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eight times in the year; he admits or of all and every of the witnesses above rejects, gives or refuses, as he thinks named.” It should have been, quoth fit. Formerly these terms lasted only the justice, each and every of the wita day; now they continue a week, nesses. If there is any difference sometimes a fortnight. These cases between the two, all and every expressMr. Howard, in the volume before us, es the required necessity of the withas reported at some length, and we nesses more fully than each and every. believe carefully. The work is well * Mills vs. Adsit, p. 83, is a similar supported; indeed, our practice is so The affidavit of the defendant Protean in its bewildering forms, that an was as follows:
" that he had a good attorney can scarcely do without the and substantial defence on the merits work. It is this usefulness that we to the whole of the said plaintiff's complain of, as showing that justice demand, as he is advised by his said takes more note of the forms than of counsel and believes to be true; that he the merits of the cases which are laid has also fully and fairly disclosed to his before her.
said counsel what he expects to prove in From these Reports we have selected the trial of this cause, by each and every a few cases as examples, in order to of the witnesses hereinafter named; give men, who take a common sense that he cannot safely proceed to the and not a special term view of their trial of this cause without the benefit affairs, an opportunity of knowing and of the testimony of each and every appreciating the exquisite subtlety with of the said witnesses;—that the testimony which the justices treat the important of each and every of the said witnesses question of the difference between is material and necessary to this depotweedledum and tweedledee.
nent, on the trial of the said cause, as he Be it known to the lay gents' that is advised by his said counsel, and verily in order to change the place of trial, or believes to be true, gec.” Bronson dethe venue,' an affidavit of the conve nied the motion, because the words nience and necessity of witnesses is he is advised by his said counsel," &c. required. In Dimon vs. Dimon, vol. 2, were not again inserted after witnesses, p. 91, the defendant in his affidavit as if the last paragraph did not say every named his witnesses: “who each and thing that could be said. Strain the all reside in Tompkins county, are ma construction as you please, and the terial witnesses for the defendant on only fault is an error in legal grammar ; the trial of this cause, without the tes- but • mala grammatica non vitiat timony of whom, and the testimony of chartam,” says the axiom. Comment each and every of whom, he cannot is unnecessary on these cases. It is safely proceed, &c." The justice difficult to imagine how men of ability, denied the motion, because the affidavit information and high position, can condid not state that each and every of descend to quibbles and equivocations for the witnesses were material, &c. But which children would be whipped by the affidavit did state that the testimony conscientious parents. of each and every witness was material; The reports are full of such special and as there is nothing material in a absurdities. In Kellog vs. Kellog, v. 2, witness but his testimony, and as the a declaration in ejectment was served affidavit says that all the witnesses are on the wife of the defendant. Defendmaterial, it would seem to be expressed ant appeared to the declaration. as clearly as possible that each and every Afterwards, it was moved that the of the witnesses were material. Cer- proceedings should be set aside, because tainly there is not a shadow of difference the wife was not “on the premises" at in the meaning.
the time of the service, according to the In the case of Harris vs. Clark, page letter of the statute. The object of the 82 of the same number, the same motion requisitions of the statute is to ensure to was denied, because the defendant, in the defendant a knowledge of the prohis affidavit swears: “that he is advised ceedings against him. In this case no by counsel, and verily believes, the injury resulted to him; he was duly defendant cannot safely proceed to the informed of the service, assented to it, trial of this cause without the testimony and appeared in the action. The Chief
* Young vs. Arndt, v. i., p. 227, is a similar case. There are man y others of the same nature.
Justice, nevertheless, held that such an in winter or in summer
Semble in summer, from the bare * In another case, defendant swore to feet. the merits of his defence, but in entitling Semble in winter, from the fur his affidavit misspelt ihe name of the wrapper. plaintiff — he named him Sundeland And on this knotty point the Rabbi instead of Sandland. Held bad. spent thirty years before beginning his
Sometimes papers must be endorsed, commentary. This is a picture, only sometimes they must not. Sometimes exaggerated as to time, of much of the they must be entitled in one Court, at special term practice. Summum jus, times in another. There appears to it seems, is no longer summa injuria, be no general rule. In Stacy vs. but summa ineptia as well. We might Farnham, v. 2, p. 26, an affidavit of cite many more examples, were it not ownership was attached to a writ of too melancholy to see grey-haired men replevin. The proceedings were set thus trifling with truth. Were any of aside because the affidavit was entitled the justices millionaires, we might supin the cause. In Higham vs. Hayes, v. pose that they were training their souls, 2, p. 27, it was refused to set aside an at the special terms, for the difficult inquest, because the defendant's affidavit passage of the needle's eye. of merits was not entitled in the cause. It is thus, the judges of the supreme
I In another case, a defendant moved court of this state teach the young atto set aside a default which had been torney the too easily learned lesson of taken against him. In his affidavit he degrading equivocation, to look not at swore that " he had fully and fairly the case but at the costs, and to wriggle, stated the case in the above entitled eel-like, through the grasp of the man cause to Samuel W. Jackson, Esq., his who has justice on his side. It is counsel,” &c. His motion was denied, thus they furnish bread to the needy because Jackson was not a counsellor of wretches whose legal acquisitions do the court, but only an attorney. not extend beyond the rule-book, and
In Campbell vs. Spencer, the papers destroy the legitimate business and rewere served as appears by the affidavit spectability of the profession. The of service, viz: "he served on L. H. straight-forward merchant, who sees Card, plaintiff's attorney, a copy of the nothing in an action at law but the jusforegoing affidavit and notice, by leav- tice of his cause, cannot be made to ing the same in a conspicuous place in understand that it is right and neceshis office at the time above mentioned, sary that the wrong side should prevail, the said L. H. Card being then absent because the words “all and every" therefrom." Nelson beld the service bave been mistaken for “each and bad, because the affidavit did not state every.” He avoids the courts, and has that “no person was in the office.”
recourse, if possible, to compromise § In another, a motion was objected and arbitration. to on the ground that the papers, on Through this slough of word-monwhich it was based, were not served gering all young attorneys must pass. in a wrapper, according to the 101st There is no avoiding it. Liberal rule of court. The notice of motion practice and gentlemanly feeling are no was written on the inside of the wrap- safeguard. They are only life-preserper; consequently all the papers were vers, which may keep their heads above pot enclosed in a wrapper. C. J. Nel- water and bear them safely over. We son denied the motion accordingly. are within bounds in saying, that nine
A Jewish Rabbi undertook a com tenths of the time and labor expended mentary on the Talıud; but on the by a young practitioner are taken up in cover of his copy was a sketch of Moses, st ttling and adjusting points of practice well covered with a fur wrapper, but which have nothing to do with the unprovided with shoe or sandal. The merits of the case, with justice, or with Rabbi was stopped in cortice. Here common sense. was a difficulty. Was this Moses taken What is the province of a judge ?
* Sandland vs. Adains. 1 Foote vs. Emmons-Peck vs. Whitbeck-Alcott vs. Davis, v. ii., p. 44. Hart vs. McGarry.
Birdsall vs. Taylor.
To clear up difficulties; not to make The present state of things cannot them. He has no right to make arbi- last forever. There is a convention, and trary rules and forms of practice, and the talk is of reforın. We may hope, then to use those rules and forms if not for a code, at least for a thorough to defeat the object for which he was sifting and weeding out of common-law nominated. We do not want a judge follies ; and may Special Term who, like an Indian medicine-man, distinctions perish with the rest. And thinks his manipulations and incanta- when the Law and not the Letter tions necessary to the success of his prevails, there may come a day when simples. An unjust or foolish statute the officers and ministers of justice shall is a disease he cannot cure ; but the stand forth as respectable members of a milder attacks of common law or com noble and practical profession, and be
practice absurdity, admit of no longer the despised of Cicero and remedies which a judicious magistrate of Bolingbroke -- Leguleius quidam could easily administer, had he the cautus et acutus præco actionum, cautor suitable skill and freedom from preju- formularum, auceps syllabarum. dice. Such men are wanted, and such men the people will be sure to elect.
ORIGIN OF IDOLATROUS WORSHIP.*
" Their gods
names of old renown,
In the opinion of those who have of Shinar; and this legend was derived made the most industrious researches by the Greeks of after ages, from the into the traditions and records of anti- Orientals of Indostan. It unquestionquity, the mythology of the Pagans ably alludes to the garden of Eden, and ascended no higher than the deluge. to an antediluvian age and race. Why The Hindoos had an indistinct notion of it was lost to those branches of Noah's of a remote and golden age, when man posterity, who wandered in other direchad no cause to labor-when the earth tions, after the dispersion from Babel, yielded its fruits spontaneously—the cannot be accounted for; but there are air was filled with the fragrance of flow- no traces of it before we come to the ers—the sight was refreshed with the Mosaical account of the creation of the brightest and softest hues—the warb- world, ling of birds, and the music of the The first object of deification, after spheres charmed his hearing-ease and the flood, both in India and Egypt, was contentment, health, happiness, and Noah, whose wisdom in building and long life were his portion in one peren- navigating the Ark over“ that shorenial spring. This delightful romance less ocean," filled his descendants with originated, without doubt, in some of astonishment, admiration, and awe. the lingering recollections of Noah, or They saw in him the father of all men ; his sons, transmitted to their descend- they believed him the creator of all ants before the confession of tongues, things; and as he receded from their which dispersed them from the plains sight, and the mist of time began to ob
* This account of the origin of idolatrous worship was drawn up with no design of publication. It was derived from data reaching to the remotest periods, and none of its statements are made lightly, or on dubious evidence. The writer regrets that the authenticity of the article, (which was written some tiune since,) cannot be verified by citing the authorities, but they were not preserved at the time, and are not now conveniently accessible.
scure his mortal lineaments, they ascri- temple for the radiant serpent God." bed to him the power and attributes of The serpent was admired for his keen a God. If he ever gave them any in- eye and curious colors; and was also struction regarding the pure worship of reverenced as a symbol of defence, bethe Creator, they lost sight of it when cause anything encircled by his terrible he was no longer present, and transfer- folds was secure from external assault. red their gratitude and reverence to Another branch of the idolatrous fasensible images representing him as mily of Ham may be traced in India, rising from the sea, possessed of univer- where his descendants deified him in sal dominion, producing and controlling common with their progenitor, Noah, all things by his power. They viewed They saw no sensible object his equal the Ark as a goddess
, the common mo- in glory; but the sun approaching ther of all things, the companion of nearest to his grandeur, they called Noah, and both—the common parents that luminary “Ham, or the Sun," ia of gods and men.
honor of their father, and soon transImmediately after the separation at ferred their adorations to him, as the Babel, one branch of the descendants source of all honor and happiness. Juof Ham migrated to Egypt, and wor- piter Ammon, the word Jupiter being shipped him as Osiris, and the Ark an addition to “Ham-On,” or “ Ham as Isis. Enshrining Osiris became a the Sun," was the most renowned deity ceremony of great pomp and splendor. of antiquity. Twice a year, a personification of From this followed the worship of Noah or Ham-or Oannes or Thoth fire, as an emanation from the sun, and – for he had many appellations, the temples dedicated to the sun or fire, was placed in a magnificent ark, were denominated Pi-Ur-Am-Ait-liteand conveyed through the streets, rally, Pyramid; the form of which is “ amidst the shouts of adoring multi- deduced from the figure of an ascendtudes.” The Egyptians also instituted ing flame. religious rites in commemoration of his The element which sustained the ark rescue from the flood. They carried was another object of adoration ; and an ark in triumphal procession, in token the wanderers from Shinar carried the of “the debarkation of the patriarch,” worship of water to Egypt and India, after which they descended into the and celebrated divine rites to the Nile sea, and the keepers of the robes, aided and the Ganges.—The Hindoos worby the priests, took from a consecrated sipped, also, many objects as types of chest a little ark of gold, into which the ark ; such, for example, as the Ibis, they poured clean water, and proclaim- an aquatic bird, because it sat like a boat ed, with loud acclamations, that “ Osi- upon the water. In tracing the analogy ris was safe.”
of languages, it appears undoubted The form of the ark was also a fruit- that Boodha, the great God of the Hinful source of objects for idolatrous wor- doos, is derived from Boodh, a boat, the ship. A circular crescent-shape invest- ark itself: and that the Woden of the ed objects with a peculiar sanctity; Goths, the Maheena of the friendly hence the worship of the moon, and of Islands in the Pacific Ocean—the Siathe serpent, for his circular writhings. mese Gautma, and the Chinese Foe, The curved horns of the cow and bull, all came from the same Chaldaic origirendered those animals sacred to Isis, nal. and objects of universal homage. In The Arkite idolatry, including Osiris, the progress of time, accidents operating Isis, Apis, Ibis, and everything apperupon the imaginations of men, enlarged taining to the deluge—the Oophite, or their catalogue of deities; and from Serpent-worship. and the Solar, or Firedeeming a curve or an image a symbol worship, are believed to be the three of their primary objects, they consider- radical fountains from whence all sysed them distinct divinities, and estab tems of mythology had their origin. lished for their service appropriate rites. As the human race spread gradually
They denominated the serpent, Oub; over the coasts of Asia Minor and the and after his deification, Ob-El-the north and west of Europe, divine rites Serpent God. The temples erected to were celebrated for the patriarch, under his worship were cylindrical
, and were the appellations of Xuth, Thor, Mercalled Ob-El-Es-Ca, or Obelisk—"A curius, and Thuisco. In succeeding
ages different nations enlarged or modi The history of Rome testifies, through fied the theories which had been hand- all its changes, (until the subversion of ed down, adapting them to their own the empire) to the haughty and warlike superstitions, or the peculiar tempera- character of Romulus, and the arbitrary ment of individuals. The ferocious and selfishness, and disregard of justice, austere, the depraved and abandoned of which marked his robber followers. every country, suited their gods to Scarcely a country of antiquity, or of their perverse, or their polluted imagi. modern times, can be named, but some nations. The latter practised scanda- of the peculiarities of its earliest prolous and revolting rites, while the former genitors may be perceived in its characwrought up their horrid mysteries with ter, to ts latest period. So, in paying cruel ingenuity, immolating human vice divine honors, the sanctions of tradition tims upon their altars.
preserved the outlines of the original The mythology of the Greeks par- deity ; yet religious rites became cruel took of their genius and politeness." In and sanguinary, where the votaries deplace of the dark and gloomy myste- precated the judgments of gods, whom ries of the Druids, or the bloody and they deemed barbarous, like themselves: frightful rites of the Asiatics, or the bru- while with more amiable and polished talizing ceremonies of Egypt and Ethic people, a naiad in every rill was an opia, they poured out libations to the object of adoration—the trees concealed gods—invoked their clemency and pro- dryads and wood-nymphs, emanations tection with music, poetry, and elo- from the deity—the stars, and the hosts quence, consecrating the choicest gifts, of heaven invoked to and the most costly productions of the rule the condition of men and prosper arts to Apollo, at Delphi, and Jupiter their concerns. Olympias, at Elis.
The endless catalogue of idols, and But in the idol-worship of every age the confused and mingled rites discoverand country, while some touches of gra- ed in distant countries, and in successive titude are apparent towards that su ages, partake, in different degrees, of all pernatural power which the worship- the original objects and modes of Pagan pers contemplate ; whether under the worship. The ceremonies which priArkite stupidity of Boodha ; the hide- marily appertained to distinct deities, ous Oophite, Ob-El-Ha ; the more ele are blended in the wildest disorder; and vated form of Osiris ; the elegant and to them are superadded unnatural and sublime images of Jupiter and Apollo, shocking observances, the offspring of or the beautiful representations of Ve- the most perverse and horrible imaginanus and Ceres, all felt a dread and ter- tions. These prove the worthlessness ror of the unknown deity which they of heathen worship, and attest the verignorantly worshipped, and varied ity of that revelation, which declares their rites according to their impulses of the being of one, holy, omniscient God, hope or fear.
whose immutable character and attri. Through all tradition and history, butes are power, wisdom, justice, truth, families and countries retain traces to benevolence, and mercy, which having the latest posterity, of the tempers, brought " life and immortality to light, habits, and language of their founders; dispels the "darkness which shrouded hence the polished, poetical, and philo- the heathen, and points to the glorious sophical race of Hellenes, among the and joyful elevation of immortalityGreeks, while the contemporary Pelas- Eternity and Heaven. gii. another tribe of those people, inherit the gloomy, ferocious, and brutal traits of their father, Pelasgus.