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A Note on Some Anglo-Jewish Law Cases

Albert M. Friedenberg

<plain_text><page sequence="1">A NOTE ON SOME ANGLO-JEWISH LAW CASES. By ALBERT M. FRIEDENBERG, B.S., LL.B. {Read before the Jeivish Historical Society of England, June 21, 1909). Some years ago, while drawing up a calendar of leading cases of Jewish interest decided in the American courts of justice for the Publications of the American Jewish Historical Society, I chanced upon several decisions in English law reports which, while of considerable and indeed of leading importance for English Jews, are not included in the annual list published in The Jeicish Year-Booh. The first of these is the ancient case of Franks v. Martin, 1 Eden, 309, for which my best thanks, moreover, are due to Mr. Matthias Levy, of London. This dates from May, 1759, and was a bill in equity for an accounting of the estate of Moses Hart, the brother of Rabbi Aaron Hart, both of whom were among the pioneers of the German Jewish community in England. The bill prayed for a distribution of the estate in accordance with the terms of a marriage settlement, drawn up by Rabbi Aaron Hart after the custom of the German Jews in Hebrew, between Isaac Franks and Simcha, the daughter of Moses Hart. The paper writing provided that the' daughter was to have a fixed share ?viz. one-half of the share of the most beloved son, in the personal estate of her father. The plaintiff's counsel sought to uphold the virtue of this instrument upon the ground that the Jews excluded a married daughter from receiving any share of her father's estate, if he died intestate, she having obtained a marriage settlement.1 1 The reporter derives the contract and its peculiar provision from the Hebrew, shtor chozi chelec zachar, and translates this: " A contract for half of a mule's (!) share" (pp. 317, 318). 247</page><page sequence="2">248 A NOTE ON SOME ANGLO-JEWISH LAW CASES. Lord Keeper Henley, however, refused to decree specific performance of the settlement by reason of the fact that the paper writing embodying it was inconsistent, uncertain, and unintelligible. He characterised it in no uncertain terms, and concluded his opinion in these words :? "... I do think, notwithstanding the boasted learning of the rabbis, who were said to have prepared it, that there is not an attorney from London to the Land's end, who would have drawn so senseless and inconsistent a settlement." 1 I shall refer quite briefly to the case of Lindo v. Unworth, 2 Camp? bell, 602 (1811), which established an important exception to the rule requiring prompt notice of the dishonour of negotiable paper to be given. Mr. H. S. Q. Henriques has a reference to this case in his Jews and the English Law.2, The case of Sells v. Hoare, 3 Broderip and Bingham, 232 (1822), is of considerable interest.3 Here a witness who called himself Joseph, or James, Manning had been duly sworn on the Gospels as a Christian. At the conclusion of the trial it was discovered that he was a Jew, regularly attending the synagogue, and that his true name was Solomon Money or Solly Joseph Manning. A motion was made for a new trial, but it was denied, the court holding that the oath bound the witness both as a moral and a religious obligation. He was subject to the penalty for perjury if he testified falsely under the oath he had taken. And Lord Chief Justice Dallas added: "... The objection should have been made at the trial; and the correct and proper time for asking a witness whether the form of administering the oath is such as will be binding upon his conscience, is previous to the administration of the oath."4 Finally, there is the case of Habershon v. Vardon, 4 De Gex and Smale, 467 (1851).5 This, however, is discussed by Mr. Henriques, and need not here be further referred to. 1 P. 326 of the report. The Lord Keeper's decision was affirmed without opinion on appeal to the House of Lords. See 5 Brown P.C., 151; Jacobs-Wolf, Bibliotheca Anglo- Judaica, p. 97, No. 634. 2 Jewish Quarterly Review, vol. xviii. pp. 47, 48; volume reprint, pp. 184, 185, 317. 3 A somewhat fuller report of the case will be found in 7 Moore, 36. 4 See 7 Moore, 37. 5 Also reported in 15 Jurist, 961, and 7 English Law and Equity, 228 ; Henriques, volume reprint, p. 25.</page></plain_text>