QUARTERLY LIST OF LAW PUBLICATIONS.

AMERICAN.

Reports of Cases Argued and Determined in the Court of Appeal s and in the General Court of Virginia. By Benjamin Watkins Leigh. Vol. 2. Richmond. 1831.

The General Laws of Massachusetts from January 1828 to June 1831. Edited by Theron Metcalf, Esq. Vol. 3. Boston. Hilliard, Gray, Little, & Wilkins. 1832.

ENGLISH REPUBLISHED.

Reports of Cases Argued and Determined in the English Ecclesiastical Courts: with tables of the cases and principal matters. Edited by Edward D. Ingraham, Esq. of the Philadelphia Bar. Vol. 4. containing Haggard's Reports, vol. 2, and Haggard's Consistorial Reports, vols. 1 and 2. Philadelphia. P. H. Nicklin & T. Johnson.

Condensed Reports of Cases decided in the High Court of Chancery in England. Edited by Richard Peters, Counsellor at Law, and Reporter of the Decisions of the Supreme Court of the United States. Vol. 3. containing the cases decided by Lord Chancellor Eldon and Lord Chancellor Lyndhurst, from 1825 to 1828: reported by Mr. Russell in the 2d, 3d, and 4th volumes of his Reports; with the matters in the first volume of his reports incorporated in the second. Philadelphia. Grigg & Elliott.

Reports of Cases Argued and Determined in the English Courts of Common Law; with the Tables of the cases and principal matters. Edited by Thomas Sergeant and John C. Lowber, Esqrs. Vol. 20, containing cases in the Court of Common Pleas in 1830 and 1831, and in the Court of King's Bench in 1831. Philadelphia. P. H. Nicklin & T. Johnson.

ENGLISH.

A New Abridgment of the Law. By Matthew Bacon of the Middle Temple, Esq. The Seventh Edition corrected, with large additions, including the latest Satutes and Authorities. Volumes 2, 3, & 4, (except the Addenda,) by Sir Henry Gwillim, of the Middle Temple, Knight, late one of the Judges of His Majesty's Supreme Court at Madras. Volumes 1, 5, 6, 7, & 8, and the Addenda to the other volBy Charles Dodd, of the Inner Temple, Esq., Barrister at Law. In Eight volumes, royal 8vo.

umes.

The Bankrupt Act, 6 G. 4. c. 16, and the Bankrupt Court Act, 1 W. 4. c. 56. With Notes on all the Recent Decisions at Common Law

and in Equity, and Abstracts from other Statutes relating to Bankruptcy. By Charles Sturgeon, of the Inner Temple, Esq.

A Digest of the Bankrupt Law, with an Appendix of Precedents, framed with reference to the New Act of the 1 & 2 W. 4. c. 56. By the Right Hon. Robert Lord Henley. The Third Edition. In royal 8vo.

The New Bankrupt Court Act, with Notes explanatory, and referring to the corresponding Sections of the Bankrupt Act; and a copious Index. By A. R. Warrand.

The Law and Practice of the Court of Bankruptcy, established by Stat. 1 & 2 W. 4. c. 56, showing the changes thereby effected, and the mode of procedure under the Act, with an Appendix of practical Forms and Precedents, including those settled by the Court, with the Rules and Orders. By Duncan Stewart, Esq., of Lincoln's Inn, Barrister at Law.

1

The New Bankruptcy Court Act, arranged with a Copious Index, and observations upon it, and upon the erroneous principle on which it is founded. By Basil Montagu, Esq., Barrister at Law.

The New Orders of the 3d of April 1828, embodied with those of the 23d of November 1831, for the Regulation of the Practice and Proceedings in the High Court of Chancery. With Notes of the Decisions, and a new and copious Index. By Edward Chitty, Esq., Barrister at Law.

On Conveyancers' Evidence. By Thomas Coventry, of Lincoln's Inn, Esq., Barrister at Law. In royal 8vo.

Littleton's Tenure in English. A new Edition, in 18mo.

History of the Representation of England drawn from Records, and of the Jurisdiction of the House of Commons to reform Abuses in the Representation, without the Aid of Statute Law. By Robert Hannay, Esq.

An Accurate Abstract of the Public General Statutes, passed in W. 4, being the first Session of the Ninth Parliament of the United Kingdom of Great Britain and Ireland, with Notes and Comments. By Thomas Walter Williams, Esq., of the Inner Temple, Barrister at Law.

An Analytical Digest of the Reports of Cases decided in the Courts of Common Law and Equity, of Appeal, and Nisi Prius, and in the Ecclesiastical Courts, in the year 1831. By Henry Jeremy, of the Middle Temple, Esq., Barrister at Law.

The New Game Act, 1 & 2 W. 4. c. 32. with Notes and Forms, together with the Night Poaching Act and the Game Certificate Acts. By John Collyer, Esq., of Lincoln's Inn, Barrister at Law.

The Criminal Statutes of England analyzed and arranged alphabetically, with Notes. By John Collyer, Esq., of Lincoln's Inn, Barrister at Law.

A Collection of Statutes, comprising all the Public Acts, Civil and Criminal, Irish and Scotch, and Acts relating to the Colonies, passed in 1 W. 4; and 1 & 2 W. 4. with Notes, showing the alteration made in the Law by each Statute. By Alfred S. Dowling, Esq., of Gray's Inn, Barrister at Law.

A Concise Digest of the Law, Usage and Custom affecting the Commercial and Civil Intercourse of the subjects of Great Britain and France. Third edition, with considerable additions. By Charles Henry Okey, Esq., of the Inner Temple, Barrister at Law.

Letters to a Land Owner, on the Disposition of Estates by Settlement and Will. By William Irving Wilkinson, of Gray's Inn, Esq. The Province of Jurisprudence determined by John Austin, Esq. Barrister at Law. Murray. 1832.

[The author is one of the Bentham school, of which he is said to be one of the ablest disciples. It appears from the notices of the work, that have been published, that the topics principally treated are 'Laws proper, or properly so called, are commands; laws which are not commands, are laws improper, or improperly so called. Laws properly so called, with laws improperly so called, may be aptly divided into the two following kinds. 1.- The divine laws, or the laws of God; that is to say, the laws which are set by God to his human creatures. 2. - Positive laws; that is to say, laws which are simply and strictly so called, and which form the appropriate matter of general and particular jurisprudence. 3.- Positive morality; rules of positive morality, or positive moral rules. 4.-Laws metaphorical or figurative, or merely metaphorical or figurative."]

THE AMERICAN JURIST.

NO. XVI.

oc

OCTOBER, 1832.

ART. I.-THE PLEADING OF EXCEPTIONS AND PROVISOS IN

STATUTES.

By a statute of Maine, if an executor, knowing himself to be appointed as such, shall not, within thirty days next after the testator's death, cause his will to be filed, &c. in the Probate Office, he shall, upon such neglect, without just excuse made and accepted by the judge of probate for such delay, forfeit a sum not exceeding sixteen dollars per month.

On a judgment's being recovered against an executor for the penalty imposed by this statute, he sued out a writ of error; and the principal error assigned was 'that in the declaration it was not alleged that the original defendant had neglected to file the will without just excuse made and accepted by the judge, &c.'

The court reversed the judgment, for this cause. Indeed it was impossible for them to do otherwise. But the opinion, given on this point, commenced with these remarks-There is some perplexity and contradiction in the books respecting the principles to be applied in the decision of the question, in this and many other cases somewhat similar. There seems to be much curious learning, and many nice and shadowy distinctions, the sound reason and solid sense of which are not very easily discoverable.' 6 Greenleaf, 274, Smith v. Moore.

The surprise, excited by this exordium, has induced a review of the doctrine discussed in that case; and this review has only

increased that surprise. If there are any legal principles which are free from perplexity, or any settled legal distinctions which rest on solid sense and sound reason, surely they lie in the very path which the court must have travelled in arriving at their conclusion in Smith v. Moore.

The rule of pleading a statute, which contains an exception or proviso, is usually thus expressed in the books, viz. If there is an exception in the enacting clause, the party pleading must show that his adversary is not within the exception; but if there be an exception in a subsequent clause, or subsequent statute, that is matter of defence, and is to be shown by the other party.' The same rule is uniformly applied in pleading private instruments of contract. Accordingly, Lord Tenterden places statutes and contracts together. In Vavasour v. Ormond, 9 Dowl. & Ry. 599; S. C. 6 Barn. & Cresw. 432 - he thus states the doctrine-If an act of parliament, or a private instrument, contain in it, first, a general clause, and afterwards a separate and distinct clause, which has the effect of taking out of the general clause something which would otherwise be included in it; a party, relying upon the general clause in pleading, may set out that clause only, without noticing the separate and distinct clause which operates as an exception: but if the exception itself be incorporated in the general clause, then the party relying on it must, in pleading, state it, together with the exception.'

When a party professes to recite a statute or private instrument, in pleading, and omits an exception in the 'general clause,' there is a variance. When he counts on a statute, and attempts to bring a case, whether civil or criminal, within the 'general clause,' if he omits to negative the exception, he shows no cause of action, or no offence, within the statute. The principle is the same in both instances.

That this rule as to counting on statutes stands on solid sense and sound reason, and that there is no perplexity in the principle of it, is easily shown by a very few cases which illustrate its application.

The statute 19 Geo. II., c. 30, § 1, enacts that no mariner, who shall serve on board any privateer, &c. employed in the British sugar colonies in the West Indies, nor any mariner being on shore in said colonies, shall be liable to be impressed by any officer of a ship of war, unless such mariner shall have before