_Nuts to Crack: or Quips, Quirks, Anecdote and Facete of Oxford and
Cambridge scholars. By the author of Facetiæ Cantabrigienses, etc.
etc. etc. Philadelphia: E. L. Carey & A. Hart._
Although this little volume is obviously intended for no other eyes
than those of the 'Oxford and Cambridge scholar,' and although it is
absolutely impossible for any American to enter fully into the spirit
of its most inestimable quizzes, oddities and eccentricities, still we
have no intention of quarrelling with Carey & Hart, for republishing
the work on this side of the Atlantic. Never was there a better thing
for whiling away a few loose or unappropriated half hours--that is to
say in the hands of a reader who is, even in a moderate degree, imbued
with a love of classical whimsicalities. We can assure our
friends--all of them who expect to find in these excellent 'Nuts to
Crack' a mere _rifacimento_ of stale jests--that there are not more
than two or three anecdotes in the book positively entitled to the
appellation of antique. Some things, however, have surprised us. In
the first place what is the meaning of _Anecdote_ and _Facete_? In the
second what are we to think of such blunders, as "one of honest Vere's
classical _jeu d'esprit_," (the _jeu d'esprit_ printed too in Long
Primer Capitals) in a volume professing to be _Anecdote_ and _Facete_
(oh!--too bad) of Oxford and Cambridge _scholars_? And thirdly is it
possible that he who wrote the _Facetiæ Cantabrigienses_ is not aware
that the "cutting retort attributed to the celebrated Lord
Chesterfield, when a student of Trinity Hall, Cambridge" may be found
among the Facetiæ of Hierocles--not to mention innumerable editions of
Joe Miller?
We have already said enough of the _Nuts to Crack_, but cannot, for
our lives, refrain from selecting one of its good things for the
benefit of our own especial readers.
The learned Chancery Barrister, John Bell, K. C., "_the Great Bell of
Lincoln_," as he has been aptly called, was Senior Wrangler, on
graduating B.A., at Trinity College, Cambridge, in 1786, with many
able competitors for that honor. He is likewise celebrated, as every
one knows, for writing three several hands; one only he himself can
read, another nobody but his clerk can read, and a third neither
himself, clerk, nor any body else can read. It was in the latter hand,
he one day wrote to his legal contemporary and friend, the present Sir
Launcelot Shadwell, inviting him to dinner. Sir Launcelot, finding all
his attempts to decypher the note about as vain, as the wise men found
theirs to unravel the cabalistic characters of yore, took a sheet of
paper, and having smeared it over with ink, folded and sealed it, and
sent it as his answer. The receipt of it staggered even the Great Bell
of Lincoln, and after breaking the seal, and eyeing it, and turning it
round and round, he hurried to Mr. Shadwell's chambers with it,
declaring he could make nothing of it. "Nor I of your note," retorted
Mr. S. "My dear fellow" exclaimed Mr. B. taking his own letter in his
hand, "is not this as plain as can be,--Dear Shadwell, I shall be glad
to see you at dinner to day?" "And is not this equally as plain," said
Mr. S. pointing to his own paper, "My dear Bell, I shall be happy to
come and dine with you?"
{50} ROBINSON'S PRACTICE.
_The Practice in Courts of Law and Equity in Virginia. By Conway
Robinson. Vol. II, containing Practice in suits in Equity, pp. 648.
Richmond: Printed by Samuel Shepherd. 1835._
The first volume of this work came out about three years ago; and
received so earnest a welcome from the legal profession, that the
author's tardiness in producing the second might be matter of wonder,
were not his devoted attention to an unusually large practice well
known. The present is destined, because it deserves, to be a much
greater favorite with the law-book-reading public, than the former
volume was. The arrangement is after a better classification of
subjects; rendering it easier to find the doctrine desired, on any
given point: and there is a larger proportion of valuable
matter--matter not to be found in the Revised Code, or in Tate's
Digest. Indeed there are few works, more copiously filled with useful,
and _not-too-obvious_ learning. Industry and research are the author's
manifest characteristics. He is a real _brownie_--if not for
supernatural speed of workmanship, at least in the world of trouble he
will save his brethren. Here, within 442 pages (for the other 206 of
this tome--_horresco referens_--are _index_,) he has compressed
matter, and inestimable matter too, for which the practitioner would
otherwise have to hunt through, not only the thirty volumes of
Virginia Reports (counting Chancellor Wythe's) but the numberless ones
of New York, Massachusetts, the Federal Courts, and England.
In his _abstracts of cases_, the author is, in the main, particularly
successful. Not only does he give them with a clearness, (the result
of brevity, effected by discarding non-essentials) which we would
gladly see judges and reporters emulate,--but he sometimes gathers
from them doctrines, which the reporter has overlooked, and which a
cursory reader would therefore be little apt to discover. For example,
in pp. 20, 21, he states these two points, as decided in the case of
_Blow_ v. _Maynard_, 2 Leigh, 21: 1st, That a fraudulent donee of
personalty is accountable for it and its increase, and also for hires,
and profits, accruing since the donor's death, as executor _de son
tort_; just as a rightful executor would be, who had taken possession
at the donor's death: and 2d, That a _privy_ to the fraud, who shared
with the donee the profits of the property fraudulently conveyed, is
accountable jointly with the donee. Now the reporter in his marginal
summary of the case, does not mention these as among the points
decided; though in the decree of the court (2 Leigh, p. 67,) they
manifestly appear. Again--in the case of _Tod_ v. _Baylor_, (as now
reported in 4 Leigh, 498,) it is not said, at all, that _only two of
the judges concurred_ in the third point there stated as adjudged. But
our author tells us so, (p. 10,) and we are thus enabled to estimate
the authority at its true value--as _persuasive_ only,--not
_obligatory_, in other cases.
The mechanical execution of the book does infinite credit to the
printer. The typography is unsurpassed; and the paper is white, pure,
and firm, so as to receive notes of the pen without blotting--a great
merit in law books.
If it were only to shew that we are free of our craft as critics, we
must find some fault with this work: premising, that _merit_ is its
_staple_; and that, if more of the criticism be occupied with its
faults, it is chiefly because they are somewhat hard to detect, amidst
the pile of excellences. The chaff, this time, is hidden by the wheat.
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.
_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.'
After all our censures, however--or cavils, if the author
pleases--there remains to him so large a residue of solid desert, that
he cannot miss the small deduction we have made. His book is one which
we would advise every lawyer, in Virginia at least, to buy; and even
those in other states--the Western, especially, whose Chancery systems
most resemble ours--can hardly find one that will aid them so much in
disentangling the intricacies of Chancery Practice. Never have we paid
the price of a commodity more ungrudgingly.