354 Examination of Attorneys and Solicitors. Amongst other topics, in support of the readily pursued than at a later period, when proposed improvements, it has been urged the reasoning powers are developed, and by many provincial solicitors that the re- higher objects engross the attention and duction of the stamp duty on articles of interest the feelings. Indeed, to pass creclerkship, will largely increase the number ditably a classical and mathematical examiof clerks of an inferior class; and that as nation, demonstrates the possession of the property qualification has thus been re- faculties that, if constantly exerted, will duced, the educational tests should be probably lead the possessor to that distincraised. It seems questionable whether this tion of which there are many shining exview of the case could be successfully urged amples. in Parliament or before the public. The We have heard it urged, however, that Chancellor of the Exchequer expressly admitting the advantages of a higher degree avowed that he reduced the stamp from of education for a considerable class of at120l. to 80%. in order to encourage a "freer torneys, engaged chiefly for the nobility competition," and in the present temper of and gentry, it is unnecessary for the mathe age there is little chance of continuing jority of our legion of Ten Thousand to any system of restriction or monopoly. It possess more than an ordinary education ;is the pride of our free constitution that the humblest peasant or artizan may advance himself to the highest rank. that it may be safely left to clients to select legal advisers;-and that generally collegiate or classical attainments render young But whilst a pecuniary or property quali- men less inclined to submit to the necessary fication cannot be maintained, we think that, drudgery which attaches to a large part for the good of the public, any measures for of the business of an attorney. On this rendering the members of the Profession point it may be remarked, that the arrangemore efficient and trustworthy will be will- ments of the Profession do not allow of its ingly supported, and there are strong rea- division into different classes any more than sons to believe that the Government is fa- clergymen or surgeons. If the practivourably disposed towards the improvement tioners in the County Courts, the Insolvent of the legal as well as other professions. It Courts, or other inferior departments of should be recollected that in the clerical business, were separated from the Solicitors and medical professions, scholastic attain- in Chancery and the other Superior Courts, ments are required of a higher and more different qualifications might be sufficient; difficult kind than those proposed for the but every attorney is entitled to practice in lawyer. The amount of education for the all the Courts, and it is impracticable to army and navy, and for various official and make any distinction in the mode of examipublic employments, is now much greater nation. Besides, independently of the busithan formerly; and therefore it behoves ness of the Courts, whether superior or the attorney and solicitor, who has to carry inferior, there is the important department the laws into effect,-who is the adviser of of Conveyancing, including the Law of Rea! all classes of the community, from the Property, in which any practitioner may be highest to the lowest,-who is called upon engaged. We believe, also, that it is not to legalise (as it were) all the transactions the wish of any attorney to be placed in a of his clients,-to extricate them from their lower grade of his Profession for the purdifficulties and embarrassments,-to assert pose of escaping an examination, but that and establish their rights, or defend them he desires to hold an equal position with when unjustly attacked, it becomes, we his brethren in general, and to be enabled, say, equally his duty and his interest to whenever the opportunity offers, of advancpossess himself of all "the appliances and ing himself from the humble practice in means" that may ensure success. It is acknowledged, that in the early period of life, before entering on the special studies of the Law and its complicated modes of administration and practice, a broad and sure foundation should be laid for professional attainments and learning, by cultivating energetically the several intellectual faculties. At an early age, the exercise of the memory in the study and acquisition of languages is the fittest employment, and such study is then more which he may at first be engaged, into a higher grade;-in like manner as a barrister who may commence his career at the Sessions, the Insolvent or Criminal Court, looks forward to the more dignified business of Westminster Hall. It may not be inappropriate in this discussion, to notice that Dr. Whewell, in his Lecture on the material aids of Education, delivered on the 10th July, 1854, treating of general education, as distinguished from Examination of Attorneys and Solicitors. 355 Professional or technical education, de- clergy are more highly esteemed in Society Scribes "education as the process of making than lawyers,-not merely for their holy individual men participators in the best calling, but from the necessity of their attainments of the human mind in general; receiving a University education. So, also, namely, in that which is most rational, true, medical men are considered to possess an beautiful, and good." eminent degree of scientific knowledge as well as classical attainments. We feel, "The way (he observes) in which the handicraftsman, the artisan, the artist, therefore, that the time has arrived when even the lawyer, the physician, the sculp- our brethren in general must bestir themtor, the painter, the architect,-learns his selves to keep pace with the other learned art, is a learning of a different kind from professions, and we think that the steps that which we call general education; proposed by the Council of the Incorpoimpelled by different motives, acquired in rated Law Society are entitled to the genedifferent schools, under different masters;- ral approval of the Profession. giving rise to a different train of reflections; The report to which we have referred,1 bearing in a different manner upon the states that the Council have under their destinies of society." consideration several suggestions for carrying this object into effect. The details of those suggestions are not yet announced; and it is evident that the regulations for the efficient operation of the proposed improvements re means "We most commonly (he continues) apply the notion of education rather to the young than to the adult; and therefore, I might have said, that education is the process of making young persons participators quire much care and deliberation. Several in the best attainments of the human mind. questions naturally arise on the modus And undoubtedly it is highly desirable that operandi :-For instance, it may be asked, a participation in such attainments should Who are to be the examiners in general be conveyed to all young persons: and that education? When and where is the exthis participation should begin in youth, is amination to take place? Is it to be held a rule which man's nature strongly recom- before entering into articles, or immedimends by the impulses and facilities that ately before admission? It is supposed by are then in action; and this the welfare some that the Masters of the Superior both of the individual and of society ur- Courts and the Council of the Incorporated gently demands; and presses upon us those Law Society, who are the present examiners, demands by most grave evils which result will also conduct the literary and scientific from their being disregarded. But yet the examination; but this is by no education of adults, whose education when a necessary consequence of the alteration. young has been neglected, is a matter of no The examination might be conducted by small interest, and of no light obligation; the masters of eminent public schools, or and in that case, the notion of education is by professors at the universities or colstill included in the same expression as be- leges; but graduates, of course, would not fore, that we are to make them participators require any further examination. It may in the best attainments of the human mind be questionable whether certificates of pro-in what is rational, true, beautiful, and ficiency from the masters of private schools good. And even if the education of a would be receivable, and yet it may be a young person has been ever so carefully hardship to compel all students to qualify conducted, yet still when youth draws to an themselves at a public school. However, end, there may, there must, remain much if twelve months or less, will suffice to be to do; and the process, still understood in "coached" or "crammed" for the legal the same sense, may be prolonged into the examination, a similar process will proseason of mature life; and may be the bably succeed in the other requisite attainmore prolonged, the more fully that sense ments, and therefore no great inconveniis affixed to the term." ence can be sustained under the suggested Hence it is palpable that to make an ac- improvements. complished lawyer, we should commence As to the time when the examination is with a good system of general education, to take place, the Council of the Law Soand carry it on sufficiently far, before en-ciety intimate their opinion that it should tering on the special, technical, or profes- be previously to the admission on the Roll, sional education, which is designed to pre- not to the commencement of the articles. pare the young man for the official duties This seems at present to be the proper of his important vocation. It is not unworthy of notice that for the most part the 1 See p. 327, ante. 356 Examination of Attorneys and Solicitors-New Statutes. marked that though the course of study be severe, the examination may be com paratively lenient. In the other branch of the Profession, the mode of proceeding adopted, under the sanction of the Judges, has been different. The attendance at all or any of the several courses of lectures, delivered in the Hall of the Law Society, is voluntary; but the examination is compulsory, for none can be admitted in any of the Courts without a certificate from the examiners of the fitness and capacity of the candidate to act as an attorney and in the usual business transacted by attorneys. course, but hereafter a certain amount of These defects, however, will no doubt be classical and general learning may be re- remedied; and, after all, it may be required prior to entering on the contract of service. The place of examination will usually, we presume, be in London; but it would be seriously inconvenient to compel candidates from distant parts of the country to undergo the preliminary general examination, as well as the legal, in the metropolis. If the Legislature should deem it expedient to diminish the number of the Profession, a classical and mathematical examination in London by the professors of King's College, or University College, or the head masters of St. Paul's, Merchant Tailors', or other public schools, would probably effect the object; but this would be inconsistent with the "free competition" propounded by the Chancellor of the Exchequer. If all property qualification were repealed,-not only the 807. on the contract and 251. on the admission, but the annual 91. certificate tax (which is really a property qualification representing a capital of 1801.,2)-then the educational test might justly be increased, because the large sum now exacted by the State, might be applied in rendering the candidates more fit for the discharge of their duties to the public. In our last Number we laid before our readers the prospectus issued by the Council of Legal Education of the Inns of Court. It has been remarked by several members of the Bar that the course of study required for the examination is much too extensive and severe, and not sufficiently useful and practical. Both the subjects of examination and the books on which the examination is founded, are considered to be too numerous and difficult, at all events at present. But to this objection it is answered that the examination is voluntary, and that a call to the Bar may take place after a sufficient attendance at lectures without an examination. This mode of proceeding, however, is evidently imperfect. Men of political influence may thus obtain the degree of barrister-at-law without any legal attainments, and carry away the prizes which ought to be reserved for the diligent student and accomplished lawyer. This supposes the capital only to be lent at 5 per cent., but as it is sunk, the amount ought to be doubled. Indeed, the present expense of the legal education and maintenance of an articled clerk is not less than 1,000l. This is surely "property qualification" enough., NEW STATUTES EFFECTING ALTE- THE Acts of the present Session printed in the present Volume, with an Analysis to each, will be found at the following pages : Income Tax, cc. 17, 24, pp. 46, 134, ante. 254. Commons' Inclosure (No. 2), c. 48, p. 254. Turnpike Trusts' Arrangements, c. 51, p. 276. Stamp Duties, c. 83, p. 317. COMMON LAW PROCEDURE ACT, 1854. trial of causes pending in the same Court ; Two Judges may sit at same time for s. 2. Power to Court or Judge to direct arbitration before trial; s. 3. Special case may be stated, and question of fact tried; s. 4. Arbitrator may state special case; s. 5. New Statutes effecting Alterations in the Law. Power to Judge to direct arbitration at time of trial, when issues of fact left to his decision; s. 6. Proceedings before and power of such arbitrator; s. 7. Power to send back to arbitrator; s. 8. Application to set aside the award; s. 9. Enforcing of awards within period for setting them aside; s. 10. If action commenced by one party after all have agreed to arbitration, Court or Judge may stay proceedings; s. 11. On failure of parties or arbitrators, Judge may appoint single arbitrator or umpire; s. 12. When reference is to two arbitrators and one party fail to appoint, other party may appoint arbitrator to act alone; s. 13. Two arbitrators may appoint umpire; s. 14. Award to be made in three months, unless parties or Court enlarge time; s. 15. Rule to deliver possession of land pursuant to award to be enforced as a judgment in ejectment; s. 16. Agreement or submission in writing may be made rule of Court, unless a contrary intention appear; s. 17. 357 Courts of Error to be Courts of Appeal; s. 36. Notice of appeal; s. 37. Bail; s. 38. Form of appeal; s. 39. Rule nisi granted on appeal, how dis posed of; s. 40. Judgment Court of Appeal; s. 41. Powers of Court of Appeal as to costs and otherwise; s. 42. Error upon award of trial de novo; s. 43. Payment of costs upon new trial on matter of fact; s. 44. Affidavits on new matter; s. 45. Power to Court or Judge to direct oral examinations of witnesses; s. 46. Proceedings before and upon such examination; 1 Wm. 4, c. 22; s. 47. Examination of person who refuses to make an affidavit; s. 48. Proceedings upon order for examination; s. 49. Discovery of documents; s. 50. Power to deliver written interrogatories to opposite party; s. 51. Affidavits by party proposing to interrogate, and his attorney; s. 52. Oral Examination of parties, when to be allowed; s. 51. Proceedings upon such rule or order; Speeches to the jury; s. 18. Persons making a false affirmation to be subject to the same punishment as for perjury; s. 21. How far a party may discredit his own witness; s. 22. Proof of contradictory statements of adverse witnesses ;. s. 23. Cross-examination as to previous statements in writing; s. 24. Proof of previous conviction of a witness may be given; s. 25. Attesting witnesses need not be called except in certain cases; s. 26. Comparison of disputed writing; s. 27. Provision for stamping documents at the trial; s. 28. Officer of the Court to receive the duty and penalty; 13 & 14 Vict. c. 97; s. 29. No document under this Act to require a stamp; s. 30. No new trial for ruling as to stamp; s. 31. s. 32. ; Depositions upon such examinations to be returned to Master's office; 1 Wm. 4, c. 22; s. 55. Examiner may make special report to the Court; s. 56. Costs of rule and examination to be in the discretion of the Court; s. 57. Inspection by jury, of parties, or witnesses; s. 58. Rule or order for summoning jury; s. 59. Examination of judgment debtor as to debts due to him; s. 60. Judge may order an attachment of debts; s. 61. Order for attachment to bind debts; s. 62. Proceedings to levy amount due from garnishee to judgment debtor; s. 63. Judge may allow judgment creditor to sue garnishee: s. 64. Garnishee discharged; s. 65. Attachment book to be kept by the Masters of each Court; s. 66. Costs of application; s. 67. Action for mandamus to enforce the performance of duties; s. 68. 69. Declaration in action for mandamus; s. Proceedings upon claim for mandamus; s. 70. 358 New Statutes effecting Alterations in the Law. Judgment and execution; s. 71. The Court may order the act to be done at the expense of the defendant; s. 74. Prerogative writ of mandamus preserved; s. 75. Proceedings for prerogative writ of mandamus accelerated; s. 76. Proceedings on prerogative writ of mandamus; s. 77. Specific delivery of chattels; s. 78. Form of proceedings and of judgment; s. 81. Writ of injunction may be applied for at any stage of the cause; s. 82. Equitable defence may be pleaded; s. 83. Court or Judge may strike out equitable plea or replication; s. 86. Actions on lost instruments; s. 87. False evidence; s. 89. Scire facias on judgment of assets in futuro; s. 91. To compel continuance or abandonment of action in case of death; s. 92. Claimant in second ejectment for same premises against same defendant may be ordered to give security for costs; s. 93. As to writs of execution issued before 24th October, 1852; s. 94. Courts may appoint sittings; s. 95. s. 97. may New forms of writs and other proceedings; s. 98. Interpretation of terms; s. 99. Provisions relating to Superior Courts to apply to Court of Common Pleas at Lancaster and Court of Pleas at Durham; s. 100. Provisions as to Masters of Superior Courts to apply to prothonotaries of Palatinate Courts; s. 101. An Act for the further Amendment of the Be it enacted as follows: 1. The parties to any cause may, by consent in writing, signed by them or their attorneys, as the case may be, leave the decision of any issue of fact to the Court, provided that the Court, upon a rule to show cause, or a Judge on summons, shall, in their or his discretion, think fit to allow such trial; or provided the Judges of the Superior Courts of Law at Westminster shall, in pursuance of the power hereinafter given to them, make any general rule or order dispensing with such allowance, either in all cases or in any particular class or classes of cases to be defined in such rule or order; and such issue of fact may thereupon be tried and determined, and damages assessed where necessary, in open Court, either in term or vacation, by any Judge who might otherwise have presided at the trial thereof by jury, either with or without the assistance of any other Judge or Judges of the same Court, or included in the dict of such Judge or Judges shall be of the same Commission at the assizes; and the versame effect as the verdict of a jury, save that it shall not be questioned upon the ground of being against the weight of evidence; and the proceedings upon and after such trial, as to the power of the Court or Judge, the evidence, and otherwise, shall be the same as in the case of trial by jury. 2. It shall be lawful for any one of the minster, at the request of the Lord Chief JusJudges of any of the Superior Courts at Westtice or Lord Chief Baron, to try the causes entered for trial at nisi prius in Westminster and London in either of the Courts, on the same days on which the said Lord Chief Justice or Lord Chief Baron, or any other Judge of the those places respectively, or at either of them, same Court, shall be sitting to try causes at so that the trial of two causes may be proceeded with at the same time; and all jurors, witnesses, and other persons who may have been summoned or required to attend at or for the trial of any cause before the said Lord Chief Justice or Lord Chief Baron, as the case may be, shall give their attendance at and for may be sitting to try the same by virtue of this the trial thereof before such other Judge as Act; and it shall be lawful for the associates Her Majesty may direct all or part of and other officers of the Lord Chief Justice or Court of Queen's Bench to be the Court of Appeal from Palatinate Courts; s. 102. Enactments in ss. 19 to 32 to apply to every Civil Court of Judicature in England and Ireland; s. 103. Commencement of Act: 24 Oct., 1854; s. 104. |