crative and pleasurable department is in Court, either in Bank or full Court, or at Nisi Prius, before a single judge and jury. CHAP. I. OF STUDENTS, SPECIAL With respect to opinions, some counsel scarcely do more PLEADERS, &c. than answer the question in the affirmative or negative, and some- Opinions and times only in the monosyllable "yes," or "no," without assign- their requisites. ing any reason or referring to any authority; contending that the sanction of their general opinion only is required, and not an argument in support of it. (n) From such individuals, the authority for their assertion may stand so high as at least to sanction, or protect from censure, the solicitor who acts under it. But such an opinion can be of no other utility. The scientific mode of advising always observed by a counsel, who was justly celebrated for his superior learning, was the model which should be invariably adopted. (0) He always gave, as far as the state of the law would allow, First, a direct and positive opinion, meeting the very point and effect of the question; and separately, if the questions were properly divisible into several, so as to satisfy the object of the querist, and be intelligible to the meanest capacity. Secondly, he succinctly stated his several reasons in support of such opinion. Thirdly, he shortly referred to the statute, rule, and decisions upon the subject; and when advisable, as when they were of doubtful application, shewed in what respect they were analogous. Fourthly, if, from the nature of the case, the facts were obviously or probably susceptible of a small shade or difference in statement, which might have escaped the enquiry of the solicitor, and might lead to a different result, he would suggest the possibility of such variation, and how it might affect the result; so that the solicitor would necessarily perceive the necessity for stating a further case, or, which is frequently more useful, have a conference, which would lead to a more certain ascertainment of all the facts. By this means, in the earliest stage of litigation, and before any considerable expence had been incurred, the law and the facts were quite, or nearly as fully ascertained as upon the trial, and the result might be justly and correctly anticipated. Fifthly, when he was doubtful whether some important fact did not rest principally on the statement of the party interested, without having ascertained the evidence, he would sug gest the necessity for enquiring in what way it was proposed to prove each fact. Sixthly, when he apprehended that the prefer 41 CHAP. I. OF STUDENTS, able process, or pleadings, might not be adopted by the attorney, SPECIAL or the special pleader, he would even suggest what course in PLEADERS, &c. that respect should be adopted. Seventhly, and lastly, if from the nature of the case, it occurred to him that some useful precautionary measures should be taken, he volunteered the proper suggestions. After such an opinion, attentively observed by a careful attorney, it was but rare that the client failed in his action or defence. Pleadings. With respect to Pleadings, a scientific pleader or advocate will not encumber the record with unnecessary statements, or complicated counts or pleas. The late Mr. Justice Dampier rarely suffered more than one count to be introduced into a declaration; but then he took care first well to ascertain the facts, and he already knew the law. Precedents should merely assist, and never govern; whilst now, too frequently, as many counts are inserted as any antecedent printed or manuscript precedent on the subject has ever contained: and if it be asked why there are so many, the observation will be, because if one should be objected to then the answer may be, there is another; and if that also be deficient, then that there is another, and so on until it is to be hoped that the Judge may be tired with the objections, and may say, Well, amongst so many I suppose there is probably one sufficient count, and therefore I will not nonsuit. But no one can contend that this is scientific pleading, or worthy of a liberal practitioner; as Dr. Johnson apologized for writing a long letter "because he had not time to write a short one-i. e. to consider and compress ;" so the circumstance of a declaration or other pleading being very lengthy, in general indicates that it was framed hastily, or that the pleader had not sufficient knowledge of the law, or strength of mind, to enable and embolden him to compress. To these observations, however, there may be exceptions, where the facts or the law are so doubtful as in prudence to require variations in the modes of statement, so as to meet whatever may even possibly be the result; and where a particular Court, or even a single Judge, is known to entertain a peculiar opinion upon a point differing from others, the careful pleader should, to avoid even discussion, conform even to such erroneous impression upon such subject. (q) (g) In a well known' case it singularly so happened, that each of the four Judges of the Court of King's Bench differed from each other upon points of pleading. The discreet counsel anticipated the difficulty, and drew four vary. ing counts, viz.; one to meet the opin ion of each of the Judges; and, in consequence, they all concurred that upon the whole record, on one or other of the counts, the plaintiff was entitled to recover, although neither could concur upon which particular count. CHAP. I. OF STUDENTS, SPECIAL It is grateful to the profession, and must be satisfactory to the public, to observe upon the present state of the former with regard to integrity and honor. Formerly, we had a celebrated PLEADERS, &C. lawyer, soon afterwards a Judge, unblushingly reporting of himself, as if it were matter upon which he plumed himself, that the Court had reproved him "for pleading subtly and deceptively, in order to trick the Court;" (r) and so late as A. D. 1761, we find an instance of such malevolent and dishonorable feeling in a barrister, evinced in causes in which he was personally interested, as his boasting that he had drawn the declaration in a lengthy and intricate way on purpose to catch the defendant, and to scourge him with a rod of iron; and that he had so improved the art of pleading that the paper book would amount to 3000 sheets, and he would ruin his opponent; and whereupon the Court directed the settling the issue in a quarter of a sheet of paper. (s) Happily no such degrading instances of contemptible conduct have in modern times occurred, (t) and the public will find the Bar universally as anxious for the improvement of the law, and the practice of it, as any suitor of the Courts; and even though the changes may demolish their respective incomes, yet they will still ever be found ready gratuitously, and even with increased zeal and energy, to advocate the claim of the poor or the oppressed. (r) 1 Saunders Rep. 327 (a). (s) Yates v. Carliste, 1 Bla. R. 270. Eq. Dig tit. Barrister, p. 184; and see CHAPTER II. PROCEEDINGS BETWEEN THE RETAINER AND THE CHAP. II. BETWEEN THE RETAINER AND AN injury having been sustained, and cause of action complete, PROCEEDINGS and a competent legal agent having been retained, it next becomes necessary to consider several points antecedent to actual litigation. We have in the preceding volume suggested some preliminary precautionary measures to be taken; but, besides those, there are, before the actual commencement of litigation, several points to be considered in this chapter, viz. COMMENCE- Subjects of this chapter. FIRST, who was the party in legal contemplation injured, or who is the party to sue? Secondly, who was the wrongdoer, or party liable to be sued ; and if doubtful, how are the facts to be ascertained? Thirdly, what is the cause or ground of complaint; and if doubtful, how is it to be ascertained? Fourthly, what is the evidence in proof of the whole cause of complaint; and if doubtful, how is it to be ascertained? Fifthly, of bills of discovery in general. Sixthly, demand of a sufficient security in lieu of one that is deficient. Seventhly, the propriety of the attorney writing a letter to the opponent before the commencement of any proceedings. Eighthly, the consideration of any offer of apology or compromise. Ninthly, the proposal of security on obtaining time, and considerations thereupon. Tenthly, notices of tenders and demands on the part of the plaintiff. Eleventhly, the demand in some cases of a copy of a warrant. Twelfthly, the notice of action to a justice. Thirteenthly, notice of CHAP. II. PROCEEDINGS the attorney's or solicitor's lien or claim for costs. Fourteenthly, enumeration of the several remedies, and which is to be pre- BETWEEN, &c. ferred. Fifteenthly, the retainer of Counsel. jured, or who First, It would seem on first view that no difficulty could arise First, who is in determining who is the party injured? and the answer would the party innaturally and simply be, the party who has sustained the incon- to sue. venience. But this is by no means true in every case; and perhaps no branch of the law is occasionally more difficult than that respecting who is to be the proper plaintiff or plaintiffs at law? Courts of Law, in general, only recognize legal rights, and therefore an action of ejectment cannot, excepting against a mere trespasser within twenty years, be sustained on the demise of a cestui que trust, but the demise must be in the name of the trustees. (a) And an assignee of a bond, or chose in action, (ex-cepting a bill of exchange or promissory note) must sue in the name of the obligee, and cannot proceed in his own name. These general observations will here suffice; the authorities and practice will hereafter be more fully considered, as well as regards the plaintiff at Law as the complainant or orator in Equity. But all questions as regard the party to a suit at law require consideration in the first instance, not only because an error would in general be fatal on the trial of any proceeding, but also because an attorney should secure proper authority to proceed, as well on behalf of all legal as well as equitable parties, the latter of whom would have to pay the costs; and so as to enable him even to write his preliminary letter upon the authority of every person legally or beneficially interested, and prevent any offence on account of their not having been previously consulted, which sometimes induces parties afterwards to release, or otherwise impede the proceedings. We have seen, that as regards the real or formal claimants of property, they may sometimes be unknown; and that in those cases, it is the proper course for executors and administrators, before they can venture to divide the personal assets, to advertise for creditors; or before they divide the residue amongst remote kindred, to advertise for near. (b) Those instances will suggest the expediency of public advertisements and other proceedings in various cases, to ascertain who ought to be the plaintiff at Law or in Equity. It may also occur, that an agent or other party who has the possession of (a) Ante, Part 1. pages 6, 7, 8. (b) See the utility of advertisements for creditors. When that has been made, although the creditors may appear and claim at any distance of time, yet it will not be to the prejudice of the executors in |