The Southern Literary Messenger, Vol. II., No. 1, December, 1835Various
General
The Southern Literary Messenger, Vol. II., No. 1, December, 1835
Various
American literature -- 19th century -- Periodicals
There is _not enough compression_ in some parts. In this volume, it is
true, not a tithe of the statute law is quoted, that over-burthens the
former one: but when he does cite a statute, the author still gives it
to us in all the exuberance of legislative verbosity. Thus, he fills
the third part of a page with the law of _lapsing legacies_; (p. 91)
when, considering that only the _substance_ was essential--especially
as every owner of the book may be supposed to have the Code also--it
might more clearly, and as satisfactorily, have been couched in five
lines, as follows: "When a legatee or devisee, descended from the
testator, dies before him, leaving any descendant who survives him;
the legacy or devise shall vest in such surviving descendant, as if
the legatee or devisee had survived the testator, and then died
unmarried and intestate." And he takes _three quarters of a page_
(copied from the Revised Code) to say that "a surety may in writing
notify the creditor to sue upon the bond, bill, or note, which binds
the surety; and unless the creditor sue in reasonable time, and
proceed with due diligence to recover the sum due, the surety shall be
exonerated." (pp. 132, 133.) In the name of all that is reasonable,
why should not a writer disencumber his pages of the rubbish of
_howbeit_, _provided_, _nevertheless_, _notwithstanding_, and
_aforesaid_, when, by doing so, he might save himself and his readers
so much time and toil?
Some quarrel, too, we have, with the _judicial_ law, which principally
fills the book. It is too _mere a digest of cases_. A head in the
Table of Contents refers us to a page, where we expect to find a full
elementary exposition of at least the leading doctrines that fall
under that head: but we see perhaps only a single _case_, or a judge's
_dictum_, not at all realizing the promise of the reference, by
unfolding all pertinent general principles. Thus, under the caption,
"WHEN A STATEMENT OF A TRANSACTION MUST BE TAKEN ALTOGETHER," instead
of finding a general rule laid down on the point indicated, we find
only a case briefly stated, from which we are left to deduce a rule,
_if we can_. (pp. 329, 330.) Under the very next head, the well
established principle, that 'an Answer is no evidence for the
defendant, as to any thing it affirms, not responsive to the
allegations of the Bill, but that it _is_ evidence, so far as it
responds to those allegations'--is whittled away to the position, that
it is not evidence as to any affirmative matter, touching which the
Bill _seeks no discovery_. Now, if the Bill positively alleges one
thing (whether it calls for a _discovery_ or not,) and the answer as
positively alleges the reverse; such denial stands for proof, and must
be rebutted by testimony: and so, we conceive, do the cases clearly
evince, which are cited by our author himself; _Beckwith_ v. _Butler_,
_Paynes_ v. _Coles_ (see 1 Munf. 379, 389, 397,) and even _Taylor_ v.
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