The New York Herald Newspaper, August 25, 1857, Page 2

2 NEY YORK HERALD TUESDAY, AUGUST 25, 1857. “TRE BURDELL ESTATE, THE MARRIAGE OF MRS. CUNNINGHAM, IMPORTANT DECISION OF THE SURROGATE, Mrs, Cunningham Declared not to be the Widow of Dr. Burdeil, The Serrogate entered bis office at 12 o'closk yesterday, ‘and made tbe following decision upon the application of Mrs Emma augusta Oonuingham, claiming to beine widow of the late Dr. Harvey Burdeil, for letters of adminisiwaion upon his estate: In the Matter \f the Estate of Harvey Burdell, deceas By the law of this State marriage Is treated meroly Otvil contract, not requiring iegal forms, religious solemn} ties nor any special mode of proof. It is obvio1, bo rover, that the security of property, domestic happinoss and the order and well being of society are deeply involve in the erection of all reasonable barriers againat the perpe! on Of fraud in reference to an institution which lies at the very basis of private and public welfare. The policy of the law is opposed to concealment of the marriage covtract. Publicity affords security, Upon this application for otters of administration there fs an effort to establish & secret marriage, Taere ‘was no open cobabitation or acknowledgment, no mark or token of the relationship ; to external appearance the parties lived as single persona, and the alleged con- tract was firet announced when the lips o! the decedent were sealed by death, In sucha case there is no pre. sumption in favor of marriage; the presumption is against it. There is no ground for invoking the charities of the faw, but the concealment excites suspicion and calls for rigid seratiny. If @ person will enler into the honorable estate of marriage in privacy, excluding carefully the ‘usual public, eocial and domestic evidences of the nuptial Covtract, eo that the wife is pot kuown until she became a widow, the claim should be viewed with jealousy and strict proof be demanded. At the trial I allowed the widest eoope of inquiry the law permits, in order that no means for eliciting the truth might escape. The number of the witnesses examined in this cause, the extent and complication of the testimony, god the great variety of details presented, have readered @ review and analysis of the material facts protracted and Inborious; but the grave and solemn duty to which I was ca led, tbe importance of the question at issue tn its pri- wate and social bearings, imporatively required that no pains taking etould be spared in exhibiting the grounds of the conviction to which I had arrived. Oa the evening of QOotober 28, 1866, the Rey. Uriah Marvine united two per- sons in the bonds of wedlock at his rosideace, No. 732 Greenwich street, in this city. One of the partice was Emus Auguste Cunningbam; the witness was her daugh- ter, Margaret Augusta; and whether the other party was Dr. Harvey Burdell is the question submitted for my ae otsion. This murt be determined upon ihe evideuce before me, after discarding that which js unworthy of faith and credit. The point presented for solution is a pure question of fact—bas toe claimant cetablished @ ceremonial mar- Tinge witb the decedent? I. Laball Gret inquire where the decedent was about the Period of ime when the trapeaction was on foot. The Claimant bas ehown to m7 entire satisfaction that on Fri day, the 24th, Tuesday, the 281b, and Friday, the Slst of October, he was in the city of New York, and was pre- sent each of those days at the ressions of the Board of Directors of the Artizans’ Bank, probably from 93g or 10 to 11 or 12 o'clock. He left’ for Saratoga Friday, the Sist of October, and returned to his bor the ning of Monday, Novem»er 3 Mr. Snyder #1 that at Sara toga be sad be came from the West If he bad been to the West shorily before, the substance of the remark might bave been true, but its exact purport misunderstood, The contestants aliege that ii was exb- staniis 'y (roe, and that the decedent was at the village of Herkimer on Saturday, Sunday and Monday, 25th, 28th and 27tn of Oct»ber. The claimant, on the other band, — proof to show he was then in the city of N ork. 1. It appears from the books of the Lafarge House that Dr. Bordel paid fer bis board on two occasions wh: question, bis bill was runoing on at the hotel. Nelsou Rarlow deposed that Dr W B Roberts performed some dentistry for him Sunday, Octobor 6, and Sunday, October 26; that on the tirst oocasion ‘another person was present the whole dme’’ whore nam» be did not recolle %, and tha: on the second occasion he was iptrodeced to Dr. Bardell. ‘Those oaier are deiermined by entries in Dr. Roderta’ book. Dr Roberts, az to the 6th of Ociwber says, “be docs not Know pL» war present then,” he thinks Dr. Burdell was ip when he was attending to Mr. Barlow's teeth, ‘los, “ the only way Lbad of devermiving whicao of Sundeys it was, was the conversation about Mr 80 Officers, aud wiabed bim and Roberts to take stock in the fnatitatlon. So far, the interview might have happesed on the 5th of © toder, por does he remove !t positively tothe ‘26th when be saye, “ be aiso spoke of Mr Fraser, as well as | recollect, and bis resignation as Vive President’ The xeneral convergation aboat the bank gives no preference to ‘one date over snotber, ant everything turns not on the main subject, but upon the certainty or uncertainty of “the reeigaation’’ having been mentioned at the time in queetion—a coliatera! or incidenta! which mighi esally bo come the subject of mistake. Dr. Ubi states thet ne met the decedent in Bond street in October, be deeigoaies ihe ume Monday the 27th, and coliocates the interview with the circomstance that be was then ov bit way to at- (end @ patient at Brooklyn, but he produced no memoran- indicate the date of that visit The oo- events on the same day proves nothing unless the date of oneof them be kaown. Here the date of neither is determizable except by 1 memory of the wiinoss, and thus we are reduced io his bare psked declaration 'p Jane, 15: Gell in Bond mreet, on the 27th of Ootober, 1856, seven months before. Mr Dovglves testifies tai be was eit! the parlor of ihe decedent's residence conver i Fose’ the aferncon of Sunday, October 20, waen Lr Burdell came in, inquired {? some persor had called for him, ad dremei Mra. Cupningbam, who reese, and the two left iho oom together. Tt nese marks ibe date from the ¢.r cumstence tbat he ca'led wo ree Mr Heckel in respect t vockoase, for the purchaee of which he was negot 1 i# mant'ert, however, from Mr. Smith's testimon: the pegollstion war pending several wee! jacge {rom the intimacy between Mr Eckel Doogiazs, and from other infrequent vie posiiiveners in bis testimony which cannot be ov. rlooked, and if tbe bockcate was delivered on the 23th of Octo: ber, be be taken as very definitely aflirming ihe pre- sence of Sanday, the 26th. Mr Fraser expressed the belief that be saw ibe decedent every day from the 24th to the 98th of October, and evou in the evening of tne 26th. His language te net very positive- “oat «my impression if my memory serves me right.”” Mr Fraser was impressed with the idea thas hie roeigua tion war a frequent topic of conversation beiweea him and 1 during thie period; but it appears that the n for some time after it ocourred, and the causes or rome time before it occurred, were the consideration between himself aod the would be difoalt to identify any par He in quite clesr, however, that the Doctor «ipper op Sanday ihe 26th, from recoilecting that Mre. Fracor wae absont from the table that day in cor Sequence of sloknere, and the Doctor sat by him and his 800 who was then bome from school. Clarence Fraser fates that he “raw Dr. Burdell every day’ while be was bom last fall, but in this be fe cortainly m's- takew a» to ibe Im aod 20 of November, whem the dece dent wes at Saratoga and the witnew was in New York my impression ta | caw bim funda after et dinner “he filled « tooth for ould and M an portance of the testimony of tose two men binges mainly if not entirely on the fact the absence , fs ping Ag Bd a e . Augustus wa 'y was a Naide or tice on Sanday,’’ and Freser that bie mother was unwell and absent from dinner the Bunaay, October 19, and that she ‘freq’ when che was not much unwell.” In this Case, then, we find, ar weil as in that of Dr. Roberts and Mr. Barlow,» iophoasion of the mort imp 2rtant feature tending to fix the Ume—r repetition of the collatersl or extrinsic ciroun:mance existing in the memory of the witness a connected with the presence of the decedent. This, of course, calle for some otber fact to give ope date the over the other Ap effort wae made to show that the decedent was Atiending as 8 witome in the United States Circuit Court Monday, the 27th October, in the cage of Warner and (irif. Se. That care wae called Monday and Toesday, and on Wednesday was postponed for another case whisl had Precedence On one of these oocasiona Dr. Bardell was intros.oed to Judge Dean, counsel for the defendant, and complained of the portpmement. Mr. Taylor places the ‘event oo Monday, Dr. Putoam on Tuesday, while Mr. Par sous reyes (hat Judge Dean wes not ia court om Monday, aod Mr. Barnard wat he was pot there on Tuesday, but atiended for the first tme on Wednesday. Mr, Tape testiiies that he rerved @ subpona in that cause on the deved ime It could hardly have been Tuescny, Jodge Dean waa not prevent tben, and the provfs show that the decedent was at the Artisans’ Bank anti! a late hour in the morn'ng, nor Monday, for then the radpcons yr Mr. Barnard enye would bave been served on Sunday. The attorney tm the cause bad died, it wat newesary that countel should be called 'p, aud the day to which the csuse would be postponed wee entirely uncertain the court opened on Monday a, Yet Mev aye the subpe wae handed to bim to eer 7 or 8 o’clook the morning. Would « ave been drawn Monday morning, the 27 Tors © ciook, returnable on the 2th, before the cause bad been cal ed, oF it was known that it would be set down for the 98 bi 'T think pot, and am satisfied i, was ow Tuesday and wot on Monday Mr. Lane served Dr. Burdeli. On a review of this evidence and bearing in mind that Mr. Fraser and ry Dr. Robert# and Mr. Barlow, determined their eo by facts which bad duplicates ia their main features. ok it mantfeat (hat Mr Dovelaae etande alone ae pre en ven aey pomive Laimony yuat Wow doveawul wae 1D | ew Tork wt die time ip qeesuon, ‘2 Was beat this village of Herkimer? Mrs | W lson, the decedent's courin, states that be was ai ber house, in Herk mer, oa Savurday, Sanday and Monday, the 26\h, 26h, and 27th of Oowber, ane accompanied ber to church Om Mupdsy; wat rhe expected to visit | ber ister, Mrs, Williams at Brroklyn, the eame week, aod requesied ile Doctor to wait a day Jopger jor ber; esbe bad eritien to her sister phe weulo be with ber or Toeeday, bai sent word by the decedent she would be down on Wednesday or Toureday; op Wecnesday she left Herkimer ber bi d remaipiog ‘on account of the approaching election: and 4 took tbe steamboat New World, arriving at New Yor! lete as 3° M. on Thursday. The clerk of that steamboat p owed that the pame Wilrom was entered twice ia the re gister of tbe ladies’ cabin op 88 b Cotober, and that the Desi was detained until 220 P.M. the nextday. Mra Wi ''lams testified she bad expected her sister, Mra. Wilson, on Saturcay, October 25, her birta cay, received a lettor # ating she w tld come the noxt Tuesday, that on Tuesday evening the Doctor cailed, stated that be bad beon to flor kimer; bad arrives thay rete. and that Mrs. Wilson would come on Thureday. He sp ke of the raistug of a liberty pole while he #as at Herkimer, and mentioned tat be hac been at church. On Thursday, Mrs Wilson arrived jate in the afternoon end stated that ber busbace wo ld bave accompanied ber but for his wish not to lose his vote, Mrs Williams did not produce the letter she referred to, but she is Corroborated in most of her mate. rial statemens by two young girls, ’hebe Lipper and Hanish Denman. The birthduy of the latter fell on Satur ony, Octover 26, when sbe hat expeciet a party, if Mre Wiison should arrive. This is the only ¢i Mra. Wilsoo was in New York, from August, 1856, uatil the 185%, Eli Taylor, proprietor of a hotel at Berk’ , pur. chared by bim of Dr. Burdell, states that alaw uit, to which be was a party, was iried at bs house on Monday, October 27, the last day (o which the cause could be a4 journed, the summogs having beea issued months. ‘He was under the impression he observed the deosdent oourerti:g a bis counsel, of Mr Earl, during the the trial. He saw bim at church with him about it. Bo eaye the decedent arrived inte in the afternoon of the 26th, and be told bim that Le had beon to New York a fe dsys before, and on passing Bond street had thought o giving him aeall, This wimess further added, that be left nome Fritay, October 17, registered his name ai tie Delevan House tn Albspy, arrived in New York on Satur day, went t Danbury the same day, returned to New York on Monday and reached Herkimer the next day His brother and sivter in jaw, reaiding in Now York, testiled thas thie visti was three weeks after the decease of their daughier ov the Sd of Osiober; the latter eays, ‘ abou’ three weeks after, I think’ Ths is pot a very dodaie contradiction; the difference is between two weeks and tnree; if three, then Mr. Taylor wa not present at the trial of his sult on sonday, October 27. Mr. Taylor is accurate, however, ib oue respect. He says the ceceden| tpformed bim Mrs. Wilson expected to have made the journey wih him from New York, This cir cumstance occurred a the end of November, and not ia October. Mr. Taglor bad a register at nis hotel, bat at thin period {t seems net to have been generally used Cepbas Johnson, the Justive who tried ine cause of Tay- Jor apd Geay, places the trial on the 97th October, tne last day to which it could have been adjourned, for which reasep he made a special @ppootmeat at Horkimer ou Monday, bis usual! court days being Tuesday and Friday. Be recoilects that curing tbe trial a cenileman came into the reom and covversed with Mr. Earl. After ne left he inquirea of Mr Earl who he was, and the reply was « Harvey Burdell.”” He states also that there wasa po. litical convention at Herbimer on Sat :rday, Ociober 2 Isaac A Munson, who bes !\cea Justice of tue Peace aat Goonty Clerk, de) osed that be saw the decedent Saturday evening, October 25, at the cvlebration of a fire com Tany, ae the witness was on bis way to sp unfutsned bose into which he moved November 13; that ne again opserved him on Sunday going to Mrs, Wilson’s, and on Moptay @! tbe hotel where the trial was in progress Christopher 8. Witherstein, County Treasurer, testides tbat as tbe celebration of the dre company of which he was forrman, Dr. Burdell came up to bim in the itreet, aod made aome commendatory remarks ia relation to aijver trumpet won by the company atthe Montgomery county fair in September, The Company wereia the habit of iurn’ng out only on the last Saturday of each month from Aprilto November. Oa this occauon there was a parade and atorcblight procession. Dolphus 3 Psyae was sent from Herkimer to make & political aketcl on Saturday 25th of October. fe returned on Sanday, and evates that he saw Dr. Bardell at tea, who con- 1 versed bim in reference the Mi meeting td Wich be bad been, and also in regard te bis attendance Wohurch that day, On Monday, at dinaer, logether about the avit of Taylor and Gray. Kari, who was the counrei of Taylor iu that trial, says that the decedent cailed at his office on Monday morniog, ard was anxious be saould aid him in precuring the ais- count of some notes He came into the room atthe trial and conversed with him, The Justice inquired who be ‘wes. He identifies th; by a hickory pole rauing, and a county conv: Saturday He was desirous his brother, Judge , should try the cause, in order that he might attend to the Doctor's business, aud likewise to @ political engagement growing out of the convention. ‘Samuc! Earl, County Judge and Surrogate, corroborates bis brother {u regard to the suit and tne convention, and is positive he saw the decetont at dinner Cctober 27, and conversed ith him in reference to the trial. Ihave already stated that when be arrived at Sarat-ga October 31,0 Mr. Snyder testifies that the decedent said, He came from the West.’ This, of course, was not £0 at tbat precise ineiant, and the witness must have mis- taken the expression. At Herkimer he 10 Of going to Beratoga to Mr. Earl and Mr. Taylor, and stated to Mira. Wilton om Monday that he had intended to go there, out had been detained by the court, so that he could not fod copnecting train. Mr. Lafton, who came to New x= 27th, Socket ofthe fede Gray and Taylor was irregu judgment in Gray wes lar! entered in the aocket book out ot tte dasey but the iad mipules of the trial were prodused, dated Octover 77, a jogs! entry made by & pub ic officer at the time of the oo- currence and entitied to the highest credit. Is it ‘ble, then, this visit did not take place in Oo ober, and thai #0 meny witnesses speaking to 0 many and various circum- seances all concurrent should be mistakea? If some of these evens could be confounded with like occurrences nearly contiguous, others could noi. Mrs. Wilson made bus one vieit to New York that fall. The samo romarl: ‘pphes to Mr. Taylor. There was but ove county convea tion held at Herkimer, and but ope iriai of the case of Taylor and Gray. Again,Dr. Burde!! was seon ta Herkimer but cecarfonaily, apd Bis presence there would ant rally atiract attention. The events § thomselvos which cecurred at the time were especially roteworthy in a quiet country town, On any one fingle date connecied with one ingle fast wiiuceses may err, bet the chances of error diminish ae the o tnel ding ei tances increars in cumber, and the evidences acct culating from variout independeat rources converge upon the same point, Mtting harmoniously together und been copfirned by subsequent examination apd roilecuon. There is nothing [can peroetve sufficient to {in yogn of ehake {t, nod {t must stand ae ry couctusion up yn the facts. Il Inow approach tue proo’s produced to sustain the allegation (hat Dr, Burdel! was a» party to the cereuony, the evening of (.ctober 24 1. Mae Helen Canningbam tostifies that the decedent geyo,hier mother a plain gold ring, “put i oa her dager, and “told her if eho did not like it #ho could got ‘it changed.” This ciroumstance is important if it occurred bout tbe time of the marriage. Mr. Silverthon, the jewel ler, proved that “some time in 1866,” Dr. Bardali pir- chased of bim « plain gold ring but be could mot ideuufy it. As to the date of the gift, Helen said, “I cannot reaem.- ber the date; 1 think tt was before October last; !t was be: fore the 26th © October. I don’t know whether it was a week before; 1 don’t think it waa the day before.’’ Her risicr, Augusta, ways this same ring was put cu hor mother's bard by the decedent the night of the wodding, tn the street; Dut abe also staves very distinctly that it was ven “in July 2. Inthe afternoon of the 28th of October, Mier Helen Cunningham teatifies that her mother “war drosming in her room, and she said “she was going out witn the Doctor,” “1 think between seven and i, very near eight, mo ther came down tn the parior; she and the Doster both came in togeiber, mother came to about the cenire of the room and tbe Doctor leaped against ope of the pillars by the folding doors; sbe then taid rhe was going out wi the Doctor, that the suite bed all been withcrawn acd eve-yihing was to be settled, end that was the 28th day of October; mother weat out of the room and ihe Doctor with ber; Augusta war there, too; she waz standing near the door \n the ball. * * They went out togetber, the three.’ Elsewbere she tayo“ wee o litle eurprised she was going out with the Doctor. as they bed beon cut before whils they bad ibis ulty, and J asked ber whether she wat going oct with the Dostor.” * * “Tne witb regard (9. my mother ht was, 1 beard some one In tho went to the bannistere and looked over w my mother, Augusta and the Doctor. The 4 eomething sod they were both lenghing when up ; by bow | mean Auguste and mother, ‘They alll went t© ihe Doctor's back room, secsnd story—I then went up stairs to my room and retired. * ik must have been near ten o'clock when came in, The Dector was laughing, ! believe.’’ Before the Coroner, Heles fiated that rhe BM see the parties on thelr return, end bad not seen Mr. Fcke! since breakfast, whi'o oo thie tria! ane said that Mr. Eekel,on coming up from toa, spoke with ber, and was afterwards two bours in his room with a visiter. Tnere are discrepancies, also, between | ber account and that cf Acguata’s, but ell l am not tm. clined to impugn the main features of tho narrative ja given, The valse of the occurrence as a link in the chain of evidence di dz entirely upon the time It might very well bare ned on the eveuing of the 234 of October, tke day the euite were retled, and it comporte with that date more than with the dale of the marriage, the drift of Mrs. bar's romark ro lating vo the settlement of the multe alone. It ie manifent also that Helen at this time (iret board of tho settlement of the pcita, aod it te not likely that teformation eo lntereeting would have been withheld frem ber five days 3. The Darrative of Mise Avgueia Conningham in refe- rence to ibe marriage, | rball give mainly io bor own words:—"The Doowr ‘iret requested me to witness the arriage Ceremony on Sunday morning next preceding the marriage; the Doctor ‘rt spoke to me about he asked me if I id bo willing to be & wilaess 4) ® marringe between mother and bimself; he also mated tb wanted me to keep jt ® seoret unui! Jane next, tha! he then iniended going to Rerope with mo- ther, he aise stated that be would take me with therm if | wished to go; my motber tas (hen present he asked hor if | coukl Kee) ® fecrel, and eho said he most ask | that question of myself, le also stated to mo tha: mother | Was going to Goeben to tee if she could get lr. Sandcrane | to come in town to marry them, | asked the Doctor if it wae to be atthe house; be maid i: was to be thy then asked bim why be he bed promised | ©1@ while she was vrance that he had ewan to bo married before Jume next mother told mel should not ask any more quertions about it. I then left the room, leaving the two there together. * © The reat morning the Doctor told me mother bad gone to Corhen ‘or Dv. Saodgraas. * * | don’t think ho epoke stout it again wutll Toesday morning, before breakin, betweon seven and eight; on hi he then asked my mowher wuat her age was; she | ye valid thirty Ove * * © He had He swith Wim. wiih We Meretn, pos ce Mrs. trorepram had given mother at Goshen. He sated that be was gving w the Dank aud athe would seo pacberipg strength by mutual cerroboraton. This view | mpremed my mind When! beard the testimony, apd aas | Mr. Marvine before be returned did mot see him then pT tbe evenil —-he was in the hall, be “T Baye aooompiished | the lous and the deyerture from the bouse, thal as they were pass. | ing ovt they met Helen “in the bali, the front bal!;’’ aud her mo.ber told ber “to remomber tots wight,’ but men tioned “no reason.”? Continues the account by siating tbat this was between seven aad eight; aisowhore she says “betworn aix sed seven I think, near i eoveu 1 tbiok;” | that ofter learwwg the bouse her mother said she “had leit ber gloves,” and the two stopved at arr, Sollenback' bali ax hour while the Doctor went to buy gloves; he bougbt them, and the then prosecded to the clergymen’s, where the ceremony was performed % the way home she made the remark to the Doctor, What be would pay” should she disclose the marriage’ and be answered be would “kill” ber, Her mother {a quired why the cecedent had not given Mr. Marvine ‘the ring?” Be replied, *He did not ask for it; he would put itop ber finger and say a few words anc! it would do just ‘a+ well; he then pat a ring on her finger in bo street; the party arrived at home about 10 o’ciock.”” In regard to » babitation she testides that the xewly married couple slept Wether that night, and adds, ‘(My mother slop} with in bis bedroom when Mrs, Snodgrass war ibere; I generally stopped there in the morning to kaow If sbe bad any word to send down stairs; stopped at the om door, knocked—sbe would answer; it was the bask room abe alept in; I didsoalmost every morning from ths ime of the marriag \ways answered me; thai December—uaittil the time of my sister's Io weighing testimony, and es pecially in comparing statements made by the same wit- ness at different mes, regard should bo had to the Grmily of the memory and the Lkellbood, even with sa Acnest and ingenoocs person, of variance tu respect to col lateral or circumstantial inciventa 1am disposed to make every opened allowance for such accidextal discrepancios as might be reasooably expected in wetimony given at con- siderable interval wnder circumstances of painful laterest, agitation and excitement; but on comparing the evisence given by this young lacy at the inquest and before me, I am constrained to notice tmportant variations, manifestly occurring Wo sult preeent exigencies. Bafore’ the Surro- goie ehe elated that the Doctor was the fret ono who spoke her on the subject of the marriage, and Qo did so fret on toe morning Of the 26th of Ostober. Before the Voro ber the eta'ed ber mother was the frst w20 spoke about il; the cid 80 4 month or two previously, and the witness immediately afer—on the same day—had & conversation ith she Loetor to know if ho was willing rho sbould be @ Witrees. Betore the Surrogste, ebe stated the Doc’or said her mother was going to Goshen the next cay to invite Dr “nodgrasé to perform the ceremony. Before the Corouer, sie stated ber mother sald tho time was po decided. Before the Surrogate sbe statod that the Doctor mestioned to ber as the reason for secrecy a promise (0 his cousia not to marry while she remained singiv. Before the Corouor she tated shat the Docior “never sald anyihing to ber’ bout the rearon, but ber mother had remarked it was from fear of being la ighed »! «cr his professions of cell vacy. at the inquest, the Rey. Mr, Marvine is reporied to kaye testided something in relation to mskirg the sppolntment for the wedding at au hoor iu the evening afer be returned “from a religious meeting.” «iss Augusta was examined efior ihis state- ment, 80d When asked in regard to the time ia the evening ‘ho wedding took place, said * it was after the minister re torneo from meeting.” “Q About how late? A. He came there about $ o'clock, I think, and said he had to go to a prayer roeotivg, and if we would come back inan our or an hour aud s baif, he would be in from meet Q. Weil, oi¢ you go back inan hourasndahait? A. Wo did, Q. That would bring ttabout balf-past 9 or 10 o’clook® A. Yes, stir; comewher ’ Before the Sarrogaie Mr. Marvipe stated that the marriage took place at the time appointed. He bad not been occupies or de- tained by avy clerical duties, and remarked when the paries “came in, ‘you seo punct uel.” Augusta, who was examined subsequent- ly, then testified for the first time that the cere mory tork place at 8 o’clock,, and the clergy man on com- tng into the parlor sald, * You see I am punctual.” Be fore the Corone: nothing was stated by ber abou; the ring or the visit to Mrs Sollenoacks, which appoared {a proof after abe was examined. snd the la‘ter circumstance was iwtroduced by bor Grat before the Surrogaie There are other conraciotions between the statemen 4 made by the witness at the ixquest aod at this trial in refereace to Mr. Eckel. the cohabitation of the decedent and her mo- ther, and the lease of the premises 31 Boad street, but the variations | bave noted are 80 adapted to suit the ‘changes and pbases of the case, and the evidence of other wit- nesses, thst {i is not important to pursue furiber this line of comparigon. Thus iar we bave the positive declaration of one of the claimaxt’s daughtera to (be identity of the decedent as a party tothe ceremony performed by Mr. Marvine But *ne stands self contradicted on imporiant facts: ber statements have varied from time to time, and the minute particularity with which she has given conversa- tions with the decedent relative tothe marriage oa the Sap and Monday before, brings ter im direct collision with the mass of testimony showing that the decedent was in Herkimer at the very time these preparaiions fur the | buptiais were in progreas. It ie to be observed, algo, that the ceremony was appointed for 8 o'clock. ‘would uatorally leave Bond street in time properiy to mect that engagement—the oversight as to giovos was not noved until after they isft—yet they passed down Broadway bo- yond Bieecker street some disiande, tarried at Urs. Solien. back’s balf an bour whi.¢ the Doctor was in quest of gloves, which might readily have been ob'ained on the way, aa afer this long delay, proceeding on foot, though stages were at hand; still they arrived ai the man's house, 1p @ distant part of the town, at § o'clock. This was ali ac: complished in the & pace of an hour at ihe farthest, while their direct return home after the ceremony occupied nearly two. Suppose the proof to stop here: cud @ secret mar carefully kept concealed py op on is remedied by other 4. The occurrences connected with the marriage are thus stated by the clergyman: The gentleman Srat called the mornibg of the 28th of October, Ate at » marriage ceremony. This interview was defore 12 o’c'ook; be would not say it was before 11; it might havo been between 9 and 12. He took s momorandum of the names and other yulars for his register, which were ascertained by luterrogation. From his habit on such occasion, be thinks someting was said about bripging a witness, but the name of the wituess was not communicated un'il the evening. The party requested bim no} to publish the muriage, aud aa appointment wae made for eight o'clock that evenirg. At the designated | time the gentl/ man called with two iadios, aud the mar. | riage was i ot knowing “bow to act’ Ar. Marvine said be FY “faint impression’ ibat the request no} to pub! 18 marrisgo was renew. d in the eveuing by the gentl.man, | no! by the lady, ho was “ure ’ The man paid bin a feo ‘and requested bim to oflici. | gay whether it was him or pot,’ him, or resembied bim, thet ts all I (ibe heey | 1 could pot say tt Court of the 1 death disdgur Trew the man living I could gives better guess, the man dead is was prety «ifficult to give a guess” “] saw the daguerreotype lovked lite him, and that was allleaw; I didn’t say it was the man, and I dide’t eay it wann’t, nor can’t’? * ‘Tcovid ant eee whether it was bim or not, oniy it looked like him’? Finally, whoa interrogated before me ss to hor belief of the identity, sho | cores, “Toan't eay,"’ and refured to speak more def. ¥. | 7 There is a large mazs of testimovy reistive to Dr. Burdéell’s personal appearance, Rev. Mr. Marvine de | seribed the man be married es bavicg a moustach®, | long and large whiskers about the lower part of the face, vot heavy at tho side, vory black, bair dark, medium, ia abopdance; whetber the face was full er thin not reco)loct. e4; complexion not fair por dark; height five fect eight or nine inches, weight 165 or 170 pounds. He was | “slow of 8) voice not musical, “stooped con siderably,” and ‘‘waiked something lice @ man of 60 or 66" He says, “I do got remember to bave cavght his eye at any time.”” He was neither “very cheerful’ nor ‘enthusiastic’? 'm the maiter. Br, Ubl eaid the decedent bad ‘two different names;”’ that im regard to personal business of @ delicate nature be spoke slowly, aud there would be long intervals bet con the sentences, and at other times his speech was rapid, qvick and sharp. Wh this exception, the whole bedy of evidence in the cause exhibits Dr Burdell as quick of speech end animated in motion. I am tne ined to ‘think that ip stature, or in arep ), there was some in- clination, or stooping. The natural color of bis beard was light brown, mixed wi h gray ; but, as bo dyed his pair, tbe appearance varied. At the time of bis deoeate it pad | been recently dyed. 1 bave no couddence in this mote of jacntiocation ; it cam rarely be satiefactory, and cortainly tg voi in this'case, There may be goneral similarity ia many details, and yet gr cat difference {n their association, iz conour, ard in expression, The combination au ar rangement of the human features and lineaments are ordi- narily eo uriguein each particular person, and the peoulis nities of tndividual expression, tone of voice, gesture and carriege so marked and striking, that to a familiar acquaintance or friend there can be vory alight hance of mistaking perconal tdentity Still, «© constantly meet | with general as well as particular reeemblances among ‘he mijiions of our race, which often dedsive the casual ob- server, and which, whero fraud is designed, may easily be mace the be: if crimina’ )ersonatious, with the ald of art to belp nature It is obvious tha} in av effort t> Pass a counto:felt partuer to a marrisge contract there would be ao attempt to come as near (Le genuine as pos sible. Cortaily, wll startling discrepausies would bo avoided, and the closer the approximation toa simili!ude the greater the prospect of success, It is consistent, werefore, with either side of the tssue in this cause, that {a the inventory which bas been made of the features and characteristics of the pereon of the decedent, and of the person married on the 2th of Ovtober, there should be some goneral | resemblances. For example, as to height, it would have been folly to preseat @ tall man in the place of the decedent. Then again, !t must net be overlooked ‘that peculiarities of the voice and mvnner, arrengeaiens of the hair, apd carriage of the person, may all be (miated more or less closely. In these respects a tte having s fair opporiunity for observation, could notara — general thing be deceived. Faxiliar intercourse prodaces | that kind of knowledge which acts {nstantancously, by su immediate and 811 process of recognition, We donot, | at every meeting with an acquaintance, beginto compare | foatures, aud reason on ile question of identity, bat we re coguize the whole object as a living unity. Caasges ia Teonal appearance, Conseqient upon sickness, arrsugs ment or color ef the hutr, Go pot, unless the departure 90 | great, diminish the power of recognition, and dress ha: vory litle influence. Where persons, however, are Dot familisr, these circctnstantials aro of Consequence. If, therefore, tue intercourse has been slight, it 1s impor- ‘Sant (bat the elements for comparison should be as nearly alike ag posrible, in order to secure recognition. Tre first diMicsity In the present instance is, that Mr, Marvine was called to juage of the identity of a living bel body. Tue decedent came to his end by a sudden and vio lent death. Dr. Ubl testifies that at first the change was So great tbat, but for the ciroumstances, be would narily bave recognised the corpse. Or, W. B. Roberts says the whirkers were ‘dyed blacker than ever,’ and he “should hardly have known him ” When the body was examined by Mr. Marvine, on Sunday, the appearance bad become more natural, but not so much asen succeeding days. I do not observe, however, that Mr. Marvine pcinted out apy ober marks of resemblance at the second exami- pation than were noted at the first view. At! the best, the alilerence between life and death, the wound im the face, the change of and dress, the closed eyes, the rigid mouth—motion, gesture and car- riage gone—ail tended to present ditlereat elements of Some of these differences applied ype likeness, and it is a ter of common observation that even precess of portaiture ia not uniform in its resemblance. The power of perception and accurate ob- _ servation and the memory of forms vary ly ‘ine states that he porserses no ~~ faculty * “ftold Dim | Mr. in this | pei and be not ready id not know if he could have re- | if it hed been the mam he mar. certain. — y The interviews occu in the | Space of twenty four hours, and presented a proxi. Tate succession of visual im) ike = single obeervation, and not such a repetition at dig- tant {ntervals, as would call for an act of the memory and | po BS rg There was s iapve of three months between ates of comparison. Under aul these | rred difSeuities it would not have been easy for a person of | ordinary observation to ve with posi- | tiveness upon the identity of the two objects. Lat what Mr. Marvine did and eaid whon ly. Ho was taken to view the corpao, wud was then requested to state whether that was the body of the man he had married. This was done twice, and under ciroumstances of such striking reeporibility as would osturally arouse we fa- culties and intensify their action, and lead hia to probe bis deepest recoilection. There ere va rious versione of what he tald on these occasions, and a large part of tho time of the court was ocsupied ai ‘the trial in we effort to exhibit his statements and opnduc\. In reporis of conversations from dilleropt observers va- riety is to be expected, the substance being presented through dificrent minds ‘snd memories. Somotimos great and palpable errors occur, but in the evidence on ths point OW reviewed there isso much substantial harmony be tween the witoestes and Mr. Marviue bimgelf, that I prefer to use his Own language, especially where the course and operation of bis own mind are vender examination, aud ihe witnees has laid is bare with frankness and candor do- of $10; something was said aboot bis calling for a cert!) cute the next day ; ‘be wauted a certificate,” and | The man “sat down iv a chair and read it to birnself,” | | “appenred to read it with deliverstion;” “when he got | throvgh reading it he nodded his hoad and said, ‘all right,’ or rometbing to that effect.” “Iie made no | ne about the speiling of the vame Berde’l; | me to make ap) Correction. I don’t know of an COM FOTEALION—that was tho subsiance of \t; then lef. Oa the point of recognition, “since the murder I have been very 1 | | | the matier, acct bave thought a great 4 called the features and genere! appesrance of th ceased, ard compared them with the festures and gon apcesrance of the mea! married. sad the more I have done 10 the more I am convinced thei the man l married was Harvey Burdeli’’ On being eked if he bad any doubs whatever upon the subject, be replied, “none wiat ever.” 5. Ip regard to the certificate, (here are several circam- tances deserving aiitention The piace of nativity of the York City,’ taat of tho gon loman, indy ia etatoc at * “New York.” Why thie difference? ho Gret is partica lr, the Inst general; the Oret was kaown: was the last =enknorn! Cortainly, if Ne York” bo taken s# applying to the city, wo then encoun. ter the fact that Dr. Burdell was born at Herkimer. Again, we Ond from the testimony of Mr. O'ney, who pro tented @ bill to the Doctor, December #7, that he wae quite reedy on ® (rivial oocagion to observe suca a mi pall x | of bis pame aa Berdell, Now that |s the preciee error com mised by Mr. Marvine in the marriage certidcate, and he (hought it eo material that when it was soci ly dis covered ue sitered the register. But the mistake was on- heeded by (he bridegroom. The occagioa was important, the cert. ‘cave was “wanted” —wanted as evi ite ac curney Was Of couacquence—not being roady ®t night, for it 8 dated October 20; it was called for the ersuing morn ing, it Was read with deliberation—the party sitting down io @ chair and scamming it—and it was pronzanced “all right.’’ Was that uttered by Doctor Burdell? Sul forther, the marriege was secret, and to be kept seorck Was it probabie, in view of such clsades Unity, Haat the decedent woulf call at the cie A house in open igh ano yot tat fact ie diet! ith white gloves on bis bi nouy teetified to by the domestic who sémilied the person calling for the certificae. Ai the first interview, as the man wee leaving the door, Rev. Mr. Marvine stated he thought be saw “ day- light between bis whiekers and bis face,” at the side, from ear to & point on « Lit i thought they were false whirkors, and had aprung out & litte,” “I remained so impressed up to the second io torview:’’ 1 did pot notice particularly at both the next jem; At those times ] did not notloe that thoy were onl bave probably operated ase bar to my marry! } | ] 1 ng them if I had discovered aay desoptiog. Agala: It was my design pot to perform the ceremony if I dist wiih the mouth. covered deception,” “I raw no indication whatever at tho two inst \imen that the whiskers were faise, The impren sion made by my trst observation was removed.” Now the rurpicion ip regard to the whiekers being faise was not excited at the first meeting while the person was in tho parlor, por until he was leaving the door in full day light. At the time of the marriage there was only one gas burner lighted in «chandelier, and on the third occasion it does Bot appear whether observation was ronowed at the door. If they were {also whiskors and “hed sprung out s little,” wt tho first interview, it doos not follow that the same accident would be repeated. In any event the impression made on the mind of the witness was so strong azo be the subjector remark in his family aad cise where, Tir. Parmley eaye be “welt on tne falao wht: ert,” and [cannot bai regard \t still as auspicious cir comstance, 6 At the time of the tolomnization of the marringo thore were two domestics in the other parlor, privately, in the dark, observing the procoolicgr. Only one of there wae examined on the trinl, Sarah states that abe lot the partes in at the door and thowed thein to the parlor; “u)) pot fake much novice of the man: he was man on his foot; he bad rome kind of w: Mr. Marvine tay to bie lady that tho whle that they were faire the % ico, stout ; heard were full, Tne Indy wan dreesed in biack, Te open (wo and a baif of three feet, and got A peep a: them now and then.” During the marriage the partie 800d “site eaye’ to bor. She did no hear the gentieman requert the marriage should not be published, but says“! beard ihe Indy any ee did not wi the marriage to be known: « “peard it and made an anew eae 1 it the married, the next morning at breakfact, (eight or owe o'clock.) 1 dida’t pay mnvoh attention to bie face, I didu't pay wo attention, only he bad whiskers, an’ white gioves on bis hi inquert, Saran recopnired the claimant aud ne the Tories eho wera nemsent at the niet! J the corpre and serine: “i could mot nay Wooked very Uke the maa that was married, Neg doors he said it? Mr. Marviae ack.” The witness also geatioman in who wat when Mr. Marvine was rame At ihe iighior ae ; Lepoaget it bas { eoulan’s { euievn0e | wey, sod thin theorizing, are ,yery mach in the way of & ningbam at all. Shorty before he # court he visited her at the Tombs, and says went, and the frst look of the woman ii Gasbed more pon’ my mind then ever that she was the wouan [ | bad married; or, tn other words, she thes ressmbied more the woman I married thao she did whea | saw her on that Sabdatn; Tam perfectly satiefed that she is the woman I married on the 5ih of Ootober Iast.’” At the Qiret {uterview there was an utter aad absolute failare to recone; ai the second, it (lashed more * upoo bis mind then ever,” rhe was the woman we married; and (loally, be \s * perfootiy eatieSed of it.’ A process somewhat similar, excopt that at tho octsct parilal resomblance cbrorvéd, took piace in regard to (he man. He #ay 1 fwore before tue Coroner's jnry that thero wore sirong poin's of resemblance betwoen the doad mau aul the nn | iaarriod: | wen't sey that I said strong pointe, but I fold pointe; I think I mentioned more than one potut; I meniicned particularly ‘About the mouth, end I may have mentioned, and I think | did, that I merried & men ebovt that height and weight; I dons member whether I stated anything about the moulb more than |: bore rome resembiance; | den’t think I told ia what reepect the resemt ance was. | thik tuere wee rome eioilarity about the mou.” * * ‘I think mentioned the beard an’ balr’ * © “7 think the Sneirict Attorney, showing me the daguerreotype, asked if Ll recognized amything there in ike man who caine to be married, or something like that.” Q Did you not an- or 1 think [do abort the wouth, here it so lite embiaoce | should not like to swear tel?” AL OT think that is my reply to the word ‘baty’ afer thet I do pot remember saying the rest of ibe reply.” Q. When yeu were previously asked, ‘‘Is the body that of the man | roo married,’ did you answer, The man I marriod had ‘arge whiskers,” and waa that all the auswer yos made in Tespect to the man’ A. ‘I presume [ did eo answer; | (: ink I did, because the man | married did beve larger whiskers —noet thicker, but longer | doa’t remember whether thai is ‘all the answer | made to that question, bat, #2 far as | now recollect, I think it was.” Q. You were asked, “Had he & moustacher’” and you answered, “I cannot say.’ A. | “Tt waa something like that, a debious expression; | think | 1) was; I cannot tay.” Q. Were you arked, “Do you re. cogni#e eliher of thee parties as she ones who oain® to your house to be married?” and did you not answer, “The worman | cannot recognise at al); the man had larger whitkere; the deceased has no whiskore, except a goatee; the coler of the hair en the face of the decearod « man | married iz the eame!’’ A. “I think I did bis second examination before the Coronor and after he bad seen Mr. Eckel, Mr. Marvine sayr:—I stated that the body op staire resembled more the man | married than the man shows to mo as Mr. Eckel.’ Still fur- ther:—“I did not say 1 recognized the body, mot in those words; do not think I told them 1 believed that to be the body of the man I ied, for they | ‘asked me no question to lead to such @ remark.” Now ‘nothing can be plainer than that Rey. Mr, Marvine was called ns @ witness at the inquest solely for the parpose of | \dentifylog the parties be married, and oa the general question of recognition he wan moraliy bound to make w# | foll and free a developement as lay \7 Me power, | have | no doubt that he did, | We must take him as answering ac: | | | \ ¢ cording to hie knowledge at tbe time, Ho justifies having fren no pouitive opinien oo that ovcation by saying, “I not deem mytelf justified in doing #0, insemuch as I id not bear the man speak, which If ove important point in identify ing an indiviaual—the vc ice and the altitude, tae porition of the body when standing” This is trae, bat these potnte are just af important now as they were at tbe time of ‘the Inquest, Mr. Marvine ais free adinite that be has deen theoriziag upon | of — idemiifor When he first | ling No. St ond etrect, the idea waa preached” Into him that Mr. Dickol was the man; he “wae | a! Impression” before lie saw the corpnr, but he | faith iu that tucory was mightily shaken when p and #ae the deed boty. That was one of the | | wet reasons, afer I iad seen the deal body, 1 war not willing toswoar poritively, Ibad uot at that time got entiroly free from tha; theory, and sappostd, whon I aww [okel, T ‘id wot know but I mignt sev the man | bad marriod '’ Again, ‘1 thought {t posable I might cee a man in whore there were more polvie of reser biance than in Dr. Bur deli. If thie was poarible in regard to a comparison with Mr, Eokel, ie it not still possible im regard Wo other persons? Who can say whethor Mr. Marvine roight not yet be confronted with a man “in whom there are mere pointe of resemblance then fn Dr Burdeli,” and so be justi®ed in taxing another theory? On eeaing Mr, Fokel, Mr. Marvine evntinaed, “my theory war all gune,” and “T took the other theory, thal Burdolt war tbe men; 1 Was a6 confident of It as of my exiatence.’” Mr. Marvive rtsior, algo, that since the docedent’s doaih he bas conversed with a number of persons who have do- peribed the f msm] ebarac erintion, appewrance an? man pera ef the decomaed, and the degerintion has Ineariahty Ved wide is Ow t This sdrminmion of aver “Taaid it looked Uke | clear and | intention of |b Hetew phout tree ‘woaduileatet act of the memory If the wit- ‘nose has been fo differen’ theories, has bas sllowed hie mind to be otters, has been unwilling jou ope mn until be has juet ne resemblance at all Blater eps at the inquest, and I musi do hit tay that, alter a careful vary fom bis testimony tween bis poeition at tha; sions, notin facts. His evidence before me as ta Jimited “ to some resemblance in the mouth,” the color of the hair and beard; the size and weight of the body; ‘and as to dissimilarity, the length of the whiskers—in regard othe moustache—at the inquest he could not say, but pow he recollected it; 1 may adu tha} Fe the resemb! ‘bout the month relative to lincament Or expression could not be very ve, as the lower part of the face was mostiy covered by the beard In the absence, then, of an act of distinct recognition after twice being placed on the stand, these are the points of resemblance — which ] am asked to pronounce the icentification of a person fo © be made out ia a case of secret and di @ legal conclusion. enough, Im my judgment, that Mr. Marvine did wot recegnise tho man, allirmatively, when he was invoked to test that very question, That was the whe ic object of his examination of the corpso— twice he was ; he daguerreotype was shown to bim; he eaw Mr Eckel; twice he wae piaoed on the tivnd, aud bo never spoke to ea act of recogaltioa, Dut oly 1p regard to resemblance, in regard to which he rea- sped, (Leorzed and com;ared’ He did not find the same picture, but some similitude w tt, n9 greater, in my ovin- jon, oar might be expected in au effori to simulate the person of the cecedent; and if at this moment @ porsoa were produced who presented more points of resem biance tothe may be murted than Dr, Bardeil, we might resonably anticipates change of his belief and oonclu- sion. 8. There are several consideraticns touching the circum- stapc s Covnected with this marriage, and other proofs ad duced by the olaimant, which may weil becontidered here (a) The gentleman called on the clergy man three times —twice in the open day: (le ach was bold, out no bolder tran the daring requisite to achieve @ stim lated marriage required The first visit, if crime were designed, was ne- esary to make the arrangemerts and insure secrecy —for it i observable that the {ojunction against publication was made and @ satisfactory reply received at that time. The Inet interview grew out cf the fact that the certificate was not prepared at the marriage. sls urged, also, that aa application would not have Proposed to Dr. Snodgrass, ana 80 intimaie a frieud of bis aa Mr. Marvine woald not have been selecied to perform the ceremony bad fraid beea on foot. But Dr. Burdell at that time was not known to Dr. Snodgrass. Who can tell, bad the latter been found bom» a) Gosnen by the | claimant, whe ber 8 word would have been uttered touch ug» m ; and, Grally, (ae ovly witness who could have testified to the particulars of che interriew at Goshen va rotexamined. There is just enough in the olrcum stances to give a color of openness, and thatirall Angus ta states shat Dr, Bordell sald ‘he should like mother to 10 to Goeben,” and it was understood the wedding should ye at the house; and yet the decedent was not acquainte! with Dr. Snodgrass, aud not an eifort was made to hove the wizister selected ‘n his place to perform the ceremony ai tbe house. (c) Dr Ware testifled that he mot Dr. Burdell ‘With to ladies op the west sido of Broadway, crossing to the north side of Bleecker street, on the evening of the 2th of October last, about eight o'clock, and the Doctor bowed to Bim; tbat he was returning from No 80 Maccdougal strect, the house of a friend, where be bad called in consequence of a letter he received from bim thet day, dated the 27th of (october. In cvosa- examination it appeared that he had been to the same a place at the same time of the day on the same busin reat pumber o! times before and after the receipt of ler, and tbat be had not connected the letter with ihe occurrence in the sirget until he found the documeat a week previous to his examivation, after a search made at ibe !pstance o! a person interested for the claimant. (d) The claimant stated to Miss Van Ness, in Septem- ber, when the marriage was spoken of, that the Doctor, berself and Augusta were going to Europe in the spring. In November ahe told Dr. W. B. Roberts that she and Au- | ita were There is no quosiion but that the dece- mat- er eateel semacas as eoent eet ee & voyage to Europe, and after his intimacy with the claim- nt spoke of taking ber ‘and Augusta with him. During the Isat fail and winter he intimated to various parties the the next summer, or ip May or June, and larly and the | Poutes of continental travel. On tao 50th of October be to Mr. Smith of hay “ Indios” bit spoke of having gree my ‘ntleman always fared better “when travelling with o lady.” Not a witnoss, however, bas been produced ‘any recent deciaration of an inten- ion to include the it tm the expedition, exceps Or. Ubi, who testifies to « conversation of that tenor on the ‘ith of October, but, as I bave observed cleewhore, there is nothing sufficient to ix that date definitely This journey to Europe, therefore, does not tend to lish the marriage. The evidence only shows that a voyage, asso- cinted by Mrs. Curningbam and Augusta with the period for disclosing the alleged marriage, was talked of, but the truth of the fact would not prove the truth of the aasoci- ation, (¢ ) The marriage was secret. The avweurance of was Goitned Vetoe ino pererraanes of te sotto was ventured. On Mrs. Curningham’s part it was Ny corre with the utmost exaciness. Indeed, if it were a sd, it was that etlence should be preserved. Secrecy ia a badge of lees a fair and adequate mo- tive be preserted. Marriage is bovorable, and where ite duties are voluntarily aesemed by parties oocupying an in- dependent poriiion, there must be some strong and con- troilicg mstive to !aduce a suppression ofthe truth. The motive presented by tho claimant ‘s that the decedent had promised apother party never to wed while ahe remained single, and was not prepared to disclose the marriage unui! be went abroad. [seo nothing iu the case to corroborate that view. If, as the claimant’s counsel ar- gved, be waa forced ino this marriago—and If he was riven into i; by reason of the guile by which he bad been Asvailed, he might, perbaps, through fear of ridicule upon that ground, as well as bis previously expressed views in regard to the sox, bave been deeirous tha\ the affair should be kept private. On such a bypothosis I am not prepared to say there was pota motive But secreay and publicity cannot exiet together—if tho motive was enough to induce an eutirs ecclusion of the matter from bis family and iptimate friends, tt is cortainly very ¢xtraord’pary thet he should speak of it to mere acquaintance, as if it were a known thing. As @ slight tarn of the wrist way parry a deadly thrust, so as ight variation of words may give an entirely differ. ent direction tothe purport and meaning of ianguago, ‘The rubjeci_o” cwversation may be remombered, bat ‘bere the precise phraseology is metorial, the | of Umo, the Indrmily of the buran memory, the tn- Meonce ‘of the irosgination, the barmony or the in- Cunrimeney of thi woment reported with tho oon duet ef the party as otherwine indicaied, are alito be weighed by the Court in determining the probability ¢ Bien ‘Mr. Wilton testified thas he mot Dr. Bur- dell tn dey before bis devense, and on inquiring “ Ho Cunningham, M:s. Burdeli that is to oe!” received the reply, “He was sorry it was Mie. Burdell.”” Tho dis- like expressed comporte with the ober evidence in the caso, avd the tatroduction of a smal! particle in hermony with it, am ‘if’? would change the whole tenor of the brave, Mr Kaowlton di yeotor in December or coange Of property, when t ‘tle trouble in bis’ family, whether bis wile would be willing to deed.” There was a difficulty ai this ti tog from Mra, Conningham’s claim of a it wen mentioned to Mr. the evidence of Mr. Rich, his partner reoolloetion of words is sometimes ia- @ in very apt to detail bis in- ferences as cart of the conversation here ie fair room for question whether the word ‘“wife’’ was asea, or the witness drow an inference to that eilect from the drift of the conversauon. Catharine Lamb, who had been io the service of the claimant at @ previovs period fur three testified that some time in October, when Dr. Bur the clalmant said « tos conversation with the ‘ary, in reference to an ex- decedent spoki and sai? “be dido’t know her if abe divulged it. jeclaration of the viaim- berts, that mbo “would not consistent even with @ protended marriage and is not likely to have been made subsequent to the wodding, ib it may bave cocurred before. (J) Among the docoments found in Mr. Eekel’s pos. section, and claimed by Mr wae a writing im these words:— Harvey Burdell, of the elty and connty of New York, be- ing duly aworn, depones and anys. thal be has not np to’ thie eseni day, October 18 1566, made or executed any will or tertament, dieposing of hia property at bie deatm, or any por- or of it.’ In eae ane will oF testasaeot should ever Appear, previous to thin daie, (October 18 1866 ) the a to be an unmitigated forge: HARVBY BURDELL. is wuppored that thin paper, signed ten dayn be- fore the alloged contract of marriage, wae ason amurance to the intended wife, agaimi ® hoetile will. But & will could not affec; dower io real ortale, aod as to personality the wife's righis coul! be defeated at Any moment by a tertamentary intiroment If a now ‘Will was made a} thie dato, a previous will, whether false or genuine, would be In 0. 1 o&N 80 DO Connection between tila pacer and a contempleted marriage, auy vos ing that the parties understood the Jaw on thie mbject. If thoy did not understand the law, it (s impossible to reason tafely on the derign of the p 1. wae found in Mr Rekei's secretary, bal how it came to h\* possearion ia not known, He might bave proved that, bv ae was not sworn, and, nndor all the circumstances of (hic care, T shall make 20 preeumption of lawful porseteion because it was div covered in hit custody. Ove fact ruande out to bolt rolief en the face of the dooument: it refers in expl cit terme to the porribiiity of death, ard to the presentation of a forged will; It geome to origiiate from an apprehension that on hus decense tome frandulent paney inight appear, di of his property. Death and forgery sre the two subjects of this extraordinary writing Ii}. Although the evidence thos far in support of the allegation of the claimant is entirely fneufictent to identify Dr. Rurdoll with this marriage, still \{ on & full conatdera- tion of ai! the clroumstances, it is probable he wae mar. ricd, If, Instead of finding reason to question, there should ve w concurrence of facts tending to eatabiish the riege, then the defects of the direct ovidence might thas be supplied by the indirect and collateral proofs. It be- comen nece*tary, therefore, to inquire etil! further whe. ther tho condvet, treatment and declarations of the parties were concordant with the marital relation oF wore repug- hans to lt, ond wheibor proviows Intimacy and Intercourse rendered'a marrinen nerhatla es ‘Uunnungonm stale tat her father youre ago, and that Dr, Burdoll visited her mother la 1854, which must have boon abo” al the decease of the first busbasd, Hannah Conia tedtifies wo ciroumstanoes § ocourring in end elatements claimant im July 1866, There ia po qu stion that mer of 1856 their disturbed, and that aa: invariably ip the bighest terms Hoe expressed the belief that she was rich, praised her and her fami. ly, her capacity and management. He was with her ai Boratngs over two weeks, in August, 1965; be introduced ber to his friends, be socompanted ber to pariies, walked arm ‘no arm in the sireew. and finally pot only took her into bis house, bot eu the lat of May, 1856, leased ner the premises. His raole copduct showed confidence aed at- tention. Miss Van Nees rays ebe knew of pat sonar ment, and it was understood by both parties that should be the Le oy a = desoribes thoir inter- oonrse as inveriably tender and alfectionate, excepting ’” mentioned by Mrs Cam- to bis senses, and they were going married pri: iy.aad wore going in the to Europe.’ Dr. W. B |, who was a frequent visiter at the house, observed “nothing but kindness” in the mutual de} of the parties. The ciaimant stated to Mrs. Denison inthe summer that thoy were *; )? but asked ber ‘to keep it a secret.’ In September she (oid officer Moore she was “hw wife,” and officer Little “that she was bis wife by every to—that be had wronged her.”’ In September or Oc'ober she spoke to the Rev. Dr. Beechor of the ea- ement, but said her children were opposed to & [a one count of the complaint for breach of promise the date of the alleged promise is laid in | the sgreed time for consammation ‘the summer Jee, | and tbe breach “in or about the month of July, 1856.”” nother count the time for consummation is “ when be ebould be therennto afterwards requested,’’ and a request | averred September 15, 1866, This complaint was verified | Under oath by the claimant. Whether the differences be- | tweea her and the decedent arose out of the charge of stealing he preferred against her, or from jealousy on ber pa't,or from both there causes, there can be po doubt at all of the existence of a serious dif- ficulty, aud that it occurretd in the summer of 185 Nor is there apy reason to suppose the parties were ever restored to their origival relations, ‘They went together to Saratoga the 26ih of vuly, and this looks ke @ renewal of intimacy, but he remained there ‘only three ¢ays, ard the noxt we know is the of the papers in the breach of promise suit, and the violent outbreak in September in re to abstracting @ note from his ate Prior to July in barmony with # projest of marrisgé; in that month the claimant bas ceclared under oath a breach of promise took: place; and thenceforth, up to the time of his de- Cease, the general character of thelr relations were marked by boatilliy. He was not free in his denunciations to Mre. Cunningbsm’s friends, but with bisownthere was no mea- sure in bis {nvective. There in no proof of vacitiation, Dur- timacy he spoke of her with respect, during , with every token of resentment. There ‘opg!y marked goneral current, first in one direc (ion, end then in the other, with little, if any fuotuaon. Ido pot mean that they were in constant altercation, or that appearances were not measurably pre- terred when Others were present, or whon be wae conversing with ber friends, The claimant was deler- mined to remaip at 31 Bond stre>;, and n> doubt she had hopes of conciliating the decedent. He was determined she shonid not remain, and no doubt desired to effect his Ppurpoee peaceadiy. Some of her money was in his hands, which be was occasiovally called to disburse; by the terms of the lease she had charge of his rooms, and their ‘cecupation of tbe same house brought thom frequently im company, #0 ‘bat, altogether, even after a hostile feel ‘was aropecd, tt would not be demonstrated, save on s ool. iiwicn of interests or plans. Such collisions took piace im September, October, December and January, At the be- ginning of December there was @ quarrel, and the deoe- dent, seizivg a gue, drove hor out of hia room. About the same time Dr. Wileon teslities he beard ber say ‘“tnat Dr. Burdel! would jearn to bebave bimseif before she vacated his bouse.’” 2. The difficulty arising out of the accusttion in regard to stealing notes from bis eafe, Ashton says originated im June or July, The claimant stated to Callahan Doster ‘ was under promise of marriage, and got up this sole to get her out of the house, so the promise would be bre- ken off.” That marked ber apprecistion of his and the bearing of the accusation upon matrimeny The Doctor made the Mr. Smith, in September, he asserted Crombie, the lest of the same month to Mrs. Wilson, and as late as .jannary 26 to Mrs. Crane. Whether trueer false, the allegation was made, and think be believed & to be June he had the safe lock altered, in consequence of liaving lost one of the keys, and thes key was discovered stuffed away in a in the at- tic, atthe time of the inquest. There tion that Mrs. Cunningham bad given the for $612 50 for jell jud; which : i i § He i i B a i f A is was belore the police were Spicer’s affidavit showing the date of to the 20th September. Sometime must have papers. So it is apparent action before the middle poy sult ts dated October 4 On the same day be took out 8 euLpeoa for Mrs. Cunningham °s befoce Juatioe Flandrean, retarnab! whe 1 i H i a i i 4 3 i ¥ said the suite wero broaght “to extort money,” out Mrs. Cunningham told Mr. she would pot settle “unless {| was in some manner.” No money was paid, Tao deoadoat deslered \2 the Depaty Sherif nthe Presence of the, claimants cour 6 day the were |, “they were fied to lor him go,” and in ‘Desomber We" tire Wivtisme, that “be was going to take ber up for «tealing notes and other thins ind the was vory giad t) make a sottloment.” The forma of the adjustment are thusstated in writing: — In consideration of settling the two enits now pending be- tween Mre. B. A. Conaingbam, I agree aa —-~ . agree to exiend to Mra. BE A. Canningbam and family my frien¢abip through life. saree never to door notin any manner to the disad vapiage of MreB. a. Conningbem. in ease I remain " do, ) will rent to Mra am the sala of rooma whe wow Oeenpies, 81! jlovr, altic and basement, we the rave Of BAN) a yom, HARVEY Bemp able ‘The parts of the paper underscored have been crossed with « pen, There ars fome remarkable stipulations in this ment [only notice #: present that (he settlement ‘Wing iu writing, it must bo taken as compriring all the terms comprotoine, and that the gaarantee of friendship, the as- surance agsingt hostile acts, and the new letting of the remiaes are not contitious looking towards matrimony, ut directly away from |\, 4. The letters of the decedent to Mrs. Hubbard oom- tain statemonts show!ng the progrors of the affair be- tween tho partice, On the 10th of October be writes: “Mra. Cuncinghsm ts aboot to take tome steps io im jere me, | think,’ on the 16th, “the trouble I ox- pected with Mrs. Corningbam may not take place,’ on the Ist of November, four days after the slleged marriage, “| thiok that | should not bavo bed aay trouble with Mrs. Onnningbam, if ft had not beem far Spicer, who joined her in ber attempt to injare mo; bet all trouble la now at an end,! think; sho is a | scheming and artful women; all her devigns wore to me to marry her, but ® {she} has failed.’ Nov. 13—"Thore ie no trouble now between me and Mrs, Oam- pingham; I think Mrs. ©. will noj make any more distar- asoe, abd teat abe willbe quiet and tn Je 31 Bond street an noon as fhe can witha grace,” “I ehall certainly get rid of Mre. Cunningham by epring, and I may got rid of her Bow very soon. * © * [assure you, as soon ae I can get her out of the howse I ehall.”” afer the alleged marrigge tho parties did not cohabit , The only evidorse tending io sow cohabitation that of Angustaand Helen, Thore te sega Ben 4 and singolar {n the etatements of thesotwo young Indice regard to the room occupied by their mother. A fact that kind if ortiparily one well known tn tho family. olen says that her mother slept in the emai! bedroom, second story, before October 28, and coutinued there until early {n January; and yet’ at another bar words are, “I did not know thai the Dontor and mo- thor occupied the same room, but] supposed a0.” Ae- cording to ber account the third front room was not used, except ae a family sitting room, u ohe was taken tick January. A’ = other band, stator t! « mont of the time,”’ from the tcf May Ui!) 28h 9’ October ber mother slept in the third sory back room or fourth story front room, with the ex- ception of a few night before the marriage, ween ane slept im the small rocm second story, and ‘the mar- riage occupied the back room, second story, wita the Doo- tor, until the Inst of December; that be Knocked at the door almost every morning, ‘aud her mother al snewered her. Daring this iro ported it isto be ob- served that Helen suppore! ber mother cohabited with the decedent, though \he marriage had been kept sirictly concealed from ber; and a portion of (he «smo time the cobabitation was continued while Mra. Snodgraas was viait ing Mra. Cunning! Mary Murphy, Who was there two months prior to the 10th of Novemoer, saw the ward- robe bed in the envall room, eecond story, down only onoe. She made all the sor: ; ecppased that only one person slept ip Dr. Burdell’r bed Mre, Conpingbam had tne frout attle, and say’, “1 never knew of Mra. Cunningham's sleeping in Dr. Burdel’s ronm. Hannah stated that oh alvaye supposed that Mre © ingham slot in the third tory front room after Mr. Thayer loft in the fall. She wont there at nigbt for order for break(ast, afd saw her there in her night clothes. Mary Domaine, whore ser. vice commenced 26a November, and who made the bode, never observed the wardrobe bed down in tho small ova: room but once, and then she carried the faathor bed to the third story front room two weeks before Christmas. She says she “alenys considered Mrs. Conningham flept in the third story front room,” Koocked thore to arouse ber for break*sst in the mor ing, Aad carried wator and adjneted the fire at nigh 0 judged from ibat only one person slop} in Dr. Rurdeil’s two ib Mrs, Cunpingham's, and frequently ne Mr, Bekele. She eaw the key in the door comm nieating between Mr. Fekel’s and Mrs, Cunningham's roome onoe, and at other tmes pinged betwoen the mat- treeon on Mra. Conn) "e bed. Tho younr ladiow tiept to the attic. She heard thom go to their room; knocked at the door In the morning: Helen was rat the morning: the witness a Mew Cynningham’s roem at bed time, and Mr, Keke! was one 1 ‘ ay tt ee beep aens o- t+ + ares ee