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Review: Lush's Practice of the Superior Courts of Common Law, &c.

the Senate, or for the Senate, on the joint application of all the Benchers of all the Inns, to appoint additional Readers.

21. The Inns of Court are not compelled to Call to the Bar those who shall have passed an Examination, but to retain their present powers with reference to the calling of Students to the Bar, and the dis-barring of persons after their Call, subject to the appeal to the Judges.

We have not thought it to be within the scope of our Commission to consider whether it would be expedient to associate the Advocates of Doctors' Commons with the great body of the Profession who are Members of the Inns of Court, but there would, as it appears to us, be very little difficulty in rendering them constituent Members of the University, if it were thought desirable.

With regard to Serjeant's Inn it must be remembered that the Judges are all Members of that Inn, and as they exercise an appellate jurisdiction over the Inns of Court in regard to the Call to the Bar, with which we do not propose to interfere, it does not seem to us desirable to introduce that Inn as part of the University."


Lush's Practice of the Superior Courts of
Common Law, &c., &c. Second Edition.
By JAMES STEPHEN, Esq., Barrister,
and Professor of Law at King's College.

London: Butterworths. 1855.

(Second Notice.)

THE Introduction to this work, Mr. Stephen informs us, contains "a most useful essay upon the proper parties to actions, a branch of the law scarcely touched by the Legislature," (till the Bills of Exchange Act of last Session,) "and to be studied chiefly in the Reports themselves. And although (continues the Editor) there has been applied to it the test of a thorough sifting of the reported cases of the different Courts, during a period extending over nearly 16 years, its accuracy has been fully sustained, and the alterations made in this part of the work are chiefly to illustrate or to confirm (with some additions) the propositions which Mr. Lush has laid down."

ciently known,-indeed it only becomes known when the work is referred to. Mr. Broom, some years ago, published a work (Practical Rules for determining Parties to Actions) which was afterwards incorporated, as an Introduction, in the first volume of a "Practice," published by him just before the passing of the Procedure Act of 1852. Neither of these works has found its way to the hands of the Profession, and the latter is utterly obsolete now; so that the student can only resort to Mr. Browne's Treatise, or purchase Lush's Practice. The high price of the latter work will, we fear, be an obstacle to its becoming so useful to the student, as it might otherwise have been, and as so good a book ought to be.

The "Practice" portion of the treatise is divided into three parts. The first exhibits the proceedings in an ordinary action, from the issue of the writ to the judgment of the House of Lords, step by step, as in that well known students' book, Mr. Kerr's "Action at Law." We have hitherto used this little work as a Practice, for we find that the old niceties and distinctions, which less at the Judges' Chambers, and that the fill up Chitty's Archbold, are deemed use

Procedure Acts are alone consulted.

to Mr. Stephen's observations on the New Rule, relating to several counts being inserted in the declaration (p. 292). We think that the learned Editor has misapprehended both the nature and effect of the rule, that "several counts on the same cause of action shall not be allowed." It seems to us that this rule was framed expressly to get rid of the difficulties and occasional failures of justice, which arose under the old rule, examples of which are enumerated by Mr. Stephen. Perhaps the Editor will note this doubt for his next edition.

Our attention has been accidentally called

The second part of the treatise consists of separate chapters on the proceedings collateral to an action, such as Discovery and Interrogatories; and the third part is devoted to independent proceedings in the Courts, such as Ejectment, Arbitration, and We have quoted a part of the Editor's County Court appeals. "Throughout the Preface, that we may express our concur- work Forms are interspersed," but the exrence in his views of the value of Mr. amples seem to be confined to the common Lush's Treatise on Parties to Actions. The forms given in the Schedules appended to first volume of Mr. Chitty's Pleading is the Procedure Act of 1852, and the differdevoted to the same subject, but it cannot ent sets of rules, issued since the passing now be safely or usefully resorted to by the of that Statute. The book professes, howstudent. Mr. Rowland J. Browne's Trea- ever, to be a work of practice, not a volume tise on Actions at Law, which embrace of precedents, and the forms are stated to this subject, we have always highly esteem- be given by way of illustration. ed, and we wish to see a new edition of it. It is a book the value of which is not suffi

We think the Appendix of Statutes and Rules might have been omitted, and the

Review: Lush's Practice of the Superior Courts.-Inns of Court and Chancery.


bulk as well as cost of the book thus pro- INNS OF COURT AND CHANCERY. portionably diminished. A large Appen


THE following evidence was given on the part of the Incorporated Law Society:—

Cookson, Esq., examined.
Keith Barnes, Esq., and William Strickland

dix (but Mr. Stephen's by no means EXTRACTS FROM THE MINUTES OF EVIDENCE merits that denomination) has become an invariable accompaniment to a treatise on any branch of the law. It swells out the book, requires no labour from the author, is rarely paid for, and enables the publisher to impose a large price on the volume. We have on our table now that immense Statute, the Merchant Shipping Act, in three forms, besides the Queen's Printers-in Beavan's Statutes, in the appendix to Smith's Mercantile Law, and in the appendix to Abbott on Shipping. This reprinting of Statutes has become a standard piece of publishing jobbery, against which we protest on behalf of the profession, and which we must (for we have no Sir Peter Laurie) and will do our best to put down.

1527. (To Mr. Cookson.) The Commissioners are anxious to receive information from your branch of the Profession, on the subject into which they are now inquiring, namely, the best mode of conducting the Legal education of Students for the Bar. Are there any remarks which have suggested themselves education, in our own branch of the Profesto you on that subject?—The subject of Legal sion, has been for a long time under our consideration. When the Solicitors established the institution of the Incorporated Law Society, they presented a memorial to the Judges, submitting that in their opinion, a great advantage would result to their branch of the Profession admission on the Roll of Attorneys were estaif a system of Examinations of candidates for blished. The Judges acquiesced in that view, and eventually certain regulations were made. That was as far back as the year 1835. We believe that great advantage has resulted from those Examinations. The mode in which the Examinations are conducted is this:-There

Had Mr. Stephen, for instance, instead of either Statutes or Rules, given such really practical directions, as are to be found in Mr. Ayckbourne's Chancery Practice, he would have greatly increased the utility and value of this work. Why, for instance, could he not have informed his readers what to do with a special case, when it had been prepared and signed by counsel. We all know how it is taken to the Associate are four Solicitors, who are Examiners for and then returned with the Nisi Prius Re- of Common Law. Fifteen questions upon each each Term, and a Master of one of the Courts cord to the Court in Banco, by being filed branch of the Law are prepared and printed. in the Master's office. But the theory of The candidates, on the day of the Examination, the proceeding might have been explained, are all assembled together in the Hall of the and the actual steps to be taken by the Institution, and the questions are then submitattorney's clerk detailed. Indeed it is ted to them, and their answers, which are chiefly for such directions that "a practice "written, are carefully examined by the Exais consulted. The barrister who has any-selves sufficiently acquainted with the different miners, and such men as have shown themthing to do at all, or the attorney who has only half a dozen writs, knows the practice and rarely opens either Chitty or Lush, except when some unusual proceeding is to be taken. The student and the beginner anxiously turn over the pages of a practice;"-and if they are not told what to do, and where to go, and how to do what is required, they throw aside the book, and get the instruction they expected from it from a more experienced friend.

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We indulge in these remarks in this place because our satisfaction with Stephen's Lush's Practice is, for the reasons we have given, not altogether unalloyed. We wish it had been otherwise, for we could then have had the pleasure of recommending the work, without being obliged to criticise it at all. We have compared it with the first edition, and we have no hesitation in saying that the work itself will be a permanent monument of the industry of the learned Editor.

subjects are certified to be proper men to be admitted Attorneys.

1528. Are those Examinations in Common Law alone?-In Common Law, Equity, Conveyancing, Bankruptcy, and Criminal Law. There are fifteen questions on each subject.

1529. How long has that system been in operation?-In May, 1835, the Memorial was 1836, the Examinations commenced. presented to the Judges, and in Trinity Term,

1530. In imposing this as a condition of the admission of members of your Profession, it was upon the decision of the Judges that gentlemen were not admitted till such an Examination had been passed?-Certainly. There is right of appeal to the Judges against the rejection of Candidates by the Examiners; and a few instances have occurred of such appeals, but the Judges have always confirmed the decisions of the Examiners.


1531. In your judgment, has the institution of the Examination diminished the number of applicants for admission into the Profession?

I find that previous to the commencement of the system of Examination in Trinity Term,

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1836, the average number of Attorneys annu-used of ascertaining that men have some ally admitted on the Rolls was between 500 knowledge of the Law before they are permitand 600, and the number annually admitted in ted to enjoy the exclusive privilege of practis16 subsequent years, from 1837 to 1852 inclu- ing it. At present, the circumstance of a gensive, averaged about 391 annually. There was theman being called to the Bar is, of itself, no a falling off in number after the Examinations evidence that he has any acquaintance with the commenced, and the Examinations probably Law. Solicitors are obliged to look out for operated to prevent, to some extent, the ap- young Barristers who are not fully employed; plication for admission by young men who and it would, I think, be of great advantage to during their Clerkships had not applied them- the Solicitors, and to the interests of their selves industriously to the study and practice clients, and also to the young Barristers themof the Law; but I think that about this time selves, if the call to the Bar could be relied on an apprehension began to prevail that the re- as the solemn testimony of able Lawyers that forms then in contemplation in the practice of the gentlemen called had been by them ascerthe Law would materially diminish the emolu- tained to be really qualified to discharge the ments of Solicitors, and that many gentlemen important duties which are expected from them. were thereby deterred from incurring the ex- I think, moreover, that no gentleman should pense of placing their sons in the Profession. be allowed the rank and position of a Barrister who has not qualified himself for that position by the study of the Law.

1532. Do you afford to the Student the opportunity of deriving instruction from Lectures? We do. The Lectures commenced in the year 1833, about three years before the Examinations were established. We have Lectures on subjects connected with three branches of the Law, namely, Common Law, Equity, and Conveyancing. The Lectures are delivered twice a week, commencing in November in each year.

1533. Lectures are given upon each of those subjects?—Yes.

1534. Is the attendance upon them compulsory?-No; but the attendance is numerous.

1535. The Examination is compulsory, but not the attendance upon the Lectures?-Exactly. I believe great advantage has resulted to the Students who have attended the Lectures. I have had opportunities of knowing, from my own observation, that those who have attended the Lectures have derived great benefit from them.

1536. Do you find any inconvenience to result from your Articled Clerks attending the Lectures, and therefore absenting themselves from Chambers?-No; the hour at which the Lecture is given is after the hours of business. 1537. The Commissioners understand that in your judgment this system of Examination has been very beneficial to your branch of the Profession-I think so; it has stimulated young men to reading during their Clerkship, and they come into the Profession better prepared than they would otherwise be to discharge their duty as Attorneys, and are better acquainted with Legal principles.

1539. Have you any system of private Classes in conjunction with the Lectures?No; I have none in my office, and I do not think it exists in other offices.

1540. The Lecturers have not private Classes?-I believe not.

1541. Have you observed any marked improvement in the general information of those who have been admitted to your branch of the Profession since the institution of those Examinations?—I think, decidedly, those who are admitted have a considerable acquaintance with Common Law, with Conveyancing, and with Equity; they must pass in all the three branches. The Master of the Rolls, when he appointed us to examine the applicants for admission to the Roll of Solicitors in Equity, required that we should not grant a certificate to any applicant who did not pass the Equity Examination, though he might be qualified in other branches.

1542. Equity was made a sine quá non. non?Yes. The Common Law Judges made Common Law a sine quá non; and within the last two or three years, feeling the great importance of Solicitors being well skilled in Conveyancing, we have induced the Judges to allow us to make that also a sine quá non.

1543. Do you reject any Candidates?-Some are postponed every Term.

1544. Do they present themselves again after a certain time?-They do.

1545. And occasionally pass after their first rejection?-Yes.

1546. They must pass in Common Law and Equity, must not they?—Yes; and by an alteration made two or three years ago, they must also pass in Conveyancing.

1538. Comparing the two systems which now exist, namely the system for the Bar, of having a compulsory attendance at Lectures, and a voluntary Examination, and your system which consists in a voluntary attendance 1547. Your Examination is confined to at Lectures and a compulsory Examination, Legal subjects, is not it; you do not examine have you formed any opinion which is the pre- Students in History, do you?-No; the subferable mode of instruction?-I am not by ject of an Examination in general Literature any means opposed to the compulsory attend- has been under the consideration of the Counance at Lectures of gentlemen studying for the cil, and a Committee was appointed to consider Bar, but I think it very desirable, as in our the subject, and that Committee, of which I branch of the Profession, that Barristers was a member, made a report to the Council, should be required to undergo an Examina- pointing out the advantages of having an Exadion before being called. Means should be mination in general Literature previously to

Inns of Court and Chancery.

their being articled, and proposing one in Classics, Mathematics, and Ethics, in the French language, and English History. The Council received the report favourably, but thought some modifications desirable, and the report was referred back to the Committee. Hitherto the Council have not come to any

final decision.

1548. Are you a member of the Council?Yes.

1549. What was the last step taken in that matter? It is still pending. Before the Long Vacation, the subject was discussed in several meetings of the Council, and the discussions resulted in a reference back to the Committee to consider suggestions made by the Council. There is a considerable difference of opinion in the Council, but I think a majority are in favour of an Examination.

1550. Is there any certificate as to character required?-Always; every gentleman applying to be admitted must bring a Certificate from the Solicitor with whom he has served, that he has diligently and faithfully employed himself during Clerkship; to his moral character the master also certifies. Instances have occurred where, in consequence of representations made to them, the Examiners have felt it to be their duty to make strict inquiry into the moral conduct of Candidates with reference to particular


1551. You say that your body are not unanimous with reference to the preliminary Examination; are they unanimous, or nearly so, with reference to the advantage of continuing the existing system ?-I believe they are unanimous.

1552. You have no mode, have you, of excluding a person from the Roll who has shown great ignorance?—Not after he is once admitted on the Rolls; his removal must be the act of the Judges.

1553. Nor for bad conduct?-Several cases have occurred in which we have thought it necessary to bring the misconduct of Attorneys before the Court.

1554. It is a difficult proceeding even then, is not it? It is not easy to get an Attorney struck off the Rolls?-No; and it ought not to be so.

1555. It is not easy to get a man of bad character struck off the Rolls?-If you establish that he has been guilty of gross misconduct, then the Judges will remove him from the Rolls.


all cases of applications for re-admission, or for leave to renew Certificates, the Judges require that notice should be served on our Secretary, that we may have the opportunity of being heard.

1557. Your Body is incorporated by Charter?--It is; and we are the Registrars of Attornies, and their annual Certificates are issued on our Certificates.

1558. Having a Council to regulate it, you have the means of excluding those who misconduct themselves from your Society?-We have; and occasionally, where we have considered that the misconduct of a Solicitor, a member of the Society, did not entitle us to apply to the Court to remove him from the Roll of Solicitors, we have felt ourselves justified in removing him from our own Body.

1559. In your judgment, would it be consonant to the wishes of the Members of your branch of the Profession, that there should be a compulsory Examination of gentlemen for the Bar?-I cannot venture to give an opinion of the wishes of the Profession at large; a great many approve of it.

1560. What is your view?—I think great advantages would result from it. We should then have a Certificate that any gentleman who was practising at the Bar was considered by very competent persons able to practise with advantage to the public. I am under the impression that formerly Examinations, or something equivalent to them, did take place in the Inns of Court. The Commissioners are probably aware that formerly it was necessary that Attorneys and Solicitors should be Members of one of the Inns of Court, or of Chancery, and should be examined. Regulations were from time to time made by the Beuchers of the Inns of Court, limiting the privileges of the Attorneys in respect of membership, and eventually they were excluded from all the Inns of Court, and of course were not entitled to resort to their Libraries, or to have any advantage whatever from the Inns of Court. The Inns of Chancery seem to be composed almost exclusively of Members of our branch of the Profession. So far as I know, they have none of them Libraries; they none of them provide Lectures, and they do not seem to contribute in any way, in their corporate character, to the improvement of the Profession, except that as it may be felt to be some distinction that a man should be invited to become a Member of one of those Inns of Chancery, Solicitors may desire to render themselves worthy of the distinction.

1556. Would it be better, in your opinion, to invest the body of Attorneys at large with a power to regulate the admission or exclusion 1561. You are aware that there is a formal of their own members ?—Although I have no proceeding, or was until within a year or two, doubt that if such a power were vested in the of a Reader being sent from the Temple to one Council of the Incorporated Law Society, they of the Inns of Chancery?-He found no Stuwould exercise that power with care, caution, dents to lecture to. Being excluded from the and strict impartiality, yet I think it is desir- Inns of Court, and their Libraries, our branch able so important and serious a question as of the Profession felt it very important that that of depriving a professional man of his other facilities should be afforded to young means of livelihood, should be submitted to the men of studying their Profession, and with a highest authorities. The proceeding is a more view to having a Hall, and Library and Lecsolemn one, and carries greater weight. In tures, this Institution of ours was established

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by the Solicitors, at an expense to themselves on Admission, the Solicitor has to pay an of upwards of 90,000l., and they have contri- Annual Certificate Duty. buted annually large sums to its support.

1562. You have a large Library ?-Which has cost us a large sum of money. We pay the Lecturers from our funds, receiving a small sum from the Students who attend. A very large proportion of our Members personally derive no advantage from the Hall or from the Institution, but they have contributed largely to the erection of the building and the purchase of the Library, and they continue to contribute annually to the Institution, from a conviction that the Institution is a valuable one to the Profession.

1563. Though performing extremely useful functions, you are in fact a voluntary Society? -We are. We have felt that if there are any funds either connected with the Inns of Court or the Inns of Chancery, which could be fairly applied to the purposes of Legal Education, the claims of our Society, and of our branch of the Profession, should be considered. We have lost all the advantages connected with the Inns of Court; we are no longer connected with them. I am quite ignorant as to the fact whether there are any such funds or not; but if there are such, we certainly should ask to have our claims considered. I believe our Institution has been of very great value to the Profession and the Public.

1564. Have you made any proposals of this kind, that the Articled Clerks of Solicitors should be at liberty to attend those Lectures, which are attended generally by members of the Inns of Court?-I am not aware that we have made any proposal of that kind; our Lectures began several years before those of the Inns of Court. I think the Lectures which we give in our Institution are well adapted to the gentlemen who are studying for our branch of the Profession.

1565. Can you state at all what is the cost of the education of an Attorney?-I think in London the fee paid to a Solicitor on a Clerk being articled is 300 guineas; the stamp upon the Articles was, till last year, 120 guineas; it is now reduced to 80 guineas. He has to serve five years; he mixes among gentlemen, and must support the position of a gentleman, which is a considerable expense. When he has served five years he has to be admitted. There is a stamp upon the admission, which is 257., and there are some other fees connected with his admission. Some small fees also are paid upon the Examination.

1566. Does he pay for the Lectures?-He contributes something to the Lectures.

1569. Moreover, you have a preliminary Examination before a young man is admitted to be an attorney, which there is not in the With respect case of a Barrister?-Just so. to the expense incurred by a Solicitor, we have always felt it to be a great grievance in our branch of the Profession, that we had a treble taxation, which I believe no other class of men in the kingdom are subject to. A tax of 1207. upon being permitted to enter the Profession at first, a Stamp of 251. upon our admission, and when we had paid both those, we were not permitted to practise without an annual Certificate, which used to cost us 127., but is now reduced to 91.

1570. Those all act advantageously to the body of Attorneys in one respect, by limiting the Profession ?-There is not much advantage I think in that. The object of requiring the Stamp on Articles was, I believe, declared by Mr. Pitt to be to increase the respectability of the Profession; and when we had an interview some little time ago with the Chancellor of the Exchequer, we submitted to him that a much better means of improving the character of the Profession would be to have the money that is now paid for Stamp Duty upon the Articles expended upon the previous education of the Clerk.

1571. Is not it the case that the Profession of an Attorney has very much risen in importance and respectability compared with what it was 200 years ago, so far as we have any means of knowing?-That is a matter of history; but I can hardly imagine that the public could, at any period, have got on without the assistance of intelligent, well-informed professional men in the position of Solicitors.

1572. Is not an Attorney now equal to a great many operations that a Barrister used formerly to perform?-I think the duties of the Barrister and the Solicitor are tolerably distinct. I am not aware that at any period the Attorney was a mere clerk. As far back as the 20th Henry III. (1235) a Statute was passed (c. 10) empowering suitors "to freely make his Attorney to do those suits for him;" and by the Statute of 15 Edward II., c. 1 (1322), there was reserved "to the Chancellor for the time being his authority in admitting Attorneys, according to whose discretion they shall be admitted, and to our Chief Justices, as heretofore hath been observed in the admission of Attorneys." Again, the Statute 4th Henry IV., c. 18 (1403) alluding to mischiefs arising from Attorneys "ignorant and not learned in the Law as they were wont to be before this time," ordained and established

1567. That would make altogether, in round numbers, about 1,0007. ?—I think more. Many gentlemen, after they have served their Clerk-" that all the Attorneys shall be examined by ship, incur the further expense of going into the Chambers of a Conveyancing Barrister, or a Special Pleader, for six or twelve months.

1568. In fact, the necessary cost of the education for an Attorney is larger than that for a Barrister? Considerably. Besides paying for the Stamp on his Articles, and the Stamp

the Justices, and by their discretions their names put in the Roll, and they that be good and virtuous and of good fame shall be received and sworn well and truly to serve in their offices." "And if any of the said Attor neys do die or do cease, the Justices for the time being by their discretion shall make an

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