66 "otherwise, the said judge or judges are to administer the oath "to him, and afterwards to cause him to be admitted, and his name to be enrolled as an attorney." And the 6th section contains a like direction as to the examination and admission of solicitors. If there should be any difficulty in obtaining the admission, then if the clerk think he can surmount it, the course is to proceed by petition to the court, supported by full affidavits removing the difficulty; and the decision of the court upon which will be final; because the jurisdiction is discretionary, and there is no court of appeal or higher tribunal, unless indeed by petition to the House of Commons. (1) In general, an attorney who has been admitted in one of the Superior Courts, has a right to be admitted to practise in any Inferior Court; but this is subject to the custom or practice of that Court, and if by established local law, there is only to be a limited number of attornies, and there be no vacancy, that is an answer to a mandamus from the Court of K. B. to examine the applicant previous to his application for admission to practise in such Inferior Court. (m) Perhaps, considering the great influence that attornies and solicitors have over the property and peaceable intercourse of society, and the impropriety of admitting ignorant or otherwise improper persons to practise, it would be well if the superior judges were relieved of the trouble of examining clerks as to their fitness to be admitted, which, from the multiplicity of their other functions, they cannot perhaps exercise with sufficient scrutiny, and if the office were transferred to other delegated officers, with power of appeal to the judges, either for or against an admission. At present, compared with the examination instituted before admission to practise in the medical and some other occupations, the admission of attornies is much more facile as regards their legal as well as their moral attainments, than that of admission to medical practice. CHAP. I. OF ATTORNIES AND SOLICITORS. tion of articled their service. With respect to the preparatory education of a youth in- Of the Educa tended for any department of the law, especially as an attorney clerks previous or solicitor, it should be much more extended than has hitherto to, and pending been customary. Parents would do well not to article their sons before they have completed their sixteenth year, and have finished with care and assiduity, at least a good classical school (4) 2 Geo. 2. c. 23, s. 2 to 6; 23 Geo. 2, c. 26, s. 15; 1 Geo. 4. c. 55, s. 4; and see the principle, Rex v. Gray's Inn, Dougl. 353; Wooler's case, 4 Bar. & Cres. 855. (m) Rex v. Sheriffs of York, 3 B. & Adolp. 770. CHAP. I. OF ATTORNIES AND SOLICITORS. education, and even that alone will scarcely be sufficient to enable a party afterwards to proceed through life with full advantage, much less to obtain great eminence. Even after the completion of a good school education, two or three years of study, under proper direction, of most of the useful sciences before he is to be articled, would be highly advantageous. It should be remembered, that to proceed with facility through any professional pursuit, an attorney should at least be well informed of the dead languages, the Greek and Latin, from which so many scientific terms are derived, not indeed in law, but in other branches of knowledge and literature; for they may have to conduct suits and proceedings connected with every science, and therefore some previous knowledge of each would be desirable, and especially a full knowledge of physics or natural philosophy. All branches of society have, particularly of late, so much advanced in knowledge, that unless a professional gentleman be well acquainted with an outline of most sciences, he will when he starts in business, find himself too cramped in knowledge to act with safety, or without apparent embarrassment, from fear of exposure or error. A knowledge therefore of the outline of all that will probably be practically useful, should be acquired before the commencement of his legal pupillage; and then about the age of sixteen (or even later if he be not previously fully prepared in these respects, and if the expence and seeming delay of a few years study at the University of Oxford or Cambridge cannot be afforded,) let him be articled. for six years, (which by strict attention he may as above suggested shorten to five,) and then soon after the age of twenty-one, he would be ready to start for himself, or at least be able to accept for a time the management of an office as principal clerk, until by established character for professional skill, and by increasing age, he will have justly acquired the confidence of his relations and friends. Moreover, let him be articled to a gentleman himself of liberal education, and who will be anxious that his pupil shall blend an increasing knowledge of useful sciences with legal pursuits, so as to permit, if not supply him with assistance upon the former; and he might even find it useful in practice to be acquainted with the art of drawing, at least so as to be able without expence to his client, to describe on paper, machinery, local situations, and other matters in aid of a cause. (n) (n) As regards practically useful sciences, if they have not been acquired before, it is recommended that the study of the subjects discussed in Dr. Arnott's Elements of Physics and Natural History be pursued, and that courses of Lectures at the King's College or the London University be attended, with leave of the CHAP. I. OF ATTORNIES AND By this means, much of the five years, otherwise irksomely long, may be profitably and cheerfully occupied in mental and technical improvements; and finally, having acquired enlarged and SOLICITORS. well cultivated understanding, he will be enabled to practise with honour and profit to himself and advantage to the community. As regards his intermediate study, as well of practically useful sciences as of law, the student may borrow from the few hints presently offered to the student for the bar. It should be further observed, that besides due knowledge of law and useful sciences, it will be of great importance that the youthful attorney should, as he progresses, study the distinguishing temperaments and characters of mankind, to which also the reading of biographical works would greatly contribute. He has to contend with the passions, the weaknesses of human nature, and not unfrequently, even against the cunning and iniquity of mankind; and consequently an attorney or solicitor who is a mere lawyer will scarcely ever attain eminence. This important truth will be particularly exemplified in the chapter relating to preparing a cause for trial or hearing, when the skill of an attorney may be particularly exemplified by his power of discrimination, and of justly anticipating the probable effect of the testimony of each witness. The study of Man should, therefore, be constantly in view, lest the practitioner be circumvented or incautiously mixed up with or contaminated by the bad propensities of his client. want of legal may or not The foregoing rules and observations, as to the legal compe- How far the tency of a party to practise as an attorney or solicitor, apply qualifications rather to the party so acting than to his client; for although in an attorney the incompetency to act on account of the want of regular affect the client. admission or annual certificate, subjects the assumed attorney or solicitor to penalties of 50%., (o) and precludes him from suing excepting merely for giving advice, (p) yet the client master, and at hours not incompatible with the duty of a clerk. As a simple instance of the utility of the knowledge of physics, or the laws of nature and mathematics, or rather of the consequences of ignorauce, may be stated the result of an action where a young man had furiously driven his father's phaeton against a heavy coach on the road, and then pretended that he had driven moderately and the coachman furiously, and thereby induced his father to prosecute the coachman; and upon the trial the ignorant youth and his serrant, and his equally ignorant attorney, assured themselves of success by zealously proving, perhaps beyond the truth, that the shock of the coach was so great as (0) 2 Geo. 2. c. 23, s. 24; and 22 (p) Smith v. Taylor, 7 Bing. 260. CHAP. I. OF ATTORNIES is not to suffer, at least, for the want of the certificate, and the proceedings on his behalf are sufficient and valid; (q) nor does SOLICITORS. the incompetency of the party acting as attorney deprive his client, when a plaintiff, of his right to full costs against the defendant. (r) But under the particular rule requiring the presence of an attorney when a warrant of attorney is executed by a defendant in custody under mesne process, it has been decided, that the presence of an uncertified attorney is not sufficient; (r) and in the first mentioned cases, if the client knew that the party employed was incompetent to act, probably a different rule would prevail, and the validity of his proceedings might be impeached. And in a modern case, where process was sued out in the name of A. by B., neither of whom were attornies of that Court, and had no authority of any other attorney to act in his name, the Court set aside the proceedings, and ordered A. and B. to pay the costs. (s) Upon the whole, therefore, it is most prudent for a party to ascertain that a person whom he is about to employ is an attorney of the proper Court, and is fully authorized to act therein, for otherwise, at least, he may sustain the delay and inconvenience that would result from some motion and rule upon the supposed defect. Rules for a client's selec tion of an at With respect to the selection of an attorney or solicitor, some hints have already been given. (t) The following obsertorney or soli-vations are not addressed, nor can be intended to apply to citor, proctor, &c. members of the profession who have been long established in practice, and are known to observe the true interests of their clients, as zealously as they despise low artifices to increase business, instead of counteracting the too frequent litigious dispositions of irascible clients. But a few observations upon the proper conduct of professional men, as prescribed by different Judges, may be useful to students, and those who are as yet young in practice. Many points of professional duty have already been suggested in detached parts of the work. We will collect a few other leading points, as well for the use of clients as for the profession. A cautious party anticipating litigation, would naturally prefer an experienced solicitor, whose character has already been established; but these are frequently so previously engaged, as to be unable to undertake the business; or relationship or (q) Welch v. Pribble, 1 Dowl. & R. 215; Reader v. Bloom, 10 Moore, 261; 3 Bing. 9. S. C. Anon, 2 Chitty's Rep. 98. (r) Vesye v. Dodd, Tidd. sup. 57. (s) Hawkins v. Edwards, 4 Moore's Rep. 603. (t) dute, Second Part, 435, 6. RETAINER OF A LEGAL AGENT. kind feeling may induce to the encouragement of a young CHAP. XI. practitioner, and whose zeal, constant attention, and activity, will frequently make up for the want of experience. Here the principal desideratum should be the honourable character and disposition of the practitioner; for many a good cause has been lost by the prejudice excited in the mind of a judge or jury, merely by the circumstance of the same being conducted by an attorney, known to have previously blundered, or been guilty of unprofessional or dishonourable conduct. When a cause is conducted by such a professional agent, it will frequently be even anticipated, that the witnesses have been tampered with; and the counsel themselves, knowing the general character of the attorney, will suspect the truth or correctness of his client's case; whereas, when he has received his brief from an attorney of known care and probity, he can venture fearlessly and boldly to examine and cross-examine witnesses according to his instructions, and need not anticipate either blunder or fallacy. dor's attorney. No prudent purchaser should employ on his own behalf an Purchaser not attorney or solicitor, who is also concerned for the vendor of to employ ven the estate, or for the proposed grantor of an annuity; not only because a person so charged with conflicting duties, may not be so apt or prone as he should be, to discover flaws in the title of the vendor or grantor; but also, because in other respects the knowledge acquired by such a double agent, might prejudice the purchaser. (u) Indeed the discordant duties may become so conflicting, as to render it impracticable for an honourable solicitor to proceed on behalf of both employers. trust should not employ a also an attor ney, nor should It has been not unusual for professional gentlemen to be con- A cestui que stituted trustees, by which they obtain such a control over property, that difficulties may arise in subsequent family arrange- trustee who is ments, and it may become necessary to institute a suit which otherwise might have been avoided. It has recently been settled, he act as such. upon great consideration, that a trustee, whether he be or not an attorney, cannot act professionally, so as directly or indirectly to charge for his personal trouble, or for professional business connected with his trust, either in his office or for his benefit; hence it should seem that unless this rule of law be evaded, it is against the interest of any attorney, as it usually is of his client, that he should be appointed a trustee. (v) (u) See 6 Vesey Rep. 631, note; Boroles v. Stewart, 1 Schol. & Lefr. 227; and illustrations, Sugd. Ven. & P. 8th ed. 8, 9. When a purchaser employs the vendor's attorney, he may be affected by the knowledge of, or notice to such attorney, of a defect in the title, or of prior incumbrances; id. ibid.; and see VOL. II. Franklin v. Colhoun, 3 Swanst. 301. (v) Turner v. Hill, and per Lord Lyndhurst, in New v. Jones, Aug. 1833; first reported in Legal Observer, Vol. vi. p. 410; Baker v. Grosvenor, MS.; and Carmichael v. Willson, 4 Bligh, 145, contra. C |