ciples and practice of other courts than the particular one in which proceedings had been instituted; but his limits prevent him. How can a man be a good Pleader, either in court or chamber practice, who is not well acquainted with real property law? Or a good Conveyancer, who has not a sound knowledge of the rules of evidence of the construction of legal language, and the effect given to legal instruments by courts of law or equity? How can an Equity counsel venture to open his lips in a court of equity, except on a few subordinate and routine matters, who is not well versed in the general rules and doctrines of courts of law? "I know from long personal observation and experience," said Lord Eldon, "that the great defect of the Chancery Bar is, its ignorance of common law and common-law practice: and strange as it should seem, yet almost without exception it is, that gentlemen go to a Bar where they are to modify, qualify, and soften the rigour of the common law, with very little notion of its doctrines or practice!"* Such is the authoritative statement made by that profound equity judge, who was himself consummately acquainted with both law and equity; who had gone the Northern Circuit for many years; and most strenuously urged that step to be also taken by the gentleman whom he was advising. "After all," says his lordship, in the same letter, "when, tolerably well furnished, you have begun your chancery practice, go in the spring and summer, for some years, the circuit. That practice will keep alive your common law knowledge, and enable you to improve in your knowledge of equity. • Life of Lord Eldon, by Twiss, vol. ii. p. 51 (1st edit.). But it hath, besides, many weighty advantages both for the time and in future life. On the recommendation of great men now no more, I followed it, even till it became injustice to my equity clients."* A most humiliating but instructive instance of the perilous consequences of neglecting such advice,-of the ignorance of each other's province by common lawyers and equity practitioners-has been placed permanently upon record by the late experienced Mr. Chitty, in his work on the General Practice of the Law. Recently a common-law barrister, very eminent for his legal attainments, sound opinions, and great practice, advised, that there was no remedy whatever against a married woman who, having a considerable separate estate, had joined with her husband in a promissory note for 2,5007. for a debt of her husband; because he was of opinion that the contract of a married woman is absolutely void, and referred to a decision to that effect † ; not knowing, or forgetting, that, in Equity, under such circumstances, payment might have been enforced out of the separate estate ‡. And afterwards, a very eminent Equity counsel, equally erroneously advised, in the same case, that the remedy was only in equity: although it appeared, upon the face of the case, as then stated, that after the death of her husband, the wife had promised to pay, in consideration of forbearance, and, upon which promise, she might have been arrested [before the statute abolishing Life of Lord Eldon, by Twiss, vol. ii. P. 52. + Marshall v. Rutton, 8 T. R. 545. Bullpen v. Clarke, 17 Ves. jun. 366; Hulme v. Tenant, 1 Bro. Part. Cas. 16; Stewart v. Lord Kirkwall, 3 Madd. Rep. 387 ; Bingham v. Jones, at the Rolls, 1832-Chitty on Bills (8th ed.), 791; Field v. Sowle, 4 Russ. Rep. 112. arrest on mesne process] and sued at law *. If, now, the common-law counsel had properly advised proceedings in equity, or if the equity counsel had advised proceedings by arrest, at law, upon the promise made after the husband's death, the whole of this large debt would have been paid. But, upon this latter opinion, a bill in Chancery was filed and so much time elapsed before decree, that a great part of the property was dissipated, the wife escaped with the residue into France, and the creditor thus wholly lost his debt, which would have been recovered, if the proper proceedings had been adopted in the first or even second instance !-This is one of the very numerous cases almost daily occurring, illustrative of the consequences of the want of at least a general knowledge of every branch of law." + One such instance as the foregoing, speaks trumpettongued to the student, even before he has made his selection of the common-law, or equity court, or the criminal, or ecclesiastical, branch of the profession. The author has often heard members of the equity bar, after a chance day's attendance in a common-law court, during an argument incidentally involving topics of equity, reproach common lawyers with their utter ignorance of equity; and complaints from common lawyers, after listening to a discussion in a court of equity involving common-law topics, of equity counsels' complete ignorance Leev Moggeridge, 5 Taunt. Rep. 36; Littlefield v. Shee, 2 Barn. & Adolph. 811. + Chit. Gen. Pr. of the Law, vol. i. Pref. viii. note (a), 2nd ed. Had not Mr. Chitty's respectable name guaranteed the truth of this statement, one should have felt a difficulty in believing it. For the credit of the profession, it is hoped, that instances of such glaring ignorance, on the part of "eminent" counsel, at all events, are of very rare occurrence. or misconception, and consequent misrepresentation of them. Why should this be? when, moreover, there is scarce a day in which an equity judge does not inquire, "How would this be, at law? What action would lie? Could such and such a thing be pleaded, or admitted in evidence?" or the Common Law Judges make corresponding inquiries concerning Equity proceedings. Notwithstanding the notoriety of the nominal distinctions between the different departments of the profession, laymen have seldom any distinct notions upon the subject. Some imagine that one and the same counsel practises in all the different branches of the law; while others conceive that these branches are as completely separate, as rigidly distinguished from one another, as if they were totally distinct professions, requiring entirely different qualifications, habits, and capacities. A justly celebrated writer, Miss Edgeworth, has committed a series of ludicrous mistakes of this sort, in one of her principal novels, that entitled "Patronage." Her hero is a Mr. Alfred Percy, and great pains have been bestowed upon the description of his professional pursuits and occupations, as an ambitious and rising lawyer. Though in her Preface she vindicates her frequent use of professional technicalities, she is really quite in the dark as to the walk of life which she has undertaken to delineate; having no more distinct notion even of the difference between the functions of barristers, and those of attornies and solicitors, than of that which exists between common law, equity, and conveyancing: as any professional friend could have told her, who might have been consulted before the publication of her entertaining story. She has, consequently, made Mr. Percy a very mongrel character indeed: now, an attorney, sent into the country to inquire into the management of an estate, &c.; then, a conveyancer, drawing marriage settlements; and, finally, a pleading barrister, at one time eloquently haranguing judge and jury, at another drawing pleadings; in which latter capacity, by the way, he is represented as drawing, for the same party, in the same suit, both "Replication" and "Rejoinder "i. e., making his own client both plaintiff and defendant! It is perfectly true that there are broad lines of demarcation between the different departments of practice, arising out of the adoption, especially within the last hundred years, of the principle of the Division of Labour in the legal profession. There are those by whom this has been gravely deprecated, as almost necessarily tending to contract the range of acquirement, and enfeeble the mental powers, of practitioners. "The distribution of legal practice," observes the learned and accomplished Mr. Starkie," into so many distinct branches, each containing its own peculiar technical rules and practice, and enjoying, as it were, its own independent jurisdiction, has a tendency to make those who devote themselves principally to any one particular branch, too apt to wrap themselves up in their own technicalities; to attach a higher degree of importance to their favourite study than it really deserves; and, in proportion, to undervalue the importance which belongs to the learning and labour of those engaged in different departments."* These observations are worthy of being constantly borne in mind by both students and practitioners, as having a tendency to open and liberalize their views, and elevate their character * Introd. Law Lecture at the Inner Temple (1834). Legal Examiner, vol. ii. p. 449. |