how many; within my medical read- ing I have come across large nnmbers, perhaps two hundred and odd. Some of these cases are suicidal and some from ordinary hanging,but as to the hang- ing of the present day the body drops so far from the scaffold that death is almost instantaneous. Q. There is a difference between the cases where there is a heavy fall and where the strangulation occurs from slight depression ? A. Yes. sir. Formerly they run them up and let them die by a slower process, but now they jerk them up with heavy weights or let them drop from a distance, and it makes a vast difference between that and those that were executed by the prior mode of execution. Q. In this experience you speak of cases of suicidal hanging where there was comparatively a slight pressure on the wind pipe ? A. Yes, sir. Q. State the appearance in those cases which you saw, as distinguished from those you have read of ? Objected to ; the Court sustained the objection. The plaintiffs’ counsel there- upon waived the objection. 793 794 795 266 Q. Is your judgment as to the character of this furrow and what produced it derived from observ- ation in other cases ? A. It is. Q. Were there any cases in which the same appearances were manifest? A. Similar. Cross-examined by Mr. Smith: Q. Give us the names of these cases to which you referred ? A. I don’t know that I can. Q. You have just said that you have given your opinion upon what facts you know, and upon cases that fell within your actual observation and knowl- edge, am I correct ? A. Yes. Q. I wish you would give the names, dates and residences in those other cases so that we can identify them l A. I could not do that, I cannot give any of them. Q. Can you give the name of a man, woman or child or other living creature, or their resi- dence ? A. I cannot. They are cases that are dead b}7- this time. Q. Canyon give their residence or date? A. JNTo, for the last live years I have attended fifty thousand people, and I don’t know the name of one of them. There is no way on earth that I can indicate to you when and where those cases were to which I have referred in giving my testimony ; I told you so at the beginning ; I have had some considerable experience for the last fifty years as a witness. Q. Hundreds of times? A. I can’t say that, but a good many times—a good many times for you. Q. Are jrou able to state from memory now any fact that came to your knowledge growing out of the strangulation of any human being, so that you could identify the circumstance? A. I don’t know that I can, Mr. Smith; I tell you frankly that I cannot ; I don’t keep a record of such things. 796 797 798 267 Q. Then so far as you give opinions here which are founded on anything, that foundation is read- ing books? A. JNot wholly, for I don’t read many. 1 have had experience for the last thirty- five or forty years. I had one case in Albany, 1 can't tell how long ago. I can’t tell you those facts. Q. Have you ever in your life made a post mor- tem to the extent of cutting up the body of a person whose death you knew to have been caused by stran- gulation ? A. We never “cup up” bodies in the language of the learned counsel ; we dissect them ; the butcher cuts up, but the doctor ought not to. I was at Binghamton when this first autopsy took place. Q. Was the body of Dwight cut up? A. 1 don’t know whether it was Dwight’s body or not. I said there was a body that was dissected. I don’t know that it was the body of Walton Dwight ; there is some question about that ; it has not been proved that it was his body yet; I don’t say that they got the wrong man ; whosoever it was, when I went there the body was dissected ; it was not cut in pieces : some parts were separated from the others, for instance, the lungs ; the heart was taken out; also the stomach ; the intestines and the lungs and liver were taken out ; the whole contents of the cavity of the body were examined, excepting the pelvis, that was not examined. That is an import- ant part to some people. The tongue was cut out. A portion of the body was put in jars and taken possession of. I took Dr. Porter portions of the intestines and stomach, and of the fecal matter, and a little blood, and Doctor Delafield took a part; I don’t remember more than that. I don’t remember sealing up anything more than the stomach and in- testines ; they were sealed up in two or three jars, and taken to Dr. Porter ; I think three jars and a vial were taken to Porter. Blood was in the vial, nothing else. Those were taken from there to 799 800 801 268 Doctor Porter, and 1 left them with him ; my share was to carry them to him ; I did not have any part of the body myself. I think Doctor Delafield took a part of the same ; Doctor Orton, of Binghamton, took a part; I don’t remember the number of jars, or how they were distributed. I think there were sixteen doctors there, and a large portion of those I understood were old acquaintances of Dwight ; I think one was his brother-in-law ; I understood it was Dr. Ayres. I am inclined to think that none of those were members of the coroner’s jury. I presume that these doctors had an opportunity to see all of the different parts and elements of this body that I did, if they looked; they can answer for themselves ; I suppose they did if they looked ; I am not their keeper ; they know what they saw; I presume they had the same opportunity of seeing that I had; I don’t know that there were any insurance men there on the first occasion ; there was no coroner’s jury on the first occasion ; there were strangers there I don’t know. I don’t know any thing about the subject we were operating upon being really Dwight’s body or not. After I got through I went home to Albany that afternoon. After the lapse of about five months T went again to make a further examination of the body we had examined on the 18th of November; some said it was Dwight’s body, and others said it was not; we went to the graveyard. I don’t know how he was buried ; I assume he had a Christian burial ; they are a Christian people diere ; he was put in the ground and covered up according to the ordinary customs of the country ; on this second occasion he was dug up out of the earth ; I am not sure whether the coffin was taken into a barn there or not; I can’t remember the coffin as well as the auricle of the heart ; he was weighed in the coffin and the coffin weighed afterwards ; I think the body weighed 177 pounds after the leakage. I have 802 803 804 269 had experience as to a man’s leakage after burial. I have taken up hundreds of them. We removed eigh- teen thousand at Quarantine at one time under my supervision I don’t remember what further dissection was done after the weighing ; we opened the body where it had been opened before ; all the organs were examined ; there was no cutting made except on the thigh ; where it was alleged he had received a bullet wound some time or other ; I don’t know that I am the man that took his heart up and stuck my finger through it; I shouldn’t wonder ; it would be just like me; I couldn’t say how many persons were pres- ent then ; there area good many neighbors around there ; I don’t remember now how many doctors there were ; I can’t remember only those I have in- dicated ; I was not in the employ of anybody when I perpetrated that act; I don’t remember of any- thing being carried away at that time, except small sections of the heart; there was no cutting done about the neck on that occasion ; the posterior part of the bod}7—the spinal column—was opened ; the body was turned over on the face and the spinal column was opened ; something was cut out of the back, perhaps 12 or 14 inches—was some of the processes that extend out back ; the horns of the spinal column that extend back, and to which the muscles are attached—that was cut away to get a view of the spinal cord ; I do not remember who suggested the idea of cutting down along the spinal column, so we could get a view of the spinal cord ; I think it was Dr. Burr that did that ; he made the examination. In connection with this second au- topsy, there were several things that we had not dis- covered on the first, that we desired to see ; we wanted to be more sure, that is, to be more positive about the condition of the heart ; we wanted to be sure, positively, about the condition of the bron- chial tubes ; that is about all; we wanted to see the weight of the lungs ; I do not know the reason why all this additional cutting was done, because 805 806 807 270 Dr. Barr did it ; I may have suggested it; I may have asked for it; I cannot tell what it was that 1 suggested should be done in the way of cutting ; I don’t know that I could tell any of it; I suppose we were engaged in that second examination three or four hours ; perhaps five hours altogether, in- cluding the disinterment of the body ; I do not know that there were any insurance lawyers there to help; they may have been there—I don’t re- member now ; we found congestion of the bron- chial tubes—just what we found before, and con- gestion of the larynx ; I have known of a person having died without congestion, since God made the world ; yes, one lived very near me—William J. Hadley—he died without congestion ; I think you knew him in his lifetime ; in the ordinary change that occurs when death ensues, some of the blood vessels are emptied and some are not ; that is not the ordinary event; you will find blood in some of the veins somewheres, exactly where and to what extent nobody knows, unless they dissect them in order to know. I mean by “muscle” the lean flesh, the moving power of the body; when I talk about the “ moisture,” that is the fluid portion—the blood ; it keeps it from becoming entirely dry, like a piece of dried beef ; by examining the posterior part of the body of Dwight, we found just that; I think the muscles are always moist in the posterior part of the body after death ; if a man should die lying on his other side the moisture would be there, most assuredly. The process of settling or sugillation, if it takes place while alive, they call it infiltration ; when a man is hit on the nose, and the blood runs down and colors the nose, that is infiltration—when it gets out of the vessels it is no longer infiltration— then the ecchymosis follows ; that means a black and blue spot, in one sense. I said that the back side of this man’s arm was in an eeehymosed condition ; instead of being a diffused condition it 808 809 810 271 was a localized ecchymosis; this ecchymosed condi- tion was about the size of the head of a pin ; some of them as big as a pea ; they may have been as large as a marrowfat pea, but I don’t think quite as large as that; these ecchymosed conditions on the skin of the posterior upper part of the body were something more than the common pimples you see on a man’s skin ; it was effused blood be- tween the scarf skin and the true skin. The scarf skin is the outer skin of all; this blood was not in the blood vessels ; it was external to the blood vessels ; these little blood vessels had broken. As a matter of science or skill these spots are probably not mentioned anywhere as alone a symptom upon which any opinion can be rested as to the cause of death ; the moment the blood stops running through the lungs so as to be exposed to the operation of the air which is inhaled, it begins to turn black ; the blood will continue to reoxidize so long as the lungs act ; when the lungs have ceased to act, and the man has ceased to breathe and is dead, his blood does not necessarily nor gen- erally turn dark colored right off ; there may be no change at all ; that will depend altogether—if you Avill allow me to explain—there is no change after one is dead, it remains just as it was ; the same amount of carbon is in the blood and remains in it as it was at the time of his death, and the air con- tinues to go through after he does die ; the oxygen remains with the blood as a part of the blood, and as an oxidization of the iron in the blood ; I don’t know that I have ever seen the body of a man killed by manual strangulation—I understand choking means manual strangulation; the books re- gard strangulation as manual strangulation, and they call asphyxia, or at least death from the rope, another thing; asphyxia doesn’t mean strangulation; it means that the air is cut off from the lungs ; I mean that there is no reoxidation of the blood nnd the blood remains in the lungs ; the lungs become 811 812 813 272 filled and they cannot therefore oxidize the blood ; that is the technical meaning of the word “As- phyxia if they get congestion of the brain, they die from asphyxia of the brain ; 1 have seen plenty of cases that I can mention of men having died from asphyxia; lean’t give the name of any of them, nor the place, nor the time, but I can tell yon of dozens and dozens of cases where I went to the vaults and made examinations of them after- wards ; you will excuse me from giving the names fori might get into trouble; in the pursuit of science you do things that you would not other- wise do ; here is a poor fellow just sent from Syra- cuse for the stud}7 of science—I have said that I couldn’t answer the names of the persons, nobody knows better than the counsel liow much I have done in that direction, and how unwilling I would be to mention the names even if 1 knew them, but I don’t know them. Nobody but Professor Porter employed me to come here ; I don’t know when, I think it must have been on the 16th of November, 1878 ; he did not employ me to come here as a wit- ness ; I w7as subpoenaed last week ; I don’t know by whom ; a gentleman came to the office on the part of the Germania Life Insurance Company,I suppose; I came up Saturday night; a week ago Sunday morning I arrived ; I have been engaged here very little in preparing this defense,and have been in con- sultation on the subject very little; they have asked me some questions, or hnve asked me to tell what I knew, or something of that kind ; I have not been in consultation with the defendants upon their tes- timony ; I supposed I would be wanted Monday so I came through Sunday; I wras subpoenaed to be here Monday morning ; I have not been engaged at all in the preparation of this defence and in consulta- tion with the witnesses ; I have attended only one meeting of doctors, held in consultation upon this case ; I was there perhaps half an hour ; I gave no advice about it ; I have not sent for a book of any 814 815 81 f; 273 kind or nature, mine or anybody else's ; I remem- ber of having taken an active part in procuring that second examination of the body ; I did not threaten a coroner with unpleasant processes to be used towards him if he didn’t act; I did not initiate any legal proceedings ; I made an affidavit; I have seen my testimony as entered in the books here, since I have been here ; I have seen a printed book of testimony, one that purports to give my testimony as given before the coroner’s jury, of what I said and did there ; I have read that book ; I read it four years ago, and I lost sight of it until now, quite recently, I asked for one and looked it over ; I have not made a careful examination of it; I have not read it so as to be able to say whether the statement in that book of my testimony is cor- rect or not; I can’t remember without going through it in detail. I signed what was alleged to be the autopsy at the first examination; I signed a paper that was alleged to be the examination of this man’s body; I don’t know anything about where the paper is; it has never been in my possession ; there was one produced at the coroner’s inquest when I called for the original paper, said by them to be the origi- nal paper, but it was not the original paper ; I have never seen the original paper. [The Court here directed the Clerk to produce the paper in file Clerk’s possession, placed there by the Court, and received from Dr.. Orton’s hands.] I stated that I made an examination of the bron-. chial tubes of this body of Dwight; I made a per- sonal examination at the second post-mortem, that is, after the body had been in the earth; all there was of the bronchial tubes was there; I can’t tell' how many bronchial tubes there are in a man, per- haps from 1,000 to 10,000; they spread out like the 817 818 819 274 brandies of a tree ; here is a main stalk, and they spread out in thousands of branches; the diameter depends upon what part of the lungs they are in ; they vary ; some of them are three-eighths of an inch, and some of them are larger and some smaller ; some are not bigger than a pin, perhaps ; I exam- ined these at the first autopsy ; I examined them as the examination was made; 1 didn’t open the lungs for the purpose of going into them, or at least 1111. Delafield didn’t ; I examined those in the first autopsy, so as to be able to testify as to their condition now ; I saw then as they were cut off from the trachea—as the lungs were cut off ; the trachea is the trunk of the tree ; as you go down from the Adam’s apple the trachea continues down about six inches and then divides off into two tubes, the right and left bronchial tubes; after they were cut off they were left in the lungs, of course ; I didn’t say they were cut from the trachea and cut across between the trachea and the lungs ; that was all the opportunity I had to examine the bronchial tubes, as they lay there in the cavity of the lungs ; I saw nothing more than that there was bloody mucus ; bloody mucus in the lungs is a very rare occurrence; it never is there without some remarkable condition ; the bronchial tubes were congested. Q. I want to know of you whether you ever saw a body with moisture of the muscle and tissue, and in the cavity, cut up and laid down in the remains of the lung, without there being moisture? Was there ever a bronchial tube taken out that was not moist, and where there was not mucus? A. You are speaking of mucus, and 1 speak of bloody mucus. Q. I am speaking of bloody or any other kind ? A. These lungs were in the cavity of the chest at the time of the second post-mortem examination, but no blood conld get down ; whatever blood and mucus there was in at the time of the second post* 820 821 822 275 mortem examination must have been there at the time of the first post-mortem examination, and we went through the lungs as carefully as we could, to see if the bloody mucus was in all these bron- chial tubes, and they were so found. Dr. Sherman took sections of them himself, and he will tell you what he found. Q. Have you ever known a case, I say, where the bronchial tubes were cut out and laid down in the lungs or cavity of the chest that there was not moisture? A. They were not cut out—the bron- chial tubes were not cut out. You misapprehend the whole subject, Mr. Smith, I said they were cut off, but not cut out. It would take a month to dis sect them out from the lungs. Q. Have you ever known a case where they were free from moisture and blood where they were cut off, in any man or beast ? A. They always have moisture, but never have blood, except where there is violence used. Q. Did you ever see a case, since you were born, that you can name, of the man or being showing a condition of the bronchial tubes where death is produced by asphyxia ? A. Yes, sir; the wife of the Rev. Henry Budge. It was a long litigated case, if you remember, and turned upon that very point. Q. I suppose you have no more knowledge of the cause of the death of Mrs. Budge than what what was discovered by some such process as this is ; you had no personal knowledge of it? A. I was not there at the time she died. Q. Did you know about it beyond what you learned on the examination and the trial? A. Yes. Q. You were a witness on that trial ? A. Yes, I was a witness. [The paper in sealed envelope here produced and opened by the Court. The papers having been produced in pursuance of a subpoena or notice 823 824 825 276 served upon the Equitable Insurance Company; they were produced by I>r. Orton, who presented them to the Court.] Q. (Paper handed witness.) Will you look at the bottom of that paper now shown you ? A. That is my signature ; I signed that ; but these notes have been re-written ; there are some that may not have been. To the Court.—This paper consists of 12 half sheets ; the original paper, written upon one side of each sheet ; and each sheet is numbered on top from 1 to 12 inclusive. By Mr. Smith: Q. Are you able to state how that page is num- bered upon which your signature occurs ? A. It is the 12th, as numbered here. Q. Now, was the paper read over before you signed it 2 A. It was read over before the post- mortem was done, and before the whole thing was written—all the notes had been made. The paper was read over to me before I signed it. I am not able to say who read it; I know it was read. I have no recollection at all on that subject, but I think it was young Dr. Burr who read it. I think all the doctors were present ; I presume they heard the same reading ; I assume they did ; I assume they all had ears. Dr. Delafield called off the notes as he passed on, and I think young Burr wrote them. To the Court.—He called off the results of the ex- amination 2 To Mr. Smith.—And beyond that Burr composed and wrote it down. After it was written down it was read over. Q. In the presence of how many different doctors % A. I suppose they were all there; I don’t know; I presume they were; I don’t know that 16 were 826 827 828 [Note.—A fac-simile of the notes of this first autopsy above re- ferred to is contained in the Appendix. See page W7T\ 277 there; I think about that number; I think they all signed. Q. Have you read that paper over? A. No; not generally. Q. Does it look as it did then ? A. I didn’t see it then; I saw only this one sheet when I signed it. Q. Was not the general appearance of them as they are here to-day ? A. It is the same paper and same handwriting. Q. You have been understood to say while on the stand here that the paper had been changed ? A. I did, most emphatically. Q. Do you mean by that that there is any change in the matter written on it ? A. Yes; there is some of it that is left out, and there is some of it left in— that is interpolated. Q. If 37ou have not read the paper, and you can- not remember you have ever read it, I would like to know how you know there is anything left out ? A. I will read it, then. Q. Not now; you say something is left out; how do you know it if you haven’t read the paper? A. I know the first page tells it; I have read the first page; I know what is added to it; I didn’t say there was anything left out on the first page; I know something has been added which is a false- hood. Q. My question is as to anything being left out ? A. No, I don’t know as there is. Q. You don’t know that anything has been left out, then; do you know that anything has been put in? A. Yes. Q. Did you see that before you looked at the paper? A. No; I saw it when I looked at the first page; I said the paper presented to me at the in quest was not a true paper; it purported to be a true copy. Inow say that something has been written in that paper I hold in my hand since I signed it; I know that from memory; it occurs on the first page; I have not been through the others; I have 829 830 831 278 read over the first page so as to know. “I)rs. Swin- burne and Ayres think the same caused by bending the head and neck backwards,” that has been in- serted; that is all on that page; I made this discov- ery after the book was published; I think I saw it before that in the newspapers. Q. How long after this was made did you dis- cover it ? A. Within a month, I should say, easy enough. Q. Did you afterwards make any representation about it to these gentlemen? A. I did at the in- quest; I stated it was untrue in every particular; I never had made or signed any such statement; it has been interpolated and forged; on the second autopsy there was a coroner’s jury, as I understand it; there were six jurymen and a coroner—all doc- tors; Mr. Richards was the coroner; I presume they all had the same opportunity I had to see everything that I saw, if they wanted to look; I think they were repeatedly invited to do it, and to take notice of everything that occurred; they may not; I understand they were repeatedly notified by the coroner to witness and take notice of every- thing. When a man dies, his blood decays like the rest of his body; in a man of full health and Dwight’s size, when he dies, I should say a very large portion of the body was fluid; I can’t tell about how much fluid there is in the arteries and veins of a man of Dwight’s size and habits, when he dies, without going to the authorities upon that subject; it is laid down as a rule about what pro- portion of the whole body is fluid; I couldn’t give about the quantity, because I don’t remember; I have not paid attention to the subject, and have not thought of it, and have not looked at the subject; I should think there would be several quarts ordi- narily—all the blood that could be extracted from the body; enough to amount in a body of the size of Walton Dwight to probably 15 quarts; I should judge that when such a man dies the blood runs 832 833 834 279 away; it leaks out of his body; when death takes place the blood stops in the vessels; it remains' along in the arteries and veins wherever it is when he dies, except by gravity it goes down; that set- tling of blood is called sugillation. Re-direct-examination by Mr. Russell : Q. There were questions asked of you in regard to the ecchymosed spots that appeared on this body you examined, as to their character and ap- pearance, and what they signified ; I would like to have you explain in your own words, without interruption, their appearance and signification? A. I know of no cause that will produce a condi- tion like that in a person as healthy as Walton Dwight, as healthy as this body seemed to have been from the post-mortem—that will produce a condition like that, excepting interruption of the circulation in the lungs, or in other words, by as- phyxia ; I know of no other. Q. State their appearance a little more definitely ? A. They were very dark colored—dark, like venous blood ; I mean black, and they seemed to project from the skin, like, say, a third of a pea upwards, that is, like the section of a little globe. Q. And what produced those spots ? A. It is blood leaving the vessels and going between the scarf skin and the true skin ; if it was below the skin it would be diffused. Q. What produces that result of the blood leav- ing the vessels and going where you indicate? A. The blood is presumed, when oxidized, to be thin, and the vessels cannot hold the blood as readily as at other times ; it is like the blood in certain diseases where it is thin, but in this case it is put in that condition by the action of the carbon; carbon puts it in a condition where it won’t coagu- late, and hence, if it is thrown out between the true skin and the scarf skin, it is in the form of little 835 836 837 280 semi-globes, bat it is allfdue to the thinness of the blood, and its escape therefrom, bat why it should come out under those circumstances I can't tell you. Q. Well, hasn’t the action of the heart, in acting powerfully in the early stages of asphyxia, some- thing to do with the production of those spots ?: A. The action of the heart, in the early stages of asphyxia, would not produce it; it is only when the blood becomes thoroughly carbonized that this takes place ; the effusion in thepbrain was evidently done during full life, and these clots were done while the blood was still dark and full of carbon. Q. You were inquired of as to when the blood begins to turn black, as time of death ; ex- plain your meaning fully on that subject % A. The blood begins to turn dark whenever the air is ex- cluded from the lungs, and the oxygenation dimin- ishes. Q. You were also interrogated as to cases of strangulation, and you stated you could not give the name ; give the reasons why you can’t give the name % A. In many instances we get the knowl- edge in a way that might, perhaps, not be con- sidered fully legal; again we would get them from persons we don’t know anything about—at the dead house, whose names are not known, and in the multiplicity of those things I don’t keep a rec- ord, and out of the 50,000 I have attended during the last five years, I don’t know that I can mention a single name, unless there was some peculiar cir- cumstance that drew my attention especially where there was something connected with their history. Q. Now, with reference to the Coroner’s inquest,, did you have any part in that examination, or in questioning the witnesses ? A. No, and no one else, excepting the Coroner’s jury. Q. You also said that the existence of bloody mucus in the bronchial tubes was extremely rare \ 838 839 840 281 A. I did say so, because there are very few that die in a way that would give you bloody mucus. Q. The counsel asked you in regard to the cutting of the bronchial tube ; state the manner in which it was cut, if at all, on the first examination ? A. No ; they were only cut—the lung cut from the trachea—that is. the ordinary windpipe would leave open one or more bronchial tubes ; those tubes go to the lungs, and divide and ramify through the lungs, and finally terminate in little air cells, and when you cut off the lungs you have the bronchial tube exposed ; that is, you see their inner side and lining, and so as to the trachea. Q. There was no such thing as cutting the bron- chial tube out of the lungs? A. No, sir; you might cut out pieces ; the lungs are made up of the bronchial tubes and air cells, and connected with tissue, and that is all there was of it. Re-cross-examination by Mr. Smith : Q. Was there a lawyer present representing the insurance companies at this inquest? A. I don’t know. I think Mr. Mag-one was there ; I think we went together. He went there. I don’t know whether he was there at the inquest, T don't be- lieve he was. I presume that I wrote questions and handed them in to be put Iqy the Coroner ; I can’t remember, I don’t know that Mr. Magone did. I can’t tell. I don’t know but that Mr. Richards was there, but I don’t know whether for the com- pany or not. I don’t know that lie wrote ques- tions to be put. Q. I want to know of you, whether you mean to be understood by this jury as saying that the rea- son you can’t give the names and circumstances of persons whom yon have examined who have died by means of strangulation, that it is connected with grave robbing \ Is that what you mean? A. I didn’t say that; that is not what I mean ; it is 841 842 843 282 not connected with any wrongful possession of the bodies. Q. Then it is because you don’t remember? A. No ; perhaps not altogether that ; I remember the facts, but 1 don’t remember the names. Q. I want to know whether you mean to be un- derstood as swearing positively and without quali- fication that you ever made or witnessed the post- mortem of any single body in this world who come to his death to your knowledge by strangulation ? A. Yes. Q. Then do you mean to say any such thing oc- curred in your career as a man coming to his death by strangulation and you not remember who it was ? A. Y^es. Q. You don’t remember who it was or where it was? A. I mean that. I remember of an instance of Mrs. Budge which has become a famous case. Q. You put that in a book? A. No; 1 don’t print books. Q. (By Mr. Russell:) Were there any ques- tions permitted to be put on that Coroner’s in- quest, by you or by any other person save the coroner and the members of the jury? A. No. Q. (By Mr. Smith:) Are you able to answer from memory and say just wliat you have stated, that no questions were permitted to be put, except by the coroner and jury ? A. Yes. Q. That you remember ; now, if you are able to remember that, why can’t you tell whether written questions were furnished to them to be put ? If you remember one thing why don’t you remember the other? A. I said to you I thought there were questions written. Q. Why do you remember one and not the other ? A. One is very significant and the other is not; I can’t say that I remember whether questions were written to be put or not, but I think they were. I have finished reading the paper to which my atten 844 845 846 283 tion was called last evening (notes of first au- topsy). Q. Is there anything, so far as you know, that was in that paper when you signed it that is now omitted ? A. Yes. Q. Give, as near as you can, those words you think were thus omitted? A. The word “cica- trix” is omitted; it is scratched out—in addition to “nodules” ; there are others added ; there are other words omitted than the word “cicatrix.” On page 6, the word “bloody”—the word “cica- trix ” is omitted on page 6 ; I don’t remember of that word “nodules” being there when I signed the paper ; the word “ nodules ” is written in the place of cicatrix. I think “cicatrix” was stricken out since I signed the paper ; I think it was, to the best of my recollection; but I wouldn’t say posi- tively, because I didn’t see it done. Q. Was the word “ nodules ” in there when you signed the paper ? A. I should say not, because the word “ nodules” has been interlined. Q. Can you remember, so as to testify to it, whether the word was in there or not at the time you signed the paper ? A. I should say it was not in there. Q. Now, is there any other omission which you can point out and indicate ? A. I would say on page 9 the word “chronic” is interlined. Q. Are you able to point out any other omission in there—anything that was in that statement when you signed it, that is not in there now? A. Yes; the words “ bloody mucus.” In reference to the bronchial tubes, on page 6, also, it is omitted; it does not appear on the paper at all. Q. If it does not appear on the paper at all, then the paper is just as it was when you signed it in that respect? A. Not necessarily, by any means. Q. Do you mean to be understood as testifying that in the paper that you signed, those words 847 848 849 284 occurred but do not occur on this paper—do you mean to testify to that ? A. To the best of my recollection. Q. Do you mean to testify to it without qualifi- cation? A. As it was read—yes. Q. Who read it ? A. Dr. Daniel Burr—so called —I mean by that, that he was called Daniel ; I suppose that is his name. Q. Can you tell between what two words those words “ bloody mucus ” occurred in the reading that does not appear on this paper? A. Between the word “with” and “mucus”; in the expres- sion, “ bronchi congested and coated with mucus,” the word “ bloody ” is left out ; it is only the word “bloody” that is left out. Q. Now, can you point out any other omission in that paper wherein it differs from what it was when you signed it? A. I do not discover any from the reading of this; I don’t know of any now. Q, Point out anything there is in that paper that wasn’t there when you signed it? A. The name, “ Dr. Swinburne,” has been put in there since it was signed, and there is a dash and a cross oti the first page ; I will say that there are two Dr. Swin burnes there, so I want it to bedistinctandpositive where it is ; I don’t see any other addition on that page. Q. The question is, as to the paper? A. I wras theii looking at this page, and stated that on the first page were the words, “Dr. Swinburne,” to- gether with a dash and a cross had been added. Q. Are you able to make any further answer to this question ? A. I don’t see any other. Q. On the paper ? A. I don’t see any other. Q. This character which you see on the first page of this paper and call a dash is a straight horizontal line in the margin at the left hand of the word “doctor,” isn’t it? A. Yes; about three-eighths of an inch in length. 850 851 852 285 Q. And the words that occur there under “Swin- burne” are the words Dr. Ayer? A. Yes. Q. And this character that you call a cross is di- rectly at the left hand of the words of “ Dr. Ayer” ? A. Yes. Q. And that character which you call a cross is the ordinary character of plus in arithmetics? A. I suppose it is. It means “plus”—that is, they have “ plussed ” it in. Young Dr. Burr wrote that paper that I signed. He also wrote the paper that I signed there during the course of the pro- ceeding at which Dwight was dissected on the 18th. I think that he had a board that he held in his hand and then wrote upon it. Dr. Delalield dic- tated the matter to be written. I made several sug- gestions; I don’t think anybody else did at the post-mortem. Q. Then the office that Burr performed so far as you know was that of a scribe to take down what was suggested to him ? A. I supy>ose—I presume so. By Mr. Bussell: Cj. Did the paper that you signed consist of sheets attached together, or was it composed of dif- ferent sheets of paper ? A. Sheets of paper differ- ent; I would say before you go to that, that there wrere two sets kept by Dr. Burr. Q. And was there more than one of those two sets read? A. No. Q. Were there two sets that were signed by any- body ? A. No. Q. And the paper that you signed was the last paper of several detached sheets ? A. Yes; how many I don’t know. Q. Did you see or read for yourself any portion of that paper after it had been written? A. No. Q. Then you simply signed it supposing it was correct ? A. It was signed after these amendments 853 854 855 286 which were suggested were supposed to have gone- in. Q. By “ amendments” you don’t mean these al- terations which you suggested here? A. Yes, sir; they went in at that time mostly, they were in at the time it was read. For instance that one on the first page. That first page was written full and written clear down. “Dr. Swinburne” was not interlined then. Q. Then the additions which you pointed out here as not having been made to your knowledge were not there to your knowledge when you signed it, were they ? A. No. Q. Nor were the omissions you refer to there ?' A. No. Q. You supposed they were added? A. I will explain that first page. Q. Explain anything you desire in regard to the incorrectness of the first page. A. When the re- port was read after the autopsy was finished on reading the first page Dr. Ayer suggested—this first page was written full—this page was written full and this was interlined there on the side by some one else. Q. What word? A. The words “Dr. Swin- burne and Dr. Ayer think the same was caused by beuding of head backwards.” That was inter- lined, and therefore this sheet must have been writ- ten full, that is the reason why I say it was rewrit- ten. Q. Do you mean that those words “ Dr. Swin- burne and Ayer think” were put in there before you signed the paper? A. No; the word “ Swin- burne” was never in there. Q. Before you signed any paper? A. No, it was not. Q. On the third page were the words “ inner sur- face of dura mater on right side unusual vascular- ity there” ? A. That I don’t remember. Q. On the second page were the words “small 856 857 858 287 clots” in the papers as read to you ? A. Well “ clots” were noted, but I don’t know whether the word “small” was or not; that was coagulated—I think it was “coagulated”—I think so but I couldn’t say as to that. Q. Was the clot of blood you saw in the brain any sufficient cause of death ; A. No , it was not. It was between the dura mater and the pia mater ; it was not in the brain tissue at all. By Mr. Smith : Q. Do you know how much blood must be clotted in the brain to cause death? A. No. Q. Was this paper read over and were sugges- tions made as the reading progressed on the occa- sion when you signed it ? A. A paper was read of which the last sheet is a part. Q. Did anybody suggest the words “bloody mucus” ? A. No ; it was in at the post-mortem. Q. Now do you mean to be understood as testify- ing that you can remember now, as you sit in that chair, what was said upon the subject of dura mater if I get the words right? A. I can’t perhaps re- member the words. Q. Do you think you can remember the substance of any sentence that is in this paper from memory so if I should ask you to repeat it now you can re- peat it? A. I can remember all the facts. Q. The substance of any sentence that is in this paper so you can repeat it? A. No ; I don’t think I can. 859 860 861 Thomas W. Whitney, called as a witness on behalf of the defendants and sworn, testified as follows : Examined by Mr. Larocque: I reside at Binghamton ; have resided there all 288 my life; my occupation is that of a jeweler; have been in that business for about fifteen years; my place of business in Binghamton is corner of Court and Washington streets. I was acquainted with Col. Walton Dwight in his lifetime ; I knew him well ; he was in the habit of coming into my place of business occasionally. After his troubles at the Dwight House had been closed I recollect an inter- view with him in my store, when the subject of Chicago was talked about; in that interview he spoke of “getting to the front,” as he called it. Something was said upon the question of poverty— about his losses. He spoke of his misfortune and said lie had got to get to the front, and spoke, I think, of going to Chicago. That is about all. He made the remark that a man might as well be in hell as to be poor. Cross-examination by Mr. Smith : I agreed with him ; he was talking there ; he was there some time ; there was pretty high talk ; lie felt good ; this was before he went to Chicago ; lie was talking of going to Chicago—about going out there and teaching those fellows how to make a “corner” and how to speculate, and how to be rich and not be poor any more. Q. After he had got tilings fixed in that way was there anything said about his coming back and giv- ing these Binghamton chaps a little instruction? A. Yes, he spoke about coming back and having some money. He talked pretty big; I don’t re- member much what there was of it. 862 863 864 289 P. K. Burhans, called as a witness on be- half of the defendants, and sworn, testified as fol- lows : Examined by Mr. Larocque : I reside in Binghamton ; have resided there since 1872. In 1878 I was in the insurance and real estate business. I represented the Metropolitan Life In- surance Company of New-York. An application came into my hands, as such agent, in the month of September, 1878, for a policy on the life of Walton Dwight; H. C. Hermans presented such application to me. I had no conversation upon the subject with Mr. Hermans, prior to his bringing me that application, on September 5th, 1878,—the same day I had. He came and asked me for a blank application, and I gave it to him. An application, tilled up, came into my hands afterwards, on Sep- tember 5th ; I sent it to the company, and got back a policy on the application. I delivered the policy to Hermans. Up to that time, I had never seen Mr. Dwight on that subject. I received back the policy September 10th, and delivered it to Hermans. About September 30th, I think, I received a letter from the company. (Paper handed witness.) That is the letter received by me from the Metropolitan Insurance Company, September 30th. I wrote back to the company and asked them some questions- I subsequently got an answer to my questions*. (Paper handed witness.) That communication was1 received October 10th, 1878, in answer to my re- quest. I subsequently had an interview with Colonel Dwight, on the subject of these communi- cations, and exhibited them to him. I can’t ex- actly tell the date when I saw him first—it was- somewhere between the 10th and 15th of October,. 1878. I think I saw him about the 13th. I don’t think it would vary a day. I saw him on the street. I delivered that letter of October 10th to 865 866 m 290 liim. I don’t recollect whether I gave him the other. The letter referred to was then introduced in evidence by counsel for the defendants ; it was marked exhibit No. 83. As I have said, I think I met Colonel Dwight on the street, on the 13th, as near as I can recollect it. I told him I had received a letter from the company, and they were dissatisfied with carrying the policy. And I walked along with him to the Broome County Bank, and told him if he would wait until I went into the bank and got the money, I would pay him, and he said, “No, walk along, I am going to. the Spaulding House ; walk along down.” And so I did, and 1 got down there and talked with him some. It was about 11 o’clock in the morning, and I told him I would come back and get the money, and come down and tender him the money. He said I was all right, “I don’t blame you; you are doing your duty, but I calculate to give no policies back.” And I went back to my office, and got de- tained there, and did not go down the same day. The next morning, they told me he had gone to New-York on No. 12, at 11 o’clock, and they said he would be back that night. The next morning, I went down about the same time, about 11 o’clock, with the money. He was sitting in his room, and said he was feeling sick. He said he came back from New'-York, and was sick. I offered him the money, $66, and demanded the policies. He said he would not give up any policies, and the insur- ance companies were all making fools of themselves, and lie didn’t see what they were all kicking about. I told him that it was on account of his spitting- blood. He said, “I have not spit blood; I have not misrepresented my application, and if I die, they can cut me up in shoe strings to see that I have not misrepresented myself in 868 869 870 291 the applications or policies;'’ he said, “ I have not misrepresented at all”; I think that was the first talk in which I showed him the letter Exhibit 83— the first time when he went to New-York in the evening. I spoke to him about his having answered, in the applications that he had not had spitting of blood ; lie said I was not the first man that had been down to try and get back a policy. He said he had not heard of anybody getting them back yet, and then he turned to me and said, “ I am sick, 1 am very sick, I am feeling very bad indeed, I am so anxious to get well to go to Chicago. I have a big scheme I want to put through in Chi- cago.” That was about the drift of the conversa- tion we had at that time. I didn’t get the policy, I know. (Paper handed witness.) This paper, Exhibit 63 is the policy that was obtained on the application I referred to. (Paper handed witness.) This paper, Exhibit 42 is the application as to which I have testified, on which the policy Exhibit 63 was issued. My first interview commenced on the street; my second in- terview was in Col. Dwight’s rooms at the Spauld- ing House, in the cottage. At that interview, he did not look to me very sick; he had just com- menced being sick. I told him, “I don’t think you look very sick,” and he said, “ I am feeling very sick and you can’t always tell how a person feels by looking.” Cross-examination by Mr. Newton: I remember exactly the time I handed this policy to Mr. Hermans; it was, I think, September 10th, 1878, and in my office. I got the premium at that time, right away in less than fifteen minutes. I received a letter from the company September 3d. (Produced.) I received one earlier than this from the company relative to the reduction of this 871 8T2 873 292 policy. I had no interview with Mr. Dwight rela- tive to this reduction after the application went out; I had such an interview with Mr. Hermans; the company refused to reduce it; after the request to get this policy reduced was made I sent a tele- gram to the company. I do not remember the pur- port of that telegram—its general purport and what the request was that was in it. I received an answer to the telegram I sent; I have got it some- where, but not here; I found it once, six months or a year ago; I have not recently looked for it; I think it is down in my safe at Binghamton. I have the letter now to which I referred in my cross- examination. (Same produced.) The counsel for the plaintiffs offered the letter in evidence. Objected to as immaterial, having no bearing upon any question that is pre- sented in this case ; it is something that was apparently received before the company had notice which led to their subsequent action which the witness has testified to, and when they were in en- tire ignorance. The Court overruled the objection, to which ruling the counsel for the defend- ants duly excepted. It was marked “ Exhibit M.” Re-direct-examination by Mr. Larocque : Q. When was that letter received ? A. I think it was September 7tli. Q. Was that before any policy had been re- ceived ? A. Yes. Q. Was it before you had received any notice from the company that they had information tend- to show misrepresentation in the application ? A. It was before. 874 875 876 293 Horatio C. Wood, called as a witness on belialf of defendants and sworn, testified as follows : Examined by Mr. Russell: I reside in the city of Philadelphia ; I am a physician ; have been a physician since about 1862, about twenty-one years and a half. After gradua- tion in the University of Pennsylvania in 1862, I went in as resident physician in the City Hospital, and stayed there one year ; then occupied a similar position in the Pennsylvania Hospital ; from there into the service of the United States Government and was stationed at various army hospitals in Washington and Virginia ; I then resumed the prac- tice of my profession in Philadelphia, as near as I ■can recollect about 1869, but 1 am not sure of the year, and was elected visiting physician to the City Hospital, so-called—Philadelphia Hospital—where I have been ever since; and a year or two subsequent to this I was elected to the Professorship of Nervous Diseases in the University Hospital and I have charge of that department there both in the hospital and the dispensary service ; of course, during all those years I have been engaged in the private practice of my profession in the city of Philadelphia ; I have investigated and written works on different medical subjects ; I have writ- ten a number of works on scientific subjects, and a very large number of papers on medical subjects. Of books, I have an elaborate book on “Fever” published by the Smithsonian Institute, and a book on “Sunstroke.” One entitled “Brain Work and Over Work,” published in Philadelphia by Lindsay & Blakson. A book on “Therapeu- tics or the Treatment of Diseases,” published by J. P. Lippencott & Co., and in the last edition of the United States Dispensatory I was senior editor and responsible for all that appeared in the book. I may say that the additions were such that 877 878 879 294 the book was almost a new book, nearly two-thirds being new. I am a member of the National Academy of Science ; there are two physicians in civil prac- tice in the United States in that body, so far as my knowledge goes; I am one of those two; I am familiar with the holding of autopsies ; it is hard, to give a definite number of those I have taken part in ; in my early years, I made three a day for weeks together ; I have made many hundreds and possibly thousands. Q. Were you at any time familiar with a case of congestive chills? A. Yes, I have seen it in the city of Philadelphia. Q. Did the case originate in Philadelphia or did it come from other quarters ? A. I have seen one case originate there that I remember and one case coming from outside ; I have an indistinct recollec- tion of seeing other cases, but I cannot fix the date or times. Q. What are the lessons that medical science teaches upon the examination of the human body* after death ? Objected to on the ground that it is a broad abstract question which nobody can understand or answer and is not evi- dence. The Court sustained the objec- tion, to which ruling counsel for the defendants duly excepted. Q. Can you derive from examination of the body after death a certain indication or proof as to the cause of death? A. Yes, in almost all cases. Q. Upon what do you base that opinion ? Objected to on the ground that it is immaterial and that it would take t wen tv- five years to answer it. The Court sustain- ed the objection to which ruling the coun- sel for the defendants duly excepted. 880 881 882 295 Q. Do the conditions of the various organs of the human body present changes which indicate the cause and manner of death ? A. Yes, and the dis- covery of indications is the purpose of making the autopsy. There are different symptoms attending diseases which are designated by the medical pro- fession as “objective” and “subjective.” Subject- ive symptoms are those which are told to the physi- cian by the patient and concerning which the physician is to a greater or less extent dependent upon the statement of the patient. Objective symptoms are those which are seen by the physician for himself and are more or less completely inde- pendent of the statements of the patient. Q. And which is the most important and satis- factory ? A. Sometimes one and sometimes the other. There are certain objective symptoms which can not be feigned by the patient. Q. Name some of those? A, Disturbances of the temperature and the pulse, and the results obtained by the thorough physical examination, thorough listening to the heart’s sounds and by determining by auscultation and percussion the condition of the internal organs. Q. Is morphia capable of producing feebleness of pulse ? A. It is. Q. You have spoken of cases of congestive chills ; describe the symptoms in the patient? A. The last case I saw of congestive chill was in the person of a gentleman who was passing through Philadelphia, and was suddenly taken ill in a street car. forced to get out, was helped into some building ; was there some three or four hours ; at the time,according to his own statement afterwards, thought to be dead ; he was brought to the University Hospital where I saw him myself at that time ; he was in a condi- tion of semi-unconsciousness, taking no notice of anything but capable of feebly answering questions when loudly spoken to, and aroused ; and his voice was whispering and was so feeble that ir could be 883 884 885 296 heard with difficulty ; his pulse was rapid and very small and very feeble ; the surface of the body was intensely cold, and with more or less sweat- ing ; the temperature of the body was much below normal, that is natural temperature ; the man was put to bed and suitable treatment was instituted and in the course of five or six hours the symp- toms gradually passed off. Congestive chills are only a very bad form of ma- larial or intermittent fever, and the basis of the symptons, so to speak—the general outline—is that of an ordinary attack of intermittent fever. In the first stage there is an appearance of coldness, with some cases an actual lowering of the bodily temperature ; in other cases in the beginning a ris- ing of temperature—the internal temperature, as tested by the thermometer. This condition of so- called chill lasts from twenty minutes to twenty hours, according to the circumstances of the case; it is then succeeded by the so-called hot stage of the fever, in which there is a very decided fever ; the temperature of the body rises very much, some- times reaching 105°, 106°, 107° and even a greater degree of temperature ; there is thirst and head- ache and hot skin, and rapid and usually bound- ing pulse, sometimes nausea and sometimes various other disturbances. After this state of heat has lasted for a varying time, the third or sweating pe- riod occurs. The patient begins to sweat about the head and neck, and as the sweat develops the fever heat gradually falls, and the patient is cov- ered finally with a profuse perspiration, and when this ceases the individual paroxysm is over. In congestive chill, so called, we have various al- terations of this. The ordinary or typical con- gestive chill is the so-called algid form of the at- tack ; it consists in an increase in the intensity of the first stage of an intermittent fever. The symp- toms of this chill are coldness of the surface, usu- ally accompanied by internal coldness, sometimes 886 887 888 297 by internal rising of temperature, profound pros- tration and rapid, feeble pulse, excessive muscular weakness, more or less disturbance of the mental action, and finally, in bad cases, the well developed symptoms of collapse, the paroxysm very rarely lasting under five or six hours, and usually lasting many more hours, and sometimes over a whole day. There are other forms of this fever, if you wish them described. There is a rare form of this fever in which the disease attacks the brain. Then the symptoms are usually coldness, failure of pulse, but especially loss of all mental powers, with dis- turbance of the respiration. There is a third form of fever that I recall, a very rare form, in which the attack is chiefly connected with the alimentary canal ; here there is profound prostra- tion. also excessive vomiting and discharge of watery or serus stools, resembling somewhat those of cholera, with symptoms of collapse. There is another form sometimes seen, in which, along with the brain symptoms I have spoken of previously, there are convulsions. In all these forms the paroxysm lasts many hours. Q. Are congestive chills following on ; are they concurrent with changes of temperature ? A. Yes, concurrent witli it, and may be followed. Q. Where does mucus come from in the body that in coughing is streaked with blood ? A. Usu- ally it comes from the lungs ; it may come from the throat. Q. What does the existence of nodules in the lungs indicate ? A. Various things ; they may in- dicate cancer of the lungs ; hard, fibrous nodules indicate previous ulceration and destruction of the tissue of the lungs ; they are usually of the same character as cicatrixes or scars on the external sur- 889 890 891 298 face of the body ; it is a scar in the lungs and indi- cates a past destruction of the tissue. Q. Do lacerations of the lungs generally produce hemorrhage or spitting of blood? A. Yes, the blood vessels of the lungs are excessively numer- ous, occupying in all parts of its tissue and being many of them very small and placed very close to one another. Q. What are the symptoms of bronchitis which would be noticed by a person who had not any medical knowledge ? A. Coughing and spitting or expectoration ; beyond this it depends how closely a person observes ; bronchitis is an inflammation of the lining of the membrane of the bronchial tube. Q. What are the characteristics of blood from the lungs which would be perceived by an ordinary person ? Objected to on the ground that it im- properly calls for the conclusion of the witness in asking him to judge who an ordinary person is ; the Court sustained the objection, to which ruling counsel for the defendants duly excepted. Q. What are the appearances of the blood from the lungs ? A. Bright red, more or less frothy. Q. Can blood of such bright character come from the Anger ? A. Y"es ; that depends upon whether the artery is cut. Q. Now, assuming the person has had a cold, with very frequent cough, spitting of mucus streaked with blood, spitting of considerable quan- tities of blood ; a year afterwards hard nodules of a scar-like or cicatricial character are found in the apex or upper part of the lungs on the post-mor- tem examination, is there any, and if any, what presumptive connection between the nodules and the previous cough, in your opinion ? Objected to on the ground that it is 892 893 894 299 not competent to submit to a scientific gentleman, because it is not a matter of science what the presumptive connections are ; the Court sustained the objection, to which ruling the counsel for defend- ants duly excepted. Q. Assuming the facts as I have indicated in my previous question, in your opinion, is there any connection? A. Yes. Q„ What is the connection between the two? A. As I have already stated, the fibrous nodule in the lung is almost invariably the cicatrix of an old ulceration ; ulceration of the lung is a common cause of hemorrhage of the lungs, and having, therefore, a history of the presence of the common cause of hemorrhage from the lung, and a history of the presence of the hemorrhage, the presump- tion is that the cause is—my opinion is—that the effect lias followed from the cause, and the ulcera- tion been productive of hemorrhage. Q. Assume that a man. who has enjoyed previous robust health, has been sick for five weeks, has had some headaches which have been called congestive chills, which have lasted one half hour each, and have not been followed by any fever or sweating stage ; that during the sickness the man has had no departure from natural temperature ; that upon a certain day he eats his dinner, goes out to the sitting room, attends to some business, has a bath, passes under the hands of the barber, is left in good condition, at about 9:30 p. m., is found dead at 11 o’clock, and at the subsequent autopsy the body shows no signs of violence, and the structural changes are liquidity of the blood, evidences of congestion of the lungs, with emphysema and oedema, the liver and spleen being healthy, could such a man, in your opinion, have died of conges- tive chills, or any other form of malarial poison ? A. That man has not died with malarial poison. 895 896 897 300 Q. What do you mean by the terms emphysema and oedema used by me in my question ? A. Em- physema is rupture of the air vesicles of the lungs so that many vesicles are thrown into one. Q. Air cells? A. Yes. Oedema is the throwing out of the serus fluid from the blood into the tis- sue. Q. Will you state then the facts upon which your opinion is based in such case ? A. Length of the alleged chills, or rather the shortness of the alleged chills, the absence of the disturb- ance of the colorification, as to the tempera- ture of the body, the suddenness of the death, the fact that after death not one of the characteristics, pathological changes, or lesions of intermittent ma- larial fever are found in the body, and the presence of organic changes in the body which intermittent fever is not capable of producing. Q. What does the presence of bloody mucus in the bronchial tubes indicate, in your opinion ? A. It is an indication of death from suffocation. Q. What, in your opinion, do the ecchymosed spots upon the body indicate? A. It depends up- on the character of the ecchymosed spots, their po- sition and nature. Q. What do the large number of ecchymose spots upon the back and arm indicate? A. They indicate especially, if confined to that region of the body, death from suffocation. Q. What does the emptiness of the heart indi- cate ? A. It indicates that the heart has emptied itself. Q. In connection with the congested condition of the lungs and other organs, what does the empti- ness of the heart indicate ? A. It indicates that the patient died from some form of suffocation, and has had a very powerful heart which has continued very late in its action. Q. What does the bursting of air cells in the lungs indicate ? A. It indicates very violent efforts 898 899 900 301 at respiration when the respiration has been im- peded. Q. What does the intensity of the engorgement of the lungs connected with the clot in the brain indicate? A. It indicates it was from suffocation by something which has obstructed the circulation in the neck. Q. A furrow, about the sides of the neck, nearly meeting in front and behind, about the size of the little finger, rounded at the bottom, the skin involved in the furrow dense and hard, with a sur- face like parchment, the furrows beginning in the front just above the larynx and extending upward and backward at an angle of nearly 45 degrees ; can you state, in your judgment, what instrument or mechanical cause would produce such an im- pression in the neck ? A. Such a furrow could only be made by rope or cord of some character, either before or just after death, applied with con- siderable force. Q. In your judgment would there be any connec- tion between the existence of such a furrow and a highly congested state of the lungs, and a clot in the membranes of the brain ? A. The internal con- dition which you speak of is that of asphyxia. The furrow is the track of an instrument capable of producing asphyxia, and the probabilities are, therefore, that asphyxia has resulted from appli- cation of the instrument. Q. From which of the organs of the body is death immediately produced ? A. Death only results in two ways or through two organs—immediately re- sults I should say from two organs—either through failure of the heart, or through failure of the lungs, to perform their duty, death is either from failure of circulation, or else from failure of respiration. Q. What are the lesions or structural changes of sudden death from the heart, generally including deaths from violence? A. Wounds of the heart; grave injuries to the nervous system from cannon 901 902 903 302 balls; heavy bodies falling, producing shock, and other forms of violence. Of sudden heart deaths not connected with external violence, there are occasional cases of localized diseases at the base of the brain forming the heart nerves : then we have changes in the heart itself, diseases of the heart valves, diseases of the heart walls, either in the form of fatty degeneration or otherwise, and dis- eases of the coronal artery, which is the great ar- tery which supplies the heart with food—that is, with blood. Q. What are the lesions of sudden death % You may - state first in natural form of death, and, secondly, in death from asphyxia \ A. In the natural form of diseases the lesions might be a clot or hemorrhage into the small localized region at the base of the brain where the centers of the nerves of respiration arise. Thus we may have a respiratory death from excessive violence, failure of respiration forming part of the shock ; those are the only cases I think of now. The lesions of the lung substance in asphyxia from natural causes are simply congestion ; the lesions of the lung substance from causes unnatural, that is, not due to diseases in the body, are congestion, emphysema and oedema, these are the common lesions of asphyxia, under some circumstances, one or more of them may be absent. Q. Wliat does emphysema or bursting of the air cells of the lungs indicate in the case of sudden death % A. It indicates there has been a great ef- fort on the part of the powerful respiratory mus- cles to drive the air out of the lungs, and that then this effort has been resisted by some obstruc- tion above the lungs, and that those portions of the lungs which were weak—that is, the exterior, su- perior and upper parts—and are not supported by the close adhesion of the tissue around them burst. Q. What does congestion of the abdominal or- 904 905 900 303 gans, kidney and stomach, indicate? A. Death from asphyxia. Q. What does the liquidity of the blood indicate in such cases ? A. It indicates asphyxia, but is not peculiar to it. Q. What do the sugillations indicate? A. If they are situated in the upper extremity, they are indications of death from asphyxia. Q. What do you mean by the term sugillations? A. I mean small spots, not broad and spread out, or large, of a black or blackish color, which are on the surface of the body, wherever they may be. Q. How are they produced ? A. By the rupture of the small veins ; it forces out the blood from that vein or venu, which is highly carbonized. Q. IIow? A. By the action of respiration. And the reason they are found only in cases of asphyxia, in the upper extremity, is because the blood is not driven into the lower extremities during the forced respiration, from the fact that in the veins which run to the lower extremities are valves which resist the backward passage of the blood, whereas in the upper extremities these valves are very small or altogether wanting, and do in a way allow a back- ward current of blood to How in an unnatural di- rection. Q. What are the different forms of asphyxia and how do you distinguish them? A. The different forms of asphyxia are those forms which are con- nected with the evidence of mechanical violence to the neck and the forms in which no such violence is apparent. Q. What distinction do you make between them? A. The distinction is to be confined to marks or absence of marks of violence on the neck. Q. Is there any distinction to be observed in the internal organs? A. No ; not if I understand the word ‘‘ asphyxia” as you mean it. Q. Is it possible for a man to hang himself in bed? A. It is. 907 908 909 304 Q. How long does it take a man to die in stran- gulation when there is no injur}' to the spinal cord? A. I should say the usual time is from four to five minutes. There are cases in which death has been longer delayed, and cases in which it has appar- ently occurred earlier. It depends largely on the perfection of the closure of the windpipe by a cord in front. Q. In the case of asphyxia are there not violent efforts to draw air into the lungs as well as to expel it? A. Yes. Q. I recite to you certain facts which I assume for the purpose of asking your judgment upon those facts, as a medical expert: You examined about fifty-eight hours after death, in the middle of November, the body of a man found dead at about 11 p. m., having been last seen alive one hour and a half before, and then apparently not in a con- dition of apprehension of sudden death ; you find it to be the body of an unusually large and power- ful man, great muscular vigor, with a considerable development of firm fat, forty-one years of age ; you find nothing unusual in the appearance of the face and the general surface of the skin, except the presence of small dark spots, indicating a little ef- fusion of blood in the skin of the back and the back of the right arm ; a furrow about the sides of the neck, nearly meeting in front and behind about the size of the little finger, rounded at the bottom, and the skin involved in the furrow dense and hard, and the surface like parchment, the furrow begin- ning in front just above the larynx, extending up- wards and backwards at an angle of forty five de- grees; the brain and membrane perfectly natural and healthy, except a clot of blood on the surface on one side of the head, the clot being evidently of very recent origin, but not sufficient to produce death ; the lungs deeply congested with dark liquid blood, but presenting no evidence of inflammation; a few small fibrous nodules,and the bronchial tubes 910 911 912 305 and windpipe deeply congested and filled with, bloody mucus ; the heart and the blood vessels, including the valves of the heart and the vessels supplying the blood to the substance of the heart, absolutely healthy and natural in size, and in everv other regard, excepting a slight unimportant thick- ening of some of the valves, the cavities containing a very small quantity of dark blood: the liver, spleen and kidneys absolutely natural and healthy, except that they, especially the kidneys,are deeply •congested with blood, and of natural size and weight ; a small quantity of undigested food in the stomach, the mucous membrane of the stomach and intestines congested, and a small area of apparent inflammation, about the size of a dollar, in the stomach—finding all the organs in the condition stated, and the furrow made as described above, what, in your opinion, was the immediate cause of death \ A. It is not possible that the man could have died of anything else than strangulation by a cord. Cross-examination by Mr Smith : I will be 43 years of age the 13th day of January, 1884 ; my father’s name is Horatio C. Wood ; my grandfather’s name was John Bacon, on my moth- er’s side ; I partially composed the preface to the last edition of the United States Dispensatory ; the statements in that are true, to the best of my knowledge and belief ; I think that work lias about 2,000 pages—I don’t remember exactly; it is a large book. I did not mean to be understood that I re- wrote a third of that book ; part of it was done by somebody else ; the two-thirds were written jointly by myself, Prof. Saddler, and Prof. Remington ; those gentlemen wrote under me ; the last edition of that book was written by me this present year ; everybody connected with it wras subordinate to me. The Treatise on Therapeutics, all of which I 913 914 915 306 wrote, contains something about death by as- phyxia ; no portion of that book is devoted to the symptoms developed by death from asphyxia ; it contains, as I remember, 800 or 900 pages. “Brain Work and Over Work,” all of which [ wrote within the last three or four years, is a small book of 100 pages, if I remember right. I also wrote a large quarto book, of about 250 pages, on the “Fresh Water Seaweeds of North Ameri- ca,” published by the Smithsonian Institute ; it contains about 300 or 400 colored illustrations; I drew them from under the microscope ; I made the originals from which they were made. I have writ- a book on “ Sunstroke”—a small book of a couple of hundred pages,all of it written by myself. I have written also a quarto book upon “Fever,” pub- lished by the Smithsonian Institute, containing about a couple of hundred or three hundred pages quarto ; I wrote also a small book of a hundred pages on “Fever,” also published by the Smith- sonian Institute; that was written a number of years ago, 8 or 9. That did not treat of Congestive Chills or Asphyxia ; the book on “Therapeutics ” did, decidedly ; I have written also a book on “ Diphtheria,” of about 100 pages—it is now just appearing ; I have written a very large number of papers, a very large lot ; I didn’t understand that to be asked for, but Ididn’t know but what you meant papers as well as books ; I have read the book of Job ; I graduated at the Pennsylvania University, Medical Department; I know what institution in Philadelphia is known by the common term of University of Philadelphia ; I have never had any connection with it ; I graduated in 1862 at the Uni- versity of Pennsylvania and not at the Phila- delphia University. Q. Have you been retained or employed in this case to act in any other capacity than as a witness ? A. As an expert witness, no, sir. Q. Why do you put in the word “ expert.” Is 916 917 918 307 it because you are to do something else than to give testimony? A. No, sir. Q. When did that occur? A. I hardly know; I was first spoken to in this case in the latter part of May or early in June, 1883 ; I was spoken to by Dr. Austin Flint ; I did not then have the under- standing that I vvas to be employed in some capac- ity in this case ; it did come to my knowledge that I was to be used or employed or render my services in any form or capacity on the trial of this case ; that was early in June probably. Q. By whom? A. I don’t remember who the letter came from, possibly from Timothy Brosnan ; I don’t remember who was the individual who gave me that ; my earliest interview upon that subject was with Dr. Austin Flint in my office, either very early in June or the last days of May ; I don’t re- member which ; his coming was by arrangement. Q. Then did he come there by arrangement to consider in any form or manner the merits of this case, or the testimony to be given ? A. Well, there was no such arrangement on my part ; he telegraphed me he would be at my office a certain time and to have certain other gentlemen meet him ; 1 didn’t know what it was to be about at all ; when became there he spoke to me upon the sub- ject of this case ; that was the purpose of the inter- view ; the other gentlemen were Prof Theo. Worm- lev, of the University of Pennsylvania, Prof. Robert Barthelow, of Jefferson College, and Dr. Isaac Ott, of Easton, Pennsylvania ; those were all. Q. Well, from that time to this have you devoted yourself, so far as it is in your power to informing yourself as to the various subjects that were likely to come under consideration ? A. I have not in the slightest degree. Q. Do you mean to have this jury understand that this testimony you have been giving here is without preparation and without making this sub- 919 920 921 308 ject a special study ? A. I mean to have this jury understand nothing of the sort; quite the contrary. Q. You gave a long answer here defining certain diseases, with very considerable fullness and minu- tia ; I wish to bring your attention particularly to the disease called congestive chills ; was that state- ment you made here a, statement of your knowl- edge derived from experience—from actual experi- ence or from reading of books ? A. That statement was a combination of my knowledge derived from hearing lectures, actual experience at the bedside, and wide reading of books in French, German and English ; I should say the actual experience of men was not science at all; science is the result of the experience of men with the deductions drawn therefrom. Q. Now, in the light of that definition, I wish you to state when the first case occurred of conges- tive chill that came under your observation and was within your knowledge? A. I can’t do it, sir; I have been practicing medicine very actively. Q. Now, the question is, when, on the face of this earth,did the first case occur of congestive chill that fell under your actual observation, and was a congestive chill to your knowledge ? A. To my knowledge, the first case I remember was about, I should suppose, about eight or nine years ago, per- haps ten years ago, and perhaps longer. Q. You began by saying you did not want to give the names of your patients, have you any ob- jection giving the name of that person ? A. I had rather not. Q. I want to know from you whether you re- member the name? A. Yes, sir; it was my own father, I should probably remember the name. Q. When was the next case of congestive chill ? A. The next case of absolute congestive chill that I remember was two or three years ago. Q. And have you any objections to giving the name of that unfortunate subject ? A. I have no 922 923 924 309 objections to saying lie is one of the Judges of the United States Court at Washington, I had rather not give his name ; he— Q. He was a Judge of the United States Court at Washington—of the High Court or the District Court? A. I don’t know the difference in the Courts. Q. 1 want you to say when any other case of congestive chill ever came under your actual ob- servation, besides these two, your father and this Judge of the United States Court? A. The only other case that I remember was a case which oc- curred near Burlington, New Jersey, I saw within a year or two, but I hardly know whether it would be called a congestive chill or not ; congestive chill is merely a name for an intense condition of a disease ; it is impossible to say in any case whether this case crosses the line, or whether it is a little below the line of intensity ; I should say this case might fairly be called a congestive chill. Q. Can you give the name of the man ? A. I have forgotten his name, he is one of the officers of the Lehigh Valley Railroad. Q. Do these three cases, your father, and this Judge of the Supreme Court of the United States, the New Jersey man connected with the Lehigh Road, are these all the cases that ever came within your knowledge of which you can speak from per- sonal knowledge that had congestive chill ? A. They are the only cases I have a distinct personal recollection of ; there are some of which I have an impression, other than these three ; I am under the opinion I have seen other cases. Q. Can you, speaking from memory, give any other cases ? A. I told you I could not. Q. Now determine in your own mind the fact or the conclusion, did the inference, did the case, did the suspicion, or whatever it is, that these three men had congestive chills come from what you had. read in the books? A. What Iliad read in the 925 926 927 310 books, and what 1 had seen from lighter cases, and what I had heard in the lecture room; cases of malarial fever of the same origin and same nature as congestive chill which were not severe enough to be fairly entitled to the name of congestive chill. Q. Then there is a dividing line, as I understand you, in reference to this disease, separating the known fixed established disease of congestive chill — there is a dividing line ? A. There is no fixed di- viding line, it is an arbitrary line drawn for the convenience of description. Q. And on one side of the line are the more marked and intense cases, I suppose ? A. Yes. Q. And on the other side of the line are those that have some, more or less, of these characteris- tics yet not sufficiently marked to apply to the species assigned to the first class mentioned ? A. It is not a species. Q. The sort of clan, or clique? A. It is neither a clique nor a clan. Put your questions in straight- forward English. I think that the questions put by you are not in intelligible English. I think the last one was not. A question on science, whether it was a clique or a clan, it has no sense in it. I did not understand your question. Q. You have spoken of there being a dividing line in determining the existence of this infirmity which is designated as congestive chill; on the one side of that line you say are the cases which have the marked, plain symptoms, and on the other, is it true, that there are that class of cases which do not present all or any as plain, respecting the marked plain symptoms, but possess them in a greater or less degree ? A. Yes. Q. Is it true that symptoms of most diseases, ex- cept, perhaps, in some very marked or striking de- gree, are different in almost every patient? A. I can’t understand your questions. Q. Is it true that peoj3le are found sometimes 928 929 930 311 having marked symptoms of some disease—some known disease—and yet varying and different in almost every respect as to the other details of symptoms? A. Yes; but all diseases— Q. I beg your pardon, dust answer my question? A. I decline to answer that question, unless I can give an answer that has a definite meaning to it. The question is so framed that it is capable of two meanings. Q. Well, suppose you were called to witness a •case of a man who had died of strangulation, do you think it would follow as a matter of course that the strangulation was caused by choking or pinch- ing the neck ? • A. It depends upon the mark on the neck. Q. Can’t you answer that question in any other way? A. No; I cannot. Q. Do you recognize the fact that a man may die from asphyxia without any mark upon his neck ? A. Yes, certainly so. Q. Anything that produces the sudden ceasing or cessation of breath, anything that produces the sudden cessation of breath, would that be a death by strangulation? A. No. “Anything” is not a death. Q. Where you see a red, unnatural red, dark spot on the skin, quite dark, like dark blood, like the •color of dark blood, that had made its appearance under the scarf skin, that would be caused, in your judgment, by the rupture of some minute artery, I understand you ? A. I said nothing of the sort. Q. Well, would that be caused, as you under- stand it, by the rupture of some minute artery? A, Probably not. Q. If the discoloration did not come from the artery, where did it come from ? A. The discolor- ation would come from the blood in the tissues. Q And ordinarily would you expect that discol- oration to have been caused by any external vio- lence ? A. I might or might not. 931 93a 933’ 312 Q The finding of a pimple under the skin of that color—what would it indicate ? A. That there was a pimple under the skin. Q. You are quile sure about that? A. Yes; that is my opinion. Q. What I want is, what produced it—would there be anything in the abstract fact of finding this red pimple there—would there be anything by which to determine what produced it ? A. No; not to a red pimple; probably a disease of the skin pro- duced it. Q. Would there be anything by which you could determine it? A. Yes ; I would know it was due to a disease of the skin. Q. I want to know whether, if you should find a dozen red pimples say, varying in size from the size of the head of a pin to the size of a pea, would there be anything, or is there anything which enables an expert, with the absence of any other fact, to form an opinion as to the origin of those pimples ? A. Yes. Q. Are they not common upon the skin of peo- ple? A. Yes. Q. And frequently found upon the skin of peo- ple who have not yet died, or experienced as- phyxia ? A. Yes. Q. Then the mere existence of such pimples alone would not be a circumstance? A. No, the existence of pimples in the skin is no indi- cation of the cause of death. I arrived here a week ago yesterday; I have been engaged here in connection with this case in anocli- er respect than in awaiting my examination as a witness; I have been aiding in the preparation of the defense to some extent; I have not been taking a partin the arrangement of the case outside of the Court House; 1 haveattendedconsultations and dis- cussions, I hardly think there has been any com- parison of views; I have not taken part in all the arrangements of tire trial in Court—not part of the 934 935 936 313 management; I have suggested; I have sat by the counsel for the defense in Court; I have suggested subjects to be brought forward; 1 don’t think my questions were put to a witness ; I have sug- gested subjects that were intended to be made a matter of inquiry of the witnesses; I can’t say how many subjects. Q. How many doctors have been here acting con- jointly with you in the particulars to which the question refers—the suggestion of questions or sub- jects in open Court? A. I don’t think of anybody so far as I know except one other person. I have not personally had any experience upon the subject of the hanging of a person in bed; I have knowledge upon that subject acquired from reading Casper’s Hand Book, Taylor’s Practice of Jurisprudence, Woodman & Tiddy’s Work on Medical Jurisprudence, I think Wharton & Stile’s Work on Medical Jurisprudence and Beck's Medi- cal Jurisprudence and probably some other books. One or two of those books I am not sure whether they have anjdhing on chat special subject. I have read them all and various other books in connec- tions with the subject of hanging and asphyxia. Q. The question was from what source you de- rived your knowledge as to the possibility, I think was the word of the persons being able to hang themselves in bed? A. From reading. Q. Are you able to state where you read that ? A. In Taylor’s Jurisprudence; he treats upon that subject. Woodman & Tiddy, I think speak of the capability of a man hanging himself in bed. Q. What I want is whether you recall any scien- tific statement in any book on such a subject ? A. I recall it distinctly in Taylor’s. I know of a med- ical book by Woodman & Tiddy, I quoted it; that treats of the subject of Medical Jurisprudence. Medical Jurisprudence is that portion of the sci- ence of medicine which relates to legal questions. Q. And is Beck, to which I have, just referred; 937 938 939 314 good authority ? A. lies, it is a standard work, but it has mistakes in it; it is not always perfect. Q. Do you know any book that lias not, ex- cepting yours ? A. I wouldn’t make that excep- tion; they all have mistakes in them. Q. Is it true that most of these cases got in these books where they are, are not within the author’s own knowledge, but are gathered from the unveri- fied statements of others ? A. Yes. Re-direct-examination by Mr. Russell: Q. Did you make a microscopic investigation of a part of the heart that was handed to you by Dr. B. F. Sherman ? A. I did of one slide, that por- tion which I examined was the size of an ordinary microscopic specimen—I suppose a few lines square. Q. What was the result of your examination ? A. The muscular fibre was normal in character. Striation was perfect in character and there was nothing in the specimens that betokened other than a perfectly healthy heart. Q. In case of such a furrow as has been described in my question and to which you have alluded in your answers, what, in your judgment would be the duration of the furrow? A. It certainly would remain for a long time, provided the body was in such condition as not to undergo rapid decomposi- tion. Q. What are the conditions of the stomach after strangulation? A. Intense congestion, which has been found to affect the piloric end of the stomach, and has been described as resembling the results produced by the injection of irritants. Q. You have been interrogated about pimples in connection with these spots that have been referred to that were seen on the back and arm ; will you please state or distinguish between ordinary pim- ples and ecchymosed spots ? A. An ecchymosed spot is a flat, not elevated discoloration of greater 940 941 942 315 or less size without any change in the structure of the part, save only an effusion of blood. A pimple is the result of a local inflammation ; a local in- flammation is connected with more or less elevation and alteration of the structure of the skin and may be red or it may be of some other color. Q. Could scars of an old ulceration on top of the lungs be discovered by physical or medical ex- amination during life? A. I don’t think any physician could do so. Q. What conditions are the kidneys usually found in after death by strangulation ? A. They are usually very much congested. Q. What are the characteristic lesions in cases of death by malarial fever, and are they readily ob- servable ? A. In severe malarial fever there is always a very decided destruction of the red cor- puscles of the blood and the production of a large amount of blackish pigment matter, and this pig- ment matter is especially prone to collect in the liver and spleen and these organs are found dis- colored thereby. It may collect in other organs, especially in the brain and cause a grayish or slatey color of the brain ; there is almost always also a very distinguishable enlargement of the spleen. Q. Could there be a case of congestive or malarial fever running four or live weeks without such evi- dence appearing on the autopsy? A. JNotin my opinion. Q. What are the effects of taking calomel and gelseminum, on the pulse? A. The direct effect of taking calomel is nothing; if the calomel has been taken in large doses enough to produce disturbance of the alimentary canal, it would have a tendency to lower the force of the circulation ; gelseminum in large doses has a distinct effect in lowering the force of the pulse. Q. What is the effect of large and not distinc- tively poisonous doses of Fowler’s solution of 943 944 945 316 Arsenic? A. To irritate the stomach and produce pain and vomiting. Q. You have been asked as to the degree of authority to be attached to certain authors. Is Taylor’s work on Medical Jurisprudence considered a standard work ? A. Yes. It treats of death by asphyxia. Q. (Book handed to witness.) And you are asked in that connection as to cases of hanging in bed, from reading and observation, will you please refer me in Taylor’s Principles of Medical Juris- prudence to those cases to which you refer ? A. 1 was not asked that question, if I remembered ex- actly in that form. I was asked as to cases show- ing the possibility of hanging in bed, and I can show you cases of that character; this is the American edition of the book, and I am not familiar with that edition of it. On page 57 I find cases, also on page 56 ; the case on page 49 was a mixed case of death, although the hanging is stated to be the cause. Q. Can you refer to any other cases in that book ? A. There are cases on pages 56 and 57 ; that is all I see at present. Q. Take the case of the Prince of Conde, one of the cases to which you refer ? A. That was the first case, so far as my knowledge goes, on record, which calls attention to the fact that a person might be hung or might commit suicide without the feet being removed from the ground ; unless my memory is incorrect; in that case the Prince was not either in a kneeling, lying or sitting position. Re-cross-examination by Mr. Smith : Q. Are you able to recall a case of dying that you witnessed where the death was caused by strangulation ? A. Not where I witnessed the im- mediate death ; no. Q. Or are you able to recall a case where the 946 947 948 317 death of the subject, to which you have referred, died from strangulation of which you had personal knowledge? A. The “death of the subject died from strangulation,” you say ; I don’t know what you mean by the question. Q. Do you mean deliberately to say you don't understand the question? A. I don’t understand the question ; there is no sense in the question— that is what I mean to say deliberately ; how a death can die from strangulation I can’t conceive. Q. Do you say you don’t know how a deatli can be caused by strangulation ? A. I do know that very plainly. Q. Now do you know of a case where the death was from strangulation, the death being within your personal knowledge? A. If seeing the death at the time of death, is necessary for my personal knowledge, I do not ; I am a little doubtful what “personal knowledge” means in the sense in which you used it. Q. Did you ever see a dead body of a human being that you knew died from strangulation ? A. I have ; 1 do not know the names ; a woman that hanged herself, or a man that hanged himself in the wards Q. Well, was it a man or a woman ? A. It was a man, who hanged himself in the wards of the Philadelphia Infirmary or Almshouse; that was early last June ; I made an examination of the person. Q. And is that the extent of your personal knowledge derived from the examination of per- sons you knew had died from asphyxia? A. No, not at all; there are others ; I made an autopsy some time ago on the body of a woman who died from asphyxia in Kensington, in the northern part of Philadelphia; probably seven or eight years ago; I don’t know the name; nobody associated with me in that autopsy, and I cannot give any .means by which we can find out further informa- 949 950 951 318 tion upon the subject ; Kensington is a section of the city ; I cannot give the number or identify the building by which we can trace the statement; I cannot tell the street it was in. Q. Now we have two cases; are there any others? A. I don't remember any other at this sitting. Q. What further knowledge you have is derived from books ? A. Partially. Q. Is there any further knowledge that is de- rived from the actual examination of persons known to you to have died from strangulation? A. None that I remember. Q. Would you expect to find as a matter of science, the condition of the stomach to be the same in all persons dying from strangulation? A. No. Q. You have said something about the kidney and the condition of the kidney; did you examine the kidney in either of these cases to which you have referred? A. Yes; I don’t remember the Parr case; I did in the case of the woman. Q. And then so far as the condition of the kid- ney would be found after a case of death by stran- gulation, the examination of the kidney of this single female is the only personal knowledge you have? A. Yes. Q. Now, have you ever examined the other or- gans, except the kidney? A. Yes; in the two cases I speak of, or in the last case; I examined all thoroughly. Q. Have you ever used the commodity called gelseminum? A. I have as a remedy; I have studied the effects carefully. Q. Is there any case that you can now recall where you have knowledge of the effects of gel- seminum derived from a post-mortem examination of a body by dissection? A. I never made one and never witnessed one. Q. You have been asked upon your examination to describe malarial fever, is there a disease of a 952 953 954 319 human system that is known by that as a name? A. Yes; a series of conditions or affections. Q. And are there many instances in common ex- perience of fevers produced by malaria, that do not fall within these classifications ? A. There are no such diseases. Q. So that if a man gets fever which is superin- duced in any degree by malaria, he must have ma- larial fever, is that the idea? A. Yes. Q, And if ever that is a feature tending to pro- duce the sickness, it Would fall within that classifi- cation—if it was a fever and a malaria tended to produce it, then you would call it malarial fever ? A. If it was produced by malaria I would call it malarial fever. Q. Even if it was typhoid fever? A. It would not be typhoid if it was produced by malaria. Q. Do you mean to say as a gentleman of science, that malaria may not produce typhoid fever? A. That is exactly what I mean to say. Q. Or typhus fever? A. No. Q. Malaria may not produce it? A. No. Q. You speak of Fowlers solution being an irritant and irritating the stomach and producing pain ; I suppose because this solution may produce pain it don’t follow by any means, that it may not come from a great many other causes; you don’t mean to exclude all other things and say that the pain can only be produced by Fowler’s solution, do you? A. No, of course not. Q. And any indigestive foreign commodity intro- duced into the stomach in any considerable quan- tity would tend to produce irritation? A. Certain- ly, and nausea. Q. And indigestion and sometimes vomiting ? A. Yes. Q. What does the word “ecchymose” mean ? A. It means a localized effusion of blood into a tissue ; a black and blue spot may be an ecchymosis, and 955 956 957 320 it may be something else, and an ecchymosis may not be a black and blue spot. Q. So, ordinarily a black and blue spot is what is known as ecchymosis, or understood to be? A. No ; it is not the general idea as understood by the profession. Q. This is produced by the effusion of blood into the tissue ? A. Yes. Q. The tissue is the lean flesh ? A. It is the general flesh of the body. Q. And the little blood vessels being broken, and the blood running into them out of the tissue shines through the skin and produced the discolor- ation, you say? A. It don’t shine; it produces discoloration. Q. It is made obvious through the skin that is not so thick as to obscure the view ? A. Yes, that is about it. By Mr. Russell: Q. Would external violence produce a large amount of ecchymosed spots, such as v lias been de- scribed? A. No. Q. Those proceed from internal causes ? A. Yes. Q. Of what color would the liver and spleen be in the case of malarial fever of four or five weeks duration where death occurs? A. The color of the •spleen would be very dark. Perhaps I can best describe it by the word “slaty.” The color of the liver is usually described as bronze color ; it is a mixture of the blackish and slate color, of the pigment that is deposited, and the natural reddish brown of the liver. By Mr. Smith : Q. You used the word “pigment.” I suppose you mean color by that word, don’t you ? A. Not in the sense I use it, it don’t mean color. 958 959 9 SO 321 Q. Don’t the word mean color? A. Not in the technical, medical sense. It does so when used in common parlance. Q. In what sense do you use it ? A. As a name for the peculiar black granular matter which is found in the blood and tissues in malarial fever, and is the result of the breaking down or disinte- gration of the red corpuscules of the blood. Q. You talk about what you saw there upon the disinterment of the body ; have you ever seen any other body ; you didn’t see Dwight’s body, I be- lieve ; have you ever seen anybody after live months’ burial that you knew had already been buried five months ? A. I never saw a body that I myself saw put into the ground, but I have seen bodies that have been buried about 75 years, taken out of the ground, or asserted to have been buried that long in old graveyards. Q. Did you think that that was what I enquired for ? Do you think that is a fair answer to my question ? A. I think it was. Q. These “old customers” that had been buried 75 years, you didn’t look at the skin to get the color of the liver ? A. I looked at the skin. Q. Where did you see any such subjects that had been buried 75 years whose skin you examined \ A. I saw a subject which was said to have been buried 75 years, which is now in a case in the museum of the University of Pennsylvania, medi- cal department. Q. That is a case not within your knowledge ? A. I didn’t see it buried 75 years ago. Q. All you know about it is, it is down there in the museum? A. Yes. Q. I want to know whether you have ever seen the remains of a body that had been buried long and disinterred, this being a matter within your knowledge? A. I have seen such remains. Q. Do you know as you sit there now, what would be the condition of the remains of a body 961 962 963 322 five months after death ? A. I know it would vary indefinitely according to the circumstances of burial. Q. Do you claim to have any such experience as will enable you to state as an expert what would be. the effect of five months’ burial upon the body of a dead man ? A. Nothing, except by my read- ing. 964 Benjamin F. Sherman, called as a witness on behalf of the defendants and sworn, testilied as follows : Examined by Mr. Russell: I reside at Ogdensburg, St. Lawrence County, in this State; I am a physician and surgeon; have practiced at that profession nearly 43 years—only lacks a month or two of it; I was in the office of my brothers, who did a large business and all the sur- gery in that section for years; I graduated at the Albany Medical College, since which time T have been actively engaged in my profession; I was coroner nine years; I did the examining and dis- secting for the incoming coroners for six years, and have done the same thing for other coroners; I am a member of all the medical societies and the Amer- ican Medical Association; I have been an officer of the New York State Medical Society; a member of the Northern New York, the St. Lawrence, and our local societies; I have been president of three or four of them; I have had chemical experience in the course of my medical experience; I have used the microscope almost daily in my office, and also for public purposes; in the course of my practice and experience I have personally known of cases of suicide by strangulation--a dozen or fifteen cases;. 965 966 323 I don’t know as I could give just the number—not less than a dozen. Q. Were any of those cases where the deceased committed the act of suicide in bed ? A. Not of my personal knowledge; one of them was lying down, but not in bed. Q. How many dissections on post-mortem exam- inations have you made or assisted at in cases of suicide by strangulation ? A. None. Q. Any autopsies ? A. None. Q. How many autopsies have you made or as- sisted in generally ? A. Hundreds would be as near as I could tell. I was present at the coroner’s in- quest on the body of Walton Dwight, in April, 1879; at that time I took from the body portions of the heart for microscopic examination, and gave some slides to Dr. Horatio C. Wood, of Philadel- phia, for his examination; I made a microscopic examination myself of the portions which I took, with the result of finding every part of this portion of the heart healthy in every respect; I made 150 slides and examinations—asmany as that. Referri ng to the post-mortem examination, April, 1879, when. 1 reached the cemetery the casket had been raised from the grave, and I think was opened there, but I am not positive; it commenced raining, and it was taken a little distance from the cemetery to a barn; the body was then taken out and the casket weighed and the length of the body measured and laid upon the table, or an extemporized table; the body weighed—taking the weight of the casket— pounds; I am quite confident that is correct; I think 1 will state it without my notes; the height was six feet one inch and fifteen-sixteenths of an inch; I have seen my notes within a day or two, and that makes me so positive; when the body was laid upon the table I called the attention of my col- leagues and the coroner, and the coroner’s jury whom I knew to be present, to a deep furrow in the neck, and I put my finger in it as I called 967 968. 969 324 attention to it; I stood upon the right side of the body, and this furrow was on the right side the broadest, but not so deep; cor- responding furrows were upon the two sides, but narrower and deeper upon the left side commencing in the neighborhood of the larynx and extending back at an angle in the neighborhood of forty-live degrees, and I couldn’t see that the points came to- gether; if they had done so the throat had been dissected and 1 couldn’t see, and 1 don’t think they came together on the back of the neck ; then after noting the appearance of the body the abdomen was reopened ; it had been once opened, and the brain, lungs and the viscera and the thorax and abdomen were put loosely into the cavity of the abdomen ; some portion of the lungs I think had been taken away, but the lungs were there ; I will not say it had ; Dr. Swinburne took the lungs out and weigh- ed them ; I can’t tell what they weighed. I took a portion of one of the bronchial tubes to my board- ing house, that is to the Spaulding Cottage, and exit mined what was contained in the bronchial tubes under the microscope. The heart and kid- neys were taken out and examined, and I especially examined the heart by eye and handling, and it was in a remarkably good state of preservation. The muscles were hard and sound, and I cut from it this piece, about two inches by two, and put it in a small bottle I had with me for tliat’purpose of methylated spirits, that is, wood alcohol, and took it home with me after sealing it. We attempted, at the suggestion of Dr. Swinburne, to take a cast of the neck, and failed entirely. We got nothing that approached the appearance of the neck. I would go back if you will permit me to one point when I called attention to the furrow in the neck, Dr. D. S. Burr said “ and here is another furrow.” After examining the viscera and attempt- ing to rake a cas! of the neck and failing—we failed on account of the softening of the tissue and 970 971 972 325 the length of the time it had been buried, and the heat that is generated in the hardening of the plas- ter ; it was an entire failure. The body was turned over and the spinal cord was exposed, and found so soft that no preparation or study could be made of it. The brain was also found softened in the abdominal cavity. The lungs were in a pretty good state of preservation. The lungs were hard and in a better state of preservation than any of the other organs. The body was turned back again upon the face and the left thigh was examined. It was ex- amined ; we examined that wound to see if the bone was broken, and that was pretty much all that was done. And at that time the Coroner desired to know if everybody had done and seen all they wanted to. The texture of the skin within this furrow had a leathery feel. It had what Casper calls “mummi- fied.” Most authors say “ parchment-like.” and what would be understood by those present as “ leathery.” I have seen, in the course of my ex- perience, other cases where death had occurred by a pressure of rope or cord around the neck. Q. Were these appearances the same as in those cases ? A. Yes, sir. Q. What were the appearances, in the cases you have in your mind, of the character of the furrow and the skin ? A. They varied very much in the different cases. I am familiar, by personal observation of cases and from reading, with the character and texture of the skin in the case of a furrow, produced by a cord that effected death by strangulation. Q. Describe, if you please, those appearances in a death caused by strangulation ? A. They vary in proportion to the force that is used, and somewhat to the instrument that is used. But it is an inden- tation or furrow, usually ; Taylor and Casper say —I have got to describe them and make a distinc- 973 974 9J5 326 tion whether there is force, ns criminal hanging, or whether it is suicide. Q. Go on in relation to suicidal strangulation % A. In a great majority of cases, I can name certain- ly four, where there was a distinct furrow, the bot- tom of the furrow parclmient-like with no discolor- ation, while in some of those there was a slight purplish tinge around the border of the furrow. These cases I saw were all suicidal, and there was no great violence done to the parts, to the tissue. I never saw a case of legal strangulation where there was great violence used. These cases were all with little or no violence done to the tissues. Some had a discoloration, but not to amount to ecchymosis, and not amounting to a deposit of blood within the tissue which constitutes ecchymosis. Q. Do you mean outside, or within the furrow ? A. Sometimes both. Sometimes at the bottom, a little in some places—and sometimes on the border, but oftener on the border of the furrow. Q. What of these characteristics, did you ob- serve, if any, that were in the furrow on this body examined in April, 1879 ; A. I found the “ parch- ment-like” feel at the bottom or base of the fur- row. Q. Was this furrow one such as, in your judg- ment, could be produced by natural causes without the application of force \ A. No. sir. Q, Were you present in the sitting room, and bedroom in which Mr. Dwight was said to have died ? A. I was. I saw the room and the stove, and the bedstead. I have caused to be prepared a diagram or drawing of those rooms, as I saw them. (Paper handed witness.) That is the diagram to which I refer. It is essentially correct. It may not be in exact proportion, but it is substantially correct. The diagram referred to was introduced in evi- dence. It was marked Exhibit No. 84. 97B 977 a78 327 I think the front door of the Spaulding House and this cottage look to the west. That room (indi- cating) is Dwight’s sitting room; it is marked “Dwight’s sitting room.” That is the stovej marked “stove.” This room is Dwight’s bedroom— it is so marked ; those lines there are the bed—it is so marked, leaving this space between the foot of the bed and the wall, and so the door shut around onto the bed, as it is sketched there. That circle, there, is the stairway, and that (indicating) is the hallway. This room (indicating) was occupied by Mrs. Dwight and Mrs. Owen, until 11 or 11:30 p. m.; and that (indicating) is the room occupied by them after that. The front yard is marked, in front of the hall door. I also caused a representation of the bedstead to be made. (Paper handed witness.) That is the drawing; it is essentially correct. That (indicat- ing) is the headboard of the bed only. The scrolls may not be correct, but those prominent scrolls are correct, those two on each side of the centre. The counsel for the defendants introduced the diagram referred to by the witness, in evidence. It was marked Exhibit No. 85. Q. (By a Juror.) How thick was the scroll work on the top of this headboard \ A. It was made of two inch stuff, and the top of the headboard was four feet or more above the bed. Q. Assuming the following to be facts : You ex- amine, about fifty-eight hours after death, in the middle of the month of November, the body of a man found dead at about 11 p. m., having been last seen alive one hour and a half before, and then not in a condition that would lead to an apprehension of sudden death ; you find the body to be the body of a man unusually large and powerful, of great muscular vigor, with considerable development of firm fat, and forty-one years of age ; you find noth- 979 980 981 328 ing unusual in the appearance of the face and the general surface of the skin, excepting the presence of small dark spots, indicating little effusions of blood in the skin of the back, and in the skin of the back of the right arm ; you find a furrow by the sides of the neck, nearly meeting in front and behind, about the size of the little linger, rounded at the bottom, and the skin involved in the furrow, dense and hard, and the surface like parchment; the furrow begins in front, just above the larynx,and extends upward and backward at an angle of nearly forty-five degrees. The brain, and each membrane, perfectly natural and healthy, excepting a clot of blood on the surface of one side, near the top of the head—this clot being, evidently, of very recent origin, and not sufficient in itself to produce death. The lungs deeply congested with dark liquid blood, but representing no evidence of inflammation. A few small fibrous nodules on the lungs, and the bronchial tubes and wind- pipe deeply congested and filled with bloody mucus. The heart and blood vessels, including the valves of the heart and the vessels supplying blood to the substance of the heart, absolutely healthy arid natural in size and in every other regard, except a slight and unimportant thickening of some of the valves ; and the cavities of the heart containing a very small quantity of dark blood ; the liver, spleen and kidneys absolutely natural and healthy, except that they, especially the kidneys, are deeply congested with blood, and of natural size and weight; a small quantity of undigested food in the stomach ; the mucous membrane of the stomach and intestines congested and a small area of apparent inflammation about the size of a dollar in the stomach. With all these organs in the condition stated above, and the fur- row in the neck, as described above, what, in your opinion, was the immediate cause of death % A. Asphyxia, from hanging. 982 983 984 329 Cross-examination by Mr. Smith : Q. Do you know who composed this last question or any part of it ? A. No, sir, but I suppose the counsel on the other side did. Q. The question is whether you know who com- posed any part of that question ? A. I think Dr. Flint, but I am not sure he did. Q. Anybody else? A. No, sir, and I don’t know that he did. Q. Where did you first hear of it? A. I heard the main part of it last evening, in a private house from Dr. Flint ; no one else was present. Q. Was it read to you with a view or for the purpose, so far as you know, of revising it or get- ting your answer? A. Probably ; I don’t know of any other reason for its being read to me. That was the first time the question had been presented to me. I came to town a week ago last Monday, in a snow storm ; I came because Mr. Magone sent word to me through his wife that he wanted me. Q. And have you been devoting yourself, since you have been here, in any degree to the prepar- ation of this defence or the testimony relating to it? A. No. Q. When was your attention first called to the fact that there was a controversy growing out of the insurance of Walton Dwight ? A. I think in March, 1879—that there was likely to be a contro- versy. This was at Ogdensburg, and by Mr. Magone, who resides there. Q. He was, as you understood, the counsel for some of the insurance companies? A. I don’t know anything about it. My first active connection with this case was my starting to Binghamton ; I think it was in March 1879. I went at the instance of Mr. Magone. I don’t know any thing about my going in the ser- vice of the insurance companies ; I went there at Mr. Magone’s request, the same as I go to see his 985 986 987 330 wife at his request. I went then to investigate this case—to make inquiry as to the death of Dwight. Q. And do you say you did not know in whose service you were acting ? A. I did after I got there, sir. I was acting in Mr. Magone’s service all the time. Q. Did you know that he was acting in the interest and for these insurance companies, or any of them ? A. Indirectly,—that is as near as l ean get at it. Mr. Magone was the one I was acting for. I got there Monday night and the dissection was made Tuesday, and I left there Saturday night. I am referring to the examination at the cemetery. I was acting for Mr. Magone. Q. Do you know whether you were acting for the insurance companies? A. I suppose I was. I knew Mr. Magone was. I understood that at the time this body was then exhumed, that it had been buried for several months. The body was covered with white mold when we first took it out of the casket. Q. Do you remember it was so far decomposed that parts would fall off like the teeth falling out? A. No, I don’t remember anything of the kind. The teeth did not fall out. Q. Did the teeth come out without being drawn? A. No, sir, they came out wdien they stuck in the wax that I put into the mouth to take a wax cast of the mouth. Q. When you took the wax out the teeth came too ? A. Some of them, two or three of them only ; they did not fail out—they were pulled out—they came out with the wax. The specimen that I after- wards used under the microscope was a part of the heart. Q. Are you sure whether it was the heart or the kidney ? A. Yes, I am perfectly sure. Q. And was this piece of the heart in amongst a lot of scraps of the parts of the body of Dwight 988 989 990 331 that had been put in a bulk in the stomach and sewed up? A. The viscera of the thorax and ab- domen and the brain were put in the cavity of the abdomen, loosely, the heart among the rest, as I have testified. By viscera, I mean the lungs and the heart and the liver and the kidneys and the stomach. Q. Do you mean the contents of the body ? A. Not always. Q. The brain, you say, was in there? A. That is not a viscera. They were in this mass, all mixed up together ; there was bloody fluid. Q. The serum ? A. That is bloody fluid. I didn’t see any fecal matter. Q. Dr. Swinburne said they were filled ? A. The probability is they were empty before they were put in there. They were pretty likely to be before they examined the inside of the intestines. I took a piece of this heart, two inches by two, as near as I can remember, and I prepared a great number of slides. I have them all to use in this case. Q. What did you say on your direct-examina- tion about the slide ? A. He asked if 1 prepared a slide that Dr. Wood saw. Q. Will you please to describe the thing to which you refer, and which you referred to Dr. Wood, which you characterized on your direct-ex- amination as a slide ? A. It is a piece of clear, per- fect glass, three inches long, one inch wide ; upon this is put the preparation, mounted in different material, as our wisdom directs us, and over that is put a very thin, round glass called the cover glass ; that is cemented to it, and that is called a slide. Q. Now, in the case of this slide, which you pre- pared and showed to Dr. Wood, about how large a piece of this piece of the heart of Col. Dwight, that you have spoken of, did you place on it ? A. I think the particular slide he looked at—I have two in my possession that has his mark on them with a 991 992 993 332 diamond. As near as I can tell von, they are— well, say the thousandth of an inch thick, and per- haps less, and one-fourth to one-eighth of an inch in diameter. That is as near as I can describe it. These vary in size and vary in thickness, as we want them to, with the machine we cut them with. Q. As I understand you, the portion of Dwight’s heart you have got on that slide was about the thousandth of an inch thick, and about the size of a small shirt button ? A. Hardly as large as that. Q. It must have been about the millionth of a grain weight? A. It would weigh more than that. I can’t tell you how much it would weigh, never having weighed one ; it was of very slight weight ; I think it would take more than a million of them to make a heart. I put that on this little piece of glass, and that fixed up as I described was a slide. I put that under a microscope and looked at it through the magnifying glasses. Q. And what you saw of Colonel Dwight’s body with the aid of the microscope was limited to this part of the body which you have now here just de- scribed? A. No; I had put 150 and more pieces in slides, taking them from all parts of this section of 2 inches by 2. I had as many as 150 slides and have got 50 of them here ; of this 150, some were larger than others—perhaps not much difference in them in size. I looked at the whole 150 and more than that ; I can’t tell you how many. Q. Did the magnifying glass disclose (he fibre? A. Yes, sir. It disclosed a healthy fibre, a fibre peculiar to the heart. Q. Do you mean to have the jury understand that by such a test with the microscope by any man on earth, that he is so skilled as to tell with any degree of certainty, whether the fibre was healthy or not ? A. Yes, sir. Q. Did you ever see the fibre of the heart of a man who died with the small-pox? A. No; nor that of a man who had died of malarial chill. 994 995 996 333 Q. Did you ever see the fibre of the heart of a man that died when you didn't know what the trouble was? A. Yes. Q. Did you ever see the fibre of the heart of a man who committed suicide? A. I don’t know that I have ; I don’t think I have. Q. Did you ever see, after death, the fibre of the heart of a man that was healthy so as to know what a healthy fibre was ? A. Yes, sir. Q. The fibre of the heart of a man you knew had n healthy heart ? A . Yes. Q. Have you seen such cases ? A. Yes. Q. How do you know a man has a healthy heart before he dies? A. We can tell pretty well by ex- amining him. We can't tell positively, but we can tell pretty well. Q. You have heard of Dr. Simms, who died a few years ago ? A. Yes, sir ; I knew him well ; he was an intimate friend of mine ; he was a prom- inent physician. Q. He went to bed healthy and died before morning? A. Yes. Q. Have you anyway by which you can describe to this jury, whether the fibre of a heart is healthy fiber, as you call it? A. Yes ; I have a way. Q. Is there a difference in appearance in the heart of a man who has died with a cause from that of one dead without a cause? A. Men don’t die without a cause. I can't answer that question. Q. Is there a difference of the fibre where men died from different causes? A. No, sir. INot un- less the heart is affected. Q. Assume the heart is affected ? A. There is a difference in the fibre if there is degeneration of the fibre ; the fibre of the heart—a man might die of a disease of the heart. Q. How large is this fiber? How large apparent- ly to the eye was the fiber in this case when you got it under the operation of this microscope ? A. It depends upon how strong a power you use. In 997 998 999 334 the power I use the fiber is like a very fine silk, as it seems to the eye it is about the size of a very fine fiber of silk ; you can raise the power to almost any size. Q. How many times did that magnify ? A. It is a half inch, I think about two hundred and some ; I wouldn’t tell you positively. Q. I want it so we can all understand it. I)o you mean, if you thus put under this glass this fiber it appeared to the eye about the size of the fine fiber of silk? A. Yes, and then it was magni- fied about two hundred times. I would not say that positively, but I think that is about the power of a half inch, with an “A” eye-piece about two hundred times larger than the real thing I look at ; it depends altogether upon the length of your tube, and the eye piece you are using, and a good many of these points. Q. Doesn’t it magnify two hundred each way from the center? A. About two hundred diam- eters ; I wouldn’t be positive. Q. Two hundred diameters means two hundred each way from the center? A. Yes. Q. You think from what you saw of this little thing there, whatever it was, was natural ? A. Yes, I know it w7as healthy tissue ; heal thy hard tissue, hard muscle. Q. Did you ever see any that was not healthy ? A. Yes ; I made no other investigation by the microscope in relation to this case. Q. Only this little piece of heart? A. Yes, that is all. I have practiced chemistry more or less for a good many years. I can’t tell you how many years, always. 1 couldn’t tell how many doctors we had at this inquest, a good many ; I think they all had an opportunity to see and feel and to know. Q. Their attention repeatedly called to make all the inquiry and investigation they wanted, wasn’t it ? A. Yes. 1000 1001 1002 335 Q. Did you go back from there to the Spaulding House? A. Yes. I had a microscope there, and examined some of the fluid that came from the in- side of the bronchial tubes. Q. Where did you make that examination ? A. It was in the room that Mrs. Owen said she occupied after twelve o’clock, the room at the end of the hall; I had there some of the fluid that I scraped from the inside of the bronchi ; that was the fluid I used there ; I am quite sure I did not make a slide of that; I looked at it and put it on a slide. Q. How many slides ? A. I don’t know as I did more than one. I looked at it, two or three of the doctors looked at it; they came in to look at it. Q. After that was there anything else put on the slide, or any other slide made, or anything else looked at? A. I don't know but there was. 1 think one of the doctors put cm some of the mucus from his mouth or nose, one or the other, in which there were mucus cells and epithelial cells ; they are the cells that cover the inside of the mucous membrane ; I think that some of the doctors ex- amined it; I didn't examine it; I saw them. Q. Am 1 correct in understanding you that you have never made any examination of the condition of any dead body where you knew that the death waS produced by asphyxia? A. No, you didn’t understand me to say anything of the kind ; I have not said anything of the kind ; if 1 had it would not be true, but I haven’t said it. Q. Have you made examinations of the dead body of any person or persons that you knew to have died from asphyxia ? A. Yes ; I haven’t ex- amined any one that had a name ; they were in- fants ; they were so young that they hadn’t a name ; these were not cases of deaths of infants oc- curring in delivery ; they died from asphyxia sub- sequently produced. Q. Do you know of any other persons except infants? A. No. 1003 1004 1005 336 Q. How many of such infants were there ? A. I couldn’t tell you, but certainly live or six. Q. Babes that had been choked to death? A. Yes ; cases of infanticide. Q. You have been examined on oath already on this subject, haven’t you? A. Yes; at the coro- ner’s inquest, before the coroner’s jury ;■ I have lately read that testimony ; I have read it since I have been here ; it is not an accurate copy, there are a great many errors in it ; I was alone when I read it over ; I said that there were a great many errors; they may have been errors on the part of the printer or the stenographer ; these maps are not made on a scale ; I drew a rough sketch, and got a lady here in town to draw them since I Game here; I don’t know where the rough draft is, per- haps in the lady’s possession. Q. This draft of the bedstead, as it is called, is only a draft of the upper outer side of the head- board ? A. Inner side of the head-board. Q. Where is the rough sketch now ? A. I don’t know ; I handed it to the lady I wanted to draw that; that was yesterday or day before; for all I know the lady still has it. Q. When did you make the sketch ? A. Then, from memory ; I can't tell you at whose instance ; I made a sketch of the bedstead at my instance and nobody else’s instance ; some one asked me if I could give a diagram of the ground floor of the cottage ; I did so. Q. Had you ever made one before this week ? A. No ; there was a sketch and a woodcut of that bedstead by a correspondent of the “Herald” at that time in April, and published in the “ Herald.” Q. Did you make any measurements ? A. No. Q. This sketch is a mere picture as near as could get it from memory? A. Yes, from memory. 1006 ] 007 It 08 337 Re-direct-examination by Mr. Russell: Q. The errors in the printed book to which you refer are the errors either of the stenographer or of the printer? A. Yes; in representing what was said. Q. You were asked by the counsel in regard to opportunity to know as to what was going on and to investigate ; were you allowed to have any par- ticipation whatever in that examination ? A. I did have some; I assisted Dr. Burr to some extent; the only cutting I did was in examining the spine ; it was very hard work, and he did part of it and I did part of it, to relieve him in sawing bones to get at the spinal cord ; that is the only part of the dis- section I did ; the examination of witnesses was conducted by the coroner and the coroner’s jury only. Q. All these specimens of the heart that you took remained in your possession under lock and key after you got home until you brought them here? A. Yes; they have never been out of my possession for a moment. Q. You are positive that the ones you gave to Dr. Wood were those? A. Yes; they have never been out of my possession. Re-cross-examination by Mr. Smith : Q. Isn’tit a fact that you talked more on. that inquest than all the other men, doctors and all, put together? A. I don’t know whether I did or not; I didn’t measure it. Q. Isn’t it a fact that your testimony covered about fifty printed pages ? A. I don’t know, sir,. I have never looked to see. Q. Isn’t it a fact you were questioned by at least half a dozen different doctors? A. I was on the stand a great while ; there were seven doctors,, and each of them had a book before him and all 10091 1010 1011 338 the Binghamton lawyers were handing in questions, I couldn’t tell how long it was, but it was a great while I know, I don’t know liow many pages it covers. Q. Can you name a single Binghamton lawyer who handed in questions except Daniel Richards, who was a lawyer on the other side? A. No, I can’t name any of them but I was told they were lawyers ; I can’t tell you who told me. Q. Was it Magone who told you ? A. No. Q. You had a chance to free your mind fully, didn’t you ? A. I answered the questions. Q. Were you interfered with in any wise which prevented you from saying all you wanted to to that jury? A. I answered the questions. I was not interfered with. They didn’t interfere with me in answering the questions. Q. Did you say all you wanted to there ? A. I did ; I generally do. Q. And were questions repeatedly put that if there was any one who wanted to ask anything there was an opportunity to do it ? A. No. There was no opportunity for anybody to ask questions except the coroner and the jury. Q. Didn’t you ask questions ? A. No, I didn’t. Q. The doctors asked questions? A. No, only the jury. The doctors on the jury asked questions —a great many of them. Q. Do you say there was not an inquiry made that any one who had any suggestions to make in furthering the investigation could make it? A. No, there was no such inquiry made on that inquest. Q. Were not repeated questions written and handed in to examine by? A. No, not to my knowledge. Q. Were any such ? A. I saw people handing in questions to the coroner who I was told were lawyers. I was a stranger in Binghamton and they were strangers to me. There were questions put ; 1012 1013 1014 they were apparently the questions handed in, but I don't know whether they were or not. By Mr. Russell : Q. This jury and the coroner were all Bing hamton doctors, weren’t they % A. Yes. Q. Do you know of a single instance where a single person, representing the insurance companies or in any way connected with them, was allowed to propound a question in any form \ A. Yes, sir. My opinion and belief is that no one did. I don’t know of any one. By Mr. Smith : Q. Do you know that any one was disallowed ? A. Yes. The coroner announced at the opening of the inquest that no one would be permitted to ask questions except the coroner and the jury. Of course no one would propose after that. Q. Do you know % A. I know of no one propos- ing a question excepting what questions were handed in on paper as I tell you. 1015 1016 Nat B. Freeman, recalled on belialf of the de- fendants, further testified as follows : Examined by Mr. Larocque : I was present at the coroner’s inquest held in April, 1879, upon the body of Walton Dwight ; I was so near to the body that I touched it ; I ex- amined the neck of that body on that occasion,, when my attention was called to the marks upon the body. I found on the neck a furrow or inden- tation on botli sides ; I put my finger into that fur- row, the index finger of right hand ; the furrow was deep enough for my finger to go partially into it, but not entirely into it. Q. What was the feeling or appearance of the 1017 340 skin at the bottom of the furrow at that time ? A. I don’t know that I could describe that as an ex- pert, but it appeared hard. The feeling was a hard feeling ; its appearance was similar to old leather— a dark brown. It was different in shade—the bot- tom of the farrow was from the skin around it—it was darker. Cross-examined by Mr. Smith : I had laid my hand on a dead body before, but not while I was an insurance agent, to my recollec- tion. I have handled a great many dead bodies. I was a soldier in the United States Army ; I helped bury the bodies. Q. What business was it that you were in, when it was a part of your business to put your hand upon the bare parts of dead bodies \ A. As a soldier in the United States Army. Q. As a soldier in the United States Army wa& it any part of your business to feel of the bare body ? A. I didn’t do it for feeling, I was com- jielled to do it. The clothes were not always taken off, but’ almost uniformly, and especially if wo thought well of a friend, we would bathe the body and dress it. 1018 1019 Elisha H. Bridges, called as a witness on be- half of the defendants, testified as follows : Examined by Mr. Russell: I reside at Ogdensburgh ; am a physician and surgeon of nineteen years’ standing ; during that time I have practiced my profession at Ogdens- burgh. I am a graduate of Bellevue Medical College, located in New-York City. During the course of the my profession I have had occasion to attend to or participate in—I should 1020 341 think—fifty post-mortems or autopsies. My prac- tice has embraced generally all types and forms of diseases. Within my medical experience and read- ing I have known of cases of suicide by strangula- tion—two cases within my own knowledge. My reading extends over a good many cases. I was called upon to go to Binghamton to view the body of Walton Dwight in April, 1879, at the -coroner’s inquest. I arrived there April 22d. I staid in Binghamton, I think, about four days—- perhaps live. Q. State what you saw at the post-mortem in regard to the body of Col. Dwight, without stating the proceedings in regard to taking the testimony ? A. I saw the body of a large, muscular man that weighed, without the coffin, 177 pounds, covered with mold ; a newspaper adhering to the front part of the body that had been laid over it ; the body had been opened, and the contents of the chest and abdomen had been examined and thrown together in the cavity of the abdomen. This cavity was re- opened while we were there. Before opening it I examined the exterior of the body, as I told you—• the mold and the newspaper adhering—and observed that the scarf-skin could be removed with the linger. I noticed the furrow upon the neck—upon both sides of the neck—from the upper margin of the larynx extending around at about an angle of forty-live degrees. The furrow was rounded at the bottom about one-eighth to about a quarter of an inch thick, I should judge, and a quarter to a half an inch broad. The lower or bottom part of the furrow or groove was rounded so it fitted the convex sur- face of my little linger, that I passed through on each side. The base of the groove was hard, and had this appearance that has been described—a parchment look. We examined the tissues of the lungs and kidney and the heart. Most of the organs were softened, with tlie exception of the muscular -substance of the heart itself. That was somewhat 1021 1022 1023 342 softened in parts, perhaps, but most of it was firmy hard and natural in its look and feel. That is all I think of now. I examined a portion of the heart both with the naked eye and with the microscope. I found the heart tissues perfectly normal, the mus- cular tissues perfectly healthy. It had that ap- pearance of a healthy heart ; it was firm, there was no appearance of fat upon it ; and it had no' oily feel. Q. You may assume the following conditions ; you examine about fifty-eight hours after death in the middle of the month of November the body of a man that was found dead at about 11 p. m., hav- ing been last seen alive one hour and a half before,, and then not in a condition that would lead to an aj>prehension of a sudden death ; you find the body to be that of a man unusually large and powerful,, of great muscular vigor, with considerable devel- opment of firm fat, and forty-one years of age ; you find nothing unusual in the appearance of the face,, or the general surface of the skin, excepting the presence of small dark spots indicating little effu- sions of blood in the skin of the back, and of the right arm ; you find a furrow by the sides of the neck nearly meeting in front and behind, about the size of the little finger, rounded at the bottom and the skin involved in the furrow dense and hard, and the surface like parchment; the furrow begins in front just above the larynx, and extends upward and backward at an angle of nearly forty-five de- grees. The brain and membranes perfectly natural and healthy, excepting a clot of blood on the sur- face on one side near the top of the head, this clot being evidently of very recent origin, and not suffi- cient in itself to produce death. The lungs deeply congested with dark liquid blood, but presenting no evidence of inflammation. A few small fibrous nodules on the lungs ; and the bronchial tubes and windpipe deeply congested and filled with bloody mucus. The heart and blood vessels including the- 1024 1025 1026 343 valves of the heart, and the vessels supplying the blood to the substance of the heart absolutely healthy in size and in every other regard, except a slight and unimportant thickening of some of the valves ; and the cavities of the heart containing a very small quantity of blood ; the liver, spleen and kidneys absolutely natural and healthy, except that they, especially the kidneys, are deeply con- gested with blood, and of natural size and weight ; a small quantity of undigested food in the stomach ; the mucous membrane of the stomach and intestines congested, and a small area of about the size of a dollar in the stomach ; and witli all the organs in the condition stated above, and the furrow in the neck as described above, what, in your opinion, was the immediate cause of death ? A. Asphyxia from hanging. Q. Need that hanging be necessarily a suspension by the neck with the feet away from the floor? A. No. Q. Does your medical knowledge and reading, doctor, extend to cases of malarious fever and con- gestive chills ? A. Yes. Q. What are the distinctive symptoms and condi- tions in cases of death by a malarious fever or by congestive chills ? A. The victim usually has one or more ordinary attacks of intermittent fever pre- ceding the congestive chill; the congestive chill is characterized by coldness of the entire body ; a shrivelled look to the hands and skin of the body, an anxious countenance and pale face, a trembling of the entire body, which lasts from two to six hours ; the pulse is in this condition feeble and rapid. After the chill is passed comes the reaction, the surface gradually regaining its healthy tempera- ture and becoming warmer than natural, and fol- lowed usually, but not always, witli sweating—the patients may sweat during the cold stage, the first stage, these subjects usually have a straw colored countenance showing the severity of the poison. 1027 1028 1029 344 There may be delirium and in some cases there is coma—stupidity. Then there is a period of relief for one or two days, and a recurrence of this same par- oxysm takes place. That is all I think of now. Q. Is it possible that a patient can die of malar- ious fever accompanied with congestive chills of the duration of live or six weeks—of about five weeks— without his internal organs giving evidence of it ? A. It is not i>ossible. Q. What would be the color of the liver and spleen in such case as I have stated ? A. The liver is bronzed and dark colored, and so also the spleen and generally the brain. Q. And could he have had such a sickness with- out change of temperature of the body ? A. He could not. Cross examination by Mr. Smith : I have been a doctor nineteen years. The spleen is an organ situated in the abdominal cavity. It is a vascular organ. It contains many blood ves- sels and nerves and tissues. I can’t tell you what its office is. I do not know. I have examined one. In its normal condition it weighs from a half pound to twelve or thirteen ounces. I have seen one of a person who died by asphyxia ; I can’t tell you the name, it was at Ogdensburg about four years ago ; I saw it live or six hours after death from asphyxia, caused by drowning ; I didn’t see the drowning. It was a child. That is not the only instance in which I have seen the spleen of a human being that died by asphyxia. Another instance was in the case of another child, eight or ten years ago, at Ogdens- burgli. Those are all. The last child died from drowning. Q. Now, those are the only two cases in which you have ever seen the spleen of a human being dead of asphyxia so as to know the color? A. Yes, so far as I remember, so far as I know. 1030 1031 1032 345 Q. Have you any other actual knowledge except those two children ? A. No knowledge from ob- servation, but from reading ; the rest of my knowl- edge comes from what I have read. Q. And whether they are light red or dark red or bronze in other cases or not, you don’t know ? A. Yes. Q. How do 3"ou know if you never saw them? A. From reading; I couldn’t know about those I didn’t see. Q. Ho you think you could distinguish the spleen of a man from that of another creature ? A. Yes, I think I could ; perhaps I could not; I don’t know whether I could or not; I am not familiar with the anatomy of the hog. It is larger in some animals and smaller in others. Q. By what means do you discover which was in the human being and which was not ? A. By the size. The spleen, I think is a little larger in in- fants in proportion to the size of the body than in adults. I was asked to go to this autopsy by Mr. Magone ; I understood that I was acting in the employ of the insurance companies. Q. Have you been much in their service as a wit- ness? A. I have not been much or any more than in this case. I was employed to go from my home in Ogdensburg to Binghamton by Mr. Magone. I went there and witnessed this autopsy with the understanding I presumed that I was to be used as a witness. I have been here since a week ago last Monday night. Q. Have you been engaged since in preparing this case and in preparing to give this testimony ? A. I don’t think I have. I have read books. Q. And compared views with the other doctors? A. Some, but not very much ; I had some ideas of them, but have not been in consultation with them. I have attended meetings of the doctors but made no suggestions. I have not heard of this question 1033 1034 1035 346 (referring to the hypothetical question previously put) before to-day. Q. Not a suggestion of it A. No. Q. Did you know what was in it? A. I can’t repeat it. Q. Do you remember whether there was any- thing in the question about mucus? A. Yes; I do not state with confidence from memory. I have been examined before as a witness in this matter before the coroner’s jury, and I have seen my testimony in the printed book upon that subject. I have read it over twice; I have not read it over to-day ; I read it last just before I left home, and a little here. Q. Did you find it correct there ? A. Yes, nearly so. Q. Have you sworn to some things here that you didn’t then. Objected as incompetent. The Court overruled the objection, to which ruling counsel for the defendants duly excepted. A. A good many things. Q. Did you have a full opportunity there to give all the testimony you wanted to? A. I think so. % Re-direct-examination by Mr. Russell: Q. Where there interrogatories propounded to you on that occasion as to congestive chills? A. No. Re-cross-examination by Mr. Smith: I have never had a case of congestive chills, and never saw one in my life. I have had a good many case where sickness was produced by malaria, cases of malarial fever. Q. What opinion have you given in regard to 1036 1037 1038 347 congestive chills is a mere recital of what you have read in the books ? A. Yes, and what I have heard from others. By Mr. Russell: Q. You were asked if you had a full opportunity to state what you knew at the coroner’s inquest, did you state anything except as you were interro- gated by questions propounded by the coroner or members of the jury ? A. No. Q. You volunteered nothing? A. No. Q. And the additional things you testified to on this occasion were answers to additional questions now asked you ? A. Yes, exactly. James B. Pierson, called as a witness on behalf of the defendants, and sworn, testified as follows : Examined by Mr. Larocque : I reside at Montclair, New Jersey ; I am Vice- President of the Mutual Benefit Life Insurance Company of Newark ; I have occupied that position since about the early part of 1876. Q. (Paper handed witness.) I show you a letter purporting to be addressed by Walton Dwight to “ Lewis C. Grover, Esq., President M. B. L. Insur- ance Co., Newark,” dated Windsor, N. Y., Sep- tember 23d, 1878. Stamped, “ Received Sept. 24th, 1878,” by the stamp of the company. Are you able to identify that letter as a letter received by your company ? A. I am ; it was received from Wralton Dwight ; it was in answer to a letter of September 19th addressed by Mr. Grover to Mr. Dwight ; that letter is referred to in it ; I have a copy of that letter of September 19tli, in my letter 1039 1040 1041 348 book. (Paper handed witness.) That is a copy of it. The counsel for the defendants introduced in evidence the copy letter of September 19tli, 1878, of Lewis C. Grover, addressed to Walton Dwight ; it was marked Exhibit 93. Also the reply of Mr. Dwight to the letter last read. It was marked Exhibit 94. Another letter was addressed by the company or by Mr. Grover, the president, and sent to Walton Dwight under date of October 7th, 1878 ; it was sent by mail—not registered. We again wrote a letter on October 22d, and it was mailed, as was our custom, in the early morning of the 28d, with our correspondence, and we had it registered. Q. (Paper handed witness.) Look at the paper now shown you purporting to be a receipt for a registered letter, and see if that is the receipt you received for the letter referred to % A. Yes, and it bears the signature of Mr. Dwight, or by somebody in his name. That letter enclosed a cop}T of a letter which had been forwarded to Mr. Dwight on the 7th of October and which had not been regis- tered. The counsel for the defendants introduced in evi- dence the receipt for registered letter signed “Wal- ton Dwight, by Neri Pine.” It was marked Ex- hibit 95. The counsel for the defendants introduced in evidence copy of the letter of October 7th, 1878, being the enclosure accompanying letter of October 22d, referred to by the witness. It was marked Exhibit 96. Also the letter of October 22d, 1878, referred to by the witness. It was marked Exhibit 97. No answer was received to either the letter of October 7th, or that of the 22d. 1042 1043 1044 349 Geokge W. Thompson, called as a witness on behalf of the defendants, and sworn, testified as follows : Examined by Mr. Larocque : I reside in Boston ; am in the insurance business; 1 am a superintendent of agencies of the New England Mutual Life Insurance Company ; have occupied that position since January, 1877. Prior to October 4th, 1878, the New England Mutual Life Insurance Company" had issued a policy on the life of Walton Dwight. The application for that policy came to the company through the Union Mutual through Winship of Albany. In October, 1878, I went to Albany on behalf of the New England Mutual in connection with this policy. I saw there Mr. Winship and Mr. Batch- elder on this subject. I subsequently went to Binghamton on the same business. I was in Bing- hamton on Tuesday, the eighth, I think it was, of October of 1878. I got there on Monday, the 7th. I saw Colonel Dwight on that visit, but not in Binghamton. I tried to find him in Binghamton. I looked for him at the Spaulding House, not finding him there I went up to Windsor, in Broome County, a short distance from Bingham- ton. Q. To whose house did you go % A. I was told his father-in-law’s, I do not remember the name. Q. Was it Dusenbury ? A. That sounds like it. Mr. Spaulding of the Spaulding House carried me there—he took me there in his own buggy. I found Colonel Dwight there. Q. State, if you please, what you did and said and what Colonel Dwight said in connection with this policy on the occasion of this visit ? A. I had a letter in my possession from the president of the company directed to Walton Dwight, of which I 1045 1046 1047 350 have a copy here. (Produced.) Colonel Dwight came into the loom and I asked him if he was the gentleman, and he said yes, he was. I told him I had this letter from the president of our company, and delivered the letter to him, and he read it. Mr. Stevens, the writer, was president of the company at that time, and for many years pre- vious. The counsel for the defendants then introduced in evidence a copy of the letter referred to by the witness. It was marked Exhibit No. 98. Q. Now, upon presenting that letter to Colonel Dwight, and his reading it, what further took place between you ? A. He declined to give me the policy. I tendered him the amount of the cash he had paid, in greenbacks, and the three quarterly notes he had signed for the balance of the premiums. He said to me that it was his intention to carry upwards of $200,000 of insur- ance ; that our policy had been taken out fairly, and the questions had been fully answered, that he considered that his head was good to him for $10,000 to $15,000 a year, and that it was his intention after his death that he should leave the same amount for his family, that he could provide for them during his life. The question of his health came up. He stated to me that he was in perfect health, that he was taking a vacation in Windsor, and enjoying himself hunting and fish- ing, preparatory to his winter’s work in Chicago. He called attention to his physique, and asked me if I thought he was a consumptive looking man. When the question of his having spit blood came up, he told me lie had never spit a particle of blood more than the prick of a toothpick. I made three demands upon him for his policy and tendered the amount of the premium, each of which he declined, and he said “ I acknowledge 1048 1049 1050 351 you are doing your duty, but I must respect- fully decline to give up the policy.” I was with him perhaps half an hour. I told him there was a falsification in his application, according to the ideas of the president of the company, and it was in answer to that that he said he had never spit any more blood than came from the prick of a tooth pick. It was spoken of in general terms that there was a falsification in his application, and lie asked in what respect. I told him there was no mention of blood spitting. I did not point out any other alleged falsification in the application. What I said was limited to the spitting of blood ; to that he made the reply I have stated. Cross-examined by Mr. Newton : When he asked me whether or no he looked like a consumptive, or as though he had the consump- tion, I told him I thought he was a pretty good looking man—he was indeed. Q. Not much look of consumption about him ? A. No, he was a man of good physique and large, I should say over six feet tall; I judged him a pretty heavy man as he sat down on my hat and crushed it. I can’t say that he was as healthy a looking man as I ever saw. I am not a medical ex- aminer. You ask me something beyond my knowl- edge. Re-direct-examination by Mr. Larocque : Q. So far as you were able to observe, was there the slightest appearance of disease in Col. Dwight's countenance on the Sth of October? A. Not so far as I could observe. Re-cross-examination by Mr. Neicton : Q. Did you notice his voice? A. Not particu- larly ; it was apparently strong. He called my attention to the breadth of his chest. 1051 1052 1053 352 Q. Was it a broad one ? A. It struck me so. Q. And full? A. Yes, sir; he said he was in the habit of bathing in cold water every morning during the vear. 1054 George W. Avery, called as a witness on be- half of tlie defendants, and sworn, testified as follows : Examined by'Mr. Russell: I reside in Norwich; am a physician and surgeon ; have been such since the 22d day of January, 1850. I pursued the study of medicine for four years from 1846 to 1850, and attended two courses of medical lectures at Albany, graduated 22d of February, 1850, and have been in practice of medb cine and surgery from that time to the present at Rochester, and three years in the service of the United-States in the army—the balance of the time at this place. It was nineteen years the 8th day of last March that I came to Norwich to reside. During that time I have been Coroner of the County of Chenango, have held that office nine years, and am the present Coroner. In the course of my pro- fessional experience I have had several cases of sui- cide by hanging, I think eight. I performed an autopsy on only one. I assisted in only one case of the eight. Q. In your judgment, in the case of a person who had not presented any variations from the natural temperature of the body for four weeks preceding death, could such person during such time have had congestive chill? A. I should say not. A. Have you ever seen a case of congestive chills yourself? A. Yes; in Rochester. Q. Assuming that a patient is taking gelseminum, Fowler’s solution, calomel and morphine, what 1055 1056 353 would be the effect of those medicines on the heart and the heart’s action ? A. It would be to enfeeble its action. Q, In a person having a history of distinct bleed- ing from the lungs and spitting of blood some years before his death, and who, on examination after death presented a cicatrix and small fibrous nod- ules at the apex of one lung, what would be your opinion as to whether the cicatrix and fibrous nod- ules were the remains of old tuberculous deposits, being the true cause of the bleeding from the lungs .and the spitting of blood \ A. That would be my opinion if they were found on post-mortem. Q. After the lapse of years would it be possible to detect the presence of such a cicatrix and such fibrous nodules as I have described by a physical •examination of the chest during life ? A. I think it would be impossible. Q. Can you tell me, from your own experience and reading combined, as to about how much pres- sure of weight it would be necessary to arrest respi- ration so as to cause death ? A. Less than quarter of the weight of the body. Q. You may assume the following conditions : You ■examine about fifty-eight hours after death, in the month of November, the body of a man who was found dead at about 11 P. m., having been last seen alive one hour and a half before,anfl *hen not in a condition that would lead to an ay prehension of a sudden death ; you find the body to be the body of a man unusually largeand powerful,of great muscular vigor, with considerable development of firm fat,and forty-one years of age ; you find nothing unusual in the appearance of the face and the general sur- face of the skin, excepting the presence of small dark spots, indicating little effusions of blood in the skin of the back, and of the back of the right arm ; you find a furrow by the sides of the neck, nearly meeting in front and behind, about the size of the little finger, rounded at the bottom, and the skin 1057 1058 1059 3o4 involved in the furrow, dense and hard, and the surface like parchment ; the furrow begins in front,, just above the larynx, and extends upward and backward at an angle of nearly forty five degrees the brain and membrane perfectly natural and healthy, excepting a clot of blood on the surface on one side, near the top of the head, this clot being evidently of very recent origin, and not sufficient in itself to x)r°duce death ; the lungs deeply con- gested with dark liquid blood, but presenting no evidence of inflammation ; a few small fibrous nod- ules on the lungs, and the bronchial tubes and windpipe deeply congested and filled with bloody mucus ; the heart and blood vessels, including the valves of the heart and the vessels supplying blood to the substance of the heart, absolutely healthy in size and in every other regard, except a slight and unimportant thickening of some of the valves x and the cavities of the heart containing a very small quantity of dark blood ; the liver, spleen and kidneys absolutely natural and healthy, except that they, especially the kidneys, are deeply con- gested with blood and of natural size and weight a small quantity of undigested food in the stom- ach ; the mucous membrane of the stomach and in- testine congested, and a small area of apparent in- flammation about the size of a dollar in the stom- ach ; and with all the organs in the condition stated above, and the furrow in the neck described above, what, in your opinion, was the immediate cause of death ? A. My opinion would be he died of as- phyxia. Q. How produced ? A. By some instrument en- circling his neck—a cord or rope. Cross-examination by Mr. Newton: I saw a case of congestive chills ; I was not the doctor in attendance ; the person died; there wa& no post-mortem examination made. 1060 1061 1062 355 Q. Is that all the knowledge you have of con- gestive chills ? A. My own personal knowledge. Q. Then of your own knowledge you don’t know what the effect of a congestive chill would be at all ? A. What do you mean ? Q. Of your own knowledge ? A. No. Q. When did you first begin to study this Dwight case? A. I never have studied it. Q. Were you with the doctors the other after- noon here ; the assemblage of doctors studying the case? A. Yes; that Saturday afternoon; I in- vited in some doctors at the request of Dr. Austin Flint, Jr., at Mr. Marquis’s residence ; I invited three, I think, from Norwich and elsewhere. Q. When did you first hear this long question read ? A. Here in Court. Q. Did you hear part of it before ? A. I think I heard a portion of it before ; I don’t know who that was read by. Q. You said you thought such person, dying that way, died of strangulation ? A. Yes. Q. That is, cutting the wind off the lungs ? A... Partially or entirely. Q. You would think from that that in some way the wind was cut off so that they couldn’t breathe? A. Yes, from the appearance. Q. That is the usual way people die, isn’t it; having their breath stopped? A. They usually die when their breath stops, yes. Q. It comes from a great variety of ways, I sup- pose ? A. Yes, and a great variety of causes. Q. You have seen other cases of strangulation besides those you have mentioned ? A. Yes ; it depends upon what you call “strangulation.” Q. You have seen other cases of strangulation besides with a rope ? A. Yes. Q. Great variety of ways of strangulation, isn’t there ? A. No ; not a great variety. Q. Anything that stops the wind from the lungs; 1063 1064 1065 356 would produce a strangulation ? A. Yes ; and very speed}’ death ; that is asphyxia. Q. You would think from reading this that this man died from asphyxia ? A. I think he did. Q. Now said you had an autopsy in a case ; now, do you recollect the name of the person ? A. Yes ; Silas Brooks ; that was the 20th day of last April. s). He died of asphyxia? A. Why, it was not entirely asphyxia. Q. Did the autopsy show a case of asphyxia ? A. To a certain extent, yes. Q. The stomach was full of laudanum, wasn’t it ? A. Yes. Q. That is the only case you have yourself ex- amined ? A. Yes. Q. All the rest you rely on what you have heard as to congestive chills and asphyxia except these two ? A. Yes, what I have heard or read ; those are the only ones that came under my own per- sonal observation. Re-di/rect-examination by Mr. Russell : Q. About this case of congestive chills you speak of, you say you observed it yourself, and observed the symptoms? A. Yes. Q. So you can speak of those symptoms? A. Yes; there was only one ; this patient died in the congestive stage, cold stage; I saw him a few minutes after death ; I saw the patient living for about six hours before death. Q. These other cases of strangulation are cases in which you saw the body ? A. Yes, I saw the bodies ; several of them I cut down. Q. How many of them ? A. Three or four of them, I recollect, while still hanging ; I was acting in my capacity of coroner. Re-cross examination by Mr. Newton: Q. This case of congestive chills you spoke of, 1066 1067 1068 357 you only saw him during that congestion ? A. Yes; and during the chill he died. Q. From the cold stage ? A. Yes. 1069 Charles H. Porter, recalled on behalf of the defendants, further testifies as follows : Examined Mr. Russell: Q. You may assume the following conditions : You examine about fifty-eight hours after death in the middle of the month of November the body of a man who was found dead about 11 p. m., having been last seen alive one hour and a half before, and then not in a condition that would lead to an apprehension of a sudden death. You find the body to be the body of a man unusually large and powerful, of great muscular vigor with considerable development of firm fat, and 41 years of age ; you find nothing unusual in the appearance of the face and the general surface of the skin excepting the presence of small dark spots indicating little effu- sions of blood in the skin of the back, and of the back of the right arm ; you find a furrow by the sides of the neck nearly meeting in front and behind, about the size of the little finger, rounded at the bottom and the skin involved in the furrow dense and hard, and the surface like parchment ; the furrow begins in front just above the larynx and extends upward and backward at an angle of nearly 45 degrees. The brain and membrane per- fectly natural and healthy, excepting a clot of blood on the surface on one side near the top of the head, this clot being evidently of very recent origin, and not sufficient in itself to produce death. The lungs deeply congested with dark liquid blood but presenting no evidence of inflammation. A few 1079 1071 358 small fibrous nodules on the lungs, and the bronchial tubes and wind pipe deeply congested and filled with bloody mucus. The heart and blood vessels including the valves of the heart and the vessels supplying blood to the substance of the heart absolutely healthy in size and every other regard except a slight and unimportant thickening of some of the valves ; and the cavities of the heart containing a very small quantity of dark blood. The liver, spleen and kidneys absolutely natural and healthy, except that they, especially the kidneys, are deeply congested with blood and of natural size and weight ; a small quantity of un- digested’ food in the stomach. The mucous mem- brane of the stomach and intestines congested, and a small area of apparent inflammation about the size of a dollar in the stomach ; and with all the organs in the condition stated above and the furrow in the neck as described above—what in your opinion was the immediate cause of death? A. In my opinion the immediate cause of death was asphyxia—mechanical asphyxia—and from having it stated that there were furrows or grooves about the neck of the character described, in my opinion the cause of death was by strangulation—hanging. Q. Are you able to state, from the knowledge acquired by you in your medical studies, the amount of pressure that would be requisite to pro- duce death by strangulation ? A. Not definitely. Q. Can you from such medical studies state an amount of pressure that would be sufficient to pro- duce death from that cause? A. I couldn’t state definitely in pounds—in weight. I have a general idea of it, but not a particular idea, I could not give you a yery close or definite statement. Q. Could you give it within a range of 20 or 30 pounds ? A. I would say a few pounds. 1072 1073 1074 359 dross-examined by Mr. Smith : Q. In making this statement of “a few pounds are you giving the result of any experience that has fallen under your observation ? A. I have not. Q. In making this statement of a few pounds are you giving the statements that anybody else has ever pretended to give as a result of their experience? A. I have in a general way. Q. Just tell me who that man is that pretends to to have any such experience ? A. I should say Taylor ; I should say general works on medical jurisprudence. Q. Can you tell where Taylor anywhere speaks of death being produced by it ? A. JNot any defi- ite number of pounds. Q. Nobody in the world can tell without guess- ing? A. Yes. Q. Is it anything more than guess work ? A. Yes. Q. It depends upon the position of the neck ? A. Certainly ; and upon the things used around the neck; and the direction in which that is applied ; and whether there is any friction in the use of the rope ; 1 should think, all these things bear upon it, I have no doubt. Q. And the degree of weight would be in a greater or less degree dependent upon the friction with which the gravity was applied to the member? A. It would. 1075 1076 1077 Austin BYint, Jr., called as a witness on behalf of the defendants, and sworn, testified as follows: Examined by Mr. Russell: I reside in the City of New York. I am phy- sician; have been such since 1857. I graduated at 360 the Jefferson Medical College in 1857. I began the practice of medicine in Buffalo, New York. I was for a year one of the attending surgeons to the Buffalo General Hospital. 1 was Professor of Physiology in the medical department of the Uni- versity of Buffalo from 1858 to 1859. In 1859 I re- moved to the City of New York. I was professor of physiology in the New York Medical College in 1859 and 1860, I then went for a winter to New Orleans and was professor of physiology and microscopy in the New Orleans School of Medicine during the winter of 1860 and 1861. I was one of the original founders of the Bellevue Medical Col- lege in 1861 and 1862, and have held the chair of physiology and physiological anatomy in that in- stitution since. In the meantime for two years I was one of the attending physicians for the Belle- vue Hospital. During the war I was for two year& one of the attending surgeons to one of the mili- tary hospitals in the City of New York. That I think, comprises my medical history. During the administration of Governor Tilden and during about one-half of the administration of Governor Robinson, I was Surgeon-General of the State of New York. I have written a large work on physi- ology entitled “Physiology of Man,” in five vol- umes, a text book of human physiology, and vari- ous smaller works and contributions to medical literature in the way of articles in medical journals, and papers read before medical societies, and so- on. Q. Have you devoted especial attention to the causes of death by asphyxia ? A. I have studied the subject of asphyxia very closely within the last few years ; probably as closely as any subject I have investigated. Q. Can you describe the mechanism of the con- gestions in death from asphyxia? A. lean describe what are recognized by scientific men as the me- 1078 1079 1080 361 chanism of the congestion of various organs pro- duced by asphyxia—certainly. Q. Can you better describe the mechanism of those congestions by illustrations upon the black board \ A. I could aid my descriptions in that way. Q. You may describe the mechanism of these congestions, and if you can aid your description by the use of the black board you may do so. A. I shall attempt to describe, if it be proper, the me- chanism of the congestion of certain organs, that would occur from asphyxia produced by a con- stricting cord about the neck. In the first place the presence of this constricting means or cord about the neck would necessarily obstruct the en- trance of air into the lungs and would produce in a very few seconds an exaggerated sense of want of air amounting to what we recognize as a sense of suffering. That sense would necessarily and vol- untarily be felt by violent attempts at inspiration, that is violent attempt to draw air into the lungs. The relation of the lungs to the chest is such that this elastic organ, the lungs—when the capacity of the chest is increased in efforts at respiration—fol- low the walls of the chest and the air rushes in through the windpipe to dilate these organs, the lungs. In case the air is not admitted into the lungs the chest nevertheless enlarges—the lungs cannot follow readily the enlargement of the chest, for the reason air is not introduced to supply what is called the virtual vacuum, consequently the air which al- ready exists in the air cells becomes rarified and we have rupture of a number of these cells and this coalescence, and we have little ruptures of the cells situated just beneath. The action of the lungs pro- duces the appearance known as emphysema, and that chiefly in the apex orin the apices of the lungs. At the same time the blood which passes through the lungs does not become oxygenated. It passes to the left side of the heart, and I will illustrate 1081 1082 1083 362 here. Here I suppose to be the left side of the heart, which is drawn in red for the reason that the left side of the heart is filled with red blood. This cavity, which I mark “A,” is the left auricle. That opens into this cavity, which I mark “B,” which is the left ventricle—this left ventricle being the stronger muscular portion of the heart, which, by its contraction, sends the red or arterial blood to every part or organ of the body—the left ven- tricle sends its blood through this great distribut- ing vessel which I now draw, which is known as the aorta ; and from this, which is called the arch of the aorta, there are three vessels given off, one which I have just made, a second that I now make, and a third that I now make. These vessels, the first is called the innominated artery,an artery with- out a name. It branches into this vessel, which I have drawn here, which is the common carotid, and this vessel which sends the blood to the upper ex- tremity of the right side. This (indicating) is the common carotid artery on the left side, and this is the vessel which supplies the left auricle. This common “carotid,” about opposite the larynx or Adam’s apple, branches into two ; one which I now draw, the external carotid artery, which supplies the face, and the other, which I now draw, the in- ternal carotid artery, which supplies the brain. And the same arrangement attains on the other side. Now, if a constriction be applied by a cord just above the larynx at the point I now indicate with white chalk—the external carotid arteries, which supply the skin and face, are compressed by this cord or constriction, and consequently we do not expect, when the constriction is applied at this point, any congestion of the face, for the reason that the artery which supplies the vessels of the face is constricted and the blood cannot get there— the constriction being applied at this point, and we consequently expect the face to be pale. These two deeper vessels, called the two carotid arteries 1084 1085 1086 363 which supply the blood to the brain, and another artery on either side, one upon either side called the vertebral arteries, which likewise supply blood to the brain, would not be constricted by a cord drawn tightly around the neck just above the larynx, and consequently when this aorta on the left side of the heart becomes intensely engorged with blood the membranes of the brain may become intensely congested, and it is very common not only to find such intense congestion, but that certain of these vessels have given way ; and on post-mortem exam- ination it is very common to find a clot of recent origin between the membranes of the brain. That is the mechanism of the paleness of the face which is observed in cases of strangulation where a cord is at the place I have indicated. Co-incident with the intense congestion of the membrane of the brain, the vessels for the supply of which escape by their situation, the constriction made by the cord, we have here, which I draw in blue, because it receives blue blood, the right side of the head. These two vessels which I have drawn here, one, the large vein, which pours the blood from the head and arm downward, the other large vein which carries the blood from the trunk to the lower extremities. This opens into a strong- er muscular cavity, or rather a cavity with stronger muscular walls, which is called the right ventricle. And the right ventricle sends its blood through the vessels which I now draw to those organs, which I marked with dotted lines, these are the lungs. The two sides of the heart, that is, the right ventricle sending the blood to the lungs, and the left ventricle sending the blood to all other parts of the body, act simultaneously and together. Now we have a picture before us of as- phyxia produced by constriction just above the larynx. It always and necessarily follows, that this violent movement of inspiration here made, which the lungs cannot follow causes some of these 1087 1088 1089 364 air cells in the lungs to burst. The blue blood passes into the lungs and is distributed to every part of these organs. There is no fresh air to turn that blood into red and it goes to the left side of the heart still blue blood and not rendered arterial. The left side of the heart cannot force this blue blood through the blood vessels of the system and that is the reason why so often there are found ef- fusions of blood in the brain. But this vessel which I still draw in red, although in asphyxia it contains blue blood, becomes intensely engorged—engorged to the fullest possible extent. There are given off here blood vessels which go to this organ, the stomach, the blood vessel which goes to this organ here, the spleen (indicating on the board); a small blood vessel which goes to this great organ which I now represent, the liver ; and blood vessels that go to ail of the intestines. Coming down from there we find two very large and short blood ves- sels that go to the organs which I now draw, the kidneys. Now, the kidneys have a dense and in- extendible fibrous coat; in other words, they can not swell. The coat of the kidneys is unelastic, when therefore, in asphyxia we have this intense engorgement of the abdominal aorta, that is, the great blood vessel of the abdomen, we find that the pressure of the blood in the kidneys is exceedingly great, and that thecapillary vessels of these organs, the kidneys, are engorged with blood to the great- est possible extent, so that always, without excep- tion, in cases of death from asphyxia, the kidneys are more engorged than any other of the abdom- inal, or any other of the organs of the body, ex- cepting perhaps the lungs. This spleen has an elastic coat, and can enlarge so that the vessels of this organ are not so much engorged as the vessels of the kidneys or the stomach. We find the stomach intensely engorged to that extent that the appearance of the mucous membrane is sometimes like the appearance found in inflammation. Tho 1090 1091 1092 365 same is true of the small intestines, that is, the bowels and contents of the abdominal cavity. But the liver receives a small branch, the greatest part of the blood from the liver is the blood collected from all of the abdominal organs, except the kid- neys. A great vessel called the portal vein carries the blood collected from all these abdominal organs, except the kidneys, to the liver, and as a consequence the liver in asphyxia is not so much congested as are the other abdominal organs. And now, ffnalljq in regard to the second, this aorta, as it comes down the back, gives off little branches between the ribs called the intercostal arteries, which divide and supply the skin of the back, this skin and the right arm entirely are sup- plied from the left side from this vessel which has rather a longer course. I represent it more accur- ately now (indicating on blackboard). The right arm however is supplied by a shorter vessel where the blood, from the course of the vessel has a better opportunity to go to the member; by that I mean to the arm—so that where congestion of the surface of the skin oc- curs, producing frequently these little spots of ef- fusions of black blood, called ecchymotic spots,— this congestion from the anatomical supply of blood—or anatomical arrangement of vessels sup- plying blood—is most marked on the back, and if these ecchymose spots be found on either arm they are more apt to be found upon the right arm than upon the left. Now, in regard to the lung ; this black blood passes through the lungs, and goes to the left side of the heart, and the left side of the heart cannot force it through the system. The blood vessel, the aorta as I have described it, or as it is named, be- comes so much engorged that it can receive no more blood. The left ventricle becomes so much engorged that it can receive no more blood from the left auricle, and the left auricle can receive no 1093 1094 1095 366 more blood from the lungs. At the same time th& blood is being poured in notwithstanding from the- great veins into the right side of the heart, and is being sent to the lungs, there being an obstruction to the blood going out of the lungs and the right side of the heart, sending the blood with force into the lungs; these organs, the lungs, become deeply congested,and generally all of the blood in asphyxia being black, coagulates with difficulty, and the blood which engorges these organs, the lungs, is black and liquid, the heart becomes greatly en- feebled as respiration becomes permanently ar- rested, and it linally in some instances empties itself, and in some instances it does not ; so that sa far as the engorgement of the heart is concerned in cases of death from asphyxia, sometimes the cavi- ties contain a considerable quantity of blood, and sometimes a small quantity. That is my idea of the mechanism of the produc- tion of this congestion, and the view accepted by scientific men in general. Q. Does the amount of blood in the heart depend at all on the strength of the heart or the heart’s ac~ tion in cases of asphyxia? A. If the heart be per- fectly natural in its structure, and its muscular substance be vigorous, it would probably empty it- self to a considerable extent. Q. What are the evidences in cases of spit- ting of blood that the blood comes from the- lungs'? A. The blood, if it comes directly from the lungs, is always of a bright red color, and generally frothy from the admixture of more or less air in bubbles. Q. What do small fibrous nodules or cicatrices in the apex of one of the lungs indicate ? A. They indicate previous tuberculous disease, or I might say old tuberculous disease. Q. In case there has been a spitting of blood from tubercular disease, or hemorrhage of tlie- lungs, and the wound is healed, and years elapse,. 1096 1097 1°98 367 is it possible to detect it by ausculation or concus- sion of the lungs? A. In a great majority of cases no, unless the tuberculous disease has been quite extensive it would not be possible. Q. Did you examine with a microscope any por- tion of the heart that was handed you by Dr. Sher- man ? A. I did. Q. What did you discover ? A. I made an ex- amination of certain specimens handed me by Dr. Sherman, which specimens I found to be composed of heart substance or muscular libers, perfectly natural and unaltered by disease. Q. Can you describe the difference in the charac- ter of healthy and diseased libers of the heart? A. There is one form of diseased libers ol the heart which is the most common of all, that is fatty de- generation. I can describe the difference between those I think. Q. Is or is not blood likely to be mixed with mu- cus in the bronchial tube in asphyxia ? A. It is likely to be mixed, that is it is likely to be bloody from rupture of small vessels in the mucous mem- brane of the bronchial tubes during the intense congestion produced by the asphyxia. Cross-examination by Mr. Smith : Q. What is your age ? A. Forty-seven ; my full name is Austin Flint, Jr. Q. Your father is an eminent physician in New York, I believe ? A. I believe so ; I believe him to be an eminent physician. Q. And is it he that is the author of that large book on medical subjects ? A. He has written many medical works. Q. When did you come here in this case ? A. I arrived in Norwich a week ago last Tuesday morn- ing, and I have been here ever since ; I never have been in Norwich before. Q. While you have been here you have been 1090 1100 1101 368 actively engaged in rhe preparation of the testi- mony in this case ? A. I have had nothing to do with the case except in regard to medical questions. Q. While you have been here have you been actively engaged on the part of the defence in pre- paring medical testimony to be given here ? A. I think not. Q. Have you been engaged in that business ? A. I think not. Q. Conversing with and negotiating with doctors upon the subject ? A. I have negotiated with no doctors, I have conversed with doctors in regard to this case. Q. And with a view of preparing the testimony ? A. No, sir. Q. You have been in the court-room most of the time? A. All the time. Q. Have you taken part in the proceedings of the trial ? A. This is the first part I have taken. I have probably answered questions that have been asked of me in the court-room by gentlemen engaged as counsel for the defendant in this case and probably have suggested questions that have been put to medical witnesses. Q. And written questions and handed them to counsel to be put? A. I don’t remember having done so in the court-room. Q. This you have done at the retainer of the defendant? A. I have been employed by the defendants to look up certain medical points in connection with this case. Q. Have you done these things in Court at the instance and retainer of this defendant ? A. I imagine so, lam retained by the defendants. Q. Are you retained in any other capacity than as an expert? A. I don’t know what other capac- ity I could act in. I was retained as an expert in the case. Q. Have you been retained in any other capacity 1102 1103 1104 369 than as an expert and to give your testimony as such ? A. No. Q. Do you know Dr. Wood ? A. Very well. Q. Did you go to him with this case? A. Yes, and I had an interview with him at the instance of counsel for the defence. Q. In what capacity did you go to Dr. Wood? A. To consult him in regard to certain points in the case, as a medical man, to get his opinion. That must have been about the middle of last May, I think ; I went from New York to Philadelphia for that purpose—to see Dr. Wood and three other gen tlemen. Q. Did you go over there to give him your views or to get his ? A. I went over to get his. I dis- cussed the matter with him ; I gave him views of this case that I entertained. Q. Have you given varying and different and con- flicting and inconsistent views on different occa- sions in reference to this case? A. I don’t know that I have. Q. Have you given a written opinion of this case that is in existence and here ? A. JSo, none that is here. Q. Have you never given a written opinion in this case ? A. I gave a written opinion after my first examination of this case in May, the very night or day I was asked to look into it. I don’t know where that opinion is. I sent it to Mr. James Thompson of New York, one of the counsel here. That was in May. Did that opinion differ from the one you have given here? A. That opinion was— Q, I beg your pardon, I did not ask what it was. A. I don’t remember what it was. Q. Does it differ from this ? A. Undoubtedly it differs. Q. Was that opinion in reference to the case of Colonel Dwight ? A. As I understood it from cer- tain papers that were given to me. 1105 1106 1107 370 Q. And did yon give another one afterwards still differing from that ? A. No written opinion. Q. A sort of postscript to the other ? A. I don’t remember anything of that kind. Q. You have been making a picture on the black board here in Court, using different kinds and colors of chalk, and you have attempted to repre- sent the heart and some of the surrounding organs to show how they exist in a human body ? A. I have made diagrams, but no attempt at fidelity of representation. I have made an attempt to make a diagram. Q. This is very much like the common engrav- ings we see in books representing the heart and surrounding organs ? A. I won’t venture to say. Q. It is about the same you see in all these books on physiology? A. I won’t volunteer to give an opinion on that. Q. How long do you think you have been occu- pied here in delivering your testimony ? A. T can’t form any idea. Q. Not even with all your experience as a doctor. How long have you been occupied here, standing up there by the Court delivering your testimon}7 and demonstrating it by a picture ? A. I suppose fifteen minutes, I can form nothing but a guess on it though. Q. This is very much the representation you are in the habit of making, I suppose, in lecturing to a class in the Medical College in New York ? A. Yes, very much after the same style. Q. The same thing has been in print? A. I im- agine every statement I have made has been in print. Q. Now, with reference to this congestion. You used one term, I think it was mechanism of conges- tion—now define as to what is meant by the mech- anism of congestion ? A. By the mechanism of these congestions, I mean the causes which produce 1108 1109 1110 371 these congestions, ancl the manner of the actual production of the same. Q. Have you ever seen that term anywhere, the mechanism of congestion ? A. I think it is an en- tirely scientific term. Q. Can you tell us where it occurs ? A. No. Q. Now, this mechanism of congestion relates in this class of cases to the external or physical oper- tions affecting the circulation. Is that the idea— mechanism of congestion—is that the idea, or what? A. I should say the mechanical processes that take place in the progress or production of congestion. It is applied to the condition of the vessels. Q. It applies to the circulation of the blood? A. In a sense it does. Q. Now, the results would depend, I suppose, in a great degree upon the condition of the subject? A. I am assuming and I have assumed in my de- scription a healthy subject. Q. Would these results depend in a great degree upon the condition of the subject, for instance, where you say the kidneys would be violently en- gorged, wouldn’t that depend upon the condition of the subject ? A. Not in relation to the kidney, I think. Q, Wouldn’t it depend upon how much blood a man had in him? A. Undoubtedly. Q. If the circulation of the blood in any part of the body were suddenly arrested, would the results produced, or which you would expect to find, de- pend very much upon the condition of the blood at the time when the circulation was arrested ? A. I am not captious, but I do not understand what you mean by the arrest of the circulation of the blood. Q. 1 mean by stopping it. A. By stopping the entire circulation ? Q. I mean by stopping it, if you don’t under- stand me I will ask another question. A. If you will allow me to define the point in which I do not understand you I will do so. 1111 1112 111a 372 Q. Suppose you found a man who died by stran- gulation, whose blood was thin and wasted by disease, would you expect to find the organs in a different position from those of a man who died from strangulation in the full vigor of health and full of blood? A. Not essentially. Q. It would be all alike? A. There would be no essential difference. The quantity of blood in the- body does not vary considerably without hemor- rhage. Q. So that whether a man had been sick a month, you think would not affect the quantity of blood in his system ? A. Not to any very great extent. Q. If he had been without food a month, would it affect the amount of blood ? A. It would. Q. Would it diminish the amount of blood? A. A month would. Q. Would two weeks diminish the amount of blood ? A. It would. Q. Would a minute—one single minute—of want of nutrition diminish the amount of blood ? A. Not perceptibly. Q. Isn’t the consumption of blood going on every minute; I mean every time a man bends his arm don’t it require the consumption of blood ? A. No. Q. If you stop the blood in a man’s arm, could lie lift it ? A. Yes. Q. Without blood; do you say that stopping the blood in a man’s arm would not stop the power of motion? A. Aon will have to define what 3-011 mean by stopping the blood in a man’s arm; I don’t recognize such condition. Q. Do understand it ? A. I honestly I do not understand it. Q. You have spoken here to a considerable ex. tent upon the condition of persons who had died from asphyxia; these statements you have made are the results of personal observation ? A. I never have seen a person who died from strangulation. Q. Are these statements you make here derived 1114 1115 1116 373 from books ? A. They are from experiments upon animals chiefly. Q. And neither from books nor your observations of cases of a human being? A. I never have seen a human being who had died from strangu- lation. Q. So the condition of the blood vessels of a human being dying from strangulation is with you a mere inference, which you have drawn from other evidence? A. I am familiar, through reading, with the condition of the blood and with the blood ves- sels of persons who have died from strangulation, and I have made experiments upon animals upon those points, and those are my sources of infor- mation. Q. But no personal knowledge ? A. I never have seen a person who died from strangulation; I have made experiments; I make them constantly, and have during the last fifteen or twenty years ; I don’t mean every minute or every dajr, but 1 have made them habitually ; I have made them within a week of my coming here, upon animals—upon a dog. I subjected a dog to asphyxia ; I think my assistant interrupted the respiration of that dog ; I don’t care to use the word “ choked ;” it is in no sense ap- plicable to the experiment. That is the reason I am endeavoring to be plain. Q. Did you mean to be understood that the words interrupted the respiration of the dog” are more appropriate, is that your idea ? A. I do. Q. Then I will ask you whether the interruption of the breathing of that dog was continued to that •degree or duration that it stopped it ? A. Yes. Q. Then I suppose you proceeded to cut the dog up, or dissect the dog—is that right ? A. That is a correct term. A dissection was made on the dog under the influence of ether before the respiration was interrupted. Q. You went to cutting the dog up before he was -dead—is that it? A. That is so. 1117 1118 ma 374 Q. Were there any of these results which you have been giving here ascertained by the experi- ment of cutting open the dog while he was yet alive? A. They were ; that and others ; while the dog was in that condition I looked at his heart, his kidneys, his liver, his spleen, his lungs ; I exam- ined all his organs. Q. Did you discover any of the conditions on that dog while you were cutting him up while he was alive that you have mentioned here ? A. Yes. Q. While the dog was being cut up thus was he under the influence of some substance ? A. He was under the complete influence of ether, so as to be entirely insensible. Q. But so as to stop his breathing, did the dog- have those operations suspended ? A. The breath- ing employed was artificial respiration, which could be furnished by a person performing it at will, and resumed at will. Q. What is that artificial breathing apparatus that can be continued and arrested at will? A. A common bellows ; that was used on the dog. Q. And were these conditions produced on the aforesaid dog while he was undergoing those pro- cesses, and when the use of the bellows was sus- pended, that you have regarded as indicating some other condition that you have described here, or indicating some of the effects of asphyxia ? A. This was an illustration to illustrate conditions that I had ascertained before by similar experi- ments. Q. Was there any result by the use or omitting to use the bellows after cutting into the dog as you have described, any result that you ascertained which regard as a demonstration of an3r of the features of this case of asphyxia ? A. I had ascer- tained it before and saw it then. Q. What was it that 37ou saw in that dog at that time, while you were operating with these bellows,, which illustrates any of the effects produced by; 1120 1121 1122 375 asphyxia ? A. The great engorgement of the arte- rial system, the engorgement of the kidneys, and that was ail that was attempted to demonstrate on that occasion. Q. Did you take out the kidneys of the living dog? A. No, I did not, nor did I take out the liver. Q. All 3'OU knew about the engorgement was while it was in the animal ? A. I didn’t speak of seeing an engorgement of the liver. tj. Of the kidneys ? A. Yes. Q. Did you take them out? A. No. Q. All you saw was what you saw in the animal there? A. Yes. Q. That is one of the appearances on which you predicated your statements here ? A. No. Q. Did that dog have anything to do with your testimony here ? A. No. Q. Is there any examination that you have ever made of any body, either of a human being or of any other creature, that illustrates any of the prop- ositions which you have represented in that red, white and blue picture ? A. Yes. Q. When was that experiment ? A. I suppose I have made a hundred experiments of that kind, when investigating the subject of asphyxia; as to giving the date of any one experiment without referring to the article in which those experiments were recorded, it is absolutely impossible for me to do it. Q. In any of these cases, these hundreds of cases where you have made experiments in treating of the subject of asphyxia, cases where respiration had been completely stopped by the use of a rope? A. I have tied a cord around the trachea or wind- pipe repeatedly. I never used what is known com- monly as a rope ; I have used a cord. I have at- tempted to answer the question distinctly. Q. The question is whether you, in any of these hundreds of experiments which you have men- 1123 1124 1125 376 tioned, or volunteered to mention or otherwise, you have ever made a physical examination of the in- terior portions of the body of any creature that died from the suffocation of a rope around the neck? A. If will define to me what you mean by “ rope” I will give a distinct answer. Q. I mean the fibers of any commodity, cotton, linen, silk or wool, so drawn out and then twisted and wound together, as to form one continuous sub- stance capable of being wound around a neck and strong enough to bear stretching, contracting or force? A. 1 know what is meant by “rope,” and I have never used a rope. I have used a cord of sufficient strength—about half the size of my little finger—about a quarter of an inch in diameter, say the size of a lead pencil. Q. What animal have jTou ever experimented upon by the use of a cord of that size, and when, and where and who was present ? A. I have made experiments of this character in Bellevue Hospital Medical College, in the City of New York, in the presence of C. F. Roberts, my assistant, and other assistants repeatedly. Q. Did you use the cord to the extent necessary to kill the animal ? A. When I used the cord to tie the windpipe of this dog it killed him finally. Q. Then you dissected the dog ? A. I have no particular experiment in my mind as I am think- ing now; it is only one of a series. Q. Do you mean to sa\r you can’t remember a circumstance of that kind to identify it, when you have done it nine hundred million times ? A. I haven’ t done it in nine hundred million times ; I have in my mind at this moment in answering your question no particular experiment. Q. I want you to get one in your mind; if you make such an experiment I want you to state it and I want to know who was present. Are you able to recall a single case where the animal or creature of any kind was put to death in any such 1126 1127 1128 377 way that you can now recall and identify and par- ticularize even in the most general way ? A. I can identify any case that has occurred in a public demonstration in the form of a lecture, and I can tell in general terms who assisted me, and I could tell, by reference to notes, the date of the lecture. In regard to other experiments I could identify them by referring to articles written upon those subjects where the date of the experiment is given and the names of the persons present, but as to carrying those things in my mind it is impossible for me to do so. Q. I want to know whether from memory now, as you sit there, you can recall any single instance so as to identify it when you made such an experi- ment? A. As tying the trachea with a cord? I don’t know your experiment, counsellor, if you will tell me I may be able to answer intelligently and clearly. Q. Now, speaking from memory, can you recol- lect a single instance where you made the experi- ment upon any creature or body by strangulation by the use of a cord around the neck ? A. Yes. Q. When was it ? Of course I don’t suppose you can be precise. A. That was in my last lecture upon the action of the heart. Q. When was that last “lecture upon the action of the heart,” that you delivered ? A. Occurring from three to five weeks ago. Q. Did you at that time have the respiration of the dog suspended to that degree that it produced death? A. Yes. Q. When was he cut up and dissected ? A. I don’t know what became of him after the lecture. Q. Without any regard to the time of the lecture, after animation was suspended, was he dissected ? A. I don’t know ; he was taken out of my observa- tion, and I haven’t seen or heard anything of him since. Q. Did you see anything of the internal organs 1129 1130 1131 378 ol: the dog after the respiration was interrupted ? A. Yes. Q. Then he was dissected ? A. He was dissected before the respiration was suspended, and not after- wards. Q. Have you had much experience as a witness \ A. Very little. Q. The question I intended to put was whether you had had any case where the dissection was after the animal was dead? A. I don’t at this moment remember any particular experiment where an animal was strangled with a cord and allowed to die from that cause and I made a dissection after his death. Q. Has there been a case where you have made an examination of any body of any kind, or any species after death by asphyxia ? A. Yes, I have many. Q. Can you recall one of these cases ? A. I can’t locate one, but I can recall in a general way many of them. Q. Can you state one of them, so I can know the person or persons that witnessed it ? My idea is to identify the thing so it can be known? A. There must have been many that have been witnessed by the persons I mentioned. Q. Has there ever been a case of an autopsy of a body that had died of strangulation or asphyxia that you can identify here so that we can tell when and where and what it was ? A. Yes. Q. About when was it ? A. About five weeks ago, or about a year from live weeks ago. Q. Where ? A. In New York City, at the foot of Ease 26th st. In New York City in a building known as the Bellevue Medical Hospital; Dr. C. F. Roberts was present and one or two others whose names I do not remember ; I do not at this moment remember their names. Q. Was it a case of asphyxia or suicide? A. Suicide is not applied, so far as I know, to or does 1132 1133 1134 379 not occur in animals. I am answering as to the body of an animal according to your definition of ‘‘body.” Q. You give it as a specimen of your medical skill and knowledge that suicide does not apply to animals? A. No, 1 said it did not often occur in animals. Q. What animal was it ? A. It was a dog. Q. Doctor, what is a nodule? A. A nodule is a small lump. Q. Is that the best definition you can give? A. A nodule is a small collection of matter, and I think in the sense in which you intend to ask the question that the definition “a small lump” would express it. Q. What is a nodule when found in that portion of the human body called the lungs? A. It is a small lump or collection of fibrous substance or other substance. Q. Ordinarily about how large ? A. It may be of any size. Q. You don’t mean as large as a load of hay? A. A nodule does not refer to size. Q. Can’t you give some idea of the size of a nodule ? A. I should say it would be the size of my little finger. The size of a marble perhaps. Q. Is it something like what we would call in common parlance a kind of fester—a little thicken- ing of the texture standing alone ? A. It occurs sometimes in the lungs in the form of fibrous mat- ter—a little collection of the fibers. Q. Can you tell from a living being whether lie has got nodules or not when he is alive? A. By the term “ nodules ” it may mean nodules of any kind, form, shape or consistency in any part of the body. If you will specify in what part of the body I will cheerfully answer. Q. I asked about nodules in the lungs and I want you to tell this jury as a gentleman of great learn- ing and experience whether you can tell up >u a 1135 1136 1137 380 living subject whether he has nodules in the lungs or not ? A. If lie has small nodules in the lungs it is impossible to tell. Q.' Can you tell whether you have yourself or not? A. I couldn’t make a physical examination of my own chest; it is impossible. Q. Can you tell whether you have them or not as you sit there ? A. I cannot. Q. About this spitting of blood—the mouth is constantly moist and if blood runs into it it would mix with the moisture? A. It would not be absolutely clear then. Re-direct-examination by Mr. Russell: Q. You have been asked whether a man could examine himself so as to tell whether he had a small fibrous nodule in the apex of his lungs, could not a man tell in the case of an ulceration of the lungs from which proceeded a hemorrhage of spit- ing of blood as to where the blood came from ? A. A man who spat blood from the lungs would be likely to know that it came from the lungs. 1138 1139 Dwight M. Lee, called as a witness on behalf of the defendants, and sworn testified as follows : Examined by Mr. Russell: I reside in Oxford, and am a physician and sur- geon ; I have practiced for about 19 years; for about 18 years in this country; am a graduate of the Albany Medical College. Q. In the case of a person who had presented no variations from the natural temperature of the body for four weeks, could such a person, in your judgment, have had congestive chills, during such time ? A. No, he could not. 1140 381 Q. Assuming that a patient was taking Gelsemi- num, Fowler’s Solution, Calomel, and Morphine, what would be the effect of those medicines upon the heart and the heart’s action? A. It would have weakened it. Q. In a person having a history of distinct bleed- ing from the lungs and spitting of blood some years before his death, and who on examination after death presented a cicatrix and small fibrous nodules at the apex of one lung, what would be your opin- ion as to whether the cicatrix and fibrous nodules were the remains of old tuberculous deposits being the true cause of the bleeding from the lungs and the spitting of blood? A. My opinion would be that they were the results of old tuberculous de- posits, in my judgment the spitting of blood would have proceeded from the old ulcerations. Q. After the lapse of years would it be possible to detect the presence of such a cicatrix and such fibrous nodules as I have described by a physical examination of the chest during life of the person ? A. Probably not. Cross-examination by Mr. Smith : I came here this morning at the instance of Dr. Avery I think—the man that was on the stand here ; he did not subpoena me. I am here at his instance, at his request, and not other- wise. He stated that I would be remu- nerated for my time, I suppose that is what you are after. That request was put to me last Monday morning. The amount of the renumeration has not been indicated in any wise, nor what source it was to come from. Q. As you are there testifying do you know on which side you are a witness? A. I suppose I am a witness on the part ofjthese insurance companies. I have been giving testimony in regard to whether, 1141 1142 1143 382 ill my judgment, previous hemorrhage might have resulted from the conditions stated to me, or whether those conditions might have possibly been the result of previous hemorrhage. My answer was not mere guess work. It was the result of reading. I don’t think I have read anything upon that subject in several months. In the month of June! read Neymyer’s practice. Q. What did you read about nodules ? Anything as to what they were ? A. Yes. Q. Bo you know what they were, except by reading it in Neymyer’s or Neymiyer’s book? A. Except from that and other books. Q. Well, what are nodules? A. A nodule is a small lump. In the lung it is usually a fibrous lump. Q. Is there anything in the book about how you could discover it ? Bo you know anything about how it could be discovered in the living subject? A. There are rules laid down. By ausculation, the physician judges whether the lungs are free or not,—whether the air passes in to the air cells or not by listening. Q. Whether there is any murmur ? A. Yes. Q. And if the thing goes free then no nodules ? A. That’s the supposition. Q. If it is all free then there are none—if it is disturbed then there are some ? A. It doesn’t nec- essariljr follow, there may be some other disturb- ances. Q. Is there any way in which you can describe to us here by which the existence of nodules can be detected upon a living subject? A. I don’t know as there is—not in that situation. Q. Have you any personal knowledge of the ap- pearance of these nodules after death ? A. No. Q. Never having seen one I suppose you haven’t any idea from your own observation as to their ef- fect? A. No. 1144 1145 1146 383 Q. Or the symptoms of their effect upon the health? A. No. Q. Or whether they are fatal or not—a man might have nodules and live a thousand years from any other cause than nodules ? A. Yes. Q. What is a cicatrix, as you understand it ? A. A scar. A cicatrix of the lungs would be a scar on the lungs. They are not commonly found in sub- jects after death. Q. This spitting of blood—have any cases of that kind fallen under your observation ? A. Yes. 1147 Samuel M. Hand, called as a witness on behalf of the defendants, and sworn, testified as follows : Examined by Mr. Russell: I reside in Norwich, and am a physician and surgeon. Am a graduate of The Berkshire Medical College of Pittsfield, Massachusetts. Have prac- ticed the profession of medicine since 1853. Have been a resident of Chenango county for about nine- teen years and a half. I was coroner six years. Q. In the course of your (experience as a physi- cian and surgeon and coroner have you known of cases of suicidal strangulation ? A. Yes, sev- eral—eight. Q. Any of those cases where any portion of the body was touching the ground ? A. Yes, one. Q. In your judgment, have you formed, or are you able to form a judgment as to the amount or weight of pressure that is necessary to occasion death by strangulation ? A. No. 1148 1149 384 George P. Haskell, called as a witness on behalf of the defendants, and sworn, testified as follows : Examined by Mr. Russell: I reside in Brooklyn, New-York. I was, during- the years 1878 and 1879, a member of the firm of Cortwriglit & Haskell ; we were the general agents of the New-York Life Insurance Company of the State of New-York. Q. Did an application for a policy upon the life of Walton Dwight come to the hands of your firm in the summer or autumn of 18781 A. Yes, an application for twenty thousand dollars. That application was received from N. W. Batchelder of Albany; he was not an agent for the New-T ork Life Insurance Company, nor was he an agent of ours. A policy was issued on that application for ten thousand dollars. That policy came into the hands of the firm ; it was sent to Mr. Batchelder for collection of premium and remittance less the brokerage. Q. I understood you to say that Batchelder was- not an agent either of the New-York company or yourself? A. No, he was not. Q. What was the inception of this business in regard to the policy on the life of Walton Dwight —what was the first step in it ? A. Mr. Batch- elder communicated with our firm of Cortwriglit & Haskell, and asked what brokerage we would give- if he would Q. Did you or your firm ever have any commun- ication directly with Mr. Dwight on tlie subject of the application for insurance, or with any other person but Mr. Batchelder ? A. No. 1150 1151 1152 385 Albert D. Hitchcock, called as a witness on behalf of the defendants, and sworn, testified as follows : Examined by Mr. Larocque : I reside at Franklin, Delaware County ; I am now working as a printer and reporter ; in the years 1878 and 1879 I resided at Binghamton ; -during those years I was city editor and reporter •of the Binghamton “Daily Leader.” I knew of the alleged sickness of ColoneJ. Walton Dwight, in the autumn of 1878, and I knew when he died ; I attended at the coroner’s inquest that was held in April, 1879, near the cemetery, upon the body of dolonel Walton Dwight, when the body had been disinterred for the purpose of examination by the •coroner’s jury. I attended there to report the proceedings for the “ Leader.” 1 saw the remains of Colonel Dwight when they were brought from the cemetery to the building where the examin- ation was made, and I saw them when they were removed from the casket and placed upon the table. Q. Are you able to say whether or not attention was called by anybody to the existence of anything on the neck of the body—was attention caller1 by anybody to the fact as to whether there was n groove or furrow on the neck of Colonel Dwight’s body i A. The attention of the coroner and jury was called by some person to such a groove or indenture in the neck. Q. Did you yourself look to see where it was? A. 1 did. Q. What did you see on the neck of those re- mains at that time? A. I saw a mark or groove or discoloration ot' the neck. Q. State the appearance ot' the groove yon observed on that occasion ? A. The appearance was of a mark on the neck ; it was under the chin 1153 1154 1155 386 on the right side extending on the right side : from the position I occupied I could see only one side. Q. How far in front did this groove commence? How far or how near to what is commonly called the Adam’s apple? A. It was on the right side of it—it commenced not far from it. Q. And was its direction upward or downward as it went backward ? A. Upwards towards the ear. Q. Could you now state from memory at what angle this groove extended upwards and backward from the Adam’s apple? A. No, I don’t know that I could ; it was below the jaw. Q. Would a description of from 40 to 45 degrees accord with your recollection? Objected to as leading. The Court sustained the objection, to which ruling counsel for the defendants duly ex- cepted. Q. How did the color of this groove compare with the color of the skin surrounding it ; was it of the same color, or darker or lighter? A. It was darker. Q. What was the depth so far as you are now able to state, of this groove to which you have re- ferred ? A. I did not examine it close!}7 enough to state the depth, but it was a noticeable groove or mark. Q. Has anything occurred in the course of your observation to fix this appearance upon your mem- ory ? A. There has. Q. Were you ever present or did you ever assist in taking down the body of a person who had com- mitted suicide by hanging ? A. I did. Q. In what position was the person found to whom you now refer? A. Resting on the knees and toes. 1156 1157 1158 387 Q. Resting on the ground ? A. Yes, on the floor. Q. Describe the position of the body to which you refer when you assisted in taking it down ? Objected to as irrelevant, improper and immaterial. The Court sustained the objection, to which ruling the coun- sel for the defendants duly excepted. Q. Have you acquired a personal knowledge of the appearance produced on the neck of a human being by a rope or cord which has been the means of producing death, from personal observation ? A. I have, so far as that one case is concerned. Q. What is the appearance of the groove on the neck of a human being who has died from hanging with a cord or rope, death being produced by such cord or rope? A. There was a groove extending from the Adam’s apple up towards the ear, a groove that one could easily lay his little finger in, and discolored at the edges. Cross-examined by Mr. Smith : Q. In the answer to the last question, is the whole extent of your knowledge upon the subject covered by what you saw in the exterior of one other individual ? A. It is. Q. And is that the extent of your actual knowl- edge upon the subject to which your attention has just been called ? A. I think so. Q. Have you any knowledge of the exterior ap- pearance of a dead body of a human being so far as relates to ridges, streaks or marks, except tlie two cases to which you have referred ? A. I have none. Q. And on this occasion to which you have been referring as to the appearance of the dead body of Walton Dwight, did you understand then and do you understand now that it was knowledge derived 1159 1160 1161 388 after he had been buried more than five months ? A. I do. Q. State as nearly as you can the number of per- sons who at this cemetery barn gathering were sur- rounding the dead body of Walton Dwight, and had equal facilities with you to see and know what was the exterior appearance of the body ? A. I couldn’t give the number ; there were quite a num- ber there ; there may have been from 25 to 50, that would be my judgment ; the large portion of those gentlemen were residents of Binghamton; there were quite a number of physicians, I should say. Q. And several insurance lawyers ? A. I couldn’t say; I only remember one—Mr. Freeman. I don’t know his Christian name; I only remember one newspaper reporter besides myself, that was Mr. Frank A. Mentz—a man connected with our paper who came while I was there; I couldn’t say that there were any stenographic reporters there. Q. How near did you get to the body—the very nearest approach you made? A. No nearer than I am to you, I should say. I should say about eight feet—eight or ten feet. I hadn’t been present at the previous examination of the body of Colonel Dwight. Q. Was there a jury present upon the occasion you were there when you made this observation? A. I so understood. Q. Didn’t you know whether there was a jury there or not ? A. I only saw Dr. Richards. Q. Weren’t the jury all doctors? A. There were doctors there. Q. Can you state whether there were a number of men there acting as jury, and they were all doc- tors? A. I suppose so; I could not swear to that, sir; I took it for granted they were. Q. What did you say your present occupation was? A. Connected with the newspapers. Q. What is your actual occupation? A. Writ- ing for a newspaper and setting type for a newspa- 1162 1163 1164 389 per—the Delaware County Dairyman, I am a com- positor on that paper ; I have been there about ten weeks. I was subpoenaed to come here yesterday by George B. Curtis of Binghamton, a lawyer down there. He is the district attorney elect. Q. When did you first disclose the circumstance that you had any knowledge one way or the other upon the questions involved in this case, and to whom and where. Name the man so we can send for him if he is needed? A. I can’t name the man. Q. Can you name any human being to whom you ever disclosed the circumstance that you had any knowledge bearing upon this case? A. I can- not. Q. You have known, I suppose, for the last five years, that the matter to which your attention has been directed was to be the subject of legal investi- gation ? A. 1 have. Q. And during how much of that time have you lived in Binghamton ? A. But a very few months ; I can’t say. Q. Have you ever, during any of that time, dis- closed to a being that is now living, before coming on the stand here, your knowledge upon the sub- ject ? A. I think I have talked with different per- sons, but not in Binghamton. Q. Have you ever in all that time disclosed to a living being the circumstance which you have testi- fied to here? A. I have. Q. Who is that ? A. I can’t tell you. Q. Where? A. In Binghamton on the afternoon when the German was hanged—in the undertaking room of J. S. Freer. Q. Who was present and heard what you said ? A. Dr. Richards was present; I don’t know whether he heard what I said. I can not say who heard. Q. Can you name any living being who heard what you said ? A. I can. Q. You have been asked hereabout your knowl- 1165 1166 1167 390 edge of persons who died by suicide; did you ever see a being commit suicide ? A. I did not. Q. So that as of your own knowledge whether any person ever died by suicide or not, you are unable to state ? A. Only from that one case. I did not see it. It was from surrounding circumstances. Q. From your own direct personal knowledge has there ever been a case of suicide ? A. Never. Q. Who is this German of whom you have so often been speaking ? A. His name was Barnacle—John Barnacle, I think. Barnacle, at least so called. I saw him hanging in a barn in the fifth ward in the city of about June or July, 1878 or 1879. I saw the body before it was cut down. Q. Who else saw it? A. Dr. Richards, the coroner at that time, and a policeman with whom I went there. I can’t tell his name. Adam Oram was one of the jurors at that time. I don’t remember the others. Q. And this man you saw when first seen by you was hanging by a rope ? A. By a cord. Q I seem to be unhappy in the use of words. What is the difference between a rope and a cord ? A. One is smaller than the other. Q. Where does it cease to be a rope and begin to be a cord in size ? Doctor Flint seemed to think I was wrong? A. A cord ceases to become a rope the same as twine ceases to become a cord. Q. Twine ceases to be twine when it gets down to the fiber. Can you answer any other way? A. A cord is smaller than a rope, as I understand it. I have no other way to answer it. Q. Was this man you saw suspended there hang- ing by a rope ? A. No, by a cord. Q. What was the diameter of the cord ? A. I should say about one-quarter of an inch. It was a single cord around his neck ; the other end was at- tached around a rafter ; he was hanging from the rafter of that barn. He was on the upper part of the barn floor—in the loft of the barn, resting on 1168 1169 1170 391 the knees and feet. The weight of the body was Testing on the cord. Fie was on his knees; I know it. Q. On his knees ? A. On his knees and feet leaning over. Q. And the weight resting on the cord? A. Not entirely on the cord; of course he was resting on his knees to a certain extent. Q. You cut down the body ? A. No, I helped to take it down ; a policeman cut the cord with his knife. Q. You took the cord off from his neck ? A. The policeman took it off; I couldn’t swear whether I did or the policeman, but I think he cut it and took the cord from the neck. Q. You saw that man’s neck ? A. Yes. Re-direct-examination by Mr. Larocque : Q. You have been interrogated by the counsel for the plaintiffs as to the circumstances under which you made any statement or declaration on what you observed on the body of Walton Dwight on the coroner’s inquest ; were you present after the body of the German to whom you have refer- red had been removed for the purpose of having an investigation as to the cause of death? A. Yes. Q. I understood you to say that Dr. Richards, the coroner, was present at that time; is that so ? A. Yes, at the time of the inquest. Q. Do you recollect whether Dr. Daniel Burr was there ? A. He was. Q. Can you recall anybody else that was there ? A. I cannot, with certainty. Q. Did you make any statement when the two persons you have mentioned were present in the room with reference to what you had observed on the body of Walton Dwight ? A. I couldn’t give the exact language. Q. Did you make a statement in reference to what you had observed on the body of Walton 1171 1172 1173 392 Dwight on that occasion and in the presence of the persons you have named ? A. I did. Q. What statement did you make on the subject of any similarity or resemblance between the groove which you had observed on the neck of Walton D wight at the time of the Coronor’s inquest on the body, and the groove on the neck of the German of whom you have testified in the presence of Dr. Richards and Dr. Burr at the time of the inquest upon the body of the German % Objected to on the ground, first, that it calls for the unsworn statement of a third person ; second, that it relates to a subject wholly collateral and imma terial ; and third, that the whole of the testi- mony itself is immaterial ; the Court sus- tained the objection, to which ruling: counsel for the defendants duly ex- cepted. THE DEFENDANTS HERE RESTED. 1174 1176 Peter Van Vredenburgh, recalled by the plaintiffs, in rebuttal, further testified as follows : Examined by Mr. Newton : I first saw or knew Walton Dwight in 1867, arid from that time on I knew him, about 11 years, see- ing him, as often as one resident of a town would see another, if they were both on the streets a good deal; I was local editor of the “ Republican ” all of the time ; I never knew him to be out of health during that time, and never heard him cough. Q. I will ask whether or not you ever saw him. spit blood ? Objected to as incompetent and im- 1176 393 material, and also on the ground that the question is suggestive ; the Court over- ruled the objection, to which ruling the counsel for the defendants duly ex- cepted. A. I never saw him spit blood. When I first heard of Dwight’s deatii I was in the “ Republican ” office ; it was between half past eleven and twelve ; I was at work ; I went right away after hearing of it to Mr. Dwight’s room ; upon arriving at the room I found there Mr. Charles A. Hull; at this time the undertaker had not arrived ; he came just as I was leaving ; at the time I arrived Dr. Burr was not in the room ; I did not see him ; Warren Spauld- ing was there ; he came in while I was there ; the body of Walton Dwight when I reached there was in the bed room off the parlor; the body was about in the middle of the bed, bolstered up with pillows, and laid at an angle of about 45 degrees ; his coun- tenance was a little pale, but quite natural; the eyes were wide open and the jaw was dropped way down ; a shirt is all 1 saw on the body ; the head was lying back and the whole neck was exposed to view ; I noticed it at that moment ; there was no collar on, but quite a wide band nicely ironed ; I think it was buttoned ; there was no mark or crease or discoloration about the neck at that time ; he had a large full neck of medium length, perhaps a little short he was a very broad shouldered man ; he was in good flesh, perhaps, but not a fleshy man for one of his size. I did not help carry him pu t when he was laid on a board that night; it must have been about twelve o’clock when I left there ; I don’t remember looking, but my impression is that the head of the bed stood right up against the wall; I didn’t notice that the bed was away from the wall ; I think it stood up in the corner ; I placed my hands upon the body of Mr. Dwight ; on both hands and on the face; the hands and face felt 1177 1178 1179 394 warm and soft. I simply went there and spoke with Mr. Hull a moment, and passed into the bed- room and saw the body and came out, and, I think, I had a little more conversation with Mr. Hull and then left ; I noticed the position of his arms ; when I went in his arms were lying down between his knees, and I raised them and laid them outside ; his knees were bent slightly, his feet had evidently been drawn up about three inches, and then settled back and left a little bag in the bed-clothes over them. Q. State whether there was anything to prevent anybody going in and out of the room on that occasion, that you observed ? Objected to as immaterial. The Court overruled the objection, to which ruling the counsel for the defendants duly excepted. A. The doors were unlocked ; both the door in the hall and that in the bed room were unlocked ; the front door of the house was unlocked and the other doors were open ; I went in the bed room alone. 1 was during that interview in the bed roam alone. Q. Had you a conversation with Mr. Dwight in the summer of 1878, relative to his insurance and his object in procuring the insurance ? A. I had ; that conversation was right in front of No. 75 Court street; that conversation occurred about October, 1878. Cross-examination by Mr. Russell: I believe I am the same gentleman that is named in the will of Walton Dwight, as Peter Van Vredenburg ; I am the only one in Binghamton of that name ; I was a casual friend of Mr. Dwight, I cannot say I was an intimate friend. Q. Did you see Mr. Walton Dwight during any 1180 1181 1182 395 portion of the time that it was alleged by others that he was sick in the fall of 1878? A. I didn’t see him except as he came upon the street. I can't tell when, only I saw him often. My work was on the street a good deal, during this period which began about the lltli of October, 1878, and culmin- ated on the 15th of November, 1878. I don’t know that I saw him more than two or three times and that was on the street. I never heard him cough so that of course 1 could not have any personal knowledge as to whether when he did cough he at the same time raised blood. On this night of the 15th of November I arrived at the Spaulding House between half past eleven and twelve o’clock. I cannot give it nearer than that. When I say the undertaker had not arrived I mean by that only that I don’t remember that he came into the room until I met him at the door ; all I mean is, that I met him at the door; when he came he had the tools of his trade with him. I did not see either of the doctors Burr in the room ; I do not say that when I got there Warren Spaulding was there; I didn’t see him when I got there; there was no one in the room but Mr. Charles A. Hull. Mr. Hull was sitting on the west side of the room, if I get the points of compass rightly, a little north of the stove. (Referring to diagram Exhibit 51.) This is the bed room, and that is the stove and here is the door where you go in and Mr. HulL was about there (indicating); he was at the further side of the sitting room from the bed room when I came in and was sitting down. He was doing nothing, resting, I should say—I don’t remember how—he was sitting in a chair, that is all I remember about it, he was facing the stove. I bad some conversa- tion with Mr. Hull and immediately passed into the bed room. Mr. Hull did not go with me. I suppose he remained in his chair. I had been in- formed at the time I went into the bed room that Mr. Dwight was dead. I think I was cool. There 1183 1184 1185 396 was a fact in connection with his death that led me to go into tile room. There was no fact in connec- tion with the death that led me to make any examin- ation of his neck. The examination of his neck was close and marked. That examination was not close and marked on account of something that had been said to me. It was not on account of some fact of which I had been informed. Q. Was it on account of something that was then stirring in your own mind? A. I hardly know how to answer. If I comprehended the question. If I may explain that. Q. I want a categorial answer ? A. I will say yes, then. That did not lead me to investigate any other part of his person ; it did not lead me to any investigation of his hands or his l'eet, or the color of his face ; my recollection is that the body was bolstered up with pillows at an angle of about forty-live degrees ; the face was a little pale, but quite natural; I was examined as a witness on the coroner’s inquest; I cannot tell that I expressed in my testimony there the same language substan- tially now used in describing the color of his face. Q. Is your recollection of that color now more vivid or less vivid than it was at the time you were examined then, a few months after his death ? A. I should say it was less vivid now ; that would be my judgment. Q. Isn’t the expression you made use of at the Coroner’s inquest: “ He was very pale ; there was an entire lack of color in his arms and hands ; very pallid”? A. I don’t remember that expression; that was live years ago ; I have no recollection that that was the expression that I used. Q. Is it the fact that he was very pale ; that there was an entire lack of color in his arms and hands ; very pallid ? A. I don’t remember it so, now ; if I so stated at the Coroner’s examination, I should say it was correct; it was only a few days or months afterwards. 1186 1187 1188 397 Q. Wasn’t it more than a few days after the death that you so testified? A. I can’t tell. Q. Then your recollection and memory as to how long it was after the death of Walton Dwight that you testified is not good ? A. I should think only a few days, maybe a few weeks ; I don’t remember how soon the Coroner’s inquest followed his death. Q. Is your recollection so vague on the subject that you don’t remember it was five months after he died, and the spring following the fall'o'f his death? A. I don’t remember it. Q. Do you remember testifying to this in answer to a question. “ What was the expression of his countenance?” A. “ I can’t describe it in any other way than that there was a death look in it.” A. I don’t remember that answer. Q. Do you say that your recollection is now that his knees were drawn up only about three inches? A. They might have been a little more than that; that is, his feet may have been drawn up so it brought it up six inches. They were drawn up some, and they had settled back, the exact extent, I can’t say. Q. Did they settle back during your observation of them ? A. No. Q. How do you know they had been drawn up and settled back ? A. From the appearance of the bed clothes. Q. Did you not testify on the Coroner’s examina- tion “ his feet were drawn up quite a good deal, his hands were thrown over inside his knees”? A. Possibly. Q. Is that your recollection ? A. I don’t recol- lect. Q. You say his hands were warm and soft ; was that true ? A. I will say that is my recollection. Q. And the other portions of the body you felt ? A. Yes ; but I felt no portions except his hands and face. Q. Did you know at the time you saw Mr. Dwight 1189 1190 1191 398 as to whether his clothing had been changed since death? A. 1 didn't know; I didn’t know anything about that. Q. Now, in describing the band of the shirt around the neck, what do you mean by a smooth band ? A. I mean it was nicely laundried, and was not wrinkled. Q. Have you, since your testimony given before the Coroner’s inquest, had any conference with the lawyers representing the executors in regard to that testimony? A. Not in regard to my testi- mony ; but I had conference with them—I better qualify that by saying, not in regard to the testi- mony—I had a conference with Mr. Newton and Mr. Chapman; I don’t think 1 have had frequent discussions with other persons in regard to what I saw on that night. I have had conversations, per- haps half a dozen. I have made statements—not public, 1 should think. This band of the shirt—may have been an inch, and it may have been three-quarters of an inch wide—that would be my judgment. I can’t tell whether it was one thickness of linen. I should think more than that; it was a good width band. My recollection of it is that it appeared like a good, substantial band. I didn’t examine it to see whether it was more than one thickness of the linen. I should think it was nothing more than an ordinary shirt band attached to a shirt. I think there was a light in the bed room and also one in the sitting room. I think it was gaslight; it was turned up so it was very light in the bed room. Not very light in the sitting room ; In the bed room the gaslight was, I think on the south side. That I can’t be posi- tive of; my recollection is—and my recollection is not clear upon that subject—that it was on the north side of the room ; on the side of the room across from the bed. By the window. That would be my impression. I have no recollection about 1192 1193 1194 399 the number of burners lighted. I paid little atten- tion to the room. Q. You have got the room nicely lighted as you say, from a light in the corner of the room that you don’t remember, but think was over by the win- dow. Will you swear that there was any gaslight in that bed room at all ? A. I will swear positively that the room was lighted. Q. Will you swear positively that there was any burner lighted at all in that room when you were in there ? A. 1 have no distinct recollection of looking at the light. Q. You just told me you saw it was turned up high? A. No, I didn’t intend to. Q. Will you tell the jury under oath that there was any gaslight burning in the room at all ? A. I will say to the jury that I have no distinct recol- lection about what the light was, excepting that it was light. Q. Will you say under oath there was any gas- light wdiatever burning that night in the bed room when you were in there? A. I will not say there was or was not—I can’t. I have no positive recol- lection of seeing Mr. Dwight since the time I met him in front of 7o Court street. My impression would be that that was about the middle or fore part of October ; I couldn’t say that it was between the 10th and 18th. On the night of the death of Colonel Dwight, I have no recollection that I noticed whether his hair or beard had been cut ; I didn’t notice any change in him from what he usually appeared ; he usually wore a full beard, not very long; wore his hair about medium. Q. You noticed no change that night when you were there and looking at his head ? A. Well, he didn’t look exactly—nothing that I remember; nothing that impressed me. Q. You are now one of the editors or proprietors of a daily newspaper printed in the City of Bing- 1195 1196 1197 400 harnton, called the “Binghamton Republican” are you not ? A. I am one of the editors. Q. Are you the gentlemen who has been writing articles upon this Dwight trial that have appeared several times in the columns of that paper? A. I have written some articles about the Dwight trial that have been published in that paper while this trial has been going on. Q. And that paper of which you speak has been sent to the village of Norwich, during this trial, in large quantities, has it not? A. I have no doubt of it. Q. Is that printing establishment at which the Binghamton “Republican” is printed, the estab- lishment which has also printed a paper headed or purporting to be a copy of the last will and testa- ment of Walton Dwight, and with certain headlines characterizing that document? A. I have no knowledge of it. Q. (Paper handed witness.) Was this document printed in the office of the daily “Republican”? A. I can’t tell you. Q. Do you know from the appearance of it ? A. I can’t tell now. Q. Haven’t you seen a similar copy in the office of the “Republican”? A. I have not. Q. Mr. Van Vredenburgh, do you mean to say simply that that document could have been pub- lished in the office of the “Republican” without your knowledge ? A. Yes. Q. Now, do you not know, and are you not con- scious in your own mind, that a document has been published in the office of the “ Republican ” for the purpose of being sent to Norwich to be distributed ? A. I don’t know anything about that document ; I never heard of it until Mr. Larocque exhibited it here in Court, and I never had one in my hands until you just handed it to me. Q. Now, the question is, are you not conscious 1198 1199 1200 401 that has been published in the office of the “ Re- publican”? A. Iam not. Elias Ayers, called as a witness on behalf of the plaintiffs, in rebuttal, further testified as fol- fows: Examined by Mr. Newton : I reside in Binghamton ; my business is that of an undertaker; I knew Walton Dwight in his life- time ; I first became acquainted with Mr. Dwight about the time his father died ; that was, I think, ten or twelve years ago. From that time until the death of Walton Dwight, I was intimately ac- quainted with him. On the night of his death, I to the room at the Spaulding House ; I was •called about half past eleven o’clock ; I went as soon as I could get ready : my place of business and residence was at that time—it may be a quar- ter of a mile from the Spaulding House. Arriving at the house I entered the front door, and went into the room where the body was. 1 went directly to the house—at the cottage—directly to the front of the cottage ; I think I met Mr. Yan Vreden- burgh, the gentleman that was just on the stand, at the door, and I saw Mr. Warren Spaulding, the proprietor of the hotel, and Mr. Hull, in the room ; there were no other persons in the front room and bedroom than those, to my knowledge. The body of Walton Dwight, when I arrived there, was lying in bed, dead. The body was in the middle of the bed. I didn’t do anything till they got things prepared for me to do with—a dish of cold water, towels, soap, and his clothes that I wanted to put on. Then I undressed him, washed him, put on his clean clothes, pants, stockings and shirt. In undressing, garments which he had on him and 1201 1202 1203 402 which I removed were a day shirt and drawers. I washed him all over with soap and water, and in so doing he was entirely uncovered by me; I no- ticed his neck among other things ; 1 washed that entirely around the neck. Q. Was there any crease or mark as of a rope or otherwise upon his neck ? A. No. Having washed and dressed the body it was put upon a board, in the bed room, and then carried in- to the front room and placed on stools. A book and two pillows were then under his head ; the head was elevated pretty high. I then left after I had wet a cloth and laid it on his face. I completed this service about one o’clock at night, and then I left. I next saw the of Walton Dwight about nine o’clock the next morning, in the same room I laid it out in ; his face was bloated some then. The body was on the board just where I left and as I left it. Before leaving the body I made provision to prevent the dropping of the jaw by putting on a “chin rest.” It is generally used in those cases— calculated to hold the chin close to the upper jaw. That was put on the first evening. It was put on after I left the body on the board, and that was upon the body when I came at nine o’clock the next morning. That morning I prepared the body and put it in ice. I took it off of that board and put it in a cooler. I put it into the cooler between half-past ten and eleven o’clock that morning— Saturday. Mr. George Edwards assisted me in put- ting it in the cooler. In that cooler besides the body there were a board, head-rest, ice-pan over in front of the body, and ice. I laid his head in the cooler on an iron rack, leaving the head ele- vated in the neighborhood of 45 degrees, I should think. That is the ordinary position of placing a body in the cooler. The body remained in the cooler from eleven o’clock, or the time I put it in— from half-past eleven or half-past ten to eleven o’clock—until Monday morning at eight o’clock.. 1204 1205 1206 403 In the meantime I examined the body night and morning, tilling the cooler with ice and wetting the face. Eight o’clock Monday morning I was directed to have it ont. I couldn’t tell from whom that or- der came. The body in the cooler was in the front room of the cottage. In moving it there were a number of persons who assisted me. I couldn’t tell who. I think Mr. Edwards was there and others. The body was then carried in the rear of the Spaulding House, in a portion of a barn or wagon house—carried in the cooler, and remained at the barn. It was taken out of the cooler and put on the same board that he was laid out on in the first start, and that was put on the top of the cooler. There it was dissected. The body that was dissected was the body of Walton Dwight. At the time of that dissection there were slight creases on the neck. Q. Were those usual in cases of dead bodies ? Objected to as incompetent. The Court overruled the objection, to which ruling the counsel for the defendants duly ex- cepted. A. They were not. At the time I removed that body from the cooler, and when the dissection oc- curred, there was no discoloration around the creases; I felt of the creases; my attention was called to it by I)r. Swinburne ; the feeling was nothing more than it felt cold ; the crease was noth- ing more than a little wrinkle here on the neck. There was no wrinkle around in front at all across the throat ; there was no discoloration whatever around the throat. Dr. Delafield was engaged in dissecting, and as they proceeded notes were taken. Before the commencement of the dissection there was something said about these creases. I remem- ber Dr. Ayers being there. I was sent for. Dr. Ayers made a remark ; Dr. Swinburne was present 1207 1208 1209' 404 at the time. Upon Dr. Ayers’ remark Dr. Hull made an answering remark It was about one o’clock that day when they got through, I think. Then the body was sewed up and put back in the cooler, portions having been removed ; the remaining portions that had been removed and not carried away were all thrown hit and miss into the body, including the brains. Then we carried the body back into the cottage where I had taken it from, and put it in the cooler. In the meantime, in order to preserve the body or prevent bad odor, I had poured down his throat about a pint of chemical stuff I use to preserve the body, made of arsenic, carbolic acid, corrosive sublimate, camphor and other poisonous stuff. This was on Monday ; the funeral was on Tuesday. I put that stuff into the body after the doctors got through, and before I had again placed the body on ice. I next removed the body Tues- day morning, when I dressed it and put it into the casket. It was then taken from the house to the church on the funeral occasion. It was exposed at the church ; then it was carried to the Spring Forest Cemetery, where it was put into a brick vault and buried. About five months after that burial I directed the body dug up by the employees of the cemetery. I removed it from the grave with the employees of the cemetery. With me was James P. Tully; the cor- oner was there also. Having exhumed the body, we placed it on a wagon and took it to the barn. I made this removal under the directions of the coroner of Broome County. I opened the casket, and what was left of Walton Dwight was there. I took the lid off the casket. Scales were sent for, and the casket and body were weighed ; then it was taken out of the casket and laid on a couple of boards near by on the barn floor, and the casket weighed and there again subjected to examination. There were sev- eral doctors present there—Dr. Swinburne, Dr. Slier- 1210 1211 1212 405 man, Dr. Daniel Burr, Dr. Orton, Dr. Richards, the Coroner, Dr. Spencer, Dr. Jackson, and other doctors I cannot call to mind. I do not know Dr. Hyde; he might have been there and I not know it. Outside of the doctors, there was a considerable at tendance at the barn ; this Mr. Freeman, that.I have seen here on the stand, was there ; Col. Jones I think was there; I think Mr. Daniel Richards was there—he is a lawyer at Binghamton ; there were several others there, that I can’t call to mind ; I think Daniel Magone was there, and Mr. Beach a stenographer of my city ; outside of those there was quite an attendance there; forty or fifty persons were there ; there was no exclusion of persons com- ing there. At the time I replaced the body in the casket after the first dissection I placed a couple of newspapers across the front of the body ; upon the second dissection, those were removed with diffi- culty ; I found them there upon taking him up, and found him just as I had buried him in that regard. When the body was exposed at the time it was taken up, five months after burial it was covered with mold from one end to the other ; that mold covered the neck and the creases in the neck the same as elsewhere ; there was no difference in the discoloration around the creases from that else- where on the body. Q. Did you then notice the creases to which at- tention was called at that time ? A. I saw Dr. Swinburne point to the creases. Cross-examination by Mr. Russell: I am not one of the persons named in the will of Mr. Dwight, and have not been at any time, since the death of Mr. Dwight, in the employ of the executors of his estate ; in my undertaking capacity 1 was sent for under the direction of Mrs. Dwight I suppose. Q. And your subsequent services at the post- 1213 1214 1215 406 mortem examination on Monday, the 18th of Nov- ember, and at the coroner’s inquest in April, 1879, by whom were you employed i A. The services at the first autopsy came under my first employment ; those connected with the second came under the direction of the coroner; in the latter case I made out my bill to the coroner, or to the county ; I think it was a county charge. From the night of the death of Mr. Dwight, until his first burial was completed I was acting for the es- tate. At the time I went to the Spaulding cottage on the night of the 15th of November, there was no fact then existing of which I had knowledge, which led me to make a more careful examination of the body of Walton Dwight than I would have made otherwise ; at that time I had a pretty fair range of business in undertaking; it was a matter of every day occurrence. Q. And you had no occasion or reason for treat- ing the body of one dead person in any different or other manner from that of another ? A. Some required a little different character of attention from others, that is all. I had no special fact or circumstance that led me to examine the body of Mr. Dwight that night, which would not have led me to examine the body of any other person, and I paid no more special or particular attention to the examination of the neck than I did to any other part of the body. 1 had nothing in my mind that attracted my attention to the neck that night, and I noticed nothing that night which caused me to look at the neck particularly. In making the preparations I made that night, in the middle of the night, I was about an hour; might have been a little more, and it might have been a little less ; that is not a sufficient time to make a thorough and complete preparation of that body for interment—the body was not complete for interment. Q. But all of the preliminary preparations wer 1216 1217 1218 407 made, weren’t they? A. All that was necessary that night; and that was my only object in making such examination of the body as I did. Mr. Dwight wore a full beard ; I don’t think he wore a beard that covered his face more fully and closely than the one which I myself wear, but it was what I would call full, and, for the length of it, a heavy beard. At the time I made the post- mortem preparations his beard had been trimmed. It was shorter than mine, might have been an inch and a half long. The beard was not of particularly coarse fibre. N o portion of his face or neck had been shaved that I know of. I didn’t notice whether there had been any hair shaved on the back part of his neck, or of his beard, on the neck or throat. I have the “ chin-rest ” I referred to here (pro- ducing same); this is the identical article that I put on. The chin-rest referred to was introduced in -evidence, and marked Exhibit No. 99. The tension of this i : ] < <: < up and down, vertically. The top part is put on the crown of the head and the bottom part down under the chin. You couldn’t make it stay on the head putting it up and down. That was placed upon the head of Mr. Dwight after I got him on the board, perhaps an hour afterwards. Mr. Charles Hull assisted me in my work. George Edwards assisted me in putting him into the cooler next morning. Charles Hull assisted me that night, and George Edwards assist- ed me next morning. At that time I don’t know what George Edwards was employed in ; he had been a former clerk in the Dwight House. Thh crease that I say I saw in the neck of Mr. Dwight I noticed first after I had taken him out of the -cooler, and they drew my attention to it. Q. Then you didn’t observe it the next morning— 1219 1220 1221 408 that is, the morning of Saturday, November 16th % A. No. Q. Did you observe whether the crease or the furrow was on both sides of the neck ? A. I did not. Q. Then you can’t say, can you? A. No. Q. Was it at that time a heavy indentation ? A. No, it was not. Q. Did you ever notice it when it was, to your remembrance, a heavy indentation ? A. No. Q. Did you make any physical examination of that indentation or furrow yourself, with finger? A. Yes, I did, on the morning of the first autopsy, not before the doctors got there, but after my attention was called to the furrow. I put my finger in the furrow ; I felt of it with this linger (indicating index finger of right hand); I put it in the furrow on the left side ; I did not try the right side; I didn’t go on the right side to see. I did not, at any time on any occasion, pay any atten- tion or give any notice to the furrow that was on the right side of the neck. The pint of chemical stuff which 1 poured down the throat after the body was dissected the first time was a solution of arsenic, carbolic acid, corros- ive sublimate and camphor. Q. What steps were taken by you to allow this pint of chemical fluid to go into the cavity of the chest for preservation of the organs ? A. I poured it down ; I succeeded in getting it into the other portions than the stomach, because the inwards were all taken out, from one end to the other. The gullet or oesophagus had been cut across, and there was nothing then to hinder the chemical fluid from going into the organs of the chest so the heart and other tissues could be preserved. I think Dr. Bassett was at this Coroner’s inquest; I didn’t mention him in mentioning the names, for I didn’t think of his name. I am not related to. Dr. Ayers that I know of. 1222 1223 1224 409 I swear that this chin-rest is the precise instru- ment that I put under Dwight’s head, except that there has been new rubber put upon it; the elastics upon it are new ; the two pieces top and bottom are the same ; with that exception that is the same instrument produced at the coroner’s examination ; the old elastics that were on at the time this was put on Mr. Dwight were of the same kind as these; they were not of the same color as these elastics ; I could not tell how soon after the death of Dwight I changed them ; I cannot tell within a year or two of it ; I could not tell how old the elastics were that 1 had in the frame at the death of Dwight; I had changed them two or three times before; I can’t tell how old they were. Re-direct-examination by Mr. Newton: Q. How were those creases such as you saw in the neck of Mr. Dwight formed? Objected to on the ground that the witness is not shown to have sufficient skill to determine; nor has he stated any special examination which led to his opinion. The Court.—He may state what caused this par- ticular crease. To this ruling the counsel for the de- fendants duly excepted. Q. Can you tell what caused this crease in his neck ? Same objection, ruling, and exception. A. Yes ; by elevating the head. Re-cross-examination by Mr. Russell: I elevated the head forward ; elevating the head 1225 1226 1227 410 forward would cause a crease on the upper part of the neck. Q. Didn’t I understand you to say on your cross- examination that you did not examine the crease on the right side of the neck ? A. I did. Q. Then how do you tell what formed that crease on the right side? A. I can tell. Q. Can you tell by your own personal observa- tion of this neck ? A. Yes. Q. How can you tell when you didn’t see the crease on the right side of the neck by your own personal knowledge as to what caused it ? A. If it was not perpendicular and straight, one crease would be higher than the other. Q. Is that all the means of knowledge you have upon that subject? A. Yes, sir. Q. And that is all the knowledge of which you testify of the cause of the crease which you your- self did not see ? A. Yes, sir. Q. When you put the head upon two pillows and a book did you put it straight or turn it? A. I don’t know ; I meant to have it straight ; some- times we do not get it so. Q. Your recollection don’t extend to that? A. No. 1228 1220 John Swinburne, re-called on behalf of the plaintiffs, further testified as follows : 'v. • * t • Examined by Mr. Newton : Q. At the first examination, before the dissection commenced, did you before Mr. Ayers and the Drs. Burr and various other doctors, and Mr. McDonald and Mr. Downs and the persons around that body, hear Dr. Ayers say or suggest that the creases in this neck were probably made by bending the neck backward and forwards, or words, to that effect ? \ ‘ Objected to as incompetent and calling 1230 411 for hearsay evidence, and also as asking for a conclusion of the witness as to what was said. The Court overruled the ob- jection, to which ruling the counsel for the defendants duly excepted. A. No, sir. Q. Did you before the dissection was commenced, and while the body was being out wardly examined, say in the presence of these gentlemen that the creases in the neck were probably made by bending the head and neck backward \ A. No, nor any- thing to that effect. 1231 Elias Ayres, re-called on behalf of the plain- tiffs, further testified : Examined by Mr. Newton ; I know Dr. Swinburne. Q. Did you hear him say, upon attention being- called to the creases in the neck, that they were probably made by bending the head and neck backward ? Objected to on the ground that it is not identical with the question pro- pounded to Dr. Swinburne, and as calling for hearsay evidence. The Court overruled the objection, to which ruling the counsel for the defend- ants duly excepted. A. I did. Cross-examination by Mr. Russell : Q. Was this what Dr. Swinburne said: “ Dr. Swinburne notes a heavy indentation extending upward and backward from the os hyoides to the right, around back of neck and on the left side 1232 1233 412 below the thyroid cartilage running upward and backward to an angle of about 45 degrees,” was that what Dr. Swinburne said ? A. No. Q. Did you hear that remark made by him at all—on your oath, now? A. I heard him say it might be so. Q. Did you hear him say that ? A. I couldn’t swear it was that same language. Q. The substance of that language ? A. The substance of that language it was. Q. You heard him say that in substance ? A. Yes. Q. That he noted a heavy indentation on the neck ? A. I do not recollect a “ heavy.” Q. You don’t recollect the word “heavy.” Do you say that he didn’t use the words “ heavy indentation”? A. Yes. Q. Do you swear he didn’t, and you are positive of it? A. Tam. lie-direct-examination by Mr. Newton : Q. When this question of these creases in the neck was called up, were you called from outside to come forward ? A. Yes, and they might have said that before. Q. And while it was under discussion you came to the body ? A. Yes, sir. Q. You came in while it was under discussion ? A. Yes, sir. Re-cross-examination by Mr. Russell: Q. What you mean to say is, you came in in time to hear the latter part of one sentence and not the forepart of it ? A. Yes, sir. Q. Then why did j7ou say you heard him say anything about the indentation? A. Because he asked me when I came in and I told him. Q. Wasn’t that the only time he spoke of 1234 1235 1236 413 indentation 1 A. The time I came in was the only time. Q. Wras he talking to the doctors when you came in \ A. They were talking together among them. Q. Was he speaking to you ' A. Yes. Q. What were the first words you heard him say about that ? A. He called my attention to it. Q. What were the first words you heard him say ? A. He asked me what made that indentation or crease. Q. That was a remark addressed to you and not the other doctors ? A. Yes. Q. Do you say he used the word crease ? A. 1 don’t know as he did. Q. Didn’t he use the word indentation? A. I couldn’t say. 1237 1238 Charles A. Hull, called as a witness on behalf of the plaintiffs in rebuttal, and sworn, testified as follows : Examined by Mr. Newton: I am 33 years of age and reside in Binghamton. I knew Walton Dwight. I knew him along about 1871 or 1872, that was the first I knew of him. And from that time until the time of his death that ac- quaintance continued during those years I lived in Binghamton. I went there to stay permanently about the 1st of January, 1872. I have remained a resident of that place from that time until this, with the exception of one year or a year and a half. I was present at the time of the death of Walton Dwight. That night I went to the house where he was about 9 o’clock. Prior to that I had been a partner with Mr. McDonald, practicing law. I had 1239 414 practiced law then about three years. I had then been in partnership with Gilbert C. Walker—No one else in Binghamton. Q. In going to Mr. Dwight’s that night who did you find in his room ? A. 1 found Mrs. Dwight and Mrs. Owen there. They retired about 10 o’clock. Q. During the time you were there and before they retired was any one present in the room, if so, who else ? A. Dr. Daniel S. Burr was in there, in the room with Dwight at one time in the evening. When Dr. Burr was there I was present in the bed-room. I am not entirely clear whether Dwight was sitting up or in bed when I went there. My recollection is he was not up when I got there that night, and wasn’t up again. I reached there about 9 o’clock. A short time after Dr. Daniel S. Burr came in, and while there inserted a hypodermic injection of morphine. After he had gone Mrs. Dwight and Mrs. Owen were there in the sitting room, and Mrs. Dwight, T think, went into the bed-room to bid him good night, and she told me where I would find them in case they were needed, and to rap on the door on the opposite side of the hall, and retired. That was shortly after 10 o’clock as I remember it. I stationed myself in a chair near the door leading into his bed-room and this door was partially open, and I sat there. During the time that I sat there at the Colonel called me and said his head was feverish and wished me to saturate a cloth in bay rum and put it on his head and I did so. And at another time he called for some water and I gave him a swallow of water. After that he seemed to sleep, and before at different times, I thought he was sleeping, but of course it was uncertain and I did not disturb him. Along about between li o’clock and half-past 11, I heard him gasp for breath as it sounded to me and he said Charley, and called to me and I went in to his side as quick 1240 1241 1242 415 as I could and put ray hand under his head and raised his head up and gave him some brandy, and then I ran across the hall as rapidly as I could to Mrs. Dwight’s door and rapped on it very loud and went back to the bedside again and I think I ad- ministered brandy a second time, then I felt of his pulse and in a short time Mrs. Dwight came out only partially dressed, and 1 asked her to touch the bell for Mr. Spaulding and she did so. In a very short time Mr. Spaulding came up there and was followed by Mrs. Owen, Mrs. Spaulding’s brother and his family, consisting of his wife and daughter. Q. During the night prior to the death did he eat anything, and if so, what? A. He ate a cracker. At one time he said he had a new method of trying to keep food down and he reached over to the stand that was sitting near his bed and took a cracker and bit it, I don’t know whether he swallowed it or not, but I think he did ; I think that was about 15 minutes before I observed his gasping and calling “ Charlie”—that is my recollection now. I gave him some water and I can’t tell whether I gave him the water or he took the cracker the last thing I heard from him, it was one or the other. While I was there he did not take any other food than this cracker; it was a common oyster cracker; they were on a dish on his stand next to his bed; he helped himself. I ap- proached him when he called. I did not disturb him; I looked in on him occasionally, but I didn’t speak unless I was spoken to. The chair I occu- pied was very near the door within two or three feet any way of the door leading into his bed room. From the position I occupied my eyesight covered his bed; I was about eight feet from him. Since this matter arose I have measured that distance with Mr. Chapman; I can speak exactly from that measurement, but I did not exactly, in my state- 1243 1244 1245 416 ment, eight feet and seven inches was the exact measurement, I think. Q. From the time Mrs. Dwight left him until he died, or until you went and called her, was he at any time out of the line of your sight? A. He was not—I would not say at any time ; I might have stirred in the room, but I think I sat in that chair all, or nearly all, of the time. Q. And your face in what direction? A. I was facing in the direction of the bed. I did not sleep any. Q. State whether it was possible for any person to have entered that room that night without your knowledge ? A. It was certainly not possible. Q. Did he during that night take anything from outside of that bed himself excepting the cracker, from the time you went there until he died ? Objected to. The Court overruled the objection, to which ruling counsel for the defendants duly excepted. A. He did not. Q. You mentioned, Mr. Hull, that he gasped, or that you heard a gasp; state whether he continued to gasp? A. He did, until after I had given him the brandy, and he gasped until I left the room to call Mrs. Dwight. Q. Can you state whether he did after you re- turned ? A. I don’t think he did. He swallowed the brandy. After Spaulding came there and Mrs. Dwight, Mr. Spaulding gave him some ammonia— I can’t say whether he gave him brandy or not. Q. Can you state whether the ammonia was swal- lowed? A. It went down. Mr. Spaulding pinched his tongue several times. Q. In wdiat position was he when that was done, lifted up or lying as he was then ? A. He was lying in the same position. Q. And what was the position that Walton 1246 1247 1248 417 Dwight occupied in the bed that night when you got there? A. He was lying propped up on some pillows—I cannot state how many, delinitely. Q. Was the position altered at all that night? A. It was not. Q. And state whether that condition of the pil- lows remained until he died ? A. It did. Q. Was there any rope in that room that night that you saw anywhere? A. I didn’t see any. Q. Was there any cord ? A. I didn’t see any. Q. Was there any about his neck at the time you went and gave him the brandy? A. No, sir; there was not. Q. Could you hear him breathe; state whether you could or not, during the night while you were there? A. I could. Q. While you were in the chair? A. Yes. Cross-examination by Mr. Russell: Q. In giving your testimony is there any cause for hesitation ? A. Why no, no more than to— Q. I insist upon a direct answer whether there is any ? A. 1 think there is. That cause is not connected with the death of Walton Dwight nor with the events of that evening. I am manufac- turing cigars at present. The first occupation I began with when I commenced business for myself was publishing a newspaper ; the next was practic- ing law ; the next manufacturing cigars, and all within the space of eleven or twelve years. I was publishing a newspaper about a year in Bingham- ton ; the paper was the “Democratic Leader”; I did not publish it alone, but in connection with other persons ; I had studied some law before and studied some afterwards ; I practiced law for six or seven years ; I tried cases in the Courts other than Justices’ Courts ; I left the practice of the law the 1st of January, 1882 ; during the practice of the law I was not attorney for Walton Dwight; I was not 1249 1250 1251 418 connected with him in a business way at all ; I was one of his assignees in bankruptcy. Q. Then why do you say you were not con- nected with him in business in any way ? A. I do not consider that connection in business ; I did not personally have business transactions with him as assignee ; I personally had nothing to do with him although I was his assignee in bankrupt- cy ; 1 did not have anything whatever to do with the management of the estate. Q. Then your position as assignee was merely an idle one? A. Yes, I think so ; I think Mr. Pine was the attorney who conducted the trial or pro- ceedings in bankruptcy of Walton Dwight; I can’t say who, aside from the attorney, conducted it ; I don’t know anything about it; I left the practice of law in January, 1882, and since then I have been manufacturing and selling cigars, and that is my present occupation ; I reside at Binghamton ; I think I have a belief in the existence of a Deity, Q. Don’t you know ? A. I do believe in a Deity. Q. Do you believe in a future state ? A. Yes. Q. Why do you hesitate in answering me ? A. I am considering the question. Q. Do you believe in any other than a temporary punishment for anything like false testimony ? A. Yes; I believe in more punishment; I don’t know as I understand the question as to what you mean by temporal punishment. Q. Punishment in this life? A. Well, I am not certain whether I do or not. Q. Don’t you know wdietlier you believe in such a thing as punishment besides being punished in State’s Prison? A. Yres, I believe in more punish- ment than that. Q. Do you believe in any punishment that ex- tends beyond this life ? A. Well, I am not certain as to that. Q. Then, so far as your present condition is con- \ ■ ( : > • ‘ - ■ ■ ; 1252 1253 1254 419 cerned, there is no punishment whatever that you know of—that you feel certain of—for anything like false testimony, excepting as it is confined to this world \ A. I am not certain of it; no, sir. Q. Do you recognize the binding obligation of an oath \ A. I do. Q. Anything beyond the same obligation that would attach if you were not sworn? A. Yes, sir; there is a sacredness about an oath that has its effect on me. Q. When you took your oath in Court here, did you take it on the Scriptures % A. I have read the Scriptures some. Q. Did you take your oath to-day upon the Scriptures % A. I did. Q. Did that add any additional sanctity—the book you took your oath on ? A. I think I would tell the truth whether I took it on that or not. Q. Did it add any additional sanctity the fact that you took it on the Holy Scriptures ? A. Yes, I think it did. Q. Do you recognize those Scriptures as holy ? A. I don’t know what you mean by holy. Q. Don’t you know what the term “ holy” means ? A. Yes, I know in what sense it is used. Q. In the sense it is used according to what you know, do you believe in the holiness of the Scrip- tures ? A. I think I do. Q. Don’t you know whether you do or not? A. As I told you, I am a little uncertain. Q. You are a little uncertain about it ? A. Yes, sir. Q. You are uncertain whether you have any be- lief as to the sacredness of that book, is that what you mean ? A. Oh, I have a belief—a certain belief. Q. I am not asking whether you have a cer- tain belief or not, but I am asking whether you have any belief of the holiness of the Scriptures—of that book called the Holy Scriptures ? A. I have. Q. You think you have ? A- Yes, I think I have. 1255 1255 1257 420 Q. You believe, then, that the book is something more than the work of a mere man? A. I can’t say that I do. Q. Then why do you believe there is any holiness- or inspiration about the book, if it is nothing mom than the work of a mere man ? A. I don’t know that it assumes to be anything more; I think it was conceded to be so written. Q. You say under oath that you don’t know that the book assumes to be more than the mere work of man; did you mean to be understood as saying that? A. I consider it was written by man and so conceded. Q. Don’t you know that the question is whether it is the mere work of man, like any other book, or something higher and beyond the work of man ? A. I don’t know whether it is or not. Q. Don’t you know that the distinction between the two things that I suggest to you is, whether that book is beyond man, and i3 written by a higher power, or dictated or inspired ; do you believe in the book in that sense? A. I doubt very much whether it was inspired. Q. Then, recognizing it as a mere work of man, does the fact that took an oath on the Bible give any additional sacredness to your oath ? A. Well, my doubts in relation to the matter Q. Answer the question ? A. 1 cannot answer that. Q. Do you regard it as a mere form, the taking the oath on the Bible? A. Not wholly so ; I think there is enough of doubt about the book, sol think it has more or less effect on me. Q. Then the doubt which exists about the authenticity of the Bible imparts an additional sacredness in your estimation ? A. I think so ; if I was certain it was not inspired I would have less a\ve of it, I will say that. Q. Do you believe in the existence of a personal GfodT A. I Cannot say that I do: ' 1258 1259 1260 421 Q. Then do you believe in any overruling power that rewards and punishes aside from those pun- ishments inflicted in this world? A. I am not entirely clear upon that; I have no fixed belief on it. Q. Do you believe it or not ? A. I have an- swered the question once ; I say my belief is not fixed. Q. Do you believe in an overruling power that rewards and punishes, aside from the punishment that is inflicted in this world ? A. I can only say that I am not decided on that question. Q. Then you don’t know ? A. Not for cer- tain. Q. Don’t you know what you believe? A. I think so. Q. Then I am asking simply whether you know there is an overruling power, or whether you be- lieve there is such a power ? A. I am not entirely clear whether I believe that or not ? Q. Have you any belief on the subject ? A. Not well defined. Q. Have you any ? A. Some, sir. Q. You believe it some? A. I didn’t say that. Q. You have some belief, and is that “some belief” you speak of—is it that there is such a power, or that there is not? A. I believe there is something that rules the world ; of course whether it is a personal God or not 1 am not prepared to speak. Q. Do you believe in a moral punishment other than a physical punishment from the law ? A. I do, most certainly. Q. Do you believe that moral punishment conies from a personal higher power ? A. I am not cer- tain as to that. Q. I am asking whether you believe it or not ? A. I am in doubt on the question. Q. You are in doubt whether you believe it or not ? A. Yes, sir; I am in doubt whether I believe it or not. 1261 1262 1263 422 Q. When was the last time you saw Walton Dwight in his lifetime before the evening of Novem- ber 15, 1878 ? A. I was there Wednesday night before; that would be two days before, either two or three days before. Q. At whose invitation did you go there on Wednesday night ? A. I don’t think I was invited there Wednesday night. Q. Did you go there of your own free will ? A. I did. Q. Did you have a conversation with Walton Dwight that night? A. I think I did. Q. Did he give you any special reason why he wanted you to sit up with him ? A. He did. Q. What was .it? A. He thought I would be cool in case he was— Q. In case anything should happen ? A. I don’t know that he said that—in the case he was sick and in the emergency he thought I was cool and would not get excited. Q. Didn’t he say he wanted you because he thought you would not get excited in case anything should happen? A. I can’t say the language was that. Q. Can you say that was not the language ? A. I don’t think it was. (qj. Wasn’t that your testimony before the coro- ner’s jury? A. I didn’t assume then to give his exact language. Q.' And didn’t you state in substance before the coroner’s jury that he said to you that he wanted you because you would be cool in case anything should happen ? A. I think I stated something like that. Q. How long did you sit up with him on Wed- nesday night before he died ? A. I didn’t sit up with him at all on Wednesday night before he died. Q. How long did you stay with him that evening?:' A. A very short time as I recollect it. 1264 1265 1266 423 Q. What do you mean by a short time? A. A half an hour or such a matter. Q. Were you alone with him ? A. No, sir. Q. Any of the time? A. I don’t think I was that night. Q. At what time did you go there ? A. I think I went up after supper to see if he wanted me to stay ? Q. Did he say he didn’t want you to stay that night ? A. He did. Q. Did he then tell you what night he did want you to stay? A. I think he did, yes. Q. What night did he say to you he did want you to stay with him ? A. I think he said Friday night the 15tli. Q. Friday night the 15th of November? A. Yes. • Q. And did he designate to you the hour he would like to have you come? A. No, sir; he did not. Q. Did he say he expected anything would hap- pen to him that Friday night? A. He did not. Q. Did he give you any reason for asking you to come Friday night? A. That’s the time when his chills, as he termed it, would return in case it came at all. Q. He said at that time that that was the night his chill was going to recur? A. If it came he didn’t say it would. Q. Friday night was the night on which his chill was going to recur again—you are sure of that ? A. Yes. Q. Between Wednesday night and Friday night did you see Walton Dwight ? A. I did not. Q. What were you doing in the meantime ? A. Attending to my business. Q. What was that business ? A. Practicing law, I was practicing law during those two days ; I was in my office. Q. What hour of the day or evening was it on 1267 1268 1269 424 Friday night you came to him? A. About 9 o’clock. Q. Was that the hour lie designated ? A. He didn’t designate any hour. Q. Was that hour selected by you? A. I don’t know as it was selected; I went up in the evening. Q. Then there was no especial time you intended to go ? A. I intended to go up there that evening; I didn’t set any time. Q. Was there any especial hour fixed in any way that you were to go ? A. No, not that I recollect of. I went there between eight and nine; it was nearer nine than eight is my recollection—about nine o'clock as near as I can remember, now. Q. Can’t you tell within half an hour when you arrived there that evening ? A. Yes, it was within half an hour of nine o’clock. Q. And according to your best recollection was it before nine ? A. I think perhaps beginning a few minutes before nine o’clock ; it was about nine o’clock. Q. When you went into the room who was pres- ent ? A. Mrs. Dwight and Mrs. Owen. Q. Did you go in to see Dwight while they were there in the room ? A. I can’t say whether I did or not. I think so. Q. Was Mr. Dwight in the sitting room at all that evening? A. That I can’t say ; I am in doubt whether he was sitting up when I went there or not. I had it in my mind that he was, but I am not certain whether it was that night or some other night. Q. Is your recollection of the events of that even- ing clear? A. Well, fairly so. Q. Then don’t you recollect as to whether the patient or sick man that you came to sit up with, you found out in the sitting room sitting up when you came there or not ? A. I am quite positive he was in his bed, but I am not entirely certain. Q, Why are you in doubt about it ? A. Because I 1270 1271 1272 425 had been there that was the third time, at least one of the other times he was sitting up. Q. And this may have been the time he was sit- ting up ? A. I can’t say whether I saw him sitting up once or twice. Q. Then if I understand you right you are in doubt still (in some doubt) as to whether he was sitting up when you came in ? A. A little in doubt, but I am pretty sure he was in bed. Q. Are you in doubt as to whether you went into the bedroom while Mrs. Dwight and Mrs. Owen were there ? A. I went into the bedroom while they were there I know ; 1 am not in doubt about that; I remember it. Q. At what hour do you say Mrs. Dwight and Mrs. Owen left the room? A. About 10 o’clock. Q. At that time had anything occurred in refer- ence to Mr. Dwighc to indicate that that expected Friday night chill was going to come ? A. No, there was nothing to indicate it. Q. Did you have with you any preparation for the purpose of aiding or relieving the sick man, in case the chill came ? A. Do you mean with me ? Q. Yes, there in the room ?- A. There was some brandy there, some one called my attention to, I think Dr. Burr. Q. Anything else? A. That’s all, bay rum in the sitting room. Q. Brandy and bay rum, so far as you know, were all the medicines that were there for the pur- pose of relieving the sick man in case the expected chill came ? A. That is all 1 remember of, except I saw ammonia after he was taken. Q. No medicine of any kind left with you to ad- minister to him, or any directions left with you as to how to administer medicines in case this expect- ed chill should arrive ? A. No, no further than I was directed to give him brandy in case he became chilly. 1273 1274 1275 426 Q. You say the doctor was there? A. Dr. Burr was there. Q. He left no medicine whatever with you to avoid the effect of the anticipated chill? A. No, no further than I have stated. Q. You alone were left with him during that night in which this expected chill was to come ? A. Yes ; I was left alone with him after eleven o’clock. Q. Had you any skill of any kind, nature or description, for attending to or relieving a man who was supposed to have a congestive chill that very night ? ■ A. No more than any person would have. Q. Had you any skill? A. No, sir; I had not. i Q. Were there any arrangements of any kind or description made that anybody should assist you in that room that night, that you know of ? A. Not that I know of. Q. Was there any indication or intimation that any physician would come that night ? A. I can’t say ; I don’t reinember. Q. Then if I understand you, there was no skilled or trained nurse wha:ever in attendance upon him that night ?, A. No. Q. As you were there on Friday evening, did you expect or anticipate that any chill was coming to that patient? A. I didn’t expect any chill. Q. Did you expect one was coming ? A. No, sir; I didn’t expect it. Q. Then, did you believe Col. Dwight when he said to you lie expected a chill would recur that night ? A. He didn’t tell me lie thought the chill would recur that night. i Q. Did you believe his fears were exaggerated when he mentioned the possibility of a chill com- ing ? A. That was my idea of his case. Q. Had you, on this Wednesday evening, when on were there, or on Friday evening prior to the 1276 1277 1278 427 time when you heard the gasping, heard or known, from your own knowledge, of a single physical in- dication of Walton Dwight that foretold that, a chill was coming ? A. I am not competent to say what would foretell such an event. Q. To your mind ? A. I can’t say. Q. Was the door leading from the sitting room, where you were that night, into the hall, locked? A. No, sir ; it was not. Q. You are positive of that? A. No, sir ; it was not locked. , Q. You are positive of that ? A. Yes ; I am. Q. After Mrs. Dwight and Mrs. Owen had left you that night, about ten o’clock, as you say, where did you station yourself ? A. Took a seat near the door leading into the Colonel’s bed- room. , Q. Which side of the door ? A. I sat near the northern, payt of the room. Q. Near the hall ? A. No ; in the other direction from the hall. ' Q. In what direction was your face turned ? A. Towards the bed. .. ' Q. Was there a light in the sitting room ? A. Yes ; a gas chandelier. Q. One or more burners burning? A. I can’t say,; I think more than one—certainly one. Q. Burning high or low? A. Well, high; the light was good in there. Q. Was theiy any light in the bedroom? A. Yes; gas(light—that was low. Q. Did it remaip so all the evening ? A. I can’t say whether I turned it up at any time when I went jn or not. Q. Have you any recollection as to its being burned up that night ? A. Turned up certainly when he was taken ; I think I did once before, but lam not certain. Q. If you turned it up when he was taken, it was 1279 1280 1281 428 low when lie was taken? A. Yes, sir; rather low. Q. What occupied your attention while sitting there in the sitting room ? A. What did I do? Q. Yes, sir. A. 1 read a little, I think. Q. Reading a book, were you—-what kind of a book? A. I didn’t say I was reading a book, I think I read something—a newspaper or some- thing ; I can’t say whether I did or not; I sat in the chair all the evening, any way. Q. And how long a time elapsed before you heard anything ? A. From when ? Q. From the time you sat down in the chair and before juju heard anything ? A. I was in the bed- room twice before ; twice before I heard the gasp- ing. Q. The first time you went in was about how long after you sat down in the chair? A. Can’t say. Q. Get within some minutes of it? A. Probably half an hour or such a matter. Q. Did you go in then because you were wanted, or of your own will? A. I was called by Mr. Dwight ; he said his head was feverish. Q. Did you put your hand upon his head ? A. I am not sure whether I did or not. Q. You have no personal knowledge, except from what he said that his head was feverish ? A. I don’t know whether I have or not; I don’t recollect about that. Q. Did he say anything else ? A. Yes, sir ; he wished me to put a bandage upon his head, saturate a towel with bay rum, and 1 did so—the bandage consisting of a towel wet with bay rum. Q. Did you notice his breathing then ? A. I did not. Q. Then there was nothing in his breathing at all to attract your attention? A. No, not that I re- member now. 1282 1283 1284 429 Q. You were occupied in that business possibly a minute? A. I presume so. Q. Then you went out and sat down again ? A. Yes. Q. How long did you remain before you heard or did something more. A. I gave him some water after that; I think it was after that at least. Q. How long after ? A. I am not certain which I did first. Q. How far apart were they ? A. In the neigh- borhood of half an hour or more. Q. Glass of ice water? A. No ; 1 don’t think it was ice water ; he only took a swallow of water. Q. He drank that, did he ? A. Yes. Q. These two times you were in, were his eyes open or closed ? A. Open. Q. Did you notice anything about his eyes ? A. I didn’t notice anything peculiar. Q. Did you turn up the gas as you went in there? A. I am not certain about that. Q. Did you notice anything peculiar or especial about him at either of those times when you went in? A. No. Q. Notice anything about his voice? A. Not that 1 recollect of now. Q. Was his voice at that time anything different' from what it had always been, according to your recollection ? A. It was not so strong and loud as usual. Q. Of course it would not be so loud in a sick room, but with the exception of its not being loud, was there anything else you noticed ? A. I don’t think it was so strong as common. Q. After you gave him the water, or if that was before you gave him the towel bandage, how long elapsed before you saw or did something more ? A. He spoke about his new way of keeping down food; I went to the door at that time. Q. Did 'Volt go in ? A. I don’t think I went further than the door ; I weut inside the door. 1285 1286 1287 430 Q. Please give the whole expression he used ? A. He said lie had a new way of trying to keep his food down, and he reached over on the desk or stand and took a cracker and put it in liis mouth; I heard him bite it. Q. Hid you see him swallow it ? A. I don’t know ; I don’t remember whether he did or not. Q. Hid you notice anything especial at that time? A. No, sir ; the room was darkened, that is, it was not a bright light in there. Q. Was it light enough so you could see him ? A. Yes, I could see him. Q. And see what he did ? A. Yes. Q. How long a time, according to your best judgment, elapsed between his taking the cracker in his mouth and your hearing the gasping mouth? A. I don’t pretend to say that his taking the cracker was the last thing he did and the last time I went in there ; 1 can’t give the order of my go- ing in there. Q. Can you remember the order in which any of these events occurred—the towel and the swallow of water and the taking of a cracker? A. I think I have given them in order. Q. Assuming the cracker was the last, how long a time elapsed before you heard the gasping? A. Not to exceed fifteen minutes. Q. Had there been anything heard by you from the room between those two events? A. No, nothing whatever. Q. What were you doing during those 15 minutes ? A. I sat in a chair by the door. Q. Were you reading ? A. No, not as I recollect now ; I don’t think I was. Q. How long a time was that gasping according to your recollection ? A. Not a very long time ; it continued while— Q. Was it five or ten minutes ? A. No. Q. About how long \ A. A minute or two. 1288 1289 1290 431 Q. You should judge somewhere from 60 to 120 seconds? A. Short time. Q. Can’t you give it in time so we could tell something about it ? A. I could give what I did. Q. I ask you if you can give some idea about the time ? A. It lasted until I left the room. Q. How long was that ? A. About a minute or two. Q. How long after you commenced to hear the gasping before you moved ? A. I went as quick as I could to liis bedside. Q. Did he say anything to you ? A. He spoke my name. Q. Was that when you were in the sitting room or in the bedroom ? A. When I started out. Q. When you went in were his eyes open ? A. Yes. Q. Was he looking at you ? A. I don’t remem- ber. Q. Was the gas turned up ? A. I think I turned it up, immediately. Q. Did you notice anything peculiar about him then? A. I noticed he was sick. Q. What did you notice that was peculiar about him at that time that you can speak of ? A. Well, I noticed he was cold and pale—pale in his face. Q. Did you feel of him ? A. Yes. Q. Did you see his flesh was cold? A. Chilly. Q. I thought you said on your direct-examin- ation that his flesh was warm and soft? A. Well, he was chilly ; I could see he was in a sort of chill. Q. Did you say on your direct-examination, that his flesh was warm and soft? A. I don’t think I did. Q. Is it true, if yoil did say so ? A. No, his flesh was cool; he was chilly. 1291 1292 1293 432 Q. Did you not see anything else except that his face was pale and his flesh felt chilly. A. He was gasping. Q. With the exception of those three things, did you notice anything ? A. I noticed he was sinking away. Q. What expression or what physical mark was the evidence that produced upon you the impres- sion that he was sinking away? A. He became unconscious shortly after I went there. Q. That is what you mean by noticing that he was sinking away ? A. Yes. Q. Have you given me all of the physical indi- cations that you noticed to denote that he was m a very sick state ? A. 1 have stated what occurred there ; that is all I noticed, of course. Q. Have you given me, in answer to my ques- tion, all the physical indications that you noticed ? A. All that I remember now. Q. Did you administer to him any medicine of any kind ? A. Only as I have stated. Q. What was that ? A. I gave him some brandy. Q. Was there any hartshorn mingled with it £ A. No. Q. Was there any hartshorn in the room ? A. I saw it there after Mr. Spaulding came; 1'doiT t know whether it was in the room before or not. Q. Did the gasping continue until you started for Mrs. Dwight’s room ? A. Yes, it did ; it grew fainter. Q. Was the gasping what attracted your atten- tion before you started ? A. I heard a sort of gasp that started me first. Q. It was after that he spoke the word “ Charley ” ? A. Yes. Q. How could he gasp and speak at the same- time? A. I don’t pretend to say how he could have done it; he did it; that’s all I can say. 1294 1295 1296 433 Q. You went to Mrs. Dwight’s room and rapped? A. Yes. Q. Did you say anything to her ? A. No. Q. And went immediately back to Mr. Dwight? A. Yes. Q. When you got back were his eyes open ? A. I think they remained open all the time ; that’s Die way I recollect it now. Q Was there anything that he did at that time to •denote that he recognized you after you came back? A. No, I don’t recollect anything. Q. Was he breathing ? A. Yes. Q. Did you fell of his pulse that evening at all ? A. Yes, after I came back. I think I felt of his pulse before I went. Q. When you came back and felt of his pulse •could you feel it? A. Yes. Q. Have you sufficient skill to tell how a pulse is beating, whether it is rapid or not ? A. I can judge somewhat of that; I have had some experience. Q. Of which arm did you feel it ? A. I think the one nearest to me—the right one. Q. You don’t remember which it was? I think it was the right arm. Q. Which side of the arm ? A. Just back of the thumb on the wrist. Q. Who was the first person who came into the room? A. Mrs. Dwight. Q. Is that the bulk of the traveling you have 1303 1304 1305 436 had ? A. I traveled some before I was in this busi- ness. Q. Since you have been in this business, you have traveled some in connection with your firm ? A. Yes. Q. Who is your partner in your present busi- ness? A. My brother and Mr. Jackson are my partners in this business. Q. You have been doing what portion of the business ? A. Traveling a portion of the time, sell- ing our. product; that is the travel 1 speak of. Q. State what Mr. Dwight said to you at the conversation counsel referred to, about its being the night for his chill ? A. The Colonel said that he had had two chills before that; I think he said two; that they came at certain stated intervals of about a week between them, as 1 understood. That if he could bridge over this next chill, he was in a fair way to get well, that was his idea of it. That it was liable to occur, if it came at all, on that night. Q. Anything further that you think of in that regard? A. Not that I think of now. Q. Let me call your attention as to whether he said anything about which, if either, was the more severe ? A., The last one he had before that was his worst one, as I understand it ; I think lie told me so. Re-cross-examination by Mr. Russell: Q. Have you been in conference with any one as to what would be your testimony in this case? (No answer.) Q. Isn’t that a jilain question? A. I don't think it is..:, , . , .j Q. Do you know'what a “conference” means? A. Yes, sir. • Q. Have you had one with any one about what your testimony would be ? A. Yes, but not about what ni}' testimony would be. 1306 1307 1308 437 Q. More than one ? A. Yes. Q. How many; twenty or thirty ? A. No; twice, I think, I met Mr. Newton. Q. Not more than twice? A. I don't think it was more than twice. Q. Have you had many conferences with Mr. Chapman? A. I have never had any real confer- ences with him upon the subject. Q. Have you talked with him upon the subject of your testimony ? A. Very slight. Q. Have you talked with him at all ? A. Yes, a little. Q. How many times ? A. Two or three times. Q. Any more besides the counsel, Mr. Newton and Mr. Chapman ? A. No. Q. Have you had conferences with Warren Spaulding this very day ? A. Well, I have had no conferences with him about it on any day. Q. Haven’t you had consulations with him ? A. I have answered one or two or three or four ques- tions he has asked me. Q. Have you talked with him about it to-day ? A. No. Q. Have you talked with him upon the subject of your testimony ? A. He talked to me about his testimony. Q. Hid you compare views together ? A. He asked me certain questions ; I didn’t compare any views with him. Q. Hid you and he compare views together about your testimony ? A. He compared his testimony to mine; I didn’t compare anything. Q. And you didn’t compare your testimony with his ? A. No. Q. Were there any raps on the door that night that you did not answer? A. What door? Q. Hoor from the sitting room to the hall ? A. I think some one came there that night. Q. And rapped? A. That I can’t tell now; I know Mr. Sears came there; I heard so. 1309 1310 1311 438 Q. Didn’t you hear somebody rap ? A. I can’t tell whether I did or not. Q. Did you answer the rap? A. I can’t tell whether I did or not. Q. Did anybody ? A. Yes, sir, 1 understand so. Q. Did you see anybody answer it? A. No. Q. Then of your own knowledge you don’t know whether anybody answered the raps you heard, or not? A. I don’t know that anybody rapped, of my own knowledge. Q. I ask you if you recollect anybody rapping upon the door? A. 1 do not. Q. Did you hear anybody rap upon the door ? A. I don’t recollect that I did. Q. Did you hear any footsteps coming to the door? A. I don’t recollect that either. > Q. Have you any knowledge of anybody coming to the door ? A. No personal knowledge. Q. When you speak of thinking that some , one came to the door you don’t speak of your own knowledge? A. No, sir. Q. Where were you that you should not hear ? A. I was in the sitting room. Q. And yet you couldn’t hear? A. I didn’t say I couldn’t hear. Q. You didn’t hear? A. I don’t say I didn’t hear; I say I have no recollection. Q. You didn’t go to the door ? A. No, sir. By Mr. Newton : Q. And was that while Mrs. Dwight and Mrs. Owen were in the room ? A. A es, sir. 1312 1313 1314 439 Francis W. Downs, called as a witness on be- half of the plaintiffs and sworn, testified as follows: Examined by Mr. Newton: I reside at No. 1 Dwight block, in the city of Binghamton, New York; I have resided at Bing- hamton the last time about seven years; most of my life has been spent in and about Binghamton; I am an attorney; I am the Recorder of the city. Q. Were you acquainted with Walton Dwight? A. I cannot say exactly; I knew him for some years before his death; I knew him by sight from the time he came to Binghamton, but I don’t recol- lect when my acquaintance was first formed with him; my acquaintance with him during the last few years of his life was not very intimate; I saw him almost daily—sometimes half a dozen times in a day; I lived near his hotel; when it was building I lived on a farm. Q. During the time you have known him, have you ever known of his having a cough ? Objected to as incompetent and imma- terial; the Court overruled the objection, to which ruling the counsel for the de- fendants duly excepted. A. I did not; I saw him twice during his last sickness— tile first time on the 6th of November, 1878, and the next time the 8th of November, 1878; during his sickness I watched on the nights of the 6th and the 8th—two separate nights; on the night of the 6ch I reached his room between ten and half- past ten o’clock; Mrs. Dwight and Dr. Daniel S. Burr were there at the time—no one else ; I think the doctor went out soon after I came there—per- haps ten minutes; Mrs. Dwight left fifteen or twenty minutes after I arrived there, I think; I saw Mrs. Dwight on the following morning. 1315 1316 1317 440 Q. Upon her leaving, state whether any, and if so, what directions were given to you ? Objected to as incompetent, immaterial and irrelevant, and also as calling for hearsay evidence; the Court overruled the objection, saying: I will receive it upon the theory that it was an act in the presence of Mr. Dwight, and within the space of time during which it was alleged that the conspiracy was going on, and an act in connection with his illness; to which ruling the counsel for the defend- ants duly excepted. A. Mrs. Dwight, before leaving the room, said to- me that if in the night I should have occasion to call her, that I would find her in the room at the rear of the parlor just back of the room that the Colonel occupied; that the door was directly oppo- site the end of the hall; whether she gave me the number of the room I don’t remember; after she left there was no other person present during that night, and until her reappearing in the morning, except Mr. Dwight and myself; two or three times during the night he appeared to drop oflf into a lit- tle doze—1 don’t know that you would call it a sleep exactly; no sound sleep; that was all the rest he had; he had no food during that night; I think once or twice during that night he drank some water, but little; I think he took the medi- cine himself; I gave him none; the medicine was left upon the table; during the night he did not get up; when I went there he was in bed, and remained there through the night; I talked with him on the morning of the 7th of November in regard to the condition of his health ; that first night I think I had no occasion to put my hand on his person ; 1 was there another nighty the second night afterwards ; I reached the room 1818 1819 1820 441 between ten and half past ten at night I should say; when I reached the room on that occasion Mrs. Dwight was there ; Dr. Daniel S. Burr was there before Mrs. Dwight left the room ; I had been there before Dr. Burr came that evening, perhaps 15 or 20 minutes ; he stayed about 15 minutes ; I was not in the room while the doctor was there ; I sat in the sitting room ; Mrs. Dwight was in the bed room nearly if not all the time the doctor was there; I mean off from his room ; Mrs. Dwight left a few minutes after the doctor left. Q. State whether any direction was given to you that night as to where she would be found, and if so, what direction ? Mr. Russell.—To that we interpose the same ob- jection as we did to a similar question as to the night of the 6th. The Court.—The same ruling. The defendant excepted. A. She said she would be found in the same room as before, she stated that I should call her about 6 o’clock, and I rapped at her door about 6 o’clock; when I reached there that night Mr. Dwight was in bed ; he did not get up that night; I did not sleep any that night; the greater part of the night I spent bv the Colonel, and going to and from the stove in the parlor. Q. Will you describe to the jury his condition and what occurred that night fully as well as you can % A. Well, when I went into the room on the night of the 8th I saw no marked change from that of his condition when I left on Wednesday morn- ing—Thursday morning I should say ; about 12 o’clock or a quarter of 12, he seemed impatient and restless in the bed ; as I say, about 12 o’clock he began to grow restless and to move about in the bed, rub his head and forehead and moaned a lit- tle ; that continued for some time ; perhaps ten or fifteen minutes after 1 noticed that he began then 1321 1322 1323 442 to nib his head and forehead very rapidly with liis hand and said he had pains. The eonnsel for the defendants ob- jected to what lie said, as incompetent and as his own declarations in his own behalf. The Court overruled the objection and the defendant excepted. He said he had severe pain across the bowels, and rubbed his person ; “ across the bowels ” was the termed he used I think ; he rubbed his hands across his abdomen ; I asked him if there was any- thing I could do for him to relieve him ; he said I might warm some cloths that were left there and apply those, and I did so, tw7o woolen cloths that were left, I would warm one by the stove that was in the parlor or by the stove and bring it in, place it on his person, and take the other out and warm it and return it as soon as it was warm, and kept applying those for some time ; and in the meantime his countenance grew pale, and he began to sweat, and he grew chilly, and his forehead wjas all per- spiration, that is, I rubbed it off and it appeared like a cold sweat—and his forehead was cold, and I continued to apply the cloths until I think about ten minutes of tw7o, andlasked him if I shouldsend for the doctor, and I don’t remember his reply, but I did send for the doctor, and I think Doctor Daniel S. Burr came there about twenty minutes pasttw7o. At this time the same condition apparent- ly existed, and I continued up to that time to ap- ply the cloths, and when the doctor came I don’t know whether he gave any medicine or not, but he injected into his arm something I understood was morphine, in the right arm ; and the colonel asked him to inject some in his deg also, and see if it would give him relief and he did it, and Colonel Dwight said to the doctor that he had better squirt some in 1324 1325 1326 443 the other leg and see if he could get some relief. At that time he did, and I think by the time the third injection was administered into the flesh, he began to be easier and there was a change in the countenance. It for a time looked a little purple. And from that time he began to grow feverish, and that fever continued for some time. My impres- sion is it was about three o’clock when that fever wore off. At first when he was taken I put some additional covering upon him ; he was cold, and that I removed at that time. And soon after the doctor arrived I desisted from applying the warm cloths, and after three o’clock or about three o’clock he appeared easier, and I think it was about 4 o’clock that morning that the pains began to—he began to make demonstrations of pain, and I again sent for the doctor, and my recollection is that he again injected morphine, or what I sup- posed to be that, and that relieved him, and up to about 5 o'clock he continued somewhat restless, and from 5 to 6 he was very quiet, and at 6 o’clock I called Mrs. Dwight, and soon after she came in, and I think I left. The first morning I remained to breakfast with Mrs. Dwight, but I think that second morning I left pretty soon after Mrs.Dwight came into the room. That is about his appearance as I saw it that night. , Q. Can you describe any more fully, and if so, describe the actions of the man when he appeared to be under the influence of pain, as you suggest ? A. Well, I bolstered him up with pillows in the bed—that was in the evening, or about 12, and he kept a constant motion of rubbing his forehead and pressing it, and at times would strike it with his hand—strike the forehead with the open palm in this way indicating), what I considered a very severe blow, and would then continue to rub it, and from that he would remove his hand from the fore- head and would rub his body very rapidly in very ,rapid motions with both hands across the stomach. 1327 1328 1329 444 Q. Did he say anything more in connection with these pains that you remember, more than you have just stated ? A. Only as describing them to me. Afterwards he was relieved at 6 o’clock in the morning. Q. During the complaints and occurrences de- scribed, can you tell any other thing he said, in- dicating the extent or what there was of his pain ? A. No, I cannot. Q. Did you see him after leaving that morning before he died? A. No ; I did not until after his death. Cross-examination by Mr. Russell : I said my profession was that of a lawyer ; I was admitted September 5th, 1878; that has been my entire business since, excepting the time that is oc- cupied in an official capacity of an hour or two a day as Recorder; I am exercising professional du- ties also ; at this time when I acted as nurse I had been admitted to the bar; I was admitted the 5th of September preceding that. Mr. McDonald, my partner, asked me to go there the first night ; he was a brother-in-law of Mr. Dwight ; he married his sister ; his first name is Theodore F. McDonald. I am not one of the beneficiaries named in the will, that I am aware of. At that time 1 had had no other experience as a nurse or watcher; l went there simply in a friendly way. Q. Did 37ou on the first night see anything in Colonel Dwight which you can describe, aside from his talk, which indicated disease or pain ? A. Nothing that would indicate pain, but I saw a change in the man from what I had seen in him before. Q. Did you see anything you can describe that, indicated disease? A. I cannot, as I understand the word disease. The counsel for the defendants here moved the 1330 1331 1332 445 Court to strike out that portion of the conversa- tion testified to by the witness in which he says that Dwight spoke of and characterized his pain, as incompetent. The Court denied the motion, to which ruling the counsel for the defendants duly excepted. Q. Now, on the second night, did you see, apart from what Mr. Dwight himself said, and apart from his motions, that he acted in any way that in- dicated either pain or disease? A. Yes, I think that he did. It was something that I can describe, and was something aside from his motions—a change in his countenance ; there were several changes in his countenance during the night. At first he grew pretty pale — very pale ; that was between twelve and one o’clock ; I think from the time I noticed the change in him first until the second change it was possibly an hour and a half ; that second change was a sort of purple hue upon the face, apparently covering the whole face ; after that there was a change—there was, at the time I speak of, a sort of fever upon him, and it was then u red and flushed countenance. I mean to make a distinction between a red face and a purple face. Q. You speak of fever ; did you feel of him then ? A. I did. Q. Did you feel his pulse? A. I did not. T placed my hands on his hand, I bathed his fore- head a number of times during the night. I don’t recollect that after I bathed his forehead his face was less feverish. Q. You recollect the fever without recollecting whether you aided it by bathing it ? A. I don’t know whether I aided it or not ; 1 don’t know whether it effected any change or not. That was not far from two o’clock at night. That lasted, I think, per- haps about half an hour. His skin was moist—not 1333 1334 1335 446 all the time ; it was very much more moist at times than at others. I can’t say whether it was moist continually or not. Q Did you communicate any of these symptoms you noticed to the doctor? A. I think so, all of them. I think he was advised of all I saw that night when he came. It was Dr. Burr, he came the first time, I think it *vas about twenty minutes after two. I.pent a card to him the first time, and the next time he came about four ; the first time T think he was there about half an hour, the next time but a few minutes. He had grown considera- bly better the last time. Q. During either of these two nights, did you feel of any portion of his body but his head ? A. Yes, I felt of his hands the last night. My hands come in contact with his body in applying the cloth. That was the only feeling. Q. Did you notice anything about his flesh at that time ? A. I noticed at one time it was cold, at another time feverish. Q. Was it moist? A. That I don’t recollect, aside from the forehead and face. Q. At the time you felt of his body, and you think it was feverish, wliat was the color of his face ? A. Red, and when his flesh was not warm the color of his face was pale. There was a time when his flesh was not warm; that was early ; that was Friday night—the last night I sat up with him. Q. Was this moisture you speak of ordinary moisture, or \yas there more than ordinary perspira- tion ? A. There was, at first. The first time he perspired freely, the body was cold : the next time it was warm ; he had been drinking, I think, a good deal of ice water. Q. When his flesh was cool and when it was warm the moisture corresponded? A. No; There was less moisture upon the head and face during the time it appeared feverish than there was when it appeared paler earlier in the night. 133ft 1337 1338 447 Q. What time was it when this perspiration which you noticed was cold—what time in the night? A. Half-past twelve or one when I began to notice that; I did not notice the same cold perspiration again that night. Q. Had he been taking any medicines before either of these perspirations ? A. I don’t remem- ber about his taking anything except ice water while I was there; up to the time he had this cool spell he had taken no medicine at all that I know of; there was medicine there; there was something in a vial; I don’t know what it was ; I was not told what it was. On the last evening the doctor came after I did ; he came early in the evening, about half-past ten or eleven ; he left no directions with me about administering medicines ; none were ad- ministered in my sight that I have any recollection of now. I think this vial containing medicine, of which 1 have spoken, was on the dresser that was convenient to the head of the bed—on the wash- stand or on the commode—the one nearest the bed. I don’t know what that medicine was. I couldn’t say what was the color of the fluid in the vial I speak of; I have no recollection about it. I could not say whether there was more than one vial of medicine there ; 1 have a distinct recollection of one. The size of that vial I don’t know; as I recol- lect it now, an ounce and a half or two ounce vial ; I can't say whether it was full or partly full ; I have no recollection in relation to the medicine. I have had conferences with the plaintiffs counsel about my testimony—with Mr. Chapman and Mr. Newfon--more than pne with Mr. New top—only twpT-and-one more with Mr. Chapman. At those con- ferences none of the doctors were present. 1 have not done any reading of any medical book in con- nection with this case, nor have I talked with any medical men in relation to the case. I have had > ( t conversation with Dr. Daniel S. Burr about the case, since the death. I have not imparted to him 1339 1340 1341 448 any additional information than that I gave him during the sickness; I was not a witness on the coroner’s inquest. 1 have listened to the testimony given here since the Court began ; I have been a constant attendant at this Court since it began ; I was here day before yesterday ; I have been here every day since the Court began, except half a day Saturday. After Court day before yesterday, I walked up and down the street before tea ; after tea 1 don’t think I was out of my room ; I was in my room all night; I was at Mr. Newton’s office last evening; my lodgings are at the Eagle Hotel, and I was in the room all last night after I left Mr. Newton’s office—after 10 o'clock—all night long, and I spent the night in no other place. Re-direct-examination by Mr. Newton : 1 was not at the commencement of the first auto- psy ; I was at the first autopsy, but not at the beginning of it; I was not there before the body was cut open ; my interview with Mr. Newton was last night ; the other was about the 15th or 20th of May, last. When I was subpoenaed to come here before at the May Term of Court, I went to Doctor Burr and asked him—my interview with him had reference to the card I sent to him the night I watched; I had no talk with him upon any subject of medicine or medical science. 1342 1343 1344 Theodore F. McDonald, called as a witness on behalf of the plaintiffs in rebuttal and sworn, testi- fied as follows : Examined by Mr. Newton : I am a brother-in-law of Walton Dwight ; and am an attorney ; I commenced practicing as an at- 449 torney in 1867. And continued in practice there up to the present time. At the time of the death of Walton Dwight I was the District Attorney of the county. I held that office six years. My term of office commenced the first of January, 1875, and continued from that time up to 1881. I married the sister of Dwight on the first of May, 1878. From that time on I saw Mr. Dwight very frequent- ly at his house and my house. Dwightville is a portion of the city of Binghamton in the first ward, a place covering 12 or 15 acres or about that num- ber of acres. Q. State to me what amount of building there was on this property made by Mr. Dwight—I mean the number, extent and value of them. The Court.—He may state the number of build- ings and describe them. A. He built a brick block, consisting of eight houses altogether, of brick, with basements, four stories high and they were plumbed with gas and water and all the modern improvements, and in ad- dition to that was about 40 other houses he built in this Dwightville. Q. Mr. Larocque: By whom ? A. By himself, all of which were expensive houses, and first-class houses, of wood. Q. By Mr. Newton : And were those so supplied with gas and water? A. Yes ; and all sewered and all at his own expense. Q. The sewers were all at his own expense? A. Yes. Q. And how about the gas and lights ? A. There was gas and water in all these houses. Q. And any fountains? A. Yes, sir ; I should think there were 8 or 10 fountains. The land on which the block and a large number of the houses were built was formerly owned by Daniel S. Dick- inson, and was a lowr swampy part of the city, and 1345 1346 1347 450 before lie put this building on lie filled it up with dirt drawn in from different parts of the city. Q. How near the Chenango river was it ? A. It extended along the Chenango river. Q. And how near the Erie Railroad as it crossed the river? A. And on both sides of the railroad. Q. State whether any streams besides the river pass through this property ? A. Yes, sir ; there was a brook that passed into the river through it. There was a stone work put all along the river along his property, and also on either side of this creek—common stone, laid up to protect it. During the last sickness of Mr. Dwight I saw him at his rooms at the Spaulding House ; I was there nearly every day during his sickness. I stayed with him one night. It was in the fore part of November, I can’t tell the day. Q. Can you tell me what night it was as com- pared with the first night Downs was there ? A. It is my recollection that it was two or three nights before that; it might have been three or four. Q. I ask whether it was after you heard about his having had a chill that you were there ? Objected to. The Court.—He may state for the purpose of fix- ing the time lie was there, that it was after he had heard of liis having a chill, but not to characterize it further than that. The Witness.—That is the fact that I stayed all night. Mr. Larocque.—The witness don’t pretend he had a chill while there ? A. No, sir. I saw him quite frequently during that last sick- ness ; on my first learning of his sickness I went up there and found him sitting up, and from that time on I was there ; perhaps there was hardly a day I didn’t go up and see how he was. He seemed 1348 1349 1350 451 to grow—he looked haggard, and lost flesh and was weaker, I thought, from day to day. I was there in one of the early days of November ; I don’t recollect of being called there particularly at the time he was alleged to have had a chill; I was not present, then. On that night when I went there and sat up with him Mrs. Dwight was there, and during the evening some of his neighbors came in. I think Charles VV. Sears, but I am not distinct about it, and it seems to me Col. Jones and his wife came, but I am not positive ; that is my recol- lection, but I am not positive whether it was that time or not. He was in bed most of the time ; he was up once that night, and Dr. Burr came in that night. I think he got up while the doctor was there ; I think so. Q. Describe how he got up during this sickness, whether with help or alone? A. I helped him. He put his arm around my neck, and I would go along by his side. When sitting in a chair he had bedquilts around him. I assisted him in getting irom his chair and returning to the bed. Q. Why? A. Well, he was weak, and could not get his legs up ; he did not have the strength. Q. Did you have any occasion to rub him, or pnt your hands on him while caring for him ? A. I did not; I did not rub him. Q. And when you lifted him, or assisted him, at that time, did he make any statements of difficulty in rising, and if so, what? Objected to as incompetent, on the ground that the question calls for hear- say evidence. The Court.—You may state what he said in that •connection about that particular subject,—to which ruling the counsel for the defendants duly ex- cepted. 1351 1352 13531 452 A. It is my recollection that he claimed to bo sore and lame. Q. Did he state where he was sore? Upon objection by the defendants the Court excluded that. On that night when I sat up, Mrs. Dwight retired between half past ten and eleven o’clock, I should think. Q. Was anything said to you by her as to where you would find her if needed, and if so what ? Objected to as incompetent, and as calling for the declaration of Mrs. Dwight, and also as calling for hearsay evidence. The Court overruled the objection, to which ruling the counsel for the defendants duly excepted. A. She occupied the room right back west of this room—a bed room—the house fronts east—and she told me I would find her there if wanted. During- that night Mr. Dwight slept some, not very much; he was restless until about 2 o’clock and then he slept probably two or three hours. 1 think that no persons were in after Mrs. Dwight left until her return in the morning. After spending the night there that night, I continued to see him ; I saw him again before he died almost daily ; he looked more pale and sick ; he was losing flesh all the time. I can’t tell, but it seems to me that I was there a day or twTo days before he died—I can’t tell exactly. I knew that Downs sat up there, I think I was there the day after Mr. Downs watched wdth him. Q. What was his condition then ? A. He was lying in bed. And it is hard for me to describe his condition more than I have. During the time 1 have known Mr. Dwight, and since I married his 1354 1355 135,6 453 sister, we were always, until his death, on close visiting terms as brothers-in-law ; we lived very near to each other, two or three hundred rods, I suppose—I think two or three hundred rods would cover it. Q. Did you ever see him spit blood? All of the questions of this class were in due season objected to as incompetent and immaterial. The Court overruled the objections, to which ruling counsel for the defendants duly excepted. A. No. Q. Did you ever hear him cough ? A. Yes, sir, I heard him cough when he had a cold. I heard him cough. I don’t remember of hearing him cough particularly except one time when he had a hard cold. He had a very heavy deep voice. Q. I will ask if you ever saw him sick ? Objected to as incompetent and im- material. The Court overruled the objection, to which ruling the counsel for the defendants duly excepted. A. Yes. Q. Before his last sickness ? A. No. Q. A question or two as to the Dwightville property; the eight houses spoken of, were they built as separate houses? State how they were built. A. They each had front doors and each were separate houses, all in one block. After it was converted into a hotel, there were doors cut through in the basement from one place to another, so you could get access from one place to another through these doors ; they were high basements ; each one had a high stoop and stairs in front—fronting the east; there was a park in front of the house, across the road, and the river beyond. I know of the 135? 1358 1359 454 sale of this property, and what some of it sold for under the mortgages. I was somewhat acquainted with the value of real estate in Binghamton. The hole I speak of from one house to the other was in the basement, so that in going from one to the other you had to go into the basement or out of doors. Q. I would ask the witness how Mr. Dwight came to have his checks ? A. (Referring to papers.) Some time in August the Colonel wasatmy house— he and his wife; he had his pocket book out one day, and he had a large roll of bills in there; I took those bills—this roll of money—and put it to my credit in the bank; it was just the amount of these six checks I hold here; thousand dollars, I guess; he came there, and I gave him these checks; that was September 3d, 1878. Q. And at whose request did you give them then l A. Col. Dwight’s. Q. Did they cover precisely the amount of money you received from him at the time you mentioned ? A. Precisely. (Papers handed witness.) These are the checks. (Afterwards marked Exhibit 100. See page 467.) Gross-examination by Mr. Russell : I am one of the beneficiaries named in the will of Col. Dwight. Q. You mentioned, in answer to the gentleman’s question, tliatyou were District Attorney of Broome County for six years; did that have any connection with Col. Dwight’s affairs and his death '( A. Not that 1 know of; I was District Attorney of Broome County at the time of his death. Q. Had you made any investigation or examina- tion, or acquired any knowledge to the benefit of anyone else, as to whether there was any law making it manslaughter to assist in committing suicide l A. In this case ? Q. (Question repeated.) A. I understand it to be- the law; I understood it then. 1360 1361 1362 455 Q. Now, can't yon answer the question a little more directly? (Question repeated.) A. I never acquired any such knowledge or made any such investigation for the benefit of any one else. Q. Did you ever read the statute to any one ? A. No. Q. You were interrogated as to the real estate transactions of Mr. Dwight in and about Dwiglit- ville. When was this building or improvement of Dwightville made? A. About the years 1871, 1872 and 1873, as I recollect it; the improvement substantially ceased in 1873, as I remember it. Q. You have stated some sum in connection with the cost of that real estate and improvement. Is your knowledge of that entire expense of a personal character? A. A good deal. Q. Do you know, sir, independently of the state- ments of Walton Dwight, what was the cost of those real estate improvements ? A. I do not, pre- cisely. Q. Do you know it substantially, independently of his statement and figures ? A. Only as a matter of opinion and figures, of course. Q. Then, as a matter of opinion, you only esti- mate independently of Dwight’s statements what you should judge to be the cost? A. Not entirely independently. Q. What knowledge enters into your estimate? A. My knowledge of the cost of real estate in Bing- hamton, and the cost of building, and what I learned from him. Q. Apart from his statement entirely, which I do not wish to enter upon, have you any knowl- edge upon the subject—any general knowledge— as to the cost of real estate in Binghamton ? A. I have not. Q. Do you know the extent of the mortgages of Colonel Dwight upon this property when they got fully heaped up ? A. No, I do not. 1363 1364 1365 456 Q. Have you any knowledge upon the subject ? A. Yes, I have some knowledge of it. Q. What is the extent of your knowledge, with- out stating the facts upon the subject? A. The extent of my knowledge is that I know of two mortgages ; I have no knowledge of any others, except what I have heard. Q. And how large were those mortgages? A. One was $20,000, as I remember it, and one $10,000. Q. The $20,000 mortgage was to whom ? A. I shall have to qualify that; I think it was $10,000. Q. You think the $20,000 was $10,000? A. Yes. Q. And the $10,000 was $20,000—is that what you mean? A. Well, I can’t say what the amount of these mortgages were—any of them. Q. Then, in that close and intimate relationship that you have spoken of in answer to the counsel’s, question, you acquired no knowledge whatever of the extent of the encumbrances upon this man’s, property? A. No, I never did. , Q. Do you know how he got the money which the mortgages secured upon this property? A. I do not. Q. Now, isn’t it a fact, that instead of this being Mr. Dwight’s property as you have testified to, at the time he put these massive improvements upon it, the property belonged to Mrs. Dwight? A. I understood that some of it was in her name. ; Q. Can you answer my question more directly ?, Don’t you know as a fact, that this property be-, longed to Mrs. Dwight ? A. I don’t know as a fact that all of it did. Q. The great bulk of it ? A. All I know about that is—*— . . ;.; . . ., ; ; i . ■ 1366 1367 1368 457 Q. I want to know if yon know it ? A. I know; that some of it—that is, I understand Q. Don’t you know? A. I couldn’t say that I knew that. Q. And didn’t you know that this property was property that he conveyed to his wife through the medium of a friend, for a consideration of $1.00 ? A. That I don’t know. Q. Were you in Court when Mr. Dwight’s ex- amination in bankruptcy was read before this jury ? A. I was here part of the time. Q. Were you in Court when that branch of it was read? A. If it was I didn’t hear it, or don’t re- member it. I don’t think I was when that was read. Q. How long after Mr. Dwight had improved this property, and moved into the buildings, and occupied it as a hotel, before it was sold out from under him ? A. Well, I think he was there over a year, as I remember it, about a year—I think so, as I remember it. * , Q. And you have a distinct recollection that it was about a year that he was there ? A. No, I have no distinct recollection about it. Q. I understood you were the close and intimate friend of his ? A. I was. Q. And well acquainted with his matters ? A.> Not particularly ; I was well acquainted with him. Q. You will say now you were not well acquain- ted with his matters ? A. I knew what he was doing, but I never did his business. Q. Were you well acquainted with his business ? A. I was well acquainted with what he was doing. ( Q. Is that the best answer you can.giveme ? A. With his business affairs—yes, I was. . .. i Q. Then, in asking a gentleman wtyo was \yollac-, 1369 1370 1371 458 quainted with his business affairs, as to the extent of his occupancy of this property after he went in in 1873, let me ask you as to how long he remained in possession of this property before he was “ cleaned out ” by his creditors ? A. Well, he was there till 1877, as 1 remember it. Q. Then, he was sold out by his creditors ? A. Yes. Q. Upon debts, were they, according to your knowledge, that existed at the time they began hotel keeping? A. Well, at the time lie began to keep the hotel; yes, I think so. Q. And when he was sold out by his creditors— his secured creditors—and went through bank- ruptcy, he left a large amount of floating debts among the people of Binghamton, entirely unpaid? A. I think not. Q. Do you know not ? A. 1 couldn’t say that lie didn’t. Q. Have you read his will ? A. Yes, I heard it read ; I don’t think I have read it. Q. Have you read his reasons for not paying his general creditors? A. I heard the will read. Q. Haven’t you read it yourself? A. No; 1 never did. Q. Have you personal knowledge of the extent of the floating indebtedness that he left among the people of Binghamton, and vicinity generally l A. I have not. Q. Of which he didn’t pay one dollar ? A. No. Q. Do you know Mr. John B. Ames, who is be- queathed one dollar and sixty cents in the will of Walton Dwight, as a creditor ? A. Yes. Q. What is his business ? A. I think he is a dealer in paints and oils. Q. Do you know Mr. T. Goodrich, who is also bequeathed one dollar and eighty cents ? A. I don’t think I know Goodrich. 1372 1373 1374 459 Q. Do you know Dr.. T. L. Brown, who is be- queathed seven dollars and seventy-live cents ? A. Yes, he is a physician in Binghamton. Q. Has he been attending in Court here ? A. I saw him here last night for the first. Q. Do you know Mr. James Dill in, who is be- queathed as a creditor, the sum of nine dollars? A. Yes, he lays stone sidewalks. Q. Do you know John Kelley,who is bequeathed twenty-six dollars and ninety-four cents? A. I know a John Kelley ; he is a bricklayer and stone mason, too, I think. Q. Do you know Mr. Orlow Chapman, who is be- queathed the sum of ten thousand dollars ? A. Yes; he is a lawyer. Q. Do you know Mr. George B. Edwards, who is bequeathed the sum of one thousand dollars ? A. Yes ; lie is an accountant, bookkeeper. Q. Do you know Mr. Neri Pine, who is bequeathed the sum of one thousand dollars? A. Yes ; he is an attorney and lawyer. Q. Do you know Ellen Carmady, who is be- queathed the sum of one thousand dollars ? A. Yes ; she was an old servant in the family ; she is the same lady who has been sitting here beside Mrs. Dwight and Mrs. Owen several days. Q. Is Dr. Titus L. Brown, who is bequeathed, “as a mark of kindly regard,” the sum of two hun- dred dollars,the same Mr. Brown who is bequeathed seven dollars and seventy-five.cents as a creditor ? A. I know of no other Dr. Brown. The Christian name of that gentleman is “ Titus.” Q. Do you know Mr. George Pratt, who is be- queathed, “ as a mark of esteem, and in kindly remembrance of our long and pleasant business and social relations, the sum of one thousand dollars ”? A. Yes ; he is cashier of the First National Bank. Q. Is Mrs. Ruth Owen, who is mentioned in the will, the sister of Mrs. Dwight ? A. She is. 1375 1376 1377 460 Q. Do yon know Mr. Ge'orge P. Lyon, a gentle- man who is bequeathed the sum of one thousand dollars in this will? A. Yes ; he is a lawyer. Q. You were asked by the counsel to describe the character of the Dwight hotel—the eight buildings—if I remember rightly, you spoke of its having gas and water and all modern improve- ments? A. Yes, gas chandeliers, satin furniture ; it was elegantly furnished. Q. Was there any other high-priced and luxuri- ous article in connection with the hotel that you have forgotten, or that you now remember, that you did not mention? A. I don't think I men- tioned anything about the furniture until now ; the hotel was very well finished ; there was a great deal of frescoing in oil done throughout the building. Q. None of it in water colors? A. Well, I couldn’t say that. Q. I want you to be very sure about that ? A. There was a good deal of frescoing done with pen- cil and brush ; I don’t know whether it was oil or water. Q. You are unable to state whether it was in water or in oil ? A. No, I cannot ; it looked well. Q. You speak of there being several fountains? A. Yes. Q. Have you sufficient knowledge on the subject to state whether there was any reservoir around the fountains-for the fish to play in ? A. Yes, there was. Q. Can you state the extent and size of those reservoirs ? A. Yes, one of them very wrell; it was just fifty feet across it; that was in front of the hotel and in the park; that was the large one in the park, and there was a large one in the rear of the hotel, too. There was a‘croquet lawn there ; I don’t know that they used it in the winter time for a skating rink; T don’t think that there was a skating rink connected- with the hotel1; if thkre' 1378 1379 1380 461 was I didn’t know it; tins big fountain and park were sold under the mortgage ; I think all the other fountains were sold out with the mortgage. Q. That was as early as 1877, wasn’t it? A. Yes; that is my recollection of the date; I couldn’t tell; there was some ground connected with the house in the rear of the hotel; I don’t remember anything being there ; there was a large fountain there—another fountain, I don’t know how large ; I can’t say that there were fish in that fountain, 1 don’t remember. Q. You say you saw Mr. Walton Dwight nearly daily after he first began to be sick ; did you see him on the 15th and 16th of October, 1878? A. I couldn’t tell you the dates I saw him. Q. Do you know of his going to New-York one day and coming back the next ? A. I understood he went to New-York ; I saw him as soon as he came back ; I saw him before he went. Q. And were j7ou at the house while he was at New-York, or while he was away ? A. No. Q. Was that about the 15th or 16th of October? A. I couldn’t give you the date about that at all. Q. Can’t you tell anywhere near it, according to your recollection? A. I should think it was in that neighborhood, somewhere, but I couldn’t tell. Q. You said you were invited to sit up with him one night, and what night was that? A. I can’t tell the day of the month ; it was in the fore part of November; this sitting didn’t make such an impression upon my mind as to enable me to desig- nate the date. Q. Have you any professional skill or any expe- rience as a nurse or had you at that time ? A. Only as to sickness in my pwn family. Q. Was that experience you gained in your own family sufficient to enable you to act as nurse, in 1381 1382 1383 462 your judgment ? A. Well, 1 never did act in that capacity. Q. Then you didn’t go there that night to act as nurse in any sense ? A. Oh, no. Q. At what hour did you go there that night? A. I think between—about half past eight o’clock. 0. Did you go by the invitation or request of any one? A. Why, the Colonel wanted me to come up and stay with him. That request was made to me personally. I was there and made the arrange- ments. Q. You came there about eight o’clock to sit up with him all night? A. Yes. Q. And during the evening several persons were in before they retired ? A. Mr. Dwight was sitting up part of the time while 1 was there. He talked of both business and social matters; I don’t re- member anything else he talked of. He retired about ten o’clock; that is earlier than he would usually retire I think; his usual hour of going to bed was probably eleven o’clock; this night he went to bed about an hour earlier; I think about ten o’clock; I don’t know what time in the morn- ing he got up; I went away about seven or eight, perhaps eight o’clock; his usual hour ot' getting up was about eight or nine o’clock; he went to bed late and got up late generally. Q. Did you pay any attention to his pulse that night you were there ? A. No. Q. Did you do anything that night you were there in regard to attending to him as a sick man ? A. Oh, yes, sir; nothing more than to attend to his wants, that is about all. Q. Did you administer any medicine ? A. No, I think he took his own medicine. Q. Did you see him take any medicine that night? A. I have no distinct recollection that I did. Q. Have you any recollection that he had any 1384 1385 1386 463 medicines there that night? A. Yes, I do not know what they were; there were a lot of vials on the table or stand—I mean several, four or five. Q. Different colored liquors'? A. I can’t say about that. Q. And how big were the vials ? A. They were vials of about an ounce, called an ounce vial. Q. You had no direction or instruction that should lead you to scrutinize the medicines he had ? A. No, not at all. Q. Had you any instruction from any physician as to doing anything for him that night ? A. No. Q. Now, between that time and the time that you saw him a day or two before his death (leav- ing out of your mind what Dwight said about him- self entirely), did you notice or see anything in his physical appearance ? A. Yes. Q. State precisely what you saw in his physical appearance without characterizing it generally % A. It would become very difficult for him to go from his chair to the bed. Q. Did you know that to be a fact independ- ently and apart from what he said to you ? A. Yes, I don’t know it because he said it. Q. Did you know it apart from what Dwight said to you ? A. Yes, I think I do. Q. Does your knowledge extend to the power to tell whether a man is faltering and hesitating in his ■walk from an actual weakness or from a desire to do so ? A. I am not an expert. Q. Can you answer that question better than that ? A. I can only say in this case I think I have knowl- edge enough. Q. You have knowledge in this case you did not have in any other % A. Yes. Q. That is what you mean ? A. No ; I don’t say that, for I do in other cases. Q. You think you are able to tell from knowl- edge whether a man walks weakly from a desire 1387 1388 1389 464 to do so or from actual weakness ? A. I think I might. Q. You are sure of it ? A. I think so. Q. Well, I guess we will let you describe the difference between a man who was endeavoring to walk weak and one who actually did from actual necessity ? A. Well, a man that was tr\dng to play it would be more apt to overdo it than a man who was struggling against weakness. Q. Anything more ? A. I don’t know of any- thing more. Q. Then your knowledge upon the subject of which we speak is derived entirely, in your esti- mation, from the amount of skill in which the man attempted to feign ? A. Possibly so. Q. Did you ever in your life see a man that was attempting to feign a sickness? A. Yes ; several ; this was in sickness ; when they pretended to be sick ; I have had more than one such case ; have more than one in my mind. Q. Then you are somewhat of an expert in that business ? A No ; but I have had some experience in regard to that one thing. Q. What doctor was attending upon Mr. Dwight during his illness ? A. Drs. Burr, Dr. George Burr and Dr. Dan. Burr, and Dr. Orton. Q. Who came there the most? A. AYell, the Drs. Burr were there while I was there more than any others. Q. Do you know whether either of the Drs. Burr kept, notes of his various symptoms from day to day ? A. No ; I do not. Q. Among the visitors you saw there during his sickness, was Mr. Neri Pine? A. I haven’t any recollection of ever seeing Mr. Pine there, although he might have been there. Q. Were there any other lawyers there visiting during his sickness, that you saw? A. I don’t re- member of any now. Q. You have spoken about his losing flesh, in 1390 1391 1892 465 your judgment, during this sickness ; do you know how much lie weighed when he began to be sick ? A. T don’t know just how much he weighed; I should think he weighed about 240 pounds ; that may be an; over estimate, but he was a heavy man and weighed over 200, I should say, any way. Q. When was it, according to your knowledge, that he began to be sick? A. As I remember, it was live or six weeks before he died. Q. Does your memory also extend to remember- ing about the time he ceased in his efforts to pro- cure life insurance? A. I don’t know anything about that ; I don’t know when he ceased to make efforts. Q. About how long was it after the time when you were paying part of his premium on life insurance before he first complained of being sick ? Objected to on the ground that there is no foundation for the question. The Court sustained the objection, to which ruling the counsel for the defendants duly excepted. Q. Did you give any checks for any part of his life insurance premiums ? A. I assume from what I learn here that the checks I have produced went to pay his premiums, but I didn’t give them for that purpose, and I didn’t know it at that time; I made those checks payable, some of them to Mr. Pine’s order and some to the order of Mr. Batch- elder, whom I never saw. Q. After you gave these checks how long was it before you first heard him complaining of being sick ? A. It was a few weeks after that. Q. You have spoken of hearing him cough at the time he had a cold; when was it? A. I can’t re- member the exact time ; I think it was three or four years before he died; he was then living there 1393 1394 1395 466 in Binghamton, in the Dwight House, as I remem- ber it; it was in the winter. Q. For how many weeks did you hear the cough ? A. I didn’t hear it any weeks. Q. How many days? A. I didn't hear it any days. Q. You didn’t hear it at all, did you ? A. Yes, I did ; I cannot say on how many different occa- sions I heard it; I was not with him in Chicago. Q. In the spring and summer of 1878? A. Yes, I saw him in Chicago in 1878, as I remember it. Q. What time? A. I think it was in June, but I cannot tell. Q. Wasn’t Walton Dwight sick in Chicago at that time? A. No, not while I was there; I was there only twro or three days; I went there after my family. Q. And you sayjie was not sick in Chicago at that time, and having Dr. Allan Brooks attending him ? A. Not that I knew of. Q. Did you live at the same hotel with him ? A. Well, while I was there we stopped at our brother- in-law’s, Mr. Coleman’s. Q. Both of you w’ere living in the same house ? A. Yes ; and he was not sick then, to my knowl- edge. Q. How long before the third day of September was it Walton Dwight handed to you $1,000 in bank notes ? A. It was in August some time ; I don’t know the time exactly. Q. Did you make any entry of the transaction in any book ? A. No. Q. Wasn’t that an unusual circumstance that you should have $1,000 left with you and you give no credit for it ? A. No. Q. Is that your usual method of doing business ? A. Oh, no, but that is nothing unusual in business circumstances. Q. Did you give him any due bill for it ? A. No. Q. Was anybody present when he gave it to you ? 1396 1397 1398 467 A. I think so ; I think Mrs. Dwight was there ; I think my family was there ; my wife was there ; it was in my own family; I couldn’t say, but I think it was in the evening. Q. Hadn’t Walton Dwight been in the habit of keeping a bank account ? A. He had kept bank accounts, but I think at that time he was not keep- ing any bank account. Q. Do you know ? A. I don’t know that he was at that time. Q. You knew that he had been in the habit of keeping a bank account ? A. Yes. Q. At the time he gave you that $1,000 did he owe you anything, or you him ? A. No ; not a cent. Q. And with the exception of this $1,000 you did not owe him anything after you received it? A. No, not that I recollect of. Q. You and he had a conversation about this $1,000 when he left it with you? A. Yes, we had a conversation about it, and I took the bills and deposited them in my bank ; and as directed by him afterwards, 1 gave checks until I had com- pleted the entire amount of the $1,000; those checks went to pay insurance policies ; I have not the slightest knowledge where he got this $1,000. (Checks shown witness.) Those are the same checks I refer to. The counsel for the defendants read in evidence the eight checks referred to by witness. They were together marked Exhibit 100. Q. Where did you deliver these checks to Mr. Dwight ? A. In my office ; I think there was no one else present at the time I delivered him the checks, but I do not remember; Mr. Dwight came in for them himself ; I am not positive whether the Col- onel came and took the checks himself or whether he told me how to make them out, and whether he or Mr. Pine came and got them. It is my recollec- tion I gave Mr. Dwight the checks that went ta 1399“ 1400 1401 468 Batchelder, and that I made out the checks that he told me to give to Mr. Pine, and Mr. Pine came and got them. I have that recollection about it. I made out the entire checks at his request at the same time, at the interview when he came for them. Seymour Coleman was the person with whom Dwight and I stayed while in Chicago. He lived on Indiana avenue, No. 3,200 and something ; I can’t remember the number exactly. Dwight lived in one of his houses in Dwiglitville before he moved into the hotel; he lived in the one on the north end of the'block ; it is on Front street, on the corner of Front and Dickinson street, and of Winding Way. I don’t know how long he lived there, a year or two; before he lived in that house on the corner of Front and Dickinson streets, he had rooms, as I remem- ber it, over the First National Bank, that was on the corner of Washington and Court streets. Q Is this Mr. Seymour Coleman, with whom you and Dwight staid while in Chicago, the brother-in- law, and one of the persons named in the Dwight Will? A. Yes; he is a brother-in-law. Re direct-examination by Mr. Newton ; Q. Are you familiar with the cost of building in the city of Binghamton, and were you during the years Mr. Dwight was putting up Dwiglitville ? A. Yes, somewhat. I have done some building my- self. I have built fifteen or eighteen houses in Binghamton. I knew the cost of lumber and ma- terial at that time, or about its cost. I was present at the post-mortem examination when Dwight’s body was opened ; during the whole of that operation I stood near the body ; I remem- ber that before the body was opened attention was called to some folds or creases in the neck of Mr. Dwight. I heard Dr. Ayer say something on that occasion about them. I know Dr. John Swin- burne. , 1402 1403 1404 469 Q. Did yon hear Dr. Swinburne say in substance that he thought those folds were caused by bending the head and neck backward ? Objected to as incompetent, and as calling for hearsay evidence ; and also on the ground that the question assumes that testimony was given which, in point of fact, was not given. The Court over- ruled the objection, to which ruling coun- sel for the defendants duly accepted. A. I didn’t hear him say that. Q. Did you notice the folds in the neck? A. I noticed a crease on the left side of the neck ; yes. I noticed nothing about the color ; it was three or four inches in length, and perhaps one-eighth of an inch in breadth ; that is my judgment about it. I did not see the body of Dwight after his death and before he was placed on ice. Re~cross■examination by Mr. Russell; • ; •': Q. The counsel has been particular to call your attention to the mark as a “ fold do you lay any stress on that in giving your answer? A. I don’t know that I have used that term ; I used the term crease. Q. Did you intend to use the term fold3Tourself ? A, I never thought anything about it till now. Q. Did you pay any especial attention to the length or depth and width and color of this inden- tation ? A. I looked at it. Q. (Question repeated.) A. No. I heard of the death of Walton Dwight about two o’clock that night; word was sent to my house ; some one came and told us ; I don’t know who. 1405 1406 1407 470 Neri Pine, called as a witness on behalf of the plaintiffs in rebuttal, and sworn, testified as follows : Examined by Mr. Newton; T reside in Binghamton, and am a lawyer by pro- fession ; I knew Walton Dwight ; I made his ac- quaintance in boyhood ; iri his boyhood he was living at his father’s house in the county of Broome and town of Windsor, three or four miles from the village of Windsor, on a farm ; my boyhood was spent in the town of Colesville adjoining the town of Windsor ; down to 1857 or 1858, I had known him as he grew up ; he was a little younger than I, and from that time I don’t recollect of seeing him until I moved to Binghamton in the spring of 1868. He was residing then in the city of Binghamton ; I was well acquainted with him from that time till his death ; I met him every week, and every day as we casually met upon the street, and in business places—we met here and there ; he was a man of more than usual size ; he was a large man, stand- ing over six feet in height, of broad shoulders ; his shoulders laid out square, and neck rather short than long, with a pretty large head ; carried slightly forward ordinarily ; a man of very large size around the chest—under the arms—and of a large body and large heavy hips and legs, and a long, large arm, and an unusually large hand; a man large in every direction and make up. Q. Before his final sickness did you ever know him to be sick ? Objected to as incompetent and imma- terial. The Court overruled the objec- tion, to which ruling the counsel for the defendants duly excepted. A. Not of my own knowledge. I never saw him spit blood ; I have no recollection of ever having 1408 1409 1410 471 heard him cough ; his voice was unusually heavy and strong. 1 took charge of the bankruptcy pro- ceedings that have been introduced in evidence here, as solicitor. Q. Can you give the date of the report made by Mr. Bowe, the Register in bankruptcy ? A. 1 can. Q. What was the date? Mr. Russell.—We object to it on the ground that the report is the best evidence. (Report produced and paper handed to wit- ness.) That is a copy of the report. The counsel for the plaintiffs offered the copy report in evidence, so far as it fixes its date. Mr. Newton.—So far as it gives its date I put it in evidence. Mr. Bowe was unable to give the date. Mr. Larocque.—If the gentlemen say that that is a true copy of the report we do not object to it on that account. Mr. Russell.—Is this report offered in evidence ? Mr. Neioton.—Simply so far as it fixes its date. Mr. Larocque.—I suppose that if the report is putin, the whole of the report must go in. Mr. Newton.—We do not care to load the evi- dence with the report. Mr. Russell.—The objection is that if they offer this paper in evidence they must offer it as a whole, and that the simple reading of a line at the bottom of a paper whose purport is not manifest, because it is not evidence is entirely immaterial. The Court.—They may put it in evidence for the purpose of fixing its date. Exception taken. Mr. Newton.-—I so put it in evidence. 1411 1412 1413 472 Mr. Russell.—May we use it for the different purposes of the case ? The Court.—I will'rule upon that when it comes, up. Mr. Russell.—Of course, it becomes necessary for us to know whether the paper is in evidence in order to determine whether we shall make any fur- ther offer of it. The Court.—I will not say in regard to that. They have offered it for that purpose. Mr. Newton.—The date of the report is as fol- lows : “ Dated, Otego, November 4th, 1878. L. E. Bo we, Register in Bankruptcy.” Q. Mr. Pine, who informed, if any one, to your knowledge, Mr. Dwight that this report had been made? A. I did ; my recollection is that it was on the 6th day of November, 1878 ; 1 carried it to him at that time, this paper that you have here. I got this report from Mr. Bowe by mail. Q. After getting it, before you handed it to Mr. Dwight, had you disclosed to any person whatever that you had received any report ? A. I think I had, to Orlow W. Chapman—not to any other per- son, I think—have no recollection that I did. 1 was here at the time that Mr. Harding was sworn ; I received from Mr. Harding a policy such as that which was sent to him by Peck and Hillman, from the Connecticut Mutual. (Exhibit No. 8 shown witness.) I have seen that policy before or one like it. I find no mark upon it by which I could, positively identify it as being the policy. 1 received one from that company and for that amount, and with a letter such as that copy letter attached. I first saw it very soon after the policy bears date ; immediately upon Mr. Harding’s receipt of it, I think. The first that I saw of that policy Mr. Harding brought it to my office and left it with me. Mr. Harding brought in the policy and said that 1414 1415 1416 473 he had a life insurance policy for Colonel Dwight, which he was directed by Colonel Dwight to leave with me, and that he should call there and get the premium—he left it then. Q. Can you tell how long you held possession of it ? A. It was there for two weeks, I should think; from a week to two weeks ; it was there with me quite a time. Q. At the time you received that policy from Mr. Harding, were you very busy ? A. I was en- gaged in my work in the office, making up peti- tions in bankruptcy for various parties. Q. The last days were near at hand to draw those? A. They were ; they had to be filed on ihe 31st of August; and that was Sunday, so the last petitions could be filed only on or by the 30th of Au- gust. I knew Mr. D. C. Vosbury ; I received from him a policy about the 20th of August, 1878, in my office—the same place where I received this other one ; there was a conversation between me and him about the policy at that time ; he said he had a policy of insurance on the life of Colonel Dwight, which the Colonel directed him to bring to me and leave with me, and call there and get his money for the premium ; I said “all right, leave it until the Colonel comes around,” and he turned to go out, and I called to him and said, “ how soon will you have to have the money for that ? How soon d<» you make your monthly report ?” I told him to leave it until the Colonel came in ; he says, “any time before 1 make my report.” I asked him at what time he made his monthly report, and he said, “Oh, the fore part of the month; from the 5th to the 10th ; any time before that would answer his purpose ;” that was the policy of the Mutual Life Insurance Company of New-York; I subse- quently returned that policy to Mr. Vosbury ; my recollection is very distinct that it was on the 27th day of August that I returned it; I went to Syra- cuse the night before to attend the United States 1417 1418 1419 474 District Court on the morning of tile 27 th in Syra- cuse—and came down on the afternoon train ; left Syracuse between one and two o’clock, and reached our office at live o’clock ; my recollection of the conversation between Mr. Vosburyand myself with regard to that policy is, that he called to me with regard to it when I was going up the steps of the building in which my office is, when I came home that day ; a few minutes after five o’clock, perhaps, I handed it to him ; he came across and went up stairs with me and got the policy ; I don’t recollect whether there was any reason or suggestion made for his calling for it at the time ; he said he wanted that policy in the Mutual Life, and I suggested that lie should leave it until the Colonel returned, and see whar arrangement could be made about it; he said no, he wanted it then ; I do not think he stated to me the purpose for which he wanted it ; at all events I returned it then; during the last sickness of Walton, I was at his room some- times every day, and sometimes there would be a day or two I didn’t go up. Q. I wish you as Avell as you can to describe Mr. Dwight as he was there, going along through his line of sickness as to his appearance? Mr. Russell.—We object to the question in so far as the evidence attempts to give anything but appearances which were observable by an ordinary person, not the conclusion of the witness. The Court.—You don’t ask for his conclusion I suppose. Mr. Newton.—No, sir. The Court.—State the facts. Witness.—When he was first confined to his room, and did not come down town, I could see that he looked but little different from what he had before that; then, as I went up there every day or two, noticed that he was losing color—his 1420 1421 1422 475 face was—and that his eyes especially were looking dull, and the whites of them cloudy, muddy, a yellowish cast to them ; and his face wore more of a pinched, narrowing look as the days went on; seemed to be, looked to be, losing flesh and vitality or life. The counsel for the defendants there- upon objected to the characterization of the appearance of Dwight by the witness, as incompetent, and also on the ground that the witness has not been shown to be qualified to express an opinion on the subject,and on those grounds moved that the answer of the witness on this sub- ject be stricken out. The Court over- ruled the objection and denied the mo- tion, to which ruling the counsel for the defendant duly excepted. That continued down to the last time I saw him, looking thinner, and his face more shrunken, set- tling apparently ; during the earlier part of his ill- ness he was usually sitting up when I went there ; in the latter part of it he was lying in bed ; I did not assist at any time in taking care of him, more than a casual helping hand when I was in there in the course of the day ; I never sat up with him a night and took care of him. Q. Speaking of that casual assistance, what as- sistance did you render him ? A. Oh, but once or twice—once that I recall especially, I helped him from his bed to walk out into the sitting room ; he walked out by putting his hand on my shoulder and my supporting him ; ldo not recall seeing him at any time removed from his chair to the bed. Q. Did he sign any papers in your presence dur- ing his sickness ? A. He did. Q. How did he sign—describe how he signed ? A. Well, he was raised up in the bed and the pil- lows put behind him, and propped up there, and 1423 1424 1425 476 then a book or something was given him, and the papet laid on that, and lie signed it there sitting in bed.i) Q. Did you help raise him on any of those occa- sions ? A. I did at that time, or on that occasion ; I raised him up at that time. Q. On more than one day during his sickness,, did he sign any papers, that you saw % A. I do not now recall any other ; that was the 15th of Novem- ber, 1878, between nine and ten o’clock in the morning, very soon after nine o’clock ; Mr. Charles W. Loomis was not there with me. Q. Under your direction did he subsequently go there ? Objected to. The Court.—You may answer that ; to which ruling the counsel for the de- fendants duly excepted. A. I understand that he did ; I directed him to go ; the paper was returned to me verified ; at that same time Mrs. Dwight also signed papers ; they were all brought down by me and handed to Mi\ Loomis with the request that he go up there ; on that morning I had a conversation with Mr.Dwight. Q. State whether on the morning of that 15th day ot' November, 1878, he made arrangements with you relative to going to New-York to pay the approach- ing premiums on his policies, and if so, what ar- rangements ? Mr. Russell.—1 object to the question as incompetent in itself, as hearsay evidence. The declaration of the deceased in his own favor. Secondly, That the method by which the alleged fact is sought to be proved is in- competent as an attempt to characterize the effect or conclusion ot‘ the conversation be- tween the parties by this witness; whereas, the facts must be stated by him in order that 1426 1427 1428 477 we may judge of the effect of the arrange- ment. • -; The Court.—He may ask that. To what date do you refer \ Mr. Newton.—I call his attention to the fact that he was there that morning, the 15th of November. \ The Court.— JSpw you ask him if at that interview he made arrangements with Mr. Dwight. • : ' . Mr. Newton.—Yes, sir. .[ The Court.--He may state what was said and done in that respect,without character- ization. Mr. Russell.—I would like to have, your Honor, a direct ruling upon this question, in order that we may know whether this ques- tion now asked is allowed or not. Your Honor can see that this is somewhat of an important matter, and I want to know pre- cisely what the ruling is. My objection is to this form of question. The Court.—I have sustained your objec- tion to this form of question, so far as it characterizes’ or seeks to characterize it. Under the direction which the Court has given what was said and done ? Mr. Russell.—That is objected to as in- competent, as a transaction between the client and his attorney, hearsay and imma- terial. The Court.—Objection overruled. The Witness.—Will the stenographer read the. question ? The stenographer read as follow^: 1429 1430 0. state 1431 478 “Under the .direction the Court has given, state^wasisaid and done.” Mr. Russell.—Of course your Honor’s ruling covers their right to show what was said. The question is conjunctive “and done.” The Court.—Yes, sir. Mr. Russell.—We especially except to that portion which allows what was said ta be given. The Court.—You have an exception to all of it, every bit of it. Of course it comes again to that question of self-serving declar- ations we were talking about, but in this con- nection I think that is competent. Proceed. A. 1 had in my hands that morning a letter from Mr. Bachelder, calling my attention Mr. Laroeque.—We object to that. Mr. Newton.—No matter about the con- tents then at present. The Witness.—I called Col. Dwight’s attention to the fact that those premiums Mr. Russell.—Wait a moment; 1 object to the form in which the witness is testifying. The Court.—Just give what you said. The Witness.—I could not assume at this time- to give the precise words which I used, but I said to him in substance that these premiums were be- coming due, and asked what arrangement was made to meet them. His reply was, “ I expect Mr. Dusenbury over to-morrow” (that was Satur- day), “ if he does not come over in the forenoon, I want you (meaning me) to go over there in the 1432 1433 1434 479 afternoon and see him, and make arrangements for the money to pay these premiums which are be- coming due, so that you can go to New-York and these various places where they are to be paid, and pay them as they become due. If you conclude the arrangement on Saturday, you can go to New- York on Sunday night; if it has to go over until Monday, then you can go down on Monday night and be there in season for the first ones which be- come due.” I said to him that I would go over if Mr. Dusenbury did not come over. I know Mr. Dusenbury ; his full name is George Dusenbury, the father of Mrs. Dwight. Cross-examined by Mr. Russell: I am a lawyer ; have been such since May 4th, 1868 ; I think I was admitted to the bar then ; I was fifty years old on the 11th of June last; I was admitted to the bar at about the age of thirty-five years, just before I was thirty-five. I was a black- smith by trade, from the time I was a boy. My father was a blacksmith, and brought me up in the shop. From April 1st, 1861, until September, or about September 1st, 1867, I lived at Centre Vil- lage in the town of Colesville, County of Broome ; I moved there from the village of Nineveh, three miles above where I had resided from about the 1st of November previous. Before that time I had lived for about three years at what is known as Yale Settlement, in the town of Gilford, in Chen- ango County ; and that was the commencement of my housekeeping for myself. I came to Bingham- ton to live in the first part of May, 1868, and have resided there since. I am one of the beneficiaries under the will of Walton Dwight to the extent of a thousand dollars ; 1 did not prepare that will ; the Colonel drew it substantially himself, as I understand. Q. What lawyer put it into shape ? A. Benjamin 1435 1436 1437 480 N. Loomis,. Judge Loomis, as. I understand, and the will, I believe, is in hishandwriting. Q. In the various business that you had to per- form for Colonel I)wight, you acted as attorney in the bankruptcy proceedings for himself and his wife, and also as his, attorney in these various in- surance matters, did you ? A. I acted as the at- torney for him and his wife in the bankruptcy pro- ceedings, and I don’t know whether Von would say I was acting as his attorney in this insurance. . Q. I don’t want what I would say. Were you, or were you not, the attorney of Walton Dwiglit in this insurance scheme of his? A. No : I was not. Q. Were you his attorney in relation to the life insurance business commencing about the 1st of August?, 1878, and culminating on the 15th of No- vember, 1878? A. I acted for him in several of those matters. Q. Is the word “Attorney” a word that you understand, Mr Pine? Can you give a direct answer to that ? A. 1 think I do : I think I under- stand it. Q. Were you his attorney in relation to the life insurance business commencing about the first of August, 1878, and culminating on the 15th day of November, 1878? A. Then, with my understand- ing of the meaning of the term, I say no. Q. Then, in what you did for him in relation to the insurance business, you did not act as an at- torney ? A. Not within my understanding of the meaning of the term. Q. Did you act as an agent? A. Yes ; so 1 under- stood it. Q. An agent, and not an attorney ? A. Yes. Q. In the pursuit of your business as an agent, and not as an attorney, in relation to this insurance matter, did you have occasion to give him legal advice ? A. I do not think 1 did. Q. Did you have occasion to give him no legal 1438 1439 1440 481 advice in relation to the application, or to the terms of the policy ? Try and give a direct answer to that, please ? A. I do not now recall that I did. Q. Did you examine, yourself, either of the poli- cies left at your office by Lowell Harding, or the other one, left there by Vosbury ? A. Yes, I did. Q. Did you examine that as an agent or as an attorney ? A. I don’t know as I could distinguish ; I read the policies and the applications. Q. Are you able to say whether you examined those policies as a lawyer or not ? A. I do not get the drift of your question, where you draw the dis- tinction. Q. I don’t draw any distinction; I ask you whether you examined those policies as a lawyer, in order to give advice as to their form, or whether you did not ? A. I examined them as left with me; I don’t know as it was as a lawyer or as an agent. Q. Did you examine those as a gentleman learned in the law for the purpose of ascertaining the form and sufficiency of those instruments ? A. I do not think I did specially ; I read the policies and applications. Q. Did you do it for the purpose of ascertain- ing as a lawyer, as a person who knows about such matters, the sufficiency of those policies—is it im- possible for you to answer the question ? A. Yes, I think I did. Q. Did you, as a lawyer and a person skilled in the law, find any fault as to the sufficiency of either one of those policies or the applications that preceded them ? A. Yes. Q. Which one ? A. The Connecticut Mutual Life Insurance Company policy. Q. To whom did you communicate that fault which you found with the form and sufficiency of this Connecticut Mutual Life Insurance policy? A. Not with the policy but with the application.. 144X 1442 1443 482 Q. Then you correct your answer? A. You included the application in your question, as I un- derstand it. Q Then I understand you to say now that you did not find fault with the form of the policy, but with the form of the application referred to in the policy, and which accompanied the policy and formed a part of it ? A. Yes. Q. (Paper handed witness.) That copy of the application is attached to the policy ? A. Yes. Q. And the fault that you found with this appli- cation which formed a part of the policy, and was at- tached to it, you observed the first time that you had an opportunity in this great press of business that you have spoken of, to examine them both % A. Yes. Q. To whom did you communicate the fault that you found with the policy ? A. Mr. Lowell Hard- ing, the agent, and to Colonel Dwight. Q. How soon after you received the policy did you examine it in connection with the application ? A. Not within a day or two after that; perhaps three or four days. Q. Is your memory clear and distinct as to the time? A. No, it is not. Q. What fault was it that you communicated to Lowell Harding, that you found with the applica- tion forming a part of the policy ? A. That the letter, or copy letter, which was attached to the application and made to form a part of it, as 1 understood, did not correctly state the insurance which Colonel then had, or previously had, upon his life. Q. Was that the only fault which you found with the Connecticut Mutual Life application ? A. That was the only thing which I now recollect. Q. Then the fault was not in the application it- self, but in the copy of the letter from Walton Dvyight, which was attached to the application A. Yes ; not a blank which was filled in, but in 1444 1445 1446 483 the letter which is attached, and which is marked “Copy” and dated “Binghamton, N. Y. August 12, 1878.” Q. You found fault with this letter on the ground that that letter of Mr. Walton Dwight did not state the fact as it existed ? A. Yes. Q. (Exhibit No. 95 shown witness.) Is the signa- ture of Walton Dwight per Neri Pine, in your handwriting? A. It is. Q. Did you deliver to Mr. Dwight yourself the letter for which this is a receipt ? A. I could not say. Q. You could not say whether you delivered it to him or whether you retained it yourself? A. I either delivered it to him or sent it to him, I did not retain it myself. Q. (Exhibit No. 100 shown witness.) I show you the check of $100 to the order of Neri Pine, No. 157, also check No. 156 and No. 159 and No. 158, as the checks are numbered, and ask whether you received those checks spoken of, collected the money upon them and indorsed the checks? A. Yes, I did ; the indorsements of those in my name are in my handwriting. Q. To whom did you deliver the currency re- ceived upon those checks \ A. My recollection is- that 1 deposited the checks in my own bank, the Susquehanna Bank, and that the bank credited, them to me. Q. Does your personal knowledge extend any further as to what was done with the proceeds that came to you from the deposits you made in the bank? A. Yes. Q. Have you any memorandum so you can give us the dates when you accounted to any body for those various sums or when you used them? A. I can give the dates when I used them, from memorandum I have here. I have all the checks I drew against them, I think. (Same produced.) Q. Can you tell me from whom you received the 1447 1448 1449 484 four checks from Mr. McDonald that are included in Exliibit 100—the four checks Mr. McDonald made payable to your order? A. Yes; I couldn’t tell whether [ got them from Mr. McDonald or whether Col. Dwight brought them to me. Q. Nor can you tell where you received those checks? A. No, I don’t think I could. Q. How long after the date of the various checks ? A. It was very soon afterwards. I don’t know as I could tell the exact date, but it was not long afterwards. Q. Within a week or so? A. Within three or four days, or a week at the outside. My recollec- tion is I received two of them at one time and two of them at another time ; $200 at one time and $200 at another time, that is my recollection of it. Q. Are the checks you have handed to me a por- tion of the proceeds of the checks of Mr. McDonald ? A. Yes. The counsel for the defendants then introduced in evidence the chocks referred to by the witness, as having been drawn by him against the deposit of checks received by him from Mr. McDonald ; they were marked Exhibits Nos. 101 to 105 inclusive. Q. Did you advance for Col. Dwight any moneys out of your own pocket for the payment of any of these insurance premiums ? A. I did not. Q. Where did you get the excess of the amount paid out by these checks over and above the amount received from Mr. McDonald ? A. There was a note of Col. Dwight discounted by the Sus- quehanna Bank and passed to my credit, which makes up the difference I believe. Q. And who was the indorser on that note ? A. I was the first indorser. Q. Was there any one behind you ? A. T. E. McDonald behind me. Q. (Paper handed witness.) I show you an ad- ditional check of $86.50 ; was that also paid for in- surance premiums ? A. Yes. 1450 1451 1452 485 The check last referred to was then introduced in evidence; it was marked Exhibit No. 106. Q. From whom did you receive the money on that check of $86.50 wherewith to pajr the pre- mium ? A. Walton Dwight, in currency. Q. When was the bank account opened upon which you drew these checks ? A. Very soon after I went to Binghamton. The first bank account I had there, and substantially the only one, I have ever had has been with this same Susquehanna Bank, and this was no separate account. Q. And is this check of August 28th, 1878, the first check that you drew for the payment of pre- mium? A. Yes; that was the first check that I gave for the payment of any premium on life in- surance. Q. You have no personal knowledge, have you, of the date when Mr. Harding himself received this policy? A. No, I have not. Q. After he left this Connecticut Mutual policy with you, did you and Mr. Harding have some ne- gotiations about the correctness or incorrectness of the application ? A. WTe had no negotiations ; no. I had a conversation with him in regard to it; the final conversation that he and I had upon the sub- ject was on the day on which he came and got the policy to return to the company. Q. Was there any correspondence between you and him, or any correspondence between him and the company, in the meantime, which was ex- hibited to you ? A. No, none whatever, except the telegram he had when he came after the policy. The telegram which he had in his hand when he came to me for the policy ; he had the telegram from the company; I couldn’t say whether he showed me the contents of it ; he had the paper folded up in his hand ; he either showed me the tele- gram or stated the contents to me. Q. Down to the time you handed back Mr. Hard- ing the policy, had the changes which had been 1453 1454 1455 486 suggested by you in regard to application been made? A. 1 could not say; I do not know of any. Q. Was there any premium ever paid upon that policy to your knowledge? A. No, not to my knowledge. Q. When was the note you received ofMr.Dwight discounted ? A. My recollection would be now on the 10th of September. Q. Was that ihe first time he had paid you any funds for the payment of any premiums ? A. No, sir. Q. How much had he paid you before that ? A. This $400 in McDonald’s checks had been before that time. Q. Any more than that? A. Yes; the $86.50, which paid the first check which you put in evi- dence. Q. Anything more than that ? A. I think that is all I can now recollect. Q. You say this note was discounted on the 10th of September ? A. That is my recollection. Q. Have you that note among your papers ; to whom was it surrendered? A. I couldn’t tell ; I do not now recollect. Q. Do you know who paid the note ? A. It was not paid ; it is my recollection that it was taken up and another one given. , Q. Do you know who finally paid it, if anybody ; do you know yourself? A. No, I don’t know, myself. Q. When Mr. Vosburv left with you the Mutual Life policy, did you at once examine it ? A. No. Q. How long before you did examine it? A. It was two or three days before I did examine it, and gave it any attention. I put it in the safe we had in my office. Q. Did you, after examination of that policy, find any fault with that policy ? A. No. Q. Did Mr. Dwight? A. Yes. 1456 1457 1458 487 Q. W hat was it ? A, That it was not such a phi- icy that he understood it was to be, and didn’t want that kind of a policy. Q. Did you communicate that to Mr. Vosbury ? A. My recollection is that I did not at first. Q. And the precise difficulty that Mr. Dwight found fault with was that it was payable in fifteen years ? A. That the premiums were payable in fifteen years, and the policy not payable until his death. Q. And that premiums being payable in fit een years and then stopping, made the yearly pay- ments larger than they would have been if payable during the life ? A. Yes. Q. Do you know, of your own knowledge, whether Mr. Dwight communicated with the gen* era! agents ot'the company as to that? A. I do not. Q. Did you ? A. I did not that I have any re- collection of now. Q. How soon after Mr. Dwight advised you that that was not such a policy as he wanted was it that you re-delivered the policy ? A. It was two or three days afterwards. I gave that back to Mr. Vosbury, and no premium was ever paid upon that, to my knowledge. Q. At the time you visited Mr. Dwight on the morning of the 15th of November, was it before he had got up ? A. Yes. Q. Have you in your possession the paper he signed that day ? A. Yes. (Produced.) That is the paper. The counsel for the defendants introduced the paper produced in evidence ; it being an answer in foreclosure suit brought by the superintendent of insurance ; it was marked Exhibit No. 107. Q. Was there any other paper signed by Walton 145$ 1460 1461 488 Dwight that clay, to your knowledge? A. 1 do not recollect of any other. Q. And accompanying this answer of Walton Dwight you sent at the same time the petition and affidavit for a discharge to be signed and verified by Mrs. Dwight ? A. 1 did. Q. Was it at this interview that he had the con- versation with you about the insurance premiums falling due ? A. Yes, it was. Q. I want you to give with precision, as near as your recollection will serveyou, the entire conversa- tion between you and Mr. Dwight in relation to his life insurance premiums, that you have spoken of in your direct-examination? A. The first thing said with regard to it was my calling his attention to a letter which I had from Mr. Batchelder, which I received that morning, with the premiums—I read the letter to him ; then I said to him substantially, that it was necessary that arrangements be made- very soon to meet those premiums as they were now nearly due. He replied that he* had been thinking of that before, and was going to make ar- rangements with Mr. Dusenbury, his father in-law, George, I think he called him—to get the money from him to pay them, and he says, ‘*1 think lie will be over here to-morrow forenoon, Saturday, and if anything should happen that he should not come, I think you had better go over there in the afternoon and see him in regard to it, and if lie does not come here, you come up and I will tell you further in regard to it. If you go over on Saturday—if you can perfect an arrangement with him at once, he can give you drafts on New-York and then you could go to New-York on Sunday night; if you it then you can have him come over on Monday and we wdll iix it, and then you can go down on Monday night and that will still be in time.” I said to him that I would make my arrangements so as to go over on Satur- day, if necessary. It was left there substantially^ 1462 1463 1464 489 Q. Is that all the conversation that you had with Mr. Dwight on the subject ? A. Substantially all. Q. Was it in that conversation stated or called to Mr. Dwight’s attention the day when the quar- terly premiums would be payable ? A. I think he mentioned that himself. Q. What day did he say? A. It was the 19th of November—the first. Q. At that time had you any funds in your hands belonging to Mr. Dwight to make any further payment on the premiums? A. No, not of any amount; my recollection is that there Avas a balance of five or six dollars in my hands, but nothing of any amount. Q. Then, according to your knowledge all the money he had in the world to meet the quarterly payments coming due for premiums to keep the policies in force on the Tuesday following, was the sum of five or six dollars? A. Yes, to my knowl- edge; all that I had any knowledge of. Q. Did you, of your own knowledge, know of any agreement whatever, with Mr. Dusenbury to advance one single cent of the premiums coming- due? A. I did not. Q. When did you first hear of Mr. Dwight’s death ? A. The morning after he died. Q. What time in the morning? A. When I got up ; it was half-past six o’clock, perhaps. Q. Did it surprise you ? A. It did very much indeed. Q. Then I infer you saw nothing in his appear- ance the day before when you saw him, that indi- cated any appearance of approaching death ? A. No, not immediate death, Q. You have stated something in regard to your connection with the bankruptcy proceedings; was not the prosecution of Mr. Dwight in bankruptcy a friendly proceeding? A. Yes, on behalf of the creditors, for the express purpose of enabling him to obtain a discharge of his debts. 1465 1466 1467 490 Q. Wasn’t the prosecution of Mrs. Dwight also a friendly proceeding designed to the same end? A. A voluntary proceeding on the part of Airs. Dwight; it; was a petition tiled by Mrs. Dwight herself; that was done for the same purpose—of obtaining a discharge for Airs. Dwight. I acted as attorney for Airs. Dwight and Mr. Dwight in mak- ing the application for a discharge. Q. (Paper handed witness.) I show you Exhibit number 21, Germania Life Insurance Company ap- plication, and ask you whether the signature to the certificate of “Friend” is yours? A. Yes, that was filled out in my office, I presume, although I have no recollection about it. Q. Have any recollection as to whether the remaining part of the application was filled out be- fore you filled this, or whether it was a blank ? A, I have no distinct recollection on l he subject. Q. Have you any distinct recollection whether, you read the entire application at the time you signed the certificate ? A. I have no recollection on the subject at all. . , Q. Have you any memorandum here as to the various proceedings in bankruptcy? A. No; X have copies of many of the papers here, my office copies I was subpoenaed to produce. Q. Can give me the date when you filed or registered your brief on the question of the di/3* charge of All*. Dwight? A. I could not, from any memorandum here 6r at home—I don’t think I could. The brief I believe is here, but there is no memorandum on it enabling me to fix the precise date wffien it went to the Register. (Paper pro- duced by witness.) Q. Was it on or about the 13th of July that you sent your brief ? A. It was not far from that time • it would be my impression that it wras a few days later rather than earlier. Air. Chapman wras coun- sel with me in the case; and joined with me some- what in making the brief. .. ; . ■ ■■/ ; v :j . n.rj tJ 1 1468 1409 1470 491 Q. And it is signed by him, is it not? A. The endorsement of his name is in my writing. Norman Dwight, called as a witness on behalf of the plaintiffs in rebuttal, and sworn, testified as follows: Examined by Mr. Newton : I reside in Cowdersport, Potter Count}7, Penn- sylvania ; I have lived in the State of New-York ; I removed to Pennsylvania about 1848 ; I know Walton Dwight; 1 knew him from his childhood to manhood ; he was a son of my brother. Q. Did he at any time live in Potter County or in that neighborhood ? A. He did from the time he was about fifteen or sixteen a considerable part of the time, until he went into the army at the age of twenty-five. Q. And in what capacity or position did he go % Objected to as immaterial. The Court overruled the objection, to which ruling the counsel for the defendants duly ex- cepted. A. He went out from Potter County as the cap- tain of a company ; when he first went there to Potter County he went there as a youngster in his father’s business, and remained in that business with his father’s directions until he was twenty- one. The business his father was in was lumbering, and that was the capacity he acted in up to then, and from that time his principal business was in the same direction with his father. Mr. Larocque.—This we object to, that it is im- material and incompetent to say what direction a man’s business was in, and we say he should de- 1471 1472 1473 492 scribe liis business, if it is important to know what liis business is. The Court.—He may briefly describe the busi- ness. And the defendant excepted. It was the same kind of business his father was in, and part of the time on his own responsibility ; he bought and sold, and moved down the river by the floods in the spring, together with his father, as I stated before, large amounts of lumber up to the time of the breaking out of the war. Q. What was his health during those years ; state whether he was sick % Objected to as incompetent. The Court overruled the objection, to which ruling the counsel for the defendants duly ex- cepted. A. His health was good, and I never saw him sick in bed during my acquaintance at any time. Q. Hid you ever see him spit blood % A. No ; I have no particular memory of any special occasion at anytime, but I think I have heard him during his life, cough. After he went to the army, he re- turned to Potter County. He was in that vicinity a large part of the time until he was married, which was not very long. He returned from the army in 1865, or rather in the last portion of the year of 1864, and in the winter of 1865 he was there again. Q. What was his health then ; state whether he was sick or not then ? A. Not at all ; I never saw him sick. Q. Describe his personal appearance at that time, after coming from the army ? A. Well and healthy. Q. After that, did you see him \ A. After lie was married and left that region and located at Williamsport, I did not see him only occasionally.. 1474 1475 1476 493 I saw him after that when he came to m37 place, and in that vicinity, as I met with him at different times, and also after he returned to Binghamton. While he was living at Williamsport I saw him once in two or three or six months ; I never saw him sick at any time from the time he was a child ; I never saw him sick in my life. Q. And did you at any of those times see him spit blood? A. No. Q. Did you know of his going to Canada and of his Canada operations ? A. I knew from the man that surveyed his Canada lands. Objected to as hearsay, and motion made on the part of defendants to strike (he answer out. The Court denied the motion, to which ruling the counsel for the defendants duly excepted. Q. You heard of his going ? Same objection, ruling and exception. A. I remember of seeing him soon after that; his condition of health after that was good. Oross-examination by Mr. Russell; Q. Haven’t you said since you have been here at this term of Court that there was no doubt about his having had hemorrhages? A. No, I should think not. Q. Why is it j7ou are not sure? A. I am so sure I have not stated any such thing to any per- son to my recollection. I said I never heard of it until after he was dead, to parties. Q. Haven’t you said, as a matter of public no- toriety, that he had had hemorrhages ? A. No, I have not. Q. In the presence of any one ? A. I should .think Iliad not in anjT way. 1477 1478 1479 494 Q. You should think so? A. I am certain I have not. Q. And did you use the expression “I shonld think” because you were not sure? A. No. Q. The counsel has spoken about Mr. Dwight’s being in Canada; have you any knowledge as to how many times Mr. Dwight went to Canada ? A. Only from his statements. I know nothing else; I have no personal knowledge of it; I was not there with him. I reside now in Potter County, in Cow- dersport, the county seat; that is 150 miles from Binghamton ; from Williamsport, I should think it was from 175 to 180 miles, perhaps a little over. I was not at Williamsport at any time during Mr. Dwight’s stay there. Q. Was he at Cowdersport at any time while you lived there? A. Yes, quite frequently; I said he was there from two to three months or six months; and when he lived at Binghamton I was there frequently; I should think about half a dozen times during the year he lived there. Q. Was he at Cowdersport at any time while he lived at Binghamton ? A. Yes, several times, I can’t tell the number. He was married, I should think as near as I can remember, about 1866 or 1867. I came here on Monday night, a week ago last Monday night, and I have been here since. I am not one of the persons named in the will as a legatee; my wife is not, either, but my name ap- pears in the will, though—my name appears in the will as a trustee for Orson Dwight, and for my sis- ter and family. Re-direct-examination by Mr. Newton : Walton Dwight on his first trip went down there with me to Potter County, Pennsylvania, as an agent or under his father’s direction; while he lived there with his father [until his majority he lived right in my sight all hisAife. 1480 1481 1482 495 Q. And thus in sight until he went into the army? A. No; after he went to Potters County, after about the year 1848, he was not there only a part of the time in my family, in my immediate notice and in the neighborhood ; at different times he and his father’s family, and his father, while there and in business, thus connected with the business, made it their home with me a portion of the time, at my place, after I had moved to the west 1483 Henry T. Reynolds, called as a witness on be- half of the plaintiffs in rebuttal, and sworn, testi- fied as follows : Examined by Mr. Newton : My post office is Brookland, Potter county, Penn- sylvania ; I knew Walton Dwight; 1 was acquainted with him ; I met him first about 1855, in the town of Hebron, Potter county, Pennsylvania ; from that time on and till he went to the army, we were nearly all the while together, lumbering; I was at work for his father before he came there, and after he came there. I steadily staid along with, them and went with him after he went for himself. We were taking pine forests and converting, them into logs and putting them into the stream and taking some to Portville in this State ; vve commenced rafting after we got through stocking in the winter at the upper mills, and had hauled the lumber from the mills to the banks, and I went with him on the rafts from April until we found ourselves at Paducah, Kentucky ; and this life continued until the war broke out. Once in a while an exceptional part of the winter and part of the summers we would not be together, for I helped carry on a farm during the summer season. I saw him in the army ; 1484 1485 496 I was in the same regiment ; we both went together on the 6th day ot‘ August, 1862 ; we were mustered in on the 16tli of August; we went a lew days earlier to Harrisburgh. I remained in the army until some time in March, 1864 ; the regiment was the 149th Pennsylvania Volunteers ; it was known 1 as ‘‘The Second Buck Tails.” For twenty months of the time we were in the army, or nearly the whole of the time, I was in command of the com- pail}' he took out. Q. How closely were you with him in the army ? A. We were together constantly, except at the battle of Gettysburgh, until the lltli of the next February. From the 9th of July until tlie lltli of the next February, we were not much together ; otherwise we were. During the time before we went to the army, I often lodged with him, often ; all the while after we started our rafts we were together constantly ; while at home I was not lodg- ing with him. I should say we were about 80 rods apart where he made it his home—when we were both at home—from my father’s house. In the army we did not often occupy the same apartments. Q. After the return after the battle of Gettys- burgh \ A. The llth of February next I returned to the command, and remained until we both re- signed and came home in 1864 ; he followed me ; on March 13th, 1864, my resignation was accepted. After returning from the army I went with him to Elk county, Pennsylvania ; we remained together there one winter—the winter of 1864-5 ; he was only to the camp then occasionally. He made his home at the headquarters, at the Fallon House at Lockhaven. He would come and stay at the lumber camp for a week or ten days, and be away three or four weeks, and while in camp, when he came there, we were lodging together. After we left there we continued our acquaintance ; I was with him every few months ; I saw him at Williamsport. Those nterviews continued until he left Williamsport. I 1486 1487 1488 497 saw him at Williamsport all the way through the winters and springs of 1865 and 1866, and 1866 and 1867, and met him in AVilliamsport after he left there in October, 1868. That is the last time I saw him in our State, except at the county seat when he came visiting still later. In Williamsport I saw him at the Herdic House, now the Park Hotel—in both winters I have mentioned. I remember that I was there in the month of March, 1867 ; at that time I should say I was there ten or twelve days, staying at the City Hotel; I saw Mr. Dwight fre- quently during that time, at the Herdic House. One day he walked down to the corner of the park with me; that is the most 1 saw him out doors at that time. I didn’t see him again until, I think, in October, I saw him at Williamsport, but that was a casual meeting ; that was after he left Williams- port as his residence ; I saw him once in Cowders- port after that; I can’t fix the year positively, but I should think in 1871 or 1872. Q. Now, at the time you mention in March, 1867, describe his condition of health at that time in Williamsport % Objected to on the ground that the witness is not competent to state. The Court overruled the objection, to which ruling the counsel for the defendants duly excepted. A. He was suffering from a bad cold at the time I saw him there. The answer of the witness was ob- jected to as incompetent, and a motion made that it be stricken out. The Court overruled the objection, and denied the motion, to which ruling the counsel for the defendants duly excepted. 1489 1490, 1491 498 Q. Did you observe anything else in regard to his health than the fact that lie was suffering from a cold? A. No. Q. I wish you to tell me what the condition as to health or otherwise Mr. Dwight was in during all your acquaintance with him ? Objected to on the ground that the witness is not competent to characterize it in this wholesale way. The Court overruled the objection, to which ruling the counsel for the defendants duly ex- cepted. A. Very good. Q. Did you ever know him to be sick ? A. I have ; I could not fix the exact dates. Mr. Dwight was sick for a short time in Cowdersport, at the house of Mrs. Ives, for a few days. I saw him sick about the house. 1 also saw him sick in Washington City ; for a couple of he was not about. That was during the time he was in the army. Q. Outside of that, what sickness did you ever know of his having at any time or any where ? Do you know of his having any sickness? A. I do not; 1 never saw him spit blood at any time, any where ; he had a heavy voice ; I never knew it when it was not ; in common conversation, it was heavy, loud and strong. Q. In the army what was it ? A. We sometimes thought it pretty loud. Cross-examination by Mr. Russell; Q. Does you recollection extend so far as to say whether you cut any hemlock lumber? A. We didn’t have any hemlock lumber, or handle any spruce ; we handled pine—cut it up into planks or boards—I remember that. 1492 1493 1494 499 Q. I)o you remember going, to war ? A. Well,, I have a slight recollection of it ; I went in 1862, in the same regiment with Mr. Dwight; I resigned on the 13th of March, and he followed soon after. Q. That was shortly before the battle of the Wil- derness began ? A. 1 so recollect it to be. Q. You didn’t go back to the army, either of you ? A. No. . Q. The camp of which you speak of being in, in the fall and winter, was not the camp of the soldiers of the army of the Potomac? A. No, it was a camp of lumbermen in the woods, where he was trying to make money. Q. I would like to have you tell me particularly when you were in Williamsport, in 1866 or 1867? A. I was there in the spring of 1866 and 1867, and in the spring of 1865. Q. Take the year 1867, I want to know particu- larly when you were there? A. It was in the month of March, somewhere from the 10th to the 20t . Q. Your entire visit was included in these days? A. No; I wouldn’t say it was ; I don’t recollect exactly. Q. Is it the best of your recollection it was? A. Yes ; I forget how long it took me to settle up ray accounts; 1 was boarding at one hotel and he at another ; I couldn’t say exactly; but I would say the hotels were a mile and a half apart; I was not at his rooms during any of the time when he was con lined to his room. Q. Have you now a present recollection of that single visit you made to his room during the time you were there then? A. No, I didn’t go to his room. Q. Have you a recollection of a single interview you had with him at that time ? A. Yes, Q. Can you state where that interview was? A. In the reading room of the hotel. Q. What was the hourof the day ? A. I wouldn’t 1495 1496 i4or 500 say whether it was forenoon or afternoon ; 1 know Mr. Smith went up with me ; I was there and saw him several times while I was there. Q. How long an interview was that ? A. I would say maybe fifteen or twenty minutes. Q. Do you remember any other interview you had with him ? A. Only just speaking to him. I saw him there three or four times while I was down. Q. Do you remember any other interview? A. No, I don’t remember any other that I could fix positively. Q. You have no recollection now in your mind of any other time when you saw him, but think that you saw him three or four times ? A. Oh, I saw him other times, but I couldn’t fix the exact time; my hotel, I say, was the City Hotel ; I re- gistered my name the day I got there, certainly. 1496 1499 Henry C. Hermans, called as a witness on be- half of the plaintiffs in rebuttal, and sworn, testified as follows: Examined by Mr. Newton : I reside in Binghamton ; have resided in Bing- hamton about eleven years—ten to eleven years have been engaged in insurance. I was acquainted with Walton Dwight during those years. For about a year I lived very near liis residence ; it was the first year 1 went to Binghamton to live—April, about ten years ago. I saw' Mr. Dwight frequently ; when I was at home I saw him every day and some- times two or three times a day. He was then residing in Dwightville. My recollection is he resided in a house at the corner of Front and Dickinson streets; that house is north from the hotel, I think, di- rectly north. It is the next house, I think, to the hotel building. After residing there, he next re- 1500 Risk approved, Dr. Charles Bernacki. It is requested that nothing be written on this side. Germania Life Insurance Company, Number 287 Broadway, New-York. Application of for insurance on the life of Walton Dwight. Resi- dence, Windsor, N. Y. Number of policy, 69096 ; amount, $15000 ; One- fourth premium, $131.55. 13ue 28th Nov., Feb., May and Aug. Term of policy, Life. Date of policy, August 28, 1878. Age, 41 years. Agent, H. C. Hermans. 501 sided in the Dwight block. While lie was in the Dwight block I was often there—not every day, bat I dropped in there quite frequently. Q. (Exhibit No. 21 shown witness.) In whose handwriting was that, application filled ? A. I filled the application proper. Q. {By the Court.) Did you fill the medical ex- aminers statement. A. No, the medical examiner usually filled the statement. Q. Not “ usually ”—that is not proper. Q. {By Mr. Neioton.) Who was the medical ex- aminer ? A. I don’t remember; the medical examiner don’t appear on the application. I sent a medical examination with this application at the same time I sent that paper. Q. (Copy medical examination shown witness.) In whose handwriting is the filling in of that copy ? A. I did not fill in the original. I made a copy of the medical examination that I sent with the appli- cation. That is the copy I hold in my hands. Mr. Pine’s statement contained there is in his hand- writing. “ R. H. Root” at the top of that appli- catio ni not in my handwriting. The “ question to be answered by the agent”—“H. C. Herman s Agent ”—is in my handwriting. All purporting to be signed by Walton Dwight in the application is in my handwriting; none of the endorsement is in my handwriting; I do not know in whose hand- writing it is. None of the blanks in the endorse- ment were filled at the time I sent this application to the defendant. The counsel for the plaintiffs here read in evi- dence the endorsements upon the application. I am acquainted with the handwriting of Walton Dwight. Q. The answer to question 3d “Amount to be insured,” how was that written when you sent the policy to the defendant ? A. It was written ten thousand dollars; in the first place in figures and then written out in full. I wrote the figures and 1501 1502 1503 502 the words. There lias been an interlineation upon that application since it left my hands. It looks like “ or-lifte ” — is all I can see of it. It is in pencil, nor in my handwriting. Q. Is it in the handwriting of Walton Dwight? A. f should say not. This is the first time I ever saw that interlineation. I sent an application for ten thousand dollars and they sent a policy for fifteen thousand. Subsequent to sending this ap- plication I received a policy from the Germania Life Insurance Company. Q. (Paper shown witness.) I show you a paper and ask whether it came in that envelope? A. This was the policy pocket in which it came, and was received by me at Binghamton. The writing upon that pocket was thereat the time I received it from the mail as it is now; it is somewhat torn. There has nothing been written on it. The envelope referred to by the witness was introduced in evidence. It was marked Exhibit N. Q. (Paper handed witness.) Upon these proofs of loss, presented by the defendant (Exhibit B), I call the attention of the witness to the agent’s state- ment under date of January 16th, 1879; in wdiose handwriting is “ H. C. Hermans” before the word “Agent”? A. My own; 1 made out that state- ment. Q. (Paper handed witness.) State whether that paper is a copy of the medical examiner’s report which you enclosed to the company as part of the application, and with it ? A. It is. (Marked [KJ for identification.) . ;Q. At the time you made this application, had you any conversation with Colonel Dwight with cregard , to insurance by him in the Connecticut 1504 1505 loOfi 503 Mutual Company and in the Mutual Life Com- pany ? Mr. Larocque.—Will your Honor allow' us to first cross-examine the witness in regard to Ins re- lations with this company, before this testimony is admitted ? The Court.—The defendant may examine on the status. Cross-examination by Mr. Larocque : In the year 1878 I was the agent in Binghamton of the Plienix Life Insurance Company. Q. In the month of August, 1878, you were em- ployed by Col. Dwight to try and obtain $100,000 insurance upon his life, were you not? A. He catne to me for that purpose ? • Q. Were or were you not employed by Col. Dwight for the purpose of obtaining, if possible, insurance to the amount of $100,000 upon his life? A. I don’t know that I could say that I was em- ployed or not—as I understand the word “employed by him ” I was not. I can’t say that I was asked by him to place $100,000 of insurance or thereabouts on his life. (Paper handed witness.) The body and signature of that paper are in my handwriting. The letter referred to was introduced in evidence and marked Exhibit 108. I suppose the company I refer to, in this letter was the Phenix Life Insurance Company, and that was the one company for which I held an appointment as agent at that time ; the person re- ferred to in this letter was Col. Dwight. Q. Is it not true that Col. Dwight wanted to ob- tain about one hundred thousand dollars on his life and had employed you or spoken to you on the subject ? A. Well, I must have understood that *he wanted to obtain that large insurance—that was 'my understanding at the time. Q. Was this letter the first communication you 1307 1508 1509 504 ever had with the Germania Life Insurance Com- pany orally or written in regard to this question of an insurance on the life of Col. Dwight? A. I couldn’t say positively. I cannot recall any other. I could not say when I received the answer to that letter. I think I received an answer—1 think Mr. Chapman has it. Q. (Paper handed witness.) I show you a tele- graphic dispatch dated Binghamton, New York, 20th August, 1878, signed “ H. C. Hermans, In- surance Agent,” addressed to the Germania Life Insurance Company, and ask you if that is a dis- patch you sent on that date ? A. I don’t remem- ber that now. I don’t remember that I sent any dispatch. Q. (Paper handed witness.) I show you the let- ter produced by Mr. Chapman in answer to your suggestion that you handed your correspondence to him, and ask you if that is the letter to which you refer as an answer to the letter of the 16th? I should say it was. The letter referred to was introduced in evidence, and was marked Exhibit 109. Q. (Paper handed witness.) Will you look again at the telegraphic dispatch which I show you, and say whether you can identify the dispatch as the one referred to ? A. I have no recollection of send- ing the dispatch. Q. WTiat dispatch does the letter of the 20th, acknowledging the receipt of the letter of the 16tli and telegram of the 20th, refer to ? A. I don’t know of any other than that; I don’t remember that there was any other dispatch, and I don’t re- member this—I don’t remember sending a dispatch, at that time—that is all I can say. Q. With, now, your letter of the 16th, and the reply of Mr. Doremus of the 20th, referring to the letter of the 1.6th and the dispatch of the 20th, are 1510 1511 1512 505 you not able to say whether or not you sent a dis- patch of the character of the one shown you ? A. Well, I can’t remember sending a dispatch. Q. (Paper handed witness.) I show you another telegraphic dispatch, addressed by H. C. Her- mans to the Germania Life Insurance Company, under date of August 22, 1878,and ask you whether or not that is a dispatch which you sent on that day to the Germania Life Insurance Company ? A. I can’t remember sending a dispatch now ; I don’t remember whether I sent a dispatch of that kind or not. Q. You don’t remember whether you sent such a dispatch or not? A. No. Q. (Paper handed witness.) I show you a let- ter dated Binghamton, N. Y., August 22, 1878, ad- dressed to C. Doremus, Esq., and signed “ H. C. Hermans”—in whose handwriting is that letter? A. It is mine. The letter last above referred to by the witness was then introduced in evidence. It was marked Exhibit 110. Q. Now, Mr. Hermans did you send the applica- tion Exhibit No. 21 enclosed with that letter? A. I suppose I did. Q. (Exhibit No. 110 handed witness.) Endeavor to refresh your recollection by reading your letter, and see whether or not are now able to say whether you did or not ? A. I think I did. Q. Is that your recollection that you did ? A. From reading the letter I should say the applica- tion accompanied it, that is all. Q. Have you no recollection on the subject. A. No further than that. Q. Have you anything in your mind which sug- gests that in this case you departed from your habit and wrote a statement which was not true? A. I have not, sir. 1513 1514 1515 506 Q. (Paper handed witness.) I show you a card of the Merchants’ National Bank of Binghamton, N. Y., and ask whether that is a card which you sent with the application enclosed with tlie letter to the Germania Life Insurance Company? A. I don’t remember sending the card. Q. Have you any recollection on the subject. A. I have not. Q. Refer to your letter again and see what you said there on the subject of this bank as a proper one to receive the premium for the company, and then see whether you recollect you sent the card t A. I have no recollection about the card. Q. You do recollect the fact of your suggesting the Merchants’ National Bank of Binghamton as a proper person and agent for the receipt of a policy and the collection of a premium ? A. I only know from that letter, that is all. Q. Look at that letter, have you any doubt you suggested that bank as being a proper entity to re- ceive the premium for the companj7-. A. I have no doubt of it. Q. (Paper handed witness.) I show you another letter, dated 28th of August, addressed to C. Dor- emus, Esq., and signed H. C. Hermans; do you recollect that as a letter writ ten by you ? A. Yes. The letter last above referred to by the witness was then introduced in evidence. It was marked Exhibit 111. Q. (Paper handed witness.) I show you Exhibit “A,” being the Germania policy on the life of Walton Dwight, and ask you if that policy subse- quently came into your hands ? A. I received a policy for this amount, and I suppose this is the one. Q. And when it came into your hands, say whether or not it was included in the envelope 1516 1517 1518 507 which has been put in on your examination in chief and marked Exhibit “ jNt ” ? A. .1 think it was, fc. Q.. Is Exhibit “ N. ” anything more than the or- dinary printed form.of envelope which insurance companies are in the habit of inclosing policies in ? A. It is a policy pocket. u Q. And the universal custom is, when policies are made out, to enclose them in such a pocket ? A. JNTot universally., Q. Well, generally ? A. It is quite general. Q. In this particular case, you mean to have us understand that you kept the envelope and deliv- ered the policy, or that,you delivered the policy and envelope? A. I suppose I delivered it in the pocket. Q. And the words which the learned counsel on the other side emphasized so strongly, “ Please notify the company of any change of your address,” do you understand to be intended as a notification to you or to the person insured ? Objected to. The Court sustained the objection, to which ruling the counsel for the defendants duly excepted. Q. Are you or not familiar with the provisions of law which requires the life insurance company to give notice to the insured a certain period of time before the premium falls due? A. There is such a law in this State. Q. According to your experience and knowledge derived in the business of broker or agent in life insurance, is it or not the custom to address a notice of this description to the. assured under a policy and to print such notice on the back of the paper sent him? A. I think it is the custom to send such notice since that Jaw was passed. Q. When did that law pass, according to your recollection? A. I don’t know exactly, but about two years Ago, I think; : - ; r. ' 1519 1520 1521 508 Q. Your attention has been called to something to which the attention of the Court was called when I read this policy, and that is that the words “ or fifteen” are written in pencil over “ten thousand the policy you received was a policy for fifteen thousand dollars, wasn’t it? A. It was. Q. Do you understand that there is any connec- tion between your letter of August 28th, addressed to C. Dorenms, Exhibit 111, and the change in the amount of the policy ? Objected to ; first, on the ground that it has nothing to do with this special question of agency, and second, that it is incompetent and immaterial what he un- derstands—the facts are in evidence. The Court sustained the objection, to which ruling the counsel for the defendants duly excepted. Direct-examination resumed: Q. State whether Mr. Dwight ever came to you to employ you to get life insurance for him ? Objected to, on the ground that the witness is incompetent to state whether or not Mr. Dwight came to him for that purpose. The Court overruled the ob- tion, to which ruling the counsel for the defendants duly excepted. A. Not at first., Q. Prom whom did you receive your pay for the services in procuring the insurance in question ? Objected to, on the ground that it calls for the conclusion of the witness as to whom he received his pay for his services from, when, according to the correspond- ence between the witness and the com- 1522 1523 1524 509 pany, he only applied Tor a brokerage, which is in fact a reduction of the pre- mium, which might as well be paid to the assured himself as to anybody acting as his agent. The Court overruled the objection, to which ruling the counsel for the defendants duly excepted. A. The Germania Life Insurance Company ; I received it in a draft or check—from the secretary, I believe. Mr. Newton.—I renew my question as to what was said about those two companies. To Mr. Larocque.—An old policy in the Germania wras surrendered and the surrender value of it amounted to a little more than the premium. Q. Was or was not the amount you received a percentage on the particular premium charged in this particular policy ? A. Yes, it was. Q. And was it paid as and for a brokerage in connection with that transaction ■? A. It was a brokerage or commission, I don’t know which you would call it. Q. What did you call it in your letter in which you introduced the subject to the Germania Life Insurance Company ? Objected to on the ground that the letter is the best evidence. The Court sus- tained the objection, to which ruling the counsel for the defendants duly ex- cepted. By Mr. Newton: Q. State whether at the time you filled in this application to the Germania Life Insurance Com- 1525 1526 1527 510- party, Mr. Dwight made 'any statement to you relative to any policy issued by the Connecticut Mutual, and the policy issued by the Mutual Life of New-York ? Objected to as incompetent, on the ground that upon the documentary evi- dence in the case, and the admissions of the witness on the stand, he was in no sense an agent for the defendants, but was acting in the transaction as the1 agent or broker of the plaintiff s testa- tor, and that the evidence is immaterial., The additional objection was made that counsel must not indicate the subject to tlie witness of which he desires him to> speak, but must ask more general ques- tions in regard to what lie said about other insurance. The Court overruled, the objection, to which ruling the coun- . l sel for the defendants duly excepted, t ■> The Court.—The vvitness will be careful not to suggest in any manner ? A. Yes. | . Q. State what he stated in reference to those policies ? Same objection, ruling and exception. A. He stated that a policy had been received in each of those companies. During the last sickness of Mr. Dwight I saw him ; I watched with him on two occasions ; I was with him two nights and part of one day. I was with him the night of the 14th of November, 1878, and about a week before that. I cannot give the date of the first night. It was about a week before that. Iam not certain I saw him at any other time than the two nights I sat up with him, except the last day that he lived. On the first night on 1528 1.529 1530 511 which I sat up with him—I think 1 went up to the Spaulding House about nine o’clock in the evening, and found Mr. Dwight in bed, and staid with him during the night. Q. During the first night in question state whether he was in bed all night or not? A. He was. Q. Do you know whether he was gotten up for any purpose the first night ? A. lam not certain but I got him up for a moment. Q. What did you do for him the first evening, if anything? A. Don’t remember doing anything specially, more than to give him what he asked for, sitting by his bed. Q. Do you remember what you gave ? Have you any recollection about that? A. Yes. Q. What was it ? A. That lie asked for water. Q. Anything else that you did for him? A. The first night he slept a portion of the latter part of the night, perhaps an hour or two, during the latter part of the night; there was very little to be done for him during that night. Q. Do you remember about how often you gave him water ? A. I should say half a dozen times. Q. Go on and state about his condition ? A. He didn’t sleep until towards morning. Q. Describe any further what you saw of him that night ? A. I saw him in bed when I went there ; he remained in bed during the night. Q. Can you say anything more in regard to the his- tory of that night with him, and if so, state it ? A. He did not sleep until nearly morning; and I don’t know that I can explain his condition any other way than I have attempted to do. Q. About how long did he sleep then, at a time ? A. He would sleep a short time and rouse up sud- denly ; he didn’t sleep long at a time; I should judge towards morning he slep»t an hour perhaps. Q. During the evening or the morning that you were there, did he have any medical attendance ? 1531 1533 1533 512 A. The doctor was in during the evening—Dr. Dan Burr. Q. Do you know whether any medicine or pre- scription of any kind was administered to him and if so, what ? I ask for what you know ? A. I was not in his bedroom at the time. It was after I came there that the doctor came. I have forgotten how long after I arrived, but it was during the time that I was there; that is, probably within half an hour after I came there. Q. Without stating what he complained of, I would ask you whether during the night he made complaint? Objected to as incompetent, irrelevant and immaterial. The Court overruled the objection, to which ruling the coun- sel for the defendants duly excepted. A. He did. Q. Mr. Hermans, was Mrs. Dwight there that night any portion of the night? A. Yes ; she left, I should say about ten o’clock. When I went there, there was no one in the room but Mrs. Dwight, if I remember. Q. Upon her retiring, did she state to you where you could find her if wanted during the night ? Objected to as incompetent and as calling for hearsay evidence, and also as immaterial. The Court overruled the objection, to which ruling the counsel for t he defendants duly excepted. A. She did. Q. Where did she say you could find her ? Same objection, ruling and exception. A. She said her room was directly opposite from the door opening from the sitting room into the 1534 1535 1536 513 hall. I left in the morning after the first night’s .visit about nine o’clock; I think I staid to break- fast. Mrs. Dwight was there when I left. Q. Describe to the jury now how Mr. Dwight looked, in your own way—how he appeared that night ? A. His appearance was somewhat haggard, and I noticed the expression of his eye—his eyes looked as though he had slept but very little, he was somewhat thinner in flesh than when I saw him before, and changed in appearance. In giving him water I gave it from a goblet or glass. He was propped up in bed ; his head was elevated consid- erably all the time so far as I observed. Q. And in giving him water did you raise him any further than his then situation, or did he raise himself; state how that was? A. I can’t be cer- tain whether I raised him up to drink or not. Q. Do you know whether he ate anything that night? A. My recollection is, that I gave him that night a raw oyster; he told me where there were some. Q. State whether he ate that oyster ? A. He ate one, and very soon threw it up. Q. Did he eat anything else that night? A. I think I gave him a Malaga grape, and perhaps two; I can’t remember whether he retained that or not. Q. In his appearance to you as you watched with him, state whether he appeared to be sick or not ? Objected to as incompetent, and also on the ground that the witness is not shown to be competent to express an opinion. The Court overruled the ob- jection, to which ruling the counsel for the defendants duly excepted. A. He did. Q. Pass to the next night—the 14th—about what time in the night did you reach him ? A. My re- 1537 1538 1539 514 collection is, it was between nine and ten o’clock; lean’t give the precise time. Mrs. Dwight and Dr. Dan Burr were there when I went there ; whether he was there when I got there, or came in afterwards, I don’t remember. Mr. Dwight, when I went there that night was in bed ; he remained in bed that night, all night, unless for a moment I got him up ; I can't recollect now whether he did or did not eat anything that night. About mid- night I had him up ; I gave him a bath and stimu- lant of some kind, bay ruin or brandy, I don’t know which. I bathed him all over and rubbed him. Q. Can you give any idea liow long you were en- gaged in that \ A. I couldn’t state exactly ; prob- ably from ten to fifteen minutes ; I rubbed him briskly with a towel; while rubbing him he com- plained of soreness across his stomach. That night he appeared to be weak ; he complained. Q. How did he show his weakness 1 A. He showed it in his looks ; he slept very little that night, if any. Q. Did you have conversation with him during the night? A. Yes; I should say his voice was not as strong as it was the night before I was with him, as compared with his usual voice it was not as vigorous. In the morning I left something after nine o’clock, I think it was ; I left for a little while ; I left there Mrs. Dwight and Mrs. Owen:; no, I think, however, that when I left in the morn- ing that Mrs. Dwight was the only one in the room. Q. That night had you any conversation with Mrs. Dwight upon her leaving relative to where she could be found ? A. I had. She told me where her room was; it was opposite the door opening into the hall from the front door. I saw Mr. Dwight again that day. He had asked me to come back. 1540 1541 1542 515 Q. For what ? Did he say ? Objected to as incompetent and imma- terial. The Court.—It is not necessary to state what he said. Q. Under an appointment with him that day did you come again % Same objection; the Court overruled the objection, to which ruling the counsel for the defendants duly excepted. A. I did, and found him in bed oh my return that day ; it was about eleven o’clock in the day- time ; I should say that I was with him from half to three-quarters of an hour ; I bathed him in stimulant, all over thoroughly ; I bathed him and after bathing him and rubbing him thoroughly, I assisted him to dress partly, and helped him out from the bedroom into the front room or parlor; he was in the bed when I bathed him, and got onfc by my taking hold of him and helping him. Q. Could he walk alone apparently ? Objected to on the ground that the witness is not shown to be competent to give an opinion on the subject. The Court overruled the objection, to which ruling the counsel for the defendants duly excepted. A. He walked by leaning on me; he walked slowly and evidently with effort; I assisted him out into the front room and into an easy chair or sick chair that was there, one that tipped back, and then I went and called the Spaulding House barber ; I placed him in a chair by assisting him to sit down ; he walked out with my assistance; I as- 154a 1544 1545 516 sisted him into a chair ; he had on two shirts and his drawers ; I am not certain whether he had on pants or not; I noticed his whiskers ; they were a little longer than usual; after that I saw his body. " Q. State what had been done to his whiskers ? A. I noticed the beard seemed to be a little shorter; the beard after his death, as I saw him, was about as he usually wore it, as I remember; I did not notice whether his hair had been cut or not ; the barber I I brought was named Hausman ; he was a white man ; he had a shop in the Spaulding House ; in the rear of the Spaulding House. Q. As I observed from one of these letters, you came up from New-York with Mr. Dwight; I ask you whether you saw him in New-York ? A. Yes; I know where in New-York the Germania Life Insurance office is ; I saw Walton Dwight there in the latter part of August, 1878, between the send- ing of this application and the receiving of this policy ; I know Mr. Doremus, the secretary, and saw him there that day ; Mr. Dwight was present, and also the medical examiner of the company ; their home examiner ; Mr. Dwight was examined there by the home examiner of the company; I was present at that examination ; I could not from the dates of these various applications that have been put in evidence, passing through my hands, state at what time they were signed ; I could not tell from their dates at what time the applications passed out of my hands. Q. About what length of time were you engaged infilling the applications completed by you. Objected to on the ground that the question is a confound question, and incompetent, and that he should be in- terrogated about each application, if he is to give evidence upon the subject at all. The Court overruled the objection, 1546 1547 1548 517 to which ruling the counsel for the de- fendants duly excepted. A. I should say from the time I wrote the first application until I wrote the last, it was two weeks or over; Mr. Dwight was present with me quite a good deal of the time. lie-cross-examination by Mr. Larocque : Q. You have stated that on the first evening you sat up with Col. Dwight you. administered an oys- ter; may I ask if that was under the physician’s directions! when he left, or Mr. Dwight’s direction ? A. Mr. Dwight’s request. Q. The doctor had not charged you to ad- minister the oyster? A. I have no recollection of it. Q. Did you repeat that experiment on the second night? A. I don’t remember that I did. Q. With the exception of one oyster and the Malaga grape, can you now recall anything that you administered to the patient on either of these occasions ? A. I have no recollection of giving anything but what I have mentioned. Q. What was the first application for life insur- ance on the life of Walton Dwight with which you had anything to do in any capacity, in the summer of 1878 ? A. My recollection is that it was my company, to the Phenix Life Insurance Com- pany. Q. That was dated the 15tli of August, wasn’t it ? A. I don’t remember now. Q. I understood you to say on your examination in chief that as to the first application, you went to Mr. Dwight about it? Is that Phoenix application the one you went to Mr. Dwight about? A. If that was the first one I did. Q. Now, after you had made out an application to your own company for him, didn’t he come to 1549 1550 1551 518 you and propose to you to make application to various other companies for him, for insurance amounting in the aggregate in the neighborhood of one hundred thousand dollars ? A. No, I don’t think he did. Q. Haven’t you so stated to me, and didn’t you so state to me in the town of Norwich, at the May Term of Court, when you were attending there as a witness? A. I have no recollection of it. Q. Did you, in point of fact, make applications to various companies for Dwight after the ap- plication in the Phoenix Mutual ? A. I did. Q. Did you make these applications of which you have spoken, at Mr. Dwight’s request ? A. Partly. Q. (Paper handed witness.) I show you Exhibit No. 38, application to the Brooklyn Life Insurance Company, to which the name H. C. Hermans is signed as witness—is that one of the applications you presented at Mr. Dwight’s request? A. I wrote that application. Q. Did you present it at Mr. Dwight’s request l That is your signature as witness ? A. Yes. Q. (Paper handed witness.) Look at Exhibit No. 20, application to the Globe Life Insurance Com- pany, and see if the signature, H. C. Hermans, is your signature to that application as witness? A. Is this the original ? Q. I so understand. A. I should say it was my signature. Q. (Paper handed witness.) I show you Exhibit No. 39, being an application to the Homoeopathic Mutual Insurance Company, and ask you if the signature, H. C. Hermans, as witness to that application is in your handwriting? A. It is. Q. (Paper handed witness.) I show you Exhibit No. 17, to the John Hancock Mutual Life Insur- ance Company, and ask you if the signature, H* C. Hermans, witness, to that application, is in your handwriting ? A. I should say it was. 1552 1553 1554 519 Q. (Paper handed witness.) I show yon applica- tion, Exhibit 26, being the application to the Home Life Insurance Company, and ask if that is your signature? A. That is my signature. Q. (Paper handed witness.) I show you Exhibit No. 43, being the application to the Knickerbocker Life Insurance Company, and ask if that is your signature as a witness to that application ? A. It is. Q. (Paper handed witness.) I show you Exhibit No. 37, being the application to the National Life Insurance Company of the United States of Ameri- ca, and ask you if you witnessed that application ? A. I did. Q. (Paper handed witness.) I show you Exhibit No. 46, the application to the Union Central Life Insurance Company, located at Cincinnati, Ohio, and ask if that is your signature ? A. It is. To Mr. Newton : I have no means of knowing at what time the John Hancock application left my hands ; I have no means of knowing on what precise date Walton Dwight signed the application to the John Hancock Company. Q. Is that true of all these other applications that have been shown you ? Objected to as incompetent, irrelevant and immaterial. The Court overruled the objection, to which ruling the coun- sel for the defendants duly excepted. . A. I have not. 0. And are all those applications tilled in in your handwriting, so far as Dwight’s statement is con- cerned ? A. They are all, so far as I remember. Q. You spoke of being in New-York at the time Mr. Dwight was down there ; did you, at a later 1555 1556 1557 520 day and before bis death, see Mr. Doremus ? A. I did. Q. And at that time did you have a conversation with Mr. Doremus ; when was it? A. It was some time in October, 1878. Q. What conversation had you with him relative to this policy, if any ? Objected to as incompetent, irrelevant and immaterial, and also on the ground that the question calls for hearsay evi- dence. The Court overruled the objec- tion, to which ruling the counsel for the defendants duly excepted. A. I asked him in regard to renewals that were coming due, or the renewal, and asked what I should do, and he told me to collect the premium and deduct my commission and send the balance. The counsel for the defendants moved to strike that evidence out as incompe- tent and immaterial; that the declara- tions of Mr. Doremus were not declara- tions made in the course of business relating in any way to the validity of this policy and not a part of the res gestae; that the declarations of Mr. Her- mans are liable to the same objection, and moved in regard to each, what Mr. Doremus and what Mr. Hermans said, separately, to strike them out for these reasons. The Court.—I assume that the offer is on the question of agency ? Mr. Newton.—Yes, sir. The Court.—I will allow it to stand. * . ' < *'/ 1 The counsel for the defendants excepted. 1558 1559 1560 521 (Application to the Globe Insurance Company, Exhibit No. 20, shown witness.) That signature is not as I usually write it ; I usually connect the "“h” and “c”; I should think it was mine, though, but I can’t say positive. Re-cross examination by Mr. Larocque: Q. (Paper handed witness.) Is the filling up of the body ot' this Exhibit No. 46 (application to Union Central) in your handwriting ? A. The fill- ing in of the application proper down to there (in- dicating) is my writing. Q. That is in the application proper, which is signed Walton Dwight, and which is under the heading (Subdivision “ part 1 ”) ? A. Yes, sir. Q. (Paper handed witness.) I show you Exhibit 38 ; look at the body of that and say whether the filling up there is in your handwriting ? A. It is. Q. (Paper handed witness.) I show you Exhibit 37, and ask you the same question, is the filling up in your handwriting ? A. It is. Q. (Paper handed witness.) And No. 43, appli- cation to the Knickerbocker, is the filling up of that in your handwriting ? A. It is. Q. (Paper handed witness.) How is it about the filling up of this, No. 26, the Home application ? A. That is my writing. Q. (Paper handed witness.) How is it about this, Exhibit 39, the Homeopathic ? A. That page, the filling up of the page of questions and answers constituting the application, is in my handwriting. Q. (Paper handed witness.) I show a7ou Exhibit No. 17, application to the John Hancock Insurance Company, is that filled up in your handwriting ? A. Some of it looks like my handwriting, and some of it doesn’t. Q. What part do you think looks like your hand- writing? A. That is my writing there. (Indicat- ing the words “ New-York Life, $10,000.”) 1561 1562 1563 522 Q. Do you recognize anything else on the face of that application as being in your handwriting, with the exception of what yon have stated ?. A. The “Connecticut Mutual, $15,000” there is in my handwriting. Q. Is there anything else there which you can recognize as being in your handwriting ? A. I don’t think the balance is in my handwriting. Q. You don’t think there is anything else in your handwriting? A. The signature does not look like my signature, and there was one other exhibit, the application to the Globe, I was in doubt about it ; it does not seem to be in my writing. Q. Do you know whether or not that is in your handwriting? A. I never sign in that way and I don’t think it is. Q. Do you know ? A. I should say not. Q. Do you know whose it is ? A. I do not. Q. Do you know in whose handwriting any part of that paper you fail to identify as yours is ? A, I do not. Q. Do you know your own handwriting ? A. I suppose I do. Q. Will you swear that the whole of that filling up is not in your handwriting? A. I should say it was not. Q. You will swear it is not? A. Yes. Q. As to the signature, now how positive are you about that ? A. I am positive that it is not. Q. Didn’t you forward this application to the John Hancock Company? A. I think I did. Q. And you don’t know in whose handwriting the residue of the paper is, of which you identify some parts as your own, and the management of which you had ? A. I don’t know. Q. You don’t know ? A. I don’t know positive- ly, no. Q. Yon say you don’t know positively ; do you know at all ? A. I had a clerk that assisted me some at that time. 1564 1565 1566 523 Q. Did he sign your name without prefix or affix? A. That I can’t say. : Q. (Paper handed witness.) I show you now Exhibit No. 19,application to the Phenix Life In- surance Company, and ask you in whose writing the filling up of that application is ? A. It is mine, with the exception of this paragraph (indicating) “Commencing last Spring.” Q. Whose is that ? A. I don’ t know. Q Do you know? A. It is written with a finer pen, and the more I look at it the more I think per- haps I wrote it. Q. Are you able to say whether or not you wrote that paragraph yourself? A. I should be inclined to think I did. Q. Are you sure ? A. Let me look at it again. (Application referred to). Q. Are you able to say now whether you wrote it or not ? A. I should say it was my writing with a finer pen. Q. Will you swear to it whether it is yours or not? A. I should swear—I should say it was, now. 1567 1568 Frederick Hyde, called as a witness on behalf of the plaintiffs and sworn, testified as follows: Examined by Mr. Smith : I reside in Cortland, New-York; have been a practising physician there since 1836; I am seventy- three years of age; I don’t know that I ever saw Walton Dwight alive; I saw a body that was said to be the dead body of Walton Dwight, in Bingham- ton—at the Spaulding House, I think, at Bingham- ton, in November, 1878; I remember Dr. Delafield was there, and also Dr. George Burr, Dr. Dan Burr, Dr. Orton, Dr. Chittenden and Dr. Richards; Dr. Swinburne, was present; the body, when I first 1569 524 saw it, was in a room in connection with that build- ing; I couldn’t say exactly in reference to the other apartments of the building; it was said to be in that building; the body was lying upon a table—a platform—upon its back; it was there in that par- ticular spot that the examination of this body was made. . Q. During the examination that you have just mentioned, about how many persons do you think were present, so as to witness the appearance of the body ? A. Well, I should think it would average in the range of thirty; I didn’t count them, but that is my recollection; the clothing of the body was removed; there was a full, unobstructed oppor- tunity to all to view the outside appearance of this body; when I reached the place designated for the autopsy, the body was there in the room; I saw the ice box; I understood that that body had been in that ice box before it was brought to the table; it was a symmetrically made body—a well made body. Q. Was there anything you saw that was out of the order of nature, as it seemed, of the man, in the nature of wounds, scars or fractures ? A. No, sir; not any. Q. How as to color and expression ; describe it as near as you can by words ? A. Nothing out of the ordinal appearance of a dead body ? Q. Was there this general examination first of the outside of the body. A. I don’t quite get that. Q. Before we proceed further, was there this general opportunity to look and view the outside of the body \ A. Yes, it was examined externally. Q. WTas the body moved or turned so as to afford an opportunity to see all the outside of it ? A. It was. This having been completed, the next step was the commencement of the examination of the body and the commencement of the autopsy. It was an examination by cutting it up with knives; the first cutting was on the head, the soft coverings 1570 1571 1572 525 over the bones of the head were divided first—the scalp was divided and turned back—that exposed his skull underneath. The skull was divided and sawn through above the ears and the upper part turned off ; that exposed the outer covering of the brain, the covering between the bone and the under- lying brain. Q. Was there anything that you witnessed that you can name here in the appearance of this out- side brain after it was uncovered by removing the skull? A. I don’t remember anything out of the common look of an autopsy. The coverings of the brain were divided so to expose to the view of the eye the substance of the brain. Q. Was there anything discovered in that? A. Nothing out of the ordinary showing of a post- mortem; the brain was examined underneath—the base of the brain—it was taken out and examined. Q. Was anything discovered there that attracted attention ? A. I don’t remember anything out of Q. You will understand I ask for what you know, and not what others know. Was there anything that you discovered there on that examination, which you have now last described, of this brain, that was unnatural or out of the ordinary course? A. No. Q. Was that substantially the extent of the ex- amination of the brain ? A. All the parts, I think, I have mentioned were divided and inspected from top to bottom. We next examined the thorax— the chest—I mean the part of the body made up of ribs and backbone outside, and lungs and heart and blood vessels inside—that includes the wind- pipe. Incisions were made and the ribs divided at their junction where they unite with the breast- bone, and taken away, and that exposed the con- tents within. I mean they took a knife and cut the chest open and threw the parts back—ran a scalpel along down between the breast bone where the 1573 1574 1575 526 gristle is, separated it and opened the whole thing. The vitals were exposed to general view, the lungs, the larynx and trachea were examined. The larynx is the upper part of the windpipe ; the trachea is the windpipe. Q. Were both the lungs opened so you could see the inside as well as the outside? A. Yes, sec- tions were made, cut into and all parts exposed in that way. Q. State to what extent, so far as you can de- scribe in words, what other operations were per- formed so as to bring under the observation of those that were there the inside of the lungs of this man ? A. Cut into pieces with a knife and taken hold of and examined. Q. And opened ? Yes. Q. I want to know from you whether there was inside of those lungs any such thing as a cicatrix ? A. I saw none. Q. Don’t you know whether they were there or not when you had the thing right before you ? A. Yes, I think so. Q. Were there any there? A. T say no, 1 didn’t see any. Q. Now, directing your attention particularly to the interior—the inside—of the lungs, were there any such things there as are known by the ordinary medical term “ nodules ” ? A. I didn’ t see any such things on the interior of the lungs. Q. Did you see any such things on the out- side or the outside membrane of the lungs?” A. At the upper part of the right lung there was a little, slight projection—possibly two or three ; I wouldn’t be certain about that—little projections, •kernels or whatever you please to call them ; they were nodular in shape ; I only remember two that seemed to be separated, but very near together. Q. Putting all the parts together side by side, all that you saw, bringing all the parts affected by this nodular characteristic, together, with a view of 1576 1577 1578 527 conveying an idea of size, can you give any idea of any known thing which will enable us to get at the size ; how large they would be if they had been all put side by side—the entire two or three parts that were in any wise involved, so far as you could see or feel or know by the senses—how large would they be if brought together? A. I shouldn’t think they would amount to more than the tip end of my finger. It was a projection that stood up. Q. Putting them side by side, how large? A. One-eighth to a quarter of an inch elevated above the surrounding lung. Q. Will you state whether there was any further or other investigation of the condition of the lung that you can describe here? A. I don’t remember that there was anything more. Q. Will you state whether you had any other opportunities than mere sight to enable you to know the condition, character, texture or other •condition of these lungs ? A. Yes, I had the op- portunity of feeling to any extent I chose ; that was the fact as to the others who were there, as far as I remember. Q. So far as the appearance of cicatrix is con- cerned, T want to know whether you discovered them tit all? A. No, not any, outside or inside— nowhere. The next step in the examination was the examination of the heart, I think, and as we continued on, the stomach, liver, gut, kidney, all that belonged to that cavity. Q. I don’t mean to go through the detail, but was every one and part of these organs below the chest, so far as you recollect now, examined to the ex- tent that anybod}7 desired ? A. I think so. Q. Will you be kind enough to state whether in that examination anything peculiar or out of the ordinary course of things was discovered. I am speaking now of the part below the breast? Mr. Russell.—I object, on the ground that the 1579 1580 1581 528 witness should not state a comparison and unusual appearances in a general way, but should indicate wliat he did see. The Court.—Do I understand that there is any dispute between the physicians as to what was dis- covered below the breast in the intestines ? Mr. Russell.—I am not certain. The Court.—They all agree I think. Mr. Russell.—Your Honor will remember that this is the first doctor that has been put upon the stand and we don’t know how far they are going to undertake to deny the characteristics stated by our medical witnesses. The Court.—The way the question is put it is in entire harmony with what you say as to what was discovered below ; I think I will limit it if it goes beyond it. Objection overruled, and the counsel for the defendants excepted. Q. Was there discovered, so far as you know anything in the condition of any of these or- gans—I now confine it below the disputed territory —to your knowledge that was unnatural or unus- ual ? Same objection, ruling and exception. A. The stomach showed there had been slight in- flammation in its lining membrane. And the bowels or intestinal canal below, there were points that showed—especially in the smaller portion of the gut, there were some signs of chronic inflamma- tion there, but at no point was there ulceration or disintegrations which had changed materially the common look of the inside of the intestines, and the parts around it—of the bowel. Attention was called to the outside appearance of the neck of this dead man. 1582 1588 1584 529 Q. Before it was interfered with by the knife or otherwise, was it under conversation and discussion and looked at? A. Yes, looked at. Q. In the first place, in your own way, I wish you would describe what j7ou saw of the outside appearance of that dead man’s neck, as lie lay there before you began to cut him up? A. I saw noth- ing unusual. Q. Are you able to say whether there was any- thing there or not ? A. I saw nothing there. Q. Are you able to go further and say whether there was or not ? A. There was not. Q. Do you know, as you sit there, whether there was or not ? A. Ido. Q. Was thereany indentation or groove across or around the neck of that body ? A. There was not. Q. Was there any depression having a percep- tible convex or half round back side to it ? A. Not any that I saw. Q. Was there any spot there having a feeling or appearance of the skin on the back side of it differ- ing in any wise from the color or character of the surrounding parts? A. No. Q. Stale, if you please, what was done in the process of cutting that man’s throat? A. It was laid open, cut open by cutting down through there (illustrating) and making a wound large enough to take out the breath pipe and tongue. The knife was stuck in just under the chin and carried down through the throat. Q. What effect had that upon bringing into view the windpipe ? A. It exposed it nicely ; I saw that cutting done. Q. Was there any mark or wrinkle or groove, or any other unevenness of the surface from the end of that man’s chin down through liis breast where they cut? A. No, not any; not a thing; that cut exposed to view his windpipe. Q. I want to know from you whether there was 1585 1586 1587 530 any indentation or depression, or pressing back of any of those parts of that windpipe ? A. No, not any ; no compression whatever. Q. Now, if there were on the sides here any unevenness in the exterior surface ascending at an angle of forty-five degrees, or any other angle, just describe what that was ? A. All I saw a little fold in the skin and flesh. Q. What do you mean by a “wrinkle”? A. A fold in the skin. I mean simply a little folding in the skin that would leave one portion of the skin a little lower and the other a little higher ; like turning a man’s neck so (indicating) ; I see them in yours. Q. But how does that serve to convey the idea to the jury the condition of the appearance of the man’s neck, if that was it? A. Nothing but what would be natural. Q. And the skin in this condition you have de- scribed here? A. Yes, folding of the skin. Q. Did everybody cut what he was a mind to, so far as you know ? A. Yes. Q. Something has been said here about “bloody mucus,” are you able to state what you saw of any such substance as that about the body of this man ? A. I didn't see any. Q. What was done with what was left of this man when you got through cutting ? A. Some of the portions were kept and put into a bottle that each brought along, and the balance was returned into the body. Q. Are you able to state about how many vessels and jars were carried off with portions of his body ? A. 1 don’t think I could say just the number; I saw several ; I saw- the portions go in ; what was left was returned to the body, into the openings where they had been taken from. I do not remem- ber whether the funeral service was held after that; I do not know whether the body was buried or not. I was down there afterwards when the 1588 1589 1590 531 grave was opened and this man’s body taken out; I saw that gathering there ; there was some more cutting done. Q. Other portions of the body carried away ? A. They were said to be carried away ; I didn’t see them go, but they were taken to be carried away. Cross-examination by Mr. Russell: Q. At whose invitation did you attend on the 18th of November, or were you a volunteer? A. I went there on a dispatch sent by Dr. T. Gr. Orton, which I received on Sunday evening. I went down Monday in the night, because there was no train earlier. Q. At what hour of the day did you attend at first where you saw the body of Walton Dwight? A. I couldn’t say exactly what hour, but in the morning. When 1 first saw it the body was in the apartment or room I understood belonged to the Spaulding House. The body was on the board when I first saw it; 1 never saw the body when it was in the cooler. Q. When it was on the board, in what position was the head ? A. In a natural position. Q. You have stated that upon external and in- ternal examination you discovered nothing wrong or unnatural in the body or organs, is that true? A. Beyond what was post-mortem. Q. Did you discover anything wrong or unusual in the external appearance of the body or the in- ternal condition of the organs? A. No, excepting what I have described ; I mean what I had spoken of in the stomach or bowels. Q. Was there anything in the stomach or bowels that indicated to your professional mind the cause of death? A. No. Q. Then, sir, you will inform us and the jury that with all your professional skill and your ex- perience as a medical man since 1836, upon the 1591 1592 1593 532 post-mortem examination of the body of Walton Dwight, conducted, as you say, sufficiently, and you discovered nothing to indicate to your mind, as a medical man, the cause of that man’s death ? A. No. Q. You did not? A. No. Q. You have spoken of the condition of the- stomach as simply indicating a slight inflammation? A. A chronic inflammation. Q. Were there notes kept of this autopsy? A. There were. Q. By whom ? A. By Dr. Dan Burr; he did the writing; I made no suggestion as to what should go in those notes. Q. Did you make any dissent as to what should go in those notes ? A. No. Q. Did you hear the notes read over after they were finished? A. Yes. Q. Did you express your satisfaction with them ? A. I did. Q. And that satisfaction remains now, does it % A. Yes. Q. So that there is nothing that is contained in those notes of that autopsy to which you then dis- sented or now dissent ? A. No, not that I heard read there. Q. Did you feel any portion of the body? A. I did ; I felt of the neck externally, and of various tissues or parts that were exposed as the dissection went on. Q. State the precise organs of the body which you felt. A. Of portions of the lung, the pulmon- ic structure of the lungs, substance and membra- neous portions, and the bronchial portions, and the substance of the lungs. Q. Can you name any particular portions on the lungs as the portions of which you felt ? A. I put my linger on the lung substance. Q. Of which lung? A. The right lung. Q. Any other part ? A. I think so. 1594 1595 1596 533 Q. When you say you think so, do you remem- ber it ? A. I am sure I felt of other parts. Q. Do you remember of feeling of other parts? A. Yes. Q. What part? A. Lower down, down as the bronchi goes down in the lung substance. Q. Did you l'eel of the lung internally? A. I have spoken of that particularly. ty Do you remember of putting your lingers on more than two or three portions of the lungs ? A. I should say I did ; 1 went from one part to another, along. Q. The feeling of which you describe was simply to run your linger along from one portion to the other? A. I mean going along and taking hold. Q. How many parts of the lung substance did you pinch? A. I can’t remember exactly, but I re- member I did do it to some part of the lungs. Q. Was your attention called to anything being said as to whether there were cicatrices in the lungs? A. No, nothing said about a cicatrix, not in the interior of the lung. Q. I ask if j7our attention was called to the cicatrix by anybody on that post-mortem, or whether you did not hear anything said about it ? A. I remember hearing some gentlemen say that probably this nodule had connection with some cicatrix ; that is all I remember about that. Q. Was that all that was said that you heard? A. I think so. Q. After that was said, did you make any further examination of the lung substance? A. I ex- amined these nodules. Q. Did you make any further examination of the nodule ? A. I am not certain whether it was completed or not. Q. Isn’t it a fact that the word cicatrix was originally written in the notes as a mark upon the lung substance ? A. I don’t remember it so. 1597 1598 1599 534 Q. Will you say here, under oath, it was not? A. That is my remembrance of it. Q. Will you say it was not? A. I remember, I think, as well as I remember anything, it was not: Q. 1 didn’t ask that, but give me your recollec- tion whether it is positive? A. That is the best of my recollection. Q. 1 want to know whether you will tell this jury that the word “cicatrix ” was not originally writ- ten in the notes of that autopsy as an appearance upon the lung substance? A. I think I have spoken—I said all there was upon that subject was in connection with the nodule, probably a cicatrix. As I say, to the best of my recollection it did not go into the notes ; my positive recollection is, it did not go into the notes. Q. Do you remember whether the word “cicatrix” was put in there, and Dr. Burr afterwards erased the word “cicatrix” and put in the words, “a few fibrous nodules” ? A. I remember, as I said, this was spoken about, and the gentleman who spoke of it suggested it should be changed, and it was ; that is as I recollect it, and as 1 have testified. Q. That what should be changed ? A. This talk—it was simply said, this was the phrase, “probably a cicatrix in connection with some former disease,” and then after a little while the conclusion was to leave it out. Q. Did it go in, “probably a cicatrix ?” A. Not to my remembrance—it did not. Q. Then you say this talk was before the writing of anything in reference to it? (Paper handed witness.) Let me show you this paper, and you ex- amine it all you please, so as to be certain whether you recognize it as the notes, and tell me whether your recollection is incorrect upon the subject of which we have been speaking? A. It is as I stated, “ probably.” I don’t know of anything I want to add to that answer ; as I said before, the. operator 1600 1601 1602 535 suggested as a probability, and afterwards, as I recollect, it was corrected. Q. Haven’t you told us, within the last five min- utes, that your positive recollection was, that the word “cicatrix ” was not written in the notes? A. Yes ; not in the record. Q. And you say so still ? A. That is my recol- lection. Q Look at the word that the line is drawn through and read it aloud for the information of the jury ; what is the word the line is drawn through? A. Upper lobe Q. The word that the line is drawn through? A. It is “ scar or cicatrix.” Q. The word “ cicatrix ” is there, is it, with a line drawn through ? A. As I stated before, “prob- ably cicatrix so and so.” Q. The word “cicatrix” was written there and a line drawn through it, you see now by the notes? A. I remember the expression of the gentleman who made it in that way. Q. Is the word there canceled by a line drawn through it ? A. Yes. Q. Then, when you told me a few minutes ago that you had a positive recollection that the word “ cicatrix ” was not written in the notes and then erased, you find by the notes that you were mis- taken, do you not ? A. I don’t know that I can correctly answer. Q. I ask if you don’t find that you were mis- taken? A. I referred to the corrected notes as we finally signed. There were several suggestions here as to other things. Q. I ask you, as an intelligent man, knowing the meaning of plain, common English, whether you Were1 not mistaken when you swore a few minutes ago that you had a positive recollection that the word “cicatrix” was not in those notes? A. The Word cicatrix, I think I have said, was spoken of ; I mean to say so certainly. 1603 1604 1605 536 Q. Were you not mistaken when you swore the word was not in the notes ? A. I had in my mind the notes as corrected when I testified. I remember this conversation—I understood the notes were corrected. Q. Do you understand the difference between talk and notes ? A. Perhaps so. Q. Do you understand what the notes of the autopsy were ? A. A record of what was seen. Q. Do you understand what that paper was I showed you ? A. A record of the autopsy, as I took it to be. Q. Did you understand me when I asked whether the word “cicatrix” was not first written in the notes \ A. As I say, this was discussed. The Court.—Answer the question. Witness.—Yes, it was written in as I say. Q. Did you understand me when I asked you that question ? A. Yes. Q. Did you understand your own answer when you said that you positively remembered that the word cicatrix was never written in the notes ? A. In the corrected notes. Q. Did you understand your answer when you were answering % A. I certainly did not mean to exclude this conversation held here. Q. I am not talking about any talk at all. I am talking about the notes. Did you understand your own answer when you said that word was not in the notes and never was in the notes ? A. I had reference to the corrected notes. Q. (Question repeated.) Did you understand your answer % A. Yes. Q. Did you understand me to ask you whether the word cicatrix was not originally written in the notes and then erased and another word substituted, did you understand me when I asked you that question % A. I don’t remember its being anything more than referred to; it was as I stated. Thisr 1606 1607 1608 537 conversation came up, and was discussed and it was written down in this way and then corrected as I have testified. Q. I)o you consider that a fair answer to the ■question 1 asked you as to whether you understood my question or not? A. I think so. Q. You think so? A. Yes. Q. That is the best answer you can give? A. That is as I remember the case. Q. Wasn’t the word “cicatrix ” written in those notes by Dr. Dan S. Burr and then afterwards did he not erase those words and write other words in their stead ? A. It was written in and read in this way with the cicatrix in, and then on a further dis- cussion of the case it was as I understand it, left out. Q. I ask for the simple fact, whether the word was not written in and then erased, and then an- other word written in? A. I think I just stated that ; I meant to state it before. Q. Can you give me the name of one single doc- tor who said, “ strike out the word cicatrix, and put the other words in”? A. My recollection is that Dr. Burr suggested it at the time. Q. Which Dr. Burr? A. Dr. Dan Burr; but I cannot be positive on that. Q. Have you any recollection that Dr. Dan Burr suggested it ? A. I am not sure; he was in the conversation over it. Q. Have you any recollection that Dr. Dan Burr suggested it? A. I can’t say who suggested it first. Q. Have you any recollection what single doctor suggested it? A. I know the question came upaud was discussed. Q. I want to get at the name of the doctor him- self who suggested it; if you can remember any such man, in order that I may ask him if he sug- gested it ? A. I don’t know that I could name the 1609 1610 1611 538 man who made the suggestion, and know if it was Q. You don’t know that you can name the man who suggested it ? A. I wouldn’t be certain. Q. Can you remember the words that were used by any doctor, who is nameless ; can you remember the words used by any doctor, whose name you can’t remember, who suggested changing? A I don’t know as 1 can say between these gentlemen who were talking about it, all of them ? Q. Can you give any words used ? A. Only on this. Q. I ask if you can give them ? A. I don’t re- member the exact words. Q. You say you assented to the notes ? A. Yes. Q. Do you say that there were only two of those nodules in the lungs? A. There were two that I remember distinctly, and beyond that I don’t know. Q. Is it your knowledge of that post-mortem ex- amination does that extend so far that you can tell the jury how many there were? A. I am cer- tain that there were two distinct ones, myself, that I felt of. I only remember of taking hold of twoT as I stated. Q. Does your recollection serve you now, so that you can tell how many there were? A. Two. Q. Will you swear there were only two ? A. That is all I remember about, and I can only swear to two. Q. Will you swear there were only two. A. No, I would not swear to that. I swear I saw two and took hold of them. Q. .1 want to ascertain from you whether you made a sufficient examination yourself so as to be able to tell the number of those nodules ? A. I said I was certain there were two, and beyond that I. was not certain, ' Q, Did you make examination enough to know; 1612 1613 1614 539 how many there were ? A. Only two that I re- member about. Q. Bid you make examination of those lungs enough to satisfy your own mind and your own conscience how many there were of those nodules in and on those lungs? A. There were two that I saw. The Court.—Say yes or no to that question. Q. (Question repeated.) Answer the question. A. Well, I don’t remember of seeing only the two, as I told you. Q (Question repeated.) Answer the question. A. Well, I say 1 am positive there was two, and beyond that I am not. Q. (Question repeated.) Answer the question. A. Well, it is possible there might have been more, but I say I didn’t see them. Q. Bid you make examination enough to satisfy your own mind how many there were ? A. Yes ; I did. Q. You have said there might have been more? A. Yes. Q. What do you mean by that? A. I mean by that there might have been a nodule or two I did not Q. Observe? A. That I did not observe. Q. In the notes which you signed did you say that there were several small fibrous nodules ? A. I think that was in the reading of the notes. Q. When you signed it? A. No ; lam not cer- tain it was. Q. Bo you think the notes have been changed after you signed them? A. Not that I know of. Q. Then if those words were in the notes they were there wlmn you signed it ? A. Quite likely ; I don’t know how it could be otherwise. Q. Well, I ask you, read those words “ several $mall fibrous nodules”? A. Yes;,I remember that. 1615 1616 1617 540 Q. Were those words in those notes when you signed those notes? A. Yes; I think so. Q. What do you mean by “ several” ; do you mean two? A. Yes; and possibly more,, but I only saw the two myself. Q. You didn’t mean to confine it to two when you signed the notes? A. Only to what I had seen. Q. Did you mean two by “ several” when you signed the notes? A. Yes ; I mean two. Q. Did you say in the notes you signed, that these nodules were probably the result of old pul- monary phthisis ? A. That was written in, to my recollection, I think. Q. To your knowledge ? A. Yes. Q. Was that your judgment then ? A. That they were written in. Q. Was it your judgment that these fibrous no- dules were probably the result of old pulmonary phthisis? A. It was not my own opinion, sir. Q. What did you sign the notes for then, and not object to them ? A. I said this at the time, but I was willing to sign the notes if the others were, and I state here that my own opinion was -I state that while others might look at in that way, my own opinion was otherwise. Q. Then you deliberately signed notes and as- sented to them, which did not express your own judgment upon this case, is that true? A. My own private opinion would be as I have said, that they were not scars, and I say so now. Perhaps I do not understand your last question. Q. (Question repeated.) A. That was my own pri- vate opinion that they were not the result, as was stated there. The Court.—That is not an answer to the ques- tion. The question is, whether you at that time signed notes which did not express the truth of 1618 1619 1620 541 the autopsy as you understood it? A. Yes, sir; not my opinion. Q. Is your answer “Yes” ? A. Yes. Q. Did you not, in answer to my interrogatory a short time ago, tell me that these notes expressed your own individual judgment upon this case ? A. Well, in that I was willing to go—1 signed the paper with the others, if there was no objection. Q. (Question repeated.) A, Yes ; I said so. Q. Why do you now tell me that in this respect it did not express your opinion? A. Well,' for the reason I have already stated, there was a question about it. While others believed there might be something about that, I did not, and yet I say, I was willing to indorse the paper with the rest of them ; there is no question about it. Q. Is there any other respect in which these notes are inaccurate according to your recollection ? A. I don't know about that; the post-mortem I remember of reading at the time, or it was read in my hearing. Q. (Paper handed witness.) I present these notes to the witness, and ask him to read them on the stand, and say whether in any other respect they are inaccurate according to his recollection? A. (After reading). No. Q. How many doctors were there that took part in this autopsy according to your recollection ? A. There were several; I don’t think I could tell the exact number without the time to recall their names. Q. Do you use the term “ several ” to mean two, as you did in the notes ? A. There were some ten or fifteen doctors there. Q. Was there a single other doctor that expressed any dissent at that time and place in any manner, shape or form, as to the correctness of the state- ment that these nodules were probably the result of old pulmonary phthisis ? A. That was discussed by myself and one or two others, certainly. 1621 1622 1623 542 Q. (Question repeated.) A. I don’t remember any positive objection to that. Q. You have stated that these nodules were about the size of your index finger, and about an eighth of an inch above (he surface of the lung? A. Yes. that is, standing up, projecting. Q. Do you know how far down in the substance of the lung they went? A. I couldn’t say ; I took particular pains to feel around the base of these projections, and I detected nothing but the normal feel of the covering of the lung. Q. I ask you if you know how far down in the lung substance these nodules went? A. We saw nothing in the dissection underneath in connection with them. Q. Was there cutting into the substance of the lung underneath the precise spot in the nodule ? A. 1 couldn’t say it would be precise. Q. Then, sir, if there was no cutting beneath the substance of these fibrous nodules, how could you tell how far down the nodules went into the lung substance? A. I couldn’t be positive about that, sir. Q. In order to ascertain the extent of disease which these nodules indicated, wasn’t it necessary to see how far they went into the lung substance? A. I think one could tell pretty well by examin- ing the nodule itself, whether it was lung tissue or not. Q. (Question repeated.) A. I answered that it would not be certain how far they went in. Q. Then in order to ascertain how far these no- dules indicated a lung disease, you didn’t pursue the inquiry to ascertain the depth of the nodules ? A. I didn’t cut in underneath them. The cutting was done in examining the lung under. Q. I will ask you, doctor, whether, in your opin- ion, in order to ascertain the value of that opinion, is it a satisfactory examination of the indication of disease like a fibrous nodule to simply feel of the 1624 1625 1626 543 surface? A. It satisfied me that it was not a cicatrix ; had none of the characteristics of a scar. Q. Was that all you looked for ? A. No. Q. What else did you look for? A. To know as to the texture of this, whether it was lung tissue projecting up, or whether it was a morbid growth, independent of the lung. Q. Anything else ? A. That would be mainly all. Q. You found them to be fibrous, didn’t you ? A. I should think a portion of it was, and a portion not ; I didn’t dissect it. Q. Wasn’t it characterized there as a fibrous nodule ? A. Yes ; it was mainly fibrous in tex- ture, as far as I could see. Q. What do you mean by “ pulmonary phthisis’’? A. I mean consumption. Q. And when these notes speak of these nodules as indicating pulmonary phthisis, they refer then to consumption ? A. They do, in the notes. Q. If a man had consumption, or had had con- sumption, would there have been likely to have been scars or nodules on his lungs ? A. Very likely. Q. What would those nodules have been like? A. They would have been varied in structure ; nodules are found in the lungs in various forms ; some in one form of structure and some in another. Q. What would nodules in the lungs be like ? A. It might be a changed structure of the lungs, or it might be some other growth independent of lung structure. Q. Can you explain to us or the jury, a single physical indication as to the appearance of a no- dule that came from lung disease or consumption ? A. I say to that, nodules are found often in con- sumptive patients, which are not made up of the texture which belonged to the lung before ; tliey 1627 1628 1629 544 have grown in there ; they are growths in there as they grow elsewhere. Q. (Question repeated.) Didn’t yon understand my question, doctor? A. I think so. Q. I will try and make it more plain ; can you give us a single description of a nodule resulting from consumption, so we could tell what it looked like? A. It could not be known, except a nodule was carefully inspected and dissected to know just what its texture was. Q. Then in order to ascertain precisely what a nodule meant or is, the nodule itself should be dis- sected, should it not? A. That would be the ac- curate way to do. Q. Was this done in this case ? A. I don’t think it was ; I am certain I didn’t do it ; I will not be certain there was no division of it; 1 don’t think the tumor was divided. Q. Was there any dissection of that tumor or nodule at the time ? A. I don’t remember its being divided ; I don’t think it was divided. Q. Then in that respect, at least, this was not a perfect autopsy ? A. Not so far as relates to that growth ; you could not say pathologically just ex- actly what elements entered into it; I mean the building up of the tumor ; the substance of which it was made. A. You recognize this as a tumor, do you ? A. It projected up here, and had the characteristics of a morbid growth occurring on surfaces elsewhere ; you see nodules on bone. Q. Did you recognize that nodule as a tumor of the lung—yes or no ? A. It was standing up here on the covering of the lung. Q. {By the Court.) Do you call it a “ tumor” or not, he asks. Witness.—It struck me that it was not an inde- pendent growth, and had nothing to do with the lung growth. 1630 1631 1632 545 Q. Do you recognize that as a tumor? A. A morbid growth—yes ; that is, to the eye and feel, bnt not by dissection or microscope. Q. What is a cicatrix ? A. It is the result of healing of all forms of wound; it is a track or trace of tissne that is inlaid, filled in, that serves to hold the divided parts together and to fill up the cliasm that has been made. Q. Is it good flesh ? A. A cicatrix is never so good as the original tissne. Q. Is there any nourishment, whatever, to that portion of the body known as a cicatrix ? A. There is the nourishment through the adjacent textures that maintains its idenfitj'' there. Q. Are there any vessels in that part then, which will provide nourishment to that part ? A. So long as it remains a perfect cicatricial tissue, it would not have the distinct vessels that are fed by the ad- jacent vessels. Q. What is the difference, then, between a cica- trix and a nodule? A. A cicatrix would be hard and nodular; tissue not sustaining; nodular in feel, I will say. Q. You speak of Dwight’s body being well made; was it well nourished? A. I couldn’t say so well, only seeing him while he was dead, but I should say it was not well nourished. Q. Why do you say you couldn’t tell from the examination of the man’s body after death ? A. I couldn’t be so positive in all respects. Q. Considerable fat on the body, was there not ? A. There was some fat. Q. Was there not a good deal ? A. Yes ; I should think so. Q. Was there a single portion of the body that ought to be supplied with fat that was not well supplied ? A. I think it was fairly supplied, from all I saw. Q. When you say you don’t think it was very well nourished, what do you mean ? A. Why, I 1633 1634 1635 546 mean that the nutrition hadn’t been sufficient to- keep up the tone of ail the tissues properly. While the fat might remain there, still there would be a loss of tone in some of the textures of the body. It had been robbed a little of its nutriment, I mean. Q. Was there no other cause for not keeping up the tone of which you speak, that was observable to you, except tile question of nourishment? A. The post-mortem showed some fault in the digestive apparatus, enough to account for the faulty nour- ishment. Q. Wouldn’t the keeping of the body on ice for forty-eight hours be likely to impair the tone of the body? A. I don’t know that I see the point in your question. Q. Can’t you answer the question ? A. I couldn’t answer it without knowing more about it. Q. We will pass it. What do you mean by this in the notes, “Body—rigor mortis well marked, thick layer of subcutaneous adipose tissue ; muscles well developed, good color”? A. I mean as it reads, “muscles well developed.” Q. What do you mean by “thick layer of sub- cutaneous adipose tissue”—what do you mean by that? A. That is the fatty tissue underneath the skin and the other portions of the body. Q. What do you mean by the “ Omentum thickly loaded with fat”? A. That varies; I mean that it was loaded with fat; that it was a fatty omen- tum. Q. Would that be a condition of the body to indicate that it was well nourished? A. It might be other than that; it might be too fatty, forming a degeneration. Q. Wouldn’t that be a fair condition of the body if it was well nourished ; that the omentum was thickly loaded with fat? A. It would under some circumstances, and in others it would be an evidence of disease. 1636 1637 1638 547 Q. In this bod}7 that you saw, then and there, would it be? A. That corresponded, as near as I can recollect, with the fatty deposition of fat about him ; if there was any fault, it was too much fat. Q. Are not these indications of flesh or of fat that I have called your attention to, indications of good nourishment of the body ? A. Not always. Q. I ask you in this case ? A. It would not be certain in this case. Q. Wouldn’t it be probable ? A. That would be a general rule. Q. When the fat is changed to a good muscular development, isn’t it always a sign that the body is well nourished ? A. Generally. Q. And when the body ceases to be well nour- ished and falls away, isn’t the fatty substance the first to disappear ? A, Not always. Q. I ask you generally? A. Perhaps generally, where there is no fatty degeneration; there are cases of degeneration where there is too much fat. Q. I ask you as to the usual rule ? A. The gen- eral rule, yes. Q. Was there not observed on that body these characteristics on and in the body—an indentation, furrow or groove in the neck; spots on the back and back of the right arm; a clot in the brain, a d congested membranes of the brain, and substance of the brain, not abnormally congested; congested larynx, trachea and bronchial tubes, and bloody mucus in windpipe and bronchial tubes ; fibrous nodules; congested lungs with dark fluid blood and ruptured air vessels at the top of one lung ; oedema of the lungs ; heart natural and healthy ; stomach with some undigested food; an apparently inflamed patch; congestion of mucous membranes of the stomach and intestines; congestion of the liver, spleen and kidneys, but no pigmentation of liver and sjdeen; were not these characteristics ob- 1639 1640 1641 548 served at that autopsy in or upon the body of Mr. Dwight ? Objected to upon the ground that the question is compound. The Court sus- tained the objection, to which ruling the counsel for the defendants duly ex- cepted. The counsel for the defendants then offered to show by the witness in the form of one single ques- tion—an answer to one single question—that all of these characteristics were observed by him at the autopsy. Q. (Question repeated.) Same objection, ruling and exception. Q. You said, on your direct-examination, that the larynx was the windpipe—is that true? A. It is a portion of the canal that conveys the air; tech- nically it would be above the windpipe. Anatomi- cally it would not be. Q. What do you mean by anatomically ? A. I mean in its mechanism and structure. Q. You mean by that it is not a part of the struc- ture called the windpipe ? A. It is connected so it helps make a canal for the transmission of air in and out. Q. Is it a part of the windpipe ? A. It has its separate anatomy and is joined to the windpipe. Q. Is it a part of the windpipe ? A. So far as respiration goes it would be. You couldn’t breathe without it. Q. I presume not, but is it a part of the wind- pipe? A. The wind goes through it. Q. Is it a part of the structure known as the windpipe—say yes or no ? A. I will say then what is meant by that portion of the windpipe would be the trachea, which is below the larynx; the larynx is above as you go up towards the mouth. 1642 1643 1644 549 Q. The windpipe begins with the trachea ? A. It joins the trachea below. They are united below, and so the canal continues along up until you get to the larynx, and through the larynx through the mouth. Re-direct-examination by Mr. Smith : Q. When this dead body was there, and this paper here which has been examined was made, I want you to describe to this jury in words the pro- ceeding of making that paper, who dictated it, and who wrote and who was by, and generally the way it was done, so we can see how these results came to pass? A. Dr. Delafield was the man who done the dissecting with the knife mainly; perhaps I might say wholly, unless some body held to help him a little; having begun at the head, the sec- retary, who was Dr. Daniel Burr, when he had developed what was here, he so named and called it out, and the attention of the surrounding doctors was called, to offer their comments, if they had any, or any objections; Dr. Burr entered it on the rec- ord; then he proceeded with another portion of the brain, or whatever it was, in the same way, and so he continued to do until the dissection was com- pleted—he opening the parts and dividing them so and so,and calling attention of those who were around and who were looking and taking hold of these parts themselves, and offering whatever remarks they had to offer, and when they were through Dr. Burr read the report of that, and as the doctor who made the dissection named the part the doctor re- peated it, and as he went on he repeated what Dr. Delafield had said, and when that branch of the operation was over, then he re-read it entire, and such suggestions and alterations as were necessary to make were made, if any, and so he continued to do until the examination was complete. Q. When the suggestions were made and the 1645 1646 1647 550 discussions were had in reference to the paper, were some changes made in the written matter of the notes? A. I think it would happen now and then; it would he entered, and after the suggestions were made, it would be changed—after the thing had been canvassed with the different ones. Q. What is the tirst change that you are able to call to mind, either from your memory or from reading the paper here ? A. I think the one that I remember most about was in connection with the nodules. Q. What was the paper, as originally written, so far as relates to the change ? A. As originally written, it was as read here, and then, if I recollect rightly, that the cicatrix was left out. Q. How did the original word occur? A. (Re- ferring to paper.) I think Hr. Delalield stated when they were examining the lungs and came to these nodules—it was written as proposed by Hr. Helafield, and then the question came up—the an- swer here—“ Upper lobe of the apex, several small fibrous nodules, cicatrix, probably the result of old pulmonary phthisis.” Now a discussion came up at that point, and out of that discussion “ cicatrix” was left out; I can’t give the words, perhaps, only there was some question whether that was a scar, and it was left out on that suggestion. Q. Can you remember the substance of what was said as to what it was? A. It pertained mainly to that—whether that was a scar or not. Q. Ho you remember anything that was said there as to the use of that word “cicatrix”? A. I know it was talked about; I can’t say the precise words that were used, and whether it was Hoctor Burr or Hoctor Ayer or some other one, but there was a little hesitation and conference over it, and the secretary was ordered to strike it out. Q. Are you able to state whether that direction to strike it out was given in the presence of all the doctors there ? A. Why, they were all there. Hr. 1648 1649 1650 551 Delafield, who had charge of it said, “Very well, strike it out.” Q. Was there any express dissent or disappro- bation as to that? A. I don’t know of any. Q. I ask you about what took place when you were all together there, was there any dissent or objection? A. No, sir. Q. After this paper was read through and these corrections were made, what was the next thing done with the paper ? A. Signatures were put to the paper. Q. As they appear to it now ? A. I think so. Q. Is there any other interlineation in this paper except this word ? A. No, not that I know of, Fifteen doctors signed it. Re-cross-examination by Mr. Russell: Q. In order to test your recollection of the events of that autopsy the 18th of November, 1878, I wish to ask you again the question which has been propounded by the counsel for the plaintiffs, Mr. Smith, as to whether, according to your recollec- tion, the only interlineation made in that paper before signing, was the insertion of the term ‘‘nodules” instead of “cicatrix” ? A. As I re- member, it was left as it had been made, with the erasure, “ nodules ” was left in. Q. (Question repeated.) A. The “cicatrix” was the part left out, the other is just as it reads there. Q. (Question repeated.) A. Perhaps I don’t understand your question. Q. Was that leaving out “cicatrix” and putting in of “ nodules ” the only interlineation that was made in that paper before signing it ? A. It is all I remember about. Q. (Paper handed witness.) Were there not at least four interlineations made in addition to that made on the very lirst page ? A. That is the only 1651 1652 1653 552 one I remember about, while these questions were suggested and discussed. Q. (Question repeated.) A. I think there were some little verbal corrections perhaps at the time, but when we signed it Q. (Question repeated.) I ask a categorical answer to that question, which, it seems to me, is simple. The Court.-—You have looked at the page—state whether there were lour other interlineations on that page ? Witness.—Not that I recollect. I don’t remem- ber those. Q. After exhibiting it to you again, weren’t there four interlineations at least on the first page of that paper before you signed it ? A. 1 think I stated that in the discussion of these things they would be changed a little before they were en- tered, but I don’t remember any interlineations after it was written, only the one to which I re- ferred . Q. Do you mean that the interlineations which appear on the first page of this paper were made after signing ? A. I don’t know. Q. Do you know when those interlineations upon the first page of those notes were made ? A. I don’t know. Q. AVere the notes read over to you before you signed or did you read them yourself before signing ? A. They were read over by the clerk. Q. And your reliance as to the accuracy of the notes depended upon the manner in which they were read—is that true ? A. As well as my mem- ory. Q. Were the notes ever re-read after the inter- lineations were made in? A. Yes, they were re-read at the conclusion of the autopsy, or the paper was re-read then as had been corrected 1654 1655 1656 553 from time to time along in making the examin- ation. Q. Have you a distinct recollection that the paper was read after all the interlineations were put into it? A. It was the final paper I know that we signed. Q. (Question repeated.) I would like a direct answer to the question ? A. I know about these little verbal changes along, and they were corrected. Q. (Question repeated.) A. Yes, that is, the last I saw of the paper was when we signed it. Q. You say you don’t know whether the inter- lineations were all put in or not, do you? A. I signed the paper as read, I remember distinctly. Q. Then that is all you know about it, is it ? A. Yes. 1657 1658 Daniel S. Burr, called as a witness on behalf of the plaintiffs and sworn, testified as follows : Examined by Mr. Smith. My father’s name was George Burr ; he was a doctor ; 1 reside in Binghamton, New-York ; have been a physician and surgeon, practicing my pro- fession at Binghamton since 1868 ; I knew Walton Dwight; I knew him about the time he first came to Binghamton ; I think in all about ten years ; I knew him as a young man would know such a man ; I had a personal acquaintance with him be- fore his sickness ; I never occupied any professional relation towards him. Q. (Paper handed witness.) Were you present when these notes of autopsy were made that have been here in Court ? A. I made these notes ; they are in my handwriting except the signatures; the signatures appended are genuine so far as I know ; My signature and my father’s signature are genuine 1659 554 I don’t know as to all; those names I know to be genuine, and know to have been signed by the parties by their own proper physical hands, are George Burr, Francis Bela field, J. G. Orton, J. II. Chittenden, C. B. Richards, B. Post Jackson, Lan- sing Griffin, T. L. Brown, A. Comstock, Frederick Hyde. I acted as secretary of the autopsy to write the notes. The autopsy was appointed for the 18th of November, 1878 ; I was asked by Br. Bela field to take the notes, secretary if you are a mind to call it so. The body was brought into the hall in the Spaulding House where the doctors had assembled ; the clothing was entirely removed, and the surface of the body was narrowly inspected by the assem- bled doctors. Just before that Br. Francis Bela- field requested me to write at the head of the notes, “Autopsy of Col. W. Bwight November 18th, 1878, 9:15 a. m. Body put on ice November 16tli, II A. m.” I wrote them down just as near as I could in the exact words he uttered ; then the body as I before stated was inspected. Q. Bid you write down what was stated to you, or in the proceedings, what was given to you, as the matter to go on these notes ? A. I did. Q. And did you write it accurate and as it was given to you ? A. I did ; in nearly the same words as it was given to me. Q. What is that paper you have in your hands? A. It is the original notes of the autopsy of Col. Bwight, made by Francis Belafield and the paper is written by me, and that is the paper and the signatures of which I have been just testifying ; I have just read it through; I entered in that paper the statements that were given to me to be taken down as a part of the notes as accurately as I could. Q. Bid you do it, or didn’t you ? A. I did ; after I had taken them down, they were read over by me in the presence of the physicians and signed by each one in turn. 1660 1661 1662 555 Q. Were they all together when this reading took place, all the gentlemen who signed it according to your best recollection ? A. According to my best recollect, yes ; the paper was read so they could all hear it. Q. Some interlineations appear on the face of this paper, will you explain to the jury when and where those were made ? A. They were made by myself at the time of the autopsy and before the paper was signed. Q. By whom % A. By myself. Q. What is the first sentence where an interlinea- tion occurs? A. The first sentence where there is an interlineation is “ Dr. Swinburne notes a heavy indentation extending,” interlined above that “up- wards and backwards there is nothing struck out the words “upward and backward” are in- serted. Q. How did that come to pass ? A.'Doctor Swin- burne talked so fast; the doctor was noting the direction of it, and was busy talking, and he would repeat it several times over, not always in the same words, and finally settled upon that—“ upward and backward” as the direction ; those two words were put in by me; Dr. Delafield told me to put them in; the next is “ to right ” interlined between the words “hyoides” and “around;” the “ os kyoides” is a bone or the name of a bone ; the way I came to put those in there was, I think, I was in a hurry to write it, and put those in on my own hook ; there is no caret under that one, but they are simply written in the line above ; I put them in before it was signed ; the next one is “Dr. Swinburne and Dr. Ayer;” “ Dr. Swinburne ” is written above “Ayer;” there was discussion between Dr. Ayer and Dr. Swinburne in regard to the cause of this heavy indentation noted above ; Dr. Ayer said, and 1 commenced to write it, “Dr. Ayer thinks the same caused by bending head and neck backward;” when I had written as far as “Dr. Ayer” Dr. 1663 1664 1665 556 Swinburne acquiesced in it, and then 1 wrote just above it, “Dr. Swinburne” and it read, “Dr. Swinburne and Dr. Ayer think the same caused by bending head and neck backwards the next in- terlineation is “nodules” on page 6 or sheet 6, either one ; “nodules” appear to have been inter- lined between “fibrous” and “probably;” “upper lobe right lung at the apex several small fibrous nodules, probably the result of old pulmonary phthi- sis ;” the word written inis, “ nodules ” and the word erased or scratched out is “ cicatrices ;” that was written first “cicatrices” and upon reading it over before the paper was signed, Dr. Delafield says, “no, no,I don’t mean cicatrix, put in nodules,” and so I did; 1 drew my pen through “cica- trix” and wrote “nodules” above; the next interlineation are the words on page 7, “ a little, probably not over one-half ounce,” interlined with a caret underneath, between the words “contains” and “ fluid.” “Right ventricle contains a little, probably not over one half-ounce, fluid blood.” Dr. Delafield said, “ Right ventricle contains fluid blood, a little, probably not over half an ounce.” I had written as he spoke the words, and then I had to put that in. I put it in ; he put the “a lit- tle, probably not over half an ounce,” after the word “blood,” and that was put in before. The next interlineation are the words, “not to exceed one-half ounce,” between “blood” and “aortic,” on the 7th page, reading, “left ventricle contains a little fluid blood, not to exceed one-half ounce.” the next interlineation is the figure “3,” between the words “ in ” and “ glass ” on the 8th page, so that it reads, “ the contents of stomach was then placed in three glass jars.” The next interlinea- tion is the word “ chronic,” between the words “denote-” and “Gastritis,” so that it reads, “ pyloric end of stomach, mucous membrane stud- ded with small white spots, denoting chronic gas- tritis.” The next interlineation is on page 9, the 1666 1667 1668 557 word “large” between the words “of” and “ in- testine,” so that it reads, “ portions of large intes- tine were then placed in glass jars, 3 in number.” That is all the interlineations I see. After I had gone through the paper and made the interlineations as I have described, I read it through continuously from top to bottom in the presence of those who afterwards subscribed it ; then it was signed and Dr. Delafield took it—he was the last man that put his name in it—and kept it in his possession. I next saw it at the Coroners inquest live months afterwards, held at Bingham- ton at the Court House ; some of the doctors who had signed the paper were there then—Dr. George Burr, Dr. Orton, Dr. Richards, Dr. Chittenden,Dr. Swinburne, Dr. Jackson and Dr. Griffin. Q. Are you able to state how the paper was dis- posed of then—what was done with it ? A. It was handed to me to give testimony about the inter- lineations and erasures, then the Coroner took it. Q. At how early a period were you called, if •ever, to treat Col. Dwight? A. I was in the office when he first called to consult my father, about the 11th of October, I think, 1878; I did not observe sufficiently as to be able to now describe what his personal appearance was then. I saw him October 15th, 1878. I knew of Col. Dwight before I became his phy- sician ; I would meet him daily in Binghamton ; he seemed every way healthy ; I think I examined him for life insurance. I couldn’t tell the dates ; I was acting for an insurance company then ; I can’t state exactly how many of them I was acting for ; I think it was in August, 1878, along the 21st to :30th ; my father was present in the office, and ■ we together made a thorough examination of the lungs and heart, as near as we could ; we made an exam- ination as to the murmur and the rytlim. Weexam- amitied the urine ; it was a thorough physical ex- amination. As far as I can say about a fact, his 1669 1670 1671 558 physical condition at the time of that examination was good. He was a large man, large chest; lie seemed every way healthy. I saw him the night before he died, and I saw him after he was dead, on the morning of the au- topsy, the third day after his death-—Monday morning ; that was the first time I had seem him after his death. The body was then in a room in the Spaulding House, where it had been brought for the purpose of cutting up; that is the time I have been mentioning. I attended the funeral the next day ; I also attended the C iroaer’s inquest or autopsy. Q. When was it you last saw what was remain- ing of him that went into the grave? A. I think it was April 23, 1879, I saw the body of Col. Dwight after he was dead so as to examine the neck. Q. And did you give it such an examination as to enable you to know with definiteness and certainty as to its condition ? A. Yes. Q. Now state to the jury whether there was any groove or indentation across the front of the neck of Walton Dwight ? A. There was no groove or indentation or crease across the front of the neck of Col. Walton Dwight. Q. The question is intended to be whether in the front, in the vicinity of that part of the neck that is called the “apple” there was any mark or uneven- ness of any kind of the surface of the skin upon this centre of the neck ? A. There was none. There were marks as noted in the autopsy—indentation on the side of the neck and put in by Dr. Delafield on the solicitation of Dr. Swinburne. There were in- dentations from here running up lower on one side than on the other ; there were folds on the side of the neck which were simply folds of a thick fleshy neck which had been chilled or grown cold in one position and then had been bent a little backwards, causing an indentation or wrinkle. 1672 1673 i ".. 1674 559 This did not extend across in front of the windpipe. 1 did not feel of it; I saw it plainly. Q. Are you able to state whether on the back side of this supposed wrinkle or crease or depression, or whatever it was, there was anything having the ap- pearance of parchment? A. I could see nothing having the appearance of parchment. Q. Was there any such thing or not? A. No. Cross-examined by Mr. Russell: Q. Was there or was there not, a heavy indenta- tion on both sides of the neck ? A. Yes, a heavy indentation or fold. Q. Why do you now call it “fold” when you called it “indentation” at the time of the autopsy? A. I didn’t call it indentation at the time of the autopsy. Q. Did you not subscribe to the notes that were then made and assent to them ? A. Yes. Q. And did not those notes describe this as a heavy indentation ? A. They described it as Dr. Swinburne noting it as an indentation. Q. Didn’t they describe it as a heavy indentation ? A. Yes. Q. Did you not understand that that note was adopted by all of the doctors then present ? A. Yes. Q. Why then do you now, at the suggestion of counsel call it a “fold”? A. Because it was putin at the solicitation of Dr. Swinburne. Q. Does it make it any the less or any the more true, because one man or another solicited? A. No. Q. Does it alter the force of the language in your mind, in the slightest degree, because Dr. Swin- burne unfortunately suggested it ? A. No. Q. Why then do you keep referring to Dr. Swinburne in trying to answer the questions in re- 1675 167a 1677 560 gard to this indentation? A. I don’t know why I do. Q. Was that indentation there in that neck the very first time you saw it after death? A. Yes. Q. Did that indentation remain upon that body unaltered in size or character the very last time you saw that body ? A. No. Q. Was it greater or less the last time you saw it? A. It was less. Q. That was at the time of the coronor’s inquest, was it? A. Yes. Q. Had the parts around the neck at all de- cayed ? A. Yes. Q. Was it for that reason that it was then less in size ? A. Yes. Q. Then that indentation in that neck caused as you say you think it was, remained there from the first time you saw it until the last time you saw it? A. An indentation remained there. Q. That indentation remained there? A. There were two. Q. I am talking about the indentation that ex- tended on both sides of the neck. A. There were two indentations, one on each side of the neck. Q. Then all the criticism you make to my ques- tion in answering is, that there was one inden- tation on one side of the neck and another on the other side? A. Yes. Q. Now assuming those two marks to be a con- tinuation of the same indentation, was the indenta- tion that you saw in April, 1879, the same indenta- tion you saw the first time you perceived this dead body 'f A. Yes. Q. Do you state this was the character of the in- dentation; “ a heavy indentation extending upward and backward from os hyoides to right around back of neck and on left side below thyroid cartilage running upward and backward at an angle of about forty-five degrees,” is that correct, as I have read, yes or no ? A. I don’t know. 1678 1679 1680 561 Q. Have you no recollection on the subject? A. Yes. Q. Why don’t you know? A, Because I would answer that question if I have the original minutes before me. Q. (Minutes referred to, handed witness.) You can’t answer the question I have asked you from mere recollection? A. I can’t carry in my mind all the features of the question. Q. Can you answer my question from recollec- tion, without the aid of notes ? A. No. Q. (Question repeated.) A. Yes, nearly. Q. Why do you now call it two indentations when you called it a heavy indentation then ? A. There was one on one side of the neck and one on the other side; that is the best answer I can give. Q. Why didn’t you note, then, it as one on one side of the neck and one on the other side of the neck ? A. I should probably, if I had been con- ducting the autopsy. Q. Didn’t you write the notes yourself? A I wrote as directed. Q. Didn’t you feel entirely free to criticise the language of the notes you yourself were commit- ting to paper and which you yourself say you signed as a respectable physician. A. Certainly. Q. Why didn’t you criticize this thing if you now criticize as two indentations ? A. It was only one that was noted, I put it down as was ordered. Q. It was only one noted then ? A. As the notes say. Q. Was there more than one indentation noted by anybody on that occasion? A. Yes, and spoken of. Q. Who spoke of it ? A. I think Dr. Swinburne spoke of another one showing each side of the neck, and I think Dr. Griffin did. Q. Wasn’t the indentation which was most marked and most perceptible noted by every doc- tor there, as a heavy indentation extending to both 1681 1682 1683 562 sides of the neck ? A. Yes, it was signed that way. Q. I come right back to the question of the mo- tive or object for your now trying to separate these two indentations and make two of that indentation ? A. I have no motive at all. Q. Hasn’t it been suggested to you by counsel for the plaintiff in their talk with you in some man- ner that there was more than one indentation there? A. No ; it has not. Q. Has it been suggested to you in any other quarter since that autopsy that there was more than one indentation ? A. No. vQ. Has anything since that autopsy suggested to your mind the advisability of separating this heavy indentation into two ? A. No ; not at all. Q. Are you more sure of your recollection now as to the appearance of that body than you were when you wrere sworn on the coroner’s examination? A. No, I don’t think I am. Q. Is your memory as fresh now as then ? A. Probably not. Q. You say you didn’t put your finger into this indentation ? A. No. Q. Hid you see anybody that did ? A. I was then writing, and I can’t say that I did. Q. Did you see anybody do it at the second au- topsy ? A. Yes; Drs. Swinburne and Sherman put their fingers to find one where they knew it was. Q. Can you say whether they put their fingers inside of the furrow or not ? A. Yes, I think they did. Q. Do you mean to say it was not the same in- dentation that existed there at the first autop»sy ? A. That is just what I mean to say. Q. You swear it was not ? A. I swear I saw them put their fingers in another indentation. Q. Do you. swear they did not put their fingers 1684 J 685 1686 563 in the same indentation that existed at the first au- topsy ? A. I wouldn’t swear to that. Q. In writing the notes on the first autopsy, did you write them on separate sheets of paper ? A. I wrote them on separate slips of paper like those; they were separate. Q. When were they attached together, if ever? A. I think here in Court, if I remember right. Q. On this trial ? A. I think so. Q. The first time to your knowledge ? A. Yes; but I had not thought of it before. Q. They were not attached together when the doctors signed the last sheet? A. Not to my knowledge. Q. Did you have more than one set of notes there ? A. I shall have to answer it yes and no. Q. If yes and no is the truth, we will proceed further? A. Well, I can tell it better in my own language in regard to that. Q. Did you copy more than one set of notes ? A. No. Q. Did you try to copy more than one set of notes? A. Yes. Q. From beginning to end? A. No. Q. At what point in the proceedings did those notes terminate ? A. I think before the first page was finished. Q. And did you undertake to keep any more? A. No. Q. Did you ever make a copy of these notes ? A. Yes. Q. Where is that copy ? A. In my pocket. Q. And will you let me see it ? A. Yes. (Copy produced.) It was made by me I think during the ■coroner’s inquest; I think in Dr. Orton’s office. Q. And is this copy the one that you used at the coroner’s inquest in detailing those things you noted at the autopsy ? A. No; I used there the one that the Court has. Q. The original ? A. Yes. 168T 1688 168& 564 Q. In the original autopsy, did you note on paper as follows : “ Cicatrix on external asj>ect of left thigh, about its middle, probably from a gun-shot wound? A. I think I did; it sounds something like it. Q. Did you further note: “ Doctor Swinburne- notes a heavy indentation upwards and backwards from os hyoides to right around back of neck and on left side below the thyroid cartilage, running up- wards and backwards at an angle of about 45 de- grees ? A. I think so ; something similar to that. Q. Did you also note this : “ Dr. Swinburne and Dr. Ayer think the same caused by bending: the head and neck backward” ? A. Yes. Q. Did yon also note this : “ Posterior aspect of body—posterior aspect of left thigh—at its mid- dle another cicatrix as from a bullet,” and post- mortem discoloration of posterior portion of body l A . I think so. Q. And this : “ Several small ecchymoses in skin of back and shoulders; anterior part of right arm small ecchymoses”? A. I think so ; that sounds something like it. Q. And this : “ Inner surface of scalp and outer surface of calvarium, nothing to note ” ? A. That sounds like it, I think that is it. A. And this : “ Dr. Swinburne notes fluid blood oozing from vertex of skull on removal of calvar- ium,” and “skull of normal thickness and inner surface of skull cap normal” ? A. Yes. Q. And this: “Dura mater external surface adherent to skull ” did you note that? A. I think so. Q. Will you please to state how the inner sur- face of the dura mater could adhere to the skull ? A. I misunderstood you ; I would not swear that it could. . It could not, could it? A. I think not. Q. “ Pacchionian bodies unusually large and 1690 1691 1692 565 perfect through the dura mater” is that right ? A. No. Q. That was not in your original notes? A. No. Q. What difference was there in that sentence which I last read ? A. It is “ project ” through, I think. Q. The word “project” instead of “perfect”? A. Yes ; I think so. Q. And this : “ Dr. Swinburne wishes to note the oozing of blood from dura mater opposite point in skull where it oozes. Inner surface of dura mater on right side unusual vascularity,” is that right ? A. I think so, but I am not certain. Q. What is there about that, that you are not certain of? A. About the “dura mater” and “unusual vascularity.” Q. I will read from the notes : “ Inner surface of dura mater on left side unusual vascularity” ? A. That is right then. Q. And this : “ Inner surface of dura mater on left side, chronic hemorrhagic pacchy-meningitis, with a small extravasation of blood on the left side over the posterior portion of the parietal and anter- ior portion of occipital lobes”? A. I think that is so. Q. “ Pia mater of convexity normal, except dis- coloration over occipital lobes from blood ”? A. Yes; I think that is it. Q. “Base of skull, dura mater, normal”? A. Yes. Q. “ Base of brain, pia mater normal, anterior, middle and posterior cerebral arteries normal”? A. Yes. Q. “ Ventricles of brain normal” ? A. I thinkso. Q. “ Substance of cerebral lobes normal as to color and consistence, except that the grey matter is a little darker than usual ” ? A. Yes. Q. “Brain neither congested nor anaemic” ? A. Yes. Q. “Corpora striata, optic thalami, corpora 1693 1694 1695 566 quadrigemina and medulla oblongata normal” ? A, I think that is it. Q. “ Weight of brain three pounds four ounces ” ? A. I think that is it. Q. ‘"Body—rigor mortis—well marked; thick layer of subcutaneous adipose tissue, muscles well developed, good color ; omentum thickly loaded with fat”? A. Yes. Q. “Abdominal viscera in normal position ex- cept the liver, which is pushed upwards, and the pyloric end of the stomach, which is lower than it should be” ? A. I think that is it. Q. “Thorax, lungs and heart in natural posi- tion, except that the lungs are unduly inflated, and that the right lung extends a little to the left of medial line”? A. I think it was the left lung ; I am not certain about that. Q. (Paper handed witness.) Those are the or- iginal notes. A. It is the right lung. Q. You mean by the lung being unduly inflated that the upper part of the lung being filled with air when they were opened, it escaped ? A. No, that is not what I mean. Q. Do you mean tilled with blood and water l A. INo, the lungs were filled with air and held there, or seemed to be. Q. And the upper portion especially ? A. I don’t remember particularly the location of it. Q. What was it that held the air there? A. I am sure I don’t know. Q. And you made a report of the post-mortem examination and don’t know? A. I wrote the notes. Q. Did you make no observation of the body ? A. Yes. Q. And you don’t know what it was that held the air in those lungs ? A. I don’t know; no. Q. “Left pleural cavity old adhesion;” is that right? A. Yes. Q. What do you mean by old adhesions ? A. The- 1696 1697 1698 567 adhesions of the pleura to the pleural surface—to the walls of the chest—the covering of the lungs to the walls of the chest. Q. Is that an indication of disease ? A. Not necessarily. Q. Is it a usual indication of disease? A. No. Q. Is it an indication of health ? A. No. Q. Was it an indication of—anything ? A. Yes. Q. What? A. That there has been disease. Q. In other words, that there has been a disease called pleurisy ? A. Possible. Q. Isn’t that a fair indication from the fact? A. No. Q. I ask you whether it is possible for such ad- hesion to come from anything else except disease ? A. Yes; an injury. Q. Don’t that produce disease? A. It is not di- sease, but it may produce disease. Q. Then, with the exception of a mechanical injury, these old adhesions inevitably indicate disease? A. Oh, yes. Q. In that connection, is pleurisy a common accompaniment of consumption ? A. I don’t know; I am not an expert in that respect. Q. But have you not noted in this autopsy the indication of disease afforded by the adhesions, and also the indications of pulmonary phthisis or con- sumption ? A. No; I have not; I didn’t note either; I put in the notes old adhesions and old pleuratic adhesions, but I didn’t note the disease. Q. Didn’t you note these two things that are actual indications of these diseases ? A. Why, yes. Q. “ About four ounces of serum in bottom of pleural cavity; no adhesions on right side;” is that right ? A. I think so. Q. “ Four ounces of clear serum on right side, amount of serum estimated and not measured”? A. I think that is it. Q. What do you mean by serum ? A. It is the 1699 1700 1701 568 watery part of the blood; a good name for it would be water. Q. “Pericardium” normal? A. Yes; the peri- cardium is the membrane around the heart—the heart case. Q. “Left lung one pound and three-quarters, bronchi congested and coated with mucus, upper lobe congested and oedematous, lower lobe still more congested and oedematous, right lung two pounds”? A. I think that is it. Q. “Bronchi congested and coated with mucus, upper lobe at apex several small fibrous nodules, probably the result of old pulmonary phthisis”? A. Yes. Q. By old pulmonary phthisis you mean con- sumption ? A. Yes; that is the common name for it. Q. “Rest of upper lobe congested and oedematous, middle lobe normal, lower lobe congested and oedematous;” is that light ? A. I think so. Q. “Heart, weight 15 ounces; right ventricle con- tains a little fluid blood, not over one-lialf ounce; pulmonary valves a little thickened at their at- tached edges, otherwise normal; cavity of right ventricle about normal size; walls three-sixteenths inch thick; tricuspid valve slightly thickened; endo- cardium of right ventricle and auricle normal; left ventricle contains a little fluid blood, not over one- half ounce; aortic valves a good deal thickened at their attached edges; wall of left ventricle three- quarters of inch thick; cavity normal size; endocar- dium normal; left auricle contains a little clotted blood; mitral valve thickened; capillary muscles, slight increase of fibrous tissue; spleen, weight three-quarter pound, normal in color;” is that right? A. I think so, except small clots was in one place. Q. I have given it small clots; was that correct ? A. I think so. Q. “ Spleen, weight three-quarter pound; normal 1702 1703 1704 569 in color; consistence a little soft ”; is that right? A. I think so. Q. “ In a wash bowl, rinsed out clean, the sto- mach was placed before opening; the stomach •contains a considerable amount of thick greyish fluid, containing portions of undigested food, the contents of the stomach were then placed in three glass jars, half in one, one-quarter in each of other two. The stomach at the fundus, mucous mem- brane softened and partly destroyed by post-mor- tem changes, pyloric end of stomach, mucous mem- brane studded with small white spots denoting chronic gastritis.” Is that correct, so far? A. I think so. Q. “ The stomach was then divided and placed in three jars sealed and labeled ‘ Stomach of W. Dwight, November 18, 1878.’ ” Is that correct ? A. I think so. Q. “Large intestine contains faeces, solitary glands slightly swollen throughout its entire length, mucous membrane not congested ; portions of large intestine were then placed in glass jars, three in number, sealed up and labeled, ‘ Large in- testine of W. Dwight, November, 1878.’ Small in- testine contains a moderate amount of fluid faeces; the duodenum a little congested, and a little swell- ing of its solitary glands in its upper part.” Is that right ? A. I think so. Q. “ Upper part of jejunum, mucous membrane not congested; a single agminated gland swollen. Ileum, upper part moderate congestion, and some increase of mucus. Agminated glands a little swollen.” Is that right ? A. I think so. Q. “ The lower portion of the ileum general con- gestion and pretty marked swelling of the solitary and agminated gland. Portions of the small in- testine placed in three glass jars, sealed and labeled ‘ Small intestine of W. Dwight, November 18, 1878?’ ” A. I think so. Q. “Liver four pounds 15 ounces, fairly con- 1705 1706 1707 570 gested, rather more than usual, normal color and consistence ” ? A. I think so. Q. “Ureters left rather normal; left kidnej% weight 6 ounces, uniformly congested, capsule slightly adherent to surface of kidney, surface of kidney normal to linked eye.” Is that right. A. Right rather normal. Q. “ Right rather normal; left rather normal ” % A. I don’t understand that “rather.” Q. Those words, “Right rather normal” and “ Left rather normal.” The right ureter and left ureter normal ? A. I think so. Q. “ Left kidney six ounces, uniformly congest- ed; capsule slightly adherent to surface of kidney. Surface of kidney normal to naked eye ” ? A. I think that is so. Q. “Right kidney weight seven ounces, marked general congestion; capsule slightly adherent; sur- face smooth; no evidence of disease.” Is that so ? A. I think that is so. Q. “ Bladder normal, tongue coated, papillae* swollen, tonsils normal for an adult, pharynx normal,” is that right ? A. Yes, I think so. Q. “Epiglottis, larynx and trachea congested and coated with mucus—portions of liver and kidneys were placed in glass stopped bottles, and sealed and labeled, ‘ Liver and kidney of W. Dwight, November 18, 1878’; peritoneum normal. Report of this autopsy read before those present, and no objection made thereto”; is that right? A. I think so, as far as I can judge from recollec- tion. Q. Now, did you not testify before the coroner’s jury that these notes, after they were changed or interlined, were not re-read before the physicians ? A. No. Q. Was there anything about any of the organs, to which the notes of the autopsy relate, which left any evidence of disease whatever that you say is not noted ? A. No. 1708 1709 1710 571 Q. Did you not testify in these words : M I said I had no recollection of its being read as amended,” referring to your notes ? A. No; I think not. Q. Are you sure that you didn’t swear to that language : I said I had no recollection of its being read as amended” ? A. No; I think I did not. Q. (Question repeated.) A. Yes, I think I am. Q. Why do ,7011 put in that word “ think”; is it to qualify the rest of the sentence? A. No, not necessarily. Q. Can’t you say out and out you are sure ? A. No. Q. I read to you from questions put to you by Dr. Bassett on page 355 : 11 When you were writing the report of that autopsy, did you have an oppor- tunity to examine the pathological condition of the parts ? A. 1 did. Q. The doctor would examine the parts before him, and then invite all present to look at them and inspect them, and he said to you to put down, that accounted for the little dis- crepancy ? A. Y7es, sir.” Did you so testify ? A. Yes. Q. “ In the morning ? A. Yres. In the wording of the report, and Dr. Delafield made one copy of the autopsy himself, and probably changed the wording and phraseology.” Yrou so swore? A. Yes. Q. Was there that used the scalpel on that autopsy excepting Dr. Delafield ? A. I think some one assisted him to open the intestines. Q. Who was that some one ? A. I don’t remem- ber now. Q. And with the exception of some one helping him to open the intestines, no one used the knife excepting Dr. Delafield ? A. I think not, no. Re-direct-examination by Mr. Smith : Q. Do you recognize several gentlemen here who 1711 1712 1713 572 were at the inquest? A. I do; every facility was afforded for making an investigation by anybody, so far as they manifested any desire; that included Dr. Swinburne. Dr. Sherman and Dr. Bridges were not at the first autopsy. Q. Those depressions of the skin on this man’s neck—were they connected together or not? A. No; there was one on each side of the neck. Q. And was the one higher up than the other, and if so, how did they compare in that respect? A. One was on one side as noted—it was opposite the os hyoides Q. Which was the nearest to the top of the head ? A. I couldn’t tell you just now without referring to the notes; I said one was higher up than the other; I think it was the one on the right; I can’t say ex- actly how much nearer it was to the jaw, or how much higher up it was than the other. Q. Well, about? A. About three-quarters of an inch. Re-cross-examination by Mr. Russell ; Q. Was Dr. Henry Smith at the autopsy? A. I think not, I wish he had been. Q. Was he there at the post-mortem examina- tion ? A. No, but I wish he had been. Q. Did I ask whether you wished he had been ? A. No. Q. Why did you add those words ? A. Because it came to me. Q. It was an inspiration at that time? A. Call it what you choose. Q. You have taken a great deal of interest in this case? A. Well, no, not particularly. Q. Why do you put in that word “ particularly ?” A. Because it qualified the “No.” I have been interested as a physician in this case. Q. Haven’t you been interested personally ? A. No. 1714 1715 1716 573 Q. Are you not one of the beneficiaries in the will ? A. No. Q. You are not referred to in the will ? A. No, not at all. I haven’t been helping the lawyers on medical subjects, nor suggesting questions to them, not one. Q. Or information of any kind in the case of the matter of these insurance policies ? A. They have asked me questions. Q. Have you given them information? A. I couldn’t say as to that. Q. Did you say that every facility was offered those outsiders at that first autopsy to assist in the autopsy ? A. Every facility was given to outsiders to be present at the autopsy, and to look on and see. Q. Anything more? A. No, nothing more. Q. Was there a single person outside of that con- clave of doctors that were there around the dead body, that propounded one question or suggested one thing? A. No. Q. Didn’t you understand that the gentleman’s questions to you on re-direct-examination were confined to the first autopsy? A. I understood so, and I think I asked him ; I said that Dr. Sherman and Dr. Bridges were not present at the first au- topsy. Q. I ask you further as to your testimony before the coroner’s jury, did you state this on page 389, “ I desire to state that Dr. Delafield asked me to take the notes, and I went to my desk and took from there a package of paper containing six sheets, that there was no means by which I could make a duplicate page, or any opportunity of it. The whole six sheets were written on one side of the paper, and after they received my signature they did not come into my hands again until I took the last page from Dr-. Swinburne in the Spaulding House and carried it to Dr. Delafield,” you so ated ? A. Yes. v 1717 1718 1719 574 Q. I will ask you if you tore up any of the paper? A. I did not; there were just six sheets, and if you will look at the report of the autopsy you will find twelve sheets pinned together and numbered from 1 to 12 inclusive. Q. On page 390 : “ I was in error when 1 said I got it myself ; father did ; he went to the desk and got the paper ; it was paper I recognized as from my desk/’ you so stated ? A. Yes. 1720 James E. Lee, called as a witness on behalf of the plaintiffs, and sworn, testified as follows : Examined by Mr. Newton : I reside in Binghamton, and knew Walton Dwight; in November, 1878, I was employed at the Spaulding House ; I was there the night of his death ; during that night they had a dance there,in the hall ; I went to Col. Dwight’s room ; there were when I got there W. F. Spaulding, Charley Hull and Mrs. Dwight; I went there from around front to the cottage, entering the frontdoor ; the front door was shut; the hall door going into sitting room was open ; the front door was unlock- ed ; after entering the hall I went into the sitting room and then into the bedroom ; there I found W. F. Spaulding, Charley Hull and Mrs. Dwight ; when I entered the room Spaulding had his arm X3artly around the Colonel's shoulders, and he had a spoon pouring brandy in his mouth ; Hull was partly holding him ; at that time Mrs. Dwight was at the side of the bed, rubbing his hand ; at that time he was breathing ; I went after some hot water —Mrs. Dwight asked me to go after some ; I went around through the house into the kitchen, and got a pail of hot water ; I brought it back into the room and poured it into the wash bowl, and set it 1721 1722 575 ’aside of the bed, and then Mrs. Dwight put his hand into it, and then rubbed Ills hand ; when I got back he lay bolstered up in bed ; Spaulding was there yet—holding his tongue—holding his tongue with his lingers; at that time I noticed he was breathing ; I should judge that his hands were kept in that hot water four or live minutes; after that I helped undress him ; I took off his un- dershirt ; unbuttoned his collar and took off his undershirt; that was taken off over his head ; me and IVIr. Ayers, the undertaker, did that ; I did not stay all the while he was being washed ; I saw him again after he was washed ; his body was in the •same room ; we helped put it on a board or boards ; they carried it out—that was after I left ; while I 'Was gone into the hall they carried it out; they had a dance up there in the hall and I went up to stop ,the dance ; it was stopped upon the announcement •of his death ; after that visit I think I returned again to the room where the body was then lying. Q. (By the Court.) Describe what opportunity you had of seeing the neck? A. We took his un- derclothes off ; we had to roll him over once to get • off his shirt—partly over ; then he was naked. Q. Was there any crease, or line, or mark around, his neck at that time? A. No. by Mr. Russell: I am a hotel porter at the Exchange Hotel in Binghamton ; I have followed the business of a hotel porter for twenty-three years ; on the night that Walton Dwight died I was porter at the Spaulding House ; I commenced there at the Ex- change Hotel .twenty-three years ago, and went from there to the American,, and from there to the- Spaulding House, .and then back to the Exchange ; .1 am forty-one years old, Q. What.were you doing the night Dwight died- 1723 1724 1725 576 before you heard of his death ? A. I was up in the dance hall. Q. Dancing? A. I probably was. Q. About what time of the night did you hear of his dangerous condition ? A. I should judge about eleven o’clock, I couldn’t say exactly ; about that time I should judge ; may be a little after ; from there I went down to the hotel in the office. Q. Did you see Warren Spaulding in the office ? A. No, he was not there then. Q. From the office you went where? A. To Col. Dwight’s room ; I went out of doors to go into the room ; I went along the front way. Q. You say the front door of the cottage in which he was lying was unlocked at that hour,after eleven o’clock at night ? A. Yes. Q. That was after eleven o’clock? A. About that, I should judge. Q. You went in at the front door and up into the sitting room, did you ? A. Yes ; the sitting room was right inside and on the first floor ; the door to the sitting room that led from the hall into the sitting room was open. I found three persons in- side, as I have described. Q. Did you particularly notice his breathing? A. Yes. Q. Did you count the number of his respirations? A. No. Q. Can you tell about how often he was breath- ing ? About how many times a minute ? A. Well, sometimes he would breathe a little faster, and times slow and easy. Q. Can you tell about how many times a minute he was breathing ? A. Four or five, I should judge, and maybe more and maybe less; I couldn’t tell; I don’t think it was any less. Q. Is four or five about the average number of breathings, do you think ? A. I couldn’t tell any- thing about it. Q. Why did you say four or five ? A. I should 1726 1727 1728 577 say it was that; that is as near as my present re- collection will serve me. Q. He would draw a breath about once in twelve or fifteen seconds? A. A little faster than that, I should think. Q. Faster than that, you should think now ? A. I don’t know but it was. Q. Is there anything more you remember about his breathing? A. 1 don’t know as there is ; I did not l'eel of his pulse ; I didn’t go in there for the purpose of making any examination. I didn't have that in my mind when 1 went in. Q. Did you see any other sign of life about him ? A. Well, he hardly opened his eyes once or twice, I think. Q. Any look of intelligence in his ? A. No, nothing particularly. Q. Was his chin dropped down on his neck. A. Yes. Q. Was his chin touching his neck? A. When they held him forward it did, and when they didn’t it went back on the pillow; when they went to pour the brandy down they would hold it back. Q. Otherwise his chin rested on his neck or breast? A. Yes. when they set him up. Q. The fact was, his chin rested on his breast when he was not held by others, didn’t it? A. I couldn’t say that. Q. How long were they engaged in trying to soften his hands in hot water? A. I should think four or five minutes, maybe. Q. Was the water quite hot? A. No, not very ; I couldn’t get any very hot water; it was lukewarm; it was as warm as I could get it; I went after hot water. Q. What did you bring lukewarm water for? A. It wras the best I could do under the circumstances. I helped take off his underclothes ; he had on two shirts. His undershirt was worked up pretty well; rolled up under his arms. 1729 1730 1731 578 Q. Worked up under liis arms? A. Yes, about half way up. Col. Dwight didn’t have any collar on at all. Q. Didn’t you say, on direct-examination, you took his collar off. A. He had no collar on. Q. Did you say, on the direct-examination, he had a collar on ? A. 1 didn’t understand the collar business; shirt-band. Q. Didn’t you swear, on the direct-examination, within the last twenty minutes, you took his collar off ? A. I unbuttoned his shirt-band, I mean. Q. (Question repeated.) A. I don’t remember as 1 said collar. I didn’t mean a shirt collar. I thought I said a shirt band ; I might have said col- lar—no, I didn’t say anything about collar; I didn’t take any collar off ; I went for the under- taker that night; I did not go for the doctor; I went for the undertaker within ten or fifteen min- utes after he died ; no doctor had got there then ; I don’t know that any one went for the doctor be- fore I went for the undertaker ; I did not go for the undertaker and stop for the doctor on my way back. I am certain about that. Re-direct-examination by Mr. Newton ; Q. The front door of the cottage, was that us- ually locked nights ? A. After all the trains got in at twelve o’clock, it was locked. Q. Was it locked before twelve? A. Hardly ever locked it unbeknown to the hotel men. Re-cross-examination by Mr. Russell: Q. Now, besides Warren Spaulding, Mrs. Dwight and Mrs. Owen, was there any body in the room? A. I don’t remember seeing Mrs. Owen. Q. Besides Mr. Dwight and Spaulding was there anybody there? A. No, not that I saw, except 1732 1733 1734 579 Mr. Hull, those three are all I remember seeing in there. Q. You didn’t see Alvin Spaulding or his wife? A. No, I didn’t see him there at all. Q. Is Warren Spaulding in the room? A. I don’t see him. 1735 Joseph H. Chittenden, called as a witness on behalf of the plaintiffs, and sworn, testified as fol- lows : Examined by Mr. Smith : I am a physician and surgeon, and reside in Bing- hamton ; have practiced my profession at that place seventeen and a half years; I knew Walton Dwight; have known him most of the time since he came to Binghamton; I don’t remember when he came there. I must have known him perhaps eight or ten years. My attention was first called to his physical condition when I first saw him. Q. And after that was there anything special that occurred that called your attention to his con- dition ? A. Nothing special, no. Q. Not even death ? A. Well, I saw him when dead. Before that time I had examined him for life insurance on two separate occasions; I ex- amined him for the Washington Life ; that was at the time he took out a large amount of insurance once before, eight or nine years before 1878. It was when he'took out the first batch. At that time I gave him as careful an examination as I knew how. I though I observed him with sufficient' closeness to enable me to determine what kind of condition he was in. I examined his lungs, in every particular as well as I knew how. I pro- nounced him healthy. I thought the certificate to be a true statement. I examined him again, I 1736 1737 580 think some time in August, 1878 ; I don’t remem- ber the company ; it was to test his health with the view to a life insurance ; it was equally thorough in its performance. I found him sound. I saw his body after death, in the hall at the Spaulding House, on the occasion to which reference has al- ready been made here by the other witnesses, at the autopsy. I saw the in the hall ; it was ly- ing on a board ; an inspection was made of the body, both on the front and back part of the body ; then the brain was next examined; then all the organs on the internal part of the body were examined in detail by Dr. Delatield, making the dissection, and giving the notes to Dr. D. S. Burr to write out— dictating to Dr. Burr what to write. There were various things noted that attention was directed to on the outside of the body, among which was this mark upon the neck which has been spoken of. Dr. John Swinburne called attention to that. The head was on a head-rest thrown forward ; when the head was dropped back it showed a mark upon the neck and Dr. Swinburne says, “ What is this” various medical gentlemen examined it as well as myself. That is not all that wras said about it. It was closely inspected. There was considerable ex- amination of the neck by the various gentlemen, and various opinions given as to what was the oc- casion of it. Finally Dr. Delatield directed Dr. D. S. Burr to write “a heavy indentation” and de- scribed it on the neck. Q. Describing it how? A. As arising at a certain point on the Adam’s Apple, and running backward and around the neck; described it one side and then described it on the other side, as starting at a different point on the neck and running also back- wards. Afterwards there was conversation as to the cause of it. Dr. Ayer stating it was caused by the manner in which the head had been placed while in the ice box and cooling, and it was de- 1738 1739 1740 581 scribed that when the head was thrown back these folds separated leaving this indentation. Q. When Dr. Ayer expressed that as the prob- able cause what did John Swinburne say about it? A. Well, he said probably it might be so. Then Dr. Delatield ordered Dr. Burr to write “Dr- Swinburne, and Dr. Ayer think it is caused by bending the neck forward.” Q. When Dr. Delatield said that what did these gentlemen say to it % A. There was no objections made to it. I saw this mark upon the neck, and I felt it ; I looked at it so as to know what color it was. The neck was a short, thick, fleshy neck, and before the head rest was taken away the head was thrown forward, and upon taking that away the head dropping back opened these folds across the neck. They were soft ; there was no unusual feel about that different from any other portion of the neck ; just simply seemed to be that the head was thrown upward. They were folds made as the head was thrown forward. They started from the front side of throat, one from the upper portion of the Adam’s Apple and passing around towards the back of the neck, and the other started at a lower point, perhaps half or three-fourths of an inch lower, and went back in the same way ; these lower- points were not opposite ; there was no mark of any kind between those two ends and across this part of the neck that is known as the windpipe— they were not joined at all ; there was no mark there at all. Q. Wherever there was a mark on this man’s neck did you feel of it so as to know what it was % A. Yes, and looked at it; on the back side of it there was nothing to be felt particularly ; there was simply the fold there, and it was opened by throw- ing the head back and the parts had become--the post-mortem stiffening had taken place—I don’t mean stiffening, but the parts felt like the other portions of the body. 1741 1742 1743 582 Q. I ask whether there was on the back side of this, this half round appearance? A. No, it was more like as a fold would be ; not particularly round. Q. More like a fold in your garment ? A. Yes. Q. Now, was there any discoloration or stripe or part there that could be seen there different from the surrounding part ? A. No, there was no such thing. Q. Well, about this parchment appearance—what was there about that ? A. It had no such feel. Q. How do you know ? A. I felt of it. Q. Did you observe so as to speak with certainty about the condition of this man’s lungs ? A. I ob- served pretty closely, yes ; there were no cicatrices in the lungs ; there were nodules on the apex on the top of the right lung ; it was on the surface, these were little bodies on the surface of the lungs ; I think that I observed three little bodies on the surface of the lung ; perhaps they were as large as the half of pea split in two, moderate sized pea, closely together upon the upper portion of the right lung, having a, somewhat hard feel ; there were no other of these things in the lungs ; some portions of the lungs were somewhat congested or tilled with blood in some portions—that is what 1 mean by ‘ ‘ congested.” Q. Anything else ? A. Nothing special as I now remember ; the lungs were pretty thoroughly tilled with air and in a congested condition ; nothing else about the lungs that I remember. Q. The fact that a man dies and not having emptied his lungs of air, does that indicate any- thing that yon know of as to his death? A. No ; I have heard the description given by these doctors here to-day about the proceedings in dissecting this man’s body. Q. State what was done in the autopsy ? A. As I said before, the brain was opened, or the brain was examined; the scalp was cut across and laid back, and the upper portion of the bones of the 1744 1745 1746 583 skull were sawed through, and then the mem- branes of the brain were examined ; then the brain was removed and examined ; it was taken out and then sliced up afterwards ; I believe at one point on the membrane of the brain was noted a slight extravasation of blood—blood poured out into the tissues—a red spot. After the brain had been ex- amined, then the cavity of the body was opened— the chest—the lungs were examined and the heart. After most all the ocher organs had been examined, then the tongue and windpipe were removed and examined. Dr. Swinburne insisted upon the cut- ting of the throat ; he asked that it should be done. An incision was made ; there had already been an incision made below here, and the incision was continued on up underneath the chin and coming down to the windpipe ; it was then examined—the parts were thrown back ; then it was taken down and ont, windpipe and all, dissected out. Exter- nally, there was nothing to note abnormal about the pipe through which the air passes from the mouth into the lungs ; the tongue was not swollen ; the peculiarity of its structure keeps this pipe open so it don’t shut up when a man is alive; it has cartilaginous rings ; it was all laid open and the inner surface exposed ; it contained only a little mucus ; the rings were natural, and there was no disturbance of them ; this was at the Spaulding House at the first autopsy. The tongue and so on were not returned; the cut under the chin was brought together and filled with something ; I think it was the undertaker put it in; something was stuffed in ; I think cotton ; it was brought to- gether and sewed ; I am not sure who did it, whether Dr. Delatield or the undertaker; it was filled with cotton—the neck was. The liver and spleen were examined, also the lungs and kidneys and the bladder and the guts ; they were examined their entire length ; they were 1747 1748 1749 584 slit open, and every pari carefully examined down through ; I think that includes all. Q. Now, if there was anything you are able to describe by words here, in reference to the condition of any of these parts of either of these organs, that were unnatural or different from ordinary human beings, I wish you would mention it ? A. There might be rather more—there might some of them have been more filled with blood than perhaps you would find on some occasions. Q. Than you did find on this occasion ? A. There might be—the spleen was not much enlarged and rather soft. Q. You said there might have been more blood and mucus in one man than in another man ? A. No ; there was nothing peculiar in Dwight’s body in that. Q. What do you say about that ? A. That some of the organs were a little more filled with blood than we see in some other bodies that are ex amined. Q. I suppose the quantity of blood in a man de- pends some on his size and his condition at the time he dies, in regard to nourishment? A. It makes some difference. Q. Was there anything further or other that you can mention in reference to the condition of this man with reference to other dead bodies, except as it may be varied by a man’s being large or small, thick or thin? A. I don’t remember in par- ticular. Cross-examination toy Mr. Russell: Q. In making the examinations you made of Walton Dwight during life, could you have detected by auscultation or by percussion the existence of fibrous nodules in the lungs? A. Not of that size—no. 1750 1751 1752 585 Q. And still those fibrous nodules indicated pre- vious pulmonary phthisis ? A. I didn’t say so. Q. Did they not? A. I am not sure of it. Q. Are you one of the doctors who doubt what you signed ? A. I don’t doubt what I signed ; no, sir, I didn’t state it. Q. You doubt as to the truth of what you signed ? A. I didn’t so state it. Q. Do you mean to say you didn’t sign the notes of this autopsy? A. Oh, no, I did sign them. Q. Did you sign the notes which stated that these nodules were the remains of previous pulmon- ary phthisis? A. I signed the notes as they were taken ; yes, sir. Q. Didn’t they state that according to your re- collection of them ? A. Yes. Q. Then isn’t my assertion true that these nodu- les indicate previous pulmonary phthisis ? A. It was so stated in the paper. Q. (Question repeated.) A. I don’t know that it would be true. Fibrous nodules do not always mean pulmonary phthisis. Q. Isn’t it true that these fibrous nodules in the body of Walton Dwight indicate previous pulmo- nary phthisis ? A. Not necessarily. Q. Do you mean they would naturally ? A. They might indicate it. Q. I didn’t ask what they might have done ; didn’t it indicate to your mind the existence of that disease ? A. I don’t know. Q. Then you didn’t know what you signed ? A. Yes, I knew what I signed. Q. Didn’t you sign a statement that they did in- dicate this disease ? A. I had nothing to say about the state of it at all; I signed the paper. Q. You had something to do about it when you signed your name to it? A. Yes. Q. Did you mean to sign a paper that didn’t in- dicate what you truly thought upon the subject; 1753 1754 1755 586 did you mean to sign a paper that lied about wliat you thought about it ? A. I signed the paper— Q. (Question repeated). A. I didn’t mean to sign a paper that lied about what I thought ; I didn’t give much thought to it at that time. Q. If you didn’t give much thought to it at that time, are you able to give more thought to it now after a lapse of five years ? A. After considering the subject I can give more thought to it. Q. Then you are able to give more thought to it and detail it more precisely now after the lapse of five years than you could at the time you saw the dead body before you ? A. I have not said so. Q. Is that what you mean ? A. I could get to a better conclusion after examining the subject and after five years consideration than I could without any consideration. Q. Than you could at that time ? A. Yes. Q. Then at the time you signed these notes you knew that the statement there was,that these nodu- les indicated previous pulmonary phthisis? A. I knew the statement said so. Q. Did you sign that endorsing that statement, or did you not ? A. Well, without any thought, yes ; without any thought on that particular point. Q. You mean to say that your signature to this post-mortem was given without any thought? A. I didn’t put any thought upon it. Q. Was there any other thing you didn’t put any thought upon ? A. I thought of the Q. (Question repeated.) I don’t now remember. Q. Were the notes read to you before you signed them ? A. Yes, and I heard the whole. Q. Did you make any objection ? A. No. Q. Was there any dissection made of those nodules ? A. Yes ; they were cut into. I saw the surface cf the cut ; it looked like what might be described as a gristle. 1756 1757 J 758 587 Q. Cartilaginous in its character. Do you mean that ? A. Somewhat so. Q. Like a cartilage—like a gristle ? A. Hardish substance. Q. Do you mean by a gristle, what we commonly call cartilage ; is it the same substance—a gristle and a cartilage ? A. I will say yes. Q. You mean to say there was a gristle, cartila- ginous substance ? A. A hard substance that was cut across. Q. Do you mean to say there was a gristly carti- laginous substance in the apex of one of these lungs? A. It was on the surface; it was not im- bedded in the tissue of the lung itself; it was on the top of the lung. Q. It was on the surface of the top of the lung? A. Yes. Q. Well, it extended below the surface of the lung ? A. It would seem to grow out on the sur- face of the lung more like—raised up. Q. Did you make such an examination of that gristly substance you say was in those fibrous nodules, that you can say it did not extend below the surface of the lung ? A. No. Q. Was a post-mortem of that body complete, in regard to anything like diseases of the lungs, without a careful dissection of this gristly sub- stance you speak of ? A. I should not suppose it would be. Q. You describe these nodules as Dr. Hyde did, as tumors ? A. They seemed to be little bunches on the lungs. Q. Do you describe them as tumors ? A. Some- thing, yes. Q. Now, in the examination of that body, you examined the heart, did you ? A. Dr. Delafield did. Q. Did you examine it ? A. I looked on while he examined it, as the other gentlemen did. Q. What were you there for ? A. To look on. 1759 1760 1761 588 Q. And try to find out something? A. To see what I could see. Q. To reach any conclusion ? A. I was there simply to look on. Q. Were you there simply as a curious spectator or to find anything ? A. I was there to be in- structed and learn something. Q. Were you there merely as a spectator or to see if you could not reach some conclusion ? A. I was invited there to see the autopsy, and to see what conclusions were reached. Q. You know better than to answer me in that way. Were you there for the purpose of making such examination yourself, so that you could, in your own mind, reach a conclusion ? A. Perhaps so ; yes, sir. Q. Now. in that examination of that body, did you examine the heart ? A. Yes. Q. You did examine the heart ? A. Yes. Q. Did you find that heart healthy ? A. It seemed to be. Q. Did you find it so? A. I thought it was healthy. Q. By that, you mean there was no evidence of disease to the naked eye ; no disease discovered ? A. Only, perhaps, in some of the valves there might have been some little change. Q. That is not unusual, and nothing remarkable? A. No. Q. Now, return to the lungs ; you found the lungs congested, didn’t you? A. In portions; yes. Q. And what you call oedematous ? A. It was so stated. Q. And unduly inflated ? A. It was so stated. Q. Didn’t you find they were? A. Yes. Q. Are you able to tell why the air could not get out of those lungs ? A. No. Q. No examination was made that you know of to ascertain what it was that retained the air in the 1762 1763 1764 589 lungs? A. They were divided across and examined very thoroughly. Q. Was there any examination made at that time to satisfy your mind as to the cause of that undue inflation of the lungs? A. No, not especi- ally. Q. Was there generally ? A. There were general sections made of the lungs, of all parts. Q. Was there any special or general examination of those lungs sufficient to satisfy your mind as to what caused that undue inflation of the lungs ? A. No particular examination, no. Q. Was there any general examination ? A. There was a general examination made of both the lungs. Q. Was there any examination of any kind, general, special, particular or otherwise sufficient to satisfy your mind as to the cause of the undue inflation of those lungs? A. I don’t know how to answer you. I don’t think I understand the ques- tion. Q. (Question repeated.) A. There was an exam- ination to find any cause and all causes for death in the body. It was a general examination of the lungs. Q. (Question repeated.) A. I will say no. Q. Do you say the liver was healthy and normal in color? A. It was said to be, I believe. Q. What do you say ? A. Yes, it was. Q. And the spleen was healthy and normal in color ? A. I believe it was a little softer. Q. Nothing unusual ? A. No, nothing unusual, and healthy and natural in color. Q. The stomach contained some food that was not wholly digested ? A. It did. Q. And the intestines contained a portion of the excrement? A. They did. Q. And those two facts indicated that the process of digestion had been going on in that body at the time of death ? A. To a limited extent. 1765 1766 1767 590 Q. To the extent of an amount of digested and undigested matter found in the body ? A. Yes ; to an amount of both digested and undigested food in the body. Q. Did you notice any old adhesions of the lungs on the autopsy ? A. There were some adhesions, yes ; I saw the adhesions. Q. Were they old adhesions ? A. I suppose they were ; I don’t know how long they had lasted or how long they had been there. Q. Does your medical knowledge extend to the telling whether the adhesion is an old or new one? A. 1 might tell something about them, but I couldn’t tell how long they had lasted. Q. Can you tell from your medical skill and ex- perience whether an adhesion of the lungs is an old one or a recent one ? A. No. Q. Then you don’t consider yourself an expert on that ? A. I am not an expert. Q. In any sense of the word ? A. No. Q. Then as far as your observation of this au- topsy was concerned, your professional skill and knowledge did not afford much benefit to you in respect of indicating the cause of death or disease ? A. It does, my observation and knowledge does. Q. Is your observation and knowledge sufficient to enable you in making an autopsy to discover the cause of disease or death? A. In many cases ; there are cases where it is impossible in an autopsy to give the cause of death from the autopsy. Q. I am confining it to your knowledge—are you competent as a physician, to discover the cause of death or disease from an autopsy where there are any structural changes in the body itself which are sufficient to denote the cause of death ? A. I think it is. Q. Then I infer from your testimony that there were no structural changes in this body to your observation, which were sufficient to indicate the 1768 1769 1770 591 cause of death ? A. I did not see any. Pleurisy is an inflammation of the pleura. Q. And what do adhesions indicate? A. They indicate that after this inflammation has existed, there is a fluid that is thrown out, and this becomes organized in a certain sense and forms these bands. Q. Does it indicate the disease of pleurisy? A. It indicates that the disease of pleurisy has ex- isted; the pleura is the membrane that covers the walls of the lungs and also the chest. Q. Can these adhesions be produced in any way than as the result of pleurisy ? A. There must be an inflammation to produce it I suppose. Q. I am talking about pleurisy; can they be pro- duced in any way except by the disease called pleurisy ? A. You must get your exuda- tion there. Q. I want a direct answer ? A. I do not suppose there can be; there must be a fluid thrown out. Q. And in case of an injury externally, which produced an inflammation of the pleura, it would be the injury that caused the pleurisy, wouldn’t it? A. Yes, certainly. Q. Then it would be the injury that caused the adhesions, but the injury caused the pleurisy, and the adhesion was caused by the pleurisy ? A. Yes, that is correct. Q. Isn’t the pleurisy in connection with fibrous nodules in the lungs an indication of consumption? A. Not necessarily, no. Q. Isn’t it usually ? Is there no connection be- tween pleurisy and consumption ? A. If you get an inflammation with consumption it don’t neces- sarily follow you must have consumption to have pleurisy. Q. But if there is an inflammation with the con- sumption, then there is an intimate relation between the pleurisy and the consumption? A. Yes, it shows you have had an inflammation there. 1771 1772 1773 592 Q. (Question repeated). A. If it extends to the pleura there may be a relation. Q. Then granting that you find these adhesions and fibrous nodules of a gristly character indicat- ing consumption and also adhesions of the lungs, would you not, as a medical man, draw a connec- tion between the two things? A. If you had them all, perhaps it might be so. Q. Wouldn’t you, as a medical man, draw a con- nection between the two things? A. Well, yes, if you take them as a whole, I meant to be under- stood as having all these conditions, consumption and all. Q. Didn’t you find these fibrous nodules in the lungs of Walton Dwight ? A. There were some nodules in the upper portion of one lung as I have described. Q. And didn’t you find the adhesions there too ? A. In the pleura ? Q. Yes? A. There were slight adhesions. Q. Why do you use the word slight ? A. There were adhesions. Q. There was no such word as slight, in the post-mortem notes. A. I don’t remember just the term used. Q. Does your professional skill extend to any personal knowledge of the indications afforded in a case of death caused by strangulation ? A. Yes. Q. Where the strangulation was caused by a rope ? A. Yes. Q. Was it a cause of suicide? A. I saw two cases, one of suicide and one where the man was hung by judicial hanging where there was a jerk to the body. Q. In what position was the other, in what posi- tion was the body found ? A. It was said to be on the knees. Q. You did not observe the body when it was on its knees? A. No. 1774 1775 1776 593 Q. In the latter case, what was the hanging caus- ed by ? A. By a rope. Q. Of what size ? A. It was a bed cord, perhaps the size of my little linger, perhaps half an inch. Q. About how many pounds weight was it that caused death in that case ? A. Only the weight of the body, I suppose. Q. Do you know ? A. I don’t know absolutely, no; two-thirds the weight of the body, most likely. Q. I don’t want probabilities, but I want the ex- tent of your knowledge, if you have the means of knowing? A. I don't know. Q. Do you know how long after death it was that you saw this body ? A. He was found in the morning; I saw the autopsy, or rather I saw the body that day. Q. You don’t know how long the body had been hanging at the time it was discovered ? A. I do not know from my own knowledge. Q. Was there an autopsy in that case ? A. There was; I stood by and looked on. Q. Who performed the autopsy? A. Dr. C. S. Burr. Q. What was the name of the man ? A. John Barnicle. Q. Was that in the city of Binghamton in the year 1880 ? A. In 1879 I think it was. Q. Are you familiar with cases of suicide by hanging, from reading ? A. I am. Q. About how many cases within your knowl- edge from reading? A. I have read of a great many. Q. Are you familiar with cases from reading where the hanging was accomplished in bed ? A. I have read of such cases. Q. Any by different kind of ropes or cords or fillets? A. I don’t remember of many cases that I have read of where they were hung in bed or strangled in bed. 1777 1778 1779 594 Q. But you remember some? A. I remember some. Q. Do you remember any cases where the stran- gulation was accomplished by a towel or sheet. A. No. Q. You don’t remember those cases? A. I don’t remember any case accomplished by a towel or a sheet. Q. Does your knowledge extend as to any indi- cation, how slight a pressure may be sufficient to cut off respiration? A. No, only as I have read. Q. Is your reading sufficient to enable you to give us an intelligent answer as to how slight a weight may be sufficient to accomplish that result ? A. No, I don’t think I know how slight a weight would produce it. Q. Don’t you know from your own reading that the weight of the head and shoulders has been found sufficient to produce that result? A. I don’t remember of any cases that I have read that an- swers to that description. Q. Is it because of a lack of recollection or be- cause you have not read fully on the subject ? A. I have read considerably on the subject in various books of medical jurisprudence. Q. Since when ? A. All along for some time. Q. Since when mostly? A. I have read within the past year and at the time this John Barnicle hung himself. Q. Mostly since the death of Walton Dwight? A. Probably, yes. Q. Does your reading extend sufficiently to enable you to say whether the evidence of a rope or fillet would be less discernable upon the cartilaginous substance of the throat or upon the fleshy tissue ? A. As a rule 1 should suppose it would be less upon the cartilaginous substance or show less. Q. Does your reading extend so far as to produce the medical knowledge that it might not be discern- able at all upon the cartilaginous substance of the 1780 1781 1782 595 throat? A. I find that it most always does show some effects of the strangulation. (Question repeated.) A. Yes. Q. Why do you say in answer to my question, that it is most always so? A. Because in cases given, a majority of them show evidence. Q. A majority of them ? A. Great majority of them. Q. Then there is a minority of them which do not ? A. It is so stated in the books that some show very little evidence. Q. May not the furrow be altogether wanting, and there be a interruption in its mark, I ask you that question from your medical reading? A. I don’t think it would be altogether absent. Q. When you use the term you “don’t think,” do you mean you don’t know? A. Not from my own knowledge, I don’t know, that is from my own observation. Q. From reading—your knowledge of these two cases is not sufficient for our purpose—from your reading may not the mark be altogether wanting in places ? A. I believe it is so stated in the books in some cases. Q. And wouldn’t, in any event, the mark be more clearly discernable and noticeable upon the fleshy tissue than anywhere else? A. Yes. Q. You have been asked by the counsel as to whether you saw internal evidence on the wind- pipe, wasn’t this mark above the wind pipe? A. Not all of it, no. Q. What part of it was below the wind pipe ? A. On one side it commenced lower than on the other. Q. What part of it was below the wind pipe ? A. Why it come down here to the wind pipe also on the left side. Q. Then on the left side the mark came down to the wind pipe? A. It came down on the side of the neck at a point to the wind pipe. 1783 1784 1785 596 Q. And how near did the two marks meet? A. They didn’t meet at all. Q. How near did they meet? A. Well, they were about half or three-quarters of an inch. Q. Half or three-quarters of an inch apart.? A. Yes. Q. And how near did they come to meeting behind? A. Well, they didn’t come perhaps within two inches of meeting behind. Q. Perhaps within two inches or more from meet- ing behind ? A. Yes. Q. And do you say that it is your opinion that that mark was caused by the throwing of the head backwards after it had been elevated upon a rest ? A. Yes, or no, would not explain my meaning. Q. You can say whether in your opinion that wras the cause? A. The crease was not caused by throw- ing the head backwards. It opened the fold by throwing the head backwards. Q. Do you say that the mark was caused in your judgment by putting the head forward—being elevated upon a rest ? A. Yes. Q. And do you say that in your opinion the mark simply extended to a depression in the skin ? A. To a fold in the skin. Q. To the skin itself ? A. The fatty fold—por- tion of the neck. Q. We don’t know what you mean by that; do you say that the depression in that extended only to the skin—yes or no ? A. No. Q. The depression was below the skin in the fat of the neck, was it ? A. It was the fatty portion of the neck and the skin that was folded. Q. Did that depression in the neck which was noted as a heavy indentation, extend below the skin itself and into the fatty tissue of the neck ? A. I would like to explain. Q. No, I don’t want you to explain, we want facts and not explanations ? A. Yes. Q. And in order to ascertain the reasonableness, 1786 1787 1788 597 I ask if that head had been elevated by a rest so as to drop the chin down upon the breast, would not the fold itself have been fully as noticeable and marked in front under the chin as it was on any other portion of the neck ? A. Well, it was not in this case as a matter of fact. Q. (Question repeated.) A. I did. I said it was not folded under the chin as it was on the sides here. Q. (Question repeated.) A. It is not a theory I advance. I am merely stating the conditions as they were. Q. (Question repeated.) A. No, because there was a chin rest there that held the chin up ; there was a chin rest as you have seen here in Court, that came underneath here. Q. Would that chin rest have the slightest effect in altering the fold of the skin further on the chin towards the neck or in the neck where the chin rest didn’t touch at all ( A. It must decidedly— holding the chin up in this way I should think it was two inches wide or an inch and a half wide, holding the tissues up here, would prevent this fold as the head was bent forward here. Q. Did that chin rest cover any portion of the neck where the two ends of this indentation met ? A. No, I don’t think it did. Q. Then if this chin rest did not cover any por- tion of the mark which you indicated, of this indentation, would not that indentation have been perceptibly noticeable if made by bending the head forward, independently of the chin rest ? A. Why it did not cover any portion of the indenta- tion because the indentation didn’t come down in the way of the chin rest; it didn’t come down far enough. Q. Did it extend far enough back in the neck to meet the line of that indentation if it had con- tinued around the neck 1 A. The chin rest was here under the chin ; it came up over the jaw. 1789 1790 1791 598 Q. (Question repeated.) A. It didn't interfere with the indentation at all. Q. (Question repeated.) A. I think not. Q. Then would not that fold in the skin, as you call it, if it had been continued around the neck and caused by dropping the head forward, have been more marked and noticeable in front or fully as much so as it would any other portion of the neck ? A. It did not come in front. Q. (Question repeated.) A. I say no. Q. Would it if there had been no chin rest there? A. Then the fold might have extended down if there had been no chin rest; it possibly might. Q. If that fold has been produced by a stiffening of the skin or the tissues of the neck, in the posi- tion in which the head would not that fold have been there if it was not covered by any chin rest ? A. Tf it had been there at anytime it would have remained. Q. (Question repeated.) A. If it had been there it would not have changed, of course. Q. (Question repeated.) A. I don’t understand the question. Q. Is it possible for you to answer that question ? A. I don’t get the meaning of your question. Q. Is it possible for you to answer me ? A. If he reads your question I will see, and will try and answer. Q. (Question repeated.) A. It would have been there-—yes. Q. And still you say that the chin rest did not cover the line of it—why then has the chin rest anything to do with it, if if didn’t cover the line of it, and if the chin rest had not been placed upon the head? A. Because the chin rest held the tis- sues up here, so they didn’t fold upon themselves underneath here. Q. What was the chin rest put on for? A. To hold the jaw up—to hold the mouth closed. 1792 1793 1794 599 Q. Do you say it gathered any portion of the skin or flesh of that neck, except directly in the line of it? A. I don’t suppose it did ; it was un- derneath the thick, heavy neck here. Q. Was there any drawing forward of the parts of the neck that would not have naturally been under that chin rest,as it then was upon the head ? A. It would hold here under this fat portion of the neck, holding it up. Q. It would rest directly under the chin, and from there to the crown of the head—wasn’t that the line of it? A. Yes. Q. Then the only possible theory, as 1 understand you, from which you say the fold—if it was a mere fold of the skin and the flesh—would not have been noticeable under the chin, was, because the chin rest might have drawn the flesh and skin for- ward—is that it? A. I don’t know of any other reason. Q. Now, how far was the back end of that chin rest, where it came on the neck, to the line of this indentation ? Give me the number of inches, as far as you can recollect ? A. I don’t recollect how far it was. Q. Was it three inches ? A. It could not have been so far as that ; I don’t know how far it was. Q. About how far ? A. I don’t know how far it was. Q. Give me your best recollection of the subject? A. It must have been very close ; the chin rest was upon the chin here and this line (referring to line of the elastics) came down. Q. Give it in inches? A. It couldn’t have been over an inch ; I don’t think so ; I don’t know just how far it was. Q. How far was it where the line up to the crown of the head passed the indentation on the side of the neck? A. How far the line of the chin rest was from the indentation ? 1795 1796 ] 797 600 Q. Yes. A. The chin rest was upon the back portion of the head coming across. Q. How far from the indentation was the line of the chin rest ? A. It came near to it. Q. About how far—I mean in the side of the neck? A. It might have been a half inch, or it may have been close to it. The Court.—Do you mean the line of the two elastics ? Mr. Russell.—Yes, that is what I mean. The Witness.—Yes, the line of the two elastics, coming down. Q. Did the line of the elastics go in front of the ears? A. I don’t think I saw the chin rest on the head ; it had been taken off. Q. Then you don’t know whether the line of the elastics was forward of the ear or not ? A. I do not. Q. Would the mark of the indentation be more perceptible when the fold was therewith the head forward or when it was thrown back ? A. It was not perceptible—it was not noticed till the head rest was taken away and the head was thrown back. Q. Then, you say, in your judgment, do you, that the fold was caused by placing of the head for- ward, the chin upon the breast, and yet that it was not so noticeable on the side of the neck as when the head was thrown upward like that—(indicat- ing) ? A. Yes. Q. Would not the stretching of the skin in throw- ing the head back from the elevated position that you state, make a fold in the skin which was caused by putting it forward, less noticeable than it was before ; I want your statement ? A. It open- ed the fold when the head was thrown back. Q. (Question repeated.) A. It would make it more noticeable. Q. You still say that the fold or indentation 1798 1799 1800 601 would be more noticeable when the skin was stretched by throwing the head back than it would be when the fold was right there by the cause which produced it, do you ? A. It was shut to- gether—this indentation as it lias been called—and when it was thrown back Q. (Question repeated.) Can you answer that question? A. lean. They were more noticeable when it was thrown back. Q. (Question repeated.) A. I say they were more noticeable when thrown back. Q. Is that all the answer you can give to me ? A. That is the true answer. Q. Is that all the answer you can give? A. It was more noticeable when the head was thrown back. Q. Is that all the answer you desire to give ? A. Yes. Q. I)id you see the head when it was thrown forward? A. Yes. Q. While that head was thrown forward and after that body had been on ice forty-eight hours, neither you nor any one else to your knowledge, you say, noticed that indentation until the head was finally thrown back ? A. That is my recollec- tion. Q. You have told us could not tell what the line of the elastics of the chin rest was—did you add also that you didn’t notice the chin rest upon the head ? A. I didn't see the chin rest upon the head, I think ; 1 did not. Q. In treating of the chin rest you don’t speak of anything from your personal knowledge what- ever ? A. Yes; I do ; there was a mark here under the chin. Q. In speaking of the chin rest do you speak of your personal knowledge at all, as to the existence of the chin rest upon that head at all ? A. Not by personal observation ; 1 don’t remember that 1 saw it on the head. 1801 1802 1803 602 John G. Orton, called as a witness on behalf the plaintiffs, and sworn, testified as follows : Examined by Mr. Smith: I am a physician and surgeon, and reside at Binghamton, New York ; have practiced my pro- fession there for about thirty years ; I knew Wal- ton Dwight from a period 15 years before he died, I think ; I met him frequently as a citizen of Bing- hamton, and also while he was a resident of Wind- sor, New-York; I also met him in my way as a professional man. Q. At how early a period, if ever, did you have occasion to make a personal examination with the view of ascertaining the physical healthfulness of Dwight? A. I don’t think I can state the precise time, but it was probably within the past fifteen years—about fifteen years; that occurred in Bing- hamton ; I made a thorough physical examination of Col. Dwight for the purpose of his effecting life insurance on himself—examining the chest, heart and lungs ; I found him to be perfectly healthy ; I made this investigation for somebody else ; it was for the Equitable Life Insurance Company of New-York. I examined him again in 1878, in Binghamton ; my best recollection is, that the first examination was about ten years previous ; this investigation in 1878 was in connection with life insurance; it took place in Binghamton; it was done by making what we call a physical examina- tion of the chest, listening to the sounds of the heart, the respiration of the lungs, measurement of respiration, that is, measurement of the ability to inflate the lungs; chemical and microscopic examination of the urine ; character of the pulse described. Q. What was then ascertained to be the physical condition of this man ? A. That he was in perfect health ; I saw him afterwards. 1804 1805 1806 603 Q. Are you able to state at what period your re- lation as a doctor or physician of Dwig-lit com- menced ? A. I think it was about 10 or 12 years previous to his death ; it may have been longer. Q. Did you see anything of this man later than what you have already mentioned, that was, not as a physician, or as an attending physician, or as his physician ? A. I did. Q. You have spoken of these two applications that you examined for insurance ; are there any other occasions when you saw him otherwise than as a physician ? A. I saw him as a citizen of Binghamton. Q. On other occasions that yon can identify ? A. I examined him quite a number of times for life insurance ; I think I am unable to state the number of times, but 10 or 12 times at least—most of them during the year 1878 ; I remember the cir- cumstance of making an examination connected with the Germania Life Insurance Company ; I think it was in August, 1878, and at the instance of Col. Dwight. Q. The question was first, at whose instance, and you answer Col. Dwight; now I propose to ask you whether there was any other moving cause? A. Mr. Hermans, the agent, who has been here, requested me to make it. Q. Now, in making that examination, was there anything that occurred between you and Dwight in reference to his answers to be made to the state- ments to be made as to his physical condition % A. Necessarily so from the questions which I pro- pounded to him. Q. Was there any conversation between you and Col. Dwight upon the subject of spitting blood \ Objected to as incompetent, irrelevant and immaterial. The counsel for the plaintiffs produced at the call 1807 1808 180® 604 of counsel for the defendants a paper purporting to be a medical examination of Walton Dwight made by this witness, which paper was thereupon introduced in evidence by the counsel for the de- fendants ; it was marked Exhibit No.112. I saw the body of Walton Dwight on the morn- ing of the 18th of November, in the hall in the rear of the Spaulding House, the place which has been mentioned as that where the autopsy occurred At about 15 minutes past 5 o’clock in the morning I went in this hall in the rear of the Spaulding House and there saw the body of Walton Dwight lying upon boards ; the clothing was removed from the body ; at that time the body was upon the boards, the head was raised by something being placed upon the back of the head, keeping it raised up. After an inspection of the whole body both in front and behind, the scalp was removed by Dr. DeJafield of New York ; the skull was sawn in two and the brain brought into view ; the parts were examined and their condition noted by dictation by Dr. Dela- lield to Dr. D. S. Burr, who wrote them down as dictated by Dr. Delalield ; the brain was removed from the skull and examined in its various parts ; the chest was then opened, exposing to view the Jungs and heart ; those were examined in their various parts, and removed from the chest ; the abdomen was then opened and its various parts ex- amined ; portions of the body were removed and placed in several jars and sealed and labelled as por- tions of the body of Walton Dwight ; that virtually ended the examination externally and internally ; there was a scar as the result of a gun shot wound upon the rear portion of the side—in the rear portion of the body; on the posterior portion of the body there was noticed a discoloration, which is usually seen in dead bodies that remain lying upon the back ; upon removing the support to the head it was noticed—Dr. John Swinburne noticed a heavy 1810 1811 1812 605 indentation extending npon the right upon what is called Adam’s apple upwards and backwards at about the angle of 45 degrees to a similar one on the left, extending from the thyroid cartilage about an inch lower than the one upon the right, extend- ing also upwards and backwards to an angle of about 45 degrees; my attention being called by this remark in reference to this indentation, I examined it, it being upon the left side of the body ; I raised the head to the position in which it had formerly been raised by being propped up, and I observed the fold of the skin, and the immediate tissues below it assumed the form of a fold, which was brought into view, more particularly into view, by the head being thrown backwards; it could be dis- tinguished when the head was thrown forward, but it was plainly to be seen, and much more plainly to be seen, when thrown backward. Q. How did these two unevennesses that you have described meet at the centre over the windpipe ? A. They did not meet. Q. Using your organs of recollection, so far as they are necessary to make answer to my question, state the distance % A. About one inch. Q. Was there any unevenness of skin from one end of these ends in a line to the other end that you have mentioned 1 A. There was not; I ex- amined it with my left fore finger, put it on, and passed it through the furrow on both sides, the right and the left; 1 examined all the parts of the neck as far as I could; I found nothing whatever approaching to the appearance or feel of parch- ment. Q. You know whether it was there or not, and that is what I want to know 'l A. I know it was not there. Q. Now, was there any discoloration—a purple line more or less intense or dim across that % Objected to on the ground that the 1813 1814 1815 606 question was leading. The Court over- ruled the objection, to which ruling the counsel for the defendants duly ex- cepted. A. There was not. Q. After these examinations were thus made, was there any suggestion from an}'' one as to cutting his throat? A. There was; it was suggested by Dr. Swinburne that the tongue should be removed,and windpipe ; Dr. Delafield did the cutting then ; after the chest had already been opened a cut was made from that portion upward to the chin, and the parts were dissected out up to just below the forward end of the chin; the contiguous parts were dissected out and thrown backwards on each the tongue and windpipe were removed; I observed the condition of the windpipe; the rings appeared to be in their true normal condition; the passage through the windpipe was not contracted in any part; this hole which was made was afterwards sewed up and tilled with cotton; I don’t know by whom ; I made an examination of the lungs; I saw no cicatrices in them ; there were none. Q. Were there any nodules there? A. There were; in the upper portion of the right lung; they were three in number; each one of them was about one-fourth of an inch in diameter lying upon the outer surface of the lung and in front ; Dr. Dela- field dissected around them, separated them, and cut through them, or at least cut through one or two of them; they extended over a surface—that is, the three—of about oue inch ; they were sep- arated from each other. Q. Have you got through describing them ? A. 1 guess that is enough. Q. I ask whether the description of a nodule, in conveying the idea of it, would be facilitated by saying it is very like a young wart ? Objected to on the ground that the 1816 1817 1«18 607 witness must himself describe the tiling; the Court overruled the ob- jection, to which ruling the counsel for the defendants duly excepted. A. It had the general appearance of a warty ex- crescence upon the outer surface of the lung. Q. Around those little spots what was the con- dition of the “tissues,” I think they call it here? A. It seemed from the dissection to be in as healthy a condition as any other portion of the lung. Q. What do you mean ? A. The space in be- tween. Q. (By the Court.') How much space was there between the nodules ? Did they stand in a group ? A. Very much in the shape of a triangle. Q. Did you look at the other interior organs carefully ? A. I looked at them as they were re- moved from the body. The three nodules were in- cluded in a space of one inch ; the nodules them- selves were about one-fourth of an inch in diam- eter; an old fashioned copper penny would cover all those nodules. Cross-examination by Mr. Russell: I sent out invitations to attend this autopsy to Dr. Frederick Hyde, Dr. Chittenden, Dr. G. Post Jackson, Dr. Griffin, Dr. Richards, Dr. Brown and Dr. Comstock ; I think that is all. Q. You were the medical advisor of Walton Dwight in his family at that time ? A. I was. Q. You were also agent of the Equitable Life Insurance Company ? A. I acted as such. Q. Now, in conducting this autopsy, did you participate at all ? A. Only as a looker-on ; I don’t think I made any suggestions. Q. Didn’t you participate to the extent of sign- ing the notes of the autopsy and assenting to them ? A. I did. 1819 1820 1821 608 Q. Was there any other medical adviser of Mr. Dwight that was present and assented ? A. Dr. George Burr, now deceased, and Dr. Dan S. Burr. Q. In conducting that autopsy, was there any- thing done to the body,against which any of yon medical advisers of Mr. Dwight and family pro- tested ? A. No. Q. Not a thing? A. No. Q. Then the cutting and opening and dissection of which the plaintiffs’ counsel speaks, was done with you three gentlemen as participants assenting thereto ? A. I think so. Q. Was there anything unusual done at that au- topsy by any doctor connected with it ? A. I don't think of anything. Q. I suppose you received pay from the Equit- able Life Insurance Company for your services as its agent? A. Yes. Q. Did you get a brokerage fee or a commission fee for your services in procuring the insurance of Walton Dwight from the Equitable Life Insurance Company ? A. I did. Q. What was it, brokerage or commission fee ? A. A commission ; it wTas twenty per cent, on the premium; I really have forgotten the amount of the premium. Q. About how much ? A. I can’t tell; I don’t remember anything about it. Q. Wasn’t it as much as $300 or $400? A. Why, no, of course not ; it was paid on the quarterly premium. Q. Didn’t you receive a commission of 20 per cent, on what would have been the whole yearly premium? A. I never did. Q. You never did ? A. No. Q. Then your commission was somewhere, was it not, in the neighborhood of between one and two hundred dollars ? Don’t you know how much you 1822 1823 1824 609 got ? A. I do not ; it probably was in the neigh- borhood of $100. Q. In connection with this insurance, did you not get a medical examiner’s fee ? A. I did not ex- amine him for the Equitable Life. Q. I say in connection with this insurance of Walton Dwight, which he tried to effect in August and September, 1878, did you not also receive medical examiner’s fees ? A. From the different companies I examined him for, yes. Q. Did you, during any portion of September or October, 1878, receive compensation also from Mr. Walton Dwight for any services ? A. None whatever. Q. Have you ever made any charge ? A. I never have made any charge of any kind. Q. Against his estate for any services you ren- dered ? A. Certainly I have against the estate. Q. Have you received pay ? A. I have not. Q. But you have made the charge against the estate ? A. Yes, a charge against Walton Dwight. Q. You say you have never received a commis- sion on the other three-fourtlis of a year premium from the Equitable, or made a claim on the Equit- able for it? A. I have. Q. Then, as you sit there, you regard your claim against the Equitable Life Insurance Com- pany for the commission on the other three- quarcer premium as a valid claim ? A. I am in doubt about its being a valid claim. Q. Did you make a claim seriously against a life insurance company for a sum of money you are in doubt yourself about the justice of? A. No, I did not. Q. Then don’t you regard it as a valid claim against the company ? A. That is, I regarded it as a valid claim. Q. You take back what you said, that you had doubts ? A. It was subject to explanation. 1825 1826 1827 610 Q. Don't you take back what you said a few minutes ago about your having doubts about the claim ? A. I doubt whether I should be able to collect it, that was what was in my mind. Q. Your doubt is about your ability to collect it, and not about the legality of the claim ? A. Yes, that is the point. Q. That claim, if allowed, would be for $300 or $400 more? A. Not so much as that. Q. If one-quarter would be about $100 three- quarters would be about $300 ? A. Yes, in that proportion. Q. As you sit there, having a claim against the estate of Walton Dwight, Jdon’t you regard it as for your pecuniary interest to have these life in- surance policies collected ? A. Yes. Q. You do, and as you were present at that au- topsy you were possessed of the same pecuniary interest? A. I can’t that entered my mind at all. Q. Did you not at the time of that autopsy feel that it was for your pecuniary interest that there should no cause of death be disclosed which would prevent the collection of those life insurance policies ? A. I did not. Q. At what period of time have you become pos- sessed of that feeling of pecuniary interest which you now speak of? A. I can’t say that there was any particular time. I was present at the autopsy, and was present at the post-mortem examination, both ? i Q. Have you acted in any way as an adviser to any one interested in the Dwight estate in regard to these litigations ? A. I have not, in any manner whatsoever. Q. Have you attended consultations of the doc- tors on the side of the plaintiff ? A. No, we have not had any consultations, except so far as three of us have been lodging in the same room to sleep. 1828 1829 1830 611 Q. Have you not, four of you, including yourself and Dr. Chittenden, had a consultation in regard to the medical testimony to be given upon this trial ? A. In a general way we have, of course. Q. Have you had consultation with the lawyers for the plaintiff too ? A. No. Q. Have you had consultations with Mr. Chap- man ? A. No. Q. Have you given him no information in regard to the evidence in this case? A. Not that I know of ; not a particle ; nor have I given any to Mr. Sessions, nor to Mr. Smith, no. Q. Do you mean as an intelligent man to say that you were put upon the stand and gave your testimony without any of these lawyers knowing what you were going to testify to ? A. I am not aware that they know. Q. You never have had any personal communi- cation with them upon the subject? A. No, none whatever. Q. And when they put you on the stand as a witness, not one of them knew a particle of testi- mony you were to give? A. No. Q. When you arrived at the autopsy where was the body ? A. It was in the hall in the rear of the Spaulding House Cottage, about 40 or 50 feet prob- ably away from it; it was understood to be a danc- ing hall ; as I understood it, it was the hall in which they were dancing on the night on which Walton Dwight died ; this cottage and the hotel were connected by a hall or passageway ; but other- wise they were three separate buildings, to all in- tents and purposes. The office of the hotel was on ‘Chenango street ; and the entrance to this hall in the rear of the cottage was on Lewis street, another and different street. Q. And about how far in rods, according to your recollection, according to the usual method of travel, was it from the entrance of the hall around to the office of the hotel? A. It may have been 50 1831 1832 m3 612 .or 60 feet from the hall where the autopsy was con- ducted to the office of the hotel; around through Chenango and Lewis streets, I should think it would be 150 feet at least. Q. The body, you say, was out of the ice casket at the time you first saw it on the day of the au- topsy ? A. I think it was. Q. And was the head supported by any rest,, throwing it forward, when you first saw it ? A. Yes ; I can’t say what it was under the head, but it was something—some object that raised the head up. Q. Did it throw the head forward enough so that his chin would touch the breast? A. I think it did. Q. In making that autopsy and in handling was the head moved backward and forward several times? A. Yes. Q. Wouldn’t that moving, in your judgment, backward and forward, tend to remove or soften anything like a fold in the skin ? A. I think it would. Q. And during that autopsy and during the sec- ond autopsy the head was also moved, was it not? A. Yes. Q. Was it moved laterally and around ? A. Yes, Q. And yet when you first saw that body at the time of the autopsy, which was, I understand, the first time you saw it after Walton Dwight’s death, and the last time you saw that body at the second post-mortem, wasn’t that same indentation visible to your eyes ? A. At the second autopsy 1 paid no attention to it whatever, and did not look at it. Q. But the first time you saw Walton Dwight af- ter his death did you not see that indentation in his neck ? A. I did. Q. Doctor, wouldn’t that indentation in the neck of Walton Dwight, had it been produced by a cord or rope, been more marked upon the fleshy part of 1834 1835 1836 613 the neck than upon the cartilage? A. I think it would. Q. And if it was a mere fold in the skin, pro- duced by the head being placed forward, wouldn’t that mark be developed and more noticeable under the chin than any other portion ? A. No ; I think not. Q. Wouldn’t the mark have been deeper when the chin rested on the breast underneath the chin, than when the chin rested on the neck ? A. I think not ; it was not, anyway. Q. If that mark had been from a fold in the skin, wouldn’t the indentation have been deeper under the chin than it would away up in the upper part of the neck ? A. It wasn’t in the upper part of the neck—deeper at the back part of the neck. Q. If it had been so produced would it not have been ? A. Well, I think not. Q. Are you simply speaking from reasoning ? A. Wes, that is all. Q. How near did those two ends of the indenta- tion meet in the back part of the neck? A. I think it was two or three inclies. Q. And how near did they come to meeting in the front of the neck ? A. About one inch. Q. Now, if that mark had been produced by a cord above the larynx, which stopped the respira- tion, and was only sufficient for that purpose, do you say that necessarily there would have been any evidence whatever on the skin over the Adam’s ap- ple ? A. I do say so. Q. Do you say so from personal knowledge? A. No. Q. Do you say so from medical reading? A. No. Q. Do you say so from hearsay ? A. In this case I say it from personal examination. Q. I am not speaking of this case, but I am speaking generally of a case ? A. I speak from reasoning then. 1&37 1838 1839 614 Q. Is that reasoning based upon personal knowl- edge from a case of suicidal hanging ? A. No. Q. Is it from any evidence afforded by your own personal observation ? A. No. Q. Is it based from reading from medical author- ities ? A. No. Q. Is it based from hearsay ? A. No. Q. Then what is the basis; I do not mean the processes of your reasoning, but what basis has your reasoning to act upon? A. It is my own con- clusions. Q. And that conclusion is not drawn from per- sonal observation, from medical reading, or from even hearsay, is that true ? A. Yes. Q. Are you familiar with the work known as Taylor’s Principles and Practice of Medical Juris- prudence? A. I have read it; I can’t say I am familiar with it. Q. Do you recognize it as a work of high author- ity in medical jurisprudence ? A. It is considered so. Q. Well, don’t you learn from Taylor’s Medical Jurisprudence that suicidal hanging may be pro- duced by just sufficient weight, force or pressure to- stop the respiration, and at the same time leave no visible mark upon the cartilage of the neck ? A. I have no recollection of any such thing. Q. Do you say it is not so ? A. I don’t say so. Q. Well, wouldn’t it have assisted you, and would you not have been able to get a better under- standing upon this subject to have based your rea- soning in this case upon well known and recog- nized. cases reported by medical authorities? A. Probably. Q. In your judgment, would you have been able to form a better judgment on the subject by con- sulting and reading medical authorities and well known and recognized cases of suicidal hanging l A. Probably I should. Q. You didn’t do it, did you ? A. No. 1840 1841 1842 615 Q. In Mr. Smith’s examination, you used the term furrow as applied to this indentation; did you use it by mistake or purposely ? A. Purposely. Q. And by furrow you mean a round groove in the neck ? A. Not necessarily. Q. Isn’t that the ordinary designation of the term furrow? A. It need not necessarily be round; I said a fold; I did not use the word furrow. Q. Do you say didn’t use the word furrow in answer to Mr. Smith ? A. I intended to use the word fold instead of furrow. Q. Why do you use the word fold when the word heavy indentation was used in the notes you sub- scribed and assented to ? A. Well, that was noted by Dr. Swinburne. Q. Wras there a single objection made to it by any living person upon the face of this earth at that time? A. None that I heard. Q. Not even including yourself ? A. No. Q. Then, if you assented to the words “ heavy in- dentation” then,why do 37ou use the word ‘k fold” now ? A. I signed the paper assenting to the fact that Dr. Swinburne noted that. Q. Did you then believe and judge that that was not a heavy indentation ? A. I did. Q. Why didn’t you raise a protest to the use of the term ? A. I can’t say that I have any reason for not doing it. Q. And didn’t you use the term fold because you see now how much more the term fold would ap- ply and benefit one side of the case than the other ? A. No, I can’t say I do ; I know I didn’t. Q. When was it you first used the term fold in connection with this indentation ? A. I don’t know. Q. When was it you first thought of it ? A. I don’t know. Q. Wasn’t it after the learned counsel had used the term fold in the trial of this case ? A. I can’t say. 1843 1844 1845 616 Q. Can von say you ever thought of that term before Mr. Smith used it himself? A. I don’t know. Q. Well, in this indentation you concede that the tissue of the neck as well as that of the skin was involved ? A. To a certain extent. Q. And was it above or below the Adam’s apple ? A. On the right side of it, it extended from the Adam’s apple upward or backward, at about forty- five degrees, or it was so stated. Q. Did the end of the right side come down above or below the Adam’s apple? A. As I recol- lect, it was about on a line with the.Adam’s apple. Q. How was the left side above or below it? A. That was below it. Q. And you say about an inch apart ? A. That is as I recollect it. Q. This physical indication of that heavy inden- tation was the first thing that was observed extern- ally or internally, was it not, about the body of Walton Dwight ? A. I think it was. Q. I ask you whether there was any evidence of any kind taken there, any sworn testimony? A. There was none that I heard of. There was none. Q, Then the autopsy itself consisted simply of the dissection and examination of this body ? A. That is all. Q. At the time that that autopsy was made, did you know the extent of the effort that Walton Dwight had made to obtain an insurance upon his life? A. I knewr he had obtained a large amount of insurance. Q. (Question repeated.) A. I knew he had made an effort. Q. Did you then know the extent of the effort ? A. I did not, in amount. Q. Did you know that he had tried to obtain life insurance to the amount of three hundred and ninety thousand dollars ? A. I did not. Q. Did you know at that time that you partici- 1846 1847 1848 617 pated in that autopsy that Walton Dwight had no means of his own to pay for premiums ? A. I did not. Q. Did you know that he was a bankrupt ? A. ]S o, 1 did not. Q. In making the external autopsy of that body did you or did you not, observe ecchymosed spots on the back portion of the right arm ? A. I think I noticed several small ecchymosed spots on those places indicated. . Q. Did you mention those when Mr. Smith asked you to give what you noted externally about the body? A. I intended to include it. Q. Did you do it? A. I don’t know whether I did or not. Q. Did you omit mentioning the existence of those spots purposely or by carelessness ? A. It must have been by carelessness that I omitted to mention it. Q. Did you do it on purpose or through inad- vertence ? A. Through inadvertence. . Q. In examining the internal portion of the body, did you notice that the lungs were unduly inflated ? A. I did. Q. Did you omit to mention that fact in answer to Mr. Smith’s questions as to what you saw in that body ? A. I think I did. Q. Did you omit that, also, through purpose or inadvertence ? A. Through inadvertence. Q. On that examination, did you find, in the left pleural cavity, old adhesions ? A. Yes. Q. Did you omit to mention that fact, also, in answer to Mr. Smith’s question? A. I believe I did. Q. Did you do that through purpose or through inadvertence ? A. Inadvertence. Q. Did you find the bronchi congested and coated with mucus, the upper lobe congested and oedema- tous, and the lower lobe still more congested and cedematous ? A. Yes. 1849 1850 1851 618 Q. Did you omit to mention this circumstance, also ? A. I think I did. Q. Was that also through inadvertence ? A. I think it was. Q. Did you find that the bronchi in the right lung were congested and coated with mucus? A. Yes. Q. And did you omit to mention that through inadvertence, also? A. Yes. Q. Did you also find that the stomach contained portions of food partly digested, and in the intes- tines, portions of excrement of digested food ? A. Yes. Q. Did you omit this fact, also, through inad- vertence ? A. Yes. Q. Did you find the epiglottis and larynx, and trachea congested and coated with mucus ? A. I believe they were. Q. In that investigation,did you find the stomach —at the fundus—mucous membrane softened and partly destroyed by post-mortem changes;"the pyloric end of the stomach—mucous membrane studded with small white spots, denoting chronic gastritis ? A. Yes. Q. You omitted to tell the jury that in your ex- amination, did you not ? A. I did. Q. Also through inadvertence ? A. Through in- advertence and not supposing I was to describe all of these parts. Q. Did you understand, from Mr. Smith’s ques- tion, when he asked you to describe what you saw in that body, that he wanted you to tell the part that was favorable to his side and leave out the part that was not ? A. No. Q. Did you infer from his questions that you were desired to give a part of the appearance and leave out the rest ( A. No. Q. Well, what did you understand ? A. I did not understand Mr. Smith, in his questions to me, 1852 1853 1854 619 asked me, or expected me, to describe the post- mortem appearance of the whole body. Q. Well, what on earth did you suppose he did ask you ? A. He merely asked what was done, that is the way I understood it. And different portions of the body were opened, and I never at. tempted to describe what was said. Q. And didn’t you understand Mr. Smith to ask you to tell what you found inside of the body ? A. No ; not the post-mortem appearances. Q. Nothing of that kind ? A. No. Q. And didn’t you go and tell him about what you found in the lungs? A. I think I mentioned the matter of nodules. Q. And wasn’t that in answer to Mr. Smith’s question as to what you found inside of the body ? A. That would be one of them. Q. Then, if that was your understanding of Mr. Smith’s question, why did you repeatedly tell me you left out these indications through inadver- tence ? A. I should regard that as an inadver- tence, if I didn’t understand the question properly ; it was inadvertence not to answer the whole ques- tion. Q. And you mean your own inadvertence, didn’t you ? A. Of course. Q. You don’t throw the responsibility on Mr. Smith ? A. It was my own fault, of course. Q. Bid you also note in that body that the liver and spleen were healthy, normal in color, excepting that the spleen was a little soft in consistence. A. That was so noted in the notes. Q. Bid you also note that all of the organs of the body appeared to be healthy ? A. Yes. Q. Bid you also note in that post-mortem exam- ination that the heart was empty, with the excep- tion of perhaps a half ounce of fluid blood? A. Yes. Q. Were not the kidneys congested? A. I be- lieve they were. 1855 1856 1857 620 Q. Was the liver congested ? A. Somewhat. Q. Were the lungs congested ? A. They were. Q. Were they not engorged? A. They were congested. Q. (Question repeated.) A. To a certain extent they were. Q. Can you take the adipose tissue of the neck and make a fold in it that will stay? A. That would depend on whether very cold or not, 1 think. Q. Can you make a fold in the adipose tissue of the neck when it is cold or warm that will stay when the body becomes warm again ? A. I think it would stay there for a time. Q. But it would soon pass away, wouldn’t it? A. It would depend upon the thickness of the adi- pose tissue. Q. It would depend upon the thickness of the fold and the degree of force necessary to make it? A. Yes, that would have a good deal to do with it. Q. Without any force being applied to make a fold more than an ordinary and natural movement, is it, in your judgment, possible to make a fold in the neck that would last for five months ? A. It might be so, it would be perceptible, but not to re- main in the same condition in which it was first made. Q. I am asking now for your deliberate judgment as a witness ; is it possible to make a fold in the neck by the mere natural movement, and not by compression, that would last in the adipose tissue of the neck for five months so as to be discernable ? A. Yes, I think it could be. Q. Wouldn’t it require considerable force to do it? A. I don’t think it would. Q. You don’t think it would ? A. No. Q. Do you think that could be done by any natu- ral movement? A. I do. Q. And do you think so from any natural experi- ment that you made ? A. No. 1858 1859 I860 621 Q. Do you think so from reading simply ? A. No. Q. Do you think so from any personal knowledge ? A. No, it is my own personal judgment. Q. And not from personal knowledge? A. No. Q. Is it not true that ordinarily the adipose tissue would not move or fold with the skin, but if there is a fold in the skin there would not be a corres- ponding fold in the adipose tissue beneath ? A. That would depend upon the thickness. Q. I ask you ordinarily would it not be so ? A. I think it would. Q. Is it true that any of the interlineations were made as the autopsy went on—as the notes were being made and as die autopsy went on—to your knowledge ? A. I have no knowledge whatever about it. Q. Did you see a single interlineation made in these post-mortem notes while the notes were being taken, or did you hear a single direction by Dr. ■Delafield or anybody else to change the verbiage of the notes? A. I did. Q. At what time? A. The direction of Dr. Del- afield in reference to the changing of the word “cicatrices” to that of “nodules.” Q. Was there any other? A. I heard of none there. Q. And was that direction not given after the au- topsy had been actually finished and just prior to the signing of the notes ? A. As I recollect it, it was given as it was being read over the last time. Q. That was the only alteration that you knew of or heard of during the progress of that autopsy, was it not ? A. Yes. Re-direct-examination by Mr. Smith ; Q. Have you any idea that you remember all that was said and done in connection with that paper ? A. I have not. Adipose tissue is the fatty 1861 1862 1863 622 material underneath the skin, beneath the true skin ; first then is the scarf skin, then the true skin, and then this adipose tissue; taking the face of a man’s hand, the first thing you come to is the scarf skin, the next is the real skin, and the next is the adipose tissue. Q. And if you bend it forward it forms an inden- tation and crease ? A. Yes. Q. And if you straighten it up? A. It becomes straight and smooth. Q. And the line of indentation is visible, is it not? A. Yes. Re-cross-examination by Mr. Russell: Q. Is it not true that the skin slides over this ad- ipose tissue, moves over it? A. In many cases it does. Q. Is it not ordinarily so ; can’t you move the skin right over this adipose tissue ? A. Yes. Q. Was not Dwight’s neck pretty thickly cov- ered with adipose tissue? A. It was. 1864 1865 Charles D. Richards, called as a witness on behalf of the plaintiffs, and sworn, testified as follows: Examined by Mr. Smith : At about the time of the death of Walton Dwight I was one of the coroners of the county in which I lived, in Broome County; the first official connec- tion I had with the dead body of Walton Dwight was when I caused it to be exhumed, dug up ; be- fore the body was dug up I had summoned a jury, composed of William Bassett, C. B. Spencer, Charles G. Estabrook, C. C. Edwards, A. W. K. Andrews, and Walter A. Brooks, as I remember ; 1866 623 they were all doctors ; I am a doctor; I selected them ; they assembled at the cemetery at Bingham- ton, Spring Forest Cemetery; a second post-mortem •was made on the body ; the chest and abdomen were re-opened ; the contents, as I remember, were removed ; the body was turned over on its back -and the bones of the back cut open and the spinal eord exposed ; the left thigh, I think it was, was laid open in the track of a gun-shot wound, or what appeared to have been that; the bone was exam- amined as to whether there was a fracture ; the neck was inspected by the jury and some of the other persons present ; a cast was attempted to be made, and various things that 1 can’t remember the details of. There was an examination of witnesses after this, and before this jury; I determined the selection of the witnesses with the concurrence of the jury. Q. Do you recognize among the gentlemen that have appeared here as witnesses any of the gentle- men who were there at that time ? A. I do ; Dr. Orton for one; Dr. D. S. Burr, Dr. Ayer, Dr. Swin- burne, Dr. Sherman, Dr. Bridges ; and there may be others that I do not now recall to mind. Q. D. Magone ? A. He was not sworn, I believe, Mr. Smith ; these gentlemen wrho have been wit- nesses here were examined; the inquiry continued, including the examination of the body and the ex- amination of witnesses and other proceedings per- taining to this inquest, my recollection is, about seven days; minutes of the proceedings were taken; I do not know7 whether they have been preserved or not. Q. Was there a decision by the jury, a verdict ? Objected to as immaterial and incom- petent, A. Yes. It wras committed to writing ; I have it. (Produced.) (Paper handed witness.) This paper 1867 1868 1S69 624 was delivered to me at that time and it has been kept by me since ; I am a practitioner of medicine and surgery; have occupied that profession for thirty years ; I saw Col. Dwight’s body so as to examine it and be able to speak from experience before it was taken out of the grave ; I saw it at the dancing hall at the Spaulding House in Bingham- ton on the 18th November, 1878. I arrived at this place where the body lay about half after nine o’clock on that day ; the body was surrounded by a number of medical men ; Dr. Delafield was just about in the act of turning it over ; 1 looked at the body, and finally the body was returned over on its back again, when Dr. Dela- field commenced to make an autopsy. I noticed on the right shoulder I think, and on the arm some ecchymosed spots ; my attention was called to a— well I hardly know what to say about that— whether it was a groove or what it is. Q. I excluded “neck” in my question ? A. A scar on one of the thighs evidently some wound — the evidence of a former wound—nothing further that I could speak of but what would be likely to be found on the body of any person. Mr. Russell.— I object to the answer, “nothing further that I could speak of,” etc. The Court.—It may stand, I don’t understand that aside from the neck there were any exterior things or appearances that are in dispute, are there ? Mr. Russell.—I don’t care to suggest anything. The Court.—It don’t occur to me just now. Q. Will you not describe a little more wdiat those spots were ? A. Those were little brown spots evidently just under the skin here (indicating,) I think right on this shoulder. Q. Was it a place where the body had rested on the board? A. I should say it was above; the- 1870 1871 1872 625 spots were of different sizes ; some of them as large as the head of a common pin and some of them larger. I saw a couple of creases on each side of the neck extending from Adam’s apple back—up- wards and backwards ; on one side of the neck it was a little lower than on the other ; there was one crease on each side ; the ends in front were about an inch or an inch and a half apart from each other ; the one on the right side it seems to me was the highest; I will not be positive about that ; these ran backward and upward. Q. Can you describe them to the jury? A. No. Q. Did they have any half round back side to either of them ? A. I didn’t notice it. Q. Can you tell whether there was any such thing there or not? A. No, sir, I was not near enough. Q. You didn’t feel of them ? A. No. I know the room where the body of Dwight was said to have been when lie died ; the door from the sitting room opening into the bedroom swung to the left hand as you entered. The jury viewed the spot, and the coroner did also. Cross-examination by Mr. Russell: Q. Do I understand you to say you did not par- ticularly participate in the first autopsy that was- made ? A. So far as the examination was concerned,. I did not. Q. Then you are not competent, according to your own understanding, to give any accurate or intelligent description of the neck? A. No, I can- not. Q. By whom were you invited to be present at the first autopsy ? A. Dr. Orton ; I was a coroner at that time. Q. Are you able to give us a careful and intelli- gent description of the state of the internal organs ? 1873 1874 1875 626 A. Perhaps not entirely accurate ; I will endeavor to do so, if it is your pleasure. Q. I am trying to ascertain first, whether you have sufficient knowledge upon the subject ? A. I gave it a pretty tolerable good examination. Q. Then, what do you mean by stating that you do not know that you can give an accurate descrip- tion ? A. Memory, perhaps. Q. Memory is somewhat at fault ? A. Yes. Q. Did }'Ou sign the notes of the first autopsy ? A. Yes. Q. Without protest or objection ? A. Yes. Q. You, as I understand, conducted the second examination yourself ? A. I acted as coroner. , Q. Did you, at Binghamton, at or about the time of that investigation, or shortly prior, state in the presence of Mr. Magone and Dr. Swinburne, that you thought the death was a natural one? A. I don’t remember any such conversation. Q. Did you make, at the second post-mortem, any mere careful and thorough examination than you did at the first one ? A. I think not. Q. Did you then make any more careful or thor- ough examination of the neck ? A. No, I did not. Q. Did you intend to subpoena and examine all of the witnesses who were present at the time of Walton Dwight’s death ? A. Yes, I think so. Q. Was James Lee subpoenaed, or was he a wit- ness on that inquest ? A. He was not. Q. Were }rou advised by any one from any quar- ter that James Lee knew anything about the matter? A. I was not. Q. Was Warren F. Spaulding, the hotel keeper, examined as a witness ? A. He was. Q. Is he present here ? A. I think not. Q. Spaulding was examined as a witness at that inquest ? A. He was. Q. No one asked any questions upon that inquest 1876 1877 1878 627 except yourself and the coroner’s jury, the doctors? A. No. Q. That you say was a jury of six doctors? A. Tes ; there was no layman on the jury at all. 1810 Bessie D. McDonald, called as a witness on be- half of the plaintiffs, and sworn testified as fol- lows : Examined by Mr. Newton : Walton Dwight was a brother of mine ; my age is twenty-nine years ; I was often with him daring his life and often saw him. My brother was seven- teen years older than I. He was away when I was a young child. After that I saw him from time to time excepting when I was away to school. I think I was about eight years old at the time my father’s family removed to the city of Binghamton ; from that time on I was in Binghamton all the time until Ills death with the exception of two years I was away at school. I was married in 1873. Prior to that, at Binghamton, I resided with my mother and father, and during that time I was in the habit of seeing Walton nearly every day, I should think. I saw Mr. Dwight during his last sickness. I saw him once or twice before Mrs. Dwight came over, and after that I think I saw him nearly every day or two. When I first saw him during that sickness I didn’t think him very sick ; he didn’t appear like a person that was ; he was up and around his room and went out once after he came home from New 1880 1881 628 York. I did not notice whether lie ate anything while I was there. I was usually in in the morn- ing or afternoon, I was not there at all at meal time. I saw him vomit two or three different times when I was there during the time of his sickness ; but not to vomit any large quantity. I was there on the second Saturday before his death, before he died Friday. Mrs. Dwight sent for me in the morning on the second Saturday before his death. I think it was between eight and nine that I went over. When I got there Dr. George Burr and Mrs. Dwight and Mrs. Charles Sears were there. Mrs. Sears is dead. There were several ladies, Mrs. Sea- ver went over with me ; Dr. Orton and Dr, Dan Burr came in during the day, and Dr. George Burr was there during the day most of the time. Dr. George Burr is dead. When I got there Mr. Dwight was in bed in this bedroom spoken of. When I got over there in the morning he was in bed and was partly bolstered up and was having a severe chill, and was shaking, and his teeth *were chattering, and he seemed very cold, and I went in and he spoke to me when I got to the bed, not when I first went in, and he said he thought he was The counsel for the defendents in due season objected to the witness testifying on the subject of what was said, as in- competent. The Court overruled the ob- jection, to which ruling the counsel for defendants duly excepted. He said he was pretty sick and I noticed he was having The counsel for the defendants moved the Court to strike out this evidence as incompetent, and also on the ground that being the declaration of the deceased 1882 1883 1884 629 H is not admissible as evidence against these defendants. The Court denied the motion to which ruling the counsel for the defendants duly excepted. ; . 1 He was having a shaking chill when I went in and his flesh was very cold, his hands and feet, and the hlood had settled under his nails, and I think this chill lasted from I should say one to two hours, fully as long as that, and after the chill was over he seemed very much prostrated, and cold drops of sweat come out on his face and hands and limbs, and his skin was clammy and moist. During that time he was rubbed with brandy, and hot applications put on and hot bottles put to his feet. Dr. George Burr was there most of the time during the day; he went out once after Dr. Orton, once was the only time. I wasn’t in the room all the time the doctors were there ; I was in the room once or twice when Dr. Burr was there, but not all the time—the room was very small; he was not up at all during that day before I left. I left, 1 think, about four o’clock in the afternoon ; when I left he was more comfortable, and wms beginning to get warm. I was there the following week several times, and I think nearly every day after that; at that time he seemed very much pros- trated after the chill, and looked much worse, and had a haggard look that I hadn’t noticed before. I saw his body after he was dead. I never saw him spit blood. Cross-examination by Mr. Russell: I am a half-sister of Walton Dwight ; we had the same father. I first began to have an acquaintance with Walton Dwight when I was a young girl, and all during my girlhood ; I saw him more after I was out of school and when I was older; that was in 1870 and 1871. 1885 1886 1887 630 Q. From that time onward you saw more of him and knew more of him than previously ? A. For three or four years previous to my leaving Bing- hamton I saw him as often as after, and during the two years I was away I saw little of him, of course, and after that I saw him nearly every day, and I was often at his house and he was at my house before my marriage and after. I went to school in 1869, and came back from school in 1871; and I was married in 1873, and from that time on- ward until his death in 1878 I lived in the same city. I don’t know that he was away from Binghamton frequently; he was away sometimes; I don’t remember where he was. Q. Do you know of his being away for weeks and months at a time ? A. I can’t say months ; 1 might say weeks; a week or two or three; I don’t know whether he was away for months at a time or not. Q. When was it that you first learned that Mr. Dwight was sick in the fall of 1878 ? A. A day or two after lie came back from New-York, and I think it was the same day he came back. I can’t tell the date ; some time in October. Q. And the time when you speak of his having a chill, was within one day of two weeks prior to his death, if I understand you ? A. I think about that time ; about two weeks before. I think it was the second Saturday before, which would be just thirteen days ; I don’t know that I have any data by which I can fix the precise day that I saw the chill. Q. When the counsel asked you if it was the second Saturday before, what reason had you for locating it on that day? A. The week my brother died I was sick and I didn’t see him after Tuesday, and I know it was a week before that, the week from that Saturday, thad he was sick, and that is the only way that I can remember it, and the week from the following 1688 1889 1890 631 Tuesday after he had the chill I was sick and was not able to see him ; I know it was Saturday, but I can’t state the exact date of the month ; I am sure it was Saturday. I went there between eight and nine in the morning. I was there until three or four in the afternoon, and I should say four. I have described to the counsel all of the symptoms that I observed in Mr. Dwight, that I remember. All that made any impression upon my mind ; he had no fever that day ; and all the sweat that I saw was drops of sweat, it was a clammy, cold sweat of the skin. Of course the skin felt damp and cold ; it was moist when the drops of sweat were on it, and it was cold at that same time. Q. Then it was moist and cold at the same time —is that true ? A. Yes ; I think it was. Q. Then if you noticed no other physical symp- tom about him, except what you have detailed, you did not notice anything unusual about his breathing, did A. I don’t remember any- thing about his breathing. He was very much exhausted and he seemed very much prostrated. Q. I did not ask about that, but if yon wish to state it, I will give you an opportunity of doing so, I merely asked if you noticed his breathing ? A. 1 did not. Q. You say he seemed prostrated ; be kind enough to tell me any physical indication that manifested prostration '( A. It was very hard for him to talk and he talked with a great effort. Q. That is, he seemed to do so ? A. Yes. Q. Anything else that indicated prostration, ex- cept his effort to talk ? A. He was very weak and very much exhausted. Q. Can }7ou tell any other physical indication ? A. I don’t think I can. Q. Yron say he made considerable effort to talk, or seemed to, did the muscles of his mouth or those of his jaws seem weak and unable to articul- 1891 1892 1893 632 ate? A. He had a drawn, pinched look about the mouth. Q. Did his chin seem weak and unable to move, freely? A. I don’t know that lean say that it did. Q. Then it was not particularly the exterior part of his face that indicated the weakness of utter- ance, but merely the tone of voice? A. I think it was both. Q. Did you notice any weakness of his chin ? A. His voice was very weak. I don’t remember that it seemed difficult for him to move his under jaw or chin ; his voice was not very high, and more like a whisper. Q. Did he speak above a whisper? A. I can’t tell, for I don’t remember. Q. About what time of day was it that you first noticed any symptoms of chill or shaking? A. He was shaking when I first entered the room between eight and nine o'clock ; I think the chill lasted about two hours and closed then about eleven o’clock. Q. And from that time until between three and four as long as you stayed there, you saw no symptoms of fever? A. I don’t remember of any. Q. If you saw no other physical indication about him at the time of this chill, that you remember, you did not see him vomit, did you? A. No ; I did not see him vomit the day of the chill. I think Dr. Burr gave him medicine that day. I do not know what it was ; I couldn’t tell whether it was in the shape _of a powder, or liquid ; I saw Dr. Burr have medicine, and administer it ; I couldn’t tell that it was a powder for I don’t remember ; I couldn’t tell at what time of the day it was when I saw him administer medicine, 1 did not hear Dr. Burr say anything about giving him gel- seminum. Q. You spoke of his flesh, his hands and feet be- ing cold ; was that knowledge of yours derived 1894 1895 1896 633 from what he said ? A. No; I rubbed his hands during the day and put hot things to his feet I helped to put on hot mustard cloths and hot bot- tles to his feet, and rubbed his hands and arms with brandy. . Q. At the time that you saw him vomit two or three times, during your various visits, do you know whether they had been administering to him any doses of medicine ? A. I do not. Q. Then you do not know of your own knowl- edge what caused him to vomit? A. No. 1897 The counsel for the plaintiffs then proceeded to read the deposition of Encie Herdic, taken on behalf of the defendants at Williamsport, Pennsyl- vania, under order and commission of which the following are copies : SUPREME COURT. 1898 Anna N. Dwight, Orlow W. Chapman and George F. Lyon, as Executrix and Executors of the last Will and Testament ofi Walton Dwight, deceased, against The Germania Life Insurance Company. 1899 An order having been heretofore made by me founded upon the pleadings and the affidavit of Cornelius Doremus, requiring the plaintiff to show cause why a commission should not issue to examine Mellicant V. Coleman, wife of Fletcher 634 Coleman, Horace E. Taylor and Harriet Taylor liis wife, and Encie Herdic, wife of Peter Herdie, residing at Williamsport, in the State of Pennsyl- vania, and Hoppes, wife of George Hoppes, who resides at Bethlehem, in the State of Pennsyl- vania, and Julia Spackman, widow of the Rev. Henry Spackman, who resides at or near Ding- man’s Ferry, in the State of Pennsylvania, as wit- nesses in this action on behalf of the defendants, which said order was returnable before me this day at my Chambers, in the village of Norwich, N. Y., which order and affidavit with proof of service having been presented on behalf of the defendants, and the letter of the defendants’ attorneys of May 11, 1883, to the plaintiffs’ counsel ; proposed stip- ulation on part of defendants’ attorneys for a commission, stipulation putting cause over the November Circuit, 1882, affidavits and order post- poning trial of case at May Circuit, May, 1883 ; and the affidavits of Henry Smith and George L. Sessions having been read on the part of the plaintiffs ; now on motion of H. G. Prindle, of counsel for the defendants, and after hearing Henry Smith, Esq., counsel for the plaintiffs, and upon consent of the said counsel for the respective parties, ordered, that an open commis- sion issue to Robert A. Stanton, Esq., of Norwich, N. Y., counsellor at law, to take the evidence of the said Mellicant V. Coleman, Horace E. Taylor, Harriet Taylor, Encie Herdic, Hoppes, wife of George Hoppes, and Julia Spackman, as witnesses on behalf of the defendants ; that the examination of the defendants’ witnesses, com- mence on the fourteenth day of August, 1883, at ten, a. m., at the Park Hotel, at Williamsport, in the State of Pennsylvania; and the examination continue at such places in the State of Pennsyl- vania, as the said commissioner may appoint, until the eighteenth day of August, 1883, at ten p. m. ; that said commissioner shall take such evidence as 1900 1901 1902 635 may be offered by the plaintiffs of witnesses resid- ing in said State of Pennsylvania during five consecutive days at such places in Pennsylvania as said commissioner may direct, upon said plaintiffs giving defendants six days’ notice of the time when, and place where, such examination shall commence. This order is granted upon the follow- ing conditions : That the fees of said commissioner, which are fixed at twenty-five dollars per day and his expenses, shall be paid by the defendants, and in case the defendants succeed in the action, the amount so paid shall be taxed and allowed to the defendants as part of the costs of the action ; that the trial of this action be postponed to the twelfth day of November; 1883* at a Circuit Court appointed to be held on that day at the village of Norwich, in the county of Chenango ; and it is further ordered, that the evidence taken by said commissioner shall be filed by him with the clerk of said county of Chenango, on or before the first day of October, 1883. Dated Norwich, N. Y., August 6th, 1883. David L. Follett, Justice Supreme Court. 1903 1904 The People of the State of New- York. To Robert A. Stanton, Esq., of Norwich, Neic-Tork: Know ye that we with full faith in your prudence and competency have appointed you commissioner and by these presents do authorize and direct you, Robert A. Stanton to take the evidence of Mellicent Y. Coleman wife of Fletcher Coleman, Horace E. Taylor and Harriet Taylor, his wife, and Encie Her- dick wife of Peter Herdick all of whom reside at Williamsport in the State of Pennsylvania, and Hoppes, wife of George Hoppes, who resides 1905 636 at Bethlehem in the State of Pennsylvania,and Julia Spackman, widow of the Rev. Henry Spackman, who reside at or near Dingmans Ferry in the State of Pennsylvania, witnesses to be produced on the part of the defendant in an action pending in the Supreme Court of the State of New-York, wherein Anna Dwight, Orlow W. Chapman and George F. Lyon as executrix and executors of the last will and testament of Walton Dwight, deceased, are plain- tiffs and the Germania Life Insurance Compare is defendant, on the part of the defendant upon oath upon oral questions to be put to the said witnesses when produced ; that the examination of the de- fendants’ said witnesses shall commence on the 14th day of August, 1883, at ten o’clock a. m. at the Park Hotel at Williamsport in the State of Penn- sylvania, and that the examination of said witnesses continue at such places in the State of Pennsyl- vania as you the said commissioner may appoint until the 18th day of August, 1883, at ten o’clock p. m. unless sooner concluded. That you, said com- missioner, shall also take such evidence as may be offered by the plaintiff of witnesses residing in said State of Pennsylvania duringfive consecutive days at such places in Pennsylvania as you may direct,upon said plaintiffs giving defendants six days’ notice of the time when, and place where, such examination shall commence, that you take and certify the evi- dence so taken before you and file the same with the Clerk of the county of Chenango on or before the 1st day of October, 1883, together with the com- mission according to the directions given in or with the commission and hereto annexed. 1906 1907 1908 Witness Hon. David L. Follett one of the Justices of the Supreme Court of the State of New-York the 6th day August, 1883. [L.S.] W. Merrifield. Dep. Clerk Chenango County. 637 Deposition of Encie Herdic. Q. {By Mr. Barlow.) What is your name, age, residence and occupation ? A. My name is Encie Herdic ; my residence is here at present ; and my age is Q. I)o you know the parties plaintiff in this ac- ' tion ? A. I know Mrs. Dwight; none of the others. Q. Were you acquainted with Walton Dwight, at any time during his life, and if so when and where did you first make his acquaintance ? A. In Williamsport, in 1865, in what was then the Herdic House. Q. Did you during any of the time that Mr. and Mrs. Dwight were living at the Herdic House, live also there ? A. I did not. Q. Do you know what rooms Mr. and Mrs. Dwight occupied at the Herdic House? A. I do not remember. Q. Did 37ou visit them or either of them in such rooms, and if so,when, and about how frequently? A. I visited them very often, but I cannot say how frequently. Q. Please state, whether or not, the said Walton Dwight was ill or confined to his bed or rooms, and for how long a time? A. I never saw Col. Dwight when he was confined to his bed or room. Q. Mrs. Herdic, do you, or do you not know, whether Col. Dwight was ill and confined to his room during his stay at the Herdic House ? A. I have never seen him or known him to be ill, to my knowledge, during that period. Q. Did or did not the said Walton Dwight have any, and if any, how frequent attacks of coughing in your presence, and how severe were such at- tacks, if any ? A. I never saw Col. Dwight have a severe cough ; I have seen him occasionally have a slight cough, but I never saw him have a severe spell of coughing, or paroxysm of coughing; I 1909 1910 1911 638 never saw him have a severe attack of coughing ; I have seen him cough as a person does when he has a cold ; I never saw him overcome with coughing. Q. Did the said Walton Dwight, at any time, during his stay in Williamsport, or at any other time, and if so, at what particular time and where, make any statement to yon, or in your presence and hearing, as to the nature or character of the illness from which the said Dwight was then suffer- ing or had been suffering'( A. As I say, I never knew of his being ill ; I have heard Col. Dwight speak of having a hemorrhage in a general way, that is, not to me particularly ; but I never knew him to have an attack of that kind, to my knowl- edge or recollection, in Williamsport. Q. What do you mean by hemorrhage ? A. I suppose an attack of bleeding at the lungs or throat ; there are different kinds of hemorrhages ; it may come from the lungs or throat. Q. Please state, as exactly as you can, using as nearly as you can, the language of Col. Dwight, what was said in your presence or hearing by Col. Dwight, in regard to this hemorrhage, or series of hemorrhages ? A. The only remark that 1 ever re- member to have been made by Col. Dwight, was in relation to his cough, at one time, when he said, in the presence of several people, that he expected some time his cough would take him off. Q. Do you understand by “ taking off,” that it would result fatally ? A. Well, I don’t know; at the time he was not at all ill ; he was the very pic- ture of health at the time ; I should not have sup- posed, from his appearance, that it could have re- sulted fatally. Q. Please state, whether or not, Walton Dwu'ght was attended by any physician during his illness, and if so, what physician or physicians ? A. I don’t know of any physician that attended him, for I never saw him ill. Q. According to your present recollection, how 1912 jgjg 1914 639 long did Mr. Dwight and his wife reside in Wil- liamsport ? A. Well, really, I cannot say, for I do not know. Q. During their residence in Williamsport, were they ever guests in your house, both at the same time? A. Very frequently. Q. Was it at the beginning or towards the end of their residence in Williamsport, that you heard Mr. Dwight speak of having a hemorrhage, and did he then state where it was that he had it? A. I never heard him speak of having a hemorrhage but once, to my recollection ; I don’t remember at what point it was of his sojourn in Williamsport that it was, and I never knew when or where. Q. Can you now recollect where in Williamsport that it was that he made the statement ? A. The only time that I can ever recall a statement of the kind was in their own rooms at the hotel. A party of us were spending the evening in their rooms, and after a slight cough. Q. Did Col. Dwight speak of having had a hem- orrhage in that conversation ? A. No, he did not. Q. Can you now recall the place where you heard him say that he had a hemorrhage, or how the con- versation came up ? A. I can’t recall the time nor place. It was only in a general way that I ever heard it referred to. Q. Please give the language that he used in that general conversation if you can, and if you cannot, give the substance of what he said of his having had a hemorrhage ? A. . I could not give the lan- guage, neither can I give the time nor place; but I remember of hearing him speak in a general way of having had a hemorrhage. Q. Do you remember how long Col. Dwight and his wife were here in Williamsport prior to your making their acquaintance ? A. I do not. Q. Did you keep house, or were you living at your father’s at that time? A. I was keeping house. 1915 1916 1917 640 The counsel for the plaintiffs also read the depo- sition of Maria Hoppes, taken at Williamsport, Pennsylvania, under commission on behalf of the defendant. (See order and commission above.) He read from the direct-examination as given on behalf of the defendants as follows: I am a widow, my husband’s name was George Hoppes; he kept the Herdic House in Williamsport at one time. I don’t think 1 can remember during what period, we have made so many changes since that time; I think about 18 years ago; I think we went to Williamsport from Mauch Chunk to take the Herdic House in 1862. My husband quit the business of keeping the Herdic House. It was a year and a half or two years after we went there; my clerk will know ex- actly; I think it was August, 1865, when my hus- band opened the Herdic House; I was my hus- band’s housekeeper for the Herdic House at the time we kept it; I made the acquaintance of one of the plaintiffs, Mrs. Anna N. Dwight, at that time. She and her husband, Col. Walton Dwight, were boarders there, having rooms at that hotel. Q. Do you recollect Col. Dwight having any ill- ness while at your hotel at Williamsport? A. No, I have no recollection of any illness. Q. Have you any recollection of his having any severe cough or cold during that time? Objected to as immaterial and incom- petent; and the answer also was sepa- rately objected to as immaterial and in- competent. The Court overruled each of the objections, to which rulings the counsel for the defendants duty excepted. A. I have recollection of him having an ordinary cold such as you would take in severe weather; I do not remember any sickness whatever. 1918 1919 1920 641 Q. By tlie word sickness do you mean confined to his bed ? Same separate objections to question and answer; same rulings and excep- tions. A. Yes, sir; I mean confined to liis bed. Q. Did you at any time during Col. Dwight’s stay at your house in Williamsport hear him say anything of the nature of the cold or cough that he had, or of his fearing any serious result from it ? Same objections, rulings and excep- tions. A. No recollection whatever. Q. Have you satisfactory recollection of what oc- curred while at the Herdic House, or is it some- what obliterated by time? Objected to as incompetent and imma- terial. The Court overruled the objec- tion, to which ruling the counsel for the defendants duly excepted. A. I think I have a very clear recollection of what happened during my stay at the Herdic House. Q. Does your present recollection enable you to state with certainty whether Col. Dwight was not ill for several weeks during that time, having an at- tending physician ? A. My recollection is that Dr. Doane prescribed when he was indisposed; but there could have been no very serious sickness, or I should have known it. The counsel for the defendants in due season objected to this reading of the last sentence of the answer after the word “but,” as being irresponsive and incompetent. The Court overruled the 1921 1922 1923 642 objection, to which ruling the counsel for the defendants duly excepted. Q. Have you any recollection now of Col. Dwight having a racking cough during any temporary ill- ness that he had during the time he was a boarder in your husband’s house in Williamsport ? Objected to as immaterial, and also on the ground that the question calls for a conclusion on the part of the witness. The Court overruled the objection, to which ruling the counsel for the defend- ants duly excepted. A. No racking cough, I recollect an ordinary cold. Q. Did you at any time while Col. Dwight was a boarder at your house, learn, either from him, or from observation, or from his wife, or by any other means, that he had spat blood or was then spitting blood ? A. I have no recollection. 1924 1925 PLAINTIFFS RESTED. Clemens Deutschler, called as a witness on be- half of the defendants, and sworn, testified as fol- lows : Examined by Mr. Larocque. I reside in Williamsport, Pennsylvania; I have resided there since 1864. I am engaged there in the hotel business, running a ’bus. I have been porter of the City Hotel of Williamsport since the first of July, 1864. I was porter of that hotel dur- ing the year 1867 ; I have produced here the regis- ter of the City Hotel at Williamsport which in- cluded the year 1867. (Book handed to witness.) 1926 643 The book now shown me is the register of that hotel, which was kept there for the entrance of guests during the year 1867 ; the first entry is May 28, 1866, and the last entry is May 20, 1867. I have examined the names entered in that register during the month of March, 1867; I do not find there the name of H. T. Reynolds at any time during that month. I found the name of Reynolds in Febru- ary ; I don’t recollect the day ; (referring to book) that is it (indicating). The entry to which I refer is under the date of February 7, and the name is W. P. Reynolds, of Philadelphia. Q. I)o you find any guesr, entered in that hotel register during the months of February, March, or April of that year, by the name of Reynolds, other than the one of W. P. Reynolds under date of February ? A. That was the only one I found; there is no other Reynolds entered in those months in that book. Cross-examination by Mr. Smith. Q. Did you have any other business here but this \ A. That is all. The book referred to was marked for identifica- tion, “A. P. L.” Re-direct-examination by Mr. Larocque. Q. Was there any other register than this one kept at the hotel during that time \ A. There must be, for that only shows a part of the year. Q. During the period this was kept was there any other register? A. No, only kept one on the counter. 1927 1928 1929 644 Harry Cornwall, called as a witness on be- half of the defendants, and sworn, testified as follows : Examined by Mr. Larocque ; I reside at Hartford, Connecticut; am in the employ of the Phoenix Mutual Life Insurance Com- pany ; have been in the employ of that company since December, 1875. Q. (Paper handed witness.) I call your attention to Exhibit number 19, being an application for insurance in the Phoenix Mutual Life Insurance Company, made by Walton Dwight, dated the 15th of August, 1878 ; do you recognize that as an ap- plication presented to your company ? A. I do. Q. When was that application received at the Home office ? at how early a date, are you able to state ? A. Not later than the 19th of August, 1878. By Mr. Newton: Q. How do you know ? A. From the endorse- ment on the application, with which I am fa- miliar; 1 was there at that time; I did not receive that application ; I am not aware that I have seen it before this moment ; I know nothing about it of my own knowledge—no further than the records of the company show ; I don’t know as I ever saw the application before, and, as I did not receive it myself Q. You therefore don’t know anything about it ? A. If that means I don’t know anything about it of my own knowledge, then I don’t. To Mr. Larocque.—I have with me the letter press book used by that corporation during that period. (Produced.) Q. (Book handed to witness.) Refer to that let- ter-press book and answer whether or not any ac- tion was taken, within your knowledge, based on that application at the date you have mentioned, 1930 1931 1932 645 and if so, what ? A. On the 19th day of August, 1878, this application was received, and on the 24th of August, 1878, it was declined, the company refusing to Q. (Indicating paper.) Is this a press copy of a letter which was written in the ordinary course of the business of the company on the 19th of August, 1878, by J. M. Holcomb, secretary, addressed to A. G. Fowler, Chicago, 111. ? A. It is. Q. This is the press letter book in which copies of business letters written by the corporation at this period were entered before being sent \ A. The signature to that letter is in the handwriting of J. M. Holcomb, the secretary of the company. A. G. Fowler, of Chicago, Illinois, to whom the letter was addressed, was at the time general agent, or superintendent of agencies at Chicago. To Mr. Newton.—I do not know whether that letter was mailed at all, of my own knowledge. Q. You don’t know anything about its being written, of your own knowledge? A. Yes; I did not see it written ; I think I did not copy it myself. At that time I was a clerk ; I did various work in the office—anything I was called upon to do ; I do not know that I ever saw that copy before this last week ; the first time I saw it was about a week ago ; that I can positively state. John M. Holcomb was in Hartford when I last saw him about a week ago ; he is employed in that company now ; and he is there for aught I know ; I left there at 7:20 p. m., Tuesday, a week ago to-morrow. The copy letter referred to by the witness was then introduced in evidence by the counsel for the defendants as a record made at the time, show- ing that this application had been received, and was the subject of action by the company at that date in the ordinary course of its business. It was marked Exhibit No. 113. 1933 1934 1935 646 By Mr. Larocque : Q. Was this letter written on a printed letter sheet of the company which has the date—the figures 187 in print ? A. It was. Q. So that the figure 8, there, denotes the date of the letter to be August 19, 1878? A. Yes. Q. The 187 being in print ? A. Yres. Q. (Paper handed witness.) I show you a letter, dated Binghamton, August 16, 1878, addressed to J. M. Holcomb, Esq., and purporting to be signed by Robert Brown, with the letter “ H” under the name; are you acquainted with the handwriting of that letter ? A. I am; it is the handwriting of Mr. H. C. Hermans. Q. Was Mr. Hermans representing the Phoenix Mutual Life Insurance Company alone, or in com- pany with another person, at Binghamton, in 1878? A. He was not alone; Mr. Robert Brown was the responsible agent, and with whom the company did business; there is nothing about that letter which will enable me to state when it was received by the Phoenix Mutual Life Insurance Company of my own knowledge. Q. Refer to your books of the company, which you have produced, and see whether or not you find anything in them, any entry in the form of a letter or otherwise, made in the ordinary course of the business of the corporation, which will enable you to fix the date when that letter was received ? A. From the application, but not from the books, am I able to fix the exact dates; that was on the 19th of August, not later than the 19th; the letter being dated the 16th. The letter of H. C. Hermars referred to by the witness was then introduced >«i evidence. It was marked Exhibit No. 114. By Mr. Smith ; Q. I would like to ask if you know anything 1936 1937 1938 647 about this letter at all of your own personal knowl- edge? A. I do; I know it was written in August, 1878. Q. Do you know it of your own knowledge ? A. I do from tile records of the company; further I am unable to answer you; that is the extent of my knowledge ; I get my knowledge from the files of the company, the files of letters received. Q. The knowledge you have is from having found this paper in among the letters of the company, is that it? A. From that and from finding copies of replies to it in the records of the company ; I know nothing further, I think, in the line of this matter, but I know the contents of this letter; I find in the book a reply to the letter, at page 688. Q. Do you mean to have this jury understand that there is anything on that page showing that is a reply to this other letter on the page 688, is there a single word by which you can testify that the original of which that is a copy was a reply to this letter? A. There is; there are five lines in that letter; I didn’t write it. Q. You don’t know what it refers to of your own knowledge? A. Ido. Q. How, if you didn’t write it? A. From my familiarity with the records of the company and the course of business; not otherwise. By Mr. Larocque ; Q. Have you that application there ? A. I recognize the handwriting of that letter as Mr. Hermans’. Q. (Paper handed witness.) Look at the appli- cation again (marked Exhibit 19) and say whether you find an entry upon that which enables you to speak with certainty as to the time of the receipt of these papers in the ordinary course of business ? A. That application was also produced from the files of the company; I recognize the handwriting of 1939 1940 1941 648 the endorsement upon it; it is in the handwriting of Levi H. Hotchkiss; that is the endorsement that is usually made in the ordinary course of business. The endorsement on the application was then introduced in evidence; it appears with the exhibit (19) in the appendix. Q. On the cross-examination, you stated you were able to fix the fact of your receipt of this letter and the action upon it, by a reply that was made to it at a certain date; is that reply to which you refer a copy of the letter written by Holcomb, secretary, to Brown, under date of August 24th, 1878? A. Yes; that is the letter; that letter is in the handwriting of Levi H. Hotchkiss, and signed J. H. Holcomb as secretary; Hotchkiss was the clerk who received from the secretory the appli- cations and filed them, and saw that policies were issued on such as were approved, and declined applications—acting under the direction of the secretary in the ordinary course of his duties; it was his custom in such correspondence to sign the name of the secretary with the letter “ H ” after it; and the letter I refer to is contained in the press letter book of the corporation; the book is marked “General, 1878,” on the side and “Letters” on the back, and “P. M. L. Insurance Company.” Q. Are you able to state, from your familiarity with the course of business of the company and the records kept in the office of the company, in the ordinary course of business, in relation to the action had by it on the application for insurance, what disposition was made of the application which had been submitted ? A. I am. Q. What disposition was made of the application which has been presented to upon the stand ? A. This application was declined, or not approved; that final action was had on the 24th of August, 1878. 1942 1943 1944 649 Cross-examination by Mr. Newton: I have examined that letter book to see whether there was any further action after the 24th than that taken by that company; I find letters, but no action; there was one on the 24th; there were two on the 24th; one was to Brown and the other was to Dr. J. G. Wilbur, of New York; on page 680, August 31, I find a letter; I find no more after that; there were no others between the 16th and the 31st, in relation to this application, except the one of the 19th, the two of the 24th, and one of the 31st; Dr. Wilbur is the medical examiner of the Phoenix at New York city; the letter of the 19th was written to A. G. Fowler, of Chicago. 1945 Frederick E. Ross, called as a witness on behalf of the defendants and sworn : Examined by Mr. Larocque: I reside in Bingham ton, New York ; have resided there most all my life ; I am cashier of the Mer- chants’ National Bank of Binghamton ; have been connected with that bank as cashier since January, 1881—in other capacities since 1878 ; I was out three years; my first connection with the bank was in 1873 as bookkeeper ; I remained with the bank then in that capacity a little over four years, and returned to the bank in 1881 ; I have the ledger of the bank in which the account of.T. F. McDonald was kept during the year 1878 (pro- duced). Q. (Book handed witness.) Will you refer to that account and see if you are able to find a de- posit of one thousand dollars by Mr. McDonald at any time in the month of August, 1878 \ A. No one deposit of one thousand. 1946 1947 650 Cross-examination Toy Mr. Smith : Q. How about the 3d of September? Objected to as incompetent, irrelevant and immaterial, the evidence of the wit- ness McDonald sought to be contradicted being distinctly that in August he re- ceived a thousand dollars from Dwight and deposited it in the Merchants’ Na- tional Bank of Binghamton ; the Court overruled the objection, to which ruling the counsel for the defendants duly ex- cepted. A. Yes, there are two. Q. How much are they ? Same objection, ruling and exception. A. One of $987.75 andanother of $1,100.00; there are a good many deposits during the month of August; checks all along. He-direct-exam ination by Mr. Larocque : Q. Do you find any deposit in the month of August, of $1,000, or as much as that sum ? A. No, nor any sum approaching it; the largest deposit that I find at any time in the month of August is $500. Charles H. Porter, recalled on behalf of the defendants, further testified as follows : Examined by Mr. Larocque. Q. Assuming that a man forty-one years of age, who had previously enjoyed robust health, had been complaining for about three weeks, and was 1948 1949 1950 651 found on a Saturday morning in bed shivering, teeth chattering, surface clammy and cold, with the blood settled under his nails, and so continued from one to two hours, breaking out into a cold sweat, with a feeble, whispering voice, and that this at- tack passes off without a fever ; that the second Friday after this occurrence, having during the day been up attending to business with his lawyer, having his beard dressed by a barber, he was left at ten p. m. by his doctor in such a condition as to create no alarm ; that at or about eleven p. m. he spoke pleasantly to his attendant, calling the at- tention of his attendant to his manner of eating a cracker, helping himself to one from a dish near his bed, and chewing it without difficulty ; that within fifteen minutes the attention of the attendant was called to such a man by a gasping noise ; that this man was dead within a few minutes thereafter ; that at the autopsy held within fifty-eight hours after the death, the liver and spleen were found to be normal, except congested, the heart nearly empty, and that there was no pigmentation any- where, could such a man have died of congestive chill, or any other form of malarial fever % A. In my opinion he could not have died of congestive chill, or any other form of malarial fever. Q. Suppose that a man after an obscure alleged illness of about five weeks duration is, on a given day, able to be up and transact business with his lawyer, and have his beard trimmed ; is left by his doctor at ten p. m. on the same day in such a con- dition as not to give any cause for alarm, and that at eleven p. m. is talking pleasantly to his attend- ant, and eating a cracker, and in less than half an hour after is dead, and that at the autopsy made fifty-eight hours after death the following condi- tions are revealed : A heavy indentation extending upwards and backwards from os hyoides to right around back of neck, and on the left side below the thyroid cartilage, running upwards 1951 1952 1953 652 and backwards at an angle of about forty-five de- grees ; post-mortem discoloration of posterior por- tion of body ; several small ecchymoses of skin of back and shoulders ; anterior x>art of right arm small ecchymoses ; thorax, lungs and heart in nat- ural condition, except that the lungs are unduly inflated. About four ounces of serum in bottom of left pleural cavity, the same amount in right pleural cavity, left lung one pound and three- quarters ; bronchi congested and coated with mucus ; upper lobe congested and oedematous ; lower lobe still more congested and oedematous, right lung two pounds, bronchi congested and coated with mucus, upper lobe at the apex several small fibrous nodules, rest of upper lobe congested and oedematous ; lower lobe congested and oede- matous ; heart healthy, weight fifteen ounces ; right ventricle contains a little fluid blood, not over one-half ounce ; left ventricle contains little fluid blood, not over one-half ounce ; left auricle contains a little clotted blood ; stomach at the fundus, mu- cous membrane softened and partly destroyed by post-mortem changes ; pyloric end of stomach, mucous membrane studded with small white spots denoting chronic gastritis ; liver congested more than usual, normal color and consistence ; kidneys uniformly congested, and otherwise healthy ; epiglottis, larynx and trachea congested and coated with mucus; inner surface of dura mater on left side chronic hemorrhagic pacchy- meningitis, with a small extravasation of blood on the left side, over the posterior portion of the pari- etal and anterior portion of the occipital lobes ; pia mater of convexity normal, except discolora- tion over occipital lobes from blood ; brain neither congested nor anmmic, otherwise healthy ; and further, that at an inquest held five months after the first autopsy, the indentation on the neck was still distinctly visible—could, or not, death have 1954 1955 1956 653 been produced by natural causes 1 A. In my opin- ion, it could not. Q. Assuming the condirions stated in the last question, what was the cause of death, in your opinion % A. In my opinion the cause of death was asphyxia, mechanical asphyxia, by strangula- tion, hanging. Q. Assuming that the heart of Col. Dwight was replaced at the first autopsy, what would be the effect upon its fibre of pouring down his throat a pint of chemical stuff made of arsenic, corrosive sublimate, camphor and carbolic acid, and other poisonous stuff, after the closure of the body ; would such application or not account for the sound condition of the heart as found at the sec- ond autopsy 1 A. In my opinion it would tend to preserve the heart and prevent decomposition. Cross-examination by Mr. Smith : I never knew a case where a heart had been sub- jected to these operations ; I have known of a case where the heart has been subjected to the influence of these drugs ; I have preserved those things myself after they were taken out. {To the Court.) I remember the hypothetical question which was put to me, next to the last one, in which I answered that it was my opinion that death was caused by mechanical asphyxia. Q. Suppose that the indentation or furrow that you speak of was caused after death, instead of before death, then what would be your opinion, throwing that out ? A. It would not change my views ; I can’t see how, under the circumstances mentioned—I do not know of any disease that would have caused those post-mortem conditions within the cavity of the chest and thorax, within the time mentioned. Q. Now, throw out of the question the finding of mucus in the bronchial tubes, I think that was 1957 1958 1959 654 the place where one of the witnesses testified it was found, and another testified that there was none found, and throw that out, and then what is your opinion? A. There is always mucus in the bronchial tube. Q. Throw out the “bloody mucus?” A. That would not essentially modify my opinion, although I would say that the question, or answer, was based upon a condition, not of one, and not of most of all the facts stated, and to eliminate one or more facts of course does not give us so perfect a pic- ture ; I do not think the mere fact—of course, in any event, I would say there would be some mucus in the bronchial tubes; if there was no bloody mucus found that would not change my opinion essential^. Q. And if the indentation was caused or pro- duced by effects after death, that would not change your opinion ? A. It would tend to weaken it. Q. Would it change it? A. No; I would say this, to start again ; I do not know of any disease that would cause that particular condition men- tioned,and eliminating,or striking out the “ bloody mucus,” that would cause that condition within the space of time that death occurred, and,therefore, I would look to other causes which might produce that death. Q. In your opinion could the peculiar conditions which you are assuming to exist in this hypotheti- cal question be caused by any other means than by strangulation by means of a cord or fillet com- pressing the windpipe ? A. Yes, I think so. Q. {By Mr. Smith.) Do you understand this sub- stantially to involve the same questions which you were asked when on the stand before ? A. Not en- tirely so. Q. Is there any new feature added? A. No, I don’t recollect of anything at this moment. Q. I want to know if you recognize, as a matter of medical science, that men die without its being 1960 1961 1962 655 possible, with all the doctors that examine the per- son, to ascertain, from an autopsy, the cause of death. ? A. I question that, on a careful examina- tion, if the previous history is known. I think I understand your question. Q. A man is found dead ; you examine his body and cannot ascertain from the autopsy the cause of his death ? A. Yes ; I have no doubt of that. Q. That is quite common, isn’t it? A. Yes; it might be. Q. Is it not a common thing of experience in medical science, for medical gentlemen, no matter how learned, to be unable during life, to discover the cause of human ailment ? A. Yes ; certainly it is, but not so very common. Q. Too common for public good ? A. Yes; it isn’t very infrequent. Q. Do you mean to be understood that upon a theoretical question like this, that was put to you, there are such facts given as to enable you to know from science, as an expert, just exactly what caused this man’s death, and to exclude all other causes ? A. I tliink so. Q. That you could tell exactly ? A. Yes. Q. Without having seen the man ? A. I think so. Q. And excluding every other possible cause, you can tell what the cause was? A. I think so. Q. What is the first fact in this question ? A. I can’t state positively, nor can I positively state what weight I give to that; I can’t say what is the second fact in the question, nor the third, nor the fourth ; I can’t state, numerically, any of them. Q; What is the last one ? A. I don’t remember certainly. Q. (By the Court.') Do you think the conditions assumed to exist in the various organs could have been produced by other means than by a rope checking the flow of blood through the arteries ? A. I do. Q. {By Mr. Larocque.) I ask you whether the 1963 1964 1965 656 internal conditions would be the same in asphyxia by smothering ? A. I think it is essentially the same ; I think I slightly misapprehended, or pos- sibly so. I was asked essentially if there was not any other possible mode, or a possible mode of natural death in a suppositious case, and I said no. Of course, it is not to be assumed that every one knows every possible cause of death, but if I find an adequate cause of death, or a condition that I think would produce death, I cannot accept some- thing unknown and mysterious when I find some- thing evident and patent to me, and, therefore, I say that I see this death was caused by asphyxia, which could have occurred within the time men- tioned, and produced the facts noted. 1966 1967 Horatio C. Wood, recalled on behalf of the de- fendants, further testified as follows : Examined by Air. Larocque: Q. Assuming that a man of forty-one years of age, who had previously enjoyed robust health, had been complaining for about three weeks, and was found on a Saturday morning in bed shivering, teeth chattering, surface clammy and cold,with the blood settled under his nails, and so continued for from one to two hours, breaking out into a cold sweat, with a feeble whispering voice, and that this attack passes off without fever; that the second Friday after this occurrence, having during the day been up attending to business with his lawyer, and having his beard dressed by a barber, he was left about ten p. m. by his doctor in such a condition as to create no alarm ; that at or about eleven p. m. he spoke pleasantly to his attendant, calling the at- tention of his attendant to his manner of eating a cracker, helping himself to one from a dish near 1968 657 his bed and chewing it without difficulty; that within fifteen minutes the attention of the attend- ant was called to such man by a gasping noise ; that this man was dead within a few minutes there- after ; that at the autopsy, held within fifty-eighfc hours after the death, the liver and spleen were found to be normal except congested, the heart nearly empty, and that there was no pigmentation anywhere ; could such a man have died of conges- tive chill, or any other form of malarial fever? A. He could not. Q. Will you state the facts upon which you base this answer ? Objected to on the ground that they can only base their question on facts of which evidence has been given, and it is not for the witness to make a suppositi- tious case of facts, and as re-opening the case. The Court.—I think the last objection is a good one. The Court sustained the objection, to which ruling the counsel for the defend- ants duly excepted. Q. Suppose that a man after an obscure alleged illness of about five weeks’ duration is on a given day able to be up and transactJbusiness with his lawyer, and have his beard trimmed ; is left by his doctor at ten p. m. on the same day in such a con- dition as not to give any cause for alarm, and at eleven p.m.is talking pleasantly to his attendant and eating a cracker,and in less than an hour thereafter is dead ; and that at the autopsy, made fifty-eight hours after death, the following facts are revealed ; a heavy indentation extending upwards and back- wards from os hyoides to right around back of neck and on left side below the thyroid cartilage, 1969 1970 1971 658 running upwards and backwards at an angle of about forty-five degrees, post-mortem discoloration of posterior portion of body, several small ecchy- moses in skin of back and shoulders ; anterior part of right arm small ecchymosis ; thorax, lungs and heart in natural condition, except that the lungs are unduly inflated ; about four ounces of serum in bottom of left pleural cavity ; the same in right pleural cavity; left lung one pound and three- quarters ; bronchi congested and coated with mu- cus, upper lobe congested and oedematous, lower lobe still more congested and oedematous ; right lung two pounds, bronchi congested and coated with mucus, upper lobe at the apex several small fibrous nodules, rest of upper lobe congested and oedematous, lower lobe congested and oedematous ; heart healthy, weight fifteen ounces, right ventricle- contains a little fluid blood, not over one-lialf ounce, left ventricle contains little fluid, not over one-half ounce, left auricle contains a little clotted blood ; stomach at the fundus, mucous membrane softened and partly destroyed by post-mor;em changes ; pyloric end of stomach, mucous membrane studded with small white spots denoting chronic gastritis ; liver congested more than usual, normal color and consistence; kidneys uniformly con- gested, but otherwise healthy ; epiglottis, larynx and trachea congested and coated with mucus; inner surface of dura mater on left side chronic hemorrhagic pacchy-meningitis, with a small extravasation of blood on the left side, over the posterior portion of the parietal and an- terior portion of occipital lobes ; pia mater of con- vexity normal, except discoloration over occipital lobes from blood; brain neither congested nor anae- • mic, otherwise healthy ; and further, that an in- quest held five months after the first autopsy, the indentation on the neck was still distinctly visible ; could or not death have been produced by natural causes? A. No. 1972 1973 1974 659 Q. Assuming the same conditions as are stated in the last question, state what was the cause of death % A. Mechanical asphyxia, produced by strangulation with a cord or some similar article. Q. Will you state the facts from which you reach this conclusion % Objected to the same as to the previous question. The Court sustained the ob- jection, to which ruling the counsel for the defendants duly excepted. Q. Assuming that the heart of Col. Dwight was replaced at the first autopsy, what would be the effect upon its fiber of pouring down his throat a pint of chemical stuff made of arsenic, corrosive sublimate, camphor and carbolic acid, and other poisonous stuff after the closure of the body; would such application or not account for the sound con- dition of the heart as found at the second autopsy \ A. The tendency of such liquid would be to pre- serve whatever it came in contact with animal tis- sue that came in contact with it—if in a body which had been put on ice, and a few hours after death the mucous membrane is found softened and partly destroyed upon the post-mortem examination, it would do just what these things indicate as regards congestion immediately jneceding death. Q. Assuming that the body of a man, weighing in the neighborhood of two hundred pounds, forty-one years of age, having a full, fleshy neck, about two hours after death is placed upon a board on its back, with the head raised upon a book and two pillows, and left in that position for about nine hours, and then placed in an ice-box, with its head elevated at an angle of about forty-five degrees, and left there for about forty-eight hours, and then removed and placed flat on a table ; is it possible that a heavy in- dentation, commencing near the Adam’s apple and 1975 1976 197 T 660 running upward and backward at an angle of about forty-five degrees on either side to within less than two inches of meeting in the rear, could be pro- duced by the changes in position stated ? A. In my opinion, it is not possible. Cross-examination by Mr. Smith : Q. Have you any special experience as to wrinkles in the skin after death ? A. I have had, sir. Q. Can you recall a case since you were born ? A. I can’t recollect any before I was born, sir, but I can recall a case, and it must have been since I was born. I can recall distinctly two cases. Q. Can you recollect a case of a man’s dying by asphyxia? A. Yes ; T can't give the name, but I can give the circumstances of the death. Q. Did you have any experience as to the folds of this skin ? A. Yes. Q. In the ice-box ? A. No. Q. Or the effect of being taken out of an ice-box? A. No. Q. Or whether his head was laid on a book or a pillow ? A. No ; not on a book or pillow. Q. Is that the extent of your experience with dead bodies, so far as the folds of the skin are con- cerned, after they have been subjected to an atmos- pheric condition of an ice-box, and afterwards placed on a board? A. No. Q. Then in your answer to that question you guessed at it ? A. No. j Q. You are without personal knowdedge ? A. I am not. Q. Have you any personal knowdedge of cases of the kind I have stated, I want you to tell whether you have had any personal knowdedge or experience in reference to the folds of the skin or the outer surface of a body that has been exposed to the operation of the air of an ice box, and then taken out and laid on a board ? A. Yes ; I cannot 1978 1979 1980 661 give the names ; I can’t say how many cases, but a great many—scores, I should say—that means over forty ; I cannot name a single one. Q. Is there any scientific rule, any rule laid down in the books, any rule that has been promulgated by the common consent of men, by which you can test whether a fold in the skin was produced before or after death? A. No; none laid down in the books that I know of. Q. Is there any in your head that you have not written in a book ? A. No. I have heard several hypothetical questions read here to me this morn- ing ; I helped compose them, in a house in the town of Norwich. There was a meeting composed partially of doctors and lawyers. Q. Was the meeting composed of the lawyers who were to put the questions, and the doctors who were to answer them ? A. Yes; they made up the scientific questions. Q. These hypothetical questions put to you are some that were conceived and written down by this assemblage of gentlemen you have referred to ? A. I think all of them. Q. And do you remember them as you sit there in the chair ? A. Yes. Q. Are we right in understanding that you testi- fied on the stand before that in your opinion Wal- ton Dwight died from asphyxia, and not from any other cause ; did you testify to that? A. Not ac- cording to my recollection. I have no recollection of saying a word about Walton Dwight. I was asked a hypothetical question and Walton Dwight’s name was not mentioned. Q. In answer to that question, did you state that upon the facts stated you were prepared to give the opinion that whoever he was, be the same more or less, he died from asphyxia, and no other cause ? A, Yes. Q. And you stick to that? A. I certainty do. Q. And you mean by asphyxia, hanging by a 1981 1982 1983 662 cord ?' A. Asphyxia does not mean that necessari- ly. It may be produced by other substances than a cord. Q. I ask whether, in answer to that question the other day, in reference to asphyxia, you meant asphyxia from a rope or cord? A. Yes. Q. They put to you another question ; there is something in this question about that man’s age ; has that anything to do with it? A. Slightly; it is a grain of sand in a big heap. The question of a man’s age bears on the whole question as the grain of sand to the large heap, or a drop to the ocean. Q. Take the day he died, has that anything to do with it? A. Not without the rest of the ques- tion ; not without its relation to the other part of the question. It has a very distinct relation to the rest of the question. Isolated from the question it is of no importance, but in relation to the rest of the question it is of importance. Q. Whether he could keep anything on his stomach or not; has that anything to do with determining whether he died from asphyxia ? A. That was not in the question ; there was something about a cracker in the question. The powder of eating a cracker has a good deal to do with the cause of death by asphyxia. A man could eat five minutes before his death by hanging, as wTell as any time—that is my opinion. At the meeting referred to at which the hypothet- ical questions were composed there wrere Drs. Por- ter and Swinburne and Dr. Bridges and Dr. Sher- man and myself ; but I believe Dr. Porter not there during the making of the questions. I am uncertain at what time Dr. Porter came in ; we had only one meeting. Q. Are you acting in any other capacity in this case than as a witness? A. I am acting in this case as an expert. By “expert ” I mean a person who shall aid in bringing out the scientific facts in a case, and give an opinion thereon. 1984 1985 1986 663 Q. Did yon understand it to be any part of the duties, or the impartial office of an expert to take part in the trial as counsel ? A. I do so far as to assist in bringing out the scientific facts of the case. I have been sitting with the counsel during this trial, and have been giving suggestions ; I have been writing on paper with ink or some other substance that produced characters. I have not been writing through the trial here, excepting writing sugges- tions to counsel, suggesting questions to be put. I am acting here under pay as a witness ; I am not a hired witness. Q. You are here as a witness for pay, beyond testifying on the stand ? A. I am here as an expert; I am here under pay by these defendants. Q. To perform any other office than to give your honest, impartial, sworn statement? A. Not so far as the witness stand is concerned. I am here to give information in the case—not to co-operate in the case. Q. But in preparing questions and to go on the stand and swear to them ? A. That is ail. Re-direct-examination by Mr. Larocque : Q. You were asked on the other side whether you had any experience which would enable you to give an opinion in regard to the causes which would produce these marks or indentations upon the neck, and you were asked whether or not you had ever in your experience placed the body of a man upon a board, first supported by a book and pillows, and then placed in an ice box and kept a certain length of time and then placed on a board ; state whether, in your experience you have had the case of a body which shortly after death was placed in a position with the head raised at an angle of forty-five degrees or thereabouts, and kept in that position forty-eight hours, in an atmosphere 1987 1988 1989 664 in which the rigor mortis was produced, or in a freezing atmosphere ? A. I have. Re-cross-examination by Mr. Smith : My last answer was that I had had such an ex- perience ; I don’t know the name—who it was ; I have no sort of suspicion as to the name ; it was two men, in the hospital connected with the so- called Philadelphia Hospital, on Pine street, be- tween 34th and 36th, in the city of Philadelphia. That was last Thursday to Saturday ; bodies were put in position on Thursday and Friday morning, and were left there, one about forty-eight hours and the other a less length of time. Q. You had not been killing anybody to make these experiments? A. No, it is not necessary in that hospital, nature does it for us. I went home for other purposes and made the experiments. I commenced early Friday morning and iinished them Saturday afternoon ; they were the bodies of men. Q. I knew it was not their spirits. A. They were men ; I put it that way because it was exact. The depth of your ignorance—I cannot plumb it. Q. What do you mean by your expression, “ the depth of your ignorance”? A. You seem to know so little, I have to make everything very plain. Q. Do I understand you swear to all this ? A. I do, sir. Q. You went down there and took two dead bodies, and my question is, were they men or women ? A. They wTere bodies of men ; I did not put them in an ice box, but they were put in cool air, and were laid in position under my direction ; one of them was kept there exactly forty-eight hours, and the other about fifteen ; then they were taken out and laid on a board, and then I examined the folds of the neck. Q And was that to enable you to come here and 1990 1991 1992 665 swear as to the experiments 1 A. It was to study the question. Q. Answer my question. Was that done with a view to enable you to come here and give testimony upon that subject? tell these gentlemen what the truth is ? A. The truth is, it was done in order that I might test the question and give testimony here from immediate and direct experiment; I did not bring the bodies with me—they were inconvenient pocket pieces ; it would have been inconvenient. Q. What do you mean by inconvenient pocket pieces ? A. That it would be inconvenient to bring them here ; I never saw Col. Dwight. Q. You don’t know how the condition of these bodies compared with his, as to size and weight and volume, flexibility and pigment? A. Not from personal knowledge, I do not. Q. You don’t know what the pigment of the epidermis was ? A. Yes. Q„ Have you given your opinion here on this trial, when you were inquired of, as to the posi- bility of producing these conditions described, based solely upon the results of the experiments you have just described as having been made with those two unfortunate dead bodies? A. If you mean by “conditions described” in the question, the folds of the neck, I say no. Q. Do you know of any other cases? A. I can’t give individual cases. Q. Do you know of anything in the books on the subject, including the books that have been com- posed by Dr. Wood ? A. No, I do not. 1993 1994 1995 Benjamin F. Sherman, recalled on behalf of the defendants, further testified as follows : Examined by Mr. Laroeque ; I was present at the coroner’s inquest, which was 666 held oil the body of Walton Dwight, at Bingham- ton, in April, 1879. Q. Did you, or did you not, on that occasion, call particular attention of the coroner and the members of the coroner’s jury to the groove which existed in the neck of the body there exposed ? Objected to on the ground that the question has already been put to the wit- ness, and on the further ground that the effect of the question is to re-open the case. The Court sustained the objection, to which ruling the counsel for the de- fendants duly excepted. Q. Assuming that a man of forty-one years of age, who had previously enjoyed robust health, had been complaining for about three weeks, and was found on a Saturday morning in bed, shivering, teeth chattering, surface clammy and cold, with the blood settled under his nails, and so continued for from one to two hours, breaking out into a cold sweat, with a feeble, whispering voice, and that this attack passes off without fever; that the second Friday after this occurrence, having during the day been up attend- ing to business with his lawyer, and having his beard dressed by a barber, he was left about 10 p.m. by his doctor in such a condition as to create no alarm ; that at or about eleven p. m., he spoke pleasantly to his attendant, calling his attention to his manner of eating a cracker, helping himself to one from a dish near his bed, and chewing it with- out difficulty ; that within fifteen minutes the at- tention of the attendant was called to such man by a gasping noise, and chat this man was dead in a few minutes thereafter; that at an autopsy held within fifty-eight hours after death, the liver and spleen were found to be normal, except congested, the heart nearly empty, and that there was no pig- 1996 1997 1998 667 mentation anywhere—could or could not such a man have died of congestive chili, or any other form of malarial fever? A. He could not, sir. Q. Suppose that a man after an obscure alleged illness, of about live weeks’ duration, is on a given day able to be up and transact business with his lawyer, and have his beard trimmed, is left by his doctor at ten p. m. on the same day in such a con- dition as not to give any cause for alarm, and at eleven p. m. is talking pleasantly with his attend- ant, and eating a cracker, and in less than a half an hour thereafter is dead ; and that at the autopsy made lifty-eight hours after death, the following conditions are revealed : A heavy indentation ex- tending upwards and backwards from os hyoides to right around back of neck and on left side below the thyroid cartilage, running upwards and back- wards at an angle of about forty-live degrees ; post- mortem discoloration of posterior portion of body ; several small ecchymoses of skin of back and shoulders ; anterior part of right arm, small eccliy- mosis ; thorax, lungs and heart in natural position, except that the lungs are unduly inflated ; about four ounces of serum in bottom of left pleural cav- ity ; the same amount in right pleural cavity ; left lung one pound and three-quarters ; bronchi con- gested and coated with mucus ; upper lobe con- gested and oedematous ; lower lobe still more con- gested and oedernatous. Right lung, two pounds ; bronchi congested and coated with mucus ; upper lobe at the apex several small fibrous nodules ; rest of upper lobe congested and oedematous ; lower lobe congested and oedematous ; heart health}^—- weight fifteen ounces ; right ventricle contains a little fluid blood, not over one-half ounce ; left ven- tricle contains a little fluid blood, not over one-half ounce; left auricle contains a little clotted blood; stomach at the fundus mucous membrane softened and partly destroyed by post-mortem changes; pyloric end of stomach mucous membrane studde 1999 2000 2001 668 with small white spots, denoting chronic gastritis ; liver congested more than usual, normal color and consistence ; kidneys uniformly congested but otherwise healthy ; epiglottis, larynx and trachea congested and coated with mucus ; inner surface of dura mater in left side chronic hemorrhagic pacchy- meningitis, with a small extravasation of blood on the left side over the posterior portion of the pa- rietal and anterior portion of occipital lobes ; pia mater of convexity normal, except discoloration over occipital lobes from blood ; brain neither con- gested nor anaemic, otherwise healthy ; and fur- ther, that at an inquest held five months after the first autopsy, the indentation on the neck was still distinctly visible ;—could or could not death have been produced by natural causes ? A. No, it could not. Q. Assuming the same conditions as in the last preceding question, what was the cause of death ? A. Asphyxia from mechanical causes—from a rope or cord about the neck. Q. Assuming that the body of a man weighing in the neighborhood of two hundred pounds, forty- one 3^ears of age, having a full, fleshy neck, about two hours after death is placed upon a board on its back, with the head raised upon a book and two pillows, and left in that position for about nine hours, and then placed in an ice box with its head elevated at an angle of about forty-five degrees,, and left there for about forty-eight hours, and then removed and placed fiat on a table—is it possible that a heavy indentation commencing near the Adam’s apple and running upwards and backwards at an angle of about forty-five degrees on either side to within less than two inches of meeting in the rear, could be produced by the changes in posi- tion stated ? A. No, it could not. Cross-examination by Mr. Smith. Q. Are you one of the doctors that took part in 2002 2003 2004 669 composing this question, these hypothetical ques- tions? A. I was one of the doctors present, there may be one word or two in it that I suggested, but no more than that. Dr. Porter was there a small part of the time, a portion of the time. Q. Have you any experience on the subject of in- dentations in the neck ? A. I have. Q. Of the living or the dead ? A. Of the dead, and some in the living. Q. How many—have you any personal experi- ence where you have observed cases of indentation in the bodies of persons who have died ? A. I have personal experience where there was no indentation after the circumstances really existed. (Question repeated.) A. No, no indentation. Q. You have not? A. No. Q. You have had a case, you say, where the body was smooth ; you mean by that that a man could die without having wrinkles? A. A baby might but I don’t think a man could. Q. Take a stout athletic man, is it necessary that lie should have wrinkles of the neck in order to die ? A. No, not to die ; he could die with the wrinkles, very likely, produced by natural causes—wrinkles or no wrinkles. Re-direct-examination by Mr. Russell ; Q. I ask you if you have had any personal ex- perience of indentation in the neck that appeared upon dead bodies and were made by a rope around the neck ? A. I have, frequently. Q. And in answer to the question of the counsel as to the indentations, as to the non-existence of indentations in the neck after death, did you or did you not refer to cases of experiments you have per- sonally made to ascertain whether cold would cause a fold or groove in the neck which would not be re- >movable as soon as the cold was taken away ? A. 2005 2006 2007 670 Yes, that was my understanding of it ; I have had such experiences in practice. Q. What was the result of those experiments? Objected to as incompetent and as im- proper, and that it is not competent for the defendant to call on the medical gentleman to give isolated cases. The Court sustained the objection, to which ruling the counsel for the defendants du- ly excepted. Re-cross-examination by Mr. Smith : I did not go home Sunday to make any experi- ments, but I went to Philadelphia. John Swinburne, recalled on behalf of the de- fendants, further testified as follows : Examined by Mr. Larocque ; Q. Assuming that a man forty-one years of age, who had previously enjoyed robust health, had been complaining for about three weeks, and was found on a Saturday morning in bed, shivering, teeth chattering, surface clammy and cold, with the blood settled under his nails, and so continued for from one to two hours, breaking out into a cold sweat, with a feeble, whispering voice, and that this attack passes off without fever; that the second Friday after this occurrence, having during the day been up attending to business with his lawyer, and having his beard dressed by a barber, he was left about 10 p. M. by his doctor in such a condition as to create no alarm ; that at or about 11 p. m. lie spoke pleasantly to his attendant, calling his at- tention to his manner of eating a cracker, helping himself to one from a dish near his bed, and chew- 2008 2009 2010 671 ing it without difficulty ; that within fifteen min- utes the attention of the attendant was called to such man by a gasping noise, and that this man was dead in a few minutes thereafter ; that at an autopsy held within fifty-eight hours after death, the liver and spleen were found to be normal, ex- cept congested, the heart nearly empty, and that there was no pigmentation anywhere,—could or could not such man have died of congestive chill, or any other form of malarial fever ? A. I should say not, sir. Q. Suppose that a man after an obscure alleged illness of about five weeks duration, is on a given day able to be up and transact business with his lawyer, and have his beard trimmed, is left by his doctor at ten p. m. on the same day in such a condition as not to give any cause for alarm, and at eleven p. m. is talking pleasantly with his attendant and eating a cracker, and in less than half an hour thereafter is dead ; and that at the autopsy made fifty-eight hours after death , the following conditions are re- vealed; a heavy indentation extending upwards and backwards from os hyoides to right around back of neck, and on left side below the thyroid cartilage running upwards and backwards at an angle of about forty-five degrees ; post-mortem discolora- tion of posterior portion of body, several small ecchymoses of skin on back and shoulders ; anter- ior part of right arm, small ecchymosis ; thorax, lungs and heart in natural position, except that the lungs are unduly inflated ; about four ounces of serum in bottom of left pleural cavity ; the same amount in right pleural cavity ; left lung, one pound and three-quarters ; bronchi congested and coated with mucus ; upper lobe congested and oedematous ; lower lobe still more congested and oedematous ; right lung two pounds ; bronchi congested and coated with mucus, upper lobe at the apex several small fibrous nodules ; rest of 2011 2012 2013 672 upper lobe congested and oedematous ; lower lobe congested and oedematous; heart healthy, weight fifteen ounces; right ventricle contains a little fluid blood, not over one-half ounce ; left ventricle contains a little fluid blood, not over one-half ounce ; left auricle contains a little clotted blood; stomach at the fundus, mucous membrane softened and partly destroyed by post- mortem changes ; pyloric end of stomach mucous membrane studded with small white spots, denot- ing chronic gastritis ; liver congested more than usual, normal color and consistence ; kidneys uniformity congested but otherwise healthy ; epiglottis, larynx and trachea congested and coat- ed with mucus ; inner surface of dura mater in left side, chronic hemorrhagic pacchy-meningitis, with a small extravasation of blood on the left side over the posterior portion of the parietal and anter- ior portion of the occipital lobes ; pia mater of con- vexity normal, except discoloration over occipital lobes from blood ; brain neither congested nor anaemic and otherwise healthy ; and further,that at an inquest held five months after the first autopsy the indentation on the neck was still distinctly visible,—could or could not death have been pro- duced by natural causes ? A. I should say not. Q. Assuming the same conditions as stated in the last preceding question, what was the cause of death ? A. I should say from asphyxia and with a rope or cord. Q. Assuming that the body of a man, weighing in the neighborhood of two hundred pounds, forty-one years of age, having a full llesliy neck, about two hours after death is placed upon a board on its back, with the head raised upon a book and two pillows, and left in that position for about nine hours, and then placed in an ice-box with its head elevated at an angle of about forty-five degrees, and left there for about forty-eight hours, and then removed and 2014 2015 2016 673 placed flat on a table, is it possible that a heavy indentation, commencing near the Adam’s apple, and running upward and backward at an angle of about forty-five degrees on either side to within less than two inches of meeting in the rear, could be produced by the changes in position stated? A. I should say not. Cross-examination by Mr. Smith: I do not know of the case of the death last Thanksgiving morning of the Unitarian Clergyman in Boston, who died while delivering his morning prayer, in the pulpit. I have not heard or read of that case ; I know all about the death of the late Dr. Sims, as far as the papers go. I assume they are true ; I do not read more about the doctors than the dominies ; but it is something more in my line ; I attended a reception at Dr. Sims’ a few days before that, and we were very intimate friends. Dr. Sims was a man seventy-two years of age, and your supposed case is of forty-one. Q. Do you regard, as a scientific gentleman, the question of a man's age, standing alone, bears at all on the question as to how he may die, or, if he is found dead, how he has died ? A. Yes, it is a very important element ; it is sometimes controlling in the inquiry. Q. So, if a man died at one hundred, with his head cut off, he would be regarded as dying of old age? A. No. Q. I ask whether the fact that a man having died, had shortly before his death been visited by a doctor, would bear on the queston of science as to whether he died from natural or artificial causes ? A. I don’t think it would. Q. IIow would it be if he had been visited by a lawyer within a few hours ; would that bear upon the question? A. I think it would very materially. Q. Do you think that would bear more on the 2017 2018 2019 674 nature of his death or on the heft of his purse ? A. On the purse, I think. Q. Do you think the fact that he had had his hair or beard cut would bear on the question as to the cause of his death \ A. No, excepting in so far as it would show he was in the condition to be able to bear the sitting up, and bear the manipula- tion. Q. I ask you whether the cutting of a man’s hair as a fact, bears on the question of the cause of his death? A. If I am not allowed to explain, I will say yes. Q. I want you to tell that jury how the fact that the man has had his hair cut, bears on the question of the cause of his death % A. If a man is well enough at four o’clock in the afternoon, as he dies at eleven o’clock at night, to sic up and have his hair cut and whiskers trimmed, it will show con- clusively that he is not a very sick man. In that respect it bears. Q. In any other respect % A. I can’t say it does. I was not one of the gentlemen who assisted in com- posing these hypothetical questions ; I attended a meeting, and heard those read ; I told them what I would swear to. Q. Was the question as to the answers to be made to those questions, discussed % A. They were not, in my presence. Q. Is that as near as you can come to the answer ? A. Yes, I wasn’t in until late—I didn’t hear what they said. I answer for my own self. This is the fourth week that I have been here in Norwich. 2020 2021 2022 Elisha H. Bridges, recalled on behalf of the defendants, further testified as follows: Examined by Mr. Larocque : Q. Assuming that a man, forty-one years of age, 675 who had previously enjoyed robust health, had been complaining for about three weeks, and was found on a Saturday morning in bed,shivering, teeth chattering, surface clammy and cold, with the blood settled under his nails, and so continued for from one to two hours breaking out into a cold sweat, with a feeble, whispering voice, and that this attack passes off without fever ; that the second Friday after this occurrence, having during the dny been up attending to business with his lawyer,and having his beard dressed by a barber, lie was left at ten p. m. by his doctor, in such a condition as to create no alarm ; that at or about eleven p. m. he spoke pleasantly to his attendant, calling the attention of his attendant to his manner of eating a cracker, helping himself to one from a dish near his bed, and chewing it without difficulty; that within fifteen minutes the attention of the attendant was called to such man by a gasping noise ; that this man was dead within a few minutes thereafter; that at the autopsy held within fifty-eight hours after the death, the liver and spleen were found to be normal, except congested, the heart nearly empty, and that there was no pigmentation any- where ;—could or could not such man have died of congestive chill, or any other form of malarial fever ? A. He could not. Q. Suppose that a man, after an obscure alleged illness of about five weeks duration, is, on a given day able to be up and transact business with his lawyer, and have his beard trimmed ; is left by his doctor at ten p. m. on the same day, in such a condi- tion as not to give any cause for alarm ; and that at 11 p.m. is talking pleasantly to his attendant and eat- ing a cracker, and in less than half an hour there- after is dead ; and that at the autopsy, made fifty- eight hours after death, the following conditions are revealed : A heavy indentation extending upwards and backwards from os hyoides to right around back of neck and on left side below the tliyrodic artilage, 2023 2024 2025 676 running upwards and backwards at an angle of about forty-five degrees ; post-mortem discoloration on posterior portion of body; several small ecchy- moses of skin of back and shoulders ; anterior part of right arm, small ecchymosis; thorax, lungs and heart in natural position, except that the lungs are unduly inflated ; about four ounces of serum in bottom of left pleural cavity ; the same amount in right pleural cavity ; left lung, one pound and three-quarters ; bronchi congested and coated with mucus; upper lobe congested and oedematous ; lower lobe still more congested and oedematous; right lung two pounds ; bronchi congested and coated with mucus ; upper lobe at the apex several small fibrous nodules ; rest of upper lobe con- gested and oedematous ; lower lobe congested and oedematous ; heart healthy, weight fifteen ounces ; right ventricle contains a little fluid blood, not over one-half ounce ; left ventricle contains a little fluid blood, not over one-lialf ounce; left auricle contains a little clotted blood ; stomach at the fundus, mucous membrane softened and partly destroyed by post-mortem changes ; pyloric end of stomach mucous membrane studded with small white spots, denoting chronic gastritis ; liver con- gested more than usual, normal color and consist- ency ; kidneys uniformly congested but other- wise healthy; epiglottis, larynx and trachea con- gested and coated with mucus; inner surface of dura mater on left side chronic hemorrhagic pacchy-meningitis with a small extravasation of blood on the left side over the posterior portion of the parietal and anterior portion of occipital lobes ; pia mater of convexity normal, except discolor- ation over occipital lobes from blood; brain neither congested nor anaemic, otherwise healthy ; and further, that at an inquest held five months after the first autopsy, the indentation on the neck was still distinctly visible ;—could or not death have 2026 2027 2028 677 been produced by any natural cause ? A. It could not. Q. Assuming the same conditions as stated in the last preceding question, what was the cause of death ? A. Hanging. Q. Assuming that the body of a man weighing in the neighborhood of two hundred pounds, forty- one years of age, having a full liesliy neck, about two hours after death is placed upon a board on its back, with the head raised upon a book and two pillows, and left in that position for about nine hours, and then placed in an ice box with its head elevated at an angle of about forty-five degrees, and left there for about forty-eight hours, and then removed and placed flat on a table—is it possible that a heavy in- dentation, commencing near the Adam’s apple and running upward and backward at an angle of about forty-five degrees on either side to within less than two inches of meeting in the rear, could be pro- duced by the changes in position stated ? A. It could not. Q. Does the furrow produced in the neck after suicidal hanging acquire its dark brown color im- mediately or at some period of time afterward . Objected to on the ground that it is re- opening the case; the Court sustained the objection, to which ruling the coun- sel for the defendants duly excepted. Cross-exam ination by Mr. Smith : I have intended to give an opinion about malaria or chills in these questions ; I don’t remember the number of the question ; I am sure it was in either of the questions ; I can’t tell you the sentence. Q. Will you be kind enough to repeat the sen- tence, as well as you can remember it, in which the expression occurs in relation to malaria ? A. I cannot repeat it. 2029 2030 2031 678 Q. Can you give the substance of it? A. No. Q. Have you given an opinion upon it ? A. Yes. Q. And cannot state the substance of the ques- tion? A. I don’t know that I can ; I don’t remem- ber where the word “malaria” was used, distinctly. Q. State the substance, as near as you can, of any sentence in any of these hypothetical questions, in which the words or the substance or subject of malaria was embraced? A. 1 don’t think it was embraced in any but the last part of the question “ Did he die of malarial disease ?” 1 recollect that being in the question. qb And do you intend being understood as hav- ing given an opinion upon that question ? A. Yes. Q. Have you ever had a case of a man dying from malarial disease ? A. No. Q. Then all you know about it is what you read or what you guess at ? A. I don’t guess at any- thing. Q. Then it must be from what you read? A. Yes. Q. Is that the extent of your professional skill upon this subject, what you have read and what you judge from what you have read? A. Yes. I went to Binghamton a week ago last Friday,—I think it was a week ago last Friday. Q. Were you there engaged in pursuing and studying, or in any wise attempting to further or enlarge you knowledge, or other thing in pursuing the subject of malarial fever? A. I was; 1 re- mained there one day. I went down in the even- ing, and returned the next evening. 1 remember whom I saw down there ; 1 saw Dr. Jackson, a Bing- hamton doctor ; he does not act for an insurance company that I know of;—Dr. Mullierron ; he was not an insurance doctor, so far as I know. And I saw Dr. Spencer, and the Coroner, Dr. Richards. That is all I think of now that I saw. I didn’t see any dead bodies there. 2032 2033 2034 679 George W. Avery, recalled on behalf of the defendants, further testified as follows : Examined by Mr. Larocque: Q. Assuming that a man of forty-one years of age, who had previously enjoyed robust health, had been complaining for about three weeks, and was found on a Saturday morning in bed shivering, teeth chattering, surface clammy and cold, with the blood settled under his nails, and so continued for from one to two hours, breaking out into a cold sweat, with a feeble, whispering voice, and that this attack passes off without fever; that the second Friday after this occurrence, having during the day been up attending to business with his lawyer, having his beard dressed by a barber, he was left at about ten p. m. by his doctor in such a condition as to create no alarm; that at or about eleven P. m. he spoke pleasantly to his attendant, calling the attention of his attendant to his manner of eating a cracker, helping himself to one from a dish near his bed, and chewing it without difficulty; that within fif- teen minutes the attention of the attendant was called to such man by a gasping noise; that this man was dead within a few minutes thereafter; that at the autopsy, held within fifty-eight hours after the death, the liver and spleen were found to be normal, except congested, the heart nearly empty, and that there was no pigmentation anywhere;— could or not such man have died of congestive chill, or any other form of malarial fever ? A. He could not. Q. Suppose that a man, after an obscure alleged illness of about five weeks’ duration, is on a given day able to be up and transact business with his lawyer and have his beard trimmed; is left by his doctor at ten p. m. on the same day, in such a con- dition as not to give any cause for alarm, and at eleven p. m. is talking pleasantly with his attend- 2035 2036 2037 680 ant and eating a cracker, and in less than half an hour thereafter is dead; and that at the autopsy, made fifty-eight hours after death, the following con- ditions are revealed : A heavy indentation extend- ing upwards and backwards from os hyoides to righ t around back of neck, and on left side below the thyroid cartilage, running upwards and backwards at an angle of about forty-five degrees; post-mortem discoloration of posterior portion of body ; several small ecchymoses of skin of back and shoulders; anterior part of right arm, small ecchymosis; thorax, lungs and heart in natural position, except that the lungs are unduly inflated; about four ounces of serum in bottom of left pleural cavity; the same amount in right pleural cavity; left lung one pound and three-quarters; bronchi congested and coated with mucus; upper lobe congested and oedematous; lower lobe still more congested and oedematous; right lung two pounds; bronchi congested and coated with mucus; upper lobe at the apex, several small fibrous nodules; rest of upper lobe congested and oedematous; lower lobe congested and oedema- tous; heart healthy, weight fifteen ounces; right ventricle contains a little fluid blood—not over one- half ounce; left ventricle contains a little fluid blood—not over one-half ounce; left auricle con- tains a little clotted blood; stomach at the fundus, mucous membrane softened and partly destroyed by post-mortem changes; pyloric end of stomach, mucous membrane studded with small white spots, denoting chronic gastritis; liver congested more than usual, normal color and consistence; kidneys uniformly congested and otherwise healthy; epi- glottis, larynx and trachea congested and coated with mucus; inner surface of the dura mater on left side chronic hemorrhagic pacchy meningitis with a small extravasation of blood on the left side over the posterior portion of the parietal and ante- rior portion of occipital lobes; pia mater of convex- ity normal, except discoloration over occipital 2038 2039 2040 681 lobes from blood; brain neither congested nor anaemic, otherwise healthy; and further, that at an inquest held five months after the first autopsy, the indentation on the neck was still distinctly visible; could or not death have been produced by natural causes '( A. It could not. Q. Assuming the same conditions as stated in the last preceding question, wliat was the cause of death ? A. Asphyxia by either a.fillet or rope. 2041 DEFENDANTS HERE RESTED. The evidence being closed, the counsel for the defendants moved to dismiss the complaint. First.—On the grounds stated at the close of the plaintiffs’ original case. Second.—That upon the uncontradicted evidence in the case, the answer of the said Walton Dwight, “ Real Estate and Grain Dealer,” to the following question contained in the application, viz: u2. (c) In what occupation has he been engaged during the last ten years ?” was untrue,and constitutes a breach of warranty which avoids the policy in suit and precludes a recovery by the plaintiffs in this action. Third.—That upon the uncontradicted evidence in the case the answer of the said Walton Dwight in the negative to the following question contained in the application, viz: “2. (d) Is he now or has he been engaged in or connected with the manufac- ture or sale of any beer, wine or other intoxicating liquors V’ was untrue, and constitutes a breach of warranty which avoids the policy in suit and pre- cludes a recovery by the plaintiffs in this action. Fourth.—That, upon the uncontradicted evidence in the case, the answer of the said Walton Dwight 2042 2043 682 to the following question contained in the applica- tion, viz : “16. Has the party now, or has the same ever had any of the following diseases: Spitting of blood, bronchitis, consumption ?” etc., so far as said answer related to spitting of blood, was un- true, and constitutes a breach of warranty which avoids the policy in suit and precludes a recovery by the plaintiffs in this action. Fifth.—That, upon the uncontradicted evidence in the case, the answer of the said Walton Dwight to the following question, contained in the applica- tion, that is to say : “6. (a) Whether the party to be insured is now or has been insured in this com- pany; if so, state the number of the policy and the amount. (b) Whether in other companies; in which; for what amount in each. State exactly on what kind of policy?”—to the effect that he was insured in the New-York Mutual (meaning the Mu- tual Life Insurance Company of New-York) by a fifteen year endowment policy for ten thousand dollars, and also to the effect that he was insured in the Connecticut Mutual Life Insurance Company on an ordinary life policy for fifteen thousand dol- lars—was, so far as the said answer related to each of the two companies named, untrue; and consti- tutes a breach of warranty which avoids the policy in suit and precludes a recovery by the plaintiffs in this action. Sixth.—That, upon the uncontradicted evidence in the case, the answer of the said Walton Dwight in the negative to the following question, contained in the application, that is to say: “6. (c) Whether an assurance has been applied for with this or any other company without having led to an assurance; if so, with which companies? And for what rea- son did the application not lead to an assurance ?” was untrue in this : That at the date of the said ap- plication the said Dwight had already made appli- 2044 2045 2040 683 cation for assurance on his life, to the following companies, that is to say : (1) To the Connecticut Mutual Life Insurance Company, (2) To the Mutual Life Insurance Company of New-York, (3) To the Phoenix Mutual Life Insurance Com- pany, (4) To the John Hancock Life Insurance Com- pany, (5) To the Penn Mutual Life Insurance Com- pany, (6) To the Globe Mutual Life Insurance Com- pany ; And that the said applications to the said companies respectively had not, nor had either of them led to an assurance at the date of the appli- cation to the defendant for the policy in suit ; that the said answer was untrue as to each and every of the six companies, hereinbefore specified, and that the said untrue answer constitutes a separate breach of warranty as to pending applica- tions in each of the companies designated, which avoids the policy in suit, and precludes a recovery by the plaintiffs in this action. Said motion was separately made on each of the grounds stated, and the Court denied the said motion as to each of the said grounds, to each of which rulings and denials the counsel for the defendants duly excepted. The counsel for the defendants thereupon moved for an instruction to the jury to find a verdict for the defendants on each of the grounds separately, on which the motion to dismiss the complaint was baser!. The Court refused so to instruct the jury, and the counsel for the defendants duly excepted sep- 2047 2048 2049 684 arately to tlie said refusal and ruling of the Court on each of the grounds stated. The Court thereupon charged the jury as fol- lows : Gentlemen of the Jury.—Thirty days have passed since you were selected as men tit and competent to decide the questions of fact between these parties. Twenty-three of these days have been fully occupied in taking tlie evidence and listening to discussions of the facts. This case has been said to be, and it is an important and remarkable case. It is important in the amount of money involved in this particular issue,and more important in the effect that it may have on many similiar issues yet untried. And it is also important as it involves a very serious question affecting the character and the reputation of several persons. It is remarkable in the character of facts out of which it arises,but it is more remarkable, 1 think, in another aspect, and that is, though we have spent, as I sajq thirty days in investigating this case, that there are not more than a half dozen disputed facts in the whole case, rhis may seem to you a remarkable declaration, out I think, gentlemen, when you come to review the evidence you will find that it is literally true. But the importance of the duties which you have to discharge are not all measured by the few- ness of the facts actually in dispute between the several witnesses who have testified. Indeed, for that reason it calls upon a jury for the very highest exercise of their reasoning faculties, because that the facts in issue that are to determine which way this case shall go, are to be drawn by inference from the various undisputed facts that have been put into this case. This action is upon a policy of insurance, dated on the 28th day of August, 1878. The application 2050 2051 2052 685 is dated on the 22d day of August, 1878, and was signed by Walton Dwight. And 1 say to you, gentlemen, that the contract of insurance upon which this action is based, is made up of the policy and the application. The two must be taken and construed together, they forming the contract. And if any of the questions put by the application and submitted to you are found untruely answered by the assured, then, gentlemen, the plaintiff in this action cannot recover. Or, if the other fact that is alleged by the defence is found to be true, that this policy was procured with intent to defraud the company, and that that was consummated by the voluntary death of Walton Dwight, in that case the plaintiffs cannot recover. I said to you a moment ago that there are very few disputed facts in the case, and, ns introductory to what I shall say, I will call your attention briefly to the only disputed facts which I regard as of much importance in this case. A great deal of time was occupied, and properly occupied, in putting into evidence the facts disclos- ing the history of Dwight, what he said, what he did, from the time he returned from Chicago until the time of his death. But, gentlemen, there is no dispute in this case as to what Walton Dwight said or what he did during the whole period of time. No witness has testified, in your presence, that Walton Dwight said the thing and another witness that he did not say it ; that he did one thing, and another witness that he did a different thing. And so you go down to the day of his death, and there is no conflict as to what the witnesses have testified to. You go down to the night of his death, and the same is true. The events immediately follow- ing his death are not disputed until we reach the autopsy. Three days after the death of Walton Dwight, an autopsy was held, at which were pres- ent fifteen physicians and several other persons ; six of these physicians have been called to testify 2053 2054 2055 686 as to the result of what they saw at that autopsy. There is very little dispute, indeed, gentlemen, ex- cept as to two or three facts, as to what these wit- nesses claim they saw. They all say they saw a mark, or indentation, or a furrow, ora crease about the neck, and they all describe it as being located in about the same position. The only difference between the witnesses in this respect is in the lan- guage by which they characterize it. Some say it was a heavy indentation ; others say it was a crease ; and others say it presented a particular appearance at the bottom, and others say it did not. This is about the only dispute in regard to the external appearance of the body ; and when you go to the internal appearance, they dispute simply as to whether there was a single scar upon the upper lobe of the right lung, and some slight disputes as to other things discovered in other parts of the body, but they are not very grave and perhaps not very material. For the purpose of enabling you to discuss and consider this case, in an orderly manner, and that the various issues that you are to pass upon may be presented to your mind in the connection in which they ought, and in the connection in which they stand in this litigation, the Court has divided your duties into several different propositions, each one of which it is important that you should cor- rectly understand and carefully consider. These propositions have been read in your hearing, and it is not necessary that I should now go over with them as a whole. 1 shall take them up, one by one, and call your attention briefly to the evidence, to the leading features of the evidence that bears upon each individual proposition, and then demand of you, upon your oaths, that you correctly and truthfully answer each and every one of the ques- tions which are propounded to you. Perhaps before proceeding to consider these ques- tions, as the determination of this case depends en. 2056 2057 2058 687 tire!y upon inferences which yon shall draw from different facts, I ought briefly to explain to you the process of the mind by which inferences are drawn from facts,—what I mean when I say to you that you must find and determine the facts in issue from the various evidentiary which have been put into the case. Every person, every day, and every hour, ascertains the existence of facts by drawing inferences from other facts, but sometimes jurors do not quite accurately comprehend what is meant when the statement is made to them, and I will illustrate by an every-day occurrence. If you pass by a held of grain that is growing, you know, you infer, from the facts that you see, that some one prepared the held for the grain and sowed the seed. If you pass by an orchard, you infer, you know, from the situation in which the trees are placed, that the hand of man planted them ; or you pass a held of wood, you know that it was not planted by the hand of man, and you ascertain the fact by the aid of your reason, by inferring that fact from the existence of these other facts that are familiar to you. And so, gentlemen, in this case you must appty your reasoning powers to these undisputed facts in this case, and tell us what is the truth in regard to these various facts in issue. The evidence, in describing Walton Dwight, dis- closes in a general way the manner of man that he was, and in what he had been engaged during his life. At the time of his death he was nearly forty- two years of age—would have been on the succeed- ing 20th of December. Mr. Newton.—Forty-one. The Court.—A ery well; it is not material. Isay now that if I make any misstatements in regard to any of the evidence, I hope you will call my at- tention to it at the moment, and it will not be re- garded as an unpleasant interruption. 2059 2060 2061 688 The early years of his life were spent in the lum- ber regions of Pennsylvania, and he continued in this business until 1862, in March, I believe, when lie entered the service of the United States. He re- mained in that service until 1864, when he returned to Pennsylvania, and reengaged in the business of lumbering. Precisely what he did and to what ex- tent he was engaged in this business and in what operations, the evidence does not fully disclose; but in the winter of ’67-8,we find him at Williamsport, married, and boarding at the Herdic House, en- gaged in what was known as the Canada Lumber Company. Precisely how he was engaged, is not material; it is sufficient that the evidence discloses that there was a large tract of land in Canada which he had purchased, or in which he was interested, which he turned over to this lumber company. In 1868, or about that time, he became a resident, as the evidence discloses, of the city of Bingham- ton, and from that time forward he resided at that place until his death. About that time he became possessed of some ten to thirteen acres of land in the suburbs of the city of Binghamton, which, in 1868, in July or August, the evidence does not disclose the precise date, he transferred to his wife by means of a deed through Lewis Seymour. From that time till 1873 or 1874, he was engaged in improving this land, and in building upon it. He erected a block of buildings consisting of eight brick houses, which was afterwards converted into the Dwight House, and also erected,as the evidence discloses, some forty or more dwelling houses upon this property. In May or June, 1874, he opened the Dwight House, and kept, it as a hotel until March, 1877. In 1877 a petition in bankruptcy was filed against him by his wife and by other persons. It is claimed, and perhaps not disputed, that it was a friendly peti- tion. Upon this petition he was adjudicated a bankrupt and his property, that which had not 2062 2063 2064 689 been previously swept away by judgments and fore- closures in the Supreme Court, was swept from him. Mr. Lcirocque.—If your Honor please, the evi- dence in the bankruptcy proceedings shows that no assets whatever passed to the assignee. The Court.—That is true. And in the same year his wife filed a voluntary petition in bankruptcy, and she was adjudicated a bankrupt, and her prop- erty, whatever there was remaining, if any, which had not been swept away by the judgments and foreclosures that have been put in evidence, was taken from her. I think the evidence discloses that nothing was realized in that case by the assignee in bankruptcy. After this he left Binghamton—it does not ap- pear precisely when, but sometime probably in 1878 ■or perhaps it was in 1877, the evidence does not dis- close the date—and went to the city of Chicago, and there engaged to some extent in operations in grain. In July, or sometime in the summer of 1878, Dwight returned from the city of Chicago to Wind- sor, the native town of his wife, and the place where his wife’s parents resided, and where she had spent the summer. From that time until some time in October, the precise date not appearing, he spent his time in Windsor hunting and shooting, and in procuring these insurances. Sometime in October he went to the Spaulding House, in the city of Binghamton, with his wife, and was there engaged in perfecting these insurances, so far as the evi- dence discloses, and later was taken sick, and on the 15th of November died. During this period of time Dwight made some thirty-one or thirty-two applications to various in- surance companies for insurance upon his life, amounting in the aggregate to about three hundred and ninety thousand dollars. The first application was dated on the 31st of July, and the last appli- cation on the 9th of September following. Twenty- 2065 2066 2067 690 one of those companies, 1 believe, issued policies upon the applications, the aggregate amount insured being two hundred and fifty thousand dollars. Now, the defendants say that from the circum- stances in which Mr. Dwight was placed, with no means at his command and no property within his control, that this transaction on his part evinces a design to defraud the companies. They say that the amount was excessive for any man, and further that he could not have anticipated being able in any possible manner or way to pay the premiums which would be necessary to keep these insurances in force, the amount being eighty-six hundred dol- lars annually. The plaintiffs on the other hand say that no un- favorable interference can be drawn from these facts. They have argued in your presence that Walton Dwight was not an ordinary man ; that he had exaggerated ideas of his own importance, and exaggerated ideas of every matter of business that he was ever engaged in, and cannot be judged by the same rules by which you would judge other men. Of this, gentlemen, we will say more at a later stage of this summing up. Having said thus much preliminary, I will now call your attention to the various questions that are to be submitted to you for decision. In this application, which I have said forms a part of the contract, several questions are pro- pounded. I shall only call your attention to those which are put in issue by the answer. Question 2, sub-division c, “In what occupation has he (Walton Dwight) been engaged during the last ten years?” That is the question. The answer given is, “Heal Estate and Grain Dealer.” Now, gentlemen, the defendants for one of their defences to this action assert that that answer was untrue within the intent and meaning of the con- tract ; they say that this evidence discloses that during the ten years preceding this application that 2068 2069 2070 691 his business had not been real estate and grain dealer, and that that was not a true and fair ans- wer to the question ; they say, and it is true, that he testified before the Commissioner in Bankruptcy that since about 1868 or 1869, about the time that he made the settlement upon his wife, his business had been attending to his litigation and keeping the Dwight House,-and that lie had no other busi- ness. G-entlemen, whatever Walton Dwight may have said upon the matter is competent evidence, but it is not an estoppel; it is not binding, and it is to be taken with the other facts in determining whether or not the answer was true ; it is not necessary for me to go over with great particularity the amount of real estate operations in which he was engaged ; I have called your attention already to the fact of the purchase of the Binghamton property and the improvements which were made upon it ; the evi- dence further discloses that the account of the money expended for these various improvements was kept in his name, that the land was assessed to him, and that the rents amounted to a very con- siderable sum ; he and his wife lived together dur- ing all this time ; the evidence further discloses that during this period of time he owned a con- siderable quantity of land in Wisconsin, some ten thousand acres, I believe, and a small piece of land,. I think, in Ohio, and he had some three pieces of land, the title of wdiich stood in lus name at the time of his filing the petition in bankruptcy. Now, gentlemen, the plaintiffs on the one hand claim that this answer gave a fair and true state- ment of the general occupation of Walton Dwight. The defence, on the other hand, claim that it was not true ; that his occupation during the ten years preceding the application had not been that of a dealer in real estate and in grain ; the term “ occu- pation” has a definite meaning, and it means the general business in which a man has been engaged. 2071 2072 2073 692 It means his calling, his trade, his avocation. Kow, gentlemen, when Walton Dwight made this an- swer, did he truly give his general occupation for the ten years immediately preceding this applica- tion ? If you find that it was a fair and true an- swer within the meaning of the contract, you will write the word “ yes ” under the question. On the other hand, if you find that it was not a true an- swer—that his business was that of a hotel keeper, or any other business—you will write the word “no,” and the plaintiffs will not be entitled to recover. The second question which it is alleged Walton Dwight untruly answered, is subdivision D of question 2, in the application: “Is he (Dwight) now, or has he (Dwight) been engaged in or con- nected with the manufacture or sale of any beer, wine, or other intoxicating liquors ?” The answer is “No.” The question to be submitted to you under this proposition has been divided by the counsel into two ; first, whether he had been engaged in the sale of intoxicating liquors ; and secondty, whether he had been connected with the sale of intoxicating liquors within five years immediately preceding August 22, 1878, the date of the application. The defence insist that this question called for a perfect and true disclosure of the fact that he was engaged in the sale of intoxicating liquors, as it is conceded that he was in this case. The defendants say that it makes no difference whether the sale was an in- cidental sale or whether it was his main business. They say that he should have answered that ques- tion, “yes.” It is not disputed that during the period that Mr. Dwight kept the Dwight House, that he sold liquors, and in this manner, he sold wines and liquors in bottles to the guests of his house, fur- nished it to the guests at their rooms or at the table. The evidence is, that he sold in no other 2074 2075 2076 693 way and in no other manner. It appears from Dwight’s evidence before the Commissioner in Bankruptcy, that when he went into the Dwight House he had a stock of wines, liquors and cigars amounting to from twenty-six hundred to three thousand dollars in value. The extent of the sub- sequent purchases is not disclosed by the evidence. It appears also that he was licensed during this period by the United States and by the Excise Board of the city of Binghamton to make sales in this way and in this manner. But it is not claimed that he was ever in any other way or manner en- gaged in the sale of liquors. The plaintiffs insist that this question is a com- pound one, and is incapable of an affirmative or negative answer, or of a truthful affirmative or negative answer. They say that if he had an- swered this question “yes,” it would have been just as false as though he had answered it “no,” because, they say, if he answered it “yes,” he would have said he had been connected with the manufacture of liquors, which is in no respect true. On the other hand, the defendants say that it was not necessary for Walton Dwight to give a simple affirmative or negative answer to the ques- tion, to say “yes” or “no,” but that there was room enough in the application and that the ques- tion fairly called for a full exposure of his connec- tion with the sale of liquors as he had been connected with the sale,—that the answer should have disclosed exactly what he had done in this respect, and that the fair intent and meaning of the question as put, called for a full and perfect dis- closure in that respect. Now, gentlemen, it is submitted to you as twelve sensible men, to sav whether or not this answer that was given “ no,” is a fair and true answer, within the intent and meaning of the contract. You have heard the argument of the plaintiffs' counsel in 2077 2078 2079 694 this respect, that the fair intent and meaning of that question was simply to ascertain whether he had been connected with that business or engaged in that business, as a business, as an occupation, and that he was not called upon to disclose, and that it was not the fair intent and meaning of the question, that he should state, whether he had been incidentally and in connection with some other business, engaged in the sale of liquors. Gentlemen, you have heard the evidence in re- spect to this question. I have gone over with it substantially—not in entire detail, and it is for you to say whether, taking the question as put, and the purpose for which it was put, it was fairly and truly answered. If you find that it was truly answered, you will answer the second and third questions in the negative, writing the word “ No” underneath each. If you say tliej7 were not truly answered, you will write the word “Yes” under the second and third questions propounded to you, and in that case the plaintiffs will not be entitled to your general verdict. The fourth question, and which is a question about which there has been more debate and in re- spect to which more evidence has been given, arises upon the sixteenth question propounded by the application. “Has the party (Dwight), now, or has the same ever had, any of the following dis- eases,” * * * “ spitting of blood ? ” The defence alleges that this question was un- truly answered. You heard the arguments that were addressed to the Court on the motion for a non-suit, in this respect, and you have heard the arguments of the counsel, who has addressed you in behalf of the defendants upon this issue. You heard what the Court said in reply to the motion for non-suit, the Court then holding, as it now holds, that it cannot as a matter of law, declare that that question was untruly answered from the evidence in the case. 2080 2081 2082 695 Before proceeding to discuss this question I will read it and then call your attention to its meaning. “Had Walton Dwight at any time prior to August 22, 1878, had spitting of blood resulting from disease of the lungs or other respiratory or- gans ?” Gentlemen, it so happened that this term “other respiratory organs” did not come into the case until the surgeons and physicians disappear, and no definition has been given to the jury as to what is meant by the term “respiratory organs,” and I will briefly attempt an explanation of that, The organs of respiration consist of the lungs, the right and the left,and two tubes,proceeding one from each lung, called the bronchi, extending up- wards, uniting in the chest and forming the trachea or windpipe, which extends upward in the front part of the throat to the larynx, which is situated at about the point indicated by wliat is known as “ Adam’s apple.” So, gentlemen, the respiratory organs, the organs •of respiration consist of the larynx, the windpipe or trachea, the two tubes called the bronchi and the lungs, and those are the organs and the only organs as I understand it included in the term of “respiratory organs,” if with that definition the counsel are content. Mr. Larocque.—With this exception—that the bronchi have small branches which extend every- where through the lungs. Tice Court.—When these two tubes which I have called bronchi, which unite and form the windpipe, come to and in contact with the lungs, they sepa- rate into innumerable smaller tubes extending all through the lungs, and I assume that when they reach that point they are included in the general term of lungs. The question that I am about to consider is a del- icate one, upon which a good deal has been said in 208S 2084 2085 696 the law books, and as I have prepared with some little care what I shall say to you in this respect, and instead of trusting to a general discussion of it I will read. The question now to be considered is whether either of these organs had been affected prior to August 22, 1878, with a disease called “spitting of blood,” or otherwise stated, was the spitting of blood caused by a disease of any of the respiratory organs ? If you find that it did not come from any of the organs of respiration, then the question put him by the application was not untruly answered within the meaning of the question, as interpreted by the special finding propounded to you. But if you find that the blood which he spat prior to Au- gust 22,1878,came from any of the organs of respir- ation, then, gentlemen, it is of the utmost conse- quence that you carefully consider and rightly determine whether it was produced by some mere- temporary cause, not serious in its nature or per- manent in its effects, not impairing to an apprecia- ble extent the strength or usefulness or natural ac- tion of the respiratory organ affected, and render- ing it more liable to a recurrence of a similar or a like attack; or, whether the spitting of blood was- a disease of itself within the meaning of the appli- cation, affecting any one of the organs of respira- tion; or, otherwise stated, was the spitting caused by a disease of any of the organs of respiration t If the spitting of blood was caused by an affection of any of the organs of respiration which was se- rious in its nature or permanent in its effects or im- pairing to any appreciable extent the strength or usefulness or natural action of the organ affected rendering it more liable to a recurrence of a similar or like attack; or if it affected the subsequent gen- eral health of the assured, then and in that case I say to you, that it was a disease within the intent and meaning of the application, and that the an- swer “no” to the question was untrue, and the- 2086 2087 2088 697 plaintiffs cannot recover. But if the ailment was slight, temporary in duration, and failed to pro- duce any of the above or similar results, then, gen- tlemen, I say to you that it did not amount to a disease, the answer “no” was not untrue, and a recovery by the plaintiffs cannot be defeated by this answer. Now, gentlemen, in connection with this ques- tion, it becomes my duty to call your attention, briefly, to the leading features of the evidence bear- ing upon this question. The defendant has proved by three witnesses, Forsman, Herdic and Mrs. Spackman, that in March, 1867, while boarding at the Herdic House in the city of Williamsport, Walton Dwight spat blood. Mrs. Spackman says that on one occasion she saw him raise mucus streaked with blood; Mr. Herdic says that he saw blood on one or two occa- sions in his room in a vessel, and he says on one occasion he saw as much, he thinks, as half a pint. Mr. Gladding.—It was Mr. Forsman who said he saw half a pint. The Court.—It was Mr. Forsman said half a pint, and Mr. Herdic described the amount he saw as much less. Mr. Larocque.—About three teaspoonsfull. The Court.-—These three witnesses also testify that they heard Dwight at various times, at about this time, speak of his having a hemorrhage. They say he was ill, and confined to his room, and under the care of a physician. A man by the name of Bartles and another by the name of Taylor and Mrs. Herdic testify that at about this time and place Dwight was ill; that he had a cough, and that they heard him say that he had a hemorrhage from the lungs, and some of these witnesses in describing his cough describe it as a severe and racking- cough. 2089 2090 2091 698 Another witness sworn by the defendant, Sec- comb, testifies that March 28th, 1876, lie over night at the Dwight House, and that Dwight told him that he had previously had a hemorrhage from the lungs. Mrs. Spackman also says that Dwight stated he had had or referred to a hemor- rhage from the lungs occurring at some previous time when in Michigan. On the other hand, Mrs. Hoppes, the landlady of the Herdic House at the time spoken of by these witnesses, testifies that she knew Mr. and Mrs. Dwight, and that she knew Dwight was ill at that time from a hard cold, as she described it, but that she did not know that he spat blood. That the insured did at this time spit blood 1 do not understand to be a disputed fact in the case. The plaintiffs onljr dispute the extent to which he spat blood, and say that the evidence does not war- rant you in finding that this blood proceeded from the respiratory organs, or if it did proceed from any of the respiratory organs, that it did not amount to a disease of the organs within the definition of the term “disease,” given by the Court. Their evidence bearing upon this question con- sists of the testimony of a number of witnesses inti- mately acquainted with Walton Dwight—a brother- in-law and a sister and uncle and various other per- sons who have known him, some from infancy, and others for a great number of years. They testify that they never knew of his spitting blood and never knew him to have any difficulty with his lungs or respiratory organs. And that they never saw anjr symptoms of an affection of those organs. The plaintiffs also say that the fact that Walton Dwight was a strong athletic man, of great vigor, with a large chest and a strong voice is evidence from which you should find that this spitting of blood he had upon that occasion, did not proceed from or arise from a disease of either one of the organs of respiration. 2092 2093 2094 699 Gentlemen, I have referred briefly to the general characteristics of the evidence furnished bearing upon this question, as to the appearance of Wal- ton Dwight preceding his death. Mr. Sessions.—There is the fact that immediately after this occurrence at Williamsport he got up and went to Canada. The Court.—I do not call attention to all the facts. I cannot. For if I should I should occupy just as much time as the counsel did in summing up, and if I went over both sides I should occupy as much time as both counsel, and that would be intolerable. I can only call your attention to the general features, to the general heads, leaving you to All up the details. Gentlemen, as to the evidence of disease of the respiratory organs furnished by the autopsy,—fifty- eight hours after the death of Walton Dwight, a dissection was had, as I have stated, and fifteen surgeons were present. Six of them have been brought here, and have given evidence as to what they discovered. And it will be my duty now to call your attention to what was sworn to in that re- spect. John Swinburne, Frederick Hvde, Daniel S. Burr, John G. Orton, Joseph H. Chittenden and Charles D. Richards have been called as witnesses, and testified with more or less particularity, as to what they observed at the autops}T. Now gentlemen, we are coming to an important question and one that you should give careful at- tention to, not only now but when vrou shall come to consider of your verdict. Dr. Swinburne says that there was a cicatrix, which is another name for scar, three-fourths of an inch in diameter, in the upper lobe of the right lung, and that underneath, and in the upper portion of the lung, there were nodules, and that the left lung, was held down somewhat b37 adhesions. This, gentlemen, I believe 2095 2096 2097 700 is all of the evidence, or substantially, all of the evidence given by Dr. Swinburne on the condition of the lung in respect to disease. Mr. Larocque.—He said there were small fibrous nodules and cicatrices. The Court.—Dr. Hyde says he saw no scar but that there were two or three nodules elevated one- eighth to one-fourth inch above the surface of the lung, and that in his opinion they were not the re- sult of the pulmonary phthisis. Pulmonary phthisis means a disease, a destruction and wasting away of the tissues of the lungs. Phthisis means a wasting away. Pulmonary refers to the lung. Dr. Chittenden says that there were no scars in the lungs, but that there were three small nodules on the surface of the lung each of the size of a split pea. He says that one or more of them were cut into and that their substance was gristly or carti- laginous in character. He further says that nodules do not necessarily indicate pulmonary disease. Dr. Orton says there were no scars,but there were three nodules on the outer surface of the upper por- tion of the right lung each about one-fourth inch in diameter standing separate from each other and forming a triangle which could be covered by a large copper cent. He said they had the appearance of warty excrescences, and that the tissues around and between them seemed as healthy as the other parts of the lung. All of the experts agree that a scar or cicatrix indicates a previous injury to the tissues of the lungs which has healed, and therefore, gentle- men, it becomes important in this connection to de- termine which of these physicians observed accu- rately and which has testified to the fact as it existed. One of them testifies positively to the ex- istence of a scar giving its dimensions and its loca- tion, and all the other physicians testify that there was no scar excepting one who says he saw none. Which gentleman described the fact as it actually 2098 2099 2100 701 existed ? It is important because if it be true that there was a scar there, it may have an important connection with the previous spitting of blood with which Mr. Dwight was afflicted while at Williams- port. If there was a scar there and if it was from the wound indicated by that scar that this spitting •of blood proceeded, then Walton Dwight had been afflicted with a disease of the respiratory organs called spitting of blood, within the meaning of this application, and under the contract, the plaintiffs cannot recover. But if, on the other hand, there was no scar, then of course there should not be any connection, there would not be any inference to be drawn as between that condition of the lung and the spitting of blood. Dr. Wood of Philadelphia was not present at the autopsy. He uses the word “nodules” as meaning a scar, and he says that it indicates a destruction of the tissues or a previous ulcer- ation. The word “ nodules” and the word “cicatrix” are used as synonymous, as words meaning the same thing, and indicating the same thing, by Dr. Wood. Gentlemen, Dr. Lee of Oxford, who was not present at the autopsy, in speaking of the indica- tions described says that he thinks that blood might have proceeded from ulceration indicated by nodules. Perhaps a fair interpretation of that expression, and I have taken it from the minutes, is that in his opinion nodules and scars are substantially the same thing and indicate the same previous condition of the lungs. The other physicians were not called to speak in respect to what the nodules indicated,—neither Swinburne nor Hyde nor Orton nor Burr. You simply have a description of those nodules as given by them. One or two of the witnesses say that the 2101 2102 2103 702 noclules were cut into, and that they were gristly or cartilaginous in character, and those who speak of them in this respect say that they extended above the surface of the lung like a wart from the hand. Dr. Hyde says that he thinks they did not extend down into the tissues of the lungs, and carried the idea that they sprang from it. Gentlemen, we are without—notwithstanding all the medical science here—we are without more delinite knowledge as to what these nodules mean, except in so far as testified to by Dr. Wood. Three physicians say that in their opinion they do not necessarily indicate pulmonary- disease. And Dr. Orton and Dr. Chittenden say that in their opinion, looking at these nodules as they saw them, that they did not indicate a pre- vious destruction of tissues at that point, or pul- monary phthisis. Mr. Larocque.—May I call your honor’s atten- tion to what Dr. Wood said in that connection ? (Minutes shown Court.) The Court.—Gladly sir. I think this means as I have already said. Mr. Larocque.—The testimony shows the con- nection. The Court.—“The fibrous nodules in the lung is almost invariably the cicatrix of an old ulceration ; ulceration of the lung is a common cause of hem- orrhage of the lung, and having therefor a history of the common cause of hemorrhage from the lungs and a history of the presence of a hemor- rhage, the presumption is that the cause—my opinion is that the effect has followed from the cause and the ulceration been productive of hem- orrhage.” Mr. Newton.—We wish your Honor to charge 2104 2105 2106 703 that lie is not to deal with presumptions, but that is for the Court and jury. Mr. Gladding.—And that he did not see the nodules. The Court.—I shall have something to say later, gentlemen, in regard to this evidence, if I do not forget it. These, gentlemen, are the facts, or rather a synopsis of the facts bearing on the question whether or not the spitting of blood proceeded from a disease of any one of the organs of respir- tion. Mr. Newton.—If I am permitted, I will make a single suggestion. Your Honor said that Mr. Fors- man spoke of the pint of blood, and I wish to call attention to the fact that in his further examination he said that he thought it was a pint of fluid. The Court.—You did not understand me to say, and you did not understand Mr. Forsman to tes- tify, or these defendants’ attorneys to assert that there was a half pint of clear fluid blood seen by Mr. Forsman at any one time. Mr. Larocque.—That we understood to be his testimony. The Court.—Well, if he meant to swear to that it ought to go somewhat to his credibility, because a full half pint of fluid blood, raised from the or- gans of respiration, would leave a man, I think— but it is for you to say—in a very critical con- dition. Would it be possible that a man could discharge that amount of clear fluid blood from the organs of respiration, and within the course of two weeks or three weeks be able to leave his room and his residence and engage in his usual voca- tion ? But, gentlemen, that is not a fair criticism, as I understand the evidence. Because I do not under- 2107 2108 2109 704 stand Mr. Forsman to intend to swear that this half pint was clear blood, but that there was a half pint of fluid which looked very red and appeared like blood. Mr. Russell.—That is what he said on cross-ex- amination, as your Honor stated. The Court.—If I make any mistake, as I have stated, if counsel do not correct me, you must cor- rect me when yon get in your jury room. Now, gentlemen, I come to a question of perhaps some importance and not without its difficulties. The counsel for the defense have asked you to pre- sume that because Mrs. Dwight was not sworn in this connection that the evidence that she would have given, had she been called to the stand, would bear strongly against the plaintiffs’ case. And they have also made some suggestions in regard to the objections which were raised to Doctor Doane’s being permitted to testify. All of these questions have received consideration in times past by the Courts ; it has been settled, I think definitely set- tled, that a party may refuse to remove the seal imposed by law upon the lips of his medical ad- viser or of his attorney, and refuse to permit him to go on the stand and disclose what he knows in favor of or against his case, and that no presump- tion shall be raised against a party so acting. And that precise question was raised and determined, gentlemen, in a case in the House of Lords, in the highest English tribunal, and it has never been dis- turbed. But as to what inference shall be drawn as to the failure to swear Mrs. Dwight, the rule of law as I have extracted from the books is this: if the plaintiffs might have produced cogent and direct evidence in support of their contention, but con- tent themselves with offering evidence of weaker or less satisfactory character, you may, if in your judgment the circumstances warrant it, infer tiia the evidence which might have been given would 2110 2111 2112 705 not be favorable to the plaintiffs’ case. But you should be cautious in the application of this rule, and cautious as to the weight you give this pre- sumption, because it is said that it may happen, that it has happened, that where a number of wit- nesses have testified to circumstances, that the party though knowing them to be untrue, has felt himself or herself, by his or her evidence, alone unable to refute the evidence given and shrank from the ordeal without being influenced by having in his or her possession evidence unfavorable to the case. Much has been said in the case about the absence of the hotel keeper, Spaulding, and the absence of one or two other witnesses. I will say in this con- nection, though it has no application to the branch of the case I have just been discussing, that the failure of either side to swear a witness who is equally within the reach of the other side, and the witness not standing in the position of a party or an interested person cannot be the subject of un- favorable presumptions against either side. Gentlemen, the next question—and there are but two more though—I should call your attention to; the fifth interrogatory: “Was the ailment of Walton Dwight, at Williamsport, in March, 1867, a mere temporary ailment, from which he recov- ered T’ Gentlemen, I am asked to charge, in respect to this, that if this was a mere temporary ailment from which he recovered that the plaintiffs are en titled to recover. That is true, if it did not amount to a disease. But if the spitting of blood resulted in a destruction of any portion of the tissues of the lungs ; if it be- came, as I repeat, a disease within the meaning of the term as I have defined it to you, the fact that he subsequently recovered from it would not entitle the plaintiffs to recover—if the disease in this re- spect had existed. But if it was a mere ailment, 2113 2114 2115 706 not amounting to a disease, then, notwithstanding that, the plaintiffs are entitled to recover so far as this question is concerned. But it is quite unnecessary for me to go over the evidence bearing upon this fifth proposition, for it has all been referred to in discussing the last pre- ceding question as to whether or not he had had spitting of blood. The sixth proposition or question is : “ Was the policy of insurance on the life of Walton Dwight in suit in this action, obtained by him with the pre- conceived design and intent to defraud the defend- ant ?” The seventh is: “ Did Walton Dwight die by suicide V’ The great bulk of the twenty-five hundred pages of evidence that has been taken and piled upon these tables bears more or less directly upon these two questions, and perhaps it may be regarded as one of the very important questions of fact in this case; all of them are important, for a decision of any one of them one way or the other may affect fatally the right to recover. The evidence is, as I have already stated, that between the 31st day of July, 1878, and the 9th day of September, 1878, that Walton Dwight filed applications to some thirty- one or thirty-two insurance companies, calling for an insurance upon his life for three hundred and ninety thousand dollars, or about that sum. That upon these applications, insurance policies were issued by twenty-one companies amounting to two hundred and fifty thousand dollars. The counsel for the defendants say that the very amount of insurance applied for, taken in connec. tion with the means of the man and his circum- stances and condition in life, is a cogent fact from which you are to infer that the applications were not made in good faith. Also, that the amount of the policies obtained called for an annual expendi- ture of eight thousand and six hundred dollars a 2116 2117 2118 year, in order to keep those policies in force; and the further fact, that these policies were all applied for, or nearly all applied for (or a majority of them), upon the quarter yearly plan, and that Dwight died before the second quarter’s payment became due, is strong evidence from which you should infer that this insurance was not honest, and that Dwight, in pursuance of a preconceived design to obtain this insurance, suffered or effected his own death to the end that his wife and child and beneficiaries named in the will might reap the benefit of the insurance. Gentlemen, the evidence bearing upon this question, or some of it is, that at this time, as I have already stated, Dwight was insolvent, his wife was insolvent, and it is not claimed that he had any means with which to these insurance premiums except such as he might be able to earn. It is in evidence here that Dwight said that during the period that he was in Chicago he made and lost a large sum of money. There is no direct evidence bearing on the question as to how much he was capable of earning or how much he had earned. The plaintiffs say that it is a matter of no great consequence, for they say that Dwight had an exaggerated idea of his own ability, and his own powers, and capabilities, and might have honestly believed that he would in the future, by speculation or otherwise, be able to earn a sufficient sum to keep up these premiums and sup- port his family. The defendants say that this is an unfair inference, that the facts do not justify any such conclusion. As I say, these policies were obtained between these dates, at some time in the month of Septem- ber, the date does not appear when Walton Dwight made his last will and testament. This wrill has been read in evidence, and read to you two or three times, and I shall not go over with it in detail. The >counsel for the defendants sav that from the lan- 2119 2120 2121 708 guage of that will, from the circumstances under which it was made, that it is evident th i ( it was made by a man anticipating immediate death ; and they say that it was but a part of the general scheme- he had formed in his mind, to procure these policies and defraud these companies and this defendant. They argue that the fact that Walton Dwight in- cluded within the terms of this will bequests of a dollar and of two dollars, and of various small sums, to various creditors of his—that it indica es an idea existing in his mind that he was not to live to pay them, and that they were to be paid out of the avails of these insurance policies, and in no other way ; and they that in the month of Sep- tember Walton Dwight was not ill, that his illness commenced at a later period, and that there was nothing in his physical condition and surroundings that could have fairly lead him to apprehend that he was in danger of death, unless he premeditated death ; in other words, self murder. But the plaintiffs say that in another part of this will, that he speaks of the hope that he may be able to pay these debts himself, that he intends to pay them, and they say that taking the whole will together, that it cannot be fairly inferred that when that will was written that it was written under the apprehension of an early death. And they say, or perhaps would have said, that every will refers to and speaks of what is to be done after the death of its maker, and that its very language necessarily infers an apprehension of death. Whether this will, gentlemen, is evidence bearing one way or the other upon this question, as to whether this policy was fraudulently obtained, is a question entirely for your determination ; I only state the facts as they are proven, and it is for you to draw the infer- ence. The evidence is, that during the month of September and October, Dwight was in usual good health, and engaged in hunting in the Susquehanna Valley at Windsor. That some time in the month 2122 2123 2124 709 of October he returned to the Spaulding House with his wife, and engaged rooms there, the rooms in which he died. That some time during the month of October he was afflicted with chills, and with fever. The various symptoms that he had have been described by the witnesses who saw him, Mrs. Owen, Mr. and Mrs. McDonald, and Mr. Downs and Mr. Pine, and other witnesses who saw him during his illness. Dr. Porter went to Binghamton and saw Dwight shortly before his death, and has described to you the indications of sickness that he saw, he tells you what opinion he arrived at at the time. Now, gentlemen, the plaintiffs say that Dwight sickened and died from natural causes, and that they have given symptoms which existed indicating that he was afflicted with a disease of an alarming ■character. That he grew gradually worse, that he had severe chills, and that in one of these chills he died. They produce in support of this theory the persons who were about his death bed. Mr. Russell.—Do the plaintiffs claim he died of that chill? I heard no such claim in this case, and the counsel said yesterday there was no ques- tion of malarial chill in this case. The Court.—He said no question of malarial chill. Mr. Larocque.—I do not know that they say that there is any cause of death. Mr. Gladding.—The witnesses say he had the same symptoms he had before. The Court.—That is a question for you, but I understand that was the claim from the evidence that he died from a chill. The witnesses you will recollect who were present at the time of the death and immediately preceding the time of death at- tempt to describe the condition of Dwight, and it is for you to say if it becomes material whether 2125 2126 2127 710 he died from a chill or from some other cause—; some other natural cause. During the night or at the time Dwight died a man by the name of Charles A. Hull was sitting up with him and acting as watcher or nurse. He testi- fied that Mrs. Dwight and her sister left the room at about 9 or half-past 9 o’clock, and the physician about the same time—I may not state ft precisely . correct according ro their evidence, but it is near enough for your purpose. That he seated himself by the door leading from the bed-room to the sitting room in a seat where he had a full view of Dwight. That after a little while Dwight called for a drink and he gave him a drink of ice water, and that later Dwight ate, or attempted to eat, or put in his mouth, a cracker. That he heard nothing fur- ther from himt/awhile afterwards and not far from 11 o’clock he heard him call “ Charlie,” and he went to his bed side and found him struggling for breath, breathing with difficulty, he was sitting or rather bolstered up by three pillows lying under his head and back ; Hull attempted to relieve him and was unable, touched the electric bell and ran across the hall ; lie knocked on the door of Mrs. Dwight, and summoned her to the room. That when he returned Dwight was insensible and con- tinued to breathe strugglingly and in a few min- utes died. Mr. Russell.—I think he does not state that he- rang the bell until he came back from Mrs. Dwight’s room. The Court.—Very well, it is not very material as to the order of time, but it is perhaps well that we should be accurate about it, at any rate Mrs. Dwight and her sister were summoned and entered the room, and I think the fair import of the evi- dence of the sister is, that she is uncertain whether there was any life m Dwight when she reached the- bedside. 2128 2129 2130 711 Mr. Russell.—She says distinctly there was not a sign of life. The Court.—So far as she saw ; that she did not immediately enter this inner room. Another witness by the name of Lee, who was the porter at the hotel, says that he was called and that lie reached the bedside before Dwight was dead, that brandy was administered to him, and that he went for a pail of hot water, and that his hands were put into the hot water and bathed by Mrs. Dwight, and that various restoratives were ap- plied, but without any effect. He says that he seemed to swallow; that the brandy, or whatever it was, was turned into his mouth and disappeared. Notwithstanding, he lived but a few minutes. Gentlemen, this is the evidence of the plaintiffs in this respect. The defendants’ theory of this case is that the evidence of Mr. Hull is not true, that he is a per- jured witness, and more, that he contributed to the death of Walton Dwight, either by directly effect- ing the result with Dwight’s consent, or else sat willingly by and saw Dwight do it himself. And the theory of defence is that this death was effected by strangulation with a cord or fillet, or something put about the throat that compressed the organs of respiration so that air was not allowed to enter the lungs. Upon this question a great deal of evidence has been produced. Of course there is no direct evidence as to what occurred that night except that to which I have called your attention, bearing upon this question as to whether or not he died from strangulation. Mr. Lee testifies that he assisted the undertaker on the night in question in laying out the body or preparing it. That he assisted in washing the neck of Dwight, and that there was no indentation or crease in or around the neck. Mr. Elisha Ayers, the undertaker who was called, 2131 2132 2i:53 712 testifies that he laid the body out with the assist- ance of Lee and another, and that there was no in- dentation and no mark around the neck. Peter Van Vredenbnrgh testifies that he reached the room before twelve o’clock, between half-past eleven and twelve, I think he said, and that he saw the neck, and that there was no mark, discolora- tion or indentation on the neck or on either side of it. Ayers testifies that the body was laid upon a board, and two pillows and a book, or else two books and a pillow—and it is immaterial which— were put under the head and the head raised to an angle of something like forty-five degrees as com- pared with the remainder of the body ; that it was left in that position until the next morning, and that it was then, about nine or ten o’clock, placed in an ice-box, the head being left in about the same position, with this chin-rest that has been described, which consists simply of two pieces of iron or steel with a comparatively flat surface held together b}7 two elastics, one of the rests being under the chin and the other on the top of the head, for the pur- pose of holding up the jaw. In that condition the body was left until November 18th, when the au- topsy was held. Dr. Swinburne testifies that at the autopsy he saw on the right side of the neck an indentation which began at the upper end of Adam’s apple and extended backward at an angle of about forty-five degrees towards the back of the neck, and that there was another on the left side beginning at the lower end of Adam’s apple and extending back- ward at the same angle, but not meeting by an inch and a half on the back of the neck. The indenta- tion was three-eighths of an inch deep, round at the bottom and having a leathery appearance. This is the only witness called by the defendants who was present at the autopsy—I do not mean the inquest. The inquest occurred in April afterward. 2134 2135 2136 713 I have called your attention to the evidence of Mr. Van Vredenburgh and of Mr. Ayers, as tb what they saw about the neck before the autopsy. Dr. Hyde, who was present at the autopsy, says that there was no crease or indentation or furrow in his neck, but that there was a fold in the skin. Dr. Burr says there were folds on the side of the neck which were those of a fleshy neck, which had been chilled in one position, and bending it a little back- ward caused an indentation or wrinkle. “ I saw it plainly but I did not feel of it. There was no parchment appearance about it.” Dr. Chittenden says there were folds across the neck without any unusual feeling ; it was sim- ply a fold opened by throwing the head backward after the body had stiffened ; and it was not dis- colored. Dr. Orton says there was a fold in the skin of of the neck and tissues thereunder, to be seen when the head was thrown forward, but more plainly when the head was thrown backward ; it did not feel like parchment, and was not discolored or purple. Elisha Ayers, the undertaker, was present at the autopsy, and he testifies substantially to the same state of facts. In April, an inquest was held over this body at which were present, Dr. Sherman and Dr. Bridges, the only physicians who were present who were sworn by the defendants. Mr. Russell.—Dr. Swinburne was present. The Court.—Yes, Dr. Swinburne was present at the inquest. They testify that at the time, notwithstanding the period that had elapsed, there was the indenta- tion on both sides of the neck plainly to be seen, and that attention was called to it. And this man from Franklin, Albert C. Hitchcock, testifies he was there reporting for one of the daily papers, and 2137 2138 2139 714 that lie stood six or eight feet away from the body, and saw one side of the neck, and that he saw plainly a distinct furrow in the neck, the skin of which was darker at that point than was the sur- rounding skin. He says it was a noticeable groove or mark. Mr. Russell.—Mr. Freeman was also present. The Court.—Mr. Nat B. Freeman was also present at that inquest, and he says that he saw the groove, and put his linger in it. Some oi the witnesses testify they put their little linger in, and others their fore linger, and felt it, and say that the groove was plain and very distinct, both to the sense of feeling and to the eye. It is important, of course, in this connection to determine whether or not this groove existed, and whether what they saw was a groove, indentation, or furrow in the flesh, or whether it was a mere fold in the skin caused by the condition of the neck and the bending of the head upwards and forwards and backwards as described by the wit- nesses—because very much of the evidence for the defence bearing on the question of suicide rests upon whether or not there was an indentation around the neck. It lies at the very foundation of their theory of strangulation, for they do not offer evidence tending to show, and they advance no theory that Dwight died from any other cause than a natural one, unless by asphyxia produced by strangulation. Gentlemen, which of these witnesses testified truly in this respect ? Which has the best means of knowing and observing, and which has reported the fact, as it actually existed, correctly from the witness stand ? This, gentlemen, is about all of the evidence that bears directly upon the question as to the means and manner of this man’s death, excepting the in- ternal evidence developed at the autopsy, or the 2140 2141 2142 715 evidence of the internal condition of the body as developed by the autopsy. The counsel for the parties did not go over the medical evidence in this respect, and I shall con- tent myself by referring to it in a very general way. The doctors testify that they discovered no sufficient cause of death; that the organs were healthy; that the brain was healthy; that there was a clot of blood upon it, but insufficient to cause death; that the liver and the various internal organs of the body were all in a healthy condition, excepting the lungs, which I have described, and that there were slight adhesions. And they have also de- scribed the condition in which these organs were found in respect to blood, and whether congested or not. And from these, a hypothetical question has been put to various medical experts, and by that hypothetical question these experts have been asked to say whether or not, in their opinion, Walton Dwight died from asphyxia. Each one of them has testified that, in their opinion, he died from strangulation. It is proper at this point that I should call your attention to the theory and to the value of expert evidence. When facts which are to be investigated by a Court are so obscure that they cannot be readily known and understood by persons not possessing special knowledge of the science, or subject under investigation, it is competent to call to the stand experts to give evidence, of two classes. First, the experts may give evidence of the particular facts relating to their science, that they observed on any occasion. An ordinary person might observe the same facts and they would not strike him, or would not im- press him, and he would not be able to repeat or describe to the jury the facts that actually existed. When experts speak of facts which they observed with their senses, they stand on the same plane as other witnesses, and are to be judged by the same 2143 2144 2145 716 rules. But, in addition to this, in cases where the facts before the Court are of such a kind that the Court or jury, from lack of special training, are unable to determine what they mean, and what conclusions should be drawn from them ; the ex- pert may give his opinion, by way of instruction, to the Court and to the jury. As to the meaning of the fact, and for the purpose of reaching this ques- tion, and ascertaining the opinion of the expert, what is called a hypothetical question is always put to the witness, and that I must explain. A hypothetical question assumes the existence of certain facts stated in the question, and it can only embrace facts upon which some evidence has been given, and the expert is then asked to say whether, if those facts embraced in the question actually exist, what is his opinion in respect to them. And so, such a question was put in this case. This hypothetical question assumes the existence of certain facts which the physicians testify to as having existed at the time of the autopsy, and it also embraced the assumption—assuming that there was found about the neck, around the sides of the neck, this indentation described by the physicians ; they were then asked as to what they believed was the cause of death. They all said they believed that he died from asphyxia, from strangulation, by means of a rope or fillet around the neck. Gfentlemen, how much those opinions are worth depends, first, upon whether the particular facts assumed within the hypothetical question actually existed. First, did the important fact of this indent- ation around the neck, exist ? Dr. Porter, when a question was put to him by the Court, said that even though you strike out the indentation and leave the neck in a natural condition, that he still should say that the person died from asphyxia, from strangulation, effected by some other means. Whether that theory- -that answer is entirely in harmony with the other medical evidence, especi- 2146 2147 2148 717 ally the evidence given by Dr. Flint, as to the effect that he would expect to be produced by a fillet or cord arresting not only the respiration, but the cir- culation of blood, is a question for your considera- tion and not for me. The other physicians were not asked this question, as to what their opinion would be if that fact was left out of the case. Mr. Russell.—I will call your Honor's attention to the fact that Dr. Wood answered that question also in the early part of the case. The Court.—If he did I do not remember it, and as the plaintiffs do not deny it, I will assume it is true. Mr. Gladding.—We do not remember whether he did or not. The Court.—Dr. Hyde, in speaking of some of the conditions assumed in this hypothetical ques- tion, testified that he saw no amount of bloody mucus or bloody serum in the thorax, and he testi- fied, and so did Dr. Orton, that he did not observe some of the conditions assumed to exist in the hypothetical question. The other physicians present at the autopsy, testified that they did exist —among them Dr. Swinburne. Gentlemen, you will bear in mind this, that many of these experts, Dr. Avery and Dr. Porter, and Dr. Wood and Dr. Flint (so far as he spoke on the question at all) never saw these conditions assumed in the question, and by their answering the hypothetical question, it affords no evidence that they did or did not exist. The evidence as to whether the conditions assumed in the question existed or not must be taken from the witnesses who were present and saw the con- dition of the body at the autopsy. As to the value of expert evidence when it rests in the opinion of the experts only, Courts recognize the value of the evidence of persons who are dis- tinguished in the science in respect to which they 2149 2150 2151 718 testify. In many cases they could not ascertain the facts in any other way. And if the witness who gives his opinion conies to the stand without bias, without prejudice, without any theory which he is interested to support, and testifies candidly as to his opinion upon any particular question, it is en- titled to respect and to weight. But opinion, evi- dence coming from all classes, is evidence that should be most carefully scrutinized by every tri- bunal at which it is offered. When a man testifies to his opinion he testifies to no fact. He testifies from that which springs from within, and is prac- amenable to no tribunal except his own conscience. It is hardly possible to convict any man of perjury when he testifies as to his mere opinion. And so I say it is important to look with care upon each witness who testifies to a mere opin- ion. The most of these witnesses who testified in this respect say that they have no interest in this case, that they have had no hand in its preparation, that the facts were presented to them in advance, as they must be (because they could not be called without counsel knowing what they would swear to); that they gave their opinions and came to the stand and testified to them. But, gentlemen, there were two experts, men dis- tinguished in their profession, whose reputation I assume is high, who came and testified that during the trial of this cause they had sat here with coun- sel, suggested subjects for examination, questions to be put to the witnesses by the defendants’ coun- sel. They testified that they had been consulted in advance of this trial, that they had framed questions, consulted with the other experts and had acted in this capacity in this case. Gentlemen, it is not the province of this Court to erect a stand- ard by which to govern or gauge the conduct of members of another profession, but I do say, that when a witness testifies to his mere opinion formed in this way, and under such conditions, you have 2152 2153 2154 719 the right to regard it, and you should regard it, with great suspicion. But, gentlemen, what I say in this respect is not to control you. You are to judge of the credibility of witnesses, and not the Court, and you have a right, and it is your duty, to disregard what I have said upon this point, if it does not accord with your own judgment with re- 2 spect to these two witnesses. I ought to caution you that the strictures which I have made upon these two witnesses, must not affect the defend ants’ case in any other respect. It goes simply to the credibility of these witnesses within the range of facts or opinions to which they testified. You cannot take it into account in any other connection than this; and you must not allow any opinion that you may have in respect to these two witness- es or the position they occupy, to prejudice the case. I am asked to charge in respect to the credit that „ should be given the witness Hull, “ that in weigh- “ ing the testimony of a witness, the jury are en- “ titled to take into consideration, on the subject “of his credibility, his own declarations as to his “ belief or unbelief in the existence of a God and a “ future state of rewards and punishments.” That, gentlemen, is a proposition that cannot, as I un- derstand the law, be charged either in the affirma- tive or in the negative. And I must proceed to a little explanation in this respect. By .the law of this State, any person, no matter what may be his religious belief, or whether he has any religions belief, is competent to testify as a witness. The law prescribes no forms of belief in this respect. A Christian may come to the stand and swear on the gospels, a Jew by the old testa- ment, the believer in any other form of religion may testify in the form that is most binding upon his conscience. The man who believes in the in- junction that you shall swear not at all, either by heaven or by earth or by Jerusalem, is permitted 2155 2156 2157 720 to stand here and hold up his hand and say “ I do solemnly, sincerely and truly declare and affirm that the evidence I will give between A. B. plaintiff, and C. D. defendant, shall be the truth, the whole truth, and nothing but the truth.” A witness who has sworn or affirmed in any of these forms is as competent as a' witness, as the most devout believer who has takenjjthe oath in the most solemn way upon the Book. But, gentlemen, this request goes a little'further. They say that I ought to charge that his belief or disbelief in the existence of a personal God and a future state of rewards and punishments, should be taken into account. Gentlemen, I decline to charge that, and I that the law has no standard by which it measures what a man should believe in these respects. Before a man can believe in the ex- istence of a personal Deity, which was the lan- guage of the witness, he must be able to form a conception of his personality, must be able to say what it is like—what its attributes are. And, gen- tlemen. the law does not demand any such formu- lated condition of belief as this, before a witness shall or shall not be deemed credible. The witness, in speaking of future rewards and punishments, stated that he did not know, as I recollect it, whether he believed in a future state of rewards and punishments, but he did say that he believed there were punishments other than the punish- ments prescribed by the law. Gentlemen, if a witness should testify that the oath or the affirmation which he had taken, or was about to take, had no binding force upon his con- science—that he only believed it binding so far as the law makes it binding—that would be a fact, in my judgment, that the jury should take into ac- count as affecting the credibility of the witness. But if the witness recognizes the obligation of the oath under the law, and recognizes its moral obli- gation, and believes that the oath or affirmation 2158 2159 2160 721 which he takes binds his conscience to testify the truth, and that moral penalties will follow in case of failure, those are the only considerations to be taken into account, as affecting his credibility in this connection. I am asked also to charge that even though you find that Walton Dwight originally procured this particular policy with intent to defraud the defend- ants, that unless that intent was consummated by suicide that the plaintiffs are entitled to recover. Whatever I might have thought about that ques- tion (had the issue been different) after an examin- ation of the answer in this case, I say upon this question, which is the sixth, that the defendants are not entitled to a verdict on this ground, unless you find that the fraud was consummated by the willing death of Walton Dwight by self murder— by suicide. Gentlemen, I have gone over this case—over all its principal features—and called your attention to the facts so far as I deem it my duty to do so. You have now the responsibility of deciding this case upon your oaths. You will never sit in a case more important than this, involving more weighty issues and weighty questions, unless it should be your misfortune to be called at some time to decide upon the question of the life or death of some per- son charged with and placed on trial for a capital offence. When you took your seats you each took an oath which ought to be, and I have no doubt is, binding upon your consciences, to decide this case solely upon the evidence and upon no other con- sideration. And, gentlemen, in considering as to what the facts in this case prove, you are not to stop and consider for a moment that a woman—a widowed woman—stands here on one side and a corporation on the other. They are the same in law; they have the same rights. A corporation is created by the law of the State, which is wiser than 2161 2162 2163 722 we, for wise and good purposes, and what the wit- nesses have testified to—whether it is true or false —is in no wise affected by the fact that one of these parties happens to be a corporation. The truth would be the same, though the defendant was a private citizen. And it is your business to exclude from your minds all considerations that one of these parties is a private citizen and the other a corporation. And, gentlemen, you must exclude from your minds another consideration. It is often said that when an action is brought upon an insurance policy —lire or life—that the defendant ought to pay, un- less the plaintiff, or the plaintiff’s agent or repre- sentative has untruly answered some of the ques- tions relating to conditions in respect to which the loss occurred. And the argument would be, in this case, that the death, not having occurred from dis- ease of the lungs, nor by reason of his connection with the sale of liquors, and having no connection with his business, but having occurred from other causes, therefore that the defendant ought to pay. That is not the law, gentlemen. When men make contracts with an insurance company, they are bound by their contract, and if they have incorpo- rated stipulations in these contracts which are false or which are not performed they cannot recover, even if the breach of those conditions had not the remotest connection with the loss ; and so, gentle- men, in considering this case, you will not allow any such considerations as these to affect your judgment. Gentlemen, I think I have stated all that is necessary, and I will hand you these questions, and you will answer “yes” or “no” to each of these seven questions that are numbered upon this list, as you shall ffnd the very truth to be. Following the last question is a general verdict for the plaintiffs ; if you find the seven propositions in favor of the plaintiffs, you will then find a gen- 2164 2165 2166 723 eral verdict for the plaintiffs and assess their dam- ages at $18,743.27. If, on the other hand, yon find any of those pro- positions in favor of the defendants, you will cancel this general verdict for the plaintiffs and bring in this general verdict for the defendants. Gentlemen for the plaintiffs, have you any re- quests to charge % Mr. Russell.—I think it would be well for the Court to suggest to the jury that if they find either of those questions in favor of the defendants, their general verdict will be for the defendants. The Court.—I mean to say that. Mr. Newton.—We have no requests. Mr. Russell.—One subject upon which your Honor did not charge the jury, I ask your Honor to charge ; that the fact, if it be so, that all the physicians agreed at the autopsy, that the fibrous nodules were probably the result of old pulmonary phthisis, should be considered by the jury in de- termining the reliance to be placed on the medical testimony as to the cause of the nodules. The Court.—I say, gentlemen, that has nothing to do with this case. I decline to charge it and I will explain my reason. This record of the autopsy is not in evidence in this case, as affirmative evidence, of the truth of the facts recited therein. It could not be. It would not be competent as I held during the trial. It is in evidence this far and no farther ; six physi- cians who were present at that autopsy, six of the fifteen have been sworn and have sworn they signed that statement, and it was competent to put that in evidence for the purpose of showing that they had made contradictory statements—statements in con- flict with what they testified here during the trial. It is received for no other purpose, and is to have no other weight here. The fact that fifteen doctors 2167 2168 2169 724 signed it, who are not here to testify as to what they saw, can give it no weight whatever and their signatures are entitled to no respect. To which ruling and refusal to charge as requested, the counsel for the defend- ants duly excepted. The counsel for the defendants further requested the Court to charge that the answer to the ques- tion, “ Has he been engaged in or connected with the manufacture or sale of liquor?” is a question that may be truthfully answered, “yes,” if he had been connected with the sale of liquor. The Court.—I decline to charge that differently from what I have already charged. To which ruling the counsel for the defendants duly excepted. The counsel for the defendants also requested the Court to charge that, in connection with the finan- cial condition of Mr. Dwight at the time these ap- plications were made, the jury should take into ac- count the fact that the witness Pine says that in order to raise his first premium he was compelled to borrow the money of Mr. McDonald. The Court.—That is a proper fact for you to take into consideration. Gentlemen of the J ury : If you get into any dis- pute or doubt about the meaning of any of these questions, you have a right to come into Court and receive further instructions in respect to them. You will consider each question carefully by itself and answer it as you shall find the truth to be, without regard to how it may affect the general verdict. Answer each question truly and then render such 2170 2171 2172 725 ti general verdict as the evidence demands, under the instructions of the Court. The counsel for the defendants also requested the Court to charge the jury that the statements in the petition and schedules in bankruptcy of Mr. Dwight, relating to his real estate operations, are not evidence upon the question of this breach of warranty as to what his occupation was for the last fen years. The Court.—Were they notread in evidence % Mr. Russell.—They were read in evidence yester- day by Mr. Chapman. The Court.—Were they not read in evidence be- fore ? Mr. Russell.—They were read in evidence to show his bankruptcy, but the statements as to the extent of his real estate operations, and taxes and income from real estate, are not evidence, we sub- mit, from which, as read by Mr. Chapman in Smith’s speech last night, the jury can find that he had any real estate operations. The Court.—I have forgotten whether the plain- tiffs read these statements in the bankruptcy peti- tion and schedules, and cannot take time to look at the record. If the defendants, when they read these schedules of bankruptcy in evidence, limited their effect to simply proving the fact of bank- ruptcy, then, gentlemen, the counsel for the plain- tiffs would have no right to draw any inferences or ask you to draw any inferences from the state- ments made therein in respect to the condition of his property. To which refusal to charge as re- quested, the counsel for the defendants duly excepted. The Court.—I do not know how the fact was. I 2173 2174 2175 726 ask the counsel to look over these various requests to charge, and see if I have covered them, or marked them correctly. Counsel examined requests. Mr. Lctrocque.—We call attention to one re- quest. The Court.—They say, “ In considering the ques- tion of fraud, the jury must also take into consider- ation the circumstances under which Dwight ob- tained possession of the policy in the Union Mu- tual Life Insurance Company of Maine, after knowl- edge of the instructions sent to Mr. Batchelder not to deliver the policy, including the dictation by Dwight of the telegrams sent by Batchelder to Win- ship, the agent, and DeWitt, the president.” You are to take into consideration the fact that he obtained this policy and refused to deliver it up. And you are also to take into account the obtaining of these various other policies and everything ho did, and everything that he refused to do, in re- spect to them. They also ask me to call your attention to the fact that you should take into consideration the evidence of the witnesses who made demands upon Dwight at Windsor, for a return of the policies is- sued to him by the several companies, and tlie- ten dering back of the premiums paid therefor, in- cluding the evidence of the witnesses Freeman and Phillips, and the refusal of Dwight to return the X>olicies. J have just said that in effect, gentlemen, and I repeat it. Mr. Neioton. — I request your Honor to charge that the declarations of sixteen years ago are to be considered with care. The Court.—I do not know of any such declara- 2176 2177 2178 727 ations, excepting those relating to the hemorrhage, if those are the words you refer to. Mr. Russell.—The one to Seccomb was not six- teen years ago. The Court.—No, sir; that was in 1876. The rule of law in this respect is this : that the declarations of parties are among the most danger- ous species of evidence arising from the fact that the speaker may not be understood by the witness in the precise sense that he intended to be under- stood ; also that the witness may not correctly re- member or correctly repeat on the witness stand the precise declaration made by the speaker, or the words which he used to give. Of course, the longer period of time that has elapsed between the time when the declarations were made, and the time when the witness speaks of them, the more liability there is for error. But, gentlemen, the law goes further, and says that when declarations are clearly proven and sat- isfactorily established, then those declarations be- come a very satisfactory species of evidence. Now, in this case, gentlemen, the question is, whether these declarations that have been testified to by the witnesses were made under circumstances which would call for the declaration,—made under circumstances and to persons that would be likely to cause them to be recollected. You recollect what the witnesses said about the circumstances under which they heard these declarations. I can- not go over them now. Were they circumstances that would be likely to impress them upon the mind ; and were they honest men, and did they truthfully report what they heard % Gentlemen, you will be furnished with your meals, and be cared for until such time as you shall have agreed upon your verdict. At noon, or what- ever time the jury wish their dinner, the Sheriff will provide them with dinner, and when supper 2179 2180 2181 728 time comes, if they have not agreed upon their verdict, they will be provided with supper, and I witl provide what further shall be done hereafter. I will hand the application to the jury to take with them. Mr. Russell.—And let them take the policy also. The Court.—You will take both the policy and the application with you. The jury retire. Mr. Russell.—We except in the first place to that portion of the charge which says that the fraud must have been consummated by death in order to entitle the defendants to a verdict. Also to that portion of the charge in which your Honor says that the defendants are not entitled to a verdict on the sixth finding of fact, namely, the one of fraud, under the state of the pleadings, un- less the fraud was consummated by suicide. Also to that portion of your Honor’s charge which states that the only consideration for the jury in regard to the belief of the witness in the existence of a God and of future punishments and rewards, is the test as to whether he believes in the binding obligations of the oath, under the laws and moral considerations. Mr. Larocque.—We except to so much of the charge as takes from the consideration of the jury, in regard to the credibility of the witness, his par- ticular belief in that regard. Mr. Russell.—We except to that portion of the charge which submits to the jury the question as to whether the answer to the question as to the manufacture and sale of liquor is a compound question. Mr. Larocque.—We except separately to your 2182 2183 2184 729 Honor’s refusal to charge in accordance with each and every request submitted. The Court.—Yes, sir. Mr. Larocque.—Awd. we except separately to each and every modification of the requests that have been charged in part. The Court.—That you are entitled to audit should be entered under the individual requests as they appear in the record. Mr. Larocque.—We would also like to except to that part of your Honor’s instruction on the sub- ject of spitting blood, in which, after reciting cer- tain diseases, you say that if the jury find the blood did not come from such disease, their verdict upon that question should be for the plaintiffs ; 1 do not give the precise language. The Court.—The idea, perhaps, is in it. Mr. Larocque.—Also on the same subject, to the instruction that if the spitting of blood was a re- sult of a mere temporary ailment, from which he recovered, the plaintiff is entitled to recover, unless the spitting of blood resulted in a disease. The Court.—Or proceeded, or sprang from a di- sease, or was caused by a disease. The Court.—Have you got through presenting requests, gentlemen (addressing the counsel of both parties)! Both counsel answered, “ Yes.” 2;20 p. M. The Court.—We will go out without adjourn- ment, and if the jury agree the Sheriff may send for us, and if they do not report before 8 o’clock this evening, we will come in and give such further directions as are necessary. 5:25 p. m. Jury return into Court. The Court.—I understand you wish to communi- cate with the Court upon some subject; what is it \ 2185 2186 2187 730 Juror.—We wanted to tell yon how we stood on the subject. The Court.—Have yon agreed on a verdict. Juror.—We have not. The Court.—Then I do not want to know how you stand, unless there is some subject upon which you desire further instruction, or some subject upon which you desire to have the evidence read. Is there any subject upon which you wish further instructions ? Juror.—I do not know that there is. The Court.—Is there any question in dispute among you as to what the evidence is upon any subject ? Juror.—I don’t know that there is. The Court.—Well, then, gentlemen, you have not entered upon the threshold of this case. You have hardly entered into the vestibule of this case. This case has occupied twenty-three days in its trial, and you have not commenced to give it considera- tion. You must give it more consideration, much more consideration. It is a case in which the Court, if it was called upon for an opinion, would spend some time in consideration of the evidence given, and, gentlemen, it is your duty to patiently, carefully, honestly consider this evidence in the light of the arguments which have been addressed to you by the counsel and the instructions given to you by the Court, and strive to arrive at a verdict. It is not fitting or proper that any particular juror should say, in the very outset of the discus- sion, “ I will never agree in a verdict except in favor of the plaintiff,” or “exce})t in favor of the defendants.” That is not at all the theory of a trial by a jury. Of course it is hard, it is difficult for twelve men to arrive at a unanimous conclusion 2188 2189 2190 731 or opinion upon any subject, but there is no other method devised by the law of this State for the de- termination of issues of fact of this character, ex- cept by the agreement of twelve minds, after an honest comparison of their views and a discussion of the evidence. Now, gentlemen, there must not be any anger or feeling. One man, or two men, or three men, or no man, must say positively, I know I am right about this and I will never decide any other way. You must listen to the counsel of your fellows, be guided by your judgment, and you must strive longer, much longer, to arrive at a verdict in this case. Retire. 8 p. m. The Court ordered the jury to be pro- vided with beds and adjourned the Court till 9 o'clock a. m. on Wednesday, December 12th, 1883. Wednesday Morning.—Jury return into Court. The Clerk.—Gentlemen, have you agreed upon a verdict\ Juror. — We have not. The Court.—Have you anything to say to the Court, or do you want any further instructions up- on any point ? Juror.—I do not know that there is anything more. The Court.—Gentlemen, it is your duty to take up the various questions submitted to you in the order in which they stand on that paper, and to go along through them and agree upon so many of them as you can. Juror.—We have done so. The Court.—Having done that then you may come back again and I will try and give you in- structions upon the x>ropositions or proposition that 2191 2192 2193 732 you shall not be able to agree upon, and it will be your duty to make a further effort to agree. You have not considered this case yet twenty-four hours, a case that occupied twenty-three days in the trial, and it will be your duty to give it a much further consideration than you have given it. Juror.—Shall I state how many we have agreed upon ? The Court.—Not now. Do you disagree as to the evidence given in any particular \ Juror.—Well, no, sir, I think not. The Court.—If there should be any disagreement about that, the evidence can be read to you. Do you disagree as to what the Court said to you on the propositions ? Juror.—No, sir. The Court.—You must remember this is a case of importance and involves a large expenditure to prepare it for trial, and it is highly important for you, if you can conscientiously, in the end agree upon a verdict in this case. All verdicts are a result of a comparison of views, and to some extent the compromise of views. If a juror has a settled conviction and he cannot con- scientiously yield it, that is one thing; but before he places himself in that position, and takes that stand, he should be very sure he is right, through a careful review of the evidence, and it is the duty of all of you not only to take counsel of your own judgment, but to listen to the arguments of your fellows; they may be able to present some views that are worthy of your consideration. Retire, gentlemen. The jury retired. Mr. Russell.—I desire to except to the remark your honor made to the jury that a verdict is reached by a compromise of views. 2194 2195 2196 733 The Court.—Yes, sir; I have said that and it lias been excepted to many times. Mr. Russell.—The only reason is, that the word “ compromise” to a juror’s mind is a hurtful word. Counsel for the defendants in due season filed the following additional exceptions to the charge : To that part of the charge, “and was consum- mated by the voluntary death of Walton Dwight,” to the limitation to the effect of the finding of fraud. Also, “that there is evidence that some time in 1877 or 1878, Dwight engaged in operations in grain in Chicago.” Also, “that the evidence shows that the account of the money expended for these various improve- ments was kept in his name, that the land was as- sessed to him, and that the rents amounted to a very considerable sum.” Also, “that the evidence further disclosed that during this period of time he owned a considerable quantity of land in Wisconsin.” Also, “it is for you to say, taking the question as put, and the purpose for which it was put, if it was fairly and truly answered.” Defendants except to the words, “ and the pur- pose for which it was put.” To so much of the charge as instructs the jury in substance that the failure of the plaintiffs to swear as a witness, Spaulding, the hotel keeper, cannot be the subject of unfavorable presumptions against them. Also to instructions that all verdicts are to some extent the result of a compromise of views. Also to that part of the charge referring to ex- perts, which says : “ You have the right to regard it, and you should regard it with great suspicion.” Also, to the portion of the charge that instructs the jury that, “if the witness recognizes the obli- 2197 2198 2199 734 gation of the oath under the law, and recognizes its moral obligation, and believes that the oath or af- firmation which he takes, binds his conscience to testify the truth, and that moral penalties will fol- low in case of failure, these are the only considera- tions to be taken into account as affecting his credi- bility in this connection.” Also to so much of the charge as instructs the jury that the defendants are not entitled to a ver- dict on the ground of fraud, unless they find “ that the fraud was consummated by the willing death of Walton Dwight by self murder, by suicide.” Also to the refusal to charge that the fact, if this be so, that all the physicians agreed at the autopsy that the fibrous nodules were probably the result of old pulmonary phthisis, should be considered by the jury in determining the reliance to be placed on the medical testimony as to the cause of the nodules. Wednesday evening, 8 o’clock p. m. The Court.—Has the jury anything to report to the Court. Sheriff.—No, sir ; but I understand that one of the jurors is unwell. The jury return into Court. Mr. Davis, one of the jurors, reported himself as being ill. The Court.—Is there any objection to Dr. Brooks seeing this man % Mr. Cladding.—None on our part Mr. Larocque.—And none on our part. The Court.—Gentlemen, since we met before, l received a communication from you which I will read: “Judge Follett :— Dear Sir:—We have not agreed upon 2200 2201 2202 735 our verdict nor is it probable that we ever shall as we are no nearer it now than we were last night at five o’clock.” You say it is not probable : that gives me hope, great hope that it is not impossible. And you say that you are no nearer it than you were last night at five o’clock ; that convinces me that there has been some defect in the discussion that you have given this case since you have been out, and I doubt not you can rectify it. Retire, gentlemen. Court adjourned to Thursday Morning at 10 o’clock A. M. 2203 Thursday Morning, 10 o’clock a. m. The jury return into Court. The Clerk.—Gentlemen of the jury, have you agreed upon a verdict \ Juror.—We have not. The Court.—Is there anything you wish to saj” to the Court in respect to this case ? Juror.—Mr. Newton claims he wants your charge for some purpose. The Court.—Do you want the charge read. Juror Newton.—I think it might hasten it if we had the charge to read from in our room. The Court.— Is there any objection to it, gentle- men ? Counsellor Newton.—Not any on our part. Mr. Lcirocque.—rT\\V Sir.—Enclosed please find pol. and rec’pt be September. 780 No. 151,054, O’Reilly, which we return in compli- ance with v’rs of recent date cancelling the risk. Also find prem. rec’pt No. 151,227, Walton Dwight. Mr. D’s appl’n called for semi-annual pay’ts; please make correction. Y’rs truly, Peck & Hillman. C. B’d. 2338 Exhibit 14. [Read at Binghamton, N. Y., Sept. 2d. 1878. To the Secretary of the Connecticut Mutual Life Insurance Company.—1 herewith submit the cor- rections and additional statements written below, in and to the application for insurance upon which policy No. 151,227 was issued of date 18 , and request that the same be remewed by the Officers of the Company, and that said Policy be validated and restored to force and effect if they so determine. [Here insert the corrections or ad- ditional statements referring to the questions and answers in the application by numbers.] The only portion of my letter to Lowell Hard* ing, your ag’t at Binghamton, I desire to correct : “ I say that I got frightened and took a paid up Policy of the Equitable for $40,000,” &c. This should have read that I took a paid up Policy for the surrender value of the $40,000, and no longer ago than the 27th August I was in their Office, when I was led to infer that they would be glad to write me up again for the full am’t which I have made application for and expect now, gentlemen, if you consider me a good risk, all right, but under- stand I don’t want your insurance any more than 2339 2340 781 you want my premiums unless you are fully satis- fied. Respectfully and Hastily Yours, Walton Dwight. I agree that the above corrections and statements shall form a part of the said application, and, be subject to the agreements and warranties therein contained in all respects as fully and completely as if the same had been originally set forth in said application. 2341 Exhibit 15. [Read at page 94.] Blank No. 1. The Western Union Telegraph Company. This company transmits and delivers messages only on conditions limiting its liability which have been assented to by the sender of the following message. Errors can be guarded against only by repeating a message back to the sending station for comparison, and the company will not hold itself liable for errors or delays in transmission or delivery of unrepeated messages. This message is an unrepeated message, and is delivered by request of the sender, under the conditions named above. William Orton, Pres’t. A. It. Brewer, Secy. Dated Troy, N. Y., 16th Sep. 1878. Received 9:50 A. Bing. To Lowell Harding. Home Office have the Dwight case under consid- eration. Will have decision in day or two. Peck & Hillman. 15 paid, S. Read the notice at the top. 2342 2343 Exhibit 16. Bottle introduced in evidence at page 131. 782 Exhibit 17 [Read at page 172.] Application to the John Hancock Mutual Life Insurance Company for insurance on the life of Walton Dwight. Dated Binghamton N. Y., August 21, 1878. Amount applied for $10,000 Kind of policy—Life. Benefit of—self, heirs or assigns. Premium payable quarterly. Medical Examiner’s Certificate. Examination of Mr. Walton Dwight of Windsor. Questions only to be asked by medical examiner and answered only by the person examined. Q. What is your occupation; state full par- ticulars? A. Real estate and grain dealer. Q. Present state of health ? A. Good. Q. Have you ever been predisposed or subject to or afflicted with any of the following diseases or infirmities, if so, state how recently, and full par- ticulars? ” Then follows a list of various diseases and in- firmities to which a separate answer is given to each, namely, Coughs prolonged ? A. No. Q. Diseases of the lungs ? A. No. Q. Spitting blood ? A. No.” Opposite these answers is the statement, “while becoming acclimated to the climate of Chicago I was sick some three weeks ; was lame something like rheumatism of the muscles ; stomach was troubling and was generally out of sorts. Was prescribed for some three or four times by Dr. Allan Brooks of Chicago when I fully recovered and have been well since. Q. Have you ever had any other serious illness or wounds or accidents ? A. Was slightly wounded in the thigh during the war. 2344 2345 2346 783 Q. Have you ever been examined before for life insurance, and if so, state when and by what company? A. Yes, sir; have policies in all the leading companies and in some of which have paid up policies now. Never been rejected. Following this are questions relating to family history. As to liis mother he states the age at death to have been thirty-five and the cause of death “some pulmonary disease, the nature of which I do not know.” And later, in answer to another question whether either of his parents or maternal or paternal grand parents or any of their descendants as far as known have had consumption, bronchitis, etc., if so please state the time, degree and duration and effect on health ? He answers “Mother died of some pulmonary disease at the age of thirty-five. Q, Are you aware that any untrue or fraudulent answers to the above question or any suppression of facts in regard to your health will vitiate the policy ? A. Yes. “I, Walton Dwight, of Windsor, County of Broome, State of New-York do hereby make ap- plication to the John Hancock Mutual Life In- surance Company for insurance on the life of self to the amount of $10,000 for a term of life, and with that viewT and as a basis for such insurance, make the following statement including those made to the Medical Examiner, which it is hereby mutually agreed shall form a part of the contract for this insurance. The name of the person for whose benefit policy is made payable. Heirs or assigns. Q. Has any life insurance company, through its officers, medical examiner or agents, declined or postponed insurance on the life proposed ? A. No. Q. Is the life of the person proposed now in- sured ? A. Yes, small paid up policy in this com- pany ; Equitable Life, $10,000; Connecticut Mu- 234? 2348 2349 784 tual, $15,000; Washington Life, $10,000 ; New- York Life, $10,000. Q, Have you ever applied to any other com- pany except as stated to answers of questions 6 and 7, and if so was a policy issued ? A. I have ; and the policies were issued. Q. Are all statements above written in your handwriting, and if not do you acknowledge them to be as binding as if written by you ? A. I do acknowledge it to be as binding as if written by me. Dated Binghamton, August 21, 1878. (Signed) Walton Dwight, Applicant” At the head of the application “ To be filled only at the home office. Received at Boston August 22, 1878 ; kind of policy, life; August 21, 1878 ; amount insured $10,000, page 41 ; annual rate $326 ; premium payable quarterly $83.60. 2350 2351 Exhibit 1§ [Read at page 172.] Application to the Penn Mutual Life Insurance Company for Insurance on the Life of Walton Dwight. Amount applied for, $10,000. Kind of Policy, Life. Benefit of “ his only son Frank Dwight.” Premium, payable quarterly. “ Present occupation and previous occupation, state exactly what ?” Answer by applicant, “ Real Estate and Grain Dealer.” Q. Is the party engaged in the manufacture or sale of beer, wine or any other intoxicating drinks % Has he ever been so engaged? State full par- 2352 785 ticulars ? A. No; excepting keeping hotel about three years where liquor was sold by the package ; no bar. Q. Has he ever been afflicted with or subject to any of the following diseases? Answer each one separately and state particulars in margin : Bron- chitis ? No. Pneumonia? No. Rheumatism? I have never had any sickness since last spring ; I went to Chicago and while becoming acclimated I was ill for about three weeks ; stomach trouble ; was also lame, supposed to be muscular rheuma- tism ; I was prescribed for 3 or 4 times by Dr. Allan Brooks, when I entirely recovered and have been well ever since. Q. Has any near relative been affected by or died of consumption or other diseases specified ? And later, where questioned as to the cause of death of his mother and the length of her sickness, etc., the applicant states that “ She died at 35 of consurnp- ‘k Q. Has the party his life insured ; if so, give the name of each company and the amounts in each, with the kind of policy? A. Yes; see lower margin.” He says : “I have had, since 1868, about $120,- 0o<>, in various companies, as the Equitable, Wash- ington, Germania, Franklin, John Hancock, Widows and Orphans, Universal, National, New- York and the Craftsmen’s, and a number that have failed. I have taken paid-up insurance in most companies, and I desire now to have insurance in sound companies. Q. Has any proposal or application to insure the life of said party, ever been made to any company or agent, upon which a policy has not been issued, or are any negotiations now pending with any party for a policy on his life ? If either, state full particulars ? A. No. Q. Is there any other information respecting the present or former habits, health and circumstances of said person, with which this company ought to 2353 2354 2355 786 . be made acquainted, as likely to influence it in issuing the policy % Is the party aware that any untrue or fraudulent allegation or omission made in this application for insurance, will render the policy void, and that all premium payments made thereon, and dividend credits accruing therefrom, will be forfeited ? Has he fully understood the question which he has answered above ? A. Yes. (Signed) Walton Dwight.” 2356 Exhibit 19. [ Read at page 172.] Application to the Phoenix Mutual Life Insur- ance Company, of Hartford, Connecticut, for insur- ance on the life of Walton Dwight. Dated August 15th, 1878, Amount applied for, $10,000. Kind of policy, life. Benefit of Premium payable, quarterly. The lousiness or occupation of Walton Dwight is stated to be “ real estate and grain dealer.” “ Q. 13. Have you ever had any of the following diseases or disorders”—included in the list that fol- lows, to which separate answers are required, are, “bronchitis, consumption, pleurisy, pneumonia, rheumatism, spitting blood.” “ State the particu- lars, date, character and duration of all the diseases you have had % A. Last spring, in changing from here to Chicago, I was generally out of sorts ; had rheumatism and trouble with my stomach ; was sick some three weeks, and was prescribed for by Dr. Allan Brooks, of Chicago, some 3 or 4 times, when I was fully recovered, and have been well since. In 1869 I had something like dyspepsia, 2357 2358 787 but no trouble since.” To all these questions the answers were, uNo ; only as above.” “ Q. Have you, during the past seven years, had any disease or severe sickness ? A. “No.—If so, state the particulars in each case, and the name and residence of the attending physician? A. No ; ex- cept in answer to number 12. Q. Are you now, or have you ever been, addicted to the use of any spiritous liquors ? A. No. Q. What is the name and residence of your family physician, or the one whom you have usually employed or consulted ? A. Dr. J. G. Orton of Binghamton. Q. What is the name and residence of an intimate friend ? A. Neri Pine, of the same place. Q. Are you aware that any untrue answers to the above questions, or a suppression of facts in regard to your health, habits or circumstances, will vitiate the policy and forfeit all premiums thereon? A. Yes. Q. Have you carefully read over the questions and answers thereto ? A. Yes. Q. Do you understand that all policies, to be binding upon this company, must be signed by its president, vice-president or secretary ? A. Y^es. (Signed) Walton Dwight.” (Endorsed) “Agent of Brown, at Binghamton, New-York. Received 19th day of August, 1878.” 2359 2360 2361 Exhibit 20. [Read at page 172.] Application to the Globe Mutual Life Insurance Company for an insurance on the life of Walton Dwight. Dated August 20, 1878. 788 Amount applied for, $15,000. Kind of policy, ordinary life. Benefit of heirs or assigns. Premium payable quarterly. Date of commencement, when the risk is ac- cepted. In answer to the question as to business or occu- pation, the answer is, “ Real estate and grain dealer.” “Q. 13. Has the party been afflicted since child- hood with any of the following complaints? An- swer opposite each query—Diseases of lungs o£ air passages, spitting blood, bronchitis ” ; written opposite each is, “See margin.” In margin is the following, “ Last spring in changing from here to Chicago, I was generally out of sorts ; had rheu- matism and trouble with my stomach ; was sick some three weeks, and was prescribed for by Dr, Allan Brooks of Chicago some three or four times, when I was wholly recovered, and have been wrell since then. In 1869 I had something like dyspep- sia, but nothing serious ; no trouble since.” To all the questions embraced in this list the an- swer wras, “No, only as above.” In answer to the question calling for name and residence of party’s usual medical attendant, or if having none, of some other medical person than the Examiner to be referred to as to information in regard to his health, the answer is, “No usual medical attendant, but would refer to Dr. George Burr, Binghamton, N. Y. (Signed) AYalton Dwight.” 2362 2363 2364 1. How long have you known Mr. Walton Dwight? About ten years. 2. a. Are his habits of life correct and temperate? a. Yes, so far as I know. b. Yes, so far as I know. b. Have they always been so ? 3. Is he afflicted with any bodily defect? No. 4. Has he ever been seriously ill ? No ; not to my knowledge. 5. Does he ordinarily enjoy good health ? Yes. AGE. I HEIGHT, | WEIGHT. COLOR OF HAIR. EYES. I COMPLEXION. 6. Please state to the best of your knowledge, his About 40. 6 ft> 3 in. j 225. Brown. Gray. Light. 7. How would you rate the risk : aaI, a1, 1, 2 or 3 ? AA 1. Risk approved, Dr. Chas. Rernaeki. R, H. BOOT, 1. How long have you known Mr. Walton Dwight? 25 years. 2. a. Are his habits of life correct and temperate ? a. Yes. b. Yes. b. Have they always been so? 3. Is he afflicted with any bodily defect ? No. 4. Has he ever been seriously ill ? No. 5. Does he ordinarily enjoy good health ? Yes. — LL r i l j i- AGE. HEIGHT. WEIGHT. COLOR OF HAIR. EYES. COMPLEXION. 6. Please state to the best of your knowledge, his 40 „ 3 in 2,6. LigU j Grey Ught 7. How would you rate the risk : aaI, a1, 1, 2 or 3 ? AA 1. CERTIFICATE BY ONE OF THE FRIENDS REFERRED TO IN THIS APPLICATION. It is requested that NOTHING be written on this side. NHRI PINK CERTIFICATE BY ONE OF THE FRIENDS REFERRED TO IN THIS APPLICATION. GERMANIA LIFE INSURANCE COMPANY, No. 287 Broadway, New York. OF FOR AN ASSURANCE ON THE LIFE OF WALTON DWIGHT, Residence, Windsor, N. Y. Dated at Binghamton, tins 22d day of August, 187?, Dated at Binghamton, this 22d day of August, 1878, No. of Policy, 69,096. Amount, $15,000. £ Premium, $131.55. Due, 28 Nov., Feb., May & Aug. Term of Policy, Life. Date of Policy, August 28,1878. Age, 41 years. Agent, II. C. Hermans. at May, 1874. S. Benedicks & Co., .368 Broadway, New-York. ibit 21. * Some two years prior to Father's death, while removing an apple tree in home grounds, he was struck across the stomach with a lever, from the effects of which disease something like inflammation between the upper and lower stomach set in, from which he died. We never knew exactly w/iat it could—called. Had it not been for this Father bid fair to live as long as his father. ©ifaiiii Mf@ igifiiii 387 BROAD IAY, NEW-YOEK. Particulars and Declaration required from the Applicant for Life Insurance and the Person whose Life is proposed to be assured, 1. For the party to whom the amount Name at full length, Heirs or assigns. of the policy is to be made payable, state the r Residence, County of State of (if a wife, give maiden name also.) Relationship to party to be assured, —I J -V 1 * ' ' Name at full length, Walton Dwight. 2. a. For the party whose Life is proposed to be assured, state the f Residence’ Windsor, County of Broome, State of N. 7. Place of Business, Broome Co., N. Y., d Chicago. Business, specified, Beal Estate and Grain Dealer. b. Is this business his own, or does he work for other persons and in what capacity? His own. c. In what occupation has he been engaged during the last 10 years ? Real Estate and Grain Dealer. d. Is he now or has he been engaged in or connected with the manufacture or sale of any beer, wine or other intoxicating liquors? No. 3. Amount to be assured, io,000 Ten or fifte Thousand Dollars. 4. State exactly what kind of Policy a. Life Insurance—Premiums during life—ordinary—Yes. is desired by filling up one of the b. Life Insui’ance—Premiums during life—Tontine, marginal blanks with the word c. Life Insurance—Premiums during years—ordinary, “ \ es ” adding the number of years d. Life Insurance—Premiums during years—Tontine, where needed, (c., d. & e.) e. Endowment Assurance for years, • • f. Endowment Assurance for the expected duration of life, N. B.—Such a policy becomes due at the time when the Company’s Mortality Table expects the assured to die. 5. Whether the premiums shall be payable : yearly, half-yearly or Quarterly. quarterly ? 6. a. Whether the party to be assured is now or has been insured a. Yet / has paid up Policy for about $800. Don't know No. oj Policy. in this Company ? If so, state the number of the Policy and the amount. b. Whether in other Companies? in which, and for what b. Yes/ N Y. Mutual, 15 year Endowment, 10,000; Conn. Mutual, Ordinary amount in each? State exactly Oil what kind of Policy. Life, 15,000 ; Washington, Ordinary Life, 10,000 ; Equitable, Ordinary c. Whether an Assurance has been applied for with this or any Life, 10,000. other Company without having led to an Assurance? If so, c. No. with which Companies ? and for what reason did the applica- tion not lead to an assurance ? 7. Place and Date of Birth of the party whose life is to be assured? Born December twentieth, eighteen hundred and thirty-seven, Windsor, Broome N. B.—It i8 indispensable that the date of birth be correctly stated in writing and not in (Jo N Y figures. 8. Is the same Married or Single? Married. 9. What interest has the applicant in the life of the assured 7 if it consists in a debt, what is the amount of it ? 10. How is the present state of health of the party whose life is to Good. be assured? 11. Is the same afflicted with any bodily defect ? No. 12. a. How has the state of the party’s health been heretofore ? Good. b. Has the same ever been afflicted with any serious illness, de- fect or personal injury ? B No. 13. a. What physician or surgeon has attended the same in such a illness ? b. Who is at present the party’s usual medical attendant ? i. Don't have any. 14. When has the party been vaccinated for the last time ? Within the last ten years. 15. a. Has the party ever resided south of the southerly liries of . No. Virginia, Kentucky, Missouri and Kansas ? if so, where, when, and how long ? b. Has the same had the disease incident to the climate of such b. residence ? Has the same had the yellow fever ? 16. or sam7 ever hadlhUf the LasYSpring, whilYiWChicago, 1 walgenerally out of sorts. Had Rheumatism ino- diseases : o,nd trouble with my stomach. Was sick some three weeks. Was prescribed Spitting of Blood, • Asthma, Paralysis, Smaii-pox, for hV I)r- Allen Brooks, of Chicago, some three or four times. When I was Bronchitis, Rupture, Apoplexy, Palpitation, wholly recovered, and have been well since. In 1869 I had something like LiverUcompia’int, Dropsy, Gout,’ Organs,6 other Dispepsia but nothing serious. No trouble since. To all these questions in Rheumatism, Insanity, Fits, important organ ? Wo. 13 answers No Only as above. 17. Are the functions of the Brain, the Nervous and Muscular Sys- Yes. terns, the Lungs, Heart, the Abdominal and Urinary Organs in a healthy state ? Father ) a7 age and state of health, b. ageatdeathT b. cause of death. 18. a. State, if the party’s parents are alive, what are their ages, and _ , V IF living. About 59. Injury to stomach. the state of their health ? eac' ) __ See margin* Mother ) b. b. If dead, at what ages and of what diseases did they die ? p. j * >- About 35. Called ; ea * ) * Consumption. Wo HOW MANY HAS THE HOW MANY ARE LIVING ? WHAT ARE~ HOW MANY ARE DEAD, AND AT WHAT OF WHAT DISEASE DID THEY DIE ? PARTY HAD? THEIR AGES AND THE STATE AGES DID THEY DIE ? OF THEIR HEALTH ? g^| Brothers. -j 2 Two. One, about 22. Health good. One, about 21. Chronic Diarrhea in the Army. Sisters. j 3 2W. \ \ - i _ _____ 20. Have the party’s parents, brothers or sisters been afflicted y0> except Mother. with Pulmonary, Scrofulous, or any other constitutional Dis- ease, hereditary in its character ? 21. Are the party’s habits of life correct and temperate, and have; Yes. they always been so ? 22. Exact address of two intimate friends to whom the party refers. Neri Pine and R. H. Root, Binghamton, N. Y. 23. Can you communicate any material fact in regard to the health No. of the party whose life is to be assured, or to the Insurance Contract, which has been omitted in the above questions ? (In answering this Question, women have to state whether they are now pregnant: how many children they have born, and how many are living now.) 24. Are you aware that this Contract of Assurance becomes valid Yes. only by the payment of the first premium, and that it becomes void whenever the future premiums shall not be paid on or before the days on which they become due, irrespective of any Rever- sionary Dividend with which the Policy may be credited ? ]ST. 13. 1) Persons proposing an Assurance are requested to answer AUL tlie qnestions. Q) ISPo erasures are admissible. Unavoidable alterations must be acknowledged by initials. gt Uerefoy (UfliWfd, that the above are fair and true answers to the foregoing questions, and it is acknowledged and agreed by the undersigned that the above statements shall form the basis of the contract for Insurance, and also that any untrue or fraudulent answers, any suppression of facts in regard to the party’s health, or neglect to pay the premium on or before the day it becomes due, will render the Policy null and void, and forfeit all payments made thereon ; also, that the Policy of Insurance hereby applied for shall not be binding upon this Company, until the amount of premium, as stated therein, shall be received by said Company, or some authorized Agent thereof, during the life-time of the party therein insured. And it is also agreed, in case the party whose life is proposed to be assured reside at present in the Southern States, that no extra charge being made by the said Company for such residence, the Policy hereby applied for be placed, if issued, in the “Southern Class” of Policies, and receive such dividends as the Board of Directors, with reference to the mortality of such class, may declare. Dated at Binghamton, this 22d day of August, 1878. Witness, II. C. HERMANS. Signature of the Applicant, WALTON D WIGHT. Signature of the Party whose life is to be assured, WALTON J) WIGHT. 1. Name, Residence and occupation of the person whose life Walton Dwight, Windsor, Broome Co., N. Y., Beal Estate and is proposed to be insured ? Grain Dealer. 2. a. Are you sure that he is the party examined by the Med- a. Yes. ical Examiner ? b. Are you personally acquainted with him ? How long ? b. Yes / about Jive years. 3. His usual personal occupation during the last ten years ? Beal Estate and Grain Dealer since I have known him. 4. Is his character thoroughly honorable ? Yes. 5. Is he sober and temperate and has he always been so ? Yes. 6. State his a. Height ? (American Measure.) a. Six feet three inches. b. Weight? “ “ b. 225 lbs. c. Apparent age ? c. Looks about 40 years. 7. Does he look older or younger than he is ? Younger, if either. 8. Is his complexion clear, fresh colored, pale, florid or brown ? Clear and fresh. 9. His general appearance ? Bobust. 10. Does he look at all bloated ? No. 11. A. Have you ever heard of his being seriously ill ? If so, a. No. when and with what diseases ? b. Is he afflicted with any bodily defect ? b. Not to my knowledge. c. Is he to the best of your knowledge now perfectly c. Yes. • healthy ? 12. Have any of his near relations died of consumption, asthma No ’ not to my knowledge, except Mother. or other pulmonary diseases ? 13. Does he live in easy circumstances ? Yes. 14. How high do you estimate his annual income ? From five to ten thousand dollars. 15. Further particulars ? | None. 16. How would you rate the proposed life’s health ? A A 1. « “ “ “ physical constitution ? AA 1. ** “ “ “ occupation and manner of living ? AA 1. “ “ “ “ temperance and habits ? A A 1. How would you rate the proposed life in toto ? AA 1. N, B. 1. Before answering these questions inform yourself of the duration of life which the Expectation Table at the foot of this assumes. 2. Answer each of the above questions under No. 16 merely by either a a 1, or a 1, or 1, or 2, or 3. Dated at Binghamton, N. Y., this 22 day of August, 1878. H. C. IIEBMANS, Agent. Approved- - : * * 187 General Agent. QUESTIONS TO BE ANSWERED BY THE AG-ENT. Table of Expectation of Life. 1 2 3 l 3 3 l 3 3 Years of Age Years of Age Years of Age Present expectation at which Present expectation at which Present expectation at which Age. of further death Age. of further death Age. of further death life. is expected. life. is expected. life. is expected. 20 89.88 59.88 33 31.14 64.14 47 22.00 69.00 21 39.19 60.19 34 30.49 64.49 48 21.34 69.34 22 38.51 60.51 35 29.83 64.83 49 20.68 69.68 23 37.83 60.83 30 29.17 65.17 50 20.02 70.02 24 37.15 61.15 37 28.-52 65.52 51 19.36 70.86 25 36.47 61.47 38 27.87 65.87 52 18.70 70.70 20 35.80 61.80 39 27.21 66.21 53 18.03 71.03 27 35.13 62.13 40 26.56 66.56 54 17.36 71.36 28 34.46 62.46 41 25.91 66.91 55 16.68 71.68 29 33.79 62.79 42 25.26 67.26 50 16.03 72.03 30 33.13 63.13 43 24.61 67.61 57 15.40 72.40 31 32.47 63.47 44 23.96 67.96 58 14.78 72.78 32 31.80 63.80 45 23.30 68.30 59 14.18 73.18 . 40 22.65 68.65 OO 13.59 73.59 789 [Read at page 173.] Exhibit 22. Application to the Mutual Benefit Life Insurance Company of New Jersey for insurance on the life of Walton Dwight. Dated August 1st, 1878. Amount, $15,000. Term, life. Benefit of Frank Dwight, son of Walton Dwight. Premium, $ payable semi-annually. In answer to the question: “ Q. Has the party since childhood had disease of the heart or brain, rupture, dropsy, liver complaint, &c., including bronchitis, spitting of blood, habitual cough and consumption?” The answer is: “A. I have had dyspepsia or stomach trouble and slight touches of rheumatism caused by exposure ; but entirely free from same at present so far as known.” “ Q. Name and residence of party’s usual med- ical attendant or medical attendant of the family, to be referred to for information as to his health ? A. Dr. J. G. Orton, Binghamton, N. Y.” On the second page is a declaration to be made and signed by the person proposing to make an insurance on the life of another, such declaration being signed “Frank Dwight, by his father, Wal- ton Dwight.” (Note.—It was admitted that the policy which was granted on this application was for only $10,000, and not for $15,000.) 2365 2366 2367 Exhibit 21. | Read at page 173.] Application to tlie Northwestern Mutual Life Insurance Company on the life of Walton Dwight. Dated August 18th, 1878. Amount applied for, $10,000. 790 Life policy. Benefit of Walton Dwight, self or estate. Premium, $ payable quarterly, and yearly after the first year. Insurance to be included in nine policies. Occupation stated to be “ General operator in real estate and grain.” “Q. What occupation has the person been pre- viously engaged in? A. Real estate.” With index linger “'In giving the occupation of the person it is not sufficient to state for example that he is a merchant or mechanic, but the par- ticular branch of business or the trade must be specified.” In answer to the question No. 11, as to whether “you have ever had any of the following diseases or any symptoms thereof,”—which included spit- ting of blood, bronchitis, rheumatism and con- sumption, the answer is “in changing from here to Chicago last spring, I was generally out of sorts ; had rheumatism or was lame for some three weeks ; nothing serious; my stomach troubled me at the same time ; was prescribed for two or three times by Dr. Allan Brooks, and was then in some three weeks; nothing chronic that I know of, and only temporary. “Q. Have you had an habital cough ? A. No. “Q. Are you now subjected to or affected by disease or weakness, or have you had any severe disease or received any serious injury other than those stated in the previous answer ; if so, state the particulars fully, prefixed by the words ‘none except’? A. No.” “Q. Is your life now assured, and if so for how much and in what company ? A. Am insured for $10,000 in the Equitable, paid up policies for some $5,000 more in other companies. Don’t remember names.” (Signed) “ Walton Dwight.” 2368 2369 2370 791 Exhibit 24 [Read at page 173.] Application to the Washington Life Insurance Company for insurance on the life of Walton Dwight. Dated August 15th, 1878. Amount applied for $10,000, as follows : one $5,- 000 policy, one $2,000 policy, and six policies of $500 each. Term, life. Benefit of Walton Dwight. Premiums, $ , payable quarterly first year. Contains the question “ Q. Has the party ever had any of the following diseases ; if so, state par- ticulars of their character and duration?” In the list which follows are included spitting blood, bron- chitis and consumption. The answer is: “Last spring in changing from here to Chicago, I was gen- erally ill for three weeks ; had some rheumatism and trouble with stomach ; Dr. Allan Brooks of Chicago prescribed for me three or four times, when I entirely recovered and have been well ever since. Some ten years ago had a slight touch of dyspep- sia ; otherwise “ No,” to all questions under head of 11. “ Q. Has the party had any serious illness, local disease or personal injury, and if so, of what nature? A. No. (Signed) Walton Dwight.” 2371 2372 2373 Exhibit 25. [Read at page 173.] Application to the Berkshire Life Insurance Company of Berkshire, Massachusetts, for insur- ance on the life of Walton Dwight. 792 Dated, August 20th, 1878. Amount applied for $10,000. Kind of policy, ordinary life. benefit of Premium $86.70 payable quarterly. The occupation of, the applicant is stated to be “Real estate and grain dealer,” and in the place in which occupation is to be stated appears this print- ed direction : “In giving your occupation it is not sufficient to state for example that you are a mer- chant, or mechanic, or clerk, but the particular branch of business or trade must be specified.” Under the designation “5 c.” is the question “Q. Are you and have you ever been engaged in the manufacture or sale of ale or beer, wine, or any other intoxicating liquor?” The answer is “No, except kept a hotel about three years, where liquor was sold by the package ; no bar.” In answer to question “8 Q. Have you ever had any of the following diseases, answer yes or no op- posite each,” —the list including consumption, pleurisy, asthma, bronchitis, spitting of blood, habitual cough,”—the word “No” appears oppo- site each one of the diseases mentioned. In the margin of the application opposite the last question under a direction to state particularly the character and duration of all the diseases the applicant has had, he answers: “I have never had any sickness, except last spring, I went to Chicago and while becoming acclimated I was ill for about three weeks ; stomach troubled me ; was also lame ; supposed to be muscular rheumatism ; I was prescribed for three or four times by Dr. Allan Brooks, when I entirely recovered and have been well ever since.” “Name and residence of your usual medical at- tendant ? J. G. Orton, Binghamton, has known him twenty to twenty-five years. (Signed) Walton Dwight.” 2374 2375 2376 793 Exhibit 26. Read at page 173. Application to the Home Life Insurance Company for insurance on the life of Walton Dwight. Dated August 20th, 1878. Amount appliedfor, $0 ,000. Ordinary life policy. Benefit of heirs and assigns. Premium $ payable quarterly “ with profits.” “ Q. What employment has the party been en- gaged in % A. Real estate mostly. Q. Has the party been employed or engaged in the manufacture or sale of intoxicating liquors ; if so, in what way, and when ? A. No, except owned hotel about three years ; liquors sold by package ; no bar. Q. AVhat amount is now insured on the life of the party, and in what company or companies ? A. Equitable, $10,000; Washington, $10,000; Connecticut Mutual, $15,000 ; New-York Mutual Life, $10,000. Q. 17. Has the party ever had an habitual cough; has he had spitting of blood 'l A. No. (Signed) Walton Dwight.” Attached to this application was a postal card,, also read in evidence, reading as follows : “ Bing- hamton, August 2£l878.” In application sent you this P. M. of Mr. Wal- ton Dwight he stated by mistake that he had a policy in theNew-York Life ;he meant the Mutual Life. Very truly, H. C. Hermans. (Note.—Policy for only $5,000 was issued on this application). 2377 2378 2379 794 Exhibit 27 [Read at page 173.] Application to the Manhattan Life Insurance Company of New-York for insurance on the life of Walton Dwight. Dated August 20th, 1878. Amount applied for $10,000. Term, life. Premium $ payable quarterly. “ Q. Occupation at present time ? A. Real estate and grain dealer. State employment he has been engaged in ; what has been the effect of this employment upon health ; if he is a merchant or manufacturer, say in what business ; has he been engaged in any way in the retailing of alcoholic drinks?” Answers “Real estate and grain, dealer always ; no bad effect on health.” The an- swer “ No ” is made to the question on the subject of retailing alcoholic liquors. “Q. If now insured, state in what company or companies, and amount in each? A. Equitable $10,000; Washington $10,000; Connecticut Mutual $15,000; New-York Mutual $10,000, or rather Mutual Life. Q. Has he an habitual cough or any disease, or is any disease suspected ? A. No. Q. Has he had since childhood” the diseases specified, among which is spitting of blood ? The answer is “Last spring on changing from here to Chicago, I was generally out of sorts had rheumatism and trouble with my stomach ; was sick some three weeks, being prescribed for Iry Dr. Allan Brooks of Chicago, some three or four times, when I was fully recovered and have been well ever since ; in 1869 I had something like dyspepsia, but nothing serious, and have had no trouble since.” To all the questions referred to the answer is “ No except as above.” “ Q. 24.” Calls for the name of any physician who 2380 2381 2382 795 has been consulted or advised with at any time ; if more than one, the address of each. The answer is “ Dr. George Burr, Binghamton, N. Y. Q. 23. Name and residence of his usual physician •or medical attendant to be referred to as to state of his health ? A. Dr. J. G. Orton, Binghamton N. Y. (Signed) Walton Dwight.” 2383 Exhibit 2§. [Head at page 173.] Application to the Massachusetts Mutual Life Insurance Company of Springfield, Massachusetts, for insurance on the life of Walton Dwight. Dated August 20th, 1878. Amount applied for $10,000. Ordinary life policy. Benefit of Frank Dwight. Premiums payable quarterly : “no loan.” “ Q. 8. Has the said party had any of the follow- ing complaints,” list of which follows “aseparate answer required to each.” In the list of diseases are included asthma, rheumatism, bronchitis, pneumonia, pleurisy, habitual cough, spitting or raising of blood. As to each of these diseases the answer is “No.” In the margin is this statement: “Last spring I went to Chicago and while becoming acclimated I was ill for about three weeks ; stomach troubled me; was also lame; supposed to be muscular rheumatism ; I was prescribed for three or four times by Dr. Allan Brooks, when I entirely recov- ered, and have been well ever .since. Q. 3. Profession or occupation at present? A. Real estate and grain dealer. Q. Formerly % A. Same, speculator, army, hotel keeper. 2384 2385 796 Q. 26. Give name and residence of said party’s usual medical attendant? A. Dr. J. G. Orton, Binghamton, N. Y. Q. Last medical attendant? A. Have never had any serious sickness, except as stated in margin. (Signed) Walton Dwight.” 2388 Exhibit 29. [Read at page 173.] Application to the National Life Insurance Company, Vermont, for insurance on the life of Walton Dwight. Dated August 20th, 1878. Amount applied for $10,000. Ordinary life plan. Benefit of child, Frank Dwight. Premium $ payable quarterly. “ Q. 13. Has the party been afflicted since child- hood” with certain diseases in list of which are included “ consumption, spitting of blood, &c.,” with an interrogation as to each. The answer to these questions is “No.” (Signed) Walton Dwight. 2387 ;Exhibit 30. 2388 [Read at page 173.] Application to the New England Mutual Life Insurance Company of Boston for insurance on the life of Walton Dwight. Dated August 20th, 1878. Amount applied for $10,000. Policy on the life plan. Benefit of self. Premium $ payable quarterly. 797 “ By this application the applicant proposes to become a member of the company, and with that view and as the basis of such insurance makes the following statements declared to be warranties, and in all respects true. “ Q. Profession or occupation ? A. Real estate and grain dealer.” To the question whether now or at anjr time, when, how long and under what circum- stances, and to what degree he has been subject to or at all affected by the following symptoms, diseases or infirmities, or suspected to be so by him- self or by any medical authority—the list following includes consumption, spitting of blood or any disease of the lungs—the applicant answers “I have never had any serious sickness except last spring I went to Chicago, and while becoming ac- climated I was ill for about three weeks : stomach troubled me ; was lame ; supposed to be muscular rheumatism ; I was prescribed for three or four times by Dr. Allan Brooks, when I entirely re- covered ; have been well ever since.” “ Has the person now, or has he had any serious illness, disease, or symptom of disease, not enu- merated above, or met with any accident or injury, and if so, of what nature and when \ A. None, ex- cept slight wound in army ; perfectly recovered. Q. Name of usual medical attendant % A. J. Gr. Orton, Binghamton, N. Y.” (Signed) Walton Dwight. 2389 2390 Exhibit 31. [Read at page 173.] Application to the New York Life Insurance Company for insurance on the life of Walton Dwight. Dated August 20th, 1878. Amount applied for $20,000, in two policies. 2391 798 Term life. One policy of $10,000 for the benefit of Walton Dwight, and the other of $10,000 for Frank Dwight, only child. The occupation or employment is stated to be “ Real estate and grain dealer.” In answer to question “ Is the person now or has he ever been engaged in any way in the retailing of alcoholic liquors ?” the answer is “No, except kept a hotel about three years where liquor was sold by package ; kept no bar.” In answer to Q. 11, “ Has the party had or been afflicted since child- hood with any of the following complaints, separate answer required to each query”—the list follow- ing included among the diseases, disease of the lungs or pulmonary complaint, spitting or raising of blood and bronchitis ; he answers “ No” to each query. In answer to Q. 27, calling for the name and resi- dence of his usual medical attendant, he answers, “Dr. J. G. Orton, Binghamton, N. Y.” At the foot of this application is the following : “ I do hereby agree that the statements and rep- resentations contained in the foregoing applica- tion and declaration, shall be the basis of the con- tract between me and the said Company, the truth- fulness of which statements and representations whether written by my own hand or not, I do here- by warrant that if some or any of them are in any respect untrue, the policy which may be issued hereon shall be void, and all moneys which may have been paid on account of such insurance shall be forfeited to said Company. • And inasmuch as only the officers of the Home Office of said Com- pany in the City of New York have authority to determine whether or not a policy shall issue on any application and as they act on the written statements or representations referred to, it is ex- pressly understood and agreed that no statement, representation or information made or given by or 2392 2393 2394 799 to the person soliciting or taking this application for a policy or to any other person shall be binding on the Company or in any manner affect its rights unless said statement, representation or informa- tion, be reduced to writing and presented to the officers of the Company at the home office in the above application. (Signed) Walton Dwight.” 2395 Exhibit 32. [Read at page 1TB.] Application to the same Company for insurance on the same life, same date, and for the same amount—as in case of preceding application. Life policy. Amount applied for $20,000 in two policies, one for benefit of applicant, Walton Dwight, and one of same amount for Frank Dwight, only child of Walton Dwight. Premium, $ , payable quarterly. In answer to Q. 3, Dwight’s occupation or em- ployment is stated to be “ Real estate and grain dealer.” In answer to 7 c., “Is the person now or has he ever been engaged in any way in the retailing of alcoholic spirits,” he says, “No, except kept hotel about three years where liquors were sold by package. Kept no bar.” In answer to Q. 11, “Has the party had or been afflicted since childhood with any of the following complaints ; separate answers required to each query,”—the list following, including diseases of the lungs or pulmonary complaints, spitting or raising of blood and bronchitis, —as to each of said diseases he answers “No.” In answer to Q. 27, calling for the name and 2396 2397 800 residence of the person’s usual medical attendant, he states “Dr. J. G. Orton, Binghamton, N. Y.” “Q.22. Has the party any other insurance on his life; if so, where and for what amount % A. In the attached application. [Note.—There was nothing attached to this ap- plication, but the reference was understood to be intended to apply to the application. Exhibit 31.] (Signed) Frank Dwight, by his father, Walton Dwight. W A ETON D WIGHT. 2398 Exhibit 33. [Read at page 173.] Application to the Life Department of the Travellers’ Insurance Company for insurance on the life of Walton Dwight. Dated August 20th, 1878. Amount applied for, $10,000. Term, life. Benefit of applicant’s legal representatives. Premium, $ , payable quarterly. In answer to Q. 4, to be asked by medical ex- aminer, “Has the person proposed ever had any of the following diseases or symptoms; if he has had any of the diseases here named, state full par- ticulars, answer yes or no opposite each;—the list following including consumption, bronchitis, spit- ting of blood, habitual cough,—he answers, “No,” as to each of the diseases. The following state- ment is made: “Last spring, while getting accli- mated in Chicago, was sick with muscular rheu- matism and trouble with the stomach. Was sick about three weeks. Dr. Allan Brooks prescribed three or four times, and applicant recovered fully, and has been well ever since.” 2399 2400 801 In answer to Q. 11, calling for name and residence of usual medical attendant, he states “J. G. Orton, Binghamton, N. Y.” In answer to Q. 15, Has he reviewed the answers to the above questions, and is he sure that they are correct, he answers “Yes.” “It is hereby declared and warranted that all and several the answers made to the interrogatories to this application are full, complete and only answers made by the person whose life is proposed for insurance, or by the person for whose benefit the insurance is proposed ; that they are correctly recorded and are strictly true; and it is acknowl- edged and agreed by the person that this applica- tion shall form the basis and become part of the insurance contract hereby applied for including all its provisions and additions, and if there be in any one of the answers herein made any incorrect state- ment either made by misrepresentation, evasion concealment or otherwise, then any policy granted upon this application shall be null and void, and all payments on account thereon shall be forfeited to the Company.” (Signed) Walton Dwight. 2401 2402 Exhibit 34 [Read at page 174.] Application to the Union Mutual Life Insurance Company of Maine, for insurance on the life of Wal- ton Dwight. Dated August 20th, 1878. Amount applied for $10,000. Kind of policy, ordinary life. Benefit of Walton Dwight. Premium $ payable quarterly. The applicant’s business is stated to be “ Real estate and grain dealer.” 2403 802 “Q. Place of business? A. No local place of business. Q. Former occupation ? A. Same as now. Q. 7. Are you engaged in the manufacture or sale of intoxicating drinks ; if you have been so engaged, state full particulars?” The applicant answers “No” to each of these questions, and adds this statement “except kept a hotel about three years, where liquor was sold by the package. No bar.” In answer to Q. 5 “ Have you ever been subject- to or had any of the following disorders or diseases , answer yes or no to each,”—the list following in- cluding consumption, catarrh, habitual cough, pleurisy, pneumonia, or inflammation of the lungs," spitting or raising of blood,—the applicant answers “No” to each. Added to the answers last referred to, the appli- cant makes this statement: “ I have never had any serious sickness except last spring I went to Chicago and while becoming acclimated, 1 was ill for about three weeks ; stomach troubled me ; I was lame ; supposed muscular rheumatism ; I was prescribed for three or four times by Hr. Allan Brooks, when' I entirely recovered, and have been well ever since.” “ I hereb}7 declare that I have read the above questions and written answers, and that the answers as written are correct and true ; and I hereby for myself and for all others who may in any event have or claim any interest in the insurance hereby applied for, do request and authorize any physician or surgeon having any knowledge or information acquired professionally or otherwise touching the matters herein referred to mentioned or involved, to disclose the same fully at any time at the instance of said Company, hereby waiving any privilege connected therewith. It is hereby declared and agreed that all the statements and answers to the printed questions, written upon forms A and B, which, together with this declara- tion and agreement, constitute an application to 2404 2405 2406 803 the Union Mutual Life Insurance Company of Maine for an insurance of $10 000 upon the life of Walton Dwight, are offered to the said company as a consideration of the contract applied for, each of which statements and answers, whether written by his own hand, or any other person whose name is hereto subscribed, adopts as his own, and admits to be material, warrants to be full, complete and true, and to be the only statements given to the company in reply to these inquiries, and upon which, should the insurance applied for be granted, the company’s contract will be founded ; and this application is submitted to the said company, with the following express covenants and agreements : 1. That it will constitute no contract of insurance until a policy shall have first been issued and de- livered by said company, and the first premium thereon actually paid during the continuance of the life proposed for insurance in the same condi- tion of health described in the application. 2. That, if the insurance applied for be granted by the company, the policy, if accepted, will be accepted subject to the conditions and stipulations contained in the policy, and that in particular on, insurance shall be claimed to be hereby granted against death by self destruction ; nor shall any insurance be hereby granted if health shall be im- paired by the use of narcotics or alcoholic stimu- lants.” (Signed) Walton Dwight. 2407 2408 2409 Exhibit 35. [Read at page 174 J Application to the United States Life Insnrance Company in the City of New York for insurance on the life of Walton Dwight. Dated August 20th, 1878. 804 Amount applied for, $10,000. • Kind of policy desired, life. Premium $ ' ' ' , to be paid quarterly. Benefit of Walton Dwight. J Occupation and employ merit is stated to be “ Real estate and grain dealer.” In answer to question A, “ Are you engaged in the manufacture and sale of intoxicating drinks ? B. Have you been so engaged ? C. State full par- ticulars? he answers, to A. “No;” to B. “No, except kept a hotel about three years, where liquor was sold by package. No bar.” “ Q. 5. Have you ever been subject to, or had any of the following disorders or dis- eases ? Answer yes or no to each”—the list including spitting or coughing of blood, ar- ticular rheumatism, pneumonia, or inflammation of the lungs, habitual cough, consumption, catarrh and bronchitis and asthma,—he answers, “No” to each. Opposite this series of answers is a star, with a memorandum, “See note” ; and a corre- sponding star appears at the margin below with this note : “I have never had any serious sickness ex- cept last spring I went to Chicago, and while be- coming acclimated was ill about three weeks. Stomach troubled me; was lame; supposed to be muscular rheumatism. I was prescribed for three or four times by Dr. Allan Brooks, when I entirely recovered, and have been well ever since.” “ Q. 11 is divided into three sub-divisions: “ How long since you were attended by any physi- cian, or have professionally consulted one? A. Last spring. Q. For what disease ? A. Slight bil- ious attack. Q. Give the name and residence of that physician and that of your usual medical ad- viser ? A. Dr. Allan Brooks, Chicago, and second- ly Dr. J. G. Orton, Binghamton, N. Y.” “ I hereby declare that I have read the above questions and written answers and that the answers as written are correct and true, and I herebv for 2410 2411 2412 805 myself and for all others who may in any event have or claim any interest in the insurance hereby applied for, do request and authorize any physician or surgeon having any knowledge or information acquired professionally or otherwise touching mat- ters herein referred to, mentioned or involved to disclose the same fully at any time at the instance of said Company, and hereby waive any privilege whatsoever and howsoever connected therewith. “It is hereby declared and agreed that all the statements and answers to the printed questions written upon the foregoing forms A. and B. which together with this declaration and agreement con- stitute an application to the United States Life In- surance Company in the City of New-York for an insurance in the amount above mentioned upon the life of the person proposed for insurance above named, are oifered to said Company as a consider- ation of the contract or policy of insurance applied for, each of which statements and answers whether written by his own hand or any other person whose name is thereto subscribed or who in any event may have any interest in the policy in question, adopts as his own and admits to be material and warrants to be full, complete and true as facts and to be the only statements given to the Company in reply to these inquiries and upon the good faith of which as facts, should the insurance applied for be granted, the Company’s contract will be founded.” (Signed) Walton Dwight. 2413 2414 2415 Exhibit 36. [Read at page 174.] Application to tlie Aetna Life Insurance Com- pany, of Connecticut, for insurance on the life of Walton Dwight. Dated August 21, 1878. 806 Amount applied for $10,000. Term—Life. “I, Walton Dwight, of Windsor, County of Broome, State of New York, being desirous of af- fecting an insurance with the Aetna Life Insurance Company in the sum of $10,000 upon my life, dur- ing the whole term of life participate, do hereby declare and warrant that my age next birthday will be 41 years ; that I am now in good health, of sound body and mind and do usually enjoy good health ; that the following answers and statements are cor- rect and true, in which I have not concealed, with- held, or misrepresented any material circumstance relating to the past or present state of my health, habits ofklife or conditions which may render an in- surance on my life more than usually hazardous, or with which the Directors of said Company ought to be made acquainted ; and I do hereby agree and warrant that the answers given to the following questions and the accompanying statement with this declaration shall be the basis and form part of the contract or policy between me and the Company and if the same be in any respect false or fraud- ulent that the policy shall be void, and all premi- ums which may have been paid on account thereof shall be forfeited to said Company.’” The policy to be for the benefit of Frank Dwight, of Windsor, son and only child. The business of the life proposed for assurance is stated to be “ Real estate and grain dealer.” “Q. 12. Has the party ever had any of the fol- lowing diseases : answer yes or no opposite each,” —the list including asthma, bronchitis, consump- tion, spitting of blood. To each of these questions the answer is “No.” “Q. 16. Whether the party has had during the last seven years any disease or severe sickness; if so, state the particulars of each case and the name of attendant physician. See margin.” In the margin is written, “ When in Chicago last 2416 2417 2418 807 spring arid while becoming acclimated, was ill about three weeks ; stomach troubled me and had slight muscular rheumatism ; Doctor Allan Brooks prescribed for me when I entirely recovered and have been well ever since.” In answer to “Q. 23,” Dr. J.G.Orton, of Bingham- ton, N. Y., is stated to be the family physician of Dwight, or the one whom he has usually employed or consulted. (Signed) Walton Dwight. 2419 Exhibit 37 [Read at page 174.] Application to the National Life Insurance Com- pany of the United States of America, Washington, I). C., for insurance on the life of Walton Dwight. Dated August 22, 1878. Amount applied for $10,000. Kind of policy, ordinary life. Benefit of heirs and assigns. Premium $ to be paid during life, quar- terly. The occupation of the applicant is stated to be “ Real estate and grain dealer.” “ Q. 5. Have you now'or have you ever had any of the following diseases ; answer yes or no op- posite each,”—the list of diseases includes diseases of the lungs, bronchitis, asthma, pleurisy, pneu- monia, blood-spitting—“ State the particulars, character, and duration of any of the foregoing dis- eases if you have had any, whether there was a per- fect recovery. To each of these questions the ap- plicant answers “ No.” And under the general question as to the particulars, character, and dur- ation of any of these diseases, he answers, “Last spring in changing from here to Chicago I was gen- 2420 2421 808 erally out of sorts ; had rheumatism and troubled with my stomach ; was sick some three weeks. Was prescribed for by Dr. Allan Brooks some three or four times when I fully recovered and have been well since. In 1869 I had something like dys- pepsia, nothing serious, no trouble.” To all these questions embraced in Q. 5, the applicant answers “ No, except as above.” “ Q. 7. Have you ever had an habitual cough ? A. No. Q. 21. Has the applicant reviewed the answers to the above questions and is he sure they are correct ? A. Yes, sir. It is hereby declared and warranted that all and every of the answers above made are true and that all the conditions of this application shall be part of a consideration precedent if the insurance policy and contract applied for shall be issued ; and if there be anything in this application incor- rect or untrue, then any policy granted upon it shall be null and void, the taking or receipt of premium by the company, or notice to the con- trary notwithstanding.” (Signed) Walton Dwight. 2422 2423 Exhibit 3§. [Read at page 174.] Application to the Brooklyn Life Insurance Com- pany, for insurance on the life of Walton Dwight. Dated August 30, 1878. Amount applied for, $10,000. Kind of policy, ordinary life. Benefit of heirs and assigns. Premium, $43, payable quarterly. The occupation of the applicant is stated to be real estate and grain dealer. 2424 809 Q. b. “Is there now any insurance on your life ? A. Yes, sir; M. Benefit, $10,000; Home, $5,000; Northwestern, $10,000.” “If so, state the company and amount.” The answer is,.continued : “Con- necticut Mutual, $15,000; New-York Mutual Life Company, $10,000; New-York Life, $10,000; Ger- mania, $15,000. “ It is hereby declared that the above answers to the foregoing questions—also to those made ro the medical examiner—are warranted to be true; and it is acknowledged and agreed by the undersigned that the said statements shall be a part of the con- tract for insurance, and also that any untrue or fraudulent answer, any suppression of facts in regard to the person’s health or habits in answering the foregoing questions, or neglect to pay the pre- mium on or before the day it becomes due, will render the policy null and void and forfeit all payment made thereon, except as provided in the policy.” (Signed) Walton Dw7igiit. On the next page, “ Statement to medical exam- iners,” the question appears : “Q. 3. Have you ever been predisposed to or had any of the following diseases or infirmities? A. No. Q. Have you either now? A. No.” Following is a list, an answer being put to each particular disease referred to. The list includes asthma, bronchitis, habitual cough, consumption, pneumonia, inflammation of the kings, pleurisy, spitting or raising of blood, or other hemorrhage.” To each one of these questions the applicant answers “No.” “ Name and residence of your medical attendant ? A.-Dr. J. G. Orton, Binghamton, N. Y. I hereby further declare that I have read and understand all the above questions put to me by the medical examiner, and the answers thereto, and 2425 2426 810 that the said are warranted by me to be true, and that I am the same person described as above.” (Signed) Walton Dwight, Person examined. 2428 Exhibit 39. [Read at page 174.] Application to tlie Homeopathic Mutual Life In- surance Company of New-York, for insurance on the life of Walton Dwight. Dated August 30, 1878. Amount applied for, $5,000. Term of policy ; common life. Premium, $52.41, to be paid quarterly. Benefit of, heirs and assigns. Date of the commencement of risk, “When ap- proved by the company.” In answer to Q. 6, “Is there now any insurance on your life?” (B. if so, in what company and for what amount) the applicant answers, “ Connecticut Mutual, $15,000; Mutual Life, $10,000; New-York Life, $10,000 ; Germania, $15,000; North Western, $10,000 ; Manhattan, $10,000.” Q. 8. “Have you ever had or been predisposed to any of the following diseases ; answer yes or no opposite each ?” The list to which the question relates, includes bronchitis, habitual cough, in- flammation of the lungs, spitting blood. As to each of these questions on the subject of diseases, the answer is, “No.” “ What are the particulars, character and dura- tion of the diseases which you have had ? A. Last spring in changing from here to Chicago I was generally out of sorts; had rheumatism and trouble with my stomach ; was sick some three weeks ; was prescribed for by Dr. Allan Brooks, 2429 2430 811 of Chicago, some three or four times when I was wholly recovered, and have been well ever since. “ In 1869 I had something like dyspepsia, but nothing serious ; no trouble since.” To all the questions embraced under the head Q. 8, the applicant answers “No ; only as above.” Q. 21, “ What system of medical treatment do you employ when ill ? A. Have employed Dr. T. L. Brown in family ; no special system person- ally. Q. 22. “Has any material fact bearing upon your mental or physical condition or family history been omitted in the foregoing questions ? if so, what? A. No.” “It is hereby affirmed, declared and warranted by the undersigned, that the above are fair and true answers to the foregoing questions, and it is stipulated and agreed by the undersigned that the above statements shall form the basis for the con- tract for insurance, and also that any untrue or fraudulent answers—any suppression of facts in regard to the person’s health, or neglect to pay on the day it becomes due—will render the policy null and void, and forfeit the payments made thereon, except as provided in the policy. (Signed) Waltox Dwight. 2431 2432 Exhibit 40 [Read at page 174. J Application to the State Mutual Life Insurance Company of Worcester, Mass., for insurance on the life of Walton Dwight. Dated September 2d, 1878. Amount applied for $10,000. Benefit of self. Premium payable quarterly. Q. 12. “Specification D. Are you now, or have^ 2433 812 yon ever been, engaged in the manufacture or sate of beer, wine, or any other intoxicating liquor? A. No ; except kept a hotel where liquor was sold by the package ; no bar. Q. 13. Have you had any of the following dis- eases : answer yes or no to each one ?” The list includes bronchitis, pleurisy, inflammation of the lungs, consumption, spitting blood, habitual cough —as to each of these the applicant answers “No.” To the list of diseases is added, “ If you have, state particularly the character and duration of such diseases.” In answer to this inquiry the applicant says, “ I never had any serious sickness, except when in Chicago last spring while becoming acclimated I was ill for aboutthree weeks ; stomach troubled me ; was lame, supposed to be muscular rheumatism. Dr. Allan Brooks prescribed for me three or four times when I entirely recovered and have been per- fectly well ever since.” Q. 27. “Have you by yourself or by an agent, ever made any proposal or application to any com- pany or to the agent of any company for an insur- ance upon your life, upon which a policy has not been granted ? A. No.” Q. 28. “ Have you carefully read the above ques- tions and answers before signing this application l A. Yes.” “ And I do hereby agree that this declaration and the answers given to the foregoing questions and to the questions in the medical certificate, and the statements made in this application and in said medical certificate, shall be the basis and form part of the contrsfct between me and this company, and that if the same be not in all respects true and correctly stated the policy shall be void.” (Signed) Walton Dwight. 2434 2435 2436 813 [Read at; page 174.] Application to the Manhattan Life Insurance Company of New-York for insurance on the life of Walton Dwight. Dated September 3d, 1878. Amount applied for $5,000. Term, life. Benefit of heirs and assigns. Premium payable quarterly. Occupation of, applicant is stated to be “real estate and grain dealer.” Q. 7. “ State the employment he has been engaged in ; what has been the effect of these employments upon his health ; if he is a merchant or manufact- urer, say in what line or business ; is he engaged in any way in the retailing of alcoholic liquors? A. Real estate and grain dealer always ; no bad effect on health.” As to question on the subject of retailing alcoholic liquors the answer is “ No.” Q. 13. “Has he had since childhood’’—among a list of diseases, “asthma, consumption, spitting of blood, and if so which ? A. Last spring in changing from here to Chicago I was generally out of sorts ; had rheumatism and trouble with my stomach ; was sick some three weeks ; was pre- scribed for by Dr. Allan Brooks of Chicago some three or four times when was wholly recovered and have been well since. In 1869 had something like dyspepsia but nothing serious} no trouble since.” To all the questions on the subject of diseases the answer is “ no, except as above.” Q. 18. “ Has he an habitual cough or any disease or is any disease suspected ? A. No.” Q. 27. “If now insured state in what company or companies and the amount in each ? A. Connec- ticut Mutual $15,000; New-York Life $10,000; Equitable $10,000; Washington $10,000; Man- hattan $10,000.” Exhibit 41. 2437 2438 2439 814 Q. 28. “Has application for insurance on his life ever been declined or postponed, or lias he ever been advised not to apply for insurance in any other company, by any officer, examiner, agent or, solicitor for such company ? If yes, with what company? A. No.” At the top of the sheet is the following : “ The applicant will state definitely, for the information of the directors, in order that they may determine upon the application, any circum- stances or fact in relation to the present or past state , of health of the said Walton Dwight and which circumstance is not included in the foregoing statements.” In answer to which is the following : “No statement except as above.” (Signed) Walton Dwight. , Following, which is the further agreement signed by Walton Dwight, in which appears the following “ I, Walton Dwight, do hereby declare and war- rant that his age next birthday wall be forty-one ; that he is now in good health and lias usually en- joyed good health; that he is not addicted to,, habits of intemperance, or other habits tending to; shorten life, and that the preceding answers and, annexed statements are correct and true, in which is not concealed, withheld or unmentioned any cir- cumstance in relation to the past or present state of his health, habits of life or condition which may render an insurance upon his life more than usually hazardous, and with which the directors of said company ought to be made acquainted * * * and I hereby further agree that the preceding an- swers given to the annexed questions and the accom- panying statements, and this declaration shall be the basis and form part of the contract or policy, between me and the said company, and if the same be not in all respects true and correctly stated, the said policy shall be void; and all moneys which 2440 2441 2442 815 may have been paid on account thereof shall be forfeited to the company.” (Signed) Walton Dwight. Exhibit 42. 2443 [Read at page 174. J Application to the Metropolitan Life Insurance Company for insurance on the life of Walton Dwight. Dated September 4, 1878. Amount applied for $10,000. Term, life. Benefit of, heirs and assigns. Premium payable, quarterly. The occupation of the applicant is stated to be real estate and grain dealer. Q. (By Medical Examiner') >7. Has the said life now or has he ever had any of the following diseases ? Separate answers required to each query.” The list referred to includes consump- tion, spitting blood, dyspepsia and rheumatism. As to consumption the answer is “ No”; to spit- ting blood, “No”; to dyspepsia, “Yes”; to rheumatism, “Yes.” And in answer to the direc- tion, if he has had one or more of the above dis- eases, to state full particulars, he answers, “ Slight dyspepsia in 1869 ; fully recovered.” At the foot of the questions is the following : “I hereby declare that I have given true answers to all questions put to me by the medical examiner ; that they agree exactly with the foregoing, and that I am the same person described in the accom- panying application, and whose signature is ap- pended to the declaration and warranty herewith.” On the application proper, in answer to Q. 8, “In case any other than the person proposed has filled in this application, has the said person read 2444 2445 816 over the answers ? Does he fully adopt them as his own? And does he understand the plan of in- surance he has selected ? A. Yes.” The following is the declaration : “It is hereby declared and warranted that all the answers to the foregoing questions, and to those in the Examiner’s report herein, are fair and true, without omission, concealment or mental reservation, and it is acknowledged and agreed by the undersigned, that they may and shall form the basis of the contract of insurance ; and, also, that any untrue or fraud- ulent answer, any suppression of facts in regard to the health or in regard to any pecuniary interest which the insurer may have in the life of the person proposed, any violation of the covenants, conditions or restrictions in the policy—if one be issued—any neglect to pay the premium on or before the day it becomes due will render the policy null and void. (Signed) Walton Dwight.” 2446 2447 Exhibit 43. [Read at page 174.] Application to the Knickerbocker Life Insurance Company of New-York, for insurance on the life of Walton Dwight. Dated September 6th, 1878. Amount applied for, $5,000. Kind of policy, ordinary life, mutual plan with profits. Benefit of heirs and assigns. Premium payable quarterly. Occupation is stated to be real estate and grain dealer always. “Q. Former occupation or employment,if changed during the last ten years? A. No change.” 2448 817 Following this is a memorandum with a hand pointing to it, as follows : “ In giving the occupa- tion or employment, the particular branch of business or the actual trade must be stated ; a general statement, mechanic or merchant, will not be sufficient.” “ Q. 6. Are you insured in any other company? A. Yes. Q. If so give name of each company and amount in each ? A. Mutual Benefit, $10,000 ; New-York Life, $10,000 ; Northwestern, $15,000 ; Washington, $10,000 ; Germania, $15,000 ; Manhattan, $15,000 ; Globe, $15,000; Home, $5,000; Etna, $10,000 ; National U. S., $5,000 ; Brooklyn, $5,000 ; United States Life, $10,000 ; Union Mutual, $10,000 ; Equit- able, $50,000.” “ Q. 8. Are you engaged in the manufacture or sale of intoxicating liquors ? A. No. ” Q. Have you ever been so engaged? State full particulars. A. No.” Questions to be answered by the Medical Exam- iner. “ Q. 2. Has any application for insurance upon your life ever been made to any company upon which a policy has not been granted ? Has any unfa- vorable opinion upon the insurableness of yrourlife ever been given by a physician ? In either case state full particulars ? A. Yes, sir ; by the Phoenix of Hartford, on account of family record. Only com- pany, as far as heard from out of applications for about $200,000. “Q. 4. Have you been subject to or had any of the following disorders or diseases”—In the list which follows are asthma, bronchitis, habitual cough, pleurisy, inflammation of the lungs, spit- ting or coughing blood, consumption, or any trouble referable to the lungs” ? To this the ap- plicant answers “No, except last spring in changing from here to Chicago I was generally out of sorts; had rheumatism and trouble with my stomach; 2449 2450 2451 818 was sick some three weeks ; was prescribed for by Dr. Allan Brooks some three or four times when I was wholly recovered, and have been well since. In 1869 I had something like dyspepsia ; nothing serious. No trouble since.” “ Q. 13. How long is it since you were attended by a physician, or have professionally consulted one, and for what disease % A. See answer to number 4.” “Q. Give the name and residence of that physician, and that of your usual medical ad- viser % A. Dr. J. G. Orton, Binghamton, N. Y.” At the foot of the examination is the following : “It is hereby declared and agreed that all state- ments and answers to the printed questions written upon forms A and B, which, together with these declarations and agreements, constitute an applica- tion to the Knickerbocker Life Insurance Company of New-York for an insurance of $5,000 upon the life of Walton Dwight are offered to the said com- pany as a consideration for the contract applied for. Each of which statements and answers, whether written by his own hand or not, every person whose name is hereto subscribed adopts as his own, admits to be material, and warrants to be full, complete and true, and to be the only state- ments given to the company in reply to its in- quiries, and upon which, should any insurance applied for be granted, the company’s contract will be founded, and the application is submitted to the said company with the following express covenants and agreements : That it will constitute no contract of insurance until a policy shall have been issued and delivered by the said company, and the first premium there- on actually paid, during the continuance of the life proposed for insurance in the same condition of health as described in the application.” (Signed) Walton Dwight. 2452 2453 2454 819 Exhibit 44. [Read at page 174.] Application to the Provident Savings Life As- surance Company of the City of New-York for the insurance of the life of Walton Dwight. Dated August 28, 1878. Amount applied for, $10,000. Kind of policy yearly renewal life. Benelit of self, heirs and assigns. Premium payable quarterly. The occupation of the applicant is stated as real estate and grain dealer. “Q. 5. Has any company ever declined to grant assurance of your life ? A. No. Q. If so, what company, and how long since ? A. None. Q. Has any opinion ever been sought or con- sultation ever been held with any officer of any life insurance company, or any physician or surgeon, as to whether your life was safely insurable ? A.' Have now applications pending in New-York Life, New-York Mutual, Connecticut Mutual, North- western, $60,000. Q. 11. Have you reviewed the answers to the above questions, and are you sure that they are correct ? A. Yes. It is hereby affirmed and declared by Walton Dwight, the applicant above named, and also by the person whose life is proposed for assurance, that the answers to all of the above questions, also those made to tlie Medical Examiner, are true and correct, and that no intentional omission, concealment or mental reservation has been made of any material fact or circumstance relating to the past and present life, habits or condition, or the family history of the above named Walton Dwight. It is hereby expressly stipulated and agreed that the above application and these declara- tions shall form the basis of a contract between the 2455 2456 2457 820 above named persons and the said Provident Sav- ings Life Assurance Company of New-York, and if any misrepresentations, fraudulent or untrue answers have been made, or if any facts which should have been stated to the society shall have been suppressed therein, or if any violation of the covenants, conditions or restrictions of the policy— should one be issued—should occur, or any omis- sion or neglect to pay any of the premiums on or before the days when due take place, that then in either event the said policy shall become and be null and void.’’ Statement to the Medical Examiner. “ Q. 3. Have you ever had any of the following diseases. Answer yes or no opposite each.” The list includes consumption, pneumonia, pleurisy, bronchitis, spitting blood, habitual cough, asthma —to each of which the answer is “No.” Opposite these answers the applicant is obliged to state the number of attacks and character and duration of all the diseases which he has had. The answer is “Slight, rheumatism last spring in Chica- go, 111.,—muscular. Entirely well of it since.” “I hereby further declare that I have read and un- derstand all the questions put to me by the Medical Examiner and the responses thereto, and the same are warranted by me to be true, and that I am the same person described as above.” (Signed) Walton Dwight. 2458 2459 2460 Exhibit 45. [Read at page 174.] Application to the Equitable Life Assurance So- ciety of the United States for the insurance of the life of Walton Dwight. Dated August 20, 1878. 821 Amount applied for $40,000. [Note.—The amount of the policy issued on this application was $40,000.] Kind of policy life. Benefit of self. Premium payable quarterly. The occupation of the applicant is stated to be real estate and grain dealer; he is also stated to be already assured in this company for $10,000. “ Q. 16. Has the person now or has he ever had any of the following disorders or diseases ; if yes, state disease, duration and severity of illness ? A. No.” Among the diseases specified are pleurisy, asth- ma, inflammation of the lungs, spitting or cough- ing of blood, consumption—to each of which the answer is “ No.” Opposite these answers is the following memo- randum : “Last spring, Avhile becoming acclimated in Chica- go, I was sick for some three weeks ; was lame ; had something like muscular rheumatism, and troubled with stomach ; was prescribed for three or four time's by Dr. Allan Brooks, when I was en- tirely recovered, and have been well since. “ Q. 26. Name and residence of physicians whom the person has ever consulted, when and for what they were consulted ; does the person expressly waive all provisions of law forbidding any person who has attended him from disclosing information which he thereby acquired? A. Dr. J. G. Orton of Binghamton, N. Y., four years ago ; Allan Brooks of Chicago, 111., last spring—and as to the waiver the applicant answers “ Yes.” “ This risk as approved and recommended by me. J. G. Orton, Agent.” (Signed) Walton Dwight. 2461 2462 2463 822 Exhibit 46. [Read at page 174.] Application to the Union Central Life Insurance Company of Cincinnati, Ohio, for insurance for the life of Walton Dwight. Dated September 7, 1878. Amount applied for $5,000. Kind of policy ordinary life. Benefit of heirs or assigns. Premium payable quarterly. In answer to “ Q. 8, occupation ? Full particulars regarding the applicant’s business or trade must be given. If a mechanic state in detail all the various kinds of work performed ; if engaged in more than one occupation specify each in detail”—the answer is “ Have always been dealer in real estate and grain.” Statement to the Medical Examiner. “ Q. 6. Have you ever had any of the following diseases or as far as you know any symptoms there- of ; answer each question yes or no.” The list which follows contains asthma, consumption, bron- chitis, spitting blood—to each of which the appli- cant answers “ no.”—“ Or any other illness, local disease or other infirmity ? A. No.” “ Q. Give full particulars of duration of such? A. Last spring in Chicago, I had rheumatism and trouble with my stomach ; was generally out of sorts for some three weeks ; wras prescribed for by Dr. Allan Brooks of Chicago three or four times when I was wholly recovered and have been well since. In 1869 I had something, dyspepsia ; no- thing serious. Had no trouble since.” To all the questions embraced in this question 6, the appli- cant answers, “no ; only as above.” “ It is hereby declared and warranted by the undersigned, the applicant above named, and also the person whose life is proposed for assurance, that 2464 2465 2466 823 the answers to all of the above questions and to the questions asked or to be asked by the medical ex- aminer of the person whose life is proposed for as- surance and filled in or caused to be filled in by said examiner as agent of the undersigned for that purpose, are each and all true, full and correct as facts, and inasmuch as the issuing of each policy is decided by the officers- of the company at its office in the city of Cincinnati, and as they are to act only upon the printed and written statements and representations herein referred to and mentioned taken together, it is expressly agreed and stipulat- ed that no statement or information made or to be made or given to or to him by the person procur- ing or transmitting this application or to or to him by any other person, unless such statement or in- formation shall have been reduced to writing and presented to the officers of said company who are to subscribe said policy hereby applied for— if the same shall be issued—shall bind the said company or in any manner affect its rights, if any there may be, not so presented ; and that this application and this declaration and all the written or printed state- ments herein endorsed, made or subscribed by either of the said undersigned in anywise hereon shall form the basis of and be a part of the contract of insurance hereby applied for.” “ Q. 17. Do you understand all the written or printed statements upon this application including the statements made to the medical examiner or subscribed by you or that may be made by the per- son whose life is proposed for insurance and that may be subscribed by you or such person upon this page or on the other side? A. Yes. “ Q. 18. Do you agree that the same shall be deemed to be true, full and correct as facts upon the face of which as facts said company shall issue the policy hereby applied for—if one is issued— hereon, answer yes or no 1 A. Yes.” (Signed) Walton Dwight. 2467 2468 2469 824 Exhibit 47. [Read at page 174.] Application to the Manhattan Life Insurance Company of New-York, for insurance of the life of Walton Dwight. Dated September 9, 1878. Amount applied for $5,000. Term, life. Benefit of Frank Dwight, only son and child. Premium payable quarterly. The occupation of the applicant at the present time is stated to be real estate and grain dealer. “ Q. 7. State the employments he has been en- gaged in; what has been the effect of these em- ployments upon his health ; if he is a merchant or manufacturer, say in what line of business ? Is he engaged in any way in retailing alcoholic liquors ? A. Real estate and grain dealer ; no bad effect on health. “Q. 13. Has he had since childhood”—various diseases specified, among which are asthma, con- sumption, spittings blood, etc.? “ A. Last spring- in changing from here to Chicago, I was generally out of sorts ; had rheumatism and trouble with my stomach ; was sick some three weeks ; was pre- scribed for by Dr. Allan Brooks, of Chicago, some three or four times, when I was fully recovered and have been well since. In 1869 I had something like diptheria, but nothing serious ; no trouble since.” And to all the questions embraced under this head- ing he answers “ No ; except as above.” “Q. 23. Name and residence of usual physical! or medical attendant to be referred to as to the state of his health ? A. Dr. ,T. G. Orton, Bing- hamton, N. Y. “Q. 24. Give the name of any physician who has been consulted or advised with at any time ; if more than one, give the address of each ? A. Dr. George Burr, Binghamton. 2470 2471 2472 825 “Q. 32. Have you read the answers to the pre- ceding questions and are you sure they are correct? A. Yes. “ Q- 33. Are you aware that any untrue statement or fraudulent allegation or concealment made in ef- fecting the proposed insurance will render the policy void, and that in such case all payments of premium made thereon will be forfeited? A 'Yes. “I, Frank Dwight, one of the persons named in this application and declaration, being desirous of effecting an insurance with the Manhattan Life In- surance Company upon the life of Walton Dwight, do hereby declare and warrant,” etc. . ; (Signed) Frank Dwight, Only son and only child by his father Walton Dwight. (Signed) Walton Dwight. The application is endorsed September 10, 1878. 2473 2474 Exhibit 48 [Read at page 176.] ! “ UNITED STATES LIFE INSURANCE COM- PANY, IN THE CITY OF NEW YORK. New-York, September 21st, 1878. Walton Dwight, Esq., Binghamton, N. Y. Dear Sir.—Your favor of the 11th inst. contains information in regard to your personal history, withheld from us in your application, on which our policy 42,120 was issued. The information is of a character that was specially inquired after in your application, and which, if given to us therein, 2475 826 would have caused us to decline issuing a policy on your life. We have no doubt that, recognizing, as you must, what our legal and equitahle rights are, and what our defense would be if the policy became a claim against us, that you would jirefer, as we would, to end the matter now. We there- fore notify you, that we do not and will not regard the insurance on your life as valid or binding on this company, and that we do, and will regard and treat the same as null and void ab initio; and for the purpose of making a peaceable adjustment of the matter, we request that you return to us policy 42,120, and the receipt, and upon its receipt we will forward you our check for the amount of the quarterly premium paid by you to Mr. Batchelder on said policy. Awaiting your early reply, We remain, yours truly, James Buell, PrestD 2476 2477 Exhibit 49. [Read at page 176.] “UNITED STATES LIFE INS. COMPANY IN THE CITY OF NEW YORK. New-York, Oct. 3, 1878. Walton Dwight, Esq., Binghamton, N. Y. Dear Sir.—We wrote you Sept. 21, 1878, request- ing the return to us of the policy issued by us under a misapprehension of facts, on the discovery of which afterwards, for the first time, we promptly notified you, and we have received no reply from you. We hereby demand the return to us of our policy, number 42,120, and the premium receipt 2478 827 with it, and hereby and herewith tender to you the full amount paid us on the policy by you as for the first quarterly premium. This will be handed you by N. B. Freeman, Esq., special agent of this company, for this purpose, who will accept from you, for us, our policy 42,120, and the receipt for the first quarterly premium, and hand you the above mentioned amount for the purpose of peacefully and harmoniously settling the matter referred to in our letter of September 21st, a copy of which letter we have furnished to Mr. Freeman. Yours very truly, James Buell, President.” 2479 Exhibit 50. [Read at page 178.] Binghamton, N. Y., Sept. 11, 1878. James Buell, Esq., Prest. United States Life Insurance Company. Dear Sir.—Yours of the 9tli duly forwarded to me here ; in reply, note covered simply what it explains. There is nothing in this spitting of blood, &c. About eleven years ago, I was for some time exploring timber land in Canada ; was much ex- posed, caught cold, and for some weeks coughed very hard. At times, I would strain severely ; it would start my nose bleeding, and sometimes I would start a little blood from mouth and throat. There was no affection of the lungs, nor never has been. Soon after this I took out some life insur- ance, and mentioned having spit blood from the mouth, throat and teeth. It was then of such recent date I deemed it proper to mention it in my then application. In taking out my present insur- ance, in answer to questions of spitting of blood, I 2480 2481 828 have invariably answered, no,—as there has never been, in the sense contemplated by the question, as I understand, and as I understood by my ex- aminers. If 1 am not a sound hinged man, I don’t believe there is one in the United States, and in all my application, I have insisted upon putting the worst side out, as to myself and family record. Hastily, yours, Waltoiv Dwight. P. S.—Unless blown up on a steamboat, smashed in a railroad accident, or meet with death in some such way, I think I bid fair to live long enough to give myself more trouble in meeting my premiums than you in any lung affection.” 2482 2483 2484 829 Exhibit 51. [Introduced at page 198.] 2385 ashstand. Hall 2486 Chimney. 2487 Sitting-Room. Front Door. 830 Exhibit 52. [Read at page 215.] The Western Union Telegraph Company. Dated Albany, N. Y., 26, 1878. Received at To N. W. Blanchard : If you haven’t delivered policy, please return it,, as I have received the following dispatch from the N. Y. Mutual. Return Wralton Dwight’s policy ; we prefer not to write on him. W. Frank Winship. 2488 Exhibit 53. [Read at page 215.] The Western Union Telegraph Company. Half Rate Message. New-York, Aug. 26, 1878. To W. Frank Winship, Agt. Union Mutual Life Ins. Co., Albany, N. Y. Walton Dwight’s policy in Union Mutual with others is delivered. What’s the matter? N. W. Batchelder. 2489 Exhibit 54. [Read at page 216.] The Western Union Telegraph Company. Half Rate Message. New York, Aug. 26, 1878. To John Dewitt, Preset Union Mutual Life Ins. Co., Boston, Mass. Have just received despatch from "Winship ag’t, 2490 831 at Albany, asking return of Walton Dwight’s pol- icy. Mr. Dwight has already settled his premium. What’s the matter? Answer immediately at St. Nicholas Hotel. N. W. Batchelder. 2491 Exhibit 55. [Read at page 217.] The Western Union Telegraph Company. Dated Binghamton, N. Y., Sept. 4th, 1878. To N. W. Batchelder, 71 State St., Albany, N. Y.: Will be in Binghamton the fifth and sixth. Come when you are all ready. Walton Dwight. 24921 Exhibit 50. [Read at page 217.] The Western Union Telegraph Company. Albany, Sept. 5th, 1878. To Col. Walton Dwight, c/o Spaulding House, Binghamton, N. Y. Will meet you at Binghamton on Friday on the two o’clock train. N. W. Batchelder. 2493 Exhibit 57. [Read at page 220.] Policy of insurance of the Brooklyn Life Insur- ance Company of New York ; No. 17,152 ; 832 amount, $5,000 ; date, 31st of August, 1878; insur- ing, the life of Walton Dwight for the benetit of the assured, his executors, administrators and as1 signs; premium, $43, payable quarterly. At the foot of the policy is this notice : “ No person, ex- cept the President or Secretary, is authorized to make, alter or discharge contracts, or waive forfeit- ures.” The consideration of the policy is stated to be representations made to them in the application for this policy, and all the statements respecting the person and family of the person whose life is hereby insured, submitted in writing by or for such person to said company, which application and statements are hereby referred to and made part of this contract ; and the sum of $45 to them payable by the assured, and a quarterly premium of $43 to be paid on or before the 31st of August, November, February and May, in each and every year during the continuance of the policy. This policy is issued and accepted by the assured upon the fol- lowing express conditions and agreements, and in the first subdivision is the following: “If any of the statements or declarations made in the first application for this policy, upon the faith of which this policy is issued, shall be found untrue, then, and in each and every such case, this policy shall be null and void. “3d. If the said premium shall not be paid on or before the date of pajmient mentioned above, at the office of the company, in the City of New- York, unless otherwise expressly agreed in writing, or to agents, when they produce receipts signed by the president or secretary or cashier, then, in every such case, the said company shall not be liable for the payment of the sum assured, or any part thereof.” Attached to the policy is a receipt in these words : “Brooklyn Life Insurance Company, Nos. 320 & 322 Broadway, New-York, August 31st, 1878, Walton Dwight. Policy No. 17,152 ; amount, $5,000; term, life; amount of quarterly premium, 2494 2495 2496 833 $43. Received payment, William Dutcher, Secre- tary. “ N. B. Agents must not deliver a policy un- til the premium is received, as no policy is in force until paid for.” Stamped upon it are the words : “Dated Sept. 4th, 1878. Brooklyn Life Insurance Company.” 2497 Exhibit 58, [Head at page■'220.] Policy of insurance of the Berkshire Life In- surance Company, No. 15,259. Term, life. Amount, $10,000. Date, 24tli August, 1878. Insuring the life of Walton Dwight for the bene- fit of his executors, administrators or assigns. Premium, $86.70, payable quarterly. The policy witnessetli that the company, in consideration of the representations made in appli- cation No. 15,259 ;—on which policy is this : kt This policy is issued, and in consideration of the sum of $86.70 to be paid by Walton Dwight on or before the 24th day of August, November, February and May, at noon in every year during the continuance of this policy, we insure the life of Walton Dwight in the sum of $10,000, for the term of life, payable to his executors, administrators or assigns.” Conditions, among others: “If the representa- tions made in the application which forms a part of this contract, and upon the faith of which this agreement is made, shall be found in any respect untrue, then, in every such case this policy shall be null and void ; also in case the said party shall not pay the said premium on or before the several days mentioned for the payment thereof, or shall 2498 2499 834 fail to pay when due any notes or other obliga- tions given for premium, or shall otherwise fail to comply with all or any of the terms of this con- tract, then, in every such case the company shall not be liable for the payment of any sum on ac- count of this policy, and it shall cease and ter- minate.” Attached to this policy is a receipt in the follow- ing form : “ Office of the Berkshire Life Insurance Company, Pittsfield, Mass. August 24, 1878. Due this day, as per margin. Premium on Policy No. 15,259, on the life of Walton Dwight, for three months from this date. N. W. Batchelder, Solici- tor, at Albany, N. Y., hereby authorized to receive the amount of said premium, and give receipt for the same. William R. Plunkett, President. N. B.—Agents are not allowed to waive, change or alter in any form or manner, the terms or con- ditions of policies, or to reduce the terms, and no agent has authority to make collections on account of the Company, except upon receipts, in printed form issued from the 'home office, in Pittsfield, Mass, and signed by the President or Secretary.” In the margin is this : “ Policy No. 15,259, cash premium, $86.76.” Below which is, “Received amount as above the 6tli day of September, 1878. N. W. Batchelder.” Printed on the back of form of receipt is this: “By virtue of this policy the assured is hereby notified that he is a member of the Berkshire Life Insurance Company, and that the annual meetings of said Company are holden each year, at 2 p. m.” 2500 2501 2502 Exhibit 59. [Read at page 221.] Policy of Insurance of the Homeopathic Life Insurance Company of the City of New-York. 835 No. 10,592. Amount $5,000. Date the 4tli day of September, 1878. Insuring the life of Walton Dwight for the benefit of his legal representatives. Premium $52.41. Payable quarterly. ‘‘In considerations of the representations, which representations it is hereby agreed shall have the force and effect of warranties, made to it in the ap- plication for this policy, which is hereby made a part of this contract, and of the sum of $52.41 to it in hand paid by Walton Dwight, and of the quarterly payment of the like amount to the Company, or its authorized agent, or the production by him of receipts signed by the President or Secretary on or before the 1st days of December, March, June or September during every year during the continu- ance of this policy until the 1st day of June in the year 1898 inclusive, does insure the life of Walton Dwight, Real Estate and Grain Dealer, of Wind- sor, in the County of Broome, in the State of New- York, in the amount of $5,000, for the term of his natural life, commencing on the 1st day of Septem- ber, 1878 ; and the said company does hereby pro- mise and agree to pay the amount of the said in- surance at its office in the City of New-York, to the said Walton Dwight’s legal representatives, in thirty days after due notice and proof of death of the said party whose life is hereby insured. The balance of the year’s premium, if any, being first deducted therefrom. This insurance, after three annual premiums shall have been paid thereon, shall not be forfeited nor become void, by reason of the non-payment of any subsequent premium, but the party insured shall be entitled to receive a paid-up policy for as many twentieth parts of the original amount hereby assured, as there shall have been complete annual premiums at the time when such default shall first be made, provided that this 250a 2504 2505 836 policy shall be duly surrendered, and such paid up policy applied for within sixty days after said de- fault. Such paid-up policy shall be without par- ticipation in the future profits of the Company. It is hereby declared to be the true intent and meaning of this policy, and the same is accepted by the assured upon these express conditions, that in case the said party whose life is hereby assured, shall be personally engaged, &c.” Among the conditions is the following : “If any of the material statements or declara- tions made in the application for this policy, shall be found untrue, then this policy shall be null and void. “Agents of the Company are not authorized to bind the Company in any way, their duties bjing simply the reception and transmission of applica- tions and premiums, under the rules and instruc- tions of the Company. “ This policy is made and accepted upon the conditions herein contained, and is not binding upon the Company until the premium is actually paid to, and received by the Company, or author- ized agents.” 2506 2507 Exhibit 60. [Read at page 221.] Policy of insurance of the Manhattan Life Insur- ance Company of New-York. No. 43,476. Amount, $5,000. Date, August 24, 1878. Insuring the life of Walton Dwight. Payable to the executors, administrators or assigns of the assured. Premium, $43, payable quarterly. “The iiolicy witnesseth that ’ the Company, in 2508 837 consideration of the representations made to them in the application for this policy, and in the state- ments respecting the person, or family of the person whose life is hereby insured, which applica- tion and statements are hereby referred to and made a part of this contract, and are to be mutually regarded as warranties, and upon the faith of which applicaton, statements and repre- sentation, this policy is issued, and of the sum of $43 to them in hand paid, and of the further sum of $43 to be paid at their office in the city of New- York, on or before the 24tli day of November, February, May and August, at noon, in every year, assure the life of Walton Dwight in the sum of $5,000, for the term of his natural life. • “ This policy is executed and accepted upon the following express conditions : '“ 1st. That this policy shall not take effect until the first premium hereinbefore specified shall have been paid, in cash, during the lifetime of the person whose life is hereby insured, and that if any subsequent premiums on this policy shall not be paid, in cash, on or before the date when due, then this policy shall cease and determine. “2d. That no premium hereon shall be deemed paid unless it be paid in cash, and a renewal receipt duly signed by the president or secretary of this Company shall have been given therefor at the time of such payment. * * * “9th. That no agent of this Company shall make any contract binding this Company, nor alter nor change any condition, nor waive the forfeiture of this policy.” 2509 2510 2511 Exhibit 61. [Read at page 221.] Policy of insurance of the Manhattan Life Insur ance Company of New-York. 838 No. 43,487. Amount, $5,000. Date, 27th of August, 1878. Insuring the life of Walton Dwight. Payable to the executors, administrators or assigns of the assured. Premium, $43, payable quarterly. Kind of policy, plain life. “ The policy witnesseth that the Company,in con- sideration of the representations made to them, in the application for the policy, and in the statements respecting the person, or the family of the person, whose life is hereby insured, which application and statements are hereby referred to and made a part of the contract, and are to be mutually regarded as warranties, and upon the faith of these applica- tions, statements and representations, this policy is issued, and the sum of $43 to them in hand paid, and of the further sum of $43 to be paid at their of- fice in the city of New-York, on or before the 27th day of November, February, May, and August, at noon in each year during the continuance of this policy, assuring the life of Walton Dwight for the amount stated.” The conditions in this policy are precisely the same as in the last exhibit. 2512 2513 Exhibit 62. [Read at page 221. J Policy of Insurance of the Manhattan Life Insur- ance Company of New-York. No. 43,506. Amount, $5,000. Dated September 4th, 1878. Insuring the life of Walton Dwight, payable to the administrators, executors or assigns of the as- sured. 2514 No. 43,506. 839 Premium $43, payable quarterly on the fourth days of September, March, June and December. Kind of policy, plain life. The terms and conditions of this policy are pre- cisely the same as in the last policy of the Com- pany. Premium receipt attached to the policy. “ Re- ceived, Binghamton, New-York, September 10, 1878, of H. C. Hermans, for Walton Dwight, $86, payment in full for first quarterly premium of two $5,000 policies in the Manhattan Life Insurance Company. (Signed) Slosson & Monroe, Agents 2515 Exhibit 63. [Read at page 221. j Policy of insurance of the Metropolitan Insur- ance Company of New-York. No. 61,246. Amount, $10,000. Dated, September 1, 1878. Insuring the life of Walton Dwight, payable to the assured, or executors, administrators and as- signs. Premium, payable quarterly, $86. “ This policy witnesseth that the Company, in consideration of the representations and agreements in the application for the policy which is hereby referred to, and made a part of this contract, and upon the payment of the sum of $86 by the as- sured, Walton Dwight, and of the quarterly annual payment of the like amount, to be paid on or be- fore twelve o’clock noon, on the first days of Sep- tember, December, March and June, in every year during the continuance of the policy, insuring the life of Walton Dwight in the amount of $10,000, 2516 2517 840 payable to the assured aforesaid, or executors, ad- ministrators and assigns. This policy is issued by said Company, and accepted by said assured, on the following express conditions and agreements.” Among the conditions is the following: “Nor shall this policy, although delivered, take effect or be in force, until the whole amount of the first premium is actually paid in. the lawful currency of this country, during the lifetime of the person in- sured, and while he is in sound health, and no of- ficer or agent of the said Company has power or authority to deliver this policy until such actual payments, nor to waive the actual payment of said premium, on the delivery of this policy.” “ Should any of the statements or declarations which are hereby declared warranties made in the application, and on the faith of which this policy is issued, be found untrue, then in either such case this policy shall become, and be null and void.” Attached to the policy is the following receipt : Metropolitan Life Insurance Company ; three months’ premium, due September 1st, 1878; re- ceived from the owner of policy No. 61,246, $86, which continues said policy in force until the first day of December, 1878, at noon, in accordance with its terms and conditions ; not binding upon the company until the premium is paid.” And this receipt is signed by P. K. Burhans, agent. Signed, John R. Hegeman, Vice-President, and countersigned by P. K. Burhans.” 2518 2519 2520 Exhibit 64. [Read at page 221.] Policy of insurance of The Mutual Benefit Life Insurance Company of New Jersey, No. 92,738. Amount, $5,000. Bate, 1st of August, 1878. 841 Insuring the life of Walton Dwight. Payable to the assured, executors, administrators or assigns. Premium, $83.30, payable semi-annually. “ This policy witnesseth, that the company, in consideration of the representations to them in the application for the policy, and of the sum of $83.30, to them in hand paid by Walton Dwight, and of the semi-annual premium of $83.30 being paid on the 1st days of August and February of every year, insures the life of Walton Dwight in the sum of $5,000 for the term of life. And it is also understood and agreed by the within assured, to be the true intent and meaning hereof ; that if the declarations made by or for the said assured, and bearing date on the 1st day of August, 1878, and upon the faith of which this agreement is made, shall be found in any respect untrue, then, and in such case, this policy shall be null and void. Or in case the said premium shall not be paid on or before the several days herein- before mentioned for the payment thereof, at the office of the company, in the city of Newark, or to* their agents, when they produce receipts signed by the president or treasurer, then, and in every such case, the said company shall not be liable for the- payment of the sum insured,or any part thereof,and this policy shall cease and determine; but, after two or more full years of premium shall have been paid thereon, the company shall issue a paid-up policy, insuring an equitable sum payable at death, provided application shall be made for the same, and the policy and profits thereon shall be surren- dered within three months after its lapse. This policy does not take effect until the premium is paid. Nor are agents authorized, to alter or dis- charge contracts or waive forfeitures, or grant permits. 2521 2522 2523 842 Exhibit 65. [Read at page 221.] Policy of insurance of the Mutual Benefit Life Insurance Companj7 of New Jersey, No. 92,764. Amount, $5,000. Date, first day of August, 1878. Insuring the life of Walton Dwight, for the benefit of the assured, his executors, administra- tors or assigns. Premium, $83.20. Payable semi-annually, on the first days of Au- gust and February. This policy contains the same conditions precise- ly as the last preceding exhibit. 2524 Exhibit 66 [Read at page 221.] Policy of insurance of the National Life In- surance Company of Montpelier, Vermont, No. 1,132. Amount, $10,000. Dated August 23d, 1878. Insuring the life of Walton Dwight, for the benefit of his son, Frank Dwight. Premium $84, payable quarterly. “This policy witnesseth, that the Company, in consideration of the premium of $84 paid by Walton Dwight, being the assured in this policy, and of a like sum to be paid to them by the assured on or before the 23d day of August, November, February and May in every year during the continuance of the policy, insures the life of Walton Dwight, for the benefit of his only son, Frank Dwight, to the amount of $10,000, for the term of his natural life.” It contains the following conditions, among 2525 1,132. 2526 843 others: “It is also a condition of this policy, that if the statements made in the application for this policy on the part of the said assured to said Com- pany as the basis of said contract shall be found in any respect untrue, which is material to the risk, then this policy shall be null and void.” “ It is a further condition of this policy, that this Company cannot be held or considered as having any notice or knowledge of any answers, state- ments or declarations, which are not contained in the application made for this policy, and in case the premium shall not be paid to the said com- pany on or before the day therein mentioned for the payment of the same, and in the lifetime of the assured, then, in every such case, the Company shall not be liable for the payment of the sum in- sured, or any part thereof, and this policy shall cease and determine.” With the proviso following: After three or more annual premiums have been paid, the holder shall be entitled to a paid up policy for as many •dollars as have been paid.” 2527' 2528 Exhibit 67. [Read at page 221.] Policy of insurance of the New England Mutual Life Insurance Company, Boston. No. 60,772. Amount, $10,000. Date, September 2d, 1878. Insuring the life of Walton Dwight for the benefit of his executors, administrators or assigns. Premium, $826, payable annually. “ This Company,in consideration of the payment of $326 this day made by Walton Dwight, being the assured in this policy, and of the punctual payment of a like sum to be made in the same 2529 844 manner to them at their office in Boston, or to their agent duly authorized, on or before the second day of September in every year during the continuance of this policy, do promise and agree to pay at their office in Boston the amount of $10,000 to the said Walton Dwight, his executors, administrators or assigns, within sixty days after due proof of his death.” The conditions stated, upon which the policy is issued, contain the following: “That the state- ments and declarations made by and on behalf of the assured in the application for this policy, which are hereby referred to as the basis of this contract, and are a part of it, and upon the faith of which it is issued, are in all respects true, and that no fact has been repressed relating to the health or cir- cumstances of the insured affecting the interests of said Company, or other inducement to accept the risk. This policy shall not take effect until the first premium is actually paid, and agents are not authorized to deliver policy to the assured until such payment has been made. General agents ap- pointed directly by the Company are alone author- ized to receive premiums at the date when payable, and not afterwards, but not to give credit, or make, alter or discharge contracts, or waive forfeitures. All premiums due under this policy shall be paid in advance, but any annual premium may, at the election of the assured, be j>aid in cash, either in one sum or in semi-annual or quarterly instalments, to be secured by the notes of the assured.” On the back is this endorsement of payment of premium: “The following sums have been re- ceived at the annexed dates respectively, viz. : September, 1878, premium, $326; cash, $83 ; quar- terly notes, three, of $81 each. William B. Turner. By virtue of this policy, the assured is hereby noti- fied that he is a member of the New England Mutual Life Insurance Company, and that the an- nual meetings of the said Company are holden at 2530 2531 2532 845 its home office on the fourth Monday of January in each year,fat 11 o’clock a. m.” Exhibit 68. [Read at page 221.] Policy of insurance of the New-York Life Insur- ance Company, No. 133,289. Amount, $10,000. Dated 27th of August, 1878. Insuring the life of Walton Dwight, for the benefit of Frank Dwight, or his legal represent- atives. , Premium, $344, payable quarterly. “ This policy witnesseth that the Company, in consideration of the statements and representations submitted, to its officers at the home office at the city of New-York, and contained in the written application for this policy, and in the declaration thereto subjoined, all of which statements and representations have been, and are hereby war- ranted by the applicant to be true, and are, by the parties hereto referred to and made a part of this contract, upon the faith of which statements and representations this policy is issued ; and of the sum of $86 to them in hand paid, and of the annual premium of $344 to be paid in like manner and sums as per margin, in every year during the con- tinuance of this policy, doth insure the life of Walton Dwight in the amount stated. ‘‘Amount payable to Frank Dwight, son of Walton Dwight, or his legal representatives. In the margin appears the following statement: “Annual premium, $344; payable, $86, August 27, November 27, February 27, and May 27 ; quar- terly payments. Among the conditions upon which this policy is 2533 2534 2535 846 said to be issued and accepted are the follow- ing : “ If any of the statements or representations hereinbefore in the first paragraph of this policy re- ferred to shall be found in any respect untrue, then, and in every such case, this policy shall be null and void. “ If the premiums as above stipulated shall not be paid on or before the days above mentioned for the payment thereof, at the office of this company, in the city of New-York, unless otherwise expressly agreed in writing, or to agents when they produce receipts signed by the president, vice-president or actuary, then, and in every such case, this com- pany shall not be liable for the payment of the sum assured, or any part thereof, and this policy shall cease and determine. Claims for paid-up policy, as hereinafter provided for, excelled.” “4th. Receipts for premium are not valid un- less signed by the president, vice-president or actuary.” “5th. Agents of the Company are not authorized to make, alter or discharge contracts or waive for- feitures.” “ 6th. Inasmuch as only the officers at the home office of the Company, in the city of New-York, have authority to determine whether or not a policy shall issue upon any application, and as they act on the written statements and representations here- inbefore referred to, it is expressly understood and agreed that no statement, representation" orTinfor- mation made or given by or to the person soliciting or taking the application for this policy, or to any other person, shall be binding upon the company, or in any manner affect its rights, unless such state- ment. representation or information, be reduced to- writing. and be presented to the officers of the Com- pany at the home office in the application referred to.” 2536 2537 2538 847 Attached to the policy, on the fly-leaf, is a copy of an application, which is for $20,000, which has written across the face of it, “Approved for $10,- 000 policy.” And in which appear the same answers and questions as to whether the party has had or been afflicted since childhood with any of various complaints, including spitting of blood, pulmonary complaint, diseases of the lungs, and the answer is “No” to each. 2539 Exliil>it 69. [Read at page 221.] Policy of insurance of the Northwestern Mutual Life Insurance Company, No. 97,026. Dated 23d of August, 1878. Amount $5,000. Insuring the life of Walton Dwight. For the benefit of himself. Premium $48.25. Payable quarterly. The policy recites, “ In consideration of the rep- resentations made in the application therefor, and the premium iipadvance, as herein stipulated, con- sisting of a quarter cash premium of $48.25, to be paid on or before the 23d day of August, Novem- ber, February and May, insures the life of Walton Dwight for the benefit of himself. This policy shall not take effect and become binding on the company until the premium shall be actually paid, while the person whose life is assured is in good health, to the company, or some person authorized by them to receive it, who shall countersign the policy upon receipt of the premium ; and is issued and accepted by the parties in interest, on the fol- lowing express conditions Among others, in the second sub division, is this: “If any of the statements and declarations 2540 2541 848 in the application for this policy, and upon the faith of which it is issued, shall be found in any material respect untrue, then, and in every such case, the policy shall be null and void. “ 3d. If the said premium shall not be paid on or before the days mentioned for the payment thereof, then, in every such case, this policy shall cease and determine, and no premium on this policy shall be considered to be paid, unless a receipt shall be given therefor, signed by the President or Secre- tary.” On the back is the following: “Agents having the receipts, and they only, will receive the pre- miums when due, or before, but agents are not au- thorized to waive forfeitures, to make, alter or dis- charge contracts, and no receipt will be received by the company unless signed by one of its officers and countersigned by the agent.” Annexed to this policy is a copy of the applica- tion already in evidence. 2542 2543 Exhibit 70. [Read at page 221.J Policy of insurance of the Northwestern Mutual Life Insurance Company, No. 97,027. Dated August 23d, 1878. Amount $3,000. Insuring the life of Walton Dwight. For the benefit of himself. Premium $25 95. Payable quarterly. This policy is upon a blank of the same descrip- tion as the last exhibit, upon the same terms and conditions. Annexed to this policy is a copy of the applica- tion already in evidence. 2544 849 Exhibit 71. [Read at page 222.] Policy of insurance of the Northwestern Mutual Life Insurance Company, No. 97,028. Amount, $1,000. Date, August 23d, 1878. Insuring the life of Wralton Dwight for the bene- fit of himself. Premium $8.65 payable quarterly. This is upon the same printed form as the pre- ceding exhibit, and contains the same conditions and stipulations. Annexed to this policy is a copy of the applica- tion already in evidence. 2545 Exhibit 72. [Read at page 222.] Policy of insurance of the Northwestern Mutual Life Insurance Company, No. 97,023. Amount, $5,000. Date, 23d August, 1878. Insuring the life of Walton Dwighffor the bene- fit of himself. Premium $43.25, payable quarterly. This is upon the same form of contract as the last exhibit, and contains the same conditions and stipu- lations, and has attached to it a copy of the same application. The last four policies were issued on one applica- tion. 2546 2547 « Exhibit 7ii. [Read at page 222.J Policy of insurance of the State Mutual Life In- 850 suranee Company of Worcester, Mass., No. 11,023. Date, first of September, 1878. Amount, $10,000. Insuring the life of Walton Dwight for the benef fit of his legal representatives. Premium $327.08, payable annually. “This policy witnesseth, that the Company, in consideration of the representations made to them in the application therefor, and the sum of $327.08 to them paid, and of alike sum to be paid to them, or to their agent duly authorized, on or before the 1st day of September at noon, in each year, do in-, sure the life of Walton Dwight in the sum of $10,- 000, for the term of his life, payable to his legal representatives. This policy is issued and accept- ed by the assured on the following express condi- tions and agreements : That the answers, state- ments, representations and declarations made in, or endorsed upon the application for this policy, which forms a part of this contract and on the faith of which it is issued, are in all respects true and if any fact relating to the health, habits or circum- stances of the insured has been suppressed or mis- represented, then the policy shall be null and void. And if the annual premiums shall not be paid at the time and in the manner prescribed, the policy shall become forfeited and void, except as provided in the Massachusetts statutes. The policy shall not take effect until the premium is paid, and agents* are not authorized to deliver policy until such payment has been made.” ; Endorsed upon this policy is this paragraph : “ By virtue of this policy the holder hereof is here- by notifed that he is a member of the State Mutual Life Insurance Company of Worcester, Mass., and that the annual meetings of said Company are holden at its home office on the first Wednesday of each year, at ten o’clock in the forenoon.” Inside, on the fly-leaf, is the following notice: “ Premiums are due and payable at the office of 2548 2549 2550 851 the Company in Worcester, Mass., but, for con- venience, the Company may appoint agents in vari- ous localities to receive the same, whose authority the policyholder may recognize only upon the production by said agents of a receipt for the prem- ium, signed by the Secretary.” On the face of the policy is this : “ This policy and any amount that may become due for loss thereon, is assigned and hypothecated to said com- pany, and they have a lien thereon, to secure the payment of any premium or notes thereon, on which credits have been given, and of any notes or securities given, or to be given, to said company, and upon non payment of such notes or securities for the payment of the same, shall become forfeited and void.” 2551 2552 Exhibit 74. [Read at page 222.] Policy of insurance of the Traveller’s Insurance Company, Life Department, of Hartford, Conn.. No. 29,653. Amount $10,000. Date August 28th, 1878. Insuring life of Walton Dwight for the benefit of his legal representatives. Premium $65.78, payable quarterly. Consideration stated to be “warranties made in the application for the policy, and the quarterly premium.” This policy is issued and accepted on the follow- ing express agreements, which are conditions pre- cedent to the contract. “ 1st. That it is warranted by the insured and assured, that all and several the declarations and answers contained in or endorsed upon the applica- tion, for this insurance, which application is hereby 2553 852 referred to and made a part of this contract, are the full, complete and only answers made by the insured or assured ; that they are correctly recorded and wholly and strictly true ; and that if the policy has been otherwise obtained, through any fraud, misrepresentation, evasion or concealment, then this policy shall be absolutely null and void. Note : Agents of the Company are not authorized to make, alter or discharge contracts, give credits, grant permits or waive any of the conditions of this policy.” Printed on the inside is this: ‘‘Note No. 1: Renewals of this policy are to be made by receipts issued from the office of the Company, signed by the Secretary, and to be countersigned by specified agents of the Company, provided,how- ever, the premiums for which receipts are issued, shall be paid to such agents on or before the day such premiums are due. Note No. 2 : The posses- sion of this policy alone, by the parties in benefit, is not evidence that insurance has been finally effected on the life of the person named therein, as the insurance is not complete until the first premium is actually paid, and the first premium receipt properly countersigned by the agent therein de- livered with the policy.” Attached to this was a memorandum receipt signed “Rodney Dennis, Secretary, dated August 28, 1878, and countersigned August 28, 1878, by George W. Sherman & Co., Albany, New-York.” 2554 2555 2556 Exhibit 75. [Read at page 222.] Policy of insurance of the Washington Life In- surance Company, No. 35,656. Amount $5,000. Dated 19th August, 1878. 853 Term, natural life. Insuring the life of Walton Dwight, for the benefit of the assured, his executors, administrators or assigns. Premium $43 payable quarterly. “This policy witnesseth, that it is issued in con- sideration of the representations made in the appli- cation for the policy, and the sum of $43 paid by the assured, and of the quarterly premium of $43 to be paid on or before the 19th day of November, February, May and August in every year, during the continuance of the policy. This policy is issued and accepted by the assured upon the following express conditions and agreements Among the conditions is the following : “If any of the statements or declarations made in the application for this policy, upon the faith of which this policy is issued, shall be found in any respect untrue, or if the said premium shall not be paid on or before the days above mentioned for the pay- ment thereof, at the office of *the Company at the city of New-York, or to agents when they produce receipts signed by the President or Secretary, then, in every such case the said Company shall not be liable for the sum insured or any part thereof, and this policy shall be null and void, and shall cease and determine, except only, in the case of the due surrender of the policy, as herein provided.” At the foot of the policy is the following : “No person except the president, vice-president or secre- tary is authorized to make, alter or discharge con- tracts, or to wraive forfeitures.” 2557 2558 2559 Exhibit 76. [Read at page 222.] Policy of insurance of the Washington Life Insur- ance Company, No. 35,660; amount,$500, dated 19th 854 of August, 1878,insuring the life of Walton Dwight, payable for the benefit of the assured, his executors, administrators or assigns; premium, $4.30, payable quarterly. It is in the same form and subject to the same conditions in all respects as the previous exhibit. 2560 Exhibit 77. [Read at page 222. J Policy of insurance of the Washington Life In- surance Company, No. 35,661; amount, $500; date, 19th August, 1878; insuring the life of Walton Dwight, payable for the benefit of the assured, his executors, administrators or assigns; premium, $4.30, payable quarterly on the 19th day of Novem- ber, February, May and August. This policy, in its terms, is in all respects like the former exhibit, being a policy issued by the same Company, and filled up on a blank of the same issue. 2561 Exhibit 78. [Read at page 222. J ' Policy of insurance of the Washington Life In- surance Company, No. 35,662; amount, $500; date, 19 th August, 1878, insuring the life of Walton Dwight; payable to the assured, executors, admin- istrators or assigns; premium, $4.30, payable quar- terly, on or before the 19th days of November, February, May and August. This is also made on a blank of the same issue, containing the same conditions and stipulations as the policies already introduced in evidence issued by the same Company. 2562 855 Exhibit 79. [Read at page 222.] Policy of insurance of the Washington Life In- surance Company of the City of New-York, No. 35,663; amount, $500; dated August 19, 1878; insur- ing the life of Walton Dwight; payable to the assured, his executors, administrators or assigns; premium, $4.30, payable quarterly, on or before the 19th day7s of November, February, May and -August. This is also on one of the blanks of the same issue, containing the same stipulations and con- ditions. 2563 Exhibit 80. [Read at page 222.] Policy of insurance of the Washington Life In- surance Company of the City of New-York, No. 35,657; dated 19th August, 1878; amount, $2,000; insuring the life of Walton Dwight; payable to the assured, his executors, administrators or assigns; premium, $17.20, payable quarterly, on or before the 19th days of November, February, May and August. This is also on a blank of the same issue as the last, containing the same stipulations and condi- tions. 2564 2565 Exhibit 81. [Read at page 222.] Policy of insurance issued by the Washington 856 Life Insurance Company of the City of New-York, No. 35,658; amount to $500 ; dated 19th August, 1878; insuring the life of Walton Dwight for the term of his natural life, for the benefit of the as- sured, his executors, administrators or assigns ; premium $4.30, payable quarterly on or before the 19th days of November, February, May and August. This is also upon a blank of the same issue as the policies issued by the Company already in evi- dence, and contains the same stipulations and con- ditions. 2566 Exhibit 82. [Head at page 222.] Policy of insurance of tlie Washington Life In- surance Company of the City of New-York, No. 35, 659, amount, $500; dated 19th of August, 1878 ; insuring the life of Walton Dwight, term natural life ; payable to the assured, his executors, administrators or assigns ; premium $4.30, payable quarterly, on the 19th day of November, February, May and August. This is on one of the blanks of the same issue. The policy, on its face, gives the assured the par- ticipation in profits as to all the policies of this Company. 2567 2568 857 Exhibit §3. [Read at page 290.] Metropolitan Life Ins. Co., Corner Park Place and Church St. New-York, Oct. 10th, 1878. Mr. P. K. Burhans, Binghamton, N. Y.: Dear Sir.—We beg to return the account and check for $87.96, received from you this date. We regret very much to trouble you with the matter, but we have to instruct you herewith to make a legal tender in money of the premium re- ceived on the Dwight policy to the assured in per- son and demand back the policy. It was obtained by concealment of facts, misrep- resentation and fraud, and by the terms of the warranty over the insured’s signature and by the terms of the contract itself the policy was illegally obtained, has no binding effect and is of no value. If you will take hold of this matter with the de- termination you are so well endowed with, we will have this policy here in the office within a week. Yours very truly, John R. Hegeman, V. P. 2569 2570 2571 858 Exhibit 86. [Read at page 222.] Policy of insurance of the Manhattan Life In- surance Company of New-York, Yo. 42,518 ; amount, $5,000 ; dated September 10,1878, insuring the life of Walton Dwight, for the benefit of Frank Dwight, his executors, administrators or assigns; premium $43 payable quarterly, on the lOtli of December, March, June and September ; term, natural life. The policy states that it is issued in considera- tion of the representations made to the Company in the application, and in the statements respecting the person, or the family of the person whose life is hereby insured, which application and statement is referred to and made part of the contract, and are to be mutually regarded as warranties, and upon the faith of which applications and state- ments the policy is issued. The policy is issued and accepted on the follow- ing express conditions: “1st. That this policy shall not take effect until the first premium herein- after specified shall be paid in cash during the life- time of the person whose life is hereby insured, and, if any subsequent premium on this policy shall not be paid in cash, on or before the day when due, then the policy shall cease and deter- mine. 2d. That no premium herein shall be deemed to be paid, unless it be paid in cash, and a renewal receipt duly signed by the President and Secretary of this Company shall have been given therefor at the time of such payment.” 2572 2573 2574 Exhibit §7. [Read at page 222.] Policy of insurance of the Massachusetts Mutual Exhibit 84. T. Cft[. Boom occup/cd By Dw/Gxr £■ AO PS. OtVEA/. AETfff IZ, Hov./S./878. OW/QHT Bed room Bed V/WPOW Do op Boom Ocoop/ed by Mas. Dw/ght&Mrs Owen T/ll t/-50 tfou/5J978. HALL DwfGHT S/TT/HG BOOM DOOR DOOR Eront Yard Exhibit 8!> 8ST.C1). 859 Life Insurance Company of Springfield, Mass ; amount, $10,000; date, 3d September, 1878; insuring the life of Walton Dwight, for the benefit of Frank Dwight, son of Walton Dwight; premium $337.84, payable in consecutive quarter annual instalments on the 3d days of September, December, March and June in each year. The policy is stated to be issued and accepted on the following express conditions : “ 1st. That the declarations and statements in the application for this policy, when the said ap- plication is received by the officers of the said Com- pany at the home office of the said Company, in Springfield, Mass., which application is hereby re- ferred to and made a part of this contract, are to be mutually regarded as warranties, and if said de- clarations and statements are not, in all respects correct and true, then this policy shall be abso- lutely null and void. 2d. That this policy shall not take effect until the advance premium herein shall have been paid, during the lifetime of the person whose life is here- by insured ; and that if any subsequent premium, or installment of premium on this policy, shall not be paid on or before the day when due, then this policy shall cease and determine, except as pro- vided in chapter 186, Laws of Commonwealth of Massachusetts, approved April 7th, 1861 ; under the provisions of this law the contract is made. 3d. That no premium or installment of premium hereon shall be considered as paid, unless a receipt shall have been given therefor, at the time of the payment, duly signed by the president or secretary of the said Company; but in case the annual premium is not all paid at the beginning of the year, the unpaid portion of the year’s premium shall al- ways be considered as an indebtedness to the Com- pany. * * * 11th. That no agent of the Company shall make, 2575 2576 2577 860 any contract binding the Company, nor alter nor change any condition of this policy, nor waive the forfeiture of this policy.” 2578 Exhibit 88. [Read at page 223.] Policy of insurance of the Northwestern Mutual Life Insurance Company, No. 97,029. Amount, $1,000. Date, August 23d, 1878. Insuring life of Walton Dwight for the benefit of himself, executors, administrators or assigns. Premium $8.65, payable quarterly on the 23d day of August, November, February and May in each year. Stated to be “ in consideration of the representa- tions made in the application therefor, and of the premium stated.” “ This policy shall not take effect and become binding on the Company until the premium shall be actually paid, while the person whose life is in- sured is in good health, to the Company or to some person authorized by them to receive it, who shall countersign the policy on receipt of the premium and is issued and accepted by the parties in interest on the following express conditions, &c.: “ If any of the statements or declarations in the application for this policy, and upon the faith of which it is issued, shall be found in any respect un- true, then, and in every such case, this policy shall be null and void. 3. If the said premium shall not be paid on or before the days above mentioned for the payment thereof, then, and in every such case, this policy shall cease and determine, and no premium on this policy shall be considered paid, unless a receipt shall be given therefor, signed by the president or 2579 2580 861 secretary, when payment and receipt of any pre- mium less than a full annual, shall not have the ef- fect to continue the policy in force longer than three months in case of the quarter payment, or six months in case of the semi-annual payment.” Attached to this policy is a copy of the applica- tion upon which it is granted, bearing date, Aug- ust, 13, 1878, already in evidence. On the back of the policy is the following en- dorsement: “Agents, having the receipts, and they only, will receive the premiums when due, or before ; but agents are not authorized to waive forfeiture, to make, alter or discharge contracts, and no receipts will be binding on the Company, unless signed by one of the officers, and counter- signed by the agent. And no agent has any author- ity in any case to waive or postpone payments of premiums, and the assured is hereby notified that the only evidence to him of the authority of any agent to receive any premiums on account of this policy, is a receipt in printed form, signed by the President or Secretary of the Company. 2581 2582 Exhibit §9. [Read at page 223.] Policy of insurance of the United States Life In- surance Company of the City of New-York, No. 42.120 ; amount $10,000 ; date, August 31st 1878 ; insuring the life of Walton Dwight for the benefit of the assured, his executors, administrators or as- signs. Premium $86, payable quarterly on the 10th of September, December, March and June. Term, natural life ; commencing the 26th of August, 1878, at noon. Stated to be “in consideration of the application therefor, signed by, or for the assured, hereinafter named, and submitted in writing by or for the as- 2583 862 sured, to the officers of this Company, subscribing this policy, which application is hereby referred to and made a part of this contract; and to each of the statements, warranties and conditions made and contained therein which, whether signed or written by his or her own hand, or not, every person ac- cepting or acquiring any interest in this contract, hereby adopts as his or her own, admits to be rha- terial, and warrants to be full and true, and agrees shall be the only basis upon which this policy is issued.” Provided always, and it is hereby declared to be the true intent and meaning of this policy, and this Company doesjssue this policy, and the same is accepted by the assured, and the applicant for this policy, upon these express conditions and agreements namely : That this policy shall not take effect unless and until the advance premium hereon shall have been actually paid, and both the receipt therefor, signed by the President, Secreta- ry, Assistant Secretary or Actuary of the Company, and this policy, be actually delivered in hand to the assured, personally, and by the person thereto expressly authorized by the President of the Com- pany, during the lifetime and sound health of the person whose life is hereby insured. And in case any premium, or instalment thereof, subsequently due as herein stipulated, shall not be paid on or before the respective days above mentioned for the payment thereof; and according to the express terms hereof, or in case any note, check or draft, given in payment, or part payment of any premium, due or to become due hereon, shall not be paid, according to the provisions hereof, at maturity, then, in any, and every such case, this company shall, upon the happening of such, or any such de- fault whatsoever, become, and be thereafter, not liable for the payment of the sum assured hereby, nor any sum or sums whatsoever, by reason hereof. And this assurance shall cease and determine, ex- 2584 2585 2586 863 eept as hereinafter limited and provided, and that no premium on this policy shall be considered to have been paid in any event unless upon and ac- cording to a receipt which is to be given in ex- change therefor, signed by the president, secretary, assistant secretary, or actuary of this Company. 3d. “ It is expressly understood and agreed that it is upon the faith that the answers, statements, representations and declarations contained in the application above mentioned, as submitted in writ- ing only to the officers of this Company, described in this policy, are each and every of them true, and the same have been and are hereby warranted by the assured, under this policy, to be true, and upon the faith that the agreements herein contained will be kept and performed ; that this Company does issue this policy, and that the same is accepted accordingly, by the applicant and the assured ; every and all unwritten and verbal statements and information, if any, made or given by or on behalf of said assured, at any time, in any way, to any person or persons, whatsoever, or to said assured by any person or persons whomsoever, and not re- duced to writing, and by the assured presented to the officers of the Company at its office in New-York City, before the delivery hereof ordered by them to be made, to the contrary notwithstanding; and that if any of such answers, statements or repre- sentations contained in, or endorsed in writing, upon said application, so presented to said offi- cers, shall, at any time during the continuance of this policy, be found in any respect untrue, or said agreements be violated, that, thereupon, this insur- ance shall become and be null, void and of no effect, and the consideration hereof shall be deemed to have failed.” Attached to the policy is a premium receipt signed by C. P. Fraleigh, secretary, dated Septem- ber 10, 1878, countersigned by N. W. Batchelder, September 6th, 1878, on the back of which is printed 2587 2588 2589 864 a notice, containing, among other things, “Agents are not, under any circumstances, authorized to sign a receipt of premiums, or extend the time of pay- ment of any premium, or part thereof, in any form or make any change in a receipt, nor to make, alter, modify, nor discharge any contract, whatever, for the Company, without express authority, in each and every particular case, previously given in writing, subscribed by the president, actuary, sec- retary or assistant secretary, nor waive forfeiture of any of the conditions of the policy.” 2590 Exhibit 90. [Read at page 223.] Policy of insurance of the Aetna Life Insurance Company, of Hartford, No. 121,940; amount, $10, 000; dated August 24th, 1878; countersigned at Albany, September 6th, 1878 ; insuring the life of Walton Dwight; premium, $84.22, payable quar- terly, on or before the 24th of August, November, February and May; term of policy, life; sum in- sured payable to Frank Dwight, son of the insured, or, in the event of his death, before that of the in- sured, to the insured, his executors, administrators or assigns. Stated to be “In consideration of the declarations made to the company in the application therefor, and of the premium specified.” Stated to be issued and accepted upon the follow- ing express conditions and agreements : “1. The answers, statements, representations and declarations contained in, or endorsed upon, the application for this insurance, which application is hereby referred to and made a part of this contract, are warranted by the assured to be true in all re- spects ; and if this policy has been obtained by or through any fraud, misrepresentation or conceal- 2591 2592 865 ment, or by any false statements, then this policy shall be absolutely null and void. “2. This policy shall not take effect until the advance premium hereon shall have been actually paid during the lifetime of the insured ; and if any subsequent premium on this policy be not paid when due, during the lifetime of the said insured, then this policy shall cease and determine, except as hereinafter provided.” On the fly-leaf of this policy is a copy of the ap- plication upon which the same was granted, and in which application, in answer to so much of the twelfth question as inquires whether the party ever bad, either bronchitis, consumption, asthma, or spittting of blood, the applicant answers “ No ” to each. 2593 Exhibit 91. [Read at page 223.] Policy of insurance of the Union Mutual Life Insurance Company of Maine, No. 88,884. Amount, $10,000. Dated, August 23d, 1878. Insuring, the life of Walton Dwight, for the benefit of himself, his executors, administrators or assigns. Premium, $86, payable quarterly on the 25th days of August, November, February and May, during each year of the continuance of the con- tract. “States consideration to be the application for the policy, which is hereby referred to and made a part of this contract, and of which all the state- ments made therein, whether written by his own hand or otherwise the person, accepting or acquiring any interest in this contract, hereby adopts as his 2594 2595 866 own, admits to be material, and warrants to be full and true, and to be the only statements upon ’which this contract is made.” “1st. If any statements contained in the appli- cation for this policy be in any respect untrue, the consideration for this contract shall be deemed to have failed, and the Company shall be without lia- bility thereon.” “2d. If any premium or instalment of premi- um on this policy shall not be paid when due, the consideration of this contract shall be deemed to have failed, and the Company shall be released from all liability, except as hereinafter provided.” “5th. The contract between the parties hereto is completely set forth in this policy, and applica- tion therefore, taken together, and none of its terms can be modified, or any forfeiture under it waived, except by an agreement in writing, signed by the President or Secretary of the Company, whose authority for this purpose will not be dele- gated.” Attached to the policy is a premium receipt, signed J. P. Carpenter, Secretary, dated August 25tli, 1878, for the first quarter annual premium ; and endorsed on the receipt is the following: “ Agents are not authorized to make any changes whatever in the receipts for premiums, or to waive a forfeiture of any condition of the policy or pre- mium receipt, and that such can be done only by a writing, signed by the President or Secretary. 2596 2597 2598 867 Exhibit 92. [Read at page 223.] Last Will and Testament of WALTON DWIGHT. 2599 I, Walton Dwight, of Windsor, Broome County, N • Y., being of sound mind and memory, and considering tlie uncertainty of life, do therefore make, ordain, publish and declare this to be my last will and testament. First.—I direct, as soon after my death as prac- ticable, that all debts made by me and unadjusted since May, 1877, and in no way including debts in bankruptcy (excepting from said bankrupt debts as specified in the schedule hereto attached), shall be paid in full from my estate. In addition, I direct that the amounts with inter- est specified in Schedule A, shall also be paid, unless discharged by me prior to my death. These amounts of indebtedness were made by me to the within named creditors after I had put up to the First National Bank of Binghamton, and other creditors, all the securities possessed either by myself or my wife at that time, when we gave up everything we had in the world to our secured creditors ; and they by forcing sale of said secur- ities in the most depressed of times, and thereby not realizing one-half the value of the property, I consider that 1 have done all that was required of me, as either a Christian or a gentleman ; that I am not required morally or otherwise to make up a deficit caused by the ill judged and illiberal action of my several creditors ; and that the laws of our land discharge an honest bankrupt, and it is right they should. To those who were insecured I feel an honest obligation, and direct that the debts shall 2600 2601 868 be discharged as above provided, unless I pay them prior to my death. Schedule A, referred to in the foregoing : James Dillons, $9 ; Almerin Johnson, $7.85 ; John O. Campbell, $2.63 ; John Kelly, $26.94; H. W. Carl, $1 ; D. L. W. L. Express Co., $5.99 ; William Kress, $2.40; Seth Marvin, $4.20; Geo. B. Hollister, $9.44 ; Otis & Bros., $26; Mason, Pratt & Co., $1.75 ; F. B. Parmalee, $6.00 ; Holland & Bros., $90.68 ; D. L. Brownson, $261.88 ; John Faney, $101 ; Barlett Bros., $18.20; Christ’s Church, Binghamton, $37.50 ; Newton & Davis, $16.36; Lawyer Bros., $55.10; T. P. Goodrich, $1.80; John D. Ames, $1.60; T. W. Whitney, $4.85; S. W. Barrett, $2; Benson & Gillespie, $12.95 ; R. H. Meagley, $20.05 ; Charles W. Sears, $21.10; Binghamton Gas Light Co., $237.20; Thomas Johnson, $32.40 ; Reynolds & Townsend, $13.63 ; Dr. T. L. Brown, $87.75 ; R. A. Ford, $30.50 ; L. D. V. Smith, $30. Second.—I will and bequeath to my friends, Hon. O. AM. Chapman and Hon. C. E. Martin, in part recognition of their substantial favors, and more than brotherly kindness towards me in the days of my travail, as follows : To O. W. Chapman, ten thousand dollars; to Celora E. Martin, five thousand dollars. Third.—I will and bequeath to George Lyon, of the city of Binghamton, as a slight testimonial to him for unvarying courtesy and kindness to me for a series of years, while doing business in the office with which he is connected, the sum of one thousand dollars. Fourth.—I will and bequeath to George B. Ed- wards, as a recognition of his faithfulness while in my service, and as a mark of kindly remembrance, the sum of one thousand dollars ; this bequest is 2602 2603 2604 869 “provisional,” that is to say : the said George B. Edwards shall receive the same if he is so circum- stanced at the time of my death that he can hold the said one thousand dollars for his own use and benefit. If it cannot be paid to him so that it will be applied to his personal use and benefit I direct my executors hereinafter named, in their discre- tion, to hold and invest the same, and apply the income thereof to his personal use and benefit. Fifth.—I will and bequeath to Neri Pine, as a mark of kindly esteem for his promptness in aiding me when I needed friends, the sum of one thousand dollars. Sixth.—1 will and bequeath to Ellen Carmady, in recognition of her faithfulness to us, and as a mark of friendly regard, the sum of one thousand dollars. Seventh.—I will and bequeath to William Rob- erts, the Episcopal clergyman of Windsor, in recognition of his earnest Christian work in my native town, and in the belief that he more needs practical assistance than any other clergy- man in the County of Broome, owing to the small paiish over which he labors, the sum of one thou sand dollars. Eighth.—I will and bequeath to Dr. Titus L. Brown, as a mark of kindly regard, two thousand dollars. I also will and bequeath to my little friends, Gerry and Edith Jones, children of Gen. E. F. Jones, the sum of one hundred and fifty dol- lars each. Ninth.—I will and bequeath to my uncle, Chester Dwight, “provisionally,” that is to say : to direct and for his own use and benefit, if he is so circum- stanced at the time of my death that he can hold the same for the sole benefit of himself and family; 2605 2606 2607 870 should he be hampered with indebtedness or otherwise, so that this bequest would not go as designed, then I direct my executors and executrix to invest and pay over the said legacy in such a manner that said Chester Dwight and family may have the full benefit, as intended, the ’ sum of two thousand dollars ; and to my cousin, Hattie Dwight, in kindly remembrance, five hun- dred dollars. Tenth.—I will and bequeath to my aunt, Mary Dwight, of Cowdersport, Potter Co., Pa., for her sole use while living, and to be paid over to Orson Dwight or to his wife or children (in case of his death) at her death, or so much thereof as may be left, the sum of one thousand dollars. Eleventh.—I will and bequea th to my uncle, Orson Dwight, of Allegany, Potter Co., Pa., the sum of two thousand dollars, for the sole use of his family ; and this bequest is to be governed by the same provision as contained in the ninth subdivi- sion of this will, and I direct that the money be received and invested by my friends, uncle Norman Dwight, of Hebron, Potter Co., Pa., and Hon. A. C. Olmsted, of Cowdersport, Pa. ; and I direct also that my said two friends, Dwight and Olmstead last named, invest the said one thousand dollars herein bequeathed to my aunt, Mary Dwight, in such manner as shall best promote the comfort and future well being of my said uncle and aunt mentioned in subdivision ten and eleven of this instrument ; also I will and bequeath to Julia Whitford one thousand dollars, and Ijmake charg- able on my estate, to furnish her father and mother with a house and. garden, rent not to ex- ceed $100 per annum, for their lives. Twelfth.—I will and bequeath to John Dusen- bury, of Portville, New-York, the sum of seven 2608 2609 2610 871 hundred and fifty dollars, in recognition of his kindly and practical assistance in my days of need. Thirteenth.—I will and bequeath to Edgar Dusen- bury, of Portville, New-York, the sum of seven hundred and fifty dollars, in recognition of kindly assistance, and as a mark of my regard. Fourteenth.—1 will and bequeath to my brother, Ward A. Dwight, and wife of Chicago, Ills., the sum of three thousand five hundred dollars, as a mark of brotherly regard, and in return for prac- tical help given me when first starting after my financial misfortunes ; I can never forget their kindness ; and I also will and bequeath to them one-half interest in my “ Burial Casket Patent,” unless disposed of by me prior to my death. Fifteenth.—I will and bequeath to my brother- in-law, Seymour Coleman, and my sister, Mrs. Seymour Coleman, the sum of fifteen hundred dollars, in recognition of their practical kindness and assistance towards me when friends were valu- able, and in brotherly regard ; and I will and be- queath to them also one-half interest in my “Burial Casket Patent,” unless disposed of myself prior to my death. Sixteenth.—I will and bequeath to my brother- in-law, William Ayer, and to my sister Sarah, his wife, the sum of five hundred dollars, as a mark of brotherly remembrance. Seventeenth.—I will and bequeath to my brother- in-law, T. P. McDonald, and to my sister Bessie, his wife, the sum of five hundred dollars, in brotherly remembrance ; and I also will and be- queath to George Pratt, cashier First National Bank of Binghamton, N. Y., as a mark of esteem, and in kindly remembrance of our long and pleasant 2611 2612 2613 872 business and social relations, the sum of one thou- sand dollars. Eighteenth.—I will and bequeath to my father- in-law and mother-in-law, George and Ruth Dusen- bury, the sum of five hundred dollars (in case they = survive me), more as a mark of deep and earnest regard to them for their unvarying kindness to me and mine than from any other motive. In case of their decease before mine, then this bequest to be void, as it will not then serve my purpose, which is simply to put on record my deep obligation to, and my earnest respect for, them. Nineteenth.—I will and bequeath to my brothers- in-law and sisters-in-law, as a mark of kindly re- membrance, as follows: To Whitmore Dusenbury and wife, five hundred dollars ; to John H. Dusen- bury and wife, five hundred dollars ; to the three children of Kate Rose, deceased, viz. : Mary, George and “Nan,” five hundred dollars; to Edgar Dusenbury and wife, five hundred dollars ; to Ruth Owen and her husband, five hundred dol- lars ; to Sally Osborn and husband, five hundred dollars ; to William Dusenbury, five hundred dol- lars. I will also, include in these bequest, the following legacies to persons not related to me : To my little friend Hellen Hallock, of Binghamton, N. Y., the sum of five hundred dollars, to be in- vested by her mother for her use, should my death precede her becoming of legal age* To William F. Chadburn the sum of two hun- dred and fifty dollars, in kindly remembrance, and as slight testimonial of his honesty and faithfulness while in my employ. To Mary Hart, wife of Henry J. Hart, in kindly remembrance and as a mark of respect for faithful- ness and devotion to my interest while in the em- ploy of the Dwight House, two hundred and fifty dollars. 2614 2615 2616 873 To Jack Armstrong, colored, in kindly remem- brance, fifty dollars. To Isaac Jenkins, colored, in kindly remembrance, fifty dollars. To my little friend Rally, son of Henry and Addie Smith, to be held for him by his father, unless of legal age at the time of my death, the sum of two hundred and fifty dollars. To my little friend Marie Sears, daughter of Chas. Sears, in kindly remembrance, to be used for own in the purchase of some little keep- sake, to rember the donor by, two hundred and fifty dollars. Twentieth.—I will and bequeath to Hon. O. W. Chapman and Hon. Celora E. Martin and Egbert A. Clark, the sum of ten thousand dollars, in trust for the use and benefit of the deserving and needy poor of the City of Binghamton. The said ten thousand dollars to be paid by my executors to the said trustees, who shall invest the said sum in perfectly safe farm mortgages, and the interest or income thereof shall be annually on the first of December in each year, be paid over to a committee to be appointed by all the clergymen, ministers and priests who are residents of and have charge of a church or congregation, in the City of Binghamton, or a majority of them,, embracing all denominations in assembly. The said committee shall expend or apply the interest or income of said legacy as follows: They shall provide and see that every needy and poor family, living in the city of Binghamton, be provided with a good and substantial Christmas dinner, confining this charity to no particular race, creed or color, but for the once in the year making God’s poor happy with a full belly. Should the interest or in- come on said bequest be more than required for the above specified purpose, then the committee to expend the surplus in their discretion for the com- 2617 2618 2619 874 forts that will most benefit the deserving’ poor. And the said trustees shall see that the said com- mittee annually appointed by the clergymen in assembly as aforesaid, faithfully, honestl}T and im- partially discharge the duty imposed upon them as above sx^ecified. To the persons who shall be pastors of the four churches in Windsor village, m37 native town, at the time of my death, I give the sum of one thousand dollars, to be used by them for Sunday School books, or for such other purposes as they deem will best serve their respective churches, to wit: To the Methodist Episcopal Church, two hundred and fifty dollars. To the Presbyterian Church, two hundred and fifty dollars. To the Free Methodist Church, two hundred and fifty dollars. To the Episcopal Church, two hundred and fifty dollars. To Hon. Wm. B. Edwards, Hon. C. E. Martin and Stephen C. Millard, Esqs., 1 give and bequeath the sum of seven thousand five hundred dollars, in trust for the use and benefit of the Binghamton Library Association. I direct said Trustees to expend twenty-five hundred dollars as soon after this bequest is paid to them as practicable, for such books as in their judgment are most needed, the balance five thousand dollars to be invested by them, and the interest, annual or semi-annual (as the case may be) to be expended for libraiy purposes, in the discretion of the said Trustees. To the press of Binghamton, one thousand dol- lars, in kindly recollection of their always earnest efforts to assist me in the promotion of any project that would wrork to the future interest of the City. And I appoint Abrm. W. Carle of the Leader, Peter D. Van Vradenburg, of the Republican, and Greo. of the Democrat, as Trustees for such fund. 2620 2621 2622 875 The annual interest to be used for a yearly banquet or dinner for the editors, foreman, and such other guests as they may choose to invite, with the hope that the same may tend to promote a kindly spirit towards each other, and a pleasant recollection of the donor. To the Fire Department of the City of Bingham- ton, in friendly remembrance for their always kindly acts towards me and mine at all times and on all occasions, the sum of live thousand dollars ; and I hereby appoint Tracy R. Morgan, Neri Pine and George Lyon, Trustees to take charge of said fund, to be safely invested by them ; and the annual interest to be paid over to a committee of the fire department and devoted to an annual dinner or banquet for the whole department, with hope on the part of the donor that such meeting may tend to the unity and happiness of the recipients. Twenty-first.—To my much loved and only son, Frank Dwight, instead of bequest, I have caused my life to be insured directly to him, in the sum of fifty thousand dollars, and I purpose to increase the said amount to sevent}7-five thousand dollars. I desire and direct that in case of my death while my son is under legal age, that his mother, Anna N. Dwight, shall be appointed his general guardian, with full power to act for him in all ways, having full control of his property and person until he becomes of legal age. I also desire and request my friends Orlow W. Chapman and Celora E. Martin to act as advisers and counsellors to my wife and boy, and would suggest as investments of his estate sound farm mortgages, or Registered Government Bonds. Safety in this case will be more desirable than large per cents ; and a sound and practical bringing up of my boy is more desirable than any frothy bril- liancy of style, that he may grow up to be a man in the broad acceptation of the wrord has always been my earnest wish. 2623 2624 2625, 876 Twenty-second.—To Anna N. Dwight, my darling wife, the best and truest of women, in addition to- about twelve thousand dollars insured directly to her on my life, I give, devise and bequeath to her everything of which I die possessed, both real and personal, after deducting from my estate the be- quests made in this will, from subdivision one to twenty inclusive, for her own use and disposal, absolutely and forever ; provisionally, that is to say: If my said wife, Anna N. Dwight, at the time of my death, is free from all indebtedness or has not a greater amount than the said twelve thousand dollars insured on my life direct to her, will dis- charge, or if she, under the laws of our land in bankruptcy, get a discharge from all indebtedness, or if by compounding or settlement direct by giv- ing her creditors everything of which she is pos- sessed prior to my death, she can wipe out and fully liquidate all claims against her, then the be- quest made in the fore part of this subdiv. to Anna N. Dwight shall be of full force, and she shall have and hold the same for her own use and benefit. But in case my wife, Anna N. Dwight, is unable to make full and complete settlement with her credi- tors, by giving up all of which she is possessed prior to my death, or is unable to obtain her dis- charge from the same in the bankruptcy courts of our land, then the bequest made to Anna N. Dwight in the fore part of this subdiv. shall be null and void and of no force ; and I direct that the portion of my esta te covered by the said bequest, less the twelve thousand dollars on my life to her shall be paid over to my son, Frank Dwight, if of legal age at the time of my death, if not of legal age, I direct that it be paid over to his guardian and held for him until he arrives at legal age, or until such time after his legal age as in the judgment of his guardian and her advisors and counsellors herein named, it shall be best for liim to receive the same. If owing to the failure of Anna N. Dwight, to get 2626 2627 2628 877 her legal discharge as aforementioned, and this bequest aforementioned should go to my son Frank in accordance with this ni}T will, so I charge my son Frank to always to treat this beqnest that his mother shall never have cause to regret the change in the disposition of the bequest as he hopes for happiness here or hereafter. I, his father, so charge him. In case of the death of both my wife and son, prior to my own, then I di- rect that the balance of my estate, after first doubling all the bequests, shall be held by a com- mittee, formed of three leading lawyers of the city of Binghamton, to be appointed by the General Term of the Supreme Court, to use fore purely charitable objects for the city of Binghamton ; or at the option of the said committee, one-half of said amount may be used to increase and enlarge the library of the Binghamton Library Association. Twenty-third.—I desire and do hereby constitute and appoint my wife, Anna N. Dwight and my friends Hon. Orlow W. Chapman and George Lyon, of Binghamton, N. Y., to be executrix and executors of this, my last will and testament; and that after my estate is duly settled, that either or both the executors, and my friend, Hon. C. E. Martin, shall always, during their lives, act as advisors and counsellors to my wife and boy. dwenty-fourth.—In case of the death of any per- son mentioned in No. 1 to 20 prior to my own, and such persons shall leave neither wife or children, then, in each such case the bequest shall be null and void, and shall not be paid, but pass to the remaining legatees my intention being to go no further than the wife and children, therefore be- yond such legal heirs are not included. In case of all bequests the expenses of guardians or trustees {in caring for my son Frank in case he is not of 2629 2630 2631 878 legal age at my death, or lias not received the be- quest in accordance with this my will), and in in- vesting and taking care of said funds, shall be paid (her or them) from the income of said fund, such amounts for services for each year shall be agreed upon by my executrix or executors, or a major.ty of them, as shall seem to them a fair compensation for services so rendered, in all acts of my executrix and executors I contemplate the legality and bind- ing force, provided there is always the action of one executor in connection with the executrix. In case Guardian,Executor or Trustee should die before me, or decline to serve, then I direct that such va- cancy should be filled by appointment by three justices of the Supreme Court of this district, and such appointees shall have as full power as those named in this instrument. Twenty fifth.—This my last will and testament is made on the basis of the present value of my estate in case of death at this date. My estate is made up most entirely of life insurance, which amount I do not propose to ever materially lessen. I have lived to that age, and been subject to such expe- rience, that I have no father ambition for myself beyond leaving my family comfortable, and with sufficient means to enable them to live as they were in the habit of heretofore, and also in making such friendly bequests to those who are endeared to me from association and kindly acts as will leave pleasant memories behind me when I I start on the long journey. I find, in looking over the past of my business life, while working and doing business for profit, I aver- aged upwards of twenty thousand dollars a year; my home or Binghamton enterprise was not started or executed for profit, but with a view of doing some- thing worthy of the city and myself. It resulted in financial failure and and the loss of all my accumu- lations for years. Since my failure in this enter- 2632 2633 2634 879 prise, with no capital worth mentioning to start with, I have avaraged over ten thousand dollars for twelvemonths. Judging from this and from the past, I apprehend no difficulty in a return ten to twenty thousand dollars a year for my work, when acting strictly for gain. I have, therefore, made this, my last will and testament, fully believ- ing that I can keep the premiums upon the present amount of life insurance I am carrying, and that my estate will not lessen in the future from its present value. If, however, sickness, or any other cause, should destroy my ability to pay my life insurance premiums, and thereby lessen the present value of my estate, then all the bequests mentioned in this, my will, should be scaled down in exact proportion to the difference as between the present value of my estate and the value of the same at the time of my death ; but no increase of my estate on account of increase by accumulated profits on life policies, or on increase of insurance, shall in- crease any bequest. And I direct, in the final ex- ecution and settlement of this, my last will and testament, that the foregoing shall govern the size of the bequests, namely : If my estate has not les- sened from its present volume at this date at the time of my death, then the bequests aforemade to be paid in full; but in case of lessening of estate at time of my death, then the bequests to be governed by the exact rates they bear to the estate then as now, and to be saled down accordingly. Tigenty-sixth.—I desire that my body shall be buried in our lot in the Spring Forest Cemetery, Binghamton, N. Y., and that in whatever part of the country I may pay the debt of nature, this, my request, shall be fulfilled if practicable. My most disinterested business efforts in life were made for the good and well being of the city of Bingham- ton, and whatever the results may have been, I believe that a large majority of the Good Citizens 2635 2636 2637 880 appreciate my good intents, even though resulting in partial failure. I, therefore, wish to rest amongst them. In witness whereof, I have hereunto subscribed my name and affixed my seal, the day of Sep- tember, in the year of our Lord, one thousand eight hundred and seventy- eight. Walton Dwight, [l.s.] 2638 The above written instrument was subscribed by the said Walton Dwight in our presence, and in the presence of each of us, and acknowledged by him to each of us, and he, at the same time, de- clared the above instrument so subscribed to be his last will and testament, and we, at his request, have signed our names as witnesses hereto in his presence, and in the presence of each other, and written opposite our names our respective places of residence. B. N. Loomis, Of Binghamton, Broome Co., N. Y. Chas. W. Loomis, Binghamton, N. Y. 2639 2640 Exhibit 93. [Read at page 348.] Mutual Benefit Life Insurance Co., Newark, N. J. Sept. 19th, 1878. Walton Dwight, Esq., Windsor, Broome Co., N. Y. Dear Sir.—We have received, from what appears 881 reliable source, information to the effect, that you have on two occasions raised blood. As no men- tion of this is made in your application, you will perceive the importance of its bearing on your policies, and we trust you will reply at an early date. Yours truly, Lewis C. Grover, Preset. 2641 Exhibit 94. [Read at page 348.] Windsor, N. Y., 23d, 1878. Lewis C. Grover, Esq., Pres. M. B. L. Ins. Co., Newark, N. J. ' Mutual Benefit Life Ins. Co., Newark, N. J. Rec’d Sept. 24, 1878. My der Sir.—Yours of 19th duly at hand. In reply there is not one word of truth in these foolish reports going the rounds, that I have had hemerjes of lungs, &c., &c. I would be greatly obliged to you if you will give me the auther. I can refer you to every Dr in Binghamton, who have known me from 10 to 25 years, & to Dr. Brooks of Chicgo, who prescribed for me three or four times last spring, the only Drs. I have had any connection with for years. “ In justice to me you should give me the auther of these reports.” Other Cos have heard the same thing, and it puts me in a false position, that is excedingly unpleasant. Hastily yours, Walton Dwight. 2642 2643 P. S.—Your own Drs who examined me should know better than to put credence in these foolish rumors. 882 Exhibit 95. [Read at page 348.] Return Registered-Letter Receipt. Note.—This return receipt, after being signed by the party to whom the letter or package which accompanies it is delivered, must be immediately inclosed to the Postmaster at the office, where it originated. E2T’ Should the registered letter not be delivered, this receipt must be forward with it, in due course, to the Dead Letter Office, 2644 No. 541. Mailed at Newark, N. J. Correct. Oct. 23, 1878. William Ward, P. M. 187 By Mut. Benft. Life Ins. Co., a letter addressed to Col. Walter Dwight, Windsor, N. Y. Stamp here the office and date of delivery. 2645 ; Binghamton, N. Y. ; Oct. 25. Binghamton. Received the above described letter. Sign here Walton Dwight, Pr. Neri Pine. Exhibit 96 [Read at page 348.] Newark, N. J., Oct. 7th, 1878. Col. Walton Dwight, Windsor, New-York, Bear Sir.—Upon further investigation concern- ing the history of yourself and family in reference to the insurance we have on your life, our informa- tion leaves no doubt that the risks were not such as we would have taken had wre been advised of all the facts material for us to know before the policies were issued. We write to say that in case of your death we will decline to pay the policies. We re- 2646 883 spectfully request you to return them to us for can- cellation, and we will refund to you the amount we have received for premiums thereon with interest. Yours truly, (Sgd.) Lewis C. Geover, Pres't. 2647 Exhibit 97. [Read at page 348.] “ Newakk, N. J., Oct. 22, 1878. Col. Walton Dwight, Windsor, New-York. Dear Sir.—We enclose copy of letter written you on the 7th inst. Not hearing from you we have feared you did not receive the letter, and hence enclose this copy and send it by registered letter. We shall await your reply. Yours truly, Lewis C. Grover, President.” 2648 Exhibit 98. [Read at page 350.J New England Mutual Life Insurance Company. Post Office Square. Boston, Oct. 4th, 1878. Walton Dwight, Esq., Windsor, N. Y. Dear Sir.—It is my duty to inform you that no further payment of premium upon the policy issued by this Company upon your life will be accepted 2649 884 by the Company or any person acting on its behalf ; and that payment of any claim upon the policy, if the same shall be hereafter demanded, will be re- sisted. The quarterly notes are in the possession of our Superintendent of Agencies, Mr. Geo. W. Thompson, who will hand you this letter, and will return the notes and the cash payment made by you, upon surrender of the policy. Yours truly, Benj. F. Stevens, Pr. 2650 Exhibit 99. [Introduced at page 407] Exhibit 100. [Read at page 467.] $100.00. 2651 T. F. McDonald, Attorney-at-law. Binghamton, X. Y., Sept. 3, 1878. ; U. S. Internal; ; Revenue ; ; Two Cent ; ; Stamp. : The Merchants’ National Bank Of Binghamton. Pay to the order of Neri Pine One Hundred Dollars. No. 157. T. F. McDonald. Endorsed, Neri Pine. $100.00. 2652 T. F. McDonald, Attorney-at-law. Binghamton, N. Y., Sept. 3, 1878. The Merchants’ National Bank :U. S, Internal; ; Revenue : ; Two Cent ; ; Stamp. ; Of Binghamton. Pay to the order of Neri Pine One Hundred Dollars. No. 156. T. F. McDonald. Endorsed, Neri Pine. 885 $200.00. T. F. McDonald, Attorney-at-law. Binghamton, N. Y., Sept. 3, 1878. The Merchants’ National Bank :U. S. Internal: : Revenue : ; Two Cent : : Stamp. : Of Binghamton. Pay to the order of Norman W. Batchelder, Two Hundred Dollars. 2653 No. 155. T. F. McDonald. Endorsed, Norman W. Batchelder. $200.00. Binghamton, N. Y., Sept. 3, 1878. The Merchants’ National Bank T. F. McDonald, Attorney-at-law. :U. S. Internal: ; Revenue : : Two Cent ; : Stamp. : Of Binghamton. Pay to the order of Norman W. Batchelder, Two Hundred Dollars. 2654 No. 154. T. F. McDonald. Endorsed, Norman W. Batchelder. $100.00. Binghamton, N. Y., Sept. 3, 1878. The Merchants’ National Bank T. F. McDonald, Attorney-at-law. ;U. S. Internal; ; Revenue : ; Two Cent ; ; Stamp. : Of Binghamton. Pay to the order of Neri Pine, One Hundred Dollars. No. 159. 2655 T. F. McDonald. Endorsed, Neri Pine. 886 $100.00 T. F. McDonald, Attorney-at-law. Binghamton, N. Y\, Sept. 3, 1878. The Merchants’ National Bank :U. S. Internal: : Revenue : : Two Cent ; Stamp. : Of Binghamton. Pay to the order of Neri Pine. One Hundred Dollars. No. 158. T. F. McDonald. 2656 Endorsed, Neri Pine. $100.00. Binghamton, N. Y., Sept. 3, 1878. The Merchants’ National Bank T. F. McDonald, Attorney-at-law. ;U. S. Internal: ; Revenue : : Two Cent : ; Stamp. : Of Binghamton. Pay to the order of Norman W. Batchelder, One Hundred Dollars. 2657 No. 153. T. F. McDonald. Endorsed, Norman W. Batchelder. $100.00. T. F. McDonald, Attorney-at-law. Binghamton, N. Y., Sept. 3, 1878. The Merchants’ National Bank ; U. S. Internal: ; Revenue : ; Two Cent : : Stamp. Of Binghamton. Pay to the order of Norman W. Batchelder, One Hundred Dollars. 2658 No. 152. T. F. McDonald. Endorsed, Norman W. Batciielder. 887 Exhibit 101. [Read at page 484.] Binghamton, N. Y., Sept. 6, 1878, Susquehanna Valley Bank. $43. : U. S. In. Revenue I 2c. stamp. : Pay to M. J. Keeler, agent or •order, Forty-three Dollars. 2659 No. Neri Pine. (Endorsed) M. J. Keeler, Ag’t. Exhibit 102. [Read at page 484.] $346.00. Binghamton, N. Y., Sept. 10, 1878. Susquehanna Valley Bank. Pay to J. G. Orton, or order, Three hundred forty-six Dollars. 2660 U. S. In. Revenue : 2c. Stamp. ; No. 58. Neri Pine. (Endorsed) J. G. Orton. [Read at page 484.] Exhibit 103. 2661 $48. Binghamton, N. Y., Sept. 12, 1878. Susquehanna Valley Bank. U. S. In. Revenue : Stamp, 2e. ; Pay to H. S. Monroe, or order, Forty-three Dollars. No. 59. Neri Pine. (Endorsed) H. S. Monroe. 888 Exhibit 104. [Read at page 484.] $26 yW Binghamton, N. Y., Sept. 13, 1878. Susquehanna Valley Bank. Pay to N. W. Batchelder, or order Twenty-six Dollars. Neri Pine. 2662 U. S. in. Revenue : Stamp, 2c. : No. 60. (Endorsed) N. W. Batchelder. For collection and credit for account of First National Bank of Albany, N. Y. A. Van Allen, Cashier. Pay J. W. Mainer, Cashier, or order, for collection. Wilber National Bank, Oneonta, N. Y. E. A. Scramling, Ass’ t Cashier. 2663 Exhibit 105. [Read at page 484.] Binghamton,; N. Y., Sept. 20, 1878. $158.60. Susquehanna Valley Bank. Pay to N. W. Batchelder or order One hundred fifty eight Dollars. No. 62. Neri Pine. (Endorsed) N. W. Batchelder. For collection and credit. For account of First National Bank of Albany, N. Y. A. Van Allen, Cashier. Pay J. W. Manier, Cashier or order for collection. Wilber National Bank, Oneonta, IS. Y., E. A. Scramling, Ass’t Cashier. 2664 889 Exhibit 106. [Read at page 485. J Binghamton, N. Y., August 28, 1878. $86.50. Susquehanna Valley Bank. Pay to V. Finch, agent or order Eighty-six y Dollars No. Neri Pine. Endorsed : V. Finch, Ag’t. Exhibit 107. [Read at page 487.] SUPREME COURT. 2665 2666 John F. Smyth, as Superintend- ent, &c., vs. Anna N. Dwight, Walton Dwight and others. The defendant Walton Dwight for himself an- swering the complaint in this action, for answer thereto, or to so much and such part thereof as he is advised it is necessary or material for him to make answer to, saith : That the said plaintiff should not have and main- tain this action against this defendant in so far as for personal judgment against this defendant for any deficiency arising from the amount realized from the sale of the premises failing to pay the 2667 890 amount found due on said bond and mortgage, and alleges that on or about the 9th day of April, 1877, a petition was tiled in the office of the Clerk of the District Court of the United States for the Northern District of New-Aork in which said District defen- dant then and for six months prior thereto resided, by certain creditors of this defendant praying that he might be declared and adjudged a bankrupt within the true intent and meaning of an act en- titled “ An Act to establish a uniform system of bankruptcy throughout the United States” ap- proved March 2, 1867. That thereupon an order was issued out of said Court requiring this defendant to appear before said Court at Syracuse, on the 1st day of May, 1877, and show cause why he should not be de- clared and adjudged a bankrupt. That said order was duly served upon this defendant within said Northern District of New-York more than live days previous to the return day of said order. That such proceedings were thereupon and there- after taken that on the 1st day of May, 1877, this defendant was declared and adjudged a bankrupt within the true intent and meaning of the Act of Congress aforesaid, and a warrant was duly issued out of said Court to take possession of defendants’ property, rights and credits of every kind and nature. That on the 8th day of June, 1877, Charles A. Hull and E. N. Fitzgerald were duly chosen and appointed assignees in bankruptcy of the estate and effects of this defendant. That said bankrupt proceedings are still pending, and the assignees therein have not been discharged. That the claim against this defendant in this ac- tion is provable against him in bankruptcy, and was not created by the fraud or embezzlement of this defendant or his defalcation as a public officer, or while acting in any fiduciary capacity. Wherefore this defendant demands judgment that this action in so far as it asks a personal 2668 2669 2670 891 judgment against this defendant be dismissed, with costs. Neri Pine, Attorney for Defendant, Walton Dioight. State of New York, Broome County, ss.: 2671 Walton Dwight, being duly sworn, says that the foregoing answer is true of his own knowledge, except as to the matters therein stated to be alleg- ed on information and belief and as to those mat- ters he believes it to be true. Walton Dwight. Sworn to before me, this 15 th ) day of November, 1878. j Charles W. Loomis, Notary Public. [Endorsed.—Supreme Court. John F. Smyth, as Superintendent, &c., against Walton Dwight and others. Answer of Walton Dwight. Neri Pine, Deft.’s Atty.] 2672 Exhibit 10§. [Read at page 503.] Binghamton, N. Y., Aug. 16, 1878. Cornelius Doremus, Esq. Dear Sir.—I have a case of a party who wants placepin good Companies, about $100,000 insurance on his life, and my Company will only take $10,000 on any one life. Please write me what brokerage you can allow me. Also send me by return mail about 4 applica- tions medical vouchers, &c. If you have no medical Examiner here—direct me who to appoint and send necessary papers. Very truly yours, H. C. Hermans. 2673 892 Exhibit 109. [Read at page 504.] Germania Life Insurance Company, 287 Broadway. Cornelius Doremus, Sec’y. New-York, Aug. 21st., 1878. H. C. Hermans, Esq., Binghamton, N. Y. Dear Sir.—In ans. to yr fvr 16th and tel. of 20th, we send to day blank appls. & med. repts. Our examinations there we have made with Dr. J. G. Orton. We cannot name any rate of brokerage until we know on what plan ins. is wanted, but we will say in advance that the rate will not be exorbitant, and that risks offered to us from outside sources are subjected to the severest scrutiny. Respectfully yours, C. Doremus, Sec'y. 2674 2675 Exhibit 110. [Read at page 505.] Binghamton, N. Y., Aug. 22, '78. C. Doremus, Esq. Dear Sir.—Enclosed please find the following application. Walton Dwight, ordinary Life .... $10,000. If application is accepted you may send the policy to the Merchants’ National Bank of this city. Giving statement to them of arn’t of premium less brokerage & so with all the subsequent pay- ments. Very respectfully yours, H. C. Hermans. 2676 893 Exhibit 111. [Read at page 506.] General Agency. Phcenix Mutual Life Insurance Company of Hartford, Ct. Assets over $10,000,000. Binghamton, N. Y., Aug. 28, 1878. C. Doremus, Esq. Dear Sir.—While coming up on the train last evening with Col. Dwight. He expressed himself so much pleased with your Co. that he would be willing to take $20,000 in the Co., and that if you conclude to write him for $15,000 or $20,000 he will accept the cash value on the “paid up,” so as to make it even thousands. He was bit so badly formerly by getting in six or seven Cos. that went up that he is very particular now. Please write or telegraph me at your earliest con- venience what your conclusions are. Very Respectfully Yours, H. C. Hermans. 2677 2678 Exhibit 112. [Read at page 603-4.] Note.—This exhibit was a copy of a medical certificate of Dr. ■ Orton, produced by plaintiff, and has been mislaid, so that it cannot be furnished for insertion here. No question, however, arises upon this ex- hibit. 2679 894 Exhibit 113. [Read at page 645.] Phienix Mutual Life Insurance Company. Aug. 19, ’8. A. G. Fowler, Esq., Chicago, 111. t Dear Sir.—We have an application for $10,000 on Mr. Walton Dwight of Binghamton. He states that his mother died at 35 of consumption. Can you tell me the family record of his mother’s family, that is, brothers and sisters, if she had any \ Was the disease hereditary or acquired with her ? He also states that he was sick in Chicago last spring. Can you tell if this was anything serious ? Is he subject to rheumatism or dyspep- sia ? Yours truly, J. M. Holcomb, Secretary. 2680 2681 Exhibit 114. [Read at page 646.] Binghamton, August 16, 1878. J. M. Holcomb, Esq. Dear Sir.—Inclosed please find the following application: Walton Dwight, ordinary life, ten thousand dollars. He wishes it in five policies as follows : One five thousand, one two thousand, and three of one thousand each. Robert Brown, H. 2682