few and simple. At one time, chess occupied a portion of almost every evening. Croquet he was very fond of, and played with the same zest when his hand had lost much of its strength and precision. The sight of cards was intolerable to him; he would not suffer their presence in his house. Backgammon was one of his favorites, and he would often join in some children's game with as much delight as the children themselves." *

CURRENT TOPICS.

The attorney-general of the United States has announced his solemn intention of reducing the expenses of the federal courts-that is, mainly, of the United States marshals. No one will be sorry if he shall succeed. The marshals, or rather deputy marshals, are a very busy set of men as most people know and perform a vast amount of labor that would be at least quite useless to any body, were it not for the fact that they get their pay for it, and so it is useful to them. All sorts of charges are "trumped up," and all sorts of cases are "worked up," by these indefatigable fellows, because they all pay well, and the more work the more pay. The expenses of the marshals in some of the southern and south-western States have heretofore been simply enormous, and at that the attorney-general says he has reduced the estimates of these same marshals from thirty to forty per cent. The attorney-general now indulges the hope that the $3,000,000 appropriated will be sufficient, "with rigid economy," to meet the requirements of the year.

Mr. John S. Benson, an attache of the United States supreme court, has an interesting article in the October Harper on "The Judicial Record of the Late Chief Justice," in which is published for the first time a statement of the chief justice with regard to his connection, as secretary of the treasury, with the legal tender act, and his subsequent opinion as chief justice. As a portion of the newspaper press has had much to say of late on this subject, this statement is deserving of attention. Reference having been made, both in the argument and in the opinion, in the cases of Knox v. Lee, and Parker v. Davis (which cases overruled Hepburn v. Griswold), to the supposed influence of the secretary of the treasury in making the notes legal tender, the chief justice made answer, of which the following is the essential part: "In no report made by him to congress was the expedient of making the notes of the United States a legal tender suggested. He urged the issue of notes payable on demand in coin, or receivable as coin in payment of duties. When the State banks had suspended specie payments, he recommended the issue of United States notes, receivable for all loans to the United States and all government dues except duties on imports. In his report of December, 1862,

he said that United States notes receivable for bonds bearing a secure specie interest are next best to notes convertible into coin; and after stating the financial measures which in his judgment were advisable, he added: "The secretary recommends, therefore, no mere paper money scheme, but on the contrary a series of measures looking to a safe and gradual return to gold and silver as the only permanent basis, standard and measure of value recognized by the constitution.' At the session of congress before this report was made, the bill containing the legal tender clause had become a law. He was extremely and avowedly adverse to this clause, but was very solicitous for the passage of the bill to authorize United States notes then pending. He thought it indispensably necessary that the authority to issue these notes should be granted by congress. The passage of the bill was delayed, if not jeoparded, by the difference of opinion which prevailed on the question of making them a legal tender. It was under these circumstances that he expressed the opinion, when called on by the committee of ways and means, that it was necessary; and he was not sorry to find it sustained by respected courts, not unanimous indeed, nor without contrary decisions of State courts equally respectable. Examination and reflection under more propitious circumstances, have satisfied him that this opinion was erroneous, and he does not hesitate to declare it. He would do so just as unhesitatingly if his favor to the legal tender clause had been at the time decided, and his opinion as to the constitutionality of the measure clear."

The discussion upon the proposed amendment to the constitution, is beginning to wax warm. The Tribune, Times and Evening Post are vigorously advocating its adoption, while the World opposes it. The latter, however, contained on Wednesday a very able letter from Mr. George Ticknor Curtis, in favor of an appointive judiciary. Not the least interesting contribution to the discussion, during the week, is an address which Mr. Martin I. Townsend has addressed to "the Electors of the Third Judicial District." Mr. Townsend is "well aware that there are many living in the enjoyment of all the advantages conferred by our elective system of self-government, who sigh for the glorious days of arbitrary power. It is but natural that those holding these views should be in favor of taking from the electors the right of selecting the judges." And further saith Mr. Townsend (in italics, which we cannot afford to use): "And I say it without fear of contradiction by any candid or intelligent man, that for that twenty-six years we have had in our Court of Appeals and our Supreme Court the best and most intelligent judiciary of any State or country on earth, whether in this or any former age.' Mr. Townsend cites Scroggs and Jeffries as specimens of what appointed justices may be going

back so far, probably, on the supposition that illustrations, like fiddles, grow better with age. Mr. Townsend has thus far confined himself to "results." Coming down to "principle," he asserts (again in italics), "No man knows as much as everybody." This sounds wel, and will probably take well. Mr. Townsend then inquires: "Could you, my industrious neighbor, expect to exert as much influence upon the question who should be appointed, as the ring politician of your county, whose leisure and long experience have taught him every avenue to executive favor." And here we rise to inquire what business the "industrious neighbor" has to expect to influence an appointment. Cannot any thing be done in this State or country without every industrious neighbor expecting to have a hand in it? But "industrious neighbor" would probably exert as much influence upon the question who should be appointed, as he now does upon the question who shall be nominated. "Industrious neighbors" in caucuses and conventions have a rather bad time of it in trying to exert influence. The professional politicians, who always have plenty of leisure, almost invariably "run the affair. Mr. Townsend further says (speaking still to his "industrious neighbor"): "I boldly assert that you and I know better who would be a suitable man for judge in our district than Governor Dix can know, coming as he does from the southerly portion of the State." We happen to remember that during the past session of the legislature an act was passed providing for the appointment, by the Governor, of a police justice for the city of Troy. Among the strongest advocates and promoters of this act, was Mr. Townsend. If his theory is correct as to the capacity of himself and his industrious neighbor to select a judge, why was it not equally true as to their capacity to select a police justice. However this may be, his address is one that will take well with the "electors."

The edition of the "Historical Record" in the November Harper, has fallen into a most palpable error, concerning the recent decision of the Court of Appeals, in relation to Railroad Aid Bonds. The editor says: After eighteen years the Court of Appeals of the State of New York has declared the legislation unconstitutional authorizing municipal corporations to issue their bonds to aid in the construction of railroads." The editor then proceeds to give what he takes to be the ratio decidendi, which is also entirely erroneous. The case referred to was People v. Bacheller, 8 A. L. J. 120, which decides simply that the legislature cannot compel a municipal corporation to aid a railroad. The legislation of this State authorizing municipal corporations to aid in the construction of railroads, has uniformly been held to be valid, where the requisite provision was made for obtaining consent of such corporation.

REMARKS ON SOME POINTS IN JEWISH LAW. To the Editor of the Albany Law Journal:

A few days ago I came accidentally into possession of No. 13 of your excellent journal, and with great interest did I read therein the able article of Judge Joachimsen, headed: "Desultory Suggestions in Reading Historic Law." The learned judge laid particular stress upon studying the Science of Law historically and comparatively, and in doing so he came to speak upon two points in Jewish law, viz., upon "Prosbul" and upon the law of divorce. While fully subscribing to the ideas of Judge Joachimsen concerning comparative jurisprudence, I cannot refrain from saying that his allusions to Jewish Law are not very fortunate; they are partly insufficient and partly erroneous, and apt to convey to the minds of the reader totally false impressions. With your permission, I will proceed to

correct them.

1. Prefatory.- But, before doing so, permit me to say that the learned judge deserves our thanks for directing the thoughts of your readers upon the importance of the Jewish law. This branch of juridical learning is now-a-days too much neglected, and I am afraid that, to the majority of the lawyers, it is alto

gether a terra incognita. But can a lawyer, who lays

claim to the name and title of a scientific jurist, afford to be a total stranger in the province of Jewish law? To a mere practitioner before the courts, to a mere jury lawyer, it may be sufficient if he is but familiar with the codices of his respective State, before whose courts he practices, and with the laws of the United States, and if he can make thrilling and effective harangues before twelve citizens, who sit as jurors in cases in which he appears either as prosecutor or as advocate. Yet, in spite of all the successes he may achieve, truly learned judges and attorneys may think little of him, and men whose mature judgment in such matters are worth listening to, will undoubtedly assert that such a jury lawyer, who is "only this and nothing more," is far, far inferior to the lawyer who, although he has not such a flow of words and phrases at command, can, when occasion calls for it, submit a written argument to a court, more thorough and exhaustive, and more unassailable in logic and in law, than a dozen grandiloquent harangues put together. It is similarly so with the ministers of religion. Not always are the popular preachers also erudite theologians, and many such a popular and far-famed orator upon the pulpit is, after all, but a hollow talker, a pitiable ignorant, woefully lacking in theological learning and sound reasoning.

Whoever has the laudable ambition to be classified among learned lawyers, among judicial scholars, let him try to master the Science of Law, if I may say so, vertically and horizontally — vertically in understanding the historical development, the gradual growth of law; horizontally in becoming able to compare the laws of the various nations, and to weigh their respective value.

Jus is an organism, not an accidental, inorganic aggregate of arbitrary enactments. An American lawyer has only then a true insight in, and understanding of American law when he is familiar with Anglo-Saxon usages, customs, and statutes, with the Norman-French feudal construction of society and its spirit, with the enactments of the English parliament, with the more important decisions of the English courts, and so forth. Nay, even more. He must also be familiar, more or

less, with Roman law. For the thorough knowledge of Roman law not only widens the mental horizon of any lawyer by enhancing and sharpening his reasoning faculties in regard to questions of law, but the Roman law entered also, if I am not mistaken, to some extent indirectly into the English and American law.

As important as the historical method, just as important is the comparative method in studying the Science of Law. In the different departments of learning (in anatomy, philology, mythology, science of religion, etc.), immense progress has been made in recent times in consequence of applying the comparative method; and why should not the same method be followed in studying law?

Now, Jewish law is a system which can boast of having been cultivated by powerful minds. If any one should suppose that Jewish law consists only in the so-called Mosaic law, he is greatly mistaken. The Mosaic statutes are but the roots, from which an excessively rich outgrowth of postbiblical Jewish law organically developed itself. And if any of the readers should once inquiringly visit, f. i., the Hebrew library of the Emanuel Temple in New York, the librarian would show him some hundreds of volumes treating on Jewish law-institutions and pandects, and novellae, and opinions without number.

There was a time when christian scholars studied and cultivated this Jewish law. This was during the sixteenth and seventeenth century. But, with regret it must be said, this study has fallen into neglect. In our times we have neither a Selden nor a Lightfoot, neither a Buxtorf nor a Reland. It would certainly be a step in the right direction if such a highly-developed system of jurisprudence, as the Jewish jurisprudence is, would be more appreciated and if a thorough knowledge of the same would be strived after.

It may be added, on this occasion, that in the larger part of the Jewish diaspora, in European Turkey, in Northern Africa, and in Asia, the Jewish civil law is still practically applied. In these countries there are still Jewish courts extant, which administer justice between litigant Jewish parties according to the old Jewish law. Even in Western Europe, in Altona, near Hamburg, was a Jewish court sitting as late as 1848, and under the eyes and with the approval of the Danish government, Rabbi Jacob Ettlinger (who died but a year ago), with his two associate judges, applied the Jewish laws of inheritance, of marriage and divorce, of meum and tuum, in cases where both the parties were Jews, the Jewish laws of evidence, the Jewish manner of proceeding, in one word the whole Jewish civil law according to Joseph Karo's Codex Choshen Hamishpat, the latest authoritative codification of the Talmudical Civil Law.

But it is time to close these prefatory remarks, which undesignedly have become more lengthy than we desired they should, and to come to those points upon which to speak was our first intention.

B. FELSENTHAL, Rabbi of Zion Congregation.

CHICAGO, October 19, 1873.

[Continuation in next number.]

Mr. Justice Agnew, of the supreme court of Pennsylvania, will be the chief justice of the court from the first Monday in December, 1873, when the term of the present chief justice, Hon. John M. Read, expires.

SOME POINTS OF CRIMINAL LAW FROM THE WAGNER TRIAL.

At the last May term of the supremne judicial court for York county, Maine, there was a capital trial of unusual interest; that of Louis H. F. Wagner for murder of Aretha M. Christensen on the night of March 6, 1873. Another indictment was found at the same term for the murder of Karen Christensen at the same time and place, the latter being thus designated in the indictment, "at an island called 'Smutty Nose,' a place within the county of York." This is one of the Isles of Shoals, which lie partly in New Hampshire and partly in Maine, the division line never having been very accurately defined, and this Islet never incorporated into any township, its few inhabitants not being taxed anywhere. The prisoner's counsel claimed it to be a question of fact for the jury whether or no the spot where these women were killed was or not within the limits of the county of York, and the jurisdiction of its court; but the presiding judge ruled otherwise, and, upon inspection of the records of old courts, United States Census, Marshal's returns, etc., determined as matter of law that the court had jurisdiction over "Smutty Nose" island, and over all offenses there committed. The prisoner having been convicted, his counsel carried this legal question to the full court, sitting in banc, who have lately rendered judgment upon the verdict, sustaining the views of the judge presiding at Nisi Prius. Below is a copy of the rescript sent down, for which we are indebted to Mr. E. B. Smith, State reporter. The other points raised and overruled are sufficiently indicated by the rescript.

Barrows, J. All parts of the State are included within the body of one or another of the several counties into which the State is divided.

When murder has been done in an unincorporated place, publicly and commonly known by name, in any one of these counties the venue is well laid, and the place sufficiently described, if the crime charged in the indictment as having been committed at (insert the name by which the place is commonly known), a place within the county of (name of county) aforesaid, in the absence of any thing tending to show that the prisoner would be embarrassed in the preparation of his defense for want of a more particular description.

When there is no controversy as to the precise spot on the face of the earth where the crime was committed, and it appears by ancient charters, legislative enactments and judicial records, that the political authorities of the State and county have heretofore claimed and exercised jurisdiction over the locality in question, the question of jurisdiction is one of lawfor the court, and the defendant cannot, in any stage or form of pleading, rightfully claim to have it submitted to the jury as one of fact for their determination.

Upon such a question the presiding judge, in addition to the matters of which he will take judicial notice, such as legislative enactments, ancient charters and geographical position, may refresh his recollection and guide his judgment by reference to the records of the courts in the county where he sits, general histories of deceased authors of established reputation, and the records of the census of the inhabitants of the county taken under the laws of the United States by its officers

It is competent for the Assistant United States Mar

shal who took the census for the district, and made the return to the office of the clerk of the courts for the county, when the record does not show the specific locality where the individuals enumerated resided, to testify as to their place of residence.

When the political authorities of a State have actually claimed and received jurisdiction over a particular locality, the courts of the State are thereby concluded, and will respect such decision and act accordingly without questioning the validity of such claim.

The prisoner was not wronged by the instructions given in this case, that proof that the crime was committed on the island called "Smutty Nose," is equivalent to proof that it was committed within the county of York, and would make the crime properly cognizable by the court sitting in the county. That instruction was correct.

The outcries of a person deceased, made during the perpetration of the assault which results in death, or upon the approach of the assailant, are competent evidence upon the trial of a party charged with the murder of such person, and may be considered by the jury with other circumstances and testimony upon the question of the identity of the accused.

The outcries of another person who was murdered by the same party a few minutes previously during the perpetration of one and the same burglary, but on another part of the premises, are admitted under like circumstances for the same purposes upon each trial. Such exclamations are competent as part of the res gestœ.

Moreover their admission may be distinctly justified for the same reasons which are held to justify the admission of dying declarations.

The contents of the prisoner's pockets found when he is arrested, may be put in evidence when there is testimony tending to show that they or a portion of them came from the recent possession of the deceased or from the locality of the crime.

Articles which a witness identifies as the property of the prisoner, and in his possession shortly before the crime was committed, when found shortly after its perpetration, at the house where the crime was committed, may be offered in evidence.

COURT OF APPEALS ABSTRACT.

APPEAL-PRACTICE.

Plaintiff obtained judgment upon the ground of the frivolousness of the answer. Upon appeal to the general term the judgment was reversed with costs, with leave to plaintiff to demur, reply or proceed to trial. Defendant entered judgment for costs. Upon appeal to this court: .

Held, that the judgment was irregular and unauthorized, and would have been set aside on motion, as the litigation was not terminated, and the proceedings were interlocutory. That the appeal was, therefore, simply from an order, in substance, refusing to give judgment on the answer; that whether the sufficiency of the answer should be determined upon motion or upon formal demurrer, was a matter of practice addressed to the discretion of the court, and not affecting a substantial right, and that the order was not appealable. Wilkin et. al v. Raplee. Opinion by Allen, J.

DEED.

Mistake as to quantity of land: recovery of money paid. Action to recover back an excess over the pur

chase price of a piece of land, alleged to have been paid by mistake. Plaintiff's assignor contracted to purchase of defendant certain premises which he represented and supposed to contain 100 acres, at $44 per acre. Prior to the delivery of the deed the vendees, relying upon the representations, paid $4,400. The deed stated the consideration to be $4,400, and recited that the land described contained "98 26-100 acres, more or less." On discovering the deficiency, and calling defendant's attention thereto, it was agreed that the quantity of land should be subsequently ascertained and the purchase-money adjusted upon the basis of the contract. With this understanding the vendees accepted the deed. Upon surveying the land it appeared that it contained only about 89 acres.

Held, that the consideration clause in the deed did not control, and that defendant was liable (Allen, J., dissenting). Murdock v. Gilchrist. Opinion by Andrews, J.

DESCENT.

1. Title: inheritance: ancestor. In 1872 plaintiff contracted to sell to defendant certain real estate. Defendant refused to accept a deed of the premises on the ground that plaintiff had not a perfect title thereto. It appeared that one R. died intestate seized of the real estate in question, leaving a widow and two children, P. and L. The widow married, and by the second marriage had one son, W., then L. died intestate, without descendants, and thereafter P. also died intestate and without descendants, leaving the mother and W. living. The mother conveyed the real estate in question to plaintiff.

Held, that as to the undivided one-half of the land' which came to P. by descent from his father, the half brother, W., was excluded from inheriting, he not being of the blood of P., and that the mother took the inheritance in fee; that as to the other undivided onehalf, which came to P. by descent from L., subject to the life estate of the mother, W. took the inheritance, subject to his mother's life estate, he having been born of the same mother, and thus being of the blood of L. Wheeler v. Clutterbuck. Opinion by Rapallo, J.

2. The term "ancestor," when used with reference to the descent of real property, embraces collaterals as well as lineals through whom an inheritance is derived. Ib.

LIBEL.

Defense: denial of publication.-The complaint in this action charged the defendant with publishing in the New York Evening Mail, of which paper it was the publisher and proprietor, an article defamatory of plaintiff. Defendant admitted the proprietorship of the paper, but denied that the article complained of was published with its knowledge, consent, assent, or permission, and also denied that any person employed by defendant had any right or authority from it to publish the article. Plaintiff moved for judgment on the ground that the answer was frivolous, and his motion was granted.

Held, error. That it was not clear that the answer did not constitute a sufficient denial of the publication to make an issue for the jury. Samuels v. The Evening Mail Assn. Opinion by Peckham, J.

NEGLIGENCE.

1. Action to recover damages for the death of plaintiff's intestate, caused by the alleged negligence of defendant. On May 18, 1870, at about eight thirty P. M., a train of defendant's cars was moving backward, without a light or any signal or warning at the rear, upon

defendant's track which ran through a street in the city of Albany; it had so nearly stopped that, to a person in the rear, no motion was perceptible. Plaintiff's intestate attempted to cross the street in the rear of the train, when the motion of the train was accelerated, and she was run over and killed. The court declined to nonsuit plaintiff.

Held, no error; and that defendant was guilty of such negligence as rendered it liable for damages. Maginnis, admr., v. N. Y. C. & H. R. R. R. Co. Per curiam opinion.

2. The court, after having charged, in substance, that if the deceased saw the train approaching, or failed to look in order to see if it was coming, she was guilty of negligence, was asked to charge that if the deceased could have seen the approaching train, then her being on the track under the circumstances was conclusive evidence of contributory negligence. The court declined to charge that it was conclusive, but said it was high evidence.

Held, that the words "approaching train" simply referred to the train in question, and that the fact that deceased could have seen the train, without being able to discover that it was in motion, did not establish negligence, and that the charge was as favorable to defendant as could be justified. Ib.

3. The court charged that if they (defendant's employees) gave the train a sudden and undue impetus, it was evidence of negligence. Held, that this charge must be construed as having reference to the circumstances, i. e., the want of lights, etc., and as thus construed the charge was correct. Ib.

NEW YORK.

1. Claims against the city.-The relator commenced these proceedings for a writ of peremptory mandamus to compel the board of apportionment and audit of the city of New York to allow certain claims of relator, and for a mandamus to compel the comptroller of said city to pay said claims. The claims were for city advertising in the New York Argus, under resolution of the common council. The accounts had been audited and approved by the auditor of accounts, under section 37, chapter 137, Laws of 1870. These accounts were presented to the board of audit and apportionment established under chapter 375, Laws of 1872, with a request that said board should allow the same, which request was refused, and the city comptroller refused to pay the same.

Held, that such prior audit was not conclusive and did not dispense with the necessity of submitting the question of the liability of the city to the board, aud therefore a mandamus to compel such allowance was properly refused. Also, held, that a mandamus would not lie against the city comptroller in such case, to compel him to pay or to provide for the payment of the claims. People ex rel. Brown v. Board of Apportionment and Audit; Same v. Green, comptroller, etc. Opinion by Andrews, J.

2. Chapter 9, Laws of 1872, amended by chapter 375, Laws of 1872, relating to the audit and payment of salaries and claims in the city of New York, superseded the provisions of the act of 1870 re-organizing the local government of said city (§ 37, ch. 137, Laws of 1870) as far as they relate to claims of the character provided for in the former act, and the latter act was thereby repealed pro tanto. The functions and powers of the board of apportionment and audit established by the act last mentioned are judicial in their nature. A claimant

proceeding under the statute is bound to submit his claim to the jurisdiction as defined by the statute, and cannot demand that the board should allow his claim without passing upon his right of payment. Ib.

SALE CROSS-EXAMINATION.

1. This action was to recover the purchase price of a quantity of barley. The answer alleged that plaintiff represented it to be good, first quality, merchantable barley, and that defendants' agent relied upon this representation, and made the purchase; that the barley was not merchantable, of which fact plaintiff was cognizant.

Held, that an issue of fraud was not raised by this answer, as two necessary allegations to constitute fraud were omitted, i. e., that plaintiff made the representation with intent to defraud, and that defendants or their agent were deceived by it. Sefler v. Field et al. Opinion by Folger, J.

2. Questions upon cross-examination upon irrelevant subjects are matters in the sound discretion of the

trial court, and the exercise of this discretion is not subject to review, save in cases of plain abuse and injustice. Ib.

WILL.

In an action for partition it appeared that the will of L., after giving to his wife a life estate in all his real estate, contained this devise, "From and after the decease and death of my beloved wife, I give and bequeath all my real estate * ✶✶ to all my children and to their heirs and assigns, to be equally divided, share and share alike; and should any of my children die and leave lawful heirs, such heirs to receive" the parent's portion. By a subsequent clause he declared that upon the death of his wife and a division of the estate, as provided, among his children, their shares should be an estate in fee, and they were empowered to convey, etc. L. had eleven children, who, with his wife, survived him. Three of the children afterward died intestate and without issue. A., a son, then died, without issue, leaving a will devising his interest in the real estate; thereafter the widow died.

Held, that the words "should any of my children die and leave lawful heirs," in the will of L., referred to a death during the lifetime of the testator; that the last clause referred to an absolute fee, which the children could only convey after the death of the widow; that the words "after" and "upon the death of my wife," did not make a contingency, but simply indicated when the estate of the children took effect in possession; that the children took a vested remainder, not subject to be defeated by their death prior to that of the widow, and that the devisee of A. was entitled to oneeighth of the real estate.

Also held, that if the words "should any of my children die," etc., could be construed to refer to a death after that of the testator and before that of his widow, it only applied to the case of a child dying leaving children, and did not affect A.'s devise, as no such contingency happened. Livingston et al. v. Greene et al. Opinion by Peckham, J.

The international judicial congress opened in Brussels on the 10th inst. Mr. Miles, of the United States, made a speech on the origin of international arbitration. David Dudley Field, of New York, was present. Letters from the King of Belgium and Count Sclopis were read.