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בס"ד

The Wars of the Lord

By Rabbi Bernard Illowy (1814-1875).

A Din Torah in New Orleans

Trial and Judgment

issued by the appointed judges, Rev. Dr. Illowy, Samuel Friedlander, Leon Cohn, and Abraham Lehman, in the case of Mrs. Rebecca Loewenthal, vs. Meyer Goldman, in which both parties agreed to be judged according to the law of Moses, and solemnly promised to abide by whatever the decision of said judges would be.

Today, on the twentieth day of the month of Ab, in the year of the creation five thousand six hundred and twenty-three, we the undersigned, issued as appointed Bet-Din (judges) the following judgment in the case of the plaintiff Rebecca Loewenthal and daughter vs. Meyer Goldman, which both parties agreed to be judged by us, according to the law of Moses and solemnly promised to abide by our decision.

Mrs. R. Loewenthal, plaintiff, made the following statement:

When my husband, Mr. Loewenthal, died, on the 5th day of Heshvan, in the year 5622, (8th of October, 1861) and left me with three minor orphans in a deplorable state of distress and poverty, defendant, who was an intimate friend of my late husband, came to my house, to console me in this state of deep affliction, and promised me that he would not allow the widow and orphans of his late friend to starve and suffer from want and that he would exert all his efforts to relieve us and improve our situation. Defendant kept his promise, and when for the second time he came to my house, he brought us the cheerful news, that he had succeeded with the noble assistance of his friends in making up a collection which resulted in enabling him to support me and my poor family with twenty-five dollars per month to live upon, and added that when the times will become better so that the people will be able to do more, my monthly benefit will increase. Defendant kept his promise and supported me eighteen consecutive months with twenty-five dollars every month, besides some groceries, which he sent occasionally to my house. I thanked him every time he came with my monthly benefit as far as I had words to utter and show my feelings of gratitude.

Mr. Loewenthal, my husband, was a watchmaker and dealer in jewelry; when he died there was some jewelry left, which I sold by the advice of defendant to a man from Richmond, and received for it the sum of 128 dollars. To that sum I added yet 2 dollars, to have a round sum of 130 dollars, and gave it in deposit to defendant, thinking it safer with him than with me. Defendant himself sold for me afterwards the watch materials of my poor husband, for which he realized 25 dollars, a pistol 25 dollars, five gold chains 65 dollars. During that time a man by the name of Mr. Goldstein, who owed to my poor husband 150 dollars, came to this city, and when informed by defendant that he was dead, he came to my house and paid me 100 dollars on that debt. All this month, which amounted to 345 dollars, I deposited with defendant to keep for me, until the time would come when I should have need for its use. During the eighteen months I often said to defendant, "Mr. Goldman, I have lived long enough on charity, I should like to make an end to it and commence a little business with the money which I have in your hands"; but defendant always disadvised me on account of the times being too hard to commence a business. Often I asked him also to tell me who those generous benefactors are who contribute to my support, but he refused to comply with my desire.

About two months ago I found out a good little business place, and when defendant came to my house I told him so and insisted upon taking my money to commence a business and give up the charitable support, whereupon defendant, seeing that I insisted upon having my money, all at once said that "my money was all gone", and that the twenty-five dollars which I received from him monthly, came from the very same money which I had deposited with him, and which I wish now to reobtain by the law of Moses, since the money which he gave me was given and accepted as charity.

Defendant admits having received the whole amount, as stated by the widow, but says that she knew long before that the twenty-five dollars monthly came not from charitable contributions but from her own money.

One of the judges asked defendant twice if he told her so, or had given her notice of any kind; he answered twice she knew it and her whole family knew it; but when the judge asked him for the third time, "did you tell her in distinct and unequivocal words that she lives upon her money which she had in your keeping", he then answered in the affirmative, and added that he has a witness by whom he can prove it.

The witness, L. Marcus, for the defendant, appeared before us and stated that he was with defendant in the widow's house, when he, defendant, rebuked the woman harshly for slandering him, and she was so terrified that she could not, or would not answer a word; but the daughter, Miss Loewenthal, said to him, "yes, Mr. Goldman, we would not be now in this state of poverty, for we would have done something better with the money, instead of eating it up."

Plaintiff brought the following witnesses: W. Bohm, L. Silberstein, and Meyer Beerwald.

W. Bohm, being duly sworn, testified that about four months ago, he was present in the store of Mr. S. Silberstein, when he heard defendant saying that he, defendant, supports the above named widow with twenty-five dollars every month, which he receives for her from some liberal and generous individuals for this purpose.

L. Silberstein, being duly sworn, testified, that about five or six months ago, (that is about two or three months before the dispute between the parties commenced) he was asked by plaintiff to try and get some information about the noble contributors, who they are that support her, and when he had done so, defendant answered, it will never be revealed to any man who they are. Witness stated further, that when he asked defendant, what will be done with the money of the widow, which he has in his keeping, he, defendant, said: "she will keep it until the marriage of her daughter, and then she will return with the money to her old country."

Meyer Beerwald, being duly sworn, testified, that about three months ago he was present in the house of the widow when he heard distinctly, that plaintiff told defendant, that she intends to commence a little business with the money she had in his deposit, and that defendant disadvised her on account of the bad times, especially as long as she is supported by charity and is not compelled to touch her small capital deposited with him.

Defendant brought as witness B.W. Frank, who, being duly sworn, testified, that he is fully convinced, that defendant dealt with said widow, the plaintiff, more kindly and more generously than any man would have done; that he, defendant, also persuaded him, witness, to do something for the poor widow, and that he, defendant, induced him, witness, likewise, to buy the watch materials of the late Loewenthal, the husband of the widow, for the price of twenty five dollars, though for his own use they were not worth twenty five dollars. Witness further stated, that though he could not affirm positively, still from a conversation which he held with the widow and some of her relations, he had reason to believe that plaintiff knew before that the twenty-five dollars which she received monthly from defendant came from her deposited money.

After cross-examination of the witnesses, defendant impeached all the witnesses, his own as well as those of the other party, for their publicly violating the Sabbath, which, according to the Mosaic law, makes them unfit to bear testimony.

Defendant then pleaded that since his own witness is also impeached, and not being able to prove the truth by any other witness, he must for his defense make the judges aware of the fact, that all the money of the plaintiff in his keeping was given to the widow only through his influence. The jewelry which was left to the widow after the death of her husband, was only on his responsibility trusted to the late Loewenthal, husband of the plaintiff, who died before the jewelry was paid for, the debt of which amounted to one hundred and fifty dollars. The watch materials were sold at the high price of twenty-five dollars only through his influence in behalf of the widow; the same is the case with the hundred dollars given by Mr. Goldstone, who only through his influence agreed to give the money to support the widow. Defendant claims therefore that since all that money was obtained only through his influence, he had the right to dispose of it, for the benefit of the plaintiff and orphans according to his good thinking, without telling her that it was her money which she received, since all the money was but charity, and without consulting her what she intended to do with the realized money. But plaintiff objects to all this. The money received from the late Mr. Goldstone was no charity, but an honorable debt which he owed to her husband for a very important service rendered to him; as a proof, plaintiff states, that said Mr. Goldstone gave for the same service a note of three hundred dollars to defendant.

She is further able to prove with witness, that twenty-five dollars were offered to her for the pistol by another party, but defendant took it with the promise to realize more for it.

Even the money for the watch materials was not to be regarded as charity, for if they were not worth this price for him, who had no use for them, the same and perhaps a higher price could have been realized, if sold to one who had use for them.

Plaintiff further bases her claim on her deposited money on the ground, that even if it was but charity money, since she deposited it with him, he was bound to keep it for her, and not to give it to her to eat it up to the last cent and make her believe that she eats the money which he collected for her from charitable people, which defendant has done probably for no other reason, than to use her money for himself and pay it in small rates of twenty-five dollars per month instead of being compelled to pay the whole amount of three hundred and forty-five dollars at once.

Plaintiff further bases her claim on the ground, that defendant stated often enough and before different witnesses, that he supports her so long with the money which he receives for her from the good people in New Orleans.

As a proof that this present document contains fully the statements as they were made by the two parties and witnesses before us, we, the judges, sign our names under it.

Dr. B. Illowy, Pres.,
Samuel Friedlander,
Leon Cohn
Abraham Lehmann.

Argument of Dr. Illowy.

Let us, before we hear yet the word of the law, consult with our own common sense.

We have before us two disputing parties. The widow insists that the money which she has deposited with defendant is still in his hands, and the money which she received was given to her and received by her as charity, whilst defendant in his first statement pleaded that he had told the plaintiff, that it was her own money which he gave her monthly. Let us see how far we may credit this plea.

Defendant, when examined was twice interrogated: "Did you tell the widow that it was her own money?" His answer was twice, she knew it, and it was only at the third time, when defendant was urged to answer not about her knowledge but whether he told her so in distinct and unequivocal words, that he answered: "Yes, I told her so". More credit would I have given this plea, if defendant had answered so immediately to the first question, without waiting until urged by the judge.

Defendant was interrogated by one of the judges, "Did you not say three months ago in a certain house that you support a poor family with twenty-five dollars every month, which you receive from some generous individuals?" Defendant answered: yes, but I did not mean the family Loewenthal, the plaintiff.

Thereupon followed the question if he would not mention the name of the family, for which the collections were destined. The answer was, he must decline to do so, so as not to expose the honor of the poor family, and when again the judge urged him to tell the name of the family, he confessed that when he said so three months ago he meant the family of the widow Loewenthal, the plaintiff, but that it was an untruth when he said so.

It is evident that defendant made himself guilty in one moment of a double untruth, once in the presence of the judges, when he stated that it was another family for which he collected, then again when he revoked his own words as being untrue, making at the same time his words, which he uttered three months ago likewise an untruth. Now when a man can give himself such a testimony, confirmed by his own confession, how much belief can we have in his words?

Let us test further the truth of the defendant. The same judge requests him to show the collection list, which must be for every honest man of great significance to preserve, in order to save his honor; but defendant states he has destroyed it. The judge asks further, since according to the statement of defendant, that he had told the widow, that the money comes from her own deposit, he was no more than her agent or purser, and ought therefore to have in his hands the bills of all the outlays he made for her, amounting, according to his own account, to one hundred and thirty dollars, and be ready to show them at a moment's notice--, whether he would be able to present them when required?

Defendant answered in the negative. The judge asked further, whether defendant had kept a regular account of all the outlays and delivery of money? Defendant answered, having no knowledge of regular book-keeping, he kept an account as well as he could, but is not able to show such, because he destroyed it amongst other unnecessary scraps of paper.

Are these answers not sufficient to create suspicion in every heart against defendant? Must it not appear very peculiar, to have from a person the considerable sum of nearly four hundred dollars on deposit, to pay it in small rates of twenty-five dollars monthly, without asking first whether the depositor is satisfied to receive the money in this way, and to make different considerable outlays of said sum, without asking the depositor's permission to act thus for her?

Defendant allows first five witnesses to be sworn, then he impeaches them for their publicly violating the Sabbath; accuses them all of perjury, by no better proof than his own statement, in which he made himself guilty of a twofold untruth.

In the first examination the judges asked defendant, whether the widow never made complaints that she can but scantily get through with twenty-five dollars a month. Defendant answered, "Yes, sir, she did;" and when the judge asked further, "And what was your answer to her complaints?" defendant said, "I told her, times are very hard and every one must limit his expenses, you must do the same." Thereupon the judge said to him, Mr. Goldman, if you gave the widow her own money, what right had you to tell her she must limit her expenses? Who has a right to prescribe to another one how much he may or may not spend of his own? Were you not bound to give it to her if she would spend all her money in one day? When a few days after, the same question was directed to defendant by one of the judges, defendant was more careful in his words and answered wisely, "I told her if she wants to spend all her money in one day she may have it."

This is a conspicuous untruth by which he contradicted his first statement, and used the answer which the judge a few days ago put into his mouth.

Defendant was further interrogated, if you had no other money in your hands than that which the widow had deposited with you, what induced you to repeat several times the untruth in the presence of many of our respectable members that you support the widow by a collection of twenty-five dollars which you make up for her ever month? His answer was, "I do not know myself what may have induced me to it."

If defendant himself has no answer to such an important question, who can give it for him, and what can prevent our confidence in the veracity of the rest of his pleas from being shaken?

Defendant finally comes with a new plea, that plaintiff, having obtained the whole amount, which was in his deposit, only through his influence, he was therefore entitled to repay it according to his good thinking, just in the way and manner as he deemed right, without telling the poor widow that the collected charity money was already consumed and she lives now upon her own money.

Suppose it be so, that plaintiff obtained the money through his influence, I still ask whether there is a man that has but common sense and a spark of justice in his heart, who would justify such a claim to use another man's money and repay it according to his pleasure, because it was obtained but by his influence.

Now let us refer to the law of Moses. According to our codex, it is settled that whatever a man does for the support of orphans, however rich they may be, if he does not say beforehand to their guardian or any legal authority, that he expects to be afterwards repaid--when they reach their maturity, he has no claim at all against them, and all what he has done is to be regarded as charity (see Yoreh Deah, §251-4). Now as the case stands before us, defendant insists on having done so, having said beforehand to the widow that the money he gives her every month is no charity, but comes from her own, (the truth of which, as proved by our argument, is very doubtful). Plaintiff insists, however, upon the contrary, that all the money from the time defendant had made up, a collection for her, up to the last cent which was received, was given to her and received by her as charity. We have to refer to Choshen Mishpat, section 245, §8. There we read as follows:

"If A. gives something to B. and A. requires it afterwards back again, by the plea that he has given it to him only for safekeeping, or for any purpose whatever, but B., the receiver, insists that it was given to him and received by him as a present, B. the receiver is believed upon an oath, that as such it was given to him and as such it was received by him."

Section 58, §10, reads:

"If A. has a note against B., and B. proves by witnesses, who were present when he gave to A. some money, but do not know what for. B. says that he gave the money as a payment on his note, and A. says, he received the money as a payment on another debt, or as a present, A. has to swear, that as such he received it, and B. must pay the debt."

This case is quite similar to the one before us. Defendant says he has given the money as a payment on his debt, and plaintiff says it was given as charity. Defendant, Meyer Goldman. is therefore, according to the law of Moses, bound to pay to plaintiff, Mrs. Loewenthal, the amount of 345 dollars deposited with him, as soon as plaintiff will have sworn, that the money which was given to her by defendant, was given to her as charity money.

In regard to the last plea of defendant, that 150 dollars of the amount in his deposit, were realized from the jewelry left by the late Mr. Loewenthal, the husband of the widow, and that he, the defendant, had guaranteed the above named amount when Mr. L. bought the jewelry, we must decide that this plea makes the case of the defendant no better, because, though it can be proved that Mr. Loewenthal did not pay the amount before he died, it is, however, likewise proved, that the defendant did not pay it either, though nearly two years have elapsed since he had guaranteed the amount, and according to Choshen Mishpat, section 130, §3:

"The guarantor has no claim on the debtor, for whom he guaranteed, as long as he cannot prove by witness, that he has paid; even if he has the note in his hand, it is not sufficient, unless he brings witness, that he has paid for what he had guaranteed."

New Orleans, Elul 1st [August 16th] 5623 - 1863.

Dr. Illowy,
Samuel Friedlander,
Leon Cohn,
Abraham Lehmann, Sec'y.

Formula of the oath taken by Mrs. Loewenthal, in the presence of the judges.

Here on this sacred place before the open ark of G-d, which contains the holy scrolls of the law, in the presence of the almighty and ever-living G-d, who warns us not to take His Name in vain, in the presence of a G-d of truth and justice, who will punish the wicked, who swears falsely in His Name until the third and fourth generation, I solemnly swear and call the great name of this mighty and tremendous G-d to witness, that Meyer Goldman never told me a word that the money which he gave me monthly was from my own money which I had deposited with him, but that I received it always as charity money which he collected for me from the good people of New Orleans, so help me G-d for ever and ever. But should I now call on His Name to a lie and thus offend the great majesty of the Lord and thus dishonor His glorious Name, then may this very same offended G-d kindle His wrath against me, that I may lead all the days of my life a life of misery and none shall pity me in my distress, that I may weep over the graves of my young children which this G-d of justice may slay as a just punishment for my wicked act of swearing falsely by His Name, and then may He send upon me all the curses which are written in His holy book of the law and inflict upon me all the inflictions, all the sickness, all the plagues which can trouble man's body and mind and make his life the most miserable one -- if I do not say the truth that Meyer Goldman never told me a word that he gives me my deposited money; that I received the money during eighteen months in the same opinion as I took the first money which he gave me the first time, namely as charity.