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
_Moore_, whence he quotes (and quotes truly) in the form of a judge's
_dictum_, the position in question--not to speak of 1 Call, 224, 390;
the _dicta_ of Roane and Carrington in the case of _Rowton_ v.
_Rowton_, 1 Hen. and Munf.; and many other authorities. The principle,
in its true extent, is well illustrated by the case cited from {51}
1 Johnson's Reports, 580, where an Answer alleging usury, of which the
Bill had said nothing, was held _no evidence_. The case from 2 Leigh,
29, is infelicitously adduced. The _point_ professedly quoted from it
was not there adjudged: it was only maintained by _one judge_, who (we
say it with a deference heightened by affection, as well as by
respect) seems to us to have therein gainsayed the well settled
doctrine we have referred to, and therefore to have _erred_. The
Answer, there, (see 2 Leigh, 35, 36) was responsive to the Bill, and
must have prevailed against it, but for the numerous and weighty
countervailing circumstances detailed by that judge himself. (pp. 49
to 53.) The _deed_ in controversy was stamped with more badges of
fraud than are enumerated in the celebrated _Twyne's Case_. These,
doubtless, and not any doubt as to the legal effect of the Answer,
satisfied the minds of the other judges, who merely agreed in
pronouncing the deed fraudulent, without assigning reasons.
Some omissions in so comprehensive a work, were to be expected--indeed
were unavoidable. Not in the spirit of censure, therefore, but merely
to awaken the author's attention in his next edition, or in his next
production, we remark, that he has overlooked an important decision;
(in 2 Leigh, 370,) 'that a tenant, whose goods are wrongfully
distrained, cannot obtain relief in equity, unless he shew good reason
for not having brought his action of replevin.'
Divers other topics we were minded to discuss with our intelligent
author: but on glancing over our two last paragraphs, we are struck
with fear lest our unprofessional readers may have been already
offended at the strong _smell of the shop_, discernible in what we
have produced; and stop their ears against the technical dissonance of
----"sounds uncouth, and accents dry,
That grate the soul of harmony."
But we cannot let the _Index_ pass unreproved. Its length--the length
of its _indicating_ sentences--and the utter absence of any
_sub-alphabetical_ arrangement--in a great degree frustrate its use as
an index. We can find what we want nearly as well by the 'Contents.'
Public-domain text, read in full here on John Shaqi.
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