Examination of Attorneys.

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465

reason suggest his being examined as to his Some of your correspondents are, I perknowledge of natural and moral philosophy, ceive, advocates for examination in some parmathematics, mechanics, &c. It is true that | ticular branch of the profession. Now this, I am induced to consider, would be extremely pernicious, and in effect defeat the object of the examination; which, I apprehend, is instituted merely for the purpose of securing to the public a just guarantee as to the attain. ments of the future race of attorneys, whose duties are of that general character which entirely preclude the advantage of any benefits which could arise from an examination in a special branch. The examination, I humbly submit, must be general, or the object of the statutes and rules will be defeated.

the preparatory education of persons intended
for the law should be more extended than has
hitherto been deemed essential; but it must
be borne in mind, that a classical education is
not necessary to enable a clerk to become a
skilful and able attorney. Some of the first
men in the profession (both in town and
country), now practising as attorneys, know
nothing even of the Latin language, and have
never seen the Latin accidence. At this mo-
ment there are young men serving under ar-
ticles which have been given to them by their
masters for the diligence, and perhaps ability,
they have displayed in business. Some of
these young men are ignorant even of the ru-I
diments of Latin; and I concur in the justice
of the observation made by Mr. Wright, in his
Advice on the Study of the Law, addressed to
attorneys' clerks, "that this is an honor which
a respectable attorney will not confer on an
inattentive or a foolish man, and that the
wealthy should blush to reproach such men
for not having been regularly educated."

I have to offer you my acknowledgments for the small work, recently published, which consider very useful under present circumstances, and well calculated to take by the hand the young clerk, and lead him on his way in that wilderness, in which he perhaps has too long in vain looked to those bound by duty (but not by inclination) for advice and assistance.

ANGELO.

It is clear that an examination into the The time to be set apart for the examinaclassical acquirements of clerks cannot be re-tions, I understand, is to be the last ten days quired of those now under articles, because of each term. Now, when we come to consuch a requisition would amount to an ex post sider the number of young men who are facto law, and therefore would not be tolerated anxious to get into the profession, I would by the Judges. submit that forty days a year is not sufficient time for the examinations to be conducted in ; and I think the time between the Trinity and Michaelmas terms is too long for a young man to have to wait to be admitted. To remedy this, I would propose that the examiners should meet once a week in vacation, and twice a week in term, or twice a week throughout the year, for the purposes of examination, except from the middle of August to the middle of October. If it should be said that nobody can be admitted except when the Courts are sitting, I suggest that the oath could be as well administered before a Judge at chambers, and the roll signed in his presence, as adhering to the present custom.a

Some of your correspondents have recommended that a clerk, articled in the country, should be required to spend the last twelve months of his time in London. There appears no ground for making any such regulation, as the clerk ought not to be put to a great additional expense, if he can acquire the requisite knowledge in the office in which he is articled; and the best plan will be to leave the matter open to himself, as he will still come up for examination, and that too with a full knowledge of the increased risk (if any) which he runs by serving the whole five years in the country. I also take the liberty of saying, that attending a course of public law lectures ought not to be compulsory on a clerk. The propriety of law lectures is at least doubtful; and we have the authority of Mr. Chitty, in his General Practice of the Law, for stating, "that sound and accurate legal knowledge can only be acquired by private, deliberate, and assiduous reading and study." Mr. Chitty's sentiments accord with my own; and I feel persuaded that the best advice which can be given to an articled clerk, is to commence his studies with the resolution of becoming a lawyer; to shew himself possessed of a mind not to be shaken by trifles; to take care that his studies are systematic; and always to remember that in no instance, more than the legal profession, is it justified by experience, audaces fortuna juvat.

AN ARTICLED CLERK.

Then as to articled clerks not being allowed to be admitted except during the same term in which they are examined. I do not see the advantage of this rule; because, what matters it when the clerk gets admitted? The only thing the Court has to see to is, that no per son is admitted who is incompetent to practise his profession; which they will do by his examination. There are many young men, who although it would not be convenient for them to cominence business directly they are out of their time, yet it would be a source of gratification to them to know they are ready to be admitted when occasion presents itself, as well as having been judged competent to practise their professions; and as no articled clerk can be adinitted without being examined (except during the approaching term), I do not see the

[The act of parliament requires the oath to be taken in open Court. ED.]

466

Examination of Attorneys. - New Bills in Parliament.

reason, when he has complied with the Rule of Court, of his being compelled to get admitted the same term. Illness, accidents, and "the thousand ills that flesh is heir to," perchance may render it impossible to get admitted that term. I then ask, whether it is

NEW BILLS IN PARLIAMENT.

DURHAM COURTS.

This is intituled, "A Bill for the more per

justice that he should be compelled to under-fectly uniting to the Crown the County Palatine of Durham, and for the better Regulation of the Revenues belonging to the Bishoprick thereof."

go the ordeal again?

ONE TO BE EXAMINED.

[The Rule authorises admission until the end of the term next following the date of the certificate, and the Judge may extend the time. ED.]

I think the decision that the examination shall be by written questions, will meet with very general approbation; as was well remarked by W. H., "it affords a simple and certain appeal to the Judges;" and "the profession must allow that the examiners have wisely exercised their discretion."

It was, however, with some surprise that I observed a hint thrown out in your number of the 26th of March, that the candidate should have his choice as to the branch of the profession in which he would be examined. This system I hope will not be acted on. What would be thought, if, in medicine, an examination in one branch alone were to be considered a sufficient test of his knowledge in all,—that a student, possessing a knowledge of anatomy, shall be presumed to be learned in all the mysteries of the materia medica? And has not a client a right to expect his legal adviser to be proficient, as well in the art of conducting a law suit, as in managing the sale or purchase of his estate?

The preamble recites, that it is expedient to put an end to the separate palatine jurisdiction of the county palatine of Durham, and to make certain provisions respecting the said county palatine. The following are the proposed enactments:

Durham to cease.
1. Palatine Jurisdiction of the Bishop of

2. 27 H. 8, c. 24, s. 21, repealed.

Courts abolished, and Suits transferred. 3. That the jurisdiction of the Court of Chancery at Durham, and of the Chancellor of the same Court, and of the Court of Pleas at Durham, and of the Judges of the same Court, shall cease; and that all suits then depending, and all proceedings shall be transferred, those in the said Court of Chancery at Durham to his Majesty's High Court of Chancery, and those in the Court of Pleas at Durham to his Majesty's Court of Exchequer, to be there respectively dealt with and decided according to the practice of his Majesty's said Courts respectively, or according to the practice of the Court from whence the same shall be transferred, as to the judgment of his Majesty's said Courts may seem fit, which said Courts of his Majesty shall, for the purpose of such suits and all proceedings thereon, be In justice to the present race of articled deemed and taken to have all the power and clerks, who have never had an idea of an ex-jurisdiction to all intents and purposes posamination during their servitude, it would perhaps be proper to propound only questions of no great difficulty for the first few terms, and afterwards to examine with greater strictness, when the mode of examination shall have become generally known to the clerk a sufficient time before his admission to allow him to make proper preparation.

sessed before the passing of this uct by the court from which the same shall be removed: Provided that nothing herein contained shall have the effect of preventing any appeal from or against any decision made prior to the commencement of this act.

4. That the several offices of Temporal Chancellor, Attorney-General, Solicitor-General, Registrar of the Court of Chancery, Examiner of the said Court, Cursitor of the same Court, and Prothonotary of the Court of Pleas respectively, in the said County Palatine, shall be abolished.

County Court excepted.

1 trust also that the suggestion of W. H. will one day be followed, that a residence in the metropolis during the fifth year of their clerkship, shall be made compulsory on the country clerks; and that every one, before admission, shall be required to produce a certificate of having regularly attended a full 5. Provided, that nothing hereinbefore concourse of law lectures at King's College, the tained shall abrogate or affect the authority or London University, or the Law Institution. jurisdiction of the Court called the Court of The enforcing an attendance at these valuable the County of Durham, and that the authoinstitutions, and the pursuit of a higher sca'e rity and jurisdiction of such Court shall conof professional knowledge among the gentle- tinue in full force and effect; and that any men of the law, will tend much more towards such process as may heretofore have been elevating the character of the body for respec-issued for the purposes of such Court out of tability and gentlemanly conduct, than testing the said Court of Chancery at Durham shall their legal attainments by the translation of for the future be issued out of his Majesty's an Ode of Horace.

ARATUS.

High Court of Chancery.

6. That the Sheriff of the county of Durham for the time being, from time to time as occasion shall require, subject to the approval

of the senior Judge on the Northern Circuit, | Westminster, in like manner as is now or may may make and regulate a table of fees, costs be hereafter prescribed for the admission of and charges, to be demanded, received, taken other persons as attorneys and solicitors therein, and charged by the officers of the said County upon payment of such sum for duty, in addiCourt, and also of the costs, charges, and tion to the sum already paid by them in that expenses to be allowed to plaintiffs and de- behalf, as shall, together with such latter sum, fendants in any actions or plaints now pending amount to the full duty required upon the ador to be hereafter brought in such court. mission of attorneys or solicitors in the said courts at Westminster, and that all persons having served or now actually serving under articles as clerks to such attorneys or solicitors of the said courts of Durham respectively, may, at the expiration of their respective times of service, be admitted as attorneys or solicitors of the said courts at Westminster, in like manner and upon payment of the like duty, as if they had served under articles as clerks to attorneys of the last-mentioned courts.

468

Sir,

New Bills in Parliament.-New Stamp Duties - Suggested Improvements.

NEW STAMP DUTIES.

AGREEMENTS.

with finance ministers, were it not that daily experience shews us that daily experience does not teach them, is, that the revenue actually suffers by this high duty. How few of THE publication in your last Number (p. 435) the many agreements that are daily signed are of some extracts from the schedule of the pro- ever brought to be stamped! So few, that I posed New Stamp Act, having excited my atten- deliberately assert, that were the duty on tion, I am induced to trouble you with a few re- agreements one shilling instead of one pound, marks upon one head, namely, Agreements, in there would be a large increase of revenue on which it appears no alteration is contemplated. that head. The shilling tax would be so little The stamp upon agreements has always struck felt, that no attorney or client would do that ine as one of the most ill-judged taxes possi- which he now does every day of his life, have ble; and I will venture to affirm that it has his agreements written on unstamped paper. been the cause of more injustice and disho- He would keep the stamps by him and connesty than any other branch of finance, at the stantly use them, and thus the revenue would same time that its oppressive amount prevents be increased, and we should witness no more thousands of agreements from ever being the disgraceful scene of Courts of Justice stamped at all. I need not point out to you rejecting the best evidence,-of fraud triumhow continually cases are occurring, where a phant and right overthrown, which, under the document being tendered as evidence is ob-present system, we are daily doomed to see. jected to, because, containing words of proinise, it ought to be stamped; how often the plain fact, whether liable to duty or not, will bear considerable argument; how frequently right has been defeated, and justice rendered inaccessible, by the rejection of the document on that account. The best evidence-writing under a man's own hand, is thus rejected, because an ample Exchequer must be replenished; and dishonesty is sanctioned, and perjury encouraged, by inducing persons to endeavour to prove the same facts by parol evidence. Of all taxes, that which rewards a man for denying the evidence of his own writing, must be

the worst.

I could, did space permit, adduce from our books of Reports, incontrovertible evidence to prove what I have above stated. I am satisfied, however, with calling your attention to the subject, trusting that you will take it up yourself, and make a much better case of it than I have done. W. C.

[We understand that the Chancellor of the Exchequer is willing to provide for deeds and instruments improperly stamped, being received in evidence, upon paying the extra duty and penalty into Court; but we do not observe the clause in the printed bill. ED.]

SUGGESTIONS FOR IMPROVING
THE LAW.

MARSHALSEA AND PALACE COURTS.

To the Editor of the Legal Observer. Sir,

As most monopolies in the Law have been extinguished, I beg to mention the existence of one, viz. the Palace and Marshalsea Courts.

Leaving that subject, although much might be said upon it, I will refer to the injudiciousness of rendering instruments not final in themselves, but merely executory, liable to duty. Leases and conveyances, by which an actual interest passes, and is confirmed, are rightly taxed; but to subject those instruments which are not final, but merely initiative, to a heavy duty, is not only oppressive by its burthen, but vexatious in its operation; its tendency being, to leave to verbal engage ment, and consequently, to endless misconception and misconstruction, those compacts which are the basis, or intended so to be, of future and permanent arrangements. Setting|sion expires. aside the wilful and fraudulent evasions of It is well known, before the recent Acts of parol undertakings, too frequent as they are, how often are friendships severed, and animosities and suits engendered, by the loose and inaccurate memory of one party, or the totally different understanding of the arrangement which another may have formed.

I suggest that these Courts be abolished; and I trust some member of the Legislature will prepare a bill for that purpose, and present it to Parliament before the present ses

Parliament and Rules to reform the Law, many persons sued in the Courts in question for expedition as well as cheapness; but now those inducements have fled, as execution can be obtained in a Superior Court quite as soon (provided judgment is allowed to pass by default, and the debt be under 207.) and at less expense, as no doubt you are aware.

Six attorneys only being allowed to practise in the Courts referred to, I suggest that the Courts should be totally abolished, giving the officers a fair and reasonable compensation for the loss of their respective offices; or else for the Courts to be thrown open to the profes sion generally, in the same manner as the Court of Exchequer was thrown open some years since, to all attorneys who were desirous of practising in that Court.

C. S. K.

Superior Courts: Lord Chancellor's; Equity Exchequer.

SUPERIOR COURTS.

Lord Chancellor's Court.

PRACTICE.-INROLMENT OF DECREE. The Court will not order the inrolment of a decree to be vacated merely on the ground that instructions were previously given, by mistake, to a wrong officer to enter a caveat against the inrolment, there being no charge of extraordinary dispatch, surprise, fraud, or other irregularity against the party inroling it.

469

decree pronounced in December was not inrolled till February. The object of inrolling a decree is to prevent being harrassed with two appeals-one here, and one to the House of Lords. The party here did not only not go to the proper officer, but did not enter the caveat at all, and did not intimate even his intention to the solicitor of the defendants. All the modern cases and practice on this point are set forth in the late case of Barnes v. Wilson,b before Lord Chancellor Lyndhurst, and they relied on that case in place of urging arguments of their own.

Wardle v. Curter and others. Sittings at Lincoln's Inn, April 12th, 1836.

The Lord Chancellor said, in the course of Sir William Horne moved that the inrol- the argument, that his own impression was ment of the decree in this case be vacated. that if the party obtaining the decree had not The decree was pronounced by the Vice Chan- notice of a caveat he had a right to inrol it. cellor on the 23d of December, 1835. The His Lordship added, that that rule was not solicitors of the parties settled the minutes affected by the application of the other party with the registrar as soon as was possible after to the wrong officer to enter the caveat. The the holidays, and the solicitor of the plaintiff entering of the caveat being neglected, the deconceiving the decree, which was in favour of fendant's solicitor did what he had a right to the defendants, to be untenable, gave instruc- | do. The only question was, whether the mistions, on the 16th of January, 1836, at the Six take of the plaintiff's solicitor was to be conClerks' Office, to his clerk in court, to enter a sidered by the Court a sufficient reason for caveat against the inrolment of it. That officer vacating the inrolment, and preventing the deneglected to enter the caveat, and the soli- fendants from having the benefit of the inrol citor of the defendants obtained the necessary ment. The practice of the Court did not predocuments for inrolling the decree, with the scribe any limit of time within which a party Lord Chancellor's sanction, on the 23d of was not to inrol a decree; but the Anonymous February following, and it was accordingly in- | case, before Lord Hardriche, assumed a liunit, rolled on the 25th of that month. These were by saying the decree was too quickly inrolled. the facts as sworn to in the affidavits of the There is no charge of irregularity here; and plaintiff's solicitor and of the clerk in court. the Court will not relieve against a party who This seemed to be a case of sharp practice, has been regular according to the practice, and the Court had jurisdiction to grant relief. and who does not appear to have taken any Stevens v. Guppy. The solicitor for the de- advantage of the other party. fendants could not suppose that the plaintiff would submit to the decree, and yet by the inrolment of it he effectually prevented him from appealing from it, except to the House of Lords. Lord Hardwicke, in a case where a party, by mistake, applied in due time, but at the wrong office, to enter a caveat, ordered the inrolment of a decree to be vacated, as being too quick, though strictly regular. Anon. 1 Ves. sen. 326. It may be said that the plaintiff's solicitor was in fault in giving his instructions to the wrong person, instead of the Secretary of Decrees, or in not communicating with the solicitor for the defendants; but if this was a mistake, it was one into which the plaintiff's solicitor was led by the Books of Practice of the Court, as Harrison, p. 370, and Turner, p. 734, both of whom | lay it down as the practice, that to prevent inrolling a decree instructions are to be given to the clerk in court, who leaves a note with the bag-bearer, in these words: “ Enter a caveat against inrolling this decree. Geo. Jackson, clerk." The plaintiff relied on that practice, and did all that was in his power to prevent the inrolment.

Mr. Wigram and Mr. James, contrà. The inrolment of the decree was strictly regular, according to the modern practice. There was no bad faith, no surprise, no dispatch. The

a Turn. & Russ. 178.

Equity Exchequer.

PRACTICE.-BILL OF DISCOVERY.-DEMUR-
RER.--PARTIES HAVING NO INTEREST.

A party cannot file a bill of discovery in aid
of a defence to an action at law, unless his
name appears on the record in the action,
or his interests may be affected by the
judgment in it, as in case of partnership
in business with those who are parties to

the action.

The defendant having been employed by the plaintiffs-four persons in partnership-as agent in the consignment of goods to and from places abroad, claimed, on the settlenent of accounts between him and them, a balance in his favour of 1750/.; and on their disputing that claim, he brought his action for the same against three of the four partners, the fourth being then out of the jurisdiction. The plaintiffs thereupon filed their bill of discovery, in the name of the four, alleging that the accounts rendered by the defendant were fraudulent, and that without the discovery sought they could not make a defence to the action, and praying that the defendant might

b 1 Russ. & Mylne, 486.