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we are not sufficiently familiar with their constitution
ANSWER TO CRITICISMS. and workings to form an opinion as to which is more The author of “Remarks on some points in Jewish likely to predominate. The tendency of all such Law” says (p. 261, ALBANY LAW JOURNAL), “that I tribunals is to change all questions from issues of law | came to speak upon two points in Jewish Law, viz., to issues of fact, or in other words, to disregard tech
upon Prusbul and upon the Law of Divorce, and that
he cannot refrain from saying that his (my) allusions nicalities and proceed solely on the merits. The
to Jewish Law are not very fortunate, they are partly slight part which Arbitration takes in the settlement
insufficient and partly erroneous, and apt to convey to of disputes between man and man would indicate a the mind of the reader totally false impressions." lack of faith in the good results wrought, where fixed This is a sweeping charge, considering that he does not legal rules are disregarded; and courts of commerce
attempt to controvert my other positions, that, in Tal
mudic Law, we find a most astute ler nonscripta freare but arbitration under another name. But with a
quently coinciding with the law as now construed; proper admixture of the legal and the lay elements,
that two of the fundamental maxims of ancient Jewand under proper restrictions, Courts of Commerce ish Jurisprudence are provisions in the Constitutional may do much social good and little legal harm. The Laws of the Union, and that the Mosaic Law should not limitation should be: First, resort to them should be be classed among the barbarian codes. He limits him
self to one question purely of law, and to a minor one optional ; second, their jurisdiction should be confined
of etymology and practice. Has he proved any part, to reasonable amounts; third, no appeal should be
of his assertions on the points he so carefully selected permitted except where partiality could be proved to
and hastened to censure in the positive manner stated have influenced the judgment; fourth, the members in his introduction? should be sworn to decide according to law, so far as
First. To my assertion "that the notion generally their abilities enabled them to do so; fifth, the legal
entertained that (according to Talmudic Law), a female
could not obtain a divorce for cause is fallacious," he members of the court should determine all questions
answers that “the inference to be drawn from this as to the admissibility of evidence. The constructions
remark, that a court can decree a divorce upon soliciof documents might be left to the court as a question
tation of a female and for good cause, would be far of fact.
more fallacious." I will reply to him first in his own (?)
words (p. 293): “Yet the Doctors of the Mishna conAnd now comes the New York Evening Post, with
ceded already that a woman may be entitled to a legal the statement that “The question of the chief justice separation (perhaps he meant legally entitled to a ship is regarded in well-informed circles, as virtually
separation) from her husband, and they stated quite a settled in favor of Senator Conkling;” and the
number of reasons justifying her to ask for a divorce.
How then? Well, if the man refuses to issue properly Washington correspondent of the Boston Post con
the desired writ of divorce, he can be coerced to do it; firms the statement. The latter says that he has
FORCE, moral and physical, can be brought to bear upon learned from a gentleman "in the inner circles of the
him until he declares that he is willing to execute the supreme court," that all the aspirants for the presi writ.” I could be content with this statement, but, dency, "including Grant, favor Conkling's appoint
not desiring to cite him as my authority, prefer to give
reference to writers of well-established reputation. ment, as it will make one candidate less." He further
Lindo v. Belisario, 1 Hagg. Cons. R., p. 216, was a cause says, that as Mr. Justice Miller is third in date of
of Jactitation of Marriage, and to demonstrate the comcommission, the President considers that the “har
plainant's status as a wife, recourse was had to the mony of the bench might be disturbed" by his argument that she would require a divorce from the nomination. Here are two very curious reasons, one defendant, and a valid cause was assigned. On this for the appointment of Mr. Conkling, and the other
question of divorce the case says: “Then he (the man)
is ordered immediately to give her divorce, and were for the non-appointment of Mr. Justice Miller. The
he not to conform himself to the lawful mandate of Springfield Republican, however, cites an excellant
the tribunal, he would be compelled to it." This reason why we should be reconciled to Senator recognition by Sir William Scott would be satisfactory Conkling's appointment, if he be appointed — the to most lawyers. The main reasons for which a wife reason given by Mr. Schmidt, when asked if Mrs.
could sue, obtain a decree and compel an execution of Schmidt, who had just died, “was reconciled to go." |
a letter of divorce, are stated in Fassels' Mosaisch Rab
binisches Civil Recht (Vienna, 1852), from which I “Regonciled !— Mein Gott, she had to be regonciled.”
translate, vol. 1, p. 51, § 86: “The wife can compel a
divorce if the obligation of conjugal fidelity has been Mr. Vernon Harcourt, whose name is familiar to
violated by the husband - p. 65, § 111. If the divorce our readers in connection with the recent congress
is decreed of office, then it can be compelled by cor
poral punishment, but if only in private suit, then by of international jurists, has been appointed Solicitor
pecuniary fine." Where, I ask of the reader, is my General of England. He has long held a high rank
error, my insufficiency, or wherein have I created a at the bar, and has won an honorable parliamentary false impression ? reputation. Last session he drew from Disraeli the
The critic alludes to the consequence if the man remark that he "talked like an attorney-general.”
should prove contumacious. This consideration, even
if pertinent, would not be relevant to the question in As he is but one step from the attorney-generalship
issue. Compliance with law, and not non-compliance, he has a fair prospect of talking not only like an attor is the judicial presumption. It might as well be mainney-general but as the attorney-general.
| tained that there is no law in this State for the enforcement of judgments, and prove the assertion by returns (Bikkurim), and there may be written concerning it a of executions unsatisfied. It ought to be borne in mind Prusbul, and therewith can be acquired movable propthat, notwithstanding the existence until recently of a erty which cannot be followed (i. e., in the hands of an local rabbinical court in Altona, Jewish Jurisdiction innocent purchaser for value), by silver, and by a conhas not been, for many centuries past, a matter of tract (Shtar), and by possession." I have in my former universally legally-recognized authority. A Jewish article called attention to the marked antithesis in this consistorial court convened in Chicago by consent of sentence between “Prusbul” and “Shtar." The latter parties might decree a divorce, but I know of no means refers wholly to a debt or obligation, the former to by which they could enforce the attendance of a party land. We find this latter qualification in Shebath, or witnesses, much less proceed to inflict the basti chap. 10, v. 6: "A Prusbul can be written of land only” nado for a contempt of its authority. It was other -- it thereby becomes mortgaged. V.7: “A Prusbul wise when the courts described by the critio (p. 276, can be written concerning a bee hive - it is real esA. L. J.) had legal authority. There were not only the tate.” The character of the Prusbul as an instrument judges (sometimes more than three), and the clerk or affecting real estate only, and conveying an interest notary, but also the “Kateigor," prosecuting counsel, which could not be barred by an intervening seventh the “Saneigor,” defendant's counsel, the “Lablor" year, is thus fixed beyond peradventure. That it was (from the Latin Libellator), acting as writer to the par known not to be a Shtar or obligation for a debt appears ties, and the “Atalion," or executive officer, and I conclusively from ib., v. 5: "An ante-dated Prusbul is venture to say that before this power the B. F. of that valid, a post-dated one is void. An ante-dated Shtar is day did not dare to resist a decree. It is singular, void, but a post-dated one is valid.” Here is an irreto say the least, that the paper in No. 19, A. L. J., in concilable difference between the requisites of a Prussubstance, bears closest resemblance to arguments and bul and of a Shtar, and yet it is sought to be mainauthorities published in the Hebrew Leader of this city tained that the former related to the keeping alive by an eminent Jewish divine, to controvert the critic's 1 of a debt of which a Shtar was the necessary evidence. former hostile attitude to Talmudic Law of Marriage Still further, ib., same verse: “If one has borrowed of and Divorce, and it detracts from the dignity of a five different persons a separate Prusbul must be writpurely scientific legal discussion that the critic should ten for each, but if five persons borrow from one, only have cast even an implied reflection on his co-religion one Prusbul must be written for all five." In view of ists by styling them “so-called orthodox Jews." The the citation from Jeremiah, the form of the Prusbul world recognizes no such distinction. In the present can have no weight in determining the actual manner in era, to the great public all Jews are Jews alike.
which it was procured. It is very clear that an interest Second. As to Prusbul. My critic admits that the in real estate passed from the owner; and inasmuch as derivation of the word is from the Greek, but that it was not part of the contract nor a judgment, I caninstead of being the equivalent of a poobonn, a shield not conceive how it could have been made except as an or protection, it is from two words, mpoo Body, be additional security by the debtor himself, of his own fore a court. As I cited Auerbach (an eminent consent. I ask again where is my error, my insuffijurist) as my authority, the accuracy of which the ciency, my conveying to the reader a totally false critic does not question, I can again ask where is my impression? error, insufficiency, or attempt to mislead? I gave in To pass to a side-hit by my critic (note 11, p. 277, A. full a citation from Mishna, which the critic has not L. J.), in which he says: “Totally incomprehensible is attempted to translate. On translations he is great, in | it how the judge could say the word 'Rabbi' is analohis own opinion, for he frankly confesses "a fault con | gous to the Greek Bpå Beùs, Arbitrator, Distributor of fessed is half torgiven," that translation by Maimo Prizes. Rabbi, ‘My Lord,' is a derivation from the nides, Rashi and other competent men are not good Semitic word ‘Rab (Lord),'" eto., I am not aware accepted by him in preference to his own. His theory that I intended to be understood that both words had is, that a Prusbul was an avoidance of a statute of the same origin, or to enter into a question of etylimitation as regards a debt. I will not charge him mology; on the contrary, I supposed that they are with error, insufficiency, or attempt to mislead. I words of different languages, though the Hebrew propose to quote from the text (its translation), and to Rab occurs but once in the Pentateuch (20 v, chap. demonstrate that his charge against me is untenable. 19, Isaiah). My authority is found in “ContribuThe reason I do not refer to text-writers is founded tions to the Study of Talmudic Languages," eto., by upon the practice of Sir William Scott, in the caseDrs. Beer, Leysohn, Ch. R. Loew and others (Ben above quoted.
Chananjah, 1858, p. 130), “1272, Brabi. This obscure My proposition was, that this instrument was a con and hitherto unexplained word is perhaps no other than veyance of land acknowledged by the grantor before a Bpa Bevo, Arbitrator, Distributor of Prizes. This honjudicial officer. I repeat my reference to Jeremiah, orary title was bestowed upon several professors of chap. 32, v. 9, 10, 11. It is there said: “I bought this law, first, R. Gamalil II, of Jabne, etc." The term field and weighed him out the silver. I wrote the book Rabbi is now used as an honorary title, and is often and sealed it. I took the book of purchase, --Sepher assumed by those who pretend to be men learned in Hammiknoh," the proper words in the Hebrew lan Talmudic Law. It is now freely bestowed upon all guage for our word “deed." The introduction of the who distinguish themselves as leaders in Jewish pulword Prusbul was at a later period. The writing of a pits. It then corresponds with “Reverend," but to deed is thus described to be by the “purchaser," there translate “B. Felsenthal ” “My Lord” of “Zion Conis nothing said of the part taken by the vendor. The gregation, Chicago," would be simply ridiculous. quotation from Peah, the second, and, therefore, one The “Desultory Suggestions," eto., was written for of the earliest books of Mishna, at chap. 3, v. 6, is the professional men, and pleased as I am to receive further earliest mention of Prusbul. R. Akiba says: “Land, instruction from all classes, I remain of the opinion no matter how small the quantity, is subject to the that the use of the Latin phrase “Pax vobiscum " charges of part crop for the poor (Peah) Fersthings I by the spurious friar Tuck, has not made him a Cicero. My task with Rev. Mr. Felsenthal is ended, the reference in the codicil to a "will" must mean a and I do not propose to travel outside of a strictly will which satisfied the conditions of the Wills Act, if legal controversy. I avail myself of the occasion to in fact there were such a document in existence, and say that my note referring to Pixley v. Clark (35 N. Y. that, for the purpose of seeing whether the will re520), taken out of its proper connection is liable to be ferred to was a valid will, it was necessary to look to misunderstood. I intended to illustrate how much the attestation; and upon the attestation being examthe law can be considered as a study of the continuity ined in this case it was clear that the gifts to George of human thought. Whilst Pixley v. Clark was peud Anderson were void. The Vice-Chancellor, however, ing in this State a litigation ou similar facts was pro upon the authority of Allen v. Maddock (6 W. R. 825, gressing in England, and is reported Rylands v. Fletcher 11 Moore P. C. 427), which had decided that the execu(3 H. L. R. 330). In the House of Lords the judgmenttion by a testator of a codicil referring to a former of the Court of Exchequer, 3 C. & H. 774, was finally will amounted to a republication of such will, without reversed, just as in Pixley v. Clark the decision of the regard to the fact whether or not the document Supreme Court, General Term, was reversed by our referred to complied with the requirements of the law Court of Appeals. The General Term decision in Pic as to execution or attestation, held that in this case the ley v. Clark was cited as authority (note 3 to p. 330 of execution by the testatrix of her codicil had the effect 3 H. L. R.), on the argument before the House of of republishing her will and making it "a new and Lords in 1868, but not the opinion of the Court of Ap- original disposition," and that “the whole contents peals delivered two years before, viz., in 1866. The of the pre-existing will were incorporated in the final results were alike in both cases, but the opinions codicil." of Blackburn, J., and of Justice Peckham proceed upon Difficulties might be raised in following out this reatotally distinct grounds. Rylands v. Fletcher is not soning exactly to the result at which the Vice-Chancited in Judge Peckham's opinion, and neither Pixley cellor arrived, for if the “whole contents" of the V. Clark nor the oration I referred to in Demosthenes' forner will were incorporated into the codicil, it might work are mentioned by the English judges; but as the be contended that those contents having been modiEnglish case was decided on the maxim of sic utere, fied by a necessary part of the will, it is not very intelliand the one in our State on that of aqua currit, I refer gible how the Court could disregard such modification red to the latter case only.
of it. But, without going too minutely into these PHILIP J. JOACHIMSEN.
difficulties, we think that the Vice-Chancellor's judg
ment cannot be altogether reconciled with some former BEQUESTS TO ATTESTING WITNESSES OF decisions bearing upon the point under consideration. WILLS.
Assuming that the subsequent codicil did amount to Two cases recently decided in the Court of Chancery such a republication of the will as to make it in all have determined points of considerable interest with respects a new and original testamentary disposition, regard to the operation of the fifteenth section of the it would follow that, where a person to whom a beneWills Act (Stat. 1 Vict. c. 26), whereby any person who, ficial gift had been made by the will became one of the or whose husband or wife, is an attesting witness to the attesting witnesses to the codicil, he would thereby be execution of a will is excluded from taking any bene disentitled from taking the benefit given him by the fit thereunder. The point in the first of these cases will. But that this is not the law was expressly dewas this, whether when the gifts expressed to be made cided by Kindersly, V. C., in Gurney v. Gurney (3 W. by a will to an intended donee are altogether void R. 353; 3 Dr. 208). In that case a pecuniary legatee under the above-mentioned section, the subsequent under a will was one of the attesting witnesses of a execution by the testator of a codicil confirming his codicil, by which, as in Anderson v. Anderson, the teswill and attested by independent witnesses has the tator expressly confirmed his will [see the report in 3 effect of vivifying the void gift and making it opera W. R. 353], and the Vice-Chancellor held that the 15th tive. That was decided in the affirmative by Bacon, section of the Wills Act applied only to a case in which V. C., in the case of Anderson v. Anderson (20 W. R. a legatee attested the identical instrument under which 313, L. R. 13 Eq. 381). In that case a testatrix by her he took. This decision has twice subsequently met will devised and bequeathed all her residuary estate to with the approbation of Wood, V. C., in Tempest v. her son George Anderson, whom she also made her Tempest (2 K. & J. 635, 642), and Gaskin v. Rogers (14 executor. The will was attested by two witnesses, one W. R. 707 ; L. R. 2 Eq. 284, 295). of them being the wife of George Anderson, Conse Again, it has been repeatedly held that a codicil, quently the beneficial gift expressed to be made to him although it confirms and amounts to a constructive reunder the will was, in the words of the Act of Parlia publication of a will, does not, in the absence of an ment, "utterly null and void.” But subsequently the express indication of the testator's intention to the testatrix made a codicil to her will by which, after contrary, operate to revive a legacy given by the will merely giving some directions about allowing time to which has been adeemed or satisfied, or has been rea certain debtor, she confirmed her said will in other voked or lapsed in the interval between the dates of respects." The codicil was attested by two independ the will and codicil. The ground upon which these ent and disinterested witnesses, and both the will and decisions rest is, that the codicil operates only to revive codicil were admitted to probate. The suit was insti the will as it existed at the date of the execution of the tuted by another son of the testatrix for the sole pur codicil, so as to give it the same effect as it then had. pose of determining the question whether the codicil (See Booker v. Allen, 2 Russ. & My. 270, 300; Powys v. had the effect of giving validity to the residuary gift Mansfield, 3 M. & Cr. 359, 376). This principle appears to George Anderson contained in the will, and the cir to us to apply with equal force to a case like that under cumstances being of this simple nature the decision consideration, and we do not see how it is possible to was one on a point of law only, and on that account inake a distinction between the effect of a codicil with the more important. The arguments advanced by the regard to a legacy which has been inoperative ab initio plaintiff's counsel were chietly directed to this, that I and its effect with regard to a legacy which has become inoperative subsequently to the date of the will. Un- said firm. The Special Term ordered C. & McG. to pay fortunately, none of these authorities were cited before over the whole amount within ten days, or that a nonBacon, V. C., but both the arguments of counsel and bailable attachment issue. The General Term modified the decision of the judge were directed to the collateral | the order by reducing the amount to $519.81. question of how far it was requisite to have regard to Held, that the attorneys had a lien upon the bond the attestation of the will before it could be deter- and mortgage for the cost and charges in the suit, and mined that the codicil affected it, rather than to the for any sum due them from plaintiff for professional question of what was the extent of the operation of | business, and the lien attached to moneys collected or the codicil, assuming it to work a revival of the will. received upon the judgment. The decision, therefore, should at least be regarded as Also held, that one member of the firm has no lien restricted to the narrow limits within which the case | upon the papers received by the firm for an individual was considered, and should not be treated as casting indebtedness. any shadow of doubt upon the principles laid down in Also held, that, when an attorney retains money that any of the above-mentioned authorities.
justly belongs to his client, and refuses to pay it over, The other recent decision to which we referred above an attachment is a proper remedy against him. Good as determining a point of interest in connection with faith in withholding the money is no ground for exthe same section of the Wills Act is the case of Cozens | emption from such remedy. Bowling Green Savings v. Crout (21 W. R. 781). In that case a will, by which Bank v. Todd et al. Opinion by Peckham, J. the testator gave all his estate to his widow for her
CONSTITUTIONAL LAW. life, and after her death to all his children equally, was attested by three witnesses, of whom the two first
Expressing subject of act in title. - This was an appliwere disinterested persons, but the third was one of
cation to vacate an assessment for paving 64th street the testator's sons, Henry C. Crout. And the question
from 3d to 5th avenues. The chief point raised was,
that the assessment was not confirmed by the common was, whether or not the gift of a share to this supernumerary witness was void by reason of his having
council, but by the Board of Rovision and Correction attested the will. The son deposed that he had signed
of Assessments, created by chap. 308, Laws of 1861, and the will at his father's request, for the purpose of show
that said act was unconstitutional, because it violates ing his approval of it; but the will had been admitted
that provision of the Constitution (art. 3, § 16) which to probate with the names of all three witnesses
declares that no private or local bill passed by the Legthereon, and the Lord Chancellor held that the gift to
islature shall embrace more than one subject, and that Henry C. Crout failed. The point was not a novel one.
shall be expressed in the title. The title of the act of It had before been decided in the same way by Wood,
1861 is as follows: “An act relative to contracts by the V. C., in Wigan v. Rowland (1 W. R. 383; 11 Ha. 157),
Mayor, Aldermen and Commonalty of the city of New and by Kindersley, V. C., in Randfield v. Randfield (11
York." After providing that all contracts by or on
behalf of the city of New York shall be awarded to W. R. 847; see, too, in The Goods of Mitchell, 2 Curt. 916): but a different decision had been come to by Lord
the highest bidder, it devolves “the power and authorPenzance in The Goods of Sharman (17 W. R. 687).
ity now vested in the common council of the city, And although, in that case, there were peculiar circum
relative to assessment lists, and the confirmation, ex
clusively in the comptroller, counsel to the corporation, stances, and it appeared that the legatee who signed
and recorder of the city, who, together, shall constithe will was not intended to be an attesting witness,
tute a Board of Revision and Correction of all such and the case was decided ex parte, and without refer
assessment lists." ence to the authorities, yet it was important after that
Held, that the insertion in the act (chap. 308, Laws decision to have the point resettled. This has been satisfactorily done by the Lord Chancellor's recent
of 1861) of the clause devolving the power and authordecision. No doubt the result of that decision was
ity theretofore vested in the common council, relative particularly hard upon Henry C. Crout. But it would
to assessment lists, and the confirmation thereof, in clearly be impossible to disregard any superfluous wit
the comptroller, counsel and recorder of the city, and ness to a will because he might happen to be a legatee,
constituting them a Board of Revision and Correction without re-opening a door to the very mischief which
for that purpose, is not repugnant to the provisions of the provisions of the 15th section of the Wills Act
the Constitution (art. 3, § 16). Directions as to the were intended to prevent. — Solicitors' Journal.
manner of raising money by assessment, to pay for the execution of contracts, are parts of the one subject expressed in the title. In re petition Volkening to
vacate an assessment. Opinion by Peckham, J.
1. To State or nation void: power of executor to sell land. Lien for services: attachment against. — In an action - This is an appeal from the judgment of the General for the foreclosure of a mortgage, K. was appointed Term affirming the decree of the surrogate of the counreceiver of the plaintiff after a decree of foreclosure ty of New York, refusing to admit the will of Charles had been obtained. He continued C. & McG. as attor- | Fox to probate as a will of real estate. The material neys; they caused the mortgaged premises to be sold, portions of the will are as follows: and received the proceeds; such proceeds they re “First, after all my lawful debts are paid and distained, and refused to pay over to the receiver, besides | charged, the residue of my estate, real and personal, I their costs and fees, the sum of $1,118.08, claiming a give, bequeath and dispose of as follows, to wit: To the right to retain that amount in payment of a balance government of the United States, at Washington, Disdue them from plaintiff of $519.81, for professional ser trict of Columbia, for the purpose of assisting to disvices, and the balance in payment of a claim due McG., charge the debt contracted by the war for the subjugaone of said firm, for professional services rendered by tion of the rebellious Confederate States, the property him as attorney for plaintiff prior to the formation of located on Third avenue," etc.
Held, that under the provisions of the statute of wills | The original plaintiff, M. K., the executrix of K., sold (3 R. S. 57, § 3), authorizing devises to be made to any the property to A without the consent of the insurance person capable by law of holding real estate, the word companies, and without notice to them, and did not "person” does not include a State or a nation - that assign the policies. The premises sold for $8,000, and the testamentary capacity given by that statute extends plaintiff received a mortgage of $7,000 on the property only to dovises to natural persons, and to such corpo- | as part of the purchase price. M. K. resigned her office, rations as are authorized to take by devise by the laws and S. was appointed trustee and administrator, with of this State. United States v. Fox et al. Opinion by the will annexed, and substituted as plaintiff. Andrews, J.
Held, that, although a mortgage was taken back for 2. A devise of lands to the government of the United the purchase-money simultaneously with the conveyStates is void. Ib.
ance, the policies were avoided. Also held, that a pol3. The devise being "after payment of debts," was a icy of insurance upon property, the title to which is charge of the debts upon the lands devised. A power vested in a testamentary trustee in trust for the heirs in executors to sell lands will not be implied from the of the decedent, which policy insures the heirs and repfact of the lands being charged with the payment of resentatives of the deceased, is a valid policy in favor debts. Ib.
of the trustee, who, although not named therein, is HIGHWAY.
entitled to the benefits of it for the beneficiaries under Laying out across railroad track.-- Action to restrain the will. Savage, Trustee, etc., v. Howard Ins. Co.; Same defendants from opening Herrick street, in the village v. L. I. Ins. Co. Opinion by Allen, J. of Greenbush, across the lands of plaintiff. Defend
LANDLORD AND TENANT. ants, claiming to act under the provisions of the act Covenants to repair. - Action for the breach of a regulating the construction of roads and streets across covenant of quiet enjoyment in a lease from defendrailroad tracks ($ 1, ch. 62, Laws of 1853), which author ant to plaintiff, which contained the following clauses : izes the construction of streets and highways across the Ist. In case the premises should be partially damaged track of railroads without compensation, attempted by fire, but not rendered untenantable, the same was to lay out Herrick street across lands of the plaintiff, to be repaired, with all convenient speed, at the exupon which were seven tracks, all of which were crossed pense of the lessor. 2d. In case they were rendered by the proposed street. The court found as a fact that untenantable, the rent should be paid up to the time these were in constant use for passing trains, switching | of the fire, and then cease until the premises were put off cars and making up trains. Held, that the term in repair. 3d. In case of total destruction the lease "track'as used in the statute included only tracks used was to cease, upon payment of the rent up to that for public traffic, and for turnouts and switches. That time, otherwise to remain in force, at the option of the it did not embrace tracks laid for storing cars, or ex lessor. clusively for making up trains, but that as by the find. The contingency provided for by the second clause ing it appeared that the tracks were used for public occurred. Defendant decided not to repair, but to traffic as well as for switching off cars and making up rebuild, and to terminate the lease. Held (Folger, J., trains, the act covered them, and plaintiff could not dissenting), that it was optional with defendant to maintain its action. The B. & A. R. R, Co. v. Prest., continue the tenancy by repairing the premises, or to etc., of Greenbush. Opinion by Church, Ch. J.
terminate the lease, and that plaintiff had no cause of HORSE RAILROAD.
action. 1. Taces against :rolling stock, personal property.-AC
Also held, a landlord's obligation to repair demised tion to recover possession of two horse railroad cars, and
premises rests solely upon an express contract. A for damages for the detention thereof. The cars for
covenant to repair will not be implied, nor will an merly belonged to the Metropolitan R. R. Co. They
express covenant be enlarged by construction. In the were levied upon and sold to pay a tax assessed against
absence of mistake or fraud, the parties will be held the company. On the sale they were purchased by
to have included the whole contract in the terms plaintiff's testator. Defendants claimed title by virtue
of the agreement. Witty v. Matthews. Per curiam of the foreclosure of and sale under a mortgage given
NEW YORK. by the company upon its road.
Void resolution of common council: publication of Held, that defendants can claim no equity upon the
notice. - Under the provisions of the charter of the ground that they acquired title by purchase upon the
city of New York of 1870 (cbap. 137, Laws of 1870), a foreclosure of a mortgage given to secure the bonds of
resolution passed by the common council, authorizing the company, as the warrant of the collector of taxes
a specific improvement, which was passed without a overrides all equities of third persons in the property.
three days prior publication, as required by $ 20 of said Randall, Exir, etc., v. Elwell et al. Opinion by
charter, is illegal, and an assessment founded thereon Grover, J.
is void. The fact that the mayor and comptroller 2. Also held, the rolling stock owned and used upon its
failed to designate papers in which the city advertising tracks by a railroad company is personal property, and
should be done, as they were required to do by the act as such liable to be seized for the collection of a tax
to make further provision for the government of the against the company. Ib.
city of New York ($ 1, chap. 383, Laws of 1870), and INSURANCE.
consequently there being no paper in which the adverActions on two policies of insurance issued to the tising could legally be done, does not excuse a nonheirs and representatives of K., deceased; each con compliance with the charter, or make such resolution tained this clause: “If the property be sold or trans and assessment valid. Church, Ch. J., dissenting. In ferred, or any change takes place in title or possession, re Smith, to vacate ass'mt. Opinion by Peckham, J. whether by legal process or judicial decree, or volun
PRACTICE — BANKRUPTCY – FRAUD. tary transfer or conveyance, without the consent of 1. This action was commenced by the service of a sumthe company indorsed thereon, the policy shall be void." I mons according to the provisions of $ 129, sub. 1 of the