protect him, especially if the case were not diligently and pro-
perly stated; (w) yet it would be difficult to charge him with
negligence where he, having carefully drawn a case, by fully
stating the facts, evidence and points, with separate questions,
and having obtained an explicit opinion of an experienced coun-
sel, has acted strictly according to his directions (x). But an
attorney is liable to be sued for any loss, damage, or delay, occa-
sioned by his want of a due degree of knowledge, skill, or care,
especially if the error be in his practical department (y); for
although he might be excusable in coming to an erroneous
conclusion upon points respecting the substantial rights of
parties, it is incumbent upon him, at least, to be well informed,
before he undertakes a suit or defence, of the proper practical
proceedings, that being his more immediate department, and
with respect to which he ought not even to have been ad-
mitted, if grossly deficient; and his obtaining his admission
was in effect a legal fraud upon the judge. (z) As if a pri-
soner be superseded in consequence of the attorney not charg-
ing him in execution in due time (a). But, as above observed,
if he mistake, even upon a point of practice, yet if it be a
matter upon which a doubt could be reasonably entertained,
he will not be liable (b). In cases of negligence of this descrip-
tion the Courts will not in general interfere summarily against
the attorney, but will leave the party to his action; and in
which the jury would have to decide upon the negligence,
subject to the directions of the judge. (c) But when an at-
torney has been guilty of want of integrity, then, although no
suit or proceeding has been pending, the Court will interfere
summarily; and where an attorney assumed to act as a profes-
sional agent for parties abroad, and in consequence employed a
proctor, and recovered prize monies and other proceeds for his
employers, the Court summarily compelled him to account and
'pay over, although he had not done any act in Court in his pro-
fessional character (d).

(w) Godfrey v. Jay, 1 Moore & P. 236; 6 Bing. 616. S C. See other cases, ante, 21, 22.

(x) See ante, 22.

(y) Russell v. Palmer, 2 Wils. 325; Swannell v. Ellis, 8 Moore, 340; 1 Bing. 347, S. C.

(z) Per Cur., 6 Bing. 460, 468; Reece v. Rigby, 4 Bar. & Ald. 202; Pitt v. Yalden, 4 Burr. 2060.

(a) Lee v. Ayrtim, Peake R. 119; Russell v. Palmer, 2 Wils. 325; 4 Burr. 2061; for neglecting to have a witness in court, and consequent nonsuit, Reece V. Rigby, 4 B. & Ald. 202; for not dockVOL. II.

etting a judgment; Flower v. Boling-
broke, 1 Stra. 639; for want of care in
examining the sufficiency of a securit
or title, Brown v. Howard, 4 J. B. Moore,
508; Wilson v. Tucher, 3 Stark. 154;
Iresim v. Pearman, 3 B. & Cres. 799.

(b) Ante, 32, Kemp v. Bent, 1 Nev. &
Man. 262; Laidler v. Elliott, 3 Bar. &
Cres. 738; Jacks v. Bell, 3 Car, & P.316;
Baikie v. Chandless, 3 Camp. 617, 19.

(c) Reece v. Rigby, B. & Ald. 202;
Bourne v. Diggles, 2 Chitty's R. 311.

(d) Re Woolf, 2 Chit. Rep. 68; 4 Bar. & Ald. 77; Ex parte Hall, 7 Moore, 437; 1 Bing. 91, S. C.

D

CHAP. I.

OF ATTORNEYS
AND SOLICI-

TORS.

CHAP. I.

OF ATTORNEYS
AND SOLICI-
TORS.

TORS.

Proctors stand in the same relation in Spiritual, Ecclesiastical, and Admiralty Courts, as attornies at Law and solicitors in Equity. They must before they can practise have served III. OF PROC- as a clerk for five years under articles, and which are liable to the same stamp duty, and to similar provisions as the articles of an attorney or solicitor. (e) They also must have been examined and admitted; and they must also obtain an annual certificate; (f) and they also are prohibited from suffering unqualified persons to use their names, (g) and from acting as a justice of the peace whilst they continue in practice. (4) Their general duties, rights, and privileges, stand on the same principles as those of attornies and solicitors; and we have seen some valuable observations of Lord Stowell upon parts of their duty and conduct. (i)

IV. OF CERTI

FICATED CON

Before the Act 44 Geo. 3, c. 98, sect. 14, there was no direct VEYANCERS.(4) recognition of that description of legal agents, now called Certificated Conveyancers, and they seem to have been allowed to practise rather for revenue purposes than upon any principle of sound policy. Before that act, and indeed since, upon being entered and becoming a member of one of the Inns of Court, for which is to be paid 257. (required by the subsequent Act, 55 Geo. 3, c. 184, schedule, tit. Admission and Certificate), and also upon paying for an annual certificate of 127. or 81. according to time and distance, any person, however insufficiently educated, and however ignorant of the legal profession, such as inferior schoolmasters and unadmitted or discarded lawyers, are allowed to draw conveyances and deeds, and other documents relating to real and personal estate, thereby interfering with the fair profits of regular practitioners, though ultimately by their blunders frequently occasioning a compensatory return of litigation. The first statute enacts, that any person who has not obtained the stamped certificate, as required by that act, and by the subsequent Stamp Act, 55 Geo. 3, c. 184, schedule tit. Certificate, and which must be impressed with the duty of 12., if the party reside in London or Middlesex, or within the limits of the twopenny post office, or if elsewhere in England, S., and who shall for or in expectation of any fee,

(e) 55 Geo. 3, c. 181, Schedule, tit.
Articles of Clerkship.

(ƒ) 25 Geo. 3, c. 80, s. 11.
(g) 53 Geo. 3, c. 127, s. 8, 9.
(h) Geo. 2, c. 18, s. 2.

(i) Ante, 23, 24.

(4) The following observations merely

relate to those certificated conveyaneers who have not been members of the profession, and duly educated as such, and do not apply to regular conveyancers, who are really learned in the law of real property.

CHAP. I.

AND SOLICI
TORS.

gain, or reward, draw or prepare any conveyance or deed relating to any real or personal estate, or any proceedings in OF ATTORNEYS law or equity, pay a penalty of 501. for each offence (unless he be a serjeant at law, or barrister, or a solicitor, attorney, proctor, agent, or procurator, having obtained a regular certificate, or a special pleader, draftsman in equity, or conveyancer, being a member of one of the four Inns of Court), and having obtained a stamped certificate as thereby required. But the act exempts persons solely employed to engross any deed, instrument, or other proceeding, not drawn by themselves, and for their own account; and also excepts public officers drawing or preparing official instruments, applicable to their respective offices, and in the course of their duty; and also excepts and authorizes any person drawing or preparing any will, or any other testamentary papers, or any agreement not under seal, or any letter of attorney.

The 55 Geo. 3, c. 184, schedule, title Certificate, by using the words "being a member of one of the four Inns of Court," impliedly introduced a wholesome restriction by requiring, not only the stamped certificate of 127. or 8., but also an admission by the benchers of one of those inns, at the cost of 251. (1) For a time, the other fees paid by such certificated conveyancers to the respective inns, constituted a strong temptation to indiscriminate admission without sufficient enquiry. But, in consequence of improper persons having thus been enabled to practise, the benchers of the Inner Temple set the laudable example of instituting a rigid enquiry before they would admit. But still too many improper persons contrive to obtain admission and practise to a considerable extent, and a correspondent injury to more regular solicitors, who have paid the large duty on their articles, and probably paid for clerkship a considerable premium, and duly served under their articles for five years, and also occasioning material detriment to the community. (m)

It will be observed, however, that though the 44 Geo. 3, c. 98, extended only to Conveyances and Deeds, and those only when they related to personal or real estate, the 55 Geo. 3, c. 184, schedule, tit. Certificate, appears to extend further, to "any instrument," whether or not it be a deed, and to any deed or contract whatever."

(See Edgar v. Hunter, Holt's Cases Ni. Pri. 528.

(m) Some of these certificated conveyancers, in league with inferior prac

titioners, besides causing innumerable
blunders, and bad titles to estates, ex-
cite much unnecessary litigation amongst
the lower orders of society.

CHAP. I.

AND SOLICI

TORS.

It would seem necessarily to follow from these enactments, OF ATTORNEYS that when a certificated conveyancer has been duly licensed to act, and has acted within the scope of his authority, he may recover for his reasonable fees; and accordingly it has been so expressly decided (n); and a bill for mere conveyancing need not be delivered a month before the commencement of an action for the amount; (0) nor can it in general be taxed; (p) though if one bill has been delivered for costs in Court, and another for conveyancing, the Court may direct both to be taxed; (q) and if a bill has been delivered, partly for such costs, and partly for conveyancing, the whole may, as a matter of course, be taxed. (r)

V. OF NOTA

RIES.

Notaries also may be considered a description of law agent. Their department is of very ancient date, and existing in every state of Europe; and their acts have long, by common consent of merchants, and courts of all nations, had peculiar weight and respect attached to them. (s) A notary, before he can act must, by indentures of apprenticeship, have been bound to serve for the term of seven years as a clerk or apprentice to a duly admitted and practising public notary, or to a scrivener, who is also a notary by the custom of London (t); and such indenture must have been duly stamped as an indenture of apprenticeship (u); he must also have continued in such service, and be actually employed during the whole term; (v) and he must bona fide and exclusively serve such notary in his department; and therefore we have seen, that where the clerk had, during the mornings of his service, attended at a banker's, and only resorted to the notary's after five o'clock, the Court of King's Bench refused a mandamus to admit him to practise as a notary. (w) In order to be admitted to practice, a faculty is to be obtained from the Court of Faculties, (x) and upon which, when in England, a stamp duty of 307. is imposed; (y) and if he be guilty of misconduct he may be struck off the Roll of Faculties, (2) and any un

(n) Poucher v. Norman, 5 D. & R. 648.

(0) Hooper v. Till, 1 Dougl. 199: but semble, that a charge for advising relating to an action, may be considered as a taxable item. 7 Bing. 260; Alderson, dissentiente; ante, 29 note (c).

(p) Tidd. 9th ed. 328, cites 1 M. 12, G.2; Anom. K. B., Barne, 41, C. P.; and see Bul. Ni. Pri. 145.

Exchange, Index, tit. Notaries; Burn.
Eccles. Law, tit. Notaries.

(t) 41 Geo. 3, c. 79, s. 2; and see 44 Geo. 3, c. 98. s. 14.

(u) 55 Geo. 3, c. 184, Schedule, Apprenticeship.

(v) 41 Geo.3, c. 79, s. 2, 7, and 8. (w) Ante, 11 note (e). Rex v. Scrivener's Company, 10 Bar. & Cres. 511.

(r) Described by 41 Geo. 3, c. 79, s. 3, 4.

(y) 55 Geo. 3, c. 184.
(2) 41 Geo. 3, c. 79, s. 10.

authorized person acting as a notary for profit, is subjected to a penalty of 501.; (a) but Proctors, and the Secretary to any Bishop, and certain other persons, are expressly excepted. (b)

The 1 & 2 Geo. 4. c. 48. s. 3, enacts that the above act, 41 Geo. 3. c. 79, shall not extend to Registrars or Solicitors of the Universities; and the recent act, 3 & 4 W. 4. c. 70, also exempts attornies and solicitors and proctors from the necessity of serving an apprenticeship to a notary, before they can act as such at any place distant from London more than ten miles, but then he must be admitted so to practise by the Court of Faculty. (c)

The 44 Geo. 3. c. 98, expressly excepts notaries; and consequently a notary may, for profit, draw or prepare any conveyance, deed, contract, or document whatever, although he is prohibited from being concerned for profit in any action or suit.

CHAP. 1.

OF STUDENTS,

SPECIAL

PLEADERS, &c.

DENTS FOR THE
BAR, SPECIAL

CONVEYANC

ERS, AND BAR

With respect to students, special pleaders, conveyancers, and VI. OP STUbarristers, there is not at present any statute or regulation prescribing any precise course of study or examination as re- PLEADERS, gards legal competency before he is admitted to practise, although there is a general unqualified superintending control, RISTERS. and final decision as to his general fitness to be called to the bar, reposed in the benchers of the Inn of Court of which he must have become a member by admission as a student. The absence of any regulation respecting the legal education, or requiring actual observance of any sedulous study, may be attributed to three circumstances; first, that many men are called to the bar merely for a collateral object, and not with any view to actual practice in the law, at least in England; secondly, from the supposition that as they would only be employed in practice through the intervention of an attorney or solicitor, their legal competency would probably be justly appreciated, and therefore, no unintelligent person would be prejudiced, as might occur in the employment of an ignorant attorney; and, thirdly, that men usually of more enlarged education, who have finished a college, or other superior scale of education, will naturally, of their own accord, in furtherance of their own ambitious views, take care so to qualify

(a) 41 Geo. 3, c. 79, s. 11. See exceptions and observations in Candler v. Candler, 1 Jacob. R. 231, 2.

() 41 Geo. 3, c. 79, s. 14.

(c) It has been complained that that Court demands 507. on such admission, besides the stamp duty, which operates as an exclusion, contrary to the act.