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or children; or that just before his death-and either before or after the breach of covenant, he had sold the house to a man who had become bankrupt; or had mortgaged it, twice over, and both or either of the mortgagees had either become bankrupt, or insolvent, or had died or again, that the lessor had devised or bequeathed the house to two persons in trust for one of his nephews, and in case of his death, to the brother of that nephew; and after the death of his elder nephew, one of these trustees also dies, and the other becomes insolvent, the junior nephew having also either become insolvent or bankrupt, or died, with or without a will; who ought, in any of these cases, to be made the plaintiff? The landlord-his widow-his executor-his first or second mortgagee, or either of their respective assignees—his assignees-the trustees-the representatives of the dead trustee, or assignee of the bankrupt one-or the second nephew,his representative or assignee? If out of all these persons the wrong one should be selected, the action will be defeated, possibly after a ruinous expenditure. Suppose, again, the case of the tenant's death,-either with or without a will,—or his bankruptcy, or insolvency, either before, or after the expiration of the lease, or breach of covenant, or that he had assigned his interest in the lease to a person who is dead or bankrupt, and whose assignees have made over the lease to a stranger, a woman, who the next day marries-that her husband pays rent, and then assigns the lease to a man who becomes bankrupt, and obtains his certificate, &c. &c. &c.—who out of all these persons ought to be made the defendant?—It will be obvious to the student that to determine such questions, and to act, promptly, upon such determination—

as he must-requires both accurate and extensive knowledge. Nor is that all: to state, upon the record, in any such cases as those supposed, the derivation, title, and character of the parties, requires, also, the greatest attention, and familiarity with the forms of pleading.

Then, again, what shall be the FORM of action adopted?— another matter of capital importance, into which it is unnecessary here, however, to enter, since we have sufficiently explained its general nature, in a preceding chapter.*—Having selected the proper parties, and the proper form of action, and conducted the pleadings successfully to issue, then another important duty devolves upon the pleader or pleading barrister-viz., to advise his client as to the EVIDENCE necessary to be adduced at the trial. The brief must be prepared; and the attorney's first step, in all except the very plainest cases, is, to send to his pleader or barrister a draft of the intended brief, comprising a full statement of facts, an abstract of the pleadings, and an epitome of the proposed proofs, in the form of a "case, to advise on the evidence." Here is a responsible duty cast upon pleader or counsel! He must first make himself thoroughly master of the whole facts, and then consider how they are affected by the pleadings. Some facts are conclusively admitted; and with them, therefore, he has nothing to do, but to be QUITE SURE that they are so admitted. A mistake on this score would have a two-fold effect-to show that the pleader was equally ignorant of pleading, and of evidence. What must a client think of an adviser who has put him to great expense and vexation in bringing witnesses to prove a fact which the defendant was by his pleading clearly estopped from denying? Or who

Ante, chap. x., pp. 469, et seq.

has represented that to be admitted on the record which clearly is not-and so led his client to disregard the production of the evidence by which alone his case can be established? Would that the young chamber practitioner could be present at the consultation between counsel, in a case where the evidence ready to be adduced is insufficientand there is no time to repair the error! Either his client must, if concerned for the plaintiff, incur the expense, and have the mortification, of withdrawing his record; or, if for the defendant, submit to an adverse verdict which might have been averted, had he been properly advised;—And the same observations apply to the case where the pleader has framed his pleadings improperly.

The student must also ever bear in mind that the urgency of legal business seldom allows of procrastination. The young practitioner must decide promptly on the multifarious matters which he may be fortunate enough to have submitted to him. Complicated as may be the facts, difficult as may prove the selection of the requisite form of action, critical the duty of preparing the pleadings, and advising upon the evidence requisite at the trial, the pleader must make his decision, generally speaking, at once, if he wish to get through only a moderate share of business and how can all this be done, with either comfort, credit, or safety, unless to a clear and thorough knowledge of legal principles be added an accurate knowledge of forms, ready and dexterous reference to decisions, and a correct application of them?

The pleader is also expected to afford prompt assistance to his clients in the sudden exigencies arising in PRACTICE; for which purpose a familiar knowledge of the

"practice of the courts" is indispensable. "This practice of the courts," says Mr. Tidd,* "is founded upon ancient and immemorial usages, which may be termed the Common Law of practice, regulated from time to time, by Rules and Orders, judicial decisions, and Acts of Parliament. The practice, is the law of the court, and as such is a part of the law of the land." If a client cannot obtain and confidently rely upon such assistance, the chances are that he will desert his pleader; nay, he must do so, either partially or altogether; for he cannot trouble one man with such questions, and give his pleading business to another. Thus, therefore, it is that our young practitioner is exercised, betimes, in pleading, practice, and evidence; three paths, as it were, which traverse nearly the whole territory of the Common Law. A little persevering attention will suffice to show him the mutual bearings of these three upon one another, and that the knowledge of one is, to a considerable extent, a knowledge of them all.

The practice of special pleading, though both laborious and responsible, is by no means in itself a lucrative one. "A young pleader should think himself fortunate," said, the other day, one of the judges, "if he be able to pay for his library out of his business during his first three years. At least I thought myself so." A pleader's fees range between 7s. 6d., 10s. 6d., 15s., and a guinea, and in very important cases, extend to several guineas; and to earn even the smallest of these sums, frequently requires much time and labour: for the difficulty of the law bears no

* Tidd's Practice, Introd. p. lxxi. (9th ed.).

+ Jenkin's Cent. 295; Lane's Case, 2 Coke, 17; Slade's Case, 4 Coke, 93 (b); Fogoe v. Gale, 1 Wils. 162; Rex. v. Wilkes, 4 Burr. 2572.

relation whatever to the importance or magnitude of the subject-matter of litigation. The principle determining a liability to the payment of a few shillings, is the same as that which governs rights and liabilities in respect of thousands, and even millions sterling. There is, however, a good deal of the routine business in a pleader's chambers, which requires only moderate knowledge and exertion. Pupils' fees do certainly contribute to swell the "modest gains" of the pleader. It is by no means unusual, indeed, for pleaders to have ten, or even twelve pupils a year, each paying a hundred guineas.-It should be borne in mind that the practice of pleading ought, in general, to be viewed as only means to an end. The individual who has patience, resolution, and ability enough to apply steadily to special pleading, even though he should not earn a large income, is engaged all the while in thoroughly and practically studying his profession, in all its secret turnings and windings, facilitating his discharge of the court business which may hereafter come to him, and slowly but surely organising a connection which will support him, if he be deserving of support, when he shall have been called to the bar.

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It can hardly be necessary, after all that has been said upon the subject of special pleading, both in this chapter, and in preceding parts of the work, to warn the youth who rashly rushes to the bar without a competent knowledge of pleading, of the folly of which he is guilty, and the danger to which he is exposing himself. To a young counsel ignorant of pleading, a brief will be little else than a sort of Chinese puzzle. He must either give up in despair all attempts at mastering its contents, or hurry in ridiculous agitation from friend to friend, making vain

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