ment of judgments, and prove the assertion by returns of executions unsatisfied. It ought to be borne in mind that, notwithstanding the existence until recently of a local rabbinical court in Altona, Jewish Jurisdiction has not been, for many centuries past, a matter of universally legally-recognized authority. A Jewish consistorial court convened in Chicago by consent of parties might decree a divorce, but I know of no means by which they could enforce the attendance of a party or witnesses, much less proceed to inflict the bastinado for a contempt of its authority. It was otherwise when the courts described by the critic (p. 276, A. L. J.) had legal authority. There were not only the judges (sometimes more than three), and the clerk or notary, but also the "Kateigor," prosecuting counsel, the " Saneigor," defendant's counsel, the "Lablor" (from the Latin Libellator), acting as writer to the parties, and the "Atalion," or executive officer, and I venture to say that before this power the B. F. of that day did not dare to resist a decree. It is singular, to say the least, that the paper in No. 19, A. L. J., in substance, bears closest resemblance to arguments and authorities published in the Hebrew Leader of this city by an eminent Jewish divine, to controvert the critic's former hostile attitude to Talmudic Law of Marriage and Divorce, and it detracts from the dignity of a purely scientific legal discussion that the critic should have cast even an implied reflection on his co-religionists by styling them "so-called orthodox Jews." The world recognizes no such distinction. In the present era, to the great public all Jews are Jews alike.

Second. As to Prusbul. My critic admits that the derivation of the word is from the Greek, but that instead of being the equivalent of pooßoλn, a shield or protection, it is from two words, проσ Body, before a court. As I cited Auerbach (an eminent jurist) as my authority, the accuracy of which the critic does not question, I can again ask where is my error, insufficiency, or attempt to mislead? I gave in full a citation from Mishna, which the critic has not attempted to translate. On translations he is great, in his own opinion, for he frankly confesses "a fault confessed is half forgiven," that translation by Maimonides, Rashi and other competent men are not accepted by him in preference to his own. His theory is, that a Prusbul was an avoidance of a statute of limitation as regards a debt. I will not charge him with error, insufficiency, or attempt to mislead. propose to quote from the text (its translation), and to demonstrate that his charge against me is untenable. The reason I do not refer to text-writers is founded upon the practice of Sir William Scott, in the case above quoted.

I

My proposition was, that this instrument was a conveyance of land acknowledged by the grantor before a judicial officer. I repeat my reference to Jeremiah, chap. 32, v. 9, 10, 11. It is there said: "I bought this field and weighed him out the silver. I wrote the book and sealed it. I took the book of purchase, Sepher Hammiknoh," the proper words in the Hebrew language for our word "deed." The introduction of the word Prusbul was at a later period. The writing of a deed is thus described to be by the "purchaser," there is nothing said of the part taken by the vendor. The quotation from Peah, the second, and, therefore, one of the earliest books of Mishna, at chap. 3, v. 6, is the earliest mention of Prusbul. R. Akiba says: Land, no matter how small the quantity, is subject to the charges of part crop for the poor (Peah) Fersthings

(Bikkurim), and there may be written concerning it a Prusbul, and therewith can be acquired movable property which cannot be followed (i. e., in the hands of an innocent purchaser for value), by silver, and by a contract (Shtar), and by possession." I have in my former article called attention to the marked antithesis in this sentence between "Prusbul" and "Shtar." The latter refers wholly to a debt or obligation, the former to land. We find this latter qualification in Shebüth, chap. 10, v. 6: "A Prusbul can be written of land only " -it thereby becomes mortgaged. V. 7: "A Prusbul can be written concerning a bee hive - it is real estate." The character of the Prusbul as an instrument affecting real estate only, and conveying an interest which could not be barred by an intervening seventh year, is thus fixed beyond peradventure. That it was known not to be a Shtar or obligation for a debt appears conclusively from ib., v. 5: “An ante-dated Prusbul is valid, a post-dated one is void. An ante-dated Shtar is void, but a post-dated one is valid." Here is an irreconcilable difference between the requisites of a Prusbul and of a Shtar, and yet it is sought to be maintained that the former related to the keeping alive of a debt of which a Shtar was the necessary evidence. Still further, ib., same verse: "If one has borrowed of five different persons a separate Prusbul must be written for each, but if five persons borrow from one, only one Prusbul must be written for all five." In view of the citation from Jeremiah, the form of the Prusbul can have no weight in determining the actual manner in which it was procured. It is very clear that an interest in real estate passed from the owner; and inasmuch as it was not part of the contract nor a judgment, I cannot conceive how it could have been made except as an additional security by the debtor himself, of his own consent. I ask again where is my error, my insufficiency, my conveying to the reader a totally false impression?

To pass to a side-hit by my critic (note 11, p. 277, A. L. J.), in which he says: "Totally incomprehensible is it how the judge could say the word 'Rabbi' is analogous to the Greek ẞpâ Beùs, Arbitrator, Distributor of Prizes. Rabbi, 'My Lord,' is a derivation from the good Semitic word 'Rab (Lord),'" etc., I am not aware that I intended to be understood that both words had the same origin, or to enter into a question of etymology; on the contrary, I supposed that they are words of different languages, though the Hebrew Rab occurs but once in the Pentateuch (20 v. chap. 19, Isaiah). My authority is found in "Contributions to the Study of Talmudic Languages," etc., by Drs. Beer, Leysohn, Ch. R. Loew and others (Ben Chananjah, 1858, p. 130), ", Brabi. This obscure and hitherto unexplained word is perhaps no other than Bpa Bevo, Arbitrator, Distributor of Prizes. This honorary title was bestowed upon several professors of law, first, R. Gamalil II, of Jabne, etc." The term Rabbi is now used as an honorary title, and is often assumed by those who pretend to be men learned in Talmudic Law. It is now freely bestowed upon all who distinguish themselves as leaders in Jewish pulpits. It then corresponds with "Reverend," but to translate "B. Felsenthal "" "My Lord" of "Zion Congregation, Chicago," would be simply ridiculous.

The "Desultory Suggestions," etc., was written for professional men, and pleased as I am to receive further instruction from all classes, I remain of the opinion that the use of the Latin phrase "Pax vobiscum" by the spurious friar Tuck, has not made him a

Cicero. My task with Rev. Mr. Felsenthal is ended, and I do not propose to travel outside of a strictly legal controversy. I avail myself of the occasion to say that my note referring to Pixley v. Clark (35 N. Y. 520), taken out of its proper connection is liable to be misunderstood. I intended to illustrate how much

the law can be considered as a study of the continuity of human thought. Whilst Pixley v. Clark was pending in this State a litigation on similar facts was progressing in England, and is reported Rylands v. Fletcher (3 H. L. R. 330). In the House of Lords the judgment of the Court of Exchequer, 3 C. & H. 774, was finally reversed, just as in Pixley v. Clark the decision of the Supreme Court, General Term, was reversed by our Court of Appeals. The General Term decision in Pixley v. Clark was cited as authority (note 3 to p. 330 of 3 H. L. R.), on the argument before the House of Lords in 1868, but not the opinion of the Court of Appeals delivered two years before, viz., in 1866. The final results were alike in both cases, but the opinions of Blackburn, J., and of Justice Peckham proceed upon totally distinct grounds. Rylands v. Fletcher is not cited in Judge Peckham's opinion, and neither Pixley v. Clark nor the oration I referred to in Demosthenes' work are mentioned by the English judges; but as the English case was decided on the maxim of sic utere, and the one in our State on that of aqua currit, I referred to the latter case only. PHILIP J. JOACHIMSEN.

BEQUESTS TO ATTESTING WITNESSES OF WILLS.

Two cases recently decided in the Court of Chancery have determined points of considerable interest with regard to the operation of the fifteenth section of the Wills Act (Stat. 1 Vict. c. 26), whereby any person who, or whose husband or wife, is an attesting witness to the execution of a will is excluded from taking any benefit thereunder. The point in the first of these cases was this, whether when the gifts expressed to be made by a will to an intended donee are altogether void under the above-mentioned section, the subsequent execution by the testator of a codicil confirming his will and attested by independent witnesses has the effect of vivifying the void gift and making it operative. That was decided in the affirmative by Bacon, V. C., in the case of Anderson v. Anderson (20 W. R. 313, L. R. 13 Eq. 381). In that case a testatrix by her will devised and bequeathed all her residuary estate to her son George Anderson, whom she also made her executor. The will was attested by two witnesses, one of them being the wife of George Anderson. Consequently the beneficial gift expressed to be made to him under the will was, in the words of the Act of Parliament, "utterly null and void." But subsequently the testatrix made a codicil to her will by which, after merely giving some directions about allowing time to a certain debtor, she "confirmed her said will in other respects." The codicil was attested by two independent and disinterested witnesses, and both the will and codicil were admitted to probate. The suit was instituted by another son of the testatrix for the sole purpose of determining the question whether the codicil had the effect of giving validity to the residuary gift to George Anderson contained in the will, and the circumstances being of this simple nature the decision was one on a point of law only, and on that account the more important. The arguments advanced by the plaintiff's counsel were chiefly directed to this, that

the reference in the codicil to a "will" must mean a will which satisfied the conditions of the Wills Act, if in fact there were such a document in existence, and that, for the purpose of seeing whether the will referred to was a valid will, it was necessary to look to the attestation; and upon the attestation being examined in this case it was clear that the gifts to George Anderson were void. The Vice-Chancellor, however, upon the authority of Allen v. Maddock (6 W. R. 825, 11 Moore P. C. 427), which had decided that the execution by a testator of a codicil referring to a former will amounted to a republication of such will, without regard to the fact whether or not the document referred to complied with the requirements of the law as to execution or attestation, held that in this case the execution by the testatrix of her codicil had the effect of republishing her will and making it "a new and original disposition," and that "the whole contents of the pre-existing will were incorporated in the codicil."

Difficulties might be raised in following out this reasoning exactly to the result at which the Vice-Chancellor arrived, for if the "whole contents" of the former will were incorporated into the codicil, it might be contended that those contents having been modified by a necessary part of the will, it is not very intelligible how the Court could disregard such modification of it. But, without going too minutely into these difficulties, we think that the Vice-Chancellor's judgment cannot be altogether reconciled with some former decisions bearing upon the point under consideration. Assuming that the subsequent codicil did amount to such a republication of the will as to make it in all respects a new and original testamentary disposition, it would follow that, where a person to whom a beneficial gift had been made by the will became one of the attesting witnesses to the codicil, he would thereby be disentitled from taking the benefit given him by the will. But that this is not the law was expressly decided by Kindersly, V. C., in Gurney v. Gurney (3 W. R. 353; 3 Dr. 208). In that case a pecuniary legatee under a will was one of the attesting witnesses of a codicil, by which, as in Anderson v. Anderson, the testator expressly confirmed his will [see the report in 3 W. R. 353], and the Vice-Chancellor held that the 15th section of the Wills Act applied only to a case in which a legatee attested the identical instrument under which he took. This decision has twice subsequently met with the approbation of Wood, V. C., in Tempest v. Tempest (2 K. & J. 635, 642), and Gaskin v. Rogers (14 W. R. 707; L. R. 2 Eq. 284, 295).

Again, it has been repeatedly held that a codicil, although it confirms and amounts to a constructive republication of a will, does not, in the absence of an express indication of the testator's intention to the contrary, operate to revive a legacy given by the will which has been adeemed or satisfied, or has been revoked or lapsed in the interval between the dates of the will and codicil. The ground upon which these decisions rest is, that the codicil operates only to revive the will as it existed at the date of the execution of the codicil, so as to give it the same effect as it then had. (See Booker v. Allen, 2 Russ. & My. 270, 300; Powys v. Mansfield, 3 M. & Cr. 359, 376). This principle appears to us to apply with equal force to a case like that under consideration, and we do not see how it is possible to make a distinction between the effect of a codicil with regard to a legacy which has been inoperative ab initio and its effect with regard to a legacy which has become

inoperative subsequently to the date of the will. Unfortunately, none of these authorities were cited before Bacon, V. C., but both the arguments of counsel and the decision of the judge were directed to the collateral question of how far it was requisite to have regard to the attestation of the will before it could be determined that the codicil affected it, rather than to the question of what was the extent of the operation of the codicil, assuming it to work a revival of the will. The decision, therefore, should at least be regarded as restricted to the narrow limits within which the case was considered, and should not be treated as casting any shadow of doubt upon the principles laid down in any of the above-mentioned authorities.

The other recent decision to which we referred above as determining a point of interest in connection with the same section of the Wills Act is the case of Cozens v. Crout (21 W. R. 781). In that case a will, by which the testator gave all his estate to his widow for her life, and after her death to all his children equally, was attested by three witnesses, of whom the two first were disinterested persons, but the third was one of the testator's sons, Henry C. Crout. And the question was, whether or not the gift of a share to this supernumerary witness was void by reason of his having attested the will. The son deposed that he had signed the will at his father's request, for the purpose of showing his approval of it; but the will had been admitted to probate with the names of all three witnesses thereon, and the Lord Chancellor held that the gift to Henry C. Crout failed. The point was not a novel one. It had before been decided in the same way by Wood, V. C., in Wigan v. Rowland (1 W. R. 383; 11 Ha. 157), and by Kindersley, V. C., in Randfield v. Randfield (11 W. R. 847; see, too, in The Goods of Mitchell, 2 Curt. 916): but a different decision had been come to by Lord Penzance in The Goods of Sharman (17 W. R. 687).

And although, in that case, there were peculiar circumstances, and it appeared that the legatee who signed the will was not intended to be an attesting witness, and the case was decided ex parte, and without reference to the authorities, yet it was important after that decision to have the point resettled. This has been satisfactorily done by the Lord Chancellor's recent decision. No doubt the result of that decision was particularly hard upon Henry C. Crout. But it would clearly be impossible to disregard any superfluous witness to a will because he might happen to be a legatee, without re-opening a door to the very mischief which the provisions of the 15th section of the Wills Act were intended to prevent. - Solicitors' Journal.

COURT OF APPEALS ABSTRACT. ATTORNEYS.

Lien for services: attachment against. — In an action for the foreclosure of a mortgage, K. was appointed receiver of the plaintiff after a decree of foreclosure had been obtained. He continued C. & McG. as attorneys; they caused the mortgaged premises to be sold, and received the proceeds; such proceeds they retained, and refused to pay over to the receiver, besides their costs and fees, the sum of $1,118.08, claiming a right to retain that amount in payment of a balance due them from plaintiff of $519.81, for professional services, and the balance in payment of a claim due McG., one of said firm, for professional services rendered by him as attorney for plaintiff prior to the formation of

said firm. The Special Term ordered C. & McG. to pay over the whole amount within ten days, or that a nonbailable attachment issue. The General Term modified the order by reducing the amount to $519.81.

Held, that the attorneys had a lien upon the bond and mortgage for the cost and charges in the suit, and for any sum due them from plaintiff for professional business, and the lien attached to moneys collected or received upon the judgment.

Also held, that one member of the firm has no lien upon the papers received by the firm for an individual indebtedness.

Also held, that, when an attorney retains money that justly belongs to his client, and refuses to pay it over, an attachment is a proper remedy against him. Good faith in withholding the money is no ground for exemption from such remedy. Bowling Green Savings Bank v. Todd et al. Opinion by Peckham, J.

CONSTITUTIONAL LAW.

Expressing subject of act in title. This was an application to vacate an assessment for paving 64th street from 3d to 5th avenues. The chief point raised was, that the assessment was not confirmed by the common council, but by the Board of Revision and Correction of Assessments, created by chap. 308, Laws of 1861, and that said act was unconstitutional, because it violates that provision of the Constitution (art. 3, § 16) which declares that no private or local bill passed by the Legislature shall embrace more than one subject, and that shall be expressed in the title. The title of the act of 1861 is as follows: "An act relative to contracts by the Mayor, Aldermen and Commonalty of the city of New York." After providing that all contracts by or on behalf of the city of New York shall be awarded to the highest bidder, it devolves "the power and authority now vested in the common council of the city, relative to assessment lists, and the confirmation, exclusively in the comptroller, counsel to the corporation, and recorder of the city, who, together, shall constitute a Board of Revision and Correction of all such assessment lists."

Held, that the insertion in the act (chap. 308, Laws of 1861) of the clause devolving the power and authority theretofore vested in the common council, relative to assessment lists, and the confirmation thereof, in the comptroller, counsel and recorder of the city, and constituting them a Board of Revision and Correction for that purpose, is not repugnant to the provisions of the Constitution (art. 3, § 16). Directions as to the 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.

DEVISE.

1. To State or nation void: power of executor to sell land. -This is an appeal from the judgment of the General Term affirming the decree of the surrogate of the county of New York, refusing to admit the will of Charles Fox to probate as a will of real estate. The material portions of the will are as follows:

"First, after all my lawful debts are paid and discharged, the residue of my estate, real and personal, I give, bequeath and dispose of as follows, to wit: To the government of the United States, at Washington, District of Columbia, for the purpose of assisting to discharge the debt contracted by the war for the subjugation of the rebellious Confederate States, the property located on Third avenue," etc.

Held, that under the provisions of the statute of wills (3 R. S. 57, § 3), authorizing devises to be made to any person capable by law of holding real estate, the word "person" does not include a State or a nation-that the testamentary capacity given by that statute extends only to devises to natural persons, and to such corporations as are authorized to take by devise by the laws of this State. United States v. Fox et al. Opinion by Andrews, J.

2. A devise of lands to the government of the United States is void. Ib.

3. The devise being "after payment of debts," was a charge of the debts upon the lands devised. A power in executors to sell lands will not be implied from the fact of the lands being charged with the payment of debts. Ib.

HIGHWAY.

Laying out across railroad track.- Action to restrain defendants from opening Herrick street, in the village of Greenbush, across the lands of plaintiff. Defendants, claiming to act under the provisions of the act regulating the construction of roads and streets across railroad tracks (§ 1, ch. 62, Laws of 1853), which authorizes the construction of streets and highways across the track of railroads without compensation, attempted to lay out Herrick street across lands of the plaintiff, upon which were seven tracks, all of which were crossed by the proposed street. The court found as a fact that these were in constant use for passing trains, switching off cars and making up trains. Held, that the term "track" as used in the statute included only tracks used for public traffic, and for turnouts and switches. That it did not embrace tracks laid for storing cars, or exclusively for making up trains, but that as by the finding it appeared that the tracks were used for public traffic as well as for switching off cars and making up trains, the act covered them, and plaintiff could not maintain its action. The B. & A. R. R. Co. v. Prest., etc., of Greenbush. Opinion by Church, Ch. J.

HORSE RAILROAD.

1. Taxes against: rolling stock, personal property.-Action to recover possession of two horse railroad cars, and for damages for the detention thereof. The cars formerly belonged to the Metropolitan R. R. Co. They were levied upon and sold to pay a tax assessed against the company. On the sale they were purchased by plaintiff's testator. Defendants claimed title by virtue of the foreclosure of and sale under a mortgage given by the company upon its road.

Held, that defendants can claim no equity upon the ground that they acquired title by purchase upon the foreclosure of a mortgage given to secure the bonds of the company, as the warrant of the collector of taxes overrides all equities of third persons in the property. Randall, Ex'r, etc., v. Elwell et al. Opinion by Grover, J.

2. Also held, the rolling stock owned and used upon its tracks by a railroad company is personal property, and as such liable to be seized for the collection of a tax against the company. Ib.

INSURANCE.

Actions on two policies of insurance issued to the heirs and representatives of K., deceased; each contained this clause: "If the property be sold or transferred, or any change takes place in title or possession, whether by legal process or judicial decree, or voluntary transfer or conveyance, without the consent of the company indorsed thereon, the policy shall be void."

The original plaintiff, M. K., the executrix of K., sold the property tỏ A without the consent of the insurance companies, and without notice to them, and did not assign the policies. The premises sold for $8,000, and plaintiff received a mortgage of $7,000 on the property as part of the purchase price. M. K. resigned her office, and S. was appointed trustee and administrator, with the will annexed, and substituted as plaintiff.

Held, that, although a mortgage was taken back for the purchase-money simultaneously with the conveyance, the policies were avoided. Also held, that a policy of insurance upon property, the title to which is vested in a testamentary trustee in trust for the heirs of the decedent, which policy insures the heirs and representatives of the deceased, is a valid policy in favor of the trustee, who, although not named therein, is entitled to the benefits of it for the beneficiaries under the will. Savage, Trustee, etc., v. Howard Ins. Co.; Same v. L. I. Ins. Co. Opinion by Allen, J.

LANDLORD AND TENANT.

Covenants to repair. -Action for the breach of a covenant of quiet enjoyment in a lease from defendant to plaintiff, which contained the following clauses: 1st. In case the premises should be partially damaged by fire, but not rendered untenantable, the same was to be repaired, with all convenient speed, at the expense of the lessor. 2d. In case they were rendered untenantable, the rent should be paid up to the time of the fire, and then cease until the premises were put in repair. 3d. In case of total destruction the lease was to cease, upon payment of the rent up to that time, otherwise to remain in force, at the option of the lessor.

The contingency provided for by the second clause occurred. Defendant decided not to repair, but to rebuild, and to terminate the lease. Held (Folger, J., dissenting), that it was optional with defendant to continue the tenancy by repairing the premises, or to terminate the lease, and that plaintiff had no cause of action.

Also held, a landlord's obligation to repair demised premises rests solely upon an express contract. A covenant to repair will not be implied, nor will an express covenant be enlarged by construction. In the absence of mistake or fraud, the parties will be held to have included the whole contract in the terms of the agreement. Witty v. Matthews. Per curiam opinion.

NEW YORK.

Void resolution of common council: publication of notice. Under the provisions of the charter of the city of New York of 1870 (chap. 137, Laws of 1870), a resolution passed by the common council, authorizing a specific improvement, which was passed without a three days prior publication, as required by § 20 of said charter, is illegal, and an assessment founded thereon is void. The fact that the mayor and comptroller failed to designate papers in which the city advertising should be done, as they were required to do by the act to make further provision for the government of the city of New York (§ 1, chap. 383, Laws of 1870), and consequently there being no paper in which the advertising could legally be done, does not excuse a noncompliance with the charter, or make such resolution and assessment valid. Church, Ch. J., dissenting. In re Smith, to vacate ass'mt. Opinion by Peckham, J.